When Ontario courts can decide custody and access matters
The Ontario Court of Appeal recently decided a case where the mother, who had unilaterally taken the parties’ children from Nigeria to Ontario, sought custody of the children. In allowing the mother’s appeal from a decision that dismissed her original application, the court outlined the various factors it had to consider in deciding whether the Ontario court had jurisdiction to determine who should have custody of and access to the parties’ children.
The parties, who were both born in Nigeria, were married in 1994 and separated in 2012 or 2013.
After they were married, the parties moved to Canada, where they had three children. At the time of separation, both parties were again living in Nigeria.
In the summer of 2016, the parties agreed that the children could spend their summer holiday with the mother’s stepsister in British Columbia. The children were supposed to return to Nigeria in time for school in the fall. However, in August 2016, the mother took the children and moved to Ontario.
In November 2016, the mother brought an application in Ontario for custody of the children, among other relief. The father successfully brought a motion to stay the Ontario action on the ground that Ontario had no jurisdiction to determine custody of the children. As a result, the mother was ordered to return the children to Nigeria.
The mother appealed and brought a motion to stay the return order pending her appeal.
The mother’s motion was granted, and the Office of the Children’s Lawyer (OCL) was appointed to represent the children.
The legislative framework
The court began by explaining that this case was not governed by The Hague Convention (the Convention) because Nigeria is not a signatory to the Convention. As a result, the mother’s appeal had to be decided under the provisions of the Children’s Law Reform Act (CLRA).
The court outlined that an Ontario court can assume jurisdiction to make an order for custody of or access to a child on one of four different bases under the CLRA:
- Under s. 22(1)(a), if the child is “habitually resident” in Ontario at the time the application is commenced;
- Under s. 22(1)(b), if the child is physically present in Ontario at the time the application is commenced (even if not habitually resident in Ontario), 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;
- 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,
- Under the court’s parens patriae jurisdiction to protect children, preserved by s. 69.
The court’s decision
The court found that the motion judge correctly applied s. 22 of the CLRA and concluded that it did not give an Ontario court jurisdiction to decide the custody of or access to the children. Specifically, an Ontario court could not assume jurisdiction under s. 22 of the CLRA because the children were habitually resident in Nigeria before the mother took them to Ontario in August 2016 (as a parent cannot change a child’s habitual residence via abduction). Furthermore, when the mother brought her application in Ontario in November 2016, the father had already filed a petition for custody of the children in Nigeria.
However, the court concluded that an Ontario court should exercise jurisdiction under s. 23 of the CLRA because the children, who were physically present in Ontario, would suffer serious harm if returned to Nigeria.
In determining that the children would experience “serious harm” if returned to Nigeria, the court considered the following factors:
- The risk of physical harm;
- The risk of psychological harm;
- The views of the children; and
- The mother’s claim that she would not return to Nigeria even if the children were required to do so.
Risk of physical harm
All three children reported that their father angered easily, and that he had physically mistreated them when angry. For example, all three children indicated that the father sometimes hit the two brothers with sticks. As a result, the likelihood that the father would physically discipline the children with objects if they were returned to his care in Nigeria was high, and the likely severity of the harm was at least moderately high.
The risk of psychological harm and the views of the children
After having moved around and having gone to many different schools, the children now had some stability in their lives, and they wanted to maintain that stability.
All three children objected to returning to Nigeria because they believed Canada offered them better opportunities to pursue their goals in life.
The children perceived Nigeria as a place where “bad things happen” and their desire to stay in Ontario was reinforced by their citizenship.
As a result, the children would likely suffer serious psychological emotional harm if forced to return to Nigeria against their will, and the children’s collective desire to stay in Canada strengthened the weight of this factor.
The mother’s stated refusal to return to Nigeria
If the mother carried through with her stated intention not to return to Nigeria, her refusal would affect the children, emotionally and psychologically, as they would be separated from the parent who had been their primary caregiver for most of their lives.
The court focused principally on the risk of physical harm (compounded by the risk of psychological harm arising from the children’s views and objections), and found that the children would suffer serious harm if ordered to return to Nigeria. As a result, the court allowed the mother’s appeal, set aside the order of the motion judge, and granted the mother interim custody of the children.
Determining whether an Ontario court has jurisdiction to decide a custody matter is not always an easy task. If you need help or have questions about your separation or divorce, contact Gelman & Associates. Our knowledgeable, results-oriented lawyers seek to empower clients to make informed decisions following the breakdown of a relationship. In addition to our firm’s handbook on separation and divorce and numerous web-based resources, all prospective clients are given a comprehensive family law kit during their initial consultation, with detailed information and resources to help individuals understand and navigate the separation and divorce process.