An Ontario man, AP, entered family law arbitration to advocate for the vaccination of his children, which his ex-wife opposed. Arbitrators are used to settle disputes, usually on a confidential basis.
Both of the man's children contracted whooping cough during the course of the legal proceedings. It appears he thought his case was fail-safe.
To his surprise, he lost the case. The arbitrator reportedly gave credence to expert testimony provided by a medical doctor who frequents anti-vaccination events. Notably AP was self-represented and his ex had legal counsel. The man is now appealing the arbitration decision.
In a typical situation outside of a custody dispute, both parents are equally ranked medical decision-makers for their child. If they cannot agree on whether to consent to a treatment, neither has veto power. The mechanism to break a tie is to take the decision away from them altogether – the Office of the Public Guardian and Trustee (“PGT”) can be asked to decide, although this is reserved as a last resort. For most parents, the threat of a government agency making their children’s health decisions is enough to promote compromise. There are also little known ways to become a child’s substitute decision-maker for the sole purpose of making a particular treatment decision, but they are rarely used. Additionally, if a health care provider feels a parent is not making medical decisions in the best interests of his or her child, it is possible to initiate legal proceedings at the Consent and Capacity Board which could result in the Board substituting its opinion for that of the parent(s).
The nexus between consent and medical treatments of children in shared custody raises unique considerations in law. In a custody dispute, who has medical decision-making power can be negotiated or litigated.
In a 2015 case, heard at the Ontario Superior Court of Justice, parents disagreed about whether to vaccinate their 10 year-old child. The parents had previously agreed that the child could decide for herself when she turned 12, but the father changed his mind when the mother wanted to take the child on a trip to Germany. Notably their plan was inconsistent with Ontario’s consent laws, which are not based on age but rather whether a person is “capable” of making the decision in question; this means the girl’s physician may have been legally unable to follow her request when she turned 12. In any event, the child’s lawyer suggested (and the judge agreed) it was best not to ask the child her preferences regarding vaccination as her parents had been lobbying her and it would be abusive to place her in the middle. The child’s mother claimed the child feared vaccinations because “when the child was eight years of age, she became “aware” that her pet cat died as a result of a vaccination”. The judge commented on this, stating
“I expressed my concern that there was insufficient evidence before me that connected the death of the cat to a vaccination or that this somehow could be connected to human risks of vaccinations. My more serious concern was that the child was told that the pet died of a vaccination. All an eight year old needed to be told was that her cat was ill and died”.
Ultimately, the judge weighed the evidence, including of the experts - a naturopath and chiropractor who knew the mother personally versus a professor at the Department of Pediatrics, Infections Diseases at the Schulich School of Medicine and Dentistry at the University of Western Ontario, who did not know the parties. The judge preferred the evidence of the latter. The judge decided the pro-vaccination father should have decision-making ability with respect to the child being vaccinated.
Similar cases have been heard previously in Ontario and Nova Scotia, and the cases tend to favour the parent who seeks to vaccinate the child.
A few themes emerge from the case law:
1. The best interests of the child are always front and center
2. Self-represented parties tend to print articles off the Internet and introduce them as evidence. Unverified self-serving and/or out of context articles are not considered to be particularly persuasive.
3. Expert evidence must be introduced as the judge/arbitrator is unlikely to perform independent research into the benefits and risks of vaccinations. A person cannot assume that a judge or arbitrator will agree with them and therefore not introduce evidence, no matter how commonsense or factually correct their position may be.
So, can your ex legally refuse to vaccinate your kids? By way of a negotiated settlement, or binding court or arbitration decision – yes. But the pro-vaccination parent is more likely to win in a battle of experts. AP, the man who is appealing the arbitration decision, will presumably enter the next round of litigation with better evidence, and the law, on his side.
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