Dyquiangco Jr. v. Tipay, 2022 ONSC 1441

Over the last year or so, there has quite a bit of discussion regarding the Covid-19 vaccine. This issue about whether to get the vaccine has been raised in our Courts.

In the case of Dyquiangco Jr. v. Tipay, 2022 ONSC 1441, the Court was asked to make a parenting order in relation to whether a child could be vaccinated without the consent of one parent. The Applicant and Respondent in this matter are divorced and they co-parent their 12-year-old daughter. Upon separating, the parties signed a Separation Agreement providing that they would have joint decision-making with respect to their daughter’s well being. As the Omicron virus variant was surging and the daughter had reached a vaccine-eligible age her father was pushing for his daughter to be vaccinated, however, her mother was against vaccinating her daughter. The Father (Applicant) sought relief on an urgent basis that his daughter be vaccinated and the Mother opposed.

The courts relied on the Rosen Test to determine if the issue was urgent.

Step 1: Absence of a proximate date may elevate a situation to urgent.

Due to a systematic delay of 3-6 months to have a case conference, the matter of vaccinating a child during a global pandemic was deemed, prima facie, urgent.

Step 2: The parties must engage in good faith dialogue as to ascertain whether some temporary, reasonable compromise can be achieved pending the conference.

In this matter, there was no realistic hope for a temporary, reasonable compromise on the child’s vaccination in the near or intermediate future. The Court was able to exercise its inherent parens patriae jurisdiction to the override contractual terms of the Separation Agreement. Forcing the parties to engage in an unproductive, time-consuming and a potentially expensive process with little to no likelihood of resolution would not be in anyone’s (especially the child’s) best interest.

Ultimately, the Court deemed this matter as urgent and held that the daughter could be vaccinated without the consent of her mother. The Court rationalized their decision on the basis that public health authorities are in a better position than the courts to consider the health benefits and risks for children receiving the Covid-19 vaccination. The Court recognized that this virus could kill, was easily transmissible, continued to mutate, the vaccines were proven to work and were generally safe with a low risk of harmful effects.

Thank you for reading!