CITATION: Agboola v. Unoh, 2017 ONSC 3572
DIVISIONAL COURT FILE NO.: DC-16-771
DATE: 2017-06-08
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERER, TRIMBLE and SHEARD JJ.
B E T W E E N:
AYODELE MABOLAJI AGBOOLA
Michael J. Stangarone, for the Appellant
Appellant
- and -
EMMA SAMUDA UNOH
Stephen Louis Nagy, for the Respondent
Respondent
HEARD: at Hamilton, June 8, 2017
ORAL REASONS FOR JUDGMENT
SHEARD J. (Orally)
[1] The Appellant father appeals from the Judgment of J.W. Scott J., dated October 31, 2016 dismissing the Appellant’s application, brought for the return of the parties’ child to Colorado, pursuant to the Convention on the Civil Aspects of International Child Abduction (commonly called “The Hague Convention”).
[2] The application Judge determined that the Respondent mother’s decision not to return the child to Colorado on and after November 2015 was a wrongful retention of the child, but that the Appellant subsequently acquiesced in that retention. Relying on The Hague Convention, which allows for acquiescence, the application Judge dismissed the Appellant’s application.
Standard of Review
[3] In Katsigiannis v. Kottick-Katsigiannis (2001), 2001 24075 (ON CA), 55 O.R. (3d) 456, the Court considered the appropriate standard of review. The Court held that the decision of the application Judge is entitled to deference and should not be interfered with unless the judge applied the wrong legal principles or made unreasonable findings of fact.
[4] The application Judge determined that, in the face of the Appellant’s requests in November and December 2015 to return the child to Colorado, the “unilateral decision” of the Respondent not to return the child to Colorado “was a wrongful retention” of the child. The application Judge determined that unless the Respondent could prove that the Appellant had “subsequently acquiesced” to the child remaining in Ontario, the child would be returned to Colorado.
[5] The application Judge noted that “there must be clear and cogent evidence of unequivocal consent or subjective acquiescence” and that the onus rested with the Respondent.
[6] In her Reasons, the application Judge considered Jackson v. Graczyk, 2007 ONCA 388, [2007] O.J. No. 2035 (C.A.), which referred to Katsigiannis and adopted the test for acquiescence set out in Re H. and Others (Minors) (Abduction:Acquiescence), [1998] A.C. 72 at 90 (H.L.):
Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to this summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.
[7] In concluding that the Appellant had “subsequently acquiesced” to the child remaining in Ontario, the application Judge considered the lengthy period of time during which the Appellant had no contact with the child. At paragraph 43 of her Reasons:
…What I am referring to is the silence of Mr. Agboola after December until May. What I am pointing to is the conduct of Mr. Agboola in not making efforts to make inquiries about or see his daughter. It was really not until his school program ended that his attention again turned back to Zoe. With the silence and his conduct, it is not unreasonable that Dr. Unoh assumed that he had consented and acquiesced to the child being in Ontario. As noted previously, both parties had envisioned that at the conclusion of Mr. Agboola’s third year at Charis they would be returning to Ontario, either permanently or temporarily. Their visas obviously would be at an end at that point as well.
Analysis
[8] There is no dispute that the onus was on the Respondent to prove on “clear and cogent evidence” that the Appellant had acquiesced to the child remaining in Ontario. The Appellant takes issue with the conclusion of the application Judge that the test was met.
[9] The Appellant submits that acquiescence may not be inferred solely from delay (Ibrahim v. Girgis, 2008 ONCA 23). In Ibrahim, the appellate court found that the application Judge misapplied the concept of acquiescence by concluding that the “wronged” parent’s delay in commencing The Hague Convention application constituted acquiescence.
[10] The facts here are different. In this case, the application Judge made it clear that she gave no consideration to the timing of the Appellant’s application under The Hague Convention.
[11] The Appellant argues that the application Judge erred by failing to consider all the evidence before her and, in particular, the evidence of attempts at reconciliation.
[12] The Appellant submits, and the Respondent agrees, that one cannot have acquiescence under The Hague Convention in the presence of attempts at reconciliation.
[13] The Appellant’s position is that the following five events demonstrate efforts at reconciliation. We do not accept this submission:
- The Appellant’s unannounced appearance at the Respondent’s home on December 25, 2015.
We do not understand how appearing at a front door at 5:30 a.m. can be an attempt at reconciliation.
- The Appellent’s email of March 22, 2016 asking “When are you coming home?”
This is a question without context. It is not inherently evidence of any attempt at reconciliation.
- The April 10, 2016 email from the Appellant’s father to the parties.
The catalyst for this email was the concern of the parents, and does not reflect any interest of the parties in reconciliation.
- The Appellant’s response of April 24, 2016 to his father’s email in which the Appellant delivers a list of psychologists.
The list of psychologists, all of whom are in Colorado, cannot be taken as supporting a bona fide attempt at reconciliation. It is telling that the Respondent did not reply and it is telling that the Appellant did not follow up.
- The May 6, 2016 email from the Respondent’s brother to the Appellant’s father.
This email stands as the Respondent’s denial of any desire for reconciliation. The Appellant considered the email as a “rebuff”, the result of which he commenced litigation.
[14] The evidence before the application Judge reasonably supported a finding that by his words and conduct the Appellant led the Respondent to believe that he was not asserting a claim for the summary return of his child; in other words, the Appellant acquiesced to the child remaining in Ontario.
[15] We conclude that the Appellant has failed to demonstrate a palpable and overriding error or a misapplication of the law to the facts.
Conclusion
[16] For these reasons, the appeal is dismissed.
LEDERER J. ENDORSEMENT:
[17] “Costs are awarded to the Respondent in the amount of $5,000.00.”
T. LEDERER J.
J. TRIMBLE J.
L. SHEARD J.
Date of Oral Reasons for Judgment: June 8, 2017
CITATION: Agboola v. Unoh, 2017 ONSC 3572
DIVISIONAL COURT FILE NO.: DC-16-771
DATE: 2017-06-08
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERER, TRIMBLE and SHEARD JJ.
B E T W E E N:
AYODELE MABOLAJI AGBOOLA
Appellant
- and -
EMMA SAMUDA UNOH
Respondent
ORAL REASONS FOR JUDGMENT
Date of Oral Reasons for Judgment: June 8, 2017