Father of 3 takes his vaccine-hesitant ex-partner to court

A Prince EdwardIsland man has won a court battle against his vaccine-hesitant former partner and thus the rightto have their three children vaccinated against COVID-19.

Callingit part of an ongoing dispute between two parents who can't get along, Justice Nancy Key ruled it's in the best interests of the children to be vaccinated.

"This case is not about one parent controlling the other or scoring a win," she said in a written decision released in February. "My primary consideration is the children's physical, emotional, and psychological safety, security and wellbeing."

She added: "Almost universally, where there is a dispute as to whether children should be vaccinated, even prior to the COVID-19virus, courts have come down on the side of permitting the vaccination of children."

To protect the identity of the children, the parents werenot named in the judge's ruling.

The couple's divorce proceedings began in 2019. Before the court case, they shared custody and health-care decisions for their three boys, all pre-teens. But the parents were engaged in an "ongoing and very acrimonious parenting debate," according to the judge.

Hacking and internet research

Written submissions by the father focused not on the best interests of the boys, "but on his opinion of the mother's alleged status as an 'organizer of the PEI Anti-Vax group,'" noted the judge. "The father does so without much proof whatsoever other than what he has alleged to have hacked from the mother's computer and Facebook site."

The woman, in response to her ex-husband taking her to court, attempted to file "about five inches"of material gleaned from the internet.

"She wants to take a wait-and-see approach and has filed numerous documents which question, among other things, the very existence of a global pandemic and the effectiveness and necessity of vaccines in children," wrote the judge.

There is no question the mother loves her children. However, her "wait-and-see" attitude is not in the best interests of the children.- Justice Nancy Key

But Key didn't get into weighing the merits of the woman's online research.

She said the basic facts around COVID-19 areso well known "as not to be the subject of dispute among reasonable people."

Key wrote: "I take judicial notice of the following: We are living in a state of public health emergency ... in a COVID-19 pandemic ... vaccines are safe and effective ... COVID-19 poses a serious and significant health risk."

She added: "There is no question the mother loves herchildren. However, in relation to this one issue, her 'wait-and-see' attitude ... is not in the best interests of the children."

PEI children's lawyer involved

The Office of the Children's Lawyer was granted intervenor status at the two-day hearing, held in January at the family division of P.E.I. Supreme Court in Charlottetown.

Children's lawyer Catherine Chaisson argued during the hearings that "putting the children front and centre in an intense disagreement between two parents is not in their best interest,"according to Key.

"It is better not to ask the children [their views of vaccination] lest they have been influenced by their parents' beliefs, negative feelings and behaviour towards one another," the judge wrote.

"It is the view of the children's lawyer that it is in the best interest of the children to be vaccinated. I agree," wrote Key.

Similar rulings elsewhere

The judge cited similar court cases recently in Ontario and Saskatchewan. Courts in other provinces have also ruled on vaccination cases since the pandemic began two years ago.

"It was impossible to know, in April 2020, the situation we would be in today. It was also impossible to predict the divisive nature of the vaccine itself," wrote Key.

"Vaccination, like all medical treatments, comes with a risk.Illness from COVID-19also comes with risks."

The judge granted sole authority to the father to have the children vaccinated against COVID-19, and if a booster shot becomes available to children, to enable them to receive that too. She also ordered the parents not to discuss the issue with the children or "supply social media" to their sons on the issue.

Capacity to consent?

Following the written decision, issued Feb. 9, the Office of the Children's Advocate suggests that children can and perhaps shouldhave a say in whether they receive the COVID-19 vaccine.

Marvin Bernstein, P.E.I.'s children's advocate, cites the province's Consent to Treatment and Health Care Directives Act.

"That essentially indicates that there is a presumption of capacity to consent to treatment ... There is no age threshold," said Bernstein. "Are we respecting the rights of children ... to express their views and have those views acted upon?"

Key noted that the parents continue to struggle to interact with each other without conflict, and are receiving assistance from provincial programs to manage their ongoing challenges.

Neither the father nor the mother used a lawyer or called expert witnesses.

"This has been and continues to be a high-conflict file with what appears to be little regard by the adults for the effects of the conflict on the couple's children," said Key.