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Childhood Vaccination Decision-Making by Parents

By | - July 25, 2022

Steve Benmor is a recognized divorce lawyer, family mediator, arbitrator, speaker, writer and educator. Mr. Benmor has worked as lead counsel in many divorce trials, held many leadership positions in the legal community and has been regularly interviewed on television, radio and in newspapers as an expert in Family Law.

At first glance, Rashid v. Avanesov (2022) is yet another case of a judge deciding in favour of the parent who wishes to vaccinate their child against COVID-19.

Since November of 2021 – when the first COVID-19 vaccines were administered to children under 12 years of age in Canada – many such decisions have made headlines, swirling controversy about who has the right to decide to administer or receive vaccinations recommended by public health officials.

What we miss when we don’t read the case law is that judges in the onslaught of vaccination cases over the better part of the last year are not deciding whether a child should receive a specific vaccine or not, but who should be making decisions that are in the best interests of the child’s health, pursuant to ss.16.1 and 16.3 of the Divorce Act. And that decision takes many interconnected factors into consideration.

In Rashid v. Avanesov, an Ottawa mother brought a motion for an interim court order allowing her to obtain medical vaccinations recommended by Ottawa Public Health Guidelines (in particular the MMR – measles, mumps, and rubella – and COVID-19 vaccines) for her 7-year-old child. The mother also asked for an order dispensing with the need to obtain the father’s consent for any future vaccinations, and for the father to refrain from discussing vaccinations with the child.

The father disagreed, citing concerns about the child receiving the MMR vaccine in light of the father’s rheumatoid arthritis (an autoimmune disease), and claiming the possible risks and side effects of the COVID-19 vaccine outweigh any benefit of the vaccine.

In paragraphs 6 and 7 of the decision, the judge points to the issue to be decided, which is not whether a child should be vaccinated, but rather whether it is in the best interests of the child that one parent (in this case, the mother), have interim decision-making responsibility on matters of health.

The Judge Stated:

The court does not have the authority to mandate a child to be vaccinated. While the safety and efficacy of vaccines may inform the court’s determination on whether any parent should be granted decision-making responsibility on matters of health, the ultimate decision to grant or withhold vaccination for a child is to be determined by the parent in consultation with the medical physicians administering the vaccine.

In short, the issue to be decided is not whether the child should or should not be vaccinated but whether it is in the child’s best interests that the mother have decision-making responsibility on an interim basis on matters of health, including vaccination of the child.

The judge found that it could take judicial notice that it was in the best interests of children to be administered the MMR vaccine unless contraindicated. The judge also found that it could rely on the mother’s materials from various Canadian health authorities to find that, as a general presumption, it is in the best interests of children as young as five to get the COVID-19 vaccine. She was supported by an affidavit from the child’s physician.

The mother was granted, on a temporary basis, decision-making authority for the child on matters of health, including childhood vaccination. The order requires the mother to “reasonably consult” with the father prior to making a decision on the administration of future vaccines for the child. The judge also ordered that the parents not discuss immunization in the presence of the child and the father refrain from discussing the issue of vaccination with the child.

Other factors that warranted the orders in the mother’s favour included over childhood vaccination:

● Mother had historically been the parent primarily responsible for matters of health;

● The child’s needs, age, and stage of development required that the issue of decision-making responsibility over Childhood Vaccination be resolved so that the child could obtain the necessary protections from the risks of serious illnesses and be able to fully participate in school and social activities important for his development to the fullest extent possible; and

● It was found that the mother’s conduct demonstrated her willingness to communicate and cooperate with the father on matters affecting the child.

LINK TO CASE: https://www.canlii.org/en/on/onsc/doc/2022/2022onsc3401/2022onsc3401.html

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