Family Law Blog

Disagreements Over Child Vaccination: Divorce Lawyers Can Help

Disagreements Over Child Vaccination: Divorce Lawyers Can Help

Divorce lawyers see a variety of contestations in court, and child vaccination is one of them. Though the anti-vaccination movement is nothing new, it has recently resurfaced as a more prominent public debate. In Canada, it is not mandatory to receive vaccinations, which makes the debate all the more heated. Though there is no federal law that enforces vaccination, provinces can enact legislation that requires proof of immunization for the child’s school registration. However, only Ontario and New Brunswick have actioned this. 

In the midst of  COVID-19, the race for a vaccine has once again stirred up the controversy around immunization. Conspiracy theories about the COVID-19 vaccine development are beginning to surface. Although we don’t have all the information about the COVID-19 vaccine, it’s important to consider what this means for your family. 

Vaccinations Aren’t Legally Required—But It’s a Legal Risk Not To

After a separation or divorce, it’s common that parents disagree about what is in the best interest of their child. In joint custody cases, both parents are equal decision-makers, and this includes medical decisions. If there is a disagreement over the decision to vaccinate the child, neither parent has the final decision-making ability. 

All Canadians have the right to refuse medical treatment, and this includes vaccinations. As discussed, there is no Canadian law that states that vaccinations are mandatory. Anti-vaxx proponents point to theories about vaccination risks, and are pursuant of alternative medicine or naturopathy. Since parents are the legal decision-makers for their children, it is not illegal to refuse that your child gets vaccinated. That said, as parents you have a responsibility to ensure that your child’s basic needs are fulfilled. Basic needs include medical needs, such as dental checkups and visits to a doctor in the case of illness. 

Anti-vaxx parents are at risk of being reported to the Ministry of Children and Family Development (MCFD) for refusal to vaccinate. According to BC’s Child, Family and Community Service Act, everyone—including medical professionals—has the legal obligation to report the mistreatment of a child. Mistreatment includes abuse, neglect and in some need of protection. According to most medical doctors, failure to protect your child might include a refusal of vaccination. There are more legal risks for the parent who refuses vaccination. 

Can My Ex Refuse to have our Child Vaccinated? 

Technically speaking, yes, your ex can refuse to have your child vaccinated. However, typically the favour is for the parent who is pro-vaccination. The Courts will always act in the best interest of the child, and receiving medical attention is considered in the best interest of the child. The efficacy of vaccination is strongly supported by the scientific research community, and so it is more likely that the courts will rule in favour of the parent who demands vaccination. 

For the parent who refuses vaccination, there may be legal consequences. Importantly, refusal to vaccinate may provoke investigation by the MCFD and result in lost parenting time. A judge may decide to revoke the parent’s medical decision-making power on behalf of the child. In a recent court decision, Judge Frame awarded full medical decision-making power to the father on the following basis:

The current best evidence is that vaccination is preferable to non-vaccination, that it is required in order to protect those who cannot be vaccinated as well as to protect ourselves, and that any adverse reaction the person may have from the vaccine is largely outweighed by the risk of contracting the targeted disease...I am satisfied on the evidence that the parental responsibility for the medical and dental treatments for both boys should lie solely with [the father]. I order that [the children] be vaccinated in accordance with Immunization BC’s immunization schedule and the recommendations of their family doctor.

Get in Touch

Vaccinations are a public health issue and often come up in family law disputes. Importantly, refusal to vaccinate may provoke investigation by the MCFD and result in lost parenting time. If you and your ex are in dispute over your child’s vaccinations, get in touch with us. Our family law and divorce lawyers are ready to assist you.