In this case, allowing child to not receive COVID-19 vaccine is in her best interests, court rules
The Court of Appeal for Saskatchewan has overturned a lower court ruling that a teenage girl must be vaccinated against COVID-19, saying her wish not to be vaccinated is in her best interests.
“The Chambers judge erred in law by having a singular focus on reducing the physical risk to this child associated with the Covid 19 virus and by failing to account for other factors that bear on this child’s well-being,” the appeal court decision released earlier this month says.
“When all the relevant factors are examined in the unique facts of this case, we conclude that Covid-19 vaccination is not in this child’s bests interests.”
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The appeal court said the vaccine would likely protect the girl’s physical health but said there could be other negative health implications.
“I think the take-home here is that there is no one formula that can be applied to every parenting decision brought to the courts,” says Rana Ganhem, a family law practitioner with Ogilvie LLP in Edmonton. “Decisions in the best interests of the children will always be made on a case-by-case basis.”
History of disputes
In 2021, the girl’s father asked the Court of King’s Bench — then called the Court of Queen’s Bench — to allow him to get his daughter, 12 at the time, vaccinated against her wishes and those of her mother and paternal grandparents.
The parents are divorced, having separated in 2012. A judge ruled at trial in 2014 that they would share joint custody of their two children, but they would live primarily with the mother. The mother, as a result, was granted the final say regarding the children’s education and health.
The girl has Type 1 diabetes, and the father wanted her to be vaccinated against COVID-19 because she was more at risk of severe infection. The mother and the father’s parents opposed the vaccination and questioned the public health authorities’ information about COVID-19 coming from health authorities.
The couple has had many disputes beyond medical care of the children, with one judge likening the situation between the parties to the Hundred Years’ War between England and France, which “seemed to go on forever with no clear victor.” The judge also said stated that it appeared “the fight itself is the actual prize, with the children being not only forgotten but trampled underfoot.”
Against this background, the appeal court said, “it is not surprising that the Covid-19 pandemic provided an occasion for further disagreement.”
In September 2021, the Chambers judge who heard the father’s application, Justice Michael Megaw, ruled in favour of the father, but the mother appealed.
However, the appeal court panel found Justice Megaw erred in law by failing to account for the teen’s emotional and psychological well-being. It said he only considered whether the child was situated to make an informed decision and weighed the vaccine’s effect on her physical health.
The appeal judges also found Justice Megaw failed to ask if there was a risk that forced vaccination could harm the daughter’s emotional and psychological well-being, the likelihood of that risk, and the potential consequences should it materialize.
The appeal panel noted that under the Divorce Act, the court “shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.”
In this case, the appeal court ruled, “there is a risk, albeit small, that a forced vaccination may prompt this child to self-harm, and a much greater risk that it will cause other very real psychological and emotional harm to this child,” the decision says. “For these reasons only, in the unique circumstances of this case, this child should not be vaccinated against her expressed wishes.”
The court pointed out an incident where the teen had “raised self-harm as a possibility after experiencing a perceived threat of bodily harm that she associated with the father.”
Justice Megaw dismissed this incident. But the appeal court ruled that “before a court can ignore completely the risk that the child might self-harm if forced to be vaccinated, it would have to be satisfied that the risk is not real or material.”
Child’s relationship with father already “fraught”
The child’s relationship with her father is “already fraught,” the appeal court decision says. “The evidence is such that if the child is to be vaccinated at the father’s insistence, it will damage that relationship further,” perhaps irretrievably.
Justice Megaw also expressed concern about how much influence the mother and the father’s parents had over the girl, and found the child was not speaking independently and was not entitled to decide on her own in this matter.
Justice Megaw said although the daughter was a “mature, bright, and capable, young woman,” he found the “background circumstances here raise rather significant concern over the influence others are having over this young person and whether these others are causing her to form her views with respect to the vaccine.”
The appeal court acknowledged that the girl’s views towards the vaccine appear to be “the product of misinformation given to the child.” But it ruled that from the perspective of the child’s best interests, “it is less relevant why this child is opposed to being vaccinated, or how she came to the view that she does not want to be vaccinated.”
Instead, “the decisive point is that she holds the views and the risks that we have identified that are associated with a forced vaccination in the face of these views outweigh the health benefits of the vaccine in her unique circumstances.”
The appeal court acknowledged that reversing Justice Megaw’s decision might be seen as creating “the unfortunate risk” that allowing the mother’s appeal “will be seen by some as providing a reward to the providers of misinformation” and prompt others to act similarly.
However, the appeal court decision says the focus is on this child’s best interests. “For this reason, we must ignore these broader concerns, except to the extent that they bear on what is right for this child.
“We are hopeful that an understanding of the exceptional facts of this case will limit the opportunity that mischief will come from the result in this appeal.”
Appeal court acknowledges exceptional circumstances of this case
Ganhem says the appeal court was “very cautious” in stating that overturning the decision was due to the exceptional facts of this case and what was right for this child.
“This is extremely appropriate given the culture of misinformation during Covid-19; the court is basically stating that you cannot apply the results of this case to others just because of your views on vaccination,” she says.
“Each case is looked at on an individual basis and what is appropriate for this child will not necessarily be appropriate for others.”
The mother’s lawyer, Tim Turple, said in a statement that “our client is very grateful for the court’s careful analysis and recognition of the risk of harm to the child who, at age 14, is able to make her own personal medical decisions.”
A decision has yet to be made on whether to appeal the decision.
