Liz Braun

September 26, 2021

-Toronto Sun


Go to a concert, see a ballgame, get on an airplane. There are some things you cannot do unless you’ve been vaccinated against COVID-19.

Now vaccination status may be an issue for parents who share custody of their children.

Vaccines were contentious in family court long before the pandemic, explains family law expert Russell Alexander.

With COVID-19, “There are disputes about whether a child should be vaccinated, especially now as vaccines are available to younger and younger people, ” Alexander said.

And with those under 12 not eligible for the vaccine, disputes about parental vaccination status are inevitable.

In any debate between parents over whether a healthy child should be vaccinated against COVID-19 or not, the judge will likely rule on the side of the parent who wants the vaccination, said Alexander.

“It is not the court’s job to second-guess the science,” he said.

Things have changed over the last year, given that this time last year there were no vaccinations available yet.

Still, there were safety protocols —  face masks, social distancing, hand hygiene and at times, lockdown rules, and some parents did not abide by those rules.

Alexander cites a case from 2020 (Guerin v. Geurin) in which a father of three children was flouting safety protocols, potentially putting the health of his ex-wife and kids at risk.

The mother was granted exclusive possession of the matrimonial home on a temporary basis; contact between the father and the kids was reduced to zoom or phone only.

If either parent ignores safety protocols, “the court will step in and make an order to make sure the child is safe,” said Alexander.

“The court has no patience with someone who doesn’t follow health protocols.”

In a recent case in Chicago, a woman lost custody of her 11-year-old son because she wasn’t vaccinated against COVID-19.

According to the Washington Post, this was the first time a parent was denied custody over COVID vaccination status.

The mother, Rebecca Firlit, was at a meeting about child support; out of the blue, the judge asked if she was vaccinated against COVID.When she said no — because of adverse vaccine reactions in the past — he ruled she could not see her child until she had been vaccinated.

That ruling changed days later, and the woman was able to see her son again, but parental vaccination will inevitably come up as the Delta variant puts more children in hospital.

When an adult chooses not to be vaccinated and has no medical reason not to do so, said Alexander, “You could argue: ‘is this parent acting in the best interests of the children?’ Because potentially they are putting the child at risk.”

And it’s not just about health, he adds. It’s also about curtailing the child’s ability to reintegrate back into society — whether that’s going back to school or going to a party or baseball game.

“You always have to ask, ‘How is this in the child’s best interest?’”

Recent cases pertaining to COVID and divorce are on Alexander’s website.

And there’s guidance in his excellent book, Everything You Always Wanted To Know About Divorce.

“Divorce is about being fair, and about sharing — children, property, income,” he said.

“Some people are interested in retribution, but that’s not the role of divorce court. It’s not to blame, but to resolve.”