Vaccination Issues in Family Court

Although the “Anti-Vaxxer” and “Anti-Vaccination” movement has a lengthy history, recently there has been growing concern about the impact of parents declining to vaccinate their children. How do these vaccination issues get dealt with in the context of family law?

Outbreaks of previously rare childhood illnesses are now frequently occurring across Canada, and the vast majority of cases have occurred in children who have not received the measles-mumps-rubella or MMR vaccine. Similarly, cases of unvaccinated children contracting life-threatening conditions such as whooping cough and tetanus have also been reported.

The vast majority of parents in Ontario choose immunization for their children, but the “Anti-Vaxxer” movement, interest in alternative medicine or naturopathy, and theories about vaccine risks are resulting in some parents abstaining from vaccinations.

Vaccinations in Family Law Disputes

Vaccinations are not only a public health matter – they can also be a family law issue when there is significant disagreement between separated parents about whether or not to vaccinate their children.

When parents have “joint custody” of a child they are to make important decisions about the child’s medical care together; however, parents that disagree on vaccinations have incompatible conceptions of what is in the “best interests of the child” – the foundational test and consideration for family judges under Children’s Law Reform Act, Family Law Act, and Divorce Act.  As a result, Family Courts in Canada have been required to address vaccination issues and make Orders in regards to vaccinations.

Vaccination Issues in Previous Cases: C.M.G. v. D.W.S.

One case regarding vaccinations is C.M.G. v. D.W.S. (2015 ONSC 2201) in which the parents had joint custody of their ten-year-old daughter. Initially, the parents agreed to not vaccinate their daughter until she turned 12 years old, and that they would allow the child to make her own decision on vaccinations at that time. However, when the mother requested to travel to Germany with their daughter, the father withheld consent unless she was vaccinated for several diseases, including measles. The mother then withheld her consent for any vaccinations, as she preferred to exclusively use homeopathic medicine and believed that vaccines cause autism.

In assessing this case, Justice R. John Harper noted that the child in this case was caught in the middle of the parent’s conflict, as the parents were at the “extreme end of high conflict” and their positions regarding vaccinations were equally polarized.

In making this decision, Justice Harper commented that an “absolute prohibition on vaccinations for the child… [was] not in the best interests of the child” and that the past agreement between the parents to not vaccinate lacked a reasoned analysis.

As a result, Justice Harper ordered that the father would be granted decision-making with respect to the child getting vaccinations and that prior to the child being taken on the trip to Germany the child was to receive a vaccination for measles, mumps and rubella and any other vaccinations that were recommended by the child’s family doctor. Similarly, the court took the unique step of ordering the mother to not make any negative statements about receiving vaccinations to the child – as the child had previously been told that the family cat died due to vaccinations.

In W.(P.) v. M.(C.), (2017 NSSC 91) a similar vaccination dispute occurred between two parents, and Justice Harper’s decision was thoroughly endorsed by the court as a “cautionary tale about putting off the decision of vaccines and placing children in the middle of such an important decision”. Following a review of the issues, the court ordered sole custody or sole decision-making for medical issues to the pro-vaccination parent.

Family Law Consultation

If you are separated or divorced and dealing with vaccination issues in a family law matter, our family lawyers at McKenzie Lake LLP can help. Please contact us to set up a consultation so that we can discuss your concerns and strategies for moving forward.