A PARENT’S WORST NIGHTMARE: INTERNATIONAL CHILD ABDUCTION

  

Child abduction is the worst kind of child abuse. To wrongfully remove a child from his or her primary parent is the ultimate weapon used by a warring parent. This truism is amply displayed in the case of Y.Q. v. J.D. 2021 BCSC  943 and 2021 BCSC 1185.  While the facts in this case are not unusual, as subterfuge is typically a feature of these cases, and the law regarding jurisdictional disputes is well-established, the young girl in this case, aged four, was spirited away from her home in Richmond, British Columbia by her father who, was a commercial pilot for Sichuan Air. He flew her and her maternal grandmother to China in October of 2019. The child’s mother consented to the trip, assured by the fact that a return ticket was secured for her daughter’s return two months later, and her mother accompanied the child. But the child was not returned and the heartache began.

The parties met through their employment, as Ms. Q. was a flight attendant for Sichuan Air. They fell in love and agreed to move to British Columbia where Mr. D. would seek employment with Air Canada and Ms. Q would attend university. In October 2015 the parties purchased a condo in Richmond, BC  and married in December 2015. Mr. D. spent three to four days twice a month in Richmond and continued to fly with the Chinese airline.

Six months later their daughter A.D. was born, and Ms. Q.’s mother travelled from China to BC to assist Ms. Q. with her care. A.D.’s maternal grandmother travelled to Canada on a visitor’s visa which required her to return to China twice a year. On those occasions she would take A.D. with her to China and often Ms. Q. would travel with them. When Mr. D. was on layovers in Vancouver and on his vacation days he participated in his daughter’s care and took her to daycare. 

In order to facilitate A.D.’s travel to China Mr. D. deposed that he and his wife attended at the Chinese Consulate in Vancouver and relinquished A.D.’s Canadian citizenship in favour of China. Ms. Q denied this suggestion.

The parties disagreed as to the date they believed their marriage was at an end. Ms. Q. said it was over in June 2019 while Mr. D. said that they separated in late 2019 or early 2020.

Upon arriving in China A.D. lived with her maternal grandmother in her home but after the child was diagnosed with pneumonia, resulting in her hospitalization, Mr. D. and A.D. resided in his home with his parents. After December 2019 A.D.’s grandmother no longer had any contact with her granddaughter.

In November 2019 Mr. D. had a layover in Vancouver and registered a spousal protection lien against the condo in Richmond, which was in Ms. Q.’s name.  He also insisted that Ms. Q. provide him with an enduring power of attorney in his favour, but she declined. By Spring 2020 the covid pandemic shut down international borders and the conflict between the parties escalated. Mr. D. refused to facilitate video conferencing between mother and child and accused Ms. Q. of infidelity. After significant pressure from Mr. D., Ms. Q. admitted to infidelity, although untrue, in order to appease her husband and gain access to her daughter.

Mr. D. then began “negotiating” with his wife by demanding that she agree to have his name tattooed on her body and that she have her vagina and ovaries removed. The chambers judge found that the request for the tattoo was proven but the radical surgery was not, despite the evidence of a recorded phone call between the parties where Mr. D. allegedly said:

“If you look for a man, the man won’t want you, you’ll age very fast, because you wouldn’t have any sexual functions. You can donate vagina too; ovaries can be donated too. You can be a normal person, everything you do would be to look after [A.D.] and then I will support the family because I should, you will take care of the home and child because you should.”

Or you will never see [A.D.] again for the rest of your life. Won’t contact, hide very well.”

In May 2020 Mr. D. commenced a court action in China seeking alimony, division of Ms. Q.’s property, and damages for Ms. Q.’s alleged marital indiscretions, stating that Ms. Q. resided in China. He also obtained a residency card for his daughter in China by falsely claiming China was her residence.

In July 2020 Ms. Q. filed proceedings in British Columbia, followed by Mr. D.’s filing of a Jurisdictional Response, challenging the court’s jurisdiction. The BC court reviewed the framework for a jurisdictional dispute and identified two distinct elements: territorial competence and forum conveniens, pointing out that the former invokes a consideration of whether the court can hear the dispute and the latter, whether the court should hear the dispute. The court referred to the Court Jurisdiction and Proceedings Transfer Act and the provisions of the Family Law Act and the Divorce Act.

The court undertook a detailed analysis of the applicable law, which ought to be a primer for counsel engaged in family law cases where the court’s jurisdiction is a primary issue.  The court made the following findings of fact:

  1. A.D.’s habitual residence was British Columbia as Ms. Q. did not consent to her permanent removal from Canada.
  2. While China considers the best interests of a child in a custody dispute they also introduce “fault” into the analysis, contrary to Canadian courts where the child’s best interests is the sole factor.
  3. Ms. D. had used A. D. as a negotiating chip in his dispute with his wife, behavior that constituted family violence.

The Court determined that British Columbia had jurisdiction over all aspects of the dispute between the parties, including custody, child support, spousal support, and property division.  In a separate decision (2021 BCSC 1185) the court made a variety of orders including:

  1. That the parties share joint guardianship and equal parenting responsibilities under s. 41 of the Family Law Act;
  2. That Mr. D. shall cooperate in renewing A.D.’s Canadian passport;
  3. That contact between A.D. and her maternal grandmother be reinstated;
  4. That Mr. D. shall facilitate a video chat between Ms. Q. and A.D. every evening at 8:30 pm.

It remains to be seen whether A.D. will ever be returned to Canada, as China is not a signatory to the Hague Convention on Child Abduction and is known to be averse to returning a child brought to China by a Chinese parent to his or her home country. Jeffrey Morley, a renowned American attorney who specializes in international child abduction confirms this, and this writer believes that Canada has the same problems with China regarding child abduction as the United States. Morley says that it does not appear that China will ever sign onto the Hague Convention and that Chinese courts do not recognize orders from foreign courts…a depressing reality for left-behind parents. 

Georgialee A. Lang is a lawyer and arbitrator in Vancouver and Kelowna, B.C. Lang has practised family law for 31 years, recently focusing primarily on arbitration and appellate litigation. Lang is a writer, speaker and media commentator whose publications range from the Huffington Post to the National Post and  The Lawyer’s Daily. For fun she pens a blog (lawdiva.wordpress.com). Connect with her at georgialeelang.com or on TwitterThis article was originally published by The Lawyers Daily a division of Lexis-Nexis at thelawyersdaily.ca

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