On December 23, 2021, a Quebec court became the first in the country to suspend a parent’s right to access with their child based on that parent’s unvaccinated-against-COVID status.

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In  R.B. c. M.O. 2021 QCCS 5387, Justice Vaillancourt considered a request by a father to extend his parenting time with his 12-year-old child over the holidays. The mother, in response, asked the court to suspend the father’s parenting time on the basis that the father was not vaccinated against COVID and did not respect public health policies.

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At the hearing, the father submitted that he was not vaccinated against COVID as he had reservations about the vaccine. The father did not provide an explanation for his reservations or present any argument in support of his position that he respected public health policies. The mother, on the other hand, produced excerpts from the father’s Facebook page in support of her position that he did not respect public health measures.

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When a court is asked to make any parenting or contact order involving a child in Ontario and Quebec, it will only consider what is in the best interests of that child. The court is required to apply what is referred to as the “best interests of the child” principle by section 16 of the federal Divorce Act (and in Ontario under provincial legislation, section 24 of the Children’s Law Reform Act).

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Justice Vaillancourt noted that the only real question to be determined in this case was: Is it in the child’s best interest to have contact with his unvaccinated father? The court then made the following observations and conclusions before ruling in favour of the mother and temporarily suspending the father’s access rights:

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1. That it had strong reason to doubt the father’s position that he respects public health measures as he had not presented any evidence in support of this claim, or to dispute the evidence presented by the mother (excerpts from his Facebook page).

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2. That the child had received two doses of the vaccine but concluded that these doses may not protect him against the Omicron variant, which the court noted is highly contagious and spreading in Quebec.

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3. That, as a matter of judicial notice, the vaccination is a preventative measure which has been strongly recommended by national and international health authorities.

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4. That the mother resides with her spouse and two young children (aged seven months and four years) who were not vaccinated at the time, as vaccinations were not available to children under five at this time.

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In this case, the court held that it is not in the best interests of the children (the parties’ child as well as the mother’s children with her present spouse) for the father to continue to have contact with the parties’ child. The suspension of the father’s parenting time was limited to approximately one month based on the court’s conclusion that there will likely be a need to reassess the situation at a later date given the rapidly changing nature of the pandemic.

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

By: Tharmini Kuhathasan