WARNING This motion is subject to publication ban pursuant to the September 24, 2024 order of Justice L.G. Favreau, ordering the initialization of the child’s name and a prohibition on the publication of any identifiable or personal characteristics of the parties or the child.

Court of Appeal for Ontario

Date: 2024-10-01 Docket: COA-24-OM-0276

Before: Favreau J.A. (Motion Judge)

Between:

J.M. Defendant (Moving Party)

and

B.S. Plaintiff (Responding Party)

Counsel: Jennifer M. Miller, for the moving party Kenna Bromley, for the responding party

Heard: September 24, 2024

Endorsement

[1] The moving party [1], the mother, seeks to appeal parts of an order made on a motion for interim relief. Specifically, she appeals from the directions regarding vaccination for the parties’ child (the “Vaccination Order”). The Vaccination Order requires the parties to bring the child’s immunization record up-to-date and to comply with government recommendations regarding COVID-19 vaccines for their child. If the parties fail to do so, the father, who is the responding party, is to be given sole decision-making power over this issue.

[2] On this motion, the mother seeks an order extending the time to appeal the Vaccination Order and an order transferring the matter from the Divisional Court to this court. The mother originally sought to appeal the Vaccination Order by bringing a motion for leave to appeal to the Divisional Court in Barrie. Charney J. directed that the motion for leave to appeal be filed with the Divisional Court in Toronto. Instead of following this direction, the mother now seeks to bring her appeal in this court. She contends that the Vaccination Order was made under the Divorce Act, R.S.C., 1985, c.3 (2nd Supp.), and that it is a final order that is to be appealed in this court pursuant to s.6(1)(b) of the Courts of Justice Act, RSO 1990, c C43 (“CJA”).

[3] On a motion to extend the time to start an appeal, the overall consideration is whether the “justice of the case” requires that the extension be granted. In applying this principle, the court considers the following factors:

a. Whether the appellant formed an intention to appeal within the relevant period; b. The length of, and explanation for the delay; c. Prejudice to the respondent; and d. The merits of the appeal.

Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.

[4] In this case, there is no doubt that the mother formed the intention to appeal the decision within the appeal period. She also provided a reasonable explanation for the delay, namely that she originally started the appeal in the Divisional Court and now believes that the appeal should proceed in the Court of Appeal.

[5] This motion turns on the merits of the appeal. This court’s jurisdiction is relevant to assessing the merits of the appeal. While a single judge of this court cannot quash an appeal because of lack of jurisdiction, a single judge can consider the court’s jurisdiction when deciding whether to grant an extension: Fontaine v. Canada (Attorney General), 2021 ONCA 931, at para. 8. An appeal brought in the wrong court “undercuts its merits and the interests of justice in granting the extension”: Collins v. Tiveron, 2024 ONCA 447, 2 R.F.L. (9th) 257, at para. 16.

[6] The mother argues that this court has jurisdiction to hear the appeal because the Vaccination Order was made under the Divorce Act and because its effect is final. She submits that vaccinating a child is an irreversible act.

[7] Based on the Form 8 Application, I accept that this aspect of the order was made under the federal Divorce Act. As such, it would not be caught by s. 19(1)(a.1) of the CJA, which gives the Divisional Court jurisdiction to hear appeals from final orders of the Family Court that were made only under provincial legislation. An appeal from a final order under the federal Divorce Act lies to this court: Mattina v. Mattina, 2018 ONSC 1569, 11 R.F.L. (8th) 69, at para. 33. However, this does not end the inquiry. Contrary to the mother’s submission, this court does not have jurisdiction over all appeals arising from the Divorce Act. This court only has jurisdiction if the order appealed from is also final and therefore not captured by s. 19(1)(b) of the CJA: Goldberg v. Goldberg (1989), 68 O.R. (2d) 124 (H.C.); see also Elgner v. Elgner, 2011 ONCA 483, 105 O.R. (3d) 721, leave to appeal refused, [2011] S.C.C.A. No. 341. In my view, the decision in this case was interlocutory and this court therefore does not have jurisdiction.

[8] The motion judge made the order in the context of a motion to decide various issues between the parties on an interim basis. This is evident from the notice of motion, which seeks interim relief. This is also evident from the disposition paragraph in the motion judge’s decision that states that the orders are made on a temporary basis. Finally, while the parties have not yet obtained an issued order from the court, the form approved between them is for a temporary order.

[9] The mother makes two arguments in support of her position that the vaccination order was final.

[10] First, she points out that, in the notice of motion, the father sought “final” decision-making with respect to vaccinations. I do not accept this argument. This is one word in a much broader context, which includes that this was a motion for interim relief and that the judge characterized his order as temporary.

[11] Second, the mother argues that the language used to describe the order is less important than the character of the order. In this case, once the child is vaccinated, there is no going back; the vaccinations cannot be undone. I accept that the court must look at the character of the order to determine whether it is final rather than interlocutory: Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, 142 O.R. (3d) 317, at para. 7. Many interim or interlocutory decisions give parties the ability to do things that cannot be undone, but this does not make an order final. As this court has stated, “the characterization of the order depends upon its legal nature, not its practical effect”: Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16. In deciding whether an order is final or interlocutory, the crux of the issue is whether the court has finally determined an issue between the parties: Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16; Sypher v. Sypher (1986), 2 R.F.L. (3d) 413 (Ont. C.A.), at p. 413.

[12] In this case, the court decided parental decision-making over vaccination only on an interim basis. At trial, the court will decide this issue on a final basis. While the child may receive some vaccines in the meantime, this on its own does not mean that the vaccination order is final. It also does not mean that the mother has no avenue of appeal. It simply means that she must bring her proposed appeal in the Divisional Court after first obtaining leave of that court.

[13] The mother relies on this court’s decision in J.N. v. C.G., 2023 ONCA 77, 477 D.L.R. (4th) 699, leave to appeal refused, [2023] S.C.C.A. No. 112 to argue that the vaccination order is final. This court’s decision in J.N. and the decision below do not indicate that the order at issue in that case was made on a temporary or interim basis. The order made below simply directed that the mother was to have sole decision-making authority over the children COVID vaccines: J.N. v. C.G., 2022 ONSC 1198, at para. 88. Accordingly, it appears that it was a final order. In contrast, in A.V. v. C.V., 2023 ONSC 1634, 91 R.F.L. (8th) 473 (Div. Ct.) the Divisional Court dealt with an appeal arising from an order granting interim decision-making to a father over vaccination issues. In that case, the mother argued that the court should never make such orders on an interim basis because vaccines are irreversible. However, quite rightly, the Divisional Court noted that it is appropriate for the court to make such orders as long as they are based on the best interests of the child: A.V., at para. 7.

[14] Accordingly, both the motion for an extension of time and the request to transfer the appeal from the Divisional Court to this court are dismissed.

[15] The father is entitled to $5,000 in costs.

“L. Favreau J.A.”

[1] At the beginning of the motion, I granted an order directing that the parties’ names be initialized and banning the publication of any personal information that would identify the parties or the child.