Alix Nenniger

The appellant mother wrongfully removed the parties' three children from their habitual residence in Nigeria to Ontario.

The trial judge declined jurisdiction under s. 23 of the Children's Law Reform Act and ordered the children returned to Nigeria under s. 40, finding no serious harm would result.

On appeal, the mother argued the trial judge erred in interpreting the serious harm test, Nigerian law, and the requirements of s. 40.

The Divisional Court dismissed the appeal, holding that the trial judge made no palpable and overriding errors and correctly applied the law regarding jurisdiction and return orders.

The Children's Aid Society sought an order for extended society care for a two-year-old child with global developmental delay, arguing the mother was incapable of parenting due to a severe non-verbal learning disability.

The society relied heavily on a parenting capacity assessment by Dr. McDermott.

Following a voir dire, the court ruled the assessment inadmissible, finding it lacked threshold reliability, relied on invalid psychological testing, and the assessor lacked independence.

While the court found the child in need of protection due to the mother's need for support and the child's special needs, it concluded the society had not made adequate efforts to assist the mother or give her a meaningful opportunity to parent.

The court ordered the child returned to the mother's care subject to society supervision, following a graduated transition period.

Appeal from a trial judge's order granting sole custody of two children to their aunt and uncle (the respondents) with limited access to their biological mother (the appellant).

The trial judge applied the best interests of the child test under the Children's Law Reform Act.

The Court of Appeal dismissed the custody appeal but allowed the access appeal, finding the trial judge erred in his insufficient analysis of the children's views and preferences, familial relationships, and emotional ties.

The court increased the mother's access to eight weeks during summer and entire school breaks at Christmas and March.

The court also deleted a restrictive religious clause that prohibited the mother from including the children in activities contrary to the respondents' Jehovah's Witness beliefs, finding it contrary to Charter values and the mother's right to her own beliefs and lifestyle.