In a world of ever-increasing accessible medical knowledge and information, it is a divide that has strangely re-emerged and, even more strangely, survived. It is a battle that has pitted PhD’s, MD’s and proponents of modern medicine against the likes of Jenny McCarthy, Hugh Hefner and 2016 presidential hopeful Donald Trump. It was, for a long time, a battle fought in the court of public opinion, not a court of law. However, a recent decision from the Ontario Superior Court changed all that.
CMG and DWS cohabited until 2012; together they have a ten-year-old daughter. After their separation, the couple disagreed on a number of issues regarding the upbringing of their child, namely veganism, organic diets, homeopathic medicine, and chiropractic readjustments for a young child. After some to-ing and fro-ing, the couple entered into a comprehensive joint custody agreement. Of importance was a clause which stipulated that their child would not be vaccinated until the age of twelve, at which time the child would be free to choose her immunological destiny.
The parties persisted in a state of muted conflict over medical decisions until the matter came to a head in early 2015. The mother wished to take her daughter to Germany to meet extended family and learn her heritage. Her father agreed, but only on the condition that the child receive numerous vaccinations, including for measles, which has seen a recent occurrence in Germany. Unable to agree, the father brought an application to vary the joint custody arrangement to give him sole decision making powers relative to the child.
As a preliminary matter, Justice Harper had to assess the impact of the vaccination clause in the agreement. Affirming the principle that the merits of any motion or application regarding a child is to be determined according to the best interests of the child, Justice Harper held that a clause in a parenting agreement can be ignored if to do so is in the best interests of the child. In this case, he felt that the clause did not represent the reasoned analysis necessary to govern a child’s medical care. He felt that an absolute prohibition on all vaccinations was unreasonable, and that the imbuing of decision-making power with a twelve year old was even more unreasonable. As he succinctly reasoned, if the parties themselves cannot agree on the merits of vaccination or the science on which it is based, how can a twelve year old be expected to come to a reasoned, informed decision.
Having dispensed with the agreement, the court turned to the issue of whether immunization before a trip to Germany was in the best interests of their daughter. The Court quickly reasoned that it was, citing evidence from the WHO, and Ontario and Canadian governments that vaccines were essential to the health of children and the general public. The court accepted the excerpt of a medical expert that the benefits of immunization far outweigh the minimal side effect risks, and handily rejected the evidence of a naturopath as “not neutral or objective […or] supported by data that had reasonable foundation.”
While the child herself had expressed anxiety about vaccines, the court easily traced this to fear-mongering and misinformation that the mother had exposed the child to. Justice Harper admonished the mother for telling her daughter that their pet cat had died of a vaccine, and that vaccinations were linked with hundreds of deaths in Canada each year. As a result, the Court found that it was in the child’s best interest that the joint custody arrangement be varied so that the father had exclusive decision-making power relative to vaccines, and that the child shall receive vaccinations in accordance with the father’s physician prior to travelling.
In addition to the obvious of taking judicial notice of the importance of vaccines, this case highlights a number of issues that should be at the fore for parents who are separating. Marital agreements, of any form, are not immune to court intervention. While the Supreme Court has cautioned that genuine, equally bargained marital contracts are due considerable deference, courts are willing to intervene on a number of grounds, such as the health and welfare of a child, and public policy. As well, in deciding issues relating to medical decisions for a child, the Court will decide the issue (as in any decision regarding a child) according to the best interests of the child.
If you and a former spouse disagree as to the medical care of your child, or want to know more about medical decision-making in the context of a separation, contact the experienced family law team at Devry Smith Frank.