FYMB v. CCH

FCMC 9300/2012

[2020]HKFC210

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 9300 OF 2012

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Judgment
(Re. : Variation of care, control and relocation).

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Introduction

1.  The Parties were married in November 2007; the Mother petitioned for divorce in June 2012, the Decree Absolute was pronounced in August 2013.

2.  By the Consent Order of 18 June 2013 (“the 2013 Order”) the Parties have joint custody and joint care and control of the only child of the family C, a daughter born on 16 February 2009.

3.  By the financial order of 13 August 2013 the Parties resolved ancillary relief by way of mutual dismissal of their respective claims with the Mother paying the Father periodical payments of HK$1,750 per month for the maintenance of C.

4.  In the subsequent Consent Order of 12 July 2015 (“the 2015 Order”) the previous arrangements were varied increasing the Mother’s time with C.

5.  Both Parties have re-partnered. The Mother met her new partner Mr L in 2012; they have two daughters W and G aged six and four. The Father married Madam H in January 2017; they have two daughters G and O aged two years old and six months old respectively.

6.  Mr L and W and G have resided in Canada since July 2019; the Mother makes occasional visits to Canada.

The Application before the Court

7.  By her summons of the 4 June 2019 the Mother applies for the following orders:

i)   Leave to permanently remove C to Canada

ii)  Paragraph 1 of the 2013 Order be varied to the effect that the Mother shall have the sole care and control of C with reasonable access to the Father

8.  Although there is no formal application before the Court, the Parties agree that in the event relocation is granted financial arrangements should be put in place to take account of the change in C’s circumstances.

Current arrangements of C

9.  In accordance with the 2015 Order :

i)     C is with the Mother from after-school on Monday until 7 pm on Friday

ii)    C is with the Father from 7 pm on Friday until school on Monday on an alternating weekly basis

iii)   C is with the Father from 7 pm on Friday until 9 pm on Saturday on alternating weekly basis.

iv)   During the weeks in which C is with the Father from 7 pm on Friday until 9 pm on Saturday C will be with the Mother from 9 pm on Saturday until school on Friday

v)    School and Public holidays to be shared equally

The Mother’s Open Proposals

10.  These are at Annex A.

The Father’s Open Proposals

11.  These are at Annex B.

Main issues to be considered

12.  Should the Mother’s application to permanently relocate with C to Canada be granted.

13.  If so what should the arrangements be as to:

i)    Care and control

ii)   Access in Canada and Hong Kong

iii)  C’s education in Canada

iv)  Financial support

14.  In the event the application is not granted what should the arrangements be as to:

i)    Care and control

ii)   Access in Canada and in Hong Kong

iii)  C’s education in Hong Kong

iv)  Financial support

The Law

15.  The general principles are set out in s.3 of the Guardianship of Minors Ordinance (Cap. 13) which states that:

(1)  In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a)  in any proceedings before any court (whether or not a court as defined in section 2) the court –

(i)  shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to –

(A)    the wishes of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B)    any material information including any report of the Director of Social Welfare available to the court at the hearing;”

16.  In BA and BL (Child Relocation) [2019] 4 HKLRD 23 the Court of Appeal considered the approach to be taken in relocation cases.

“4.7 The discipline or guidance given by Thorpe LJ on the Court’s approach on relocation cases which the Judge in this case adopted can be summarised as follows:

(1) Is the Mother’s proposal genuine and realistic?

(2) Is the Father’s opposition genuine? What is the extent of the detriment to him if leave is granted and how far may this be offset by the child’s relationship with the maternal family and homeland?

(3) Impact on the Mother of a refusal of her proposal.

(4) The outcome of the second and third appraisals must be considered in the overriding review of the child’s welfare as the paramount consideration.”

“4.14 In Hong Kong, the paramount consideration is whether the relocation is in the best interests of the child. Hence whether a relocation application is made by a primary carer or a non-primary carer does not give rise to any presumption in favour of or against the applicant. There may be myriad reasons why such a parent applies for the relocation of the child. Ultimately it is one of the factors to be considered in the overall assessment whether the relocation is in the best interests of the child and the weight to be attached to this factor depends on the facts of the case. The value of Payne is that it "identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case", per Black LJ at [144] in K v K . In my view Payne is not to be jettisoned. The relevant factors provide a structured framework in which the appraisal is to be made holistically.

4.15 I have dealt with the situation of a single parent being the primary carer. In respect of the situation where the child's care is shared between the parents, I find the view of Black LJ in K v K to be helpful in that cases should not become bogged down with arguments as to the label to be attached to the way in which the particular parents had provided for the care of their children:

[145] … The ways in which parents provide for the care of their children are, and should be, infinitely varied. In the best of cases they are flexible and responsive to the needs of the children over time. When a relocation application falls to be determined, all of the facts need to be considered.”

17.  For the purposes of this Judgment I will refer to paragraph 4.7 (1) to (4) as the Payne guidance.

18.  The Court of Appeal in YSYM and LHB [2020] HKCA 586 has recently emphasised the importance of a Court taking into account the wishes of children in cases of this nature:

“71. Rix LJ had this to say in Re R (Residence Order) [2010] 1 FLR 509 at §§57 and 58:

“[57] The importance of listening to a child once he or she has reached the age of 10 … has been stressed in the authorities. Thus in Re L (A Child) (Contact: Domestic Violence) [2001] Fam 260, [2001] 2 WLR 339, [2000] 2 FLR 334 at 271-271, 347 and 340 respectively, Dame Elizabeth Butler-Sloss P sitting in this court cited with approval Contract and Domestic Violence - T–e Experts' Court Report [2000] Fam Law 615 at 624 on the subject of a child’s wishes:

‘… while this needs to be assessed within the whole context of such wishes, the older the child the more seriously they should be viewed and the more insulting and discrediting to the child to have them ignored. As a rough rule we would see these as needing to be taken account of at any age; above 10 we see these as carrying considerable weight with 6-10 as an intermediate stage and at under 6 as often indistinguishable in many ways from the wishes of the main carer (assuming normal development). In domestic violence, where the child has memories of that violence we would see their wishes as warranting much more weight than in situations where no real reason for the child’s resistance appears to exist.’

See also Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, [2006] 3 WLR 989, [2007] 1 FLR 961 per Baroness Hale at para [57]:

‘But there is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else who will have to live with what the court decides.’

[58] I respectfully conclude that the judge has erred in not giving any real effect to the child’s wishes expressed in this case. He has referred to them, accepted them, but thereafter essentially ignored them. He has in effect wholly discounted them. And yet, the child was a mature and thoughtful child close to the age of 10, who expressed his wishes rationally and, in my judgment, with considerable emotional understanding. Moreover, those wishes, in part natural given his love for his mother and his successful upbringing to date – and therefore to be given all the more attention rather than discounted ... I do not understand why these well-evidenced concerns were overborne by a call for greater sophistication: in reality this was little more than a way to reinforce the judge’s conclusion that he would not disturb the boy’s “settled” status.”

The Mother’s prior visit to Canada with C without the Father’s prior knowledge or consent (“the Canadian incident”)

19.  The undertakings at recitals H, G and J of the 2013 Order, state in broad terms as follows:

i)    To notify the other parent if either parent wish to take C temporarily out of Hong Kong for a holiday, and to obtain a written agreement from the other parent (which should not be unreasonably withheld);

ii)   To inform the other parent of the salient details of the travel plan once it is finalised; and

iii)  To return C to Hong Kong at the end of any agreed period or whenever called upon to do so by the Court

20.  In February 2019, the Mother and C flew to Canada to attend Y School’s (the school which the Mother proposes C to attend in Canada) orientation day and school interview without informing the Father in advance.

21.  This incident caused much distress to the Father, and he understandably instructed his solicitors to serve the 2013 Order on the Immigration Department.

22.  In April 2019, the Mother telephoned the Father asking for his consent to take C to Vietnam for a holiday with the Mother’s family.  The Father refused. As I understand it, he feared that the Mother would not return C to Hong Kong. The Mother nonetheless took C to the airport and the Immigration officers then telephoned the Father asking for his consent. The Father again refused to give consent.

23.  C remained in Hong Kong and no doubt all Parties including C were deeply distressed by the incident.

24.  The Father in his submissions and evidence described these two incidents as a breach of trust by the Mother, causing him to have concerns that the Mother will not bring C back to Hong Kong if relocation to Canada is granted.

25.  In her oral evidence it was clear that the Mother was apologetic for the Canadian incident and recognised that her behaviour did not help the relationship between her and the Father.

26.  Taking into account all the circumstances, including the Mother’s access proposals, I do not consider the Mother will fail to bring C back to Hong Kong to facilitate access if required by an order of the Court to do so.

Evidence at Trial

27.  Both Parties gave evidence as did Madam H and Mr L, by video link from Canada.

28.  I found all four witnesses credible who gave their evidence with dignity and integrity.  By reason of their individual stances they were understandably protective and supportive of their respective positions.

29.  In addition to which the Social Welfare Officer (“SWO”) gave evidence which was unequivocal and consistent with her two Reports emphasising the following:

i)    C was clear in her wish to go to Canada

ii)   C was mature for her age and could express her wishes

iii)  C was ‘ready to go’ to Canada

The Mother

30.  The Mother’s proposal in the event that relocation is refused is that she will relocate to Canada to be with Mr L and to parent W and G.

31.  I have no doubt that the Mother has given very careful thought as to her proposal and that she believes it to be in C’s bests interests.

32.  The Mother also recognises and I believe will support and facilitate C’s ongoing relationship with the Father.

33.  The Mother clearly recognises her error in taking C to Canada without the Father’s consent.  Her oral evidence was in broad terms as follows:

“I am sorry for the incident, it was not handled properly I do not deny that”

“Now that it has happened I hope you can accept my apology”

“I know looking back the decision was not good enough I hope the Court understands it was not my intention to disobey a court order and never my intention not to return C to Hong Kong”

The Father

34.  The Father was understandably very distressed when he learnt the Mother had taken C to visit Canada without his consent; as he said in evidence:

“Trust was totally damaged”

“I still believe that if the Court gives an order the Mother will not comply with it”

“Visiting Canada gave C false hope”

35.  The Father and C clearly both have a very close and loving relationship, and therefore a relocation is an emotionally painful prospect.

36.  From the Father’s evidence I understand that:

i)     He is very concerned how his relationship with C be effected in the event the relocation proceeds and that his care of C would be greatly reduced;

ii)    He is not against C having the benefit of an overseas education, including Canada, however, he is of the view that should be in the future and not now;

iii)   He is very concerned as to the financial costs of C’s education in Canada; and

iv)   He is concerned that the Mother did not disclose her potential plan to move C from Y school to B school, in the event it is possible; her children W and G currently attend B school.  He wishes to participate in the choice of C’s schooling rather than to be told after the event

v)    However as he said in his oral evidence:

“I also want her [C’s] wishes to come true”

Mr L

37.  Importantly Mr L confirmed unequivocally that he was able and willing to make up any shortfall requirement in the financial needs of C in Canada including her education and that there was “no limit” to his financial support of the Mother and C in Canada.

Madam H

38.  Madam H was entirely and understandably supportive of the Father’s proposal for C to remain in Hong Kong.

Immigration and flights Hong Kong / Toronto

39.  At the close of trial, the Court directed the Parties to provide information on, inter alia:

i)    the respective term dates of the Canadian school chosen by the Mother and C’s current school in Hong Kong in the 2020-21 academic year;

ii)   the details regarding Canadian visas; and

iii)  the costs and timing of air tickets between Hong Kong and Canada.

40.  The Parties’ solicitors have provided the above by letters to the Court on the 14 and 15 September 2020. I shall refer to the letters as “the Mother’s Letter” and “the Father’s Letter”.

Social Investigation Reports

41.  There are two Social Investigation Reports relevant to the current application dated 21 of November 2019 (the 1^st Report”) and 7 of August 2020. (“the 2^nd Report”) Fortunately the same SWO prepared both reports and therefore was able to observe C’s circumstances from late 2019 to mid 2020.

The 1^st Report

42.  C was described as follows :

“13. [C] is in stable physical health. She is now studying Primary Five in [X School], a privately-run Catholic school. According to the [C]’s academic reports of 2016-2017 and 2017-2018 her overall academic performance was good with average marks of around 85. She is constantly strong in English, religious studies, Putonghua, visual arts and music. The [C]’s conduct was mostly graded between B+ and A. According to Miss LEE, [C]’s class mistress in the past two academic years and current teacher of religious studies, the [C] is gentle, diligent, compliant and has good self-discipline. She respects teachers and relates well with peers. The parents comment that [C] is self-motivated in her schoolwork and will initiate to ask for their assistance when in need.”

43.  The SWO saw C 4 times and reflected C’s views as follows :

“29. [C] was polite, calm, focused and genuine with emotions felt and seen especially when sharing about the parents’ disputes over her and the father’s possible adjustment after separating with her. She appeared sensitive and mature in thoughts which is quite beyond her age. Without requiring much warm-up time, she was very ready to give views and elaborations on every single question asked during the interviews and assessment activities. ……”

“35. [C] shares her explicit wish of studying in Canada. …”

44.  In her Conclusion and Recommendation the SWO stated as follows:

“49. Information from the present investigation indicates that [C]’s views, emotions and needs have not been thoroughly and jointly considered and addressed to by the parents. It includes the [C]’s explicit wish of studying in Canada, her separation anxiety within her beloved father which should not be under-estimated about its long-term psychological impact and requires proper handling, her eagerness for continuous religious support after leaving Hong Kong, her adaptation to and preference of continuous care with the mother’s side when comparing her step families as well as her preferable timing for overseas study. As the parents may also be aware of, [C] has chosen to hide much of her thoughts and feelings from them as she loves both of them and has deep worry of upsetting either one of them. She, though at a young age, has given herself much burden in maintaining the parents’ harmony or at least minimizing their conflicts over her. As such, the parents are advised to respect the [C]’s wish and pace when she is courageous and genuine to express herself this time. Most importantly, the parents are strongly suggested considering the [C]’s voice in deciding her future arrangement.”

The 2^nd Report

45.  In relation to her school C was described as follows :

“.. The class teacher commented that the child was diligent, compliant, respectful to teachers, good with peers and ready to serve others”

46.  The SWO again saw C 4 times and reflected C’s views as follows:

“19.     [C] was seen four times during the present adjournment.  She was seen twice during the respective visits to her parents’ home.  She, being accompanied by the parents separately, was interviewed individually at the Investigating Officer’s office twice.  [C] showed good understanding about the purposes of the interviews.  Similar to the investigation conducted last year, [C] preferred passing her information to the Judge through the Investigating Officer but was ready to see the Judge if being asked to.  [C] described the Investigating Officer’s office as a “safe base” for sharing her thoughts and feelings.  She was calm, focused and was very ready to answer every single question during the interviews.”

“23. Timing of relocation was discussed with [C]. She had thought of leaving until completing her primary schooling but was afraid of upsetting her mother by saying so. Her main reason was for spending some more time with the father. If the application for her relocation was approved at any time, [C] said that she was ready to go with her mother. Yet, she must maintain connection with the father. If she was eventually arranged to reside with the father in Hong Kong, she said that she would force herself to accept it and she will be able to cope with it eventually. If it was the case, she asked for the same indirect and direct access arrangement with the mother as that with the father. While awaiting the Court disposal, she felt quite unsettled and hoped for an earlier conclusion on the matter. If she could, she wanted to tear herself into two for her beloved parents. She shared some stress when facing her parents’ divergent views about the present application. When the parents initiated to discuss the topic with her on and off, she felt her rapid heartbeat and fear. She would try to escape from or end the conversations as soon as possible. If given a wish, she said that she wanted to go to another world and have a little rest.”

47.  In her Conclusion and Recommendations the SWO identified two issues:

i)   the financial arrangements in Canada

ii)  the visa arrangements for C in Canada

and then stated

“Having said that, while the child has expressed and experienced stress in the past year owing to the unsettled dispute over her relocation and her urge for an early conclusion, if the said two issues are ascertained, the child’s relocation plan which is in her best interest is supported”

International Social Welfare Report

48.  An International Social Welfare report was prepared by the Children’s Lawyer of Ontario. This report assessed inter alia C’s schooling in Canada, Mr L’s family (including C’s half-siblings) and living conditions, and concluded they were satisfactory.  

49.  Neither Party has raised any substantive objection to the conclusion of this Report.

Consideration of the Payne Guidance

Is the Mother’s proposal genuine and realistic?

Accommodation

50.  The Mother’s Partner Mr L (who is a Canadian citizen) and two younger children reside in Canada. Mr L has confirmed that the Mother and C will be living with him in his property, which has been assessed in the International Social Welfare Report as satisfactory.

51.  The Mother therefore has an established home and accommodation to which she and C can move.

Finance

52.  In the context of Mr L’s unequivocal financial support the financial arrangements are realistic. It is not disputed that Mr L is able and willing to provide such financial support. 

Education

53.  The Mother has also made arrangement for C’s schooling at Y school, with a view to moving C to B school which her younger children attend. Y School is near where C will be living in Canada. I accept that Y School is capable of satisfying C’s educational needs. The choice of Y School was not challenged by the Father, save for his concerns as to tuition fee which I will deal with later in financial arrangements.

54.  If C is to move to B School in the future, the Mother has stated in her submission that she will consult the Father before doing so as they have joint custody of C.

C’s interest in religion

55.  The Mother has confirmed in evidence and in her Open Proposal that she will facilitate C’s attendance of church activities in Toronto. I am satisfied the Mother’s confirmation is genuine, and have been informed by the Mother in evidence that there are churches close to where C will be living in Canada. 

The Mother’s immigration arrangements for C

56.  If relocation is granted, the Mother plans for C to apply for a study permit from the Canadian authorities. Since an application for a study permit currently takes 5 weeks to process, the Mother plans to take C to Canada as a visitor using C’s Hong Kong SAR passport first, and then apply for the study permit.

57.  The Mother has already obtained an electronic travel authorisation (“eTA”) for C, allowing C to enter Canada visa-free for a period of up to 6 months.

58.  From the information provided in the Mother’s Letter, it would appear that the Mother’s plan to apply for the study permit in Canada for C may require adjustment. The extracts of the Canadian Government website (annexed to the Mother’s Letter) indicate that an applicant for a study permit is generally required to apply before entering Canada. The study permit is only issued when the applicant arrives into Canada at the border.

59.  As I anticipate the immigration arrangements can be resolved, I am satisfied that the Mother’s immigration plans for C are workable.

The Mother’s immigration arrangements for herself

60.  In her oral testimony the Mother planned to apply for a “Super Visa” to stay in Canada. In the Mother’s Letter, the Mother now plans to accompany C to Canada as a visitor using her Hong Kong SAR passport. With that objective, she has obtained an eTA for herself, which will allow her to remain in Canada for 6 months at a time, until the eTA or the Mother’s passport expires (which I understand is not until September 2025). At the end of each 6-month period, the Mother could leave Canada and re-enter on the same day and stay for another period of 6 months.

61.  Once she has arrived in Canada, she plans to apply for permanent residency on the basis of family sponsorship, with C listed as her dependent child. Since the application will take at least 12 months to process, the Mother will use her eTA to remain in Canada.

62.  Again, I am satisfied the Mother’s visa arrangements are workable.

Mother’s relationship with Mr L

63.  The Father has raised his concern that the Mother and Mr L are as yet unmarried.

64.  The Mother in reply submits that the Father is wrong to equate marriage with financial advantage and security.

65.  The Mother’s relationship with Mr L has been ongoing for at least the past 7 years and they have two children (W and G). There is no evidence to suggest that their relationship is not (or will not remain) a stable one.

66.  In addition, the Mother has submitted that she is likely to be recognised under Canadian law as Mr L’s common law spouse, which would give her certain financial entitlements. Mr L has also stated that the Mother has access to his financial resources if he becomes ill or dies.

67.  Therefore, I do not consider the fact that the Mother and Mr L are unmarried as a negative factor in C’s relocation to Canada.

68.  I therefore find the Mother’s proposal genuine and realistic.

Is the Father’s opposition genuine?  What is the extent of the detriment to him if leave is granted and how far may this be offset by the child’s relationship with the maternal family and homeland?

69.  Without doubt the Father’s opposition is genuine.

70.  He has a very close and loving relationship with C and vice versa.

71.  Relocation is by its definition and execution detrimental to the non- relocating parent. However, if leave is granted for C to relocate to Canada, I am confident that with the arrangements which I intend to order:

i)    The Mother will facilitate regular contact between the Father and C via remote communication (video, zoom, whatsapp and telephone) I note the 2^nd Report specifically records C’s plan to wake early to speak to her Father taking into account the time differences.

ii)   The Father and C’s relationship in strong and will continue to develop and will be able to sustain the separation which will undoubtedly be caused by the relocation

iii)  The Father and C will have staying access at least 3 times per year for a sustained period of time.

72.  C will be with her Mother’s younger children in Canada, I accept she will see her Father’s younger children less but with current social media I am confident that C will be able to stay in contact with G and O, and she will be seeing them when she visits Hong Kong.

Impact on the Mother of a refusal of her proposal

73.  It is the Mother’s case that she will move to Canada even if the relocation is refused. The Mother’s two younger children are living with Mr L in Canada and have been for sometime.

74.  The Father has recognised in his Closing Submissions that there is “No question that the Mother, being the primary carer during the weekdays and part of the weekend, maintains a good relationship with [C].” I am satisfied there would be a negative impact on the Mother if relocation is refused, as she would be separated from C to whom she was a primary carer.

75.  While the Father has submitted that it is open for Mr L and his family to relocate to Hong Kong, I do not consider it practical or realistic to expect Mr L to do so. Mr L has stated unequivocally that he wishes to stay in Canada with his family.

Consideration of (2) and (3) of the Payne’s guidance in the overriding review of the Child’s Welfare as the paramount consideration

76.  For the reasons I have set out above in step 1 of the Payne analysis, I am satisfied that the Mother’s plan to relocate C to Canada is genuine and realistic.

77.  On balancing steps 2 and 3 of the Payne analysis, namely the detriment to the Father and the Mother respectively if relocation is granted or refused, I am of the view that the detriment is finely balanced between the parties. Both parties have put forward generous proposals for access, which will allow the other party to spend plenty of time with C in either outcome.

78.  The determining factor in balancing the respective proposals of the parents is the unequivocal recommendation of the SWO reflecting C’s “voice” that she wishes and is ready to relocate to Canada with her Mother. The SWO has clearly found C to be of such maturity and intelligence that her views should be taken into account by the Court with importance attached.

79.  I am confident C has arrived at this difficult conclusion because she is confident that she and her Father will maintain a close loving and developing relationship.

80.  Therefore, I am satisfied that it is in C’s best interests to permanently relocate to Canada.

Conclusion on relocation

81.  In all the circumstances, I grant the Mother’s application to permanently relocate C to Canada with the conditions and arrangements set out below.

When should the C relocate?

82.  The Mother’s proposal is to relocate the Child as soon as this Judgment is handed down.

83.  I have considered the school calendars of C’s current school in Hong Kong (X School) and Y School in Canada chosen by the Mother a summary of which is at Annex C. It is my conclusion that it is in the best interests of C to relocate not earlier than 28 December 2020 for the following reasons:

i)    C may be required to remain in Hong Kong by the Canadian authorities while her application for study permit is processed;

ii)   C is currently well into the term of her current school;

iii)  There are no suitable holidays between now and late December to ease C into her new life in Canada;

iv)  It would be significantly disruptive to C to relocate mid-term which would require her to change school mid-term;

v)   If relocation takes place in late December, which is when both schools start their winter holidays, C would have an opportunity to have a proper farewell with her friends in Hong Kong and the Father’s family, as well as giving her time to relocate and adjust to life in Canada.

The Father’s access

84.  The Father is to have access to C which will include the following:

i)    Daily indirect contact;

ii)   2 visits to Hong Kong per annum paid for by the Mother, which could take place in any two of the three major holidays of C in Y School, namely the Winter Break, March Break, and Summer Holiday; and

iii)  An additional visit either in Canada or Hong Kong financed by the Father (“the additional visit”).

Prices of air tickets to and from Hong Kong and Toronto

85.  Both Parties have put forward their respective estimates of costs for air tickets to and from Toronto and Hong Kong. It is common ground that only two airlines fly direct between the two cities – Air Canada and Cathay Pacific.

86.  In broad terms, the price of a round trip to and from Toronto and Hong Kong are as follow:

i)    Cathay Pacific – from HK$10,573 (peak season) to HK$5,676 (low season);

ii)   Air Canada – from HK$10,487 (peak season) to HK$3,880.

Financial arrangements

87.  Much of the cross examination focused on the current financial arrangements for C and the potential future financial arrangements for C in either Hong Kong or Canada.

88.  In broad terms the Father accepted that he was currently spending approximately HK$6,000 per month on C (HK$72,000 per annum).

89.  As the Mother is not working and does not have any income, the remainder of C’s costs are covered by Mr L.

90.  In the event of a relocation there will be substantial costs associated with C’s schooling in the region of C$45,000 (approximately HK$270,000).

91.  The Mother asks that the Father contribute HK$7,800 per month which she considers to be approximately 50% of C’s school fees.

92.  The Father says the most he can afford is between HK$4,000 to HK$5,000 per month and offered HK$4,000 in his oral evidence.

93.  The difference between the Parties is $3,800 per month (HK$45,000 p.a.).

94.  It is the Father’s case that he will have the costs of travel to Canada with his family to see C and accommodation costs in Canada. I accept the costs are uncertain:

i)    the Father may choose to have the additional visit in Hong Kong rather than in Canada

ii)   He may or may not take his family to Canada on the additional visits

95.  Taking a broad brush approach I will accept the Father’s oral evidence that he is able to contribute HK$4,000 per month towards C’s costs in Canada.

96.  The Mother’s case is that the Father should contribute to C’s expenses simply because he’s the father. This is at odds with the 2013 Order in which the Mother is paying periodical payments for C towards the Father.

97.  In any event, periodical payments is always dependent on the respective resources and expenses of the parties.

98.  I am mindful that the Father may incur expenses in transporting C to and from Hong Kong once a year, or for himself (and possibly his younger children G and O) to visit Canada. I consider it is of importance for G and O to have an understanding and experience the environment in which their elder sister lives.

99.  Since the Father has accepted he is willing and able to pay HK$4,000 per month towards C’s maintenance, I will order accordingly.

Costs

100.  I note the Mother, who is legally aided, asks for costs, however given that this is a child related matter I shall make an order nisi that there shall be no order as to costs, such order to be made absolute at the expiration of 14 days, save that the Mother’s own costs will be taxed in accordance with legal aid regulations with Certificate for Counsel.

Orders

101.  Consequently the orders that I shall make are as follows:

UPON the Mother undertaking to the Court and to the Respondent:

(A)  to pay or cause to be paid C’s airfare to Canada in December 2020 and thereafter 2 return airfares per calendar year until C obtains the age of 18 or ceases full time education whichever is the later

(B)   to facilitate daily indirect contact between C and the Father

(C)   to apply within 42 days for a Mirror Order in Canada reflecting the undertakings and terms of this order

It is Ordered that:

1)  Leave be given for the Child of the family namely C, a girl born on the 16 February 2009, to be removed from the jurisdiction of Hong Kong on a permanent basis in order to reside in Canada no earlier than the 28 December 2020.

2)  The Orders dated the 18 June 2013 and 12 July 2015 shall be varied to the extent that the Mother shall be granted the sole care and control of C with reasonable access to the Father to include:

i)    reasonable daily remote access;

ii)   reasonable staying access in Hong Kong, in any event no less than twice per calendar year and for a period of no less than 14 days each time, the flights of which will be financed by the Mother and the precise dates to be agreed between the Parties; and

iii)  additional reasonable staying access in Canada or Hong Kong by agreement between the Parties, in any event no less than once per calendar year and for a period of no less than 14 days, to be financed by the Father and the precise dates to be agreed between the Parties.

3)  The Court order dated the 13 August 2013 be varied to the extent that the Father do pay to the Mother periodical payments for C HK$4,000 per month, to be deposited into an account nominated by the Mother, commencing on 1 January 2021 and thereafter on the 1^st day of each calendar month until C reaches 18 years or ceases full-time education, whichever is later.

4)  Liberty to apply on an urgent basis with respect to the implementation of this order.

5)  There shall be an order nisi to be made absolute at the expiration of 14 days that there shall be no order as to costs save that the Mother’s own costs be taxed in accordance with Legal Aid Regulations with a certificate for Counsel.

Annex  A

LA/MAT/15062/2014 (CG32)

FCMC 9300/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 9300 OF 2012

____________________

____________________

THE MOTHER’S STATEMENT OF PROPOSALS

1.         This is the Petitioner Mother’s Statement of Proposals for the purpose of the relocation trial fixed on 28 August 2020 at 9:30am, 1 September 2020 at 2:30pm and 2-4 September 2020 at 9:30am. The Mother’s Counsel’s written submission has been filed separately on the same day.

Mother’s proposals if M's application for relocation is successful

2.         If the Court rules in favour of M's application, FH will relocate to Canada and M makes the following proposals for the Father’s (“F”) access:-

3.         During weekdays, FH can call F whenever she wishes. F can have video call with FH every day provided that it does not disrupt FH’s daily routine. FH has been given her own mobile phone to contact F freely.

4.         F is at liberty to visit FH in Toronto once a month provided that there should be at least 21 days’ notice to be given to M and the duration of access shall not exceed 14 days each time. If F visits FH during the school term, F shall bring FH to school and to attend any ongoing extra-curricular activities that she is enrolled to, so that FH’s daily schedule is not disrupted.

5.         For school holidays, both F and M shall share all school long holidays equally with the actual dates to be agreed between them in advance. When F has access to FH during his share of the school long holidays, M is happy to arrange FH to return to Hong Kong to visit F twice a year upon F's written request and she is happy to pay for one set of return flight tickets for FH a year.

6.         For special occasions such as Father’s Day, F's birthday and FH’s birthday etc., when F is unable to visit FH in Toronto, M will facilitate F to have telephone/video call access to FH via Skype or Facetime.

7.         If F visits FH in Toronto during the above special occasions, M is happy for F to spend time with FH and paragraph 4 above applies.

8.         M will keep F informed of FH’s school progress and performance such as sending him school reports, school notices/letters and letting the F know what extra-curricular activites FH is enrolled into. M will also send F FH’s photos in Canada from time to time by Whatsapp. M also welcomes F to attend school events with her if possible.

9.         M will arrange FH to attend Church activities in Toronto.

Future Access Proposals if M's applciation for relocation is unsuccessful

10.     If M’s application for relocation is not successful,  FH will be living with F in Hong Kong. M will relocate to Canada with M's long term partner and her two daughters.  Under these circumstances, M makes the folloing proposals:-

11.     During the weekdays and weekends, M can have video call/call with FH daily as long as it does not interrupt with her daily routine. FH can call M whenever she wishes. FH has been given her own mobile phone and therefore she should be able to contact M freely.

12.     M is at liberty to visit FH in Hong Kong once a month provided that there should be at least 21 days’ notice to be given to F and the duration of access shall not exceed 14 days each time. M shall pay for her own return flight tickets. Moreover, if M visits FH during school term, M shall bring FH to school and to attend any ongoing ECA that she is enrolled to, so that FH’s daily schedule is not disrupted.

13.     School long holidays shall be shared between M and F on an equal basis. When M has access to FH during her share of the school long holidays, F shall arrange FH to visit M in Canada twice a year at the M’s written request. M proposes M and F shall respectively pay one set of return flight tickets for FH a year respectively.

14.     For special occasions such as Mother’s Day, M's birthday and FH’s birthday etc, when M is unable to visit FH in Hong Kong, M would like to have access with FH via telephone call/video call.  If M is able to come to Hong Kong during these special occasions, FH shall spend time with M and paragraph 12 shall apply.

15.     F shall keep M informed of FH’s school progress and performance such as sending her school reports, school notices/letters and letting M know what extra-curricular activites FH is enrolled into. F shall also send M FH’s photos in Hong Kong from time to time by Whatsapp.

Dated this 19^th day of August 2020.

HALDANES

Solicitors for the Petitioner Mother

Annex B

FCMC 9300/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 9300 OF 2012

_____________

__________________________

Father’s Open Proposals

__________________________

Father’s proposals if Mother’s application for relocation is SUCCESSFUL

1. If the Court rules in favour of Mother’s (“M”) application, FH will relocate to Canada, Father (“F”) requests the following: -

2.     During weekdays and weekends, FH can call F whenever she wishes. F can have video call (via Skype or Facetime or other electronic means) of at least 30 minutes per day with FH every day provided that it does not disrupt FH’s daily routine such as doing homework or attending extra-curricular activities.

3.     F is at liberty to visit FH in Toronto provided that there should be at least 14 days’ notice to be given to M and the duration of access shall not exceed 14 days each time. If F visits FH during school term, F shall bring FH to school and to attend any ongoing extra-curricular activities that she is enrolled to, so that FH’s daily schedule is not disrupted.

4.     For school holidays, both F and M shall share all school long holidays equally with the actual dates to be agreed between them in advance. When F has access to FH during his share of the school long holidays, M will arrange FH to return to Hong Kong to visit F three times a year upon F’s written request. M shall be responsible for the travelling expenses for bringing FH to Hong Kong and back to Canada.

5.     For special occasions such as Father’s Day, F’s birthday and FH’s birthday etc, when F is unable to visit FH in Toronto, M will facilitate F to have telephone/video call access to FH.

6.     If F visits FH in Toronto during the above special occasions, M will arrange F to spend time with FH.

7.     M will keep F informed of FH’s school progress and performance such as sending him school reports, school notices/letters and letting the F know what extra-curricular activities FH is enrolled into. M will also send F FH’s photos in Canada from time to time by Whatsapp. M also welcomes F to attend school events with her if possible.

8.     M will arrange FH to attend Catholic Church mass every Sunday in Canada.

9.     If FH moves to Canada, M will facilitate video call/call between FH and her friends in Hong Kong and M welcomes them to visit FH in Toronto. M will also facilitate face to face meeting of not less than 2 hours each between FH and her friends MK and SK (children of Mr. KKB and Ms. CC) in Toronto.

Future Access Proposals if Mother’s application for relocation is UNSUCCESSFUL

10.If M’s application for relocation is not successful. FH will be living with F in Hong Kong. M will relocate to Canada with M’s partner and her two daughters. Under these circumstances, Father agrees to:-

11.During the weekdays and weekends, M can have video call/call with FH daily as long as it does not interrupt with her daily routine. FH can call M whenever she wishes.

12.M is at liberty to visit FH in Hong Kong once a month provided that there should be at least 21 days’ notice to be given to F and the duration of access shall not exceed 14 days each time. Moreover, if M visits FH during school term, M shall bring FH to school and to attend any ongoing ECA that she is enrolled to, so that FH’s daily schedule is not disrupted.

13.School long holidays shall be shared between M and F on an equal basis. When M has access to FH during her share of the school long holidays, F shall arrange FH to visit M in Canada twice a year. M shall be responsible for FH’s travelling expenses, between Hong Kong and Canada.

14.For special occasions such as Mother’s Day, M’s birthday and FH’s birthday etc, when M is unable to visit FH in Hong Kong, M would like to have access with FH via telephone call/video call. If M is able to come to Hong Kong during these special occasions, FH shall spend time with M and paragraph 12 shall apply.

15.F shall keep M informed of FH’s school progress and performance such as sending her school reports, school notices/letters and letting M know what extra-curricular activities FH is enrolled into. F shall also send M FH’s photos in Hong Kong from time to time by Whatsapp.

Dated the 19^th day of August 2020

C. Y. Lam & Co.
Solicitors for the Respondent

Annex C

Respective School Calendars of C’s School in Hong Kong and Y School from 1 October 2020

Note: Only school holidays are included in this table. School events such as sports day or examinations have not been included. All dates are inclusive.

Events at X School after January 2021 are omitted.