Court File and Parties

CITATION: Onuoha v. Onuoha, 2021 ONSC 56

COURT FILE NO.: 579/20

DATE: 20210104

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Onuoha v. Onuoha

BEFORE: D.L. Corbett J.

DATE: January 4, 2021

HEARD: December 10, 2020

Endorsement

D.L. Corbett J.

[1] Ms Onuoha moves for a stay pending appeal of a final decision ordering the return of the parties’ daughter to Nigeria. For the following reasons, the motion is granted.

[2] The test for a stay pending appeal applies the principles in RJR Macdonald in the context of a pending appeal. The moving party must show that:

(a) there is a serious issue to be heard;

(b) there will be irreparable harm if the stay is not granted;

(c) the balance of convenience favours granting the stay.

[3] This is a close call.

Irreparable Harm

[4] There will be irreparable harm if a stay is not granted. The appellant will lose her appeal rights in Ontario: the parties’ daughter will be returned to Nigeria and the appeal will be rendered moot from a practical perspective.

[5] In our justice system, parties are generally entitled to one hearing on the merits and one appeal. Initial Appeal rights are substantive and not to be foreclosed in the name of expediency. The court noted, in argument, that this argument could be raised on two more rounds of appeal – one to the Ontario Court of Appeal and one to the Supreme Court of Canada – with the effect that respect for appeal rights could substantially frustrate the order at first instance: this is a custody and access case, and the time that would be required for multiple rounds of appeal through successively higher courts – would have the effect of denying the respondent (and the parties’ daughter) the benefit of the order made at first instance for many months, perhaps years, if three rounds of appeal ensue.

[6] The response to this point is straightforward. Our system does not accord parties the right to multiple appeals. One trial and one appeal is all the justice that parties are entitled to have under our system of justice. Subsequent appeals are available only in cases that raise an issue of principle that transcends the interests of the parties. Of course, higher appellate courts exercise their own discretion on motions for leave to appeal from a subordinate appellate court, such as the Divisional Court, but it would be an error of principle in this court to deny a stay on the basis of the risk of prolonged appeals in higher courts: that is an issue to be decided in those higher courts and not here.

[7] Losing as-of-right appeal rights is irreparable harm for the purposes of a stay motion.

Balance of Convenience

[8] In this case I conclude that the balance of convenience is evenly balanced. On the facts found below, the appellant wrongly removed the parties’ child from Nigeria, contrary to orders of the Nigerian courts. The parties had been separated for several years, and had been engaged in litigation in Nigeria, where both the parents were born and had lived their lives to that point. The orders of the Nigerian courts placed the child in the mother’s primary care with regular access to the father – a plausible result of contested custody and access proceedings if those issues had been litigated in Ontario. The parties’ child has been withheld from her father for roughly a year while legal process has unfolded in Ontario, and this wrongful withholding will continue for several more months if a stay is granted pending appeal. This is significant prejudice to the respondent, who has found himself required to spend considerable amounts to litigate in Ontario – a place he has never been and to which he has no prior relationship.

[9] Balanced on the other side is the irreparable harm the appellant will suffer if her appeal rights are frustrated.

[10] This court can reduce the prejudice to the respondent by ordering an expedited appeal in this court. This will reduce, but not eliminate the prejudice to the respondent – leaving the respondent prejudiced by the exercise of the appellant’s appeal rights. This reduced prejudice cannot be eliminated, however, unless the appellant’s appeal rights are entirely frustrated.

Serious Issue to be Tried

[11] None of the appellant’s grounds for appeal strike me as strong. There appear to be three issues, somewhat inter-related:

(a) The appellant argues that the court below erred in finding that she brought the child to Ontario without the father’s consent. This is an appeal of a factual finding. There appears to have been substantial evidence upon which the court below could have come to the conclusion that it did on this issue – indeed, it strikes me as the most reasonable disposition of that issue in light of the record. An appeal of this factual finding is not likely to succeed.

(b) The appellant argues that the child will be at serious risk of harm if she is returned to Nigeria. There is evidence that Nigeria is a more dangerous place than Ontario, that the opportunities for a girl in Nigeria are less robust than those in Ontario, and that Nigeria is a Muslim country with laws that reflect different values than those embodied in Ontario’s legal system. On the other hand, the parties are successful professionals. Orders made by the Nigerian court in this case reflect a disposition of family law issues that would approximate the likely results of family law litigation in Ontario. The parties were born in and lived their lives in Nigeria – including the period of their courtship, marriage, pregnancy and birth of the child, separation, and several years post-separation. The appellant has concluded that her own future and that of the child would be brighter in Ontario. That may be so, but depriving the appellant and her daughter of a potentially brighter future in Ontario does not constitute a risk of serious harm. It was for the court below to absorb the evidence on this issue and to make findings of fact about it: on my review of the record, I see nothing unreasonable in the court’s determination that the appellant did not establish a risk of serious harm. Again, in my view an appeal of this factual finding is not likely to succeed.

(c) The appellant argues that there was procedural unfairness in the process followed by the court below, which did not include oral testimony. The appellate jurisprudence establishes that it may be necessary, in some cases, to hear oral evidence, and that the court must exercise its discretion appropriately to establish a fair process, given the nature of the issues between the parties and the record before the court. In the materials before me, the appellant emphasizes the importance to the decision of the adverse findings of credibility made against her and she argues that depriving her of the opportunity to testify and to defend her evidence under cross-examination undercuts the credibility findings by the court below. I consider this a difficult issue for the appellant: the court below appears to have considered the appropriate factors in exercising discretion over the procedures to be followed and I do not see how an assessment of the appellant’s demeanour as a witness would have helped her overcome the factual basis of the adverse credibility finding.

[12] My summary of the case, set out above, is, of course, based on the record before me and the limited written and oral argument on the motion, which was scheduled on a highly expedited basis. It is no substitution for argument of the appeal on the merits, on a full appeal record, with appropriate time to prepare for and hear the appeal. The case presents as a difficult appeal for the appellant to win, but I cannot say that there is no basis for it: it is not a frivolous appeal, though it is a weak one.

[13] Balancing the three branches of the test for a stay, I find that the appeal is a weak one, but not so weak that it is not arguable. I find that there will be irreparable harm if a stay is not granted, and that the balance of convenience is balanced equally. Weighing all of these factors together, I conclude that the stay should be granted so as not to terminate the appellant’s rights to an appeal.

[14] This decision prejudices the respondent and prejudices the child by a prolongation of this litigation. To diminish this prejudice, I direct that the parties follow an expedited schedule for this appeal:

(a) The appellant shall serve her appeal materials, which may be served by email by January 29, 2021;

(b) The respondent shall serve his responding materials by February 19, 2021;

(c) The parties shall provide their appeal materials (including costs materials) to the court by uploading them to Caselines by February 19, 2021.

(d) The appeal shall be heard by Zoom videoconference by a panel of three judges of the Divisional Court on March 2, 2021.

[15] No fresh evidence shall be included in the appeal materials described above. If the appellant seeks to rely upon fresh evidence on appeal, then the plaintiff shall advise the court by email by January 15, 2021 of her intention to move to admit fresh evidence, serve her motion materials in this regard by January 22, 2021, shall upload that record to Caselines by January 22, 2021. The court will then give further directions on this issue.

[16] If the respondent seeks to serve evidence that was not before the court below (other than in response to proposed fresh evidence sought to be adduced by the appellant), then the respondent shall so advise the court by February 3, 2021.

D.L. Corbett J.

Date: January 4, 2021