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The Court of Queen’s Bench for Saskatchewan decided in O.M.S. v. E.J.S., 2021 SKQB 243 that the 12-year-old daughter of divorced Saskatoon parents should be allowed to receive a Covid-19 vaccine. This was the court’s first ruling on a family vaccination dispute during the Covid-19 pandemic.

The daughter has been living with her mother since her parent’s divorce and saw her father regularly. Since the divorce, her father and mother have constantly fought about her parenting.

At first, the daughter was excited to get vaccinated, but became more hesitant after her mother and grandparents discouraged her from getting vaccinated. The mother was against vaccination and questioned the accuracy of the Covid-19 information health authorities gave them.

Justice Megaw decided it was in the daughter’s best interest to be vaccinated. He allowed the father to arrange for the daughter’s vaccination without the mother’s consent. Justice Megaw ordered the father to consult with the daughter’s family physician and endocrinologist before getting his daughter vaccinated.

1. The Existence of the Covid-19 Pandemic and Vaccine Safety

Justice Megaw accepted that Canada has been in a Covid-19 pandemic and that the possibility of contracting Covid-19 poses a serious health risk to children and adults. Justice Megaw also accepted that the Pfizer Covid-19 vaccination is safe for both adults and children. He accepted these facts based on information from Health Canada and the Saskatchewan Health Authority, who he found to be accurate sources of information.

The mother brought written evidence from a B.C. doctor named Dr. Stephen Malthouse disputing the safety of the Pfizer vaccine. Justice Megaw noted that Dr. Malthouse had no particular specialization or expertise in Covid-19 or vaccine research. Dr. Malthouse has actually been reprimanded by the College of Physicians and Surgeons of B.C. for spreading misinformation about Covid-19 vaccines.

The mother also brought evidence from Dr. William Code, an anesthesiologist who interviewed the daughter for an hour over video. Dr. Code diagnosed the daughter with a “possible” vaccine toxicity issue. Judge Megaw gave no weight to Dr. Code’s opinion, because the possible diagnosis was only based on the 12-year-old’s memory of her own medical history, without any input from her parents or her regular doctors. Justice Megaw stated that the daughter’s family physician and endocrinologist would be better suited to assess the daughter for any actual vaccine toxicity.

2. The Daughter’s Views

When deciding whether a child is able to make their own medical decisions, courts usually consider:

  1. The child’s age and maturity;
  2. The child’s dependency upon her guardians for making decisions and taking care of themselves; and
  3. The complexity of the treatment.

Justice Megaw found the daughter to be a capable young woman, but he expressed serious concerns that she was being influenced in her decision-making. Her mother was involved in all of the daughter’s interviews and it seemed that the daughter had been fed information rather than coming to her own opinions.

3. What this Decision Means

Justice Megaw made it clear that his decision was only about this particular 12-year-old. His decision is not a general vaccine mandate. B.C. courts are not required to follow this Saskatchewan decision, but they will probably consider if they are asked to rule on a Covid vaccination.