COURT OF APPEAL FOR ONTARIO
Madsen J.A. (Motion Judge)
BETWEEN
Shawn Mazzeo
Applicant (Respondent/Responding Party)
and
Lisa Mazzeo
Respondent (Appellant/Moving Party)
Counsel:
Michael J. Stangarone and Nicole Clyde, for the moving party
Shawn Mazzeo, acting in person
Caterina Tempesta, for the Office of the Children’s Lawyer
Heard: June 12, 2026
REASONS FOR DECISION
A. OVERVIEW
1S.M. is the child at the centre of this case. She will soon be 10 years old. In January 2026, at the conclusion of a scheduled winter holiday in Ontario, her mother, the moving party/appellant (the “mother”) did not return S.M. to her primary home in Pacifica, California, contrary to the parenting terms of the parties’ 2023 California court order.
2S.M.’s father, the responding party/respondent (the “father”), promptly applied for her return to California pursuant to art. 12 of the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35(the “Hague Convention”). The application judge determined that Pacifica, California was S.M.’s habitual residence, and that S.M. was wrongfully retained in Ontario. On May 21, 2026, following a two-day hearing, the application judge ordered S.M.’s immediate return to her habitual residence (the “return order”). The return order authorizes the father to apprehend S.M., with police or law enforcement, if necessary. He has not yet done so.
3The mother is appealing the return order and brings this urgent motion to request a stay of the return order pending the outcome of her appeal.
4For the reasons that follow, the motion is dismissed. The return order remains in full force and effect. For S.M.’s sake, I strongly encourage all involved to do everything they can to make any police involvement unnecessary.
B. BRIEF BACKGROUND
5The parties have one child together, S.M. who was born in California in June 2016. They separated in 2019, while residing in San Mateo County, California. After separation, they shared parenting time and decision-making responsibility for S.M. In or around July 2020, the mother moved to Ontario. The parties consented to a final parenting order dated March 27, 2023 (“the final consent order”). This final order provides for joint decision-making. In the event of a disagreement, the father has final decision-making authority on any educational or medical issue. The father also has “primary physical custody” or primary care of S.M. The final consent order also specifies that S.M.’s primary residence is Pacifica, California. In contemplation of the mother’s move to Canada, the final consent order outlines the mother’s parenting time with S.M. both in California and in Canada.
6Pursuant to the final consent order, S.M. travelled to Canada to visit her mother during the winter break in 2025. S.M. was scheduled to return to California on January 5, 2026. The mother did not return S.M. Despite the father’s many requests, S.M. remains in Ontario. She has not attended school since her arrival on December 18, 2025.
7The father obtained an order from the Superior Court of California, County of San Matteo, dated January 23, 2026, for S.M.’s immediate return, absent medical prohibition (“the chasing order”).
8The mother concedes she is in breach of the final consent order and the chasing order. Her position is that that S.M. refuses to return to California and she will not force S.M. to return because doing so would expose S.M. to harm.
9The father brought an application in Ontario under the Hague Convention, seeking the immediate return of S.M. to her home in California. His application was issued on March 19, 2026. On March 27, 2026, the Office of the Children’s Lawyer (“OCL”) was appointed to represent S.M., with the assistance of a clinical investigator.
10The clinical investigator and the OCL counsel met with S.M. three times and interviewed her privately. S.M. clearly and consistently stated that she wants to live in Canada with her mother. She said she has felt this way since she was about seven years old and that she has been struggling with anxiety about having to live with her father in California. S.M. expressed, on more than one occasion, that she refuses to go back to California and “will run away or hit or kick anyone who tries to make her.”
11As described by the clinical investigator, S.M.’s concerns about living with her father include having what she describes as too many chores (homework, loading and unloading the dishwasher, washing, drying and folding laundry, vacuuming her room once a week, and attending to the family dog). She says that expectations on her at home “felt like a lot”, including making her own breakfast, having an early bed time, and receiving what she describes as long time-outs. She feels she is blamed for things she did not do and that her father does not treat her properly for her age.
12The OCL retained a child and adolescent psychiatrist to conduct a mental health assessment of S.M. The psychiatrist’s view was that S.M. “would meet the criteria for generalized anxiety disorder.” She reiterated that S.M. does not want to go the United States “due to excessive structure in her father’s house and a lack of warmth and empathy in her relationship with [him].”
C. DECISION BELOW
13The application judge found that Pacifica, California was S.M.’s habitual residence prior to the alleged wrongful retention. On the evidence, she rejected the argument that S.M. was habitually resident in both Ontario and California. She emphasized that the final consent order clearly gives the father majority parenting time and states that S.M.’s primary residence is Pacifica, California. This final consent order was made in contemplation of the mother’s move to Ontario.
14The application judge found that the mother wrongfully retained S.M. in Ontario and was in direct breach of the final consent order and the father’s rights of custody under the law of California.
15Article 12 of the Hague Convention requires the court to order the return of a child who has been wrongfully retained unless one of the exceptions in art. 13 apply.
16The application judge was not satisfied that returning S.M. to California would expose her to a grave risk of physical or psychological harm or otherwise place her in an intolerable situation. She found that the evidence demonstrated that “the child [was] experiencing situational distress and general anxiety, which [was] not indicative of abuse or grave risk to SM or on SM’s return to California”. She noted that the courts in California have exercised, and continue to exercise, jurisdiction over any parenting and decision-making issues.
17The application judge carefully considered S.M.’s objections in the context of the evidence as a whole. She noted that S.M. has not received any consequence for threatening to hit and kick her parents. She found:
While in the care of the [mother], [S.M.] is staying up late and has little to no routine or limits on her screen time. In my view, by refusing to return to California, she has continued her holiday from school and all the reasonable expectations and responsibilities of a 9-year-old child.
18She concluded that S.M.’s stated concerns were properly characterized as her preferences in household expectations rather than any evidence of harm or an intolerable situation.
19Having concluded that no exceptions applied, the application judge ordered the immediate return of S.M. to Pacifica, California, as mandated by the Hague Convention.
D. STAY REQUEST
20The mother requests a stay of the return order pending the outcome of her appeal.
21In my view, it is not in the best interests of S.M. to grant the stay.
22The test for a stay pending appeal is set out in RJR-MacDonald v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. It requires the court to consider:
(1) whether there is a serious question to be argued on appeal;
(2) whether the moving party will suffer irreparable harm if the stay is refused; and,
(3) on a balance of convenience, which party would suffer greater harm from the granting or refusal of a stay.
23The factors are not watertight compartments – the strength of one factor may compensate for weakness of another. The court looks to weigh these factors to decide whether the interests of justice require a stay: International Corona Resources Ltd. v. Lac Minerals Ltd. (1986), 21 C.P.C. (2d) 252 (Ont. C.A.); Jarvis v. Jarvis, 2024 ONCA 32, at para. 9.
24In cases involving children, “the court must be satisfied that it is in the best interests of the child to grant a stay”: D.C. v T.B., 2021 ONCA 562, at para. 9. The overriding consideration is the best interests of the child.
1. Serious issue to be tried
25The threshold to demonstrate a serious issue is low. It does not engage a detailed review of the merits. The moving party must only show that the appeal is neither frivolous nor vexatious: RJR-MacDonald, at p. 337. Further, where children’s best interests are central, there is almost always a serious issue to be tried: K.K. v. M.M., 2021 ONCA 407, at para. 17.
26S.M.’s strong objections to return and the import of this decision in her life are sufficient to meet the low threshold for a serious issue to be tried.
27That said, however, in my view, the appeal has a low chance of success. The decision and order align with the purpose of the Hague Convention to protect children from the harmful effects of their wrongful removal or retention and return them to the jurisdiction most appropriate to determine parenting and decision-making disputes: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 24. S.M.’s strong preference to live in Canada with her mother will be carefully considered by the California court. It is not a justification to disobey existing court orders, nor does it engage the high threshold of grave risk of harm or otherwise intolerable situation to justify a refusal of return under the Hague Convention.
28While there is a serious issue to be tried, the low chance of success of the mother’s appeal weighs against granting the stay.
2. Irreparable Harm to Applicant
29Absent a stay, the mother’s appeal of the return order may be rendered moot. This factor should, however, be given little weight. The mother is in breach of the final consent order in California and in breach of the father’s custodial rights under California law. A court order is not a suggestion: Martin v. Watts, 2020 ONCA 406, at para. 16. The mother’s legal entitlement to an appeal must be considered in the context of her own failure to obey court orders.
3. Balance of Convenience
30The father’s relationship with S.M. continues to be harmed by the mother’s unilateral actions. There has clearly been a rift in his relationship with his daughter. The unlawful prolonged separation from S.M. has denied the father and S.M. the opportunity to repair this rift. Continuing this separation through a stay of the return order perpetuates that harm.
31It is, however, the potential harm to S.M. that matters most in this case, as it is her interests that are paramount. The Hague Convention is premised on the principle that returning a child to their habitual residence is in their best interests. In this case, the application judge concluded, on a strong evidentiary foundation, that California was S.M.’s habitual residence. She meaningfully considered S.M.’s objection to return and the evidence of her current behaviours. She concluded that while S.M. does not want to return to the more structured environment of her father’s home in California, preferring her mother’s home in Ontario, there was no grave risk of serious harm to S.M. to prevent her return to her habitual residence. Further, the application judge concluded that an order returning S.M. imparts a valuable lesson that:
The court must follow the law and the rules, just like both parents and the child. There are very serious consequences when we don’t. We all must act responsibly…
32Granting a stay of the return order in this case would dilute this important lesson, contrary to S.M.’s best interests.
33I am also cognizant that it is currently June. A refusal of the stay would mean that S.M. could spend the summer with her father. The mother’s appeal will be scheduled on an expedited basis. Accordingly, even if the mother’s appeal is ultimately successful such that S.M. returns to Ontario in the fall, I find that there is no prejudice to S.M. in spending time with her father in California over the summer.
34Accordingly, the balance of convenience favours refusing the stay.
E. Conclusion
35The mother’s motion is dismissed.
36All terms of the return order, including the immediate return of S.M. to Pacifica, California, remain in full force and effect.
37The mother is encouraged to accompany S.M. to California and to assist in her transition to her father’s home.
38The mother is to notify the court as soon as possible as to whether she intends to pursue her appeal. If so, the appeal will be scheduled on an expedited basis so that S.M. and the parties have certainty as soon as possible.
39There will be no costs of the motion.
“L. Madsen J.A.”