'It sets a certain precedent': Quebec judge suspends unvaccinated father's visitation rights with child

A Quebec father who has temporarily lost visitation rights with his child because he is unvaccinated could be a first case of its kind in the province, according to one family lawyer.

Superior Court Justice Sébastien Vaillancourt ruled that the order was given to protect the 12-year-old child, who is double vaccinated, given his father’s vaccination status and because “the pandemic situation has evolved unfavourably since then due to the Omicron variant.”

“It would normally be in the child's best interest to have contact with his father, but it is not in his best interest to have contact with him if he is not vaccinated and is opposed to health measures in the current epidemiological context,” the judge wrote in his Dec. 23, 2021 ruling.

The father admitted in court that he was not vaccinated against COVID-19. The judge also described him as a “conspiracy theorist” based on evidence from his Facebook page, “so that the Court has strong reasons to doubt that he respects health measures as he claims to do in his written statement,” the ruling stated.

Sylvie Schirm, a Montreal-area family lawyer who was not involved in the proceeding, said the case could set a precedent as she is not aware of another case like this in Quebec.

“I think what probably didn't help the father was that the judge probably thought he wouldn't respect the regulations in any way, shape or form. So [regardless] of being vaccinated or not, he was going to expose his son to the virus, indirectly or directly, and that's what he was aiming to protect — the best interests of the child,” Schirm said.

The court issued a temporary safeguard order effective until Feb. 8. The judge said the suspension of visitation rights needs to be as short as possible and will be reassessed next month.

Justice Vaillancourt also wanted to take into account the best interests of the 12-year-old’s younger sisters, aged seven months and four years old, since both of them are not eligible for the vaccine in Canada and could potentially be more exposed to the virus if the father had access to his teen son.

“It won't necessarily apply to everybody across the board. It doesn't mean that all parents who aren't vaccinated will stop seeing their kids, but it sets a certain precedent that's out there,” Schirm said.

It's not the first time a Quebec judge has intervened in a familial disagreement over the COVID-19 vaccine. In October, Superior Court Justice Chantal Lamarche ruled a 12-year boy in the Montreal suburb of Longueuil had the right to get his two doses of the vaccine, despite opposition from his father, who failed to present any evidence in court that the shots would be dangerous. 

• READ MORE: When two Quebec parents clash over vaccination of 13-year-old, judge rules in favour of the shot

The case comes at a time when views over the roll-out of the mass vaccination campaign is polarized, especially in Quebec, where Premier François Legault vowed on Tuesday to impose a health tax on adults who refuse to get vaccinated for non-medical reasons. 

This family law case highlights the debate over individual versus collective rights since the father had a difficult choice to make: maintain his own beliefs or maintain his relationship with his son, Schirm said. 

“I think we're living in difficult times, but there's some values that are clashing and this judgment is kind of an example of two values that are clashing,” she said.

“And a judge had to make a decision because the parents didn't come to an agreement. So the judge had to intervene and make a decision and that's the decision he made.”