The COVID-19 vaccine continues to divide Quebec families. And for parents who say no to vaccination, recent judgments show that this refusal can lead to a host of consequences. In the most recent, a mother who refused the vaccine for her daughter even had part of her parental authority withdrawn, that is the right to make any decision for the health of her children.
Since the vaccine has been available for children under 14, parents have been fighting in court: one wants the child to receive the product, but not the other. The judges who have had to settle such disagreements have always ordered the vaccination of the children, pointing out that their decision could have been different if the vaccine was contraindicated for a medical reason.
But recently, two cases have highlighted other consequences for parents: an unvaccinated father temporarily lost his access rights to his son, and last week a mother had some of her authority removed. parental because she categorically opposed the vaccine for her two minor daughters.
Conspiracy theses
In the latter case, the father had sole custody of the two children, and the mother had supervised contact.
In front of the judge, she described her opposition to the vaccine this way: it contains cells from aborted fetuses, is in fact a gene therapy that will change the DNA of her daughters, and could even contain a radio frequency identification chip. He will make his daughter sterile, she argued, before declaring that “we are witnessing a crime against humanity”.
Judge Steve J. Reimnitz of the Superior Court notes that it takes up “the conspiratorial, anti-vaccine theses, which are found on certain Internet sites”.
While Public Health recommends the vaccine for children aged 5 and over, it decides that the mother has not submitted any argument to oppose this recommendation: her arguments are “unreliable and not conclusive”. He therefore decides to deprive him of an attribute of parental authority, that is to say the right to make decisions in a specific sphere of the child’s life – health – by leaving him the possibility of take others jointly with the father.
Parental authority is exercised “50/50” by both parents of a child, regardless of who has custody.
“For important decisions in the life of a child, such as moving or orthodontic treatments, parents must consult and agree,” explains Ms.and Annie-Élizabeth Girard, a lawyer specializing in family law, based in Sherbrooke. Failing agreement, they must ask a judge to decide. And when a parent objects systematically, “is always in confrontation”, and generates debates on everything and nothing, without valid reason, “the judge can withdraw an attribute of parental authority temporarily or permanently , after considering the best interest of the child”.
But it’s “not common,” she says.
Case by case
Withdrawing parental authority from a father or a mother, “it’s serious”, believes Mand Sylvie Schirm, who specializes in family law.
But it should not be concluded that a parent who objects to their child being vaccinated will automatically lose their parental authority, she says. In family law, “it’s case by case”, and the judge will assess all the circumstances of the situation and the parental conflict.
She points out that there were several specific facts in this case that may have influenced the judge, including this one: the father had full-time custody and the mother only had supervised access rights.
“If the parents had been in joint custody, the judge might not have made the same decision.”
As for M.and Michaël Lessard, he says he was “a little surprised” by this decision: “it’s quite rare that we remove an attribute of parental authority”, which happens when the parent has had “unworthy and inappropriate behavior or a serious breach of its responsibilities. Striking examples are a parent who assaults his child or abandons him altogether.
Here, he recalls that the judge, however, chose not to withdraw all parental authority, but only one of its attributes. “It’s less serious,” comments the lawyer who teaches family law at McGill University.
What he finds peculiar is that this case is not one where the mother is completely unconcerned about the child’s health. Her arguments like the infertility caused by the vaccine are inconclusive, he says, but show that she is worried.
Usually, judges try to limit restrictions on parents’ rights as much as possible, says Ms.and Lessard, to maintain family ties.
The judge could have simply ordered the vaccination of the child.
But he seems to have wanted to save the father from having to come back to court for each vaccination, commented Mand Schirm. Because there will likely be a second dose against COVID-19, then a third.
And she specifies that the mother could possibly ask to have this “decision-making responsibility” back.
More punitive judges?
As time goes by, are judges imposing increasingly severe consequences on parents who are refractory to the COVID-19 vaccine? No, answered the three lawyers without hesitation.
The judgments were rendered on the specific facts of each case, insists Mand Schirm.
And the two most recent (the one on the temporary loss of access rights and the one on the partial withdrawal of parental authority) are anecdotal: we cannot speak of a trend with only two judgments, continues Mr.and Lessard.
On the other hand, the judges are called upon to hear a good amount of disputes concerning the vaccination of children, reports Ms.and Girard, who speaks of a certain “exhaustion”.
And while they explain the ins and outs of their decisions, and that all the judgments point in the same direction, that of vaccination against COVID-19, parents continue to go to the courtrooms, notes- she.