An appeal court in Ontario has sent three children back to Nigeria to be under their father’s custody after rejecting the arguments of their mother that she couldn’t obtain a fair shake in Nigeria owing to patriarchal attitudes and anti-gay prejudice.
The case between Eyitope Ajayi and Olubukola Ajayi is one of the growing number of disputes in Canada that sparked concerns over international child abduction in opposition to arguments about unfairness and discrimination in jurisdictions outside Canada.
In court, Ms Ajayi argued that she was justified in relocating their three young children to Canada without the consent of their father last November, owing to discrimination, abuse (that Mr Ajayi said he never committed), forbearing attitudes and the influence of her ex-husband’s family in Nigeria.
She requested that the Ontario Superior Court assume jurisdiction over their parenting issues and grant her sole decision-making power over the children.
Mr Ajayi asked a Nigerian court to end the marriage that same day.
Homosexual practices attract jail sentences in Nigeria. In a court document filed in Nigeria, Mr Ajayi made reference to Ms Ajayi being connected to the LGBTQ community. That made Ontario judges, during an initial ruling and an appeal grapple with the way Nigeria’s legal system operates, and adjudicate whether its courts would place the children first.
During an interview, Ms Ajayi, a Nigeria-trained lawyer, said: “I ran here just for a fair shot at protecting my rights as their mom.” She, her ex-husband and her children are citizens of Canada and Nigeria as she travelled to Canada to give birth to the children.
According to her, the courts in Canada “did not understand how being a man in Nigeria gives all this extra privilege and power. I had never planned to alienate my children from their father and his family. But I knew that that’s what they wanted to do to me in Nigeria.”
Paul Riley, Mr Ajayi’s lawyer, said the decision proved that Ontario courts will go against child abduction.
“I think what the decision shows this week is that Canada is not going to embrace those who involve themselves in child abduction. You are not going to leave your country and then wrap yourselves in the warm embrace of the Ontario judicial system.”
While Canada is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which sets the legal rules for taking back children to their home jurisdiction, Nigeria is not a member of the convention. Ontario law’s provision empowers Ontario’s courts to take jurisdiction in such a case where it is proven that the foreign country does not put the best interest of children first.
A panel of Ontario’s Divisional Court comprising two women and one man released a written ruling recently to explain why they upheld the decision of Family Court Justice Tracy Engelking to reject jurisdiction as far as the case is concerned. Having taken custody of the children without consent, Ms Ajayi must prove they would suffer severe harm if returned to Nigeria, Justice David Aston, Justice Elizabeth Sheard and Justice Katherine Swinton said.
The judges made it known that Justice Engelking’s ruling from May that Ms Ajayi had failed to do so was accepted by them. Justice Engelking discovered that Ms Ajayi had only said she might be asexual and that her ex-husband testified in Ontario that he is a supporter of gay rights. A Nigerian law expert testified that these won’t be reckoned with when determining the best interests of children in a Nigerian court.
Also, Justice Engelking ruled the children would not be at the risk of harm with their father and noted that Ms Ajayi had left the two older children under their father’s care for a long period of time when she travelled to Canada to give birth. As for the father’s family’s influence, Justice Engelking pointed out that Ms Ajayi’s mother is a superior court judge in Nigeria.
The children are back in Nigeria but Ms Ajayi said she would not return to Nigeria but her lawyers will fight in Nigeria for primary custody for her, “and to have them returned back to me.” If the lawyers do not succeed, they will request video call access and holidays with their mother in Ottawa.
Ms Ajayi’s lawyer, Valerie Akujobi said: “The court does try to strike the right balance; in this case, we just felt that certain aspects had been perhaps lost in translation.”
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