Court File and Parties

CITATION: Seroya v. Raj, 2026 ONSC 2469 COURT FILE NO.: DC-26-00000273-00ML DATE: 2026-04-27

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Jyoti Seroya, Moving Party and Mandeep Raj, Responding Party

BEFORE: Schreck J.

COUNSEL: G.M. Mackintosh, for the Moving Party R. Murthi and S. Sandhu, for the responding party

HEARD: In writing

Endorsement

[1] The moving party, Jyoti Seroya, applies for a stay pending a motion for leave to appeal from the decision of Petersen J. of the Superior Court of Justice refusing a stay of the order of McGee J of the Superior Court pending an appeal of that decision to the Ontario Court of Appeal. McGee J.’s order was for the return of the parties’ child, A., to California in the custody of his father, Mandeep Raj, the responding party, in a Hague Convention matter. The motion is dismissed for the following reasons.

[2] A. was born in California in December 2022 to Ms. Seroya (“the mother”) and Mr. Raj (“the father”). In January 2024, the mother took A. to Ontario, where she has relatives, and told the father that she would be returning. When she did not return, the father filed a petition in the California Superior Court seeking custody and the return of the child. The mother appeared in court and again expressed an intention to return to California with the child. On December 20, 2024, the Superior Court made an order granting the parties joint custody and ordering that the mother facilitate the father’s access to the child. On May 13, 2025, the court issued a further order clarifying that the father’s access could be facilitated in Ontario. The father travelled to Ontario for this purpose, but the mother refused to allow him to see the child.

[3] On January 6, 2026, the California Superior Court made an order for the return of the child to California and granting the father sole custody. Among the Court’s reasons for doing so was the mother’s refusal to comply with prior orders.

[4] On February 12, 2026, following an application by the father, McGee J. of the Ontario Superior Court of Justice made an order that the custody and parenting issues were to be determined by the California Superior Court in accordance with the Hague Convention and ordering the immediate return of the child to California, with the assistance of law enforcement authorities if necessary.

[5] The mother filed a Notice of Appeal against McGee J.’s order to the Ontario Court of Appeal. On April 2, 2026, Agarwal J. of the Ontario Superior Court issued an interim interim stay of McGee J.’s order pending the hearing of motion to stay it pending appeal. That motion was heard on April 10, 2026 by Petersen J. She dismissed the motion, vacated the interim interim stay order, and affirmed that McGee J.’s order was immediately enforceable.

[6] On April 11, 2026, the mother sought a stay of Petersen J.’s order, again in the Ontario Superior Court, which was dismissed by Shaw J., who held that she had no jurisdiction to hear it.

[7] On April 15, 2026, the mother brought motions in the Court of Appeal for a stay of both McGee J.’s order and Petersen J.’s order pending her appeal. Coroza J.A. dismissed the motion in relation to McGee J.’s order on the basis that the issue of whether the order should be stayed pending appeal had already been determined by Petersen J. and was therefore res judicata. He held that he did not have jurisdiction to stay Petersen J.’s order as it was an interim order and therefore appealable only to the Divisional Court.

[8] The test for granting a stay is well-established. The party seeking the stay must establish that (1) on a preliminary assessment of the merits of the case, there is a serious issue to be determined; (2) irreparable harm will be caused if the stay is not granted; and (3) the balance of convenience favours granting a stay: A.A. v. Z.M., 2024 ONCA 923, 504 D.L.R. (4th) 139, at para. 17.

[9] With respect to the merits of the case, the request is for a stay pending a motion for leave to appeal, so it is the merits of the motion for leave that must be considered. The test for obtaining leave to appeal an interlocutory order is stringent. Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires that the party seeking leave demonstrate either (1) the existence of conflicting decisions with respect to the legal principles at issue which make granting leave desirable; or (2) that there is good reason to doubt the correctness of the order in question and the proposed appeal involves issues of such importance that leave should be granted. The moving party relies only on the second prong.

[10] Petersen J. gave full and careful reasons for declining to stay the order of McGee J., some of which were based on factual findings made by her and by McGee J. One of McGee J.’s findings involved a rejection of the mother’s evidence that she had an outstanding refugee claim, which McGee J. based on the mother’s refusal to disclose any documentation confirming the existence of the claim. The mother has decided to disclose those documents now and rely on them to show McGee J.’s factual conclusions were wrong. Leaving aside issues of due diligence and the admissibility of such evidence, Petersen J. did not rely on McGee J.’s findings with respect to the refugee claim and was prepared to assume the existence of such a claim in making her decision.

[11] Petersen J.’s reasons demonstrate that she applied the correct legal principles and was well aware that the primary consideration was the best interests of the child. Notably, she stated that she gave serious consideration to granting a stay with liberal parenting time for the father, but decided against doing so because she had no confidence that the mother would comply with such an order. Given the history of these proceedings, that conclusion is unassailable. In my view, it is unlikely that leave to appeal will be granted, particularly where the underlying order of McGee J. is the subject of an appeal to the Court of Appeal. I therefore conclude that the moving party has not demonstrated that there is a serious issue to be determined.

[12] With respect to the questions of irreparable harm and balance of convenience, these were thoroughly considered by Petersen J. (who had concluded that there was a serious issue to be determined). I agree with her analysis and conclusions.

[13] The motion for a stay is dismissed.

[14] If the responding party seeks costs, counsel should provide me with brief submissions of no more than two paragraphs within five days. Such submissions should address the extent to which the preparation of the response to this motion duplicated work done to respond to the motion before Coroza J.A., for which the responding party has already been awarded costs. The moving party shall have five days to respond to any costs submissions with submissions of the same length.

Schreck J.

Date: April 27, 2026