ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
COURT FILE NO.: FS-12-377681
DATE: 20120607
BETWEEN:
Hong Wang (aka Jennifer Wang) Applicant – and – Wei Lin Respondent
Andrew Rogerson and Robert Rastorp, for the Applicant
Roslyn M. Tsao and Aaron Franks, for the Respondent
HEARD: May 29, 30, & 31, 2012
JARVIS J.
Stay of Proceedings and Setting Aside of ex parte Order
[ 1 ] This matter first came before me on 18 April 2012 as an ex parte application for a Mareva injunction. The material presented by Mr. Rogerson, counsel for Ms. Wang, satisfied me that I had jurisdiction to make the order under s. 3(1) of the Divorce Act , R.S.C. 1985 (2nd Supp.), c. 3, and I granted the order. I need not repeat the dangers of judges making ex parte orders, or the duty of counsel to provide full and frank disclosure to the court of all relevant facts so that the court is not led astray.
[ 2 ] My order was sweeping and was quickly followed by an order of the High Court of Justice in the British Virgin Islands that froze Mr. Lin’s substantial assets situated there. This had the effect of stopping an initial public offering pending in Hong Kong in which he had a substantial interest.
[ 3 ] The foundation of both orders was that there had been a marriage breakdown and that there was a danger that the Respondent’s assets would be transferred to a trust in the British Virgin Islands and thus alienated from Ms. Wang. This would render these assets uncollectable by Ms. Wang if the subject of an equalization order.
[ 4 ] The material facts founding this court’s jurisdiction to make the ex parte order were set out in paras. 2-4 of Ms. Wang’s affidavit dated 17 April 2012:
I am 39 years of age, have two children aged 9 and 10 and have been a housewife and mother for the duration of my ten year marriage to the Respondent who is now 40 years of age. During the marriage the Respondent has been very successful in real estate development, such that our family assets are valued at approximately $165.5m.
We emigrated here from Mainland China in 2005 and own a house in Toronto, valued at approximately $2.7m. I have made Canada my home with my children, who have been educated here. The children have recently undertaken studies at the Canadian Embassy School in Beijing and are returning in June. The children and I are Canadian citizens. The Respondent has spent much time commuting back and forth to China, such that he lost his Permanent Resident status.
I arrived back from China last Thursday, where I was staying with the Respondent, in one of his Beijing properties. Just before I left, the Respondent told me that the marriage was definitely over and he would not give me any money to go away now, but would later give me two condos in China valued at $2.6m, being approximately 2% of our assets.
[ 5 ] The requirements of s. 3(1) of the Divorce Act are as follows:
- (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.
[ 6 ] Ms. Wang’s Affidavit was artfully composed to create the impression that the requirements of s. 3(1) of the Divorce Act were established, namely, that Ms. Wang has been in Canada for seven years, including the year immediately preceding the Application. This impression was false. In fact, Ms. Wang had returned to China with her husband their two children in 2010, where she remained with her husband and sons until very recently.
[ 7 ] Ms. Wang had originally moved to Canada in 2005, with the aim of acquiring Canadian citizenship for herself and her two sons. The family set up a home in Toronto and the children attended school in Toronto until their academic year ended in June 2010. The parties agreed to move the family back to Beijing for the September 2010 school year and enrol the children in an international school in Beijing. Ms. Wang and the two boys returned to Canada in the summer of 2011 to visit friends and relatives.
[ 8 ] Mr. Lin, having been served with the ex parte Order, responded with this motion to strike and with his 25 May 2012 Affidavit. That Affidavit makes it clear that the boys have attended school in China for the last two years and the family has lived together in China since August 2010. It is clear to me that Ms. Wang was not ordinarily resident in Ontario for at least one year immediately preceding the commencement of the proceeding.
[ 9 ] The onus is on Ms. Wang to establish this court’s jurisdiction under s. 3(1) of the Divorce Act , and she has been unable to discharge her onus. As far as Ms. Wang’s action is founded on s. 3(1) of the Divorce Act , this court has no jurisdiction to entertain it and it is therefore appropriate to stay the action.
Corollary Relief
[ 10 ] Ms. Wang’s claims for corollary relief are also made under the Family Law Act , R.S.O. 1990, c. F.3. The applicable test is real and substantial connection, which requires the court to consider objective factors to determine whether the subject of litigation is connected with the forum. These “presumptive connecting factors” are not exhaustive but inform the type of factors to consider. See Club Resorts Ltd. v. Van Breda , 2012 SCC 17 , 2012 CarswellOnt 4268, at paras. 82-94 .
[ 11 ] The “presumptive connecting factors” identified by the Supreme Court in the context of a tort case were set out by Lebel J. at para. 90:
(a) The defendant lives in the province;
(b) The defendant carries on business in the province;
(c) The tort was committed in the province; and
(d) A contract connected with the dispute was made in the province.
[ 12 ] The burden is on the party asserting the court’s jurisdiction. The test is met when a presumptive connecting factor is established that links the subject matter of the litigation to the forum. If none of the presumptive connecting factors apply, the court should not assume jurisdiction. See Van Breda , at paras. 93 and 100 .
[ 13 ] The facts of this case do not support the existence of a presumptive connecting factor that would entitle this court to presume jurisdiction. The relevant facts were set out in the Respondent’s factum at para. 20:
(a) The Husband does not live in Ontario or carry on business in Ontario. It is acknowledged by the Wife that the Husband's business is based entirely in China.
(b) The parties were not married in Toronto. The children were not born in Ontario.
(c) The parties have not lived together as a married couple in Ontario since at least August, 2010 and the children have not ordinarily resided in Ontario since August, 2010 based on the following facts:
i. The family has been living at their Chaoyang Home together, as an intact family, since August, 2010.
ii. The parties’ have a nanny of 7 years who resides with them in Beijing at the Chaoyang Home;
iii. Forrest and Leon are currently in their second year of elementary school in Beijing since September 2010 (after starting in JK in Toronto for 4 and 3 years, respectively);
iv. The children have 2 private tutors on a weekly basis;
v. The Husband purchased a home in Beijing for the Wife’s parents to live in and the children visit these grandparents almost weekly;
vi. The Wife does some work for her brother-in-law’s company in Beijing and does no work in Ontario;
vii. All of the family’s medical, dental and eye care is obtained in China;
viii. The only connection to Ontario is an encumbered real property and a bank account. In contrast, the parties have three real properties in China and significant bank accounts.
[ 14 ] With the exception of a house in Canada and a trust in the British Virgin Islands, the couple’s greatest assets are located in China. The boys have been attending school in Beijing for the past two years, and have family, friends and are involved in activities in China. Ms. Wang has not attempted to raise any new presumptive connecting factors that would allow the court to assume jurisdiction in these circumstances.
[ 15 ] I conclude that there is no real and substantial connection between the subject matter of this dispute and Ontario, and this court has no jurisdiction to grant corollary relief.
Forum Non Conveniens
[ 16 ] Once jurisdiction has been established, the doctrine of forum non conveniens allows a defendant to contest a court’s jurisdiction on the basis that another, more appropriate, forum exists. Given my conclusion that this court does not have jurisdiction, there is no need to address this any further.
[ 17 ] I have decided the stay application, considering the facts as of the time of argument.
[ 18 ] The above decision was reached without consideration of the following development.
Urgent Hearing re: Status of Children
[ 19 ] While the above questions were under reserve, I was notified that the children had disappeared without a trace from their home in Beijing. I was told that Mr. Rogerson’s response to urgent requests for information was not helpful. Counsel requested an opportunity to appear and schedule a hearing on the afternoon of May 24, 2012. When the hearing commenced, I was advised for the first time that the children had reappeared in Canada and were present in court. I scheduled a hearing on May 29, 2012, to hear testimony regarding the children’s circumstances. The hearing lasted three days, and Ms. Wang and two friends testified. Mr. Lin did not attend or testify; however, he did file an Affidavit sworn by a law clerk on information and belief.
[ 20 ] I need not deal with the specifics of their arrival. It is sufficient to say that the children arrived with Ms. Wang, who had spirited them from China to Canada, without Mr. Lin’s consent, using newly acquired Canadian passports issued in North York pursuant to applications written by Ms. Wang and containing questionable information. The wife signed for the husband and said that she had the husband’s general authority to sign family documents relating to Canadian matters. I chose not to make direct comments or to express my views about Ms. Wang’s evidence, and I have no evidence from Mr. Lin on this and many other relevant points.
[ 21 ] At the May 29 hearing, Ms. Wang testified and was vigorously cross-examined. I also heard from two parents of friends and/or schoolmates of the sons, who confirmed that Ms. Wang had told them that the children would study Mandarin while staying with their parents in Beijing for two years. Thereafter, the children were to return to Canada with their mother and resume their intended course of study at Cresswood school.
[ 22 ] The boys were registered at the Cresswood school within a day of their sudden appearance in Canada for reasons that were probably tactical.
[ 23 ] I have many reasons to doubt Ms. Wang’s bona fides and her evidence. I must say, however, that her love for her children was not seriously challenged. She expressed doubts about China as a proper environment for the children, despite cooperating in their residence there for two years. At one point I was asked to take judicial notice of what was said to be the shortcomings of the Republic of China, and I decline to do so. Ms. Wang complained about the food, rudeness of the people, and had the temerity to testify that many Chinese found money to be their most important motivator. There is nothing before me to establish that China and the City of Beijing and the opulent premises of Mr. Lin would be unsuitable for his children.
[ 24 ] It was not suggested by Mr. Lin that Ms. Wang lacked parental skills and could not be trusted with the welfare of their children.
[ 25 ] It is common ground that the children are Canadian citizens, and attended excellent schools here in their early years. Ms. Wang is also a Canadian citizen. Before this dispute arose, the parties had chosen a life in which the children lived in Canada with Ms. Wang and were educated here. Mr. Lin chose to abandon his Canadian immigration status as Permanent Resident to return to China, where he resumed his business career and managed his extensive holdings. Mr. Lin is a Chinese citizen.
[ 26 ] Both parents have demonstrated a tendency to make their children pawns in the larger dispute between them.
Analysis and Conclusions
(i) The Respondent’s Position
[ 27 ] Mr. Lin brought an application under s. 40 (b) (3) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”), in which he asks this court to find that the children have been wrongfully retained in Ontario and Order that they be returned to China, along with payment of reasonable travel expenses.
- Upon application, a court,
(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,
may do one or more of the following:
- 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.
[ 28 ] Mr. Lin’s argument is premised on s. 22 of the CLRA , which sets out the criteria under which a court may exercise its jurisdiction to make on order for custody or access. In particular, Mr. Lin relies on ss. 22(1)(a) and 22(2), which state:
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;
22(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.
(3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.
[ 29 ] Under the definition of habitual residence in s. 22(2)(a), Mr. Lin argues that because China is the last place that the children lived with both parents, the children are habitually resident in China. Accordingly, Mr. Lin submits that the court may not exercise its jurisdiction to make an order for custody or access of the children under s. 22(1) (a) of the CLRA , because the children were not habitually resident in Ontario at the commencement of the application for the order.
[ 30 ] Mr. Lin also refers to s. 22(3) of the CLRA in argument. The purpose of s. 22(3) is to prevent the removal of a child from his or her place of habitual residence without the consent of a custodial parent. Mr. Lin argues that to overlook Ms. Wang’s act of bringing the children to Canada in secret would amount to condoning the abduction of the children.
[ 31 ] Finally, Mr. Lin submits that the children should be returned to China without any regard to their best interests.
(ii) The Applicant’s Position
[ 32 ] Ms. Wang submits that the children’s last place of habitual residence was Ontario. She argues that it was always the intention that she and the children reside in China temporarily, to allow the children to obtain education in Beijing and to better learn the Chinese language. Ms. Wang submits that it is in the best interests of the children to remain in Ontario, where they have a home and strong roots, including a network of friends and family, and where the children are currently enrolled in school.
[ 33 ] Ms. Wang also points to Mr. Lin’s previous lack of involvement in the children’s upbringing, as well as his absence in these proceedings, as further support for why she should be allowed to continue in Canada as the custodial parent of their sons, at least on an interim basis.
[ 34 ] Ms. Wang raised the immigration status of the children as an issue in this hearing. The thrust of the evidence presented by Ms. Wang suggested that the children have no immigration status in China and therefore, they belong in Canada.
[ 35 ] Ms. Wang has attempted to argue that even though China is not a signatory to the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), Article 7 and Article 20 should be used to inform the court’s reasoning in this case. I need not comment any further than to say that the Hague Convention does not apply in this case.
(iii) Conclusions
[ 36 ] In response to Ms. Wang’s submissions on the immigration status of the children in China, counsel for Mr. Lin cited several cases that stand for the proposition that immigration status is irrelevant in the context of custody and access proceedings. See: Nordin v. Nordin , 2001 CarswellOnt 490 , Jenkins v. Jenkins , 2000 22523 (ON SC) , 2000 CarswellOnt 1583, Jabbaz v. Mouammar , 2003 37565 (ON CA) , 2003 CarswellOnt 1619, Shortridge-Tsuchiya v. Tsuchiya , 2010 BCCA 61 , 2010 CarswellBC 276. I have reviewed these cases and do not consider them helpful. They are distinguishable on their facts.
[ 37 ] In the present situation, arguments regarding the immigration status of the children do not assist the court. This is not a custody hearing and it is common ground that the children may enter and leave China on the appropriate visitor’s visa. I cannot imagine, given that Mr. Lin is a Chinese citizen, that their return to China would encounter any serious impediment. In view of my conclusion, the issue of immigration status need not be considered.
[ 38 ] As outlined above, Mr. Lin has asked this court to find that the children are habitually resident in China, and as a consequence of that finding, that this court has no jurisdiction to make an order for custody of or access to a child under s. 22 (a) of the CLRA . It seems to me that the family’s history in Toronto is sufficient to establish habitual residence of the children in Ontario. The family set down roots and developed an established way of life in Toronto. It seems clear on the evidence that their stay in China was intended to be temporary, and that they had always contemplated resuming their established way of life in Toronto after a 1-2 year stay in Beijing.
[ 39 ] However, even assuming that the children are not habitually resident in Ontario, s. 22(b) provides that that court may exercise its jurisdiction to make an order where the following criteria are met:
- (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,
(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.
[ 40 ] Considering all of the evidence, each of the conditions in s. 22(b) seems to be established.
[ 41 ] It is important to be clear this was not a hearing for custody or access. This hearing was called to determine the status of the children after they disappeared in China.
[ 42 ] I also do not wish to be taken in these reasons to have made any finding of habitual residence, nor on the children’s best interests as they pertain to any custody issue between the parents.
[ 43 ] It would be very difficult to make any findings in this matter given the lack of evidence on both sides. As I mentioned earlier, I have many reasons to doubt Ms. Wang’s evidence, and Mr. Lin has not appeared to give any evidence. The issues of custody and access must be determined on a full custody application, at a time when a complete evidentiary record is before the court.
[ 44 ] My view is that the paramount consideration in this case is the welfare of the children. While it could be said that I have condoned Ms. Wang’s behaviour by failing to make a ruling in this case, it is the concept of the best interests of the children that has guided me in resolving the issues before me in the manner in which I have.
[ 45 ] Given my conclusion that this court does not have jurisdiction under s. 3(1) , I have stayed Ms. Wang’s application under the Divorce Act . The parties are now free to bring an application for custody and access, if they wish.
[ 46 ] I would hope that in the meantime Mr. Lin is permitted to communicate with and visit the children on a regular basis and that Ms. Wang and her sons re-establish the pattern of living in Toronto that persisted until the family left for China in 2010.
[ 47 ] As the location of the children is no longer in question and the children are safe and sound in Canada, in all of the circumstances I decline to make an order.
[ 48 ] It is in the best interests of the children that their passports be retained in court pending further order and I do not consider myself seized of the further motions. Should there be further attendance as necessary regarding the form of the appropriate order, or costs, such motions shall be made to me in writing.
Peter Jarvis J.
Released: June 7, 2012
COURT FILE NO.: FS-12-377681
DATE: 20120607
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Hong Wang (aka Jennifer Wang) Applicant – and – Wei Lin Respondent
REASONS FOR JUDGMENT
Jarvis J.