Father’s motion to stay child’s relocation to different city dismissed by Ontario Court of Appeal

The Ontario Court of Appeal has declined to interfere with a trial judge’s determination that it was in a child’s best interests to reside with her mother, stepfather, and siblings.

In Sidiqi v. Ahmadzai, 2022 ONCA 604, the parties were married in 2009 and initially lived in the husband’s parental home in Ottawa. They had a child in 2012. A year later, the couple separated and the mother moved to Toronto with the child. In 2014, while the couple was trying to reconcile, the woman and the child moved back to Ottawa. In 2015, the mother again wanted to separate and planned to move back to Toronto.

The father obtained a consent order providing joint custody and a rotating 2/2/3 parenting time schedule. The order stipulated that neither party would change the child’s residence without the other’s consent or a court order allowing the move.

The mother eventually remarried and her new spouse – with whom she had two children – had a job that required living Richmond Hill, Ont., a town in the Greater Toronto Area.

At trial, the woman argued that moving the child to Richmond Hill where she could be with her mother, stepfather, and siblings would serve the child’s best interests. The father contended that the daughter should remain living in Ottawa and that the shared parenting schedule should continue.

The trial judge found that it was in the daughter’s best interests to be in her mother’s primary care, to relocate to Toronto so that she could live as a family unit, and to have frequent and protracted parenting time with her father, through whom she could maintain her relationships with her paternal family.

The father requested a stay of the judge’s decision.

Motion for stay dismissed

At this stage, it would be inappropriate to alter the judge’s conclusion regarding the child’s best interests on a temporary basis, based on the parties’ fragmentary affidavit evidence, the appellate court ruled. In addition, the motion should be decided right away, given that the new school year was about to begin, said the court.

The proposed move of the child to Richmond Hill pending the appeal’s hearing did not involve a different country and would not result in irreparable harm, the appellate court held. In the past, the child had moved to Toronto and back to Ottawa and was comfortable in both the Greater Toronto Area and Ottawa, the court said.

The appellate court noted that the trial judge had the benefit of hearing evidence from both parties and other witnesses over an extended period. Her reasons for decision were comprehensive, thoughtful, and persuasive. Thus, her determination of the child’s best interests deserved substantial weight and her assessment of the evidence merited considerable deference.

The father failed to identify any legal error on the trial judge’s part and had little likelihood of success on appeal, the appellate court found. Reports from the Children’s Aid Society did not favour only the father and expressed concerns about events occurring in the paternal household, the appellate court said.

The appellate court did, however, accept that the father cared deeply for his daughter and showed concerns about the proposed move’s impact on her and on his relationship with her.