Mother given authority over children's COVID-19 vaccination status in Alberta court case

Eloise Therien GlobalNews.ca

December 17, 2021 12:06 am

WATCH ABOVE: In a first-of-its kind written decision in the province, a Lethbridge judge has ruled the mother in a joint-custody agreement will have sole authority to vaccinate her children against COVID-19, despite the father’s desire to “wait and see” before immunizing them. Eloise Therien reports.

A Lethbridge judge has ruled in favour of a mother’s wishes to have her two children vaccinated against COVID-19, despite their father’s opposition.

The names of the individuals involved are not being released in order to protect the privacy of the family.

According to public court documents from the Alberta Court of Queen’s Bench, the mother and father divorced in 2014 and have joint custody of two children aged 10 and 12, referred to as ARB and BPB, respectively.

The parents had agreed to give the children their annual flu shots, and both are up to date on their childhood immunizations.

However, a disagreement over whether or not to vaccinate the children against COVID-19 arose, the purported first argument of its kind within the parenting agreement.

“This is the first written decision on this issue in Alberta,” said Stringam LLP regional managing partner Kurt Schlachter, who represented the mother in this case.

The father wished to wait until there is “further evidence” pertaining to the safety of the vaccine before going ahead with the immunization.

Justice Johnna C. Kubik said the “father’s engagement with vaccine misinformation” was shared with the two children, putting them under stress and anxiety from his “questionable resources.”

“The underlying argument is that the father’s position with respect to vaccination is underpinned by misinformation and conspiracy theories, and his willingness to share this with the children demonstrates that he is not able to make decisions in their best interests,” her decision read.

“What this justice has done in this case is inflamed the matter,” said the father’s legal counsel Katherine Kowalchuk, of Getz, Collins & Associates. “She’s basically making these disparaging remarks against my client and vilifying him for a having a contrary position.

“I think this case highlights the bias of the courts generally, with respect to this issue.”

The mother wishes to have the children vaccinated for a variety of reasons, including their ability to participate in recreational activities safely, be protected from contracting the virus and to demonstrate community responsibility.

According to the document, the father’s comments caused ARB to express worry the vaccine would put them at risk of death, while BPB, on the other hand, said they wished to consult further with their doctor before receiving the vaccine but did express interest in being immunized.

In her decision, Kubik outlined evidence of vaccine efficacy provided by clinical trials and Health Canada, also citing two similar cases in Saskatchewan and Ontario, where “the courts were presented with significant documentation from publicly accessible government sources, prior cases and relied upon their own knowledge to take judicial notice of certain facts relating to COVID-19 and the Pfizer BioNTech vaccine, including the fact of vaccine approval, recommendations for use, risk, safety and efficacy.”

”I think the court did a really robust analysis given the very contentious issue and the polarizing nature of the issue, and how entrenched the parties each were in their respective positions,” Schlachter said, adding this case will serve as a precedent moving forward should other cases arise in Alberta.

“It’s only a matter of time before these cases work their way through each provincial court system. (They’ve) been consistent and they’ve all taken the same approach, which is to take judicial notice that the pandemic is real and that the vaccines are safe.”

In Canada, a pediatric version of the Pfizer vaccine was approved for use in children aged 12 to 17 on Sept. 16, and for use in those aged five to 11 on Nov. 19.

The two parents will continue to share joint decision-making authority over all other health matters, unless an impasse occurs.

“I direct that in the event of an impasse, and after exhausting all other good-faith attempts at resolution, including the assistance of the parenting coach, the mother will have final decision-making authority on all health and medical matters,” the decision read.

The father is no longer permitted to discuss COVID-19 with the children, and neither parent is permitted to discuss the litigation with them.