In AC v LL, 2021 ONSC 6530, just released, Justice Charney ordered that if there was a choice, children should attend in person schooling and further that children may be vaccinated even if one of the parents opposes such vaccination.
This is a significant decision. Probably one of the first in Ontario clearly stating that children may be vaccinated for schooling against the wishes of one of the parents.
The father wanted their three children aged around 13 years each and in grade 9 to attend school provided they are vaccinated. Mother wanted online learning and opposed vaccination.
The judge ruled in favour of the father. He quoted Monahan J. 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."
He further stared that "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."
Is vaccination in the best interest of the child?:
The judge ruled that the mother had not adduced evidence to suggest that it is not in the children’s best interest to not be vaccinated.
The judge clearly stated that the mother’s consent was not necessary for the children to be vaccinated if they so choose.
He analyzed and quoted sections from the Health Care Consent Act as well as previous decisions to rule that the Act clearly provided for any person without an age restriction to give their consent. This means even a minor child is considered to be "a person" who does not need permission as long as the child provides consent to be vaccinated. In this case the three children aged 13 years had provided their consent to be vaccinated. The mother had no authority to prevent their consent or to prevent their wishes of being vaccinated.
As result, the judge ordered that the children attend in person school and be fully vaccinated as per their wishes.
Conclusion:
This is a significant decision. In my opinion, this decision may well open the floodgates for further decisions to follow suit in the same vein. I have no doubt that this case is going to be cited going forward in arguing about pro vaccination and anti-vaccination and whether children should be attending in person or virtually. In my further opinion, given the reasined and detailed decision in this case, it may well be difficult to argue otherwise and to oppose vaccination of children and to prevent them attending in person classes.
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