In some unfortunate instances following separation or divorce, children may be moved across international borders without the consent of the other parent and in violation of existing parenting arrangements or court orders. Parental abduction cases in which children are relocated to Ontario frequently raise questions regarding jurisdiction requiring Ontario courts to determine whether they may properly exercise authority over family parenting arrangements.

Section 19 of the Children’s Law Reform Act (CLRA) sets out the doctrine that governs issues of decision-making and parenting of children. This includes ensuring that decision-making responsibility, parenting time, and contact are determined on the basis of the best interests of the children; discouraging the abduction of children; and recognizing and enforcing orders made outside Ontario that grant decision-making responsibility, parenting time or contact with respect to a child.

When do Ontario Courts Have Jurisdiction Over Parenting Matters?

In Onuoha v. Onuoha, the mother unilaterally took the children from Nigeria to Ontario. The parties had previously divorced and entered into an agreement in Nigeria regarding parenting which was confirmed in a Divorce Order. The agreement provided for shared parenting time with each parent having unfettered access to the children while in the other’s care. The father did not consent to the mother’s move to Canada with the children and sought their return to Nigeria.

Citing the Ontario Court of Appeal decision in Ojeikere v. Ojeikere, the court outlined four grounds under the CLRA on which an Ontario court can assume jurisdiction over children:

• 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), where, although the child is not habitually resident in Ontario, the child is physically present in Ontario when the application is commenced, and the other requirements of the section are met;
• Under s. 23, where the child is not habitually resident in Ontario, but is 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, preserved by section 69 of the CLRA.

The father’s central argument was that the 2018 Divorce Order should be enforced and that the court should also order the return of the children. Section 41 of the CLRA deals with the enforcement of extra-provincial orders, providing that a court shall recognize an order dealing with decision-making responsibility, parenting time or contact with a child that is made by an extra-provincial tribunal unless the court is satisfied:

(a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;

(b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;

(c) that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;

(d) that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or

(e) that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario.

The mother opposed the recognition of the foreign order and bore the onus of satisfying the court that one of the listed exceptions was applicable. She pointed to section 41(1)(c), alleging that the Nigerian court did not adequately consider the best interests of the child in making the original Order. The court had difficulties with this argument as Nigerian legislation provided for the best interests of the children as the primary consideration in determining parenting rights. As well, the terms of the Divorce Order were reached on consent, with the mother originally agreeing that the arrangements in the Order were in the children’s best interests.

Removal of a Child Without Consent Undermines the Child’s Best Interests

Ordinarily, an extra-provincial Order is given substantial weight with courts respecting parenting and decision-making orders made outside of Ontario. Having determined that an Order should be recognized and enforced, courts consider whether a child has been wrongfully removed or retained within Ontario. The mother claimed that this was not an abduction within the meaning of the legislation, as the father consented to the children’s move and that Ontario courts could assume jurisdiction on the basis that the children’s habitual residence was in the province.

Importantly, the removal of a child without the consent of a person having parental rights to a child will not alter the habitual residence of a child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed. The legislation discourages child abductions, requires a child’s return to their habitual residence and reflects concern for a child’s best interests. As the Court of Appeal acknowledged in ­­­­­Ojeikere, “child abductions harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent’s interests over that of the child”. The court did not accept that the father had provided consent for the removal of the children to Canada and their presence in Ontario did not alter their habitual residence which remained Nigeria. In light of the Divorce Order, there was no basis for the court to assume jurisdiction under section 22(1)(b).

Courts May Assert Jurisdiction if Children Face Serious Risk

The legislative scheme dealing with an Ontario court’s jurisdiction aims to ensure that the best interests of children are advanced. Even when a child is wrongfully moved to Ontario and a parent refuses to return a child to their habitual residence, an Ontario court can assume jurisdiction to decide parenting and decision-making in situations when the child may face serious harm. This is provided for in section 23 of the CLRA. The mother cited this section and alleged that there was a serious risk of harm if the children returned to Nigeria. Courts have determined that when there is a risk of serious harm to a child, the objective of discouraging child abduction must yield to the best interests of the child. In ­­­­­Ojeikere, the court listed potentially relevant factors to consider when assessing serious harm, including:

a. The risk of physical harm;

b. The risk of psychological harm;

c. The views of the children; and

d. A parent’s claim that she would not return to Nigeria even if the children are required to do so.

The mother pointed to conditions in Nigeria that she alleged posed a risk, such as discrimination against girls, poor educational opportunities, and political instability. The court determined these concerns did not reach the level of “serious harm” also noting that there was no evidence on how the generalized country risk might apply to this family given the father’s social and economic status. The court recognized the provisions of the original Divorce Order and ordered the children be returned to Nigeria.

Preserving the Best Interests of the Child

In shared parenting arrangements, it is not open to a parent to undertake unilateral changes and move children across borders without the other parent’s consent. Determining whether an Ontario court may assert jurisdiction and decide parenting matters is complex, and courts can, in some cases, intervene in the face of a foreign court order if returning children places them at risk of serious harm.

The lawyers at Boulby Weinberg LLP are knowledgeable in resolving complex cross-border matters and is one of the select firms in Canada experienced in providing solutions with international child abduction cases. When necessary, our lawyers work with an international network of experts who can help find workable solutions to obtain favourable results. To arrange a consultation please complete our online questionnaire or contact the firm at 647-494-0113 ext. 102.