Court of Appeal for Ontario
Date: April 17, 2018 Docket: C63775
Judges: Laskin, Feldman and Miller JJ.A.
Between
Atinuke Taibat Ojeikere Applicant (Appellant)
and
Paul Olakunle Ojeikere Respondent (Respondent)
Counsel
Atinuke Taibat Ojeikere, acting in person
Jane Long of the Office of the Children's Lawyer, for the children
Shana Maiato, for the respondent
Heard: August 23, 2017
On appeal from the order of Justice Joseph M. Fragomeni of the Superior Court of Justice, dated April 21, 2017.
Reasons for Decision
Laskin J.A.:
A. Factual Overview
[1] Does a court in Nigeria or in Ontario have jurisdiction to decide who should have custody of and access to the Ojeikeres' three adolescent children? The respondent, Mr. Ojeikere, contends – and the motion judge found – that a Nigerian court has jurisdiction; the appellant, Mrs. Ojeikere, and the Office of the Children's Lawyer ("OCL") both contend that an Ontario court has jurisdiction. I conclude that Ontario should exercise jurisdiction under s. 23 of the Children's Law Reform Act because I am satisfied that on a balance of probabilities the children would suffer serious harm if required to return to Nigeria.
[2] Mr. and Mrs. Ojeikere were born in Nigeria and married there in 1994. They have three children: Sam, who is 15; Tomi, who is 14; and Elizabeth, who is 12. All three children are Canadian citizens. After their marriage, Mr. and Mrs. Ojeikere moved first to England in 1996, then to Ontario in 1998, and eventually, at separate times, back to Nigeria.
[3] In 2003, Mr. Ojeikere took a job in Abuja, Nigeria. Since then he has remained in Nigeria. In 2010, he fathered a child with another woman. And he is now living with another partner.
[4] Between 2005 and 2011, Mrs. Ojeikere lived with the three children in Mississauga. Mr. Ojeikere visited them from six to eight weeks every year. In 2011, in an attempt to salvage her marriage, Mrs. Ojeikere and the children returned to Nigeria to live with Mr. Ojeikere. Her attempt was unsuccessful. In 2012 or 2013, the parties separated. Nonetheless, Mrs. Ojeikere remained in Nigeria until 2016.
[5] In the summer of 2016, Mr. and Mrs. Ojeikere agreed that the children could spend their summer holiday with Mr. Ojeikere's step-sister in British Columbia. They were to return to Nigeria in time for school in the fall. However, in August 2016, Mrs. Ojeikere went to the step-sister's home, took the three children, and moved to an address in Mississauga. She refused to disclose the address to Mr. Ojeikere. The motion judge found that Mrs. Ojeikere acted unilaterally, without Mr. Ojeikere's consent, or even his knowledge.
[6] Later in August 2016, Mr. Ojeikere filed a notice of petition in Abuja, in which he sought a decree dissolving the marriage, as well as custody of the children. He obtained an order for substituted service of the petition on Mrs. Ojeikere at her last known address in Nigeria. From the record, it appears that Mr. Ojeikere's petition is still outstanding and that no other court order has been made in connection with it.
[7] In November 2016, three months after Mr. Ojeikere filed his petition in Nigeria, Mrs. Ojeikere brought an application in Ontario for custody of the children and other relief not material to this appeal. Mr. Ojeikere then moved to stay the Ontario action on the ground that an Ontario court had no jurisdiction to decide the custody of the three children. The motion judge granted the stay and ordered that the children be returned to Nigeria in the care of their father until their mother returned to Nigeria. He ruled that from 2011-2016, the entire family was domiciled in Nigeria. He ruled in the alternative that Nigeria is the appropriate forum to decide the children's custody.
[8] Mrs. Ojeikere filed a notice of appeal, as well as a notice of motion, which asked this court to stay the return order pending the appeal. On May 31, 2017, Simmons J.A. adjourned the motion to permit the OCL to decide whether to participate in the appeal, and she ordered that the children stay in Ontario pending the resolution of the motion. On June 7, 2017, Miller J.A. granted an interim stay of the motion judge's order pending the hearing of the appeal. He also granted an order appointing the OCL to represent the children and permitting it to file affidavit evidence on the issues of parental alienation from Mr. Ojeikere and the "serious harm" that may result from a return to Nigeria.
[9] After hearing oral argument on the appeal, this panel continued the stay ordered by Miller J.A. pending our decision, on two conditions: Mrs. Ojeikere will encourage and facilitate contact between all three children and Mr. Ojeikere by telephone, email, or other media; and, should Mr. Ojeikere wish to come to Ontario to see the children, Mrs. Ojeikere will facilitate the visit.
B. The Issues
[10] This case is not governed by the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, because Nigeria is not a signatory to the Convention. Thus, the issues on this appeal must be decided under the provisions of Ontario's Children's Law Reform Act, R.S.O. 1990, c. C.12 ("CLRA"). This appeal raises two issues under that statute:
Did the motion judge err in ruling that under s. 22 of the CLRA an Ontario court does not have jurisdiction?
Despite s. 22 of the CLRA, should an Ontario court exercise jurisdiction under s. 23 of the CLRA because the three children are physically present in Ontario and would suffer serious harm if returned to Nigeria?
[11] I would answer "no" to the question raised by the first issue. The motion judge did not err. The second issue was not raised before the motion judge and turns almost entirely on the fresh evidence filed by the OCL on this appeal. Having considered this evidence, I have concluded that, despite the motion judge's conclusion on s. 22, an Ontario court should exercise jurisdiction because the children, who are physically present in Ontario, would suffer serious harm if returned to Nigeria. I would therefore allow Mrs. Ojeikere's appeal, set aside the order of the motion judge, order that the Ontario Superior Court has jurisdiction to determine the custody of and access to the children, and finally order that Mrs. Ojeikere have interim custody of the children with generous access to Mr. Ojeikere pending a further order of the court.
C. The Statutory Regime: The Four Bases for an Ontario Court's Jurisdiction
[12] Under the CLRA, an Ontario court can assume jurisdiction to make an order for custody of or access to a child on any one of four bases:
Under s. 22(1)(a), if the child is "habitually resident" in Ontario at the time the application is commenced;
Under s. 22(1)(b), if though not habitually resident in Ontario, the child is physically present in Ontario at the time the application is commenced, and the other requirements of the section are met, including the requirement that no application for custody has been started in another place where the child is habitually resident;
Under s. 23, if the child is physically present in Ontario and would, on a balance of probabilities, suffer serious harm if removed from Ontario; and,
Under the court's parens patriae jurisdiction to protect children, preserved by s. 69.
[13] All four provisions are found in Part III of the CLRA. Section 19 sets out the overall purposes of Part III. In substance, there are five purposes:
To ensure that custody and access applications will be determined on the basis of the best interests of the children;
To avoid the concurrent exercise of jurisdiction by tribunals in different places;
To provide that, save in exceptional circumstances, an Ontario court will decline jurisdiction where custody and access are more appropriately determined by a tribunal having jurisdiction in another place with which the child has a closer connection;
To discourage the abduction of children as an alternative to the determination of custody rights by due process; and
To provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of these orders made outside Canada.
These general purposes set out in s. 19 must guide the interpretation and application of ss. 22 and 23, the provisions in issue on this appeal.
[14] The specific purposes of s. 22 include deterring parties from "shopping" for a forum to decide their custody dispute, and importantly, discouraging child abduction. See Brooks v. Brooks (1998), 163 D.L.R. (4th) 715 (Ont. C.A.), at para. 22.
[15] Neither s. 22(1)(a) nor s. 22(1)(b) is itself a best interests test – neither provision asks the court to consider the child's needs and circumstances as set out in s. 24(1) and the catalogue of best interests considerations listed in s. 24(2).
[16] But the policy behind discouraging child abduction and requiring a summary return to habitual residence does reflect the Legislature's overriding concern with a child's best interests. Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent's interests over that of the child.
[17] Sections 23 and 69 also reflect the Legislature's overriding concern with children's best interests. Under s. 23, even where a parent abducts a child to Ontario, or withholds a child in Ontario and refuses to return the child to the child's habitual residence, an Ontario court may still assert jurisdiction to decide custody and access in situations where the child faces potentially serious harm.
[18] No party argued that the court should act under s. 69 of the CLRA, and I see no grounds for doing so. The motion judge decided the motion under s. 22 and I see no error in his application of that section. However, s. 23 allows for an Ontario court to assume jurisdiction even if the requirements of s. 22 are not met, and it is under that provision that I have determined the appeal should be allowed.
D. Discussion
(1) The Motion Judge Did Not Err in Ruling That an Ontario Court Does Not Have Jurisdiction Under s. 22 of the CLRA
[19] Section 22 gives an Ontario court two bases to assume jurisdiction and make a custody order: habitual residence of the child in Ontario; or physical presence of the child in Ontario, as long as the other specified requirements of the section are met.
(a) Habitual Residence
[20] Under s. 22(1)(a) of the CLRA "a court shall only exercise its jurisdiction to make an order for custody of or access to a child where the child is habitually resident in Ontario at the commencement of the application for the order". The OCL concedes that the Ojeikeres' three children were habitually resident in Nigeria before Mrs. Ojeikere wrongfully took them to Mississauga in August 2016. The OCL also concedes that Mrs. Ojeikere could not change the children's place of habitual residence by abducting them. I agree with the OCL's concessions.
[21] "Habitual residence" is defined in s. 22(2) of the CLRA:
A child is habitually resident in the place where he or she resided,
(a) with both parents;
(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or
(c) With a person other than a parent on a permanent basis for a significant period of time, whichever last occurred.
[22] The Ojeikeres' three children resided with their parents in Nigeria for the five years preceding the court applications. Thus, the children were habitually resident in Nigeria under s. 22(2)(a) of the CLRA.
[23] Subsection 22(3) expressly stipulates that a parent cannot change a child's habitual residence by abducting the child:
The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.
[24] On the record before us and the finding of the motion judge, Mr. Ojeikere did not consent to allowing the three children to remain in Ontario or even in Canada after their summer vacation in 2016. Nor did he acquiesce in their staying here; he promptly began custody proceedings in Nigeria following the children's abduction.
[25] In holding that the children were domiciled in Nigeria, the motion judge said as follows at para. 18 of his decision:
I am satisfied that from 2011 to 2016 the entire family was domiciled in Nigeria. The fact that the children were away from home while attending boarding school does not eliminate the reality that the family resided in Nigeria. The wife cannot unilaterally and without the consent or knowledge of the husband withhold the children in Ontario and then claim that they are now resident there. This conduct does not establish a status quo.
[26] I agree. I assume that in using the word "domiciled" the motion judge meant "habitually resident". Because the trial judge found that the three Ojeikere children were habitually resident in Nigeria, despite their time in boarding schools and despite their abduction to Ontario, s. 22(1)(a) of the CLRA provides no basis for an Ontario court to assume jurisdiction over the children.
(b) Physical Presence and Other Requirements
[27] Paragraph 22(1)(b) of the CLRA provides that an Ontario court may assume jurisdiction if six criteria are met:
22 (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,
(b) although the child is not habitually resident in Ontario, the court is satisfied,
(I) that the child is physically present in Ontario at the commencement of the application for the order,
(II) that substantial evidence concerning the best interests of the child is available in Ontario,
(III) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
(IV) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,
(V) that the child has a real and substantial connection with Ontario, and
(VI) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. [Emphasis added.]
[28] As this court said in Wang v. Lin, 2013 ONCA 33, 358 D.L.R. (4th) 452, s. 22(1)(b) must be read conjunctively. An Ontario court can only exercise jurisdiction under this provision if all six of the enumerated criteria are met.
[29] When Mrs. Ojeikere brought her application in Ontario in November 2016, the three children were physically present in Ontario, thus satisfying the first criterion under s. 22(1)(b). The fourth criterion is also satisfied as an Ontario court has not recognized any extra-provincial custody order; indeed none has been made.
[30] The OCL put forward evidence to try to satisfy the second, fifth, and sixth criteria: best interests, real and substantial connection, and balance of convenience. Even accepting that the evidence satisfies these three criteria, s. 22(1)(b) affords no basis for an Ontario court to assume jurisdiction because the third criterion cannot be satisfied.
[31] An Ontario court cannot assume jurisdiction to make a custody order if at the time of the application in Ontario, an application for custody was pending in another place where the child is habitually resident. In other words, a party cannot ask an Ontario court to assume jurisdiction to avoid proceedings already started elsewhere.
[32] Mr. Ojeikere filed a petition for custody of the three children in Abuja, Nigeria three months before Mrs. Ojeikere brought her application in Ontario. At the time Mr. Ojeikere filed his petition, the three children were habitually resident in Abuja. Thus, s. 22(1)(b)(iii) stands as a bar to an Ontario court's jurisdiction.
[33] To avoid the application of s. 22(1)(b)(iii), the OCL relies on Chaudry v. Kahn, 2016 ONSC 7773, 96 R.F.L. (7th) 418, where Corbett J. exercised his discretion to assume jurisdiction under s. 22(1)(b), even though a proceeding had been started by the father in Bahrain before the mother started a proceeding in Ontario. Justice Corbett held that, as the Bahrain proceeding was started after the mother left the country, and as she had no notice of it, or any opportunity to participate in it, it was not a "pending proceeding" under s. 22(1)(b)(iii).
[34] The facts in Chaudry were unusual and likely drove the result. Without commenting on its correctness, I say simply that the language of s. 22(1)(b)(iii) is clear and unambiguous. At the time of Mrs. Ojeikere's application in Ontario, a proceeding was pending in Nigeria. And, relying on the affidavit of a Nigerian lawyer, the motion judge found that Mr. Ojeikere's petition was properly constituted.
[35] Also, the motion judge found that Mrs. Ojeikere was aware of the Nigerian proceedings. She claims otherwise. Even accepting her denial, she can hardly complain about the order for substituted service when she refused to disclose her whereabouts to her husband.
[36] The motion judge correctly applied s. 22 of the CLRA and found that it did not give an Ontario court jurisdiction to decide the custody of or access to the Ojeikeres' children. I turn now to the issue on which I would allow this appeal: serious harm under s. 23 of CLRA.
(2) Despite s. 22, an Ontario Court Should Exercise Jurisdiction Under s. 23 of the CLRA
[37] Section 23 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.
[38] Because the Ojeikeres' three children are physically present in Ontario, under s. 23(b) an Ontario court can exercise jurisdiction over their custody or access if satisfied that the children would, on a balance of probabilities, suffer "serious harm" if they were sent back to Nigeria.
[39] Justice Weiler commented on s. 23 in her reasons in H.E. v. M.M., 2015 ONCA 813, 393 D.L.R. (4th) 267. Because the provision is triggered when a child is physically present in Ontario even if the child has been wrongfully brought to this province, s. 23 can override s. 22. Section 22's aim of discouraging child abduction becomes secondary to s. 23's aim of preventing serious harm to the child. As Weiler J.A. wrote at para. 87: "[W]hen there is a risk of serious harm to the child, the aim of discouraging child abduction must yield to another purpose of the CLRA, namely, the best interests of the child."
[40] Section 23 of the CLRA is discretionary. Under s. 25, a court with jurisdiction over custody or access may decline to exercise its jurisdiction where it is of the opinion that another jurisdiction is more appropriate. Although s. 25 could potentially qualify the court's discretion under s. 23, I find it hard to conceive that an Ontario court would decline jurisdiction under s. 23 if satisfied a child would suffer serious harm if removed from the province.
(a) The Fresh Evidence and Its Admissibility
[41] The question whether Mr. and Mrs. Ojeikere's three children would suffer serious harm if they were ordered to return to Nigeria turns almost entirely on the fresh evidence filed on this appeal by the OCL. This evidence was filed in accordance with the order of Miller J.A. The evidence consists of the affidavit of Andrea Jones, an in-house clinician at the OCL, and numerous school records for each of the three children.
[42] The fresh evidence is somewhat unusual. In many disputes where jurisdiction to decide custody is disputed, the sole evidence comes from the parents. The neutrality of such evidence is usually questionable.
[43] In this case, Ms. Jones, impartial to the parents' interests, interviewed each of the children several times. Neither parent was present during these interviews. Ms. Jones' affidavit contains a detailed summary of the interviews. Thus through her, we have independent evidence of the children's wishes, their feelings about their parents, and their objections to returning to Nigeria. Ms. Jones also interviewed Mr. and Mrs. Ojeikere, by telephone and in person, respectively.
[44] Mr. Ojeikere does not object to the evidence from the children contained in Ms. Jones' affidavit. He does object to the opinions she expresses and to the limited scope of the OCL's investigation. And he maintains that even accepting all of Ms. Jones' affidavit evidence, that evidence does not show the children would suffer serious harm if ordered to return to Nigeria.
[45] Before discussing the fresh evidence and Mr. Ojeikere's concerns about it, we have to rule on its admissibility. Although the evidence was filed in accordance with Miller J.A.'s order, its admissibility is a matter for the panel hearing the appeal. Under s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, in a civil (or family law) appeal, this court "may, in a proper case … receive further evidence".
[46] Over the years, this court has applied two different tests for the admission of fresh evidence in a civil appeal: the long-standing test in R. v. Palmer, [1980] 1 S.C.R. 789, typically used in criminal appeals, and reformulated by this court in Re Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321; and the test in Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.). See Re Chiang, 2009 ONCA 3, 93 O.R. (3d) 483, at paras. 73-77 for a list of the cases in which this court has applied each test.
[47] The two tests are not materially different, though the Sengmueller test may be perhaps more demanding. In this case, nothing turns on the difference. I would admit the fresh evidence under either test. Importantly, both tests are applied more flexibly in custody or child welfare cases to allow the court to have up to date information about a child and the child's best interests. See H.E., at paras. 71-75.
[48] For simplicity, I will apply the test in Sengmueller. Under this test, fresh evidence is admissible if the OCL can show that the evidence:
Is credible;
Could not have been obtained by reasonable diligence before trial or motion; and
Would likely be conclusive of an issue on the appeal.
[49] Ms. Jones' evidence of her interviews with the children and their parents, and the school records, is undoubtedly credible. The evidence could have been obtained and put before the motion judge had the OCL intervened earlier in these proceedings. But I would not rely on any failure to meet the diligence requirement to preclude the admission of the fresh evidence. This court needs the evidence filed by the OCL to properly assess "serious harm". Finally, in my opinion, the evidence is likely conclusive of the principal issue on this appeal: would the children suffer serious harm if required to return to Nigeria?
[50] I would therefore admit the fresh evidence. Ms. Jones' summary of her interviews with the children is critically important. I would, however, discount her opinion evidence as she was not qualified as an expert. See Children's Aid Society of Toronto v. C.J.W., 2017 ONCJ 212, [2017] W.D.F.L. 2155, at para. 22.
(b) The Meaning of "Serious Harm"
[51] In this section I will discuss the meaning of "serious harm" and the factors relevant to its application in this case.
[52] As I have said, under s. 23 of CLRA, an Ontario court can exercise jurisdiction over the custody of a child and refuse to order the child's return to the child's habitual residence where satisfied that the return would, on a balance of probabilities, cause "serious harm". Case law on the meaning of "serious harm" relies on a similar, though not identical provision in The Hague Convention. Under art. 13(b) of the Convention, an Ontario court would not be bound to order the return of the child if the person opposing the return establishes that "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."
[53] Despite the difference in language, in their interpretation, courts appear largely to have equated the standard of "serious harm" in s. 23 of the CLRA with the standard of "grave risk [of] expos[ing] the child to physical or psychological harm or otherwise plac[ing] the child in an intolerable situation" in art. 13(b) of the Convention.
[54] The leading Supreme Court of Canada case on the meaning of "grave risk of harm" and "serious harm", decided nearly a quarter of a century ago, is still Thomson v. Thomson, [1994] 3 S.C.R. 551. Thomson was a Manitoba case decided under the Convention. But La Forest J., who wrote the majority reasons, also considered s. 5 of the Manitoba statute, which, like s. 23 of Ontario CLRA, used the standard of "serious harm" without mentioning an "intolerable situation". Despite the different language between the two provisions, he held at page 596: "[T]he inconsistencies between the Convention and the Act are not so great as to mandate the application of a significantly different test of harm".
[55] Justice La Forest then discussed the meaning of "grave risk of harm" under art. 13(b) of the Convention. Relying in part on an English decision, he held that the harm could be physical or psychological, but that the standard is stringent – the harm from the child's return must be sufficient to amount to "an intolerable situation":
It has been generally accepted that the Convention mandates a more stringent test than that advanced by the appellant. In brief, although the word "grave" modifies "risk" and not "harm", this must be read in conjunction with the clause " or otherwise place the child in an intolerable situation". The use of the word "otherwise" points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation. …
Nourse L.J., in my view correctly, expressed the approach that should be taken, at p. 372:
…the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree ... that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm. That, as it seems to me, is the effect of the words 'or otherwise place the child in an intolerable situation'.
I hasten to add, however, that I do not accept Twaddle J.A.'s assessment that the risk contemplated by the Convention must come from a cause related to the return of the child to the other parent and not merely from the removal of the child from his present caregiver. As this Court stated in Young v. Young, [1993] 4 S.C.R. 3, from a child centred perspective, harm is harm. If the harm were severe enough to meet the stringent test of the Convention, it would be irrelevant from whence it came. [Emphasis in original.]
[56] Ontario courts typically have used this passage for the meaning of "serious harm" under s. 23 of the CLRA. Undoubtedly, as La Forest J. said, the harm can be physical or psychological or both, and it must be greater than would ordinarily be expected from taking a child from one parent and returning the child to the other parent.
[57] Still, in Thomson, La Forest J. acknowledged that the standard in the Convention and the standard in the legislation (in that case Manitoba's) are expressed in different terms. He did not discuss the significance of the difference in any detail. Instead, he concluded that "[i]n view of the findings that the facts [in Thomson] did not meet the tests of harm either as expressed in the Convention or the Act, I need not delve into this issue (emphasis added)." The harm alleged in that case was psychological harm upon separation from a parent, and would not have met the requirements of either the statutory or the art. 13(b) standard.
[58] I conclude that the standard of "serious harm" required by s. 23 of the CLRA is less stringent than the standard under art. 13(b) of the Convention.
[59] The main reason for my conclusion is the difference in language. It seems to me the words "intolerable situation" in art. 13(b) of the Convention import a more stringent standard than simply "serious harm" under s. 23 of the CLRA. And the Legislature must be taken to have been aware of the terms of the Convention when it enacted s. 23. The Convention was signed in 1980. Part III of the CLRA, which includes s. 23, was enacted in 1982 (see S.O. 1982, c. 20) and expressly incorporates the Convention into Ontario law in s. 46. Yet the qualifying words, "an intolerable situation", found in art. 13(b), and on which La Forest J. relied on in Thomson, are absent from s. 23. As a matter of statutory interpretation, the Legislature must be taken to have intended not to use these uncompromising words to qualify "serious harm": Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016), at p. 42. See e.g.: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, at para. 45. Thus statutory interpretation alone argues for a less stringent standard of harm under s. 23.
[60] There is perhaps a second reason why the s. 23 standard should be less stringent. I expect that the standard under the Convention is exacting, at least in part, because under the preamble to the Convention all signatories accept and are "firmly convinced that the interests of children are of paramount importance in matters related to their custody". Signatories have accepted this principle and its enforcement by their agreement to adhere to their reciprocal obligations under the Convention. In Hague Convention cases Ontario courts can have confidence that whatever jurisdiction decides on a child's custody it will do so on the basis of the child's best interests. Ontario courts cannot always have the same confidence in s. 23 cases.
[61] Section 23 applies to cases where a country with potential jurisdiction over the custody of a child is not a signatory to the Convention. Their custody laws may differ from ours. In cases decided under s. 23, an Ontario court will not always have the same assurance that a non-signatory country will, as Ontario does, put the best interests of children first. Some non-signatory countries may do so; others may not.
[62] Both art. 13(b) and s. 23 do, however, have one feature in common. Both require the court to assess the risk of harm. The Convention explicitly requires a risk assessment: the court must assess whether returning the child to the child's place of habitual residence would give rise to a grave risk of harm. Section 23 does not use the word "risk". But under s. 23, an Ontario court must still assess the possibility or risk of harm if the child is removed from Ontario. Under s. 23, the court is not assessing harm from a past event; it must predict future harm, in other words the risk of harm. As with any risk assessment, the court must assess both likelihood and severity, in this case the likelihood of future harm, and the severity of future harm.
(c) The Factors to Assess Serious Harm in the Present Case
[63] As important as the meaning of "serious harm" are the factors relevant to its application. Under s. 23, an Ontario court has discretion to refuse to order a child's return to the child's place of habitual residence. That discretion should be structured by a list of relevant factors. The relevant factors will vary from case to case. In some cases, one factor may decisively show "serious harm"; in other cases a combination of relevant factors may do so. In this case, I have concluded that a combination of factors, taken together, give rise to a risk that the three children would suffer serious harm if they are required to return to Nigeria. I emphasize, however, that the factors I rely on in this case are particular to its facts, and should not be taken as a list of factors relevant to every s. 23 case.
[64] For determining "serious harm" for the Ojeikeres' three children, I consider the potentially relevant factors to include:
(i) The risk of physical harm
(ii) The risk of psychological harm
(iii) The views of the children
(iv) Mrs. Ojeikere's claim she will not return to Nigeria even if the children are required to do so
(d) Application of the Factors to the Fresh Evidence
[65] To put the evidence relevant to these factors in context and to address Mr. Ojeikere's concerns, I make three points. First, I have no doubt that both Mr. and Mrs. Ojeikere love each of their children, and that the children love both of their parents. Although the children have lived mainly with their mother, all the children expressed to Ms. Jones their love for their father and their desire to spend time with him. Under the order of Miller J.A., one of the OCL's mandates was to investigate whether the children had become alienated from their father, presumably because of their mother's manipulation. The fresh evidence shows that there has been no parental alienation. Nor, to address another of Mr. Ojeikere's concerns, does it even appear that Mrs. Ojeikere has inappropriately influenced the children's views and preferences reported to Ms. Jones.
[66] Second, the children feel closer to their mother. She has been their main caregiver, and since the parties separated in Nigeria in 2012 or 2013, she has had custody of them. She is the one they most trust and feel most comfortable with.
[67] Third, Mr. Ojeikere's complaint that the OCL did not investigate the situation in Nigeria by, for example, interviewing friends who knew the family there is unfair. In the light of its limited time and resources, the OCL appropriately focused its inquiry on the children and their parents. Mr. Ojeikere was not precluded from seeking to put before this court evidence of persons who could speak to the family dynamic in Nigeria, the quality of life there, and particulars of his plans for the children. He chose not to do so.
[68] I now turn to the fresh evidence concerning each of the factors I have listed.
(i) The Risk of Physical Harm
[69] Mrs. Ojeikere and the OCL put forward two risks of physical harm. First, Mrs. Ojeikere alleges that Mr. Ojeikere has physically abused her, and may do so again. If her allegations are true, the physical abuse of their mother, even their mother's fear of physical abuse, would undoubtedly harm the children, emotionally or psychologically. Mr. Ojeikere denies that he has physically abused his wife. Her allegations and his denial are untested and we have no finding on whether Mrs. Ojeikere was in fact physically abused by her husband or whether she fears he will be violent. I accept that Mrs. Ojeikere may legitimately have these fears, but absent any finding and on a wholly written record, I am reluctant to rely on them to support a risk of psychological harm to the children.
[70] The second risk is far more concerning. All three children report that their father angers easily, and that when angry he has physically mistreated them. The two older children, Sam and Tomi, each independently told Ms. Jones that their father has physically disciplined them, not just by spanking them with his hand, but by using objects. Sam, the 15-year-old, said one of the reasons he wants to stay in Canada is that his father hits him and he would have to adapt to "bad things" if he were to return to Nigeria. He said his dad sometimes hits him with sticks, and once hit him with a wire part of a charger. Tomi, the 14-year-old, also told Ms. Jones that in addition to hitting him with his hand, his father sometimes hits him with a stick, a belt, or a TV wire. Elizabeth, the 12-year-old, said that her dad twice hit her with an open hand on her shoulders, and she confirmed that he had hit her brothers with a stick and a belt if they did something wrong.
[71] Mr. Ojeikere admits that he smacked the children to discipline them, but denied using objects. I am inclined to accept Sam's and Tomi's independent evidence, corroborated by their sister, that their father physically disciplined them with objects.
[72] The Supreme Court of Canada has addressed the harm resulting from corporal punishment of children with objects. In Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, the majority upheld the constitutionality of s. 43 of the Criminal Code, which excludes physical correction of children by their parents or teachers from the Code's assault provisions, as long as the force used is reasonable. But at para. 37, relying on the consensus of the expert evidence before them, the court disapproved of corporal punishment of teenagers, especially corporal punishment using objects:
Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful.
[73] Because Mrs. Ojeikere might not return with the children to Nigeria, or at least not full-time, an order returning them to Nigeria must contemplate a return to their father's care. The likelihood that the children would be physically disciplined with objects by their father if returned to his care in Nigeria is high. The likely severity of the harm is at least moderately high. This factor alone weighs heavily in support of a finding of serious harm.
(ii) The Risk of Psychological Harm and (iii) The Views of the Children
[74] In my opinion, the views of the three children are relevant to the risk of psychological harm if they are required to return to Nigeria, and so I consider these two factors together. I find support for my approach in art. 13(b) of the Convention and s. 64(1) of the CLRA.
[75] Article 13(b) has two clauses. The first clause, which sets the standard of "grave risk" of harm "or otherwise plac[ing] the child in an intolerable situation", is one defence to an application to return. The second clause provides a second and separate defence based on the child's own objection to returning.
[76] The second clause of art. 13(b) provides:
The judicial or administrative authority may also refuse to order the return of the child if it finds the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
Some English courts have held, reasonably, that in weighing a child's views under this clause, "objection" likely imports more than a mere "preference". See, for example, the U.K. High Court case of Re R. (A Minor: Abduction), [1992] 1 FLR 105.
[77] This case is not a Hague Convention case, but the second clause of Article 13(b) is relevant because it reflects widespread international agreement that in jurisdictional disputes over custody, a mature child's objection to returning to the place of habitual residence should be considered. Mature children should have a say in their future lives. Moreover, this clause of Article 13(b) has a parallel in s. 64(1) of the CLRA. This section, like s. 23, is in Part III of the Act, and is headed "Child entitled to be heard". It provides:
In considering an application under this Part, a court where possible shall take into account the views and preferences of the child to the extent that the child is able to express them.
[78] The three Ojeikere children are able to express their views. They are of an appropriate age and maturity to do so. And I regard the views of a child of an appropriate age as potentially relevant to the risk of psychological harm if the child is ordered to return to the country of habitual residence. An adolescent child who expresses mature reasons for objecting to a court-ordered removal should give us pause. A 15-year-old who expresses a considered objection to returning to the country of habitual residence is harmed far more by a forced removal than is, say, a five-year-old.
[79] According importance to an adolescent child's own views even in a dispute over jurisdiction is also consistent with this court's comments in I. (A.M.R.I) v. R. (K.E.), 2011 ONCA 417, 106 O.R. (3d) 1. That case dealt with a return order decided under art. 13(b) of the Convention. Nonetheless, the court observed at para. 110 that taking into account the views and preferences of a child in accordance with the child's age and maturity "conforms with the spirit and intent of s. 64 of the CLRA". The court further observed that s. 64 applies in the context of custody, access, and guardianship proceedings, including, presumably, proceedings at the jurisdictional stage.
[80] The three Ojeikere children are now teenagers. As I have said, they are able to express their views. More telling, they have reached an age and, by their accounts to Ms. Jones, a degree of maturity where not only should their views be considered by the court, but they should be given significant weight. Their views speak directly to the risk of psychological harm they would suffer if required to return to Nigeria. This risk has five aspects. The first two are the most important; the last three deserve some, but not a great deal of weight.
[81] First, after having moved around a great deal and having gone to many different schools, the children now have some stability in their lives. And they want to maintain that stability. Sam, for example, in the years between 2007 and 2017, went to ten different schools, either in Canada, Nigeria, the United States, or South Africa. Now Sam and his siblings are settled in Ontario, have made friends here, and want to stay here.
[82] Second, all three children object to returning to Nigeria because in their considered view Canada offers them better opportunities to pursue their goals in life. In particular, getting a good education is of great importance to them. And they believe they would lose out on the educational opportunities available to them if they are living in Canada.
[83] The third aspect of the risk of psychological harm is the children's sibling status. Siblings are a part of a family unit and play "important role[s]" in each other's emotional well-being: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 25. In this case, each individual child's views and objections are important, but so too is the children's collective view. Where siblings' views align, as they do here, the maturity of the elder sibling may bolster the weight given to the younger siblings' views. All three children have expressed the same strong desire to remain in Canada while issues of custody and access are determined. Their collective desire to do so strengthens my conclusion under this factor.
[84] Fourth, the children perceive Nigeria as a place where "bad things happen". Their perception suggests they would experience some emotional upset from a court order requiring them to return there.
[85] Fifth, the children's desire to stay in Ontario is reinforced by their citizenship. All three children are Canadian citizens who would be entitled to stay here but for this custody dispute. Of course, the views and objections of non-Canadian citizens would also be relevant under s. 23. But the children's rights as Canadian citizens, rooted in their constitutional right under s. 6(1) of the Canadian Charter of Rights and Freedoms to remain in Canada, is an added consideration somewhat increasing the risk of psychological harm from being ordered to return to Nigeria.
[86] Overall, the fresh evidence shows that there is a real risk the children would experience a serious letdown in their hopes and aspirations for their futures if, over their objections, they were ordered to return to Nigeria. They would feel angry, sad, and resentful at once again having their lives disrupted.
[87] Of course, an order to return the children to Nigeria is not an order that they remain there. The Nigerian court would consider the evidence and may well ultimately order the children's return to Canada. But these proceedings take time. And in my view, the children would likely suffer serious psychological and emotional harm if now forced to return to Nigeria against their will.
[88] Based on the children's reasonable objections to returning to Nigeria, I assess the likelihood of psychological harm to be high, but its severity to be only moderately high.
(iv) Mrs. Ojeikere's Stated Refusal to Return to Nigeria
[89] Mrs. Ojeikere has said that if this appeal is dismissed and the motion judge's order remains in place, she will not return to Nigeria with the children. She claims that Mr. Ojeikere has made a police complaint about her and, more generally, that "there is nothing for her" in Nigeria. Her claim about a police complaint is unsubstantiated and I would give no effect to it. Mr. Ojeikere apparently did lobby the Nigerian Human Rights Commission to intervene when he did not know where the children were living. He did nothing more.
[90] If, however, Mrs. Ojeikere did carry through with her stated intention not to return to Nigeria because there is nothing there for her, her refusal almost certainly would affect the children, emotionally and psychologically. They would be separated from the parent who has been their primary care giver for most of their lives. Mr. Ojeikere himself acknowledges the children would likely suffer anxiety and guilt from being forced to go to Nigeria while their mother stayed in Ontario. And the children too have expressed genuine concern about not living with their mother.
[91] Mr. Ojeikere argues that by professing to stay in Ontario and separating herself from the children, Mrs. Ojeikere is manipulating them and, by her stance alone, trying to establish serious harm. I have some sympathy for his argument. Ordinarily, a parent in Mrs. Ojeikere's position ought not to be able to create serious harm and then rely on it through her own refusal to return to the country of the children's habitual residence – at least without a substantial reason for doing so, such as the risk of imprisonment or persecution, risk to health or physical safety, or the risk of a significant obstacle to employment.
[92] There may be cases where a parent's refusal to accompany the children back to the country of habitual residence could give rise to a serious risk of harm to the children. This case is not one of them. Mrs. Ojeikere lived in Nigeria for five years before abducting the children. Her vague assertion there is nothing for her in Nigeria does not establish a substantial reason for refusing to return there. I give no weight to this factor.
(e) Conclusion on Serious Harm
[93] This is a close case. Admittedly, the children lived in Nigeria for five years from between 2011 and 2016 without any evidence of being seriously harmed. And it is possible that a return to Nigeria to decide custody and access would ultimately culminate in the children's return to Ontario, the place where they want to live.
[94] On the basis of the fresh evidence, however, I am persuaded on a balance of probabilities that the three children would suffer serious harm if now ordered to return to Nigeria to await a custody and access determination in the Nigerian courts. I rest my conclusion principally on the risk of physical harm in the form of physical discipline with objects compounded by the risk of psychological harm arising from these adolescent children's mature views and objections to returning to Nigeria.
E. Conclusion
[95] I would admit the OCL's fresh evidence and allow Mrs. Ojeikere's appeal. I would set aside the order of the motion judge, and order that the Ontario Superior Court has jurisdiction to determine the custody of and access to the parties' three children.
[96] I would also order that Mrs. Ojeikere have interim custody of the children and be permitted to remain with them in Ontario pending a further order of the court. Mr. Ojeikere shall have generous access to the children by telephone, email, other social media, or personal visit. If the parties cannot agree on the terms of access either may apply to the Superior Court for interim relief.
[97] Finally, I emphasize that the proposed order is an interim order. Mr. Ojeikere as well as Mrs. Ojeikere will have the right to fully participate at a hearing to determine final custody of and access to the children. That hearing will take place in Ontario, not Nigeria.
[98] This is not a case for costs, and I make no order for costs.
"John Laskin J.A."
"I Agree. K. Feldman J.A."
B.W. Miller J.A. (Concurring)
A. Introduction
[99] I have read the draft reasons of my colleague Laskin J.A. and agree with him that the appeal should be allowed. However, I agree only in part with his reasons for arriving at this conclusion.
[100] Justice Laskin considers the risks of both physical and psychological harm to the Ojeikere children. He concludes that the risk of physical harm in this case "alone weighs heavily in support of a finding of serious harm." I agree. But while he rests his conclusion "principally on the risk of physical harm in the form of physical discipline with objects", he adds that the serious harm in this case is "compounded by the risk of psychological harm arising from these adolescent children's mature views and objections to returning to Nigeria". I do not agree with this secondary argument.
[101] This is for two reasons. First, what Laskin J.A. characterizes as psychological harm is mere disappointment. Disappointment is not harm, let alone serious harm. If the underlying cause of disappointment is not harm for the purposes of s. 23, then the disappointment itself can neither tip the scales nor stand as an independent harm, absent some psychological pathology, of which there is no evidence. Accordingly, the disappointment of the Ojeikere children at being returned to Nigeria does not constitute nor contribute to the requisite serious harm. Additionally, I do not agree that the CLRA should be interpreted as having adopted a lower threshold of serious harm than that established by the Hague Convention, particularly because the issue was not put to any of the parties.
[102] Second, I find my colleague's reliance on s. 6 of the Charter as an "added consideration" increasing the risk of psychological harm to be problematic. There is a serious defect in the appeal to "Charter values" made by the Office of the Children's Lawyer ("OCL"), which my colleague adopts. The argument treats the s. 6 right of citizens to remain in Canada as though it were not subject to the reasonable limits requirement of s.1, and fails to consider how legal principles derived from Charter rights are limited or shaped by other principles of a free and democratic society such as, in this case, respect for parental autonomy and the duty to honour commitments made to other states, such as the Hague Convention.
[103] Each of these arguments is addressed below.
B. Analysis
(1) The Meaning of Serious Harm in the CLRA: The Argument from Disappointed Expectations
(a) Psychological Harm
[104] I would not give any weight in this case to the risk of psychological harm. To treat disappointment as serious harm would convert the serious risk of harm standard into a best interests assessment. This is, in my view, inconsistent with the statutory approach to child abduction under the CLRA and would, contrary to the clear aims of s. 22, incentivize unilateral self-help remedies with their associated harms.
[105] "Harm" is capable of an extremely broad reading: it can indicate any set-back or impairment of a person's genuine interests, whether catastrophic or trivial. Severity of harm is thus a function of both the importance of the interest affected and the degree of impairment.
[106] In the context of the child abduction provisions in s. 23 of the CLRA, "serious harm" has a much more restricted meaning. In order to discourage harm to children (and other family members) caused by unilateral removal, child abduction will not be excused, except where return would place children at risk of serious harm. In assessing what constitutes "serious harm", a judge is not to replicate the best interests analysis: Thomson v. Thomson, [1994] 3 S.C.R. 551, at p. 578. That analysis belongs to the subsequent custody and access hearing, after the children have been returned to the jurisdiction where they were habitually resident prior to the abduction, and the status quo restored.
[107] Best interests analyses and serious harm assessments are different. A "best" interests inquiry is a matter of optimization of a child's many interests. It is a complex and comparative inquiry into which of (potentially several) proposals will best realize the many different goods needed to best secure a child's well-being. The serious harm inquiry, in contrast, is focused on discrete threats that would potentially imperil a threshold of well-being. Although serious harm and best interests can both be assessed by reference to the same basic needs of the child, not every suboptimal set of circumstances constitutes a serious harm: the serious harm standard must operate at a higher threshold. For example, although it would be a serious harm to return children to a place where they would be unable to receive an education, a child would not suffer serious harm in the relevant sense if sent to a public school, rather than an elite private school. Neither would a child be harmed per se by a compelled return from a more economically prosperous state to a less economically prosperous one. If neither of these circumstances constitutes a risk of harm, then a fortiori, the disappointment they cause cannot either.
[108] While my colleague and I agree on this articulation of the "serious harm" standard in the abstract, I cannot agree with his contention that disappointment can constitute serious harm.
[109] Neither is there support for this proposition in the CLRA. Section 64(1), on which my colleague relies, is a generic provision providing a child with a right to be heard within custody, access, and guardianship proceedings. It reflects the common sense proposition that it would be unfair not to consider a child's insights into his or her needs, circumstances, and desires when assessing whether a proposed custody or access arrangement is truly in a child's best interests. But it does not provide, or suppose in "spirit and intent", that not giving effect to a child's autonomous choices can be an independent source of harm to that child.
[110] In any event, no psychological harm has been identified in this case, and no evidence supporting it has been presented to the court. Unlike the case of H.E. v. M.M., 2015 ONCA 813, 393 D.L.R. (4th) 267, there is no expert clinical evidence here establishing that any of the children are at risk of psychological harm from a return to Nigeria. Frustrating a child's perceived interests – whether the child is mature or not – cannot be sufficient to engage the serious harm override. If it were, the serious harm analysis would become indistinguishable from the best interests test. Given a statutory scheme that clearly intends to discourage unilateral removal of children from their habitual residence, the threshold for serious harm must be set higher than best interests, and there must be evidence to support the claim. A child's regret at returning to the place of habitual residence cannot validate unilateral removal by a parent.
(b) The Serious Harm Standard in the CLRA versus the Hague Convention
[111] Laskin J.A. suggests that the threshold for "serious harm" under the CLRA is lower than for the harm override contained in the Hague Convention. This is a novel argument, and was not advanced by either party or the OCL. Accordingly, this court did not have the benefit of any submissions on point. Indeed, the OCL took the position that the serious harm standard in the CLRA is equivalent to the standard in the Convention. Even if I were persuaded by my colleague's argument, it would be inappropriate to adopt a new interpretation of the CLRA in these circumstances. But I have substantive concerns with the approach as well.
[112] In support of reading the CLRA as establishing a lower threshold for finding of risk of serious harm, my colleague contrasts the assurances offered by signatory versus non-signatory states. However, since it is s. 23 of the CLRA and not the Convention that would apply to returns within Canada, I do not find this contrast compelling. It is not plausible that the legislature would have established a greater barrier to the return of abducted children to, say, Prince Edward Island, than to an impoverished and conflict-ridden country that may happen to be a Convention signatory.
[113] Furthermore, the fact that a state is not a signatory to the Convention does not entail that it is not committed to resolving custody and access disputes according to best interests criteria. Nigeria is not a signatory to the Convention but is a signatory to the United Nations' Convention on the Rights of the Child, which is a substantive declaration committing signatories to adopting best interests standards in their domestic law.
[114] In any event, the precise placement of the threshold for engaging the harm-based jurisdictional override is not determinative in this case. It is the risk of physical harm to the children that alone requires this court to exercise jurisdiction.
(2) Are the Children at Risk of Serious Harm?
[115] As noted above, I agree, for the reasons given by Laskin J.A., that the risk of physical discipline with objects constitutes a sufficient risk of serious harm. That is not to say - and my colleague does not say - that it would necessarily be harmful to return a child to a jurisdiction where, as in Canada, physical discipline within limits is lawful, or to a home where physical discipline is practiced: Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General), 2004 SCC 4, [2004] S.C.R. 76.
[116] Laskin J.A. does not argue that the evidence discloses a risk of serious harm in a return to Nigeria, absent what he characterizes as psychological harm. I agree. Although Nigeria may have a weaker economy than Ontario, a return to a jurisdiction with a comparatively weaker economy is not in itself harmful. To hold otherwise would have significant implications for Canada's obligations to many, if not most, states signatory to the Convention. In any event, on the evidence before us, the children have lived secure and prosperous lives in the capital city of Nigeria. Both of their parents have advanced degrees and their father is a deputy director of the Bank of Nigeria. The father's decision to return to Nigeria was driven by the better employment opportunities available to him there. The children lived in gated estate communities with a domestic staff. As in Ontario, they played on sports teams and took music lessons.
[117] What Laskin J.A. identifies as psychological harm is the children's anticipated reactions to missing out on opportunities available to them in Ontario, such as (the children say) a better path to Ivy League education. Fear of missing out, however, is not an indicia of serious harm. It would be an error to equate disappointment – even disappointment at the loss of some undeniably valuable opportunity – with psychological harm. As I noted above, there is simply no evidence to support the risk of psychological harm asserted by the OCL and accepted by my colleague. Ms. Jones (the in-house clinician with the OCL) characterizes the children as "resilient", and objects that it is unfair "that their resilience could somehow penalize them." But the court's function, at this stage, begins and ends with a determination of whether a child faces a risk of serious harm. Where children do not face a risk of serious harm, the law addressing such risks has no application.
(3) Charter Rights and Charter Values
[118] As Laskin J.A. notes, there are no Charter rights at issue in this appeal. The constitutionality of the CLRA is not challenged, and private parties have no rights over, or duties to, each other under the Charter: RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, at pp. 597-599. Neither is there an argument that an order to return the children to Nigeria would be inconsistent with their rights under s. 6 of the Charter. However, my colleague suggests that the children's "rights as Canadian citizens, rooted in their constitutional right under s. 6(1) of the Canadian Charter of Rights and Freedoms to remain in Canada, is an added consideration increasing the risk of psychological harm from being ordered to return to Nigeria."
[119] With respect, there are four difficulties with this argument.
[120] First, neither the legal incidents of citizenship nor any legal principles associated with s. 6(1) of the Charter have any bearing on the question whether returning the children to Nigeria would place them at risk of serious psychological harm.
[121] Second, acceding to this argument would imperil Canada's international commitments, since it would grant an implicit exemption to Canadian citizens from the ordinary application of the Convention. As Justice Sharpe wrote for the court in Balev v. Baggott, 2016 ONCA 680, 133 O.R. (3d) 735, at para. 83, "[i]t is important to remember…that although this case involves the interests and needs of these two young children, it raises legal issues that transcend their interests and that affect the interests of countless other children and their parents."
[122] Third, while the OCL urged the court to give significant weight to the children's status as Canadian citizens, there has been no argument in this appeal, and no determination, of the scope of the children's s. 6 Charter rights. The content of a Charter right cannot simply be read off the page. The basic architecture of the Charter directs that the scope of a substantive Charter right is established only after considering "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." That is, a definitive statement of what a Charter right protects can only be made in context after considering whether, or to what extent, limits on a purported exercise of right can be justified: Guy Régimbald and Dwight Newman, The Law of the Canadian Constitution, 2nd ed. (Markham: LexisNexis Canada, 2017), at pp. 546-47; Grégoire Webber, "Rights and Persons" in Grégoire Webber, Paul Yowell et al, Legislated Rights: Securing Human Rights Through Legislation (Cambridge: Cambridge University Press, 2018) p. 27 at 32-39. It is settled law, for example, that s. 6 (properly qualified by s. 1 considerations) does not preclude extradition, given that the purpose of extradition is not exclusion from membership in the national community: United States of America v. Cotroni, [1989] 1 S.C.R. 1469, at p. 1482. Just as the extradited citizen is eventually free to return to Canada, so too is the child citizen who, at the direction of one or both parents, is relocated overseas.
[123] Fourth, this court has previously addressed the problem of unstructured, ad hoc appeals to principles associated with the Charter – so-called "Charter values": E.T. v. Hamilton-Wentworth District School Board, 2017 ONCA 893, at paras. 103-105; and Gehl v. Canada, 2017 ONCA 319, 138 O.R. (3d) 52, at paras. 76-83. See also, Matthew Horner, "Charter Values: The Uncanny Valley of Canadian Constitutionalism", (2014) 67 S.C.L.R. (2d) 361. This form of reasoning lacks the doctrinal rigour of Charter rights reasoning. It is prone to idiosyncratic application, ignoring competing principles derived from the limitation provision of s.1 (itself a very broad set of principles) and other Charter rights, as well as those derived from common law and legislation. It trades on a false equivalence with Charter rights, asserting an unearned priority over other legal principles. But the mere labelling of a legal proposition as a Charter value cannot confer on it any greater priority or weight than it would otherwise merit. Within the constraints established by a legal system, a proposition's priority in legal reasoning is a function of its rational strength.
C. Conclusion
[124] The children's daily care and nurture was, until Mrs. Ojiekere unilaterally relocated the children to Mississauga, in large measure delegated to domestic employees and an annually changing roster of schools in several different countries. The children were most unhappy under this regime. Finally, they have some stability, the focussed attention of a parent, and appear to be happy and thriving. I have considerable sympathy for the argument that this stability should not now be jeopardized.
[125] I also keep in mind that were it not for the dissolution of this family and the commencement of custody and access proceedings, government and law would have no authority to intervene in any of the parents' decisions about which countries their children would live in, or what schools they would attend.
[126] Were these the only matters in issue, I would not be able to find that a return to their father's house in Nigeria pending a custody and access hearing in the Nigerian courts would put these children at risk of serious harm.
[127] But that is not the only issue. There is the risk of serious harm from physical mistreatment from their father. On the record before us, the father is not accustomed to living with the children, is easily angered by them, and has a history of striking them with objects when angry. This establishes, in my view, a serious risk of harm should the children be returned. On this basis alone, I agree that the jurisdictional override is engaged and that Ontario should exercise jurisdiction to determine custody of and access to the Ojeikere children.
D. Disposition
[128] I would allow the appeal.
Released: April 17, 2018
"B.W. Miller J.A."
