Childhood vaccination in BC Courts
During the covid pandemic, childhood vaccinations took on a heightened significance in parenting disputes. How have the courts in BC dealt with these disputes? What do the authorities say?
There is strong authority that the court should not step into a guardian’s role or dictate the minutiae of parenting - in this case, whether or not a child should take a particular medical intervention. The Family Law Act (“FLA”) does not render the court into such decision-makers; instead, the FLA allows the court to allocate relevant parental responsibilities between guardians. Further, a guardian’s authority to consent to medical treatment is explicitly subject to a mature minor’s right to consent to his or her own treatment. Finally, it is a health care provider - not the court - who determines if a minor is mature in this context.
Despite this, lower level courts have made orders that a child be vaccinated, or that one parent or the other will take a child for vaccination, which would seem to be at odds with the authorities discussed above. Part of the problem may simply be a lack of awareness: a judge cannot rely on an authority it is not been made aware of. A litigant must be prepared to lead the relevant authorities and to argue clearly about the proper role of the court in adjudicating such disputes.
Litigants should also be prepared to caution judges from merely adopting the appearance of following these authorities by allocating parental responsibilities to the guardian who will perform the medical intervention the court prefers. Rather, the court ought to allocate parental responsibilities between the guardians based on a consideration of the factors set out in s. 37 of the FLA and the best interests of the child. Put more plainly, courts should ask: “how should parenting decisions be made in this family, based on all the relevant factors”, rather than “which guardian will make the decision I would prefer.”
Cases:
