‘I can’t be silent’: One woman’s losing battle to keep her kids in Canada

Days before Olubukola Ajayi’s youngest child turned one, three Ontario Superior Court judges made a decision that shook her to her core.

Her three boys — the older two were then aged three and five — were ordered to leave Ottawa and return to their father in Nigeria.

The decision marked the end of the Canadian stage of a transcontinental custody battle that began in late 2021 when Olubukola, who goes by Bukola, took the Canadian-born kids and fled Nigeria for Ottawa. The reason, she said, was she feared for her safety and that of her children. She alleged physical, sexual and verbal abuse from her ex-husband. She believed she would not get a fair hearing in Nigeria.

But the Canadian courts disagreed.

After losing in court last fall, Bukola says she has no option but to share her story widely in hopes of exposing what she sees as the failure of Canadian courts to understand the cultural context of cases like hers. “I feel like this is the only weapon I have at this point, which is just to be very loud, kicking and screaming and thrashing about to let people know what is happening to me,” she told the Star.

Bukola — who is a dual citizen, like her kids — has since refused to return to Nigeria, citing, in part, her fears for her safety. She alleges her ex-husband is denying her regular access to her children by remote video, and she maintains she will not get a fair hearing in Nigeria. In the meantime, she has started a podcast to share her story in the hope that other women will not find themselves in the same situation.

“I can’t be silent.”

Meanwhile, her ex-husband, Eyitope Ajayi, denies he was abusive. Speaking to the Star from Nigeria, he said he is a good parent and alleges he is the victim of false allegations; as the legal case continues, he has positioned himself as a champion of men’s rights.

“In today’s time, when you are told a woman says the man is abusive, nobody wants to hear any other thing. He’s just an abusive man,” he told the Star, saying false allegations are “a woman’s weapon in today’s age.”

The case of Ajayi v. Ajayi is no simple custody matter. At the core is the question of how Canadian courts should handle contentious divorce and custody cases — including ones that involve serious allegations of abuse — when they are also playing out in other countries that have entirely different justice systems, with cultural, social and legal standards that don’t match our own. Can a mother in Bukola’s position receive a fair custody hearing in a jurisdiction where they fear misogynistic or homophobic attitudes will undermine both their perceived fitness as a parent and their claims of abuse? Are Ontario courts even capable of evaluating another country’s court system to make that determination?

The idea of what is in the best interest of a child is defined by the community standards in each country, noted Bukola’s lawyer Valerie Akujobi. The challenge is how to evaluate that other country’s standards in a Canadian court.

“It’s not that there isn’t a similar codification and desire to look to the well-being of children in Nigeria, but I think maybe the way we come about it is a little bit different,” she said.

“Relocation cases, international child abduction cases are among the hardest cases to deal with,” added Nicholas Bala, a family court expert and professor at Queen’s University. “They are harder than murder cases.”

A relationship between two countries

Bukola, 32, is from Lagos, Nigeria — the most populous city in a country known for its financial centres, beaches and lively social scenes. She moved to Canada in 2007 and got a law degree from York University’s Osgoode Hall Law School. In July 2012, she met Eyitope at the House of Praise church in Mississauga.

“He was very charismatic; he wooed me and I felt a level of safety or a divine element that added a level of safety,” Bukola recalled.

Eyitope, also a dual citizen, soon moved back to Lagos for work and the two maintained a long-distance relationship as she continued law school. After graduation in 2016, she also moved back to Nigeria, where they married.

Prior to marriage, Bukola described herself as an introvert — a hopeless romantic who spent much of her time watching rom-coms, Korean dramas and classic Disney princess movies. In college, she went to see “The Princess and the Frog” on opening day. “This was my vibe,” she said.

This vision did not match her marriage, she said.

Bukola described Eyitope as controlling, belittling, constantly angry and upset, someone who called her names and drank heavily. At times, he would get into a “shouting rage” at the children, she said — “I was walking on eggshells.”

In her court filings, she alleged he was occasionally abusive — she said he choked her during a “play-fight” in 2016, locked her in a room in 2018, and in 2020 whipped her with a towel and grabbed her by the nose. She claims he also coerced her into having sex with him and once did not stop a sexual act when she asked him to. (He denies these allegations).

Over the years, she travelled between Nigeria and Canada, where the children were born, and she said she tried to make her marriage work, in keeping with church and community expectations. Those efforts, she said, made it harder for her family, Eyitope’s family and her community to understand why she finally left.

“There is pressure to save the marriage.”

She said the last straw came following an argument in the middle of the night in November 2021, only six weeks after she had given birth to their youngest child.

She suggested it was time for a divorce. This enraged him, she said, and she feared it would get worse. “I was very terrified that night. The only thing that kind of gave me something to hold on to was I felt like I’m holding my baby right now,” Bukola recalled.

“I couldn’t see a scenario where my children would not have been taken away from me if I remained in Nigeria,” she said. “I ultimately felt that Canada was my best chance of my children remaining in my care.”

And so, on Nov. 19, 2021, with Eyitope at work in another city, she took the kids and left for Canada.

How Canadian courts judge international custody cases

For Canadian courts, the task of ruling on a case like Ajayi v. Ajayi is as hard as it sounds — as seen in a recent Supreme Court of Canada decision in a separate case.

That case involved a mother who refused to return with her children to continue a custody battle in Dubai. Her residence status there was precarious and dependent on her ex-husband, and there are significant gaps in gender equality in the law in the United Arab Emirates. Still, the majority of five judges ruled in the ex-husband’s favour, concluding that serious harm would not come to the children if they returned. The four-judge minority, however, found that removing young children from their primary caregiver would cause serious emotional and psychological harm. The mother had compelling reasons not to move back to Dubai, they wrote.

Akujobi, Bukola’s lawyer, sees parallels in Bukola’s case. While both Canada and Nigeria have a system centred on the “best interests of the child,” what that actually means is based on community standards.

One key factor in Nigerian courts, she said, is the “personality and character” of the parent, a standard that means the fitness of a mother may be judged by criteria — including religiousness and morality — that would be interpreted differently in Ontario.

With Bukola and the children already in Canada, Eyitope filed for divorce and custody of the children in Nigeria. Meanwhile, she filed a motion in Ottawa asking that the custody case be heard here, and seeking a restraining order.

In his filings, Eyitope described Bukola as a member of the LGBTQ community, labelling her as “asexual.” He also described her as an atheist and a feminist, someone far removed from the pious woman he thought he married.

Bukola said she was surprised to see him make these claims, saying these terms would be considered pejorative to a Nigerian court. While the Canadian system is far from perfect, she does not believe the same negative assumptions would be attached to her here. (Canada legalized same-sex marriage in 2005; Nigeria criminalized it in 2014.)

She also noted her legal expert’s testimony that marital rape is not illegal in some Nigerian states, including Lagos.

“You have to connect the dots,” Akujobi said, of what will be seen as moral or good parenting in the Nigerian court versus in Canada. “This is not apples to apples; it is more like apples to oranges.”

For his part, Eyitope said he feels the Canadian judge ruled the Nigerian courts were capable of fairly deciding what is in the best interests of a child.

Under the Children’s Law Reform Act, an Ontario court can only take on an out-of-jurisdiction custody case if the children will suffer “serious harm” by being returned to the other parent. It’s a provision intended to prevent one parent from abducting their children and moving to Ontario. In Bukola’s case, the trial judge found that this test was not met — a decision upheld on appeal. The judge did not make a determination about whether her allegations of sexual assault, choking and verbal abuse in front of the children had happened, but concluded that Bukola’s fears about future harm to herself and her children, as well as about the children being taken from her, were “speculative” and without evidence.

The trial judge noted that the couple’s two older children were left in Eyitope’s care when Bukola returned to Canada to give birth to their youngest child.

Eyitope denied that the documents connecting Bukola to the LGBTQ community were intended to paint her as an unfit mother — he blamed the framing on his lawyers writing the divorce application while he was still trying to locate Bukola and the children. (Eyitope said it was included because it was part of his reasoning for wanting to end their marriage.)

He also objects to Bukola sharing her story publicly. “Nobody’s bedroom stories should be online in this way,” he said, adding that he was only speaking to the Star to “set the record straight.”

He said he has also contacted both Bukola and an online fundraiser to say her allegations are defamatory. He added he has filed a defamation claim against her in a Lagos court.

Since their legal battle became public, he said has heard from many men who have lost access to their children and who say he has motivated them to fight for custody.

“My life would have been destroyed,” he said. “I believe this case is not just fair to me but is a win for men around the world.”

Speaking generally, Bala, the Queen’s University expert, said Canadian courts have come a long way in taking family violence seriously but that judges do require credible proof — even if that is harder to get from the country where the alleged abuse took place. Courts also don’t like it when a person does not first attempt to use the court system in their country, because that is where the best evidence and all the witnesses are.

The recent Supreme Court case involving the U.A.E. shows that courts can struggle with determining which foreign legal systems are reliable, he said. In court, that assessment can hinge on the expert witnesses each party produces to explain the foreign country’s legal system.

In the Ajayi case, Bala noted, the judge preferred the testimony of Eyitope’s expert witness, who teaches at the University of Lagos and has expertise in gender and the law.

The next steps in Ajayi v. Ajayi

Since Bukola’s children were taken away on Sept. 17, she said communication with them has occurred only four times in 30-minute increments. After Sept. 17, she claims they “went dark,” as she and Akujobi received no updates on their well-being for a month. She claimed she was not notified when they arrived in Nigeria.

“My request to speak with them daily as part of their bedtime routine was rejected. My request for my parents to have access to them was rejected. The ultimate agreement to speak with them three days a week for 30 minutes each time was not adhered to with last-minute cancellations and outright refusals to even show up to the Google meet link,” Bukola said. (Eyitope said he stopped the calls for the children’s “mental health” because they were distressed by the calls but said she can come see them in person.)

Emails to Eyitope and his lawyer in Nigeria have gone unanswered, Bukola said. “They know I don’t really have any recourse as the wheels of justice turn very slowly in Nigeria.”

Meanwhile, the custody case in Lagos continues but has been held up as a court determines whether Bukola can participate virtually from Canada.

Still in Canada, Bukola has launched a podcast speaking with others in her situation and she continues to promote the online fundraiser to pay court-ordered costs to her ex-husband’s lawyers — $45,000.

She remains sure she will not have a fair hearing in Nigeria and does not regret coming to Canada because she believed it to be her only option at the time.

“I’m in the fight of my life,” she said.