While the vaccination operation for children aged 5 to 11 has taken off, it also opens the door to disagreements between parents when one is in favor of inoculation against COVID-19, but the other is opposed to it body and soul. Those who think of going to court with this conflict will be able to benefit from the judgments already handed down which have drawn the markers in Quebec: they have all leaned in favor of the vaccine until now.
Young people aged 14 and over can decide for themselves whether or not to get the vaccine, says Michaël Lessard, who teaches family law at McGill University. But for the youngest, the agreement of both parents is required, as is the case for any other vaccine or medical treatment.
The vaccination of 12-13 year olds last spring thus helped clear the law, while separated parents asked the court to rule.
The principle that has guided the courts is “the best interests of the child,” recalls Me Lessard.
And the case law that has developed “is a kind of presumption” that once the government and public health authorities recommend the vaccine for minors, it is therefore in the best interests of the child. he explains.
But this presumption, “we can overturn it”. This can be done by showing proof of a medical problem, for example, which makes vaccination contraindicated. Judges are likely to require fairly detailed evidence, which cannot be purely speculative, he says.
Up to now, all the judgments rendered on this question have ordered vaccination, noted Me Lessard who specifies that certain decisions have perhaps not been the subject of a written judgment and that he has therefore could not consult them.
The end of conflicts?
Given these judgments, which all lean in the same direction, is this the end of the debates on this subject before the Quebec courts?
Not necessarily. “We still expect requests in court,” replied the teacher. All the more so as he notes in society a certain reluctance to vaccinate toddlers, even on the part of fully vaccinated parents.
Some will surely try to offer better evidence in court on the contraindication of the vaccine for their child than what has been done so far.
“However, I will be surprised if the rule of law changes,” he concludes.