On April 21, 2022, the parents signed minutes of settlement, having resolved all issues except for the COVID-19 vaccination issue. That agreement stated that S.E.T could eventually bring forward a motion to formally request decision-making responsibility for giving the children the COVID-19 vaccination. Instead, the courts decided to grant her that power without her even requesting it. 

J.WT. was never asking for total decision-making on the question of COVID-19 vaccination for his children right away. What this father was asking for was the opportunity to present his case, to explain himself, and to present expert evidence at a trial for consideration. A motion judge agreed that he should have that opportunity—but the Divisional Court decided against him.

In fact, the Divisional Court decided to go even further than J.W.T.’s ex-partner was asking and granted her final decision-making over COVID-19 vaccination for their children, even though she had only asked the court for interim decision-making. 

In short, the court pre-emptively ruled against J.W.T. without giving him the chance to present his case or his evidence, dismissing his concern for his children.

As Lia Milousis, legal counsel for the father, explains: “There is a proper legal test to be applied on an interim motion, and that test was ignored by the Divisional Court, which chose instead to apply a precedent from the Ontario Court of Appeal that was released months after the initial motion hearing—meaning that the father never had a chance to respond to that precedent in his own oral or written arguments. The court, in essence, was dismissive of the father’s right to make his case and respond to opposing arguments.”

This, says Milousis, appears to be part of a trend in Canadian courts. 

“Increasingly, what seems to be happening is that there is a division in the family law jurisprudence, whereby cases about COVID-19 vaccination are treated differently,” she said. “What the Divisional Court’s decision has done is signal that, while there is an appropriate legal test to be applied at an interim motion, a different test will be applied when the case is about COVID-19 vaccines simply because the case is about COVID-19 vaccines. This should not be the case, and it risks eroding public confidence in the administration of justice.”

J.W.T. is being represented by Garifalia (Lia) Milousis and Albertos Polizogopoulos of The Acacia Group.

For nearly 15 years, The Acacia Group’s lawyers have represented clients’ constitutional and human rights. They have appeared numerous times before the Supreme Court of Canada as well as the Federal Court and many lower courts and human rights tribunals across Canada, including in Nova Scotia, New Brunswick, Ontario, Manitoba, Alberta and British Columbia.

Combined, their team has decades of experience fighting for their clients’ civil liberties, including family rights.

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