To be vaccinated or not? What if parents disagree?

byLiria Nair

To be vaccinated or not? What if parents disagree?

On September 16, 2021 and November 19, 2021 Health Canada approved the Pfizer-BioNTech vaccine for children ages 12-17 and ages 5-11 respectively.  Many divorced and separated parents disagreed and continue to disagree on whether or not their children should receive this vaccine. This raises the question: can a joint-decision making custody arrangement be varied if parents disagree on whether their children should be vaccinated against COVID-19?

This issue was addressed by the Alberta Court of Queen’s Bench (as it then was), by the Honourable Madam Justice J.C. Kubik in TRB v KWPB, 2021 ABQB 997.

In this case, the mother and father had shared decision-making for their two children, BPB and ARB, since their divorce in 2014. Both parents had historically agreed that vaccination was important for the overall health of the children, until the COVID-19 vaccination. The mother was in support of the COVID-19 vaccination and the father was opposed. After attempting to resolve the disagreement through numerous different avenues, the mother applied to the court for sole decision making for medical and health related matters.

Justice Kubik addressed three issues:

  1. Should the parties joint decision-making status be varied so that the mother is the sole decision maker in relation to all medical and health related matters?
  2. Was it in the best interest of the children to be vaccinated against COVID-19?
  3. Should a letter to the court from counsel of the Children be sealed on the file?

It is of note that prior to addressing the above-mentioned issues, Justice Kubik discussed the COVID-19 pandemic and vaccines at length. Both parties had presented documentary evidence to the court on the pandemic and vaccines, the mother relying mainly on Canadian evidence and the father relying on both Canadian and American documentation. Justice Kubik gave more weight to the approvals and recommendations from public health officials in Canada, rather than the American documentation. Further she did not rely on documents that were non-scientific or those that were not peer reviewed (TRB v KWPB, at para 13).

In paragraph 14 of her decision, she made the following findings of fact, based on the documentary and affidavit evidence before her:

  • “Vaccination is prophylactic medical treatment. Its primary purpose is to prevent the vaccine recipient from contracting illness. Vaccination also serves the purpose of limiting the spread of illness by limiting its transmissibility. Finally, vaccination of eligible recipients protects those who cannot be vaccinated due to contraindications to the vaccine or health conditions which might prevent vaccination.
  • Vaccination, like all medical treatment, comes with risk. In the case of the Pfizer-BioNTech vaccine those risks include transitory symptoms such as injection site pain, fatigue, and headache (to name a few), and more serious side effects such as myocarditis. Myocarditis was not observed in any of the clinical trials associated with testing of the vaccine on children aged 12-17. To the extent that there have been reports of myocarditis in the 12-17 age group outside of clinical trials, Health Canada has recommended continued surveillance with respect to the side effect and a requirement that vaccine recipients in this age group receive information about this particular risk, as well as the other side effects. This ensures informed consent. It should be noted that the Pfizer-BioNTech vaccination had 100% clinical efficacy amongst 12-17-year-olds engaged in the clinical trial. Additionally, vaccination for COVID-19 has not caused the death of any children in clinical trials.
  • Illness from COVID-19 also comes with risk, including transitory flu-like symptoms, more serious pneumonia-like symptoms, and the need for hospitalization including mechanical ventilation, and in some cases long-term health consequences. Children in Canada have died from COVID-19.
  • BPB and ARB are both healthy children who have received all of their regular childhood immunizations and receive an annual flu shot. Their family physician has provided a letter in this proceeding, advising that neither child suffers from a medical condition which would prevent them from receiving the COVID-19 vaccine or cause the vaccine to be harmful. While the father objects to their doctor’s letter as improperly tendered expert opinion, it should be noted that the doctor makes no recommendation as to whether they should be vaccinated, and the information provided by him is consistent with the parents’ own description of their children as healthy, and having robust immune systems.”


  1. Should the parties joint decision-making status be varied so that the mother is the sole decision maker in relation to all medical and health related matters?

The party seeking to vary an existing parenting order must first establish that there has been a material change in circumstance, that was not foreseen at the time of the original order (Gordon v Goertz, [1996] SCR 27). If this is satisfied, then the party seeking to vary must establish that the proposed change to the existing parenting regime is in the best interest of the child or children.

In paragraph 17 of her decision, Justice Kubik found that the combination of: (1) new availability of the COVID-19 vaccine during the pandemic and (2) that the parties had exhausted all different forums to work through the disagreement constituted a material change in circumstances.

With respect to best interests, Justice Kubik found that there was no evidence that the parties had been unable to agree on medical decisions for the children prior to the current dispute. Further, neither child had expressed vaccine hesitancy prior to the COVID-19 pandemic. In fact, one child had expressed a desire to receive the vaccination. The father shared questionable information with the children, which increased their stress and anxiety surrounding vaccination.  As a result, Justice Kubik concluded that the father’s decision-making responsibility with respect to COVID-19 was not in the best interest of the children.

However, she found there was not enough evidence to remove the father’s decision making for all medical and health related matters. Justice Kubik ordered that “in the event of an impasse, and after exhausting all other good-faith attempts at resolution, including the assistance of the parenting coach, the mother will have final decision-making authority on all health and medical matters, not related to COVID-19” (TRB v KWB at para 29). With respect to the COVID-19 vaccination and treatment now and in the future, Justice Kubik found that the mother would have “sole decision-making authority with respect to any medical and health related decisions” (TRB v KWPB at para 30).

  1. Was it in the best interest of the children to be vaccinated against COVID-19?

Justice Kubik found that “vaccination serves the children’s best interest” because it (1) protects their physical health and psychological and emotional needs and (2) teaches an important social lesson about maintaining health for themselves and for others.

Justice Kubik also considered the experiences of each individual child. The 12-year-old, through counsel, expressed that he wanted to consult with his doctor about the vaccine and had some questions about the misinformation shared by the father (TRB v KWPB at para 36).   The 10-year-old, expressed some concern that the vaccine could kill her. Again, Justice Kubik found that this was related to the misinformation that had been shared by the father (TRB v KWPB at para 37). Justice Kubik declined to make any direction with respect to this, however commented that the mother had demonstrated that she would take into consideration the best interest of the child and had proposed the necessary steps to ensure that both children were “emotionally ready to proceed with vaccination” (TRB v KWPB at para 38).

Finally, Justice Kubik ordered that the father was not to discuss the issue of COVID-19 vaccination or COVID-19 generally with the children. This is consistent with the finding that the sharing of misinformation caused both children significant distress.


  1. Should a letter to the Court from counsel of the Children be sealed on the file?

Finally, counsel for the children asked that the letter to the court which contained their private health information and their consultations with counsel be sealed. To seal documents, the court must balance any real and substantial risk to the party’s interest in the publication of information against the public’s interest in open court proceedings (TRB v KWPB at para 44 citing Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41). Justice Kubik found that the letter contained solicitor client communications and that “there [was] a public interest in protecting solicitor-client communications, which is long recognized in law” (TRB v KWPB at para 44). The sealing order was therefore granted.

The findings in TRB v KWPB indicate that it is possible to change an existing parenting arrangement when parties with shared decision-making are unable to agree on vaccination for COVID-19. The case suggests that regardless of whether you are seeking vaccination or opposing vaccination, Canadian, scientific, peer reviewed evidence should be presented to the court, to support your position.

If you have any questions or concerns about varying a shared decision-making arrangement, please contact us at Soby Boyden Lenz LLP.

Other posts you might like:

Entitlement to Child Support for Adult Children

Will Corporate Retained Earnings be Considered Income for Support?