Court File and Parties
DIVISIONAL COURT FILE NO.: 151/25
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Reid and Nakatsuru
BETWEEN:
Mamadou Diouma Diallo Appellant
– and –
Fatoumata Bah Respondent
COUNSEL:
Brian Smith and Sarah Conlin, for the Appellant
Fatoumata Bah, on her own behalf
Heard at Toronto by videoconference: May 14, 2025
Reasons for Judgment
H. Sachs J.
Overview
1This is an appeal from the interim order of Shin Doi J. dated February 24, 2025 (with reasons released on March 12, 2025), allowing the two children of the marriage to relocate with their mother from their habitual residence in Toronto to Winnipeg pending the trial of the mother’s application to relocate with the children.
2The motion judge’s order has been stayed pending the determination of the appeal.
3The order granting leave to appeal set out the issues to be addressed as follows:
a. Whether the motion judge erred in adjudicating the mobility issue on an interim basis, rather than as a motion for summary judgment or as the trial of an issue;
b. Whether, in light of the answer to question (a), the motion judge erred in the test applied and the process followed below; and
c. How the mobility issue ought to be addressed going forward in light of the answers to (a) and (b), above.
4The Appellant, Mr. Diallo, concedes that the motion judge did not err in adjudicating the issue on an interim basis. Rather, he submits that the motion judge erred in her application of the test for relocation on an interim basis. Most significantly, she erred when she found that there was a material change that warranted relocation as in this case the event which drove the interim relocation request (the mother’s new job) was a foreseeable event; she erred when she made a reference to there being no genuine issue for trial and she erred when she failed to assess the impact of the relocation on their relationship with the father.
5For the reasons that follow, the appeal is dismissed.
Factual and Procedural Background
Events Leading to the Mother’s Request to Relocate
6Both parties are from West Africa-Guinea. The mother immigrated from there to Winnipeg when she was two years old. She was raised in Winnipeg and has extended family there. She moved to Toronto as an adult for work. The father immigrated to Philadelphia as a student, met the mother and moved to Toronto to be with her in January of 2017.
7The parties were married on March 18, 2017 and separated on September 1, 2023. They have two children, one who is eight and the other who is three.. The parties have spent their married life in Toronto and the children were born there.
8As found by the motion judge, “there is a history of family violence and police involvement with the family prior to separation.” After the parties separated in September of 2023, the children continued to reside with their mother in an apartment in Scarborough. From September of 2023 to January of 2025, the father resided in a room that he rented in a house in Ajax. During those 18 months, the father had parenting time with the children on Wednesday and Friday from after school/daycare until 7 p.m. and every other Saturday and Sunday from 10 a.m. to 7 p.m. The father had some overnight parenting time with the children, but it was only exercised at the mother’s home when she travelled for work and at his sister’s when he took the children to visit his sister in Ottawa.
9In January of 2025, the father purchased a four-bedroom residence in Whitby where he now resides.
10The mother is a bilingual Human Resources (“HR”) generalist. She worked at a hardware company in that capacity in Toronto, but accepted a demotion at the same company in May of 2024 so that she could have a remote and flexible work schedule to accommodate the children’s needs and schedule. Her new job was as a call centre Quality Assurance Associate. By the time of the motion judge’s decision the mother had obtained employment as a bilingual HR generalist at a health network in Winnipeg. She was offered the position in November of 2024, started the position virtually in January of 2025 and was required to work in person in Winnipeg as of February of 2025.
11The father is employed as a senior software development engineer at a media company in Ontario. He has a hybrid work arrangement.
The Mother’s Request to Relocate
12The mother states that she advised the father of her request to relocate to Winnipeg in April of 2024. She issued her application in these proceedings on June 5, 2024, requesting primary residence, decision-making responsibility, child support and permission to relocate the children to Winnipeg.
13The mother served and filed a Notice of Relocation on June 10, 2024. The father filed an Objection to the relocation on June 19, 2024.
Events Leading to the Order of Horkins J. on October 3, 2024
14The parties attended To Be Spoken To (“TBST”) court on August 19, 2024. At that time, the court noted that since the parties’ separation there was no fixed parenting schedule or child support arrangement in place. The court fixed an urgent case conference date for October 3, 2024.
15On October 3, 2024, the parties attended before Horkins J. where they discussed parenting issues, including the mother’s desire to relocate the children to Winnipeg and child support. On that date, Horkins J. made an order, the relevant portions of which are detailed below:
(a) A schedule was set for the father’s parenting time such that he would see the children every alternate weekend on Saturday and Sunday from 10 a.m. to 7 p.m. and every week on Wednesday and Thursday from after school/daycare to 7 p.m. The order provided that when the father had a residence that could accommodate overnight parenting time, the father could make a request to increase his parenting time. If the parties could not agree on the extent of that time the father could bring a one-hour motion to increase his parenting time.
(b) The mother was ordered not to relocate with the children to Winnipeg or elsewhere without a court order.
(c) The father was ordered to pay child support in the amount of $1,508.00 per month for the two children of the marriage, based on his income of $103,000.00. In addition, he was ordered to pay 61% of the agreed upon section 7 expenses.
(d) The case conference that had been scheduled for December 17, 2024 was converted to a settlement conference.
(e) With respect to the mother’s relocation request, the court ordered: “Assuming [the] mother’s relocation request is not resolved the parties shall discuss how they wish to proceed to have it decided. If necessary, the parties may request an attendance at TBST court to have the hearing of the relocation issue scheduled. Otherwise it shall be scheduled at the settlement conference.”
16After the father found his accommodation in Whitby in January of 2025, the parties agreed to vary his parenting schedule such that he had the children every alternate weekend from Saturday morning at 10 a.m. to Monday morning when daycare or school commenced. His weekday parenting time schedule was not changed. This was the parenting time arrangement in place at the time of the motion judge’s order.
Events Leading up to the Motion giving rise to the appeal
17On November 1, 2024, the mother brought a one-hour motion seeking to relocate the children from Toronto to Winnipeg as she had received a job offer in Winnipeg. The father sought to have the motion adjourned to a hearing where the mother’s evidence could be subject to oral cross-examination. Sharma J. agreed that the motion should be adjourned to be heard as a long motion where the parties could be cross-examined on their affidavit evidence. Sharma J. gave the parties leave to file fresh motion material on that long motion, imposed limits on the length of that material and provided for a cross examination limit of 1.5 hours each.
The Motion Giving rise to the appeal
18As set out in her reasons the motion judge heard the motion on February 13 and 19, 2025 and the motion included “viva voce evidence and cross-examinations.” Five days after hearing the motion, the motion judge issued her “bottom-line decision” allowing the mother to move the children to Winnipeg with “reasons to follow.” This was done to accommodate the “the urgency of the situation.” Her reasons were released on March 12, 2025.
19In her reasons the motion judge identified and addressed the following issues:
“Whether the Mother met the onus of establishing a material change in circumstances to justify a temporary relocation?”
“If the answer to 1. is yes, is this a compelling case to justify the proposed relocation on a temporary basis prior to a trial?”
“In answering 2. is it in the best interests of the children to allow the proposed relocation based on the factors listed in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)?”
20The motion judge identified that the mother had the onus of establishing that there had been a material change of circumstances that justified her request for a temporary relocation. She then set out the following threshold test to be applied when a party is seeking to vary an order to relocate children on a temporary basis. That test requires establishing a material change in circumstances, which in turn requires satisfying the court that there has been:
(1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order: Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 13.
21The motion judge found that the threshold test had been met. Her reasons for doing so are summarized below:
26The Mother argues that there is a material change in her circumstances and that of her children. The Mother has been offered and accepted a higher-paying job, with greater growth potential, that requires her to be in-person in Winnipeg. I accept the Mother’s evidence that there are valid and compelling reasons why she is required to work in-person in Winnipeg. I also accept her evidence that the higher income and lower costs of living in Winnipeg would significantly improve the children’s and the Mother’s circumstances. In Winnipeg, the younger child will be able to obtain speech therapy in the French language, the children will have better housing, and the children would be cared for by family in a Francophone environment.
22The motion judge found that there was a compelling case to justify the proposed relocation prior to trial. In doing so she adverted to the decision in Plumley v. Plumley (Ont. S.C.) in which, at para. 7, the court identified three important factors to consider in deciding whether to permit relocation on an interim basis. They are:
A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.
Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.
23The motion judge found that “there [did] not seem to be a genuine issue for trial that would prevent a temporary order for relocation.” As put by her:
32… There is an agreement with respect to parenting time and primary residence of the children. The viva voce evidence, cross-examinations, and affidavit evidence addressed the issues and considerations in the best interests of the children.
24The motion judge also found that there were compelling circumstances “that dictate[d] that the move be allowed. The move [would] result in a financial benefit to the family.” The motion judge accepted that the mother had applied for over 100 jobs before obtaining the job in Winnipeg and that she was only interviewed for call centre jobs, not HR jobs. While the immediate financial benefits of her current job might be “modest”, the job offered opportunities for career growth and increased financial benefit. Further, the mother’s increased salary would go further in Winnipeg, given its lower cost of living. The motion judge also found that requiring the mother to remain where she was in difficult financial circumstances and isolated from her family and support in Winnipeg would adversely affect the mother who had already experienced mental health issues that required her to travel to Winnipeg for family support. An order prohibiting the move would result in the children having an unhappy and dissatisfied mother, which would in turn have an adverse effect on the children. Finally, the motion judge found that the temporary move would “provide the younger child with access to French language speech therapy, improve the children’s access to educational facilities, and improve their housing situation….”
25The motion judge then turned to the question of whether it would be in the children’s best interests to allow the move. In doing so she set out the factors to be considered as described in s. 16 of the Divorce Act and the additional factors set out in s. 16.92 of the Act, which deals with relocation.
26First, she considered the children’s needs and found that those needs dictate that they continue to reside with their primary caregiver, the mother. She also found that their schooling, medical (particularly the youngest child’s needs for speech therapy), educational and housing needs could be better met in Winnipeg. In doing so she noted that there was little evidence before her about the father’s new home, which was outside of the older child’s school catchment area.
27Second, she considered the nature and strength of the children’s relationships with their parents, grandparents and any other people who played an important role in their lives. In this regard she found that it was in the children’s best interests to stay together. She also found that “[t]he children have a loving relationship with both parents.” Finally, she noted that the children have a “strong relationship with their cousins in Winnipeg”, but found that the children’s relationships with their extended family in Winnipeg were not more important than their relationship with their father.
28The motion judge canvassed the remaining relevant factors and made the following significant findings:
(i) Both parents were willing to support the development and maintenance of the relationship with the other parent;
(ii) The mother has been the primary caregiver for the children;
(iii) The children’s connection to their linguistic and cultural heritage would be enhanced by the move to Winnipeg, as the motion judge accepted the mother’s evidence that it is important in the Black African-Guinean culture to be raised surrounded by family and the parents have no extended family members in Toronto.
(iv) The younger child will be able to attend a French language preschool in Winnipeg (in contrast to her English daycare in Toronto) and would receive care from her extended French speaking family;
(v) The mother’s work hours would be shorter in Winnipeg, giving her more time to care for the children;
(vi) while the mother has had mental health issues, she has received treatment for those issues and the father conceded she has been a great mother to the children;
(vii) Both parties are able to communicate and cooperate effectively on issues affecting the children;
(viii) While there are allegations of family violence, there is no evidence that either party was or is violent towards the children;
(ix) The father has a hybrid work schedule which gives him flexibility to travel to Winnipeg and the mother has made reasonable proposals for parenting time with the father in Winnipeg, including contributing to the father’s expenses to travel to Winnipeg and providing him with accommodation while he is in Winnipeg
29After reviewing the relevant factors, the motion judge found that the mother had met her burden of proving that the relocation was in the children’s best interests and the father had not met his burden of proving that the disadvantages of the location would outweigh its advantages.
The Motion Judge’s Order
30The motion judge’s order included the following:
(i) The mother is given permission to relocate with the children to Winnipeg on a temporary basis.
(ii) The mother is to pay for the reasonable costs of the father’s travel to and from Winnipeg so that he could exercise in-person parenting time with the children every alternate weekend or, if the father chooses, for one week a month. If the father is unable to travel to Winnipeg for his in-person parenting time, the mother is to provide make up time in the summer, either in July or August.
(iii) The mother is to provide and pay for reasonable accommodation for the father to exercise his parenting time in Winnipeg, which could include a family-owned condominium.
(iv) The mother is to pay the children’s travel costs and is to accompany them during their travel to and from Toronto so that they can spend one month with the father in the summer.
(v) The father is to have parenting time in Toronto over the Thanksgiving long weekend in October, the Remembrance Day long weekend in November and for one week over the Christmas vacation in December. The mother is to accompany the children to and from Toronto to facilitate this parenting time.
(vi) The mother is to facilitate and provide the father with video access to the children for up to 30 minutes daily.
The Stay
31On February 28, 2025, Faieta J. granted an interim interim stay of the motion judge’s order pending the hearing of a stay motion scheduled for March 7, 2025.
32On March 7, 2025, Shore J. stayed the interim order pending the hearing of the motion for leave to appeal.
33On March 28, 2025, leave to appeal was granted and the stay was extended pending the hearing of the appeal. This court extended that stay pending the release of our decision on the appeal.
Issues Raised
34The first issue set out by the Divisional Court in its endorsement granting leave is whether the motion judge erred in adjudicating the mobility issue on an interim basis, rather than as a motion for summary judgment or the trial of an issue. The Appellant concedes that the motion judge did not err in adjudicating the issue on an interim basis. Thus, there is no need for the court to address this issue.
35The second issue set out by the Divisional Court in its leave endorsement is whether the motion judge erred in the test she applied and in the process she followed. The Appellant contends that she made the following errors:
(a) The material change test set out in Gordon v. Goertz is a conjunctive one. All three parts of the test must be met, and the motion judge did not address the third part of the test – namely whether the claimed change (the mother’s new job in Winnipeg) was known or ought to have been known at the time the order Horkins J. was made. In this regard, the Appellant also argues that the mother’s acceptance of the new job in Winnipeg after Horkins J. had made her order was a form of self-help, which the court should not have sanctioned.
(b) The motion judge erred in finding that there was no genuine issue for trial. First, according to the Appellant, the motion judge should have exercised caution before applying the principles set out in the Plumley v. Plumley case, which was decided in 2014, before the 2021 amendments to the Divorce Act relating to relocation and before the Supreme court of Canada’s decision in Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, which makes it clear that the only question to consider is whether the relocation is in the best interests of the child. Second, the motion judge erred in using the summary judgment test when the motion was not a motion for summary judgment.
(c) The motion judge erred in failing to assess the impact of relocation on the children’s relationship with the father.
(d) The motion judge erred in the process that she followed. According to the Appellant, the matter should have been put over to a full trial. There was no urgency, as the father could have cared for the children pending trial. Further, the motion judge made a “process error” when she released her substantive order “with reasons to follow”. According to the Appellant, the written reasons that were delivered were such that a reasonable person would apprehend they were an after-the-fact justification for the decision, rather than an articulation of the reasoning that led to the decision.
36The third issue to be decided, according to the leave endorsement, is how the mobility issue ought to be addressed going forward in light of the answers to the first two issues. According to the Appellant the motion judge’s order should be set aside, all issues between the parties including the relocation issue should be determined at an expedited trial before a different judge and the arrangements for the children’s living arrangements pending trial should be determined at a one-hour motion. According to the Respondent mother, the appeal should be dismissed.
Standard of Review
37In Barendregt v. Grebliunas, supra, the Supreme Court of Canada, stated the following about the scope of appellate review in family law cases:
100The scope of review in family law cases is narrow. Determining a child’s best interests is always a fact-specific and highly discretionary determination.
103Therefore, an appellate court may only intervene where there is a material error, a serious misapprehension of the evidence, or an error in law.
104Absent an error of law or a palpable and overriding error of fact, deference is vital. Appellate courts must review a trial judge’s reasons generously and as a whole, bearing in mind the presumption that trial judges know the law. [Citations omitted.]
Analysis
Did the motion judge err in the test that she applied or in the process that she followed?
The motion judge did not err in failing to apply the third part of the Gordon v. Goertz test
38In Barendregt the father argued that the trial judge had erred in his application of Gordon to the relocation application before him. In dealing with this argument the Supreme Court made the following points about Gordon and the role that it plays in the current statutory regime:
“[T]he Gordon framework is flexible by design; it is not an unyielding set of rules”: at para. 94.
“At the time Gordon was rendered, the Divorce Act and provincial family legislations did not contain any provisions pertaining to relocation. In 2019, Parliament amended the Divorce Act to provide a statutory regime that governs relocation applications…. Subject to some notable exceptions, the Divorce Act and these provincial statutes largely codified this Court’s framework in Gordon. As I will explain, where they depart from Gordon, the changes reflect the collective judicial experience of applying the framework for over 25 years”: at paras. 107-108.
The approach to mobility issues is different when there has been a pre-existing judicial determination with respect to a parenting arrangement. In that case, there is a need to vary the initial order, which requires satisfying the usual test for variation, namely, demonstrating a material change in circumstance. However, “[e]ven where there is an existing parenting order, relocation will typically constitute a material change in circumstances and therefore satisfy the first stage of the Gordon framework”: at para. 113. Therefore, “the first stage of the Gordon inquiry will likely not raise a contentious issue. That said, when the relocation issue arises by way of a variation application, a court must consider the findings of fact of the judge who made the previous order, together with the evidence of new circumstances”: at para. 114.[In this case, Horkins J.’s order was made at a case conference and there were no findings of fact other than those contained in the order itself.]
39In this case the Appellant submits that the motion judge should have considered whether it was foreseeable that the mother would obtain the job she did in Winnipeg, given that it was known at the time of Horkins J’s. order that she was applying for jobs there.
40This argument is based on a misunderstanding of the third branch of the threshold requirement of material change as set out in Gordon, which the Supreme Court explains at paras. 15 to 16 of its reasons in that case:
15The third branch of the threshold requirement of material change requires that the relocation of the custodial parent not have been within the reasonable contemplation of the judge who issued the previous order. If a future move by the custodial parent was considered and not disallowed by the order sought to be varied, the access parent may be barred from bringing an application for variation on that ground alone. The same reasoning applies to a court-sanctioned separation agreement which contemplates a future move. In such cases, the application for variation amounts to an appeal of the original order.
16Conversely, an order which specifies precise terms of access may lead to an inference that a move which would “effectively destroy that right of access” constitutes a material change in circumstances justifying a variation application. [Citations omitted.]
41In this case the order of Horkins J. neither prohibited nor sanctioned the mother’s move to Winnipeg. It just specified that any such move could not be made without a court order. It also provided for a process for bringing the issue to court before trial – namely requesting “an attendance at TBST court to have the hearing of the relocation issue scheduled.” It did, however, put in place a parenting arrangement that could no longer remain in place if the mother moved to Winnipeg. This, according to Gordon, means that the change is material. The motion judge was aware of this as, after citing the test in Gordon for material change, she also cites Gordon for the following proposition: “Relocation is considered a ‘change’ that materially affects the circumstances of the children and the ability of the parent to meet them.” She recognized what the Supreme Court confirmed in Barendregt, which is that the threshold requirement of demonstrating a material change in circumstances is usually satisfied in relocation cases.
42With respect to the father’s allegation that the mother’s acceptance of a job in Winnipeg was the exercise of a self-help remedy, the motion judge dealt with the same submission and found as follows:
84I reject the Father’s characterization that the Mother has exercised a self-help remedy and sabotaged her job in Toronto. The record shows that the Mother has complied with court orders and has been transparent to her employer about the litigation. The Mother specifically sought permission to work remotely from Toronto until the end of February 2025, with the risk of losing her position. The Mother has clearly tried to obtain a job in her field in Toronto but the demotion to a call centre in Toronto has disadvantaged her job prospects in Toronto.
43These are findings of fact which contain no palpable and overriding error.
The motion judge’s finding that there was “no genuine issue for trial” does not constitute a basis for setting aside her order
44I agree with the Appellant that the factors set out in Plumley, which was decided in 2014, have been overtaken by the amendments to the Divorce Act. The reasoning in Barendregt makes this clear. I also agree with the Appellant that the “no genuine issue for trial” test is a summary judgment test and not the test on an interim motion.
45Section 16(1) of the Divorce Act provides that “[t]he court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.” Section 16(2) makes it clear that one form of parenting order is an interim order.
46The motion judge did canvass all of the factors set out in the Divorce Act, relating to the best interests of the children, including the factors that are relevant to relocation decisions. Her analysis of those factors discloses no error of law or palpable and overriding error of fact. Given this, I find that there is no need to set aside the motion judge’s decision because of her reference to the Plumley decision.
47I pause here to note that Plumley’s reference to the need to find that there is no genuine issue for trial is a recognition of the fact that relocation decisions are hard to reverse at trial without causing major disruption to the children. For that reason, as the panel granting leave in this case appears to have implicitly recognized, they have an air of finality which makes it appropriate to consider whether they should be decided by way of a process designed to make final decisions, such as a summary judgement motion or a trial of an issue. In this case, as the motion judge noted, there was an expanded process that allowed for the giving of oral evidence and cross-examination on that evidence. However, it was still a process aimed at making an interim, not a final decision.
The motion judge did assess the impact of the relocation on the children’s relationship with the father
48There is no merit to the Appellant’s position that the motion judge did not assess the impact of the relocation on his relationship with the children. Her reasons disclose that she was acutely aware of this impact and that is why her order incorporated provisions designed to lessen that impact, including provisions for the mother to pay the expenses associated with the father’s parenting time in Winnipeg and to provide him with accommodation to facilitate that parenting time. She also provided for makeup parenting time in the summer if the father was unable to exercise his parenting time in Winnipeg. The father asserts that the motion judge’s reasons do not explicitly state that she recognized that video contact during the week is not the same as in-person parenting time and that exercising parenting time in another city is not the same as having parenting time in one’s own home. In my view, these facts are obvious and thus there was no need to explicitly set them out.
The motion judge made no “process” errors
49The Appellant’s argument that the motion judge erred when she did not put the matter over to trial and allow the children to live with the father if the mother moved to Winnipeg pending trial is essentially a submission that the motion judge should not have made an order allowing for relocation on an interim basis. As set out above, the motion judge’s decision allowing the children to be relocated on an interim basis discloses no error that would justify appellate intervention. She specifically dealt with the submission that the children could remain with their father pending trial and found that, given their connection with their mother, this would not be in their best interests.
50I also reject the submission that the motion judge erred when she made a decision allowing the children to be relocated to Winnipeg, with reasons to follow. In urgent situations judges frequently proceed in this way. It is not ideal for a number of reasons, including that it is harder for the losing party, and it makes the task of judges who must make decisions such as stay decisions more difficult. However, this decision was not an easy one and, as the motion judge’s reasons disclose, it required the careful canvassing of a number of factors. Writing such a decision takes time.
51There is also no merit to the submission that a reasonable person would conclude that the reasons released were simply an ex post facto justification for the decision that the motion judge had already made. To the contrary, the reasons do what reasons are meant to do – they explain in detail why the motion judge made the decision she did.
How should the relocation issue be addressed on a go forward basis?
52The decision at issue is an interim one. It is in the children’s best interests that a final decision be made as soon as possible.
Disposition
53For these reasons, the appeal is dismissed, the stay is lifted, and an order will issue that the matter of whether the children can be relocated to Winnipeg on a final basis will be determined by way of an expedited trial of an issue by a different judge. The mother, as the successful party, seeks no costs for the stay or the leave motion. She does seek costs of the appeal, fixed in the amount of $2,288.25, to which the father does not object. It is so ordered.
Sachs J.
I agree _______________________________
Reid J.
I agree _______________________________
Nakatsuru J.
Released: May 28, 2025
