Court File and Parties
OSHAWA COURT FILE NO.: FC-19-159-002
DATE: 20211001
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
A.C.
Applicant
– and –
L.L.
Respondent
COUNSEL:
James Studer, for the Applicant
Lisa Kadoory, for the Respondent
HEARD: September 24, 2021
REASONS FOR DECISION
CHARNEY J.:
Introduction
[1] The applicant father and respondent mother have three children, P, J, and E, triplets, each 14 years of age. P and J live primarily with their father. E lives primarily with his mother.
[2] All three children are in grade 9, in their first year of high school. P and J attend high school in Scarborough, Ontario. E attends a different school closer to his mother's residence.
[3] P and J attend virtual classes. E attends school in-person.
[4] The mother alleges that the father has refused to facilitate P and J attending school in-person even though they are registered for in-person school. She brings this motion for an order mandating that P and J attend school in-person.
[5] The father has a different perspective. He states that P and J want to attend school in-person but wish to receive the COVID-19 vaccination before attending in person classes. The father wants the children to be vaccinated, but their mother will not consent to their vaccination and will not give them or their father P and J's health cards or other identification so that they may be vaccinated. The father takes the position that P and J will attend in-person schooling once they are vaccinated.
[6] The father has brought a cross-motion for an order that the mother provide a copy of P and J's health cards to the father and that P, J and E be entitled to receive the COVID-19 vaccination if they choose to do so.
Procedural Issue
[7] The parties appeared at a Case Conference on July 28, 2021, where the issues of in-person/virtual school attendance and vaccination were discussed. The Case Conference judge granted the parties leave to bring an urgent motion if they could reach an agreement, but noted in her endorsement that "an urgent motion with respect to the issue of in-person or on-line learning only should be scheduled through the trial coordinator" [Emphasis in original].
[8] The respondent mother takes the position that this direction precludes the applicant from raising the issue of vaccination on this motion, and that her opposition to P and J being vaccinated is therefore irrelevant to this motion.
[9] It is not clear from the Endorsement that this was actually the Case Conference judge's intention, but, in any event, I am not bound by the direction of the Case Conference judge on this issue. I do not agree that the issues of in-person/virtual learning and vaccination can or should be separated.
[10] Both parents want P and J to attend in-person school. P and J want to attend in-person school. In my view, the only live issue on this motion is whether the respondent mother may prevent P and J from being vaccinated before they attend in-person school.
[11] Both parents have also asked me to make orders regarding general decision making authority over health and education, and to establish a temporary parenting schedule. While these issues are tangentially related to the COVID-19 vaccination question, they are, in my view, outside the scope of the urgent motion directed by the Case Conference judge, and I will not address those issues. I suspect that once the issue of COVID-19 vaccination is dealt with, the parties may be able to settle some of these other issues.
Analysis
Best Interests of the Child
[12] There is no dispute that the court must make this determination based on the best interests of the child.
[13] There is no dispute that, where available, in-person classes are presumed to be in the best interest of the child. As Monahan J. stated in Shaw v. Gauthier, 2021 ONSC 5790, at para. 31:
There is increasing evidence that there are long-term educational and social costs associated with virtual schooling for elementary and secondary school students. This has led courts to conclude that, absent compelling evidence otherwise, it is in the best interest of a child to attend in-person schooling where such schooling has been authorized by the government and relevant educational decision-makers. While potential exposure to Covid 19 is obviously a factor to be taken into account in any such assessment, the court is not in a position, especially without expert evidence, to second-guess the government's decision-making. The court should proceed on the basis that the government's plan for reopening of schools in the context of Covid 19 is reasonable in the circumstances for most people and that it will be modified as circumstances require.
[14] See also: Zinati v. Spence 2020 ONSC 5231, at para. 27; Nolet v. Nolet 2020 ONSC 5285, at para. 25; El Haddad v. Shakur, 2020 ONSC 5541, at para. 14; Chase v. Chase, 2020 ONSC 5083, at para. 42; Shepstone v. Masales, 2020 ONSC 5364, at paras. 18- 20.
[15] These are just a few of the many cases that have considered whether children should attend in-person classes where parents cannot agree.
[16] All of these cases are based on the same underlying premise: the government and public health authorities are in a better position than the courts to consider the health risks to children in attending in-person school.
[17] Thus, as a general proposition, if in-person schooling is available, the presumption is that it is in the best interests of the child. The parent requesting virtual schooling has the onus of presenting expert evidence that virtual learning is in the best interest of the particular child.
[18] The respondent mother takes the position that this analysis applies to in-person schooling but does not apply to vaccinations.
[19] She argues that since the government has not made the COVID-19 vaccination mandatory for children attending in-person school, the government is still uncertain or ambivalent about the safety or efficacy of the COVID-19 vaccine. If vaccinations were "crucial", she argues, they would be mandatory for school attendance.
[20] This argument is based on a fundamental misunderstanding of both the government's position on vaccinations and the legal test to be applied in this case.
[21] The respondent mother points to no government document from any level of government to support her interpretation of the government's position. Nor can she. The COVID-19 vaccination has been approved for children aged 12-17, and all levels of government have been actively promoting vaccination and expending significant resources to make it available to the public. The fact that it is not mandatory for children aged 12-17 cannot be interpreted as ambivalence or uncertainty.
[22] The fact that government may try to promote or encourage vaccination through public education and voluntary compliance before imposing penalties on recalcitrant persons speaks more to the nature of public policy than it does to the safety and efficacy of the COVID-19 vaccine. It is understandable that governments may try the carrot before they have recourse to the stick.
[23] The safety and efficacy of the COVID-19 vaccine has been endorsed by all governments and public health agencies. For example, on September 8, 2021 Toronto Public Health provided the following information to parents and guardians of school aged children:
As you prepare for your child/children to return to in-person school this September, I would like to provide you with some important information about COVID-19 prevention measures and Toronto Public Health school services for this year.
Get vaccinated
If your child born in 2009 or earlier has not yet received the COVID-19 vaccine, it is not too late. Getting vaccinated is one of our best tools for this fourth wave of COVID-19 and will help the most to prevent severe illness from COVID-19. To protect all children, all eligible youth and adults should be vaccinated. Clinics continue to be offered across the City.^1
[24] This statement was repeated in a letter dated September 8, 2021 from the Toronto District School Board to all parents and guardians.^2
[25] The Ontario Ministry of Health website states:
The Pfizer-BioNTech vaccine is now licensed by Health Canada for adolescents aged 12 years and older. The Pfizer-BioNTech vaccine has been proven to be safe in clinical trials and provided excellent efficacy in adolescents. Side effects reported in adolescents were similar to those observed in adults, and were more frequent after the second dose. NACI continues to strongly recommend that a complete series with an mRNA vaccine be offered to all eligible individuals in Canada, including those 12 years of age and older, as the known and potential benefits outweigh the known and potential risks.[^3]
[26] These public pronouncements are all admissible under the public documents exception to the hearsay rule: A.P. v. L.K., 2021 ONSC 150, at paras. 147-173.
[27] Moreover, the respondent mother's point – that the COVID-19 vaccination is not mandatory - applies equally to in-person school attendance. Courts have held that in-person attendance is presumed to be in the best interest of children even though it is not mandatory.
[28] Accordingly, I would apply the same analysis to COVID-19 vaccinations that the respondent mother asks me to apply to in-person school attendance. 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.
[29] This analysis and conclusion is consistent with the approach taken by other courts addressing vaccinations prior to COVID-19: C.M.G. v. D.W.S., 2015 ONSC 2201, at para. 105; A.P. v. L.K., at para. 276; B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438, at para. 180, aff'd B.C.J.B. v. E.-R.R.R., 2021 ONSC 6294, at paras. 49-53; Chambers v. Klapacz, 2020 ONSC 2717, at para. 7.
[30] The issue is not, as argued by the respondent mother, whether obtaining the vaccination is "crucial" to in-person attendance. That is not the legal test. The question is whether it is in the best interests of the child. Given the government statements above, there can be no dispute that, as a general presumption, it is in the best interest of eligible children to get vaccinated before they attend school in person.
[31] The respondent mother has adduced no evidence to contradict this general presumption or displace its application to P, J, and E. She certainly has adduced no evidence to suggest that it is in the children's best interest to not be vaccinated.
[32] In conclusion, I find that it is in the best interest of P, J and E to be vaccinated.
Is the Mother's Consent to Vaccination Necessary?
[33] The respondent mother complains that the applicant father took matters into his own hands by declining to send the children to in-person school even though they are registered for in-person school. She argues that the Court should not condone this unilateral conduct by the father. The mother, however, is blind to her own unilateral conduct in refusing to give the children their health cards and other identification so that they can be vaccinated.
[34] As a matter of law, the mother's consent is not necessary for the children to be vaccinated if they so choose.
[35] Section 4 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, (HCCA) does not provide any minimum age for capacity to make medical treatment decisions. It provides:
Capacity
4 (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
Presumption of capacity
(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.
Exception
(3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance service, as the case may be.
[36] Toronto Public Health, citing the HCCA, takes the position that youth age 12-17 do not require their parent or legal guardian's consent to receive the COVID-19 vaccine if the health care provider administering the vaccine is satisfied that the young person is capable of understanding information about the vaccine, why it is being recommended and what will happen if they accept of refuse the vaccine.[^4]
[37] This is consistent with the position taken by the Ontario Ministry of Health. The Ministry of Health's COVID-19 Vaccine Youth (Age 12-17) Consent Form does not require a parent or legal guardian's signature or consent (although this option is provided).[^5] The Ontario Ministry of Health website states:
COVID-19 vaccines are only provided if informed consent is received from the person to be vaccinated, including those aged 12 to 17, and as long as you have the capacity to make this decision. … Even if you are able to provide informed consent, it would be a good idea to talk about this decision with your parent/guardian or an adult you trust such as your principal or a teacher.[^6]
[38] The Court does not, of course, simply defer to the government's interpretation of the HCCA.
[39] That said, I agree with this interpretation. While medical decision making is an incident of parental custody, if the minor is a "mature minor" and capable of providing informed consent under s. 4 of the HCCA, decisions regarding medical treatment may be made by the minor. As indicated, 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.
[40] In Gegus v. Bilodeau, 2020 ONSC 2242, Fowler Byrne J. considered the impact of the HCCA on the parents' custodial right to consent to medical treatment. She stated, at paras. 48 - 51:
The HCCA requires the consent of a patient to any treatment. There are no age restrictions set forth in the Act. The sole determining factor is whether the party receiving the treatment consents to it…
Accordingly, if the health practitioner believes the child has the capacity to consent to his treatment, they will abide by the child's wishes. If, on the other hand, the health practitioner determines the child is not capable of consenting, s. 20 [of the HCCA] outlines who may give consent on behalf of the child…
Accordingly, it appears that the HCCA contemplates situations in which only one parent, by court order or separation agreement, has the authority to give consent on behalf of a child when the child is determined to be incapable. The determination of whether only one parent should have this authority is determined under the appropriate legislation, in this case, the Children's Law Reform Act.
[41] This view of a "mature minor's" capacity to consent to medical treatment is also consistent with the common law in this area. In A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, Abella J.'s majority decision explained the common law "mature minor" doctrine, at para. 47:
The latitude accorded to adults at common law to decide their own medical treatment had historically narrowed dramatically when applied to children. However the common law has more recently abandoned the assumption that all minors lack decisional capacity and replaced it with a general recognition that children are entitled to a degree of decision-making autonomy that is reflective of their evolving intelligence and understanding. This is known as the common law "mature minor" doctrine… The doctrine addresses the concern that young people should not automatically be deprived of the right to make decisions affecting their medical treatment. It provides instead that the right to make those decisions varies in accordance with the young person's level of maturity, with the degree to which maturity is scrutinized intensifying in accordance with the severity of the potential consequences of the treatment or of its refusal.
[42] While the Ontario legislation does not use the words "mature minor", s. 4 of the HCCA effectively incorporates certain aspects of this doctrine into the scheme of the Act. The Supreme Court's decision in A.C. contains a thorough discussion of this doctrine, and the complexity of its application in particular cases.
[43] In the present case, it is not necessary for the Court to assess the capacity of the three children to make this decision, because, by the end of the case, both parents agreed that they were capable.
[44] The applicant father's position was always that the children should be permitted to make their own decision with respect to the COVID-19 vaccination. P and J want to get the vaccine, and his position is that they should be permitted to do so. E does not want the vaccine, and the father accepts that decision.
[45] The respondent mother initially took the position that she did not want P and J to be vaccinated. She "modified" her position in reply, stating that she agreed that each child should decide whether to get the vaccine and agreed that she would cooperate with their decision.
[46] At the end of the day, the parties dispute came down to not whether P and J will attend in-person school, but when. The applicant father has asked that the P and J not be required to attend school in person until 14 days after they receive their second vaccine. He has presented no medical evidence to support this delay. Accordingly, I will order that P and J attend school in-person following their first vaccine in accordance with the advice and direction of their family doctor.
Conclusion
[47] Based on the foregoing, this Court Orders:
(a) That the children, P, J, and E shall be entitled to receive the COVID-19 vaccine.
(b) That the respondent mother shall provide a copy of P and J's health cards to the applicant father within five days of this Order.
(c) That the children, P and J shall attend in-person learning at their secondary school following their first vaccine in accordance with the advice and direction of their family physician.
[48] If the parties are unable to agree on costs, the applicant father shall serve and file costs submissions of no more than 3 pages plus costs outline and any offers to settle within 20 days of this ruling, and the respondent mother shall serve and file responding submissions within a further 15 days.
Justice R.E. Charney
Released: October 1, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
A.C.
Applicant
– and –
L.L.
Respondent
REASONS FOR DECISION
Justice R.E. Charney
Released: October 1, 2021
[^3]: COVID-19 Vaccine Recommendations Special Populations (gov.on.ca) https://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/vaccine/COVID-19_vaccination_rec_special_populations.pdf [^4]: https://www.toronto.ca/wp-content/uploads/2021/06/9077-COVID-19-Youth-Vaccine-FAQ.pdf [^5]: https://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/vaccine/COVID-19_vaccine_consent_form_youth.pdf [^6]: https://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/vaccine/COVID-19_what_youth_need_to_know.pdf