LCH v. JMC

HCMP 678/2019

[2019] HKCFI 1894

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 678 OF 2019

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J U D G M E N T
(On Forum and Return)

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Introduction

1.  By an originating summons issued on 7 May 2019, the child CJH, who is now 3 years old, was made a ward of this Court and has since remained a ward.

2.  CJH’s father (“Father”) and mother (“Mother”) were not married to each other.  CJH was removed from this jurisdiction to Toronto, Ontario, Canada by the Mother in April 2019 without the consent of the Father. 

3.  Presently before the Court are the Mother’s application for stay of these proceedings and also the Father’s application for forthwith return of CJH to Hong Kong.

4.  Counsel Mr Eugene Yim appeared for the Father and Counsel Ms Sasha Allison appeared for the Mother.

Background

5.  The Father was born and raised in Sydney in Australia and started living in Hong Kong in July 2013 after joining an airline company as a pilot.  His parents and relatives all reside in Australia.  The Father is now 33 years old.

6.  The Mother was born in Hong Kong but emigrated to Toronto when she was about 4 years old.  One of her brothers resides in Hong Kong, but the rest of her family all reside in Canada. The Mother is now 30 years old.

7.  The Mother came to Hong Kong in around March 2014 to explore her career as an actress and model.  The parties met in the summer of 2014 in Hong Kong and they later entered into a romantic relationship.  The Mother moved into the Father’s then apartment in November 2014.  In December 2014, the Mother’s parents purchased an apartment in Hong Kong in the Mother’s name on Hollywood Road (“Hollywood Road Property”).

8.  It would appear that the parties first started to have difficulties in their relationship over allegedly the Father’s drinking problems in January 2015 when the Mother was asked to leave the Father’s apartment although she was asked to return the following day.  

9.  In August 2015, the Mother became pregnant.

10.  Later that year in October 2015, there was an incident when the Father had assaulted the Mother and on 27 October 2015, the Mother returned to Toronto.  The Father was later charged with assault occasioning actual bodily harm and was bound over.  

11.  In late November 2015, the parties made up again and the Mother returned to Hong Kong and in January 2016, the Father proposed to the Mother.  In February 2016, the Mother returned to Canada to prepare for her birth of CJH. 

12.  CJH was born in Canada in April 2016.  On her birth certificate, the Father was named as her father and about 4 weeks after her birth, on 12 May 2016, the Father and the Mother brought her to Hong Kong.  In June 2016, the Father bought a house in the Mother’s name in Pui O, Mui Wo, Lantau Island (“Pui O House”), as their new home.  

13.  The relationship had its ups and downs and eventually in May 2018, the Mother broke off her engagement to the Father.  She started working in June 2018 at a health food restaurant and in about late July/August 2018, she moved out of the Pui O House with CJH to a separate rented apartment in Mui Wo.  

14.  The parties had a flexible arrangement in relation to the Father’s access to CJH when they first separated and essentially whenever the Father was in Hong Kong, he would ask to spend time with CJH.  The Mother said this had caused much disruption to CJH’s and her lives and later she insisted on a scheduled access arrangement with reference to the Father’s flight roster[1] (“Scheduled Arrangement”).  The Mother said according to her records of the Scheduled Arrangement, the number of nights CJH slept over at the Father’s place was 11 in December 2018, 6 in January 2019 and 9 in February 2019.  In March 2019, as the Father was on sick leave for the entire month due to a punctured eardrum, he had more leisure time to spend with CJH.  

15.  The Father said the Mother’s records only reflected where CJH was sleeping overnight and did not reflect the time he spent with CJH during the day.  The Father also claimed that he did not agree to some of the arrangements as they did not allow him enough overnights with CJH.  He then produced some 70 pages of his own records of his flight roster and time spent with CJH.

16.  Anyway, there were no complaints at the time by the Father, nor did he take the matter to the Court.  Even though there was the Scheduled Arrangement, the parties were clearly not able to reach agreement over the financial provision for CJH.  The Mother said the Father knew she was in a dire financial situation but he did not provide any financial support, nor allow her and CJH to relocate to Canada[2].

17.  On 22 January 2019, while the Mother’s parents were in Hong Kong, they had a meeting with the Mother and the Father to try and help the parties to resolve the financial matters (“Joint Meeting”). The Joint Meeting was recorded by the Mother in the presence of the Father.  A transcript of the recording was produced by the Father in his 3^rd affidavit (“Transcript”)[3].  It was the Mother’s case that during the discussion she had told the Father no less than 8 times that it was not financially viable for her and CJH to remain in Hong Kong and that she would have to return to Toronto with CJH but the Father’s response to her plea to relocate to Canada was that he would not agree and threatened to take legal action.

18.  On 5 March 2019, the Mother sent the Father WhatsApp messages that she would be going to Hawaii with CJH “after 26 March” to visit her friend and when the Father asked whether she was going to be away for CJH’s birthday, the Mother’s response was “only going for a week” [4]. 

19.  In the Mother’s 1^st affirmation, she had produced a copy of her original itinerary with CJH as of 3 April 2019[5].  It would appear that she and CJH were scheduled to leave Hong Kong on 4 April 2019 for Honolulu via Tokyo and they were to leave Honolulu on 11 April 2019 arriving back in Hong Kong on 13 April 2019 12:25.

20.  On 11 April 2019, the Father sent a WhatsApp message and asked when they would be home and the Mother responded “we leave Friday afternoon”.  This would be 12 April 2019 and the Father said he guessed that meant they would be back on Sunday afternoon, to which the Mother responded “I think so”.  Sunday was 14 April 2019 and CJH’s 3^rd birthday was on 15 April.  

21.  On Saturday 13 April 2019 the Father sent a WhatsApp asking the Mother whether they were flying.  Then at 21:05 on 13 April 2019, the Mother responded by informing the Father that she and CJH had just landed in Toronto with CJH and that she intended to live there so that her family could support them as per her lawyers advice since she could not afford to live in Hong Kong financially and mentally[6].

22.  According to what the Mother said in her 1^st affirmation, she booked tickets to fly to Toronto together with CJH from Hawaii[7].

23.  The trip to Hawaii was consensual.  However, there was no agreement for the Mother to take CJH to Toronto to live there. Since 13 April 2019, the Mother has retained CJH in Toronto unilaterally without the Father’s consent.

24.  The Father flew to Toronto on 19 April 2019. The Father did have access to CJH while he was there but he said most of the times, the Mother was present.  The Father stayed in Toronto until 26 April 2019.

25.  Whilst the Father was in Toronto, he contacted a Canadian lawyer and issued an application under the Hague Convention on the Civil Aspects of International Child Abduction (“Convention”) on 25 April 2016 (“Hague Application”).  On the same day, by an ex parte order, the Mother was restrained from removing CJH from the City of Toronto pending the hearing of the Father’s Hague Application and the Mother was ordered to deliver up her passport and CJH’s passport and CJH’s birth certificates and all other travel identification documents to the Father’s lawyers.  The return date of the ex parte order was 7 May 2019 when the ex parte order was varied and, amongst other things, CHJ’s travel documents were to be held by the Mother’s lawyers, and the substantive hearing of the Hague Application was set down for 13 June 2019.

26.  Thereafter, the Father said he received advice that he was not exercising “rights of custody” under Article 3 of the Convention at the time of that Hague Application.  He then issued the originating summons in the present proceedings in Hong Kong on 7 May 2019 making CJH a ward and seeking various orders including an order pursuant to section 3 (1)(d) of the Guardianship of Minors Ordinance (GMO)  that he has all the rights and authority that the law will allow him as a father if CJH were legitimate (“Section 3(1)(d) Order”) , an order under GMO for joint custody and shared care and control of CJH (“Custody/Care Order”), and an order under the Court’s inherent jurisdiction for forthwith return of CJH to Hong Kong (“Return Order”).  Ex parte leave was granted to the Father on 16 May 2019 for the originating summons to be served on the Mother out of jurisdiction.

27.  The Father was also advised to issue an application under the Ontario Children’s Law Reform Act on 22 May 2019 (“CLRA Application”) seeking various orders including (i) a declaratory order that CJH was wrongfully removed from her place of habitual residence of Hong Kong, (ii) an order for forthwith return of CJH to her place of habitual residence, (iii) a declaratory order that the Ontario Superior Court of Justice has no jurisdiction to determine the custody and/or access issues pertaining to the child or in the alternative a declaratory order that the Superior Court decline jurisdiction in favour of the forum conveniens, namely Hong Kong,  (iv) an order staying any claim for custody and/or access in Canada.

28.  The Father’s CLRA Application was also fixed for hearing on 13 June 2019.  In light of the advice he received, the Father decided not to proceed with his Hague Application and he applied for an adjournment of his CLRA Application pending the Hong Kong Court’s determination of his application for the Section 3(1)(d) Order.  The adjournment was granted by Justice E L Nakonechny who was of the view that it was relevant for the Ontario Court to know what position the Hong Kong Court would take regarding CJH and the Father’s rights to CJH[8].

29.  On 24 June 2019, with no opposition from the Mother, this Court granted the Section 3(1)(d) Order to the Father.  The Mother’s then Counsel indicated at the hearing that the Mother intended to issue a summons for stay of the Hong Kong proceedings on the ground that Hong Kong is forum non conveniens (“Stay Application”).  The Court then directed the Mother’s Stay Application and the Father’s application for the Return Order (“Return Application”) be fixed on for substantive arguments on 22 July 2019.

CJH’s habitual residence

30.  As CJH’s habitual residence will have an impact on the granting of the Stay Application or the Return Application, I will consider this issue first.

The legal principles on habitual residence

31.  In LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798, the Hong Kong Court of Appeal had summarised and restated the principles on habitual residence in the context of the Convention from English authorities[9]:

“(1) Habitual residence is a question of fact which should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce (In re L (A child) paragraph 20);

(2) The factual question is: has the residence of a particular person in a particular place acquired the necessary degree of stability (permanent is the word used in the English versions of the two CJEU judgments) to become habitual? It is not a matter of intention: one does not acquire a habitual residence merely by intending to do so; nor does one fail to acquire one merely by not intending to do so (In re LC (Children) paragraph 59);

(3) The concept corresponds to the place which reflects some degree of integration by the child in a social and family environment (In re L (A child) paragraph 20);

(4) The question is the quality of the child’s residence, in which all sorts of factors may be relevant. Some of these are objective: how long is he there, what are his living conditions while there, is he at school or at work, and so on? But subjective factors are also relevant: what is the reason for his being there, and what is his perception about being there? (In re LC (Children) paragraph 60);

(5) There is no legal rule, akin to that in the law of domicile, that a child automatically takes the habitual residence of his parents (In re L (A child) paragraph 21); and

(6) Although a child could lose his habitual residence without a parent’s consent, nevertheless, it is clear that parental intent does play a part in establishing or changing the habitual residence of a child: not parental intent in relation to habitual residence as a legal concept, but parental intent in relation to the reasons for a child’s leaving one country and going to stay in another. This will have to be factored in, along with all the other relevant factors, in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of habitual residence (In re L (A child) paragraph 23).”

32.  Cheung JA has in his judgment in the above case referred to two UK cases as being illustrative, namely the In re L ( A child) case and AR v RN [2015] UKSC 35[10].  Suffice to say, the circumstances in those cases and also in LCYP v JEK were different from the present case.

33.  More recently, it was held by Lok J in ME and CYM [2017] 4 HKLRD 739 that the social and family environment of a child was the main consideration in determining the question of habitual residence and in the case of a very young child where the mother was usually the main caregiver, the court should assess the mother’s integration in her social and family environment, such as the reason for the move and her geographic and family origins. 

34.  Briefly in ME and CYM, the child concerned was 11 months old, and after her birth, the family was living in Hong Kong but when she was 3 months old, the family left for London where they stayed for some 6 months.  There was a dispute as to why the parties left for London, the mother said it was a holiday and for the father to look for jobs there but the father said it was with a view to stay for good.  The evidence indicated that they had bought return tickets back to Hong Kong and they had not terminated the tenancy of their flat in Hong Kong.  It was held in that case that the child’s habitual residence was still Hong Kong.

35.  What is clear is that each case depends on its own facts.  

CJH’s habitual residence prior to 13 April 2019

36.  As said earlier, the Mother was born in Hong Kong.  She has the right of abode in Hong Kong.  The Mother claims in her 1^st affirmation that notwithstanding coming to Hong Kong 5 years ago in 2014, she still considers Canada as her home and that she maintains close ties there.   However, this does not alter the fact that by 13 April 2019, she had been residing in Hong Kong for 5 years and was the registered owner of two properties in Hong Kong, and having considered all the evidence, in my view, her habitual residence as at 13 April 2019 was clearly Hong Kong.

37.  The Father has been residing in Hong Kong since July 2013.  He does not have a right of abode here.  In any event, there is no dispute that he was habitually resident in Hong Kong as at 13 April 2019 and still is.

38.  CJH was born in Toronto and holds a Canadian passport and is a Canadian national by birth.  She does not have the right of abode in Hong Kong, but was brought to Hong Kong 4 weeks after her birth. CJH was living in Hong Kong for almost 3 years until 13 April 2019.

39.  It is not now disputed by the Mother that the habitual residence of CJH was Hong Kong prior to 13 April 2019.  

40.  In any event, Hong Kong was the place where both parties had jointly decided where CJH should live at the time when CJH was brought here.  The parties were going to get married and they had chosen to buy a house, which was not inexpensive, in a less built up part of Hong Kong and not far from a beach as their family home.  Their decision to buy rather than to rent would in my view indicate a joint intention for the family to settle and live in Hong Kong for at least the foreseeable future until their joint decision to move. 

41.  The Father and the Mother had also enrolled CJH in pre-kindergarten for 3 days a week at a kindergarten in Mui Wo before their separation and after their separation, they enrolled CJH in that school for 5 days a week from 9 am to 12 pm.  Again, the evidence indicated that these were joint decisions.  According to the Father, CJH had been doing well at the kindergarten and had made many friends.  She loved her school and friends, especially her teacher Ms Sarah.  CJH often went on excursions with her school and participated in her school’s plays and she had been enrolled in K1 Class at the same kindergarten for the academic year of 2019/2020 commencing September 2019.

42.  On the evidence, CJH had settled well into a routine at the school and was well bonded with her classmates.  The Father had produced an email from the Vice-Principal of the kindergarten addressed to both the Mother and the Father dated 8 April 2019 noting CJH’s sudden absence from school and inquiring as to whether CJH was ill.  It was clear the Mother never informed the school of CHJ’s move.  

43.  Even though the Mother said that she had discussions with the Father regarding relocating to Canada, she had said that the Father demanded that she remain in Hong Kong.  She had also said that when this was raised during the Joint Meeting, the Father’s response was that he would file an injunction immediately.  Thus, on her own evidence, the Mother knew full well that the Father would not agree to her relocating to Canada with CJH, and even though the Mother was in law the sole custodian, she should have made a proper application to the Court for relocation instead of taking the matter into her own hands.  

44.  In fact, even though the Mother was/is in law the sole custodian of CJH, and that the Father did not formally obtain the Section 3(1)(d) Order until 24 June 2019, there was nothing to indicate that the Mother had ever objected to the Father exercising his rights de facto as a father, for which the Mother should be given credit for.  As said earlier, the Father’s name was registered as the father of CJH on his birth certificate and the Father was in Toronto with the Mother and CJH during her 4 weeks there.  The Father’s case was that he had jointly cared for CJH when he was not flying. 

45.  The Mother said she was a “stay-home mother” and that she had breast fed CJH until CJH was about 30 months old and that she had taken care of CJH’s daily needs with the help of her own mother who had visited them for about 4-5 months each year.  It was the Mother’s case that the Father was routinely away for at least half the time each month and that when he was in Hong Kong he preferred to stay in the city and drink and eat with his friends, and that he provided minimal care to CJH. This was denied by the Father.  These would be matters for the Court to consider in relation to the Father’s application for the Custody/Care Order.

46.  In any event, the Mother started working full time in June 2018.  On the Mother’s own case, even though the financial arrangements had not yet been agreed, there was the Scheduled Arrangement pursuant to which she had agreed to the Father to have regular overnight access in addition to daytime access to CJHand that in March 2019, while he was on sick leave, CJH was spending a lot of time with the Father in the Pui O House, although the Mother had also said that the Father had to rely on the helper in his care of CJH.  It would appear that in particular after the Mother started working, the helper was helping both of them in caring for CJH.

47.  Having considered all the evidence, CJH’s home and habitual residence was clearly Hong Kong prior to 13 April 2019.

CJH’s habitual residence as at 7 May 2019

48.  Notwithstanding the Mother saying she had raised the matter of relocating during the Joint Meeting, on her own evidence, her decision to fly to Toronto from Hawaii was a sudden one and that it was made only while she and CJH were in Hawaii[11]. What she had said in her 1^st affirmation was that she noticed that CJH was apparently happier and her emotions stabilized during their trip to Hawaii and the Mother realized how much impact her absence as a full time mother had had on CJH and that CJH needed the Mother by her side to thrive. According to the Mother, “That was the point when [the Mother] decided that [she] no longer desired to be trapped in Hong Kong”.  It was in those circumstances that the Mother booked tickets to return to Toronto together with CJH from Hawaii[12].

49.  It would have been natural for CJH to be happy in Hawaii when she was having a holiday with her mother.  As seen above, the reason for the Mother’s sudden decision to fly to Toronto instead of Hong Kong was so that she could be a full time mother to CJH.

50.  In light of her own evidence and her WhatsApp message, I am of the view that the Mother did take CJH to Canada surreptitiously, in that she knew full well that had the Father known or was alerted he would have taken steps to restrain her from doing so including restraining CJH from going to Hawaii. 

51.  Mr Yim had referred this Court to the UK Supreme Court decision in Re B (A Child) [2016] AC 606 and also the Hong Kong Court of Appeal decision in L v L [2017] 5 HKLRD 429 for his submissions that a surreptitious removal by one parent cannot change the habitual residence of a child.  Re B is a case in which the mother of a 6 year old child took her to Pakistan surreptitiously without the knowledge and consent of her same sex partner.  It was held by the majority of the US Supreme Court in that case that :

“in adult disputes about children, the presence of children in a particular state on a particular day is an unsatisfactory foundation of jurisdiction because by moving them from one state to another, one of the adults can so easily invoke a favourable jurisdiction or pre-empt invocation of an unfavourable one; that because of the modern international primacy of the concept of a child’s habitual residence it was important that where possible a child should have a habitual residence …… the expectation was that only when a child gained a new habitual residence would he lose the old one and so it was highly unlikely, albeit conceivable, that he would be without a habitual residence; that the judge had asked herself far too narrow a question in considering whether the child’s wish to remain in touch with the applicant was enough to sustain a continuation of her habitual residence in England on the day she arrived in Pakistan, whereas she ought to have considered whether the child had by then achieved the requisite degree of disengagement from her English environment, highly relevant to which would be whether she had by then achieved the requisite degree of integration in the environment of Pakistan; that all the circumstances relating to the child’s removal to Pakistan, including the facts that she had lived in England all her life and had never been to Pakistan before, that her figure in her life and with whom she had retained significant emotional links, had been left behind in England, cumulatively led to the compelling conclusion that the child’s habitual residence had still been in England when the application had been issued; and that, accordingly, there was jurisdiction to entertain the application which would proceed to substantive determination by a judge who should consider whether the child should be made a party and act through a children’s guardian.” (emphasis added)

52.  In L v L, which concerned a child who had been habitually residing in Hong Kong prior to his removal by his mother unilaterally, the Court of Appeal had referred to the above case and had this to say:

“51. …… For the reasons given by Lord Wilson in Re B (A Child)at [27] – [30] we agree that habitual residence is the more appropriate guide than mere physical presence or absence for determining whether the court should exercise jurisdiction in cases involving children. ……

52. ……

53. According to the legal principles adumbrated by Lord Wilson in Re B (A Child), the surreptitious removal of the Child from Hong Kong to the Mainland on 18 February 2015 cannot change the habitual residence of the Child.” (emphasis added)

53.  In light of the above decision, I accept Mr Yim’s submissions that a surreptitious removal cannot change the habitual residence of a child.

54.  After arriving in Toronto, the Mother and CJH have been staying in the Mother’s parents’ house.  Even though this was the Mother’s own childhood home and where the parties had stayed with CJH for 4 weeks after CJH’s birth, it was not CJH’s home.  As I understand, CJH had not been back to Toronto during the period of almost 3 years after she was brought to Hong Kong.

55.  On one hand, the Mother said CJH had adjusted almost immediately to life in Toronto but on the other hand, she had also said when the Father visited her between 19 – 26 April 2019, CJH was at that time still suffering from jet lag and was still adjusting.

56.  The Mother said CJH had adjusted to life in Toronto primarily because CJH was bonded to the Mother.  No doubt CJH was also familiar and comfortable with the Mother’s parents who had spent several months a year visiting them in Hong Kong.  But this would not be sufficient to say that upon arrival, CJH’s habitual residence had immediately changed to that of Toronto.

57.  In an email from the Mother to the Father of 20 May 2019 setting out an update on CJH between 13 – 19 May 2019[13], which was sent pursuant to the order of Justice Horkins of 7 May 2019[14], the Mother had said CJH was integrating into Canadian life and that the Mother took her to look at a couple of day care centre so that CJH could meet some friends and they were all waitlisted.  It was clear from what the Mother said, CJH was at that time still in the process of integrating and had not made any friends of her own age.   There was nothing in that email to indicate that CJH had already integrated or settled in Canada by then or that she was disengaged from her Hong Kong environment.  She had only been in Toronto for a month since 13 April 2019. 

58.  I am therefore not satisfied that by 7 May 2019 (the date of the issue of the originating summons herein), CJH’s habitual residence had changed to Canada and in my view, her habitual residence at that time was still Hong Kong and that upon the issue of the originating summons, CJH has become a ward of this Court and this Court has jurisdiction over CJH by reason of her habitual residence at the time of the issue of these proceedings.

59.  In any event, the Mother now no longer disputes that the Hong Kong Court has jurisdiction to entertain applications over CJH under GMO and under inherent jurisdiction even though the Mother’s case is by now CJH’s habitual residence is Canada. 

Whether CJH is by now habitually resident in Canada

60.  By now, CJH has been physically in Toronto for some 3½ months and the Mother has mentioned a routine of grocery shopping for healthy food, exploring the city and cooking together.

61.  It is the Mother’s evidence that CJH has now been enrolled in a Child Care Centre where she goes for 4 – 5 hours a day and on 3 – 4 days a week and CJH is taking also attending a gymnastics class every Tuesday and is on waiting lists for ballet.  The Mother has also enrolled CJH in a school for September 2019 and says she is now sourcing other extra-curricular activities for CJH, such as Mandarin and French classes; skating, swimming and music classes.  All this seemed to indicate that she decided to more back to Toronto because as she said she did not want to be “trapped” in Hong Kong.

62.  It appears that notwithstanding the Mother saying that she wants to be a full time mother, what she seems to be doing is to fill CJH’s day with different extra-curricular activities and classes and she herself is now attending a hormone health course and that she wants to practise as a holistic health coach and she is also looking into attending a degree course in naturopathy which she says is not available in Hong Kong.  At the time when she moved to Hong Kong 5 years ago, she was exploring acting and modelling opportunities, and now she seems to be wanting to embark on something new.

63.  The question is has CJH by now achieved the requisite degree of disengagement from her Hong Kong environment?  Or has CJH now acquired the necessary degree of stability or requisite degree of integration in the environment of Toronto?

64.  The Mother says her parents’ house in North York in Toronto was her childhood home.  She had said she remained in Toronto with her family until she left for Hong Kong.  It was not really disputed that the Mother’s social and family environment was Toronto up to the time she moved to Hong Kong.  

65.  After the parties started dating, they had gone travelling in Toronto in November 2014.  After the assault incident in October 2015, the Mother had initially stayed at her elder brother’s apartment in Hong Kong for emotional support and that 3 days later on 27 October 2015 she flew to Toronto and stayed there for about a month before reconciling with the Father and returning to Hong Kong.  Toronto was also the place where the parties agreed the Mother should give birth as her parents were there to help.

66.  On the evidence, although the Mother moved to Hong Kong in 2014, it would appear that as she had said, she had considered Toronto to be her home.  However, as I have said earlier, it was not CJH’s home, although no doubt the Mother’s parents were familiar to her as they had come to Hong Kong regularly and had helped in looking after her. 

67.  So far, apart from the Child Care Centre and the gymnastics class, CJH has not yet started the other extra-curricular activities the Mother had planned for her.  From the photos, it would appear that CJH has at least one playmate but not sure who that girl was in Toronto or whether.

68.  The Mother also claimed that CJH had had emotional outburst in Hong Kong because she had witnessed the Father’s abuse towards the Mother.  This was denied by the Father.  The Mother said she had taken CJH to see a clinical psychologist on two occasions in Hong Kong and that since arriving at Toronto, she has been taking CJH to see a psychotherapist specialising in the psychological assessment and treatment of children and the Mother claimed that CJH started to have better control over her emotions.  There was no report placed before this Court. 

69.  As mentioned earlier, the Father arrived in Toronto on 19 April 2019 and he had seen CJH between 19 and 26 April 2019.  The Father was then in Toronto between 5- 8 May 2019 and also later from 11-14 June 2019[15]. It seems that although the Father has had day access, CJH has not been able to stay overnight with him as in Hong Kong.  By contrast, for the month before CJH was taken to Hawaii, even on the Mother’s evidence, CJH was spending a lot of time with the Father, including overnight access.

70.  Anyway, in the 3½ months since the Mother and CJH arrived in Toronto, the Father and the Mother have been embroiled in litigation in two jurisdictions and there is uncertainty as to whether the Mother and CJH would have to return to Hong Kong and this in my view would not have a settling effect on the Mother, or CJH. 

71.  The Mother says CJH has her own room in the Mother’s parents’ house although CJH prefers sleeping with the Mother, and that there are lots of space in the house for CJH’s books, clothes, toys and there is a large backyard.  The Mother has produced 12 photographs of her parents’ house, including two photographs, each of a bedroom.  It is not clear which of those is supposed to be CJH’s bedroom.  There were no books or clothes or toys of CJH which can be seen in either of the bedrooms.   Neither of the bedrooms in the photographs has any kids’ furniture or can be described as a child’s bedroom.  There is one photograph of what is called a “Kids Room”.  In the middle of that room, there is a large table tennis table which is no doubt for older children or adults.  No toys or books of CJH can be seen.

72.  By contrast, the photographs of the Pui O House, also produced by the Mother, showed CJH’s toys in the lounge room with what appeared to be kids’ furniture and a kid’s toy kitchenette where CJH was seen playing with her friend.  There was also a kid’s table in the kitchen.

73.  Having considered all the evidence, notwithstanding what the Mother has said, I do not find there is sufficient evidence of CJH having fully integrated or settled into her new living environment or that Toronto has now become her home or her habitual residence.

74.  In my view, CJH’s habitual residence remains to be in Hong Kong and/or Hong Kong remains CJH’s “home country”, a term used by Baroness Hale in In re J (a child) (custody rights: jurisdiction) [2005] UKHL 40.

The Stay Application

Whether the Mother is deemed to have submitted to the jurisdiction of the Hong Kong Court

75.  It was argued on behalf of the Father that the Mother should be treated as having submitted to the jurisdiction of the Hong Kong under Order 12 rule 8 of the Rules of the High Court (RHC).

76.  The Mother was served in Canada on 22 May 2019. On 5 June 2019, she filed an acknowledgment of service in Hong Kong, indicating her intention to contest the proceedings.  On 6 June 2019, the Mother attended the hearing represented by solicitors and counsel.  The Mother’s then Counsel Mr Egerton informed the Court that there would be a substantive hearing on 13 June 2910 in Ontario and sought an adjournment.  The Court indicated that other than the application for the Section 3 (1)(d) Order, the rest of the Father’s applications would be adjourned.  As there was no consent from the Mother forthcoming to the Section 3 (1)(d) Order, that application was fixed for a substantive hearing on 24 June 2019 and directions for the filing of affirmations were given after exchanges with Mr Egerton and the Father’s then Counsel Mrs Irving. 

77.  There was no indication by Mr Egerton that the Mother was going to raise any forum or jurisdictional dispute.  No affirmation was filed by the Mother eventually in relation to the Father’s application for the Section 3 (1)(d) Order which as mentioned earlier was granted on 24 June 2019. 

78.  At the hearing of 24 June 2019, Mr Egerton had submitted that the Mother’s position was that the appropriate Court to deal with the Father’s application was that of Canada and that without prejudice to the issue of jurisdiction and/or forum, the Mother did not object to a Section 3 (1)(d) Order.  It was only when Mrs Irving, then Counsel for the Father, pointed out that there was no application for stay that Mr Egerton took instructions and the Mother gave an undertaking through her Counsel to file summons for stay that day before 4:30 pm.

79.  It was stated specifically in the margin of the summons for the Mother’s Stay Application that the summons was issued under Order 12 rule 8 of RHC.  

80.  Order 12 rule 8(2) of RHC provides as follows:

“(2) A defendant who wishes to argue that the Court should not exercise its jurisdiction in the proceedings on one or more of the grounds specified in paragraph (2A) or on any other ground shall also give notice of intention to defend the proceedings and shall, within the time limited for service of a court defence, apply to the Court for –

(a) A declaration that in the circumstances of the case the Court should not exercise any jurisdiction it may have, or

(b) An order staying the proceedings, or

(c) Such other relief as may be appropriate, including the relief specified in paragraph (1)(e) or (f).”

81.  Order 12 rule 8, RHC applies with necessary modifications to proceedings commenced by other forms of originating process[16].  The procedures relating to proceedings begun by originating summonses are governed by Order 28 of RHC, which stipulates that where a defendant to an originating summons who has acknowledged service wishes to adduce evidence he must within 28 days after service on him of copies of the plaintiff’s affidavit evidence under paragraph (3) file and serve his own affidavit evidence.

82.  As the originating summons together with the Father’s 1^st affidavit were served on the Mother on 22 May 2019, 28 days from 22 May 2019 would be 19 June 2019.

83.  It was argued on behalf of the Father that by 17 June 2019, the Mother should have filed her application and affirmation for the stay due to this Court’s direction on 6 June 2019 and therefore 17 June 2019 should be the deadline for her to file her application for stay.  That direction was only accepted by the Mother’s Counsel to allow sufficient time for the Father to file a reply affirmation before the hearing date on 24 June 2019 and was confined to the Father’s application for the Section 3(1)(d) Order.  In any event, the Mother did not file any affirmation at all in the end.

84.  In my view, the deadline under Order 12 rule 8(1) should still be 19 June 2019.  In any event, whether 17 or 19 June 2019, the Mother had failed to issue her application for stay within time.

85.  Order 12 rule 8(7) of RHC provides: -

“(7) Except where the defendant makes an application in accordance with paragraph (1) or (2), the acknowledgment by a defendant of service of a writ shall, unless the acknowledgment is withdrawn by leave of the Court under Order 21, rule 1, be treated as a submission by the defendant to the jurisdiction of the Court in the proceedings.”

86.  There had been no application by the Mother to withdraw her acknowledgment of service under Order 21 rule 1 of RHC.

87.  It was thus submitted on behalf of the Father that it was too late for the Mother to apply for a stay on 24 June 2019 and that the Mother should be treated as having submitted to the jurisdiction and the forum of the Hong Kong Court.

88.  Ms Allison argued that the Court also has inherent jurisdiction to entertain stay applications and that Order 12 rule 8 does not apply to stay applications under inherent jurisdiction.

89.  As stated earlier, the Mother’s Stay Application expressly stated to be issued pursuant to Order 12 rule 8 of RHC.  Further, the Hong Kong Court of Final Appeal has held in an admiralty case Re Resource 1 (2000) 3 HKCFAR 187 that Order 12 rule 8 of the RHC prescribes a procedure for determining disputes as to jurisdiction and is a comprehensive and exclusive code for the taking of jurisdictional objections.  What was held in Re Resource 1 was also followed by Chu JA in a family case RKL and WL and Anor, CACV 9/2016 (unrep) 6 May 2016. 

90.  It is my view whether the Mother seeks to rely on inherent jurisdiction of this Court or not, the procedure should still follow that as provided in Order 12 rule 8 of the RHC.  In either event, the Mother’s Stay Application was out of time.

91.  It has however been held in Re Resource 1 that the power of the Court to extend time under Order 3 rule 5 of RHC is conferred in very wide terms, and that its purpose is to ensure the legal consequences which ordinarily flow from non-compliance with time limits fixed by the RHC do not apply in cases where an extension is appropriate and that in that context, there is no reason to differentiate between a deemed submission to the jurisdiction, as Order 12 rule 8 provides for , and other legal consequences.   The Court of Final Appeal then decided in Re Resource 1 to invoke its powers to extend time under Order 3 rule 5 of RHC and to allow the appeal.

92.  In the present case, the Mother was not served within jurisdiction and she had made it clear in her acknowledgment of service that she was contesting the Hong Kong proceedings.  Further, on 17 June 2019, the Mother’s solicitors had written to the Father’s solicitors.  In the letter, the Mother pointed out that it is unclear whether the Hong Kong Court has the jurisdiction to hear the Father’s application and that there is doubt as to whether the Hong Kong Court has jurisdiction to invoke wardship over CJH as CJH is not a Hong Kong permanent resident and that “arguably her habitual residence is Ontario, Canada”.

93.  It seems clear in that letter that the Mother was disputing that the Hong Kong Court’s jurisdiction over CJH and that she had made clear also that she was not objecting to the Section 3 (1)(d) Order subject to the jurisdiction/forum issue[17]. It was thus submitted by Ms Allison that there was nothing that the Mother had done to lead the Father to believe that she was not going to challenge jurisdiction/forum or submitting to the Hong Kong jurisdiction/forum and that an extension of time ought to be granted for the Mother’s filing of the Stay Application.  Mr Allison further pointed out that there was no evidence of any prejudice to the Father by her not filing the Stay Application within time.

94.  As said earlier, it is this Court’s view that the deadline expired on 19 June 2019 and thus the Mother’s Stay Application was issued only 5 days out of time.  Even if it had expired on 17 June 2019, the application was only 7 days out of time.  There was clearly no prejudice to the Father. 

95.  Having considered all the circumstances of this case, although the Mother’s Stay Application was issued out of time, I am prepared to extend the time under Order 12 rule 8(1) of RHC to 24 June 2019.  

The legal principles on forum non conveniens

96.  In Hong Kong, the legal principles on forum non conveniens set out by the Court of Appeal have been restated by the Court of Final Appeal in SPH v SA [2014] 3 HKLRD 497 as follows:

“1. The single question to be decided is whether there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of an action i.e. in which the action may be tried more suitably for the interests of all the parties and the ends of justice?

2. In order to answer this question, the applicant for the stay has to establish that first, Hong Kong is not the natural or appropriate forum (‘appropriate’ in this context means the forum has the most real and substantial connection with the action) and second, there is another available forum which is clearly or distinctly more appropriate than Hong Kong. Failure by the applicant to establish these two matters at this stage is fatal.

3. If the applicant is able to establish both of these two matters, then the plaintiff in the Hong Kong proceedings has to show that he will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong.

4. If the plaintiff is able to establish this, the court will have to balance the advantages of the alternative forum with the disadvantages that the plaintiff may suffer. Deprivation of one or more personal advantages will not necessarily be fatal to the applicant for the stay if he is able to establish to the court's satisfaction that substantial justice will be done in the available appropriate forum[18].”

97.  In order to decide which forum is more appropriate for the trial of an action and issues to be determined, common factors taken into account include where the parties are situated, the location of witnesses and the appropriate governing law[19].

98.  In QMY v GSS (2017) 20 HKCFAR 303, a recent case concerning stay of proceedings applications in the context of disputes relating to children born out of wedlock, the Court of Final Appeal has briefly stated that :

“Briefly stated, the question is whether there is some other available forum having competent jurisdiction in which the action may be tried more suitably for the interests of all the parties and the ends of justice. The applicant for the stay has to establish that first, Hong Kong is not the natural or appropriate forum in the sense that it has not the most real and substantial connection with the action and second that, there is another available forum which is clearly or distinctly more appropriate than Hong Kong. Failure by the applicant to establish these matters is fatal. If the applicant is able to establish both of these matters, then the plaintiff in the Hong Kong proceedings has to show that he will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong. If the plaintiff is able to establish this, the court will have to balance the advantages of the alternative forum with the disadvantages that the plaintiff may suffer[20].”

99.  Thus, there are 3 stages for consideration.

Stage 1: Appropriate forum

100.  Ms Allison submitted on behalf of the Mother that Canada is the distinctly more natural forum to determine the issue of CJH’s care arrangements on the following grounds (“Grounds”):

(1)   Canada was the Father’s first choice of forum despite having had the opportunity to commence proceedings in Hong Kong;

(2)   The Father’s litigation conduct insofar as he is “forum shopping’ should not be condoned;

(3)   There is no evidence that Canada will apply differing principles and will not consider CJH’s best interests in dealing with the matters of custody and care;

(4)   Both the Mother and CJH now reside in Canada;

(5)   Hong Kong was never intended to be the parties’ place of permanent residence and there is uncertainty as to the Father’s future plans in Hong Kong.

Grounds (1), (2) and (3)

101.  Ms Allison’s submissions on the above Grounds appear to be that the Father had every opportunity to take out legal proceedings in Hong Kong to prevent CJH being taken to Canada and he chose to do nothing until after CJH’s arrival in Canada, and upon CJH’s arrival, he chose Canada to issue his proceedings.  Thus, Canada was the Father’s first choice of forum, and that having chosen Canada, he then decided on issuing the Hong Kong proceedings and that his conduct amounts to forum shopping.  It is therefore submitted on behalf of the Mother that this Court should not accept the Father’s conduct in particular that there is no evidence that Canada will apply different principles from Hong Kong in dealing with matters of CJH’s custody and care.

102.  It is the Mother’s case that the Father could have at any stage from August 2018 when the Mother moved out of the Pui O House with CJH applied to the Hong Kong Court for the Section 3 (1)(d) Order and for the Custody/Care Order and although he had sought legal advice in early December 2018, he took no steps.  Further, the Mother had made it known to him during the Joint Meeting that she would need to move back to Canada as living in Hong Kong was not financially viable and although the Father’s response was to apply for an injunction to prevent CJH moving to Canada, he did nothing to prevent CJH from leaving Hong Kong

103.  It was not really disputed that the Father had consulted solicitors as early as December 2018.  That appeared to be the time when the parties were discussing about the Scheduled Arrangement.  The parties were not able to agree to the financial arrangements which then led to the Joint Meeting. 

104.  The Father had pointed out in his 3^rd affidavit that he had made it clear during the Joint Meeting that he would not consent to CJH being relocated to Canada and that if the Mother were to insist he would have to issue an injunction application immediately to avoid that from happening.  The Father had also explained that the reason he did not make an application to the Court immediately to seek a Section 3 (1)(d) Order or make any other application at the time was because he genuinely thought the Mother and her family would further discuss with him to resolve the financial matters amicably and sensibly. 

105.  The Father had referred to parts in the Transcript where the Mother’s father had said that maybe they could set up a meeting another day and then let them think about or consider any alternative choice or option because once the parties applied to court they had to spend hundreds of thousands of costs[21].

106.  It can been seen from the Transcript that the Mother’s parents had tried to tell the parties not to spend money on lawyers and to keep their money for CJH and that they had to figure out another solution.  The Father had said he did not want to spend money on lawyers and that would it be up to the Mother and the Mother then said she did not have the money to do it.  The parties then both accepted that neither of them had the money to spend on lawyers.

107.  It is thus clear from the Transcript that neither side had wanted to contact lawyers at that stage and that the Joint Meeting ended on the understanding that the parties would not go to lawyers and that there would be another meeting, and that the Father would need to provide his financial breakdown and the Mother had said she would try and ask for a raise in her salary before the next meeting.

108.  It is not exactly clear as to what happened after the Joint Meeting, whether there had been any attempts to arrange another meeting or whether there had been any further attempts to discuss or negotiate.

109.  In any event, in light of what was said in the Joint Meeting and the Father’s explanation, I do not think it is right for the Mother now to say that the Father could have taken legal action at that time but he chose not to.  In my view, both of them chose not to and they had agreed to discuss further.

110.  After the Father was informed that the Mother had taken CJH to Canada, he went over to Canada almost immediately.  As said earlier, he arrived on 19 April 2019 and commenced the Hague Application on 25 April 2019.  Although the normal procedure for an application under the Convention is for the left behind parent to contact the Central Authority of the child’s habitual residence who will then contact the Central Authority of the Contracting State where the child has been taken to by the taking parent to start the return proceedings there, to save time, a left behind parent could start such proceedings direct in the Contracting State where the child has been taken to without going through the Central Authorities.  This was what the Father did.

111.  The Mother seemed to criticize the Father for firstly delaying in commencing the Hong Kong proceedings after knowing on 13 April 2019 that CJH had been taken to Canada[22] and then also in delaying in issuing the Hague Application, namely only issuing the Hague Application on 25 April 2019 notwithstanding the Father having arrived on the 19 April 2019[23].  

112.  I do not understand the Mother’s criticisms in this regard.  The Father contacted a Canadian lawyer as soon as possible and he was able to issue his Hague Application within 6 days after his arrival and this would mean he almost lost no time in trying to pursue the return of CJH to Hong Kong.  

113.  As said earlier, the Father subsequently received advice that he was not exercising “rights of custody” within Article 3 of the Convention at the time of the Hague Application, and it was under those circumstances he then issued the present proceedings in Hong Kong for orders including the Section 3(1)(d) Order under GMO, the Custody/Care Order under GMO and the Return Order under the Court’s inherent jurisdiction.  The Hong Kong proceedings were issued less than a month after 13 April 2019 and just over two weeks after his Hague Application.  I would not have thought that was a long delay.

114.  The commencement of the Hague Application in Canada should not be regarded as the Father’s “choice of forum” for any applications for custody/care of CJH.  He did not submit to the jurisdiction of the Canadian Court over the custody/care issues of CJH.  In fact, the Father had no choice but to issue the Hague Application in Canada under the Convention provisions, Canada being the Convention State where CJH has been taken to and retained unilaterally and this is where the return proceedings have to be issued.

115.  It is clear that by issuing the present proceedings, the Father is claiming that Hong Kong has the jurisdiction and is the appropriate forum to grant the Section 3 (1)(d) Order, the Custody/Care Order and the Return Order. The Hong Kong proceedings are the only set of proceedings issued by the Father in relation to the Section 3 (1)(d) Order and the Custody/Care Order.   The Hong Kong proceedings can in fact be said to be the first in time in the Father claiming that Hong Kong has jurisdiction over CJH and that in my view Hong Kong was/is all along the Father’s first choice of forum.  I thus do not accept Ms Allison’s submission that Canada was the Father’s first choice of forum.

116.  After the issue of the Hong Kong proceedings, the Father was advised by his Canadian lawyer to issue the CLRA Application under the Ontario domestic legislation, which is essentially for a return order of CJH and he has also specifically sought a declaration that Canada has no jurisdiction or should decline jurisdiction over CJH.  The CLRA Application was fixed for hearing on 13 June 2019, the substantive hearing date originally fixed for the Hague Application.

117.  Ms Allison submitted that the Father’s litigation conduct was akin to forum shopping and that if the Father had wished for an urgent determination as to whether CJH should be returned to Hong Kong, there was no need to start fresh proceedings in Hong Kong when he knew the matter would be decided in Canada on 13 June 2019.  However, at the time of issuing the Hong Kong proceedings, the only proceedings in Canada was the Hague Application.  Further, the Hong Kong proceedings are not only for the return, but also for the Section 3(1)(d) Order and also the Custody/Care Order.  There is no duplicity of proceedings in respect of seeking those two orders.

118.  The Father later applied for an adjournment of the CLRA Application at the substantive hearing on 13 June 2019 in an attempt to defer proceedings to Hong Kong. At that time, this Court had not yet granted the Section 3 (1)(4) Order.  

119.  Even though the Father had taken out the CLRA Application after the Hong Kong proceedings, he did later seek an adjournment pending Hong Kong’s determination on the Section 3(1)(4) Order, which in my view was a sensible approach.  Justice Nakonechny granted the adjournment to allow the Hong Kong Court to determine its position regarding CJH including her residence and custody. 

120.  Ms Allison submitted that there is no evidence that Canada will apply differing principles in dealing with the matters of custody and care.  This is not disputed.  It is not disputed that both Canada and Hong Kong are both competent jurisdictions, but the Father has not issued any applications in Toronto over the matters of custody and care of CJH, nor so far as I am aware, the Mother.

121.  In any event, having considered the above, I do not agree that the Father’s litigation conduct was akin to forum shopping.  The Hong Kong proceedings were the first in time and throughout, his position was that Hong Kong has jurisdiction and is the appropriate forum for determining his applications for the Section 3 (1)(d) Order and the Custody/Care Order and the Return Order.

Ground (4)

122.  Ms Allison submitted that the Mother’s return to Canada with CJH was for a legitimate reason, which was real financial difficulty. However, as said by herself, the Mother’s sudden decision to fly to Toronto which was made in Hawaii was premised on the Mother wanting to be a full time mother and that she did not want to be trapped in Hong Kong.

123.  It was also submitted on behalf of the Mother that the Mother’s return to Canada with CJH was not wrongful.  It may not be “wrongful” under Article 3 of the Convention, but as I have said the removal of CJH from Hong Kong was unilateral and surreptitious.  This is in particular of her own evidence that she had raised the matter of relocation with the Father during the Joint Meeting and that the Father had not given his consent.  Further, pursuant to the Scheduled Arrangement, the Father was having day and overnight access in Hong Kong.  

124.  The Mother said her move to Canada was not founded on a desire to exclude the Father from CJH’s life and that the Father has continued to have almost daily Facetime access and day access when he was in Canada.  The fact is that with the distance and the lack of overnight access, in effect, the Father’s access has been reduced.  Having said this, I accept there is no sufficient evidence at present that the Mother’s move was with any intention to exclude the Father from CJH’s life.

125.  The Mother says she has been CJH’s primary carer although the Father’s case is that he has shared care.  As said earlier this will be a matter to be considered during the trial over the custody/care issues.  The present evidence indicates that the Mother was a full time mother prior to June 2018 when she started working, but thereafter, the Father had had daytime and overnight access quite frequently in particular in the month of March 2019 when he was on sick leave.

126.  It is a fact that the Mother and CJH are now physically in Canada having been there since 13 April 2019.  However as said earlier, I find there is no sufficient evidence that CJH’s habitual residence has by now changed to Canada and I am of the view that Hong Kong remains CJH’s habitual residence and/or the “home country” of CJH.

Ground (5)

127.  The Mother has said that despite the purchase of the Pui O House, the parties did not intend to remain living in Hong Kong on a permanent basis. 

128.  It is true that the Mother is the only one who has the right of abode in Hong Kong.  It is the Mother’s evidence that the Father had applied for jobs in Australia or Canada and that Hong Kong was not the parties’ permanent place of residence. 

129.  The Mother had produced an email from the Father in August 2015, which was before CJH was born , in which the Father seemed to be putting forward ideas as to where they would live in future as a family and the Father had mentioned Koh Samui, Ishkigaki, Australia etc and also Canada and so far as Canada was concerned, he had said that the Mother had to work out for him after they were married as to what he needed to do to get a Canadian Passport and a work permit in Canada[24].  He had also pointed out in the email the cons to the Canadian and Australian bases were that it would be extremely expensive to live there as the tax rates were really high. As pointed out by the Mother, at the time, the parties did not think Hong Kong would be the place they wanted CJH to grow up.  However, there was also no decision that Canada would be where they wanted CJH to grow up.  Further, the Father was talking about Vancouver and not Toronto and that he had also said if the parties were “sick of Canada” he could apply for transfer to Australia.

130.  The fact is that the parties were and are still young and neither of them grew up in Hong Kong.  They may well wish to move somewhere else one day.  The above email was sent at a time when the parties were planning to get married and looking forward to their lives together as a family. Although it seems that they had talked about living elsewhere, there was no joint decision as to where they would live.  There was no joint decision to live in Toronto.  It was their joint decision to live in Hong Kong at the time as a family and Hong Kong has been their place of habitual residence.   Even if the Mother now says she wants to live in Canada, there is nothing to stop her from changing her mind to move somewhere else one day, as she did 5 years ago.

131.  At present, there is no sufficient evidence that the Father is going to seek a transfer out of Hong Kong imminently or prior to the custody/care of CJH being resolved.

132.  Anyway, I do not think the fact that the parties had discussed about living elsewhere one day as a family would make Toronto presently a distinctly more natural forum to determine CJH’s custody/care arrangements.

Other matters

133.  As said earlier, the Father has not issued any proceedings in Toronto to seek CJH’s custody/care.  Whether Hong Kong or Toronto, such an order would entail financial provision for CJH and in this connection, a court will look at the parties’ respective finances which seem to be mainly in Hong Kong.

134.  The Father’s salary is being paid in Hong Kong. He should be entitled to various benefits under his salary package and he presumably files salary tax returns in Hong Kong.  He has a property in Australia and may also have to file tax returns there. 

135.  The Mother is the legal owner of two landed properties in Hong Kong.  She receives rental income from the Hollywood Road Property for which she should have filed property tax returns in Hong Kong and should have been paying government rates and rent.  She has also worked in a health food restaurant in Hong Kong and presumably she has filed or may need to file a salary tax return in Hong Kong.

136.  There is no evidence that the Mother owns landed properties in Toronto.  It is not clear as to whether she had worked in Toronto prior to coming to Hong Kong and if so what her income was.  It is not clear at this stage whether she has filed any Canadian tax returns.

137.  It is anticipated that for the custody/care trial, and if the Mother is intending to issue a formal relocation application after her return, the parties will be calling various factual witnesses.  As pointed out by Mr Yim, a large number of the factual witnesses who had so far filed affidavits in the Canadian proceedings reside in Hong Kong and there is no evidence as to whether they will be willing to attend trial in Toronto to give evidence.  The Mother may call her parents but since the evidence shows her parents have been coming regularly to Hong Kong and spending long periods of time here, there should be no problem for them to give evidence in Hong Kong.

138.  Further in Hong Kong, in custody/care/access disputes, the Court may call for a social investigation report concerning CJH.  There is probably a similar procedure in Toronto.  If called for in present case, the welfare officer may need to make enquiries from the teachers of the kindergarten where CJH was attending and also the helper who was helping to care for CJH. 

Conclusion on Stage 1

139.  Having considered all the above, and the circumstances of this case, I find that on the present evidence that the Mother is not able to establish that Hong Kong is not the natural or appropriate forum and that Toronto is clearly or distinctly more appropriate forum than Hong Kong for dealing with the custody/care/access of CJH and also CJH’s financial provision.  

140.  The Mother thus fails in Stage 1 of the enquiry.  As has been said by the Court of Final Appeal, such failure is “fatal”.  However, for completeness sake, I will also consider Stage 2.

Stage 2: Legitimate Personal and Juridical Disadvantage

141.  It was submitted by Mr Yim on behalf of the Father that a major juridical disadvantage which the Father will suffer, if the present proceedings are stayed in favour of the Canadian Court, is that the remedies available to the Father to seek a return of CJH will be substantially restricted.  

142.  Essentially what the Father has been seeking in the two sets of Canadian proceedings is a return order, namely for CJH to be returned to Hong Kong forthwith.   Insofar as the Hague Application was concerned, as said earlier, due to the advice received, the Father had not proceeded with this application.  

143.  Insofar as his CLRA Application is concerned, the Mother’s stance is that the Father could not invoke any claim for a return order under the CLRA because (i) as a matter of principle, the Father should not be permitted a second chance under the domestic legislation (ie the CLRA) if he has failed in his claim under the Convention; (ii) section 46 of the CLRA incorporates the Convention into Ontario law and provides that the Convention is to prevail where there is a conflict between that section and any other section in the CLRA; (iii) CLRA is meant to provide protections to Non-Contracting States of the Convention, and as Hong Kong is a Contracting State, it is not appropriate for the Father to invoke the CLRA instead of the Convention to seek a return of CJH.

144.  Thus, the Mother’s position seems to be that the Father could not apply for a return of CJH under the CLRA. 

145.  Ms Allison submitted that there was no expert evidence provided by the Father in relation to the juridical disadvantage as alleged by him.   There was expert opinion in relation to the Hague Application.  As for the CLRA Application, Mr Yim’s submissions were based on the Mother’s own Canadian lawyer’s submissions.  

146.  This Court has asked for copies of the relevant sections of the CLRA.  Essentially, the Father seeks a return order under section 40 of CLRA.  Section 40 provides as follows:

“Interim powers of court

40 Upon application, a court,

(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or

(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42, may do any one or more of the following:

1. Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.

2. Stay the application subject to,

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

   (ii)   such other conditions as the court considers appropriate.

3.   Order a party to return the child to such place as 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.  R S O 1990, c C 12, s 40.”

147.  It would appear that the Father will have to satisfy either 40(a) or (b) before the Ontario Superior Court can order a return.

148.  The Father has thus also sought a declaratory order that the Ontario Superior Court has no jurisdiction pursuant to section 22 of the CLRA or to decline jurisdiction pursuant to section 25 of the CLRA.

149.  Section 22 of the CLRA provides :

“Jurisdiction

22 (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(a) the child is habitually resident in Ontario at the commencement of the application for the order;

(b) although the child is not habitually resident in Ontario, the court is satisfied,

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

   (ii)  that substantial evidence concerning the best interests of the child is available in Ontario,

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

   (iv)  that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,

   (v)  that the child has a real and substantial connection with Ontario, and

   (vi)  that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. RSO 1990, c C12, s 22 (1).

Habitual residence

(2)   A child is habitually resident in the place where he or she resided,

(a)   with both parents;

(b)   where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other 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.  RSO 1990, c C12, s 22 (2); 2016, c 23, s 6.”

150.  Section 25 of the CLRA provides:

“Declining jurisdiction

25    A court having jurisdiction under this Part in respect of custody or access may decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.  RSO 1990, c C12, s 25.”

151.  Justice Nakonechny had said it was relevant for the Ontario Court to know Hong Kong’s position before determining whether Ontario should take jurisdiction over the matter.  Thus, at the moment, it is not certain whether the Ontario Superior Court will accept jurisdiction or not, if there is no stay.  In light of those submissions made on behalf of the Mother in the Canadian proceedings and if those submissions were accepted, the Father would not be able to proceed with his CLRA Application to apply for a forthwith return of CJH.  

152.  Failing to obtain a forthwith return would mean that CJH will continue to stay in Toronto.  At the moment, as said earlier, there is no application issued over CJH’s custody/care and it is not clear the time it will take for any trial to take place.

153.  Having considered all the above, I find the Father has satisfied this Court that he will be deprived of a legitimate personal or juridical advantage if there is no stay and he has to proceed with his return application in Canada. 

154.  On the other hand, it was submitted by Ms Allison that if no stay is granted and the present proceedings continue, the parties legal costs will be high and this is a juridical disadvantage to the Mother.  The Mother had already spent CAD 65,000 (HK$390,000) and that the Father had spent CAD 41,000 (HK$250,000) in the Canadian proceedings.  

155.  It is most unfortunate that the parties did not accept the advice of the Mother’s parents during the Joint Meeting to try and come to an agreement to save legal costs.  Having considered those sums already spent, it seems to this Court whether Toronto or Hong Kong, the legal costs will be equally high if the parties were to continue litigating.  I am not satisfied that the Mother would be deprived of any legitimate personal or juridical advantage in this respect if there were no stay.

Stage 3: Balancing exercise 

156.  Having considered the above, the balance will tilt towards Hong Kong being the natural or appropriate forum.  I am of the view that declining the Mother’s forum in the Canada will not cause any prejudice to the Mother as she has every opportunity to present her case and her claims in Hong Kong.

Conclusion on the Stay Application

157.  In light of all the above, I am not prepared to grant a stay of the present proceedings as sought by the Mother.

The Father’s Return Application

158.  As submitted by Ms Allison, the principles for the summary return order under the Court’s inherent jurisdiction are established in In re J (a child) (custody rights: jurisdiction) supra are summarized in Rayden and Jackson on Relationship Breakdown, Finances and Children as follows:

“[48.524] The inaptly named In re J (a child) (custody rights: jurisdiction)[25] established three core principles when a court considers whether or not to make a summary return order under the inherent jurisdiction:

(i) The welfare principle enshrined in the ChA 1989, s 1 applies to the determination of any question concerning a child’s upbringing on the application for an order in the inherent jurisdiction;

(ii) There is no warrant, there in statue or authority, for the principles of Hague Abduction Convention to be extended to countries who are not parties;

(iii) The court does have the power, in accordance with the welfare principle to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits.

[48.525] At para 28 Baroness Hale summarized the position as follows:

‘it is plain, therefore that there is always a choice to be made. Summary return should not be the automatic reaction to any and every unauthorized taking or keeping a child from his home country. On the other hand, summary return may very well be in the best interest of the individual child.

She then gave guidance to judges as follows:

‘The judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be the best for him in the long run may be different from what will be best for him in the short run. It should not be assumed, in this or any other case, that allowing a child to remain here while his future is decided here inevitably means that he will remain here for ever.

[48.526] By home country she did not mean what she then described as the ‘technical concept of habitual residence’ but rather that the courts should ‘ask in a common sense way with which country the child has the closer connection … Factor such as his nationality, his religion, his culture, and his education so far will all come into this. Since this judgment, the UK Supreme Court has discarded the older English formulation of habitual residence, adopting the European test (see para [48.125] of integration into family and social environment. However, it should be noted that this was not intended as a test of jurisdiction but rather the first stage in a discretionary welfare exercise.

[48.527] Baroness Hale then referred to another closely related factor: the length of time the child has spent in each country.

‘Uprooting a child from one environment and bringing him to a completely unfamiliar one, especially if this has been done clandestinely, may well not be in his best interest. A child may be deeply unhappy about being recruited to one side in a parental battle. But if he is already familiar with this country, has been here for some time without objection, it may be less disruptive for him to remain a little while longer while his medium and longer time future is decided that it would be to return.’

[48.528] The next issue Baroness Hale discussed was the extent to which the courts of the other country operated a different conception of welfare… Her conclusion was that while differences between legal systems cannot be irrelevant, their relevance will depend on the facts of the individual case…

[48.529] The next issue highlighted by Baroness Hale was the effect of the decision upon the child’s primary carer: this ‘must also be relevant, although again not decisive’. She was:

‘reluctant to allow a primary carer to profit from her own wrong by refusing to return with her child if the child is ordered to return. It will often be entirely reasonable to expect that a mother who took the risk of uprooting the child will return with him once it is ordered that he should go home. But it will sometimes he necessary to consider whether it is indeed reasonable to expect her to return, the sincerity of her declared refusal to do so and what is to happen to the children if she does not.

[48.530]-

[48.540] At para 41 she summarized the balance which must be struck on the facts of any case:

‘These considerations should not stand in the way of a swift and unsentimental decision to return the child to his home country, even if that home country is very different from our own. But they may result in a decision that immediate return would not be appropriate, because the child’s interests will be better served by allowing the dispute to be fought and decided here. Our concept of child welfare is quite capable to taking cultural and religious factors into account in deciding how a child should be brought up. It also gives great weight to the child’s need for a meaningful relationship with both his parents.’”

(emphasis added)

159.  As I have found earlier, although CJH is now physically in Toronto of almost 3½ months, there is no sufficient evidence that her habitual residence has by now changed to Canada.  I have also said that I am of the view Hong Kong is still CJH’s home country.

160.  Although the Mother says she now has the freedom to be able to be a full time mother, as said earlier she has decided to place CJH in a Child Care Centre and planning to enrol CJH in ballet classes and is looking for more extra-curricular activities of CJH to join. 

161.  Suffice to say, all those extra-curricular activities and classes are equally available for CJH in Hong Kong.  In fact, there were photographs of CJH at her dance class, Kinder Kicks soccer programme, and of CJH doing gymnastics in Hong Kong.

162.  As I have declined to order a stay, the Mother may in any event have to return to Hong Kong for these proceedings and for the trial. 

163.  The Mother has indicated that she may issue a formal application for relocation to Toronto after her return to Hong Kong if she is unable to support herself in Hong Kong and that bringing CJH back to Hong Kong now and then moving her again to Toronto may be disruptive to CJH. The considerations for a relocation will be different, and there will be detailed investigations into the proposed living environment.  I accept the application will take time to proceed to a trial.

164.  However, CJH has only been in Toronto about 3½ months, and in light of what I have said about her home remains to be Hong Kong, bringing her back now and even if she were to relocate in, say a year’s time, will not in my view cause her much disruption.  Having considered all the circumstances in this case, I am of the view that it is in the best interests of CJH for her to be returned to Hong Kong forthwith where all matters relating to her welfare including her financial provision can be determined.  Her return will however be subject to interim practical arrangements set out below.

Order

165.  As said earlier, I am not prepared to grant a stay.  The Mother’s summons issued on 24 June 2019 is hereby dismissed.

166.  Ms Allison has submitted a draft order if the Mother’s Stay Application is dismissed and if CJH is ordered to return to Hong Kong (“Annex 3”).  There have been no submissions from Mr Yim on the terms of Annex 3, save that the Father has made his own proposals in relation to the financial arrangements in the event of return.

167.  In relation to the undertaking D of Annex 3, I am of the view that all CJH’s passports and travel documents should be held by this Court rather than the Mother’s solicitors.  It is not clear as to what “identity documents” the Mother is referring to as she has also referred to “all other travel identification documents” presently by held by her Canadian lawyers in paragraph 7 (i) of Annex 3.  I will leave the parties to agree as to what identification documents are to be included.  

168.  In relation to undertaking H of Annex 3, the Father has denied the Mother’s allegation as to his alcohol addiction.  In light of undertaking G which I am prepared to impose, I do not see any urgency in imposing undertaking H at this moment and I will leave this matter to the trial in relation to the Custody/Care Order or further order.

169.  The Father has made a proposal for a “nesting arrangement” in the Pui O Property.  The Mother does not agree to live in the same property as the Father.  I find this understandable due to the Mother’s allegations in the past in particular the assault incident in October 2015.  Further, the “nesting arrangement” was not the arrangement in place in Hong Kong prior to CJH being taken to Canada.

170.  The Father’s alternative proposal to the “nesting arrangement” was for the Mother to rent an apartment to stay with CJH when CJH is with her.  The Father claims that his net disposable income is only HK$29,000 per month.  However, it seems he has resources to come up with legal costs.  He now proposes to pay the Mother a total of HK$11,500 per month for rent and CJH’s living expenses on the basis that the Mother will be able to use the rental income from the Hollywood Road Property of HK$25,000 per month and that she will have a total of HK$36,500 per month for rent and CJH’s living expenses.

171.  The Father’s proposal has failed to take into account the mortgage payments and outgoings of the Hollywood Road Property and that the Mother would need to use whatever net income from the Hollywood Road Property for her own personal expenses as she has no work at the moment.

172.  The Mother seeks a sum of HK$ 75,000 per month for CJH and the Mother and that the payments to start on 1 September 2019 to include accommodation for the Mother and CJH.  This is not realistic at the moment.

173.  As for the travel date in paragraph 4 of Annex 3, I will propose “as soon as practicable but in any event, to arrive no later than 10 days from the date of this Order”.

174.  I do not find it necessary to order the Father not to travel on the same plane with CJH for the return journey, in particular in light of undertakings C, E and F of Annex 3.  I will only order him not to sit in the same row where the Mother and CJH will be sitting for the return journey.

175.  As for the travel costs, I will order the Father to arrange and pay first for the one way air tickets for the Mother and CJH to return to Hong Kong, and the question of who will have to bear those costs will be decided by this Court when dealing with the financial matters and costs.

176.  As for the interim access, I will accept the Mother’s proposals in paragraph 8 of Annex 3 for the interim basis pending any further agreement or further order of this Court.  

177.  In my view, it will save considerable costs if the Father moves out of the Pui O House and seeks alternative accommodation for himself and to allow the Mother and CJH to reside in the Pui O House upon their return and this is what I will order in the interim.  The Mother should be entitled to change the keys and to reside in the Pui O House with CJH to the exclusion of the Father until the Pui O House is sold or until further order. The Father has to continue to pay the rates, the mortgage payments and outgoings of the Pui O House as he has been doing.

178.  I understand that the Father has proposed in the Canadian proceedings to pay approximately HK$26,100 per month in child support with breakdown as follows: (i) maintenance of HK$11,400 per month (ii) CJH’s school fees of HK$7,100 per month (iii) helper’s costs of HK$ 7,000 per month and (iv) Extra Curricular Activities of about HK$600 and (v) CJH’s medical expenses.  I further understand the Father may be entitled to education allowance and medical expenses under his salary package. The helper is contracted to him and he will have to continue to pay for her costs.

179.  I am of the view that in the interim, and until further order,  upon the Father’s undertaking to pay or caused to be paid CJH’s education expenses and medical expenses punctually and upon his undertaking to continue to pay for the mortgage, the rates and all outgoings of the Pui O House and also the helper’s costs direct, he is to pay to the Mother a sum of HK$11,500 per month for the maintenance of CJH including all CJH’s extra-curricular expenses, commencing from the date of her return to Hong Kong until further order.

180.  As for paragraph 10 of Annex 3, the sum to be deposited by the Father will be HK$11,500.

181.  I am not prepared to order paragraph 11 of Annex 3 at this stage. There be liberty apply.

182.  I will make an order in terms of Annex 3 subject to what I have said above.  I have indicated earlier that CJH’s financial provision will have to be considered and even though the Mother has not yet made a formal application for CJH’s financial provision, I will order the parties to file their respective Form Es within 28 days of today.

183.  I will also order that the parties to use their best endeavours to attend mediation as soon as practicable after the return of the Mother and CJH.

184.  The Father’s application for the Custody/Care Order will be fixed for a direction hearing on 6 September 2019 at 10:00 am (1 hour reserved). 

185.  As for costs, this will be reserved and will be dealt with on paper.  The parties are to lodge their written submissions on costs within 21 days of the date of this order and any replies within 21 days thereafter.