Saturday, February 4, 2017

International custody battles: Precedent setting custody decision by BC court

B.C. court awards Taiwanese father custody of his daughter

Judge in international abduction case says there was 'wrongful removal of the child from Taiwan'

A Taiwanese man who tracked his abducted daughter to B.C. has now won full custody of the eight year old girl — more than five years after she was spirited here by her mother.

Chen was elated but emotionally cautious when he spoke to CBC News moments after the B.C. Supreme court decision late Friday.

"I have to stay calm. I can't cry again because I cry too much already" said Chen. "I have to be strong for my daughter."

A B.C. Supreme Court ruling last week gave Chen temporary custody of the little girl. The pair had a tearful reunion at Vancouver International Airport on Jan. 26.

The girl — whose name is being withheld by the CBC — met her father and older brother for the first time since she was three years old.

Chen's lawyer calls the latest B.C. Supreme Court decision awarding him permanent custody "precedent setting," and says it could influence similar legal cases involving future international child abductions.

Long legal battle

Lyndon Chen, 50, had been fighting for the child's return since 2011. That's when his ex-wife ran off with their son and daughter from their home in Taiwan.

She first fled to Hong Kong — where Chen was able to regain custody of his son.
But the mother then took their daughter to B.C.

Chen didn't give up. In his homeland of Taiwan, he fought a long legal battle for the return of the girl. Last year, a court there finally granted him sole custody of his daughter.

But Chen still had to find her in B.C.— and convince the courts here that the child should be returned to him.

Now B.C. Supreme Court Justice Nathan Smith has done just that.

'Wrongful removal of the child'

In his oral judgement, rendered late Friday, Judge Smith stated "it's clear to me there was wrongful removal of the child from Taiwan".

Complicating the case, however, was the fact that Taiwan's status as a country is disputed internationally, and as a result it's not a signatory to articles of the Hague Convention which govern parental child abductions.

For Judge Smith, however, the case revolved around an affidavit filed by the mother, Hsin-Chen Shu, also known as Sin-Chen Chang and Yun-Syuan Shu.

In her sworn statement, she didn't take issue with the Taiwanese court proceedings and admitted she had taken the child in violation of court orders there.

"Essentially the child was removed from Taiwan without the consent of one of the parents and she remains in B.C. in violation of a Taiwanese court order" said Judge Smith.

"There's no evidence before me that it would be contrary to public policy to respect the order of the Taiwanese court."

Judge Smith says Chen can soon return with the child to Taiwan.

Seven day delay

But there's a complication. The B.C. Supreme Court justice also delayed implementation of that order for seven days, to allow the ex-wife time to file an appeal, meaning the battle for the child may be far from over.

Still, Chen says he's willing to share his daughter.

"She can see her mother, she can talk to her mother whenever she wants … she can talk to her brother. I think that every child should have that chance."

Hsin-Chen Shu will be allowed to see her daughter for a few hours on weekends while they remain in Canada — but the courts have taken measures to ensure she doesn't once again flee with the child.

"(Her) passport has been surrendered and the child's passport has been surrendered" says Lyndon Chen's lawyer, Leena Yousefi. "(The) visitation will have to be supervised by somebody to ensure that the child is not taken away."

'Case sets precedents'

Yousefi also says the B.C. Supreme Court decision to honour a Taiwanese court order, breaks new ground.

"This case absolutely sets precedents for British Columbia and laws relating to non-Hague countries and … wrongful (child) removals."

Lyndon Chen is still trying to absorb the fact he finally has his daughter back in his life after five years.

"I can't believe it's true. It's (been) true in my dreams many times already, but I can't imagine it's true now."

Hsin-Chen Shu declined CBC requests for an interview.