An Ontario appeals court has sent three children back to Nigeria and their father’s custody, rejecting their mother’s arguments that she could not have a fair shake in that country because of patriarchal attitudes and anti-gay bias. The case of Olubukola Ajayi and Eyitope Ajayi is one of a growing number of disputes in Canada raising concerns about international child abduction against arguments of unfairness and discrimination in foreign jurisdictions. Ms. Ajayi argued in court that she was justified in bringing their three young children to Canada without their father’s consent last November because of discrimination, abuse (which Mr. Ajayi denies perpetrating), patriarchal attitudes and family influence of her ex-husband in Nigeria. She asked the Ontario Superior Court to assume jurisdiction over the couple’s parenting matters and grant her sole decision-making authority over the children. On the same day, Mr Ajayi asked a Nigerian court to dissolve the marriage. In Nigeria, homosexual acts can be punishable by prison terms. Mr Ajayi made reference in a court document filed in Nigeria that Ms Ajayi is associated with the LGBTQ community. That forced Ontario judges, in an initial ruling and an appeal, to grapple with how Nigeria’s legal system works and determine whether its courts would put children first. “I ran here just to protect my rights as their mother,” Ms. Ajayi, who trained as a lawyer in Nigeria, said in an interview. Both she and her ex-husband are dual citizens of Canada and Nigeria, as are the children. Mrs. Ajayi traveled to Canada to deliver the children here. But the courts here, he said, “didn’t understand how being a man in Nigeria gives you all this extra privilege and power. I never planned to alienate my children from their father and his family. But I knew that’s what they wanted to do to me in Nigeria.” Paul Riley, the father’s lawyer, said the ruling shows Ontario courts will stand up to child abduction. “I think what the decision this week shows is that Canada is not going to embrace those who are involved in child abduction. You are not going to leave your country and then be wrapped in the warm embrace of Ontario’s justice system.” Canada is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which sets out the legal rules for returning children to their home jurisdiction. However, Nigeria is not a party to the convention and Ontario law provides that provincial courts can take jurisdiction in such a case when it is satisfied that the foreign country is not in the best interests of the children. A two-woman, one-man panel of the Ontario Divisional Court issued a written decision this week explaining why they had upheld Family Court Judge Tracy Engelking’s decision to decline jurisdiction in the case. Having taken the children without her consent, Ms Ajayi had to show they would be seriously harmed if they were returned to Nigeria, Judge Elizabeth Sheard, Judge Katherine Swinton and Judge David Aston said. The judges said they accepted Judge Engelking’s ruling from May that Ms Ajayi did not. Justice Engelking found that Ms. Ajayi had only said she might be asexual and that Mr. Ajayi himself had testified in Ontario that he supports gay rights. An expert on Nigerian law testified that none of this would be a factor in determining the best interests of children in a Nigerian court. Judge Engelking also ruled that the children were not in danger of harming their father, noting that Ms. Ajayi had left the two older children in their father’s care for an extended period of time when she came to Canada to give birth. Regarding the influence of the father’s family, Justice Engelking pointed out that Ms Ajayi’s mother is a high court judge in Nigeria. The children are now back in Nigeria. Ms Ajayi said she would not return to Nigeria, but her lawyers would fight in that country for her primary custody, “and to return them back to me”. Failing that, they will request access to a video call and vacation with Ms. Ajayi in Ottawa. Nigerian students challenge English language proficiency requirements as unnecessary and discriminatory Nicholas Bala, a professor specializing in family law at Queen’s University, said more mobile societies have created increasing numbers of international family law disputes. “In the absence of compelling evidence of abuse or discrimination, it is appropriate to send these cases back to the country of origin – which also has the effect of telling people that Canada is not going to become a haven for child abduction,” he said. He said it’s also a “balance sheet.” In some countries, politics can be mistakenly involved in family law disputes. “I think the court is satisfied that Nigeria in 2022 is not one of those countries.” Ms. Ajayi’s lawyer, Valerie Akujobi, said it is challenging when Canadian courts have to make decisions based in part on attitudes and feelings in a foreign jurisdiction. “The court is trying to strike the right balance. In this case, we just felt that some aspects were perhaps lost in translation.”
