Stay refused for mother seeking to relocate child from Milton to Sarnia

The Ontario Court of Appeal denied a motion to stay a family law proceeding filed by a mother who sought to move her daughter from Milton to Sarnia. The court considered the appeal frivolous and found no serious issue.

The parties, who had a four-year-old daughter, moved to Sarnia in 2017 so that the father could attend a college program. While there, the mother bought a townhouse. In June 2021, the parties separated. At the time, the father had a job in Pickering, while the mother continued living and working in Sarnia.

Early this February, the parties moved in together in Milton to facilitate their parenting arrangements. They lived apart in the same dwelling and coparented their child. But this living arrangement did not last.

In late March, the mother moved into her own Milton apartment. In September, the daughter started junior kindergarten at a Milton school. In early October, the mother moved the child back to Sarnia and enrolled her in a school there.

The father brought an application in Milton’s Superior Court. He sought various reliefs, including the daughter’s return to Milton. The mother filed an urgent application in Sarnia’s Superior Court. She claimed that the proceeding should take place in the Sarnia court and that she and the daughter were habitually Sarnia residents.

Last November, the motion judge decided that the proper venue was Milton instead of Sarnia and that the child should be returned to Milton within 14 days. The mother appealed and moved to stay the family law proceeding pending the appeal.

Stay sought by parent denied

In Ncube v. Hassen, 2022 ONCA 840, the Ontario Court of Appeal dismissed the mother’s motion for a stay pending appeal. It was not in the interests of justice to grant one because none of the factors in BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620 were present here, the court said.

First, the Court of Appeal ruled that the appeal was frivolous and lacking a serious issue. The appellate court was unlikely to have jurisdiction over the appeal, given that the motion judge’s order was apparently interlocutory.

The judge’s finding that the venue was Milton, not Sarnia, did not amount to a final order because it did not finally determine the parenting issues or any other substantive issues, the appellate court said. The judge’s direction that the daughter should be returned to Milton was also not a final order since the issue of whether the mother could permanently or temporarily move the child to Sarnia would be determined at a later date, the court added.

Second, the Court of Appeal held that the daughter would not suffer irreparable harm upon being returned to Milton. The appellate court rejected the mother’s arguments that the child’s life in Sarnia would be disrupted and that she would be harmed because she would not be with her mother, who was her primary caregiver.

The appellate court made the following findings:

• The daughter lived in Milton since February and was enrolled in a Milton school in September
• The disruption occurred when the mother unilaterally decided to move the child to Sarnia in early October
• There was no evidence that the mother notified the father of her intention to move back to Sarnia under Ontario’s Children’s Law Reform Act, 1990
• The daughter was only in Sarnia from October to November and was presently in Milton
• The mother, a registered practical nurse who worked in Milton until recently, failed to provide evidence that she could not find a job or a residence in Milton

The motion judge’s order did not interfere with the mother’s regular parenting time, the appellate court noted.

Lastly, the Court of Appeal decided that the balance of convenience did not favour granting a stay, given that there was no irreparable harm.