Picture of Noni MacDonald Noni MacDonald is a Professor at Dalhousie University

Picture of Shawn HarmonShawn Harmon is a Policy Analyst at Dalhousie University


A recent family arbitration case that saw the arbitrator side with a mother who did not wish to vaccinate her two children is concerning. Their father, who shares custody of the children, wanted the children to be vaccinated. Arbitrator Herschel Fogelman appears to have given insufficient weight to the compelling evidence presented by the father and too much weight to questionable evidence presented by the mother and an expert witness whose expertise has been called into question.

The evidence cited by the father was that which supports the Canadian Immunization Guide, an expert-developed, evidence-based document that instructs physicians to encourage vaccination in their patients. The mother brought in Dr. Bark, a known American anti-vaccine advocate, to offer “expert evidence.” It is not clear how Bark qualified as an expert for this case. She offered evidence about adverse events following immunization and the contents of vaccines, but her claims and characterizations are not borne out by reliable scientific literature. The arbitrator then failed to question the claims in any substantive way. Bark offered a further suggestion that the mother had a genetic variation that made her children potentially non-candidates for vaccines, despite Bark having no qualification as a genetic counsellor and providing no evidence that the children had any relevant genetic variation.

The arbitrator in the case also found that the children were at no risk if they remained unvaccinated. It’s clear from substantial scientific literature that unvaccinated individuals not only face some risks – risks that will vary depending on their specific medical and social circumstances, and general levels of immunization in their community – but also that they pose risks to others.

The arbitrator stated that parents retain the right to make health-related decisions for their children that may differ from conventional wisdom, and that choosing not to vaccinate is neither negligent nor immoral. This overstates and oversimplifies the rights of parents in relation to decision-making for their children. Parents can make decisions in relation to the health care of their children, including the right to refuse treatment, but their right to do so is not absolute. While parents have a certain margin of appreciation in determining the nature and scope of medical interventions for their children, they must generally act in the child’s best interests. This means that decisions are not made in furtherance of the personal desires of the parent; all parental decisions are and ought to be assessed from the perspective of the child’s interests and welfare. As such, there are legal and moral reasons to view the parent’s decision-making authority as fettered, and with the potential to visit liability upon the parent.

Additionally, the best interests test is much broader than the medical perspective taken by the arbitrator and must encompass the child’s full circumstances. In this case, it should extend to the school system in Ontario which expects children to be vaccinated as a matter of course for school eligibility, and should consider the duties that we should expect to have in relation to maintaining healthy communities protected from infectious disease.

Experts are relied on in legal disputes not to advocate, but to provide decision-makers with reliable, objective and up-to-date evidence so that good and informed decisions can be made. Recent court cases have rejected evidence from vaccine-refusing parents largely similar to that tendered by the mother in this case, and have given sole medical decision-making authority to the other parent.

We argue that this appalling arbitration decision should set no precedent and should be ignored in emerging jurisprudence for its many shortcomings. It is vitally important to challenge ignorance, and to debunk false claims and poor decisions as they arise. A failure to do so gives space for falsehoods to grow, encouraging people to think them right-minded or correct. They are neither.