COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

Shortridge-Tsuchiya v. Tsuchiya
,

2010 BCCA 61

Date: 20100209

Docket:
CA037139

Between:

Theresa Shortridge-Tsuchiya

Appellant/Respondent on Cross Appeal

(
Plaintiff
)

And

Sakae Tsuchiya

Respondent/Appellant on Cross Appeal

(
Defendant
)

Before:

The Honourable Madam Justice Rowles

The Honourable Madam Justice Prowse

The Honourable Mr. Justice Lowry

On
appeal from the Supreme Court of British Columbia, April 21, 2009 and September
4, 2009 (
Shortridge-Tsuchiya v. Tsuchiya
, 2009 BCSC 541 and 2009
BCSC 1217, Nanaimo Docket E54989)

Counsel for the Appellant:

P.
  Golden

Counsel for the Respondent:

M.A.
  Thomas

Place and Date of Hearing:

Vancouver,
  British Columbia

November 17 & December 11, 2009

Place and Date of Judgment:

Vancouver
, British Columbia

February
  9, 2010

Written Reasons by
:

The Honourable Madam Justice Prowse

Concurred in by:

The Honourable Mr. Justice Lowry

Dissenting Reasons by:

The Honourable Madam Justice Rowles (page
  44, para. 136)

Reasons for
Judgment of the Honourable Madam Justice Prowse:

INTRODUCTION

[1]

This case raises issues regarding the
interpretation and application of Part 3 of the
Family Relations Act
,
R.S.B.C. 1996, c. 128 (the
FRA
), in circumstances where a child in the
joint care of his parents has been removed by one parent from a jurisdiction,
Japan, which is not a signatory to the
Hague Convention

on the Civil
Aspects of International Child Abduction,
25 October 1980, 1343 U.N.T.S.
22514, Can. T.S. 1983 No. 35 (entered into force 1 December 1983) (the
Hague
Convention
).

[2]

Ms. Shortridge-Tsuchiya (the mother) is
appealing from the order of a chambers judge, made April 21, 2009 (the
jurisdictional order), containing the following terms:

1.       The Supreme Court of British Columbia has no
jurisdiction pursuant to section 44 of the
Family Relations Act
,
R.S.B.C. 1996, c. 128 to make an order relating to the care and custody of the
Child:

Taiyo Tsuchiya,
also known as Taiyo George Tsuchiya, born August 6, 2001.

2.       Pursuant to section 47 of the
Family
Relations Act
, R.S.B.C. 1996, c. 128, the Plaintiff shall return with the
Child to Japan so that the issues relating to the Childs custody, access and
guardianship can be decided in Japan.

3.       The order under paragraph 2 hereunder is
stayed until:

(a) the Defendant pays to the Plaintiff the reasonable travel
expenses for the Plaintiff and the Child to return to Japan; and

(b) the Defendant secures payment to the Plaintiff of a sum
of money that is sufficient to cover the reasonable living expenses of the
Plaintiff and the Child in Japan until the issues relating to the Childs
custody, access and guardianship can be decided there.

4.       The parties have liberty to
apply should they be unable to agree as to what payment is required of the
Defendant and as to the amount and manner of securing payment of living
expenses.

5.       Pursuant to section 47 of the
Family Relations
Act
, R.S.B.C. 1996, c. 128, the Plaintiff shall have interim custody, care
and control of the Child and the Defendant shall have reasonable and generous
access to him, pending a decision on these issues by the courts in Japan.

[3]

The jurisdictional order further provided that
if the father did not pay the required expenses pursuant to s. 47 by a set
date, the mother had liberty to apply to have the issues of custody and access
determined in British Columbia.  If the father paid the required expenses and
the mother failed to return with the child to Japan as directed, then the father
had liberty to apply for interim custody to enable him to return with the child
to Japan.  Finally, the parties were ordered to pay their own costs of the
application.

[4]

The parties were unable to agree as to the
appropriate amount of expenses and returned before the chambers judge on May
13, June 17, July 3, and August 19, 2009.  Following that hearing, the chambers
judge made an order on September 4, 2009 (the expenses order) requiring the
father to pay $17,000 to the mother on or before October 31, 2009 for the
travel expenses of the mother and the child to return to Japan, and for the
costs of the mother re-establishing a household in Japan.  The father was also
ordered to pay $84,000 into the trust account of the mothers lawyer, from
which a sum of $3,500 was to be paid to the mother on the first day of each
month representing the costs of the mother and child in Japan pending a
determination of the issues of custody and access in that jurisdiction.  At
that time it was estimated that, in the absence of agreement, a final
resolution of those issues could take up to two years in Japan.

[5]

The expenses order further provided that if the
father made the requisite payments, the mother was to return to Japan with the
child on or before November 30, 2009.

[6]

The father is cross-appealing from that aspect
of the jurisdictional order giving the mother interim custody pending the
childs return to Japan.  Although no separate Notice of Appeal has been filed
in relation to the expenses order, the father also seeks to appeal from that
order to the extent it exceeds the $17,000 travel and start-up costs for the
mother and child on their return to Japan.  The parties agree that it is
appropriate for this Court to make an order with respect to that issue.

[7]

The parties seek to have all of these issues
resolved by this Court in order to avoid the inevitable delays which would
occur if matters were remitted to the Supreme Court.  There have already been
regrettable delays in concluding the fathers application in the Supreme Court
because of the necessity of a second hearing regarding expenses.  There was a
further, unavoidable, delay when this appeal had to be adjourned for
continuation from November 17 to December 11.

[8]

At the conclusion of the appeal, this Court
stayed the orders of the chambers judge pending the release of this decision.

THE
ISSUES

[9]

The mother submits that the chambers judge erred
in finding that the Supreme Court of British Columbia did not have jurisdiction
to decide the issues of custody and access, and, in the alternative, in finding
that if the B.C. Supreme Court had jurisdiction, it was appropriate to decline
jurisdiction under s. 46 of the
FRA
in favour of the courts in Japan.

[10]

In particular, the mother submits that the
chambers judge erred as follows:

(1)      by conflating the
considerations under sections 44 and 46 of the
FRA
in making his
jurisdictional order;

(2)      by making his
jurisdictional order under the misapprehension that proceedings the husband had
commenced in Japan the day following the commencement of the mothers action
for custody and access in B.C. were extant at the time he made his
jurisdictional order;

(3)      by finding,
without an evidentiary foundation, that it would be unusual for a mother to be
denied custody in Japan; and

(4)      by inferring that the legal
system in Japan would be able to protect the best interests of the child if the
case was remitted to Japan.

[11]

The mother also submits that, if all other bases
for finding or asserting jurisdiction in the B.C. Supreme Court failed, the
court should have called in aid its
parens patriae
jurisdiction to
assert jurisdiction and to dismiss the fathers application.

[12]

The father seeks to uphold the jurisdictional
order except with respect to the provision awarding the mother interim custody,
and the provision with respect to costs which, he submits, should have been
awarded in his favour.  With respect to the expenses order, he submits that the
chambers judge erred in his application of s. 47 of the
FRA
by
making an order for expenses which was the equivalent of an order for spousal
and child support in accordance with the support guidelines applicable in
British Columbia, and which went beyond the nature and extent of expenses
contemplated under s. 47.

[13]

There is also an issue as to the admissibility
of fresh evidence filed by both parties, much of which relates to the
substantive and procedural law of Japan in relation to issues of custody, and to
the enforcement of foreign court orders.

CONCLUSION

[14]

In my view, the chambers judge erred, in part,
in his analysis under s. 44 of the
FRA
and in finding that the B.C.
Supreme Court did not have jurisdiction to make an order for custody of, and
parenting rights with respect to, the child.  I agree with his alternative
finding that, assuming the B.C. Supreme Court had jurisdiction (and I find that
it did), British Columbia should decline jurisdiction pursuant to s. 46 of the
FRA
in favour of Japan.

[15]

In coming to these conclusions, I have considered the fresh
evidence, but I have concluded that most of it is not sufficiently reliable to
meet even the flexible application of the test for the admission of fresh
evidence which has been applied in family law cases.  I have also concluded
that the evidence which I do find reliable could not reasonably, when taken
with the other evidence, be expected to have affected the result reached by the
chambers judge.  I would decline to admit the fresh evidence on that basis.

[16]

I find no merit in the grounds of appeal
alleging that the chambers judge misapprehended the evidence, or that he may
have reached a different conclusion on the jurisdictional issue had he been
aware in a more timely fashion that the father had discontinued his divorce
proceedings in Japan.

[17]

Finally, I  am not persuaded that the chambers
judge erred in awarding the mother interim custody of the child, in the nature
and extent of the expenses he ordered pursuant to s. 47 of the
FRA
, or
in ordering each party to bear his or her own costs.

[18]

I would dismiss the mothers appeal with
respect to the jurisdictional order and the fathers cross-appeal with respect
to the issues of interim custody, expenses, and costs.  I would vary the
expenses order to extend the time for the mother to return with the child to
Japan to no later than March 14, 2010.  I would vary the jurisdictional order
by deleting para. 1 and substituting an order that the Supreme Court of British
Columbia declines jurisdiction over the child except to the extent of the
orders for interim custody and the payment of expenses made pursuant to s. 47
of the
FRA
.

BACKGROUND

[19]

The mother, now 39 years of age, is a Canadian
citizen who was born in Burlington, Ontario and moved to Japan in 1995 to teach
English.  The father, now 51 years of age, was born and raised in Japan and is
self-employed as an electrical engineer.   The parties began dating in 1997 and
married in March 2000.  Their son was born in August 2001 and is now eight
years of age.  He has dual Japanese-Canadian citizenship.

[20]

As of 2005, the parties lived in a three story
home in Kasugai, Japan.  The fathers parents occupied the first floor; the
fathers office was on the second floor; and the parties lived with the child
on the second and third floors.  The fathers parents, now in their late 70s,
often took care of the child while the parents worked and when the child was
not in kindergarten.

[21]

In 2006, the parties were experiencing
significant difficulties in their marriage.  An attempt at counselling was
unsuccessful.  In December 2007, the father advised the mother that he intended
to seek a divorce.  He hired a lawyer and applied for Coordination and
Mediation of Marriage with the Nagoya Family Court in July 2008.  This was in
accordance with Japanese law, which requires the parties to participate in a
mediation and reconciliation process prior to divorce.  The first mediation
session was held on September 4, 2008, and the second session was held on
October 8, 2008.  These efforts at mediation were unsuccessful.  A third
mediation session was scheduled for November 5, but, on November 1, 2008, the
mother flew with the child to British Columbia.  The mother did not advise the
father she was leaving Japan, nor did she seek his consent to take the child
with her.  Instead she advised him that she was taking the child to a camp for
a few days.  On November 5, the mothers lawyer advised the father that the
mother and the child had gone to live with the mothers parents in Nanaimo.
She and the child have been living in Nanaimo with the mothers parents since
then.

[22]

The mother commenced an action pursuant to Part
2 of the
FRA
in the B.C. Supreme Court on November 20, 2008 seeking
custody and guardianship of the child, and child and spousal support.

[23]

The following day, on November 21, the father
brought a proceeding in the Nagoya Family Court seeking a divorce and custody
of the child.  In the meantime, on November 5, 2008, upon being advised that
the mother and the child had left the jurisdiction, the court in Japan issued a
Certificate of Failure of Mediation which ended the mediation proceedings.

[24]

The father withdrew his proceedings for divorce
on February 15, 2009 after receiving legal advice from his Japanese counsel
that there was no point in pursuing that action while the child was subject to
outstanding proceedings in British Columbia.  Thereafter, on April 6, 2009, he
brought an application pursuant to Part 3 of the
FRA
seeking, amongst
other relief, an order that the B.C. Supreme Court decline to exercise its
territorial competence in this proceeding.  He also asked that the mothers
action be struck out or stayed, and that he be granted interim custody of the
child pending the making of an order in Japan.

THE
JURISDICTIONAL DECISION

[25]

The chambers judge observed that Japan was not a
signatory to the
Hague Convention
, and conducted his analysis under Part
3 of the
FRA
.  In applying Part 3, he drew the following conclusions:

(1)      that the purpose
of Part 3 is to ensure that applications for custody and access are determined
on the basis of the best interests of the children;

(2)      that one of the
purposes of Part 3 is to recognize that concurrent exercise of jurisdiction
over custody and access by more than one state is to be avoided;

(3)      that another
purpose of Part 3 is to discourage the abduction of children from one
jurisdiction to another;

(4)      the child was not
habitually resident in British Columbia at the time of the fathers
application, but his habitual residence was in Japan;

(5)      utilizing the
criteria in s. 44(1)(b) of the
FRA
:

(i)       the child was physically
resident in B.C. at the time of the application;

(ii)      there was limited, short-term evidence
relating to the childs best interests in B.C., but there was not substantial
evidence concerning his best interests within the jurisdiction;

(iii)      there was no application
for custody or access to the child pending before an extra-provincial tribunal
in another place where the child is habitually resident (Japan);

(iv)     there was no
extra-provincial order in respect of custody or access which has been
recognized by a court in B.C.;

(v)      the child had a real, but
not a substantial connection with B.C.;

(vi)     on the balance of
convenience, it was not appropriate for jurisdiction to be exercised in B.C.;

(6)      he would decline jurisdiction
pursuant to s. 46 of the
FRA,
even if the courts of B.C. had
jurisdiction under s. 44.

[26]

The chambers judge then considered the mothers
submission that the child would suffer discrimination in Japan due to his mixed
racial heritage.  It is not clear whether her submission in this regard was
intended to raise the prospect that the child would suffer serious harm
within the meaning of s. 45 of the
FRA
if he were returned to Japan, or
whether she was calling upon the court to exercise its
parens patriae
jurisdiction.  In either case, the chambers judge stated (at para. 60) that
There is at present no unusual reason for this Court to assume jurisdiction.
In his view, the Japanese courts were in a better position to address any
issues of discrimination in relation to either the mother or the child.

[27]

After concluding that the B.C. Supreme Court had
no jurisdiction pursuant to s. 44 of the
FRA
, or that, if jurisdiction
existed, he would decline jurisdiction under s. 46, the chambers judge
made an order under s. 47 giving the mother interim custody of the child
pending determination of the issues of custody and access in Japan.  He
accepted the mothers submission that the father had been unilaterally and
secretly controlling the familys finances in Japan and had failed to pay child
support while the child was in Canada.  He concluded, therefore, that it was
appropriate to make an order requiring the father to pay reasonable travel and
other expenses of the mother and the child pursuant to s. 47 of the
FRA
to enable custody to be determined in circumstances where both parties could
participate meaningfully in the court process in Japan.  He provided that his
order returning the child to Japan should be stayed until the father had secured
payment of those expenses, at which time the mother was to return with the
child to Japan.  He also provided that if the father did not secure the
expenses, or, if he did so and the mother refused to return with the child to
Japan, either party could apply to the court for relief.

[28]

The chambers judge concluded that the parties
had enjoyed mixed success on the fathers application, and he declined to make
any order as to costs.

THE
EXPENSES DECISION

[29]

The parties were unable to agree on the
appropriate amount of expenses to be paid by the father pursuant to the
jurisdictional order.  They returned to court and made detailed submissions
with respect to that issue.  In the result, the chambers judge made the order
referred to at para. 4,
supra
.  In determining the quantum of expenses,
the chambers judge found that it was unlikely that the mother would earn income
of any consequence during the legal process in Japan; he rejected the fathers
submission that the mother and child should return to live in the former
matrimonial home even if the father moved out; he rejected the figures put
forth by the father and the mother; and he arrived at the amount he considered
appropriate by reference to the child and spousal support guidelines applicable
in British Columbia as a useful yardstick.  In applying the guidelines, he
estimated the fathers income as $100,000, and the mothers income as nil.  He
concluded his reasons by stating that it was for the courts of Japan to make
orders relating to this family, including court costs and other financial
issues outstanding between them.

DISCUSSION
OF THE ISSUES

1.

Introduction

[30]

The most significant issue on this appeal is
whether the trial judge erred in his interpretation of Part 3 of the
FRA
and in its application to the facts before him.  A related issue is whether,
and to what extent, the fresh evidence is admissible.

[31]

As earlier stated, I am of the view that the
other grounds of appeal are without merit.  I will address those grounds at the
conclusion of my Part 3 analysis.

2.

Part
3 of the
FRA
 Interpretation and Application

[32]

It is apparent from the submissions made on
behalf of the father and the mother on this appeal that they are not in
agreement as to either the interpretation or application of several provisions
of Part 3 of the
FRA
.  For that reason, it is useful to begin this
discussion with the basic principle of statutory interpretation which is set
forth in many decisions, including
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998]
1 S.C.R. 27, 154 D.L.R. (4th) 193, where Mr. Justice Iacobucci, speaking for
the court, stated as follows (at para. 21):

Although much has
been written about the interpretation of legislation [references omitted] Elmer
Driedger in
Construction of Statutes
(2
nd
ed. 1983) best
encapsulates the approach upon which I prefer to rely.  He recognizes that
statutory interpretation cannot be founded on the wording of the legislation
alone.  At p. 87 he states:

Today there is only one principle or
approach, namely, the words of an Act are to read in their entire context and
in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.

This statement of principle has been
restated in many decisions of the Supreme Court of Canada and is not
contentious.

[33]

With this principle in mind, and in order to
place the jurisdictional issues raised in this appeal in context, it is useful
to review, briefly, the interaction between Parts 2, 3, and 4 of the
FRA
in relation to the facts of this case.

[34]

The mothers action for custody of the child was
commenced under Part 2 of the
FRA
which is headed Child Custody, Access
and Guardianship.  The most relevant provisions of Part 2 for the purpose of
this discussion are ss. 24, 34, and 35.  In summary, s. 24 provides that, when
making an order under Part 2, a court must give paramount consideration to the
best interests of the child; s. 34 provides that where the father and mother
are living together they may jointly exercise custody over a child; and s. 35
provides that:

35(1)
Subject
to Part 3,
a court may, on application, order that one or more persons may
exercise custody over a child or have access to the child.  [Emphasis added.]

[35]

Before turning to Part 3, it is relevant to note
that Part 4 of the
FRA
, headed International Child Abduction, provides
(in s. 55(2)) that the
Hague Convention
has the force of law in British
Columbia.  Subsection 55(6) of Part 4, however, makes it clear that it is Part
3 of the
FRA
which applies to jurisdictional disputes where, amongst
other things, a child who, immediately before a breach of custody or access
rights, was habitually resident in a state other than a contracting state
(s. 55(6)(b)). As will become apparent, I am satisfied that the mother
removed the child from Japan, his habitual place of residence, in breach of the
fathers custody rights.

[36]

The most important provisions of Part 3 for the
purpose of this discussion are ss. 43-47.

[37]

The purposes of Part 3, headed Extraprovincial
Custody and Access Orders, are set out in s. 43 of the
FRA
and are
fourfold:

(a)
to ensure that applications to the
courts in respect of custody of, access to and guardianship of 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 or access to the same child
ought to be avoided, and
to make provision so that the courts of British
Columbia 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 that has 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 British
Columbia.  [Emphasis added.]

[38]

I note that, while under Part 2 of the
FRA
the best interests of the child are stated to be paramount, the best
interests of the child under Part 3 must be read in the context of the other
three purposes that Part 3 is designed to serve.  Those purposes reflect the
underlying assumption that a wrongful removal of children from one jurisdiction
to another will, in most cases, be contrary to the childrens best interests.
This is so because such a move almost invariably interferes with meaningful
contact between the children and one of their lawful parents or guardians, and
with their other family, friends, school, and home in a manner which is
necessarily disruptive of their sense of stability and security.  There is also
an underlying assumption, reflected in the wording of Part 3, that the state of
the childs habitual residence is the jurisdiction best suited to a
determination of the childs best interests.  In this respect, the provisions
of Part 3 reflect similar considerations under the
Hague Convention
.

[39]

Section 44 of the
FRA
, headed Jurisdiction,
sets out the circumstances in which the court must exercise its jurisdiction
to make an order for custody of, or access to, a child.  It provides:

44(1)
A court must exercise its
jurisdiction
to make an order for custody of or access to a child
only
if

(a)        the
child is habitually resident in British Columbia at the commencement of the
application for the order, or

(b)        although
the child is not habitually resident in British Columbia, the court is
satisfied that

(i)         the
child is physically present in British Columbia at the commencement of the
application for an order,

(ii)        substantial
evidence concerning the best interests of the child is available in British
Columbia,

(iii)       no
application for custody of or access to the child is pending before an
extraprovincial tribunal in another place where the child is habitually
resident,

(iv)       no
extraprovincial order in respect of custody of or access to the child has been
recognized by a court in British Columbia,

(v)        the
child has a real and substantial connection with British Columbia,
and

(vi)       on
the balance of convenience, it is appropriate for jurisdiction to be exercised
in British Columbia.  [Emphasis added.]

[40]

Thus, under s. 44(1)(b) all six criteria under
that subsection must be met in order
to require
the court to exercise
its jurisdiction.

[41]

Section 45 of the
FRA
provides that, in
situations where the court might not otherwise assert jurisdiction under s. 44,
the court may exercise its jurisdiction if the child is within the jurisdiction
and the court is satisfied that the child would probably suffer serious harm
if (amongst other things) the child is removed from British Columbia.  It does
not appear that the mother was relying on s. 45 at the hearing before the
chambers judge, and she has not raised it as a relevant consideration on
appeal.

[42]

Section 46 of the
FRA
provides for
instances where the court may decline jurisdiction.  In private international
law terms, it is a
forum conveniens
, or
forum non conveniens
provision, and states:

46.  A court
that has jurisdiction in respect of custody or access may decline to exercise
its jurisdiction if the court is of the opinion that it is
more appropriate
for jurisdiction to be exercised outside British Columbia.  [Emphasis added.]

[43]

Section 47 of the
FRA
provides for
interim orders and for expenses.  I will address this section later in these
reasons in dealing with the fathers cross-appeal.

[44]

In addition to its jurisdiction over the custody
of, and access to, children found in the
FRA
, the Supreme Court has an
inherent jurisdiction by virtue of its
parens patriae
power to make
orders in relation to children within the jurisdiction and, in rare instances,
in relation to children outside the jurisdiction.  (See, for example,
Yassin
v. Loubani
, 2006 BCCA 509, 277 D.L.R. (4th) 79, leave to appeal
dismissed, [2007] S.C.C.A. No. 19.)  In that respect, s. 5(3) of the
FRA
provides that:  This Act must not be construed as limiting or restricting the
inherent jurisdiction of the Supreme Court to act in a parens patriae capacity
respecting a child before the court.

[45]

It is apparent from his order that the chambers
judge erred in treating s. 44 of the
FRA
as if it were a
jurisdiction-conferring
provision.  By its terms, s. 44 does not create jurisdiction in the court, but
provides for the circumstances in which the court must exercise its
jurisdiction.

[46]

Apart from the error of the trial judge in
treating s. 44 as a jurisdiction-conferring provision, the mother submits that
he erred in several other respects in his interpretation and application of s.
44.  Her principal submission is that the chambers judge conflated the analysis
under s. 44(1)(b) and s. 46.  She submits that she only had to establish that
British Columbia was an appropriate jurisdiction under s. 44(1)(b), and that
the question of whether it was a more appropriate jurisdiction did not arise
under s. 44, but only under s. 46.  Thus, the mother did not have to show that
there was more substantial evidence of the best interests of the child in
British Columbia under s. 44(1)(b)(ii), or that the child had a more real and
substantial connection with British Columbia than with Japan under s.
44(1)(b)(v), but only that there was substantial evidence in British Columbia
and a real and substantial connection between the child and British Columbia.

[47]

In addressing this submission, it is important
to note that the only dispute between the parties under s. 44 concerned the
application of ss. 44(1)(b)(ii), (v), and (vi).  The child was physically
present in British Columbia (s. 44(1)(b)(i)); there was no application for
custody or access to the child pending in Japan at the commencement of the
proceedings in B.C.
since the fathers action, subsequently
discontinued, was not commenced until the day after the mothers action
(s. 44(1)(b)(iii)); and there was no extraprovincial order in
relation to the child (s. 44(1)(b)(iv)).

[48]

With respect to the application of s.
44(1)(b)(ii), the chambers judge properly framed the question before him (at
para. 45) as whether the evidence available in British Columbia as to [the
childs] best interest is substantial evidence within the meaning of that
criterion. The chambers judge observed that there was evidence of the childs
best interests in British Columbia, since the child had been in British
Columbia for approximately five months at the time of the jurisdictional
hearing, he was enrolled in school, and his mother and maternal grandparents
were here.  The chambers judge also observed that the child had visited British
Columbia on earlier occasions, but stated that the evidence relating to those
earlier visits was likely limited.  In concluding that there was no
substantial evidence of the childs best interests in British Columbia, he
stated (at para. 53):

The evidence of outside
witnesses who have seen [the child] relate to both of his parents is available only
in Japan. The long term evidence relating to [the childs] best interests is in
Japan.  [The child] has been in British Columbia only since November.
The
evidence that is available in British Columbia is short term evidence including
evidence from his elementary school teacher and evidence from witnesses who
have seen him relate to his mother over restricted periods of time.  I am not
satisfied that there is substantial evidence concerning [the childs] best
interests available in British Columbia.
See
Nordin v. Nordin
,
(2001), 17 R.F.L. (5th) 119 (Ont. S.C.J.) and
Gilbert v. Gilbert
[(1985),
47 R.F.L. (2d) 199 Ont. U.F.C.)]  In my view, the substantial evidence
concerning [the childs] best interests is in Japan.  [Emphasis added.]

[49]

While the chambers judge referred to the nature
of the evidence available in Japan in this passage, he clearly stated that the
evidence available in British Columbia was not substantial.  In my view, it
was
open to him to come to this conclusion, particularly given the short time the
child had been in British Columbia at the time of the hearing.   His reference
to the evidence available in Japan may well have been used by him as a means of
determining whether the evidence in British Columbia could be described as substantial,
but I do not regard that as undermining his conclusion.  Like the court in
Nordin
,
he was not operating in a vacuum, but in the context of another jurisdiction
with which the child also had ties.

[50]

I have difficulty, however, with the finding of
the chambers judge under s. 44(1)(b)(v) of the
FRA
that, while the
child had a real connection with British Columbia, that connection was not
substantial.  This finding appears to track the submission of the father, who
acknowledged a real connection, but submitted that the connection was not
substantial.

[51]

In addressing the mothers submission that the
child had a substantial connection with British Columbia within the meaning of
s. 44(1)(b)(v), the chambers judge framed the question, and stated the answer,
as follows (at para. 46):

Criterion
(v) is that [the child] has a real and substantial connection with British
Columbia.  [The child] has a real connection with British Columbia.  His
maternal grandparents live here.  He has lived here for the past several
months.  He is a Canadian Citizen.  He visited British Columbia in times past.
[The childs] mother is qualified to teach here, and she wishes to live and
work here with [the child]. The issue is whether [the childs] connection with
British Columbia is substantial.

[52]

The chambers judge did not offer any clear reason for finding
that there was not a substantial connection between the child and British
Columbia.  In my view, the presence of the child (and his mother) within the
jurisdiction, living at the home of his maternal grandparents, and attending
school in the local school district are factors demonstrating a real and
substantial connection with the jurisdiction.  In other words, the connections
which the chambers judge described as real connections were also substantial
connections.  I conclude that he fell into error in separating these two
concepts, which are invariably linked in the private international law
context.  In my view, there is nothing to be gained, and much to be lost in
terms of certainty, in attempting to give this phrase a new meaning in
determining conflicts issues in family law.  The words real and substantial
are linked, and should remain linked.

[53]

Finally, the chambers judge considered the question of whether,
under s. 44(1)(b)(vi), on the balance of convenience, it is appropriate
for jurisdiction to be exercised in British Columbia.  He concluded that it
was not.  In making that determination, he had to have in mind that the other
jurisdiction which was said to be appropriate was Japan.  In other words, his
balance of convenience analysis necessarily took into account the convenience
to each of the parties of the courts exercising jurisdiction in one forum or
the other.

[54]

Did the chambers judge err in his s.
44(1)(b)(vi) analysis?  In my view, he did not.  At para. 55 of his reasons, he
stated:

In
my view, of overriding significance, is that I am not satisfied on the balance
of convenience that it is appropriate for jurisdiction to be exercised in
British Columbia.  Japan is where [the child] has spent most of his life. Japan
is the place his parents chose to make their lives until their recent
separation, and Japan is the place where the best evidence concerning [the
childs] best interests is available.

[55]

Implicit in the finding of the chambers judge
that the child had spent almost all of his life in Japan and that the best
evidence concerning the childs welfare was there, is the obvious fact that the
marshalling of evidence would have been extremely difficult and inconvenient in
British Columbia, and very costly.  There is evidence that the fathers parents
are elderly and, in the case of the paternal grandfather, in poor health; the
child has other relatives in Japan with whom he is closely connected; he was
attending kindergarten in Japan and had friends there; there is evidence from
the mediation process which would be relevant to the issue of custody;
interpreters would be required for most of the evidence.  The cost and disruption
of arranging for this evidence to be heard in British Columbia would be
considerably greater than the cost and disruption of having the necessary
witnesses in British Columbia provide evidence in Japan.  In my view, it is not
an answer to say that some, or all, of these witnesses from Japan could provide
their evidence by video linkage or deposition, assuming that is the case. That
option is one which could well place both the father and the court at a
distinct disadvantage, not the least because the evidence would have to be
given through interpreters.  The financial burden on the father in the first
instance in paying for this process would be considerable, and there is no
suggestion that the mother would be willing or able to contribute to those
costs.  The father and his witnesses would be operating in a foreign
environment in which not only the language, but the culture and the legal
process were completely unfamiliar to them.

[56]

The mother and child, on the other hand, have
many connections in Japan, including the mothers connections from working in
Japan for many years and the support group she testified to there.  She has a
working command of the Japanese language; she has already engaged in the
mediation process there; and she has the ability to find work there if she
chooses to do so in the event the proceedings are unduly prolonged.

[57]

In my view, the evidence before the chambers judge fully supports
his finding that, on the balance of convenience, it was not appropriate for
jurisdiction to be exercised in British Columbia.  His conclusion in that
regard is fundamentally sound.

[58]

As a result of finding that the criteria in s.
44(1)(b)(ii), (v), and (vi) were not met, the chambers judge concluded that the
courts of British Columbia did not have jurisdiction over the issue of the
childs custody and parenting.  As earlier stated, the correct conclusion which
flowed from his findings was that the court was not required to assert
jurisdiction, but that it, nonetheless, had jurisdiction which it could
exercise in appropriate circumstances.  One of those circumstances might be
where there was evidence that the child would suffer serious harm within the
meaning of s. 45 if the court did not assert jurisdiction; another might be if
there were circumstances which engaged the courts
parens patriae
jurisdiction.

[59]

Although the chambers judge found that the B.C.
Supreme Court did not have jurisdiction, he went on to find that, even if the
court had jurisdiction, he would exercise his discretion to decline jurisdiction
under s. 46.  There is no doubt from his reasons as a whole that he viewed
Japan as the more appropriate jurisdiction for the resolution of the custody
and parenting issues involving the child.

[60]

The factors which apply on a
forum conveniens
analysis, and which are engaged under s. 46, are set forth in s. 11 of the
Court
Jurisdiction and Proceedings Transfer Act
, S.B.C. 2003, c. 28 (the
CJPTA
),
which codifies the doctrine of
forum non conveniens
in British Columbia (see
Amchem Products Incorporated v. British Columbia (Workers Compensation
Board)
, [1993] 1 S.C.R. 897, 102 D.L.R. (4th) 96, and
Teck Cominco
Metals Ltd. v. Lloyds Underwriters
, 2009 SCC 11, [2009] 1 S.C.R. 321).  Section
11 provides:

11(1) After considering the interests of the
parties to a proceeding and the ends of justice, a court may decline to
exercise its territorial competence in the proceeding on the ground that a
court of another state is a more appropriate forum in which to hear the
proceeding.

(2) A court, in deciding the question of
whether it or a court outside British Columbia is the more appropriate forum in
which to hear a proceeding, must consider the circumstances relevant to the
proceeding, including

(a)        the
comparative convenience and expense for the parties to the proceedings and for
their witnesses, in litigating in the court or in any alternative forum,

(b)        the law
to be applied to the issues in the proceeding,

(c)        the
desirability of avoiding multiplicity of legal proceedings,

(d)        the
desirability of avoiding conflicting decisions in different courts,

(e)        the
enforcement of an eventual judgment, and

(f)         the fair and efficient working
of the Canadian legal system as a whole.

[61]

Section 12 of the
CJPTA
provides, amongst
other things, that in the event of inconsistency between it and another Act of
British Columbia, the other Act applies.  I do not see any inconsistency
between s. 11 of the
CJPTA
and s. 46 of the
FRA
.  The factors to
be considered under s. 11 are inclusive, not restrictive, and permit the court
to consider the purposes of Part 3 set forth in s. 43 of the
FRA
,
including the best interests of the child, in making the determination whether
to decline jurisdiction.  Further, the other purposes of Part 3 are reflected
in common goals of avoiding multiplicity of proceedings and conflicting
judgments.  The stated purpose in s. 43 of avoiding abductions or wrongful removal
of children from one jurisdiction to another may be viewed in this context as
relevant to a consideration of the fair and efficient working of the Canadian
legal system as a whole under s. 11(2)(f).

[62]

In my view, these considerations are encompassed,
either expressly or implicitly, in the reasons of the chambers judge in his
Part 3 analysis.

[63]

In the mothers submission, however, in exercising
his discretion under s. 46, the chambers judge failed to take into account the
difficulty which the mother might face in enforcing a British Columbia order in
Japan.  In this respect, the mother made much of the fact that Japan is not a
contracting party to the
Hague Convention
and is, therefore, not bound
to give foreign custody orders effect.

[64]

In my view, apart from the fact that Japan is not a signatory to
the
Hague Convention
, there was little evidence before the chambers
judge concerning enforceability of foreign judgments in Japan, and certainly
not sufficient evidence to justify him finding that Japan was a
forum non
conveniens
.  It is only the fresh evidence which emphasizes the question of
enforceability.  I will address the fresh evidence later in these reasons.

[65]

I confess to finding it rather incongruous that
it is the mother who is seeking the benefits associated with the
Hague
Convention
in circumstances where it is likely that the child would have
been returned to Japan under the
Convention
had Japan been a signatory.
I say that because I am satisfied that the circumstances in which the mother
removed the child from Japan amounted to a wrongful removal under both the
Hague
Convention
and Part 3 of the
FRA
.  This finding is relevant to the
forum
non conveniens
analysis under s. 46
since two of the four stated
purposes of Part 3 are to encourage the courts to decline jurisdiction where
there has been a wrongful removal.  A finding that there has been a wrongful
removal from one jurisdiction to another
engages the very
concerns which Part 3 of the
FRA
is designed to address.  As earlier
stated, a wrongful removal may also be viewed as relevant under s. 11(2)(f) of
the
CJTPA
which is concerned with the fair and efficient working of the
Canadian legal system as a whole.

[66]

My conclusion that the mothers actions
constituted an unlawful removal of the child from Japan is not in keeping with
the chambers judges reasons.  In that respect the chambers judge stated (at
para. 33):

I do not find that the plaintiff abducted [the child] as an
alternative to the determination of custody rights by due process. The
defendant knew where the plaintiff and [the child] had gone.  The plaintiff has
always been subject to court process.  There was nothing illegal about the
plaintiff leaving with [the child].  The plaintiff was one of his legal
custodians. There was no pending court process.  There was no court order
preventing her from leaving.

[67]

In my view, the chambers judge erred in fact and
in law in this portion of his analysis.  The father did not know where the
mother had gone until four days after she left Japan when her lawyer advised
him she had taken the child to Nanaimo.  Although there were no court
proceedings in Japan at that point, she was engaged in the mediation process
which is mandatory as a precondition of divorce.  That process was terminated
when the mother removed the child from Japan.  More importantly, it was
unlawful, in the sense of being contrary to the fathers custody rights as
joint custodian of the child, to remove the child from Japan as she did.

[68]

It is not the case that a parents only rights
to custody of, and/or access to, their children are defined by court order.  At
common law, and under Part 2 of the Act (s. 27), the mother and father of a
child who are living together are the joint guardians of the child with joint
rights and obligations in relation to the child.  If one parent unilaterally
removes the child from the jurisdiction without the knowledge or consent of the
other parent, this amounts to a wrongful taking of the child and a breach of
the other parents rights as joint custodial parent.  The fact that there was
no order in place may be relevant to the fathers ability to enforce his
rights, but the absence of an order does not mean that those rights are
non-existent.  This was the view of Madam Justice Levine in
Hewstan v.
Hewstan
, 2001 BCSC 368, where she stated, at para. 35:

There can be no
doubt that one parent having joint guardianship rights over the person of a
child cannot remove a child from the jurisdiction without the consent or over
the objections of the other.

[69]

A similar view was expressed by Mr. Justice La
Forest, speaking for the majority in
Thomson v. Thomson
, [1994] 3 S.C.R.
551 at 580, 119 D.L.R. (4th) 253.  While these statements were made in the
context of a
Hague Convention
analysis, they have equal application to
the issue of whether a taking amounts to an abduction or wrongful removal
within the meaning of Part 3.

[70]

In this case, there is little doubt that the
mother knew she was taking the child out of the jurisdiction without the
fathers knowledge or consent.  She did so without notice to him and in
circumstances where she led him to believe that she was taking the child to
camp.  The fact that she felt she had a good reason for leaving may explain her
actions, but it does not convert them to a lawful removal.

[71]

In seeking to justify her clandestine move to
Canada, the mother deposed that the father had physically abused her on occasion
and that he was secretive and controlling in relation to the family finances.
She also deposed that she was concerned that, as a foreign national, she would
not likely be successful in obtaining custody of the child in Japan.  The
chambers judge accepted that the father was unduly secretive and controlling
with respect to family finances, but he made no finding that the mother had
been abused by the father, an allegation which the father denied.  It is
significant that the mother deposed that she came to the conclusion while still
in Japan that, if she and the father were not able to reach an agreement as to
custody, she could be facing a long and expensive legal battle.  As she stated in
her affidavit, sworn April 2, 2009, The message was very clear at this stage.  I
was on the path to losing my son forever. Shortly thereafter, the mother left
Japan with the child.

[72]

These are not circumstances in which it can be
said that, in taking the child from Japan, the mother was simply exercising her
own right to custody, or that she was, in some sense, exercising lawful
mobility rights in the interests of the child.  Nor is it a case where there
was anything resembling clear evidence that the mother had genuine concerns for
the safety of either herself or the child.  The only inference available on her
own evidence is that she was very concerned about her prospects for success in
the Japanese courts, that she was distressed at the prospect of facing a
lengthy custody battle in Japan, and that she chose to deceive the father as to
her plans in order to avoid confrontation and to ensure that she would be
successful in leaving the country.  She had family in British Columbia and that
was the obvious place for her to turn for help in what were obviously unhappy
circumstances.  The difficulty with the mothers explanation, however, is that
it reflects precisely the type of conduct which Part 3 of the
FRA
is
designed to deter, that is, forum shopping and wrongful taking of children from
the jurisdiction with which they have the closest connection.

[73]

It is important to emphasize that the question
of whether either the mother or the father is a fit parent, or whether he or
she should be awarded custody or related parenting rights, is not in issue in
these proceedings.  The only issue before the chambers judge was whether he
should assume or decline jurisdiction under Part 3 of the
FRA,
and on
what terms.  In my view, the fact that this was a wrongful removal of the child
from Japan supports his finding that he would decline jurisdiction in favour of
Japan.

[74]

I conclude this point by saying that I am also
satisfied that the chambers judge did not err in failing to assert the
parens
patriae
jurisdiction of the court in these circumstances.  I agree with him
that there was nothing so compelling or unusual about this situation (as in the
case of
Yassin
, for example) to invite or require reliance on the
inherent jurisdiction of the court.  I do not propose to say more about
parens
patriae
jurisdiction of the court since it did not form a significant part
of the mothers submissions.

[75]

For all of these reasons, I conclude that,
although the chambers judge erred in finding that British Columbia did not have
jurisdiction over the issue of custody of the child pursuant to s. 44, he was correct
in concluding that this was a proper case in which to decline jurisdiction
under s. 46 on the basis that Japan was the more appropriate forum to exercise
jurisdiction.  His decision with respect to s. 46 was discretionary and, thus,
is subject to a stringent standard of review.  In the recent decision of
Olney
v. Rainville
, 2009 BCCA 380, 95 B.C.L.R. (4th) 118, at para. 39, Mr.
Justice Groberman, speaking for the Court, stated the standard of review under
s. 11 of the
CJPTA
(which would also apply to an analysis under s. 46 of
the
FRA
) as follows:

A
decision to decline jurisdiction under s. 11 of the
CJPTA
is a
discretionary one.  The chambers judges views, therefore, ought not to be
interfered with unless it is shown that he took into account irrelevant
considerations, failed to take into account mandatory considerations, or was
otherwise clearly wrong in the exercise of his discretion.

[76]

Applying this standard of review to the decision
of the chambers judge in his application of s. 46 of the
FRA
, I find no
basis for interfering with his decision.

[77]

The next question which must be determined is
whether the fresh evidence tendered in this Court should lead to a different
result on the jurisdictional issue.

3.
The Fresh Evidence

[78]

The fresh evidence is almost all directed to the
substantive and procedural law of Japan with an emphasis on the enforceability
of foreign judgments in Japan.  Some of the evidence also ventures opinions on
the mothers prospects of success in obtaining custody in Japan.

[79]

There was no evidence concerning the law of
Japan before the chambers judge at the time he made his jurisdictional order
except a statement of the mother (referred to at para. 118 of these reasons)
which cannot be regarded as a weighty statement of Japanese law.

[80]

By the time counsel returned before the chambers
judge in relation to the expenses hearing, the father had provided the court with
an affidavit from the fathers lawyer in Japan, Mr. Sudo.  Mr. Sudos evidence
was primarily intended to address the second stage of the proceedings, namely,
the issue of expenses under s. 47.  He deposed that there were procedures
available in Japan for the mother to obtain monies bearing some similarities to
child and spousal support.  He also provided a chart setting out the steps
which would be followed in Japan for resolving issues of custody and access by
agreement or through the courts.  If the case were contested, he stated that it
could take between 18 months and two years to complete from the time the father
re-filed the complaint, but that the parties would not have to go through the
mediation and conciliation stages again.  I do not understand this aspect of
this evidence to be in dispute.

[81]

Mr. Sudo also addressed the mothers concern
that when she returns to Japan with [the child] it would be possible for [the
father] to take [the child], keep him from her and legally bar her from
entering his residence.  Mr. Sudos response to those concerns is set out at
para. 9 of his affidavit:

It would not be possible
for [the father] to unilaterally take such action in Japan: such issues would
have to be decided by the Japanese court and [the mother] would be accorded
full protection under the Japanese legal system.  If [the father] were to apply
to court for a provisional disposition to prevent [the mother] from seeing [the
child], this would almost certainly be declined because the court would have
regard to the order made by the British Columbia Supreme Court, setting out the
conditions under which [the mother] is to return to Japan with [the child].

[82]

Mr. Sudos evidence is not entirely fresh
evidence.  It was properly before the chambers judge, albeit following his
jurisdictional decision.  The weight to be given to his evidence must be
tempered, however, by the fact that he was the fathers lawyer.

[83]

The fresh evidence on appeal consists primarily
of the following:

(1)

An
affidavit by the mother sworn October 15, 2009 attaching as Exhibit A a 100+
page article written by Colin P.A. Jones, a Professor at Doshisha University
Law School in Japan, entitled
In the Best interests of the Court: What
American Lawyers Need to know about Child Custody and Visitation in Japan
,
cited as being found in the Asian-Pacific Law & Policy Journal; Vol. 8,
Issue 2 (Spring 2007).

(2)

An
affidavit of a lawyer in Japan, Ms. Terada, sworn October 15, 2009, providing
opinion evidence on behalf of the mother as to the law in Japan concerning,
amongst other subjects, custody and parenting rights and enforceability of
foreign orders in Japan, and refuting, in some respects, the opinion evidence
given by Mr. Sudo.

(3)

Three
letters requested by the mother from consular officials for Canada, the United
States and Britain setting forth their experience in relation to the
difficulties of enforcing foreign court orders, principally with respect to
children abducted
into
Japan.  These letters were confirmed by statutory
declarations provided on the final day of, or subsequent to, the hearing of the
appeal.

(4)

A
Legal Memorandum dated November 9, 2009 from Mr. Kogawa, a lawyer in Japan,
offering opinion evidence in response to that of Ms. Terada concerning, amongst
other subjects, whether foreigners are discriminated against in the courts of
Japan in relation to custody matters, the relationship between resident status
and child custody, the criteria the courts would consider in determining the
best interests of the child, and an opinion on the mothers and fathers
prospects of obtaining custody in Japan.

(5)

A
supplementary Memorandum from Mr. Kogawa dated December 8, 2009, correcting his
earlier opinion to the extent it commented on the mothers resident status.

[84]

Counsel for the mother submits that the fresh
evidence indicates that the courts in Japan would not recognize any order made
by the B.C. Supreme Court (including the order giving her interim custody);
that Japanese law does not recognize significant rights of access to
non-custodial parents; that enforcement procedures for those with custody or
access in Japan are ineffective; that the child would suffer discrimination in
Japan as a mixed-race child; and that the mother, as a foreigner, would also
suffer from discrimination in the application of Japanese law to her claim for
custody.

[85]

Counsel for the father opposes the admission of
the fresh evidence on the basis that it does not meet any of the criteria for
the admission of fresh evidence set forth in the relevant authorities but, if
the Court admits the mothers fresh evidence, he requests that the materials
filed by the father also be considered.

[86]

The criteria to be applied for the admissibility
of fresh evidence on appeal are set forth in the oft-cited decision of the
Supreme Court of Canada in
Palmer v. The Queen
, [1980] 1 S.C.R. 759 at
775, 106 D.L.R. (3d) 202:

(1)

The evidence should generally not be admitted if, by due diligence,
it could have been adduced at trial provided that this general principle will
not be applied as strictly in a criminal case as in civil cases:  see
McMartin
v. The Queen
.

(2)

The evidence must be relevant in the sense that it bears upon a
decisive or potentially decisive issue in the trial.

(3)

The evidence must be credible in the sense that it is reasonably
capable of belief, and

(4)

It must be such that if believed it could reasonably, when taken
with the other evidence adduced at trial, be expected to have affected the
result.

[87]

There are authorities which stand for the
proposition that, in family law cases, the courts will apply the
Palmer
test with a measure of flexibility.  (See, for example,
Luney v. Luney
,
2007 BCCA 567, 74 B.C.L.R. (4th) 203, at para. 31, leave to appeal refd,
[2008] S.C.C.A. No. 90.)  This is particularly true where it has been shown
that the due diligence test has not been met, but where the evidence is
sufficiently compelling and reliable that it would likely affect the result.
Cases involving the welfare of children generally lend themselves to this more
flexible approach.

[88]

I will begin by observing that all of this fresh
evidence hopelessly fails the due diligence test.  All of it could have been
obtained prior to the hearing before the chambers judge in the first instance.
The chambers judge commented on the absence of any evidence of Japanese law at
the jurisdictional hearing, and the only evidence forthcoming at the expenses
hearing was that of Mr. Sudo.

[89]

With respect to the second criteria, I accept
that the evidence is relevant to the extent that it relates to the best
interests of the child, which must inform the court in making decisions under
Part 3 of the
FRA
.

[90]

With respect to the third and fourth criteria,
the question is not so much whether the fresh evidence is credible as whether
it is reliable.  It is in that respect I find most of the evidence is lacking.
Much of the evidence is contradictory; some of it is not sworn; the expertise
of some of the deponents is not clearly established; and some of the opinions
are expressed in such broad language that it is difficult to determine what, if
any, weight should attach to them.  Some of the evidence appears to have been
put together very quickly and without appropriate care.  There was no
opportunity to test the evidence by cross-examination.  While that will be so
in many cases, it is particularly significant in this case where so much of the
evidence is controverted.

[91]

In the result, it is only where the evidence
coincides that I am prepared to give it any weight.  And even then, in order to
admit the evidence, I have to be satisfied that it could reasonably have affected
the result.

[92]

I do not place any weight on the lengthy article
written by Professor Jones.  It does not qualify as evidence,
per se
,
nor does it qualify as a learned treatise.  There is no indication that the
article has been peer-reviewed or that it has been adopted as authoritative.
It reads like an expert opinion, but without any indication of what Professor
Jones expertise may be, except that he is a law professor at a University in
Japan.  Professor Jones himself attaches caveats to any use which should be
made of the article in the following passage at 169:

Before proceeding, a few caveats are in order.
First, I am not a
Japanese lawyer and nothing in this article should be relied on as legal advice
in any specific case.
Second, readers should know that I am writing this
article in part because of my own personal experiences with the Japanese family
court system and I thus may have more than a slight bias. [The author lost
custody of his son after a two year battle in the Japanese courts.] However, as
one of a few Japanese-speaking Western lawyers with first-hand experience in
the Japanese family court system, I feel obliged to share these experiences.
[Emphasis added.]

[93]

These are only a few of the problems associated
with placing any weight on this article in these proceedings.  Counsel for the
mother did not seek to assist the Court by attempting to verify the information
contained in the article by reference to the footnotes, or otherwise.

[94]

I will deal briefly with the letters from the
embassies which were later confirmed by statutory declaration.
I accept
this evidence to the extent that it refers to the authors experiences in
dealing with enforcement issues, but not to the extent that the authors express
general opinions about Japanese law.  This is not because I doubt the veracity
of the deponents, but because many of their general statements of opinion with
respect to Japanese law are broadly based and their expertise is unknown.
There is no indication, for example, that any of them has any training in Japanese
law.

[95]

The authors of these letters state that abduction of children
into Japan is a problem and that they have many files in which their nationals
have not been successful in obtaining enforcement of their orders in Japan.  The
number of open files reflecting enforcement problems is stated to be 36 for
Canada, eight for Britain, and 80 for the United States.  There are no
statistics provided to enable us to compare the incidence of ineffective
enforcement of custody orders in Japan with those of other countries, including
Canada.  (Those involved in the Canadian system know that enforcement of
custody orders here is not problem-free.)  The fact that Japan is not a
signatory to the
Hague Convention
is identified as a factor exacerbating
problems of enforcement.

[96]

In her affidavit, Ms. Terada states that she is
a lawyer in Japan with experience in cases such as the instant one.  There is
no further statement of her expertise.  She then proceeds to express opinions
concerning the operation of the Japanese legal system which are contrary to the
opinions expressed by Mr. Sudo in his earlier affidavit.  For example, Mr. Sudo
states that the father could not unilaterally take the child from the mother in
Japan in the face of a B.C. court order, and that the Japanese court would have
regard for the B.C. order. Ms. Terada replies that she is aware of no case
where an order of a foreign court respecting custody has been upheld by a
Japanese Family Court.  (I note she does not say she is aware of any case in
which a foreign court order has not been upheld by a Japanese court, although
presumably this is the message she is intending to convey, particularly by her
reference to the fact that Japan is not a signatory to the
Hague Convention
.)

[97]

Ms. Teradas opinions are expressed in very
broad language, which is unhelpful, at best.  For example, she states that Japanese
law does not contain any clear protections for a childs relationship with a
non-residential parent after separation or divorce.  It is not clear to me
whether that statement is intended to convey that there is no specific
provision in the
Civil Code of Japan
providing for non-resident custody
or access rights (in which event, I know of no such express provision in the
FRA
);
or whether the statement is intended to convey that there are no protections
for non-resident parents.  In either case, statements like these and others
contained in her affidavit, call for clarification.

[98]

Ms. Terada also expresses concern that the
mother could have problems retaining her right to reside in Japan and could be
subject to deportation.  This concern was reflected in Mr. Kogawas first
memorandum, but refuted in his second memorandum of December 8, 2009, based on
further facts.  Mr. Kogawas information in that respect was provided in
response to a request from the Court for further information on the effect of divorce
on the mothers resident status.  Because it is of some significance in terms
of the mothers rights in Japan, I will quote from paras. 1 and 2 of Mr.
Kogawas supplementary memorandum:

1.

At the time of preparing the Legal Memorandum
mentioned above, I was not aware that [the mother] had obtained a permanent
resident visa in Japan in 2007, and that she still holds the visa to this
date.  If [the mother] already holds permanent resident status, she does not
need to apply to the Japanese government for special permission to stay, as I
previously suggested in Section 2 of said Memorandum.

2.

[The mothers] permanent resident status would not be affected at
all by her divorce, and her husband would not be able to cause her to forfeit
her permanent resident status either.  To renew her alien registration, she
only has to submit her application, after re-entering Japan, at the local
office of the municipality where she is to reside.  [The mother] does not need
any assistance from her husband, and no fees are required for the renewal.

[99]

The fresh evidence relied upon by the father (in
addition to the evidence previously provided by Mr. Sudo) consists of the Legal
Memoranda provided by Mr. Kogawa, who describes himself as an attorney
registered with the Tokyo Bar Association since 1995 and as having handled
many cases concerning a variety of issues relating to foreign nationals living
in Japan (issues concerning status of residence or international family
relations, as well as criminal cases involving foreigners), as well as many
adoption, divorce and custody cases involving foreign nationals in Japan.  His
memoranda, which are unsworn, were tendered to refute the evidence tendered on
behalf of the mother on several points.

[100]

Mr. Kogawa denies that Japanese law discriminates against foreign
nationals, and states that the fact the mother is a foreign national would be only
one of many factors taken into account in applying the best interests of the
child under Japanese law.  He describes the best interests test in Japan as
including factors such as: the respective parents willingness and capability
to be responsible for the childs custody and education, as well as his or her
health condition, the financial and psychological state of the home
environment, living conditions, educational opportunities, level of love and
affection for the child, state of assets, and the availability or possibility
of assistance by other family members, friends, or acquaintances to care for
the child.

[101]

Mr. Kogawa acknowledges that, traditionally, the
prevailing view was that public authorities should not interfere in family
matters; that visitation rights in Japan are different from those in North
America; and that child abduction cases have become more common.  He states,
however, that custody rights given by foreign courts will be enforced provided
that the content of the judgment or court proceedings are not contrary to the
public policy or good morals of Japan.

[102]

I recount much of this evidence simply to make
the point that it is difficult, if not impossible, to draw from it any coherent
picture of the state of Japanese law in relation to custody and access issues,
including issues of enforcement of foreign orders.  Rather, there is a
patchwork of information which raises more questions than it answers.  Certainly,
this is not a case in which the Court can draw any assistance from s. 54 of the
FRA
which provides that, for the purpose of an order under Part 3, a
court may take notice, without requiring formal proof, of the law of a jurisdiction
outside British Columbia and of a decision of an extraprovincial tribunal.

[103]

In my view, the only common ground in the new
evidence appears to be as follows:

(1)

Japanese
law recognizes the test of the best interests of the child in custody disputes,
but the factors it considers, and the weight it gives to those factors may not
be exactly the same as under the law applied in Canadian courts.

(2)

There
is no concept of joint custody in Japan; one party is granted custody and the
rights which flow from custody.

(3)

Access
is not a term used in the
Civil Code of Japan
and there is no policy
similar to that under s. 16(10) of our
Divorce Act
encouraging maximum
contact with both parents to the extent that accords with the best interests of
the child.  Rather, it appears that visitation is a recognized, but less
emphasized, right of the non-custodial parent in Japan, and that it is more
often addressed through mediation and agreement, and less often through the
courts.

(4)

Enforcement
mechanisms for domestic and foreign custody orders may be less effective in
Japan than in Canada.  The fact that Japan is not a signatory to the
Hague
Convention
is a factor in that respect, particularly in situations where
children have been wrongfully abducted into Japan by Japanese nationals.

(5)

The
Japanese police are reluctant to become involved in the enforcement of custody
or access orders.

[104]

I am prepared to consider these factors, albeit with some
hesitation, in determining the ultimate question of whether the fresh evidence
could reasonably have made a difference to the orders made by the chambers
judge.  In considering that question, I am of the view that it is prudent to
resist the temptation to regard foreign legal systems as somehow less able, or
less willing, to take proper care of children under their jurisdiction.  It is
tempting for any country to view its own system of dealing with children as
superior to that of other countries which may deal with them differently.  In
some cases, those differences may be fundamental, for example where it is
established that human rights issues are engaged, or where the law of the
foreign country is so antithetical to Canadian views of child care that a court
here could not, in good conscience, abdicate its jurisdiction in favour of that
country.

[105]

The difficult question of the circumstances in
which the courts of one country will defer to the courts of another country
which has a different legal system with respect to issues of custody, and which
is not governed by the
Hague Convention
, was addressed by the House of
Lords (as it then was) in
Re J (a child) (FC)
, [2005] UKHL 40.  At para.
37 of the decision, Baroness Hale of Richmond, with whom the other members of
the court agreed, stated:

Like everything else, the extent to which it is relevant that the
legal system of the other country is different from our own depends upon the
facts of the particular case. It would be wrong to say that the future of every
child who is within the jurisdiction of our courts should be decided according
to a conception of child welfare which exactly corresponds to that which is
current here.  In a world which values difference, one culture is not
inevitably to be preferred to another.  Indeed, we do not have any fixed
concept of what will be in the best interests of the individual child.  Once
upon a time it was assumed that all very young children should be cared for by
their mothers, but that older boys might well be better off with their
fathers.  Nowadays we know that some fathers are very well able to provide
everyday care for even their very young children and are quite prepared to
prioritise their childrens needs over the demands of their own careers.  Once
upon a time it was assumed that mothers who had committed the matrimonial
offence of adultery were only fit to care for their children if the father
agreed to this.  Nowadays we recognise that a mothers misconduct is no more
relevant than a fathers: the question is always the impact it will have on the
childs upbringing and wellbeing.  Once upon a time, it may have been assumed
that there was only one way of bringing up children.  Nowadays we know that
there are many routes to a healthy and well adjusted adulthood.  We are not so
arrogant as to think that we know best.

[106]

In this case, I am not persuaded that any differences, or perceived
deficiencies, in the manner in which Japan addresses issues of custody and enforcement
as set forth in the fresh evidence are such that, if the chambers judge had
been made aware of that evidence, he would have asserted the jurisdiction of
the B.C. courts over the child.  There are simply too many factors which make
Japan the natural and obvious place for the resolution of the childs future
care.  While the fresh evidence raises legitimate questions about the enforceability
of foreign custody orders in Japan, those questions are answered to a
considerable extent by the information provided by Mr. Sudo and Mr. Kogawa, who
were addressing the specific facts of this case.  I found Mr. Kogawas
memoranda to be of particular assistance since he clearly set out his expertise
and made specific references to Japanese law in expressing his opinions.

[107]

In my view, the chambers judge applied Part 3 of the
FRA
in a
way which honoured its purposes, and he protected the best interests of the
child pending the determination of his custody and parenting in Japan by
providing continuity of care with the mother, generous access to the father,
and by ensuring that the financial welfare of the mother and the child would be
protected by providing security for their expenses while awaiting a decision by
the courts in Japan.

[108]

Having considered the new evidence, I conclude that it would not
have affected the result, and I would, therefore, not admit it.

[109]

I now turn to the final two issues raised by the mother in her
appeal.

4.

Discontinuance of the Proceedings in Japan

[110]

The mother submits that the father misled the chambers judge by
failing to advise him at the jurisdictional hearing that he had discontinued
his proceedings in Japan.  She submits that the decision of the chambers judge
may have been different if he had been aware that there were no proceedings
extant in Japan at the time he made the jurisdictional order.

[111]

As earlier stated, the mother commenced proceedings in British
Columbia for custody and access on November 20, 2008 and the father commenced
proceedings for divorce and custody in Japan on November 21, 2008.  The
chambers judge assumed that the Japanese proceedings were still extant at the
time he made his jurisdictional order.  In fact, the father had discontinued
his proceedings in Japan on February 15, 2009 in accordance with legal advice
he had received from his Japanese counsel.  The mother discovered that those
proceedings had been discontinued when she made a telephone call to the
Japanese court in late April 2009.  At that point, the trial judge had issued
his reasons for judgment on the jurisdictional issue, but the order had not
been entered.  If the mother had viewed the fathers failure to reveal that he
had discontinued his proceedings in Japan as significant, it was open to her to
raise the issue before the chambers judge prior to entry of the order, and to
ask him to reconsider his decision.  She did not do so.

[112]

The chambers judge was advised that the Japanese proceedings had
been discontinued on May 13, 2009 at the hearing concerning expenses.  By then,
the jurisdictional order had been entered.  At that time, the mother did not
suggest that the order should be set aside or reconsidered on the basis that it
had been based on a fundamental misconception of the relevant facts.  Rather,
the mother appears to have relied on the fact that the father had failed to
disclose this information as an indication that he could not be trusted to
respect the court process, or adhere to any orders which the court might make.

[113]

The chambers judge made his jurisdictional order on the basis that
there were no proceedings or orders in existence in Japan at the time the
mother commenced her action for custody in British Columbia (s. 44(1)(b)(iii)).
That was so.  The fathers explanation that he had discontinued his proceedings
in Japan on the understanding that there was little point in proceeding there
while the child was in British Columbia was later confirmed by Mr. Sudo, who
also deposed that the father could reinstate those proceedings without having
to go through the mediation process again.

[114]

It may be that this omission on the part of the father was a factor
in the decision of the chambers judge to give the mother interim custody of the
child pending the determination of custody and access rights in Japan.  In my
view, however, it does not give rise to a sound basis for challenging the
jurisdictional order.

[115]

I would not give effect to this ground of appeal.

5.

Alleged
Misapprehension of the Evidence

[116]

After making his determinations as to jurisdiction under ss. 44 and
46 of the
FRA
, the chambers judge addressed the question of whether he
should make an interim order for custody and access under s. 47 pending the
determination of those issues in Japan.  In so doing, he noted that the child
had been in the mothers care and control since they had come to Canada and
that there was no suggestion that the child was not well cared for by her.
After making those observations, he stated (at para. 64): The evidence before
me is that it is extremely unusual for a mother in Japan not to be awarded
custody of her child or children upon breakdown of a marriage.  He then went
on to award the mother interim custody.

[117]

The mother says that there is no evidentiary support for the
statement of the chambers judge just quoted from para. 64 of his reasons.  The
father points to the fact that this statement was relied upon by the chambers
judge solely in his s. 47 analysis in deciding to award the mother interim
custody, and that there is no indication that he relied on this statement in
making his findings concerning jurisdiction.  In other words, the father points
to the fact that the mother benefited from this finding in obtaining an order
for interim custody, and now seeks to resile from the finding to the extent it
does not support her jurisdictional argument.

[118]

In my view, the mothers submission that there was no evidence that
it is unusual for a mother not to be awarded custody of a child in Japan upon
marriage breakdown is disingenuous and without merit.  The evidence was that of
the mother herself.  She deposed in her affidavit sworn April 2, 2009 (para.
19), that it is the mother who raises the children in Japan and that, if she
were Japanese, it would be extremely unusual for the father to obtain custody
of the child.  In her words, Granting custody to him would also be extremely
unusual [in Japan] if I were Japanese, but I am not.  It is clear that the
chambers judge placed some reliance on her evidence that mothers in Japan are
usually awarded custody of the child, but he was not prepared to accept, at
face value, her statement that this would not apply in her case because she was
not Japanese.  He was not required to do so.  In any event, it is apparent that
he relied on this evidence to the mothers benefit in awarding her interim
custody.

[119]

I would not give credence to this ground of
appeal.

[120]

I turn, next, to the fathers cross-appeal.

THE
CROSS-APPEAL

1.

Interim
Custody

[121]

The father submits that the chambers judge erred
in awarding the mother interim custody of the child.  This order was made under
s. 47 of the
FRA
, which provides:

47.
On application for custody of
or access to a child, a court

(a)         that
is satisfied that the child has been wrongfully removed to or is being
wrongfully retained in British Columbia, or

(b)        that
may not exercise jurisdiction under section 44 or that has declined
jurisdiction under section 46 or 49(2),

may do any one or more of the
following:

(c)
make
any interim order in respect of the custody or access that the court considers
is in the best interests of the child;

(d)        stay
the application subject to

(i)         the
condition that a party to the application promptly commence a similar
proceeding before an extraprovincial tribunal, or

(ii)        any
other conditions the court considers appropriate;

(e)
order a party to return the
child to a place the court considers appropriate and, in the discretion of the
court, order payment of the cost of the reasonable travel and other expenses of
the child and any parties to or witnesses at the hearing of the application.
[Emphasis added.]

[122]

In awarding the mother interim custody of the
child, the chambers judge stated (at paras. 64-65):

[The child] has been in the
plaintiffs care and control.  There is no issue that she has cared for him
well.  The evidence before me is that it is extremely unusual for a mother in
Japan not to be awarded custody of her child or children upon breakdown of a
marriage.

I
order that the plaintiff have interim custody and interim care and control of
[the child].  The defendant shall have reasonable and generous access to him.

[123]

There is no evidence that the mother is not a fit and proper person
to have interim custody of the child.  He has been living with her for the past
year and the evidence that is available supports the finding of the chambers
judge that he has been well cared for by her.  While I am of the view that the
mothers wrongful taking of the child was ill-considered and not in the childs
best interests, that is not to say that she is not a fit and proper person
ultimately to be granted custody of the child.  That is for the courts of Japan
to decide.  In the meantime, it would be unfortunate if the childs care was
interrupted any more than is already necessary to ensure that he returns to
Japan for the resolution of the issue of his future care before the courts in
Japan.  I agree with the chambers judge that his best interests would be served
by leaving him in the care of his mother pending an order with respect to his
custody in Japan, or the agreement of the parties.

[124]

I would not give effect to this ground of the cross-appeal.

2.

Expenses

[125]

Assuming the correctness of the interim custody order, the father
submits that the chambers judge erred in ordering the father to pay expenses
which are in the nature of spousal and child support.  He submits that such
expenses cannot be justified under s. 47 of the
FRA
.  He does not seek
to set aside the order for the payment of $17,000 for travel expenses and
start-up costs for the mother and child to enable them to return to Japan.  Nor
does he challenge the authority of the court to order that he pay reasonable
travel and accommodation expenses for any witnesses resident in Canada who may
be called as witnesses by the mother in the legal proceedings in Japan.  But he
does challenge the amount of $84,000 he was ordered to pay in trust for the
mother and child to cover their ongoing living expenses in Japan pending a
court order. (I note that the father has paid this amount as ordered and that
it is being held in the trust account of the mothers lawyer pending the
disposition of this appeal and cross-appeal.)

[126]

The hearing before the chambers judge with respect to the issue of
expenses was lengthy.  Each of the parties presented detailed evidence as to
the reasonable costs the mother would incur in returning with the child to
Japan, re-establishing herself in suitable accommodation for herself and the
child, and meeting their necessary living expenses pending an order of the
court in Japan with respect to custody and parenting rights and support.

[127]

The chambers judge did not agree with the figures for reasonable
expenses provided by either the father or the mother.  He was forced,
therefore, to find some other means by which to determine those expenses.  He
chose to use the spousal and child support guidelines as what he described as a
yardstick in making his determination.  I agree with the father that, in
effect, the chambers judge has ordered the father to pay the equivalent of
spousal and child support pending the courts in Japan resolving the issues of
custody and parenting rights.  In so doing, he was giving effect to his interim
custody order and ensuring the welfare of the mother and child.

[128]

Given the finding of the chambers judge that the father had been
strict and controlling with respect to money matters while the parties were
living together, and that he had failed to pay any child support while the
child was in Canada,  I am satisfied that the chambers judge was justified in
including as other expenses of the child and any part[y], an allowance for
the day-to-day living expenses of the mother and child.  Had the father
provided some form of support while the child was in Canada, the trial judge may
not have viewed such an order as necessary.  But he was obviously satisfied that
the order providing for these expenses was essential to the best interests of
the child, and I cannot say he was wrong.

[129]

Counsel were unable to provide any authority with respect to the
interpretation of what constitutes reasonable ... expenses within the meaning
of s. 47.  I note, however, that in
Finizio v. Scoppio-Finizio
(1999),
179 D.L.R. (4th) 15, 46 O.R. (3d) 226, the Ontario Court of Appeal found
that it was appropriate to impose undertakings requiring the payment of somewhat
similar expenses on the party seeking return of the children to Italy to cover
the transition period between the date of the return order and the time the
matter was dealt with by the courts there.  In that case, the father agreed to
undertakings which included: providing airline tickets for the mother and
children, providing suitable housing for the wife and children in Italy, and
payment of a lump sum as prepaid support for the two months it was expected to
take for the matter to be heard by a court in Italy.  The amount of the lump
sum was influenced by the fact that the wife had taken $200,000 when she left Italy.

[130]

The court in
Finizio
, in turn, relied on
the decision of the Supreme Court of Canada in
Thomson
,
supra,
where the court found that such undertakings had been approved, although not
expressly provided for, in the
Hague Convention
.  The rationale for such
undertakings was referred to by Mr. Justice La Forest at 599 of
Thomson
:

Given the preambles statement that the interests of the children
are of paramount importance, courts of other jurisdictions have deemed
themselves entitled to require undertakings of the requesting party provided
that such undertakings are made within the spirit of the Convention: see
Re L.,
supra; C. v. C, supra; P. V. P. (Minors) (Child Abduction),
[1992] 1 R.F.R.
155 (Eng. H.C. (Fam. Div.)); and
Re A. (A Minor) (Abduction), supra
.
Through the use of undertakings, the requirement in Article 12 of the
convention that the authority concerned shall order the return of the child
forthwith can be complied with, the wrongful actions of the removing party are
not condoned, the long-term best interests of the child are left for a
determination by the court of the childs habitual residence, and any
short-term harm to the child is ameliorated.

[131]

While this is not a
Hague Convention
case, the underlying
object of securing the safe and secure return of the child to the appropriate
jurisdiction is equally compelling under Part 3 of the
FRA
.  In my view,
it would be anomalous if such protections were afforded for the return of
children wrongfully removed under the
Convention
, but not for those
wrongfully removed under Part 3.  Section 47 must be interpreted in light of
the purposes set forth in s. 43, including the best interests of the child.  Under
s. 47, the court is not limited to undertakings of the parent requesting the
return of the child, but may impose an order to ensure the childs best
interests during the transition period.

[132]

In the result, I am not persuaded that the chambers judge erred in
the circumstances before him in making the expenses order.

3.

Costs

[133]

The father submits that the chambers judge erred in failing to award
him costs on the basis that he was successful in having the B.C. Supreme Court
decline jurisdiction in favour of Japan.  He submits that it is only because
the mother wrongfully removed the child from Japan that he was put to the cost
of having to seek relief in the courts of British Columbia.

[134]

An order for costs is discretionary.  It is not for this Court to
substitute its own view of an appropriate order simply because it may take a
somewhat different view of the equities between the parties.  There was divided
success in the overall proceedings, although the extent of the mothers success
was not fully evident until the expenses order was made.  I am not persuaded
that the chambers judge erred in finding that it was appropriate to order each
party to bear his or her own costs.

DISPOSITION

[135]

In summary, I would dismiss the mothers appeal
with respect to the jurisdictional order and the fathers cross-appeal with
respect to the issues of interim custody, expenses, and costs.  I would vary
the expenses order of September 4, 2009 to extend the time for the mother to
return with the child to Japan to no later than March 14, 2010.  I would vary
the jurisdictional order of April 21, 2009, by deleting para. 1 and
substituting an order that the Supreme Court of British Columbia declines
jurisdiction over the child except to the extent of the orders for interim
custody and the payment of expenses made pursuant to s. 47 of the
FRA
.
I would direct counsel to take steps to draw and enter this order as soon as
possible after the release of this judgment.

The Honourable Madam Justice Prowse

I Agree:

The Honourable Mr. Justice Lowry

Reasons for Judgment of the Honourable Madam Justice
Rowles:

I.        Introduction

[136]

The father of a child who had been taken by his
mother from his habitual place of residence in Japan brought an application in
the custody proceedings the mother had commenced in British Columbia asking the
court to decline jurisdiction to hear the mothers action.

[137]

At the time the fathers application was heard,
neither party had presented any evidence of the law and procedure in Japan
pertaining to the determination of custody and access matters or to the rules
of private international law that apply.

[138]

Canada is a party to the
Hague Convention on the Civil Aspects of
International Child Abduction
, 25 October 1980, 1343 U.N.T.S. 22514, Can.
T.S. 1983 No. 35 (entered into force 1 December 1983) (
Hague
Convention
 or

Convention
) but Japan is not.  There is no
foundation in the evidence to support the proposition that the laws of Japan
mirror those found in countries that have adopted the
Convention
.

[139]

The law of conflicts that applies in this case is to be found in
Part 3 of the
Family Relations Act
, R.S.B.C. 1996, c. 128 (
FRA
).
On the question of whether the judge ought to have declined jurisdiction,
s. 46 of the
FRA
and s. 11 of the
Court Jurisdiction and
Proceedings Transfer Act
, S.B.C. 2003, c. 28 (
CJPTA
), have
application.  As part of his order, the chambers judge included provisions
aimed at reducing or eliminating the prejudice to the mother of having the
issue of custody determined in Japan.  While the statutory provisions on which
the judge relied gave him the power to impose the terms and conditions he did, there
was no evidence before him to show that the extraterritorial order he made will
be recognized and enforced by the Japanese courts.  On the appeal of the order
requiring her to return the child to Japan, the mother seeks to adduce fresh
evidence to show, among other things, that the terms and conditions imposed
will not accomplish their intended goal.

[140]

Justice Prowse, whose reasons I have had the
privilege of reading in draft, has concluded that the mothers appeal and the
fathers cross-appeal from the order made 21 April 2009 must be dismissed.  I
respectfully disagree.

[141]

In my opinion, the chambers judge erred in
declining to exercise his jurisdiction to hear the mothers action, taking into
account the factors set out in s. 11 of the
CJPTA
.  I would allow
the appeal, set aside the judges order of 21 April 2009 and dismiss the
fathers application to have the court decline to exercise its jurisdiction to
hear the mothers action.  My reasons follow.

II.        The statutory framework

[142]

Fundamental changes to the law of conflicts in
matters of custody and access got under way in British Columbia in 1978 when
provisions relating to extraprovincial child custody and access orders were
added to the
Family Relations Act
, S.B.C. 1978, c. 20,
ss. 38-42, in force 31 March 1979.  Those amendments were based on
the Reciprocal Enforcement of Custody Orders Act, a Model Act which the
Uniform Law Conference of Canada (the ULC) had agreed upon in 1974.

[143]

In 1982, the ULC amended its 1974 Model Act
based on an Ontario bill that became
An Act to amend the Childrens Law
Reform Act
, S.O. 1982, c. 20, and renamed it the
Uniform Custody
Jurisdiction and Enforcement Act
.  In 1985, British Columbia replaced
its provisions on extraprovincial custody and access orders to accord with those
of the ULCs 1982 Model Act:
Family Law Reform Amendments Act
,

1985
,
S.B.C. 1985, c. 72, s. 17 (ss. 38-42 of the amended
Family
Relations Act
, in force 2 June 1986).  Those provisions remain in force
today in Part 3 of the
Family Relations Act,
R.S.B.C. 1996, c. 128.

[144]

The purposes of Part 3 of the
FRA
are set
out in s. 43:

43        The
purposes of this Part are

(a)
       to ensure that applications to the courts in respect of custody of,
access to and guardianship of 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 or access to the same child ought to be avoided, and to make
provision so that the courts of British Columbia 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 that has 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 British
Columbia.

[145]

Sections 44 and 45 provide for the exercise of
jurisdiction in three circumstances.  Section 44 reads:

44 (1)   A court must exercise its
jurisdiction to make an order for custody of or access to a child only if

(a)
       the child is habitually resident in British Columbia at the commencement
of the application for the order, or

(b)
       although the child is not habitually resident in British Columbia, the
court is satisfied that

(i)
        the child is physically present in British Columbia at the commencement
of the application for the order,

(ii)
       substantial evidence concerning the best interests of the child is
available in British Columbia,

(iii)
      no application for custody of or access to the child is pending before an
extraprovincial tribunal in another place where the child is habitually
resident,

(iv)
      no extraprovincial order in respect of custody of or access to the child
has been recognized by a court in British Columbia,

(v)
       the child has a real and substantial connection with British Columbia,
and

(vi)
      on the balance of convenience, it is appropriate for jurisdiction to be
exercised in British Columbia.

(2)        A child is habitually resident in
the place where the child resided

(a)
       with both parents,

(b)
       if the parents are living separate and apart, with one parent under a
separation agreement or with the implied consent of the other parent 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.

(3)        The
removal or withholding of a child without the consent of the person who has
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.

[146]

Section 45 provides that if a child is
physically present in the jurisdiction and there is a probable risk of serious
harm to the child, the court may exercise jurisdiction:

45        Despite sections 44 and 48, a
court may exercise its jurisdiction to make or to vary an order in respect of
the custody of or access to a child if

(a)
       the child is physically present in British Columbia, and

(b)
       the court is satisfied that the child would, on the balance of
probability, suffer serious harm if the child

(i)
        remains in the custody of the person legally entitled to custody of the
child,

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

(iii)       is removed
from British Columbia.

[147]

Apart from ss. 44 and 45, there may be rare circumstances in
which the courts
parens patriae
jurisdiction might be exercised in
cases involving extraterritorial custody or access disputes but that
possibility does not arise in this case.  Sections 49 and 50 in Part 3 of the
FRA
provide for jurisdiction to be exercised where circumstances permit a superseding
order to be made but that does not concern us here.

[148]

The doctrine of
forum non conveniens
finds its place in s. 46 of the
FRA
, which provides:

46        A
court that has jurisdiction in respect of custody or access may decline to
exercise its jurisdiction if the court is of the opinion that it is more
appropriate for jurisdiction to be exercised outside British Columbia.

[149]

Part 3 also contains provisions enabling the court
to make orders or impose conditions if one of the circumstances set out in
s. 47(a) or (b) applies.  Section 47 provides:

47        On application for custody of or
access to a child, a court

(a)
       that is satisfied that the child has been wrongfully removed to or is
being wrongfully retained in British Columbia, or

(b)
       that may not exercise jurisdiction under section 44 or that has declined
jurisdiction under section 46 or 49 (2),

may
do any one or more of the following:

(c)
       make any interim order in respect of the custody or access that the
court considers is in the best interests of the child;

(d)
       stay the application subject to

(i)
        the condition that a party to the application promptly commence a
similar proceeding before an extraprovincial tribunal, or

(ii)
       any other conditions the court considers appropriate;

(e)        order a party
to return the child to a place the court considers appropriate and, in the
discretion of the court, order payment of the cost of the reasonable travel and
other expenses of the child and any parties to or witnesses at the hearing of
the application.

[150]

Section 47(c) permits the court, in the
circumstances specified in subsections (a) or (b), to make any interim custody
or access order that the court considers to be in the best interests of the
child.  Subsections (c) through (e) grant wide powers which are intended to
ensure that there is no injustice to a plaintiff in ordering a stay or in
ordering that a party return the child to the place the court considers
appropriate.

[151]

In 1982, British Columbia implemented the
Hague
Convention
by amending the
FRA
to include what is now Part 4 (
Family
Relations Amendment Act, 1982
, S.B.C. 1982, c. 8, s. 1 (s. 42.1
of the amended
FRA
, in force 1 December 1983).  Section 55 of the
FRA
comprises the whole of Part 4:

55 (1)   In this section, convention means
the Convention on the Civil Aspects of International Child Abduction signed at
The Hague on October 25, 1980.

(2)        Subject to subsection (4), the
provisions of the convention have the force of law in British Columbia.

(3)        The Attorney General is the
Central Authority for British Columbia for the purpose of the convention.

(4)        The government is not bound to
assume any costs resulting from the participation of legal counsel or advisers
or from court proceedings in relation to applications submitted under the
convention, except to the extent that the costs are covered under British
Columbias system of legal aid and advice.

(5)        Subsections (1) to (4) and the
convention apply in respect of a child who, immediately before a breach of
custody or access rights, was habitually resident in a contracting state but do
not apply in respect of a child described in subsection (6).

(6)        Part 3 applies in respect of

(a)
       a child who is in Canada and who, immediately before a breach of custody
or access rights, was habitually resident in Canada,

(b)
       a child who, immediately before a breach of custody or access rights,
was habitually resident in a state other than a contracting state,

(c)
       a child who, immediately before a breach of custody or access rights,
was resident, but not habitually resident, in a contracting state, and

(d)
       any other child affected by an extraprovincial order, other than a child
in respect of whom subsections (1) to (4) and the convention apply.

(7)        The
Attorney General must publish, in Part II of the Gazette, a copy of the
convention and the day on which the convention extends to British Columbia.

[152]

Justice La Forests judgment in
Thomson v. Thomson
, [1994] 3
S.C.R. 551 at 575-576, 119 D.L.R. (4th) 253, describes the impetus for the
Convention
and the recognition of the need
for
governments to coordinate their efforts to prevent the problems associated with
international parental child abduction.
The underlying purpose of the
Convention
,
as set out in its preamble, is to protect children from the harmful effects of
their wrongful removal or retention and to establish procedures to ensure their
prompt return to the state of their habitual residence:
Thomson
at 559.

[153]

Article 1 of the
Convention
reads:

The objects of the present Convention are

a)         to
secure the prompt return of children wrongfully removed to or retained in any
Contracting State; and

b)         to ensure that
rights of custody and of access under the law of one Contracting State are
effectively respected in the other Contracting States.

[154]

Under s. 55(5) of the
FRA
, the provisions of the
Convention
do not apply when s. 55(6)(b) applies; instead, Part 3 applies.  In other
words, when Japan has not adopted the
Convention
, it is Part 3 of the
FRA
,
not the
Convention
, that governs the determination of the issues on this
appeal.

[155]

When Japan is a non-
Convention
state,
there is no reason to assume that the uniform and shared approach to
jurisdiction adopted by
Convention
states will be applied by the courts
in Japan.  Nor is there any foundation for an assumption that the law and procedure
in Japan for the resolution of conflicts over custody and access would conform
to or be consistent with the Articles in the
Convention
that apply to
the contracting parties through recognition and enforcement of extraterritorial
orders.

[156]

The provisions in Part 3 of the
FRA
for
the recognition and enforcement of extraprovincial custody and access orders
reflect the law as it developed in common law jurisdictions.  Part 3 requires
recognition and enforcement of extraprovincial custody and access orders unless
one of the circumstances set out in s. 48(1)(a) to (e) applies.  Section
48 provides:

48
(1)   On
application by any person in whose favour an order for the custody of or access
to a child has been made by an extraprovincial tribunal, a court must recognize
the order unless the court is satisfied that

(a)        the
respondent was not given reasonable notice of the commencement of the
proceeding in which the order was made,

(b)        the
respondent was not given an opportunity to be heard by the extraprovincial
tribunal before the order was made,

(c)        the
law of the place in which the order was made did not require the
extraprovincial tribunal to have regard for the best interests of the child,

(d)        the
order of the extraprovincial tribunal is contrary to public policy in British
Columbia, or

(e)        the
extraprovincial tribunal would not have jurisdiction under section 44 if
it were a court in British Columbia.

(2)        An order that is made by an
extraprovincial tribunal and that is recognized by a court is deemed to be an
order of the court and enforceable as such.

(3)        A court presented with
conflicting orders made by extraprovincial tribunals for the custody of or
access to a child that, but for the conflict, would be recognized and enforced
by the court under subsections (1) and (2), must recognize and
enforce the order that appears to the court to be most in accord with the best
interests of the child.

(4)        A
court that has recognized an extraprovincial order may make any further orders
under this Act that the court considers necessary to give effect to the order.

[157]

Absent evidence of Japanese law pertaining to
the recognition and enforcement of extraterritorial interim orders or
conditions with respect to custody, there is no foundation for the assumption
that under Japanese law, the order the chambers judge made under s. 47 of
the
FRA
would be recognized or enforced in Japan.

[158]

In 2003, British Columbia enacted the

CJPTA
.  The
CJPTA
is based on a Model Act of the same name
prepared by the ULC.  The ULCs commentary on the Model Act states that it is
intended to be a comprehensive statement of the substantive law of court
jurisdiction, but the commentary also recognizes that there may be special
provisions, particularly in the family law area, which are inconsistent with
the Act and are to be preserved.  The commentary notes that an enacting
jurisdiction can list such acts as exceptions or, if the enacting jurisdiction
cannot specifically list the exceptions but is convinced that they exist, s. 12
may be included.  The British Columbia legislation includes s. 12.

[159]

Section 12 of the
CJPTA
provides:

12        If there is a conflict or
inconsistency between this Part and another Act of British Columbia or of
Canada that expressly

(a)
       confers jurisdiction or territorial competence on a court, or

(b)
       denies jurisdiction or territorial competence to a court,

that other Act
prevails.

[160]

As there are conflicts or inconsistencies between Parts 3 and 4 of
the
FRA
and Part 2 of the
CJPTA
with respect to
jurisdiction
,
the provisions of the
FRA
prevail with respect to the
jurisdiction
of the court.

[161]

I repeat s. 46 of the
FRA
, which provides
for the application of the doctrine of
forum non conveniens
:

46        A
court that has jurisdiction in respect of custody or access may decline to
exercise its jurisdiction if the court is of the opinion that it is more
appropriate for jurisdiction to be exercised outside British Columbia.

[162]

Section 11 of the
CJPTA,
which codifies the doctrine of
forum
non conveniens
, provides:

11 (1)   After considering the interests of
the parties to a proceeding and the ends of justice, a court may decline to
exercise its territorial competence in the proceeding on the ground that a
court of another state is a more appropriate forum in which to hear the
proceeding.

(2)        A court, in deciding the question
of whether it or a court outside British Columbia is the more appropriate forum
in which to hear a proceeding, must consider the circumstances relevant to the
proceeding, including

(a)
       the comparative convenience and expense for the parties to the
proceeding and for their witnesses, in litigating in the court or in any
alternative forum,

(b)        the
law to be applied to issues in the proceeding,

(c)
       the desirability of avoiding multiplicity of legal proceedings,

(d)
       the desirability of avoiding conflicting decisions in different courts,

(e)        the
enforcement of an eventual judgment, and

(f)         the fair and
efficient working of the Canadian legal system as a whole.

[163]

The decision in
Teck Cominco Metals Ltd. v. Lloyds Underwriters
,
2009 SCC 11, [2009] 1 S.C.R. 321, confirms that s. 11 was intended to
codify the
forum non conveniens
test, not to supplement it (at para. 22).
In that case, the Supreme Court rejected the argument that s. 11 does not
apply when a foreign court has already asserted jurisdiction over the matter (at
para. 23) and also rejected the argument that the assertion of
jurisdiction by a foreign court is an overriding and determinative factor (at para. 24).
While
Teck Cominco
was a commercial case, not a case involving issues of
custody of and access to children, it seems to me that the factors listed in
s. 11 of the
CJPTA
would have application if consideration of
forum
non conveniens
under s. 46 of the
FRA
is required, at least in
the context of a case to which the
Hague Convention

does not apply
.

III.       Background

[164]

The child in this case was born in Japan in August 2001 and until
his mother brought him to British Columbia in November 2008, he had lived in
Japan all his life except for annual month-long visits to relatives in Canada.
His father is a Japanese citizen and his mother, Canadian.  The child has both
Japanese and Canadian citizenship and speaks both English and Japanese.

[165]

The mother was born in Burlington, Ontario, and obtained a Bachelor
of Education degree from the University of Alberta in 1994. The father
graduated from Chubu University in Japan with a major in electrical
engineering.  He is self-employed, having taken over his familys firm
from his father.

[166]

In 1995, the mother moved to Japan to teach English.  The parties
met in 1996 when the father was taking a course at an English conversational
school in Kasugai.  They began to date in 1997 and were married in Hawaii
in March 2000.

[167]

After the childs birth, the mother resumed work as an English
teacher at various schools.  She typically worked outside the home two or
three days a week from about noon until eight or nine in the evening, and from
about ten in the morning to one in the afternoon on another day of the
week.  She had other occasional teaching assignments.  When both of his
parents were working, the child was often cared for by his paternal
grandparents.

[168]

Starting when he was about three months old, the mother would take
the child to visit with her family in Canada, typically during the summer
vacation from the end of July until the end of August.

[169]

In January of 2005, the parties moved into a three-level residence
that had been built by the father, with the fathers parents occupying the
first floor.  The father had an office on the second floor.

[170]

In April 2005, the child began kindergarten and in April 2008 he
entered Grade One.

[171]

The mother deposed that the father caused injury to her on a number
of occasions as a result of altercations, all of which were denied by the
father.  The father deposed he had received injuries as a result of the mother
striking him and those were denied by the mother.  In 2006, the parties began
marriage counselling although they disagree on when it began.  The mother said
that in September 2006 she and the father began to live separate and apart in
the family residence.  In December 2007, the father stated his intention to
seek a divorce.

[172]

In June 2008, the father retained a lawyer to obtain a
divorce.  He was told that as a necessary first step towards obtaining a
divorce he had to go through mediation and if that was not successful the case
could proceed to trial.  The father applied for Coordination and Mediation of
Marriage at Nagoya Family Court on 8 July 2008.

[173]

In July 2008, the mother and child travelled to Nanaimo, British
Columbia, on their annual vacation.

[174]

The two mediation sessions which took place
after her return were unsuccessful.  On 1 November 2008, the mother left for
Canada with the child without telling the father.  Several days later the
mothers lawyer informed the father of their whereabouts.

[175]

The mother brought an action under the
FRA
on
20 November 2008 claiming custody and guardianship of the child.  The father
commenced proceedings in Japan on 21 November.

[176]

In January 2009, the father travelled to British Columbia and was made
aware at that time of the proceedings the mother had brought.  In February
2009, the father discontinued or abandoned the proceedings he had commenced in
Japan.

[177]

In April 2009, the father brought an application in the mothers
action in which he sought the following relief:

1.         this
court decline to exercise its territorial competence in this proceeding;

2.         this
action be struck out, or in the alternative, stayed;

3.         the
Plaintiff forthwith return the child Taiyo Tsuchiya, also known as Taiyo George
Tsuchiya , born August 6, 2001 (the Child), to the care and custody of the
Defendant, on such terms as this court deems just;

4.         if
the Plaintiff does not return the Child to the Defendant as ordered herein, any
peace officer having knowledge of this order may reasonably assist the
Defendant in securing the return of the Child to the Defendant;

5.         in the alternative, the Plaintiff
return with the Child to Japan forthwith;

6.         special
costs

[178]

The relief sought in the application does not
challenge the jurisdiction of the court to hear the mothers action; instead,
the father asked the court to decline to exercise its jurisdiction.  However,
it is clear from his reasons that the judge
focused
primarily on the courts jurisdiction.  He
concluded
that the court did not have jurisdiction to make an order relating to the care
and custody of the child but he went on to state, without elaboration, that if
he did have jurisdiction, he would decline to exercise it.

[179]

The substantive part of the judges order dated
21 April 2009 reads as follows:

THIS COURT ORDERS AND DECLARES THAT:

1.         The Supreme Court of British
Columbia has no jurisdiction pursuant to section 44 of the
Family Relations
Act
, R.S.B.C. 1996, c. 128 to make an order relating to the care and
custody of the Child:

Taiyo Tsuchiya,
also known as Taiyo George Tsuchiya, born August 6, 2001.

2.         Pursuant to section 47 of the
Family
Relations Act
,  R.S.B.C. 1996, c. 128 the Plaintiff shall return with the
Child to Japan so that the issues relating to the Childs custody, access and
guardianship can be decided in Japan.

3.         The order under paragraph 2
hereunder is stayed until:

(a)        The
Defendant pays to the Plaintiff the reasonable travel expenses for the
Plaintiff and the Child to return to Japan; and

(b)        The
Defendant secures payment to the Plaintiff of a sum of money that is sufficient
to cover the reasonable living expenses of the Plaintiff and the Child in Japan
until the issues relating to the Childs custody, access and guardianship can
be decided there.

4.         The parties have liberty to apply
should they be unable to agree as to what payment is required of the Defendant
and as to the amount and manner of securing payment of living expenses.

5.         Pursuant to section 47 of the
Family
Relations Act
, R.S.B.C. 1996, c. 128, the Plaintiff shall have interim
custody, care and control of the Child and the Defendant shall have reasonable
and generous access to him, pending a decision on these issues by the courts in
Japan.

6.         If the Plaintiff does not return
to Japan with the Child following payment of the reasonable travel expenses or
after the Defendant secures payment to her of the reasonable living expenses,
as provided for in paragraph 3 hereunder, the Defendant has leave to apply for
an order for the Childs interim custody and care.

7.         If the Defendant does not pay the
reasonable travel expenses and secure payment of the reasonable living
expenses, as provided for in paragraph 3 hereunder, the Plaintiff has leave to
apply to have matters relating to the Childs custody and access determined in
British Columbia in this proceeding.

8.         Each
party shall bear their own costs of this application.

[180]

After the judge gave his reasons on 21 April
2009, the parties focused their attention on the unresolved issue of the amount
required to pay for reasonable travel expenses to return to Japan and the
amount required for living expenses.  Additional material was filed which led
the judge to conclude that resolution of the disputed issues of custody in
Japan would take two years.  His order of 4 September 2009, which stipulated
the amount the father was required to pay and secure, is premised on that
two-year time period.

[181]

Both an appeal and cross-appeal have been brought from the order of
21 April 2009 and the father has appealed from the order of 4 September
2009.

[182]

The mother has appealed the declaratory order on jurisdiction and
the part of the order requiring her to return the child to Japan.  The errors in
judgment alleged in the mothers factum are that the chambers judge:

[(a)]
made his decision under a misapprehension of the facts as the respondent misled
the Court about the legal proceedings in Japan.

[(b)]
 erred in law by inferring that the legal system in Japan would be able to
determine and protect the best interests of the child in relation to the issues
of custody and appropriate parenting arrangement for the child.

[(c)]
made a finding of fact that was unsupported by evidence in relation to the
appellant being awarded custody of her son in Japan.

[(d)]       erred in law
in relation to his analysis of s. 44 and s. 46 of the
Family
Relations Act
.

[183]

The father asserts that the chambers judge erred:

[(a)]
in ordering that the Appellant have interim custody, care and control of [the
child].

[(b)]
in ordering that the Respondent secure payment to cover the reasonable living
expenses of the Appellant and [the child] in Japan.

[(c)]       in not
awarding costs of the application to the Respondent.

IV.      The mothers argument on the alleged errors

[184]

The chambers judge concluded that the Supreme
Court of British Columbia did not have jurisdiction under s. 44(1)(b) of
the
FRA
to make an order for the custody of the child.
The judge said he was satisfied that the first, third, and fourth
requirements of s. 44(1)(b) had been met but not the second, fifth or
sixth requirements.  The judge went on to state, but without elaboration, that
if he did have jurisdiction he would decline to exercise it.

[185]

As to the judges declaratory order on jurisdiction, the mother
argues that the judge erred by engaging in a comparative analysis of the
evidence available in the other jurisdiction rather than simply determining
under s. 44(1)(b)(ii) if there was substantial evidence concerning the
best interests of the child available in British Columbia.  The mothers
argument concerning s. 44(1)(b)(v) is similar to her argument on
s. 44(1)(b)(ii), that is, the question is not a comparative one but a
determination of whether the child has a real and substantial connection with
British Columbia.  Her argument on s. 44(1)(b)(vi) is that the balance of
convenience relates to the exigencies of having the matter heard rather than
some of the matters to which the judge referred, such as where the parties had
earlier decided to live.

[186]

The mothers main argument, with which I agree, is that s. 46
is meant to address
forum non conveniens
, and that the chambers judge
erred by conflating the requirements of s. 44(b)(ii), (v) and (vi) with
the factors considered when deciding whether to decline jurisdiction under
s. 46, as appears in paras. 44 through 54 of his reasons.  The issue the
chambers judge ought to have addressed is whether, under s. 46 of the
FRA
,
he ought to have declined jurisdiction, taking into account the factors in
s. 11 of the
CJPTA
.

V.       The evidence before the court
at the time of the April order, the evidence put before the court prior to the
September order and the fresh evidence

[187]

Under the April order, the parties were given liberty to apply if
they were unable to agree on what payment the father was required to make and
the amount and manner of securing payment for living expenses.  The material
the parties submitted between the time of the April and September orders was aimed
at the question of the length of time the proceedings would take and the
reasonable costs the mother and child would incur pending determination of the
custody issue in Japan.

Based on
that
material, the judge found that the issue of custody would probably take two
years to resolve in the courts in Japan.  That finding was the underpinning for
the amount he ordered the father to secure for living expenses for the mother
and the child while proceedings were ongoing in Japan.  That additional
evidence forms part of the record on the fathers appeal of the September order
but not the mothers appeal or the fathers cross-appeal from the April order.

[188]

Whether the mother could have applied to the judge to set aside the
April order on the ground that false information had been given to the judge
about custody proceedings being underway in Japan does not make the post-April
evidence part of the record in the appeal and cross-appeal from the April
order.

[189]

When the judge made the April 2009 order, neither party had put
before him any evidence regarding the Japanese law of conflicts as it applied,
either generally or specifically, to custody and access disputes.  Nor was any
evidence before the court pertaining to the law and procedure in the
determination of custody and access issues in Japan.  Some of the evidence
filed between the April and September orders makes reference to matters of
procedure and practice in the resolution of custody disputes in the Japanese
courts but the extent of the evidence was limited by its intended purpose.

[190]

Subsequent to the appeal and cross-appeal being brought, the mother
filed material on the appeal aimed at demonstrating the potential prejudice to
her and the child if the court declines jurisdiction and the issues of custody,
guardianship and access fall to be determined by the courts in Japan.  The
father opposes the introduction of that fresh evidence but if it is admitted
the father submits that additional material he has filed ought to be admitted
and taken into account on the appeal.

[191]

During oral submissions, we asked counsel
whether the case ought to be remitted if the appeal were allowed.  Both counsel
urged us not to send the case back to the lower court because of the cost and
delay that would inevitably be occasioned in doing so.

[192]

The issue on which the appeal turns was not
addressed by the chambers judge in his reasons; instead, he simply stated that
if he did have jurisdiction, he would decline to exercise it.  The absence of
evidence on the relevant Japanese law limits consideration of the factors
referred to in s. 11 of the
CJPTA
.  However, admission of fresh
evidence in this case is also problematic because much of it is conflicting and
untested and the relevance of some of it is questionable.  It must also be
remembered that an appeal is not a decision of first instance but a judicial
review of a decision made.

[193]

Included in the fresh evidence the mother seeks
to adduce are the affidavits of Canadian and British foreign affairs officials
who have attested to the obstacles foreign nationals face when attempting to
resolve custody and access issues or when attempting to enforce foreign and
domestic orders in Japan.  The affiants do not purport to give legal opinions
as to the applicable Japanese law; instead, their observations can go no
further than provide support for the view that without the procedures and
mechanisms embodied in the
Hague Convention
, the mother faces a
juridical disadvantage that may not be remedied by the order the judge made
under s. 47 of the
FRA
granting the mother interim custody and
requiring the father to secure her living expenses for a two-year period.

[194]

While the evidence of those officials is independent of the parties,
their evidence is not essential to the resolution of the issue of prejudice and
is therefore not practically conclusive of the result, the standard this
Court has generally applied in relation to the admission of fresh evidence in civil
matters:
Struck v. Struck
, 2003 BCCA 623, 189 B.C.A.C. 291.  Japan has
not adopted the
Hague Convention
although 81 other countries have done
so.  As noted earlier, there is no foundation for the assumption the judge
appears to have made in making the order he did under s. 47 of the
FRA
that the law in Japan pertaining to recognition and enforcement of
extraterritorial orders is compliant with the principles and procedures binding
countries that have adopted the
Convention
.

[195]

I agree with Justice Prowse, at least in result, that the fresh
evidence ought not to be admitted.

VI.      The judges finding that the mother had not abducted the
child as an alternative to the determination of custody rights by due process

[196]

One of the purposes of Part 3 of the
FRA,
as set out in
s. 43, is to discourage the abduction of children as an alternative to
the determination of custody rights by due process.  The judge found that the
mother had not abducted the child as an alternative to the determination of
custody rights by due process.  In that regard, he said:

[33]      I do
not find that the plaintiff abducted [the child] as an alternative to the
determination of custody rights by due process.  The defendant knew where
the plaintiff and [the child] had gone.  The plaintiff has always been
subject to court process.  There was nothing illegal about the plaintiff
leaving with [the child]. The plaintiff was one of his legal custodians.
There was no pending court process.  There was no court order preventing
her from leaving.

[197]

There is no dispute that the mother left Japan
with the child without telling the father that she was going to do so.
However, the judge was correct in stating that at the time she left no custody
order had been made and there were no proceedings in Japan in which a claim for
custody was being advanced.

[198]

There was no evidence of Japanese law on the
question of who was entitled to exercise custody in the circumstances described
in the affidavit material.

[199]

The judge stated that the mother was one of the
childs legal custodians.  If by that term the judge meant to include the
right to exercise custody, there is statutory support under British Columbia
law for his finding.

[200]

Section 34 of the
FRA
provides:

34 (1)   Subject to subsection (2), the
persons who may exercise custody over a child are as follows:

(a)
       if the father and mother live together, the father and mother jointly;

(b)
       if the father and mother live separate and apart, the parent with whom
the child usually resides;

(c)
       if custody rights exist under a court order, the person who has those
rights;

(d)
       if custody rights exist under a written agreement, the person to whom
those rights are given.

(2)
If persons have conflicting
claims to custody under subsection (1), the following persons may exercise
custody to the exclusion of the other persons unless a court otherwise orders
:

(a)
       the person who has custody rights under a court order;

(b)
       if paragraph (a) does not apply, the person granted custody by an
agreement;

(c)
if paragraphs (a) and (b) do not apply, the person claiming custody
with whom the child usually resides
;

(d)
if paragraph (c) applies and 2 persons
are equally entitled under it, the person who usually has day to day personal
care of the child
.

[Emphasis
added.]

[201]

While the parties were still living under the
same roof prior to the mother leaving Japan, the evidence is clear that the
marriage was at an end.  There is no dispute that at the time the mother
brought the child to British Columbia, neither parent had custody rights under
a court order and the parties had not entered into any written agreement as to
custody.  Under s. 34(2)(d) of the
FRA
, the mother, who usually had
day to day personal care of the child, would have the right to exercise
custody.

[202]

Whether the right to exercise custody carries
with it the right to determine the childs place of residence is a separate but
contentious question.  In my view, it would be open to the court under
s. 46 of the
FRA
to consider whether to accept or decline
jurisdiction based on the mothers unilateral decision to relocate in British
Columbia on the footing that in the circumstances, the relocation is analogous
to an abduction.  Some support for that view may be found in
Gordon v.
Goertz
, [1996] 2 S.C.R. 27, 134 D.L.R. (4th) 321, in which the majority
rejected the proposition that there is a presumption in favour of the custodial
parent having the right to decide where children are to reside and did so on
the basis that it is incompatible with the individualized assessment that must
be made regarding a childs best interests.

VII.     The application of s. 11 of the
CJPTA
in the determination of whether the chambers judge ought to have declined to
exercise his jurisdiction to determine the issues in the appellants action

[203]

For ease of reference I will repeat s. 11
of the
CJPTA
:

11 (1)   After considering the interests of
the parties to a proceeding and the ends of justice, a court may decline to
exercise its territorial competence in the proceeding on the ground that a
court of another state is a more appropriate forum in which to hear the
proceeding.

(2)        A court, in deciding the question
of whether it or a court outside British Columbia is the more appropriate forum
in which to hear a proceeding, must consider the circumstances relevant to the
proceeding, including

(a)        the
comparative convenience and expense for the parties to the proceeding and for
their witnesses, in litigating in the court or in any alternative forum,

(b)        the
law to be applied to issues in the proceeding,

(c)        the
desirability of avoiding multiplicity of legal proceedings,

(d)        the
desirability of avoiding conflicting decisions in different courts,

(e)        the
enforcement of an eventual judgment, and

(f)         the fair and
efficient working of the Canadian legal system as a whole.

[204]

Section 11 of the
CJPTA
must be applied taking into account
the legislation under which the issue of
forum non conveniens
arises, in
this case, Part 3 of the
FRA
and its purposes as set out in s. 43.

[205]

The determination of the more appropriate forum is hampered in this
case by the absence of evidence of Japanese law.

[206]

The circumstances relevant to the proceeding in this case include
but are not limited to the childs habitual place of residence, the primary
caregivers right to exercise custody and the other parents right to access.

[207]

The comparative convenience and expense for the parties to the
proceeding and for their witnesses, in litigating in the court in British
Columbia or in an alternative forum, is obviously a factor of significance in this
case.  Until November 2008, the child had lived all his life in Japan, with a
one-month visit each year to British Columbia.  He has extended family in Japan
and he attended kindergarten and school there.  There are obviously a number of
potential witnesses from Japan who could give relevant evidence as to custody
and access issues.

[208]

The child has now been in British Columbia for over one year and has
been attending school in Nanaimo.  He has extended family here and lives in his
grandparents house with his mother.  At this point, evidence as to the childs
health and well-being, as well as his progress in school, and his relationship
with his extended family in Canada would be readily available here.

[209]

It seems to me that the cost and inconvenience of having evidence
from Canada adduced in Japan may not be appreciably different from having
evidence from Japan adduced here.  I note as well that the judges order under
s. 47 required the father to post the amount required for the living costs
of the mother and child for a two-year period, which was the estimated time
required for the issue of custody to be determined in Japan.  Posting or
securing funds would not be required if the proceedings took place in British
Columbia.  The father might be subject to an order for child support, which he
has not paid to date, but that is an issue unrelated to the question of
declining jurisdiction.

[210]

The law to be applied to the issues in the proceeding may be of
importance but that is uncertain because the applicable law in Japan was not
put before the court.  The evidence adduced between the April order and the
September order led the judge to conclude that two years would be required to
determine custody in the courts in Japan.  British Columbia rules and procedure
in custody and access matters favour expedition.

[211]

Generally speaking, the law in Canada favours children having as
much contact with both parents as is practicable.  On the evidence, it is not
known whether that is the case under Japanese law.  When the parents of the
child are from different nations, the importance of having such contact may be
a significant issue in court proceedings to determine both custody and
access.

[212]

When considering the desirability of avoiding a multiplicity of
legal proceedings it is necessary to consider not only the proceeding in
British Columbia but also the proceedings the father may take in Japan.  The
provisions of the
Hague Convention
are aimed at avoiding a multiplicity
of legal proceedings.  However, Japan has not adopted the
Convention
and
there is no evidence before us of the circumstances under which the Japanese
courts would take jurisdiction.  In this case, much the same observations must
be made about the desirability of avoiding conflicting decisions in different courts.

[213]

Whether the courts in Japan would recognize and enforce an
extraterritorial order for custody or access made after a trial is open to
serious question.  The impetus for the
Hague Convention
was to prevent
international child abduction.  When Japan has not adopted the
Convention
it cannot be assumed that Japan has in place the equivalent in laws and
procedures as found in
Convention
states.  The same holds true for the
interim custody and access order the judge made under s. 47 of the
FRA
.
In that regard it is not clear that there is any effective way to prevent the
father from simply taking the child if the child is returned to Japan, thereby
circumventing due process.

[214]

As to the fair and efficient working of the Canadian legal system
as a whole, it is of obvious importance within Canada that custody and access
proceedings in one province be recognized as fair and efficient in another and
that a judgment in one province will be readily recognized and enforced in
another.  The same is true of proceedings taken in Canada where a party to a
civil proceeding over custody is habitually resident in another state.  As La
Forest J. noted in
Thomson
(at 576), Canada was one of the four original
signatories to the
Hague Convention
.  Japan has chosen not to adopt the
Convention
and as a result it may be assumed, without evidence to the contrary, that
Japanese law effectively invites international child abduction.

[215]

When all the factors referred to in s. 11 of the
CJPTA
are considered, it appears to me that the court in British Columbia should not
decline jurisdiction in this case.

VIII.    Conclusion

[216]

For the reasons stated, I would set aside the
April order which was the subject of the appeal and cross-appeal.  The
September order falls with the April order.  I would dismiss the fathers
application for the court to decline to exercise its jurisdiction.

The Honourable Madam Justice Rowles