For some separated or divorced couples raising children, the pandemic has brought to light — or exacerbated — differences in values.
Should the kids homeschool or be in class? Are the COVID-19 restrictions followed carefully or loosely in the homes?
Although the COVID-19 vaccine is not yet approved for children under the age of 16, this too may eventually bring up issues for families.
The Chief caught up to Chantal Cattermole, a Vancouver senior family lawyer with Clark Wilson LLP to discuss the unique challenges divorced or separated parents may face.
What follows is an edited version of that conversation.
Q: The COVID-19 vaccine is not yet approved for kids, but if it is and you are separated parents who disagree on giving it to the child, what should parents consider?
A: As long as they are joint guardians and share joint guardian responsibilities, it is something that could come into dispute in court. If you are a sole guardian, then you make that decision and the other parent would have no say. If you are joint guardians, but one of you has primary parenting responsibility under the Family Law Act (Sec. 41 f), then that parent could make the decision. In both of these situations, the parent who doesn't have the authority would be able to apply to the court. Then the court would have to intervene to make the decision.
Q: So what you are saying would apply today, for all other childhood vaccinations. How does the court weigh in on the issue? I imagine it would be hard for a child being told by one parent these are important and safe injections and perhaps being told by another they are dangerous?
A: There are two recent cases that dealt with this. One was in our B.C. provincial court and dealt with routine vaccinations. The father wanted an order to have the children routinely vaccinated and also have routine dental treatment and the mother didn't agree. The father alleged that the mom would delay the shots and was against dental X-rays for kids.
The judge ordered the vaccines and required the parents to follow the children's doctor's recommendations.
There's only been one case that has spoken about the impending COVID-19 vaccine and that was in Ontario. In that case, it was a very high conflict custody battle. The dad wanted the daughter to be vaccinated generally and with the COVID-19 vaccine when it became available. The mom didn't agree. The dad argued that it caused a psychological threat to the child that her medical needs were not being met. The judge originally ordered that the mom get her daughter routine vaccinations. The mom delayed in doing that, apparently, so the dad pre-emptively applied to the court to ensure if there is a child-safe COVID-19 vaccine available, the child gets it. The mom was granted sole custody, but specifically for vaccinations, the father was granted the power to decide, including for COVID-19 should that be an option.
My reading of the legislation and the cases is that I think if there is a disagreement between parents with joint custody, the parents will have to follow the Health Canada guidelines as it relates to vaccinations.
If there is a disagreement, the parent will have to apply to the court. The court will ask for medical evidence. So, if you are the anti-vaccinator you will require medical evidence — not just from a third party doctor, but the treating physician of the child for why not being vaccinated is in the best interest of the child. You would need to say, "This child can't have the vaccine because: here are all the medical reasons for why it is not in the child's best interest."
Q: What happens if I just go and get my kid their routine vaccines when they are with me, but I know the other parent didn't want that? What could be the repercussions for that?
A: If there is no harm to the child that is one thing. If you know it could cause harm to the child for a medical reason, then the Ministry of Children and Family Development could get involved. If giving the vaccine doesn't harm the child, it may make the anti-vaccine parent angry enough to apply to the court for a severing of joint guardianship or a severance of the shared parenting responsibilities. I don't think that would ultimately be a very successful application. That applying parent would need medical evidence to introduce why getting the vaccine is bad.
Q: This is probably something couples should really talk about before having kids, I guess?
A: Yes, as always. But we don't. In relation to COVID-19 vaccination, I think what co-parents have to ask themselves is, "Are we joint guardians?" If yes, then we have to make the decision together. And, "Do we also share joint parenting responsibility under the Family Law Act? " If no, which one of us has the power? If we have the power, is it that we have to inform the other parent? What level of autonomy as separated parents do we have? If we share joint guardianship and joint responsibility then does one of us feel so strongly as to oppose it? If we do, do we have medical evidence to substantiate our opposition?
Q: Are you seeing a lot of pandemic-related issues coming up in family court? For example, about one parent not following the orders and having family gatherings?
A: No, not anymore. But if you go back to some of the initial court findings, the court would just order that you follow the provincial health orders.
Q: Anything else you want to say about the potential issues around children getting the COVID-19 vaccine, if and when it is approved for kids?
A: Looking ahead, with kids under the age of 16, unless there's a medical issue proving why the child shouldn't have the vaccine, I think the courts will be loathe to not order that the child gets it. You have to look at the individual child's best interest in each of these cases and is not getting the vaccine putting the child in harm? Are they then in harm if they are the ones not vaccinated and going to school? Are they at harm by not having it and going out into the public? You have to look at the overall best interest of the child in all circumstances.
