Ojeikere v. Ojeikere 2018 CarswellOnt 5917, 2018 ONCA 372

The main point of contention in this case pertains to the custody dispute of the Ojeikeres’ three children. More specifically, a court must decide whether a Nigerian or Ontario court has jurisdiction to decide custody and access. Additionally, if decided in favour of a Nigerian court, can Ontario supersede that decision and exercise jurisdiction under s. 23 of the Children’s Law Reform Act, subject to a judge finding on a balance of probabilities that the children would suffer serious harm if they were required to return to Nigeria.

Background

Mr. and Mrs. Ojeikere were both born in Nigeria and married there in 1994. The dispute is about their three children aged 15, 14 and 12 who are all Canadian citizens. Over their lives the children lived in England, Ontario and Nigeria, however, between 2011 and 2016 there is no question that the children and their parents were habitually and ordinarily residing in Nigeria. On a pretext that she would return, the mother took the children to Ontario and hid them from their father who remained in Nigeria without Mr. Ojeikere’s consent or knowledge.

Later in August 2016, Mr. Ojeikere filed a notice of petition in Nigeria for custody of the children. In response, Mrs. Ojeikere brought an application in Ontario for custody of the children. Because the entire family was domiciled in Nigeria, the judge ruled that Nigeria is the appropriate forum to decide the children’s custody.

The mother appealed this ruling and as a result of several further motions, a temporary stay was granted and the OCL (Office of the Children’s Lawyer) was asked to get involved. The judge granted an order appointing the OCL to represent the children and permitting it to file affidavit evidence on the issues of parental alienation from Mr. Ojeikere and the “serious harm” that may result from a return to Nigeria.

Analysis

This case is not governed by The Hague Convention since Nigeria is not a signatory. Thus, the jurisdictional issue must be decided under the Ontario Children’s Law Reform Act, section 22 or section 23.

The jurisdiction issue was decided in favour of a Nigerian court because the mother could not meet the test under section 22(1)(b) of the CLRA since there was a custody application pending outside of Ontario. An Ontario court can only exercise jurisdiction under section 22 if all the criteria under section 22(1)(b) are met.

The next issue to decide was whether an Ontario court could under Section 23 of the CLRA supersede the jurisdiction decision based on a consultation of whether the children would suffer “serious harm” if they were sent back to Nigeria. Evidence to establish such harm comes from the Office of the Children’s Lawyer (“OCL”) in this case because they had an opportunity to interview all three children and to examine the school records.

Ms. Jones, an in-house clinician at the OCL, was assigned to provide an unbiased opinion of the children’s wishes, which she gleaned from many interviews to which neither parent was present. Thus, there exists independent evidence of the children’s wishes, their feelings about their parents and their objections to returning to Nigeria.

The second risk is far more concerning. All three children report that their father angers easily, and that when angry he has physically mistreated them by beating them with either with his hands or with objects. The judge accepted the children’s testimony based on their independent evidence that was corroborated by each sibling.

Due to the fact that Mrs. Ojeikere is unlikely to return to Nigeria, an order returning the children to Nigeria would mean a return to their father’s care and a high likelihood of physical abuse. This factor alone weighs heavily in support of a finding of “serious harm”.

The judge considered the views of the three children as relevant to the risk of psychological harm if they are required to return to Nigeria and found support in art. 13(b) of The Hague Convention and s. 64(1) of the CLRA. 75 Article 13(b) has two clauses. The first clause, which sets the standard of “grave risk” of harm “or otherwise placing the child in an intolerable situation”, is one defence to an application to return to Nigeria. Article 13(b) of the Convention deals with the refusal of the court to order the return of a child if a child has attained an age and degree of maturity at which it is appropriate to take into account its views. That clause provides a second and separate defence based on the child’s own objection to returning which is evident from the meetings with Ms. Jones.

Ultimately, based on all the evidence, the judge set aside the order of the motion judge and ordered that the Ontario Superior Court had jurisdiction to determine the custody of and access to the parties’ three children. He also ordered that Mrs. Ojeikere have interim custody of the children and be permitted to remain with them in Ontario pending a further order of the court. Mr. Ojeikere shall have generous access to the children by telephone, email, other social media, or personal visit.

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