Parent's time with child limited by B.C. judge due to COVID-19 vaccine hesitation

A file photo shows a statue inside the B.C. Supreme Court in Vancouver, B.C.

The amount of time a separated parent can spend with her child has been limited by a B.C. Supreme Court judge because of her reluctance to get vaccinated against COVID-19.

In a decision posted last week, Justice Ward Branch addressed a parenting disagreement that stemmed from one parent's vaccination status.

The claimant and her new partner are unvaccinated against COVID-19, the court heard. The respondent is the birth mother of a child only referred to in the court documents as "S.M."

According to Branch's decision, the respondent and the claimant had a co-parenting agreement that appeared to be working well until August 2020 when discussions about COVID-19 began putting a strain on the arrangement. Both parties sought increased parenting time.

"The conflict is largely the result of the fact that the claimant has expressed reservations about the wisdom of, and risks associated with, COVID-19 vaccinations," Branch wrote in his decision.

"As just one example, the claimant purported to rely upon the '99.9 per cent survival rate' from COVID-19 as part of the parties’ discussions about S.M.’s quarantine period after she was infected with COVID-19."

Branch did say that the claimant now agrees that S.M. should be vaccinated. The issue, however, is with the claimant's own vaccination status.

The court heard the claimant has ongoing medical issues and was told by doctors that a viral-vector vaccine like AstraZeneca or Johnson and Johnson, rather than an mRNA, would be better for her conditions.

But the claimant was concerned that AstraZeneca "was not internationally recognized" and, at the time, Johnson and Johnson's vaccine wasn't available in Canada. The claimant also said she was waiting to get a shingles vaccine before a COVID-19 vaccine, at the advice of her doctor.

In outlining the claimant's submissions, Branch called them a "windy road," adding there were "several potholes in both the logic and the evidentiary subgrade."

"The claimant offers no opinion supporting the view that she is more susceptible to potential adverse reactions from vaccination," Branch wrote.

"Her evidence of supposed side-effects simply included media reports which are obviously inadmissible for this purpose."

While the claimant's lawyer suggested their client was ready to get the vaccine, Branch didn't appear convinced, saying there wasn't a commitment or timeline for her to get vaccinated. Branch also wrote that it didn't appear the claimant's partner plans to get vaccinated.

"To protect S.M.’s physical, psychological, and emotional safety and well-being to the greatest extent possible, it is appropriate to alter the existing parenting arrangement," Branch wrote.

"The claimant and her partner have simply not offered any compelling justification for their current unvaccinated status. As such, based on the record before me, they are putting S.M. at an increased risk unnecessarily."

Branch's decision included limits to the claimant's parenting time, including requiring activities to be outdoors or virtual. As well, masks must also be worn by both the claimant and S.M. Since visits are required to be outdoors, Branch decided "with great reluctance" to stop overnight visits with the claimant until "more clarity" was given about her vaccination status.

Branch wrote the claimant is welcome to apply for changes to the order, if she gets better evidence supporting her decision not to be vaccinated.