Shortridge-Tsuchiya v. Tsuchiya, (2010) 283 B.C.A.C. 117 (CA)

• Judge: Rowles, Prowse and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 11, 2009
• Jurisdiction: British Columbia
• Citations: (2010), 283 B.C.A.C. 117 (CA);2010 BCCA 61

Shortridge-Tsuchiya v. Tsuchiya (2010), 283 B.C.A.C. 117 (CA);

    480 W.A.C. 117

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. FE.026

Theresa Shortridge-Tsuchiya (appellant/respondent on cross-appeal/plaintiff) v. Sakae Tsuchiya (respondent/appellant on cross-appeal/defendant)

(CA037139; 2010 BCCA 61)

Indexed As: Shortridge-Tsuchiya v. Tsuchiya

British Columbia Court of Appeal

Rowles, Prowse and Lowry, JJ.A.

February 9, 2010.

Summary:

The mother was a Canadian citizen. The father was a citizen of Japan. They married and lived in Japan where their son was born in 2001. In November 2008, without the father's knowledge, the mother flew with the child to British Columbia where she commenced an action pursuant to Part 2 of the Family Relations Act (FRA) seeking custody and guardianship of the child. Japan was not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The father applied pursuant to Part 3 of the FRA, seeking a declaration that the British Columbia Supreme Court was without jurisdiction to make an order relating to child's care and custody, or, alternatively, for an order that the court decline to exercise its jurisdiction.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 541, held that it had no jurisdiction pursuant to s. 44 of the FRA to make an order relating to the care and custody of the child. Alternatively, the court held that if it had jurisdiction, it was appropriate to decline jurisdiction under s. 46 of the FRA in favour of the courts in Japan. Pursuant to s. 47 of the FRA, the court ordered that the mother return with the child to Japan so that the custody, access and guardianship issues could be decided in Japan. The order was stayed until the father paid reasonable travel expenses for the mother and child to return to Japan and secured payment to the mother of a sum of money sufficient to cover the mother and child's reasonable living expenses in Japan until the issues could be decided. The court awarded the mother interim custody of the child pending a decision by the courts in Japan. The parties were unable to agree on the appropriate amount of expenses and returned before the court.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 1217, made an order (the expenses order) requiring the father to pay $17,000 for the travel expenses and the costs of the mother re-establishing a household in Japan. The father was also ordered to pay $84,000 into the trust account of the mother's lawyer, from which $3,500 was to be paid to the mother each month, representing the costs of the mother and child in Japan pending a determination of the custody and access issues. The mother appealed from the order that the British Columbia Supreme Court did not have jurisdiction to decide the custody and access issues. The father cross-appealed from the aspect of the order giving the mother interim custody of the child and from the expenses order to the extent that it exceeded the $17,000 travel and start-up costs. The father also appealed from the court's order that the parties bear their own costs. Fresh evidence was filed by both parties, much of which related to the substantive and procedural law of Japan in relation to issues of custody and the enforcement of foreign court orders.

The British Columbia Court of Appeal, Rowles, J.A., dissenting, dismissed the mother's appeal and the father's cross-appeal. The court held that the court below erred, in part, in its analysis under s. 44 of the FRA and in finding that the British Columbia Supreme Court did not have jurisdiction to make an order for custody of, and parenting rights with respect to, the child. However, the court agreed with the alternative finding that, assuming the British Columbia Supreme Court had jurisdiction, it should decline jurisdiction pursuant to s. 46 of the FRA in favour of Japan. The court below did not err in awarding the mother interim custody of the child, in the nature and extent of the expenses it ordered pursuant to s. 47 of the FRA, or in ordering each party to bear their own costs. The court declined to admit the fresh evidence.

Conflict of Laws - Topic 2302

Family law - Custody of and access to children - Jurisdiction of court - The mother was a Canadian citizen - The father was a citizen of Japan - They married and lived in Japan where their son was born in 2001 - In November 2008, the mother flew with the child to British Columbia where she commenced an action under the Family Relations Act (FRA) seeking custody and guardianship of the child - A chambers judge held that the British Columbia Supreme Court had no jurisdiction pursuant to s. 44 of the FRA to make an order with respect to the care and custody of the child - The British Columbia Court of Appeal held that the chambers judge erred, in part, in his analysis under s. 44 of the FRA - The court had difficulty with the chambers judge's finding under s. 44(1)(b)(v) that, while the child had a "real" connection with British Columbia, that connection was not "substantial" - The court stated that "the presence of the child (and his mother) within the jurisdiction, living at the home of his maternal grandparents, and attending school in the local school district are factors demonstrating a real and substantial connection with the jurisdiction. In other words, the connections which the chambers judge described as real connections were also substantial connections. I conclude that he fell into error in separating these two concepts, which are invariably linked in the private international law context ... The words 'real and substantial' are linked, and should remain linked" - See paragraphs 50 to 52.

Conflict of Laws - Topic 2302

Family law - Custody of and access to children - Jurisdiction of court - The mother was a Canadian citizen - The father was a citizen of Japan - They married and lived in Japan where their son was born in 2001 - In 2008, the mother flew with the child to British Columbia where she commenced an action under the Family Relations Act (FRA) seeking custody and guardianship of the child - A chambers judge held that the British Columbia Supreme Court had no jurisdiction pursuant to s. 44 of the FRA to make an order with respect to the care and custody of the child - The British Columbia Court of Appeal held that the chambers judge erred, in part, in his analysis under s. 44 of the FRA and in finding that the British Columbia Supreme Court did not have jurisdiction to make an order for custody of, and parenting rights with respect to, the child - The chambers judge erred in treating s. 44 as if it were a jurisdiction conferring provision - Section 44 did not create jurisdiction in the court, but provided for the circumstances in which the court "must exercise its jurisdiction" - As a result of finding that the criteria in s. 44(1)(b)(ii), (v), and (vi) were not met, the chambers judge concluded that the British Columbia courts did not have jurisdiction over the issue of the child's custody and parenting - The correct conclusion which flowed from his findings was that the court was not required to assert jurisdiction, but that it nonetheless had jurisdiction which it could exercise in appropriate circumstances - See paragraphs 45 and 58.

Conflict of Laws - Topic 2306

Family law - Custody of and access to children - Forum conveniens - [See both Family Law - Topic 2126 ].

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction) - [See second Family Law - Topic 2126 ].

Family Law - Topic 1808

Custody and access - General - At common law - [See first Family Law - Topic 1963 ].

Family Law - Topic 1865

Custody and access - Duties and rights of custodians - To remove child from jurisdiction - [See first Family Law - Topic 1963 ].

Family Law - Topic 1920

Custody and access - Appeals - Admission of "new evidence" - A chambers judge held that the British Columbia Supreme Court had no jurisdiction pursuant to s. 44 of the Family Relations Act (FRA) to make an order with respect to the care and custody of the parties' child, and, alternatively, if the court had jurisdiction, it was appropriate to decline jurisdiction under s. 46 of the FRA in favour of the courts in Japan - The mother appealed from that decision - The father appealed from the chamber's judge's order that the mother have interim custody of the child pending a decision on the custody, access and guardianship issues by a court in Japan, and from the chambers judge's order that the father secure payment of a sum of money sufficient to cover the mother and child's living expenses in Japan until those issues could be decided - Both parties filed fresh evidence, much of which related to the substantive and procedural law of Japan in relation to issues of custody and the enforcement of foreign court orders - The British Columbia Court of Appeal held that most of the fresh evidence was not sufficiently reliable to meet even the flexible application of the test for the admission of fresh evidence which had been applied in family law cases - The court also concluded that the evidence which it did find reliable could not reasonably have affected the result reached by the chambers judge and it declined to admit the fresh evidence on that basis - See paragraphs 78 to 108.

Family Law - Topic 1963

Custody and access - Child abduction legislation - Wrongful removal or retention - The mother was a Canadian citizen - The father was a citizen of Japan - They married and lived in Japan where their son was born in 2001 - In 2008, without the father's knowledge, the mother flew with the child to British Columbia where she commenced an action under the Family Relations Act seeking custody and guardianship of the child - The British Columbia Court of Appeal held that the mother's actions constituted an unlawful removal of the child from Japan - The court stated that "Although there were no court proceedings in Japan at that point, she was engaged in the mediation process which is mandatory as a precondition of divorce ... More importantly, it was unlawful, in the sense of being contrary to the father's custody rights as joint custodian of the child, to remove the child from Japan as she did. It is not the case that a parent's only rights to custody of, and/or access to, their children are defined by court order. At common law, and under Part 2 of the Act (s. 27), the mother and father of a child who are living together are the joint guardians of the child with joint rights and obligations in relation to the child. If one parent unilaterally removes the child from the jurisdiction without the knowledge or consent of the other parent, this amounts to a wrongful taking of the child and a breach of the other parent's rights as joint custodial parent" - See paragraphs 65 to 70.

Family Law - Topic 1963

Custody and access - Child abduction legislation - Wrongful removal or retention - [See first Family Law - Topic 2126 ].

Family Law - Topic 1965

Custody and access - Child abduction legislation - Return order - The parties married and lived in Japan where their son was born - The mother flew with the child to British Columbia where she commenced an action under the Family Relations Act (FRA) seeking custody and guardianship of the child - Pursuant to s. 47 of the FRA, a chambers judge ordered that the mother return with the child to Japan so that the custody, access and guardianship issues could be decided there - The chambers judge awarded the mother interim custody of the child pending a decision on the issues in Japan - The chambers judge also made an order (the expenses order) that the father pay $17,000 for the travel expenses and the costs of the mother re-establishing a household in Japan - The father was also ordered to pay $84,000 into a trust account, from which $3,500 was to be paid to the mother each month for the costs of the mother and child in Japan pending a determination of the custody and access issues - The father appealed from the expenses order to the extent that it exceeded the $17,000 travel and start-up costs - The British Columbia Court of Appeal stated that "I agree with the father that, in effect, the chambers judge has ordered the father to pay the equivalent of spousal and child support pending the courts in Japan resolving the issues of custody and parenting rights. In so doing, he was giving effect to his interim custody order and ensuring the welfare of the mother and child. Given the finding of the chambers judge that the father had been strict and controlling with respect to money matters while the parties were living together, and that he had failed to pay any child support while the child was in Canada, I am satisfied that the chambers judge was justified in including as 'other expenses of the child and any part[y]', an allowance for the day-to-day living expenses of the mother and child" - See paragraphs 125 to 128.

Family Law - Topic 1965

Custody and access - Child abduction legislation - Return order - The parties married and lived in Japan where their son was born - The mother flew with the child to British Columbia where she commenced an action under the Family Relations Act (FRA) seeking custody and guardianship of the child - Pursuant to s. 47 of the FRA, the chambers judge ordered that the mother return with the child to Japan so that the custody, access and guardianship issues could be decided there - The chambers judge made an order (the expenses order) requiring the father to pay $17,000 for the travel expenses of the mother and child and the mother's costs of re-establishing a household in Japan - He was also ordered to pay $84,000 into a trust account to cover the living expenses of the mother and child in Japan until the custody, access and guardianship issues could be decided - The British Columbia Court of Appeal held that the chambers judge did not err in making the expenses order - The court stated that "While this is not a Hague Convention case, the underlying object of securing the safe and secure return of the child to the appropriate jurisdiction is equally compelling under Part 3 of the FRA. ... it would be anomalous if such protections were afforded for the return of children wrongfully removed under the Convention, but not for those wrongfully removed under Part 3. Section 47 must be interpreted in light of the purposes set forth in s. 43, including the best interests of the child. Under s. 47, the court is not limited to undertakings of the parent requesting the return of the child, but may impose an order to ensure the child's best interests during the transition period" - See paragraph 131.

Family Law - Topic 2051

Custody and access - Interim custody - Considerations - The parties married and lived in Japan where their son was born in 2001 - In 2008, the mother flew with the child to British Columbia where she commenced an action under the Family Relations Act (FRA) seeking custody and guardianship of the child - Pursuant to s. 47 of the FRA, the chambers judge ordered that the mother return with the child to Japan so that the custody, access and guardianship issues could be decided there - The chambers judge awarded the mother interim custody of the child pending a decision on the issues by the courts in Japan - The father appealed from the order awarding the mother interim custody - The British Columbia Court of Appeal stated, inter alia, that "While I am of the view that the mother's wrongful taking of the child was ill-considered and not in the child's best interests, that is not to say that she is not a fit and proper person ultimately to be granted custody of the child. That is for the courts of Japan to decide. In the meantime, it would be unfortunate if the child's care was interrupted any more than is already necessary to ensure that he returns to Japan for the resolution of the issue of his future care before the courts in Japan ... his best interests would be served by leaving him in the care of his mother pending an order with respect to his custody in Japan, or the agreement of the parties" - See paragraphs 121 to 124.

Family Law - Topic 2115

Custody and access - Jurisdiction - General principles - [See both Conflict of Laws - Topic 2302 ].

Family Law - Topic 2123

Custody and access - Jurisdiction - Where child taken from one jurisdiction to another without other parent's consent - [See first Family Law - Topic 2126 ].

Family Law - Topic 2126

Custody and access - Jurisdiction - Declining jurisdiction - The parties married and lived in Japan where their son was born in 2001 - In 2008, without the father's knowledge, the mother flew with the child to British Columbia where she commenced an action under the Family Relations Act (FRA) seeking custody and guardianship of the child - The father applied pursuant to Part 3 of the FRA for an order that the British Columbia Supreme Court decline to exercise its jurisdiction - The British Columbia Court of Appeal agreed with the chambers judge's finding that, assuming the British Columbia Supreme Court had jurisdiction, it should decline jurisdiction pursuant to s. 46 of the FRA in favour of Japan - The court stated, inter alia, that "the circumstances in which the mother removed the child from Japan amounted to a wrongful removal under both the Hague Convention and Part 3 of the FRA. This finding is relevant to the forum non conveniens analysis under s. 46 since two of the four stated purposes of Part 3 are to encourage the courts to decline jurisdiction where there has been a wrongful removal. A finding that there has been a wrongful removal from one jurisdiction to another engages the very concerns which Part 3 of the FRA is designed to address ... a wrongful removal may also be viewed as relevant under s. 11(2)(f) of the [Court Jurisdiction and Proceedings Transfer Act] which is concerned with the fair and efficient working of the Canadian legal system as a whole" - See paragraph 65.

Family Law - Topic 2126

Custody and access - Jurisdiction - Declining jurisdiction - The mother was a Canadian citizen - The father was a citizen of Japan - They married and lived in Japan where their son was born in 2001 - In 2008, the mother flew with the child to British Columbia where she commenced an action under the Family Relations Act (FRA) seeking custody and guardianship of the child - A chambers judge held that the British Columbia Supreme Court had no jurisdiction pursuant to s. 44 of the FRA to make an order relating to the care and custody of the child and, alternatively, if the court had jurisdiction, it was appropriate to decline jurisdiction under s. 46 of the FRA in favour of the courts in Japan - The British Columbia Court of Appeal held that although the chambers judge erred in finding that British Columbia did not have jurisdiction over the issue of custody of the child pursuant to s. 44, he was correct in concluding that this was a proper case in which to decline jurisdiction under s. 46 on the basis that Japan was the more appropriate forum to exercise jurisdiction - The court also held that chambers judge did not err in failing to assert the court's parens patriae jurisdiction - There was nothing so compelling or unusual about this situation to invite or require reliance on the inherent jurisdiction of the court - See paragraph 74.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - [See Family Law - Topic 1920 ].

Cases Noticed:

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193, refd to. [para. 32].

R.R.Y. v. M.R.L. (2006), 232 B.C.A.C. 203; 385 W.A.C. 203; 277 D.L.R.(4th) 79; 2006 BCCA 509, leave to appeal denied (2007), 368 N.R. 395; 248 B.C.A.C. 320; 412 W.A.C. 320 (S.C.C.), refd to. [para. 44].

Nordin v. Nordin, [2001] O.T.C. 112; 17 R.F.L.(5th) 119 (Sup. Ct.), refd to. [para. 49].

Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1; 102 D.L.R.(4th) 96, refd to. [para. 60].

Teck Cominco Metals Ltd. v. Lloyd's Underwriters - see Lombard General Insurance Co. of Canada v. Cominco Ltd. et al.

Lombard General Insurance Co. of Canada v. Cominco Ltd. et al., [2009] 1 S.C.R. 321; 384 N.R. 351; 266 B.C.A.C. 32; 449 W.A.C. 32; 2009 SCC 11, refd to. [paras. 60, 163].

Hewstan v. Hewstan, [2001] B.C.T.C. 368; 2001 BCSC 368, refd to. [para. 68].

Thomson v. Thomson, [1994] 3 S.C.R. 551; 173 N.R. 83; 97 Man.R.(2d) 81; 79 W.A.C. 81; 119 D.L.R.(4th) 253, refd to. [paras. 69, 152].

S.L.O. v. P.J.R. (2009), 276 B.C.A.C. 46; 468 W.A.C. 46; 95 B.C.L.R.(4th) 118; 2009 BCCA 380, refd to. [para. 75].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 106 D.L.R.(3d) 202, refd to. [para. 86].

Luney v. Luney (2007), 248 B.C.A.C. 267; 412 W.A.C. 267; 74 B.C.L.R.(4th) 203; 2007 BCCA 567, leave to appeal denied (2008), 386 N.R. 399; 271 B.C.A.C. 319; 458 W.A.C. 319 (S.C.C.), refd to. [para. 87].

J., Re, [2006] 1 A.C. 80; 338 N.R. 254; [2005] UKHL 40, refd to. [para. 105].

Finizio v. Scoppio-Finizio (1994), 124 O.A.C. 308; 179 D.L.R.(4th) 15; 46 O.R.(3d) 226 (C.A.), refd to. [para. 129].

Struck v. Struck (2003), 189 B.C.A.C. 291; 309 W.A.C. 291; 2003 BCCA 623, refd to. [para. 194].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241; 134 D.L.R.(4th) 321, refd to. [para. 202].

Statutes Noticed:

Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, sect. 11 [para. 60].

Family Relations Act, R.S.B.C. 1996, c. 128, sect. 35(1) [para. 34]; sect. 43 [para. 37]; sect. 44 [para. 39]; sect. 46 [para. 42]; sect. 47 [para. 43].

Counsel:

P. Golden, for the appellant;

M.A. Thomas, for the respondent.

This appeal and cross-appeal were heard on November 17 and December 11, 2009, at Vancouver, B.C., before Rowles, Prowse and Lowry, JJ.A., of the British Columbia Court of Appeal. The judgment of the Court of Appeal was delivered on February 9, 2010, including the following opinions:

Prowse, J.A. (Lowry, J.A., concurring) - see paragraphs 1 to 135;

Rowles, J.A., dissenting - see paragraphs 136 to 216.