By The Canadian Press

‘With a heavy heart,’ N.B. judge temporarily suspends unvaccinated father’s custody

Feb 4, 2022 | 1:06 PM

FREDERICTON — An unvaccinated New Brunswick man can no longer see his three children in person after a judge temporarily suspended his access because of the risk he poses to his 10-year-old immunocompromised daughter.

Justice Nathalie Godbout also ruled that the children’s mother can have them vaccinated against COVID-19, despite the father’s objections.

In a written decision issued Monday, the Court of Queen’s Bench judge said she was revoking the father’s in-person access to his children “with a heavy heart,” but she has allowed the father “generous” parenting time by phone or video.

Godbout said the man’s refusal to be vaccinated against COVID-19 has consequences for him and his children, who “must be given their best possible chance at evading infection from COVID-19.” She said the father can file an urgent request for the suspension to be reviewed if he gets vaccinated. The parents and children are not identified in the decision.

Godbout’s decision says the couple were together for a decade before they split up in 2019. They had been sharing custody of their children on alternate weeks for the past three years. Godbout said the mother discovered in July 2021 that neither the father nor his new partner had been vaccinated against COVID-19. When the children became eligible for immunization, the father wouldn’t sign the consent forms allowing them to get a shot.

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The mother filed a motion with the court in October to have the father’s in-person parenting rights suspended, and a hearing was held on Jan. 24, during which she also asked permission to have the children immunized without their father’s consent, the judge said.

Godbout said the father claimed he’d done his own “research” about COVID-19 vaccines and concluded they pose a harm to his immunocompromised daughter. The judge pointed to the plentiful and credible public health advice to the contrary and noted the child’s own doctor recommended that her father be vaccinated in order to protect her from COVID-19.

“This research is not set out in (his) affidavits in any meaningful way, other than his subjective assertion that it informs his choice and is from ‘credible sources,’ ” the judge wrote. “(He) may find himself conducting ‘research’ for information that supports his position, leaving him blind to evidence that does not.”

The New Brunswick ruling follows a Quebec Superior Court decision in December that temporarily suspended a father’s right to see his child based on evidence that the man wasn’t vaccinated against COVID-19 and appeared to oppose government anti-pandemic health measures. 

Toronto-based family lawyer Emma Katz said Godbout’s ruling is not surprising.

“We have seen vaccine cases that predate COVID-19,” Katz said in an interview Friday. “Courts have taken judicial notice of the safety and efficacy of vaccines, meaning they have outlined that that’s basically a known fact. And that has continued in the face of the COVID-19 vaccines.”

Katz said Godbout’s ruling is a reminder to parents that courts are ruling in favour of widespread public health advice from credible officials, and individual research based on non-credible sources isn’t holding weight.

Kristy Warren, a lawyer at family law firm Epstein Cole in Toronto, agreed. 

“I think courts are more likely right now, especially with the Omicron variant, to make orders actually impacting the parents’ access,” she said in an interview Friday.

This report by The Canadian Press was first published Feb. 4, 2022.

— By Sarah Smellie in St. John’s, N.L.

The Canadian Press