Court File and Parties

COURT FILE NO.: FC-21-2115 DATE: 2022/05/26

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Olubukola Ajayi Applicant – and – Eyitope Ajayi Respondent

Counsel: Valerie Akujobi, for the Applicant Paul Riley, for the Respondent

HEARD: March 21 - 25, 2022

amended Reasons for Decision Justice Engelking

[1] This case raises the single issue of whether this Court should assume jurisdiction over three children who were removed from their parents’ residence in Lagos, Nigeria by their mother in November 2021 without their father’s consent.

[2] The Applicant mother seeks a finding that the Superior Court of Justice of Ontario has jurisdiction to make a parenting order pursuant to Section 23 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

[3] The Respondent father seeks the children’s immediate return to Nigeria, as well as various other temporary orders pursuant to s. 40 of the CLRA, on the basis that Ontario does not have jurisdiction over matters affecting the children.

[4] For reasons set out below, I find that this court does not have jurisdiction to make a parenting order with respect to these children. I find that they were wrongfully removed from their habitual residence in Nigeria, and that they were wrongfully retained in Ontario thereafter. Based on s. 40 of the CLRA, I order that they be returned to their habitual residence in Nigeria where the issue of the parenting arrangements that are in their best interests will be determined either by way of agreement between the parties, or by the Court. I decline making a temporary parenting order pursuant to s. 40 of the CLRA.

Background Facts

[5] The parties are dual citizens of Canada and Nigeria. They met in Canada in 2012 and married in Lagos, Nigeria in July of 2016, where they resided as a family.

[6] Both parties are from affluent families in Nigeria. Ms. Ajayi’s father, Engr Tunde Ipaye, is an engineer, and her mother, Olutoyin Ipaye, is a Superior Court judge in Lagos State. Mr. Ajayi’s father, Gabriel Oladipupo Ajayi, is a very well-connected architect and construction business owner originally from Ekiti State. His mother, Alaba Olayide Ajayi, is a registered nurse.

[7] Three children were born of the marriage, Or.A., born June 2017, E.O. A., born on December 2018, and Ol. A., born on September 2021. All three children were born in Canada.

[8] Ms. Ajayi typically travelled to Canada shortly before a child’s impending birth to have the child in Canada and then returned to Nigeria shortly after the child was born. The only time the children had been in Canada prior to November of 2021 was for their respective births, or in the case of Or. A., also for the birth of E.O. A.

[9] Ms. Ajayi was in Canada from sometime in April of 2021 until November 7, 2021, for the birth of Ol. She was accompanied on this and other occasions by Mr. Ajayi’s mother, the children’s paternal grandmother (PGM). The paternal family has a home in Mississauga, Ontario, in which Mr. Ajayi’s sister, Oluwaseun Rominiyi, habitually resides.

[10] In 2018, Or. was with his mother and PGM in Canada for the birth of E.O. However, in 2021, Or. and E.O. were left in the care of Mr. Ajayi in Lagos while Ms. Ajayi was in Canada for the birth of Ol. Ms. Ajayi, the PGM and Ol. returned to Nigeria on November 7, 2021.

[11] On November 16, 2021, Ms. Ajayi broached the subject of a separation with Mr. Ajayi, to which he did not react well according to her evidence. According to his evidence, while Mr. Ajayi was not happy with the prospect of separation, he volunteered to leave the family home if Ms. Ajayi wanted him to. On November 17, 2021, Ms. Ajayi purchased tickets for herself and the three children to fly to Canada. She also deposited several suitcases with her friend, Nengi Adoki, whom she asked to hold them for her until she picked them up. On the evening of November 18, 2021, the parties met with Mr. Ajayi’s parents, at which time Ms. Ajayi states the paternal grandfather (PGF), threatened to take the children from her. On November 19, 2021, Ms. Ajayi picked up her suitcases from Ms.Adoki and left Nigeria with the children without either the knowledge or consent of Mr. Ajayi, who was out of Lagos on business at the time. She originally flew to Edmonton, Alberta, where her sister lived but shortly thereafter accompanied her sister to Ottawa where she was being posted with the armed forces. She has been in Ottawa with the children ever since.

[12] On November 21, 2021, Ms. Ajayi sent an email to Mr. Ajayi, which she copied to several members of both of their families, giving her reasons for leaving and letting him know that she and the children were well. The parties exchanged several communications in the ensuing days, more about which I will speak later.

[13] On November 26, 2021, Mr. Ajayi commenced a Petition for Dissolution of Marriage in the Superior Court in Ekiti State, Nigeria. On the same date, Ms. Ajayi commenced an application pursuant to the Children’s Law Reform Act in the Superior Court of Justice in Ottawa, Ontario. Ms. Ajayi was served with Mr. Ajayi’s petition through her Nigerian counsel on December 7, 2021. Mr. Ajayi was served with Ms. Ajayi’s application subsequent to a court appearance before Justice MacEachern on December 9, 2021.

[14] Until Mr. Ajayi received Ms. Ajayi’s application, he was not aware that the children had been removed from Nigeria, though he suspected that might be the case. In his Motion for a temporary order accompanying his Petition for Dissolution of Marriage, Mr. Ajayi is asking for custody of the older children and joint custody with his mother of the baby, Ol., with Ms. Ajayi having as much contact with the children as is in their best interests.

[15] In her application and accompanying motion materials, Ms. Ajayi is asking for sole decision-making authority over the children and certain parenting time with Mr. Ajayi. She is also requesting a restraining order.

Analysis

[16] There is no doubt nor contest in this case that the children’s habitual residence is Lagos, Nigeria. There is also no doubt nor contest that they were wrongfully removed from Nigeria on November 19, 2021.

[17] Ms. Ajayi relies on Section 23 of the CLRA for this court to assume jurisdiction over this matter. Mr. Ajayi disputes that the court in Ontario has jurisdiction in this matter and argues that the children should be returned for the court in Nigeria to determine what disposition is in their best interests.

[18] Section 23 of the CLRA provides:

23. Despite sections 22 and 41, a court may exercise its jurisdiction to make or vary a parenting order or contact order with respect to a child if,

(a) the child is physically present in Ontario; and

(b) The court is satisfied that the child would, on a balance of probabilities, suffer serious harm if,

(i) the child remains with a person legally entitled to decision-making responsibility with respect to a child,

(ii) the child is returned to a person legally entitled to decision-making responsibility with respect to the child, or

(iii) the child is removed from Ontario.

[19] Ms. Ajayi submits that the children will suffer serious harm if they are returned to the care of Mr. Ajayi or if they are removed from Ontario to Nigeria on essentially two grounds. The first is that she alleges she was subject to family violence, to which at least the elder children were exposed. The second is that she either has an affinity towards, identifies with, or has been identified with the LBGTQIIA+ community, which risks her being subject to serious negative consequences in Nigeria, including by the courts in her matrimonial matter.

[20] Ms. Ajayi argues that she cannot return to Nigeria, as she will face negative consequences from being linked to the LBGTQIIA+ community. Additionally, she argues that she will not have adequate protection from domestic violence if she returns to Nigeria. It is her position that the children will be at risk of serious psychological harm if they are either returned to Nigeria without her, or if they are removed from her care by the court in Nigeria based on her lack of conformity to heterosexual norms.

[21] In Ojeikere v. Ojeikere, 2018 ONCA 372, the Ontario Court of Appeal indicated at paragraph 60:

Section 23 applies to cases where a country with potential jurisdiction over the custody of a child is not a signatory to the Convention. Their custody laws may differ from ours. In cases decided under s. 23, an Ontario court will not always have the same assurance that a non-signatory country will, as Ontario does, put the best interests of the child first.

[22] To decline jurisdiction in this case, I need to be satisfied that the court in Nigeria, a non-signatory country to the Convention on the Civil Aspects of International Child Abduction, will put the best interests of the children first, despite Ms. Ajayi’s alleged non-conformity to heterosexual norms, and in the face of alleged domestic violence.

Domestic Violence

[23] Ms. Ajayi alleges that Mr. Ajayi has been physically, verbally, emotionally, sexually, and financially abusive to her. With respect to physical abuse, Ms. Ajayi set out three instances where she was maltreated by Mr. Ajayi as follows:

1. In 2016, Ms. Ajayi alleges that Mr. Ajayi chocked her or held her throat during a “play fight”;
2. In April of 2018, while pregnant with her second child, Ms. Ajayi alleges that Mr. Ajayi locked her in a room lacking ventilation and without access to water; and,
3. In February of 2020, Ms. Ajayi alleges that Mr. Ajayi “whipped” her with a towel, pushed her head and squeezed her nose several times, while all the while calling her names and degrading her.

[24] With respect to verbal and emotional abuse, Ms. Ajayi alleges that Mr. Ajayi called her names and told her she was useless or stupid, both while alone and in front of others, including the children.

[25] Regarding sexual abuse, Ms. Ajayi alleges that Mr. Ajayi would insist on having sex with her even when she didn’t want to, and she described one instance when the parties engaged in anal sex, initially consensually but where Mr. Ajayi would not stop when she asked him to stop. Ms. Ajayi’s position is that she was sexually assaulted by Mr. Ajayi on this occasion.

[26] It was hard to ascertain in what manner Ms. Ajayi thought she was financially abused. Ms. Ajayi was employed in Nigeria and had access to her own money and appeared to have access to Mr. Ajayi’s income when needed. Additionally, the parties had staff to run the house and care for the children.

[27] Mr. Ajayi denies that he was ever physically abusive to Ms. Ajayi, though he does acknowledge throwing a towel at Ms. Ajayi in the February 2020 incident, as well as squeezing her nose. He felt remorseful about it, including at the time when he contacted Ms. Ajayi’s friend, Ms. Ize-Iyamie, to discuss it with her. He also acknowledges “play fighting” with Ms. Ajayi, as one would with a sibling, but does not recall any incident of chocking Ms Ajayi or holding her neck while doing so prior to their marriage in 2016.

[28] Mr. Ajayi denies ever locking Ms. Ajayi in a room and indicated that a door to a hallway which led to two bedrooms jammed due to the humidity and got stuck. Ms. Ajayi acknowledged that she had access to the two rooms (which were not poorly ventilated) but suggested the problem with being locked where she was, was that she was dehydrated and lacked access to water.

[29] Mr. Ajayi denied ever being sexually abusive to Ms. Ajayi, indicating that their sexual relations were always consensual. Mr. Ajayi stated that they engaged in anal sex about three times, but that Ms. Ajayi didn’t really like it, so they stopped.

Non-Conformity to Heterosexual Norms

[30] Ms. Ajayi testified that she has of late been in the process of determining her sexual identity. She believes that she may be asexual, though she has not come to that conclusion with any certainty. In addition, one of her siblings has identified as bisexual. Ms. Ajayi has had a conversation with Mr. Ajayi about her possible status as asexual. He has, in turn, identified her with or suggested that she has an affinity with the LGBTQIIA+ community in his court documents filed in Ekiti State, Nigeria. Ms. Ajayi alleges that Mr. Ajayi’s sole purpose in so identifying her so is to put her at a serious disadvantage in the legal proceedings in Nigeria. She also alleges that he filed his claim in Ekiti State for the sole purpose of gaining an advantage from the influence his father has in that jurisdiction.

[31] Mr. Ajayi indicates that he identified Ms. Ajayi as asexual and aligned with the LBGTQIIA+ community because that is what she told him, and because she does not want to be in a heteronormative relationship with him, which is upon what their Christian and traditional marriage is based. He attests not to be seeking to put her at a disadvantage, but to simply be stating facts. Additionally, Mr. Ajayi indicated that he did not file his petition in Lagos State, where he lives, because he did not want to be put at a disadvantage based on Ms. Ajayi’s mother’s position and influence. To him, it was logical to file his petition in the state from which he emanates.

Expert Opinions

[32] Both parties called expert witnesses in support of their respective positions.

Applicant’s Expert

[33] Ms. Ajayi’s expert, Mr. Jake Okechukwu Effoduh, was qualified as an expert by the court in the impact of the laws of Nigeria on the “LGBTQIA+” [1] community, and on the law as it relates to gender-based violence.

[34] Mr. Effoduh has Master of Laws (L.L.M.) from 2017 and Master of International Human Rights Law from 2013. He has been an attorney (Barrister and Solicitor of the Supreme Court of Nigeria) since 2011 and received his Bachelor of Laws (L.L.B.) and Public and Int’l Law (with Honours) in 2010 and a Diploma in Law (DL) in 2005. Mr. Effoduh is also currently working on his Doctor of Laws at Osgoode Hall Law School. He has been a partner with Praxis & Gnosis Law, Nigeria since 2016, leading the human rights practice at the firm. He is Chief Counsel of the Africa-Canada Artificial Intelligence and Data Consortium and has been, among other things, a Law Officer with the Presidential Advisory Counsel, Nigeria and; an Assistant Director with the Council of African Security and Development. Mr. Effoduh has more than 15 years experience of working in human rights advocacy, media, law and within human rights systems. Mr. Effoduh is the author of many publications on LGBTQIA+ community issues, human rights, and other issues.

[35] Mr. Effoduh signed the Acknowledgment of Expert’s Duty on February 24, 2022.

[36] Mr. Effoduh provided his expert opinion on “the state of the law in Nigeria, particularly as it relates to alleged punishing consequences for individual being linked with the LGBTQIA+ community and an account on the reality faced by victims of gender-based violence when seeking the assistance of law enforcement or the courts.”

[37] Mr. Effoduh did not set out, either in his report or his testimony, the facts upon which he was being asked to provide his opinion. Rather, he indicated that he was reliant on the facts as set out in the Endorsement of Justice Audet dated January 14, 2022, and that he was addressing Justice Audet’s directive regarding: “The state of the law in Nigeria, particularly as it relates to alleged punishing consequences for individuals being linked with the LGBTQIIA+ community there.”

[38] Mr. Effoduh’s opinion is this regard is as follows:

Of severe concern are LGBTQIA+ individuals in Nigeria who suffer a heightened level of victimization, discrimination, and suppression of their fundamental human rights. Several factors, sucha as ignorance about what it means to be LGBTQIA+, religiously affiliated sentiments, inherited anti-sodomy laws and state-supported phobias against LGBTQIA+ individuals make I especially difficult for LGBTQIA+ persons to live without having their rights violated. Because of their imputed or real sexual orientation and/or gender identities; or because some LGBTQIA+ persons do not conform to cultural standards on how women and men should look or behave, many LGBTQIA+ individuals regularly become victims of mob violence, arbitrary arrests and forced evictions. [2]

Persons who identify or are perceived as LGBTQIA+ have often been denied access to the rights and freedoms enshrined too citizens in the Nigerian Constitution. Despite constitutional guarantees, several laws and policies remain problematic for LGBTQIA+ individuals. [3]

[39] In his report, Mr. Effoduh went on to identify certain provisions in the Nigerian Criminal Code and Nigerian Penal Code which have consequences against LGBTQIA+ individuals, most notably sexual contact between non-heterosexuals which may be considered “against the order of nature”, attracting a punishment of up to 14 years imprisonment. Cross-dressing is also criminalized. In certain states in Nigeria, particularly northern states, “lesbianism and homosexual act” is criminalized, and in some cases punishable by death.

[40] In the context of Family Law, Mr. Effoduh referred the court to the Same Sex Marriage Prohibition Act (SSMPA), which was passed into law in 2013. Mr. Effoduh indicated as follows [4]:

The SSMPA prohibits any marriage contract or civil union entered into between persons of the same sex, or the solemnization of same. Any ‘marriage contract or civil union entered between persons of the same sex by virtue of a certificate issued in a foreign country is void in Nigeria’. Any benefit accruing therefrom will be unenforceable in any Nigerian court of law. The Act provides that ‘a marriage contract or civil union entered into between persons of same sex shall not be solemnized in a church, mosque or any other place of worship’ and any certificate issued in such a marriage will not be valid. The Act reiterates that ‘only a marriage contracted between a man and a woman will be recognized as valid in Nigeria.’ Thereby ensuring that LBGTQIA+ individuals will either have to marry people of the opposite sex for their marriages to be valid, or perhaps not marry at all. The penalty for any person who enters a same sex marriage contract or civil union is a term of 14 years imprisonment.

Furthermore, the SSMPA prohibits ‘homosexual clubs and societies.’ The registration, sustenance, processions, and meetings of ‘gay clubs, societies, and organizations’ are prohibited. Also prohibited is the ‘public show of same sex amorous relationship directly or indirectly.’ Any person who ‘registers, operates or participates in gay clubs, societies and organization, or directly or indirectly makes public show of same sex amorous relationship’ will be liable on conviction to a term of 10 years imprisonment. And any person or group of persons who administers, witnesses, abets, or aids the solemnization of a same sex marriage or civil union, or supports the registration, operation and sustenance of gay clubs, societies, organizations, processions or meetings in Nigeria commits an offence an is liable on conviction to a term of 10 years imprisonment. Although there is no conviction yet on the application of the SSMA [sic] however, the courts have without hesitation convicted persons in the past who were found guilty of sodomy.

[41] Finally, Mr. Effoduh also referred to the Armed Forces Act pertaining to military forces in Nigeria, which criminalizes sodomy with a term of up to seven years imprisonment. [5]

[42] Mr. Effoduh described “asexual” as not just a person without sexual desire, but one on a spectrum. He opined: “Asexuality is a sexual orientation (and argued sometimes as a lack thereof), and like other orientations, contains much diversity in people’s experiences of attraction and arousal and desires for relationships.”

[43] After describing the above, Mr. Effoduh concluded this part of his opinion with: “Due to the heteronormativity assumed within Nigeria’s legal system, as well as deeply rooted sentiments against LGBTQIA+ individuals, it is not uncommon for people to allege that a person is LGBTQIA+ or affiliated with same in order to whip negative sentiments against them or put them at risk of being discriminated, disliked or disenfranchised.” [6]

[44] With respect to domestic violence, Mr. Effoduh notes that while some laws against gender-based violence have been passed in Nigeria, both nationally and in certain states, including Lagos and Ekiti States, they do not include marital or spousal rape as a crime. He concludes:

Women’s rights are limited in Nigeria by patriarchal norms, religious compulsions, early/child/forced marriages, insufficient economic empowerment for women, harmful practices against girls and low education levels of women (among other factors). Gender-based laws and discriminatory rules across the Nigerian legal system have prevented several women from seeking justice or remedy when they suffer human rights abuses.

[45] Mr. Effoduh referred to Section 71 of the Matrimonial Causes Act, indicating that the Court in Nigeria is to regard the interest of children as paramount. Mr. Effoduh stated that Section 71 does not give the right of either spouse preference over the other, but that in practice, Nigerian Courts “exercise a bias in favour of the biological mother of a child based on the presumption that a child will naturally be happier with the mother unless circumstances exist that puts the father in a better position to be granted custody.” [7]

[46] After reviewing certain caselaw, Mr. Effoduh indicated:

From the foregoing cases, in determining who is entitled to custody where the child is female and/or infant, it is presumed that custody should be granted to the mother unless it is established that the mother is incapable of taking care of the child on grounds of ill-health or insanity; the mother is morally depraved; the mother is cruel to the child. With regards to the oral depravity of the mother, it is important to establish that moral codes differ from place to place and are sometimes misconstrued. For example, in Nigeria, a mother may be considered morally depraved for having multiple sexual partners or breaking gender norms. Morality provisions in law echo an understanding that morality is intensely tied with tradition are ore mostly subjective. For a deeply religious country like Nigeria, it is my view that the concept of morality is many times informed by public opinion, religious dogma, and patriarchal norms.

Respondent’s Expert

[47] Mr. Ajayi’s expert, Dr. Iyabode Ashabi Ogunniran was qualified as an expert by the court in Children’s Law, Gender and the Law and Constitutional Law.

[48] Dr. Ogunniran is an Associate Professor at the Department of Public Law in the Faculty of Law at the University of Lagos, where she has been part of the faculty since 2003. She developed the curriculum for the teaching of Child Law for the university for the 2021/22 session and has been teaching a course on Gender and the Law since 2009. Dr. Ogunniran has a Doctor of Philosophy from 2012, a Master of Laws from 1996 and her Bachelor of Law from 1992. She has been a practicing lawyer since 1993. She has been a consultant, researcher and co-ordinator of various projects having to do with child justice and has published several articles on child law, gender issues and children’s rights.

[49] Dr. Ogunniran signed the Acknowledgment of Expert’s Duty on March 7, 2022.

[50] In her report, Dr. Ogunniran identifies that she was asked to provide an expert opinion on the following questions [8]:

• The legal test(s) used in determining custody and access by Nigerian family courts with reference to any relevant international instruments;
• How Nigerian courts deal with allegations of physical, emotional sexual and financial abuse (domestic violence) made by a mother against a father in custody and access disputes. Further, are there resources available to assist women with children facing domestic violence in Nigeria;
• How does Nigerian law/family courts deal with questions of a parent’s family influence and power in custody and access disputes and in particular, attempts to separate a child from the other parent;
• How do Nigerian laws/courts approach questions of child abduction, generally and in family custody and access disputes;
• How Nigerian law dals with individuals, including feminist women who identify with or are linked to the LGBTQ community generally; and
• How do Nigerian family courts approach questions of sexuality including asexuality and identification with/links to the LGTBQ in custody and access disputes.

[51] Dr. Ogunniran also referenced Justice Audet’s Endorsement of January 14, 2022, as providing her with the factual and legal backdrop for the case. She sets out those factual assumptions and the legal context in paragraph 13 and 14 of her report.

[52] Dr. Orunnian identified Nigeria as federal country consisting of 36 states and indicated that laws are created both federally and by the state via three legislative lists – the Exclusive Legislative Lists (68 solely federal items), the Concurrent Legislative Lists (30 concurrent items upon which both may make legislation), and the Residual List for which the states make legislation. The country also consists of Southern and Northern Nigeria, the latter of which engages Sharia Penal Codes. The UN Convention on the Rights of the Child has been adopted federally by virtue of s.299 of the 1999 Constitution of Nigeria as the Child’s Rights Act. Children’s issues, however, fall on the Residual List of states, so it is incumbent upon them to adopt their own Child Right’s Act. The States of Lagos and Ekiti have both done so via the Ekiti State Child Rights Law of 2006 and the Lagos State Child Rights Law of 2007.

[53] According to Dr. Ogunniran as with the Convention on the Rights of the Child, the “best interest principle” is at the heart of the national Child Rights Act and the state Child Rights Law. The Child Rights Law of Ekiti, for example, provides in Section 1 that “in every action concerning a child…the best interest of the child shall be the primary consideration. After reviewing certain literature in relation thereto, Dr. Ogunniran opines: “Hence, ‘best interest’ in section 1 of the CRL [Children’s Rights Law] is: (a) a guide to every action by individual, public or private body, (b) covers all forms [of] interests, (c) promotes standardization to evaluate such actions and protect Nigerian children.” [9]

[54] Special Family Courts have been established pursuant to rules under the Children’s Rights Act and the Children’s Rights Law of states to deal with family and children’s matters. These courts are to consider the best interests of the child as the paramount consideration in all matters related to the Rules. [10]

[55] In addition, Section 71 of the Matrimonial Causes Act (MCA), “provides that in proceedings with respect to custody, the court shall have regard to the best interests of those children as the paramount consideration, and subject thereto, the court may make such order in respect of those matters as it thinks proper.” [11] Upon review of a recent case of the Court of Appeal of Nigeria, Osalade v. Osalade (2020) LPELR-51165 CA, Dr. Ogunniran indicated: [12]

However, the court in exercising its discretion will consider: (a) retention of existing position (b) personality and character of the claimant (c) sex and age of the children (d) education (e) accommodation and material advantage (e) [sic] stability of home life (f) the parties conduct.

[56] Dr. Ogunniran indicated, moreover, that in a 2018 case of Eziaku v. Eziaku (2018) LPELR-46373, the Court of Appeal “reiterated factors such as (a) the health of the child, (b) the social and financial status of the parties, (c) the welfare of the children, (d) available facilities for children, (d) religion and social opportunities available, (f) sex and age of children” as important. [13]

[57] Domestic violence may form part of a claim by a Petitioner under the MCA, pursuant to Section 15(2)(c), which provides that since the marriage the respondent has “behaved in such a way that the petitioner cannot be reasonably expected to live with the respondent” [14], in which case the court will consider the entire history of the marriage in reaching a conclusion. Additionally, where there is a claim for custody as ancillary relief pursuant to a Petition under the MCA, the court will consider the overall best interest of the children. [15] If the request is brought under a state’s Child Rights Law, the court will consider the best interests of a child and the conduct of a parent and may grant a Protective Order where domestic violence is claimed. [16]

[58] With respect to the impact of influential family, Dr. Ogunniran’s opinion is that: “Parental responsibility is well entrenched in Nigerian laws”. [17] She concludes that: “Consistent with the CRC [Convention on the Rights of the Child], the law is clear under the CRL [Child Rights Law] and CRA [Child Rights Act] that children cannot be separated from either of their parents unless it is through a fair process, in the best interests of the child.” [18]

[59] In Dr. Ogunniran’s opinion, attempts by a powerful family to assert influence will not affect a court’s obligation under the MCA to consider the best interests of the children and may, in fact, be considered as evidence against the parent whose family it trying to exert it. [19]

[60] Child abduction is a crime in Nigeria (as it is elsewhere), but its enforcement is entirely dependent on the left behind parent filing a complaint, and Dr. Ogunniran is unaware of any prosecution or punishment against a parent in Nigeria for same. Dr. Ogunniran indicates that, in the context of a family case, the wrongful removal of children may be a factor considered by the court, but that: “consistent with the overarching best interests of the child, the Court will look at the full array of factors addressed above in terms of the child’s relationship to both parents and their overall needs.” [20]

[61] With respect to potential consequences to LGBTQIIA+ individuals in family court, after reviewing the Same Sex Marriage Prohibition Act, Dr. Ogunniran concludes that: “the purpose of the legislation is to preserve the culture and religion of the people by preventing marriages of same sex people. There is no provision in the Act punishing any individual who identifies with or is linked with the LGBTQIIA Community.” [21] Dr. Ogunniran also indicates that asexuality is not an offence known to Nigerian laws. [22]

[62] Dr. Ogunniran opines:

The family laws discussed above and the jurisprudence relating to custody and access clearly do not consider a parent’s sexuality or identification with LGBTQIIA as a best interests factor. The question is which parent can best meet the needs of the child including how both parents may do so, in concert. If a parent raises these issues, the court would not consider them. A court might draw a negative inference against the parent raising the issue for not being focused on the needs of the child. Thus, the best interests of the child and not the parent’s sexual orientation, gender identity, sexuality (or asexuality) are the paramount consideration. Factors irrelevant to the care of the child will note be considered.

[63] Ultimately, Dr. Ogunniran’s considered opinion is that “the children who are the subject of custody and access proceedings in Nigeria will have their best interests fulsomely considered, pursuant to a holistic best interests of the child approach in all instances. [23]

Conclusions

[64] I accept that the expert evidence of both Mr. Effoduh and Dr.Ogunniran paint an accurate picture of the state of affairs in Nigeria. Dr. Ogunniran’s evidence is, however, more specific to family law and the application of the best interests principal to cases dealing with parenting time and decision-making for children, and I prefer it over Mr. Effoduh’s more general evidence regarding human rights law and their abuses.

[65] I find, moreover, that Ms. Ajayi’s argument that the children, if returned to Nigeria, will on a balance of probabilities suffer serious harm of the nature contemplated in the CLRA and in the jurisprudence on wrongful removal, contains several flaws.

[66] First, Ms. Ajayi left the two elder children, Or. A. and E.O. A., under the care and control of Mr. Ajayi for several months immediately prior to the wrongful removal, namely from April of 2021 until her return to Nigeria in November of 2021. If they were/are truly at risk of serious harm in Mr. Ajayi’s care, this would not have been contemplatable let alone possible.

[67] The only post-removal independent evidence the court received about the children and their relationship with or response to Mr. Ajayi was by way of “Parenting Time Notes” from a supervisor, Duaa Affat, of a March 11, 2022, virtual visit Mr. Ajayi had with the children. The PGM, who had come to Ottawa after attending a wedding in the United States, and Mr. Ajayi’s sister, Suen, had an in-person visit with the children, which Ms. Ajayi, for reasons unknown to me, insisted be supervised. During the visit, they had two brief virtual interactions with Mr. Ajayi. In the first, at 3:49 p.m., the following is noted:

[E.] smiles and says: “Hey Daddy.” Eyitope says, “Hey, I love you.” Eyitope asks, “How are you?” [E.} smiles.

[O.] says, “Hello, Daddy.” Eyitope asks, “Hello, are you having fun?” [O.] is showing Eyitope the play structure.

[E.] says, “Bye daddy, I love you.” Both [O.] and [E.] say, “Bye, Daddy.”

[68] The second, at 4:46 p.m., is noted to occur as follows:

Suen video calls Eyitope on WhatsApp. Eyitope asks, “Hey, what are you eating?” [O.] says, “I’m eating strawberries and cookies.” Then, Eyitope says, “That’s good. I hope you’re taking care of your brother.” [O.] nods his head.

Then, Eyitope asks, “Can I tell you a story?” [O.] says, “tell me the story about the one with the big nose.” Eyitope says, “Oh, yes, Pinocchio.” Both [O.] and [E.] are smiling and listening to the story.

[O.] says, “I want you to bring me a book back.” Then, [E.] says, “Daddy, I love you.” Both [O.] and [E.] say, “I love you, I love you.”

[69] Mr. Ajayi testified that it was common for him to tell the boys stories, particularly at bedtime and they are both very familiar with the story of Pinocchio. This exchange with the children in no way suggests that the children fear Mr. Ajayi or would be at risk in his care.

[70] Mr. Ajayi’s evidence is that he was involved in the care of the children prior to their disappearance, and that both parties were assisted in their care by nannies. Indeed, this latter point is born out by the evidence of Ms. Clementine Oke, the children’s nanny from 2017 to September of 2021, and by Ms. Ajayi as well.

[71] Second, Ms. Ajayi’s evidence as to the domestic violence to which she was allegedly exposed falls far short of the level one would expect to meet the test “serious harm” in Section 23 of the CLRA, even if it is less stringent than that of “intolerable harm” in Article 13(b) of the Hague Convention. As is noted by the Ontario Court of Appeal in Ojeikere v. Ojeikere, 2018 ONCA 372 at paragraph 63, potentially relevant factors for determining serious harm include (i) the risk of physical harm, (ii) the risk of psychological harm, (iii) the views of the children, and (iv) the mother’s claim in that case that she would not return to Nigeria even if the children are required to do so.

Risk of Physical Harm

[72] In Ms. Ajayi’s description of the three incidents of domestic violence by Mr. Ajayi to which she was subjected, there is only one, that of Ms. Ajayi being possibly locked in an unventilated area without water in 2018, at which one of the children, [O.] was present. While they may have at times heard Mr. Ajayi yell at Ms. Ajayi (or some members of his staff) or call her names (which he denies), unlike in other wrongful removal cases, there is no evidence in this case that the children have generally been either exposed to or the subjects of domestic violence. Based on the evidence before me, I find that there is no risk of physical harm to the children if returned to Nigeria or to the care of Mr. Ajayi.

Risk of Psychological Harm

[73] Ms. Ajayi submits that the children will be at serious risk of psychological harm if returned to Nigeria based on the real possibility of them being removed from her care and/or prevented from having a relationship with her. This in fact is the basis of Ms. Ajayi’s overall position. She submits that she will be prevented by the courts in Nigeria from having custody of the children or a relationship with them, based on her affinity to or linkage with the LBGTQIIA+ community. She also submits that she fears returning to Nigeria because of domestic violence perpetrated on her by Mr. Ajayi or because of threats she perceives him to have made towards her in this regard. Additionally, she fears that Mr. Ajayi’s family, in particular his father, will exert influence on the judiciary in Ekiti State to have the children removed from her.

[74] The difficulty with Ms. Ajayi’s position is that it is entirely speculative and not born out by the evidence, expert or otherwise. The parties are separated and will presumably remain separated. Even if the three incidents of DV took place exactly as described by Ms. Ajayi (which Mr. Ajayi disputes), there is no evidence before me to suggest that there is any future risk of DV. Both parties acknowledged that they all took place in the context of marital disputes. Similarly, Ms. Ajayi’s allegation of sexual assault took place in the context of what she admits were initially consensual sexual relations within the context of the marriage. Without deciding whether sexual abuse occurred or not, which is not my role in this hearing, I find that under the current circumstances there is no risk of future impropriety or abuse of a sexual nature.

[75] Additionally, while Mr. Effoduh’s evidence was informative as to the state of human rights abuses in Nigeria, including those perpetrated against LBGTQIIA+ individuals, it was not specific to this case, nor to the treatment of those individuals in a family law case. Ms. Ajayi submits there was no other motivation to include allegations as to her LBGTQIIA+ affinity or status in his Nigerian pleadings than to seek to create a disadvantage to her in the Nigerian courts. That may be so; whether it was necessary for Mr. Ajayi to plead it to establish that “the respondent has behaved in such a way that the petitioner cannot be reasonably expected to live with the respondent”, is not a question I can answer. It is for the Nigerian Court to answer in the context of Mr. Ajayi’s Petition for Dissolution of Marriage. However, Ms. Ajayi has only, to this court’s knowledge, ever questioned whether she may be asexual, or fall on the asexual spectrum. There is no question that she does not want to have sexual relations with Mr. Ajayi or be married to him, but she has made no overture about wanting to be in an “amorous relationship” with a person of the same sex, which is the only form prohibited by the Same Sex Marriage Prohibition Act. Even then, both experts agreed that no prosecution under that Act has ever occurred in the over eight years it has been in existence. Dr. Ogunniran indicated that she did not believe sexual orientation or identity would be a factor considered by the court in determining the best interests of the children in a custody and access case. To make the leap that because Ms. Ajayi has questioned her sexual identity as potentially asexual, or because she supports the rights of LBGTQIIA+ persons in Nigeria, the courts in Nigeria will not fairly apply a best interests test in a custody/access case, is simply not born out. Additionally, Mr. Ajayi has indicated in both his affidavits filed with this court and in his testimony, that he too supports that the rights of LBGTQIIA+ persons in Nigeria be recognized and respected. He publicly stated that if Ms. Ajayi is to be discriminated against on this basis, then so too should he be.

[76] The other difficulty with Ms. Ajayi’s argument in this regard is that Mr. Ajayi has not sought to remove her from the lives of the children. Indeed, in his Petition for Dissolution of Marriage, Mr. Ajayi’s claim was for custody of the children, “with joint custody of the infant [Ol. A.] up till the age of 3 years with the Respondent for weaning purposes.” Mr. Ajayi has, in fact, testified that he would be happy jointly parenting the children with Ms. Ajayi in Nigeria. Some of his email communications to Ms. Ajayi in November of 2021, which were unanswered, were in fact about finding a way to dissolve their relationship while both remaining involved in the lives of the children. Ms. Ajayi has sought to rely heavily on Mr. Ajayi’s motion for sole interim care of the children, along with his mother jointly for the infant. However, Mr. Ajayi testified that this was filed in the context of not knowing where his children were and whether Ms. Ajayi was well, mental health-wise. He indicated that he would, in fact, want Ms. Ajayi to have as much parenting time with the children as their best interests warrant. Mr. Ajayi indicated that he would, moreover, not agree with any effort on the part of his father, if such a thing existed, to remove the children from the care of their parents.

[77] Ms. Ajayi’s concern about the influence of Mr. Gabriel Ajayi is, in any event, also speculative. Ms. Ajayi submits that the only motivation for Mr. Ajayi to commence his proceedings in the High Court of Ekiti State was to benefit from the influence of his father there and prejudice her. She attempted to rely on an interim ruling made by that court on the issue of her ability to participate virtually to support that theory. I am unable to draw that conclusion. I accept the evidence of Dr. Ogunniran that in Ekiti State, in any determination as to custody and access, either under the Matrimonial Causes Act or under a Child Rights Law, the child’s best interests will be the dominant consideration of the court.

[78] A much larger question for me is why Ms. Ajayi did not commence her own proceedings in Lagos State, where the parties resided, rather than wrongfully remove the children on November 19, 2021. Ms. Ajayi’s evidence was that the PGF threatened to keep the children with the Ajayi family at a meeting with her on November 18, 2021, and this frightened her into fleeing. However, Ms. Ajayi bought tickets to Canada for her and the three children on November 17, 2021. Indeed, she had already deposited luggage with her friend, Ms. Adoki, prior to November 18, 2021. She knew she was going to leave Nigeria with the children prior to her discussion with Mr. Ajayi’s parents; she just didn’t know exactly what day. In cross-examination, Ms. Ajayi’s friend, Ms. Ize-Iyamie, indicated that in a conversation she had with Ms. Ajayi after her return to Nigeria, the latter indicated that she was “thinking of leaving the country, but didn’t know the timeline”. Rather that flee to Canada, why did Ms. Ajayi not just go to the home of her parents with the children, where she knew they would all surely be safe, and commence her own application/petition in Lagos? The only logical answer to that question must be that it was her plan to live in Canada with the children.

The Views of the Children

[79] The children in this case are too young to meaningfully have and/or express their views and preferences.

Refusal of the Mother to Return to Nigeria

[80] Ms. Ajayi did not indicate that she would refuse to return to Nigeria if the children were returned. Rather, as indicated above she attempted to demonstrate that she would be at risk of being prevented from having a relationship with the children if she does return.

[81] Ms. Ajayi relies on the dissenting decision of Justice Lauwers in N. v. F., 2021 ONCA 614, regarding the potential of serious harm to the children if separated from their primary caregiving mother. While I am, in the first place, not convinced that Ms. Ajayi was the children’s sole primary caregiver prior to her departure for Canada in November of 2019, at paragraph 289, Lauwers J.A. referenced Justice Laskin stating in Ojeikere, supra, at para. 92 that “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”. Lauwers J.A. went on to state that Laskin J.A. did not give weight to that factor in Ojeikere because the mother had simply asserted that there was nothing for her in Nigeria. Lauwers J.A. stated: “The mother was born in Nigeria and there was no legal impediment to her returning to and staying in Nigeria with the children.” Unlike in N. v. F., and notwithstanding Ms. Ajayi efforts to establish otherwise, that is exactly the case here. Ms. Ajayi was born in Nigeria, has dual Canadian and Nigerian citizenship and there is no legal impediment to her returning to and staying in Nigeria with the children. Indeed, Ms. Ajayi is a privileged member of Nigerian society; she is well educated, has substantial means, and an influential family. Not only is there no legal impediment to returning, but she is also well situated to do so.

[82] Under all these circumstances, I decline to assume jurisdiction pursuant to Section 23 of the Children’s Law Reform Act and will leave it to the courts of Nigeria to assess what is in these children’s best interests and make a parenting order accordingly.

ORDER

[83] Pursuant to the Children’s Law Reform Act, I make the following Final Order:

1. It is declared that the children of the relationship, Or. A., born June 2017, E.O. A., born on December 2018, and Ol. A., born on September 2021, were wrongfully removed to, and wrongfully retained in, Ontario by the Applicant/Mother, Olubukola Ajayi, pursuant to section 40 of the Children's Law Reform Act.
2. It is declared that the Ontario Superior Court of Justice has no jurisdiction to determine the parenting issues pertaining to Or. A., E.O. A. and Ol. A. pursuant to section 23 of the Children's Law Reform Act.
3. Or. A., E.O. A. and Ol. A. shall be immediately returned to their habitual residence in Lagos, Nigeria pursuant to section 40 of the Children's Law Reform Act and in accordance with the terms of this Order.
4. The Nigerian and Canadian passports of the children, Or. A., E.O. A. and Ol. A. shall be provided to the Respondent/Father’s counsel for safekeeping and provided to the Applicant/Mother, the Respondent/Father or the police enforcing the return order, as necessary.
5. Should the Applicant/Mother decline to travel with the children to Nigeria, arrangements shall be made for the Respondent/Father to travel to Canada to retrieve the children and take them back to Nigeria.
6. Any police force having jurisdiction in any area where the children may be shall locate, apprehend and deliver the children to the Respondent/Father for the purposes of paragraph 5. For the purpose of locating and appending the children to comply with the return order, a member of the police force may enter and search any place where he or she has reasonable and probable grounds to believe that the children may be, with such assistance and such force as are reasonable in the circumstances and such entry or search may be made any time.

COSTS

[84] If the parties are unable to agree on costs, I will accept written submissions not exceeding three (3) pages (double spaced, 12-point font), in addition to Bill of Costs and Offers to Settle, in accordance with the following timelines:

• The Applicant/Mother to serve and file her submissions by May 20, 2022;
• The Respondent/Father to serve and file his submissions by June 3, 2022; and,
• The Applicant/Mother to serve and file her reply, if any, by June 10, 2022.

Engelking J. Released: May 25, 2022

[1] This is described by Mr. Okechukwu as ”Lesbian, Gay, Bisexuall, Tras*, Queer/Questioning, Intersex, Asexual/Ally, + (the “+” is an acknowledgement that there are non-cisgender and non-straight identities that are not included in the acronym.” [2] Expert Brief of Jake Okechukwy Effoduh dated February 24, 2022 (attached to Addendum to Expert Report dated March 18, 2022) , p.2 [3] Ibid., p.3 [4] Ibid., pp. 6 and 7 [5] Ibid., p. 7 [6] Ibid., p. 11 [7] Ibid., p. 15 [8] Expert Opinion on Child Protection in Nigeria of Dr. Iyabode Ashabi Ogunniran, p. 1, para. 3 [9] Ibid., p., 7, para. 19 [10] Ibid., p.8, para. 20 [11] Ibid., p. 8, para. 21 [12] Ibid, p. 9, para. 21 [13] Ibid. [14] Ibid., p. 11, para. 27 [15] Ibid., p. 12, para. 27 [16] Ibid., p. 12, para. 28 [17] Ibid., p 12, para. 29 [18] Ibid., p.13, para. 31 [19] Ibid., p. 13 para. 32 [20] Ibid., p. 15, para. 36 [21] Ibid., p. 16, para. 37 [22] Ibid., p. 17, para 41 [23] Ibid., p.20, para. 54