Custody of children and where they live after a couple separates can be contentious issues when both parents live in the same province. However, a whole other set of complications can arise when international borders come into play. The Ontario Court of Appeal recently issued a decision on whether a Nigerian court has jurisdiction to determine custody and access of three children, all Canadian citizens, living in Ontario.

Three children, all Canadian citizens, return to Nigeria

The mother and father involved in the case were born in Nigeria and got married there in 1994. The couple moved to England after getting married and then to Ontario in 1998. At the time of the trial they had three children, aged 12, 14, and 15 – all of whom are Canadian citizens.

The father took a job and moved back to Nigeria in 2003 and has remained there since. He fathered another child in 2010 and at the time of the trial was living with a new partner. The mother lived in Mississauga with their children from 2005-2011, at which time she returned with her children to Nigeria in an unsuccessful attempt to save the marriage. The couple separated in 2012 or 2013.

The mother’s attempt to relocate to Ontario

In 2016 the couple agreed that their children could move to British Columbia for the summer to live with the father’s stepsister and return to Nigeria for school in September. However, in August of that year the mother travelled to British Columbia, took the three children and moved with them to Mississauga. She did this unilaterally and did not share her new address with the father.

The original decision

In November 2016 the mother brought an application in Ontario seeking custody of the three children. The father moved to stay the Ontario action on the grounds that an Ontario court had no jurisdiction to decide the custody of the three children. The motion judge granted the stay and ordered the children to be returned to Nigeria in the care of the father until the mother returned to Nigeria. The motion judge’s reasons included the children having lived in Nigeria from 2011-2016.

The mother appealed this ruling and a temporary stay had been granted until the conclusion of the appeal.

The Court of Appeal turns to the Children’s Law Reform Act

Nigeria is not a signatory to the Hague Convention, meaning the Convention on the Civil Aspects of International Child Abduction (The Convention) could not govern the case. Instead, the jurisdictional issue was to be decided under sections 22 or 23 of the Ontario Children’s Law Reform Act.

The first issue addressed by the court was whether the motion judge erred in ruling that under s. 22 of the CLRA the Ontario court has no jurisdiction. The CLRA sets out four bases under which an Ontario court can assume jurisdiction to make an order for access or custody to a child. They are:

  1. Under s. 22(1)(a), if the child is “habitually resident” in Ontario at the time the application is commenced;
  2. Under s. 22(1)(b), if though not habitually resident in Ontario, the child is physically present in Ontario at the time the application is commenced, and the other requirements of the section are met, including the requirement that no application for custody has been started in another place where the child is habitually resident;
  3. Under s. 23, if the child is physically present in Ontario and would, on a balance of probabilities, suffer serious harm if removed from Ontario; and,
  4. Under the court’sparens patriae jurisdiction to protect children, preserved by s. 69.

The court determined that the CLRA provided no basis for an Ontario court to assume jurisdiction over the children under section 22, which provides the first two bases for assuming jurisdiction.

The second issue was whether s.23 of the CLRA could supersede the jurisdictional ruling. In order to determine this, the court had to make a decision on whether the children would suffer serious harm if forced to move back to Nigeria. Earlier in the proceedings the Office of the Children’s Lawyer (OCL) had been assigned to the case and had interviewed the three children and examined their school records.

The risks of returning the children to Nigeria

Two risks were reported as a result of the OCL’s investigation. The first was that the mother had alleged the father was physically abusive towards her. The father denied this, and the court was reluctant to rely on these allegations in order to establish jurisdiction under s.23. However, the second risk was more concerning to the court. All three of the children reported that the father angered easily and physically mistreated them when angry. One of the children reported that the father had hit him with sticks and other objects such as the wire of a charger. Another child said the father had hit him with a stick, a belt and a TV wire. The youngest child said the father hit her with his hands and that he hit the older siblings with objects. The father admitted to hitting his children with his hands but denied using objects.

The Supreme Court of Canada has upheld the right of parents to use physical discipline on their children so ling as the force used is reasonable. However, Supreme Court court specifically disapproved if corporal punishment of teenagers, especially with the use of objects, writing “Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful.”

While The Convention did not apply to the case, the court referred to it because of widespread international agreement of its principals. The court looked specifically at Article 13(b) includes a clause stating “The judicial or administrative authority may also refuse to order the return of the child if it finds the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” The court wrote “The three Ojeikere children are able to express their views. They are of an appropriate age and maturity to do so. And I regard the views of a child of an appropriate age as potentially relevant to the risk of psychological harm if the child is ordered to return to the country of habitual residence.”

In light of all of the evidence the court set aside the order of the motion judge and ordered that the Ontario Superior Court had jurisdiction to determine custody and access in relation to the children. The mother was given interim custody of the children and was permitted to stay in Ontario pending a decision from the court. Meanwhile the father was given access to the children by phone, email, social media, or personal visits.

Separation and divorce can lead to stress regarding the custody of and access to children. At Jason P. Howie, Professional Corporation, we put these fears to rest, providing our clients with peace of mind regarding their rights to custody and access. Obtaining proper legal assistance when arranging custody is important in order to ensure agreements are binding and are drafted in a way to avoid problems down the road. Please call us at 519-973-1500 or contact us online to arrange to meet with us today.

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