‘Judicial notice’ taken that COVID-19 is a threat and that vaccines proven ‘safe and effective’
A Saskatchewan Court of Queen’s Bench judge has ruled that a 13-year-old daughter must be vaccinated for COVID-19, agreeing with the father’s position that it is in the best interests of the child to receive the vaccine and rejecting the arguments of the mother, who does not want her daughter vaccinated.
It is one of several cases that have gone to court as ex-spouses battle over vaccinations for their children. “This is not the first vaccination case to come before Canadian courts,” Justice Michael Megaw wrote in his ruling. “It may be one of the first Covid-19 vaccination cases, at least in this jurisdiction, but the Court has grappled with these very issues before.”
Vancouver lawyer Lorne MacLean says COVID-19 has shone a light on the passions surrounding vaccinations, especially when spouses are on opposite poles of the anti-vax/vax debate. In fact, he will be in court next week on a case involving a five-year-old girl who has never been vaccinated for any disease.
He adds that the Saskatchewan judge’s ruling follows other cases, in B.C. and Ontario, for example, where the courts have taken “judicial notice” that there is a sufficient threat to the child and that vaccines have been proven to be safe and effective.”
Any parent who doesn’t have medical decision-making rights but who wants their child vaccinated against the wishes of their ex would virtually be guaranteed of having a judge agree that the child receives the jab, Maclean says, “in the absence of contrary evidence from experts.” As for trying to mediate a solution, MacLean suggests these cases are challenging, as the positions are typically so polarized.
In the Saskatchewan case, O.M.S v E.J. S., Megaw wrote “the father seeks to have the child vaccinated due to his concerns regarding the Covid-19 virus and its effect on this child.” The judge ruled “the best interests of this child operate in favour of an order directing that the father shall be entitled to have the child vaccinated for the Covid-19 virus.”
However, Justice Megaw added that this is to be done in consultation with the child’s family physician and the child’s endocrinologist, “and the parties shall act in accordance with the advice and directions received from these physicians.”
He wrote in his decision nothing before him “satisfies on a balance of probabilities that this child’s health will be compromised by the administration of the Covid-19 vaccine.” However, consultations with the family physician and the endocrinologist “will ensure the child’s medical issues are properly and thoroughly considered by those that are most familiar with her and her medical file.”
Justice Megaw added that the daughter, who has type 1 diabetes, must have the ability to avoid contracting the virus. “The most efficacious way that is done at this time is through the administration of the vaccine,” he wrote, noting that there can be serious health effects of Covid-19, even in young children. “This child’s best interests dictate she be given the best opportunity to avoid such health risks.
The father initially believed his daughter was more at risk should she contract COVID-19 because of her diabetic condition. However, the judge wrote that “reviewing evidence from the girl’s physicians “allows for the conclusion that the child’s type 1 diabetic condition does not place her at any greater risk than any other members of society with respect to the effects of contracting Covid-19”.
Regardless, the father “is concerned about Covid-19 and wants this child vaccinated.”
As background, the ruling explained that the parents separated in 2014, and a trial was held that determined their two children live with their mother, and the father would have specified parenting time. The other was to have final decision-making authority concerning education and medical matters involving the children.
The application, in this case, deals only with the daughter, who recently turned 13. The parents’ son is not part of the application because he is under the 12-year-old age limit for children to receive a COVID-19 vaccine.
The mother opposes the vaccination of the daughter for three reasons. First, she says the child does not want to be vaccinated. Second, the mother says the daughter may have a medical condition called “vaccine toxicity.” And finally, the mother questions the accuracy of information about the COVID-19 vaccine being disseminated by the health authorities.
The mother notes the father’s parents are opposed to vaccinations for COVID-19. They have been “in contact and seemingly working with the mother in this regard.”
In his decision, Justice Megaw made it clear about want the case before him “is not about.”
“It is not about whether there is, or has been, a pandemic with respect to the Covid-19 virus. It is also not about whether the numbers with respect to that pandemic are accurate, sufficiently large, or affect children. It is also not about the safety or the efficacy of the Pfizer vaccine.”
Adds Justice Megaw: “This case is also not about governments bullying or forcing citizens to take experimental drugs. It is not about freedom of speech or the lack thereof. And, it is not about the inability of certain individuals to have their points of view heard to their personal satisfaction.”
And finally, he wrote, “it is not about either right or left politics,” or about society or the Court “picking a side in a legitimate ongoing societal debate.”
What the application is about, he wrote, is should this child “be ordered to be vaccinated for the COVID-19 virus if she is saying she does not want that to be done and in light of evidence concerning a condition called “vaccine toxicity”?
In her arguments about why the child should not be vaccinated, the mother alleges the father is “being punitive” to the child through the protocols he established during the pandemic. These protocols include limiting non-family members in the house, establishing a sanitation station, online schooling, testing for Covid-19 if symptoms are shown, and not contacting non-vaccinated individuals.
However, Justice Megaw said he is “unable to conclude these measures are either punitive, or for that matter unusual, during the Covid-19 pandemic times.” The advice on what measures should be taken to combat the spread of Covid-19 is well known, he wrote, “and I am unable to conclude any of the father’s measures were either unusual or over-bearing.”
Regarding the child’s views and preferences, the mother’s affidavit states that her daughter “does not want to receive the COVID-19 vaccine based on “information she has received, and, apparently, her research.”
But “the father questions whether the child’s views are truly her own,” Justice Megaw wrote. “Moreover, the father asserts the child’s wishes do not simply carry the day on these matters.”
Justice Megaw says that while he doesn’t doubt the daughter is a “mature, bright, and capable young woman,” he is concerned about the influence others have on the girl, particularly her mother and paternal grandparents.
He ruled that he finds the daughter has been “so significantly influenced by her mother and has developed such an irrational fear instilled by her mother that she has “lost her capacity” to make a rational decision about vaccination.
Saskatchewan lawyer Greg Whalen, with Scharfstein Law in Saskatoon, says that the wishes of a child, especially a “mature minor,” are generally considered in family disputes. However, “it’s not the final word – otherwise we’d let the child decide everything and not go to court.”
In this case, the judge decided that she was under the influence of her parents and grandparents, decided to base his decision on medical evidence and what is best for the child.”
Sherry Fitzsimmons with McDougall Gauley in Saskatoon says that her firm’s family practice team has already assisted parents in disputing whether their children will get vaccinated. She also notes that “once a vaccine becomes widely available to the under twelve population, it is very possible that lawyers will see a surge in vaccination disputes.”
Laurie Pawlitza with Torkin Manes in Toronto agrees there may be a new round of disputes on the horizon but adds that these cases may be easier to resolve since the question of informed consent or mature minor won’t likely come up.
Says Pawlitza: “Cases in these types of healthcare-related disputes can be more difficult with older children because of the Health Care Consent Act and the child’s capacity to make informed decisions and give consent.
