Ajayi v. Ajayi, 2022 ONSC 5268
CITATION: Ajayi v. Ajayi, 2022 ONSC 5268
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Swinton, Sheard JJ.
BETWEEN:
OLBUKOLA AJAYI
Applicant (Appellant)
– and –
EYITOPE AJAYI
Respondent (Respondent in Appeal)
Michele Cicchino, Valerie Akujobi and Alice Mihailescu for the Applicant (Appellant)
Alix Nenniger for the Respondent (Respondent in Appeal)
HEARD at Ottawa (by video conference): September 14, 2022
1This is an appeal of the order of Engelking J. dated May 3, 2022 (reasons reported at 2022 ONSC 2678).
2The parties are dual citizens of Canada and Nigeria. They married in Nigeria in 2016 and have three children: Or. A, E.O. A., and Ol. A., born 2017, 2018, and September 2021, respectively. All of the children were born in Canada, but the family resided in Lagos, Nigeria after the marriage. The appellant wife had been in Canada for five months prior to the birth of the third child in September 2021. In early November, she returned with him to Nigeria.
3Shortly after her return and without the knowledge or consent of the Respondent (the “Respondent” or “Mr. A”), the Appellant (the “Appellant” or “Ms. A.”) packed suitcases and flew with the children to Canada. They now live in Ottawa.
4On November 26, 2021, the Respondent brought a Petition for Dissolution of Marriage in Nigeria. On the same date, the Appellant brought an application requesting the Ontario court to assume jurisdiction with respect to parenting orders pursuant to the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”).
5The issue before the court was whether the Ontario Superior Court of Justice should assume jurisdiction over the three children.
6Following a five-day trial, the trial judge declined jurisdiction under s. 23 of the CLRA. By Order dated May 3, 2022, she:
(a) declared that the children had been wrongfully removed to, and retained in, Ontario;
(b) under s. 23 of the CLRA, declared that the Ontario Superior Court of Justice has no jurisdiction to determine the parenting issues pertaining to the children; and
(c) pursuant to s. 40 of the CLRA, ordered that the children be immediately returned to their habitual residence in Lagos, Nigeria, on terms designed to assist in the enforcement of that order.
7The trial judge issued Amended Reasons for Decision on May 26, 2022 (the “Reasons”).
Issues on Appeal
8Ms. A. appeals and seeks orders under the CLRA granting her custody and primary care of the children and an order that they remain in Ontario pending a full hearing on the merits.
9Ms. A asserts that the trial judge erred by 1) failing to give reasons for the exercise of her discretion under s. 40 of the CLRA, including a failure to conduct a “best interests of the child” analysis under s. 40(a)1 before resorting to s. 40(a) 3; 2) failing to properly interpret or apply the legal test under s. 23 of the CLRA; and, 3) incorrectly interpreting applicable Nigerian law on child custody.
10Ms. A. also asserts that the trial judge made palpable and overriding errors of fact and/or mixed fact and law by 1) finding that Mr. A. is willing to jointly parent the children; 2) finding that the Appellant could return to Nigeria if the children were returned there; and, 3) determining that the children would not suffer serious harm if returned to their habitual residence.
11The Appellant seeks an order that the Ontario Superior Court of Justice has jurisdiction pursuant to s. 23 of the CLRA, to make a parenting order in this case. Alternatively, the Appellant seeks an order for a new trial, with a direction that a “best interests of the child” analysis be conducted under ss. 23 and 40 of the CLRA.
Disposition of Appeal
12At the conclusion of the Appellant’s submissions at the hearing, the Court dismissed the appeal, with reasons to follow. These are the reasons.
Background Facts
13The following facts are taken from the Reasons:
(a) all three children were born in Canada and shortly after each birth, returned to live in Nigeria;
(b) in April 2021, Ms. A. came to Canada for the birth of the third child, Ol. A., who was born in September 2021. The two older children remained in Nigeria with Mr. A.
(c) on November 7, 2021, Ms. A. returned to Nigeria with Ol. A.;
(d) on November 16, 2021, Ms. A. discussed separation with Mr. A. He was not happy at the prospect, but he volunteered to leave the family home if requested by the Appellant;
(e) on November 17, 2021, Ms. A. bought airline tickets to Canada for herself and the three children. She filled and deposited suitcases with a friend to hold for her;
(f) on November 18, 2021, the parties met with Mr. A.’s parents. and Ms. A asserts that the paternal grandfather threatened to take the children from Ms. A.;
(g) on November 19, 2021, while Mr. A. was away on business, Ms. A. picked up the suitcases and flew with the children to Canada; and
(h) on November 26, 2021, Mr. A. commenced a Petition for Dissolution of Marriage in Nigeria and on that same date, Ms. A. brought an application under the CLRA.
Legislative Framework
14Section 23 of the CLRA provides:
- Despite sections 22 and 41, a court may exercise its jurisdiction to make or vary a parenting order or contact order with respect to a child if,
(a) the child is physically present in Ontario; and
(b) The court is satisfied that the child would, on a balance of probabilities, suffer serious harm if, …
(iii) the child is removed from Ontario.
15Section 23 applies to cases in which a country with potential jurisdiction, in this case, Nigeria, is not a signatory to the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”). In such cases, the court must be satisfied that the foreign court will put the best interests of the children first: Ojeikere v. Ojeikere, 2018 ONCA 372.
16Section 40 of the CLRA sets out the orders that may be made by the court if it determines not to exercise jurisdiction over children wrongfully removed:
Interim powers of court
- Upon application, a court,
(a) that is satisfied that a child has been wrongfully removed to or is being
wrongfully retained in Ontario; or
(b) that may not exercise jurisdiction under section 22 or that has declined
jurisdiction under section 25 or 42,
may do any one or more of the following:
Make such interim parenting order or contact order as the court considers is in the best interests of the child.
Stay the application subject to,
(i) the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or
(ii) such other conditions as the court considers appropriate.
- Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.
Standard of Review
17The standard of review for a judicial appeal is found in Housen v. Nikolaisen, 2002 SCC 33, at paras. 8 and 10. On questions of law, the standard of review is correctness. On questions of fact, and mixed fact and law, the standard is palpable and overriding error, unless there is an extricable question of law.
18The appropriate standard of appellate review in Ontario on questions of foreign law is correctness: N. v. F., 2021 ONCA 614 at para. 40.
19A palpable and overriding error is one which is “obvious, plain to see or clear”: 3Com Corporation v. Zorin International Corporation, 2006 18351 (ON CA), at para 13.
20As noted by the Court of Appeal in N. v. F., at para. 38,
…the policy rationales that support deference in the context of reviewing custody and support orders apply with equal force to a consideration of whether an Ontario court should assume jurisdiction or make a return order under the CLRA. The analysis of those issues involves the application of evidence to a series of factors identified in the legislation. Absent a legal error or a palpable and overriding error of fact or mixed fact and law, it is not the place of an appellate court to redo a lower court’s analysis to achieve a result that it deems to be in the best interests of the child.
Issues and Analysis
Issue #1: Did the trial judge err in the interpretation or application of s. 23 of the CLRA?
21We do not accept the Appellant’s argument that the trial judge erred in her interpretation of s. 23 of the CLRA or failed to apply the correct test. The Appellant points to paragraph 20 of the Reasons as establishing that the trial judge incorrectly stated the test. That argument overlooks the preceding paragraphs in the Reasons, referencing s. 23, and articulating the arguments advanced by the Appellant as to why the children would suffer serious harm enumerated under s. 23(b). We find that the trial judge fully addressed the s. 23 test in the Reasons, particularly at paras. 65 – 76.
22It was not in dispute that the children’s habitual residence was in Lagos, Nigeria and that they had been wrongfully removed by the Appellant. In the Reasons, the trial judge carefully reviews the evidence that addressed the factors under s. 23 of the CLRA, which culminated in her order under s. 40. Among other things, the trial judge considered,
Ms. A.’s allegations that she had been subject to family violence, to which she claimed that the two older children had been exposed;
Ms. A.’s assertion that she either has an affinity towards, identifies with or has been identified with the LBGTQIIA+ community, and the potential risk that posed to her if she returned to Nigeria, including by the courts in the matrimonial matter; and
Ms. A.’s concern that Mr. A.’s family would be able to exert undue influence over the Nigerian court.
23We see no palpable or overriding errors in the findings made by the trial judge on these issues. The trial judge was entitled to accept or reject any, or all, of the evidence, and, in so doing, to make findings of credibility. The trial judge’s credibility findings against Ms. A. were amply supported by the evidence: (see, for example, Reasons paras. 26, 28 and 78).
24On the key question of whether the children might suffer serious harm if returned to Nigeria – if, for example, the Appellant could not return with them – the trial judge considered the Appellant’s submissions that the dissenting decision of Lauwers J.A. in N. v. F., should be followed.
25At para. 78 of N. v. F, speaking for the majority, Hourigan J.A. noted that the concern of Lauwers J.A. appeared to be that applying the law of the foreign jurisdiction would be detrimental to the children when that law is compared to ss. 19 and 20 of the CLRA.
26The approach taken by Lauwers J.A. was not accepted by the majority of the court. At para. 79, Hourigan J.A. stated that,
… the role of the court under s. 23 is to determine whether the party invoking the section has established, on a balance of probabilities, that a child will suffer serious harm if an Ontario court does not assume jurisdiction. … It is not enough to point to differences in the law and suggest that a parent may have different rights in a foreign jurisdiction vis-à-vis Ontario. The serious harm test in s. 23 of the CLRA, which was implemented to protect the safety of children, must not be reduced to a means for Ontario courts to prefer this province’s system of justice over those of foreign jurisdictions under the guise of child safety.
27The trial judge was bound to follow the majority decision in N. v. F. In doing so, she noted that the facts in the case before her were similar to those in N. v. F., observing that there was no legal impediment to Ms. A. returning to Nigeria: she had dual citizenship, was a “privileged member of Nigerian society”, was well-educated, had substantial means, and an influential family.
28As fully set out in the Reasons, the trial judge considered, and ultimately rejected, the Appellant’s evidence, including that of her expert, that she was a vulnerable person and that she and/or the children were at risk of harm if they returned to Nigeria. The trial judge’s conclusion that, not only was there no impediment to Ms. A returning to Nigeria but, she was “well situated to do so”, is amply supported by the evidence.
Issue #2: Did the trial judge incorrectly interpret Nigerian law?
29The Appellant asserts that the trial judge incorrectly interpreted Nigerian law by finding that it puts the “best interests of the child” first in custody proceedings while ignoring whether the Nigerian “best interests test” aligns with that used in Ontario.
30We disagree.
31We see no error in the trial judge’s interpretation of the Nigerian law and, in particular, her decision to prefer the evidence of Dr. Iyabode Ashabi Ogunniran, the expert put forward by Mr. A., to that given by Ms. A.’s expert.
32Dr. Ogunniran opined that in custody and access proceedings in Nigeria, the children’s bests interests will be “fulsomely considered, pursuant to a holistic best interest of the child approach in all instances”. The trial judge explained in some detail why she preferred the evidence of Dr. Ogunniran stating, in part, that, unlike Ms. A.’s expert, Dr. Ogunniran referenced the endorsement of the case management judge for the factual and legal backdrop for the case (Reasons, at paras. 50 - 63).
33We do not purport to address each finding of fact or mixed finding of fact and law with which the Appellant takes issue. However, we have carefully reviewed the Reasons in their entirety and have identified no errors of fact, or errors of mixed fact and law, that could be described as palpable and overriding; plain and obvious. We conclude that the trial judge’s findings were open to her to make, including her findings respecting Mr. A.’s willingness to jointly parent the children, and concerning any potential risk of harm to Ms. A. and/or to the children, if they returned to Nigeria. Those findings were properly based on her assessment of the evidence, and are entitled to deference.
34As stated in N. v. F., it is not for this court “to redo a lower court’s analysis to achieve a result that it deems to be in the best interests of the child”.
Issue #3: Did the trial judge err in the interpretation or application of s. 40 of the CLRA?
35The Appellant asserts that the trial judge’s reasons were insufficient in that she did not include an analysis of s. 40 or provide an explanation for her order under s. 40 that the children be returned to Nigeria.
36We disagree. Read as a whole, the Reasons provide a clear and comprehensive explanation for the orders made by the trial judge.
37We do not accept the Appellant’s submissions that, when making an order under s. 40 to return the children to Nigeria, the trial judge erred by failing to undertake a “best interests” analysis under s. 24 of the CLRA.
38The conclusion under s. 23 that the children had been wrongfully removed from Nigeria and would not suffer serious harm if returned to that jurisdiction does not automatically, or necessarily, trigger an order for their return because Nigeria is not a signatory to the Hague Convention. On the other hand, consideration of “an interim parenting order” (including a “best interests” analysis) under s. 40(a)1 is not a precondition to an order that they be returned to the foreign jurisdiction under s. 40(a)3.
39The Respondent submits, and we accept, that once it was determined that the children were wrongfully removed from Nigeria, the onus was on the Appellant to lead evidence that it would be contrary to their best interests to be returned to Nigeria, the jurisdiction where they habitually resided. As stated by the court in N. v. F. at para 57, quoting Harvison Young J. (as she then was) in Bolla v. Swart, 2017 ONSC 1488 at paras. 37 and 38, the onus was on the Appellant to lead evidence to rebut the presumption that,
[37]…children should be protected from the harmful effects of their wrongful removal from their habitual residence, and their prompt return to the state of their habitual residence should be ensured.
38This is the general rule. It reflects the presumption that it is generally in the best interests of the child that issues relating to custody and access be adjudicated in the jurisdiction where they have habitually resided. For that reason, the parent who has removed or wrongfully retained the children from their place of habitual residence has the burden of establishing the “serious harm” that permits the Ontario court to accept jurisdiction in such a case: see Rajani v. Rajani, 2007 38126 (ON SC), at para. 90; and Ndegwa v. Ndegwa (2001), 2001 28132 (ON SC), 20 R.F.L. (5th) 118 (Ont. S.C.), at para. 30.
40The findings of fact in the Reasons, particularly in the context of this burden of proof, clearly imply that returning the children to Nigeria would not be contrary to their best interests, even if the trial judge did not expressly say so.
Conclusion
41For the reasons set out herein, the appeal was dismissed, and the order of Fraser J. staying the Order of the trial judge was vacated. As per this court’s Endorsement released on September 14, 2022 (2022 ONSC 5229), after hearing submissions concerning the need to obtain travel documentation for the youngest child, Oi. A., and the timing of the Respondent’s arrival in Canada to accompany the children home to Nigeria, additional orders were made to facilitate the enforcement of the Order dated May 3, 2022.
42The Endorsement of September 14, 2022, also addressed the costs of the appeal, which were fixed at $15,000, all inclusive, payable by the Appellant
Aston J.
Swinton J.
Sheard J.
Released: September19, 2022
CITATION: Ajayi v. Ajayi, 2022 ONSC 5268
COURT FILE NO.: DC-22-2714
DATE: 20220919
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Swinton, Sheard, JJ.
BETWEEN:
OLBUKOLA AJAYI, Applicant (Appellant)
- and –
EYITOPE AJAYI, Respondent (Respondent in Appeal)
REASONS FOR JUDGMENT
Released: September 19, 2022