Ontario Superior Court of Justice

Court File No.: FS-24-00043056-0000
Date: 2025-03-12

Between:
Fatoumata Diaraye Bah (Applicant)
and
Mamadou Diouma Diallo (Respondent)

Applicant Counsel: Maria Joachim
Respondent Counsel: Brendan McDermott
Heard: February 13 and 19, 2025
Justice: J.S. Shin Doi

Reasons for Decision on Temporary Motion to Relocate

Introduction

[1] This is a motion brought by the Applicant (the “Mother”) where she seeks to relocate the parties’ two children from Toronto to Winnipeg, on a temporary basis. The motion was adjourned in November 2024 at the request of the Respondent (the “Father”). I heard the adjourned motion on February 13 and 19, 2025 which included viva voce evidence and cross-examinations.

[2] I reserved my decision at the conclusion of the motion. On February 24, 2025, five days after hearing the motion, I made an interim bottom-line decision authorizing the Mother to relocate with the children from Toronto to Winnipeg and parenting terms, “with reasons to follow”. I released the bottom-line decision, “with reasons to follow” due to the urgency of the situation. The Mother required a decision before the end of February 2025 because she was required to attend work in-person in Winnipeg. She had already requested and obtained one extension of her in-person work from her employer until the end of February 2025.

[3] My reasons are set out below.

I. Background Facts

[4] The parties were married on March 18, 2017, and separated on September 1, 2023. The parties have two children, ages 7 and 3, born in Toronto.

[5] The Father is originally from West Africa-Guinea and immigrated to Philadelphia, Pennsylvania as a student before moving to Toronto in January 2017 to be with the Mother. The parties had a long distance relationship before marrying in 2017. The Mother is also from West Africa-Guinea and immigrated to Winnipeg when she was 2 years old. The Mother was raised in Winnipeg and has extended family in Winnipeg. The Mother moved to Toronto for work.

[6] The older child attends school in Pickering and the younger child attends daycare in Scarborough.

[7] There is a history of family violence and police involvement with the family prior to separation.

[8] Since the date of separation, the children have resided primarily with the Mother in an apartment in Scarborough. The Mother has managed the children’s daycare, school, extra-curricular activities except soccer, medical appointments, and health.

[9] From September 2023 to January 2025, the Father resided in a room that he rented in a house in Ajax. As of January 2025, the Father lives in a 4-bedroom apartment in Whitby that he purchased. For 18 months, the Father had overnight visits with the children at the Mother’s residence when the Mother was travelling. The Father also had overnight parenting time when he took the children to Ottawa to visit his sister in 2024. The Father was not able to have overnight visits with the children at his home because he was living in a room. On a regular basis, the Father had parenting time with the children on Wednesday and Friday after school/daycare until 7 pm and every other Saturday and Sunday from 10 am to 7 pm. The Father states that he would stay until 11 pm a few times at the Mother’s home. The Father’s current parenting schedule is alternate weekends from Saturday morning at 10 am returning the children to school/daycare on Monday morning and every Wednesday and Thursday from afterschool/daycare until 7 pm, and attending the children’s extracurricular activities.

[10] The Mother is employed as a bilingual HR generalist at a health network located in Winnipeg. She was offered the position in November 2024 and commenced the position virtually in January 2025. The Mother is required to work in-person in Winnipeg, as of the end of February 2025.

[11] The Mother was formerly a bilingual HR generalist for a hardware company located in Toronto but accepted a demotion at the company as a call center Quality Assurance Associate in May 2024. The Mother states that she applied for the demotion because she needed a remote and flexible work schedule to accommodate the children’s schedule.

[12] The Father is employed as a senior software development engineer at a media company in Ontario. He has a hybrid work arrangement, two weeks of vacation, and paid time off.

[13] The Mother states that she advised the Father of her intent to move to Winnipeg on April 25, 2024.

[14] The Mother issued the within Application on June 5, 2024. The Mother sought primary residence, decision-making responsibility, child support, and relocation to Winnipeg.

[15] The Mother served and filed a Notice of Relocation on June 10, 2024 and the Father served and filed an Objection on June 19, 2024. The Father objected to relocation because a change in the children’s habitual residence would diminish his parenting time, ruin their connection to their habitual residence, deny a relationship with the Father, and would not benefit the children.

[16] The parties attended To Be Spoken To court on August 19, 2024. The court noted that the parties had been separated for over 1 year and there was no parenting schedule or fixed amount of child support in place. The Father had exercised irregular parenting time during the week and the Father did not pay child support consistently or in a fixed amount. The court ordered an urgent case conference on October 3, 2024.

[17] On October 3, 2024, the parties attended the urgent case conference to discuss various parenting issues concerning the children, and the Mother’s request to relocate with the children to live in Winnipeg. Justice Horkins ordered that “the Mother shall not relocate with the children to Winnipeg or elsewhere without a court order.”

[18] Justice Horkins also ordered that the Father shall have parenting time on alternating weekends; Saturday 10 am to 7 pm and Sunday 10 am to 7 pm; on Wednesdays and Thursdays after school/daycare from until 7 pm. The Father commenced overnight parenting time with the children on alternate weekends in January 2025.

[19] On November 21, 2024, the Mother brought a motion to relocate with the children from Toronto to Winnipeg. The Father sought to adjourn the motion to a hearing where the Mother’s evidence may be subject to cross-examination. Justice Sharma adjourned the Mother’s motion at the request of the Father and ordered a one day long motion with cross-examinations on the issue of relocation.

[20] The long motion with viva voce evidence and cross-examinations was heard over two days on February 13 and 19, 2025.

II. Issues

[21] The issues are:

1. Whether the Mother met the onus of establishing a material change in circumstances to justify a temporary relocation?
2. 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?
3. 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.)?

III. Analysis

1. Material Change in Circumstances

[22] The Mother has met the onus of establishing that there is a material change in the circumstances to justify a temporary relocation.

[23] Since the parties are married, the applicable statute that governs parenting is the Divorce Act. Section 16.93 of the Divorce Act sets out which parent has the burden of proof in a relocation case. Given that the Mother intends to relocate with the children, she has to prove that it is in the children’s best interests to relocate as she proposes; s. 16.93(1) of the Divorce Act. The burden of proof then shifts to the Father, since he objects to the relocation, to prove that the relocation of the children would not be in the children’s best interests: s.16.93(2) of the Divorce Act.

[24] The party seeking the variation must establish that there has been a material change in the circumstances of the affected child that has “altered the child’s needs or the ability of the parents to meet those needs in a fundamental way… . The question is whether the previous order might have been different had the circumstances now existing prevailed earlier [citations omitted]”: Gordon v. Goertz, para 12. In paragraph 13 of Gordon, the Supreme Court of Canada, noted:

It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (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.

[25] The test for a material change in circumstances set out in Gordon remains the threshold requirement to vary a parenting order: see Persaud v. Garcia-Persaud, 2009 ONCA 782. “Relocation is considered a ‘change’ that materially affects the circumstances of the children and the ability of the parent to meet them” (Gordon v. Goertz).

[26] The 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.

[27] The Father’s position is that the Mother has sabotaged the circumstances in Toronto by quitting employment, accepting employment elsewhere, or attempting to leave a reasonable rental agreement, and is forcing the move to Winnipeg. The Mother’s need and intention to leave her call centre job and accept employment in HR elsewhere could not have been a surprise to the Father.

[28] Given the job for the Mother in Winnipeg as well as the availability of French language speech therapy and housing for the children in Winnipeg, I find that the Mother has met the threshold of proving that there is a material change in circumstances.

2. Compelling Case for Temporary Relocation

[29] I am satisfied that this is a compelling case to justify the proposed relocation on a temporary basis prior to a trial because the Mother has primary residence of the children, the Mother is employed in a higher paying job in Winnipeg that has career growth and potential for increased earnings, and the employer requires her to work in-person in Winnipeg. I am also satisfied that her in-person work in Winnipeg is necessary and very important to her career. Success in the Mother’s career will be important and impact on the children’s best interests. Moreover, the younger child would have access to French language speech therapy in Winnipeg that is not immediately accessible in Toronto, the children would have better housing, the children would have a secure school with more facilities, and the children would be raised in a Francophone environment with their extended family.

[30] In Plumley v. Plumley, para 7, Marshman J. identified the following as important factors to consider in deciding a mobility issue on an interim basis:

1. 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.
2. 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.
3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial.

[31] In Boudreault v. Charles, 2014 ONCJ 273, para 26, Sherr J. set out principles to consider on a temporary relocation motion:

The following are additional principles regarding temporary relocation cases:

a. The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move.

b. Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed.

c. Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. In such cases, the court requires a full testing of the evidence.

d. Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result.

e. Courts will be more cautious in permitting a temporary relocation in the absence of a custody order.

f. Courts will permit temporary relocation where there is no genuine issue for trial, or where the result would be inevitable after a trial. [T]he importance of the father’s contact with the child could not override the benefits that the move would have on the child.

g. In assessing [the] three considerations in Plumley, the court must consider the best interest factors set out in subsection 24(2) of the Children’s Law Reform Act (the Act) and any violence and abuse in assessing a parent’s ability to act as a parent as set out in subsections 24(3) and (4) of the Act as well as the leading authority on mobility cases, Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.) [n.b., as summarized above].

h. These principles apply with necessary modifications to an initial consideration of custody and access and not just to a variation of access.

i. The financial security of the moving parent is a relevant factor in mobility cases.

j. Several cases have recognized that requiring a parent to remain in a community isolated from his or her family and supports and in difficult financial circumstances will adversely impact a child. The economic and financial benefits of moving to a community where the parent will have supports, financial security and the ability to complete their education and establish a career are properly considered in assessing whether or not the move is in the child’s best interests. See MacKenzie v. Newby, supra, paragraph 53, where in paragraph 54, Justice Roselyn Zisman also accepted the following passages from Lebrun v. Lebrun, [1999] OJ No 3393 (SCJ) where the court wrote at paragraphs 32-34 as follows:

32. The children’s need for shelter, food and clothing which could be provided by adequate earnings by the mother must take priority over the disruption of a move, and reduced contact with the father and his family. The intellectual and emotional flowering of these children cannot occur until their basic physical needs are met.

33. The economic realities require that the mother be free to pursue employment which will permit her to escape the welfare rolls. I am confident she will manage the move in a way which promotes the children’s best interests.

34. An order restricting the residence of the children would, as in Woods v. Woods, 110 Man R. (2d) 290 (CA) condemn the mother and children “to a life of penury with a dissatisfied [mother] bereft of work and dignity. The alternative is to empower the [mother] to improve their lives from both a material and psychological standpoint.” While the security of the positions offered to the mother cannot be assured, I am satisfied that the prospects of good, full-time employment are much better in southern Ontario. Leave is granted to the mother to move the residence of the children within Ontario.

k. There is case law that says that if a primary caregiver is happier, this will benefit the child.

l. The level of co-operation that the moving parent will provide in facilitating access to the other parent is also a relevant consideration in a mobility application.

[32] In this case, there does not seem to be a genuine issue for trial that would prevent a temporary order for relocation. 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.

[33] There are compelling circumstances that dictate that the move be allowed. The move will result in a financial benefit to the family which will be lost if the matter waits for trial. The Mother’s new job offers a salary increase of 10%, $76,000 per year, and a 5% bonus, a RRSP matching program, an increase in health care spending, an increase in orthodontic expenses and an increase in paramedical fees, and a company cellphone. The Mother has also been offered $3,000 in relocation assistance to cover moving expenses and airfare. While the financial benefits may be modest, the job offers career growth and opportunity for increased financial benefit. Also, her increased salary would go further in Winnipeg than in Toronto given the cost of living. The economic and financial benefits of moving to Winnipeg where the Mother will have supports, financial security, and the ability to re-establish a career in her chosen area are properly considered.

[34] Requiring the Mother to remain in Scarborough isolated from her family and supports in Winnipeg, and in difficult financial and living circumstances in Toronto will adversely impact the children. There is clear evidence in the record that the Mother faced mental health issues and had to travel to Winnipeg for family support. There is also evidence in the record that the Mother’s family in Winnipeg would continue to support her and the children in Winnipeg. The Mother would be happier and this will benefit the children. The Mother must be given an opportunity to improve their lives from both a material and psychological standpoint.

[35] An order prohibiting the temporary relocation of the children would result in the children having a dissatisfied Mother. There is evidence that the Mother applied for over 100 jobs before obtaining the job in Winnipeg but was only interviewed for call center jobs instead of HR jobs.

[36] Further, 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, as discussed in more detail below.

3. Best Interests of the Children

[37] I am satisfied that it is in the best interests of the children to allow the proposed relocation based on the factors listed in the Divorce Act.

[38] Section 16 sets out the applicable provisions on parenting and relocation. The court is required to take into consideration only the best interests of the child in making a parenting decision and must consider certain factors. Section 16 reads as follows:

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(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 spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(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 cooperate, 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 cooperate 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.

[39] A list of best interest factors that apply to relocation decisions is set out in s. 16.92 of the Divorce Act, which provides:

Best interests of child — additional factors to be considered

16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;

(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

[40] In authorizing a relocation of a child of the marriage, the court may apportion costs relating to the exercise of parenting time by the person who is not relocating as between that person and the person who is relocating the child: s. 16.95 of the Divorce Act.

(The decision continues with a detailed application of these factors to the facts of the case, as set out in the original reasons.)

Conclusion

[103] I recognize that courts should be mindful and “cautious before permitting temporary relocations and should do so only when there are clear and compelling reasons to do so based on a clear evidentiary record” (Tariq v. Khan, 2022 ONSC 1167). There are clear and compelling reasons to do so in this case based on the clear evidentiary record.

[104] I am satisfied that it is in the best interests of the children for the Mother to relocate with the children to Winnipeg because the Mother has primary residence of the children, the Mother has a career opportunity in her chosen field of HR in Winnipeg which offers career growth and increased financial benefits that would benefit the children, the children would have better housing in Winnipeg within the Mother’s budget, the Mother has extended family in Winnipeg who can help with childcare, the younger child would be able to obtain bilingual speech therapy services immediately in Winnipeg instead of being on waitlists in Toronto, the older child would attend an elementary school and be protected from high school students who may act inappropriately, the children would have access to Francophone services and be raised in a bilingual environment, the children would be able to participate in religious programs close to their home in Winnipeg, the children would be able to celebrate holidays with their extended family, the older child would be able to attend a new elementary school with facilities that the current older school in Toronto does not have, the older child can attend a French school within that school’s catchment area and not worry about continuous enrollment in a French school outside of the catchment area, and the younger child can have access to French language preschool programs and also be cared for by French speaking family members.

[105] The impact of the move on the children’s parenting time with the Father can be minimized and managed by virtual parenting time with the Father during the week and in-person parenting time in Winnipeg or Toronto for the Father. This impact does not weigh against granting the Mother authorization to relocate to Winnipeg on a temporary basis.

[106] The Father may travel to Winnipeg, at the Mother’s cost, to exercise his overnight parenting time, maintaining the current parenting schedule or for block time during the week as offered by the Mother. The Father may also exercise in person parenting time one month in the summer at the Mother’s cost. It is important for the Mother to consult with the Father about whether he wishes to travel every other weekend or have a block of time per month, and which summer month is best for the children to travel to Toronto/Whitby.

[107] Since the Mother seeks a temporary order for relocation until trial, there will be an opportunity to monitor and assess the relationship between the Father and the children so that their relationship can be maintained. A trial should be scheduled as early as possible for a final resolution on the issue of relocation.

Order

[108] I grant an interim order on a without prejudice basis as follows:

(a) The Mother is authorized to relocate with the children from Toronto to Winnipeg on a temporary basis.

(b) The Mother shall facilitate the parenting time set out in this order for the Father with the children in Winnipeg and in Toronto.

(c) 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 in Winnipeg on alternate weekends or such other time as the parties may agree. The Father’s current parenting time schedule on alternate weekends shall be continued. The Father’s current parenting time is on alternate weekends from Saturday morning at 10 am returning the children to school or daycare on Monday. The Father may adjust the start and return times in accordance with his travel schedule, in consultation with the Mother. The Mother shall provide block parenting time of one week per month in Winnipeg to the Father if the Father chooses instead of the alternate weekends, for the months of April, May, June, September, October, November, and December 2025. If the Father is unable to travel to exercise his in-person parenting time, the Mother shall provide make up time in the summer, either in the month of July or August, 2025 as the Father may elect.

(d) 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. The Mother may provide her family-owned condominium unit in Winnipeg as reasonable accommodation for the Father.

(e) The Mother shall arrange and pay for the return travel costs of the children from Winnipeg to Toronto in the summer. The Mother shall consult with the Father about his preference for parenting time in Toronto for the month of July or the month of August, 2025, and accompany the children during their travel.

(f) The Father is entitled to parenting time in Toronto for Thanksgiving long weekend in October, the Remembrance Day long weekend in November, and one week over the Christmas Break in December. The Mother shall travel with the children to Toronto for these visits.

(g) 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.

(h) Each party shall provide their residential address to the other as well as update the other party on any change to their personal contact information for cell phone or email communication. The Father shall also provide the Mother with any and all addresses where he will be exercising his parenting time with the children in Winnipeg on any parenting visit under this order.

(i) This schedule may be reviewed by the court at the parties’ request, 30 days, 60 days, and 90 days after the relocation.

[109] The parties may request a conference with me to discuss the implementation, timing, and details of this Order and the involvement of any experts who may monitor and assess the children during the temporary relocation to ensure that the relationship between the children and the Father is maintained. The parties may also request a conference with me to discuss next procedural steps and fix a timetable to ensure that this matter is ready for trial as early as possible so there is a final resolution.

[110] If the parties are unable to agree on costs, written submissions may be made, limited to two pages plus a Bill of Costs and any offers to settle. The Mother shall have 15 days to serve and file her submissions and the Father shall have 10 days thereafter to respond.

Justice J.S. Shin Doi
Released: March 12, 2025