No refund for B.C. mom who lost childcare after refusing to vaccinate kids, tribunal rules

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A mother who lost two sought-after childcare spaces after refusing to vaccinate her children against COVID-19 is not entitled to a refund, B.C.'s small claims tribunal has ruled.

The family ultimately found alternative childcare arrangements but had to pay higher fees at the new location, and the mother argued the entire vaccination dispute caused her "mental distress, frustration, anxiety and inconvenience," according to a Civil Resolution Tribunal decision posted online last week.

The decision does not name the mother or the childcare provider in order to protect the identities of the children involved.

The tribunal heard the mother, referred to as J.M. in the decision, first inquired about getting daycare services for her young children in June 2022.

"(The provider) responded that she had space available for September 2022, and asked J.M. to confirm that 'everyone' was fully vaccinated against COVID-19 before meeting because she took the pandemic very seriously," tribunal member Leah Volkers wrote.

J.M.'s children were both under five at the time, and the vaccine was not then available for children that young, but the mother responded that she was vaccinated.

"(The provider) also indicated that she was hopeful 'under 5s' would be able to be vaccinated soon," Volkers wrote.

UNVACCINATED KIDS A 'NO GO,' PROVIDER SAYS

The B.C. government began offering the Moderna vaccine to children as young as six months old in August 2022. J.M.'s children started daycare the following month, and the provider emailed the family around the middle of September asking when the children would be getting the vaccine.

"J.M. advised that her husband did not want the children vaccinated," Volkers wrote. "(The provider) advised that unvaccinated children were a 'no go.'"

On Sept. 25, the childcare provider gave the family five weeks' notice that they would lose their spaces at the end of October 2022 if the children weren't vaccinated, and the mother responded with a "lengthy email" alleging that the vaccination requirement was a breach of their contract.

As a result, J.M. said she would be pulling her children from care after Sept. 30, and demanded reimbursement of $1,483 for government subsidies the provider received while caring for her kids.

The provider responded that she was terminating their contract, effective immediately, as a result of the mother's email.

TERMS OF THE CHILDCARE AGREEMENT

J.M. took the dispute to the Civil Resolution Tribunal seeking a total of $3,137, which included a refund of some daycare fees, the reimbursement of the government's subsidies, the increased fees the family paid elsewhere, and damages.

Volkers found the issue hinged on the childcare services agreement between the mother and provider. While there was no signed contract presented to the tribunal, the agreement was laid out over several emails and messages.

The contract allows the provider to terminate her services should she become "unable" to provide care. Volkers said she couldn't rely on that provision in this instance, however, because she was not "unable" to care for J.M.'s unvaccinated children, only "unwilling."

But the tribunal member also noted that contracts sometimes have implied terms, and found that was the case in the agreement between J.M. and the provider.

"I find that both J.M. and (the provider) would consider it obvious that (the provider) would be entitled to terminate the contract on reasonable notice for reasons other than her being 'unable' to provide care," Volkers wrote.

The five weeks the provider initially offered to J.M. was reasonable, the tribunal member found.

The contract also required the mother to provide 30 days' notice before withdrawing her children from the daycare. Since J.M. demonstrated a "clear intention" not to abide by those terms in her email informing the provider that her children would be gone after Sept. 30, Volkers said the provider was within her rights to terminate the agreement.

"As I have found (the provider) gave sufficient notice of termination, and J.M. repudiated the contract … I find it unnecessary to address J.M.'s claimed damages," Volkers wrote. "I dismiss her claim."