COURT FILE NO.: 20-75

DATE: 2020/11/10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Chamberlin Chidi Onuoha

Agent: Gloria Antwi

Applicant

• and -

Irene Onuoha

Counsel: Gloria Ichim

Respondent

HEARD: September 30, 2020

THE HONOURABLE MADAM JUSTICE L. MADSEN

ENDORSEMENT

[1] This is my endorsement in relation to:

a) the father’s motion for enforcement of a Nigerian custody order, and the return of the parties’ two daughters to Nigeria; and

b) the mother’s cross-motion seeking temporary custody of the children in Ontario.

[2] For the reasons set out below, the father’s motion is granted and the mother’s motion is dismissed.

BRIEF BACKGROUND

[3] The parties, Chamberlin Onuoha [“the father” or “Mr. Onuoha”] and Irene Onuoha [“the mother” or “Ms. Onuoha”] were married on May 24, 2008 and separated in April or June, 2012. The parties were divorced on July 12, 2018.

[4] The parties are the parents of two children: Princess, born November 15, 2009, who is almost 11 years old [“Princess”]; and Angel, born December 20, 2012, who is almost 8 years of age [“Angel”].

[5] The parties entered into an agreement in Nigeria in relation to parenting, which was confirmed in the parties’ Divorce Order, granted July 12, 2018 by Judge A.B. Mohammed of the High Court of the Federal Capital Territory of Nigeria [the “Divorce Order”]. The agreement formalized parenting arrangements that had been in effect since separation. The Divorce Order provides the following, on a consent basis:

a. that the parties have joint/shared custody;

b. that the children will reside with their mother during the school year, and their father during holidays, unless the children are in boarding school in which case the parents will share holidays equally; and

c. that the father will have “unfettered access” to the children “even while school is in session” and that the mother shall have “unfettered access” during holidays.

[6] The father is a project director and pharmacist for a company called Management Sciences for Health in Nigeria. The mother holds a Master’s Degree in Public Health. She was a licensed pharmacist in Nigeria, where she was employed by the federal government. She has now completed a program at Conestoga College, in Ontario, obtaining a Diploma as a Personal Support Worker. She states that she is presently working full time at an hourly rate of $21.46. The mother indicates that she has also been accepted to a Master’s Program in Pharmacology at the University of Waterloo, but that the program has been postponed due to COVID-19.

[7] The mother decided she wished to immigrate to Canada, and submitted her application through the “economic class” on December 15, 2018.

[8] The mother asked for the father’s consent. The father did not consent. She therefore brought a motion on November 29, 2018, in Nigeria, seeking to compel his consent to her move to Canada with the children. The mother subsequently withdrew that motion.

[9] The mother says that about two months later, the father signed a document permitting her to travel to Canada with the children. Her counsel allowed, in submissions, that any consent was at best begrudging and time-limited. She acknowledged that the father took steps both before and immediately after the mother’s departure with the children to try to stop the move.

[10] The father says he did not consent at any time to the mother’s move to Canada with the children.

[11] The mother planned the move with the children for some time. On April 23, 2019, six months before arriving in Canada with the children, she obtained Permanent Residency Status in Canada. In July 2019, she came to Canada to write her “pharmacy exam.” She says that at that time she completed the landing process and became a permanent resident. She indicates that the children also have permanent residency in Canada, but that she has not been able to complete the landing process for them.

[12] The mother arrived in Canada on October 19, 2019 with the children. The immigration authorities seized the children’s passports but permitted the mother to enter Canada with the children.

[13] Days after arriving in Canada, the mother brought an ex parte motion in Nigeria, seeking sole custody. She brought that motion in a lower court and different state than the court that had granted the Divorce Order. An order was granted, but later vacated on the basis of lack of jurisdiction. The court ordered costs against the mother on the basis of abuse of process.

Proceedings in Nigeria

[14] Upon learning that the children were in Canada with the mother, the father immediately (five days later, on October 24, 2019) brought an ex parte motion in Nigeria seeking that the children be returned. The court directed that the mother be served and have an opportunity to respond. The father had also named the High Commission of Canada in Nigeria and Immigration, and Refugee and Citizenship Canada [“IRCC”] as respondents [collectively the “added respondents”] to the motion. The mother participated in the proceeding, was represented, and filed responding materials.

[15] On December 3, 2019, Justice Mohammed of the High Court of the Federal Capital Territory in Nigeria ordered the added respondents to return the children to Nigeria. The court also found that the mother’s actions in removing the children were in violation of the Divorce Order, stating “that the action of the first respondent (Irene Onuoha) in abducting the children …without the consent of the Applicant (Chamberlin Onuoha) is illegal and against the Order of the Honourable Court entered on 12^th July, 2018 (the Divorce Order).”

[16] The mother served a notice of appeal in Nigeria. She also brought a motion for a stay of execution pending an appeal being heard in Nigeria. She did not pursue the appeal.

[17] The added respondents successfully moved to set aside Justice Mohammed’s December 3, 2019 order on the basis of diplomatic immunity and want of jurisdiction. On May 20, 2020, Justice Mohammed set aside his own order and held that “the proceedings of this Court and all processes issued and served in relation thereto on the applicants (the added parties) are hereby declared null and void.”

Motion in Ontario

[18] After moving before the High Court in Nigeria on October 24, 2019, the father also brought an emergency motion in this court, initially returnable January 28, 2020. At that time he sought simply that the children not be removed from Ontario until the mother could be served with motion materials. I granted the motion on a temporary without prejudice basis.

[19] The father then served a motion returnable February 12, 2020, on notice, seeking the return of the children to Nigeria; a recognition of the July 12, 2018 Divorce Order and the December 3, 2019 Order of Justice Mohammed; police enforcement; and a determination that this court has no jurisdiction in relation to matters concerning the children.

[20] The mother’s cross-motion returnable the same date seeks temporary custody of the children in Ontario.

[21] On February 12, 2020, the matter was adjourned as the mother had just retained counsel who needed time to review the materials and assist with responding materials. Timelines were set for filing, and the court requested a Voice of the Child Report, relying on Ojeikere v. Ojeikere, 2018 ONCA 372, 2018 CarswellOnt 5917, in which the Ontario Court of Appeal approved of the appointment of a representative from the Office of the Children’s Lawyer [“OCL”] to hear and relay the children’s views to the court, in a case about jurisdiction.

[22] After the temporary suspension of court operations due to COVID-19, the father sought an “urgency determination” in accordance with the March 15, 2020 Notice to the Profession issued by the Chief Justice of Ontario. On March 24, 2020, I released my endorsement in which I determined that the matter was not urgent at that time, given the global travel advisory issued by the Government of Canada, and the likely difficulties, at that time, in implementing any decision to return the children given the COVID-19 pandemic and the widespread lockdowns. I found that for the time being, the “safety” and “wellbeing” of the children was being protected in Ontario, within the meaning of the Notice to the Profession. In my endorsement, I also stated, however, that “There should be no question that the fact of the motion not being heard presently is occasioned by the pandemic and through no fault of the father.” Onuoha v. Onuoha, 2020 ONSC 1815, 2020 CarswellOnt 4103.

[23] A Voice of the Child Report was prepared by clinician Barbara Dyszuk, signed March 21, 2020. The clinician reported that the children “stated clearly that they want to reside with their mother in Canada and spend time with their father in Nigeria during the holidays. Angel and Princess said they love their mother and their father.”

[24] At assignment court in July 2020, the matter was scheduled to be heard on September 30, 2020 as a long motion. Neither party objected to the motion proceeding at that time, notwithstanding the continuing pandemic.

[25] In her early affidavit materials, the mother states that she does not intend to return to Nigeria, that she has no source of income there, and that she has no assets there. In her final affidavit she states that her sister lives in her home in Abuja, suggesting that she still owns a home in Nigeria.

The Voice of the Child Report

[26] On February 26, 2020 the court requested that the OCL assign a clinician to meet with the children to ascertain their views and preferences “with respect to a potential return to Nigeria, either in the mother’s care or the father’s care, and to the extent possible given their ages, each child’s stated reasons for that view.” The court had indicated that any weight to be assigned to such a report would be subject to argument on the motion.

[27] The court requested that the OCL report be filed by March 9, 2020. The clinician stated in her report that as a result of the short timeline, the decision was made to interview the children only once. She also stated that it was not feasible to have the father bring the children for an interview.

[28] Both children were interviewed on March 17, 2020. The mother brought them to the appointment. It is not clear from the report whether they were interviewed sequentially, or at the same time. It is also not clear whether the mother left the clinician’s office or remained there during the interview(s). The report does not indicate how long the interview(s) took. The report offers no view on the strength, independence, or consistency of the children’s statements and views.

[29] In summary, the Voice of the Child report sets out the following:

Re Princess (age ten):

a. Princess made a series of statements about what she had been told by her mother about what took place when she was a baby, at the time of the parents’ separation, including that thereafter, she was cared for by her mother and “Auntie Ada”.

b. Princess said her mother’s house had air conditioning and was very nice, and that she lived there with her mother and Auntie Ada. She said her mother is a good cook. Her father’s home by contrast was “uncomfortable to live in” and very hot with no air conditioning or fridge. She said the food was often spoiled there and that there were spiders and bugs.

c. Princess said that she and her sister shared the holidays with their parents.

d. Princess stated that she was “kinda afraid of dad.” She said he would “make me kneel down and hold my arms in the air until my knees are so sore and all my body feels sore.” She said her mother does not punish or beat her and her sister: “She just scolds us if we did something bad.”

e. Princess also stated that when they lived in Nigeria, she experienced corporal punishment at school. She said they are “beaten with canes in school if we break the rules,” and that this happened to her “five or six times.” She said that in 2019 she was sent to boarding school in Nigeria and that there were snakes and rats in the rooms, and toilets overflowed. She said they had to “clean the toilets and wash all the dishes and crawl on the gravel to the hostel.” She said the dorm master would slap them.

f. Princess said her mom brought them to Canada and said that they would “develop better and have more opportunities.” Princess said that she wanted to stay in Canada. She said her father told her mother that she (her mother) should go to jail. She reported that her mother is “really scared” and that she prays she will be able to stay in Canada.

Re Angel (age seven):

a. Angel said that in Nigeria, she had always lived with her mother and that she visited Daddy during the holidays. She said there were spiders and bugs in her father’s house. She said “It was a little scary, I don’t like spiders and there were ants in the sugar.”

b. Angel reported that she likes Canada. She enjoys the seasons and says it is very hot in Nigeria. She likes her school. She says she is treated “very nicely” and that there is “no beating.” She said she feels welcome and people are nice to them.

c. Angel reported that when she lived in Nigeria she had to wear a tight uniform which was uncomfortable. She said the teachers at her school beat her with “very hard sticks and tree branches.” She said she was beaten because she liked to “sing too much and get into trouble.”

d. Angel said she misses her father sometimes. She said she wished he could be nicer to her mom. She also stated that on holidays they would go visit him and stay with him. Her mother would take them to Nigeria and stay with her sisters.

e. Angel said she loves both of her parents. She stated that she wants to stay in Canada and to visit her father during the holidays.

Both children:

[30] The clinician concluded her report as follows: “Princess and Angel clearly stated that they want to reside with their mother in Canada and spend time with their father in Nigeria during the holidays. Angel and Princess love their mother and father.”

General Comments:

[31] I recognize that the short timelines set by the court may have impacted the comprehensiveness of the report provided. Nevertheless, the children were interviewed only once, giving the clinician no opportunity to assess the consistency, strength, and independence of their views. Unlike in other cases which will be discussed below, the clinician also did not interview either parent, which could have provided context for the children’s views.

[32] Some of what the children told the clinician was based only on what the mother would have told them. This is natural enough, but no weight can be placed on what a parent tells the children about the circumstances of separation for example, when the children have no independent memory of it.

[33] I observe, with reference to Princess’ statements about corporal punishment in school, that she stated this happened “5 or 6 times.” At age ten she would have been in school in Nigeria for a number of years.

[34] I also observe that if in fact the children fear their father, it seems not to be impacting their wish to spend holidays with him in Nigeria.

[35] I am able to give only limited weight to this report, which, as will be seen below, was far less comprehensive than in cases where OCL reports in similar contexts have been given more weight.

POSITIONS OF THE PARTIES

[36] The father argues that this court has no jurisdiction over the children, and that it should recognize and enforce the 2018 Divorce Order which provided for joint/shared custody and unfettered access under s. 41 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 [“the Act” or the “CLRA”]. He argues that the order for the return of the children should be made pursuant to s. 41(4) of the Act, as an “order necessary to give effect” to recognizing the Divorce Order. The father further argues that this court has no jurisdiction to make any order for custody or access to the children under s. 22 or s. 23 of the CLRA, as the children were abducted, and the mother cannot successfully show that the children would be exposed to serious harm if returned. The father no longer relies on the December 3, 2019 Order of Justice Mohammed, which was set aside after he commenced proceedings in Ontario, as set out above.

[37] The mother makes several arguments in the alternative. First, she argues that the 2018 Divorce Order should not be recognized or enforced because the Nigerian court applied an inadequate conception of the best interests of the children. Second, she argues that even if the Divorce Order were to be recognized, there are no residency or travel restrictions, nor is there an order that she return the children. On that basis, she says that even if the court were to recognize the Divorce Order it would be of no practical effect.

[38] The mother further argues that the court should assume jurisdiction under s. 22 of the CLRA. She asserts, although not strenuously, that the father consented to her move, and that the children were not abducted within the meaning of s. 22(3). The mother says that if the court finds that the children were brought to Canada without consent, this case falls within the serious harm exception under s. 23 of the Act such that the children should not be returned to Nigeria. In submissions, her counsel stated that although the mother has alleged that the father was violent to her in Nigeria, and despite allegations that he used physical discipline against the children, the thrust of her client’s concern is with generalized country conditions in Nigeria, which she says would expose the children to risk of discrimination, and risk of physical, sexual, and psychological harm based on gender.

EVIDENCE BEFORE THE COURT

[39] The evidence before the court was voluminous and filled five volumes of the Continuing Record. I have considered all of the evidence in making this decision, whether directly referred to herein or not.

[40] Specifically, the following documents were filed and have been reviewed by me:

a. Father’s Application;

b. Father’s Form 35.1 Affidavit;

c. Father’s Notice of Motion returnable January 28, 2020;

d. Father’s Affidavit sworn January 20, 2020 (the “father’s first affidavit”);

e. Father’s Affidavit regarding service sworn January 20, 2020 (the “father’s second affidavit”);

f. Affidavit of Nekabari Annah, the father’s Nigerian counsel, sworn January 20, 2020 (“Mr. Annah’s first affidavit”);

g. Father’s Notice of Motion returnable February 12, 2020;

h. Mother’s Notice of Motion returnable February 12, 2020;

i. Mother’s Affidavit sworn February 7, 2020 (the “mother’s first affidavit”);

j. Mother’s Form 35.1 Affidavit;

k. Father’s Notice of Motion and supporting affidavit regarding court acceptance of materials without original signatures;

l. Father’s Affidavit sworn February 24, 2020 (the “father’s third affidavit”);

m. Affidavit of Nekabari Annah, the father’s Nigerian counsel, sworn February 24, 2020 (“Mr. Annah’s second affidavit”);

n. Affidavit of Oluwafemi Aweda, the mother’s Nigerian counsel, sworn February 6, 2020;

o. Mother’s Affidavit sworn February 25, 2020 (the “mother’s second affidavit”);

p. Affidavit of Dr. Ojo Eyutioyo (mother’s former colleague) sworn March 1, 2020;

q. Affidavit of Eunice Kantiok (mother’s sister), sworn March 1, 2020;

r. Affidavit of Augustus Amagwula (notary public), sworn March 2, 2020;

s. Affidavit of Esther Anosike (mother’s home caregiver), sworn March 1, 2020;

t. Affidavit of Dr. Lydia Jiya, sworn March 1, 2020;

u. Mother’s Affidavit sworn March 3, 2020 (the “mother’s third affidavit”);

v. Affidavit of Obialunamma Onoh (friend of both parties), sworn March 7, 2020;

w. Affidavit of Mariam Yusuf (the mother’s neighbor) sworn March 7, 2020 (Ms. Yusuf’s first affidavit”);

x. Affidavit of Nekabari Annah, the father’s Nigerian counsel, sworn March 4, 2020 (“Mr. Annah’s third affidavit”);

y. Father’s Affidavit sworn March 9, 2020 (the “father’s fourth affidavit”);

z. Mother’s Answer;

aa. Mother’s updated Form 35.1 Affidavit;

bb. Notice of Motion dated August 20, 2020, and supporting affidavit regarding adjusting filing timelines on consent;

cc. Father’s Affidavit sworn September 10, 2020 (the “father’s fifth affidavit”);

dd. Mother’s Affidavit sworn September 17, 2020 (the “mother’s fourth affidavit”);

ee. Father’s Affidavit sworn September 25, 2020 (the “father’s sixth affidavit”).

[41] I have also reviewed and considered the facta and briefs of authority filed by both counsel.

[42] The morning of the motion, the mother sought to file a further affidavit from her Nigerian counsel, Mr. Aweda, on the subject of the impact of the setting aside of the December 3, 2019 Order of Justice Mohammed. Counsel stated that her client had not been able to save the funds to pay for the affidavit until the last minute. Counsel for the father objected to the late filing of the material on the basis that if admitted, there should be an opportunity for responding evidence from the father’s Nigerian counsel, and that further delay would not be acceptable in the circumstances of the case. I declined to admit the affidavit, given the length of time that this matter has been pending. In any event, counsel for the father conceded that the December 3, 2019 Order of the Nigerian Court has been set aside and is no longer enforceable, which was the primary thrust of the proposed evidence.

[43] In the final section of this decision, I have considered affidavits received after the conclusion of argument, on November 6, 2020 regarding an alleged change of circumstances in October 2020.

[44] There is conflicting affidavit evidence in this matter, some of which I will refer to directly below. However, as will be seen, many of the conflicts in the evidence do not require resolution for a determination of this matter, and where resolution is required, I have done so.

[45] While the mother’s counsel urged in her factum that this matter be heard as a trial (this was not pursued when the motion was heard on September 30, 2020), I find that there is a sufficient basis in the substantial affidavit materials before the court to resolve this matter on motion. I rely on the determination of the Ontario Court of Appeal in Geliedan v. Rawdah, 2020 ONCA 254, 2020 CarswellOnt 4984, at para. 60, that it is a “rare case” involving alleged abduction that will require a trial rather than a motion. This is not that rare case. See also Cannock v. Fluegel, 2008 ONCA 758, 2008 CarswellOnt 6633, at paras. 33 – 37.

LAW AND ANALYSIS

[46] The following legal issues are addressed below:

a. A comment about “attornment”;

b. The recognition of the 2018 Divorce Order under s. 41 of the CLRA;

c. Habitual residence under s. 22 of the CLRA and the abduction exception under s. 22(3);

d. Serious harm under s. 23 of the CLRA;

e. Return of the children under s. 41(4) of the CLRA; and

f. Superseding the Divorce Order under ss. 42 or 43 of the CLRA;

[47] I also comment below on the COVID-19 context, and address an alleged change of circumstances after the motion was argued.

[48] Before turning to those issues however, it is useful to set out the purposes of Part III of the CLRA, which governs the issues in this case.

[49] Section 19 identifies the purposes which guide the interpretation of all of the applicable sections in this matter. Those purposes are as follows:

a. To ensure custody applications are determined on the basis of the best interests of the children;

b. To avoid the concurrent exercise of jurisdiction by tribunals in different places;

c. To provide that, save in exceptional circumstances, the Ontario court will decline jurisdiction where custody and access are more appropriately determined by a tribunal having jurisdiction in another place with which the child has a closer connection;

d. To discourage the abduction of children as an alternative to the determination of custody rights by due process; and

e. To provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of custody and access orders made outside Ontario.

[50] These overarching principles frame the legal context within which the determinations in this case must be made. These principles deter forum shopping, and “importantly, deter child abduction.” See Ojeikere, at paras. 13 and 14.

[51] Under the CLRA, there are four bases on which an Ontario court can assume jurisdiction over children:

a. Under s. 22(1)(a), where the child is habitually resident in Ontario at the time the application is commenced;

b. Under s. 22(1)(b), where, although the child is not habitually resident in Ontario, the child is physically present in Ontario when the application is commenced, and the other requirements of the section are met;

c. Under s. 23, where the child is not habitually resident in Ontario, but is present in Ontario, and would, on a balance of probabilities suffer serious harm if removed from Ontario; and

d. Under the court’s parens patriae jurisdiction, preserved by section 69 of the CLRA.

See Ojeikere, at para. 12.

[52] Each of these bases, with the exception of parens patriae jurisdiction (which was not argued), is discussed further, below.

A. A Comment about Attornment

[53] Throughout his motion materials, the father stated that he does not attorn to the jurisdiction of Ontario for the hearing of any substantive aspect of custody of or access to the children. He states that he merely seeks the recognition of the Divorce Order, and a return of the children to Nigeria.

[54] The mother argues that the father cannot ask this court to enforce a “generalized custody order wherein they are seeking enforcement” without at the same time attorning to the jurisdiction. She states that because the father does not have a Nigerian order for the return of the children, he must attorn to Ontario to seek that relief in this court.

[55] In E.(H.) v. M.(M.), 2015 ONCA 813, 2015 CarswellOnt 17891, a case under s. 23 of the CLRA in which a father sought the return of the parties’ children to Egypt following their removal to Canada by their mother, the Ontario Court of Appeal noted that there is no reference to the concept of attornment in the CLRA, and that “standing alone, attornment can be at most one of the factors to consider in the analysis under s. 22(1)(b) or the decision to decline jurisdiction under s. 25”. See also Murray v. Ceruti, 2014 ONCA 679, 2014 CarswellOnt 13728, at para. 40; and Knifati v. Knifati, 2018 ONSC 7255, 2018 CarswellOnt 21802, per Trimble J., at para. 35.

[56] In my view, in seeking the enforcement of the Divorce Order and a return of the children to Nigeria, the father has not attorned to Ontario’s jurisdiction. It would entirely undercut the purpose of s. 41 of the CLRA, discussed below, if application thereunder would result automatically in attornment to the jurisdiction of the Ontario court. In this case, seeking the return of the children is simply seeking implementation and enforcement of what the father says is a valid Nigerian order. Without an order for the return of the children, seeking recognition and enforcement of the Divorce Order would have no practical effect.

[57] Section 25 of the CLRA gives this court the authority to decline to exercise jurisdiction over a matter where it finds that it is more appropriate for jurisdiction to be exercised outside Ontario. If I am wrong in my analysis above and the father has attorned to the jurisdiction of the Ontario court, I rely on s. 25 of the CLRA to decline to exercise such jurisdiction based on the entirety of the analysis set out below.

B. The enforcement of the 2018 Divorce Order under s. 41 of the CLRA;

[58] The father argues that the 2018 Divorce Order should be enforced by this court under s. 41 of the CLRA, and that the court should make a further order for the return of the children under s. 41(4). While his initial notice of motion also sought enforcement of the December 3, 2019 Order directing the return of the children by the added respondents, he concedes that that order is no longer enforceable as it was set aside on May 20, 2020.

[59] The mother argues that the Divorce Order should not be recognized or enforced. She says the Nigerian court’s conception of the best interests test is inadequate, and further, that even if the Order were to be enforced, that would not require the return of the children to Nigeria as there is no term restricting the mother’s mobility.

[60] Section 41 provides as follows:

Enforcement of extra-provincial orders

41 (1) Upon application by any person in whose favour an order for the custody of or access to a child has been made by an extra-provincial tribunal, a court recognize the order unless the court is satisfied,

(a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;

(b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;

(c) that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;

(d) that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or

(e) that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario. R.S.O. 1990, c. C.12, s. 41 (1).

[Emphasis added.]

Effect of recognition of order

(2) An order made by an extra-provincial tribunal that is recognized by a court shall be deemed to be an order of the court and enforceable as such. R.S.O. 1990, c. C.12, s. 41 (2).

Conflicting orders

(3) A court presented with conflicting orders made by extra-provincial tribunals for the custody of or access to a child that, but for the conflict, would be recognized and enforced by the court under subsection (1) shall recognize and enforce the order that appears to the court to be most in accord with the best interests of the child. R.S.O. 1990, c. C.12, s. 41 (3).

Further orders

(4) A court that has recognized an extra-provincial order may make such further orders under this Part as the court considers necessary to give effect to the order. R.S.O. 1990, c. C. 12, s. 41 (4).

[61] The onus is on the party who opposes the recognition of the foreign order to satisfy the court that at least one of the enumerated exceptions is applicable.

[62] The mother concedes that none of the exceptions set out in s. 41(1) are engaged in this matter, except, she says, s. 41(1)(c), regarding the best interests of the child.

Best Interests

[63] The father’s Nigerian lawyer, Mr. Annah, has attested in this proceeding that the Nigerian parenting legislation provides that the best interests of the child is the primary consideration in determinations regarding parenting. The mother’s Nigerian lawyer, Mr. Aweda, did not contradict this in his affidavit materials.

[64] The mother agrees that best interests, on its face, is the primary consideration in determining parenting under Nigerian law. However, she argues that in contrast to s. 24(4) of the CLRA which specifically requires a consideration of violence and abuse, including against a spouse, when determining what is in the best interests of a child, Nigerian law has no such requirement.

[65] Further, the mother argues that it is also not sufficient to simply refer to the best interests of the child, one must consider the substance of how it is applied. For example, she highlighted a medical report that she sought to tender in the Nigerian divorce case, which she says documented violence against her by the father during the relationship. She argues that because the court declined to admit that report (on the basis that it was not prepared contemporaneously with the allegations, but for the litigation), this shows a failure of the court to consider violence against a spouse when considering the best interests of the child.

[66] There are two difficulties with this argument.

[67] The first is that the evidence shows that the report was withdrawn by the mother rather than struck by the court as the mother asserted in argument. This would suggest that her counsel acquiesced to the evidentiary concern raised by the father’s counsel, rather than the court not taking the issue of the alleged violence seriously. An Ontario court may also have had difficulties with such letters, tendered in the absence of the underlying medical records and not in affidavit form.

[68] The second difficulty is that the parenting terms set out in the Divorce Order were arrived at on consent and based on the parenting arrangements the parties had implemented between 2012 and 2018. The Divorce Order indicates that the parties attended a conference within the divorce process wherein they arrived at those terms. The Divorce Order states: “the parties agreed to shared custody/ joint custody of the children of the marriage as follows…” The mother does not deny that the terms were arrived at on consent. She must be taken to have agreed that the arrangements were in the children’s best interests in light of the consent order.

[69] In my view, this case does not come within any of the exceptions set out in s. 41(1) of the CLRA regarding the enforcement of extra-provincial orders. The 2018 Divorce Order is hereby recognized by this court.

C. Habitual residence under s. 22 of the CLRA and the abduction exception

[70] The Ontario Court of Appeal has clearly stated that in a non-Hague Convention context, the court need not engage in analysis of the concept of “habitual residence.” The “right question,” rather, is whether the child or children have been “wrongfully removed” or are being “wrongfully retained” in Ontario, within the meaning of s. 40 of the CLRA. Where there is an extra-provincial Order, it should be given “substantial weight” in that analysis: see Geliedan v. Rawdah, at paras. 61, 62, and 76. Having found that there was an extra-provincial order and having determined that it should be recognized and enforced, the next step would be for this court to address the arguments about whether that order should be superseded under ss. 42 or 43 of the CLRA.

[71] Nevertheless, in the event that I am wrong in recognizing the Divorce Order and given that the focus of the mother’s argument was predominantly on the application of ss. 22 and 23 of the CLRA, the sections that follow address her arguments on those statutory provisions first.

[72] The mother argues that the court should assume jurisdiction under s. 22 of the CLRA. She says that the children’s habitual residence is Ontario, under s. 22(1)(a), or, that if their habitual residence is not Ontario, the court should assume jurisdiction under s. 22(1)(b). She says that the father consented to the children’s move, and that this is not an abduction within the meaning of s. 22(3).

[73] Section 22 of the CLRA provides as follows:

22 (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(a) the child is habitually resident in Ontario at the commencement of the application for the order;

(b) although the child is not habitually resident in Ontario, the court is satisfied,

(i) that the child is physically present in Ontario at the commencement of the application for the order,

(ii) that substantial evidence concerning the best interests of the child is available in Ontario,

(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,

(v) that the child has a real and substantial connection with Ontario, and

(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. R.S.O. 1990, c. C.12, s. 22 (1).

Habitual residence

(2) A child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or

(c) with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred. R.S.O. 1990, c. C.12, s. 22 (2); 2016, c. 23, s. 6.

Abduction

(3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. R.S.O. 1990, c. C. 12, s. 22 (3).

[Emphasis added.]

[74] In my view, the children cannot be found to be habitually resident in Ontario under s. 22(1)(a), as I find they were abducted within the meaning of s. 22(3) of the CLRA. I do not accept the assertion that Mr. Onuoha consented to his children’s move to Ontario within the meaning of s. 22(2)(b), which defines “habitual residence.” I reach that conclusion for the following reasons:

a. I do not accept the authenticity of a travel consent document purportedly signed by the father. The father says he learned of this document when he was shown a copy on October 31, 2019 by the Canadian High Commission. He states that he was not in Nigeria on the day that it was purportedly signed, namely February 14, 2019.

b. The mother asserts that the parties attended together before a notary on January 30, 2019 to have the document signed. At that time, she says, they left it undated because it was not clear when exactly she would have to produce it to the Canadian authorities. She says the document was subsequently dated February 14, 2019. Attached to her first affidavit, sworn February 25, 2020, is a letter from Mr. Amagwula (notary) dated November 12, 2019, explaining this to the Canadian High Commission in Nigeria (presumably in relation to the proceedings in Nigeria at that time). This is a letter and not an affidavit. The letter makes no reference to verifying the identity of the individuals signing the form. The mother subsequently provided an affidavit of Mr. Amagwula, sworn March 2, 2020. In that affidavit, Mr. Amagwula refers to confirming identity. This detail was added when the Ontario litigation was well underway and not included in the November 2019 letter. In the circumstances I have difficulty with this evidence. The mother has also not refuted that the phone number for the father that was set out on the form was, the father says, seven years out of date, nor has she explained why an old phone number would have been listed.

c. The purported travel consent document is not consistent with the father’s actions both before and immediately after the move to Ontario. The father knew the mother wanted to move to Canada. I accept his evidence that he was so concerned that the mother might try to take the children without his permission that in October 2018, both he and his Nigerian lawyers notified the Canadian High Commission that the father was afraid that the mother would remove the children without his consent and asked that the Canadian authorities be on “alert” should she try to bring the children to Canada. He started proceedings within five days upon learning that the children were in Canada, seeking their immediate return. None of these actions is consistent with having consented to the children’s move.

d. The purported travel consent is also not consistent with the mother’s own statements to others immediately after removing the children. For example:

i. The father filed an affidavit of Obialunamma Onoh, sworn March 7, 2020, who attested to being a friend and colleague of both parties. Ms. Onoh attested that the mother called her after her arrival in Canada and asked her to try to obtain the father’s consent. Ms. Onoh also provided the court with a copy of an email from the mother to her on October 22, 2019 (three days after the removal to Canada) in which the mother stated “I have apologized to him for not informing him that we were leaving… He made me do that because there is no way that he would have agreed if I had told him…” The mother did not challenge the authenticity of that document.

ii. The father provided this court with a copy of an affidavit sworn in the Nigerian proceeding by Agadama Ogheneware, friend of the mother, on November 1, 2019, which was filed in the Nigerian proceeding seeking the return of the children. To that affidavit the friend attached WhatsApp and MSN messages between the mother and father days after the removal of the children. There was no objection in argument on this motion to the authenticity of the affidavit or the exhibits to the affidavit. The social media exchanges between the parents nowhere show the father consenting to the travel. Rather these social media exchanges show the mother pleading for the father’s consent and assuring him that she would never cut him off from the children, and the father expressing his clear concern about raising children abroad. He says: “I am very interested in the solidity of the foundation a child gets prior to exposure to certain cultures. I have never been a fan of raising kids abroad particularly in a single parent setting.”

e. Finally, the father provided copies of WhatsApp chats with the mother on the days immediately before she took the children to Canada. On the eve of moving the children out of Nigeria, she participated in micro-planning about pick-ups and drop-offs.

[75] The mother’s counsel did not strenuously argue the issue of the father’s consent. While she did not go so far as to agree there was no consent, she allowed that it might have been begrudging, or somehow time-limited.

[76] I find there was no consent to the removal of the children to Canada, and that as such the children’s presence in Canada since October 2019 does not alter their habitual residence, which is Nigeria. The children were abducted. There has clearly been no acquiescence or undue delay by the father in commencing this process.

[77] I also find, if necessary, that the court cannot assume jurisdiction under s. 22(1)(b), in light of the recognition of the Divorce Order as provided for above. While I acknowledge that other parts of the test are met, including that the children were present in Ontario when the application was brought, the test in conjunctive. As stated in Ojeikere, at para. 28, “An Ontario court can only exercise jurisdiction under this provision if all six of the enumerated criteria are met.” In the face of the recognized Divorce Order, jurisdiction over Angel and Princess cannot be assumed under that section.

D. Serious harm under s. 23 of the CLRA

[78] Starting from the proposition that the Divorce Order should not be recognized, the mother argues that if this court finds that she removed the children to Canada without the father’s consent, it should nevertheless assume jurisdiction under s. 23 of the CLRA on the basis that there is a serious risk of harm to the children if they are returned to Nigeria. The thrust of the argument on the motion was focused on country conditions in Nigeria, rather than on prior domestic violence asserted to have been perpetrated by the father, or the father’s treatment of the children per se. This is so notwithstanding that the affidavit materials made serious allegations against the father’s conduct personally.

[79] Section 23 of the CLRA provides that:

Despite section 22 and 41, a court may exercise jurisdiction to make or vary an order in respect of custody of or access to a child where,

a. the child is physically present in Ontario; and

b. the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

i. the child remains in the custody of the person legally entitled to custody of the child,

ii. the child is returned to the custody of the person legally entitled to custody of the child, or

iii. the child is removed from Ontario. R.S.O. 1990, c. C. 12, s. 23.

[80] The Ontario Court of Appeal has recognized that in some circumstances, the risk of harm will augur against the return of children, even in the face of an abduction. As set out by Weiler J.A. in E.(H.) v. M.(M.), at para. 87, and as cited in Ojeikere, at para. 39, “[W]hen there is a risk of serious harm to the child, the aim of discouraging child abduction must yield to another purpose of the CLRA, namely, the best interests of the child.”

[81] The leading case on the meaning of “serious harm” remains Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551, 1994 CarswellMan 382, decided under the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983 No. 35, 19 I.L.M. 1501 (entered into force December 1, 1983), commonly known as the Hague Convention. In that case, La Forest J., writing for the majority, discussed the Manitoba custody legislation which contains language similar to the CLRA, and found that “grave risk of harm” under article 13 of the Hague Convention does not mandate a significantly different test of harm than “serious harm”: see pg. 596.

[82] Discussing “grave risk of harm,” La Forest J. held that the harm could be psychological or physical but must amount to an intolerable situation. Citing Nourse L.J., he held that “not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm.” In Ojeikere, the Ontario Court of Appeal stated that this is the passage typically used by courts in understanding “serious harm.” Laskin J.A. stated, “Undoubtedly,… the harm can be physical or psychological or both, and it must be greater than would ordinarily be expected in taking a child from one parent and returning the child to the other parent”: see para. 56.

[83] In Ojeikere, also a case involving a claim for return of the children to Nigeria, in which jurisdiction could not be assumed under ss. 22(1)(a) or (b), Laskin J.A. concluded that the standard of serious harm required by s. 23 of the CLRA is “less stringent” than the standard under article 13(b) of the Hague Convention. Comparing the language in article 13(b) of the Convention with s. 23 of the CLRA, Laskin J.A. stated the following:

[U]nder s. 23, an Ontario Court must still assess the possibility of risk of harm if the child is removed from Ontario. Under s. 23, the court is not assessing harm from a past event; it must predict future harm, in other words, the risk of harm. As with any risk assessment, the court must assess both likelihood and severity, in this case the likelihood of future harm, and the severity of future harm.

[84] The application of s. 23 is discretionary. The onus is on the party who has wrongfully retained the child and is alleging the risk of serious harm: see Ojeikere, at paras. 40, 62, and 63.

[85] In Ojeikere, the Ontario Court of Appeal set out “potentially relevant” factors for consideration in assessing serious harm in that case. The court noted, however, that the factors could vary from case to case, and that in some cases one factor might point to serious harm while in other cases the risk will arise from several factors cumulatively. In Ojeikere, the court applied the following factors:

a. The risk of physical harm;

b. The risk of psychological harm;

c. The views of the children; and

d. A parent’s claim that she would not return to Nigeria even if the children are required to do so.

[86] In her written materials, the mother makes three different arguments in support of her assertion that the children are at serious risk of harm if returned to Nigeria:

a. That the father has been abusive to the children and that he cannot adequately care for them as a primary parent;

b. That the father was physically abusive to her during their relationship; and

c. That the country conditions in Nigeria create a serious risk for the children, based on wide-spread discrimination against girls and women, and more general country conditions including poor educational opportunities and political instability causing exposure to violence in the form or terrorism, kidnapping, and riots.

[87] In oral submissions, the mother’s counsel effectively abandoned the first two arguments, stating that her client’s primary concern was with country conditions in Nigeria. Counsel stated that the mother was no longer making a claim of abuse by the father against the children, and that she was no longer concerned about spousal violence because she would not be residing with the father if the court ordered the return of the children. Nevertheless, I will consider these claims, as they are articulated in her affidavit material and deserve attention.

[88] The mother also states that a return of the children to Nigeria would be inconsistent with their views and preferences. In light of Ojeikere, this issue is discussed below.

1. Claims of the father’s abuse of the children and inability to care for them

[89] For the first time, in her fourth affidavit, sworn September 17, 2020, the mother asserts that the father has physically abused the children, citing in part statements of the children to the OCL clinician. The clinician, it will be recalled, reported that Princess said she was “kinda afraid” of her father and that he would make her kneel down and hold her arms in the air until her whole body was sore. The mother states that she did not raise the issue of the father “beating” the children earlier, in the Nigerian proceedings, “because that would result in the children having no contact with their father which would wrongfully neglect the children.” She says that in the Nigerian proceedings, she “successfully limited contact” by “obtaining minimal access” for the father.

[90] In Ojeikere, Laskin J.A. discussed the harm to children caused by physical discipline citing the Supreme Court of Canada in Canadian Foundation for Children, Youth, and the Law v. Canada (Attorney General), 2004 SCC 4, 2004 CarswellOnt 252. Laskin J.A. stressed the highest court’s disapproval of corporal punishment, especially using objects. In Ojeikere, the mother and children’s statements about the father’s use of physical discipline were found to be reliable.

[91] The mother’s statements in her fourth affidavit must be considered in the context of the whole of her evidence: see Gillespie v. Jones, 2015 ONSC 5265, 2015 CarswellOnt 12789. Neither in the first three affidavits (two of which are very lengthy), nor in her Answer, does the mother assert that the father was abusive to the children. In those affidavits, she confirms that she agrees with the visitation schedule the parties negotiated, which was incorporated into their Divorce Order. At the outset of argument, counsel stated that the mother remains content to have the children spend holidays with their father in Nigeria, “from the end of June to September.” Were the mother genuinely concerned about the father physically hurting or in any way abusing the children, this would surely not be her parenting plan at this time.

[92] In the context of all of the evidence, I have ascribed little weight to Princess’ statement that she is “kinda afraid” of her father, or to the discipline technique she described. Angel does not describe the same technique, or any physical discipline by her father against her for that matter, and makes no statement about being fearful of him. If this disciplinary technique was used by the father, which I do not find, it does not rise to the level of serious harm if the children are returned to Nigeria, either on its own, or in combination with other asserted risks: see Bolla v. Swart, 2017 ONSC 1488, 2017 CarswellOnt 3659, at paras. 118-120.

[93] This is not a case like M.A.A. v. D.E.M.E., 2020 ONCA 486, 2020 CarswellOnt 10620, in which the children were interviewed multiple times by numerous professionals. In that case, the consistency, independence, and strength of the children’s statements could be ascertained and their statements given considerable weight. Here, by contrast, the children were interviewed only once, they were clearly very aware of their mother’s intense desire to stay in Canada. I am unable to find based on Princess’ statement that the father physically disciplines the children.

[94] The mother does assert, from her early materials, that she has always been the primary parent, and that the father is not sufficiently available to care for the children. She also states that they have come home from spending time with him looking “pale and undernourished.” Both parties have provided evidence from medical practitioners on this point, the mother’s evidence tending to suggest inattention by the father to the children’s needs while they are in his care, and the father’s suggesting the opposite. An affidavit tendered by the father from the children’s pediatrician, supported by voluminous medical records, stated that the children are well nourished, and growing well. To the extent that they have had illnesses, she stated that their issues have been consistent with those experienced by children growing up in Nigeria. I accept that evidence.

[95] I am not satisfied on a balance of probabilities that the father is not a capable parent. The copies of the WhatsApp chats between the parents suggest an active and engaged father, attentive to the needs of the parties’ daughters. The photos provided by the mother to support her claim of “undernourishment” in the father’s care do not in my view support her argument. The father’s materials suggest that he is very involved with the children, supporting, for example, the children’s interest in music. The affidavit of the pediatrician supports that these are healthy children, growing well.

2. Claims based on spousal violence

[96] The mother asserted from her earliest materials in this proceeding that she separated from the father due to his physical violence against her. While her counsel stated at the outset of argument on the motion that she was no longer pursuing her claim under s. 23 of the CLRA on this basis, I find that these claims merit attention. The claims of violence are serious, albeit wholly denied by the father.

[97] The caselaw is clear that a claim of serious harm can be based on claims of violence against a spouse. See for example Pollastro v. Pollastro, 1999 CanLII 3702 (ON CA), 43 O.R. (3d) 485, 1999 CarswellOnt 848 (C.A.), in which the Ontario Court of Appeal held, in the context of a Hague Convention claim, that abuse against the mother by the father constituted a “grave risk” of harm within the meaning of article 13(b) of the Convention. The court stated, “[I]t seems to me as a matter of common sense that returning a child to a violent environment places that child in an inherently intolerable situation, as well as exposing him or her to a serious risk of psychological and physical harm.” A child’s interests are tied to a parent’s psychological and physical security. In that case, the court found that in addition to ongoing risk to the mother, there was “grave risk of exposure to serious harm” to the two-year old child personally: see paras. 33-35. Allegations of physical or emotional abuse are also relevant as far as parenting capacity is concerned: see Isakhani v. Al-Saggaf, 2007 ONCA 539, 2007 CarswellOnt 4895; E.(H.) v. M.(M.); and Bolla v. Swart.

[98] Further, see Achakzad v. Zemaryalai, 2010 ONCJ 318, 2010 CarswellOnt 5562, in which Murray J. considered domestic violence and claims under article 13(b) if the Convention in detail. In that case, she noted that courts declining to find grave risk of harm in the context of domestic violence have tended to do so on the basis of the following: that the court is not satisfied on a balance of probabilities that the domestic violence occurred; that the assault was a one-time or minor occurrence; that the victim expressed no fear of the assailant; or, that the violence was not the reason the abducting parent declines to return the children: see para. 16.

[99] In this case the evidence regarding domestic violence by the father against the mother includes the following:

a. The mother asserted in both the Nigerian divorce proceedings and these proceedings that the father assaulted her on June 9, 2012, when she was 11 weeks pregnant with Angel, pushing her down the stairs resulting in serious injury. She says that the father also assaulted her in January 2012 resulting in an injury above her left eye. The mother states that there was violence throughout the relationship.

b. The mother filed an affidavit of her sister, Eunice Kantiok, stating that she witnessed the father abuse the mother when she stayed briefly with them in 2011. Ms. Kantiok states that in May 2011, she heard the mother scream. The father angrily left the house and the mother was crying and in pain. She said the mother declined sex, the father got angry, and that the mother miscarried as a result of the incident.

c. The mother also filed an affidavit of her former home caregiver, Esther Anosike, who stated that she lived with the mother and the father from 2010 to 2012 and witnessed more incidents of abuse than she could count. She said the father frequently slapped the mother and pushed her against walls and doors. She said that she once went to the hospital with the mother in 2011 to treat an “injury she sustained on her head after he pushed her against the edge of a door.”

d. The mother states that the father would hit her in front of Princess.

[100] The mother’s assertions regarding domestic violence were raised in the Nigerian divorce, as well as throughout her materials in support of her position on this motion, including her Answer and her affidavits.

[101] There are frailties in the mother’s evidence, which include the following:

a. In the Nigerian divorce, the mother tendered letters of medical professionals with respect to the alleged assaults described in 2012, dated in 2014. Those proposed exhibits were withdrawn by her counsel in that proceeding following an objection on the basis that the letters were prepared during the litigation. The letters were also appended to the materials for this proceeding. Given that the mother was aware that there was an evidentiary concern with respect to the letters, it is unclear why she did not request that the authors swear affidavits setting out the proposed evidence, or, if she was unable to do so, why she did not explain this in her Ontario affidavit materials. She obtained and filed many other affidavits for this motion and would have been aware that this would be the preferable way for the proposed evidence to come before the court.

b. Second, the mother herself does not set out the incidents relayed by Ms. Kantiok (miscarriage resulting from assault in 2011) or Ms. Anosike (injury to head after being pushed against the edge of a door in 2011), set out above. There is no reference in her own affidavits to having miscarried as a result of an assault by the father.

c. Third, the mother asserts that the June 9, 2012 alleged assault led to the parties’ separation. However, the 2018 Divorce Order refers to the separation having taken place in April of 2012 and that the mother “did not dispute” leaving the home in April 2012. While I acknowledge that incidents of violence may certainly occur after separation, and that the risk of domestic violence increases after separation, there is no explanation in the materials for the circumstances which led to an assault of this nature after separation, or for why the mother says this was the date of separation but the Divorce Order sets out an April 2012 date: see Achakzad v. Zemaryalai, at para. 86.

[102] The father denies the mother’s claims that he was violent against her outright.

[103] In this case, while I am very troubled by the claims of violence by the father against the mother, I need not determine whether, on a balance of probabilities, the abuse took place. I reach this conclusion for the following reasons:

a. The mother did not pursue this basis of protection under s. 23 of the CLRA in argument on the motion. Her counsel stated that the main concern is country conditions in Nigeria.

b. In numerous cases in which violence against a spouse is considered under s. 23 of the CLRA, the separation is very recent and/or the claimed violence is very recent. In this case, the parties separated eight years ago, and nowhere in the materials is there a claim of any post-separation violence by the father against the mother. This case is unlike Achakzad v. Zemaryalai, where Murray J. found fear on the part of the mother, mounting risk, a “high probability” of an assault, and the court case took place only two years after the parties’ separation.

c. The evidence before the court is that the parents communicate reasonably well and regularly about the children, using WhatsApp and other media. None of the post-separation communication with which the court was provided, by either party, shows communication that is threatening or concerning.

d. In the cases in which s. 23 is applied based on domestic violence, the underlying rationale appears to be twofold. First, that children’s ongoing exposure to violence against a parent is inherently damaging to them: see Pollastro v. Pollastro; second, that where a parent abuses or has abused the other parent, this raises concerns about parenting capacity: see E.H. v. M.M, at para. 124. In this case, the mother herself asserted in argument that there was no risk of exposure to violence between the parents because they would not live together if the children were ordered to be returned. Further, nowhere in her materials does the mother ground her concerns about returning the children to Nigeria on any suggestion that challenges to the father’s parenting capacity arise from his claimed propensity towards domestic violence.

e. Finally, in my view, this is a case like Cannock v. Fleguel, 2008 ONCA 758, 2008 CarswellOnt 6633. Namely, the alleged violence is not the reason the abducting parent declines to return the children. The mother’s materials make clear that the reasons she does not wish to return the children centre squarely on the economic, educational, and other opportunities she believes Canada offers to herself and the children. As she said in her second affidavit at para. 32:

I did not see any future for me and my children in Nigeria. It was because after ten years working as a ‘professional,’ working overnight, I was barely making ends meet I decided to apply for immigration to Canada. In hopes of a better future not just for myself but for my children. [Emphasis added.]

3. Claims based on generalized country conditions

[104] The thrust of the mother’s claim for protection from having to return the children to Nigeria is that the country conditions are such that a return would cause them serious harm. Specifically, she states in her second affidavit and other materials that if the children are returned to Nigeria, the harm to them will take the following forms:

a. Psychological harm in the form of living as second class citizens due to their gender which affects job opportunities, and normalization of domestic violence as the cultural norm;

b. Not having access to a proper education;

c. Exposure to potential violence in the form or terrorism, kidnapping and riots;

d. Being exposed to instability that operates on such a level that it makes daily life difficult and provides poor economic prospects;

[105] The mother tenders four types of evidence in support of her position on generalized country conditions: social science evidence in the form of academic articles, policy papers, and governmental travel advisories; statements by herself and other lay affiants regarding the generalized level of discrimination and risk in Nigeria; statements by her regarding an attack sustained by her in 2014; and, statements by herself and the children about their specific educational experience in Nigeria.

(i) Social Science Evidence

[106] The mother attaches to her materials a range of academic papers and articles. The court must be very cautious about relying on such documents. The material is not in affidavit form and there has been no opportunity to cross-examine the authors on statements made. In Isakhani v. Al-Saggaf, for example, where the mother sought to have a report by Amnesty International accepted as evidence regarding country conditions including discrimination and violence against women, the Court of Appeal found that the report should not have been admitted. The court found in part that it did not support the claims made about Dubai, so there were concerns regarding relevance and probative value. The court also found, however, that the report was inadmissible hearsay evidence, stating at paras. 38 and 39:

[W]here a document like the Amnesty International Report is being tendered for the truth of its contents in respect of contested facts (be the adjudicative, legislative or social) that are at the centre of the controversy between the parties, the reliability and trustworthiness of the document takes on added importance….

Here, that could well have translated into the need to submit evidence from witnesses with firsthand knowledge of the report who could be subject to meaningful cross examination. No such witnesses were available here…

[107] See also the decision of Murray J. in Ndegwa v. Ndegwa, 2001 CanLII 28132 (ON SC), 20 R.F.L. (5th) 118, 2001 CarswellOnt 2528 (Ont. S.C.), in which she declined to admit a “Resource Book” tendered by the mother, containing “sociological data and information from various government and non-government organizations dealing with issues of human rights, civil liberties, and corruption in government and the justice system in Kenya.” Murray J. found that the material was not properly before the court and did not meet the “basic requirements for evidence that can be accepted by the court at the hearing of a motion.” The material fell neither into the category of “evidence,” nor information about which she could take judicial notice, and should have been proven first-hand, or by expert evidence properly tendered.

[108] In this case, the proposed evidence is put before the court with no opportunity for the father to test it by cross-examination. Some of the documents, themselves hearsay, contain double and triple hearsay. The father does not agree with the mother’s characterization of the situation in Nigeria. The materials are not properly before the court. I am unable to place reliance upon the social science documents in reaching my conclusions herein.

[109] I do wish to make a comment about the Travel Advisory of the Canadian government which the mother attached to her fourth and final affidavit. The Advisory, dated September 18, 2020, advises against “non-essential” travel to Nigeria at this time “due to the unpredictable security situation.” The advisory also states that a “high degree of caution” should be exercised in Abuja, the capital region, where the father resides. The advisory points to a high level of crime, the risk of kidnapping, a risk of terrorism, particularly in the North.

[110] This document is, on its face, concerning. At the same time, it is very general, and is directed primarily at travelers to Nigeria. Many (but not all) of the risks described relate to “foreigners” in Nigeria. It does not, of course, speak to what specific risks might be most prevalent for a family in the social and economic circumstances of the father, a professional whom the mother has described as a man of substantial means. The father states in his materials that he lives in a protected and safe enclave where he is able to offer a secure environment to the children. Again, due to the nature of the document and the manner in which it was tendered to the court, there has been no opportunity to hear from the author about how the risks described might apply to this family.

(ii) Personal statements about generalized discrimination against women in Nigeria

[111] In her materials, the mother makes many statements about generalized discrimination against women in Nigeria. She states for example that in Nigeria the following occur: that the woman is like a slave and the man is like a demi-god; that unmarried women are discriminated against; that domestic violence is tolerated and accepted; and that as a Nigerian woman, one develops an inferiority complex where one assumes one’s voice will not be heard so one keeps one’s opinions to oneself.

[112] I accept the mother’s statements that she has experienced discrimination in Nigeria and that she is worried about discrimination against the parties’ daughters. I also accept that the statements such as those set out above reflect her observations of Nigerian culture as she has lived it. Where framed more broadly, though, I would note that she is not an expert witness and did not call expert witnesses about the present situation for girls and women in Nigeria.

(iii) Statements about a 2014 attack against the mother

[113] The mother includes in her materials a description of what can only be described as a horrific attack against her in 2014. She in no way suggests that the father was connected to the attack. She appears to include it as an example of the gender-based discrimination and sexual violence which she says persists in Nigeria, particularly for unmarried or divorced women.

[114] In brief, the mother says that in 2014, when Angel had not yet turned two years old and Princess was five, she heard a loud scream. Intruders were brandishing a knife over her maid, who was on her knees. The intruders seemed impaired by alcohol or drugs. The maid was bleeding from her arm. The children woke up and ran to the mother. The intruders asked for money or gold. One of the intruders wanted to rape Princess. The mother rushed towards him asking to be raped instead. She begged the intruder to spare Princess. Ultimately the child was spared and the mother was raped “instead.”

[115] The mother attested that she reported the incident at the Apo police station. She says the police told her they would investigate but nothing came of it. She says that her neighbours, landlord, and maid, “can serve as witnesses.” She states that her landlord did renovations to the windows after the intruders broke in and put up a fence. The mother tendered an affidavit from her former maid setting out similar details. The mother sets out her great concern that the children will be exposed to similar violence and discrimination.

[116] In his materials the father expresses empathy, if the event took place, but also skepticism. He states that the fence in front of the mother’s home was always there. He tendered an affidavit from the mother’s former neighbour, Mariam Yusuf, who stated she had no knowledge of any such event (the two apartments apparently shared a wall). The mother then tendered a further affidavit from Ms. Yusuf stating she (Ms. Yusuf) did not know the contents of the affidavit she signed for the father when she signed it. Ms. Yusuf says that the incident did not happen when she was living there but that she moved while the mother continued to reside there, suggesting it could have taken place after. The affidavit is vague and contains no dates as to when the neighbour lived there and when she did not.

[117] In her conversation with the OCL clinician, Princess, who would have been five years old according to the mother when the incident took place, did not report anything about this to the clinician. It could be that she does not remember it, that she does remember it and cannot speak about it, that she might have told the clinician at a subsequent appointment (had there been one), or that the incident was different than described. Again, the OCL interviewed the children only once.

[118] I make no finding as to what exactly transpired in 2014 during this incident set out by the mother, as it is not necessary to do so. Even if the event took place exactly as described by the mother, it does not ground a defense based on serious risk of harm. As Laskin J.A. held in Ojeikere, the risk must be prospective. The events as described by the mother would have taken place six years ago. There is no evidence that these individuals would again harm the mother or the children. There is no evidence of others who plan to harm the mother or the children. The reality is that violent home intrusions and sexual assault also take place in Canada, and indeed in Kitchener, Ontario where the mother and the children now reside.

(iv) Serious harm arising from education of the children in Nigeria

[119] The final prong of the mother’s argument regarding serious harm is that the children would suffer serious harm if forced to continue in the Nigerian school system. The mother sets out the following concerns: that education in Nigeria is not free; that the father “chooses undesirable schools;” that teachers often use physical discipline such as flogging, hitting with sticks, and spanking; that class sizes can be upwards of 45 students; that the children do not use computers in Nigeria; and that there is a risk of kidnapping from boarding schools. The mother summarized her concern about education as follows:

I cannot overemphasize how important education is for my girls. Education is the only way that you can have a good life. I have been able to support myself after divorce because I was educated. I worry about the quality of education for the girls. I worry that if we go back to Nigeria the education will be rudimentary and will not give them the skills they needed to survive and move forward in their careers.

[120] By contrast, the mother sees the education system in Canada as being of better quality that that in Nigeria. She says the children are doing well in school here, they enjoy it, and that they will have opportunities due to being educated in Canada.

[121] A number of the mother’s concerns about education in Nigeria, do not, on their face, reach the level of “serious harm.” The mother’s suggestion that the father chooses “undesirable” schools is belied by the social media evidence showing that the mother was actively involved in the selection of schools for the girls. The concerns that there is a cost to education in Nigeria or that there are large class sizes also do not reach the threshold of serious harm. Both parents are professionals and the evidence does not support a finding that the parents cannot afford quality schools for their children. Similarly, the complaint that computers are not used in Nigerian schools – which is denied by the father who states that both girls have computers in Nigeria – cannot reach the level of serious harm.

[122] However, the issue of physical discipline in Nigerian schools, as raised by the mother, merits further scrutiny. The mother asserts that there is a serious risk of harm to the children if they are returned to Nigeria, in part because of the use of physical discipline in schools.

[123] As seen above, both children stated that physical discipline was used against them in their schools. Princess reported that “we are beaten with canes in school if we break the rules” and that she was beaten on the “bum, back, legs, and hands.” She said it had happened “five or six times.” She also said that when she was at Faith Academy, the dorm master would slap them. Angel reported to the clinician that when she was in school in Nigeria the teachers would beat her with “very hard sticks and tree branches.”

[124] On the evidence, I am not convinced, on a balance of probabilities, that the children are at risk of serious harm occasioned by physical discipline in school if returned to Nigeria. I reach this conclusion on the basis of the following:

a. Notwithstanding the significant volume of material before the court on this motion, the mother’s evidence and statements about this issue are vague. She states that “In Nigeria the teachers utilize corporal punishment in school which I believe to be an inefficient method for education of children. My children do not respond well when beaten.” She gives no examples of the corporal punishment she says the children have experienced at school.

b. As I have set out, the court must exercise caution in drawing conclusions from the children’s statements to the OCL clinician. The clinician did not ascertain the strength, independence, or consistency of the children’s views and statements. Both children are very well aware of the mother’s position in the litigation and are closely aligned with her. In the context of their mother having made no detailed statements about physical abuse of the girls in school, I am concerned about the independence and accuracy of the girls’ statements about physical discipline at school.

c. Finally, looking prospectively, the mother and father are professionals. The mother states that the father has means. The father has stated in his materials that when the children return to Nigeria he welcomes the mother’s proposals regarding the best schools for the children. These are parents who, looking forward, would be in a position to identify appropriate schools where corporal punishment is not used and enroll the children accordingly.

Children’s Views

[125] As set out above, in Ojeikere, Laskin J.A., for the majority, established a four-part test for the determination of whether a child or children are at risk of serious harm if returned to the country from which they have been removed. One of the factors was the children’s views and preferences. In that case, Laskin J.A. held that when considering the risk of psychological harm, the court must consider the mature child’s objection to returning to the place of habitual residence, bearing in mind both s. 64(1) of the CLRA as well as article 13(b) of the Hague Convention. He stated, “An adolescent child who expresses mature reasons for objecting to a court-ordered removal should give us pause. A 15-year-old who expresses a considered objection to returning to the country of habitual residence is harmed far more by a forced removal than is, say, a five-year-old.”

[126] In that case, all three children were teenagers. All three objected to returning to Nigeria and all three expressed a strong desire to remain in Canada. Each perceived Nigeria as a place where “bad things happen.” Laskin J.A. concluded that there was a “real risk the children would experience a serious letdown in their hopes and aspirations for their futures” if they were ordered to return to Nigeria. In the result, the children “would likely suffer serious psychological and emotional harm if now forced to return to Nigeria against their will.” The children, Canadian citizens, had lived in Ontario upwards of seven years, possibly longer.

[127] In this case, while this is not decisive on its own, the children are younger – seven and ten years of age – and have been in Ontario only one year, having resided in Nigeria until their wrongful removal in October of 2019. The evidence does not support a finding that the children would suffer psychological harm if now returned to Nigeria. Nigeria was the only home they knew until October of 2019.

Mother’s Intentions

[128] In Ojeikere, Laskin J.A. declined to find that the mother’s statement that she would not return to Nigeria if the children were ordered to be returned would give rise to a serious risk of harm. He stated, “There may be cases where a parent’s refusal to accompany the children back to the country of habitual residence could give rise to a serious risk of harm to the children. This case is not one of them.” He found that the mother’s vague assertion that there is nothing for her in Nigeria would not establish a substantial reason for refusing to return there. The mother has made a similar statement in this case. I adopt Laskin J.A.’s approach to this issue.

E. Return of the children under s.41(4) of the CLRA

[129] As set out above, the mother suggests that this court cannot order a return of the children incident to a recognition of the Divorce Order, because that order did not contain a term limiting where she could live, restraining her travel, or requiring that the children be returned. She states that even if this court recognizes the Divorce Order, it is of no practical effect. As noted, she states that seeking that the children be returned amounts to attornment to the jurisdiction of the Ontario court. I have already addressed the attornment argument which I have found does not assist her.

[130] Section 41 of the CLRA specifically contemplates that where an extra-provincial order is recognized, further orders of the court may be required. Section 41(4) states:

Further orders

(4) A Court that has recognized an extra-provincial order may make such further orders under this Part as the court considers necessary to give effect to the order. R.S.O. 1990, c. C. 12, s. 41(2) [Emphasis added.]

[131] In this case, the mother urges an interpretation of s. 41 of the CLRA that would strip the Divorce Order of meaning in relation to parenting terms. Recognizing the Nigerian Divorce Order under s. 41(1), without also ordering the children’s return, would not “give effect” to the Order, which provides that both parents have unfettered access.

[132] The court cannot accept those submissions. While there is no mobility or travel restriction in the Divorce Order, per se, the Order as set out above provides for joint custody and shared parenting, with “unfettered access” throughout the year. I can think of little that would “fetter access” as much as having one’s children moved to another continent. This case is distinguishable from Ponzo v. Kovacs, 2004 CanLII 18439, 2004 CarswellOnt 965 (S.C.), in which O’Connor J. suggested that the absence of a non-removal term in a Hungarian custody order left the father at liberty to change the children’s residence to Canada. In that case, the father had sole custody of the children, and the mother no longer had access rights. In this case, there is joint and shared custody with both parents having rights of access.

[133] Caselaw under s. 41(4) of the CLRA illustrates substantive terms which have been ordered by Ontario courts to secure the implementation of the extra-provincial order sought to be enforced.

[134] In Cabral v. Cabral, 2005 CanLII 63815 (ON SC), 17 R.F.L. (6th) 1, 2005 CarswellOnt 2830 (S.C.), for example, Perkins J. recognized a California custody order under s. 41(1) of the CLRA. The California order had granted the mother custody and permission to move to Ontario with the children, but also put in place restricted access to the father in a therapeutic setting. In recognizing the California order, Perkins J. included a police enforcement clause, requiring the police “to locate, apprehend and deliver the children to the mother whenever necessary to secure compliance with the order of this court.”

[135] See also Aliabadi v. Aliabadi, 2010 ONSC 6220, 2010 CarswellOnt 9184, in which Greer J. ordered the return of the parties’ two children to New Brunswick upon recognition of an interim New Brunswick order granting custody to the father. Greer J. stated “when none of the circumstances set out in subsections 41(1)(a) to (e) apply, the Court is given the authority to enforce the Order…”: see para. 48 (emphasis added). Greer J. ordered the return of the children to New Brunswick and included a police enforcement clause.

[136] I find that an order that the mother return the children to Nigeria is required to give effect to the Nigerian Divorce Order.

F. Sections 42 and 43 of the CLRA

[137] For completeness, I will briefly address ss. 42 and 43 of the CLRA. The mother appended these sections to her Brief of Authorities and set out the text in her factum, but the sections were not argued when the motion was heard. These sections permit variation of the Divorce Order even if recognized.

Section 42, Material Change of Circumstances

[138] Section 42 provides that the court may supersede an extra-provincial order in respect of custody or access where there has been a material change in the circumstances of the children and certain conditions are met, if either the child or children are habitually resident in Ontario at the commencement of the application, or, if not habitually resident in Ontario:

i. that the child is physically present in Ontario at the commencement of the application for the order;

ii. that the child no longer has a real and substantial connection with the place where the extra-provincial order was made;

iii. that substantial evidence concerning the best interests of the child is available in Ontario;

iv. that the child has a real and substantial connection with Ontario; and

v. that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. R.S.O. 1990, c. C. 12, s. 42 (1).

[139] Section 42 must be interpreted in light of s. 19 of the CLRA which sets out the purposes of Part III of the CLRA. As seen above, those purposes include determining matters of custody on the basis of the best interests of children while deterring concurrent exercise of jurisdiction and discouraging the abduction of children.

[140] Caselaw provides that there are limited circumstances in which a valid extra-provincial custody order will be superseded, absent risk of serious harm. This makes eminent sense, given the policy objective of sanctioning child abduction. See for example Brouillard v. Racine, 2002 CanLII 2648 (ON SC), 33 R.F.L. (5th) 48, 2002 CarswellOnt 3734 (S.C.), in which the court declined to supersede a Quebec custody order on the basis of the children’s enrolment in an Ontario school and where the children had spent 80% of their life in Quebec. See also Aliabadi, discussed above, where Greer J. stated at para. 40 that when a party says there has been a “material change of circumstances” which should allow the children to remain where they have been moved to, the “relocation” of the children… cannot be considered a material change of circumstances.” See also G. (P.A.) v. G. (K.A.), 1992 CanLII 8651 (ON CA), 10 O.R. (3d) 641, 1992 CarswellOnt 302 (C.A.) at para. 28.

[141] Even if it were the case that a material change could be said to have been shown, (and in light of the COVID-19 pandemic, perhaps the argument could be successfully made out), I find that the second portion of the test is not met. Although the children were clearly present in Ontario at the commencement of the application, I am not prepared to find that the children no longer have a real and substantial connection to Nigeria. Both children stated to the OCL clinician that they would like to spend time with their father in Nigeria. This would not be the case were there no longer a real and substantial connection. Further, the children have been in Ontario just one year as at the writing of this decision, having spent the balance of their lives in Nigeria.

[142] While it may be that the children also have a real and substantial connection to Ontario, and that there is now some evidence in Ontario concerning their best interests, the test under s. 42(b) is conjunctive, and not all of the requirements are met. Accordingly I decline to supersede the Divorce Order as sought by the mother.

Section 43, Serious Harm

[143] Section 43 provides that a court may supersede an extra-provincial order in respect of custody of or access to children where satisfied, on a balance of probabilities, that the children would suffer serious harm if returned. The test is in substance the same as under s. 23 of the CLRA. I rely on my analysis regarding serious harm, set out above. I do not find that the children would, on a balance of probabilities, suffer serious harm if returned to Nigeria. I have considered the asserted harms individually and cumulatively and find that the mother has not met the onus upon her.

A Note about the COVID-19 Pandemic

[144] Neither party devoted any significant argument to the impact of COVID-19 and the ongoing pandemic on the outcome of this case.

[145] Unlike in March of this year when this matter came before me for an “urgency” determination, global travel has resumed, albeit with precautions in place.

[146] The mother did not discuss, in any detail, the COVID-19 safety measures followed by her or the children in Kitchener, Ontario. The father has attested that he follows applicable safety precautions and would continue to do so when the girls return.

[147] I find that it is no longer the case that the return of the girls should be delayed by the ongoing pandemic situation. Risk during travel can be managed and I have no reason to doubt that the father will take the appropriate precautions for the children when they are in his care.

Alleged Change of Circumstances after Arguing of Motion

[148] This motion was argued on September 30, 2020.

[149] On October 26, 2020, while my decision was under reserve, the mother brought a motion seeking that the court consider a change of country conditions in Nigeria arising from anti-police demonstrations and protests in Nigeria. With her Notice of Motion she tendered an affidavit regarding protests in Nigeria against the Special Anti-Robbery Squad (SARS), and reports of unrest in Nigeria. She stated, in essence, that since early October 2020, there had been protests against the SARS Unit, resulting in violence and that this change in circumstances would increase risk to the children if returned to Nigeria. The affidavit relied significantly on hearsay sources and attached a range of news reports.

[150] On October 29, 2020 I released a brief Endorsement in which I stated that the court was not unaware of reports of unrest in Nigeria, and I permitted each party to file a five-page affidavit with exhibits, as well as brief submissions, by November 6, 2020. I directed that the new material must relate only to evidence not available before the motion was argued, and cautioned that the evidence must be probative and admissible. I stated that I would disregard the mother’s October 26, 2020 affidavit and exhibits which relied substantially on inadmissible material.

[151] I have carefully reviewed the further affidavit material submitted by both parties on November 6, 2020.

[152] In summary the mother’s affidavit sworn November 6, 2020 states that since early October 2020, protests have erupted throughout Nigeria against the SARS unit. She says there have been riots resulting in mass looting, and security forces shooting into crowds with live ammunition. She attaches a copy of a text message received from the Parent Teacher Association of one of the girls’ schools on October 20, 2020, stating that the situation was frightful and worrisome and urging the parents to keep their children home. There is a great deal of hearsay in the affidavit.

[153] The mother also attaches documents such as a brief report from Amnesty International, and the Travel Advisory of the Government of Canada as at November 6, 2020, with respect to the risk assessment for Nigeria. With respect to Nigeria generally, the Advisory recommends that “non-essential travel be avoided,” and provides in defining the risk level that:

“There are specific safety concerns that could put you at risk. You should reconsider your need to travel to the country, territory, or region. If you are already in the country, territory or region, you should reconsider whether or not you really need to be there. If not, you should consider leaving while it is still safe to do so. It is up to you to decide what “non-essential travel” means, based on family or business requirements, knowledge of or familiarity with a country, territory or region, and other factors.” [emphasis added]

[154] The Travel Advisory goes on to say that a “high degree of caution” should be exercised in Abuja, the region where the father resides.

[155] In her submissions, the mother urges that the court take judicial notice of the unrest in Nigeria and reiterates her argument on the motion that Nigeria would not provide stability for the children given the “socio-economic state of the country.”

[156] In his affidavit, by contrast, the father states that the children will be safe if returned to Nigeria. He states that while there were anti-SARS protests, they did not take place in Lokogoma, Abuja, where he resides. Further, he says, the situation has considerably de-escalated, as the five demands of the protesters were met, and the government acted quickly to address the unrest. The father states that the protests in Nigeria have stopped and the situation is calm. In support of his statement, he attaches numerous other affidavits as exhibits, including the following sworn statements confirming same:

a. Affidavit of Ikufor Akashili Courage, Chief Security Officer of Pent City Estate, Lokogoma, Abuja, attesting that the End-SARS protests did not take place in Lokogoma, and that Pent City Estate, Lokogoma, and Abuja are secure and safe;

b. Affidavit of Hoviareh Upo, Inspector in the Nigerian Police in the Federal Capital Territory attesting that the End-SARS protests have ended and normalcy has been restored;

c. Affidavit of Benjamin Ubiri, CEO of Bentastic Media, who resides with his family in Abuja, Nigeria, stating that protests have stopped and that he feels Abuja is safe;

d. Affidavit of Stella Oko Essene, Chairperson of the Nigeria Association of Women Journalists, stating that the government of Nigeria addressed the five demands of the anti-SARS protesters, and that normalcy has essentially returned to life in Abuja and Nigeria;

e. Affidavit of Emmanuel Ogbeche, Chairman of the Nigeria Union of Journalists, Federal Capital Territory, stating that the End-SARS protests have de-escalated and the situation has returned to normal. He says the government has responded to the protesters’ demands.

f. Affidavits of several educators indicating that school instruction has resumed;

[157] The father also attaches several newspaper articles to his affidavit as exhibits. These are hearsay and I have the same concerns about these documents as I do about the reports attached by the mother.

[158] In R. v. Find, 2001 SCC 32, McLachlin J. set out the law as it relates to judicial notice as follows at paragraph 48:

Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Potts(1982), 1982 CanLII 1751 (ON CA), 66 C.C.C. (2d) 219 (Ont. C.A.); J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 1055 [emphasis added]

[159] This court is not prepared to take judicial notice of the circumstances in Nigeria as set out by the mother. The facts alleged do not meet the test set out in R. v. Find. The alleged facts are clearly in dispute and subject to some debate.

[160] While I accept that a change of country conditions after the arguing of a motion could require an updated assessment of risk occasioned by the return of the children (see for example Ragupathy v. Canada 2006 FC 1370, 2006 CarswellNat 3734 decided in the refugee law context), in this case, I do not accept on a balance of probabilities that the alleged risk of serious harm to the children as initially argued in the motion has increased such that the children could not now be returned. The evidence of the father, who resides in Abuja, who has direct knowledge of the local circumstances, and who has tendered detailed, relevant first hand evidence of current conditions, satisfies me the children would not now be at risk of serious harm if returned. While he acknowledges that the anti-SARS demonstrations led to violence in some parts of Nigeria, the admissible evidence before the court is that the situation in Abuja (and Lokogama more specifically, where the father resides), is stable and secure.

[161] While the Travel Advisory speaks of generalized risk (as it applies to a country of some 200,000,000 people), and exercising a “high degree of caution in Abuja”, an assessment of serious risk must relate to these children, in the specific context of this family. I do not find that the new affidavit information, in the context of all of the evidence already before the court, puts the children at serious risk of harm under either section 23 or 43 of the CLRA.

G. Conclusion

[162] In this case, the parties had a valid and subsisting custody order in Nigeria. The mother wanted better opportunities for herself and the children and was unable to obtain the father’s consent to move to Canada. Faced with that reality she took matters into her own hands and brought the children to Canada without his consent. She planned far in advance, coming to Canada to take a pharmacy exam in the summer of 2019. The mother obtained permanent residence and the groundwork has been laid for the children to have that status in Canada as well.

[163] I acknowledge that the mother’s wish is to give Princess and Angel what she sees as a good life, with the best opportunities. Indeed, that is what all parents wish to do for their children. I understand that her goal is to provide them with a positive and nourishing environment.

[164] However, the reality is that as a parent in a joint/ shared parenting relationship, with an existing court order, it simply was not open to the mother to make this change on behalf of the children unilaterally. The father has not seen the children for a year, and the children have not seen him. However ardently the mother wished to immigrate with the children, it was, on the facts of this case, not an option without the father’s consent or a Nigerian court order authorizing the move.

[165] Based on all of the foregoing, I reach the following conclusions:

a. The father has not attorned to the jurisdiction of the Ontario court;

b. The 2018 Divorce Order shall be recognized under s. 41 of the CLRA;

c. The children are not habitually resident in Ontario under s. 22 of the CLRA, because they were abducted, within the meaning of s. 22(3) of the CLRA;

d. I am unable to find, on a balance of probabilities, that the children are at risk of serious harm if returned to Nigeria, such that this court should assume jurisdiction under s. 23 of the CLRA;

e. Recognition of the Divorce Order under s. 41(1) of the CLRA requires an Order for the return of the children under ss. 40 and/or 41(4) of the CLRA to give effect to the same;

f. The test to supersede the Divorce Order under ss. 42 or 43 of the CLRA is not met.

[166] In terms of logistics, the father included as exhibits to his sixth affidavit, copies of flexible tickets purchased by him for the children from Toronto to Abuja, Nigeria, as well as unaccompanied minor forms completed for the children. He also stated that he is prepared to continue the co-parenting plan that was in effect before the mother’s move to Canada. He said he could make available a comfortable two-bedroom apartment located approximately 15 minutes away from his home in Nigeria so that co-parenting could continue. He did not make any proposal about how the mother’s ticket to Nigeria would be paid for. The evidence is that she just completed her training as a PSW in Ontario and may not have significant means.

H. Order

[167] On the basis of the foregoing, I make the following Order:

1. Pursuant to s. 41(1) of the Children’s Law Reform Act, this court recognizes the Order of Judge A.B. Mohammed of the High Court of the Federal Capital Territory of Nigeria, dated July 12, 2018. The order shall be deemed, under s. 41(2) of the CLRA, to be an Order of the Ontario Superior Court of Justice and enforceable as such;

2. The children, Princess Mmesoma Onuoha, born November 15, 2009, and Angel Rhema Onuoha, born December 20, 2012, shall be returned to Nigeria by the mother, within 30 days of the making of this Order, and the parenting provisions of the Divorce Order shall continue in full force and effect;

3. This court instructs the Waterloo Regional Police, the Ontario Provincial Police, the Royal Canadian Mounted Police, Canada Border Services and/or such law enforcement agencies as may have jurisdiction, to enforce para. 2 of this Order;

4. The cost of travel of the children to Nigeria shall be paid by the father. Should the mother choose to accompany the children, the father shall at first instance pay for her ticket, and arrange the flight to Nigeria so that the children and the mother travel together. Any repayment of the cost of the mother’s travel shall be negotiated between the parties.

5. If the parties would like to discuss logistics of the mother and children’s return to Nigeria, an appointment may be made before me, through the Trial Coordinator.

6. Costs of this motion are reserved. The court will accept brief submissions as follows:

a. The father may provide submissions, no more than three pages double spaced, with a Bill of Costs, by November 20, 2020;

b. The mother may provide responding submissions, no more than three pages double spaced, also with a Bill of Costs, by November 27, 2020.

[168] I would encourage the parties to discuss practical options in this case, in light of my determination. The court is advised that Axis Family Mediation, which is the court-connected mediation service provider, is offering on-line mediation. This may be of assistance to Mr. and Ms. Onuoha as they consider how best to move forward. AXIS Family Mediation can be reached at 519-749-8989 or at info@axisfamilymediation.com. Services are geared to income. Parties may attend mediation with or without counsel. If an agreement is reached that requires modification of my Order above, an appointment may be made before me, through the Trial Coordinator.

L. Madsen, J.

Released: November 10, 2020

COURT FILE NO.: 20-75

DATE: 2020/11/10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Chamberlin Chidi Onuoha

• and –

Irene Onuoha

ENDORSEMENT

L. Madsen, J.

Released: November 10, 2020