CITATION: Onuoha v. Onuoha, 2021 ONSC 2228

COURT FILE NO.: DC 579/20 DATE: 20210319

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

D.L. Corbett, Penny and Doyle JJ.

B E T W E E N:

CHAMBERLIN CHIDI ONUOHA

Applicant / Respondent in Appeal

• and -

IRENE ONUOHA

Respondent / Appellant in Appeal

Counsel: Gloria Antwi, for the Respondent in Appeal Emily M. O’Keefe and Anthony R. Colizza, for the Appellant in Appeal

Heard by Videoconference: March 2, 2021

REASONS FOR DECISION

The Court:

1We dismissed this appeal on March 2, 2021 without calling upon counsel for Mr. Onuoha. The next day, we issued a brief endorsement to facilitate timely implementation of the order of Madsen J. (2021 ONSC 1592), and we indicated that further reasons would follow.

2Madsen J. ordered that (a) a Nigerian custody order be enforced in Ontario and the parties’ two daughters be returned to Nigeria; and (b) Ms Onuoha’s motion that the Ontario courts take jurisdiction and grant her temporary custody of the children be dismissed.

3The facts, issues and applicable legal principles are set out comprehensively in the reasons of the motions judge and we dismiss the appeal. As stated in our brief endorsement, we do not find that Madsen J. made an error in law or any overriding and palpable error of fact.

Overview

4The parties were born and raised in Nigeria. They married in 2008 in Nigeria. Their first child, Princess, was born in 2009 in Nigeria. They separated in the spring of 2009, and their second daughter, Angel, was born in December 2009, in Nigeria, after separation. The parties entered into a parenting agreement in 2012, under Nigerian law. They continued to live in Nigeria, with their children, until they were divorced on July 12, 2018, by consent order of the High Court of the Federal Capital Territory of Nigeria. The consent divorce order continued the parenting terms the parties had observed since separation some six years earlier:

a. Shared / joint custody¹ of the children;

b. Primary residence of the children with their mother during the school year and primary residence with their father during holidays (unless the children were in boarding school, in which case the parties were to share holiday times equally);

c. Each parent would have “unfettered” access to the children when the children were living with the other parent.

5On November 29, 2018, Ms Onuoha moved before the Nigerian court for an order that she be permitted to immigrate to Canada with the children. She withdrew this motion and it was never decided by the Nigerian court.

6On December 15, 2018, Ms Onuoha applied to immigrate to Canada through the “economic class” category of immigration eligibility.

7On April 23, 2019, Ms Onuoha obtained Permanent Residency status in Canada. In July 2019, she came to Canada to write her “pharmacy exam”. She says that she completed the “landing process” at that time and became a permanent resident of Canada.

8On October 19, 2019, Ms Onuoha entered Canada with the children. Immigration authorities seized the children’s passports but permitted Ms Onuoha to enter Canada with the children.

9Days after she entered Canada, Ms Onuoha brought an ex parte motion in a Nigerian court seeking sole custody of the children. She obtained the order but it was later vacated: the motion was brought in a lower court than the court that had granted the divorce order, and in a different state of Nigeria. In setting aside the ex parte order, the court ordered costs against Ms Onuoha for abuse of process.

10As of October 24, 2019, Mr Onuoha took immediate steps in Nigeria to try to have the children returned to Canada. He then brought an emergency motion in Ontario, initially returnable on January 28, 2020. Initially, he sought an order that the children not be removed from Ontario pending service of motion materials for an order for return of the children to Nigeria. Madsen J. granted the non-removal order and related relief on a temporary without prejudice basis.

11Mr Onuoha then served motion materials returnable February 12, 2020 seeking an order recognizing the consent Nigerian divorce order and an order for return of the children to Nigeria. Ms Onuoha brought a cross motion, also returnable February 12, 2020, seeking temporary custody of the children in Ontario.

12On February 12, 2020, a schedule was set for exchange of complete materials and to obtain a “Voice of the Child” report (the “VOC”) from the Office of the Children’s Lawyer (“OCL”) pursuant to the decision of the Ontario Court of Appeal in Ojeikere v. Ojeikere.² The VOC report was completed on March 21, 2020.

13By the time the VOC report was completed, ordinary operations of the Ontario courts had been interrupted by the COVID-19 pandemic. The suspension began in mid-March 2020, and as of the time of these reasons (March 2021), it has still not lifted. There have been delays resulting from COVID-19, but priority matters such as the case at bar have continued through the system.

14This case came up for scheduling at an assignment court in July 2020 and was set down for hearing as a long motion on September 30, 2020. Extensive written evidence was filed on the motion. In her factum on the motion, Ms Onuoha argued that the case should proceed by way of trial rather than motion. However, as noted by the motions judge in her reasons, this argument was not pursued during oral argument of the motion on September 30, 2020.

Standard Of Review

15This being a statutory appeal, the standard of review is correctness for all extricable questions of law and palpable and overriding error for questions of fact and mixed fact and law.

Issues on Appeal

(a) Legal Framework

16Under ss. 22, 23 and 41 of the CLRA, the courts of Ontario may not exercise jurisdiction over questions of child custody and access except in prescribed circumstances. Even though the children are present in Ontario, the courts of Ontario may not take jurisdiction over these children unless Ms Onuoha meets the test set out in CLRA s.23, which provides:

Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i) the child remains in the custody of the person legally entitled to custody of the child,

(ii) the child is returned to the custody of the person legally entitled to custody of the child, or

(iii) the child is removed from Ontario.

17The word “serious” modifies the word “harm”. In oral argument, and indeed, in some of the cases, one hears and reads of a “serious risk of harm”. That is not what s.23 says and that is not what it means. Nowhere in s.23 does the word “risk” appear. The court does not have a crystal ball, of course, and the first part of the test for s.23 speaks to the contingent nature of the court’s analysis of future events: the court must be satisfied, on a balance of probabilities, that the event (“serious harm”) will occur. Rather than speaking of the “risk”, it is perhaps better to speak of the “consequence”. In this case, using this formulation, it was for Ms. Onuoha to satisfy the motions judge that the probable consequence of returning the children to Nigeria is that they “would suffer serious harm”. A “possible consequence” is not sufficient. A “risk”, even a “serious risk” is not the test.

18We make a second observation. Subsection 23(1) is not intended to supplant the regime for refugee claims under Canadian law. The court is entitled to consider the conditions that these children will face if returned to Nigeria in the care of their mother and father, pursuant to the Nigerian consent divorce order. Generalized risk factors associated with Nigerian society may provide contextual background for the analysis, in some cases, but are not sufficient, by themselves, to establish that these children will suffer serious harm if returned home to Nigeria. Reduced opportunities, undesirable social conditions compared to conditions in Canada, and inferior economic conditions are not, by themselves, a basis for finding that the children would suffer “serious harm” if returned. Subsection 23(1) of the CLRA is not a portal through which a parent may abduct her children to bring them to Canada in search of “a better life”.

(b) Issues on this Appeal

19The issues raised by the appellant on this appeal are as follows:

(a) Did the motions judge err in failing to find that the children would suffer serious harm if removed from Ontario?

(b) Did the motions judge err by failing to give sufficient weight and consideration to the VOC and in failing to order a clinical investigation to better appreciate the views and preferences of the children and the probability that they would suffer serious harm if they are returned to Nigeria?

(c) Did the motions judge err in proceeding by way of long motion rather than ordering a trial?

(d) Did the motions judge err in making findings of credibility without hearing oral evidence?

20These issues are answered simply in this case.

Serious Harm

21The motion judge reviewed the case law on the meaning of “serious harm” under CLRA s. 23³ and cited and following the leading decision from the Ontario Court of Appeal, Ojeikere v. Ojeikere, in which Laskin J.A. states that the focus in s.23 is on the likelihood of and severity of future harm. The standard of ‘serious harm’ is “less stringent” than under the article 13(b) of the Hague Convention because, among other things, the words “intolerable situation” are not used in the CLRA.

22As noted by the motions judge, Laskin J.A. in Ojeikere listed some “potentially relevant” factors to consider when assessing the probability of “serious harm”, including:

a. Risk of physical harm;

b. Risk of psychological harm;

c. Views of the children; and

d. A parent’s claim that she will not return back home even if the children do so.

23The motions judge correctly found that the onus was on the mother to prove the probability of serious harm. Then the motions judge thoroughly reviewed the mother’s arguments that the children would probably suffer serious harm and did not accept them based on the evidence before her. These were all factual findings, amply supported by the record: we see no error in principle and no palpable and overriding error of fact in respect to this issue.

24In particular, Ms Onuoha’s arguments were as follows:

1. The father abuses the children and cannot care for them adequately as primary parent.

25The motions judge noted that, after having filed three previous lengthy affidavits and an Answer, the mother, for first time in her fourth affidavit, alleged that the father abused the children. The motions judge noted but attributed little weight to the general statement by the eldest child that she is “kinda afraid” of her father and noted that the youngest child does not mention abuse by, or fear of, the father at all. The elder child’s statement does not particularize the reason for her fear and does not describe any abuse by the father. The children were clear in stating that, if they stay in Canada, they wish to spend their holiday time with their father. The children told the OCL clinician that they love both of their parents and wish to continue to have a relationship with both of them.

26The motions judge then referred to conflicting medical reports from the parents: the mother’s doctor saying that the children looked “pale and undernourished” and the father’s doctor saying that the children are well cared for. The motions judge resolved these issues by relying on evidence from the children’s pediatrician and voluminous medical records that show that the children were healthy, well nourished and growing well.

27The facts of this case are clearly distinguishable from those in Ojeikere. In Ojeikere, the court was satisfied that the children were subject to physical abuse by their father, who had a history of physical violence towards the children, who had a short temper, who was easily vexed by the children, and who was not accustomed to caring for them on a daily basis.

28In the case at bar, the parties had been living in Nigeria with the children, as a separated couple for over six years. The courts of Nigeria were available to them if there were disagreements about care or concerns about abuse. There is no evidence that these issues were raised in Nigeria, and no basis for supposing that if they had been raised, they would not have been addressed appropriately by the courts of Nigeria.

29In short, as found by the motion judge, the record failed to establish physical abuse by the father, material neglect by the father in his care for the children, or a concern that legitimate issues of this kind could not be raised before and decided by the courts of Nigeria. The record overwhelmingly supported the conclusion of the motion judge that there was no substance to these issues, and that they had been raised for the first time after Ms Onuoha brought the children to Canada.

2. The father was physically abusive to the mother during their relationship.

30The mother did not pursue this argument before the motions judge, though it was raised in her materials before the court. The father denied such conduct.

31The motions judge noted that the parties had been separated for many years when the mother brought the children to Ontario. There was no allegation of post-separation abuse, and there was evidence that the parents communicate with each other and co-parented reasonably well. The motions judge correctly concluded that this issue did not establish that the children would probably suffer serious harm if returned to Nigeria.

3. Widespread discrimination against girls and women in Nigeria, including poor educational opportunities, political instability, and violence from terrorism, kidnapping and riots.

32The motions judge correctly found the social science evidence tendered by Ms Onuoha, to be inadmissible hearsay. This evidence was not introduced as admissible expert evidence. She found that the mother’s statements about generalized discrimination against women, and evidence of social unrest and violence in Nigeria were anecdotal and insufficient to establish that the children would suffer serious harm if returned to Nigeria.

33The motion judge carefully considered the allegation of physical discipline of the children in Nigerian schools. She found that this allegation was not established on the evidence. Both children spoke to the OCL clinician regarding what happened to them in their schools. The motion judge approached this evidence cautiously, as she was entitled to do, given the lack of strength, independence and consistency in the children’s statements on these issues. The children had met only on one occasion with the social worker who prepared the Voice of the Child report.

34Ms Onuoha’s own evidence on these issues lacked specificity, failed to establish that these concerns were raised before leaving Nigeria, and was unsupported by medical records. The motions judge was satisfied that the record did not establish concern about corporal punishment of the children that warranted further investigation, and that conclusion was available to the motions judge on the record before her.

35Ms Onuoha relied on Ojeikere to argue that returning the children to Nigeria would be inconsistent with the children’s views and preferences as set out in the VOC report. We address this argument in more detail below, since it was raised as a discrete argument on appeal. For the purposes of this first ground of appeal, as we explain more fully below, the motions judge correctly distinguished Ojeikere and found that the evidence in this case does not raise concerns that the children would suffer psychological harm if they are returned to Nigeria. This conclusion is amply supported by the record.

Conclusion

36It is evident that the motions judge did not consider this issue to be a “close call”. We agree with her. These were happy, healthy little girls, with strong relationships with both of their parents, living in a situation of some affluence and privilege within the community into which they were born in their native Nigeria. Ms Onuoha came to Canada with the children because she believed there would be better opportunity for them here. That is not a basis on which the courts of Ontario may take jurisdiction over children ordinarily resident in another jurisdiction pursuant to CLRA, s.23.

37The record does not come close to establishing a probability that these children would suffer serious harm if returned to Nigeria. The motions judge did not err in concluding that the test under s.23 of the CLRA was not met. This ground of appeal fails.

Views and Preferences of the Children

38Ms Onuoha argued that the motions judge failed to give appropriate weight to the views and preferences of the children and erred in failing to order a clinical assessment. We do not accept these arguments.

39First, we note that the question before the motions judge was not the “best interests of the children”. Unless Ms Onuoha could bring this case within s.23 of the CLRA, it would be for the courts of Nigeria, not the courts of Ontario, to decide questions related to the custody, access and place of residence of the children on the basis of their best interests.

40Laskin J.A. in Okeijere included the views and preferences of the children on a list of factors that may be considered on a CLRA, s.23 application. In Ojeikere, the children were older, in their teens. They said that they had experienced serious physical abuse at the hands of their father. The children had also lived rather itinerant lives before coming to Ontario: they had been at boarding schools and had lived in multiple countries during their short lives. Having come to Canada, they had, perhaps for the first time, lived in a settled household headed by one of their parents and they were going to school while living at home. Laskin J.A. found that the children’s views and preferences, based on (a) their fears of physical abuse at the hands of their father; and (b) the psychological harm to them of uprooting them from their settled lives in Ontario, bore on the question of whether the children would probably suffer “serious harm” if they were sent back to their father.

41In concurring reasons in Ojeikere, Miller J.A. agreed that the history of physical abuse established that the children would probably suffer serious harm if sent to live with their father. Miller J.A. did not accept that the evidence established a probability of “serious psychological harm”. Miller J.A. concluded that, although the Ojeikere children would be disappointed to be sent home, this “disappointment” would not amount to “psychological harm” within the category of “serious harm” contemplated by CLRA, s.23.

42The reasons of Laskin J.A. (Feldman J.A. agreeing) are binding on this court and on the motions judge. The distinction drawn by Miller J.A., however, is a valid one and may be relied upon in this court and by the motions judge in circumstances falling short of the facts in Ojeikere. We agree with the motions judge that the circumstances in the case at bar fall far short of those in Ojeikere and could establish no more than “disappointment”.

43The Onuoha children are much younger than the children in Ojeikere. At the time that the girls were abducted from Nigeria, they were about ten years old. They had lived their entire lives in Nigeria. Their father, whom they love, is in Nigeria. Their schools, their friends, their doctors, every social connection they have in the world, other than their mother, is in Nigeria. Their lives have been in no way itinerant, prior to coming to Canada.

44The children’s preferences, as reflected in the VOC report, is to be in their mother’s care during the school year and to spend their holiday time with their father. The motions judge had real concerns about the independence of these views, but even if these views do reflect the children’s wishes, they are of no assistance to the appellant on the CLRA application s.23.

45No further inquiry was necessary into the views and preferences of the children. Those views were identified and there was no basis for supposing that anything further would emerge from more intensive inquiry that would bear on the question of whether the children would probably suffer serious harm if returned to Nigeria

No Need for a Trial

46As noted above, the appellant did not pursue her request for an adjournment to conduct a trial during oral argument before the motions judge. However, since the issue was raised in written argument and not abandoned formally, the motion judge addressed it. She correctly noted that CLRA applications are ordinarily heard on a written record. Trial is not the norm. It is only the exceptional case that requires a trial. This, in the motions judge’s view, was not an exceptional case requiring a trial. The motions judge applied the correct test in making this determination and her exercise of discretion was reasonable.

47The motions judge acknowledged that there was competing evidence on several issues that required findings of credibility to resolve. She concluded that many of these issues were not essential to the disposition of the application, and those that were important could be resolved fairly on the paper record before her. These findings were available to the motions judge; we see no error in her resolution of these issues.

(a) The Travel Consent Document

48One issue with conflicting evidence concerned whether the father had given consent for the children to travel to Canada. As it turned out, this issue was of little materiality to the issue to which it was directed: whether the children had been abducted.

49As noted above, Ms Onuoha brought a motion in Nigeria in 2018 to obtain a court order to relocate to Canada. She did this because Mr Onuoha would not agree to it. Then Ms Onuoha dropped the motion.

50Then, she says, in January 2019, Mr Onuoha executed a consent to permit the children to travel to Canada with Ms Onuoha. A copy of this consent was before the motions judge. It is, clearly, on its face, a consent to travel, not a consent to relocate permanently. Counsel acknowledged this point to us when pressed in oral argument.

51Mr Onuoha denies that he signed the consent. He produced evidence that he was out of the country at the time the document was purportedly executed before a Nigerian notary. Ms Onuoha then provided responding evidence that the date on the consent had been left blank when it was notarized because the travel dates had not yet been determined.

52It was not until October 2019 that Ms Onuoha brought the children to Canada. In the intervening time, life had continued on in Nigeria. Ms Onuoha did not tell Mr Onuoha of her plans to take the children to Canada permanently. She kept the trip to Canada from him, and deliberately misled him about her plans and those of the children. She acknowledged that she did not tell Mr Onuoha about her planned departure because she believed that Mr Onuoha would revoke his consent if he learned what she was planning to do.

53Even if the consent was signed by Mr Onuoha in January 2019, it could be revoked any time. Even if it was signed by Mr Onuoha, it did not authorize Ms Onuoha to take the children from Nigeria permanently and relocate them in Canada. Ms Onuoha knew that she did not have consent to take the children because she knew that if she told Mr Onuoha about her plans, he would object.

54Even if the facts claimed by Ms Onuoha were true, they provide no defence for her removal of the children to Canada permanently. There was no need to hold a trial to develop a fuller record on the issue of whether Mr Onuoha did, or did not, give permission for Ms Onuoha to travel with the children outside Nigeria.

(b) Allegations that Ms Onuoha Was Sexually Assaulted in 2014

55Ms Onuoha alleges that she was sexually assaulted in her residence in 2014. Mr Onuoha denies that this happened. Contradictory evidence was put before the court from a witness in Nigeria who supported the father’s version of events but later recanted her testimony.

56This evidence is conceivably relevant to only one issue on the application: the allegation that the children will probably suffer serious harm if they are returned to Nigeria.

57To be clear, it is not alleged that Mr Onuoha perpetrated the alleged crime. The allegation is that an unknown man did it.

58This is a “collateral fact”. Indeed, it does not even appear to be a relevant fact. This is not to diminish this experience for Ms Onuoha: if she was subjected to such an attack; no doubt it was a ghastly experience for her. It is an unfortunate truth that women can experience sexual assault almost anywhere in the world, certainly including in Ontario. It does not establish that the children will suffer serious harm if they are sent back to Nigeria.

59The motions reasonably determined that there was no need to conduct a trial to decide this issue, since it was not necessary for her to make a finding on this point to decide the case.

(c) the Children’s Health and Nutrition

60As noted above, the parties filed conflicting medical reports on questions concerning whether the children were “malnourished” and properly cared for when in their father’s care. The motions judge concluded that she did not need to hear oral evidence on this conflicting evidence because there was such a strong and reliable paper record bearing directly on this issue. This is a prosperous family – both parents are qualified pharmacists. Ms Onuoha says that her income is depressed because she is a woman, but there is no issue that Mr Onuoha enjoys a healthy professional income. The children have been educated at private schools, they have received excellent medical care, and both parties have been able to afford professional advisors for their family law proceedings in Nigeria.

61There is nothing in the extensive medical records of the children’s own pediatrician to support an allegation of malnourishment. There is nothing in the record of the family law proceedings to suggest that Ms Onuoha ever raised these concerns in those proceedings. There was nothing in the evidence before the motions judge to explain why Ms Onuoha had never raised these issues before, if they were a real concern for her. And there was nothing in the record to suggest that the courts of Nigeria would not address an issue such as proper care of the children in an appropriate manner.

62The written record – both as to what it included, and what it did not conclude – provided a solid basis for the motions judge to find, as she did, that she did not need to hear live cross examinations on the competing medical evidence.

Conclusion

63In our view, this is a case of indefensible abduction by one parent, contrary to Nigerian law and contrary to Ontario law. We do not doubt that Ms Onuoha believed she was seeking a better life for her and for her daughters. But this was not a decision she was entitled to make alone. Her remedy, if she wanted to relocate to Canada with the children, was a motion before the relevant Nigerian court to vary the Nigerian divorce order.

64When we advised the parties that the appeal was dismissed, we asked counsel to confer on a reasonable deadline for the children to be returned home. They agreed on fourteen days and we so ordered. We were advised that there could be complications because the children’s passports were still being held by federal officials. We gave and indicated that a member of this court would remain available to provide further directions, if any are required.

___________________________ D.L. Corbett J.

___________________________ Penny J.

___________________________ Doyle J.

Date of Release: March 19, 2021

COURT FILE NO.: DC 579/20 DATE: 20210319

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

D.L. Corbett, Penny and Doyle JJ.

BETWEEN:

Chamberlin Chidi Onuoha Applicant / Respondent in Appeal

– and –

Irene Onuoha Respondent / Appellant in Appeal

REASONS FOR DECISION

D.L. Corbett J.

Footnotes

1. 1We note that, as of March 1, 2021, the amendments to the Children’s Law Reform Act, RSO 1990, c. C.12 (“CLRA” or the “Act”) came into force, changing the nomenclature in the Act. The CLRA now refers to “decision making responsibility” and “parenting time” instead of “custody” and “access”. For the purposes of this decision and for ease of reference, we will be referring to the provisions used by the Motion Judge. There are no transitional provisions regarding these amendments, and hence the Court recognizes that the terms custody and access are no longer applicable in Ontario.
2. 2Ojeikere v. Ojeikere, 2018 ONCA 372 (“Ojeikere”).
3. 3Thompson v. Thompson, 1994 26 (SCC), [1994] 3 S.C.R. 551; Ojeikere v. Ojeikere 2018 ONCA 372; A.S. v. Y.S., 2004 1233 (Ont. S.C.); Ndegwa v. Ndegwa, 2001 28132, 20 R.F.L. (5th) 118 (Ont. S.C.).