Court File and Parties
Ontario Court of Justice
Date: 2019-09-19
Court File No.: Brampton 628/19
Between:
Adeniyi Abidini Ajadi Applicant
— And —
Olamide Ayeni Respondent
Before: Justice A.W.J. Sullivan
Heard on: August 26 and September 6, 2019
Reasons for Judgment released on: September 19, 2019
Counsel
Abba Chima — counsel for the applicant, Adeniyi Abidini Ajadi
Eyitayo F. Dada — counsel for the respondent, Olamide Ayeni
SULLIVAN J.:
Introduction
[1] This is the decision in a Hague Convention Application filed by Mr. Adeniyi Ajadi in this court on July 17, 2019.
[2] Mr. Ajadi requests the return to the United Kingdom (UK) of his biological children and cost. He is a citizen of the UK.
[3] The children are all citizens of the United Kingdom.
- a. Oluwatofunmi A. Ajadi born […] 2004
- b. Oluwatobi Ajadi born […] 2006
- c. Oluwatomilola Ajadi born […] 2011
[4] The children's mother, the respondent, is Ms. Olamide Ayeni, she is a citizen of the UK.
[5] Ms. Ayeni responded to this Hague Application with her Answer dated 20/8/19 in which she seeks that the father's Hague Application be dismissed.
[6] Mr. Ajadi in his Application indicates, without giving a date, that he learned that his children were not returning to their school sessions in the United Kingdom sometime in August, 2018.
[7] Attached to this Application is his "Application Form to the Official Solicitor's Office of the International Child Abduction and Contact Unit (UK)." This is dated 29/9/18.
[8] In this document he provides his address as 18a Cowper Street, Lunton Bedfordshire, and indicates that he learned of the children's departure from the UK on August 22, 2018 over social media showing the children in North America.
[9] He further states that on September 6, 2018, "I started receiving calls from the children school (sp) that they were not in school."
[10] Under the question 6(b) entitled - Factual or Legal Grounds Justifying the Requests for the Return of the Children: (Please provide your rights to custody with respect to the children), Mr. Ajadi responds by explaining that the children have only lived as their habitual residence in the United Kingdom and that they are all citizens of the United Kingdom. He also goes on to explain that his daughter, Oluwatofunmi, is undergoing serious medical treatment at a hospital in the United Kingdom.
Preliminary Comments
[11] After reviewing the pleadings and hearing from counsel on the initial day that this matter was before the court to be argued, several of the initial threshold considerations that I must consider in this Hague Application turned out not to be that complicated but were not conceded until after discussions and arguments before the court.
[12] These in particular were the date that the children were allegedly removed from the United Kingdom and whether, prior to this date, their habitual residence was in the United Kingdom.
[13] Eventually both of these issues were clarified and conceded to.
[14] Mr. Ajadi's Hague Application was started within a year of the alleged wrongful removal.
[15] The test given the Convention Application having been commenced within one year of the children being removed from the UK is found in Article 3.
[16] The Ontario Legislature adopted the Hague Convention into Ontario law via s. 46(2) of the Children's Law Reform Act, R.S.O. 1990, c. C.12. Some of the relevant Articles of the Convention that are applicable in this case are 1, 3, 8, and 12. These provisions read as follows:
Article 1
The objects of the present Convention are -
a) To secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) To ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
Article 3
The removal or the retention of a child is to be considered wrongful where –
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in subparagraph a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Article 8
Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.
Article 12
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
[17] I discovered through arguments on issues outlined below that there was confusion on the legal tests that caused the mother's counsel to argue as if the directions from the Supreme Court of Canada in Balev - The Office of the Children's Lawyer v. Balev, 2018 SCC 16, are applicable to this case.
[18] Initially mother's counsel took a one size fits all approach arguing that the directions of the Supreme Court in Balev applied to the facts in this case before me as if this file is one dealing with children that are allegedly wrongfully retained as opposed to allegedly wrongfully removed from the United Kingdom.
[19] This misunderstanding of the Supreme Court's directions in Balev caused the mother's counsel to request in a motion for the appointment of the Office of the Children's Lawyer with the arguments as set out in Balev that as part of my consideration regarding the threshold test of the children's habitual residence in this file that I should consider the hybrid approach of the children's situation since they have been in Canada.
[20] After hearing the motion and considering the evidence, I concluded that this was an incorrect assessment of the Balev decision considering the evidence of how the children came to be in Canada, which will be explained further below.
[21] I agree with Justice Pawagi's comments in Andegiorgis v. Giorgis, 2018 ONCJ 965, when she states in that decision:
I agree with father's counsel that paragraphs 43 and 67 in Balev are key (emphasis added):
On the hybrid approach to habitual residence, the application judge determines the focal point of the child's life – "the family and social environment in which its life has developed" – immediately prior to the removal or retention: Perez-Vera, at p. 428; see also Jackson v. Graczyk (2006), 45 R.F.L. (6th) 43 (Ont. S.C.J.), at para. 33. The judge considers all relevant links and circumstances – the child's links to and circumstances in country A; the circumstances of the child's move from country A to country B; and the child's links to and circumstances in country B.
Nor does the hybrid approach "ignore the fact that a child could develop genuine links to a new jurisdiction following a wrongful removal or retention": my colleagues' reasons, at para 146; see also para. 149. Habitual residence is determined immediately prior to the wrongful removal or retention: see Articles 3 and 4. Subsequent links are relevant only to the exception under Article 12.
The Supreme Court is clear that while the child's circumstances are to be considered along with parental intention in the hybrid approach, the timing of those circumstances are prior to the wrongful removal or retention, and not afterwards. The Court is clear that the child's circumstances following the wrongful removal or retention can only be considered when the Hague Application is not brought within a year of the wrongful removal or retention.
Thus, in an alleged wrongful retention case, as Balev was, the court is to consider not just parental intention regarding the temporary nature of the stay, but also the children's circumstances, including connections they form, during the agreed upon temporary stay. But the court should not consider circumstances after the alleged wrongful retention.
Similarly, in an alleged wrongful removal case, as the case at bar is, the court should consider not just parental intention regarding the nature of the family's stay in Norway, but also the child's circumstances in Norway. But the court should not consider circumstances after the alleged wrongful removal.
Thus, Balev has only really expanded what the court must consider in determining habitual residence in wrongful retention cases as the court may now consider connections the child forms in another jurisdiction during the agreed upon temporary stay.
Balev has not expanded the test to permit the court to consider connections formed after a wrongful removal (where the application was brought within one year).
The Case Before This Court
[22] This matter before me is not a case of wrongful retention of children, such as in situations when parents have made plans for a child (ren) to be in another jurisdiction, for whatever reason, and they continued to be in that other location for greater than 1 year after an objection by one parent or contrary to one parent's wishes and therefore potentially wrongfully retained.
[23] The case before me is a case of alleged wrongful removal with The Hague Convention Application being commenced for their return commenced within one year of the date of removal.
[24] Articles 12 and 13 of the Convention are not relevant in this case as the application was brought within the year of removal. This was eventually agreed to in argument of this matter.
[25] In addition, in all Hague Applications there are a number of threshold considerations that must be satisfied for the court to have jurisdiction. These points were not necessarily argued or agreed to between counsels. These are that:
a) The Hague Convention was in force between the United Kingdom and Canada at the time that the children were allegedly wrongfully removed. See Article 35 of the Hague Convention.
b) The children are under 16 years of age. See Article 4.
c) The application under the Hague Convention for the return was brought within one year. See Article 12. This point is important and was clearly articulated in the father's arguments before the court but not necessarily in his pleadings. He did commence his request to enforce the Hague Convention to the authority in the United Kingdom within the one year of the date of the children's alleged wrongful removal, although it has taken a considerable amount of time to process in Canada.
[26] This is in part due to the fact that the authorities between United Kingdom and Canada, as I suspect other jurisdictions do as well, first make a request for the voluntary return of the children.
[27] Evidence before me indicates that this request for the children's return was made officially but not acted on by the mother, Ms. Ayeni.
[28] Ms. Ayeni did commence before this court an application for custody pursuant to the Children's Law Reform Act. (CLRA). That CLRA proceeding has been stayed after The Hague Convention application was commenced.
Children's Habitual Residence
[29] It has been conceded and in the mother's pleading that the children were removed from the UK on August 25, 2018.
[30] This date is central to the analysis that is to be applied by me in this matter as outlined in the recent Ontario Court of Appeal in Ludwig v. Ludwig, 2019 ONCA 680. This Court of Appeal decision is instructive regarding the timing issue in these files and the road map to follow in a wrongful detention file but also generally the need to set the date for the triggering event that one works with to consider habitual residence of the children.
[31] The importance of establishing this date is relevant to answering the question of where the children's habitual residence was before the date of removal, in this case, and therefore what evidence regarding the families' situation is relevant, which is all before the date of removal and not after and while the children have been in Canada. See Article 4 of The Hague Convention.
[32] In this matter it was eventually conceded, during counsel argument for Ms. Ayeni, that this was the United Kingdom.
From Ludwig:
(a) Habitual Residence
[22] Habitual residence is central to The Hague Convention because it defines when a removal or retention of a child is wrongful. As Article 3(a) of The Hague Convention provides, the removal or retention of a child is only wrongful if it is in breach of custody rights under the law of the state in which the child was "habitually resident immediately before the removal or retention" (emphasis added). For example, in this case, the application judge's finding that the children were habitually resident in Ontario immediately prior to the date of the respondent's retention of the children in Ontario led her to conclude that this retention was not wrongful, as it did not breach custody rights under Ontario law. Conversely, if the application judge had found that the children were habitually resident in Germany immediately prior to the date the respondent retained the children in Ontario, the application judge would have had to find the retention was wrongful. It would have been in breach of the appellant's custody rights under German law for the respondent to retain the children in Ontario.
[23] I would endorse the two-step approach to habitual residence that the application judge took in this case. Under this approach, the first step is to determine when the alleged wrongful removal or retention took place, and the second step is to determine in which state the children were habitually resident immediately prior to that removal or retention.
In this case before me the issue focuses on the analysis of Article 3 of the Convention. Specifically, the nature of custodial rights of the party seeking an order for the return of the children and whether the custodial rights were "actually" exercised at the time of the removal of the children must be determined in this matter.
[33] In this case the focus is on Article 3 of the Convention. Specifically, the nature of custodial rights of the party seeking an order for the return of the children and whether the custodial rights were "actually" exercised at the time of the removal of the children must be determined in this matter.
[34] As the Convention does not define Custodial rights of a parent I am to discover this right and meaning in accordance with the law of the habitual residence of the children. See Finizio v. Scoppio-Finizio, 1999, Can LII1722 (ON C.A.)
[35] Article 14 of the Convention and the CLRA section 45 permits a court hearing such a case to take "judicial notice" of foreign law, without having formal proof as is ordinarily necessary in cases involving issues of foreign law. This is also recognized as another provision intended to expedite these proceedings.
[36] In Agboola v. Unoh, 2016 ONSC 6779, the court indicated that there is a very low threshold for the left behind parent to establish that he was exercising custodial rights and similarly a very high standard for a parent who has the child to establish that the left behind parent has abandoned his rights of custody.
[37] The court in Agboola made these comments in the context of parents that had just recently separated after a joint plan to live in Canada evaporated, unlike this case before me where the parents have been separated for some two years before the children are removed. According to the evidence presented to me by the parents they had an oral agreement as to "parental responsibility," the term used in the UK legislation, although I am certain the parties had no idea of this term and what it means in law to their separation with no court order.
The court in Agboola stated:
[27] The onus is on Mr. Agboola to prove to the Court that there has been a wrongful removal or retention of Zoe by Dr. Unoh. In this regard, Article 3 states:
The removal or the retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
[28] There is a distinction between rights of custody and rights of access and the difference between these two rights is defined in Article 5.
[29] The Convention on its own does not give preference to a primary caregiver in protection of custodial rights. As pointed out in Ellis v. Wentzell-Ellis 2010 ONCA 347, 102 O.R. (3d) 298 at para. 30.
[38] In this case at bar all evidence was presented by affidavits. This is accepted in these Applications in order to expedite the process except if there is a serious issue of credibility. See AH v. CFSH, 2013 ONCA 227.
[39] In the initial pleadings filed, counsel did not provide the law in the United Kingdom dealing with custody of children. This I requested and received.
[40] It did not come in the format of a sworn affidavit from an expert and/or practicing lawyer in England. I accepted the documents and it was consented to that the law as photocopied in its entirety should be considered by the court.
The statutes provided are:
[41] In this legislation The Children's Act (C.A.), the term for custody is "parental responsibility."
[42] In reviewing the (CA) after a breakdown of the relationship or marriage, the parents of the child, can, between themselves, decide on the living arrangements and access for children between the parents.
[43] If the parents disagree on this arrangement, they can apply under section 8 of the (CA) for specific orders dealing with rights to custody and access or "contact."
[44] Section 3(1) of the Children's Act 1989 defines the concept of "parental responsibility" as those of the rights, duties, powers, responsibilities, and authority by law a parent of a child has in relation to the child and his property.
[45] Under this legislation if the mother and father are married at the time of the child's birth, both automatically acquire parental responsibility for a child. It is argued on Mr. Ajadi's behalf that this right is inalienable as if it descends and cannot be tampered with but for a court order, which these parties did not apply during their separation of some two years before the children left for Canada.
[46] The Family Law Act 1996 deals with division of property and responsibilities after a divorce.
[47] The Child Abduction and Custody Act 1985 specifically is the domestic law in the United Kingdom in which The Hague Child Abduction Convention is adopted and implemented by the United Kingdom, similar to section 46 of the Children's Law Reform Act in Ontario.
Evidence of the Parents
From Mr. Ajadi:
[48] The Applicant father, Mr. Ajadi, filed two affidavits in support of his request for the return of the children to England pursuant to the Hague Convention. An affidavit of July 29, 2019, and September 2, 2019. The last one is a reply affidavit to the affidavit of the mother, dated August 20, 2019.
[49] Ms. Ayeni filed a further affidavit dated August 29, 2019. This last affidavit was provided to respond to particular exhibits in the father's initial affidavit that the mother had not received. Her August 29, 2019, affidavit contained other evidence which was not relevant to my consideration as it dealt with a letter from a doctor in Canada after the children were here. I have disregarded this letter.
[50] The timeline for my investigation on the issue of custody and rights to custody is from the date that the parties separated to the date that the children were removed from England.
[51] The reason I state this is that I must consider who had custody of the children who was exercising custody rights when they were removed. Article 3 of the Convention.
[52] I am not considering the best interests of the children in this analysis nor am I deciding between the parents who should have custody and/or access rights. This is important to the reader to understand. I do below discuss how the parents operated in regard to their Parental Responsibility rights as far as trying to understand from their evidence provided how they exercised this. I do not review the parent's evidence to pass judgment on parenting in the context or lens of a "best interest test."
[53] My assessment below, based on the evidence provided by the parents, is to make findings of fact and apply those to Section 3 of The Hague Convention which is what I have been asked to enforce while considering the law of the UK pertaining to custody of children upon separation when parents do not approach the English Courts for orders regarding their children, or Divorce and fall into a pattern of life that in this case was for some two years.
[54] In order to do this, I have looked at the legislation as noted above and I now turn to the evidence presented by the parents to establish their particular claims to custody at the time that the children were removed.
Parent's Evidence:
[55] It is agreed that the parents were married on November 25, 2004.
[56] It is further agreed that they separated. The date of separation, however, is not agreed to.
[57] Ms. Ayeni claims that the date of separation was in March of 2016.
[58] Mr. Ajadi claims that he moved out of the home leaving the mother and the children together in January 2017.
[59] It should be noted that many irrelevant facts were pled and argued between the parents that have no bearing on my analysis and what I need to decide. They both have differences in regards to many issues that have occurred between them prior to the date of separation.
[60] After separation in England, the parties did not obtain a divorce in England, nor did they obtain an order outlining specific rights to custody and contact/access between them both or with any other person who also may have the right to apply under the Children's Act.
[61] In my review of the father's affidavits, he pleads many issues with regards to the children's habitual residence or primary residence being that of England.
[62] Eventually through arguments, the children's habitual residence was conceded to be in England prior to the children being removed on August 25, 2018, and I make this finding as such.
[63] I also make the finding that the children were removed from the UK, as conceded to by Ms. Ayeni, on August 25, 2018.
[64] I now review in some detail below Mr. Ajadi's evidence in relation to custody or the exercise of custody. He states the following in his evidence before the court:
a. In January 2017 he separated from the respondent mother and the children leaving them in their home in England as there were irreconcilable differences between the parents.
b. At the time the children were attending school. He provides as an exhibit "A" to his July 29, 2019 affidavit a school attendance report for two of his children for 2018 which was sent to him via his Yahoo email on October 10, 2018.
c. In paragraph 12 he notes the following which I quote in its entirety:
"At all material times, I was in contact with their children and enjoying reasonable access to them until I travelled to Nigeria. In fact, in May 2018, I had travelled with all of the children on vacation and returned them to the respondent before travelling to Nigeria. Upon my return from Nigeria, I was advised by the children's school that the children had not been in attendance at school and that efforts at reaching her via her telephone was unsuccessful. My latter calls to the respondent ultimately revealed she had responded with the children to Canada without notice to me and/or my consent."
d. In paragraph 21 of this affidavit he notes that his older daughter, Oluwatofunmi, is receiving treatment at the Great Ormond Street Hospital for Children London. He notes the following:
"… all milestones of her medical regime were observed, monitored and followed up by the hospital and the status quo would have remained but for their unlawful this lodgement from the United Kingdom enforce retention in Canada by their respondent mother."
e. In paragraph 22 he notes the following:
"The Hospital has been calling me to inquire why my daughter is not coming for her treatments and I remain in quandary as to what answers to profer in this circumstance." (He provides as exhibit E to this affidavit a copy of the hospital record. Ex "E" is a letter from the hospital treating the child addressed to parent/care of the child, addressed to 56 Aycliffe, Borehamwood, and Hertfordshire. It indicates that the child has an appointment on October 25, 2018.
f. In paragraph 26 of this affidavit the father states:
"My children mean the world to me and I was actively involved in all aspects of their lives – education and socially. As well, I was actively involved in their psychological, moral, spiritual and intellectual developments. Furthermore I was their primary provider and actively participated in most of their academic and professional appointments."
In Mr. Ajadi's September 2, 2019 affidavit, the following is what he provides regarding Custody:
a. I am also refuting paragraph 5 of the respondent's affidavit sworn August 29, 2019, claiming that she was the parent that chosen and rolled the children and their respective schools. As well, I refute the respondent's disposition that she chosen roll the children school and other activities including but not limited to hospital, doctors and taking them to doctors' appointments. There is not a shred of evidence in substantiation of the respondent's claim and I put her to the strictest proof thereof. Here attached are acknowledgement email from Local Education Department confirming my application for the children's school admission as Exhibit A. (A review of this documentation relates to emails in 2011 and 2014 prior to the parties' separation? And the third admission document for 2018/2019. This is for a session for the children after they had left the United Kingdom and it is unclear as to who this document is addressed to).
Within this document it has the mother's name as relationship of – parent to child – and lists the 56 Aycliffe Rd address as her address. It has under additional contacts – Mr. Ajadi and his address as Flat 1, 25 East Lake Road London, Lambeth SE5 9QJ.
b. In this affidavit Mr. Ajadi provides car insurance documents which are not relevant to the timeframe in question dealing with custody as well as photos from a trip to Paris with the children in 2016. The photos are undated and are for a period of time prior to the separation.
c. In paragraph 11 of this affidavit the father states the following:
Although the respondent tried to trivialize my access to the children, the fact that she claims de facto custody just because I voluntarily moved out of the matrimonial home allowing her and the children to live comfortably while I squatted with family friends, does not obviate the fact that she will wrongfully remove the children from their habitual residence – UK – without notifying me or obtaining my consent as their father. The fact that the children were left to reside with the respondent arose out of my active benevolence and consideration of the best interest of our children. I preferred to suffer rather than the other way round. It is not true the respondent is the only caregiver of the children; I have been in my children's life since they were born until they were illegally removed them from United Kingdom without my knowledge and consent.
d. From paragraph 13, Mr. Ajadi states the following:
Even though the children live with the respondent, I was fully involved in their life and activities. I regularly communicated with the children via video chats every other day because I purchased mobile phone for both Oluwatofunmi and Oluwatobi wilts they were in the UK. In addition, I exercised access to the children every other weekend based on the oral agreement reached between the respondent and I sometimes when finish work early, I normally stopped by at c school to pick up and drop her off at home. I attended with Oluwatofunmi on Parent Evening to help her determine what subjects she was going to study for General Certificate of Secondary Education.
e. In paragraph 14, he states the following:
I had an oral agreement with the respondent regarding access to the children to the effect that I could see them anytime I wish and in turn I would be giving her 300 (pounds) a month as upkeep for the children; and since she appeared to keep her side of the bargain while she is UK, I had no reason to exercise my right to file for custody of the children. And contrary to the respondent's claim, it was not dropping in without notice to see the children; rather, prior to the day or time I would be picking up the children, I would normally call and inform the respondent on the range of activities I planned with the children for that weekend.
f. In paragraph 22, Mr. Ajadi provides payments for activities and lunch at the school through a "Wisepay" account which he indicates he controls.
g. In paragraph 28, Mr. Ajadi indicates that he believes the respondent minimizes their daughter Oluwatofunmi's medical needs. He goes on to indicate that she was to attend a group session in October 2018 and goes on to state… "That this is two months after the respondent had removed the children from UK and after she claimed, in her court documents, that she had told the Great Ormond Street Hospital that she is moving Oluwatofunmi's treatment to somewhere else. This letter was sent to the respondents address and given to me by people she had rented out the property to…
(This is in reference to a letter attached as exhibit "E" to Mr. Ajadi's first affidavit of July 29, 2019. I will return to this later in this decision.)
Ms. Ayeni's Evidence:
[65] Ms. Ayeni filed her principal evidence in an affidavit of August 12, 2019.
[66] As noted earlier, she filed a second affidavit, dated August 29, 2019, to address exhibits in the father's earlier affidavits that she had not received. From this affidavit I did not accept the exhibit "A" that was attached from a doctor in Ontario as it pertained to the circumstances of the children after the date that I have found them to be habitually resident. That evidence was applicable to the notion of "settling in of the children" which is not, as noted above, part of my analysis.
[67] Ms. Ayeni's principal evidence is as follows:
a. On November 25, 2004 she married Mr. Ajadi in Nigeria where they were both born.
b. She moved with their oldest child to the UK to be with the applicant in July of 2005 as he was resident in the United Kingdom.
c. She argues that she separated from the applicant in March of 2016.
d. She denies that he lived with her and the children up to January 2017 as he has stated in his evidence.
e. She and the children left the United Kingdom for Canada on August 25, 2018.
f. When the parties separated, she was left with the children and has cared for the children and exercised custody over the children for approximately two years between the date of separation and the date that she left the United Kingdom with the children.
g. She argues that she, and not the applicant father, dealt with the children's needs on a daily basis such as their schooling, medical needs and community activities. She was the parent who was exercising custodial rights or had parental responsibility as the term is used in the British legislation, and not the father despite his claims.
h. She indicates that it was not the father but her that decided where the children were residing in the United Kingdom. She states:
The time I left the UK with the children, the applicant was not exercising any form of custody rights in respect of the children. He did not decide with the children live, where they went to school, their extracurricular activities or any of their activities whatsoever.
i. Ms. Ayeni claims that the applicant father only exercised informal access rights with respect to the children, throughout the period of time that they lived separate and apart. In this regard she argues that he would drop in arbitrarily when he liked and most of the time without notice.
j. She refutes Mr. Ajadi's claim that he set up a trust account for the children under the title One Family. She claims this is a government trust account and not one started by the applicant father but rather a universal program.
k. She provides as exhibit "H" to her affidavit of August 20, 2019, a notification dealing with housing benefits from the Hertsmere Borough Council. It lists her address as 56 Aycliffe Rd, Borehamwood Herts. In this notification it indicates that she is the lone parent and provides the ages of the children and the respective housing allowance for each of them. Attached to this exhibit is a further rent notice from the Clarion Housing Association Limited dated February 2, 2018, addressed to the mother at the same address as noted above.
l. Attached to the above affidavit as exhibit "K" and exhibit "L" are two letters from the Department of Pediatric Infectious Disease from the Great Ormond Street Hospital for Children, London UK.
m. The first is dated July 30, 2018, addressed to The Hospital for Sick Children in Toronto. It outlines the child Oluwatofunmi's medical needs and medication, referencing the mother's understanding of the child's needs and requesting that the hospital in Toronto pick up the child's treatment.
n. The second letter is dated August 19, 2019, and addressed to the mother's counsel. This letter specifically addresses which of the two parents attended their daughter's medical appointments since she received treatment at that hospital. The letter reviews all appointments from 2012 through to 2018 listing some 27 different appointments. Mr. Ajadi attended 1 out of 27 appointments and this one was while the parents lived together.
o. Of the appointments since the date that the parties separated, January 2017 according to Mr. Ajadi, there were five in total over 2017 and 2018 and only the mother attended at these appointments. In this letter it is noted that on the June 23, 2017 appointment at which the child and the mother attended, the doctor's assessment stated "…that family has not heard from Dad since April 2017, lives in the UK, but not at home."
In this letter the author indicates that… "The records also show that the mother was present when Funmi attended appointments with the psychologist. I have mainly engaged with the mother, face-to-face or on the telephone. From our perspective mother appears to have been the person responsible for Funmi. Mother also signed a consent form for whether correspondence could be sent to the home" …
p. Ms. Ayeni in this affidavit also speaks of and testifies about several issues which are not relevant to my analysis and that I have not considered those in this decision.
Discussion and Decision
[68] At this stage I return to the legislation in the United Kingdom. In particular section 2(1) of the Children's Act as noted above. This section provides that both parents have parental responsibility toward a child if they were married at separation. Subsection 3(1) of that legislation states that parental responsibility means all the rights and duties, powers, responsibilities and authority that, by law a parent and a child has in relation to the child and his property.
[69] I accept the argument on behalf of the father that unlike the Ontario legislation, there is nothing in the statute of the United Kingdom that is applicable in this case that indicates that either parent loses any of these rights or obligations upon separation unless set out in a court order or agreement.
[70] Under the legislation from the United Kingdom provided to me in this matter, the parties could have obtained specific orders if there were disagreements. They did not. This however does not remove the cloak of parental responsibility that is provided to them under legislation if they were married when a child is born and then separated. In this case the parental responsibility rests with both the father and the mother.
[71] Therefore, in relation to Article 3 of the Convention, I find that Mr. Ajadi has custody rights as he had parental responsibility as noted above.
[72] The focus now turns to the question that needs to be answered in Article 3(b) which reads as follows:
3(b) - at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
[73] At this stage I take guidance from the Superior Court decision noted above - Agboola, supra:
[74] It is the onus of Mr. Ajadi to prove to the court that there has been a wrongful removal or retention of the children as it relates to Article 3.
[75] The court noted that there is a distinction between custody and rights of access and the difference between those two rights is defined in Article 5 of the Convention.
[76] Further, the court clearly indicates that the Convention does not give preference to a primary caregiver "in protection of custodial rights." In other words, as I understand this comment, although Ms. Ayeni and the children lived together and separate from Mr. Ajadi for some two years and as such the primary caregiving of the children, as she claims, rested with her, this in itself does not trump Mr. Ajadi's custody rights as it applies to the Convention. It is not about quantity but in this case how Mr. Ajadi exercised "parental responsibility" rights in any way.
[77] From the above I understand the court to direct that in a case, such as the one that it was dealing with, where the parties had just separated, it did not need to get into the weeds of who was doing most of the caregiving between the parents prior to the separation as it had just occurred and the court assumed both parents just parented equally.
[78] In this case before me there is the need to review what evidence the parties have provided to me to assist in applying Article 3.
[79] As I have found, there is custodial rights to both the mother and father as they both have under the UK law parental responsibility. However, the issue now is whether that was being exercised by Mr. Ajadi, as he is claiming the removal impacts what he was doing actively regarding parental responsibility.
[80] This actual doing of Parental Responsibility, if I can put it in this fashion, is important as this right is not something to put on a shelf, but rather it needs to be alive in a meaningful way for children. I state this as the drafters of the Convention have used the word "exercise" in the Convention and they must have considered the need for active use of one's legal custodial/ "parental responsibility" rights to children.
Black's Law Dictionary, tenth edition, provides the following definition of exercise:
1- to make use of; to put into action.
[81] I am mindful that the threshold level in establishing custody rights is a low one in these matters as set out in the above-noted jurisprudence.
[82] Considering the above and the evidence that was filed, I find that Mr. Ajadi has not met the low threshold and was not exercising parental responsibility/custody at the time that the children were removed from the United Kingdom. He was an access parent.
[83] I note that in his initial documents filed with the Hague Convention Authority in the UK, he does not address the issue of his exercising custody but rather speaks of the children's habitual residence as well as his older daughter's medical treatment.
[84] This can be explained in part to the possibility that he did not have legal advice at the time.
[85] However, in his affidavit before the court, he makes bald assertions about exercising his parental responsibility/custody with thin or no specific evidence.
[86] There are no detailed or personally written letters to him from the children's schools during the relevant period of time after separation and before they left that explains his involvement with the children's school other than his statements. I note that some of the general school letters that he has attached to his affidavit have been emailed to him. Several attachments predate the parent's separation and all are general in nature. His address on a school document attached to the mother's affidavit is not his current address, as he provided in his application to the Hague Authority. Ms. Ayeni is listed as the contact parent. Mr Ajadi is noted as additional contact.
[87] Mr. Ajadi provides no details of names of teachers, administrators that he met with, or events at school that he would have regularly attended but for one mention that he attended a parent evening to assist his daughter Oluwatofunmi select courses.
[88] He argues in his affidavit that the mother has not provided "a shred of evidence" that Ms. Ayeni cared for the children's medical needs. This is relevant to the care of their older daughter. Contrary to this assertion during the relevant time in question, over the two years the parties were separated in the UK, the father did not appear at the hospital nor did the hospital have any interaction with him in relation to the ongoing and significant medical and psychological treatment being received by his daughter.
[89] In addition, in Mr. Ajadi's first affidavit at paragraph 22, dated July 29, 2019, he gives the impression that the Great Ormond Street Hospital for Children had been in direct contact with him about an upcoming program for their daughter scheduled for a date after she left. However, in his second Affidavit dated September 2, 2019, he testifies that he was given this letter by the tenants who are renting Ms. Ayeni's unit, as this letter arrived in the mail addressed to her. These are two very different sets of facts as it pertains to his exercising parental responsibility.
[90] I note also that Mr. Ajadi does not give details of his role and interaction at the Hospital and staff that have worked with his daughter to address her physical and emotional health and instead says the Hospital was doing all the monitoring of his daughter's needs without a description of his role in this significant process and institution for his daughter's welfare.
[91] In Mr. Ajadi's own evidence, he characterizes his role with the children as an access parent when he states in paragraph 14 of his September 2, 2019 affidavit the following:
I had an oral agreement with the respondent regarding access to the children to the effect that I could see them anytime I wish and in turn I would be giving her 300 (pounds) a month as upkeep for the children; and since she appeared to keep her side of the bargain while she is UK, I had no reason to exercise my right to file for custody of the children. And contrary to the respondent's claim, I was not dropping in without notice to see the children; rather, prior to the day or time I would be picking up the children, I would normally call and inform the respondent of the range of activities I planned with the children for that weekend.
[92] Mr. Ajadi's overall evidence provided has little to do with the details that one would expect to provide as evidence to illustrate how a parent is "putting into action"/exercising parental responsibility (custody rights) as stated in Article 3 of the Convention at the time the children were removed from their habitual residence. This is not the scenario in which it can be assumed after a recent separation that each parent actively exercised custody, as in this file before me the parties had been separated for some 2 years.
[93] I recognize that Mr. Ajadi loves his children and has spent time with them on trips and in the UK, however, the issue of his access is not what I have been asked to consider. I would ask the parties to consider serious negotiations on a plan to connect the children with Mr. Ajadi.
[94] On the issue of cost, I do not find that this file and the behaviour of the litigants before me attracts cost.
Order
- Mr. Ajadi's Application Tab1 of Volume 1 of the Continuing Record in file 628-19, is dismissed.
Released: September 19, 2019
Signed: Justice A.W.J. Sullivan