Court File and Parties

CITATION: Diallo v. Bah, 2025 ONSC 1533

DIVISIONAL COURT FILE NO.: DC-25-00000151-00ML

DATE: 20250307

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Mamadou diallo, Appellant

AND:

fatoumata bah, Respondent

BEFORE: Shore J.

COUNSEL: Sarah Conlin, for the Appellant

Vanessa Lam, for the Respondent

HEARD at Toronto: March 7, 2025

ENDORSEMENT

[1] This is a motion for a stay of the interim order of Justice Shin Doi, dated February 24, 2025, permitting the respondent mother to relocate with the parties' two young children to Winnipeg, pending final determination of the issue.

[2] What is unusual about this motion for a stay is that the underlying order was rendered with reasons to follow. The reasons have not yet been released but given the nature of the motion, the appellant could not wait for the reasons to be released to bring his motion for a stay of the order. This court is therefore faced with having to determine whether to grant a stay, without having the benefit of the motion judge's reasons.

[3] For the reasons set out below, I am extending the stay, as granted by Justice Faieta, until either the motion for leave to appeal is dismissed, or if leave is granted, until either party brings a motion to either lift or continue the stay. Costs of this motion will be reserved to the panel hearing the motion for leave to appeal.

Basic facts of the case:

[4] The parties met in 2011 and were married in March 2017. They separated on September 1, 2023. They have two children of their relationship, ages 7 and 3 years old. The parties and children live in Toronto.

[5] Pursuant to a consent interim order dated October 3, 2024, and a subsequent agreement between the parties, the children primarily reside with the respondent mother.

[6] The appellant father's parenting time with the children is currently as follows:

(a) alternate weekends from Saturday morning at 10:00 AM returning the children to school or daycare Monday morning;

(b) every Wednesday and Thursday from after school/daycare until 7pm; and

(c) attending the children's extracurricular activities, including soccer games and practices.

[7] In November 2024, the mother received an offer of employment from a company located in Winnipeg, on the basis that she would relocate to Winnipeg. She quit her job in Toronto and brought a motion to relocate with the children.

[8] Without getting into the procedural details of what has transpired over the last few months, the mother's motion to relocate was heard by Justice Shin Doi over a two-day period in February 2025. Five days after the motion was heard, the motion judge released a "bottom-line decision with reasons to follow" providing for the following:

(a) The Mother is authorized to relocate the children from Toronto to Winnipeg.

(b) The Mother shall arrange and pay for the reasonable return travel costs of the Father from Toronto to Winnipeg so that he may exercise his in-person parenting time with the children on alternating weekends or such other time as the parties may agree.

(c) The Mother shall also arrange and pay for reasonable accommodation for the Father in Winnipeg so that he may exercise his in-person parenting time with the children.

(d) The Mother shall arrange and pay for the return travel costs of the children from Winnipeg to Toronto in the summer months.

(e) The Mother shall facilitate and provide the Father with video parenting time with the children for up to 30 minutes, daily or such frequency as the Father may reasonably request.

[9] The father is appealing this order and brought an urgent motion to stay the order, pending the appeal, to ensure that the children do not move to Winnipeg until the appeal has been heard.

[10] Earlier this week, Justice Faieta granted a temporary stay, pending the outcome of this motion.

Law and Analysis:

[11] The parties agree that the court has jurisdiction to grant a stay pending determination of the appeal and/or the motion for leave to appeal. Section 35 of the Family Law Rules provides:

(35) A temporary or final order may be stayed on any conditions that the court considers appropriate, (a) by an order of the court that made the order; (b) by an order of the Superior Court of Justice.

[12] Section 63.02(1) of the Rules of Civil Procedure provides:

63.02 (1) An interlocutory or final order may be stayed on such terms as are just, (a) by an order of the court whose decision is to be appealed; (b) by an order of a judge of the court to which a motion for leave to appeal has been made or to which an appeal has been taken.

[13] The case law sets out a three-part test for the court to consider when determining whether to exercise its discretion and grant a stay of the order. The considerations are as follows:

(a) That there is some merit to the appeal in the sense that there is a serious question to be determined. Where leave to appeal is required, the test is modified, in that there must be a serious question to be determined on the motion for leave to appeal;

(b) That irreparable harm would be occasioned to the Appellant if the stay was refused (although when the case involves children, the irreparable harm is considered vis a vis the children); and

(c) That on balance, the inconvenience to the Appellant if the stay was refused would be greater than the inconvenience to the Respondent if the stay was granted.

[14] As with all decisions involving children, the overriding principle is the best interest of the children when considering the factors above, not those of the parties.

[15] While an order in this case was released, this court does not have reasons to consider when determining the factors above. I am reliant on the record before me.

[16] I am also cognizant that while this was an interim order, the nature of the motion, being permission to relocate with the children, has an air of finality to it. Once the move has occurred, it is rare for a court to reverse the interim decision.

[17] Before getting into the test, I qualify this decision with the following: The motion judge had the benefit not only of the motion material (which I too have before me) but also viva-voce evidence and cross-examination. The transcripts were not available in time for this motion, although I understand they have now been received. Any future determination of whether to grant a stay will have the benefit of this information. I am limited to the record before me.

[18] I turn to the three-part test set out above.

Merit of the case:

[19] The test for granting leave to appeal an interlocutory order is set out at r.62.02(4) as follows:

Leave to appeal from an interlocutory order shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the panel hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the panel hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel's opinion, leave to appeal should be granted.

[20] Determination of whether there is merit to the appeal is difficult in this case because the reasons have not been released.

[21] Are there conflicting decisions? There are many decisions that deny relocation of children on an interim basis, but there are also several decisions that permit a parent to relocate with the children on an interim basis. These decisions are fact specific and on the record before me, I cannot find that there are conflicting decisions.

[22] Is there reason to doubt the correctness of the order and does the appeal involve matters of such importance that leave should be granted? Without reasons, it is difficult to consider the correctness of the order, without the motion becoming a rehearing of the underlying motion.

[23] However, the appellant raises the issue of insufficiency of reasons. Are the reasons sufficient to permit meaningful and effective appellate review? To permit meaningful appellate review, a court's reasons must adequately express "what" was decided and "why" it was decided.

[24] This Court is faced with the issue in that the "why" the decision was made is not available to the court. Effectively, at this stage, an order was made without reasons. Failure to give reasons in family law cases regarding children, especially issues that have a lasting impact on the lives of the parents and children, is discouraged. The parties cannot understand the basis of the decision that has been arrived at.

[25] However, before considering the effect on this motion of not having reasons for the decision, I must also consider "what" the court ordered. I find that the order is unclear as to what has been ordered. While I am sure that this too will be expanded on when the full reasons are released, this court is left with no reasons and a partial order.

[26] The order made does not provide clarity or details one would expect to find in a parenting order. The terms are vague and subject to dispute. For example, there are not specific times set out for the father's parenting time in Winnipeg. There is no mechanism or requirement that the mother book the tickets in consultation with the father. It simply states that she shall arrange and pay. It provides that the mother is to pay for the children to travel to Toronto in the summer months but does not set out a summer schedule.

[27] Simply put, the order does not provide the usual details that are found in parenting orders (see for example the details set out in Patel v. Patel, 2023 ONSC 6307 at par 45) or that allow the order to be implemented, and for this reason I find them to be insufficient. Providing insufficient reasons is an error of law. Again, this will likely all change when the reasons are released.

[28] On the record before me, the decision is insufficient. I therefore find that the appeal has merit. Insufficiency of reasons goes beyond the case before me but affects the administration of justice. This factor weighs in favour of granting the stay.

Irreparable Harm

[29] Without having the benefit of the motion judge's reasons, I am satisfied that the children will suffer irreparable harm in their relationship with their father if they move on an interim basis. The children currently spend every Wednesday and Thursday with their father, as well as alternate weekends from Saturday morning until Monday morning.

[30] The children will go from seeing their father on a regular and frequent basis to seeing him every other weekend for a couple of days. One of the children is quite young, when more frequent parenting time is usually preferred as being in the best interest of the child.

[31] Based on the information before me, it is in the children's best interest to remain in Ontario, pending determination of the motion for leave to appeal: see for example Berry v. Berry, 2010 Carswell 10983 (Ont C.A.) at par 5.

Balance of convenience

[32] The balance of convenience favours granting a stay pending hearing of the motion for leave to appeal. As set out above, once the children leave the jurisdiction, it is unlikely that a court will reverse the decision and require the children to move back following trial: for example see Sarafin v. Sarafin 2010 ONCJ 371 at par 16. The break in the relationship between the father and the children weighs towards granting the stay.

[33] The mother created the urgency by quitting her job in Toronto prior to obtaining an order permitting the move. There was already an order in place that the mother would not be permitted to move without an order. It did not come as a surprise to her that she would be required to bring a motion and that the motion would take some time and would be opposed by the other side. I am not moved by the job waiting for her in Winnipeg in weighing this factor. The focus has to be about the best interest of the children.

[34] The difference between the mother's income in Toronto and her income in Winnipeg is nominal, especially when factoring in her obligation to pay for the father's costs of exercising parenting time with the children and is therefore not relevant in determining the best interest of the child on this motion.

[35] The court is able to offer early and expedited dates for a motion for leave to appeal, the only restriction being the time needed by the parties to complete their material.

[36] I have also considered that the delay is short. The motion for the leave to appeal can be heard as early as the week of March 24, 2025.

[37] If leave is denied, then the stay is automatically lifted. If leave is granted, then either party may bring a motion with respect to the stay (whether to continue or lift the stay) which should be determined on a de novo basis, given that by that time, the Court will have both the transcripts and the judge's reasons.

[38] Having found that:

(a) there is some merit to the appeal that the reasons and order were insufficient;

(b) irreparable harm would be occasioned to the children if they relocate pending hearing of the leave to appeal;

(c) on balance, the inconvenience to the children and the appellant would be greater than the inconvenience to the children and the Respondent if the stay was granted; and

(d) The motion for leave to appeal can be expedited and accommodated on a relatively short period of time;

I find the overall justice of this case requires an extension of the temporary stay.

[39] The parties agreed to costs of $7,500 inclusive to the successful party. However, given the terms and conditions set out below, part of the costs will be dependent on the outcome of the stay motion. For this reason, costs should be determined by the panel hearing the stay motion.

Disposition:

[40] A temporary stay of the interim order of Justice Shin Doi, dated February 24, 2025, is granted on the following terms:

(a) The motion for leave to appeal shall be served and filed within five business days of receipt of the reasons of Justice Shin Doi.

(b) The responding motion material shall be served and filed within five business days after receipt of the moving party's motion material.

(c) Upon receipt of the moving party's motion material, the court shall make all effort to schedule and expediate the hearing of the motion for leave to appeal, which can be accommodated as early as the week of March 24 and March 31, 2025.

(d) If leave to appeal is denied, the stay is lifted.

(e) If leave to appeal is granted, either party may bring back on this motion, for a de novo hearing. Given the limited record before this court, nothing in the reasons above is binding on the court hearing the motion.

(f) If the reasons have not been received by March 14, 2025, the parties are to attend a case management conference before me.

(g) If any other scheduling issues arise, the parties may contact the registrar's office to schedule a case management conference before me.

[41] Costs of this motion are reserved to the panel hearing the motion for leave to appeal in the agreed upon sum of $7,500 inclusive.

Shore J.

Date: March 7, 2025