As the majority of Ontarians are now fully vaccinated against COVID-19, many Canadian employers are beginning to announce mandatory vaccination policies for employees. Sun Life Financial, Shopify, the City of Toronto, the Toronto Transit Commission, and Canada’s five largest banks have all announced timelines during which they will begin requiring full vaccination for all employees working in-person.

COVID-19 vaccinations are not mandatory in Ontario. While the provincial government recommends that Ontarians get vaccinated, Ontarians are free to choose whether they wish to receive a COVID-19 vaccination.

For separated spouses who share parenting of their children, the question of whether each parent has been vaccinated and the extent to which each parent is following COVID-19 safety measures can be contentious and has, in some cases, required judicial intervention.

At this time, the Ontario courts have not yet had occasion to rule on the question of whether full inoculation against COVID-19 should be a requirement for in-person parenting time with a party’s children. As COVID-19 vaccinations become increasingly commonplace, this issue will likely come before the courts in the not-so-distant future. Ontario courts have, however, heard several cases in which they considered whether following COVID-19 public health protocols should be a condition of continued in-person parenting time.

In A.T. v. V.S., 2020 ONSC 4198, which was decided in July 2020, the Ontario Superior Court of Justice considered whether the father’s parenting time should be suspended because he declined to follow public health safety measures regarding COVID-19. The record showed that the father considered the COVID-19 pandemic to be a “scamdemic” and was involved in organizing public protests against the government’s handling of the pandemic. This issue was brought before the court by the mother on an urgent basis, who sought, inter alia, interim parenting orders suspending the father’s parenting time with their 4-year-old child. The court temporarily suspended the father’s in-person parenting time and ordered that the father have video parenting time three times per week. The court reasoned that the father’s behaviour raised sufficient concerns about parental judgement that direct parent-child contact should be reconsidered. For the full text of the decision, see A.T. v. V.S., 2020 ONSC 4198.

In Burrell v Burrell, 2021 ONSC 681, which was released in January 2021, the Ontario Superior Court of Justice considered a similar issue, which was also brought before the court by the mother. The father acknowledged that he believed the COVID-19 pandemic to be a hoax and opposed mandatory masks, social distancing, contract tracing, and vaccinations. The mother returned a motion requesting, inter alia, that the father’s parenting time occur at a supervised access centre provided he complied with COVID-19 restrictions. The father returned a motion seeking additional unsupervised parenting time. The court found that the father’s conduct posed a risk to the best interests of the two children and ordered that the father’s parenting time occur at a supervised access center (to ensure that the father and children were subject to appropriate mask wearing and social distancing) and via zoom on a temporary basis. For the full text of the decision, see Burrell v Burrell, 2021 ONSC 681.

In deciding these two cases, the health, safety, and well-being of the children were the foremost considerations for the court. Evidently, Ontario courts are not afraid to make abiding by COVID-19 public health protocols a condition of continued in-person parenting time, in certain cases, if the court believes that to be in the best interests of the children.

It remains to be seen if Ontario courts will make receiving full COVID-19 vaccination a condition of continued in-person parenting time as well.

The content of this article is intended to provide general information only.

By Victoria Bell Varro