



COURT OF APPEAL FOR ONTARIO

CITATION: Ojeikere v. Ojeikere, 2018 ONCA 372

DATE: 20180417

DOCKET: C63775

Laskin, Feldman and Miller JJ.A.

BETWEEN

Atinuke Taibat Ojeikere

Applicant (Appellant)

and

Paul Olakunle Ojeikere

Respondent (Respondent)

Atinuke Taibat Ojeikere, acting in person

Jane Long of the Office of the Childrens Lawyer, for
    the children

Shana Maiato, for the respondent

Heard: August 23, 2017

On appeal from the order of Justice Joseph M. Fragomeni
    of the Superior Court of Justice, dated April 21, 2017.

Laskin J.A.:

[1]

Does a court in Nigeria or in Ontario have jurisdiction to decide who should
    have custody of and access to the Ojeikeres three adolescent children? The
    respondent, Mr. Ojeikere, contends  and the motion judge found  that a
    Nigerian court has jurisdiction; the appellant, Mrs. Ojeikere, and the Office
    of the Childrens Lawyer (OCL) both contend that an Ontario court has jurisdiction.
    I conclude that Ontario should exercise jurisdiction under s. 23 of the
Childrens
    Law Reform Act
because I am satisfied that on a balance of probabilities the
    children would suffer serious harm if required to return to Nigeria.

A.

factual overview

[2]

Mr. and Mrs. Ojeikere were born in Nigeria and married there in 1994.
    They have three children: Sam, who is 15; Tomi, who is 14; and Elizabeth, who
    is 12. All three children are Canadian citizens. After their marriage, Mr. and
    Mrs. Ojeikere moved first to England in 1996, then to Ontario in 1998, and
    eventually, at separate times, back to Nigeria.

[3]

In 2003, Mr. Ojeikere took a job in Abuja, Nigeria. Since then he has
    remained in Nigeria. In 2010, he fathered a child with another woman. And he is
    now living with another partner.

[4]

Between 2005 and 2011, Mrs. Ojeikere lived with the three children in
    Mississauga. Mr. Ojeikere visited them from six to eight weeks every year. In
    2011, in an attempt to salvage her marriage, Mrs. Ojeikere and the children
    returned to Nigeria to live with Mr. Ojeikere. Her attempt was unsuccessful. In
    2012 or 2013, the parties separated. Nonetheless, Mrs. Ojeikere remained in
    Nigeria until 2016.

[5]

In the summer of 2016, Mr. and Mrs. Ojeikere agreed that the children
    could spend their summer holiday with Mr. Ojeikeres step-sister in British
    Columbia. They were to return to Nigeria in time for school in the fall. However,
    in August 2016, Mrs. Ojeikere went to the step-sisters home, took the three
    children, and moved to an address in Mississauga. She refused to disclose the
    address to Mr. Ojeikere. The motion judge found that Mrs. Ojeikere acted
    unilaterally, without Mr. Ojeikeres consent, or even his knowledge.

[6]

Later in August 2016, Mr. Ojeikere filed a notice of petition in Abuja,
    in which he sought a decree dissolving the marriage, as well as custody of the
    children. He obtained an order for substituted service of the petition on Mrs.
    Ojeikere at her last known address in Nigeria. From the record, it appears that
    Mr. Ojeikeres petition is still outstanding in and that no other court order
    has been made in connection with it.

[7]

In November 2016, three months after Mr. Ojeikere filed his petition in
    Nigeria, Mrs. Ojeikere brought an application in Ontario for custody of the
    children and other relief not material to this appeal. Mr. Ojeikere then moved
    to stay the Ontario action on the ground that an Ontario court had no
    jurisdiction to decide the custody of the three children. The motion judge
    granted the stay and ordered that the children be returned to Nigeria in the
    care of their father until their mother returned to Nigeria. He ruled that from
    2011-2016, the entire family was domiciled in Nigeria. He ruled in the
    alternative that Nigeria is the appropriate forum to decide the childrens
    custody.

[8]

Mrs. Ojeikere filed a notice of appeal, as well as a notice of motion,
    which asked this court stay the return order pending the appeal. On May 31,
    2017, Simmons J.A. adjourned the motion to permit the OCL to decide whether to
    participate in the appeal, and she ordered that the children stay in Ontario
    pending the resolution of the motion. On June 7, 2017, Miller J.A. granted an
    interim stay of the motion judges order pending the hearing of the appeal. He
    also 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.

[9]

After hearing oral argument on the appeal, this panel continued the stay
    ordered by Miller J.A. pending our decision, on two conditions: Mrs. Ojeikere
    will encourage and facilitate contact between all three children and Mr.
    Ojeikere by telephone, email, or other media; and, should Mr. Ojeikere wish to
    come to Ontario to see the children, Mrs. Ojeikere will facilitate the visit.

B.

the issues

[10]

This
    case is not governed by the
Convention on the Civil Aspects of
    International Child Abduction
, 25 October 1980, Can. T.S. 1983 No. 35, 19
    I.L.M. 1501 (entered into force December 1, 1983), commonly known as
The Hague
    Convention
, because Nigeria is not a signatory to the
Convention
.
    Thus, the issues on this appeal must be decided under the provisions of
    Ontarios
Childrens Law Reform Act
,
    R.S.O. 1990, c. C.12 (
CLRA

)
. This appeal raises two
    issues under that statute:

1.

Did the motion judge err in ruling that under s. 22 of the
CLRA
an Ontario court does not have jurisdiction?

2.

Despite s. 22 of the
CLRA
, should an Ontario court exercise
    jurisdiction under s. 23 of the
CLRA
because the three children are
    physically present in Ontario and would suffer serious harm if returned to
    Nigeria?

[11]

I
    would answer no to the question raised by the first issue. The motion judge did
    not err. The second issue was not raised before the motion judge and turns
    almost entirely on the fresh evidence filed by the OCL on this appeal. Having
    considered this evidence, I have concluded that, despite the motion judges
    conclusion on s. 22, an Ontario court should exercise jurisdiction because the
    children, who are physically present in Ontario, would suffer serious harm if
    returned to Nigeria. I would therefore allow Mrs. Ojeikeres appeal, set aside
    the order of the motion judge, order that the Ontario Superior Court has
    jurisdiction to determine the custody of and access to the children, and
    finally order that Mrs. Ojeikere have interim custody of the children with
    generous access to Mr. Ojeikere pending a further order of the court.

C.

The Statutory regime: The four bases for an Ontario courts jurisdiction

[12]

Under
    the
CLRA
,
an Ontario
    court can assume jurisdiction to make an order for custody of or access to a
    child on any one of four bases:

·

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 though not habitually resident in Ontario,
    the child is physically present in Ontario at the time the application is
    commenced, 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
courts
parens
    patriae
jurisdiction to protect children, preserved by s. 69.

[13]

All
    four provisions are found in Part III of the
CLRA
. Section 19 sets out
    the overall purposes of Part III
[1]
.
    In substance, there are five purposes:

·

To ensure that custody and access applications will be determined
    on the basis of the best interests of the children;

·

To avoid the concurrent exercise of jurisdiction by tribunals in
    different places;

·

To provide that, save in exceptional circumstances, an Ontario
    court will decline jurisdiction where custody and access are more appropriately
    determined by a tribunal having jurisdiction in another place with which the
    child has a closer connection;

·

To discourage the abduction of children as an alternative to the
    determination of custody rights by due process; and

·

To provide for the more effective enforcement of custody and
    access orders and for the recognition and enforcement of these orders made
    outside Canada.

These general purposes set out in s. 19 must guide the
    interpretation and application of ss. 22 and 23, the provisions in issue on
    this appeal.

[14]

The
    specific purposes of s. 22 include deterring parties from shopping for a
    forum to decide their custody dispute, and importantly, discouraging child
    abduction. See
Brooks v. Brooks
(1998), 163 D.L.R. (4th) 715 (Ont.
    C.A.), at para. 22.

[15]

Neither
    s. 22(1)(a) nor s. 22(1)(b) is itself a best interests test  neither provision
    asks the court to consider the childs needs and circumstances as set out in s.
    24(1)
[2]
and the catalogue of best interests considerations listed in s. 24 (2)

[16]

But
    the policy behind discouraging child abduction and requiring a summary return
    to habitual residence does reflect the Legislatures overriding concern with a
    childs best interests. Child abductions ordinarily harm children, undermine
    the important goal of maximizing contact between a child and both parents, and
    often promote a parents interests over that of the child.

[17]

Sections
    23 and 69 also reflect the Legislatures overriding concern with childrens best
    interests. Under s. 23, even where a parent abducts a child to Ontario, or
    withholds a child in Ontario and refuses to return the child to the childs
    habitual residence, an Ontario court may still assert jurisdiction to decide
    custody and access in situations where the child faces potentially serious harm.

[18]

No
    party argued that the court should act under s. 69 of the
CLRA
, and I
    see no grounds for doing so. The motion judge decided the motion under s. 22
    and I see no error in his application of that section. However, s. 23 allows
    for an Ontario court to assume jurisdiction even if the requirements of s. 22
    are not met, and it is under that provision that I have determined the appeal
    should be allowed.

D.

discussion

(1)

The motion judge did not err in ruling that an Ontario court does not
    have jurisdiction under s. 22 of the
CLRA

[19]

Section
    22 gives an Ontario court two bases to assume jurisdiction and make a custody
    order: habitual residence of the child in Ontario; or physical presence of the
    child in Ontario, as long as the other specified requirements of the section
    are met.

(a)

Habitual Residence

[20]

Under
    s. 22(1)(a) of the
CLRA
a court shall only exercise its jurisdiction
    to make an order for custody of or access to a child where the child is
    habitually resident in Ontario at the commencement of the application for the
    order. The OCL concedes that the Ojeikeres three children were habitually
    resident in Nigeria before Mrs. Ojeikere wrongfully took them to Mississauga in
    August 2016. The OCL also concedes that Mrs. Ojeikere could not change the
    childrens place of habitual residence by abducting them. I agree with the
    OCLs concessions.

[21]

Habitual
    residence is defined in s. 22(2) of the
CLRA
:

A child is habitually resident in the place where he or she
    resided,

(a) with both
    parents;

(b) where the
    parents are living separate and apart, with one parent under a separation
    agreement or with the consent, implied consent or acquiescence of the other or
    under a court order; or

(c) With a person
    other than a parent on a permanent basis for a significant period of time,
    whichever last occurred.

[22]

The
    Ojeikeres three children resided with their parents in Nigeria for the five
    years preceding the court applications. Thus, the children were habitually
    resident in Nigeria under s. 22(2)(a) of the
CLRA
.

[23]

Subsection
    22(3) expressly stipulates that a parent cannot change a childs habitual
    residence by abducting the child:

The removal or withholding of a child without the consent of
    the person having custody of the child does not alter the habitual residence of
    the child unless there has been acquiescence or undue delay in commencing due
    process by the person from whom the child is removed or withheld.

[24]

On
    the record before us and the finding of the motion judge, Mr. Ojeikere did not
    consent to allowing the three children to remain in Ontario or even in Canada
    after their summer vacation in 2016. Nor did he acquiesce in their staying
    here; he promptly began custody proceedings in Nigeria following the childrens
    abduction.

[25]

In
    holding that the children were domiciled in Nigeria, the motion judge said as
    follows at para. 18 of his decision:

I am satisfied that from 2011 to 2016 the entire family was
    domiciled in Nigeria. The fact that the children were away from home while
    attending boarding school does not eliminate the reality that the family
    resided in Nigeria. The wife cannot unilaterally and without the consent or
    knowledge of the husband withhold the children in Ontario and then claim that
    they are now resident there. This conduct does not establish a status quo.

[26]

I
    agree. I assume that in using the word domiciled the motion judge meant
    habitually resident. Because the trial judge found that the three Ojeikere
    children were habitually resident in Nigeria, despite their time in boarding
    schools and despite their abduction to Ontario, s. 22(1)(a) of the
CLRA
provides no basis for an Ontario court to assume jurisdiction over the children.

(b)

Physical presence and other requirements

[27]

Paragraph
    22(1)(b) of the
CLRA
provides that an Ontario court may assume jurisdiction
    if six criteria are met:

22 (1) A court shall only exercise its jurisdiction to make an
    order for custody of or access to a child where,

(b) although the child is not habitually resident in Ontario,
    the court is satisfied,

(I)

that the child is physically present in Ontario at the commencement of
    the application for the order,

(II)

that substantial evidence concerning the best interests of the child is
    available in Ontario,

(III)

that no application for custody of or access to the child is pending
    before an extra-provincial tribunal in another place where the child is
    habitually resident,

(IV)

that no extra-provincial order in respect of custody of or access to the
    child has been recognized by a court in Ontario,

(V)

that the child has a real and substantial connection with Ontario, and

(VI)

that, on the balance of convenience, it is appropriate for jurisdiction
    to be exercised in Ontario. [Emphasis added.]

[28]

As
    this court said in
Wang v. Lin
, 2013 ONCA 33, 358 DLR (4th) 452, s.
    22(1)(b) must be read conjunctively. An Ontario court can only exercise
    jurisdiction under this provision if all six of the enumerated criteria are
    met.

[29]

When
    Mrs. Ojeikere brought her application in Ontario in November 2016, the three
    children were physically present in Ontario, thus satisfying the first criterion
    under s. 22(1)(b). The fourth criterion is also satisfied as an Ontario court has
    not recognized any extra-provincial custody order; indeed none has been made.

[30]

The
    OCL put forward evidence to try to satisfy the second, fifth, and sixth
    criteria: best interests, real and substantial connection, and balance of
    convenience. Even accepting that the evidence satisfies these three criteria,
    s. 22(1)(b) affords no basis for an Ontario court to assume jurisdiction
    because the third criterion cannot be satisfied.

[31]

An
    Ontario court cannot assume jurisdiction to make a custody order if at the time
    of the application in Ontario, an application for custody was pending in
    another place where the child is habitually resident. In other words, a party
    cannot ask an Ontario court to assume jurisdiction to avoid proceedings already
    started elsewhere.

[32]

Mr.
    Ojeikere filed a petition for custody of the three children in Abuja, Nigeria
    three months before Mrs. Ojeikere brought her application in Ontario. At the
    time Mr. Ojeikere filed his petition, the three children were habitually
    resident in Abuja. Thus, s. 22(1)(b)(iii) stands as a bar to an Ontario courts
    jurisdiction.

[33]

To
    avoid the application of s. 22(1)(b)(iii), the OCL relies on
Chaudry v.
    Kahn
, 2016 ONSC 7773, 96 R.F.L. (7th) 418, where Corbett J. exercised his
    discretion to assume jurisdiction under s. 22(1)(b), even though a proceeding
    had been started by the father in Bahrain before the mother started a
    proceeding in Ontario. Justice Corbett held that, as the Bahrain proceeding was
    started after the mother left the country, and as she had no notice of it, or
    any opportunity to participate in it, it was not a pending proceeding under
    s. 22(1)(b)(iii).

[34]

The
    facts in
Chaudry
were unusual and likely drove the result. Without
    commenting on its correctness, I say simply that the language of s.
    22(1)(b)(iii) is clear and unambiguous. At the time of Mrs. Ojeikeres
    application in Ontario, a proceeding was pending in Nigeria. And, relying on
    the affidavit of a Nigerian lawyer, the motion judge found that Mr. Ojeikeres
    petition was properly constituted.

[35]

Also,
    the motion judge found that Mrs. Ojeikere was aware of the Nigerian
    proceedings. She claims otherwise. Even accepting her denial, she can hardly
    complain about the order for substituted service when she refused to disclose
    her whereabouts to her husband.

[36]

The
    motion judge correctly applied s. 22 of the
CLRA
and found that it did
    not give an Ontario court jurisdiction to decide the custody of or access to
    the Ojeikeres children. I turn now to the issue on which I would allow this
    appeal: serious harm under s. 23 of
CLRA
.

(2)

Despite s. 22, an Ontario court should exercise jurisdiction under s. 23
    of the
CLRA

[37]

Section
    23 provides:

Despite sections 22 and 41, a court may exercise its
    jurisdiction to make or to vary an order in respect of the custody of or access
    to a child where,

(a)

the child is physically present in
    Ontario; and

(b)

the court is satisfied that the
    child would, on the balance of probabilities, suffer serious harm if,


(i)

the child remains in the custody of the person legally entitled to
    custody of the child,


(ii)

the child is returned to the custody of the person legally entitled to
    custody of the child, or


(iii)

the child is removed from Ontario.

[38]

Because
    the Ojeikeres three children are physically present in Ontario, under s. 23(b)
    an Ontario court can exercise jurisdiction over their custody or access if
    satisfied that the children would, on a balance of probabilities, suffer
    serious harm if they were sent back to Nigeria.

[39]

Justice
    Weiler commented on s. 23 in her reasons in
H.E. v. M.M.,
2015 ONCA
    813, 393 DLR (4th) 267. Because the provision is triggered when a child is
    physically present in Ontario even if the child has been wrongfully brought to this
    province, s. 23 can override s. 22. Section 22s aim of discouraging child
    abduction becomes secondary to s. 23s aim of preventing serious harm to the
    child. As Weiler J.A. wrote at para. 87: [W]hen there is a risk of serious
    harm to the child, the aim of discouraging child abduction must yield to
    another purpose of the
CLRA
, namely, the best interests of the child.

[40]

Section
    23 of the
CLRA
is discretionary. Under s. 25, a court with jurisdiction
    over custody or access may decline to exercise its jurisdiction where it is of
    the opinion that another jurisdiction is more appropriate. Although s. 25 could
    potentially qualify the courts discretion under s. 23, I find it hard to
    conceive that an Ontario court would decline jurisdiction under s. 23 if
    satisfied a child would suffer serious harm if removed from the province.

(a)

The fresh evidence and its admissibility

[41]

The
    question whether Mr. and Mrs. Ojeikeres three children would suffer serious
    harm if they were ordered to return to Nigeria turns almost entirely on the
    fresh evidence filed on this appeal by the OCL. This evidence was filed in
    accordance with the order of Miller J.A. The evidence consists of the affidavit
    of Andrea Jones, an in-house clinician at the OCL, and numerous school records
    for each of the three children.

[42]

The
    fresh evidence is somewhat unusual. In many disputes where jurisdiction to
    decide custody is disputed, the sole evidence comes from the parents. The
    neutrality of such evidence is usually questionable.

[43]

In
    this case, Ms. Jones, impartial to the parents interests, interviewed each of
    the children several times. Neither parent was present during these interviews.
    Ms. Jones affidavit contains a detailed summary of the interviews. Thus through
    her, we have independent evidence of the childrens wishes, their feelings
    about their parents, and their objections to returning to Nigeria. Ms. Jones
    also interviewed Mr. and Mrs. Ojeikere, by telephone and in person,
    respectively.

[44]

Mr.
    Ojeikere does not object to the evidence from the children contained in Ms.
    Jones affidavit. He does object to the opinions she expresses and to the
    limited scope of the OCLs investigation. And he maintains that even accepting
    all of Ms. Jones affidavit evidence, that evidence does not show the children
    would suffer serious harm if ordered to return to Nigeria.

[45]

Before
    discussing the fresh evidence and Mr. Ojeikeres concerns about it, we have to
    rule on its admissibility. Although the evidence was filed in accordance with
    Miller J.A.s order, its admissibility is a matter for the panel hearing the
    appeal. Under s. 134(4)(b) of the
Courts of Justice Act
, R.S.O. 1990,
    c. C.43, in a civil (or family law) appeal, this court may, in a proper case 
    receive further evidence.

[46]

Over
    the years, this court has applied two different tests for the admission of
    fresh evidence in a civil appeal: the long-standing test in
R. v. Palmer
,
[1980] 1 SCR 789, typically used in
    criminal appeals, and reformulated by this court in
Re Truscott
,
2007 ONCA 575, 225 C.C.C. (3d) 321; and
    the test in
Sengmueller v. Sengmueller
(1994),
17 O.R. (3d) 208 (C.A.). See
Re Chiang
,
2009 ONCA 3, 93 O.R. (3d) 483, at paras.
    73-77 for a list of the cases in which this court has applied each test.

[47]

The
    two tests are not materially different, though the
Sengmueller
test
    may be perhaps more demanding. In this case, nothing turns on the difference. I
    would admit the fresh evidence under either test. Importantly, both tests are
    applied more flexibly in custody or child welfare cases to allow the court to
    have up to date information about a child and the childs best interests. See
H.E.
,
at paras. 71-75.

[48]

For
    simplicity, I will apply the test in
Sengmueller
. Under this test,
    fresh evidence is admissible if the OCL can show that the evidence:

·

Is credible;

·

Could not have been obtained by reasonable diligence before trial
    or motion; and

·

Would likely be conclusive of an issue on the appeal
[3]
.

[49]

Ms.
    Jones evidence of her interviews with the children and their parents, and the
    school records, is undoubtedly credible. The evidence could have been obtained
    and put before the motion judge had the OCL intervened earlier in these
    proceedings. But I would not rely on any failure to meet the diligence
    requirement to preclude the admission of the fresh evidence. This court needs
    the evidence filed by the OCL to properly assess serious harm. Finally, in my
    opinion, the evidence is likely conclusive of the principal issue on this
    appeal: would the children suffer serious harm if required to return to
    Nigeria?

[50]

I
    would therefore admit the fresh evidence. Ms. Jones summary of her interviews
    with the children is critically important. I would, however, discount her
    opinion evidence as she was not qualified as an expert. See
Childrens Aid
    Society of Toronto v. C.J.W.
,
2017 ONCJ 212, [2017] W.D.F.L. 2155, at para. 22.

(b)

The meaning of serious harm

[51]

In
    this section I will discuss the meaning of serious harm and the factors
    relevant to its application in this case.

[52]

As
    I have said, under s. 23 of
CLRA
, an Ontario court can exercise jurisdiction
    over the custody of a child and refuse to order the childs return to the
    childs habitual residence where satisfied that the return would, on a balance
    of probabilities, cause serious harm. Case law on the meaning of serious
    harm relies on a similar, though not identical provision in
The Hague Convention.
Under art. 13(b) of the
Convention
, an Ontario court would not be
    bound to order the return of the child if the person opposing the return
    establishes that there is a grave risk that his or her return would expose the
    child to physical or psychological harm or otherwise place the child in an
    intolerable situation.

[53]

Despite
    the difference in language, in their interpretation, courts appear largely to
    have equated the standard of serious harm in s. 23 of the
CLRA
with
    the standard of grave risk [of] expos[ing] the child to physical or psychological
    harm or otherwise plac[ing] the child in an intolerable situation in art. 13(b)
    of the
Convention
.

[54]

The
    leading Supreme Court of Canada case on the meaning of grave risk of harm and
    serious harm, decided nearly a quarter of a century ago, is still
Thomson
    v. Thomson
,
[1994] 3 S.C.R.
    551.
Thomson
was a Manitoba case decided under the
Convention
.
    But La Forest J., who wrote the majority reasons, also considered s. 5 of the
    Manitoba statute, which, like s. 23 of Ontario
CLRA
, used the standard
    of serious harm without mentioning an intolerable situation. Despite the
    different language between the two provisions, he held at page 596: [T]he inconsistencies
    between the
Convention
and the
Act
are not so great as to
    mandate the application of a significantly different test of harm.

[55]

Justice
    La Forest then discussed the meaning of grave risk of harm under art. 13(b)
    of the
Convention
. Relying in part on an English decision, he held
    that the harm could be physical or psychological, but that the standard is
    stringent  the harm from the childs return must be sufficient to amount to
    an intolerable situation:

It has been
    generally accepted that the Convention mandates a more stringent test than that
    advanced by the appellant. In brief, although the word "grave"
    modifies "risk" and not "harm", this must be read in
    conjunction with the clause "
or otherwise
place the child in an
    intolerable situation". The use of the word "otherwise" points
    inescapably to the conclusion that the physical or psychological harm
    contemplated by the first clause of Article 13(b) is harm to a degree that also
    amounts to an intolerable situation.

Nourse L.J., in my
    view correctly, expressed the approach that should be taken, at p. 372:

the risk has to
    be more than an ordinary risk, or something greater than would normally be
    expected on taking a child away from one parent and passing him to another. I
    agree ... that not only must the risk be a weighty one, but that it must be one
    of substantial, and not trivial, psychological harm.  That, as it seems to
    me, is the effect of the words or otherwise place the child in an intolerable
    situation.

I hasten to add,
    however, that I do not accept Twaddle J.A.'s assessment that the risk
    contemplated by the Convention must come from a cause related to the return of
    the child to the other parent and not merely from the removal of the child from
    his present caregiver. As this Court stated in
Young v. Young
,
1993
    CanLII 34 (SCC)
, [1993]
    4 S.C.R. 3, from a child centred perspective, harm is harm. If the harm were
    severe enough to meet the stringent test of the Convention, it would be
    irrelevant from whence it came. [Emphasis in original.]

[56]

Ontario
    courts typically have used this passage for the meaning of serious harm under
    s. 23 of the
CLRA
. Undoubtedly, as La Forest J. said, the harm can be
    physical or psychological or both, and it must be greater than would ordinarily
    be expected from taking a child from one parent and returning the child to the
    other parent.

[57]

Still,
    in
Thomson
, La Forest J. acknowledged that the standard in the
Convention
and the standard in the legislation (in that case Manitobas) are expressed in
    different terms. He did not discuss the significance of the difference in any
    detail. Instead, he concluded that [i]n view of the findings that the facts
    [in
Thomson
] did not meet the tests of harm either as expressed in the
    Convention or the Act,
I need not delve into this issue
(emphasis
    added). The harm alleged in that case was psychological harm upon separation
    from a parent, and would not have met the requirements of either the statutory or
    the art. 13(b) standard.

[58]

I
    conclude that the standard of serious harm required by s. 23 of the
CLRA
is less stringent than the standard under art. 13(b) of the
Convention
.

[59]

The
    main reason for my conclusion is the difference in language. It seems to me the
    words intolerable situation in art. 13(b) of the
Convention
import a
    more stringent standard than simply serious harm under s. 23 of the
CLRA
.
And the Legislature must be taken to have been aware of the terms of the
Convention

when it enacted s. 23. The
Convention
was signed in 1980. Part III
    of the
CLRA
, which includes s. 23, was enacted in 1982 (see S.O. 1982,
    c. 20) and expressly incorporates the
Convention

into Ontario
    law in s. 46. Yet the qualifying words, an intolerable situation, found in art.
    13(b), and on which La Forest J. relied on in
Thomson
, are absent from
    s. 23. As a matter of statutory interpretation, the Legislature must be taken
    to have intended not to use these uncompromising words to qualify serious
    harm: Ruth Sullivan,
Statutory Interpretation
, 3rd ed.

(Toronto:
    Irwin Law, 2016), at p. 42. See e.g.:
Canada (Canadian Human Rights
    Commission) v. Canada (Attorney General)
, 2011 SCC 53, [2011] 3 SCR 471, at
    para. 45. Thus statutory interpretation alone argues for a less stringent
    standard of harm under s. 23.

[60]

There
    is perhaps a second reason why the s. 23 standard should be less stringent. I
    expect that the standard under the
Convention
is exacting, at least in
    part, because under the preamble to the
Convention
all signatories
    accept and are firmly convinced that the interests of children are of
    paramount importance in matters related to their custody. Signatories have
    accepted this principle and its enforcement by their agreement to adhere to
    their reciprocal obligations under the
Convention
.
In
Hague
    Convention

cases Ontario courts can have confidence that whatever
    jurisdiction decides on a childs custody it will do so on the basis of the
    childs best interests. Ontario courts cannot always have the same confidence
    in s. 23 cases

[61]

Section
    23 applies to cases where a country with potential jurisdiction over the
    custody of a child is not a signatory to the
Convention
. Their custody
    laws may differ from ours. In cases decided under s. 23, an Ontario court will
    not always have the same assurance that a non-signatory country will, as
    Ontario does, put the best interests of children first. Some non-signatory
    countries may do so; others may not.

[62]

Both
    art. 13(b) and s. 23 do, however, have one feature in common. Both require the
    court to assess the risk of harm. The
Convention
explicitly requires a
    risk assessment: the court must assess whether returning the child to the
    childs place of habitual residence would give rise to a grave risk of harm.
    Section 23 does not use the word risk. But under s. 23, an Ontario court must
    still assess the possibility or risk of harm if the child is removed from
    Ontario. Under s. 23, the court is not assessing harm from a past event; it
    must predict future harm, in other words the risk of harm. As with any risk assessment,
    the court must assess both likelihood and severity, in this case the likelihood
    of future harm, and the severity of future harm.

(c)

The factors to assess serious harm in the present case

[63]

As
    important as the meaning of serious harm are the factors relevant to its
    application. Under s. 23, an Ontario court has discretion to refuse to order a
    childs return to the childs place of habitual residence. That discretion should
    be structured by a list of relevant factors. The relevant factors will vary
    from case to case. In some cases, one factor may decisively show serious
    harm; in other cases a combination of relevant factors may do so. In this case,
    I have concluded that a combination of factors, taken together, give rise to a
    risk that the three children would suffer serious harm if they are required to
    return to Nigeria. I emphasize, however, that the factors I rely on in this
    case are particular to its facts, and should not be taken as a list of factors
    relevant to every s. 23 case.

[64]

For
    determining serious harm for the Ojeikeres three children, I consider the potentially
    relevant factors to include:


(i)

The risk of physical harm


(ii)

The risk of psychological harm


(iii)

The views of the children


(iv)

Mrs. Ojeikeres claim she will not return to Nigeria even if the
    children are required to do so

(d)

Application of the factors to the fresh evidence

[65]

To
    put the evidence relevant to these factors in context and to address Mr.
    Ojeikeres concerns, I make three points. First, I have no doubt that both Mr.
    and Mrs. Ojeikere love each of their children, and that the children love both
    of their parents. Although the children have lived mainly with their mother,
    all the children expressed to Ms. Jones their love for their father and their
    desire to spend time with him. Under the order of Miller J.A., one of the OCLs
    mandates was to investigate whether the children had become alienated from
    their father, presumably because of their mothers manipulation. The fresh
    evidence shows that there has been no parental alienation. Nor, to address
    another of Mr. Ojeikeres concerns, does it even appear that Mrs. Ojeikere has
    inappropriately influenced the childrens views and preferences reported to Ms.
    Jones.

[66]

Second,
    the children feel closer to their mother. She has been their main caregiver,
    and since the parties separated in Nigeria in 2012 or 2013, she has had custody
    of them. She is the one they most trust and feel most comfortable with.

[67]

Third,
    Mr. Ojeikeres complaint that the OCL did not investigate the situation in
    Nigeria by, for example, interviewing friends who knew the family there is
    unfair. In the light of its limited time and resources, the OCL appropriately
    focused its inquiry on the children and their parents. Mr. Ojeikere was not
    precluded from seeking to put before this court evidence of persons who could
    speak to the family dynamic in Nigeria, the quality of life there, and
    particulars of his plans for the children. He chose not to do so.

[68]

I
    now turn to the fresh evidence concerning each of the factors I have listed.

(i)

The risk of physical harm

[69]

Mrs.
    Ojeikere and the OCL put forward two risks of physical harm. First, Mrs.
    Ojeikere alleges that Mr. Ojeikere has physically abused her, and may do so
    again. If her allegations are true, the physical abuse of their mother, even
    their mothers fear of physical abuse, would undoubtedly harm the children,
    emotionally or psychologically. Mr. Ojeikere denies that he has physically
    abused his wife. Her allegations and his denial are untested and we have no
    finding on whether Mrs. Ojeikere was in fact physically abused by her husband
    or whether she fears he will be violent. I accept that Mrs. Ojeikere may
    legitimately have these fears, but absent any finding and on a wholly written
    record, I am reluctant to rely on them to support a risk of psychological harm
    to the children.

[70]

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. The two
    older children, Sam and Tomi, each independently told Ms. Jones that their
    father has physically disciplined them, not just by spanking them with his
    hand, but by using objects. Sam, the 15-year-old, said one of the reasons he
    wants to stay in Canada is that his father hits him and he would have to adapt
    to bad things if he were to return to Nigeria. He said his dad sometimes hits
    him with sticks, and once hit him with a wire part of a charger. Tomi, the 14-year-old,
    also told Ms. Jones that in addition to hitting him with his hand, his father
    sometimes hits him with a stick, a belt, or a TV wire. Elizabeth, the 12-year-old,
    said that her dad twice hit her with an open hand on her shoulders, and she
    confirmed that he had hit her brothers with a stick and a belt if they did
    something wrong.

[71]

Mr.
    Ojeikere admits that he smacked the children to discipline them, but denied
    using objects. I am inclined to accept Sams and Tomis independent evidence,
    corroborated by their sister, that their father physically disciplined them
    with objects.

[72]

The
    Supreme Court of Canada has addressed the harm resulting from corporal punishment
    of children with objects. In
Canadian Foundation for Children, Youth and
    the Law v. Canada (Attorney General)
, 2004 SCC 4, [2004] 1 SCR 76, the
    majority upheld the constitutionality of s. 43 of the
Criminal Code
,
    which excludes physical correction of children by their parents or teachers
    from the
Code
s
assault provisions, as long as the force used is reasonable. But at para. 37, relying
    on the consensus of the expert evidence before them, the court disapproved of corporal
    punishment of teenagers, especially corporal punishment using objects:

Corporal punishment of teenagers is harmful, because it can
    induce aggressive or antisocial behaviour. Corporal punishment using objects,
    such as rulers or belts, is physically and emotionally harmful.

[73]

Because
    Mrs. Ojeikere might not return with the children to Nigeria, or at least not
    full-time, an order returning them to Nigeria must contemplate a return to their
    fathers care.  The likelihood that the children would be physically
    disciplined with objects by their father if returned to his care in Nigeria is
    high. The likely severity of the harm is at least moderately high. This factor
    alone weighs heavily in support of a finding of serious harm.

(ii)

The
    risk of psychological harm and (iii) the views of the children

[74]

In my opinion, the views of the three children are relevant
    to the risk of psychological harm if they are required to return to Nigeria,
    and so I consider these two factors together. I find support for my approach in
    art. 13(b) of
the
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 plac[ing]
    the child in an intolerable situation, is one defence to an application to
    return. The second clause provides a second and separate defence based on the
    childs own objection to returning.

[76]

The
    second clause of art. 13(b) provides:

The judicial or administrative authority may also refuse to
    order the return of the child if it finds the child objects to being returned
    and has attained an age and degree of maturity at which it is appropriate to
    take account of its views.

Some English courts have held, reasonably, that in
    weighing a childs views under this clause, objection likely imports more
    than a mere preference. See, for example, the U.K. High Court case of
Re
    R. (A Minor: Abduction)
,

[1992] 1 FLR 105.

[77]

This
    case is not a
Hague Convention

case, but the second clause of
    Article 13(b) is relevant because it reflects widespread international
    agreement that in jurisdictional disputes over custody, a mature childs
    objection to returning to the place of habitual residence should be considered.
    Mature children should have a say in their future lives. Moreover, this clause
    of Article 13(b) has a parallel in s. 64(1) of the
CLRA
. This section,
    like s. 23, is in Part III of the
Act
, and is headed Child entitled
    to be heard. It provides:

In considering an application under this Part, a court where
    possible shall take into account the views and preferences of the child to the
    extent that the child is able to express them.

[78]

The
    three Ojeikere children are able to express their views. They are of an
    appropriate age and maturity to do so. And I regard the views of a child of an appropriate
    age as potentially relevant to the risk of psychological harm if the child is
    ordered to return to the country of habitual residence. An adolescent child who
    expresses mature reasons for objecting to a court-ordered removal should give
    us pause. A 15-year-old who expresses a considered objection to returning to the
    country of habitual residence is harmed far more by a forced removal than is,
    say, a five-year-old.

[79]

According
    importance to an adolescent childs own views even in a dispute over
    jurisdiction is also consistent with this courts comments in
I. (A.M.R.I)
    v. R. (K.E.)
, 2011 ONCA 417, 106 O.R. (3d) 1.
That case

dealt
    with a return order decided under art. 13(b) of the
Convention
. Nonetheless, the court observed at para. 110 that
    taking into account the views and preferences of a child in accordance with the
    childs age and maturity conforms with the spirit and intent of s. 64 of the
CLRA
. The court further observed that s. 64 applies in
the context of custody, access, and guardianship proceedings, including,
    presumably, proceedings at the jurisdictional stage.

[80]

The
    three Ojeikere children are now teenagers. As I have said, they are able to
    express their views. More telling, they have reached an age and, by their
    accounts to Ms. Jones, a degree of maturity where not only should their views
    be considered by the court, but they should be given significant weight. Their
    views speak directly to the risk of psychological harm they would suffer if
    required to return to Nigeria. This risk has five aspects. The first two are
    the most important; the last three deserve some, but not a great deal of weight.

[81]

First,
    after having moved around a great deal and having gone to many different
    schools, the children now have some stability in their lives. And they want to
    maintain that stability. Sam, for example, in the years between 2007 and 2017,
    went to ten different schools, either in Canada, Nigeria, the United States, or
    South Africa. Now Sam and his siblings are settled in Ontario, have made
    friends here, and want to stay here.

[82]

Second,
    all three children object to returning to Nigeria because in their considered
    view Canada offers them better opportunities to pursue their goals in life. In
    particular, getting a good education is of great importance to them. And they
    believe they would lose out on the educational opportunities available to them
    if they are living in Canada.

[83]

The
    third aspect of the risk of psychological harm is the childrens sibling
    status. Siblings are a part of a family unit and play important role[s] in
    each others emotional well-being:
Van de Perre v. Edwards
, 2001 SCC
    60, [2001] 2 S.C.R. 1014, at para. 25. In this case, each individual childs
    views and objections are important, but so too is the childrens collective
    view. Where siblings views align, as they do here, the maturity of the elder
    sibling may bolster the weight given to the younger siblings views. All three
    children have expressed the same strong desire to remain in Canada while issues
    of custody and access are determined. Their collective desire to do so
    strengthens my conclusion under this factor.

[84]

Fourth,
    the children perceive Nigeria as a place where bad things happen. Their
    perception suggests they would experience some emotional upset from a court
    order requiring them to return there.

[85]

Fifth,
    the childrens desire to stay in Ontario is reinforced by their citizenship. All
    three children are Canadian citizens who would be entitled to stay here but for
    this custody dispute. Of course, the views and objections of non-Canadian
    citizens would also be relevant under s. 23. But the childrens rights as Canadian
    citizens, rooted in their constitutional right under s. 6(1) of the
Canadian
    Charter of Rights and Freedoms

to remain in Canada, is an added
    consideration somewhat increasing the risk of psychological harm from being
    ordered to return to Nigeria.
[4]


[86]

Overall,
    the fresh evidence shows that there is a real risk the children would
    experience a serious letdown in their hopes and aspirations for their futures
    if, over their objections, they were ordered to return to Nigeria. They would
    feel angry, sad, and resentful at once again having their lives disrupted.

[87]

Of
    course, an order to return the children to Nigeria is not an order that they
    remain there. The Nigerian court would consider the evidence and may well
    ultimately order the childrens return to Canada. But these proceedings take
    time. And in my view, the children would likely suffer serious psychological
    and emotional harm if now forced to return to Nigeria against their will.

[88]

Based
    on the childrens reasonable objections to returning to Nigeria, I assess the
    likelihood of psychological harm to be high, but its severity to be only moderately
    high.

(iv)

Mrs. Ojeikeres stated refusal to return to Nigeria

[89]

Mrs.
    Ojeikere has said that if this appeal is dismissed and the motion judges order
    remains in place, she will not return to Nigeria with the children. She claims
    that Mr. Ojeikere has made a police complaint about her and, more generally, that
    there is nothing for her in Nigeria. Her claim about a police complaint is
    unsubstantiated and I would give no effect to it. Mr. Ojeikere apparently did
    lobby the Nigerian Human Rights Commission to intervene when he did not know where
    the children were living. He did nothing more.

[90]

If,
    however, Mrs. Ojeikere did carry through with her stated intention not to
    return to Nigeria because there is nothing there for her, her refusal almost
    certainly would affect the children, emotionally and psychologically. They
    would be separated from the parent who has been their primary care giver for
    most of their lives. Mr. Ojeikere himself acknowledges the children would
    likely suffer anxiety and guilt from being forced to go to Nigeria while their
    mother stayed in Ontario. And the children too have expressed genuine concern
    about not living with their mother.

[91]

Mr.
    Ojeikere argues that by professing to stay in Ontario and separating herself
    from the children, Mrs. Ojeikere is manipulating them and, by her stance alone,
    trying to establish serious harm. I have some sympathy for his argument.
    Ordinarily, a parent in Mrs. Ojeikeres position ought not to be able to create
    serious harm and then rely on it through her own refusal to return to the
    country of the childrens habitual residence  at least without a substantial
    reason for doing so, such as the risk of imprisonment or persecution, risk to
    health or physical safety, or the risk of a significant obstacle to employment.

[92]

There
    may be cases where a parents refusal to accompany the children back to the
    country of habitual residence could give rise to a serious risk of harm to the
    children. This case is not one of them. Mrs. Ojeikere lived in Nigeria for five
    years before abducting the children. Her vague assertion there is nothing for
    her in Nigeria does not establish a substantial reason for refusing to return there.
    I give no weight to this factor.

(e)

Conclusion on serious harm

[93]

This
    is a close case. Admittedly, the children lived in Nigeria for five years from
    between 2011 and 2016 without any evidence of being seriously harmed. And it is
    possible that a return to Nigeria to decide custody and access would ultimately
    culminate in the childrens return to Ontario, the place where they want to
    live.

[94]

On
    the basis of the fresh evidence, however, I am persuaded on a balance of
    probabilities that the three children would suffer serious harm if now ordered
    to return to Nigeria to await a custody and access determination in the
    Nigerian courts. I rest my conclusion principally on the risk of physical harm
    in the form of physical discipline with objects compounded by the risk of
    psychological harm arising from these adolescent childrens mature views and objections
    to returning to Nigeria.

E.

conclusion

[95]

I
    would admit the OCLs fresh evidence and allow Mrs. Ojeikeres appeal. I would
    set aside the order of the motion judge, and order that the Ontario Superior
    Court has jurisdiction to determine the custody of and access to the parties
    three children.

[96]

I
    would also order 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. If the parties cannot agree on the terms
    of access either may apply to the Superior Court for interim relief.

[97]

Finally,
    I emphasize that the proposed order is an interim order. Mr. Ojeikere as well
    as Mrs. Ojeikere will have the right to fully participate at a hearing to
    determine final custody of and access to the children. That hearing will take
    place in Ontario, not Nigeria.

[98]

This
    is not a case for costs, and I make no order for costs.

John
    Laskin J.A.

I Agree.
    K. Feldman J.A.


B.W. Miller J.A. (Concurring)

A.

introduction

[99]

I
    have read the draft reasons of my colleague Laskin J.A. and agree with him that
    the appeal should be allowed. However, I agree only in part with his reasons
    for arriving at this conclusion.

[100]

Justice Laskin
    considers the risks of both physical and psychological harm to the Ojeikere children.
    He concludes that the risk of physical harm in this case alone weighs heavily
    in support of a finding of serious harm. I agree. But while he rests his
    conclusion principally on the risk of physical harm in the form of physical
    discipline with objects, he adds that the serious harm in this case is
    compounded by the risk of psychological harm arising from these adolescent
    childrens mature views and objections to returning to Nigeria. I do not agree
    with this secondary argument.

[101]

This is for two
    reasons. First, what Laskin J.A. characterizes as psychological harm is mere
    disappointment. Disappointment is not harm, let alone serious harm. If the
    underlying cause of disappointment is not harm for the purposes of s. 23, then
    the disappointment itself can neither tip the scales nor stand as an
    independent harm, absent some psychological pathology, of which there is no
    evidence. Accordingly, the disappointment of the Ojeikere children at being
    returned to Nigeria does not constitute nor contribute to the requisite serious
    harm. Additionally, I do not agree that the
CLRA
should be interpreted
    as having adopted a lower threshold of serious harm than that established by
    the
Hague Convention
, particularly because the issue was not put to
    any of the parties.

[102]

Second, I find
    my colleagues reliance on s. 6 of the
Charter
as an added
    consideration increasing the risk of psychological harm to be problematic.
    There is a serious defect in the appeal to 
Charter
values made by
    the Office of the Childrens Lawyer (OCL), which my colleague adopts. The
    argument treats the s. 6 right of citizens to remain in Canada as though it
    were not subject to the reasonable limits requirement of s.1, and fails to
    consider how legal principles derived from
Charter
rights are limited
    or shaped by other principles of a free and democratic society such as, in this
    case, respect for parental autonomy and the duty to honour commitments made to
    other states, such as the
Hague Convention
.

[103]

Each of these
    arguments is addressed below.

B.

analysis

(1)

The meaning of serious harm in the
CLRA
: the argument from
    disappointed expectations

(a)

Psychological harm

[104]

I would not give
    any weight in this case to the risk of psychological harm. To treat
    disappointment as serious harm would convert the serious risk of harm standard
    into a best interests assessment. This is, in my view, inconsistent with the
    statutory approach to child abduction under the
CLRA
and would,
    contrary to the clear aims of s. 22, incentivize unilateral self-help remedies
    with their associated harms.

[105]

Harm is
    capable of an extremely broad reading: it can indicate any set-back or
    impairment of a persons genuine interests, whether catastrophic or trivial.
    Severity of harm is thus a function of both the importance of the interest
    affected and the degree of impairment.

[106]

In the context
    of the child abduction provisions in s. 23 of the
CLRA
, serious harm
    has a much more restricted meaning. In order to discourage harm to children
    (and other family members) caused by unilateral removal, child abduction will
    not be excused, except where return would place children at risk of serious
    harm. In assessing what constitutes serious harm, a judge is not to replicate
    the best interests analysis:
Thomson v. Thomson,
[1994] 3 S.C.R. 551,
    at p. 578. That analysis belongs to the subsequent custody and access hearing,
    after the children have been returned to the jurisdiction where they were
    habitually resident prior to the abduction, and the
status quo
restored.

[107]

Best interests
    analyses
[5]
and serious harm assessments are different. A best interests inquiry is a
    matter of
optimization
of a childs many interests.
[6]
It is a complex and comparative inquiry into which of (potentially several)
    proposals will best realize the many different goods needed to best secure a
    childs well-being. The serious harm inquiry, in contrast, is focused on
    discrete threats that would potentially imperil a threshold of well-being.
    Although serious harm and best interests can both be assessed by reference to
    the same basic needs of the child, not every suboptimal set of circumstances
    constitutes a serious harm: the serious harm standard must operate at a higher
    threshold. For example, although it would be a serious harm to return children
    to a place where they would be unable to receive an education, a child would
    not suffer serious harm in the relevant sense if sent to a public school, rather
    than an elite private school. Neither would a child be harmed
per se
by a compelled return from a more economically prosperous state to a less
    economically prosperous one. If neither of these circumstances constitutes a
    risk of harm, then
a fortiori
, the disappointment they cause cannot
    either.

[108]

While my
    colleague and I agree on this articulation of the serious harm standard in
    the abstract, I cannot agree with his contention that disappointment can
    constitute serious harm.

[109]

Neither is there
    support for this proposition in the
CLRA
. Section 64(1), on which my
    colleague relies, is a generic provision providing a child with a
right to
    be heard
within custody, access, and guardianship proceedings. It reflects
    the common sense proposition that it would be unfair not to consider a childs
    insights into his or her needs, circumstances, and desires when assessing
    whether a proposed custody or access arrangement is truly in a childs best
    interests. But it does not provide, or suppose in spirit and intent, that
not
giving effect to a childs autonomous choices can be an independent source of
    harm to that child.

[110]

In any event,
    no psychological harm has been identified in this case, and no evidence
    supporting it has been presented to the court. Unlike the case of
H.E. v.
    M.M.
, 2015 ONCA 813, 393 D.L.R. (4th) 267, there is no expert clinical
    evidence here establishing that any of the children are at risk of
    psychological harm from a return to Nigeria. Frustrating a childs perceived
    interests  whether the child is mature or not  cannot be sufficient to engage
    the serious harm override. If it were, the serious harm analysis would become
    indistinguishable from the best interests test. Given a statutory scheme that
    clearly intends to discourage unilateral removal of children from their
    habitual residence, the threshold for serious harm must be set higher than best
    interests, and there must be evidence to support the claim. A childs regret at
    returning to the place of habitual residence cannot validate unilateral removal
    by a parent.

(b)

The serious harm standard in the
CLRA
versus the
Hague
    Convention


[111]

Laskin J.A.
    suggests that the threshold for serious harm under the
CLRA
is lower
    than for the harm override contained in the
Hague Convention
. This is
    a novel argument, and was not advanced by either party or the OCL. Accordingly,
    this court did not have the benefit of any submissions on point. Indeed, the
    OCL took the position that the serious harm standard in the
CLRA
is
    equivalent to the standard in the
Convention
. Even if I were persuaded
    by my colleagues argument, it would be inappropriate to adopt a new
    interpretation of the
CLRA
in these circumstances. But I have
    substantive concerns with the approach as well.

[112]

In support of
    reading the
CLRA
as establishing a lower threshold for finding of risk
    of serious harm, my colleague contrasts the assurances offered by signatory
    versus non-signatory states. However, since it is s. 23 of the
CLRA
and not the
Convention
that would apply to returns
within
Canada,
    I do not find this contrast compelling. It is not plausible that the
    legislature would have established a greater barrier to the return of abducted
    children to, say, Prince Edward Island, than to an impoverished and
    conflict-ridden country that may happen to be a
Convention
signatory.

[113]

Furthermore, the
    fact that a state is not a signatory to the
Convention
does not entail
    that it is not committed to resolving custody and access disputes according to
    best interests criteria. Nigeria is not a signatory to the
Convention
but is a signatory to the United Nations
Convention on the Rights of the
    Child
, Can. T.S. 1992 No. 3, which is a substantive declaration committing
    signatories to adopting best interests standards in their domestic law.

[114]

In any event,
    the precise placement of the threshold for engaging the harm-based
    jurisdictional override is not determinative in this case. It is the risk of
    physical harm to the children that alone requires this court to exercise
    jurisdiction.

(2)

Are the children at risk of serious harm?

[115]

As noted above,
    I agree, for the reasons given by Laskin J.A., that the risk of physical
    discipline with objects constitutes a sufficient risk of serious harm. That is
    not to say - and my colleague does not say - that it would necessarily be
    harmful to return a child to a jurisdiction where, as in Canada, physical
    discipline within limits is lawful, or to a home where physical discipline is
    practiced:
Canadian Foundation for Children, Youth & the Law v. Canada
    (Attorney General),
2004 SCC 4, [2004] S.C.R. 76.

[116]

Laskin J.A. does
    not argue that the evidence discloses a risk of serious harm in a return to
    Nigeria, absent what he characterizes as psychological harm. I agree. Although
    Nigeria may have a weaker economy than Ontario, a return to a jurisdiction with
    a comparatively weaker economy is not in itself harmful. To hold otherwise
    would have significant implications for Canadas obligations to many, if not
    most, states signatory to the
Convention
. In any event, on the
    evidence before us, the children have lived secure and prosperous lives in the
    capital city of Nigeria. Both of their parents have advanced degrees and their
    father is a deputy director of the Bank of Nigeria. The fathers decision to
    return to Nigeria was driven by the better employment opportunities available
    to him there. The children lived in gated estate communities with a domestic
    staff. As in Ontario, they played on sports teams and took music lessons.

[117]

What Laskin J.A.
    identifies as psychological harm is the childrens anticipated reactions to
    missing out on opportunities available to them in Ontario, such as (the
    children say) a better path to Ivy League education.
[7]
Fear of missing out, however, is not an indicia of serious harm. It would be an
    error to equate disappointment  even disappointment at the loss of some
    undeniably valuable opportunity  with psychological harm. As I noted above,
    there is simply no evidence to support the risk of psychological harm asserted
    by the OCL and accepted by my colleague. Ms. Jones (the in-house clinician with
    the OCL) characterizes the children as resilient, and objects that it is
    unfair that their resilience could somehow penalize them. But the courts
    function, at this stage, begins and ends with a determination of whether a
    child faces a risk of serious harm. Where children do not face a risk of
    serious harm, the law addressing such risks has no application.

(3)

Charter
rights and
Charter
values

[118]

As Laskin J.A.
    notes, there are no
Charter
rights at issue in this appeal. The
    constitutionality of the
CLRA
is not challenged, and private parties
    have no rights over, or duties to, each other under the
Charter
:
RWDSU
    v. Dolphin Delivery Ltd.,
[1986] 2 S.C.R. 573, at pp. 597-599. Neither is
    there an argument that an order to return the children to Nigeria would be
    inconsistent with their rights under s. 6 of the
Charter
. However, my
    colleague suggests that the childrens rights as Canadian citizens, rooted in
    their constitutional right under s. 6(1) of the
Canadian Charter of Rights
    and Freedoms
to remain in Canada, is an added consideration increasing the
    risk of psychological harm from being ordered to return to Nigeria.

[119]

With respect,
    there are four difficulties with this argument.

[120]

First, neither
    the legal incidents of citizenship nor any legal principles associated with s.
    6(1) of the
Charter
have any bearing on the question whether returning
    the children to Nigeria would place them at risk of serious psychological harm.

[121]

Second, acceding
    to this argument would imperil Canadas international commitments, since it
    would grant an implicit exemption to Canadian citizens from the ordinary
    application of the
Convention
.  As Justice Sharpe wrote for the court
    in
Balev v. Baggott
, 2016 ONCA 680, 133 O.R. (3d) 735, at para. 83,
    [i]t is important to rememberthat although this case involves the interests
    and needs of these two young children, it raises legal issues that transcend
    their interests and that affect the interests of countless other children and
    their parents.

[122]

Third, while the
    OCL urged the court to give significant weight to the childrens status as
    Canadian citizens, there has been no argument in this appeal, and no
    determination, of the scope of the childrens s. 6
Charter
rights. The
    content of a
Charter
right cannot simply be read off the page. The basic
    architecture of the
Charter
directs that the scope of a substantive
Charter
right is established only after considering such reasonable limits prescribed
    by law as can be demonstrably justified in a free and democratic society. That
    is, a definitive statement of what a
Charter
right protects can only
    be made in context after considering whether, or to what extent, limits on a
    purported exercise of right can be justified: Guy Régimbald and Dwight Newman,
The
    Law of the Canadian Constitution
, 2nd ed. (Markham: LexisNexis Canada,
    2017), at pp. 546-47; Grégoire Webber, Rights and Persons in Grégoire Webber,
    Paul Yowell et al,
Legislated Rights: Securing Human Rights Through
    Legislation
(Cambridge: Cambridge University Press, 2018) p. 27 at 32-39.
    It is settled law, for example, that s. 6 (properly qualified by s. 1
    considerations) does not preclude extradition, given that the purpose of
    extradition is not exclusion from membership in the national community:
United
    States of America v. Cotroni,
[1989] 1 S.C.R. 1469, at p. 1482. Just as
    the extradited citizen is eventually free to return to Canada, so too is the
    child citizen who, at the direction of one or both parents, is relocated
    overseas.

[123]

Fourth, this
    court has previously addressed the problem of unstructured,
ad hoc
appeals to principles associated with the
Charter
 so-called 
Charter
values:
E.T. v. Hamilton-Wentworth District School Board,
2017 ONCA
    893
,
at paras. 103-105; and
Gehl v. Canada
, 2017 ONCA 319, 138
    O.R. (3d) 52, at paras. 76-83. See also, Matthew Horner, Charter Values: The
    Uncanny Valley of Canadian Constitutionalism, (2014) 67 S.C.L.R. (2d) 361.
    This form of reasoning lacks the doctrinal rigour of
Charter
rights
    reasoning. It is prone to idiosyncratic application, ignoring competing
    principles derived from the limitation provision of s.1 (itself a very broad
    set of principles) and other
Charter
rights, as well as those derived
    from common law and legislation. It trades on a false equivalence with
Charter
rights, asserting an unearned priority over other legal principles. But the
    mere labelling of a legal proposition as a
Charter
value cannot confer
    on it any greater priority or weight than it would otherwise merit. Within the
    constraints established by a legal system, a propositions priority in legal
    reasoning is a function of its rational strength.

C.

Conclusion

[124]

The childrens
    daily care and nurture was, until Mrs. Ojiekere unilaterally relocated the
    children to Mississauga, in large measure delegated to domestic employees and
    an annually changing roster of schools in several different countries. The
    children were most unhappy under this regime. Finally, they have some stability,
    the focussed attention of a parent, and appear to be happy and thriving. I have
    considerable sympathy for the argument that this stability should not now be
    jeopardized.

[125]

I also keep in
    mind that were it not for the dissolution of this family and the commencement
    of custody and access proceedings, government and law would have no authority
    to intervene in any of the parents decisions about which countries their
    children would live in, or what schools they would attend.

[126]

Were these the
    only matters in issue, I would not be able to find that a return to their
    fathers house in Nigeria pending a custody and access hearing in the Nigerian
    courts would put these children at risk of serious harm.

[127]

But that is not
    the only issue. There is the risk of serious harm from physical mistreatment
    from their father. On the record before us, the father is not accustomed to
    living with the children, is easily angered by them, and has a history of
    striking them with objects when angry. This establishes, in my view, a serious
    risk of harm should the children be returned. On this basis alone, I agree that
    the jurisdictional override is engaged and that Ontario should exercise
    jurisdiction to determine custody of and access to the Ojeikere children.

D.

Disposition

[128]

I would allow
    the appeal.

Released: J.L. April 17, 2018

B.W. Miller J.A.





[1]
Section 19 states: The purposes of this Part are,

(a)
    to ensure that applications to the courts in respect of custody of, incidents
    of custody of, access to and guardianship for children will be determined on
    the basis of the best interests of the children;

(b)
    to recognize that the concurrent exercise of jurisdiction by judicial tribunals
    of more than one province, territory or state in respect of the custody of the
    same child ought to be avoided, and to make provision so that the courts of
    Ontario will, unless there are exceptional circumstances, refrain from
    exercising or decline jurisdiction in cases where it is more appropriate for
    the matter to be determined by a tribunal having jurisdiction in another place
    with which the child has a closer connection;

(c)
    to discourage the abduction of children as an alternative to the determination
    of custody rights by due process; and

(d)
    to provide for the more effective enforcement of custody and access orders and
    for the recognition and enforcement of custody and access orders made outside
    Ontario.



[2]
Subsection 24(1) states: The merits of an application under this Part in
    respect of custody of or access to a child shall be determined on the basis of
    the best interests of the child, in accordance with subsections (2), (3) and
    (4).

Subsection 24(2) states: The court shall consider all
    the childs needs and circumstances, including:

(a)
    the love, affection and emotional ties between the child and,

(i)
    each person, including a parent or grandparent, entitled to or claiming custody
    of or access to the child,

(ii)
    other members of the childs family who reside with the child, and

(iii)
    persons involved in the childs care and upbringing;

(b)
    the childs views and preferences, if they can reasonably be ascertained;

(c)
    the length of time the child has lived in a stable home environment;

(d)
    the ability and willingness of each person applying for custody of the child to
    provide the child with guidance and education, the necessaries of life and any
    special needs of the child;

(e)
    the plan proposed by each person applying for custody of or access to the child
    for the childs care and upbringing;

(f)
    the permanence and stability of the family unit with which it is proposed that
    the child will live;

(g)
    the ability of each person applying for custody of or access to the child to
    act as a parent; and

(h)
    any familial relationship between the child and each person who is a party to
    the application.



[3]

Under the last criterion in
Palmer
, the evidence is
    admissible if, believed and taken with the other evidence, it could be expected
    to affect the result.



[4]
The Childrens Lawyer urged this court to give considerable weight to the children's
    wishes to exert their rights of citizenship to remain in Canada on the basis
    that the
CLRA
should be interpreted in a manner consistent with the
Charter
. 
    N
o party, however, brought a direct
Charter
challenge
    to the constitutionality of s. 23.



[5]
A reference to the best interests of the child in the context of the
CLRA
is shorthand for the proposition in s. 24(1) that an application to determine
    custody or access to a child shall be determined on the basis of the best
    interests of the child. It is a decision-making criterion: an application must
    not be assessed according to any competing criteria such as the needs or
    aspirations of the childs parents or any other person.



[6]
Section 24 provides a non-exhaustive list of human goods that are required for
    the well-being of any child: the preservation of existing emotional ties
    between the child and others (most obviously, but not exclusively, the parents
    and siblings), per s. 24(2)(a); the childs need to live in a stable family
    unit, per s. 24(2)(c) and (f); the childs needs for parental guidance,
    education, and necessaries of life, per s. 24(2)(d), (e), and (g); and the
    maintenance of blood or adoptive relationships, per s. 24(2)(h). Although s.
    24(b) also lists a childs views and preferences, this is better understood
    as a circumstance instrumental to the best interests analysis, rather than a
    need.



[7]
It should be noted that there is nothing in this record to indicate that the
    elite private schools proposed for the children in Nigeria provide an inferior
    path to higher education than the childrens current schools in Ontario.


