Overview

[1] This is an appeal by the applicant father, Mr. Nacoulma, from the December 20, 2019 trial decision of O’Connell J. of the Ontario Court of Justice (OCJ).

[2] Following six days of evidence from both parties, two expert witnesses (following voir dires) and two civilian witnesses, as well as information received on consent from the Central Authority for Ontario, O’Connell J. made orders that:

(a) dismissed the father’s Hague[^1] application seeking the return of the parties’ three children to the State of Michigan, USA. The children were 5, 3 and 2 at the time of the OCJ decision.

(b) dismissed the father’s application that Ontario should decline jurisdiction in favour of Michigan pursuant to the Children’s Law Reform Act, R.S.O., 1990, c. C.12 (CLRA); and

(c) gave Ontario jurisdiction over this matter pursuant to section 23 of the CLRA on the basis that the children would suffer serious harm if they were removed from Ontario.

[3] For the reasons that follow, the appeal is dismissed.

The Facts

[4] The facts, which I adopt, are found at paragraphs 12 to 31 of the trial decision:

[12] The father is 48 years old and is a dual citizen of the United States and Burkina Faso. The father was born in Burkina Faso and immigrated to the United States in 2001.

[13] The mother is 31 years old and is a Nigerian citizen. The mother immigrated to the United States in 2007.

[14] The father is a self-employed mechanic and owns a business in Flint, Michigan repairing, buying and selling cars. He owns two properties in Michigan, the family home which is mortgage-free and another property. The father also owns property in Burkina Faso. The father’s mechanic’s garage is attached to the family home.

[15] The mother and the children are currently living in Ontario. The mother is now training to be a personal support worker and receives social assistance and part-time income delivering food.

[16] The parties met in Michigan in 2012 while the mother was a nursing student. She was living in the United States on a student visa. At the time they met, the father was a permanent resident, waiting for his American citizenship.

[17] The parties commenced a relationship in 2013. They began cohabiting in 2014 after the mother became pregnant with their first child. The mother gave up her apartment and moved into the father’s home.

[18] The parties have three children together, namely R.E.N, born [….2014]; R.D.N. born […2016]; R.N.N., born […2018] (“the children”). All three children were born in Michigan and are American citizens. Neither party has any other children.

[19] The parties lived together with the children in the father’s home in Flint until their separation. At the time of the separation, the children were 3 years, 2 years and seven months old.

[20] Prior to moving to Ontario, it is not disputed that the mother was the primary caregiver of the children. The father worked outside of the home and was the family’s main income earner. He worked in his garage as well as on the road buying and selling cars. The mother had some part-time income braiding hair at a hair salon, but the children went with her when she did this.

[21] After the birth of the first child, the mother was no longer able to attend school and lost her student visa immigration status in the United States. The mother did not have legal immigration status in the United States at the time she left with the children.

[22] The parties never married. They have conflicting accounts for why this is so and why the father never sponsored the mother to become a legal resident of the United States.

[23] The parties separated on August 21, 2018. On that day, the mother left the family home with the children and entered Canada. Upon arrival in Canada, the mother made a refugee claim on behalf of herself and her children. The mother informed the father through text messages that she had left with the children.

[24] On August 23, 2018, the father filed a police complaint with the Flint Township Police Department.

[25] On August 24, 2018, the mother informed the father that she and the children were in Canada.

[26] The father retained counsel in Michigan and in Ontario. On September 19, 2018, the Honourable Judge John A. Gadola of the 7th Judicial Circuit Court for the County of Genesee, Family Division in the State of Michigan, granted the father custody of the three children on an ex parte basis.

[27] The Michigan Court also ordered that the children be returned to Michigan forthwith and that the mother be granted “reasonable parenting time if she is allowed to return to the United States.” (The “chasing order”).

[28] The father hired a private detective and located the mother and children in Toronto, Ontario. They were living at a shelter for women and children.

[29] The father commenced his Hague application in February of 2019. The mother was served and retained counsel in March of 2019.

[30] It is not disputed that the children’s habitual residence was Flint, Michigan at the time that the mother removed them from the United States.

[31] It is further not disputed that the mother and the children were already living in Ontario at the time that the father obtained the “chasing order” from the Michigan Court.

Findings of the Trial Judge

[5] The trial judge made the following findings:

(a) The father was not credible on the material facts.

(b) The mother’s evidence was generally clear, straightforward and consistent regarding the material facts, and in particular, her detailed and consistent evidence regarding the violence that both she and the children experienced.

(c) A “chasing order” made without notice after a child’s removal from his or her habitual residence does not create rights of custody under Article 3 of the Hague Convention.

(d) Michigan law makes a distinction between the rights of married parents and of unmarried parents, as well as “natural” mothers and fathers, in relation to custody rights of children. Under Michigan law, an unmarried father has no rights, unless he first establishes his legal relationship to the child as set out in the Acknowledgement of Parentage Act.[^2]

(e) At the time the mother removed the children from Michigan, the father had not commenced an action for custody of or access to the children nor had he obtained any custody or access order, nor did the parties have an agreement in writing.

(f) The father did not have, nor was he exercising rights of, custody at the time of removal.

(g) The removal [of the children by the mother] cannot be seen as “wrongful” within the meaning of the Hague Convention. The father’s Hague application for an order returning the children to Michigan is dismissed.

[6] The trial judge held, in the alternative, that if she was wrong and the father was exercising rights of custody that triggered a wrongful removal, she would have found that there is a grave risk that returning the children to Michigan would expose them to physical or psychological harm or otherwise place them in an intolerable situation. The court therefore denied the father’s application that the children be returned to Michigan based on the exceptions under Article 3 and Article 13(b) of the Hague Convention.

[7] The trial judge went on to find that, if the Hague Convention does not apply in this case, the court finds that it should assume jurisdiction under section 23 of the CLRA, as the court was satisfied that the children would suffer serious harm if they were removed from Ontario. A list of applicable legislative provisions from the CLRA is found in the Appendix to these reasons.

[8] Ultimately, the trial judge held that:

[260] The state of Michigan could not protect the mother or the children in these circumstances given the mother’s vulnerable immigration status.

[261] Further, there are no undertakings that can protect the children from being exposed to further domestic violence or an abusive environment. According to the court appointed Michigan immigration law expert, the mother’s ability to return to the United States is “marginal at best.” The mother’s ability to regularize her immigration status in the United States and to return to the United States is very unlikely.

[262] I find as a fact that if the children are returned to Michigan without their mother, their primary caregiver, then the children would be placed with an abusive and violent father who has used corporal punishment against them or placed otherwise in foster care. Their mother would not be there to protect them.

[263] I find as a fact that in these circumstances, there is a grave risk that returning these children to Michigan would expose them to physical or psychological harm or otherwise place them in an intolerable situation.

Issue of Fresh Evidence on Appeal

[9] The respondent sought to adduce fresh evidence at the appeal hearing. The appellant objected, noting that the bulk of the fresh evidence was relevant to the “best interests of the children,” rather than the Hague and CLRA issues on appeal. I agreed with the appellant and declined to permit the introduction of fresh evidence, with one exception. I permitted the respondent to include evidence that the respondent had a hearing before the Immigration and Refugee Board of Canada (IRB) on November 30, 2021, which was continued on April 21, 2022, and that no decision has been released. This information arose after Kraft J. of the Superior Court ordered the respondent mother to provide a sworn statement regarding the status of her immigration proceeding.

[10] The appellant requested that I draw an adverse inference from the respondent’s failure to provide supporting documentation in respect of the respondent’s immigration status in Canada and that I should conclude that the respondent had “no legal status” to remain in Canada. To his credit, appellant counsel noted, however, that under the principle established in M.A.A. v. D.E.M.E., 2020 ONCA 486, 152 O.R. (3d) 81, the court could not order the return of the children to Michigan before the determination of the mother’s and their refugee claim since the principle of non-refoulement applies. Be that as it may, the appellant submitted, and I agreed, that I should nevertheless proceed to rule on the appeal rather than await the outcome of the IRB hearing. For the purpose of this appeal, I conclude that the mother’s proceedings before the IRB are still in progress and that her legal status to remain in Canada is still undetermined.

Analysis of Arguments on Appeal

[11] The appellant raised several grounds of appeal in his Notice of Appeal but only pursued a subset of those grounds in oral argument. I summarize the appellant’s main arguments on appeal (in italics) and deal with each argument in turn.

The trial judge erred in law in treating the September 19, 2018 and July 29, 2019 orders of the Michigan court as final Orders, instead of as temporary Orders.

The trial judge erred in law by finding there was no application for custody of or access to the children pending before an extra-provincial tribunal.

[12] I find that the above two arguments go to the trial judge’s alleged misapplication of section 22(1) of the CLRA. However, the trial judge made her ruling based on Ontario taking jurisdiction under section 23 of the CLRA, so the appellant’s critique concerning the trial judge’s treatment of section 22(1)(b) is not relevant to the appeal.

The trial judge erred in law by determining the children would suffer a grave or serious risk of harm or otherwise be placed in an intolerable situation by operation of their return to the State of Michigan.

[13] While conceding that the trial judge’s decision involved a question of mixed fact and law that attracted a standard of review between correctness and palpable and overriding error, under this heading the appellant claimed that the trial judge committed legal errors by:

(a) conflating the father’s alleged abuse directed to the mother, with the alleged abuse directed to the children, the latter of which did not rise to the level of serious risk of harm as recognized in the jurisprudence: Thomson v Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551, at para. 82. The appellant submitted that, on the trial judge’s findings, the father only yelled at the children, and “knocked” the older child on the head akin to a single “door knock,” rather than striking with the full force of one’s capacity.

(b) failing to appreciate that, if the children were returned to Michigan, the mother would not be present. Therefore, the concerns about the children witnessing alleged abuse against the mother would not exist.

[14] I disagree that the trial judge failed to appreciate these distinctions, or that her having done so amounts to legal error. I note paragraph 257 of the trial judge’s decision, which states:

[257] In my view, there is credible evidence that the father assaulted the mother on multiple occasions and that the children witnessed some of these assaults. There is also credible evidence that the father sexually assaulted the mother and threatened and controlled her as a result of her vulnerable immigration status. This is not a case of a single incident of violence. There was evidence of multiple incidents of serious physical and sexual violence by the father against the mother which the children, at least the older children, witnessed on some occasions.

[258] There is also credible evidence that the father yelled and cursed at the mother in the children’s presence. I also find that the father yelled at the children and hit or knocked the oldest child on the head when he was angry or as a form of discipline. I find that the two older children were afraid of the father on these occasions, based on the evidence of the mother and the aunt. [Emphasis added.]

[15] I read the trial judge’s reasons as her finding that the children witnessed some of the serious assaults on their mother and were afraid of their father. Even accepting the appellant’s point that the direct violence on the children (yelling, knocking on the head) does not amount to a grave or serious risk of harm against them, I find that the psychological harm against the children combined with the lesser direct physical harm is what animated the trial judge’s decision. I also do not see that the children’s psychological fear of the father would necessarily diminish just because the mother is not around. In fact, given that it is uncontested that the mother was the children’s primary caregiver, I find that the children’s fear of their father would likely increase. I glean this from the following passage of the trial decision:

[16] Accordingly, I do not find that the trial judge’s assessment of “grave or serious risk of harm” was tainted by error based on a conflation of the violence directed by the father against the mother with that directed to the children, or because the trial judge mischaracterized the violence against the children.

The trial judge erred by failing to recognize that the issue for determination is if the children are to be returned to the jurisdiction of the State of Michigan, and not specifically to the appellant father’s care.

The trial judge erred by failing to return the children to the jurisdiction of the State of Michigan, considering the respondent mother’s ability to participate in legal proceedings in the State of Michigan via teleconference.

[17] The appellant made much of the fact that the trial judge reached her conclusion about the propriety of Ontario taking jurisdiction under section 23 of the CLRA, and the children suffering “serious harm,” because she concluded that a return to Michigan necessarily meant a return to the father’s care.

[18] Relatedly and procedurally, the appellant argued that the trial judge ought to have directed the mother to participate in a virtual hearing convened by the Michigan Court while she and the children remained in Ontario, and that the OCJ could have made an interim order under section 40 of the CLRA to that effect.

[19] Relying on Cannock v. Fleguel, 2008 ONCA 758, 303 D.L.R. (4th) 542, the appellant argued that the trial judge should have focused on allowing the Michigan court to deal with the matter at first instance. This would not necessitate returning the children there, as the children could have continued to reside here, subject to an interim court order, while the mother participated in a virtual hearing with the Michigan court.

[20] I note, however, that Cannock was not a decision under section 23 of the CLRA. It was a decision decided under the Hague Convention. In Cannock, the first instance application judge found that the child in that case was a habitual resident of Australia within the meaning of the Hague Convention. The mother opposed the father’s application by relying on Article 13(b) of the Convention, arguing that the father was a violent criminal, a drug addict and trafficker, who was incapable of parenting and who had abused her. She argued that the child would be exposed to physical or psychological harm if the child were returned to the father’s care. However, the application judge found that the Article 13(b) standard was not met.

[21] In Cannock, the trial judge’s finding that the child was wrongfully removed from Australia (his habitual residence), was not in dispute. It was against this context that, in upholding the application judge’s decision, the Court of Appeal held that:

[t]he application judge properly recognized that this issue of the risk to the child from a return to the father was not before him. He noted that the test was whether the child “should be returned to the jurisdiction of the Australian courts” and the issue of the best interests of the child were not before him.

[22] In the within case, it is conceded that the father did not have custody of the children and there was no wrongful removal of the children by the mother. The issue is not the application of the Hague Convention and the section 13(b) exception. The issue is section 23 of the CLRA and whether an Ontario court may exercise its jurisdiction to make or vary a parenting order with respect to a child physically present in Ontario if the court is satisfied, on a balance of probabilities, that the child would suffer serious harm if removed from Ontario.”

[23] I also note that the trial judge was alive to the fact that the orders from the Michigan court were obtained by the father without notice to the mother after the mother and children left for Ontario. While it is conceded that the mother eventually got a copy of the Michigan court decisions, the mother was not given any opportunity to be heard before the court orders were made. The trial judge noted at paragraph 266 of her decision that “the affidavit evidence supporting the father’s ex parte application was misleading at best and contained no information regarding the domestic violence experienced by the mother and the children while in Michigan.”

[24] I find that there was no obligation on the trial judge in these circumstances to direct that the mother first subject herself to the jurisdiction of the Michigan court or, to put it another way, I see no legal error in the trial judge’s decision. I would not allow an appeal on these grounds.

Conclusion

[25] The appellant’s overall argument was that since the USA is a contracting state under the Hague Convention, the trial judge should have maintained a very high standard for “grave risk of harm,” notwithstanding that the within case involved an interpretation of section 23 of the CLRA. The appellant argued that the Court of Appeal’s direction in Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561 that the “serious harm” requirement for section 23 of the CLRA is less stringent than the grave risk requirement may not be applicable when you are dealing with a contracting state. I find that the trial judge found, on a balance of probabilities, that the facts here would have satisfied that higher standard.

[26] Read holistically, the trial judge’s reasons suggest that it is the combination of a number of factors that led her to her overall conclusion: the credibility of the parties; the determination that the mother had always been the children’s primary caregiver; the abusive and violent father who the children were scared of, and who would not have their mother to protect them should they be returned to Michigan; and the facts associated with the “chasing order” of the Michigan court.

[27] I find that the trial judge did not commit any errors that are reversible on the standard of review for questions of mixed fact and law, and that her decision is upheld.

Costs

[28] The respondent has been wholly successful, and the appeal has been dismissed. The appellant submitted that the respondent failed to pay a costs award of $500 as ordered by Kraft J. and that, should I award costs against the appellant, $500 should be deducted from that costs award.

[29] The respondent’s Bill of Costs, based on the Legal Aid Ontario rate of $122.78 per hour, indicates total legal fees of $7,310.32 and no disbursements. I note that this is not dissimilar to the appellant’s Bill of Costs, which is $6,971.39. I find, based on the factors identified in Rule 24(12) of the Family Law Rules, O.Reg. 114/99, that the appropriate award of costs on the appeal should be $5,000. However, as the respondent failed to pay $500 in costs in respect of the order of Kraft J., the appellant should pay $4,500, which amount should be paid within 30 days of this decision.

[30] Within seven (7) days of the release of these reasons, the parties shall provide me with a Draft Order by sending a draft order approved as to form and content, as well as a clean copy for signing in WORD format to my judicial assistant’s e-mail, Patricia.Lyon-McIndoo@ontario.ca.

Pinto J.

Released: October 20, 2022

Appendix

Sections 22, 23, 40 and 41 of the Children’s Law Reform Act

Jurisdiction

22 (1) A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,

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

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

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

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

(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,

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

(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

Habitual residence

(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

With both parents.
If 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.
With a person other than a parent on a permanent basis for a significant period of time.

Abduction

(3) The removal or withholding of a child without the consent of all persons having decision-making responsibility with respect to 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.

Serious harm to child

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 the balance of probabilities, suffer serious harm if,

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

Interim powers of court

40 Upon application, a court,

(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or

(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,

may do any one or more of the following:

Make such interim parenting order or contact order as the court considers is in the best interests of the child.
Stay the application subject to,

i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or

ii. such other conditions as the court considers appropriate.

Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.

Enforcement of extra-provincial orders

41 (1) Upon application by any person in whose favour an order granting decision-making responsibility, parenting time or contact with respect to a child has been made by an extra-provincial tribunal, a court shall 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.

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.

COURT FILE NO.: FS-20-15104

DATE: 20221020

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Wendapanga D. Nacoulma

Appellant

– and –

Oluwafunmilola Ajiayi

Respondent

REASONS FOR DECISION

Pinto J.

Released: October 20, 2022

[^1]: Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 1343 U.N.T.S. 22514 (entered into force 1 December 1983) [Hague Convention].

[^2]: Ch 722 MCL (1996).

Nacoulma v. Ajiayi , 2022 ONSC 5819

Case Summary

Overview

The Facts

Findings of the Trial Judge

Issue of Fresh Evidence on Appeal

Analysis of Arguments on Appeal

Conclusion

Costs

Appendix

Jurisdiction

Habitual residence

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 2