With measles cases surging and vaccinations lagging, family lawyer anticipates parenting disputes

With the decline in measles vaccination among Canadian children, family lawyer Kevin Caspersz anticipates a rise in disputes among parents mirroring what family courts experienced with the COVID-19 vaccine.  

On Feb. 20, Ontario’s Chief Medical Officer of Health, Dr. Kieran Moore, said the province’s public health officials should prepare for a potential measles outbreak.

Measles cases are skyrocketing around the world. Last Tuesday, Florida health officials confirmed the seventh case of measles at Weston, Florida’s Mantatee Bay Elementary. Last year, 42,200 measles cases emerged in 40 European countries – up from 941 cases in 2022, according to the World Health Organization. The WHO attributes the rise to the 1.8 million infants on the continent who missed their measles vaccination between 2020 and 2022.

Dr. Moore said the surge in cases abroad could lead to an outbreak at home when Canadians travel to countries where measles is prevalent. As of his statement on Feb. 20, there were four cases in Canada, two of which are in the Greater Toronto Area and related to travel. 

Canada's Chief Public Health Officer, Dr. Theresa Tam, said on Feb. 23 that while 91.6 percent of two-year-olds have received at least one dose of the measles vaccine, only 79.2 percent of seven-year-olds have had their second, which is typically administered between age four and six. As Canada approaches the March break travel season, there is a global rise in measles cases and a decline in measles vaccination coverage among Canadian children, said Tam.

Once the COVID-19 vaccinations became available, parents battled in courts over whether to vaccinate their children. Caspersz does not have any files related to measles vaccinations yet.

“But the trend is showing that there is a decline in vaccinations in children for these types of diseases, and we anticipate that as a result of this, we're inevitably going to get an influx of separated parents fighting about this issue.”

He says medical decisions are one of the major catalysts for custody disputes between parents.

Whether the dispute concerns a vaccine for COVID or measles or some other medical decision, the court will apply the best interest-of-the-child test. Caspersz says the parent advocating non-vaccination must demonstrate why it would be detrimental to the child and provide substantiating medical evidence. The court may also examine the child’s preferences if the child is a mature minor and has the capacity to make medical decisions because they can appreciate the nature, benefits, and negative aspects of receiving the treatment.

In Feb. 2023, the Ontario Court of Appeal released its decision in J.N. v. C.G. The case involved a parental fight over their children’s vaccination. The court rejected the mother’s evidence supporting her opposition to vaccination because it was merely information posted on the internet without “any independent indicia of reliability or expertise.” The father relied on information from Health Canada and the Canadian Paediatric Society and was granted decision-making authority.

In other cases, judges have ruled that courts can rely on government recommendations on COVID-19 vaccination.

It will be even more difficult for parents to argue against vaccinations for measles, mumps, and rubella, says Caspersz. Unlike the COVID-19 vaccine, which is unique because the government mandated vaccination in certain contexts and there was little history of the side-effects or long-term effects, these vaccines have been around for decades.

With the efficacy of the vaccines established, he says parents must show the court that their children have a “special condition” or allergy, based on a doctor’s opinion, to be persuasive that non-vaccination is in their child’s best interest.

Caspersz is co-founder and managing partner of Caspersz Chegini LLP.