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Ontario implemented a “proof of COVID-19 vaccination” requirement on September 22, 2021, which means that Ontarians must now provide proof of identification and COVID-19 vaccination to access certain businesses and organizations. The proof of COVID-19 vaccination requirement applies to all Ontarians over the age of 12, with limited exceptions.
As minors between the ages of 12 and 17 face the same COVID-19 vaccination requirements as adults ages 18 and older, some parents are diverging in their opinions regarding whether their adolescent children should receive the COVID-19 vaccination.
In perhaps the first case of this kind in Ontario, Justice Charney of the Ontario Superior Court of Justice considered in AC v LL, 2021 ONSC 6530 (decision released October 1, 2021) whether three 14-year-old triplets should be permitted to receive the COVID-19 vaccination despite opposition from the mother. The father wanted the children to be vaccinated, but the mother did not consent to their vaccination and would not release the children’s health cards so that they could be vaccinated. The father brought a cross-motion seeking an order that the children be entitled to receive the COVID-19 vaccination. The children wished to be vaccinated.
Justice Charney acknowledged straight away that the court must make this determination based on the best interests of the children affected. His Honour decided that it was in the best interest of the triplets to be vaccinated. In making this determination, he commented that:
“The responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to get vaccinated. These government and public health authorities are in a better position than the courts to consider the health benefits and risks to children of receiving the COVID-19 vaccination. Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated.”
Importantly, however, Justice Charney highlighted that the mother’s consent was not necessary for the 14-year-old triplets to be vaccinated if they chose to be vaccinated because section 4 of the Health Care Consent Act, 1996, S.O. 1996, C. 2, Sched. A does not provide a minimum age for capacity to make medical treatment decisions.
Many public health units in Ontario, including Toronto Public Health, have taken the position that 12- to 17-year-olds do not require parental consent receive a vaccination if they can consent on their own. The Court explained that “the question is whether the health care provider administering the vaccine is satisfied that the young person is capable of understanding information about the vaccine.”
Justice Charney’s decision is not the first of its kind in Canada. On September 9 2021, Justice Megaw of the Court of Queen’s Bench for Saskatchewan considered in OMS v EJS, 2021 SKQB 243 whether a 13-year-old child should be vaccinated against COVID-19 despite opposition from the mother. The father brought an application seeking an order authorizing him to have the 12-year-old child vaccinated. The mother opposed the application and told the court that the child did not wish to be vaccinated. Justice Megaw noted, however, that the child’s views, while considered, did not decide the issue because the Court had concern over the extent to which the child’s views had been influenced by her family members.
Like Justice Charney, Justice Megaw acknowledged that the Court’s singular focus on all matters involving children is to do that which is in the child’s best interest.
Justice Megaw decided that it was in the child’s best interest to be vaccinated as protection against the COVID-19 virus. In making the determination, Justice Megaw took “judicial notice that the Pfizer COVID-19 vaccination is safe and effective for use in people, including both adults and children.” Justice Megaw ordered that the father be authorized to arrange for, and have completed, the COVID-19 vaccination without the consent of the mother.
The results in AC v LL, 2021 ONSC 6530 and OMS v EJS, 2021 SKQB 243 suggest that judges across Canada are tending toward facilitating 12- to 17-year-olds being vaccinated, despite parental opposition. Parents who are reluctant to see their 12- to 17-year-olds receive a COVID-19 vaccination may face an uphill battle in persuading a court to halt their child’s vaccination.
The content of this article is intended to provide general information only.
Posted by: Victoria Bell Varro
