Ontario Superior Court orders mother not to share COVID anti-vaxx info with 14-year-old son, grants father sole decision-making for vaccination

Eric Vallillee

Justice Mackinnon took judicial notice of the facts that the COVID-19 vaccination had been approved for 12-17 year-olds, that all levels of government in this jurisdiction have been actively promoting COVID-19 vaccinations, that the safety of the COVID-19 vaccine has been endorsement by government and public health agencies, and that that the Ontario Ministry of Health website confirms that the Pfizer COVID vaccine is approved for the relevant age group, has been proven safe through clinical trials, provides excellent efficacy in adolescents, and that a full course is strongly recommended by NACI (the National Advisory Committee on Immunization).

Father’s Evidence

The boy’s father relied on statements made by Canada’s Chief Officer of Health, Dr. Tam, on the Government of Canada’s website recommending COVID-19 vaccinations for 12-17 year olds, which also stated that thorough testing of the vaccines has determined them to be “safe and effective at preventing sever illness, hospitalization, and death from COVID-19. He also put forward statements by Ontario’s Chief Medical Officer that COVID vaccination was recommended by him for 12-to-17-year-olds, and that the Ottawa Catholic School Board had also released a notice advising all students 12 or over are now eligible to be vaccinated, which is a key in protecting schools from the virus. It was these “public documents” that led Her Honour to conclude, based also on the Court’s authority to determine what is in the best interests of the child, that “the applicable government authorities have concluded that that COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to be vaccinted”.

The Court also considered a letter from the boy’s primary care physician, Dr. Tchen, in which she recommended that he be vaccinated with two doses of the Pfizer vaccine, stating that it would prevent serious illness related to COVID-19, and enable him to have a better opportunity to attend school uninterrupted. Dr. Tchen also confirmed there were no specific contraindications for the boy who has asthma but takes no medications for it.

Mother’s Evidence

The mother relied on a note and letter from a Dr. O’Connor also located in Ottawa who stated that the boy should not receive the COVID-19 because he was asthmatic. Dr. O’Connor also claimed that the vaccine was experimental, and that since testing was continuing “we have no evidence yet of any benefits to children” – which was contradictory to all of the government-endorsed information considered by the Court. Dr. O’Connor also referenced many adverse effects including “a huge incidence of myocarditis in young men”, and wrote another letter stating that she saw the boy three days after writing her first letter, and had discussed to the COVID situation, and the adverse effects of the vaccine, and that the boy now did not want it.

The mother also provided her own affidavit referring to information she received from various people in her community and from Dr. O’Connor about adverse reactions from the vaccines, which the court found as not admissible as to adverse outcomes from the vaccine, as it was hearsay through the mother’s affidavit.

Interestingly, neither doctor had actually seen the boy, according to this endorsement, until Dr. O’Connor say him on September 18. However the Court points out that by that time, Dr. O’Connor had already formulated her own opinion that he should not be vaccinated. Dr. Tchen, unlike Dr. O’Connor had the advantage of access to the boy’s medical records. The Court also found that Dr. O’Connor’s statement that there is no evidence of any benefits to children from the vaccine is too general to be given weight because she did not refer to any medical or scientific support for that conclusion.

Evidence about the Boy’s Wishes and Consent

There was an OCL lawyer representing the boy in this case. The boy’s initial instructions to the OCL lawyer was that he did want to the vaccine, but he then changed those instructions the day before the motion, telling her that he was only 13 and didn’t want to die. He said something about wanting to decide in 2023 when the “full list” is available, but wasn’t able to explain what he meant by that, and he also told his lawyer that he thought that the Government of Canada was not recommending the vaccine.

The boy also told his father that he wanted to be vaccinated, but this also changed after Dr. O’Connor spoke to him. Again, the boy now told his father that he wanted to wait until 2023 when the vaccine has been tested, and he said that his mother had told him one of his former teachers was paralyzed due to the vaccine.

The Court’s Conclusions and Order

Justice Mackinnon found that the boy changed his mind due to influence from Dr. O’Connor and his mother. This was based on his explanation as given to his lawyer and his father for his changed views being based on objectively incorrect information and an “inadmissible anecdote” – seemingly referring to the fact that the boy thought the vaccine was not recommended by the government, and the story he was told about an old teacher of his being paralyzed. The Court found that this was not a properly informed decision on his part, and importantly, Her Honour pointed out that “if the health care provider administering the vaccine is satisfied that a youth of Elyon’s age is capable of understanding information about the vaccine, why it is recommended and what will happen if they accept or refuse the vaccine, they may administer the vaccine without parental consent.”

This case was distinguished from another 2001 Alberta case in which the Court found that a minor who was capable of providing their consent to vaccination independently should be able to make the decision to receive or not receive the vaccination on their own, which had in that case resulted in the dismissal of a parent’s motion to compel vaccination. The difference here was that the Boy in this case did not have accurate medical information about the proposed vaccination, and had been misinformed by the physician his mother had taken him to. The COVID-19 vaccination issue is also somewhat different in that the vaccines for COVID “Arise in the context of an exceptional, time sensitive public health emergency”. This was not a case where the Court was considering routine, standard vaccinations in a setting where a specific virus was not already running rampant.

Having considered all of this, Justice Mackinnon ultimately concluded that vaccination against COVID-19 was in the boy’s best interests, and stated (although this was not part of the order) that the father should arrange for the Boy to be properly informed of the medical and scientific facts of the virus and the vaccine personally by Dr. Tchen prior to being taken for vaccination.

Justice Mackinnon’s order was also carefully crafted in that is order that the boy is entitled to receive the COVID-19 vaccine, but stopped short of order the vaccination to actually take place. The Court’s order granted “sole parental decision-making authority” to the father in this regard – an unusual wording that was likely crafted to make clear that the Court was not ordering that the father could not necessarily override his son’s wishes – but that he was authorized to give parental consent without needing to involve the mother.

I would suggest that this approach both respects the autonomy of an intelligent 14-year-old who has plainly been frightened by his mother and Dr. O’Connor, but also serves the dual practical purpose of addressing the fact that the boy’s father would likely be hard pressed to find any doctor or nurse who would be willing to (or even able to) administer a needle to a teenager who is adamantly opposed. Forced medical treatment in that was would likely be a highly traumatic experience that would undesirable to say the last – and likely not in his best interests at all, even if a doctor were willing to do it.

Most interestingly, Her Honour also ordered the mother to stop providing misinformation and wrong information about the COVID-19 vaccine to her son, and also prohibited her from using other individuals or social media sites to convey this information to him either, and further prohibited her from involving any other doctors besides Dr. Tchen in his medical care.