In a family law case involving a 12-year-old child, a judge temporarily suspended the father’s access rights because he is not vaccinated against COVID-19.
This would be a first judgment depriving a parent of their access rights in a context of vaccination, commented in an interview.e Sylvie Schirm, an experienced lawyer specializing in family law.
In Quebec, disputes involving children are decided on the basis of this criterion: what is in their best interest? she recalls.
And in his recent judgment dated December 23, Judge Jean-Sébastien Vaillancourt of the Superior Court answered this question as follows: “It would normally have been in the best interests of the child to have contact with his father, but it is not in his best interest to have contact with him if he is not vaccinated and is opposed to health measures in the current epidemiological context. “
In this case, the mother of the child has custody and the father has access rights, “including in particular every other weekend and a week during the Holidays”, all of which is recorded in an agreement.
It is the father who presented a request to the Tribunal in mid-December, so that his access rights are modified and also to have one more day with his child during the holidays.
The mother opposed it. She requested the suspension of her access rights after having allt recently learned that he was not vaccinated against COVID-19. She added that he would be a “conspirator” and an “anti-vaccine”. If the Tribunal refuses to suspend access, she wanted the period to be limited to what was provided for in their agreement, can we read in the decision.
The fact that he was not vaccinated, “it was very worrying for her”, reported in an interview her lawyer, Mr.e Pierre-Olivier Martel, since the adolescent walks from one household to another. She therefore raised it to the judge.
The judge notes that the teenager has received two doses, but that the father is not vaccinated: the latter declared before the Court to have “reservations about the vaccine” but maintains to respect the health measures, in particular by hardly going out. from is home. However, he does not present any argument to support or explain his reservations, notes the magistrate.
In addition, “extracts from the Facebook page of Monsieur produced by Madame reveal that he actually seems to oppose vaccines and health measures”, he retains, and even “lead one to believe that he is indeed what a “conspirator” is commonly referred to as such that the Tribunal has strong reason to doubt that he is complying with the sanitary measures as he claims to do in his written statement. “
And Judge Vaillancourt decides: “it is legal knowledge that vaccination is a preventive measure strongly encouraged by national and global health authorities. “
However, the teenager is doubly vaccinated and “enjoys some protection against the virus”, it is written in the judgment.
Is this enough to allow him to be around his father?
No, according to the judge: “it is legal knowledge that the protection is not total, and that it even seems to be reduced in the face of the Omicron variant which is currently spreading in Quebec. It is also known from legal knowledge that this variant is highly contagious. “
Another fact tipped in the balance for the judge: the mother resides with her partner and their two offspring less than 5 years old. He therefore feels that he must also consider the best interests of these two other children. However, they are not vaccinated against COVID-19 since vaccination is not currently offered to children in this age group.
“In these circumstances, it is not in the interest of any of the three children that Monsieur can exercise access to [son enfant de 12 ans] at present. “
Judge Vaillancourt took a fairly broad view of the situation, considering the other two children in his decision, underlines Mr.e Martel, for whom such a judgment was “a first” on the subject. As for the father’s lawyer, he could not comment on the case.
According to his reading of the decision, Mr.e Schirm believes that other factors played a role: first, the specificity and virulence of the Omicron variant, and also the fact that the judge did not seem to believe that the father really respected the various health instructions put in place within the framework of the pandemic.
She believes that this decision comes in the wake of other “COVID-19” judgments rendered in family law. For example, until now, in the event of disagreement between parents on the vaccination of a child, the courts have ordered the inoculation. The Superior Court does not want to replace Public Health, analyzes the lawyer.
Judge Vaillancourt, however, decreed that the suspension of the access rights of this father must be of “short duration” since the epidemiological situation is changing rapidly, and that he could also decide to be vaccinated, which would change the situation. Thus, the judge’s decision is valid until the beginning of February 2022, at which time everyone’s rights will be reassessed.