Case Comment of Appeal – COVID-19 Vaccination of Children, O.M.S v. E.J.S., 2023 SKCA 8
October 23, 2024
In 2023, the Saskatchewan Court of Appeal overturned a decision determining if a child should be vaccinated when there is disagreement between separated parents. Below is a summary of the Court of Appeal's decision.
A more in-depth summary of the 2021 Court of Queen's Bench (as it was then called) decision can be found here:
Case Comment - COVID-19 Vaccination of Children, O.M.S. v. E.J.S., 2021 SKQB 243
Background Information
This appeal concerned a 13-year-old child whose parents had separated in 2012. Since separation, the parents had been before the Court frequently on various parenting issues. A Judgment in 2014 granted the mother final decision-making authority with respect to the child’s medical matters, however the father was still allowed to receive information on the health of the children.
In 2021, the father applied to have the child (who was 12 years old at the time) vaccinated for COVID-19. He filed an affidavit explaining the type 1 diabetes condition of the child as well as materials from physicians and government recommendations. The mother responded with affidavits from other physicians, claiming that the vaccine was unsafe, could cause trauma, and was against the child's wishes.
In the Court of Queen’s Bench, the Chambers Judge determined that the child would be vaccinated. The Chambers decision referred to case law with similar context and determined that in most cases the child was permitted to be vaccinated. Ultimately, Justice Megaw found no evidence that harm would come to the child as a result of the vaccine and that administering the COVID-19 vaccine would be beneficial to the child, therefore granting the father authority to vaccinate the child.
Issues on Appeal
On appeal, the mother argued that the Chambers Judge erred by taking judicial notice of the safety of the Pfizer vaccine. Judicial notice is a principle in the law of evidence where evidence does not need to be provided for facts that are clearly uncontroversial. Either of two "Morgan criteria" must be met for judicial notice to be taken. The two criteria are as follows:
- The fact must be so notorious or generally accepted as not to be the subject of debate among reasonable persons; or
- The fact must be capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.
The Court of Appeal decision includes extensive discussion of the judicial notice that was taken by the Chambers Judge and concluded that neither of the two Morgan criteria could be satisfied. The Court of Appeal held that the Chambers Judge did not err in taking judicial notice of the government regulatory approval of the vaccines, but instead erred in extending this approval to taking judicial notice that the vaccine was effective and safe.
After clarifying the judicial notice issue, the Court of Appeal stated that it had no impact on its decision to overturn the decision of the lower Court. Instead, the Court turned to the best interests of the child test, and it was here where its reasoning diverted from that of the Court of Queen’s Bench.
Analysis of the Emotional and Psychological Safety of the Child
The Court of Appeal upheld the conclusion of the Chambers Judge that the child's physical safety, security, and well-being would be best served by receiving the Pfizer vaccine.
However, the Court held that insufficient weight was given to the emotional and psychological health of the child in the Chambers Decision. Not enough significance had been placed on the emotional and psychological trauma that would be placed on the child because of a forced vaccination. The Court also reasoned that the Chambers Judge neglected to consider the possibility of self-harm by the child. The Court of Appeal discussed whether there was a significant risk of this damage occurring, how likely it was, and the potential range of consequences that could affect the child if the risk did materialize.
Best Interests of the Child
These two errors necessitated the Court of Appeal to perform a new best interests analysis, with consideration of these additional factors.
The Court of Appeal was satisfied that the physical well-being of the child would be served by the administration of the Pfizer vaccine. However, the Court then applied significant weight to the possibility of mental distress, trauma, and also raised the issue of a future damaged relationship with the father. With these additional factors, the Court of Appeal was unwilling to uphold the Order that the child be vaccinated.
Summary of Result
Due to these unique circumstances, the Court of Appeal decided the child should not be vaccinated against her expressed wishes. As a result, the appeal was allowed.
The Court acknowledged concerns that this decision could have negative consequences, particularly given the child's views on the vaccine seemed to have been influenced by misinformation from her mother. The Court also noted that its ruling might be perceived as rewarding those who spread misinformation, potentially encouraging similar behavior. However, the Court emphasized that its primary focus must be on the best interests of the child, and broader concerns could not override this focus.
If you need assistance with medical decision-making for your child after separation, please contact a member of our Family Law practice group.
About the Author:
Zina L. B. Scott is an associate lawyer in the Regina office and practices primarily family law, child protection, insurance defence, and civil litigation.
Written with assistance from 2024 summer student, Carina Pilon.
About McKercher LLP:
For nearly 100 years, McKercher LLP has grown deep roots across Saskatchewan, serving the community from offices in Saskatoon and Regina. Now, as one of the province’s largest and most established full-service law firms, we proudly carry on this legacy – following a client-first philosophy as we provide legal services and real solutions for the people who rely on us.
This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances. Counsel should be consulted concerning your own situation and any specific legal questions you may have