The British Columbia Supreme Court has delivered a precedent-setting decision on a subject we recently blogged about in Ontario: The ordering of a child to be returned from one parent in Canada to another parent overseas.
In S.C. v. H.S., 2017 BCSC 277, the British Columbia Supreme Court ordered a child who was abducted by her mother and brought to Canada to be returned her father in Taiwan.
The parties in the case had two children together, the youngest being their daughter, who was born in Taiwan after the couple divorced in 2011. The mother moved herself and their son and daughter to Hong Kong. There was litigation in Taiwan as to whether the father in the case was actually the father of the couple’s daughter. However, the mother would not comply with court orders to provide DNA samples, which would have allowed them to determine whether the girl’s father was her genetic parent. In 2015 a Taiwanese court awarded the father with sole custody of both children. While the mother returned their son to Taiwan, she fled to Canada with their daughter and her new husband.
The Hague Convention
Taiwan is not a signatory to the Hague Convention (just as the UAE was not a member in Daji v. Alnaser), which provides member countries with an expeditious method through which to settle cases of international child abduction. As such, the case had to be decided according to B.C.’s Family Law Act, which has only been on the books since 2013.
The mother argued that their daughter had not seen or had contact with her father in over five years, and as such it was in her best interest to continue to live with her mother. However, the mother did not suggest that there was any unfairness in the Taiwanese orders, and admitted that was wrong to disobey them. As such the British Columbia Supreme Court had to refer to the Family Law Act to reconcile the matter.
The Family Law Act
Section 77 of the B.C. Family Law Act allows for a party to petition for the return of a child to another country under certain conditions. The Act states:
(1) This section applies if a court
(a) may not make an order or declines to make an order under section 74 . . . or
(b) is satisfied that a child has been wrongfully removed to, or is being wrongfully retained in, British Columbia.
 Subsection (2) sets out a number of orders that the court may make, including:
(c) order a party to return the child to a place the court considers appropriate . . .
The Court was not asked to, and did not, make an order under Section 74, which pertains to the recognition of extraprovincial orders. The Court went on to find that the child had been wrongfully removed to Canada, satisfying Section 71(1)(b) and ordered that she be returned to her father in Taiwan.
In its decision, the Court stated that it would not be in keeping with the intent of the Family Law Act to allow the child to stay in Canada. With no claims of unfairness in the Taiwanese courts and the mother’s admittance of her unilateral decision to disobey those courts’ decisions, the British Columbia Supreme Court applied the principal of judicial comity, the practice of respecting the laws and judicial decisions between one political entity and another.
If you have questions about child custody or abduction, please contact Jason P. Howie, online or at 519.973.1500. We can help answer questions such as: what is the child’s habitual residence? Does an existing custody arrangement permit relocation? Can a relocation be blocked or disputed?