A Nigerian-Canadian, and the daughter of a Lagos State senior judge, Ms Olubukola Ajayi(nee Ipaye) has lost her marriage, and the custody of her children to her husband, Eyitope Ajayi over her claim and affiliation to LGBTQ (lesbian, gay,bisexual, transgender, and queer) group.

Ms Ipaye is the daughter of the Administrative Judge of Lagos State Judiciary, Justice Oluwatoyin Ipaye who got married to the Ekiti born Eyitope Ajayi on July 8, and 9, 2016. The couple had met in Canada in 2012, where they both studied. Announcing their plan to stay together forever four years after, Eyitope had taken to his Facebot page and written: “Meet Ajoke Bukky Ipaye “ibukunolami”. God bless the day I met you. It’s been 4 years since I first set my eyes on you. I remember your mustard yellow pants and flowery top as I sat in church wondering what the heck the pastor was saying as I stared at you. How can I forget the day I found what the Lord commanded us as men to find. You are my joy, my happiness, my calm, and with my head on your chest I find tranquil bliss, no matter the challenge. Your fear of God and gentleness is inspiring. You are more beautiful and intelligent than I imagined my wife would ever be. You give me so much peace and support my dreams. I pray the Lord gives you the ability to make our home, and me the strength to protect and serve you and our family till my last breath. See you July 8th &9th. #themikaulkis. They also placed their wedding activities on https://www.weddingwire.ca/web/eyitopebukola signifying the fire of love that burns between the two lovers.

Within six years of marriage, they have three beautiful children, all born in Canada. Although they lived in Lagos, Nigeria, Ms Bukola always traveled to Ontario, Canada to deliver her babies. These went on until last year when she decided she could no longer cope with the marriage when she suddenly realized she was asexual. Asexuality is when a woman or man has no feeling for the opposite sex. It is categorised into the LGBTQ family.

Between April and November, 2021, Ms Ajayi was in Canada where she gave birth to their third baby. It was after this that she returned to Nigeria and on November 18, 2021, she told her husband of her intention to quit the marriage.

Justice Engelking of Ontario Superior Court of Justice before whom Ms Ajayi filed a Child Protection Application described her pleadings before the court thus: “On November 16, 2021, Ms. Ajayi broached the subject of a separation with Mr. Ajayi, to which he did not react well according to her evidence. According to his evidence, while Mr. Ajayi was not happy with the prospect of separation, he volunteered to leave the family home if Ms. Ajayi wanted him to. On November 17, 2021, Ms. Ajayi purchased tickets for herself and the three children to fly to Canada. She also deposited several suitcases with her friend, Nengi Adoki, whom she asked to hold them for her until she picked them up. On the evening of November 18, 2021, the parties met with Mr. Ajayi’s parents, at which time Ms. Ajayi states the paternal grandfather (PGF), threatened to take the children from her. On November 19, 2021, Ms. Ajayi picked up her suitcases from Ms.Adoki and left Nigeria with the children without either the knowledge or consent of Mr. Ajayi, who was out of Lagos on business at the time. She originally flew to Edmonton, Alberta, where her sister lived but shortly thereafter accompanied her sister to Ottawa, where she was being posted with the armed forces. She has been in Ottawa with the children ever since. On November 21, 2021, Ms. Ajayi sent an email to Mr. Ajayi, which she copied to several members of both of their families, giving her reasons for leaving and letting him know that she and the children were well. The parties exchanged several communications in the ensuing days, more about which I will speak later”.

 

From this moment, the battle shifted to the law courts. While the husband commenced a petition for dissolution of marriage before an Ekiti State High Court on November 26, 2021, Ms. Ajayi on the same date commenced an application pursuant to the Children’s Law Reform Act in the Superior Court of Justice in Ottawa, Ontario.

Ms. Ajayi was served with Mr. Ajayi’s petition through her Nigerian counsel on December 7, 2021. Mr. Ajayi was served with Ms. Ajayi’s application subsequent to a court appearance before Justice MacEachern on December 9, 2021.

At the Ontario court, Ms Ajayi filed her application before the court seeking a pronouncement that the Superior Court of Justice of Ontario has jurisdiction to make a parenting order pursuant to Section 23 of the Children’s Law Reform Act. The father also sought the children’s immediate return to Nigeria, as well as various other temporary orders pursuant to s. 40 of the the CLRA, on the basis that Ontario does not have jurisdiction over matters affecting the children.

The judge stated: “Until Mr. Ajayi received Ms. Ajayi’s application, he was not aware that the children had been removed from Nigeria, though he suspected that might be the case. In his Motion for a temporary order accompanying his Petition for Dissolution of Marriage, Mr. Ajayi is asking for custody of the older children and joint custody with his mother of the baby, with Ms. Ajayi having as much contact with the children as is in their best interests.

In her application and accompanying motion materials, Ms. Ajayi is asking for sole decision-making authority over the children and certain parenting time with Mr. Ajayi. She is also requesting a restraining order.

Ms. Ajayi submits that the children will suffer serious harm if they are returned to the care of Mr. Ajayi or if they are removed from Ontario to Nigeria on essentially two grounds. The first is that she alleges she was subject to family violence, to which at least the elder children were exposed. The second is that she either has an affinity towards, identifies with, or has been identified with the LBGTQIIA+ community, which risks her being subject to serious negative consequences in Nigeria, including by the courts in her matrimonial matter.

Ms. Ajayi argues that she cannot return to Nigeria, as she will face negative consequences from being linked to the LBGTQIIA+ community. Additionally, she argues that she will not have adequate protection from domestic violence if she returns to Nigeria. It is her position that the children will be at risk of serious psychological harm if they are either returned to Nigeria without her, or if they are removed from her care by the court in Nigeria based on her lack of conformity to heterosexual norms.

She further alleged that Mr. Ajayi has been physically, verbally, emotionally, sexually, and financially abusive to her. With respect to physical abuse, Ms. Ajayi set out three instances where she was maltreated by Mr. Ajayi as follows: In 2016, Ms. Ajayi alleges that Mr. Ajayi choked her or held her throat during a “play fight, and in April of 2018, while pregnant with her second child, Ms. Ajayi alleges that Mr. Ajayi locked her in a room lacking ventilation and without access to water.

Regarding sexual abuse, Ms. Ajayi alleges that Mr. Ajayi would insist on having sex with her even when she didn’t want to, and she described one instance when the parties engaged in anal sex, initially consensually but where Mr. Ajayi would not stop when she asked him to stop. Ms. Ajayi’s position is that she was sexually assaulted by Mr. Ajayi on this occasion.

However, the husband denied all her allegations and the court said “it was hard to ascertain in what manner Ms. Ajayi thought she was financially abused. Ms. Ajayi was employed in Nigeria and had access to her own money and appeared to have access to Mr. Ajayi’s income when needed. Additionally, the parties had staff to run the house and care for the children”.

Mr. Ajayi also denied that he was ever physically abusive to Ms. Ajayi, though he does acknowledge throwing a towel at Ms. Ajayi in the February 2020 incident, as well as squeezing her nose. He felt remorseful about it, including at the time when he contacted Ms. Ajayi’s friend, Ms. Ize-Iyamie, to discuss it with her. He also acknowledges “play fighting” with Ms. Ajayi, as one would with a sibling, but does not recall any incident of choking Ms Ajayi or holding her neck while doing so prior to their marriage in 2016. He also Mri denied ever locking Ms. Ajayi in a room and indicated that a door to a hallway which led to two bedrooms jammed due to the humidity and got stuck. Ms. Ajayi acknowledged that she had access to the two rooms (which were not poorly ventilated) but suggested the problem with being locked where she was, was that she was dehydrated and lacked access to water.

Mr. Ajayi further denied ever being sexually abusive to Ms. Ajayi, indicating that their sexual relations were always consensual. He stated that they engaged in anal sex about three times, but that Ms. Ajayi didn’t really like it, and so they stopped.

On how Nigeria relates with LGBTQ persons, the court called two expert witnesses. The applicant’s(Ms. Ajayi’s) expert, Mr. Jake Okechukwu Effoduh, was qualified as an expert by the court in the impact of the laws of Nigeria on the “LGBTQIA+”1 community, and on the law as it relates to gender-based violence.  Mr. Effoduh has Master of Laws (L.L.M.) from 2017 and Master of International Human Rights Law from 2013. He has been an attorney (Barrister and Solicitor of the Supreme Court of Nigeria since 2011.

Mr. Ajayi’s expert, Dr. Iyabode Ashabi Orunniran, was qualified as an expert by the court in Children’s Law, Gender and the Law and Constitutional Law. Dr. Orunniran is an Associate Professor at the Department of Public Law in the Faculty of Law at the University of Lagos, where she has been part of the faculty since 2003. She developed the curriculum for the teaching of Child Law for the university for the 2021/22 session and has been teaching a course on Gender and the Law since 2009. Dr. Orunniran has a Doctor of Philosophy from 2012, a Master of Laws from 1996 and her Bachelor of Law from 1992. She has been a practicing lawyer since 1993. She has been a consultant, researcher and co-ordinator of various projects having to do with child justice and has published several articles on child law, gender issues and children rights.

Mr. Effoduh’s opinion is this regard is as follows: “Of severe concern are LGBTQIA+ individuals in Nigeria who suffer a heightened level of victimization, discrimination, and suppression of their fundamental human rights. Several factors, such as ignorance about what it means to be LGBTQIA+, religiously affiliated sentiments, inherited anti-sodomy laws and state-supported phobias against LGBTQIA+ individuals make I especially difficult for LGBTQIA+ persons to live without having their rights violated. Because of their imputed or real sexual orientation and/or gender identities; or because some LGBTQIA+ persons do not conform to cultural standards on how women and men should look or behave, many LGBTQIA+ individuals regularly become victims of mob violence, arbitrary arrests and forced evictions.

Persons who identify or are perceived as LGBTQIA+ have often been denied access to the rights and freedoms enshrined to citizens in the Nigerian Constitution. Despite constitutional guarantees, several laws and policies remain problematic for LGBTQIA+ individuals”.

In her own expert opinion, Dr. Orunnian identified “Nigeria as federal country consisting of 36 states and indicated that laws are created both federally and by the state via three legislative lists – the Exclusive Legislative Lists (68 solely federal items), the Concurrent Legislative Lists (30 concurrent items upon which both may make legislation), and the Residual List for which the states make legislation. The country also consists of Southern and Northern Nigeria, the latter of which engages Sharia Penal Codes. The UN Convention on the Rights of the Child has been adopted federally by virtue of s.299 of the 1999 Constitution of Nigeria as the Child’s Rights Act. Children’s issues, however,fall on the Residual List of states, so it is incumbent upon them to adopt their own Child Rights Act. The States of Lagos and Ekiti have both done so via the Ekiti State Child Rights Law of 2006 and the Lagos State Child Rights Law of 2007″.

According to Dr. Orunniran, as with the Convention on the Rights of the Child, the “best interest principle” is at the heart of the national Child Rights Act and the state Child Rights Law. The Child Rights Law of Ekiti, for example, provides in Section 1 that “in every action concerning a child…the best interest of the child shall be the primary consideration. After reviewing certain literature in relation thereto, Dr. Orunniran opines: “Hence, ‘best interest’ in section 1 of the CRL [Children’s Rights Law] is: (a) a guide to every action by individual, public or private body, (b) covers all forms [of] interests, (c) promotes standardization to evaluate such actions and protect Nigerian children;

Special Family Courts have been established pursuant to rules under the Children’s Rights Act and the Children’s Rights Law of states to deal with family and children’s matters. These courts are to consider the best interests of the child as the paramount consideration in all matters related to the Rules;

In addition, Section 71 of the Matrimonial Causes Act (MCA), “provides that in proceedings with respect to custody, the court shall have regard to the best interests of those children as the paramount consideration, and subject thereto, the court may make such order in respect of those matters as it thinks proper.” Upon review of a recent case of the Court of Appeal of Nigeria, Osalade v. Osalade (2020) LPELR-51165 CA;

However, the court in exercising its discretion will consider: (a) retention of existing position (b) personality and character of the claimant (c) sex and age of the children (d) education (e) accommodation and material advantage (e) [sic] stability of home life (f) the parties conduct.

In her judgment, Justice Engelking discountenanced Ms. Ajayi’s claim of threat by the paternal grandfather, whom she accused threatened her at a meeting on November 18, 2021, adding that made her to abscond with the children.

The court said: “Ms. Ajayi bought tickets to Canada for her and the three children on November 17, 2021. Indeed, she had already deposited luggage with her friend, Ms. Nengi Adoki, prior to November 18, 2021. She knew she was going to leave Nigeria with the children prior to her discussion with Mr. Ajayi’s parents; she just didn’t know exactly what day.

On allegation of threat to her if she returns to Nigeria, the court said: “Ms. Ajayi was born in Nigeria, has dual Canadian and Nigerian citizenship and there is no legal impediment to her returning to and staying in Nigeria with the children. “Indeed, Ms. Ajayi is a privileged member of Nigerian society; she is well educated, has substantial means, and an influential family. Not only is there no legal impediment to returning, but she is also well situated to do so.“

Justice Engelking also ruled that the children were not at risk of harm with their father, noting that Ms. Ajayi had left the two older children in their father’s care for an extended period when she came 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.

Debunking her claim that she was the sole caregiver of the children, the court said: “While I am, in the first place, not convinced that Ms. Ajayi was the children’s sole primary caregiver prior to her departure for Canada in November, the other difficulty with Ms. Ajayi’s argument in this regard is that Mr. Ajayi has not sought to remove her from the lives of the children unlike in other wrongful removal cases.  There is no evidence in this case that the children have generally been either exposed to or the subjects of domestic violence.”

In his conclusion, the Judge said: “Based on the evidence before me, I find that there is no risk of physical harm to the children if returned to Nigeria or to the care of Mr. Ajayi. Contending that she will face negative consequences from being linked to the LBGTQ1LA+, the court said nothing could stop her to return to Nigeria if she so desires.

Not satisfied with the decision of the court, Ms Ajayi filed an appeal before Ontario Superior Court before Justices Aston, Sheard, and Swinton. The appellate court threw out her appeal and upheld the decision of Justice Engelking. The Justices stated: “We do not purport to address each finding of fact or mixed finding of fact and law with which the Appellant takes issue. However, we have carefully reviewed the reasons in their entirety and have identified no errors of fact, or errors of mixed fact and law, that could be described as palpable and overriding; plain and obvious. We conclude that the trial judge’s findings were open to her to make, including her findings respecting Mr. A.’s willingness to jointly parent the children, and concerning any potential risk of harm to Ms. A. and/or to the children, if they returned to Nigeria. Those findings were properly based on her assessment of the evidence, and are entitled to deference”. 

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