Whether the dispute concerns a vaccine for COVID or measles or some other medical decision, the court will apply the best interests-of-the-child test. Caspersz says the parent advocating non-vaccination must demonstrate why it would be detrimental to the child and provide substantial medical evidence. The court may also examine the child’s preferences if the child is a mature minor and has the capacity to make medical decisions because they can appreciate the nature, benefits, and negative aspects of receiving the treatment.
In Feb. 2023, the Ontario Court of Appeal released its decision in JN v. CG The case involved a parental fight over their children’s vaccination. The court rejected the mother’s evidence supporting her opposition to vaccination because it was merely information posted on the internet without “any independent indication of reliability or expertise.” The father relied on information from Health Canada and the Canadian Pediatric Society and was granted decision-making authority.
In other cases, judges have ruled that courts can rely on government recommendations on COVID-19 vaccination.
It will be even more difficult for parents to argue against vaccinations for measles, mumps, and rubella, says Caspersz. Unlike the COVID-19 vaccine, which is unique because the government mandated vaccination in certain contexts and there is little history of the side-effects or long-term effects, these vaccines have been around for decades.
With the efficacy of the vaccines established, he says parents must show the court that their child has a “special condition” or allergy, based on a doctor’s opinion, to be persuasive that non-vaccination is in their child’s best interests.