COURT FILE NO.: FC-23-1509
DATE: 2023/12/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Niendow Oma Al-Hassan
Applicant
– and –
Ama Gaynor Ankamah
Respondent
John Allan, counsel for the Applicant
Concillia Muonde, counsel for the Respondent
HEARD: November 30, 2023 in Ottawa
REASONS FOR DECISION
DOYLE J.
Overview
[1] The father’s motion requests, among other things, the return of the child M.A. born in November, 2014 (“the child”) who he alleges was wrongfully removed/abducted from his care in Ottawa by the respondent mother and brought to Ghana.
[2] The mother is requesting, among other things, an order that the child’s habitual residence is Ghana and that the Superior Court of Justice does not have jurisdiction or should decline jurisdiction.
[3] The central issue in this matter is whether this Court has jurisdiction to make a parenting order for the parties’ child. Specifically, the Court must determine whether the child’s is habitually resident in Ontario or in Ghana pursuant to s. 22 of Children’s Law Reform Act, (“CLRA), R.S.O. 1990, c. C.12.
[4] Neither party is taking the position that the child would be at risk of harm if she was allowed to return to Canada within the meaning of s. 23 of the CLRA.
Background
[5] At this time, the mother is a psychiatrist practising in Ghana and the father is employed as an occupational health and safety officer in Ottawa.
[6] The child is 9 years old, and she has lived in Ghana all her life except for a month from June 17, 2023 to July 20, 2023 when she resided in Ottawa. The father and child have dual citizenship in Canada and Ghana. The mother has Ghanaian citizenship only.
[7] The parties, who are both from Ghana, commenced cohabitation in 2012 in Tamale, Ghana where they resided until 2017.
[8] From 2017 to 2020, the mother and child resided in Kumasi, Ghana so the mother could pursue her psychiatry residency.
[9] In May 2020, the child lived with the father in Tamale while the mother attended her placement in Accra, Ghana.
[10] In September 2020, the parents and the child lived in Tamale.
[11] In June 2021, the father arrived in Canada to pursue his Masters. He visited Ghana from January 2022 to June 2022 at which time he returned to Canada to work.
[12] In February 2022, the father returned to Ghana to discuss the family arrangements as the mother wished to attend Oxford University in England to pursue a master’s degree.
[13] The parties disagree on why the child was brought to Ottawa by the paternal grandfather to live with the father while the mother pursued her Master’s Degree in England. The mother states that the father would not permit her to bring the child with her to England and the father states that the parties agreed that she would not be able to take care of the child there as she had no support network in England.
[14] The child was brought to Ottawa by the paternal grandfather on June 16, 2023 with the mother’s consent. The child attended an Ottawa school for 8 days which were the last days of the school year. The child was registered to return to the Ottawa school in the fall of 2023.
[15] On June 21, 2023, the parties separated when the father sent a message through WhatsApp expressing his intent to separate.
[16] The mother arrived in Ottawa on June 29, 2023, on a visitor’s visa. This visit had been pre-arranged in May 2023 by the parents to allow the mother to visit with the child and observe how she was adjusting with her father. The father admits that this was the purpose of the mother’s visit and he paid for her airline ticket. There is a reference by the father in a message where he is calling the mother “ex-wife” at the time.
[17] The parties disagree on what occurred while the mother was in Ottawa. The mother alleges that the father was very cruel to her and the child and she was very displeased on how he was taking care of the child. She was concerned that the child was exposed to pornography on the father’s phone, cannabis products in his home and that the father was engaging in roughhousing with the child. On the other hand, the father denies these allegations but rather he describes that the child was adjusting very well to her new home and that she enjoyed her new school and the activities.
[18] The father signed a consent to travel to allow the mother to travel to Ohio with the child to visit her brother from July 20, 2023 to August 20, 2023. The father believed this would give time for the child to prepare in advance of the new school year in Ottawa.
[19] The mother took this opportunity to return to Ghana with the child via England.
[20] The father noticed that the child’s Ghanaian passport was missing and the return airline ticket back to Canada was cancelled.
[21] When the father had not heard from the mother and child, he reported the matter to the Ottawa Police service on July 24th, then the USA authorities on July 25th and to Global Affairs on July 26th.
[22] On July 27, 2023, the father heard from the mother. They diverge on the content of the conversation. He states that he was told by her that she had to leave the USA to return to Ghana due to an emergency UK immigration issue in Accra. The mother states that she told him that she was not content with his parenting of the child.
[23] The parties had some settlement discussions but to no avail. Ultimately, the father issued this application in Ottawa on August 28, 2023.
[24] The child has been in Ghana since the end of July 2023 and the mother indicates that the child is attending school. Documentation has been filed indicating that the child is receiving counselling. She has had video contact with her father.
[25] The mother is no longer pursuing her Master’s degree in Oxford, England and intends on remaining in Ghana with the child.
Legal Framework
[26] This case is not governed by 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, because Ghana is not a signatory to the Convention. Thus, the issues on these motions must be decided under the provisions of part III of Children’s Law Reform Act, R.S.O. 1990, c. C.12(“CLRA”).
[27] The court must consider the child’s “habitual residence” pursuant to s. 22 of the CLRA which is statutorily required in order to determine the ultimate question of whether the Court has jurisdiction to hear the application to deal with parenting. That is, the preliminary question of the children’s “habitual residence” must be decided before embarking on the inquiry of whether Ontario is the appropriate jurisdiction for the hearing of the issues raised in the father’s application.
[28] Section 22 (1) of the CLRA specifies the two circumstances where 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. 2020, c. 25, Sched. 1, s. 6.
(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. 2020, c. 25, Sched. 1, s. 6.
(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. 2020, c. 25, Sched. 1, s. 6.
[29] Section 22(3) of the CLRA confirms that an individual cannot by unilateral conduct change the child’s habitual residence.
[30] Section 22 of the CLRA must also be read with ss. 25 which indicates:
- A court having jurisdiction under this Part in relation to decision-making responsibility, parenting time or contact with respect to a child may decline to exercise its jurisdiction if it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario. 2020, c. 25, Sched. 1, s. 6.
[31] The court is also mindful of the objectives and purposes set out in s. 19 of Part III of the CLRA (where the above sections are found):
19.The purposes of this Part are,
(a) to ensure that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children;
(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in relation to the determination of decision-making responsibility with respect to the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;
(c) to discourage the abduction of children as an alternative to the determination of decision-making responsibility by due process; and
(d) to provide for the more effective enforcement of parenting orders and contact orders, and for the recognition and enforcement of orders made outside Ontario that grant decision-making responsibility, parenting time or contact with respect to a child. 2020, c. 25, Sched. 1, s. 2.
[32] In Futi v. Ogunkoya 2022 ONSC 6013, Audet J. discussed the approach required to determine habitual residence. At para. 18-19, she stated:
[18] The Supreme Court of Canada in Office of the Children's Lawyer v. Balev, 2018 SCC 16, modified the test for determining habitual residence, as used in the Hague Convention, by requiring that the court consider all of a child's circumstances as opposed to only considering parental intention, which the Court described as a "hybrid approach". Before Balev, the concept of “habitual residence” under the Hague Convention had been defined as follows by the Ontario Court of Appeal in Korutowska-Wooff v. Wooff, 2004 ONCA 5548:
The question of habitual residence is a question of fact to be based on all of the circumstances;
The habitual residence is the place where the person resides for an appreciable period of time with a "settled intention”;
A "settled intention" or "purpose" is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;
A child's habitual residence is tied to that of the child's custodian(s).
[19] Balev was decided pursuant to the Hague Convention, and not pursuant to s. 22 of the CLRA. The question as to whether the hybrid approach to the determination of a child’s habitual residence applies to cases decided under provincial legislation (as opposed to the Hague Convention) is a matter of some judicial debate (see for instance Z.A. v A.A., 2019 ONSC 5601; Kong v. Song, 2019 BCCA 84; Yokev v. Alon, 2022 ONSC 4037 and Markowski v. Krochak, 2022 ONSC 2497).
Issues
[33] The issues are:
Where is the child’s habitual residence?
If the child’s habitual residence is found to be Ontario, should the court decline jurisdiction?
ANALYSIS
Issue #1 What is the child’s habitual residence?
[34] As further explained below, I have considered both the parental intention approach and the hybrid approach which requires that I consider all the child’s circumstances. I arrive at the same conclusion. The child’s habitual residence is Ghana.
[35] Firstly, the court cannot take jurisdiction under s. 22(b) as stated in Wang v. Lin, 2013 ONCA 33, 358 DLR (4th) 452, s. 22(1)(b) must be read conjunctively. An Ontario court can only exercise jurisdiction under this provision if all six of the enumerated criteria are met. That is not the case here.
[36] The onus is on the father to establish that at the time of the removal of the child, the child was habitually resident in Ontario. The father relies on section 22(2) subsection 2: that is: “the child is habitually resident in Ontario because the parents were living separate and apart and the child was residing with him by consent or implied consent of the other parent”.
[37] The question of habitual residence is a question of facts. The facts are as follows.
Parties’ settled intentions
[38] The child has resided in Ghana all her life except for 35 days with her father in Ottawa.
[39] Habitual residence is also a place where the parties reside for an appreciable time with a ‘settled intention’.
[40] Regarding the parties’ settled intentions, the child was in Ottawa with her father due to an arrangement made by the parents that the father would take care of the child for approximately a year while the mother attended Oxford University in the UK in October 2023.
[41] The parties had talked about the child coming to Canada when she was older. The mother does indicate in her affidavit that the parents had discussed that the child would attend a Canadian university. In 2019 the mother was surprised that the father only applied for Canadian citizenship for the child and not her. The father indicated that he lacked the assets to include the mother. However, in his reply affidavit sworn November 17, 2023 he also explains that he was unsure of his future relationship with the mother as they had previous break ups. Around this time in 2019 there is evidence that the parties discussed the possibility of the mother also coming to Canada when the child attended university in Canada.
[42] The mother consented to the child coming to Ottawa which is evidenced by her providing the paternal grandfather with a written consent to travel with the child to Canada in July 2023.
[43] The parties also arranged for the mother to come to Ottawa after two weeks while the child was with her father to determine how the child was adjusting.
[44] The child attended school for 8 school days in Ottawa and was involved with activities while in Ottawa.
[45] The mother alleges that the father had planned to keep the child and decided to tell the mother only after the child was in Ottawa attending school that he wanted a separation to gain a litigation advantage.
[46] There have been no cross-examinations and the court only has a paper record to determine credibility.
[47] Whether the father created the situation to gain litigation advantage or not, he permitted and paid for the mother’s flight to visit in Ottawa to see if the child was doing well. The mother’s removal of the child without the father’s consent from Ottawa by not returning her after the trip to Ohio can also be characterized as an attempt to gain litigation advantage.
[48] At its highest the child’s planned time in Ottawa was not indefinite although one year is an ‘appreciable time’. The evidence confirms that the child has always been in Ghana attending school.
[49] The settled intention of the parents was that the child would remain in Ottawa while the mother was studying in the UK with the proviso that the mother would visit to ensure that the child was adjusting.
[50] The mother’s actions of removal of the child can be characterized as a revocation or withdrawal of her consent for the child to remain with the father in Ottawa.
Circumstances of the child
[51] The mother signed her court application in Ghana in early August 2023 and the document filed seems to suggest it was filed in October 2023.
[52] No expert from Ghana was called to confirm whether these materials found as exhibit K to her affidavit of November 10, 2023 represented a Ghanaian application
[53] The father is skeptical that a family action is in play in Ghana.
[54] On the record before me I accept the mother’s evidence that she has initiated an application in Ghana and documents confirm that documents were filed in Ghana. The court cannot determine what stage the hearing is at. There are documents filed without notice requesting permission to serve the father as he is not a resident of Ghana. Some of the documents appear to be sworn.
[55] There is also evidence that the child is receiving counselling in Ghana. A note dated September 30, 2023 from a friend of the mother who is a psychiatrist in India indicates that the mother advised that the child was having emotional difficulties and suggested that she see someone in her area.
[56] A psychiatric report dated October 9, 2023 from the Accra hospital describes the mother reporting her observations regarding the child. The report states that the child had a sense of sadness but did not demonstrate delusions or hallucinations. The hospital psychologist recommended the child have weekly sessions with her clinical psychologist.
[57] The court notes that these contacts with professional mental health professionals were engaged after the father issued his application in Ontario.
[58] Also, of concern is that the father proceeded to obtain the child’s Canadian citizenship but did not apply for the mother’s. This leaves the mother, who is the main caregiver, with the unenviable position that she cannot visit Canada without someone applying for a visitor’s visa on her behalf.
[59] The father argues that the mother cannot create the child’s habitual residence by “abducting her”. The court does not condone removal of a child without the other parent’s consent.
[60] Section 19(1) states that one of the purposes of the section is to discourage abduction. This is emphasized in s. 22(3) that confirms that the removal or withholding of a child does not alter a child’s habitual residence.
[61] However, s. 19 also states that parenting applications must be determined in accordance with the child’s best interests. The best interests of a child are all encompassing which include reviewing her needs: academic, social, familial, activities, cultural and emotional needs and circumstances.
[62] This court finds that the facts are overwhelming that Ghana is the habitual residence as she has the closest (if only real) connection to that country and her connection with Ottawa is tenuous.
[63] Having considered combined parental intention and the circumstances of the children, I find the child’s habitual residence just before the withholding of the child is Ghana.
[64] The father states the mother misrepresented the facts in her ex parte Ghanaian application. The psychologist did not see the child until October 2023 but she told the father it was in September 2023. The document states that the mother is in Accra so the father questions how the child can be attending school in Tamale which is 650 kms away from Accra.
[65] The mother indicates that the child is in school in Accra although there is no report or documentation confirming this filed. The mother’s evidence is that the child is attending school and for the purposes of this motion, the court accepts this fact.
[66] The father alleges that the mother has acted in bad faith and has unilaterally created a new status quo for litigation advantage. He alleges that:
The documents filed purporting to be a Ghanaian application appear to be an intake form rather than application, the mother’s affidavit of support is not dated or commissioned. The date shows October 5, 2023 but the lawyer in Ghana changed it to August 23 2023.
Doctor Satija is from India and there is no evidence that this doctor can practise in Ghana. The mother minimizes the involvement of the paternal grandfather and his wife as their supporting affidavits indicate their extensive involvement with the child. The grandparents do also spend time in Canada part of the year.
[67] Certainly, the court finds that there is some contradicting evidence in the mother’s materials but the evidence remains untested by cross-examination.
[68] Nevertheless, this is a strong case where the child’s roots are in Ghana and she had a short stint in Ottawa. Also, as discussed above, the father had also tried to gain litigation advantage by declaring the parties’ separation when the child was in his care.
[69] In addition, the court notes that the mother alleges that the father manipulated the situation by only applying for the child’s Canadian citizenship. She overheard him speak and referring to her as an “ex-wife” and he tells her that they are separating after the child was in Ottawa for a few days.
[70] As a general comment, both parents have attempted to gain advantage in these proceedings. Both had not been forthright nor candid with the other parent.
[71] However, the main facts that are not contentious in that the child was only in Ontario for about 1 month and her life was in Ghana. This supports a finding that the child’s habitual residence is in Ghana.
Issue #2 Should the court decline jurisdiction?
[72] Even if I would have found the child’s habitual residence was Ontario, I would have declined jurisdiction under s. 25.
[73] Section 25 of the CLRA states:
- A court having jurisdiction under this Part in relation to decision-making responsibility, parenting time or contact with respect to a child may decline to exercise its jurisdiction if it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario. 2020, c. 25, Sched. 1, s. 6.
[74] For the reasons articulated below, the court finds that it is more appropriate for jurisdiction to be exercised in Ghana.
[75] In deciding this issue, the court again is mindful of the purposes of the legislation set out s. 19 of the CLRA.
[76] The facts of this case unequivocally show that the child has a strong connection up to June 2023 with Ghana. She attended school there and for most of her life lived in Accra, Kumasi or Tamale –all in Ghana.
[77] Her medical and dental care and social and extended family life has been predominantly in Ghana. Other than attending school for 8 days in Ottawa, she has always attended school in Ghana.
[78] Her paternal grandfather and his wife, who spend time in Ghana, have been active with the child. In fact, the paternal grandfather was entrusted with bringing the child to Canada in June 2023 with the written consent of the mother.
[79] Her time in Ontario included attending school for approximately one week in Ottawa, attending museums and Calypso Park in Ottawa and partaking of other activities.
[80] The child’s connections are all in Ghana and that is the appropriate forum for the determination of the parenting issues. The witnesses dealing with her academic work, her medical/dental needs, her current counselling needs, her extended family members, her social life, her peers and neighbourhood friends, in addition, the paternal grandmother and father live in Ghana and ae able to testify with respect to their involvement with the child.
[81] In addition, the court notes the following:
The father did not apply for the mother’s Canadian citizenship by sponsoring her. He only processed the child’s Canadian citizenship. The mother can only visit Canada with a visitor’s visa based on a Canadian inviting her.
The mother has commenced an application in Accra which will be able to determine what is in the child’s best interests.
The mother and child have lived in Ghana together most of the child’s life.
The mother has been the primary caregiver (the father admits this fact).
The child has a real and substantial connection to Ghana.
Her only connection to Ontario is her father who she visited on only one occasion. She has other paternal family members living in Ghana for some of the year.
The father has visited Ghana on several occasions: for 6 months in January 2022 and 2 weeks in February 2023. The court can infer that he has the ability to travel there if there are court proceedings there.
[82] Accordingly, the court declines jurisdiction. It is more appropriate for jurisdiction to be exercised in Ghana not in Ontario.
[83] Finally, the mother has requested an extension of time to file an Answer. In the event that she wishes to file an Answer and supporting documentation it must be done within 30 days from the date of this decision.
[84] The mother is presumptively entitled to costs as she is the successful party. If the parties cannot resolve the issue of costs, then the mother may file her 2-page costs submission by December 29, 2023. The father may file his 2-page costs submission January 12, 2024. The mother may file her 1-page reply by January 19, 2024.
Madam Justice A. Doyle
Date: December 13, 2023
COURT FILE NO.: FC-23-1509
DATE: 2023/12/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Niendow Oma Al-Hassan
Applicant
– and –
Ama Gaynor Ankamah
Respondent
REASONS FOR DECISION
Doyle J.
Released: December 13, 2023