Droit de la famille — 211637							2021 QCCS 3582
SUPERIOR COURT
CANADA
PROVINCE OF QUEBEC
DISTRICT OF					MONTREAL
No:			500-12-338088-184
DATE:		AUGUST 27, 2021
_____________________________________________________________________
BY	THE HONOURABLE					ALINE U.K. QUACH, J.s.c.
_____________________________________________________________________
D. P.
Applicant
v.
G. M.
Defendant
_____________________________________________________________________
REASONS OF the JUDGMENT rendered orally ON AN APPLICATION FOR A MINOR CHILD TO RECEIVE THE VACCINE AGAINST COVID-19
_____________________________________________________________________

context

[1]           The parties are the parents of X, who turned 12 last [...]. The boy will begin high school at the end of summer.

[2]           Mother asks that X receive the vaccine against Covid-19 as soon as possible since school starts next week.

[3]           Father refuses because he feels that it is not in the best interests of his son, that the child is healthy and will not benefit from it.

[4]           He alleges that his son already has antibodies because he got sick after Mother got vaccinated and transmitted the virus to him. He believes that the vaccine may cause major side effects and harm to the body, as the child is overweight. He fears that X will have an allergic reaction as he was very allergic to penicillin and other antibiotics when he was younger.

[5]           He submits that the vaccine against Covid-19 is at the experimental stage and was only approved by the government in a state of emergency.

[6]           The parties presented their arguments last July 16^th.

[7]           As the Court did not have any medical opinion with respect to X’s personal health condition and possible contraindications to receiving the vaccine, it was suggested that the parties consult the child’s pediatrician on July 23^rd, when a routine visit was already scheduled, and the matter was postponed until today.

[8]           Father submitted a sworn declaration on August 6^th and Mother on August 18^th and 26^th.

[9]           Father also filed a Motion for recognition of status as an expert witness of Dr. Janci Chunn Lindsay and appointment of an expert. He asks that Dr. Lindsay be permitted to provide an expert opinion on the current issue. Mother contests the demand and pleads that Dr. Lindsay is an “anti-vaxxer” and would give an opinion based on erroneous information.

ANALYSIS

[10]        The Court must first determine if there is urgency to intervene and if so, what is in the best interests of X.

[11]        As school will begin next week, it is urgent that the Court decide whether X should be administered the vaccine against Covid-19 or not.

[12]        Since March 2020, the whole world has been affected by the Covid-19 pandemic. Presently, a fourth wave of Covid-19 is hitting the province because of the Delta variant. Children attending school, teenagers in high school and students in Cegeps and universities are at risk. The government urges citizens aged 12 years and over to get their two doses of vaccine against Covid-19. As of September 1^st, citizens must have a vaccine passport in order to attend certain events, places or activities.

[13]        Quebec Public Health recommends that 12 to 17-year-olds receive the vaccine against Covid-19 for the following reasons:[1]

Vaccinating young people will restrict the virus from spreading and help control the pandemic by stopping transmission in the youth’s immediate circle.

Vaccinating young people makes it possible to loosen other hygiene measures that control the spread of the virus and severely impact teaching, academic success, and student retention and overall well-being.

Vaccinating young people caps outbreaks and limits classroom closures, which also facilitates student success and retention.

Vaccinating young people means that sports and extracurricular activities can resume. These activities have a major positive effect on the mental and physical health of adolescents.

[14]        In the instant case, in reply to Father’s allegations, Mother states that she was never sick with Covid-19 and that X was cleared of allergies and has since taken penicillin without reactions.[2]

[15]        The parties consulted the child’s pediatrician, Dr. Ross, who declared that the vaccine was appropriate for everyone and that he recommended it to all his patients.[3]

[16]        Father did not convince the Court of the seriousness of his allegations and concerns. He failed to prove that the child’s health condition is at risk and prevents him from receiving the vaccine.

[17]        Mother submits that Father’s proposed expert, Dr. Lindsay, should not be appointed as an expert. The Court agrees. Dr. Lindsay is known as a scientist who “makes inaccurate claims on Covid-19 vaccine safety”. Her opinion cannot be taken seriously, is subjective and will not enlighten the Court in assessing evidence.[4] Moreover, the scientist is based in Texas, did not meet X and did not consult his medical file.

[18]        The child’s attorney made representations on his behalf. He affirms that his client wants and is prepared to be vaccinated if the Court orders so. X indicated that he wants to be vaccinated in order to do activities such as football and see his grand-parents safely. He also said that Father told him “to do it if he wants to”.

[19]        The present conflict with respect to the vaccination causes much anxiety to X and there is presently tension between Father and son.

[20]        Although the child’s desire cannot be considered as decisive in the present matter (only a minor aged 14 years and over may give his consent to care alone[5]), the Court notes that the child’s wish is serious and well-reasoned.

[21]        The Court will not order the provisional execution of the present judgment as there was no evidence presented as to the irreparable harm that will be caused to X if the vaccine was not immediately administered.

[22]        CONSIDERING that the child’s pediatrician did not express an opinion that X should not be administered the vaccine against Covid-19 due to his personal health condition;

[23]        CONSIDERING the recommendations issued by Quebec Public Health;

[24]        CONSIDERING that it is in the best interests of X to receive a first and second dose of the vaccine against Covid-19 as soon as possible;

FOR THESE REASONS, THE COURT:

[25]        DISMISSES Father’s Motion for recognition of status as an expert witness of Dr. Janci Chunn Lindsay and appointment of an expert;

[26]        AUTHORIZES Mother to allow X to receive his first and second doses of the vaccine against Covid-19 without Father’s authorization;

[27]        ORDERS both parties not to discuss the present litigation with the child or in his presence;

[28]        TAKES ACT that Mother will transmit to Father a copy of X’s Medicare card by the end of the day;

[29]        WITHOUT COSTS.

 

	__________________________________ ALINE U.K. QUACH, j.s.c.
Me Orna Hilberger
Hilberger & Associés
Attorneys for Applicant
Me Dimitrinka Saykova
Gunzun & Associés, avocats
Attorneys for Defendant   Me Valentin Molpeceres Attorney for the child X

 

TABLE OF CONTENTS

 

context........................................................................................................................................ 1

ANALYSIS.................................................................................................................................. 2

FOR THESE REASONS, THE COURT:................................................................................ 4

TABLE OF CONTENTS........................................................................................................... 6