[Laskin, Feldman and Miller JJ.A.]
Atinuke Taibat Ojeikere, acting in person
J Long of the Office of the Children’s Lawyer, for the children
S Maiato, for the respondent
Keywords: Family Law, Custody and Access, Child Abduction, Jurisdiction, Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 22-23, Best Interests of the Child, Habitual Residence, Risk of Serious Harm, H.E. v. M.M., 2015 ONCA 813, Convention on the Civil Aspects of International Child Abduction, Article 13(b), Fresh Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(b)
The respondent, Mr. Ojeikere, contends – and the motion judge found – that a Nigerian court has jurisdiction to decide who should have custody of, and access to, the Ojeikeres’ three adolescent children. The appellant, Mrs. Ojeikere, and the Office of the Children’s Lawyer (“OCL”) both contend that an Ontario court has jurisdiction. 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 Nigeria is not a signatory to the Convention. Thus, the issues on this appeal must be decided under the provisions of Ontario’s Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).
(1) Did the motion judge err in ruling that under s. 22 of the CLRA an Ontario court does not have jurisdiction?
(2) Despite s. 22 of the CLRA, should an Ontario court exercise jurisdiction under s. 23 of the CLRA because the three children are physically present in Ontario and would suffer serious harm if returned to Nigeria?
Holding: Appeal allowed.
(1) No. The motion judge did not err. Section 22 gives an Ontario court two bases to assume jurisdiction and make a custody order: habitual residence of the child in Ontario; or physical presence of the child in Ontario, as long as the other specified requirements of the section are met.
Under s. 22(1)(a) of the CLRA, “a court shall only exercise its jurisdiction to make an order for custody of or access to a child where the child is habitually resident in Ontario at the commencement of the application for the order”. The OCL concedes that the Ojeikeres’ three children were habitually resident in Nigeria before Mrs. Ojeikere wrongfully took them to Mississauga in August 2016. The OCL also concedes that Mrs. Ojeikere could not change the children’s place of habitual residence by abducting them. The Court of Appeal agreed with the OCL’s concessions. The Ojeikeres’ three children resided with their parents in Nigeria for the five years preceding the court applications. Thus, the children were habitually resident in Nigeria under s. 22(2)(a) of the CLRA. Because the trial judge found that the three Ojeikere children were habitually resident in Nigeria, despite their time in boarding schools and despite their abduction to Ontario, s. 22(1)(a) of the CLRA provides no basis for an Ontario court to assume jurisdiction over the children.
Paragraph 22(1)(b) of the CLRA provides that an Ontario court may assume jurisdiction if six criteria are met. An Ontario court can only exercise jurisdiction under this provision if all six of the enumerated criteria are met. When Mrs. Ojeikere brought her application in Ontario in November 2016, the three children were physically present in Ontario, thus satisfying the first criterion under s. 22(1)(b). The fourth criterion is also satisfied as an Ontario court has not recognized any extra-provincial custody order; indeed none has been made. The OCL put forward evidence to try to satisfy the second, fifth, and sixth criteria: best interests, real and substantial connection, and balance of convenience. Even accepting that the evidence satisfies these three criteria, s. 22(1)(b) affords no basis for an Ontario court to assume jurisdiction because the third criterion cannot be satisfied. An Ontario court cannot assume jurisdiction to make a custody order if at the time of the application in Ontario, an application for custody was pending in another place where the child is habitually resident. In other words, a party cannot ask an Ontario court to assume jurisdiction to avoid proceedings already started elsewhere. Mr. Ojeikere filed a petition for custody of the three children in Abuja, Nigeria three months before Mrs. Ojeikere brought her application in Ontario. At the time Mr. Ojeikere filed his petition, the three children were habitually resident in Abuja. Thus, s. 22(1)(b)(iii) stands as a bar to an Ontario court’s jurisdiction.
(2) Yes. Section 23 allows for an Ontario court to assume jurisdiction even if the requirements of section 22 are not met, and it is under that provision that the appeal should be allowed. Despite the motion judge’s conclusion on s. 22, an Ontario court should exercise jurisdiction because the children, who are physically present in Ontario, would suffer serious harm if returned to Nigeria. The question whether Mr. and Mrs. Ojeikere’s three children would suffer serious harm if they were ordered to return to Nigeria turned almost entirely on the fresh evidence filed on the appeal by the OCL. This evidence was filed in accordance with the order of Miller J.A. The evidence consists of the affidavit of Andrea Jones, an in-house clinician at the OCL, and numerous school records for each of the three children. Under s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, in a civil (or family law) appeal, this court “may, in a proper case … receive further evidence”. The fresh evidence was permitted to allow the court to have up-to-date information about the child and the child’s best interests.
Justice Weiler commented on s. 23 in her reasons in H.E. v. M.M., 2015 ONCA 813, 393 DLR (4th) 267. Because the provision is triggered when a child is physically present in Ontario even if the child has been wrongfully brought to this province, s. 23 can override s. 22. Section 22’s aim of discouraging child abduction becomes secondary to s. 23’s aim of preventing serious harm to the child. As Weiler J.A. wrote at para. 87: “[W]hen there is a risk of serious harm to the child, the aim of discouraging child abduction must yield to another purpose of the CLRA, namely, the best interests of the child.” Courts appear largely to have equated the standard of “serious harm” in s. 23 of the CLRA with the standard of “grave risk [of] expos[ing] the child to physical or psychological harm or otherwise plac[ing] the child in an intolerable situation” in art. 13(b) of The Hague Convention. However, the Court of Appeal in this case concluded that the standard of “serious harm” required by s. 23 of the CLRA is less stringent than the standard under art. 13(b) of the Convention.
As important as the meaning of “serious harm” are the factors relevant to its application. Under s. 23, an Ontario court has discretion to refuse to order a child’s return to the child’s place of habitual residence. That discretion should be structured by a list of relevant factors. The relevant factors will vary from case to case. In some cases, one factor may decisively show “serious harm”; in other cases a combination of relevant factors may do so. In this case, a combination of factors, taken together, give rise to a risk that the three children would suffer serious harm if they are required to return to Nigeria. The factors relied on in this case are particular to its facts, and should not be taken as a list of factors relevant to every s. 23 case. For determining “serious harm” for the Ojeikeres’ three children, the potentially relevant factors include:
(i) The risk of physical harm
(ii) The risk of psychological harm
(iii) The views of the children
(iv) Mrs. Ojeikere’s claim she will not return to Nigeria even if the children are required to do so
With respect to the first factor, since Mrs. Ojeikere might not return with the children to Nigeria, or at least not full-time, an order returning them to Nigeria must contemplate a return to their father’s care. The likelihood that the children would be physically disciplined with objects by their father if returned to his care in Nigeria is high. The likely severity of the harm is at least moderately high. This factor alone weighs heavily in support of a finding of serious harm.
With respect to the second and third factors, the children would likely suffer serious psychological and emotional harm if now forced to return to Nigeria against their will. Overall, the fresh evidence shows that there is a real risk the children would experience a serious letdown in their hopes and aspirations for their futures if, over their objections, they were ordered to return to Nigeria. They would feel angry, sad, and resentful at once again having their lives disrupted.
With respect to the fourth factor, the Court of Appeal gave it no weight. There may be cases where a parent’s refusal to accompany the children back to the country of habitual residence could give rise to a serious risk of harm to the children. This case is not one of them. Mrs. Ojeikere lived in Nigeria for five years before abducting the children. Her vague assertion that there is nothing for her in Nigeria does not establish a substantial reason for refusing to return there.
On the basis of the fresh evidence, the Court of Appeal found that on a balance of probabilities, the three children would suffer serious harm if now ordered to return to Nigeria to await a custody and access determination in the Nigerian courts. This conclusion rests principally on the risk of physical harm in the form of physical discipline with objects compounded by the risk of psychological harm arising from these adolescent children’s mature views and objections to returning to Nigeria.
B.W. Miller J.A. (Concurring):
Justice Laskin considered the risks of both physical and psychological harm to the Ojeikere children. He concluded that the risk of physical harm in this case “alone weighs heavily in support of a finding of serious harm.” Justice Miller agreed. But while Justice Laskin rested his conclusion “principally on the risk of physical harm in the form of physical discipline with objects”, he added that the serious harm in this case is “compounded by the risk of psychological harm arising from these adolescent children’s mature views and objections to returning to Nigeria”. Justice Miller did not agree with this secondary argument. What Laskin J.A. characterized as psychological harm is mere disappointment. Disappointment is not harm, let alone serious harm.
Moreover, Laskin J.A. suggested that the threshold for “serious harm” under the CLRA is lower than for the harm override contained in the Hague Convention. This is a novel argument, and was not advanced by either party or the OCL. Accordingly, the court did not have the benefit of any submissions on the point. Indeed, the OCL took the position that the serious harm standard in the CLRA is equivalent to the standard in the Hague Convention. It would be inappropriate to adopt a new interpretation of the CLRA in these circumstances.
Nevertheless, there is the risk of serious harm from physical mistreatment from their father. The father is not accustomed to living with the children, is easily angered by them, and has a history of striking them with objects when angry. This establishes a serious risk of harm should the children be returned. On this basis alone, the jurisdictional override is engaged and Ontario should exercise jurisdiction to determine custody of and access to the Ojeikere children.
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