In Saint-Phard v. Saint-Phard, 2021 ONSC 6910, the court on the plea of the father decided that it is in the child’s best interests to be vaccinated against COVID-19. Justice McKinnon ordered that the father shall have sole decision making authority in this area. The Judge found that the current views expressed by the child are not independent, rather are the result of influence by his mother and the doctor she retained to oppose the motion. The mother was ordered, not to provide the child with any information directly or indirectly about COVID-19 vaccines contrary to what is provided by the Canadian, Ontario and Ottawa public health authorities. The court made the following findings by taking judicial notice under the public documents’ exception to the hearsay rule : The COVID-19 vaccination has been approved for children aged 12-17. • All levels of government have been actively promoting vaccination against COVID-19 and expending significant resources to make it available to the public. • The safety and efficacy of the COVID-19 vaccine has been endorsed by governments and public health agencies. • The Ontario Ministry of Health website states that Pfizer-BioNTech vaccine is now licensed by Health Canada for adolescents aged 12 years and older, has been proven to be safe in clinical trials and provided excellent efficacy in adolescents. The judge accepted the opinion of Dr. Tchen in preference to that of Dr. O’Connor. The latter had been consulted by the child through his mother who completely opposed the vaccination. On the other hand, Dr. Tchen, who was consulted by the father strongly supported vaccination. Neither physician had actually seen Elyon, until Dr. O’Connor saw him on September 18. By then she had already formulated her opinion that he should not be vaccinated. Dr. Tchen did have the advantage of access to his medical records, including with respect to asthma. Dr. O’Connor does not refer to medical or scientific support for her conclusion that there is no evidence of any benefits to children from the vaccine, other than she has heard of ill effects in her practice. This statement is too general to be given weight. The judge found that Elyon changed his mind due to influence from Dr. O’Connor and his mother. The explanations he gave his lawyer and his father are based on wrong information and inadmissible anecdote. His current stated view to not have the vaccine is not based on an understanding of accurate medical information as to the benefits and risks of the vaccine. As such it is not a properly informed decision. Based on what Elyon appears to have been told by Dr. O’Connor in particular, and also by his mother, as he relayed to his lawyer and father, the Court concluded that Elyon did not have the requisite medical information on which to make an informed decision. The judge ordered that Elyon is entitled to receive the COVID-19 vaccine. The father shall have sole parental decision making authority in this regard. The mother shall not tell, or suggest to Elyon directly or indirectly, that the COVID-19 vaccines are untested, unsafe, ineffective, or that he is particularly at risk from them. Nor may she permit any other person to have any such discussion, or make any such suggestion to the child, directly or indirectly. The order includes that she is prohibited from showing Elyon social media sites, websites, other online information, literature, or any other material that calls into question the safety or efficacy of COVID-19 vaccines or permitting any other person to do so. The respondent shall not involve any medical doctor other than Dr. Tchen in this aspect of Elyon’s care. Analysis: A few weeks ago I had written a blog on a similar decision by Justice Charney mandating vaccination for another child. This decision, is even more significant. It directly pitches two parents against each other in deciding the best interest of the child related to vaccination. In this case, unlike the previous one, the mother who opposed vaccination actually consulted a medical doctor and obtained so-called expert evidence from a medical doctor recommending that the 14 year old not be vaccinated. But clearly after analyzing all of the facts, the court agreed with the Doctor who supported vaccination indicating that it was in the best interests of the child. In my opinion, these two cases lay the foundation for future litigation in this area. It would be an uphill task for litigants to argue against vaccination of their children. Both judges have indicated that the child has the right to be vaccinated and it appears clear to me that the judiciary is going to find a way to make sure that a vaccination takes place even if a child says they don’t want to ask in this case. The judge said that the child had been plainly misinformed by one of the doctors and was not properly informed to make that type of decision. So the Court made the decision for the 14 year old indicating that he had to be vaccinated! At Shankar Law, we enjoy researching the law. We make sure that you are well informed of the current status of the law and empowered to make the right decision on your case. We will give you the best options possible for you to make the final decision. We look forward to working with you anywhere in Ontario and through our three offices in Port Elgin, Owen Sound and Wiarton.
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