The order was interlocutory and must be appealed in the divisional court, not the court of appeal
The Ontario Court of Appeal dismissed a mother's request to appeal an interim vaccination order for her child, ruling the order was interlocutory and must be appealed in the divisional court, not the court of appeal.
The vaccination order, made during a custody dispute with the father, requires the parents to ensure that their child’s immunization record is up-to-date and to follow government COVID-19 vaccination recommendations. If they fail to comply, the father will be granted sole decision-making authority on the issue.
The mother sought an extension of time to appeal this vaccination order and requested that her appeal be heard in the court of appeal rather than the divisional court, where it had initially been directed. She argued that the order, made under the federal Divorce Act, was final in nature and should be appealed in the higher court. Additionally, she contended that vaccinations are irreversible, making the order final and justifying the appeal.
In deciding whether to grant an extension, the Ontario Court of Appeal applied the principle of the “justice of the case,” which considers factors such as the intention to appeal, the delay in filing, prejudice to the opposing party, and the merits of the appeal. The mother had filed her initial appeal on time. She provided a reasonable explanation for the delay, stating that she initially sought to appeal in the divisional court before concluding that it should be in the court of appeal.
However, the court ruled that the appeal should not proceed. The key issue turned on whether the vaccination order was final or interlocutory. The court found that the order was interlocutory, as it only provided a temporary decision regarding the child’s vaccinations, pending a final decision at trial. The court noted that while vaccines are irreversible, many temporary orders have effects that cannot be undone, but this does not necessarily make them final.
Ultimately, the court rejected the mother’s reliance on previous cases to argue that the order was final, noting that, in this case, the order was made on a temporary basis. The mother will need to seek leave to appeal in the divisional court.
