Court File and Parties

Court File No.: D60961/13 Date: 2013-12-16

Ontario Court of Justice

Toronto North Family Court

Between:

B.T.O. Applicant

-and-

A.A. Respondent

Counsel:

• Cynthia Mancia, for the Applicant
• Joan Manafa, for the Respondent

Heard: December 9-11, 2013

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The parties are the parents of two boys, L1, age 14 and L2, age 12. The parties were married in 1998 and separated on July 3, 2009. They subsequently entered into a comprehensive separation agreement dated April 21, 2011 (the separation agreement). The parties agreed that the applicant (the mother) would have custody of the children and the respondent (the father) would have specified access to them. The parties agreed that the children's residence would remain in the Greater Toronto Area unless they consented, or a court ordered otherwise.

[2] The mother remarried on December 21, 2012. Her husband (Mr. O.) lives in Nigeria. The mother has applied to the court for permission to move immediately with the children to live with Mr. O. in Nigeria until the summer of 2016. She asks that the court dispense with the father's consent to permit her to travel with the children outside of Canada. She has proposed that the father have extended holiday and summer access with the children. The mother is willing to waive the father's child support obligation while she resides in Nigeria. She is also prepared to pay for one trip each year for the children to visit the father in Canada and asks that the father also pay for one trip each year for the children to come to Canada. The mother proposed that this court retain jurisdiction over any future court proceeding involving the children.

[3] The father asks that the mother's application be dismissed. He asks that the custody/access provisions of the separation agreement be incorporated into a court order and that the court make an order prohibiting the children from being removed from the Province of Ontario. He also asks that he be awarded custody of the children if the mother moves to Nigeria.

[4] The primary issues for the court to decide are:

a) Should the mother be permitted to change the children's residence to Nigeria?

b) If the answer to the above question is yes, on what terms and conditions should the move be permitted?

Part Two – Factual Background

[5] The mother is 44 years old. The father is 49 years old.

[6] The parties were both born in Nigeria. They were married in Nigeria on March 14, 1998. Their first child, L1, was born in Nigeria in 1999. They moved together with L1 from Nigeria to Canada in 2000. They resided together in Toronto until their separation on July 3, 2009, when the mother moved with the children into a women's shelter.

[7] The mother has a university degree in Computer Science and a Master's Degree in Business Administration. She was employed as a Program Manager for the Toronto Airport Authority until her job was eliminated in November of 2013. At the time, she was earning over $100,000 per annum. She is currently unemployed.

[8] The father has a university degree in Banking and Finance and a law degree from the University of Lagos in Nigeria. Prior to coming to Canada, the father was the head of Treasury and Financial Services at a bank in Nigeria. In Canada, the father testified that he is a Level 4 Certified General Accountant and has completed a Canadian Securities Course. The father has worked as an accountant for the same company for eleven years. He testified that he presently earns $77,000 per annum.

[9] The children have lived with the mother since the parties separated. The father did not see the children for ten months after the separation.

[10] The mother subsequently obtained counsel and proposed the negotiation of the separation agreement. The father also obtained counsel. At this point access started.

[11] The parties eventually resolved all issues between them in the separation agreement, including parenting, support and property issues. The separation agreement includes the following terms:

a) The mother has final custody of the children. The parties are to confer on plans and arrangements for the children. The father is entitled to obtain information directly from service providers for the children.

b) The father has access to the children on alternate weekends from Saturdays at 10:00 a.m. until Sundays at 8 p.m.

c) The children are to spend equal time with the parents during the March Break, Winter School Break and during the summer. There is also a sharing of statutory holidays and birthdays.

d) The father pays child support of $776 per month to the mother and is required to annually provide her with his Notices of Assessment, with support to be recalculated annually, based on his income.

e) The mother is required to pay spousal support of $184 per month to the father for eight years.

f) The father was required to make an equalization of net family property payment to the mother of $28,878. The father kept the matrimonial home that was registered in his name.

g) The parties released all other claims against the other.

[12] Paragraph 5.1 of the separation agreement addressed the children's residence as follows:

5.1 The children will continue to live in GTA to facilitate frequent and convenient contact with both parents. The parties agree that this will be in the children's best interests. The Mother will not, therefore, change their residence to one outside of GTA without first giving the other parent 60 days notice, and obtaining the consent of that parent or a court order permitting the move. It is contemplated that the children will not in any event be living in an apartment with less than two bedrooms for the children's best interest.

[13] Paragraph 7.1 of the separation agreement addressed travel as follows:

7.1 To facilitate convenient travel with either party, any passport obtained for the children shall be in their own name (rather than being on the passport of a party).

Both parties will each provide reasonable consent to the other parent to travel with the children.

Both parents shall be permitted to travel outside of Canada for vacation purposes with the children and shall provide the other parent with 30 days advance notice of such travel.

The passport will normally be kept by the Mother but will be given to the Father when he provides her with notice that he intends to travel with the children.

[14] The father, for the most part, has exercised his access since the separation agreement was executed.

[15] The parties agreed that their level of communication is poor. They only communicate by email about the children.

[16] The mother began communicating by email with Mr. O. about her separation in 2010. He had been her former employer in Nigeria. Mr. O. and his wife had also been friends with both parties. By the end of 2011, the mother and Mr. O were communicating daily. The mother testified that the relationship became serious early in 2012 and Mr. O. traveled to Canada on a few occasions to be with her. They were married in Canada on December 21, 2012.

[17] Mr. O. is 55 years old and divorced. He has two adult children. One is a medical doctor in the United States. The other child lives with him and is planning to return to university.

[18] Mr. O. testified that he is a prominent businessman in Nigeria. He is the principal owner of a major software corporation that employs over two hundred people. He deposed that the gross revenues of the corporation are about ten million dollars each year. He has owned and run this company for over twenty years. Mr. O. deposed that he sits on technology advisory boards for the Nigerian government and has been nominated this year as Software Person of the Year in Nigeria.

[19] Mr. O. testified that he earns about $250,000 per annum (in Canadian dollars). He owns 5 properties in British Columbia and three properties in Nigeria.[1]

[20] Mr. O. has travelled frequently between Canada and Nigeria to see the mother and the children in 2013. The mother travelled to Nigeria in February of 2013.

[21] The mother sponsored Mr. O. to come to Canada in April of 2013. This sponsorship was approved by the Canadian government in November of 2013, and Mr. O. became a landed immigrant on December 5, 2013.

[22] The mother issued this application on May 17, 2013. She is seeking permission to move to Nigeria, pursuant to the provision in section 5.1 of the separation agreement. The father's Answer/Claim, opposing the application, is dated June 17, 2013.

[23] The parties agreed to expedite the hearing of this case. At a case conference before Justice Geraldine Waldman on June 27, 2013, they agreed to jointly retain a lawyer to obtain the views and preferences of the children. On August 6, 2013, they jointly retained Lauren Israel for this purpose. Justice Waldman endorsed that the parties were to agree on the initial payment for Ms. Israel, subject to reapportionment by the court.

[24] The parties subsequently agreed that Ms. Israel would be a joint witness of the parties at trial. She would give evidence about the views and preferences of the children and both parties would have the opportunity to cross-examine her. It was agreed that she was not counsel for the children and would not otherwise participate in the trial. This was a child-focused decision by the parties. It allowed the court to receive independent evidence from the children about their views and preferences without the need for them to testify in front of their parents.

Part 3 – The Legal Framework

[25] The Supreme Court of Canada decision in Gordon v. Goertz, 19 R.F.L. (4th) 177 S.C.C. set out a two-stage process for the court to conduct in mobility cases.

a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

[26] Gordon v. Goertz was decided under the Divorce Act. However, the case law is clear that the legal principles also apply to cases brought under the Children's Law Reform Act. These principles also apply when there is no court order and a party is attempting, as is the case here, to change the terms of a separation agreement through an originating application. See: Woodhouse v. Woodhouse, 20 R.F.L. (4th) 337 (Ont. C.A.).

Part 4 – Material Change in Circumstances

[27] In Gordon v. Goertz (Paragraphs 10-16), the court discusses what evidence is required for the moving party to meet the threshold condition of establishing a material change in circumstances. The court says that the question is whether the previous order might have been different had the circumstances that now existed prevailed earlier.

[28] The onus of establishing the material change is on the person seeking the change. If the material change cannot be established, the claim is to be dismissed.

[29] The non-removal clause in this case is not dissimilar to the non-removal clause which was discussed in the case of Ligate v. Richardson, 34 O.R. (3d) 423 (Ont. Court of Appeal) where Moldaver J.A. said at pg. 440-441:

Turning to the residence clause in issue, I do not read it to mean that the parties foreclosed the possibility that at some future date, Ashley's best interests might be better served by permitting her to reside outside of Metropolitan Toronto. In fact, the clause is worded in a way that suggests just the opposite. In my view, the primary purpose of the clause was to provide Richardson with advance notice of any proposed move on Ligate's part. Thereafter, if Richardson chose to withhold his consent, Ligate could seek court approval.

[30] The non-removal clause in the separation agreement does not preclude the court from engaging in the Gordon v. Goertz analysis.

[31] The court finds that the mother has established a material change in circumstances since the date of the separation agreement. She has established a new relationship, married a man who lives in Nigeria and plans to move there with the children to live with him, for two to three years, while Mr. O. completes his business affairs there. The family then intends to return to Canada. This is a change in circumstances that materially affects the needs and circumstances of the children. This change in circumstances was not reasonably foreseeable when the separation agreement was executed.

Part Five – Best Interests

5.1 Legal Considerations

[32] The court in paragraphs 49 and 50 of Gordon v. Goertz sets out principles and criteria for determining what is in a child's best interests as follows:

49 The law can be summarized as follows:

a) The inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

b) The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.

c) Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.

d) The focus is on the best interests of the child, not the interests and rights of the parents.

e) More particularly, the judge should consider, inter alia:

1. the existing custody arrangement and relationship between the child and the custodial parent;

2. the existing access arrangement and the relationship between the child and the access parent;

3. the desirability of maximizing contact between the child and both parents;

4. the views of the child;

5. the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;

6. disruption to the child of a change in custody;

7. disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new.

[33] Both parents bear the evidentiary burden at this second stage of the inquiry. The court must weigh the benefits and detriments of the proposed move from the perspective of the children.

[34] I have considered the above principles and criteria in making my decision. I have also considered the best interest factors detailed in subsection 24(2) of the Children's Law Reform Act that reads as follows:

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[35] The Nova Scotia Supreme Court in N.D.L. v. M.S.L., 2010 NCSSC 68 listed additional factors (in paragraphs 9 and 10) that courts have considered when applying the framework in Gordon v. Goertz as follows:

[9] An analysis of cases that have applied these principles provides additional detail to the factors to be considered. Those details are:

(a) the number of years the parents cohabited with each other and with the child

(b) the quality and the quantity of parenting time

(c) the age, maturity, and special needs of the child

(d) the advantages of a move to the moving parent in respect to that parent's ability to better meet the child's needs

(e) the time it will take the child to travel between residences and the cost of that travel

(f) feasibility of a parallel move by the parent who is objecting to the move

(g) feasibility of a move by the moving parents new partner

(h) the willingness of the moving parent to ensure access or will occur between the child and the other parent

(i) the nature and content of any agreements between the parents about relocations

(j) the likelihood of a move by the parent who objects to the relocation

(k) the financial resources of each of the family units

(l) be expected permanence of the new custodial environment

(m) the continuation of the child's cultural and religious heritage

(n) the ability of the moving parent to foster the child's relationship with the other parent over long distances

[10] There have been cases in which judges have remarked that it is in the best interest of a child to be in the care of a parent who is happy and who feels secure and thus the parent should not be "...denied the opportunity to be the most fulfilled person she can be...." (McCullogh v. Smith, 2007 NSFC 23 at para. 43)

5.2 Discussion of the Mother's Evidence and Her Plan

[36] The mother was a very impressive witness. She presented as reasonable, thoughtful, and child-focused. Her evidence was consistent and balanced. She was a very credible witness. I preferred her evidence where it conflicted with the father's.

[37] The mother testified that she was the primary caregiver for the children while the parties cohabited. She described her relationship with the father as abusive. She said that she eventually left with the children to live in a women's shelter in July of 2009.

[38] The mother said that shortly after, she moved into an apartment with the children. The father, she said, chose not to have any contact with the children. He only sought access with the children when she initiated settlement negotiations ten months later.

[39] The mother testified that, for the most part, the father has consistently exercised his access since its resumption. The father, she said, has chosen not to exercise any telephone access to the children for the past two years. There have been no impediments placed on these calls. The father acknowledged that the children do not call him.

[40] The evidence showed that the mother has facilitated the children's relationship with the father. The father acknowledged that she has been flexible in rearranging access times at his request. She has not denied any access visit. When she moved into new accommodation with the children in December of 2012, she agreed with the father's request to change the exchange location to a mall, instead of the more convenient location of her building entrance (the location agreed to in the separation agreement). The mother spoke about the importance of the children's relationship with the father, and the importance of preserving it.

[41] The mother has clearly been the primary caregiver for the children and has done an excellent job in this role. The children were described by witnesses in positive terms. Ms. Israel described them as mature for their age. The mother is the person who has organized the children's lives. She is the parent involved with their schools. She takes them to doctors and attends to their medical care. She arranges their extra-curricular activities. She is the parent who has most consistently met their physical and emotional needs.

[42] The evidence established that the mother has made responsible and child-focused decisions for the children.

[43] The evidence also established that the children are most closely connected to the mother. She has been the parent who has been consistently present for them. It is in their best interests to remain with her.

[44] The mother had initially hoped to move with the children to Nigeria for the start of the September, 2013 school year, but the hearing of this case could not be accommodated that quickly. She asks that the court permit an immediate move so the children can begin the January, 2014 school term in their new school in Nigeria. The mother said that the children will need to write a test before the term starts for the school to determine their academic level and any supports they might require. If possible, she would like to have this done before the school closes for the winter break.

[45] The mother provided a well-considered, detailed and child-focused plan for the proposed move to Nigeria.

[46] The mother traveled to Nigeria in February of 2013 to explore housing and schooling options for the children. She testified that she wanted to create an environment for the children similar to the one they would experience in Canada, to ease any transition for them.

[47] Mr. O. has recently purchased a large home in a gated community near Lagos for the family to live in. The house is located in an affluent subdivision of 50 homes and will be very comfortable housing for the children. Mr. O. has built a basketball court in the backyard, as the children like to play that sport. The mother testified that there are many families with children in the area. There is a playground in the subdivision and recreational facilities and theatres nearby.

[48] The mother deposed that she plans to remain at home full-time to ease the children's transition to Nigeria. She will receive considerable assistance. Mr. O. has hired a driver for her and the children, a housekeeper/cook and another person who will come in, at times, to assist her in the evenings.

[49] The mother deposed that the children will attend an elite private school in Nigeria. Many of the students in this school are being prepared for post-secondary schools abroad. The mother was very impressed by the school. The school is very modern by Canadian standards. It has excellent facilities and equipment, with a swimming pool, athletic fields, a basketball court and computers. She said that the school has small class sizes and provides additional teacher support and counselors to assist the transition of children to the school. The plan is for L1 to be enrolled in Grade 10 and L2, in Grade 7. The school is a 30-minute drive from where the children will live. The children will be driven to and from school.

[50] The mother and Mr. O. testified that the level of education in this school is comparable to that of the current schools of the children. Mr. O. testified that he is very familiar with the Nigerian education system. He said that his children and many of his other extended family members were educated there and went on to success in North American universities. The father, who disagreed about the quality of Nigerian education, acknowledged that he and many of his family members were educated in Nigeria and went on to success (many at universities) in North America.

[51] Mr. O. gave balanced evidence on this issue. He acknowledged that the quality of education in Nigeria depends on one's financial status. In his financial circumstances, he said, the children would be ensured of an excellent educational experience. He went on to say that the quality of Nigerian universities is not close to those in North America and it would be important for the children to return to Canada to go to university.

[52] The court finds that the children's educational needs will be appropriately met if they move to Nigeria.

[53] The mother testified that most of her extended family lives in Nigeria and the children will benefit from getting to know them better. Her mother and several siblings live there. The children have cousins close in age to them. The mother plans for the children to spend a lot of time with her family. This will assist the children in their transition to a new country and ensure that they do not feel isolated.

[54] The mother deposed that she traveled with the children to Nigeria on four occasions (without the father) to visit her family members from 2004 to 2009. Members of her family from Nigeria have visited with them in Canada. The children know many of these family members.

[55] The mother expressed her belief that the children will benefit by learning more about their cultural roots and spending time with their extended family. She said that their world-view will be broadened. Mr. O. said that this could create opportunities for the children in the future. There is merit in their observations.

[56] The mother was realistic in acknowledging that the children will have some disruption in leaving their school, friends and father and moving to a new country and culture. She has taken appropriate steps to minimize this disruption. The children will remain in contact with friends through social media and have the opportunity (if the father facilitates it) to visit with them during the summer and winter breaks in Canada. The mother testified that many of the children's friends are of Nigerian heritage and visit family in Nigeria. She will do her best to ensure contact with these friends during these trips. The mother will not work and will be present at home to ease the children's transition. She has arranged for the children to live in a community and attend at a school (where English is the primary language) comparable to their Canadian experience.

[57] The mother emphasized the importance of maintaining the children's relationship with the father. She deposed that she had been prepared to have the children spend two months with the father during the summer, until the children expressed to Ms. Israel that they only wanted to spend one of the summer months with him. She wishes, she said, to respect the children's wishes. She had also proposed that the children spend one week with the father over the winter school break, in accordance with the children's expressed wishes. The mother acknowledged that while this plan does not maintain the frequency of contact with the father, her initial proposal (2 summer months and 2 winter break weeks), provided the father, overall, with close to the current amount of time he spends with the children.

[58] The mother also proposes that the children maintain frequent contact with the father through Facebook, Skype and email. She said that she would encourage and facilitate this contact. Courts have recognized, in permitting a parent to move away with children, that modern-day technology has made it significantly easier to overcome the distance problem with respect to access and maximizing contact with the other parent. See: Jensen v. Jensen, [2006] O.J. No. 3357, (Ont. Fam. Ct.); Ryall v. Ryall, 2009 ONCJ 687.

[59] The mother is also agreeable to the father visiting the children in Nigeria. She deposed that if the children are not in school, she would agree to the children spending extended overnight time with the father, and if he is in Nigeria during their school year, he have generous day access. The father has extended family in Nigeria and has travelled there several times, including for three weeks in September of 2013.

[60] The mother recognized that it will be expensive for the children to travel to Canada and for the father to travel to Nigeria. She presented a very reasonable proposal to address this. She has agreed to forego child support while the children live in Nigeria. She will continue to pay the spousal support to the father set out in the separation agreement. She is willing to pay for one trip for the children to come to Canada each summer, and proposes that the father pay for a second trip during the children's winter school break.

[61] The mother's plan appropriately addresses the maximum contact principle.

[62] The mother's desire to move to Nigeria with the children is understandable. She wants her family to be together. This is not a decision based on malice or to diminish the father's relationship with the children.

[63] Mr. O. provided the court with a very reasonable explanation as to why he needs to remain in Nigeria for the next two to three years. He is the key person in a large and complex corporation. The Nigerian government and most banks in Nigeria use his company's software to pay employees and their accounts. He testified that there are over one million users of this software. Mr. O. testified that he is in the process of obtaining foreign investors to buy out most of his capital in the business. He would then need to arrange for the orderly transition of a new management team. It is understandable that he doesn't want to hold a fire sale for this valuable asset and that he wants the company to operate in a responsible fashion for its many users while he arranges for new management. The court accepts that Mr. O. needs to remain in Nigeria while this process takes place.

[64] Mr. O. testified that he has started this transition process. He is arranging for a consultant to assist with this. He expects this transition to take two years and stated that he has built in another year for any unexpected contingencies.

[65] The mother testified that the children are developing a positive relationship with Mr. O. She said that they are friendly and joke around with each other. She emphasized that the respondent is the father of the children and it is not her intention that Mr. O. take over this role. The mother said that the children have supported her marriage to Mr. O., and have told her that they just want her to be happy.

[66] The mother testified that she has a very good relationship with Mr. O. The court observed that they interacted in a warm, respectful and supportive manner during the trial.

[67] The mother clearly stated her intention to return to Canada at the end of the children's school term in July of 2016. She wants the children to attend at Canadian universities. She owns a condominium in Toronto. She plans to keep this property and rent it out. Mr. O. has already been approved as a landed immigrant in Canada and plans to make Canada his home.

5.3 Discussion of the Children's Evidence

[68] Lauren Israel described to the court her process in obtaining the views and preferences of the children. Counsel sent her the continuing record in this case, which she read. She then arranged to meet separately with both parents to obtain their perspectives. She then met with the children on three separate occasions to ensure the consistency and reliability of their views. She met the children once in each parent's home and then separately at their schools. She also spoke to the principals at the children's schools. She then held a telephone disclosure meeting with the parents.

[69] Ms. Israel testified that the children were very aware of the trial and their parent's different positions on where they should live. She described them as overwhelmed by the process. She said that they love both parents very much.

[70] Ms. Israel described the children as mature beyond their age and honest to the point of bluntness. She was confident that the children's views and preferences expressed to her were independent.

[71] Ms. Israel testified that L1's school principal advised her that L1 is doing fine and is actively involved in the school. This was verified by his report card. L2's principal reported that there were some concerns about L2's behaviour – that he was sometimes aggressive to other students and disruptive in class. This was supported by his report card, which also reflected mediocre grades.

[72] Ms. Israel said that L2 was consistently adamant in their meetings that he was going to Nigeria with his mother and was excited about the opportunity of learning a different way of life.

[73] Ms. Israel deposed that L1 was slower warming up to the idea of moving to Nigeria. At their second meeting, he told Ms. Israel that he was struggling with the decision, but that he definitely wanted to live with his mother. At their third meeting, L1 expressed that he would prefer that his mother stay in Canada, but he was not willing to live with his father in Toronto. He told Ms. Israel that he was willing to go with his mother to Nigeria. He told Ms. Israel that he planned to stay in contact with his friends through social media.

[74] Ms. Israel deposed that the children asked to spend one, not two months with the father in the summer and one, not two weeks with him during the winter school break.

[75] Ms. Israel said that the children were very concerned about what the father's reaction would be when he learned about their views and preferences.

[76] Ms. Israel stated that just before the trial she confirmed L1's views and preferences in a telephone call. They had not changed.

[77] The father testified that Ms. Israel misunderstood the views and preferences of the children, in particular, those of L1. The court disagrees. The evidence of Ms. Israel was clear. The process she used was appropriate to determine the independent wishes of the children. The wishes of L2 were consistent and forceful. Ms. Israel presented the subtleties of L1's views and preferences, which developed in a thoughtful and logical manner.

[78] The father claims that the mother pressured the children to express these views and preferences. The evidence did not support this view. Ms. Israel did not feel this was the case. In fact, the evidence indicated that it was the father who inappropriately pressured the children to say that they wanted to stay in Canada. Despite being asked not to discuss the matter with the children by Ms. Israel, the father immediately pressured L1 and had him sign a letter stating that he wanted to stay in Canada and live with his father.[2] (I did not find the father's evidence that L1 volunteered this letter to be credible). The father acknowledged that he told the children of the risks that they faced in Nigeria – that they were at risk of being attacked or kidnapped. He felt that they had the right to know about this. Despite this pressure, the children maintained their views and preferences to Ms. Israel.

[79] The court finds that the views and the preferences of the children are independent. While they are not determinative of the issue, given their age and maturity, their views are afforded considerable weight.

5.4 Discussion of the Father's Evidence and His Plan

[80] The court had the following positive observations about the father:

a) He loves the children and they love him.

b) He wants to maintain an important role in the children's lives.

c) For the most part, he has consistently exercised his access since the separation agreement was signed.

d) He participates in sports with the children.

e) He does homework with the children and cooks for them when they spend time with him.

f) He is educated and accomplished. He values education.

g) He has paid the child support initially agreed to in the separation agreement.

[81] Despite these positive factors, the court had many concerns about the father.

[82] The father was not a credible witness. He also often had difficulty answering straight-forward questions, using the question as a platform to make speeches or give an unrelated answer. He continued to do this despite the direction of the court. The father was at times evasive in answering questions. He had a tendency to inflate the severity of his concerns the more he was asked about them. He made several unsupported allegations. He was defensive and would deny or minimize his inappropriate behaviour. Some examples will be provided below.

[83] While the mother presented to the court as accommodating and child-focused, the father presented to the court as argumentative and as a difficult person to deal with.

[84] The father could not provide a reasonable explanation as to why he chose not to see the children for ten months after the separation.[3] It appears that he wouldn't have seen the children for a longer period of time, if the mother hadn't initiated settlement negotiations. The father claimed that the mother disappeared without his consent after the separation to Nigeria. This evidence was not credible. The father was aware that the mother and children would be attending a wedding in Nigeria, and in fact had signed the forms for the mother to obtain passports for the children. The failure of the father to see the children reflected poor judgment and immaturity. He was hurt by the separation and put his feelings ahead of the need of the children to see him.

[85] The father demonstrated poor judgment by pressuring the children to say that they wanted to stay in Canada, despite being asked not to discuss the matter with them. He showed very poor judgment by trying to scare them about the risk of violence and kidnapping in Nigeria. Again, he placed his own needs ahead of the need of the children to be insulated from the adult conflict. He attempted to undermine their sense of security with the mother.

[86] The father cancelled his last access visit before the start of the trial with the boys. He appeared to the court to be making excuses for this as he went along in his testimony. He gave various excuses, such as he was running late, he had a personal matter and he had issues with his health. He then said that he needed to prepare for this case and that he suspected the children of taking evidence from his home, due to pressure from the mother, to assist her case. The father cancelled the visit without prior notice. Again, this was poor judgment and not child-focused. It is understandable why the children were worried about the father's reaction to Ms. Israel informing him of their views and preferences. They must wonder whether he will abandon them as he did after the separation.

[87] The father blamed the mother for his not having telephone contact with the children in the past two years. There was no credible evidence to support this allegation. The children are free to phone or email the father and have chosen not to do so. The father did not provide a credible explanation as to why he doesn't call the children. It appeared to the court it was likely due to his disinclination to have any incidental contact with the mother.

[88] This evidence reflects that the father's commitment to the children has not been consistent. Evidence was also produced that shortly after the separation agreement was signed, the father, through his counsel at the time, sent a letter to the mother's counsel asking for DNA testing on L2. The letter states:

My client would like to do a paternity test on L2…..My client would like to send your client a cheque to close this matter, however, we would like to get your client's consent prior to finalizing the matter.

[89] The father's response to this evidence was that his lawyer had sent the letter without his authorization and he knew nothing about it (an explanation I did not find credible). He said that he discussed, but chose not to pursue the DNA issue. The mother, in her evidence, expressed her dismay that the father went to L2's school, without her permission, to obtain a DNA sample from him.

[90] The father did not deny the mother's allegation that he is often late on access exchanges.

[91] The father acknowledged that he has not attended at L2's school this term. He does not know the name of his teacher. He said that he has spoken to the principal at L1's school. It does not appear that he attends parent-teacher meetings. He has limited involvement with the children's education.

[92] The father proposed that the mother move to Nigeria without the children, to work on her relationship with Mr. O., and leave the children with him.

[93] The father's plan for the children to stay with him in Toronto was not well thought out. He currently lives in a 2-bedroom condominium. His nephew lives with him (he may be moving out shortly to study medicine at university). When the children visit with the father, L1 sleeps in a room with him, and L2 sleeps in a bed with his father's nephew. The father said that he would find different accommodation, but did not provide any details about this. The father said that he would move L2's school closer to his home and after thinking about it on the stand, said he didn't think he would move L1's school. He did not set out how he would facilitate the children's relationship with the mother.

[94] The father provided vague plans about his future. It appears that he was operating a business with some Nigerian connections, but stopped this. When asked why, he answered that "he just wanted to stop it". He said that he hoped instead to return to school, but had taken no tangible steps to act on this.

[95] While the father has paid the initial amount of child support set out in the separation agreement, he has failed to provide the mother with annual financial disclosure and to increase his support payments as required by the separation agreement. His income has increased from $64,000 per annum to $77,000 per annum since the separation agreement was signed. The father initially claimed that he was not required to advise the mother about his increases in income or provide financial disclosure unless she asked for it. When he was shown this was not the case, the father disingenuously testified that he had never gone through a separation in Canada before, did not understand the process and would have not known where to send this disclosure. The father's failure to pay the appropriate amount of child support is another example of his placing his own interests ahead of the children's.

[96] The father showed little respect for the views of the children. He felt that they were misrepresented, and if not misrepresented, unduly pressured by the mother. There was no evidence to support this view.

[97] The father also showed little respect for the mother. His allegations about her escalated the longer he was questioned about her. He accused her of being abusive to the children and that she had left them on their own when she went to Nigeria. There was no corroborating evidence led to support these allegations.

[98] It became very apparent during the trial that the father is very upset about the mother's relationship with Mr. O. When questioned about an entirely different manner, the father used the opportunity to give a long speech about why he suspected that the mother and Mr. O. had been having an affair long before the parties separated (the evidence did not support this allegation). It appears that he feels betrayed by the mother and his former friend. This likely explains why the father spent a considerable time at the trial trying to establish that Mr. O. is not the man he says he is. Despite compelling evidence to the contrary, the father attempted to argue that Mr. O. is not that well-off financially and could not be relied upon to support the mother and the children. The court accepts the evidence of the mother and Mr. O. about Mr. O.'s financial circumstances.[4]

[99] The father testified that, "In Nigeria, you either have or have not. If you have, you really have." The evidence was very clear that Mr. O. is very well-off. The court finds that the children will be economically comfortable in Nigeria. The father's concerns about the children living in Nigeria need to be examined within this context.

[100] The father expressed a concern that the children's educational needs would not be met in Nigeria. As set out above, I find that the educational proposal by the mother will appropriately meet the children's educational needs.

[101] The father expressed a concern that the children's failure to speak Yoruba will create difficulties for them in Nigeria. I accept the mother's evidence that English is the first language in Lagos and the language used at the private school and within their community. It is likely that the children will benefit from learning Yoruba in the extended community.

[102] The father expressed severe concerns about the children's safety. This concern increased in tone the longer he was examined. He expressed that the children are at high risk of kidnapping and robbery.

[103] There was some support for the father's position about crime in Lagos. In an evidentiary ruling during the trial, I admitted reports from the United States State Department and the Government of Canada that reflected travel concerns in Nigeria. I found that the introduction of these documents met the principled hearsay exception of necessity and reliability. I found that the documents achieved threshold reliability. I followed the decision of Justice Robert Spence in Hamid v. Mahmood, 2012 ONCJ 474, who followed the decision in El-Murr v. Kiameh, 2006 ONCJ 111 in admitting these documents. I ruled that I would treat the evidence with caution as the mother did not have the opportunity to cross-examine the authors of these reports.

[104] I did not admit several newspaper and internet articles submitted by the father about conditions in Nigeria as they did not achieve threshold reliability and were far less reliable than the documents admitted. See: Isakhani v. Al-Sagaaf 2007 ONCA 539, [2007] O.J. No. 2922 (C.A.).

[105] The documents admitted set out that home invasions remain a threat in Nigeria and that security sources are slow to respond to calls. The United States State Department Report stated that kidnappings are a security concern throughout the country, particularly in the northern part of the country. Both the Canadian and United States governments warn against non-essential travel to the northern part of Nigeria. The governments also warn that there is a high level of criminality in Lagos, particularly against foreign nationals.

[106] I have given these reports consideration. There are security risks in Nigeria. However, I found the evidence of the mother and Mr. O. persuasive on this issue. They explain that the security concerns are far less when you are wealthy in Nigeria and know how to use that wealth to guard against the security concerns. They do not live in the northern area of Nigeria, where the security concerns are more pronounced. Mr. O. testified that he and his family members in Nigeria have never experienced any crime and feel safe there. The mother testified that her family has lived safely in Nigeria their entire lives and she feels safe when she travels there. She says that she knows which areas of Nigeria are safe and which areas are not safe.

[107] Despite his security concerns, the father permitted the children to travel to Nigeria on several occasions while he lived with the mother. He has travelled to Nigeria on several occasions and has not experienced any safety issue on these trips.

[108] Mr. O. testified that the community the mother and children will live in with him is very safe and children play freely within it. Visitors have to be cleared through two checkpoints to get into the community. The children have a driver who will take them to and from school.

[109] Lastly, the court trusts the mother's judgment. She is very aware of the safety issues in Nigeria and how to mitigate them. The court does not believe that she would place her children at any risk of physical harm.

[110] The father raised other concerns about conditions in Nigeria. He states that medical care is substandard, the medical community is corrupt, with fake medication and over-prescribing of medication; that traffic conditions are bad; that there are constant electricity outages and environmental concerns. Some of these concerns are corroborated in the documents filed from the United States State Department and the Government of Canada and I have taken this evidence into consideration.

[111] The mother and Mr. O. testified that medical care is an issue in Nigeria, but not for the wealthy. Mr. O. has arranged full medical coverage for the mother and the children at a leading hospital near their home. He said that he had not experienced substandard or corrupt medical care. Mr. O. agreed that there are problems with electricity outages in Nigeria, but explained that the community where the mother and children will live with him obtains electricity on a separate system with a nearby corporation (Chevron) and the system is more reliable.

[112] The father argued that the children will be destabilized because Mr. O. is involved in court proceedings with his ex-wife. There is no reason why this should affect the children. Mr. O. explained that his divorce was granted in July of 2012 by a court in Nigeria. His ex-wife missed the appeal time limit, and is now seeking permission to extend the time to appeal the divorce judgment.

[113] The father claimed that Mr. O. has made inadequate provisions for his ex-wife and this is indicative that he cannot be relied upon to support the mother and the children. There is no merit to this argument. The Nigerian court has ruled on Mr. O.'s responsibilities to his ex-wife pursuant to Nigerian law. He is paying spousal support, has financed the education of his children and is required to transfer two properties in British Columbia to his ex-wife. She has also been granted a life interest in a property in Nigeria. The evidence shows that he has been generously supporting the mother and the children in Canada.

[114] The father argued that the relationship between Mr. O. and the mother is untested and that it would destabilize the children to have this relationship break down in Nigeria. This evidence is speculative. The court accepts the mother's evidence (and judgment) that she has a secure relationship with Mr. O.

[115] The father argued that it would be better for the children to remain in Canada and require Mr. O. to travel back and forth until he wound up his business. I gave this argument serious consideration. Mr. O. does have the financial ability to travel between the countries. However, I find that this argument ultimately fails. The mother and children are entitled to have an intact family. Mr. O. has been transitioned into their lives in the past year, but it is time for this family to be together. It is unfair to all of them to put their lives on hold and to require them to continue a long-distance relationship for 2 to 3 more years. I agree with the mother that the children will benefit by being part of an intact family and being able to experience what appears to be a loving, supportive and respectful relationship.

[116] The father expressed a concern that the mother would not return with the children to Canada, although he initially testified "that is the least of my concerns". The court accepts the mother's evidence that she will return with the children to Canada as promised. She has followed the parenting terms of the separation agreement. She recognizes the importance of the children attending university in Toronto. She proposed that the Canadian court maintain jurisdiction of the case. She will keep her property in Toronto. Mr. O. has sought and obtained landed immigration status in Canada. The children have expressed their wish to return to Canada in two years. The mother appears to be respectful of her children's wishes.

5.5 Summary of Findings

[117] Applying the factors set out in Gordon v. Goertz, this court finds as follows:

a) The views and the preferences of the mother are entitled to great respect. This is particularly the case when the mother has a track record of demonstrating responsible and child-focused judgment. She has demonstrated that she places the interests of her children first. She has provided the court with a well thought out and child-focused plan. The court has considerable confidence that the mother will ensure that the children's needs will be met in Nigeria and that she will act in the children's best interests.

b) The proposed move is in the best interests of the children. They will remain with their primary caregiver who has always acted in their best interests. The children will benefit by having their new family intact and by the consistent presence of Mr. O. in their lives.

c) The mother is clearly the primary parent of the children. They are most closely connected to her. She has been the parent who has organized their lives and been a consistent presence.

d) The father has a positive relationship with the children that should be maintained. Unfortunately, he has often shown poor judgment with respect to the children and has, at times, put his own needs firsts.

e) While the move to Nigeria will not maintain the same frequency of contact, the order that will be made will still ensure that the father spends extended periods of time with the children. He will have the opportunity, if he chooses, to maintain frequent contact with them through social media, email and Skype. He will have the opportunity to spend generous time with them when he travels to Nigeria. The father has a well-established relationship with the children. It is secure enough (if he exercises the access granted to him) to be preserved through the restructuring of his access. The mother has made significant financial concessions to facilitate the father having contact with the children. The mother's plan addresses the need to ensure the children's maximum contact with the father.

f) The views and the preferences of the children are to live with their mother. L2 wants to live with her in Nigeria. While L1 would have preferred to live with his mother in Toronto, he now wants to live with her in Nigeria if her application is granted. The children do not want to live with the father. They have set out how often they wish to visit the father in Canada. Their views and preferences, given their age and maturity, and knowledge of both parents, are given considerable weight.

g) The mother's reason for moving is not really relevant to the best interests of the children. That said, she has legitimate reasons for moving to Nigeria, as set out above.

h) There will be some disruption to the children from their removal from the father, schools and Canadian community. The mother has taken appropriate steps to address any disruption. She has arranged for a housing and schooling environment that closely represents their Canadian experience. They will be involved in activities similar to those they participated in in Canada. They will be able to stay in contact with their family and friends through social media and to come to Canada for extended periods of time. The mother will facilitate the children seeing their Canadian friends who travel to see their families in Nigeria. The children will have the opportunity to experience their Nigerian culture and have extended contact with their maternal family. They will have the opportunity to broaden their horizons.

[118] Applying the additional relevant factors in subsection 24(2) of the Children's Law Reform Act, this court finds as follows:

a) The children have always lived with the mother in a stable home environment. It is in their best interests for this to continue.

b) The mother has proven to be the parent more capable of providing the children with guidance and education and the necessaries of life.

c) The mother has presented the preferable plan for the children's care and upbringing.

d) The mother has provided the children with a more stable family unit than the father.

e) The mother has been a more responsible parent for the children than the father and has shown better judgment and ability to place the children's needs ahead of her own.

[119] Applying the additional factors set out in N.D.L. v. M.S.L., supra, the court finds:

a) The children will be well-supported economically in Nigeria and they will enjoy a very comfortable lifestyle. The mother and Mr. O. will not have to maintain separate homes. This will save the cost of Mr. O.'s frequent trips to Canada.

b) The mother has made a very reasonable proposal to cover the cost of travel between Nigeria and Canada for the children.

c) Mr. O. is making his best efforts to move to Canada. His reasons for staying in Nigeria for 2 to 3 years are logical. He really can't move to Canada at this time. It would be unfair to the mother and the children to require him to continue a long-distance relationship with the family.

d) The father has the financial ability to pay for the children to come to Canada and for his travel to Nigeria, particularly since child support will be waived while the children are living in Nigeria.

e) The mother will be a more fulfilled parent living with Mr. O. and the children in Nigeria. This will benefit the children.

[120] This court finds it is in the children's best interests to grant the mother's application. The benefits for the children of moving to Nigeria with the mother outweigh any disruption to their relationship with the father and their friends and community in Toronto. The court is satisfied that, despite the concerns about safety and conditions in Nigeria set out above, the mother and Mr. O. have the financial ability, and knowledge of how to use this ability to mitigate these risks, in order to provide the children with a safe, stable and secure environment.

[121] I considered deferring the move to Nigeria until the end of June of 2014 so the children can complete their school year in Canada. However, this court is very concerned, based on his behaviour, that the father would use the next few months to put undue pressure on the children to remain in Canada. I don't trust him to act responsibly. The children are already distressed by the conflict and the pressure the father has placed on them. The emotional risks to them of this happening outweigh the benefits of completing the school year in Canada.

[122] It is also in the children's best interests to immediately move to Nigeria so they can write the necessary tests and have their schooling settled before the January, 2014 term starts. They should also have an opportunity to get comfortable in their new surroundings before school starts. It is unfortunate that this will interfere with having holiday access this year with the father, but having them settled in Nigeria is an overriding factor.

[123] The court will grant the mother's request to dispense with the father's consent for obtaining travel documents for the children, and to travel with them outside of Canada. The court accepts the mother's evidence that the father has over-held the children's passports in the past. The evidence also shows that the father can act in a petulant fashion when he doesn't get his own way. There is a real risk that he would frustrate the mother's reasonable travel plans. This would not be in the children's best interests. For the same reason, the issuance of this order should be expedited and may be submitted directly to me for my approval. The approval of the father to the order will be dispensed with.

[124] The children have expressed a clear view as to how much time they wish to spend with the father in the summer in Canada and I will respect that view. It is understandable that they do not wish to spend the full summer away from their mother. Spending time in Nigeria over the summer school break will also assist them in making and consolidating new friends in Nigeria. The proposal to spend only one week over the winter school break is too short, given the distance the children will be traveling, and the length of time they will have gone without seeing their father. I will order that they spend one month with the father each summer and 2 weeks with him during the winter break, starting in 2014.[5] The mother's proposal for the father's access in Nigeria is reasonable and will be ordered, as will her proposal for payment for the children's trips.

[125] The father did not contest this court's jurisdiction to permit a move for a specified period of time. This court made such an order in Powers v. Powers, [2006] O.J. No. 5605 (Ont. C.J.). Justice Francis Kiteley made a similar order in Connelly v. McGouran, 1999 CarswellOnt 2790 (Ont. S.C.J.). I am emphasizing that I am only making a time-limited order since that was the order sought by the mother. In the circumstances of this case, I would have likely provided open-ended permission for the mother to move with the children to Nigeria, if it had been requested.

[126] The mother's request to move with the children until the completion of their school term (the term prior to the summer break) in 2016 is granted. Their residence shall be returned to the Greater Toronto Area at that time.

[127] It is appropriate that the parties each pay 50% of Ms. Israel's fees.

Part Six – Conclusion

[128] This court orders as follows:

a) The mother shall be permitted to move immediately with the children to Nigeria.

b) The mother shall return the children's residence to the Greater Toronto Area, by the latest, upon the completion of their school term (the term prior to their summer break) in 2016.

c) On consent, this court shall retain jurisdiction on all issues related to the children while they are in Nigeria.

d) The mother may obtain and renew all identity or travel documents for the children (including passports) without the father's consent.

e) The mother may travel with the children outside of Canada without the father's consent.

f) The children shall have access to the father in Canada as follows:

i) Four weeks in the summer, while they are out of school.

ii) Two weeks during the winter school break (not to interfere with school) starting in 2014.

g) The father shall notify the mother by May 1st each year of the four summer weeks he chooses to exercise access. The mother will then promptly arrange and pay for the children's trip to Canada and provide proof of this to the father.

h) The father shall notify the mother by October 1st each year if he will be exercising winter break access and confirm that he will be paying the cost of the trip for the children. The mother shall then advise the father by October 15th each year, the two weeks she chooses for the children to travel to Canada. The father must then provide proof of payment of the return plane tickets to the mother by November 15th each year. The mother shall facilitate the children's travel to Canada at these times.

i) The father shall give the mother 60 days written notice if he intends to exercise access to the children in Nigeria. If he exercises access while the children are not in school, the father may exercise reasonable overnight access. If he exercises access at a time that the children are attending school, he may exercise reasonable day access.

j) The mother shall facilitate the children having access to the father by telephone, email, Skype and social media.

k) The mother is to send the father copies of all school report cards for the children and keep him advised of their medical health and welfare.

l) The father will have the right to obtain information directly from the children's schools, health-care and service providers. The mother shall provide any contact information and execute whatever directions, consents or authorizations that are required to facilitate this.

m) The father's obligation to pay child support for the children shall terminate on December 31, 2013. It shall be reassessed, upon the request of the mother, when the children return to Canada.

n) The terms of this order shall take priority over any terms of the separation agreement.

o) The parties are to equally pay their share of Ms. Israel's fees. If the mother pays any portion of the father's share of these fees, he shall fully indemnify her within 30 days.

p) The father's Answer/Claim is dismissed.

q) The mother may directly submit the order to the trial judge, through the trial coordinator's office, for expedited approval. The father's approval of the order is dispensed with.

[129] If either party wishes to seek costs, they are to serve and file written submissions by December 31, 2013. The other party will then have until January 10, 2014 to serve and file a written response. The submissions are not to exceed three pages, not including any offer to settle or bill of costs. They are to be delivered to the trial coordinator's office on the second floor of the courthouse.

[130] Lastly, I thank counsel for their professional presentation of this case.

Justice S.B. Sherr

Released: December 16, 2013

Footnotes

[1] Mr. O.'s divorce judgment from Nigeria sets out that his ex-wife will receive two of the British Columbia properties and a life interest in one of his properties in Nigeria.

[2] Ms. Israel deposed that L1 was very upset that his father had pressured him in this manner.

[3] The father said he was devastated by the separation and didn't handle it well.

[4] The father did not plead that Mr. O. would be unable to financially support the mother and the children in his Answer/Claim. This issue was raised for the first time at trial. Accordingly, it was not surprising that Mr. O. did not bring financial statements of his corporation or personal bank accounts or deeds to establish his wealth. Once his wealth was questioned, the mother was able to produce joint bank accounts establishing that Mr. O. was sending her between $5,000-$10,000 per month. Mr. O. has also traveled to Canada five to six times in 2013, always flying, he said, first class, at an average round trip price of about $10,000. Mr. O.'s divorce judgment from Nigeria (introduced by the father) corroborated his ownership of five properties at the time of the divorce and principal ownership in the corporation.

[5] The Nigerian winter school break is 3 weeks.