Duni v. Said, 2025 ONCJ 153

ONTARIO COURT OF JUSTICE

DATE: March 18, 2025
COURT FILE No.: Toronto DFO-24-45070-00

BETWEEN:

Mohammed Duni
Applicant

— AND —

Ahlam Said
Respondent

Before Justice Jennifer S. Daudlin
Heard on March 13, 2025
Reasons for Judgment released on March 18, 2025

Lauren Israel — counsel for the applicant
Denise Badley — counsel for the respondent

DAUDLIN J.:

Part One – Introduction

1The applicant (the father) has brought a motion for an order requiring the respondent (the mother) to return the children of the relationship, Aasyatt, born […], 2019, and Aneythra, born […], 2022, to Toronto, Ontario, from Orillia, Ontario. He also seeks a temporary order for primary residence and sole decision-making responsibility for the children. In the alternative, he seeks an order for parenting time every weekend from Friday after school to Sunday at 5:00 p.m.

2The mother has not brought a cross-motion for an order permitting her to relocate the children’s permanent residence to Orillia. However, she is not consenting to return with the children to Toronto.

3The children have remained with the mother in Barrie and later in Orillia, since April 26, 2024.

4The father commenced this litigation on May 2, 2024, by issuing an application and filing an urgent motion without notice seeking a temporary order requiring the mother to return the children to his care after she left with them to Barrie, Ontario on April 26, 2024, and did not return. He also sought orders for sole decision-making responsibility, among other terms of decision-making and parenting. He was self-represented at the time and assisted by Duty Counsel at the motion.

5On the same day, Justice Paulseth adjourned the motion to May 17, 2024, to allow for service of the application and motion materials on the mother.

6On May 17, 2024, neither party attended at court, and no affidavit of service was filed. The court dismissed the father’s motion and adjourned the matter back to first appearance court for June 20, 2024. The court’s endorsement was sent to both parties by e-mail the same date.

7On January 23, 2025, the mother filed her answer/claim. She sought sole decision-making responsibility for the children, parenting terms, and child support. She did not ask to relocate the children to Orillia.

8The father brought this motion for the return of the children to Toronto, primary residence, and decision-making responsibility on February 19, 2025, after several delays (outlined below).

9The issues for the court to determine are as follows:

1. Is it in the children’s best interests to order their return to Toronto from Orillia, and if so, when?
2. What temporary parenting orders are in the children’s best interests?

Part Two – Relevant Background and Litigation History

2.1 Family History

10The father is 49 years old, and the mother is 25 years old.

11The parties were married on June 18, 2019, and separated in the summer of 2022. The parties disagree on whether the mother resided with the father or lived separately following the date of separation.

12In September 2022, the mother left for Tanzania. She left the children in the care of the father, who she states refused to allow her to travel with the children.

13In October 2022, the father travelled with the children to Tanzania to his parents’ home. He returned to Canada in November 2022, leaving the children in the care of the paternal grandparents in Tanzania.

14Between October 2022 and January 2023, the parties dispute whether the mother lived with the paternal grandparents and cared for the children, or whether she lived elsewhere and visited the children only occasionally.

15The mother returned to Canada in January 2023, leaving the children in the care of the paternal grandparents.

16In February 2023, Aneythra became ill, prompting the father to travel to Tanzania to help his parents care for the children. He stayed with them until her condition improved, returning to Canada with the children in April or May 2023. The parties dispute the exact date of their return.

17The mother could not travel during this period because her permanent resident card had expired.

18Upon their return to Canada, the children lived in the father's home. The parties dispute whether, during times when both parents were in Toronto, the mother also resided there or lived separately.

19In June 2023, the paternal grandmother traveled to Canada to live with the father and the children.

20In September 2023, the mother moved from Toronto to Barrie to begin a nursing program. The children remained in Toronto in the care of the father and the paternal grandmother.

21Between September 2023 and November 2023, the parties disagree on the frequency of the mother’s visits to Toronto to see the children. The father asserts that she visited every other weekend, whereas the mother states she visited every weekend.

22In November 2023, after the paternal grandmother returned to Tanzania, the parties agreed that the children would be taken by the father to Alberta and left in the care of the maternal grandmother.

23In March 2024, the maternal grandmother traveled with the children to Toronto for Eid. Around the same time, the paternal grandmother also returned to Toronto. In March 2024, the children were in Toronto in the father’s care, along with both the maternal and paternal grandmothers. The mother remained in Barrie/Orillia to study during the week. She visited the children at least every other weekend.

24The parties’ original plan had been for the children to return to Alberta with the maternal grandmother, with Aasyatt resuming school there in March or April 2024. However, the parties disagreed on this arrangement. The father wanted the children to remain in Toronto with him and the paternal grandmother, while the mother wanted them to return to Alberta with her mother.

25In late April 2024, on a Friday, the mother discovered that the father had enrolled Aasyatt at Beaumonde Heights Junior Middle School in Toronto and that she had been attending. She learned this when the school called her to inform her that Aasyatt had been sent without a lunch and had not been picked up at 4:00 p.m.

26That day, the mother picked up the children from her parenting time and took them to Barrie.

27The mother did not notify the father that she was taking the children from Toronto, did not inform him of their whereabouts or her address, and did not return them after her parenting time.

28Since April 26, 2024, the children have remained with the mother in Barrie and later in Orillia. She did not notify the father that she was relocating with the children, that she had registered Aasyatt in school and Aneythra in daycare, or that she had registered them in EarlyON programs or with a medical clinic.

29The father issued his application on May 2, 2024, seeking, among other things, the return of the children to Toronto.

30The children had no parenting time or contact with the father from April 26, 2024, until August 23, 2024, after both parties retained counsel.

31On August 21, 2024, the parties filed a consent 14B Motion requesting temporary without prejudice orders for the father's parenting time starting August 23, 2024, and terms of parenting time. This court granted the order on August 26, 2024.

32Pursuant to that order, the father currently has parenting time alternating weekends from Friday at 4:00 p.m. until Sunday at 5:00 p.m., with the father responsible for the pick-ups and drop-offs in Orillia, facilitated by the paternal grandmother, and prohibitions against overholding the children.

2.2 Litigation History

33The first stages of this case up until the dismissal of the father’s first motion seeking the return of the children to Toronto on May 17, 2024 are described in paragraphs 4 through 7, above.

34Both parties attended the first appearance court on June 20, 2024. The mother acknowledged service of the application and received an extension until August 1, 2024, to file her answer/claim. The matter was adjourned to August 1, 2024 for a further first appearance.

35The father did not attend on August 1, 2024, and the mother failed to file an answer/claim or request an extension. The matter was adjourned to August 21, 2024 for the father’s attendance.

36On August 21, 2024, the father appeared with his counsel. The mother did not attend, but her lawyer, Rohana Singh, was present. The parties agreed to extend the mother’s deadline to serve and file her answer/claim until September 6, 2024. The parties also filed a consent 14B Motion requesting the temporary without prejudice parenting time orders described above and granted on August 26, 2024.

37The initial Case Conference took place on November 26, 2024. Despite receiving an extension until September 6, 2024, the mother had not filed her answer/claim. She attempted to submit materials twice, but both were rejected for lateness or deficiencies. She did not bring a motion to extend the filing deadline before the conference. The mother’s lawyer at the time did not appear, leaving her without legal representation. As a result, the court could not proceed with the conference, delaying any resolution of the outstanding issues.

38On December 3, 2024, the matter returned to court to address the mother’s failure to file her answer/claim and the status of her legal representation. That morning, the mother’s lawyer served the father’s lawyer with a Notice of Change of Representation and did not appear. This left the mother unrepresented at the hearing. She filed the Notice of Change in Representation, indicating she would represent herself, and advised the court that she had retained Ms. Badley, though no formal Notice of Change confirming this was filed. The court extended her deadline to file her answer/claim until December 31, 2024, and scheduled the father’s motion for the return of the children for January 31, 2025.

39On January 22, 2025, the court granted the parties' consent 14B motion requesting the adjournment of the father’s motion to March 13, 2025, and a further extension of the mother’s deadline to file her answer/claim until January 31, 2025.

40The mother filed her answer/claim on January 23, 2025.

Part Three – Evidence Considered

41The court considered the following evidence on this motion:

1. The affidavit and reply affidavit filed by the father.
2. The affidavit filed by the mother.
3. The Form 35.1 parenting affidavits of both parties.

42The court did not consider the mother’s answer/claim, despite her stating in her affidavit that she "repeats and relies on" it.

43It has become common in family law motions for affiants to "swear to the truth of" or "repeat and rely on" another document, particularly a pleading. Though no specific rule expressly prohibits this practice, it remains procedurally improper for several reasons.

44Subrule 14(9) of the Family Law Rules (the Rules) states that a motion requires a notice of motion (Form 14) and an affidavit (Form 14A) and may be supported by additional evidence. This establishes that a motion must be based on properly filed affidavit evidence rather than pleadings.

45Subrule 14(17) specifies that evidence on a motion must be provided through affidavits, transcripts of questioning, or, with permission, oral testimony. An application, answer/claim, or reply is a pleading, not evidence, and is therefore not an admissible source of evidence under this rule.

46Subrule 14(20) restricts the evidence allowed on a motion, establishing a structured process that limits materials to designated affidavits. Although no explicit rule prohibits referencing pleadings in an affidavit, doing so bypasses this process and undermines procedural fairness. Incorporating pleadings by reference also circumvents page limits set by practice directions, creating an actual or perceived litigation advantage.

47Additionally, pleadings often contain broad allegations, legal argument, and extraneous issues unrelated to the motion at hand. Courts are required to focus on the relevant issues, and permitting parties to rely on pleadings in this way risks introducing irrelevant and prejudicial material that distracts from the relevant issues before the court on the motion.

Part Four – Position of the Parties

4.1 Father’s Position

48The father argues that the children should be returned to Toronto and placed in his primary care to restore their stability and ensure their best interests are met. He asserts that the mother’s unilateral relocation deprived them of meaningful and consistent parenting time with him, particularly from April to August 2024, when he had no contact with them. He maintains that, apart from periods when the children were in Tanzania with his mother or in Alberta with their maternal grandmother, he has been their primary caregiver since at least September 2022, when the mother left for Tanzania without them. While in his care, he contends, the children had structure, security, and a stable home environment.

49The father argues that the mother’s living situation is unstable. He alleges that she does not reside with the children in Orillia but instead lives in Mississauga with a man she has married, despite the mother denying it in court. He asserts that mutual friends were invited to and have shared pictures of the wedding, which he produced. He further claims that she has introduced the children to this man as their new father. He argues that this arrangement distances both the mother and the father from the children’s daily lives and demonstrates that she has no real plan to support their relationship with him. He also contends that the mother has intentionally withheld information about her marriage from the court, which he argues is relevant to the children's safety and stability.

50The father also seeks sole decision-making responsibility, arguing that the mother’s refusal to communicate and facilitate a relationship between the children and him demonstrates an inability to co-parent. He contends that her unilateral relocation and her failure to notify him of the children’s whereabouts show that she is unwilling to make decisions in the children’s best interests. He argues that he must be able to register the children in school, arrange for medical care, and make other necessary decisions to ensure their stability and well-being, and that the mother cannot be relied upon to cooperate with him in this process. Without decision-making authority, he asserts, he will be unable to protect their best interests, particularly given the mother’s history of making unilateral decisions.

4.2 Mother’s Position

51The mother disputes the father’s assertion that he was the children’s primary caregiver, arguing that even when they lived with him, he delegated this responsibility to his mother or a neighbour. She argues that the children are better off with her, with assistance from her sister, rather than with the paternal grandmother or other third parties.

52She further contends that if the father was ever the primary caregiver, it was because he manufactured that situation by refusing to allow her to take the children with her to Tanzania in September 2022. She argues that this was part of a pervasive pattern of coercive and controlling behaviour by the father towards her, including persistent violence, that characterized their relationship and continued post-separation, justifying her decision to remove the children from his care.

53The mother disputes the father’s claims regarding her living situation. She states that she resides in Orillia with the children, is not remarried, and only works one 12-hour shift per week as part of a clinical placement while attending school. She explains that she and the children live with her sister, who assists with childcare when she is at work. She disputes the father’s claim that she lives in Mississauga and argues that she has been the children's primary caregiver since the relocation in April 2024. She denies being married, stating that she is engaged and that the father's allegations are unfounded and irrelevant to the children's best interests as long as she is not living with her fiancé.

54The mother argues that the children should remain in Orillia because they are now settled in their schools and extracurricular programs. She contends that uprooting them again would be disruptive and not in their best interests. She asserts that they have developed routines and adjusted to their new environment, which provides them with stability and continuity. She also argues that her sister’s involvement in caregiving provides a secure and supportive environment for the children. She maintains that Orillia offers them access to appropriate educational and medical resources and that there is no compelling reason to relocate them back to Toronto.

55The mother also disputes the father’s claim that decision-making responsibility for the children should be granted to him. She argues that joint decision-making is impossible due to the father’s history of unilateral actions and that he should not have sole authority over important decisions regarding the children. She maintains that she has been the children's primary caregiver since the relocation and is capable of making decisions about their education, health, and overall well-being. She contends that the father’s request is an attempt to exert further control over her rather than a genuine effort to prioritize the children’s best interests. She further argues that his unilateral enrollment of the children in school without her consent demonstrates his unwillingness to collaborate, not hers, reinforcing why he should not have sole decision-making responsibility.

4.3 Family Violence Allegations

56The father acknowledges one incident of intimate partner violence on June 20, 2020, stating that it was mutual, as documented in the General Occurrence Report attached to the mother’s affidavit. He was charged in relation to this incident but argues that the mother is exaggerating the events in her affidavit and its significance to gain a litigation advantage. He denies all other allegations of violence or coercive control. He further asserts that he has taken steps to address his role in that single incident, completing the Partner Assault Response (PAR) program before the charges were withdrawn.

4.4 Third Party Evidence

57Both parties assert that the other has relied on third parties for caregiving, with the father claiming the mother delegates childcare to her sister, and the mother arguing that the father relied on his mother or a neighbour. Each party maintains that their own family played a supporting role and has direct knowledge of the events leading to this motion. However, neither has provided evidence from any third party to support or refute their claims.

Part Five – Legal Considerations

5.1 Decision-making Responsibility and Parenting Orders

58The Children’s Law Reform Act (the Act) provides the framework for determining decision-making responsibility and parenting time.

59A parent may apply for a parenting order under section 21 of the Act, seeking either decision-making responsibility or parenting time. All decisions regarding children must be based on their best interests, as outlined in section 24.

60The court’s authority under the Act is broad and intended to promote the best interests of the child. It has the power to allocate parenting time, determine decision-making responsibility, set schedules, and establish communication methods between parents. Additionally, the court may make any other orders necessary to safeguard the child’s well-being.[1] Under section 28 of the Act, the court has discretion to impose restrictions on relocation, require the exchange of information about the child's welfare, and enforce cooperation between parents. It may also order supervised parenting time or impose conditions on removing the child from Ontario.

61The Act recognizes the importance of protecting children from conflict arising from legal proceedings. Subsection 33.1(2) requires all parties to make efforts to shield children from disputes related to the case. The Act emphasizes a child-centered approach and encourages parents to prioritize cooperation to ensure stability and continuity in the child’s life. Courts may also incorporate parenting plans into orders when both parties agree, provided they align with the child’s best interests.

62Subsection 24(2) of the Act provides that the court must give primary consideration to the child's physical, emotional and psychological safety, security and well-being in determining best interests.

63Subsection 24(3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:

Factors

(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3)(j), the court shall take into account,
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor.

64Subsection 24(4) of the Act provides that when assessing the impact of family violence in parenting matters, the court must consider various factors, including the nature, seriousness, frequency, and timing of the violence. It requires the court to assess whether there is a pattern of coercive and controlling behaviour, whether the violence was directed at the child or if the child was exposed to it, and the physical, emotional, and psychological harm caused.

65The court must also examine whether the violence has compromised the safety of the child or other family members and whether it has caused them to fear for their safety. Additionally, the court must consider whether the perpetrator has taken steps to prevent further violence and improve their parenting capacity, along with any other relevant factors that may impact the child's best interests.

5.2 Relocation

66Relocation is defined in subsection 18(1) of the Act, as follows:

“relocation” means a change in residence of a child, or of a person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, that is likely to have a significant impact on the child’s relationship with,
(a) another person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, or
(b) a person who has contact with respect to the child under a contact order;

67The relocation of a child is governed by sections 39.3 and 39.4 of the Act, which set out a structured framework for determining whether a proposed move should be permitted. They provide as follows:

1. A parent intending to relocate with a child must provide at least 60 days’ notice to any other party with decision-making responsibility, parenting time, or contact under a court order.
2. The notice must include details of the expected relocation date, the new residence address, updated contact information, and a proposal for revised parenting arrangements.
3. If a parent objects, they must file an objection within 30 days of receiving notice.
4. If no objection is made and there is no existing order prohibiting the move, the relocation may proceed.

68When determining whether to authorize a relocation, the court must consider the factors listed in section 39.4(3) of the Act, in addition to the general best interests analysis under section 24. These factors include the reasons for the relocation, the impact of the move on the child, and the history of parenting time and each parent’s level of involvement.

69Courts will also assess whether the relocating parent has complied with notice requirements, the geographic area specified in any prior orders or agreements, and the reasonableness of the relocating parent’s proposal for maintaining the child’s relationship with the other parent.

70Finally, the court will consider each parent’s history of compliance with court orders and the likelihood of future compliance.

71The burden of proof in relocation cases depends on the existing parenting arrangements. If the child spends substantially equal time with both parents, the relocating parent must prove that the move is in the child’s best interests. If the child primarily resides with the relocating parent, the burden shifts to the objecting parent to demonstrate that the move is not in the child’s best interests. In all other cases, both parties must prove whether the relocation is in the child’s best interests.[2]

72Courts are particularly cautious when addressing temporary relocation requests. The leading case, [Plumley v. Plumley][3], establishes that courts are generally reluctant to permit relocation on an interim basis unless there is no genuine issue for trial regarding the move, the move clearly benefits the child, such as by ensuring educational continuity, or there is a strong likelihood that the relocating parent’s position will succeed at trial.

73In [Boudreault v. Charles][4], Justice Sherr outlined key principles for temporary relocation cases:

1. The parent seeking the move bears the burden of proving that compelling circumstances justify the relocation.
2. Courts exercise greater caution when material facts are in dispute that could affect the final outcome.
3. Additional caution is applied when the move involves a long distance, as courts are unlikely to permit it unless they are confident it will be permanent.
4. Courts are also more reluctant to allow temporary relocation in the absence of a custody order.

74Courts have consistently discouraged self-help remedies in relocation cases. A parent who unilaterally moves the child without proper notice or consent risks having the child ordered to return to their previous residence.[5]

75When one parent relocates with a child to another city or community without notifying the other parent, the non-relocating parent may seek a court order for the child's return to the home community.[6] However, the opportunity to challenge the relocation may be lost if there is a delay in bringing the matter before the court. In Rifai v. Greene, the court declined to order a return after four months had elapsed.[7]

76The longer a child remains in a new location, regardless of how the move occurred, the greater the emphasis the court will place on the child's best interests and stability.[8]

77A distinction exists between permitting a temporary relocation and sanctioning a move that has already taken place, particularly when it contravenes a temporary non-removal order. Courts cannot endorse such unauthorized relocations, as the moving parent may later argue that the child's best interests favour remaining in the new environment.[9]

78Courts emphasize that temporary relocation should only be permitted in clear and compelling circumstances based on a strong evidentiary record.[10]

Part Six – Analysis and Conclusion

6.1 Is it in the children’s best interests to order their return to Toronto from Orillia, and if so, when?

6.1.a. Habitual Residence of the Children

79The children’s habitual residence at the time of their removal was, and remains, Toronto. The mother removed them from the father’s care in Toronto, where they had been residing before their departure to Tanzania in 2022. Upon their return to Canada in April or May 2023, they resumed living in the father’s Toronto home until November 2023, at which point they were sent to live with their maternal grandmother in Alberta. The children returned to Toronto in March 2024, not to Barrie or Orillia.

80The fact that the children were previously in Alberta does not change the conclusion that their habitual residence was established in Toronto before they left and was restored upon their return from Alberta. When the parties disagreed about whether the children should return to Alberta, the mother resumed school in Barrie/Orillia, leaving the children with the father and both the maternal and the paternal grandmothers in Toronto.

81The mother’s unilateral removal of the children from Toronto in April 2024 was, therefore, an improper disruption of the children's established residence and continuity.

82The mother’s removal of the children without complying with the notice requirements in section 39.3 of the Act further weighs against her position. The Act mandates that a relocating parent provide at least 60 days' notice, including a proposed parenting plan, before moving a child. There is no evidence that the mother provided this notice, and her failure to do so constitutes a breach of the statutory framework that ought not to be rewarded.

83The father’s registration of the children in school in Toronto in April 2024, while reflecting their habitual residence rather than establishing it, was also a self-help tactic that disregarded proper legal process, undermined the mother’s role as a co-parent and co-decision-maker for the children, and is not to be condoned.

6.1.b. The Impact of Alleged Family Violence

84The mother argues that her removal of the children from Toronto was justified due to concerns of family violence. While the court does not make findings on domestic violence at this stage as the issue requires a full evidentiary hearing, section 24(4) of the Act requires that the court consider the nature, seriousness, and frequency of any family violence, as well as its impact on the children.

85The father acknowledges a single incident of intimate partner violence in 2020, which led to criminal charges that were later withdrawn after he completed the PAR program. While the mother cites his past conduct as justification for removing the children, her unilateral decision to do so and to deny them contact with their father for an extended period contradicts the statutory obligation to support their relationship with both parents. A parent’s unilateral relocation does not establish a new status quo.

86Case law establishes that concerns about family violence must be addressed through proper legal channels, not self-help remedies. While the court acknowledges that the mother's concerns warrant further examination, they do not justify her unilateral removal of the children from Toronto without notice or court authorization to modify the notice requirements. This remains true even if the court had considered the contents of her answer/claim as part of her motion materials.

6.1.c. The Impact of the Father’s Delay

87The mother did not argue that the father delayed in pursuing this motion. However, the court must scrutinize the nine-month delay between the dismissal of his initial motion and the date he brought a second motion for the return of the children, and its impact on the children's best interests, including their stability, continuity, and established routines.

88Courts emphasize that prompt action is necessary when seeking a child's return, as delays may allow the child to develop a status quo in a new environment.[11]

89Despite being self-represented, the father took immediate and appropriate steps upon learning that the mother had removed the children from Toronto. He promptly filed an urgent motion seeking their return, demonstrating his commitment to maintaining their stability. His actions were consistent with what is expected of a parent in these circumstances, and his early efforts reflect a genuine attempt to act in the children's best interests.

90The father stated that he misunderstood the initial court endorsement, which referenced both a return date for the motion and a first appearance date. As a result, he failed to attend court on May 17, 2024, leading to the dismissal of his motion. He argued that his lack of legal experience led to the procedural misstep and that, as an unsophisticated, self-represented litigant, he struggled to navigate the legal system until he retained counsel.

91After retaining counsel, the father consistently pursued the return of the children to Toronto while also taking reasonable steps to resolve the matter. He negotiated temporary without-prejudice parenting time and made concessions for the mother’s late filings, particularly to re-establish contact with the children after months without access. These were appropriate and measured decisions, but they also contributed to delays in determining the children’s return.

92The court finds that the majority of the procedural delays are attributable to the mother. Her repeated failures to meet court-ordered deadlines and changes in legal representation significantly prolonged the proceedings. However, some delays resulted from the father’s litigation choices. He did not attend court on May 17, 2024, or August 1, 2024, and after his motion was eventually scheduled, he consented to the mother’s request to adjourn it from January 31, 2025. More significantly, he did not seek an earlier motion date to set aside the dismissal of his initial motion or bring a new one sooner or before the start the first Case Conference on November 26, 2024.

93While these decisions may have been reasonable in the circumstances, they had the effect of allowing time to pass and reinforcing the mother’s argument that the children had settled in their new location.

94Although the father remained committed to securing the children’s return, the passage of time must be considered in determining their best interests.

95Courts have consistently held that when children remain in a new environment for an extended period, regardless of the self-help measures that led to the change, the focus shifts to their best interests and stability.

96The father ultimately brought a second motion on February 19, 2025, which was argued on March 13, 2025. While his approach provided interim stability, it also resulted in the children’s living arrangements becoming more established, adding complexity to the decision of whether they should be returned to Toronto on a temporary basis.

97The children have now been in Barrie/Orillia for ten months. Aasyatt is in the middle of her senior kindergarten school year with only three months remaining until summer. Aneythra is enrolled in daycare, and both children participate in EarlyON programming. Removing them from these established routines now will necessarily disrupt their educational and social development and routines. The court must weigh these considerations against the importance of restoring them to their habitual residence.

98Aasyatt is 4 years old. Aneythra is 3 years old. The parties separated when Aasyatt was 2 years old and Aneythra was only a few months old.

99Since the parties' separation two and a half years ago, the children have experienced multiple disruptions in their living arrangements. They have moved between their father’s home in Toronto, Tanzania, Alberta, Barrie, and Orillia, often spending extended periods without contact with one parent or both parents and in the care of extended family members.

100These frequent transitions have no doubt impacted the children’s stability, development, and attachment to each parent, making continuity and predictability in their care a critical consideration. Given the extent of these disruptions, the court finds that an immediate relocation would not be in the children's best interests. Uprooting them from their current schools and childcare arrangements at this time would cause unnecessary disruption to their educational and social development. To provide continuity, the children shall remain in Orillia with their mother until the end of the school year, when the children will return to the care of their father in Toronto, until a final determination can be made.

101This matter shall be scheduled for an expedited trial before the start of the next school year.

102The parties’ parenting time pending the trial is addressed below.

6.2 What temporary parenting orders are in the children’s best interests?

103At this stage, the court declines to make a determination on decision-making responsibility. There are no pressing or urgent decisions that need to be made for the children; and, while the father has sought sole decision-making authority and the mother intimated that she could continue in that role, the best interests of the children do not support an immediate allocation of decision-making responsibility before a full evidentiary hearing.

104The father argues that if the roles were reversed and the mother were in his position, she would be granted decision-making responsibility, but because he is not a woman, courts are less inclined to order it. The court does not accept this argument. The gender of a parent is not a relevant factor in determining the best interests of the children on the issues before the court under section 24 of the Act. Parenting orders are made based on the specific circumstances of the children and their needs, rather than assumptions about how courts may treat mothers and fathers differently.

105To ensure that both parents maintain a meaningful relationship with the children, the father’s parenting time shall be increased to three weekends out of four, commencing March 21, 2025. The father will be responsible for transporting the children at the start of parenting time from Orillia, and the mother will be responsible for transporting the children at the end of parenting time from Toronto.

106If the trial decision is not rendered before the end of the school year, the children shall transition to the father’s care in Toronto for the summer, commencing the Friday evening immediately following the last day of school (or on the last day of school if it is a Friday). During this period, the mother shall have parenting time on alternating weekends from Friday evenings until Sunday evenings, and the responsibility driving the children at the start and end of parenting time will be reversed, with the mother picking up the children at the start of parenting time in Toronto, and the father picking up the children at the end of parenting time in Orillia.

107Neither parent shall be permitted to remove the children from Ontario, nor cause them to be removed from Ontario without further order of the court.

Part 7 – Order

108The following order shall issue:

1. Commencing March 21, 2025, the father’s parenting time shall occur between Friday at 4:00 p.m. until Sunday at 5:00 p.m., three weeks out of four, with the father exercising parenting time for three consecutive weekends, and the children remaining with their mother on the fourth weekend. The following terms shall apply:
   (a) The exchanges on the Friday shall occur at the mother’s residence in Orillia.
   (b) The exchanges on the Sunday shall occur at the father’s residence in Toronto.
   (c) The father shall be responsible for transporting the children from the parenting exchanges in Orillia, and the mother shall be responsible for transporting the children from the parenting exchanges in Toronto.

2. If the trial decision of this matter is not released before the start of the children’s summer school break, commencing the Friday immediately following the end of the school year (or the last day of school, if it falls on a Friday), the children shall reside with their father in Toronto pending the hearing of the trial, with the mother having parenting time alternating weekends from Friday at 4:00 p.m. until Sundays at 5:00 p.m. The following terms shall apply:
   (a) The exchanges on the Friday shall occur at the father’s residence in Toronto.
   (b) The exchanges on the Sunday shall occur at the mother’s residence in Orillia.
   (c) The mother shall be responsible for transporting the children from the parenting exchanges in Toronto, and the father shall be responsible for transporting the children from the parenting exchanges in Orillia.

3. Neither party shall be permitted to remove, or cause the children to be removed, from the province of Ontario without further order of the court.

109The time originally set aside on March 19, 2025, for the delivery of reasons on this motion shall be converted to a conference date for further discussion and determination of next steps.

Part 8 – Costs

110If the parties are unable to agree on costs, the following schedule shall apply:

1. The father shall serve and file his costs submissions no later than March 31, 2025.
2. The mother shall serve and file her responding costs submissions no later than April 14, 2025.
3. Submissions shall be limited to five pages, double-spaced, in 12-point Times New Roman font. Offers to settle and bills of costs shall not count towards page limits. All submissions are to be filed with the trial coordinator.

111The court thanks counsel for their professional presentation of the motion.

Released: March 18, 2025
Signed: Justice Jennifer S. Daudlin

Footnotes

[1] S.S. v. R.S., 2021 ONSC 2137.
[2] N.P. v. D.H., [2022] O.J. No. 5108.
[3] Plumley v. Plumley, [1999] O.J. No. 3234 (S.C.J.).
[4] Boudreault v. Charles, 2014 ONCJ 273.
[5] Dejong v. Dejong, 2020 ONSC 5367, at para. 21; Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 68; Jennings v. Cormier, 2022 ONCJ 338.
[6] Hazelwood v. Hazelwood, 2012 ONSC 5069 (SCJ); Rifai v. Green, 2014 ONSC 1377.
[7] Ibid.
[8] Sodhi v. Sodhi, 25 R.F.L. (5th) 420 (Ont. C.A.).
[9] Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 68.
[10] Tariq v. Khan, 2022 ONSC 1167, at para. 124.
[11] Rifai v. Green, 2014 ONSC 1377.