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Vax & Anti-Vax Debate Continues In Family Court

By | - September 13, 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.

Just when we thought that every Canadian judge in family court was of the collective view that all children should be vaccinated against COVID, here comes another twist.

In this recent case, the father brought a motion for an order commanding the mother to ensure that their 12-year-old daughter is vaccinated against COVID-19 and that she receives any further and additional scheduled vaccinations in accordance with provincial recommendations.

The judge referred to a long line of cases that stated that judges can take judicial notice (i.e. it can be assumed) that being vaccinated against COVID-19 is in the best interests of children unless there is a compelling reason not to do so; contracting COVID-19 poses many serious and significant health risks to both children and adults; the COVID-19 vaccine is safe; the COVID-19 vaccine is effective; the Pfizer vaccine is safe and effective for both children and adults; the approval of the Pfizer vaccine by health authorities; the harm to a child from contracting a vaccine-preventable illness may include death; COVID-19 has a low mortality rate, especially in children; and the fact that vaccination comes with a risk, just as all medical treatment does.

The judge then found that, on the other side, there are cases in which the courts were not prepared to take judicial notice of the efficacy and safety of the COVID-19 vaccines.

This judge decided to take a more cautious approach to judicial notice and said that the science related to COVID-19 is developing, the facts are changing, and the implications of a vaccine order including future doses must be considered.

As a result, the judge was not prepared to take judicial notice of any government information with respect to COVID-19 or the COVID-19 vaccines and said that “there is certainly no presumption that it is in a child’s best interest that she be vaccinated.”

In this case, the child had expressed her views and preferences regarding the vaccination and she was strongly opposed to being vaccinated.

The judge in the family court found that requiring the child to be vaccinated against her will “would not respect her physical, emotional and psychological safety, security and well-being but would, in fact, put her at risk of serious emotional and psychological harm”.

In the end, the judge ruled that it was not in the child’s best interests that her mother ensure that she be vaccinated.

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