In O.M.S. v E.J.S., 2023 SKCA 8, a Saskatchewan father recently tried, and failed, to get a court to order that his 13-year-old daughter be vaccinated against Covid-19. The case illustrates some of the key principles that courts regularly apply when making determinations about medical treatments in the face of disagreements between separated or divorced parents.
In this case, the parents had been separated since 2012. The parents had a high conflict relationship with numerous court attendances. Their daughter lived primarily with the mother, and under the terms of the decision-making responsibility (“custody”) arrangement, the mother had final decision-making responsibility over medical matters. The mother was opposed to vaccinations in general and questioned the accuracy of Covid-19 information circulated by public health authorities. She did not want their daughter to receive the Covid-19 vaccine. The daughter was also opposed to receiving the Covid-19 vaccine.
The father wanted their daughter to be vaccinated once the vaccine had been approved for children aged 12 and older. When the mother refused, the father applied to court for an order requiring the child be vaccinated. He argued that his daughter was at much higher risk from Covid-19 because she had type 1 diabetes. The mother claimed that the vaccine was not safe generally, and that the daughter may suffer from a condition known as “vaccine toxicity” that made the vaccine particularly unsafe for her.
The court focused on the best interests of the child and disregarded the terms of the parent’s decision-making responsibility arrangement. The court found that the Covid-19 vaccine was safe and that there was no credible evidence of “vaccine toxicity”. The court determined it would be in the best interests of the child’s physical safety, security, and well-being to receive protection from the Covid-19 virus (even though he did not agree with the father’s position that the daughter’s diabetes increased her risk). The daughter was ordered to be vaccinated.
However, the mother appealed the decision. She argued that the judge was wrong in finding that the physical risks to the child, if not vaccinated, were outweighed by the vaccine’s benefits. She also argued that the judge should have considered her daughter’s mental health as well as physical health, as there had a been an incident of self-harm in the daughter’s recent past and receiving the vaccine against her own wishes could cause further mental health issues.
The court of appeal determined that the original judge was correct in finding that the child’s physical safety, security and well-being would be served by receiving the Covid-19 vaccine. The court of appeal found that this will be the case for almost all children because the vaccine is approved by Health Canada, and community transmission of the Covid-19 virus remains widespread.
However, the court of appeal agreed with the mother’s submissions about the impact of being ordered to receive the vaccine on the daughter’s mental health. The court of appeal stated that when making an order of this nature, a court must consider “only the best interests of the child”, and when evaluating what is in a child’s best interests, a court “shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”.
The court of appeal found the original judge erred by focusing only on reducing the physical risk to the child from the Covid-19 virus and not considering other factors that affect her well-being, including psychological and emotional factors. Based on the risk of self-harm and other mental health concerns, including the potential damage to the child’s relationship with her father if she were forced to have the vaccine, the court determined it was not in the child’s best interests to be vaccinated.
Although this case dealt with the Covid-19 vaccine, the principles applied by the court are relevant not just to other vaccines, but more generally to other healthcare decisions where parents (and children) might not agree.
Please contact Gilbertson Davis LLP if you have questions regarding decision-making responsibility and the rights of parents to make medical and other important decisions for their children. Our family law counsel has experience working with high conflict family disputes in this area.
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