CITATION: Akiri v Umukoro, 2017 ONSC 7076
COURT FILE NO.: FS-16-86153-00
DATE: 2017 11 27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ESEOGHENE ERERE AKIRI
Applicant
- and -
EFEMENA BRIGHT UMUKORO
Respondent
COUNSEL:
Vivian James for the Applicant
Did not appear for the Respondent
HEARD: November 27, 2017, at Brampton, Ontario
BEFORE: Price J.
Reasons For Judgment
NATURE OF MOTION
[1] Since Nathanael Akiri-Bright was born on July 28, 2015, his mother, Eseogehene Akiri (“Ms. Akiri”), has been his sole caregiver. Ms. Akiri states that although informed of his birth, Nathanael’s father, Efemena Umukoro, (“Mr. Umukoro”), has, with the exception of a short time when he was in immigration detention, showed no interest in Nathanael, and has never seen him.
[2] Ms. Akiri began a proceeding in which she claimed only a divorce and custody of Nathanael, with no access by Mr. Umukoro.
[3] Mr. Umukoro, who has resided in Nigeria since being deported from Canada as a result of Ms. Akiri’s withdrawing her application for his permanent residence in Canada, mailed an Answer to the Court but did not serve it on Ms. Akiri-Bright or file it with the Court.
[4] Ms. Akiri obtained a divorce and an Order directing an Uncontested Trial of the issues of custody and access. She attended today for the trial, and seeks a final Order for custody of Nathanael.
BACKGROUND FACTS
[5] Ms. Akiri is 41 years of age (born May 29, 1976); Mr. Umukoro is 37 (born May 3, 1980). They were married in Lagos, Nigeria, on October 22, 2014, and separated in Nigeria less than a year later, on March 23, 2015. There is one child of the marriage, Nathanael Urhinrhinoghene Akiri-Bright, (“Nathanael”), who is now two years old, (born July 28, 2015).
[6] Ms. Akiri applied to the Canadian High Commission in Ghana for permanent residence in Canada for herself and Mr. Umukoro, but withdrew her application for Mr. Umukoro following the parties’ separation. On October 29, 2017, as a result of Mr. Umukoro losing his status as Ms. Akiri-Bright’s spouse, the High Commission of Canada in Ghana revoked his Visa and he was deported back to Nigeria.
[7] In November 2015, when Mr. Umukoro was in immigration detention, he began calling and asking about Nathanael, according to Ms. Akiri, almost to the point of harassment, and made veiled threats against her and her family, saying that they should watch their backs as people get kidnapped or even killed by unknown perpetrators. As a result, Ms. Akiri stopped taking Mr. Umukoro’s calls. Although Ms. Akiri has travelled back and forth between Nigeria and Canada several times since then, she states that she fears Mr. Umukoro and has sought police protection and a restraining order against Mr. Umukoro.
[8] Ms. Akiri began the present proceeding by Application dated April 18, 2016, in which she claimed only a divorce and custody of Nathanael, with no access by Mr. Umukoro. She did not seek child support or an order for costs, as Mr. Umukoro, who was a professional photographer in Nigeria, currently had no income or apparent means of support.
[9] The Application was served on Mr. Umukoro on April 27, 2016, by delivery of it to Grace Umukoro, an adult member of Mr. Umukoro’s household in Nigeria, as appears from the affidavit of Albert Idemidemo Lis, sworn the same date. A lawyer in Nigeria sent Mr. Umukoro’s Answer dated May 29, 2016, but failed to serve it on Ms. Akiri or file it with the Court with the filing fee, as required.
[10] Ms. Akiri proceeded with her Application on the basis that Mr. Umukoro had defaulted in filing an Answer.
[11] The Answer that Mr. Umukoro’s lawyer mailed to the Court seeks a decree of dissolution of the marriage and an order granting custody of Nathanael to Ms. Akiri until his tenth birthday, whereupon Mr. Umukoro asks that she “hand over the child to the Respondent”. He also requests access to Nathanael on giving “due notice to the Applicant”.
[12] Justice Lemon granted Ms. Akiri a divorce on July 8, 2017, to take effect 31 days after the date of the Order.
[13] On September 26, 2016, Lemay J. made an Order granting Ms. Akiri temporary sole custody of Nathanael, and directing a Case Conference, with notice to Mr. Umukoro. Notice of a Case Conference on August 23, 2017, (although the date was initially stated to be August 15, 2017, it was changed, at some point, to August 23, 2017, without such change being initialed), was served on Mr. Umukoro by mail on June 22, 2017, as appears from the affidavit of Gbenro Isaac sworn August 21, 2017.
[14] Mr. Umukoro did not attend the Case Conference. On August 23, 2017, Lemon J. directed that Ms. Akiri’s claim for custody proceed to an uncontested trial on November 27, 2017, and ordered her to serve his endorsement and her Affidavit for Uncontested Trial, on Mr. Umukoro by mail to the address in his Answer, in case he wished to attend.
[15] Justice Lemon’s endorsement, and Ms. Akiri-Bright’s Affidavit for Uncontested Trial, were served on Mr. Umukoro by mail on September 15, 2017, as appears from the affidavit of Gbenro Isaac, sworn November 21, 2017. He has not attended the trial.
ISSUES
[16] The Court must determine whether it is in Nathanael’s interests that a final Order be made granting custody of him to Ms. Akiri and as to the access, if any, that Mr. Umukoro should have to him.
PARTIES’ POSITIONS
[17] Mr. Umukoro has not delivered evidence in accordance with the Family Law Rules. Accordingly, the Court has only the position of Ms. Akiri. She asserts that it is in Nathanael’s interests that she be given sole custody of him.
[18] Ms. Akiri relies on the fact that Mr. Umukoro, in the Answer he mailed to the Court, acknowledges that she should be granted custody of Nathanael until he is 10 years old. She submits it is in Nathanael’s interest that Mr. Umukoro be granted access to Nathanael as it will give Nathanael the opportunity to have a relationship with his father if Mr. Umukoro wishes.
[19] Mr. Umukoro seeks an Order requiring Ms. Akiri to “hand over the child to the Respondent”. In the meantime, he seeks an Order granting him access to Nathanael, to see and visit Nathanael after giving due notice to Ms. Akiri.
ANALYSIS AND EVIDENCE
Legislative framework
[20] The Court’s determination of custody and access is governed by section 16 of the Divorce Act.[^1] Section 16(1) provides that a court may make an order respecting custody of or access to a child of the marriage on application by a spouse or another person. Section 16(4) provides that, in making an order under section 16, the court may grant custody and/or access to more than one person. Section 16(6) gives the court a broad discretion to include any terms, conditions, or restrictions in a custody/access order that it considers fit and just.
[21] Section 16(8) provides that the sole criterion for determining custody and access issues is “the best interests of the child…, as determined by reference to the conditions, means, needs and other circumstances of the child.”
[22] Section 16(10) provides:
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such access. [Emphasis added]
[23] The goal of maximum contact with each parent is not absolute, but maximum contact can only be restricted to the extent that it conflicts with the best interests of the child.[^2] The child’s best interests must be paramount to any other consideration when access is ordered. The convenience of the parents is not ignored, but is secondary to the welfare of the child.[^3]
[24] The Divorce Act does not set out a detailed list of other factors to be considered when determining the best interests of a child. However, in an effort to apply the best interests test with greater precision and consistency, courts, when applying the “best interests” test, have considered the criteria set out in provincial and territorial legislation. The relevant provisions in Ontario are sections 20 and 24 of the Children’s Law Reform Act (“CLRA”).[^4]
[25] Under section 20 of the CLRA, both parents are equally entitled to custody of their child. Where the parents live separate and apart, and the child resides with one of them with the consent of the other, the entitlement to access continues, along with the right to visit with and be visited by the child, and to make inquiries and be given information as to the child’s health, education, and welfare.[^5]
[26] Section 24(1) of the CLRA provides as follows:
Merits of application for custody or access
- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
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. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
[27] I will consider the evidence in relation to each of the factors that is pertinent to the determinations to be made in relation to Nathanael.
i. Love, affection and emotional ties between Nathanael and his mother and father
[28] Nathanael has strong bonds of affection with his mother and does not know his father.
ii. Nathanael’s views and preferences, if they can reasonably be ascertained
[29] Nathanael is too young for his preferences to be reasonably ascertained.
iii. The length of time that Nathanael has lived in a stable home environment
[30] Nathanael has resided with his mother since his birth on July 28, 2015.
iv. The ability and willingness of Ms. Akiri and Mr. Umukoro to provide Nathanael with guidance and education, the necessaries of life, and any special needs
[31] Nathanael has no known special needs that require specialized care.
He appears to be thriving in Ms. Akiri’s primary care.
[32] Mr. Umukoro has not participated in Nathanael’s care nor apparently sought to do so, since he was deported.
[33] Ms. Akiri has apparently not made efforts to include Mr. Umukoro in decision-making regarding Nathanael’s care.
[34] Given Mr. Umukoro’s apparent lack of interest or involvement in Nathanael’s care, Ms. Akiri is best able to care for Nathanael and to make decisions independently about his religion, education, and health needs.
v. The plan proposed by each of Ms. Akiri and Mr. Umukoro for Nathanael’s care and upbringing
[35] Ms. Akiri is a 41 years old Environmental Engineer with Total Exploration and Production S.A. Her job requires her to travel and to spend time off shore at times. She works on a rotational basis, spending 28 days at work and 28 days off work, and full time at home. While she is at work, Nathanael attends daycare provided by her employer. She spends her lunch times with Nathanael and takes him home with her at the close of business.
[36] Mr. Umukoro resides in Nigeria and requires a Visa to travel to Canada. He has not, to this point, exercised access to Nathanael or sought to do so.
vi. The permanence and stability of the family unit with which it is proposed that Nathanael will live
[37] Ms. Akiri has resided alone with Nathanael in Ontario since the parties separated on March 23, 2015.
[38] Mr. Umukoro resides in Nigeria. Ms. Akiri has no knowledge as to whether he resides alone there. Neither of the parties has tendered evidence as to his circumstances, apart from Ms. Akiri’s evidence that he has no income or apparent means of support.
vii. The respective ability of Ms. Akiri and Mr. Umukoro to act as a parent
[39] Ms. Akiri has been Nathanael’s sole caregiver since his birth, without input from Mr. Umukoro. She structures Nathanael’s daily activities, taking him for his immunizations and other medical appointments. She provides him with toys and books, and takes him to the park and to learning centres where he socializes with other children. She teaches him by setting an example for him and correcting his mistakes.
vi. The plan proposed by Ms. Akiri and Mr. Umukoro for Nathanael’s care and upbringing
[40] Nathanael is dependent on Ms. Akiri for his day to day care and is closely bonded to her. Ms. Akiri has provided stability and continuity for him in his first two years and wishes to continue doing so. She has been highly involved in his upbringing and care.
[41] Mr. Umukoro has not been actively involved in Nathanael’s upbringing or care and has apparently chosen not to participate further in the present proceedings after mailing his Answer to the court.
[42] It is in Nathanael’s best interest to continue to reside with his mother, and to be in her primary care. Ms. Akiri acknowledges that it is in his interest to have access to his father should his father chose to exercise to him in the future.
[43] I am prepared to make the orders that Ms. Akiri requests respecting incidents of custody and access to enable her to continue exercising her custody of Nathanael effectively, subject to such motions as Mr. Umukoro may make in the future for access to Nathanael or, when Nathanael is ten years old, for a review of his custody.
CONCLUSION AND ORDER
[44] Based on the foregoing, it is ordered that:
The Applicant, Esoghene Erere Akiri (“Ms. Akiri”) shall have custody of the Child of the Marriage, Nathanael Urhinrhinoghene Akiri-Bright, born July 28, 2015 (“Nathanael”).
The Respondent, Efemena Bright Umukoro, (“Mr. Umukoro”), shall have reasonable access to Nathanael, at such times and in such circumstances, including supervision, as the parties agree upon or, if the parties do not agree, as the Court may direct, on motion by Mr. Umukoro, on notice to Ms. Akiri.
Ms. Akiri has leave to obtain a passport(s) and government or other documents for Nathanael as he may require. Mr. Umukoro’s consent to the issuing of such documents or renewals is dispensed with.
Ms. Akiri has leave to travel with Nathanael outside Canada without the necessity of obtaining a Statutory Declaration or Consent from Mr. Umukoro to do so.
Mr. Umukoro has the right, when Nathanael is ten years of age, to apply to the Court for a review of Nathanael’s custody. Ms. Akiri shall keep Mr. Umokoro apprised of an address where she can be served with motions for access to Nathanael, or, when Nathanael is ten years of age, for a review of his custody.
Ms. Akiri shall forthwith serve this Order on Mr. Umukoro, by mail at ½ Ugbeyiyi Road, Sapele, Delta State, Nigeria.
Price J.
Released: November 27, 2017
CITATION: Akiri v Umukoro, 2017 ONSC 7076
COURT FILE NO.: FS-16-86153-00
DATE: 2017 11 27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ESEOGHENE ERERE AKIRI
Applicant
- and –
EFEMENA BRIGHT UMUKORO
Respondent
REASONS FOR JUDGMENT
Price J.
Released: November 27, 2017
[^1]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended.
[^2]: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 46, 117-18.
[^3]: S.(B.L.S.) v. S. (T.M.), 2003 CarswellAlta 133.
[^4]: Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, section 24.