Lawyer Hilary Jenkins Secures Interim Order for Decision-Making Authority With Respect To Children’s COVID-19 Vaccine

Background:

On March 1, 2022, Family Law Lawyer Hilary Jenkins secured an interim order for decision-making authority with respect to the COVID-19 vaccine and parenting time of her client’s children. Ms. Jenkins client is the mother of the parties’ three children.

In November of 2021, the mother commenced an application to the court for divorce, decision-making responsibility and parenting time. A significant basis for her seeking the relief requested in her application was the father’s views with respect to COVID-19 and his beliefs in far-right conspiracy theories. The father had “forbidden” the mother from receiving her  COVID-19 vaccine while she was breast feeding the parties’ youngest child. He also advised the mother that he would not consent to the parties’ children receiving the COVID-19 vaccine, despite their eldest being eligible.

The father further encouraged the children not to wear face masks in defiance of public health recommendations. In one instance, he told them that wearing a face mask was unhealthy.

Interim Motion and Decision:

Both parties brought interim motions for decision-making responsibility and parenting time. One of the most significant issues was whether their oldest child should receive the COVID-19 vaccination.

The Honourable Mr. Justice Tobin found that the father’s reasons for forbidding the child from receiving the COVID-19 vaccination were sincerely held by him; however, they did not constitute expert or reliable evidence upon which the court could rely.

The court thoroughly considered the existing case law and Government of Canada recommendations. The court found that, as a general presumption, it is in the best interests of children as young as five years of age to receive the COVID-19 vaccination. The father failed to provide reliable evidence to rebut this presumption.

It is worth noting that the court found that it was in the child’s best interest that she has the option to be vaccinated. The court did not require her to be vaccinated, but instead ordered that she should not be prohibited by the father from receiving it. The court ordered that the mother have sole decision-making responsibility with respect to the COVID-19 vaccine for the children.

The court ordered that the father not tell or suggest to the children that vaccines are unsafe or that they are at risk from vaccines.

With respect to the parenting schedule, the court found that the children have a close and loving relationship with both their parents. However, the mother had assumed a primary role in parenting the children both prior to and following the parties’ separation. The court ordered that the children will primarily reside with the mother.

The court ordered that the father have parenting time with the children on two evenings a week and on alternate Saturdays and Sundays during the daytime. The father’s choice not to become vaccinated places the children at risk of harm should they contact COVID-19. Accordingly, the court placed restrictions on the father’s parenting time to reduce the risk. The parenting schedule may be reviewed upon the father becoming vaccinated or changes in public health recommendations.

Conclusion:

This decision is in line with existing case law, Government of Canada recommendations, and the children’s best interests.

The father has announced his intention to appeal the recent order.

McKenzie Lake congratulates Hilary on her success, and wishes her the best of luck on the appeal!

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As first reported by Kristylee Varley of CTV News London, here.