In the age of COVID, there has been a growing divide between those who have received the COVID vaccine, and those that refuse to take the vaccine for political or other reasons. We have seen how the unvaccinated have been affected with respect to being turned away at restaurants, sporting events, concerts, etc. However, we must ask the question – can a parent’s vaccination status affect custody or access to their child as enforced by the Ontario Courts? Like many other grey-area legal questions such as this, the simple answer is: it depends.
Since the start of the pandemic, issues have been brought up in courts such as parents using COVID as an excuse to violate existing parenting agreements, conflicts created over family vacations and travel, and disputes over whether children should be going to school in-person or utilizing a remote-learning education plan. Now, with Ontario preparing to roll out vaccines for children under the age of 12, it is a virtual certainty that disputes will arise between parents on the issue of whether or not to vaccinate their children.
Ontario family law courts have made it clear that their primary goal is to protect the best interests of the children in any given situation. This may include ensuring that children avoid unnecessary exposure to COVID, if one parent requests such relief. For example, a court may enforce that a parent must provide proof of vaccination to the other party before exercising any parenting time with their children. Alternatively, courts have required a parent to deliver a negative COVID test within a few days before any and all access visits with their children. While a judge is not likely to put these measures in place on his or her own accord, if a parent specifically requests this relief, it may be hard for a judge to deny a request which would only serve to further protect the safety of a child. We have also seen that court directives tend to fall in line with government directives.
It is not likely that a judge will order a parent to get the vaccine, but if a judge feels that evidence supports one parent is choosing to ignore safety protocols and is unvaccinated, the judge may order that parenting time for that parent be limited, or alternatively restricted to virtual parenting-time online only.
In the case of Guerin v. Guerin (2020) an Ontario Court ordered that a father’s parenting time would take place virtually and would be online only, because the Court found that he was “choosing to ignore safety protocols”. The parents in Guerin were previously exercising a nesting arrangement with each parent spending time at the matrimonial home with the children. The Court also awarded the mother exclusive possession of the matrimonial home on a temporary basis, because the father was not taking the COVID risk to the children and mother seriously.
Of course, if a parent cannot be vaccinated due to documented medical reasons, a judge would have to take this into consideration. These disputes are adjudicated on a case-by-case basis, and no two situations are exactly alike. The only constant is that the courts will be looking out for the best interests of the children, whatever that may mean in any given situation.
However, if the recent conduct of Ontario Courts is to be considered, parents who are unvaccinated should be aware that they run the risk of having their access limited to online access, or modified to require negative COVID tests before each visit, or otherwise altered to protect the safety and well-being of the children, depending on the applicable facts and evidence before the Court.
Until the pandemic ends (which does not seem to be happening any time soon) parents should be prepared to deal with the issue of vaccinations and safety protocols when exercising their parenting time, especially if the custodial parent is concerned that the visiting parent is not doing everything they can to minimize risk and reduce COVID exposure.