Ontario lawyer offers tips on vaccines and child custody matters

By Laura E. Young

SUDBURY— While the COVID-19 pandemic has complicated life, some things seem to remain the same in terms of children and custody.

The starting point is always what’s in the best interest of the child and to do one’s best to avoid going to court, if possible, according to a family law lawyer with offices across Ontario.

“There’s still lots of creative ways to settle matters peacefully and respectfully, while ensuring your family stays safe, outside the court system,” says Russell Alexander, founder of the Russell Alexander Collaborative Family Lawyers. “If you go to court, it can be expensive, you can experience delays. You’re giving up your decision-making and letting a judge make a decision about what’s right for your family.”

In September, the firm issued a press release warning that parents who are unvaccinated are at risk of losing custody or access to their children.

Alexander says he’s trying to share information and explain how courts might deal with issues around vaccines. This is not a judgement of people in terms of their personal choices, he adds.

Courts tend to defer to government policy and protocols unless there are medical exemptions, he says.

A parent who has had an adverse reaction to vaccines is one exemption, but he adds that those parents should get a note from their healthcare practitioner and be able to document their reasons why just in case.

If there’s a dispute and the parents don’t agree, the court will give the parent who wants the child vaccinated the decision-making authority over that decision, he says.

Custody issues are tricky at the best of times so he recommends looking to professionals like social workers, mediators or lawyers to help negotiate an out-of-court resolution.

Unless it’s an emergency situation, it’s going to take months to resolve a matter, he adds.

“Also, what you’re doing is letting a judge, who’s a third party, who doesn’t know your family, who will probably never meet your children, decide what’s right for you and your family,” he explains. “If you can come to a negotiated settlement outside the court, that’s probably going to be the best option.”

While there are people who don’t agree with vaccinations, or the pandemic is as bad as reported, going to court can also prove potentially problematic, he says.

“The judge is going to determine what’s in the best interest of the child and what the government is recommending in terms of vaccinations and other safety protocols.”

In his practice, he sees how the back-to-school Fall time is already tough for separated families, even without the pandemic.

“You now put into the mix whether the child should be learning remotely at home or should be attending school in person. That’s a whole new area of dispute for parents,” he says. “Some parents don’t have the ability [for their children to attend] school remotely. They don’t have the technology, the skillset or they don’t have the daycare and other relief they need. So, it’s been very difficult for families. Now we add the question of vaccinations.”

The potential of the fourth wave and more restrictions has created even more uncertainty, he says.

Parents are trying to plan their children’s school year with their own work lives. Some employers are requiring workers to be vaccinated or they’ll be laid off. That scenario is creating economic difficulties if there’s no income coming in, he says.

There are also reports of court delays.

He says courts are traditionally paper-based but are moving to digital system. In 2020, everything shut down creating a bottleneck in court cases. Then when court reponed, people were learning the technology and adjusting to sessions over video, he recalls.

“This is a whole new set of skills that everyone needs to learn.”

The courts will move quickly in emergencies where the child is at risk, especially where safety protocols aren’t being followed, he says.

“The court will step in and make an order quickly on an urgent basis and ensure the child is protected.”

He says early cases have shown that where there is a risk to children, for example, where safety protocols haven’t been followed, then a parent has lost physical access to their children.

It hasn’t happened in Ontario yet, he says.

Still, he reflects on the ever-changing landscape of the pandemic where variants are emerging and there’s a possibility of further restrictions to the public. Coupled with there could be someone choosing not to get vaccinated. The courts could argue that’s sufficient to change parenting arrangements, he says.

“You can see how the issues are evolving in the pandemic.”

Alexander says it’s key to do one’s best to reach a solution with the other parent or ex-spouse.

He has seen parents work together and adapt their arrangements. Most cases don’t go to court, he adds.