Re v. (Infants)

HCMP000477/1979

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: Silke, J. in Chambers.

Date of Judgment: 4 October 1979

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JUDGMENT

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1. This is an application by the father of the infants for an order that they be made wards of this Court and that they be sent back to Ontario Canada, the Supreme Court of Ontario being the forum conveniens.

2. It is opposed by the mother of the children.

3. The father and mother, now aged about thirty two years, were married on the 14th of September 1968 in Montreal, Canada. They are both Canadian citizens of Italian origin.

4. The infants were born, as to N. on 9th July 1969 and as to V.D. on 1st June 1972, in Montreal - they also are Canadian citizens.

5. On the 15th June 1979 the mother took the children from school, without the consent of the father, and flew to Hong Kong with them.

6. Here she and the children have lived with and been supported by J. a third party and I have been told that the mother and J. hope to marry when their existing marital situations are resolved.

7. On the 4th July 1979 an interim order was made by the Supreme Court of Ontario that the custody of the two children be given to the father and that "all law enforcement agencies of Ontario and Hong Kong that have the power shall give whatever assistance is available for the physical apprehension of the children of the marriage and return them to the applicant in Toronto, Ontario".

8. An originating summons was issued from this Court on the 1st August 1979 seeking the reliefs to which I have referred and this was recorded in the Register of Wards of Court in compliance with 0.91 R1(2) of the Rules of the Supreme Court.

9. A Notice of Appointment to hear the Originating Summons was filed on the 9th of August, the hearing date being the 22nd of August.

10. On that day the matter was opened to me by Counsel then appearing for the applicant father. In the light of the affidavit filed by the mother on the previous day and the allegations contained therein I was not prepared, without hearing the father in respect of those allegations, to make an order in limine for the return of the children.

11. To allow further affidavits to be filed the matter was adjourned to the 12th September as time was needed. Indeed that time was not sufficient and on the 12th September, very conscious of the need for a rapid determination of these proceedings, I, with reluctance, granted a further adjournment until 13th September so that the solicitors concerned could ascertain how long was required to have affidavits placed before the court.

12. On the 13th September the matter was further adjourned to the 27th of September the date of the present hearing.

13. In the meantime I had, on the 9th August, requested that the Court be provided with a Social Welfare Report and a similar report from the appropriate Canadian authority. I did receive a useful, within the obvious limitations imposed upon the case worker, report from the Social Welfare Office together with, at a later stage, a further Report on the position as to the schooling of the children and the Immigration status of both the children and the mother.

14. I have not received any report from the Canadian Authorities.

15. I have been informed that the Supreme Court in Ontario has now made a permanent order for the custody of the infants to be in the father with an express reservation of the rights of the mother to make application for the custody of the infants at such time as the children are returned to Ontario.

16. The relevant court documents were served on mother in Hong Kong. I have not seen a copy of the permanent order of the Canadian Court.

17. May I say at once that this court is in the difficult position of not having any oral evidence before it. The father is still in Canada and there was no application to cross examine either the father or the mother, or any of the deponents to the numberous affidavits placed before the Court.

18. And, on those affidavits, there are substantial areas of controversy which it is quite impossible to resolve.

19. I simply instance matters such as the course of the marriage as deposed to in the affidavits of the father and the mother: the allegation of ill treatment, the allegations that the father uses the drug marijuana with the ancillary dispute as to whether or not one of the Canadian deponents was asked by the mother to say the father did so use a drug and the state of the father's finances, to illustrate that which I mean.

20. I thought it proper to consider as best I could the particular allegations contained in the mother's affidavit as to ill treatment of the children by the father. And further that which the mother stated to be her understanding of Canadian law in relation to matrimonial and custody matters.

21. In her affidavit filed on 21st August (para. 10) she gives as one of her reasons for coming to Hong Kong the fact that J., with whom she had worked in Canada and with whom she had worked in Canada and with whom she had formed a liaison there, was being transferred to Hong Kong. She swore however that her primary reason was "that I had to go to a country which would determine the issue of custody in accordance with criteria prevelant in most English speaking jurisdictions namely the first and paramount consideration would be the welfare of the children concerned".

22. She stated earlier in the same affidavit that she had been advised that the approach of the Ontario Courts was to attach "inordinate importance to the parents' ability to provide material things for the children and that, before such Courts in dispute over custody, a parent who could provide more of such things was in an unduly advantageous position as compared to the other parent whose contribution was more in the nature of love and affection".

23. I have before me an affidavit of Canadian Law. This was sworn to by the Barrister and Solicitor of the Supreme Court of Ontario who represents the father in that jurisdiction and who is the Canadian agent of his Hong Kong solicitors. It would have been preferable had such an affidavit been sworn to by an independent expert in the law administered in the Courts of Ontario. Furthermore it contains matter such as that in its paragraph 3 which should never appear on affidavits of this nature and it must be wrong in its paragraph 9(1) - there are two paragraphs 9 - where it states that "Even on the question of maintenance let alone custody the only conduct which is so base as to repudiate the marriage would be admissible. An example of such conduct might be a spouse refusing to have sexual relations with another spouse, while carrying on an incestuous relationship with one of the children". Surely the conduct of the parties in general and not simply in such an extreme case is a matter any Court would consider when the matter of custody is before it?

24. Be that as it may, the affidavit does recite certain provisions of the Family Law Reform Act of Ontario. Section 35 makes it clear that a custody order is made "in accordance with the best interests of the child".

25. There are obligations under Sections 15 and 16 of the Act to make provision for a spouse and to provide support for a child under the age of sixteen.

26. Finally there are legal aid facilities available as of right to anyone who finds it a hardship to pay for them.

27. I might add in this connection that I have no information as to the finances, if any, of the mother and there is disputed evidence as to those of the father. The latter, on the face of it, while not a person of great wealth, is by no means a pauper.

28. In the absence of anything to contradict that which has been advanced to me as being the law of Ontario on the subject I think the mother's understanding of what provisions are applicable to matters of custody to be incorrect.

29. There is no dispute here - nor could there be - that the paramount consideration of this Court is the welfare of the children.

30. Mr. Bokhary for the mother suggests that there are three courses open to me: to make an order in terms of the originating summons: to simply make the children Wards of this Court so that they are under the supervision of this Court without making any order for their return to Canada: to make a custody order in favour of the mother.

31. The second alternative is one which in no way appeals to me as it would, I think, be abrogating the responsibility of the Court and leave the matter virtually undecided.

32. I have power, despite the order of the Canadian Court, to make an order of custody to the mother. Were I minded so to do I would of course give grave consideration to the order of the Canadian Court but the first and paramount consideration, with no disrespect at all to the Courts of Canada, is the welfare of the children. (See McKee v. McKee [1951] A.C. 352 an appeal from the Supreme Court of Canada to the House of Lords although there was a deliberate evasion of the order of a competent foreign court and the line through In Re. T [1968] Chancery 704: where there was no breach of any order of a Foreign Court and the children were in fact returned and the merits were considered; In Re. A [1970]3 All E.R. 184 where an investigation on the merits was held: In Re. L [1974]1 W.L.R. 250 where it was held that where the court embarked on a full scale investigation of the facts the principles applicable in a kidnapping case did not differ from those which applied to any other wardship case, to In Re. C[1977]3 W.L.R. 561 which applied In Re. L (supra)).

33. The mother's possibility of remarriage in Hong Kong to J. depends, so it appears, on either a residential qualification coming into being in Hong Kong or recourse being had to the "substantial connection" provision contained in Section 3 of the Matrimonial Causes Ordinance. While it is not for me to express any concluded view on a petition based on the latter I do have some doubt as to its possible application. It is likely, on the face of the proceedings here, that any petition would be contested which could lead to protracted proceedings. There are, as far as I am aware, no divorce proceedings instituted in Canada.

34. J.'s divorce, on the ground of non-consummation, has not yet reached the decree nisi stage but I am informed that this is possible before the Canadian Courts in a very short while. In the normal course three months must elapse thereafter before the Decree is made absolute.

35. J. is employed by an international business concern and he is subject to transfer from Hong Kong. While he has an assurance that this is not likely to happen before the expiration of three years from now and while his firm is treating the children, for the purpose of financial benefits, as his dependants this is a factor which I must take into consideration in respect of the stability of the children's environment.

36. The children are now in school in Hong Kong - it was imperative that their schooling be not disrupted. They have student visas: the Immigration Department is considering extending the mother's visitor's visa on the basis of her being the "de facto" wife of Jones.

37. I might interpolate here that the children are obviously having every care taken of them by the mother, with the considerable assistance of J. while in Hong Kong. I saw them, and more delightful and well mannered children it would be hard to find. They appear to view their Hong Kong stay as a form of holiday but the strong impression that I have gained from them of their Canadian life was one of a normal happy family. They were chastised on occasions by both the mother and the father. The most serious punishment they received was what they termed "grouned" - or being confined to their rooms when "really bad" such as crossing waste land in the evening in disobedience of their parents' orders.

38. The view I formed after seeing them alone for approximately one hour was that the mother's comments on paragraph 10 of the father's 1st affidavit, contained in paragraph 11 on page 6 of her first affidavit, were exaggerated.

39. All the persons concerned here are Catholics, including J. but it does not appear that their religion bears heavily upon them. The family seldom went to Sunday Mass together in Canada, the children often went alone - in Hong Kong they have not yet been to church.

40. While their religious beliefs, and the opportunity to practise them, are factors for the consideration of this Court they are not of great importance in this instant case.

41. Normally in cases such as these the "taking root" problems cause the courts grave anxieties. As to this there is no suggestion here that the children would remain, should I grant custody to the mother, in Hong Kong for any appreciable length of time. They are, and would continue to be, transients. While they have been here since the middle of June and while I indicated on more than one occasion that celerity in the determination of these proceedings was essential, "taking root" is not, as I see it, the difficult problem it can be in other jurisdictions.

42. I accept that the present home in Toronto has not been the family home for any great period of time. They first lived in Montreal where their maternal grandparents still live. They then moved to Italy, in particular Sicily where their paternal grandmother lives, for a year. They then moved back to Canada and started to live in Toronto. The children have been back, on their own, to Sicily for a holiday since then but, as neither of them are fluent in Italian, the boy speaking little if any, I got the impression from them that they did not enjoy this visit very much.

43. The upshot of all this or that they have led a somewhat peripatetic existence though their main base is Canada. It is the mother's contention that the father would be incapable of looking after the children on his own. He counters that by saying that "any number of women of excellent background will be furnished to me by the church to look after the children while I am working" - the second affidavit of the father paragraph 32. The mother rejoins by stating in her second affidavit, paragraph 23(x), that she spoke to Fr. B. of the nearby church on the question of baby sitters and that he told her that local women were too affluent to do this sort of thing. Fr. B. in his wide sweeping affidavit filed in these proceedings makes no mention of this matter.

44. I might add that I am not impressed with the Canadian support affidavits which are emotive, very generalised and do not assist the Court to any great extent.

45. I do not intend to refer to them other than one particular one. In the mother's first affidavit she refers, in paragraph 12, to two matters of consequence: the taking of drugs by the father and his dishonesty.

46. As regards the first she says he was first introduced to marijuana at a party in 1970, smoked regularly thereafter and in the past year has increased his consumption. He also drinks to excess - this in her second affidavit.

47. This is denied by the father in paragraph 35 of his second affidavit. There is as well the affidavit of M. B. an employee of the father. It is his evidence that on the 22nd August 1979 he received a telephone call from the mother in Hong Kong. He says that amongst other things she asked him if he was aware that the father used narcotics. To this he states he replied that he did not know what the father did outside working hours but he had never seen any evidence of any narcotics. He goes on that the mother asked him if he remembered the father smoking marijuana and asked him further to write her a letter stating that he (the father) had done so.

48. She told him she was going to Court and she asked his help in connecting the father with drugs and marijuana saying that M. B. "was her only hope".

49. The affidavit then becomes emotive.

50. In her second affidavit the mother tells, in paragraph 16, a totally different story of the telephone conversation stating that M. B. said he did remember the father's smoking marijuana but that he did not want to get involved as he was afraid of losing his job. He was asked to make an affidavit, he refused but said he would think about it and would consult his lawyer to see if he could make such affidavit without his suffering any legal consequences.

51. The mother goes on to aver that M. B. did give drugs to the father in front of other staff members at a Christmas party in their home on 17th December 1978.

52. I have also had the benefit of a dissertation by a psychiatrist in Hong Kong on the harmful effects of the use of marijuana itself, and when taken in conjunction with alcohol. This of course must, from its nature, be general and not specific to the father whom the psychiatrist has not seen.

53. As to dishonesty: the mother alleges that since 1975 the father boasted of his altering the price tags on articles he wished to buy before he purchased them. She goes on that she knows he was caught in a store in Montreal in December 1975 and in a store in Toronto in 1978.

54. The father denies these allegations in his second affidavit. He states that his solicitor has written to the Montreal stores making enquiries on his behalf but no answers had been received by the 14th September - the date he swore the affidavit. He states that he himself has spoken to the Toronto store and they have told him they know of no such incident. And there the matter rests.

55. Mr. Bokhary in his usual able and fair submission emphasised the absence of the father in this court. He does of course run his own business, that of a hairdresser, in Toronto but he does have employees and his absence here on a matter of such importance, not only to himself but also to his children is to be regretted and quite properly commented upon. The other side of that coin is of course the "kidnapping" of the children by the mother which had, to state the obvious, the effect of removing them from the jurisdiction of their Courts of residence.

56. Having a suspicious mind I was conscious of the possibility, and I put it no higher, that the father is sitting back and putting pressure on this Court by his absence. Also the possibility, again I put it no higher, that the mother by removing the children to this jurisdiction is playing the same game in reverse. I am not to be taken as saying either of the parents is using the children as a pawn in the matrimonial stakes - Mr. Bokhary concedes that both equally give the appearance of genuine love for the children. It is clear from the children themselves that their preference would be to be with both their parents at the same time, were that possible.

57. Again this is not to denigrate in any way J. whom they like and who, as I have said, treats them very well. It is to the credit of both the mother and J. that there appears no attempt to poison the minds of the children as against their father.

58. At the outset of this judgment I said that there were areas of controversy which it is impossible for a Court to resolve on affidavits alone. I would add that the affidavits of both the father and the mother contain apparent untruths which makes the task of this Court no easier.

59. I am concerned not only with the immediate welfare of the children but also, and rather more important in the context of these proceedings, their long term welfare. I bear in mind that this is a kidnapping case, without giving that factor undue prominence in my decision, but the probability of injustice being caused to the innocent parent is something which arises from this aspect.

60. I should, and do, give respect to the order of the Court of Ontario - which has not been defied by the mother not being in existence when she brought the children here.

61. It is not possible for me to go into the "last dregs of the dispute between the parents" (Re. T (Infants)(Supra)) and I have weighed all the matters which have been brought to my attention either on the affidavits or in the course of argument with anxious consideration in that which Counsel has described, and rightly so, as a tragic case. This includes the possibilities of any harm to the children should they be sent back to Canada and a consideration of Mr. Bokhary's argument on the issues in general. If I have not referred in detail to every aspect of Mr. Bokhary's argument it is neither from lack of respect or lack of consideration for it.

62. It is, I think, open to the mother, however much this may disrupt her personal life, to return to Canada. It is open to her to make application for custody to the Ontario Courts.

63. This Court cannot be compelled in the circumstances here, to say that either the father or mother ought to have the care or control of the children. Indeed I would not go so far as to express any concluded view on this. I do not think it would be proper for me to do so.

64. From the investigations which I have been able to carry out, and which I thought to be necessary before making any decision in the matter, I am satisfied that no harm will come to the children should they be returned to Canada and that their future welfare necessitates this.

65. The Canadian Courts will be in a much better position to deal with custody applications which must affect, strongly, the future welfare of the children.

66. Reluctantly, but firmly, I would grant the reliefs asked for in the originating Summons - Direct that the children be made wards of this Court and that they be returned to Ontario Canada when their wardship will terminate.

Representation:

Mr. Stephen Ma, instructed by Chow & Howell for Plaintiff/father.

Mr. Kemal Bokhary, instructed by Johnson, Stokes & Master for defendant/mother.