Wednesday, March 04, 2015

Japan: Update Discriminatory Civil Code

Japan Times
3/4/15

The Supreme Court has decided to have its Grand Bench hand down judgments on whether two controversial provisions in the Civil Code are constitutional. One provision is requirement that a married couple must adopt the original surname of either the husband or the wife, and the other is a ban on women remarrying for six months after they divorce.

Cases are usually sent to the Grand Bench — composed of the top courts’ 15 justices — when a question of constitutionality or a change of a judicial precedent has to be dealt with. The two provisions have long been criticized as constituting sexual discrimination or running counter to equality under the law as guaranteed by the Constitution. The Supreme Court should hand down convincing decisions by fully taking into account societal changes concerning marriage today.

In one case, five men and women from Tokyo, Toyama and Kyoto have asked for a total of ¥6 million in state restitution over the same-surname requirement for a married couple, saying that the rule violates the Constitution’s guarantee of equality between the two sexes and the dignity of individuals. The Tokyo High Court upheld the constitutionality of the rule, as did the Tokyo District Court. The lower court had accepted, though, that one’s full name is among one’s personal rights.

In the other case, a woman in her 20s from Soja, Okayama Prefecture called for ¥1.65 million in damages from the state, claiming that she suffered mental anguish from the postponement of her remarriage in 2008 due to the six-month ban. The Okayama branch of the Hiroshima High Court supported the Okayama District Court’s ruling, which turned down her call on the ground that the ban’s purpose of preventing confusion in determining who is the father of a child born to a recently divorced woman is reasonable.

The same-surname requirement and the six-month remarriage ban have their roots in the Civil Code legislated in the Meiji Era, which placed emphasis on protecting the nation’s traditional family system that put members of a family under the strong control of a family head.

A married couple can use the wife’s maiden name, but in most cases the surname of the husband is used. Some people who want to keep their separate surnames opt for cohabitation even though it entails some legal disadvantages compared to marriage. Many working women continue to use their maiden names in their professional lives to avoid confusion. But they have to use their married surnames when signing official documents or open bank accounts. As for determining the father of a child, DNA tests have made the task straightforward.

In view of the Convention on the Elimination of All Forms of Discrimination against Women — adopted by the United Nations in 1979 and ratified by Japan in 1985 — as well as changes in Japanese society, the Legislative Council, an advisory body to the justice minister, submitted an outline for revising the Civil Code in 1996, recommending the introduction of a system under which wives and husbands can continue to use their own surnames if they choose and shortening the length of the period banning women’s remarriage after divorce from six months to 100 days. However, the Justice Ministry was unable to submit related legislation to the Diet due to opposition from conservative lawmakers, who said that changes to the rules undermine traditional family values.

Last June, the Science Council of Japan proposed the introduction of a selective surname system for married couples and the abolition of the six-month remarriage ban for women in order to help ensure gender equality. In September 2013, the Supreme Court ruled that the Civil Code’s provision halving an illegitimate child’s share in inheritance compared to that of a legitimate child was unconstitutional. Taking a cue from this precedent, the top court should not hesitate to rule that the two Civil Code provisions in question are unconstitutional and must be changed.

http://www.japantimes.co.jp/opinion/2015/03/04/editorials/update-discriminatory-civil-code/#.VPdbH_nF_fJ

Tuesday, March 03, 2015

Prenuptial agreements come to Israel

sdjewishworld.com /2015/03/02/prenuptial-agreements-come-to-israel/

By Anav Silverman

JERUSALEM — With more than 200 in attendance from both the Legal and Rabbinic worlds, Tzohar and The Israel Bar Association launched the new Prenuptial Agreement to protect and assist the future of Jewish marriage.

“It’s the first time that a large group of rabbis have come together and approved such an agreement,” Rabbi David Stav, Chairman of Tzohar, who recently ran for Ashkenazi Chief Rabbi of Israel, told Tazpit News Agency. The agreement, spearheaded by the Religious Zionist Rabbinic organization, gives the soon to be married couple an extra sense of security in the event of divorce, working to limit the distress and pain suffered by the refusal of giving or receiving a religious divorce, a Get. The agreement meets the requirements of Israeli law and policy according to the legal courts as well as Jewish law and halacha.

“We are dealing with a reality where between 30 to 40 percent of couples in Israel today get divorced,” said Rabbi Stav. That statistic has always been traditionally lower in Israel when compared to the United States, where the divorce rate is estimated around 50%, Russia at 60% and Belgium at 70%.

While other individuals and organizations have raised the issue, Tzohar is uniquely positioned to push it to widespread use and implementation according to the organization. With a vast network of Rabbis all over Israel and as one of the main facilitators of marriages in Israel, Tzohar’s reach and influence can change the perspective of newlyweds and help save families from the potential pain and devastation of chained marriages.

“No one deserves to stay chained in a terrible marriage, where often times the only way out is monetary payments,” added Rabbi Stav, who is the chief rabbi of Shoham. “This agreement can and should become the norm in Israeli society to ensure that the end of a marriage and separating from your partner be treated with respect and dignity.” “The response from the Israeli public has been very positive to this decision,” said Rabbi Stav. “We want the Israeli public to trust rabbis in their process of marrying and establishing families. We are here to give an answer to difficult situations that arise for couples.”

“If this agreement was available to me a few years ago, my life’s story would likely have been very different,” said Dorit Stern, who was refused a religious divorce for six years. “A person who is in this situation is stuck – can’t move on, can’t get married, can’t have children. The solution to this problem exists and I’m so glad that someone finally is standing up and working to do something about it.”

“It took us six years and 16 versions to finalize it,” said Rabbi Elisha Aviner from Ma’aleh Adumim. “We created an agreement where stage one is to try and save the marriage in the event that one of the parties wants to. Only after that process is explored is the decision to activate the terms of legally binding agreement decided upon. Our dream is that the agreement will never need to be used, but if it does, it should help provide for a fair process of separation.“

The Ashkenazi Chief Rabbi of Jerusalem, Rabbi Aryeh Stern also supports the agreement. “I wasn’t sure if I should take part in this initiative, but after checking and seeing what it is all about, I saw that it was the best way to prevent the situation of agunot,” said Rabbi Stern. “This is something very important for the Jewish family.”
“With the launch of this new historic agreement, we hope to make the lives of newlyweds better and more meaningful, so that if, God forbid, the marriage breaks up, it will be done in a fair and respectful manner,” concluded Rabbi Rafi Feuerstein, one of the founders of Tzohar.

Silverman is a staff writer for the Tazpit News Agency in Israel.

Monday, March 02, 2015

Kerry quizzed on child abductions to India

U.S. Secretary of State John Kerry faced sharp questions on Capitol Hill this week on international child abductions to India, with lawmakers asking him whether he had brought up the subject with Prime Minister Narendra Modi during his recent visit to New Delhi.

“Did you raise child abduction with an emphasis on specific cases, like Bindu Philips, when you met with [Mr.] Modi in early January? What was Mr. Modi’s response,” Republican Congressman Chris Smith of New Jersey asked, referring to a long-running abduction case here involving an Indian-American family.
An account of the hearing on Capitol Hill on Wednesday noted that Mr. Kerry replied that as a matter of course, he regularly raised cases of “missing Americans,” although he reportedly did not directly comment on the Philips case.

However, Mr. Kerry said: “We have a caseload of about a thousand international parental abduction cases, and we are trying to expand the Hague abduction convention to efforts throughout the world.” “We have approximately 75 professionals who are full-time, assisting parents with respect to this horrendous plight that they face,” he added.
International child abductions re-entered the spotlight a few months ago when President Barack Obama signed the Sean and David Goldman International Child Abduction Prevention and Return Act. The law authorises the State Department to take a series of calibrated measures against India or any other country that does not facilitate the prompt return of an American child held there. The focus of this debate on India was spurred on by cases such as that of Ms. Philips, who has won custody of her twin sons in U.S. courts, though the Indian justice system has not seen fit to send them back to the U.S. from the custody of her father, Sunil Jacob, who allegedly took them to India in 2008 during a bitter divorce.

In July last, another major case involving India was in the spotlight, when U.S. authorities arrested Padmashini Devi Drees as soon as she landed in the country after allegedly fleeing the U.S. in 2006 with her son, Drew Drees, after divorcing his father Dean Drees.
A few years ago, Congressman Smith had described India as “a source of immense frustration and grief for American parents” and said “Although Indian courts make Hague-like decisions to return some children, returns are at best uneven,” and parents attempting to utilise India’s courts for the return of abducted children reported corruption and incessant delays.

The State Department’s website highlights the fact that India is not party to the 1983 Hague Convention on the Civil Aspects of International Child Abduction and also not a U.S. Treaty Partner under the convention.
http://www.thehindu.com/news/kerry-quizzed-on-child-abductions-to-india/article6942102.ece

Friday, February 27, 2015

South Korea court says adultery law is unconstitutional

 South Korea’s Constitutional Court on Thursday struck down a controversial law outlawing adultery and threatening violators with jail.
 
It marked the fifth time in 25 years that the court had considered the constitutionality of a 1953 statute which made South Korea one of the few non-Muslim countries to regard marital infidelity a criminal act.
The statute was not a historical quirk that simply gathered legislative dust. In the past six years, close to 5,500 people have been formally arraigned on adultery charges — including nearly 900 in 2014.

But the numbers had been falling, and cases that result in prison terms were increasingly rare.
Whereas 216 people were jailed under the law in 2004, that figure had dropped to 42 by 2008, and since then only 22 have found themselves behind bars, according to figures from the state prosecution office.

The downward trend is partly a reflection of changing societal trends in a country where rapid modernization has frequently clashed with traditionally conservative norms.
In April last year, South Korea blocked the newly launched Korean version of the global adultery hook-up site Ashley Madison, saying it threatened family values.

Under the law, adultery could only be prosecuted on complaint from an injured party, and any case was closed if the plaintiff dropped the charge — a common occurrence which often involved a financial settlement.
The law was grounded in the belief that adultery challenges social order and damages families, but critics called it an outdated piece of legislation that represented state overreach into people’s private lives.

The debate over its future simmered for some time, bubbling over from time to time especially if a public figure fell foul of the statute.
Such was the case in 2008 when one of the country’s best-known actresses, Ok So-ri, was given an eight-month suspended sentence for adultery.

Ok had unsuccessfully petitioned the Constitutional Court, arguing that the law amounted to a violation of her human rights in the name of revenge.
The court had previously deliberated the issue in 1990, 1993 and 2001, and in each case dismissed the effort to have it repealed.

But the petitions came ever closer to securing the support of six members of the court’s nine-judge bench required to strike the statute down.
In 2008, five of the justices deemed the law to be unconstitutional, arguing that adultery could be condemned on moral grounds but not as a criminal act.

The law was originally designed to protect the rights of women at a time when marriage afforded them few legal rights, with most having no independent income and divorce carrying enormous social stigma.
“But it has long lost that relevance,” said Kim Jung-Beom, a lawyer and specialist on family law.

“For a start, the number of female ‘offenders’ has increased, and in some ways the law has become a way of naming and shaming women,” Kim said.
He also noted that other laws now provided women with greater legal security in their marriages, and a fair division of assets in the event of divorce.

Defenders of the statute said its loss would encourage sexual license, an argument which Kim said has “not a shred of evidence” in support.
http://www.japantimes.co.jp/news/2015/02/26/asia-pacific/crime-legal-asia-pacific/south-korea-court-to-rule-on-decriminalizing-adultery/#.VPCfKPnF_fI

Thursday, February 26, 2015

Poland's Violation of the Hague Abduction Convention

By
Jeremy D. Morley
 
A court in Ontario, Canada has declared that the interpretation and application of the Hague Abduction Convention by two Polish courts was dead wrong and "repugnant to the objectives of the Convention."
The order dated February 12th 2015 by Justice David Price of the Superior Court in Ontario in Nowacki v. Nowacki pulls no punches in taking grave exception to the Polish courts' serious misapplication of the grave risk exception to the obligation to return abducted children to their habitual residence.
The family lived in Ontario, Canada and had visited Poland in 2011 but the mother had since then improperly retained the child there. The father had brought a divorce and custody case in Ontario and the Ontario court had given temporary custody of the child to the father, and ordered the mother to return the child to Ontario "without prejudice to Ms. Nowacki's right to assert her own claim to custody of A in this court."
The father then brought a Hague case in Poland. 
The Polish court then took approximately 18 months to decide the case and denied the petition. It acknowledged that there had been a wrongful taking, that the child's place of habitual residence was Canada, and that the child's father was a good parent, stating that "it is beyond doubt that the child was looked after effectively by the two parents."  However, the court found that there was a "grave risk" to the child if he were returned to Canada because separation of the child from his mother would "disturb his feeling of safety and stable life," would be "unfavourable to the child's development" and "detrimental to the child's welfare."  A Polish regional appellate court then upheld that ruling.
The mother then asked the Canadian court to "respect" the Polish rulings by dropping its various court orders against her and dismissing the divorce (and custody) case. She claimed that her prior refusal to adhere to the Canadian court orders had been legitimized by the Polish decision.
Justice Price refused. He stated that the Polish rulings were dead wrong, insisting that "a decision that equates a risk of serious harm with returning A to Ontario where his father resides, is repugnant to the objectives of the Convention and to the objective it serves, namely the protection of all children who are at risk of international child abduction...the courts in Poland acknowledge that Mr. Nowacki was a good father and that he represents no risk of harm to A." 
Hence, there was no grave risk, as the grave risk exception is restricted to  "cases where conditions in the requesting country, with all the protections that its courts afford, would still leave the child at risk of severe harm."  The shared purpose of the Hague Convention was therefore ignored by Poland due to its lack of adherence to the terms of the Convention. 
The courts in Poland had muddled the line between a grave risk analysis and a best interests analysis, as well as giving priority to the mother's interests over that of the father's interests. Justice Price interestingly noted further that "the failure to engage in judge-to-judge communication in the present case was a lost opportunity for the courts of both nations." 
Accordingly Justice Price stated that, "for the court to permit her motion to proceed it would amount to a dereliction of its duty to A.  It would reward Ms. Nowacki's disregard of his best interests, including his right to have a relationship with both his parents." 
For these reasons, the mother's motion was dismissed, the divorce judgment was rendered final, and costs were awarded to her ex-husband. 
This case illustrates all too well how easy it is to misapply and sabotage the Hague Convention by failing to interpret the grave risk language narrowly.
It is also quite refreshing for a judge to employ direct language to criticize the courts of another country for violating their obligation to apply a treaty in accordance with its terms and fundamental purpose.

Friday, February 20, 2015

Expert Testimony in International Family Law Cases


Jeremy D. Morley

Expert testimony is frequently needed in international family law cases.
International family lawyers are frequently called upon to act as expert witnesses.

Such testimony is often secured in cases concerning international child abduction, particularly in cases in which one parent is seeking to prevent the other parent from having overseas visitation with the child or relocating with the child to another country. However it is also useful in a myriad of other cases.
Such testimony might concern:

-The factors that indicate that an individual is likely to commit an international child abduction;

-The degree of the risk of an international child abduction that is presented by an individual having specific risk factors; 

-The sufficiency of terms of a proposed custody order in preventing a potential international child abduction;

-The likelihood that a foreign country will return an abducted child;

-The lawyer's experience with and knowledge of a specific legal system;

-The division of foreign marital assets;

-The discovery of hidden marital assets; and

-The enforcement of foreign divorce and custody judgments.
Jeremy D. Morley has frequently appeared as an expert witness on international child abduction prevention, international child abduction recovery, international divorce jurisdiction and international family law.

Mr. Morley has submitted evidence as an expert in courts in the United States, Canada and Australia, in the form of testimony, affidavits or affirmations, as to such international family law matters as:

-The terms that should be in a custody order that will allow international visitation but will minimize the risk that the child may not be voluntarily returned;

-The family law system in Japan;

-The fact that particular left-behind parents would be unable to secure any meaningful assistance from the Japanese courts (many cases);

-The extent of Italy's compliance with its obligations under the Hague Convention;

-Whether certain actions committed by a parent constituted international parental child kidnapping within the meaning of the International Parental Kidnapping Crime Act;

-The rampant and scandalous misuse by many divorcing spouses ofIndia's so-called "anti-dowry law";

-The enforceability in the United States of a proposed English shared residency order;

-The unenforceability in New York of another proposed English residency order;

-Whether a particular divorce case should be heard in a U.S state instead of in England;

-Whether Japanese non-judicial divorces would be recognized in U.S. courts;

-The dangers, in terms of potential parental child abduction, of allowing children to visit certain specific countries, including Saudi Arabia, Jordan, Germany, Mexico, Malaysia, the UAE (Dubai), Taiwan, China, Japan and Bulgaria;

-Whether the issuance of multiple passports for a child will enhance the risk that the parent might abduct the child;

-The potential recognition in a U.S. state of an Iranian divorce; and

-Whether a parent had "rights of custody" within the meaning of the Hague Convention under the laws of a U.S. state.

Friday, February 13, 2015

English Divorce Jurisdiction: The Basics


In a case decided in 2014 Sir James Munby, the President of the Family Division of the High Court of Justice, provided the following extremely helpful and straightforward recitation of the basic legal principles that apply in England and Wales concerning divorce jurisdiction:
1.  In the circumstances, and bearing in mind in particular that this judgment will be read by many unfamiliar with our court system, I think it important to give a judgment more detailed in some respects than might otherwise be appropriate.

2.  By way of preliminary, I should explain that within the United Kingdom there are three separate legal systems. Scotland and Northern Ireland each has its own legal system. I am sitting as a judge of the courts of England and Wales (what for convenience I shall refer to as “the English court”) applying the law of England and Wales (what for convenience I shall refer to as “English law”). 

English law: divorce proceedings in the English court
3.  An application for divorce is made in the English court by an originating process called a petition. The person applying for divorce is called the petitioner; the other spouse is called the respondent. An order for divorce is called a decree. The first decree is called a decree nisi: it is a provisional order which does not itself terminate the marriage. The second decree is called a decree absolute: it is a final order which brings the marriage to an end.

4.  The first thing I must consider is the jurisdiction of the English court in matters of divorce. For reasons which will become apparent in due course, it is important to distinguish two different senses in which the word jurisdiction is used. The first, what I will call “jurisdiction to entertain the petition”, goes to the logically prior question of whether the English court has any jurisdiction at all to receive, hear and consider the petition. The other, what I will call “jurisdiction to grant a decree”, goes to the question of whether the English court, assuming that it has jurisdiction to entertain the petition, has jurisdiction to grant a decree of divorce. I will consider these in turn.

5.  Jurisdiction to entertain the petition is conferred by section 5(2) of the Domicile and Matrimonial Proceedings Act 1973:

“The court shall have jurisdiction to entertain proceedings for divorce … if (and only if)
                               (a)        the court has jurisdiction under the Council Regulation; or

(b)        no court of a Contracting State has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun.”
                               The Council Regulation is defined in section 5(1A) as meaning:

“Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility.”
6.  So far as is material for present purposes, Article 3 of the Council Regulation provides as follows:

“1        In matters relating to divorce … jurisdiction shall lie with the courts of the Member State
                             (a)        in whose territory:

          the spouses are habitually resident, or
          the spouses were last habitually resident, insofar as one of them still resides there, or
          the respondent is habitually resident, or
          in the event of a joint application, either of the spouses is habitually resident, or
          the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
          the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her “domicile” there;
(b)        of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the “domicile” of both spouses.
2                      For the purpose of this Regulation, “domicile” shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.”
In each of the cases before me jurisdiction was sought to be founded in accordance with, in most of the cases, the fifth or, in a small minority of the cases, the third limb of Article 3.1(a). So, in every case it was being asserted that either the applicant (the petitioner) or the respondent was habitually resident in England and Wales.
7.  Jurisdiction to grant a decree, assuming that the English court has jurisdiction to entertain the petition, depends upon section 1 of the Matrimonial Causes Act 1973, which so far as material for present purposes provides as follow:

“(1)      … a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.
(2)        The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say –
(a)        that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b)        that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c)        that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d)       that the parties of the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition … and the respondent consents to a decree being granted;
(e)        that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition … ”

Thursday, February 12, 2015

Child Abduction to Mexico

By Jeremy D. Morley
 
When children are abducted to Mexico by a parent who insists on retaining the child there, it is generally extremely difficult - and it is often impossible -- to secure their return. The difficulty is enhanced substantially if the taking parent has asserted that the other parent is abusive or has engaged in inappropriate conduct towards the parent or the child.
Mexico is the principal destination for international parental child abductions from the United States and it accounts for well over half of all the unresolved cases about which the State Department complains in its annual compliance reports.
The problems with abductions to Mexico are numerous.
The first problem is that it can be extremely difficult even to locate an abducted child in Mexico, and it is very easy for a taking parent to disappear with an abducted child. The law enforcement authorities in Mexico are often not helpful and their resources are stretched too thin.
The second problem is that there is no equivalent to the Uniform Child Custody Jurisdiction & Enforcement Act in Mexico. There is no process to register foreign custody orders there and no way to obtain a "mirror order" in Mexico that would oblige the Mexican courts to respect and enforce a foreign court order if a child were subsequently taken to Mexico.
The third problem is that Mexican courts do not effectively apply the Hague Convention on the Civil Aspects of International Child Abduction, which is the principal method of returning children abducted to Mexico.
The fourth problem is that there are extremely long delays in the resolution of Hague Convention cases in Mexico. Such delays are exacerbated by the availability of multiple applications and a special process for filing what is known as an "amparo" for separate review of concluded cases on constitutional grounds.
One parent testified before a committee of the House of Representatives that he, his wife and their son lived in the United States; his wife took the child to Mexico and kept him there; that he took urgent and extensive action to get his son back; and that three years later, after a multiplicity of litigation in Mexico, he was still embroiled in the courts there with no end in sight. Such stories are not unusual.
In one case an appeal court in Texas displayed little reluctance in telling some blunt truths about Mexico's consistent breach of its obligations under the Hague Convention, and consequently upheld a decision to require supervision of all visitation between a father and his son since there was a serious risk that the father might abduct the child to Mexico.

Tuesday, February 10, 2015

Mirror Orders to Help Prevent International Child Abduction


by

Jeremy D. Morley(1)

 
“Mirror” orders can be a useful tool in the arsenal of lawyers who handle cases concerning international child travel and the prevention of potential international child abduction.
 
Increasingly courts are being asked to enjoin parents from taking children overseas because of a parent’s fear that the children will not be returned. Courts must take such applications extremely seriously, especially if a child is likely to be taken to a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, or that does not return children promptly to their habitual residence. On the other hand it is also well-recognized that children have an interest in seeing the world and that children with a foreign parent should be encouraged to learn of their overseas heritage and to get to know their distant family.

A potentially left-behind parent’s application for an injunction is usually supported by: (a) Expert testimony as to the practices and laws concerning international child abduction and international child custody in the country to which the child may be taken (2); (b) Expert testimony as to the "red flags" or "risk factors" that research establishes are the indicia that a particular parent might indeed abduct his or child; and (c) Lay testimony as to any facts that establish the existence of any and all such risk factors.

In such cases, a judge will invariably ask a basic question: "What conditions can I include in my order that will minimize the risk that the child will be returned?" Unfortunately, the true answer is often "None" -- as evidenced by the epidemic of “successful” abductions to countries such as Japan, frequently in flagrant violation of court orders.

However, in many cases, a useful suggestion is that the order should require the taking parent to obtain a "mirror order" from a court in the foreign jurisdiction before being allowed to take the child overseas.

A mirror order is one that is issued by another court which contains the same terms as those that are contained in the order that is being mirrored. Inherent in the mirror order concept is the fact that the foreign court shall have the right -- and more importantly the obligation -- to enforce the terms contained in the order, specifically including the obligation to effectuate the prompt return of the child at the end of a designated period of time. Equally critical is that the foreign court should not be permitted to modify the original order.

The viability of such a requirement varies substantially from country to country. Thus a very recent decision of the Supreme Court of India makes it clear that the courts in India will not allow mirror orders to be entered in child custody matters and that they will always conduct a full plenary review of the child's best interests (which invariably equate to a decision that the child -- who, by the time of the ultimate decision has typically been in India for some years -- should remain in India). (3)
 
It is also obvious that a court in Japan, even in the utterly unlikely event that it were to issue a mirror order, would not enforce the terms of any such order since its family law system is toothless and its orders are invariably not enforced. (4)

By contrast, a country such as Australia has a custody registration system that operates in a very similar way to the system of registration of foreign custody orders in the Uniform Child Custody Jurisdiction & Enforcement Act. However, Australia is very much the exception rather than the rule. The European Union has a registration system but it applies only to orders issued by an E.U. court and the practice within Europe varies substantially from country to country.


Indeed, foreign lawyers are generally shocked and amazed when they learn of the registration provisions in the UCCJEA. In particular, they are often shocked that a U.S. court will generally have exclusive continuing jurisdiction for many years after a child has left the jurisdiction as long as one parent continues to live there.


The issue was recently before the Court of Appeal in England. (5)  Since that Court is headed by a judge who is also that country's "Head of International Family Law" its decisions on such issues are far less like to be parochial than similar rulings from some courts in the United States and many other countries.

In the English case, the child was living in Malaysia. A Malaysian court gave custody to the father, an English national, and contact to the mother "at reasonable times". The father then asked an English court for a mirror order so that he could apply for a British passport for the child. However, the English court not only issued a mirror order but it also granted the mother’s application to reopen the entire case. On appeal, the English Court of Appeal ruled that the trial court has been right to issue the mirror order but wrong to claim any broader jurisdiction. It made clear that a litigant who seeks a mirror order does not accept the jurisdiction of the court to do any more than reiterate the provisions of the order issues by the primary jurisdiction. By definition, an application for a mirror order cannot supplant the primary jurisdiction. The Court ruled that if the mother wished to challenge the order or seek specific contact she should apply in Malaysia.

Lawyers bringing applications to enjoin children's foreign travel, and lawyers opposing such applications, need to tailor their presentations and their proposals to the specific laws, procedures, customs and practices concerning international family law, international child custody and international child abduction of the specific country or countries that the child is to visit or may be taken to. (6)

Thus, it is important to understand that merely because an American court conditions an event upon a foreign mirror order, the foreign court might not have jurisdiction to issue any such order. That situation arose in Danaipour v. McLarey (7) in which a district court in Massachusetts acted on the mistaken assumption that a Swedish court would provide a stipulated mirror order but in fact the Swedish court refused to do so.

Another critical factor is that once a child is taken into a foreign country it may be extremely difficult to bring a child home because of the stringent exit controls that many countries have that require the written consent of both parents or a sole custody order to remove a child. This is particularly the case with South American countries. Even if a U.S. court issues the requisite order it may have no effect in a foreign country or, even if ultimately effective, the lack of a local court order might cause significant border delays.

Some examples of issues that have arisen in my office concerning mirror orders are the following:

                        -A client was legitimately worried that a child would be retained in Bermuda if the father took him to visit his family there. Upon our advice, the client negotiated a strong New York consent order that specified that New York had continuing exclusive jurisdiction, that contained a host of other protective clauses and that permitted a visit to Bermuda only if a mirror order were first obtained. Subsequently, the father asserted that he had been unable to obtain the requisite mirror order from the Bermudan courts. As a result the Family Court authorized a visit without the mirror order. We successfully obtained from the Appellate Division, First Department an emergency order barring the scheduled visit.

                        -Our client settled an action under the Hague Abduction Convention by agreeing to limited and supervised visitation between the father and the child in Quebec, Canada, conditioned on the child’s prompt return to New York. We insisted that a mirror order be obtained from the Quebec courts before any visit could occur. Again, the father reported difficulty on obtaining the required order, which led to a delay in the scheduled visitation. Only when the mirror order was in place did visitation in Canada successfully occur.

                        -In many cases I have suggested, as part of my written expert evidence or expert trial testimony, that a mirror agreement would be futile because the family law system of the foreign country could not be relied on to enforce the mirror order. For example, I recently so testified as to China.

                        -In other cases I have testified that a mirror order might be a good idea because it would provide useful additional security for the prompt return of the child if the parent taking the child for an overseas visit were to keep the child overseas and because the family law system in such country is reliable and effective (e.g. I have so testified as to Italy and Hong Kong).

In conclusion, mirror agreement requirements may be useful depending on the circumstances. But they may also be counter-productive if they induce a false sense of security. They should never be requested or opposed except by counsel having full knowledge and understanding of international family law.

(1). Jeremy D. Morley concentrates on international family law. He may be reached at 212-372-3425. He is the author of the treatise, International Family Law Practice. His websites are www.international-divorce.com and www.internationalprenuptials.com. His blog is www.international familylawfirm.com.
(2).  Thus the author has provided such evidence as to many such countries including India, Japan, Colombia, China, Taiwan, Egypt, Italy, Hungary, Saudi Arabia, Mexico, Venezuela, the United Arab Emirates, Jordan and Mexico.
(3). Majoo v. Majoo, [2011] INSC 515.
(4).  http://www.international-divorce.com/Japan-Child-Abduction-police-hurt.htm
(5).  W v W (Minor) (Mirror Order) [2011] EWCA CIV 703.
(6).  An example of a critical factor that is often overlooked is that a visit to one country may permit an easy visit to another country. Thus, once a child is in any European country that is within the "Schengen Zone" the child may be taken to any other such country without passing through any passport control.
(7).  286 F.3d 1 (1st Cir. 2002).

Tuesday, February 03, 2015

Child Custody Jurisdiction in Canada


Jeremy D. Morley[1]
 
Jurisdiction to handle child custody matters, which are referred to in some Canadian provinces (British Columbia and Alberta) as “parenting” or “parentage” matters or as guardianship matters (e.g. Saskatchewan), rests in part on the Canadian federal law and in part on provincial law.

 
A.    Canadian Federal Law.
 
The Divorce Act of Canada regulates the initiation of divorce cases in all provincial courts throughout Canada.

If a case for divorce is properly brought in a Canadian provincial court, the Act contains provisions allowing child custody issues to be determined within the divorce case.

Thus, the starting point for such custody jurisdiction is whether the parties are married and whether a divorce case can be initiated. Section 3 of the Act provides that 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.”

Section 4 of the Act provides that such court then has jurisdiction to deal with “corollary” matters --which are expressly defined in Section 2 of the Act to include “custody” matters -- provided that either spouse “is ordinarily resident in the province at the commencement of the proceeding” or both spouses accept the jurisdiction of the court.

Section 20 of the Act provides that Divorce Act orders have effect throughout Canada and may be registered in the court of any province and be enforced as an order of that court.

B.     Laws of Canadian Provinces

 If the parents are not engaged in a divorce case in which child custody is also an issue, a parent can initiate a case for child custody under the statutory or common law of a Canadian province.
 
a.      Common law

At common law, Canadian provincial courts had custody jurisdiction if the child was present, resident, or domiciled in the jurisdiction at the time proceedings were commenced. Most Canadian provinces have enacted legislation that defines custody jurisdiction in place of the common law principles. However, some provinces have not enacted such a law and they continues to apply the common law rules. See e.g. Detcheverry v. Herritt, 2013 NSSC 315.
 
b.      Parens Patriae
 
Canadian courts also have “parens patriae” jurisdiction, under which the sovereign authority is understood to have an inherent and overriding power to take actions necessary to protect children. For example, in one case a court in Ontario accepted jurisdiction over children in Saudi Arabia who had previously lived in Toronto, had then moved to Saudi Arabia, whose mother had returned to Canada with only one child and had been left in Saudi Arabia where there was no evidence that the courts would protect them. Johnson v. Athimootil, 2007 CanLII 41434 (ON SC).

Generally, in order to exercise parens patriae jurisdiction, there must be a legislative gap which requires the Court to exercise its discretion. Beson v Director of Child Welfare, [1982]2 SCR 716; RR v Alberta (Child Welfare Appeal Panel), 2000 AB QB 1018, 267 AR 249. Parens patriae cannot override express statutory authority: JU v Alberta (Regional Director of Child Welfare), 2001 AB CA 125 at para 7, 281 AR 396.

c.       Ontario 

 In Ontario, the rules are contained in Sections 22 and 23 of the Children’s Law Reform Act. Those provisions are as follows:
 
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.”
                                                  R.S.O. 1990, c. C.12, 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.
 
Abduction

(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.

Serious harm to child

23.  Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i) the child remains in the custody of the person legally entitled to custody of the child,

(ii) the child is returned to the custody of the person legally entitled to custody of the child, or

(iii) the child is removed from Ontario.”
 
d.      Quebec

In Quebec the Civil Code provides that, “The Québec authorities have jurisdiction to decide as to the custody of a child provided he is domiciled in Québec.” Civil Code, Article 3142. Article 75 of the Code provides that The domicile of a person, for the exercise of his civil rights, is at the place of his principal establishment.”
Article76 provides that, to change domicile, a person must actually reside in another place and must have the intention to make it the seat of his or her principal establishment. The proof of such intention results from the declarations of the person and from the circumstances of the case. Section 77 provides that “The residence of a person is the place where he ordinarily resides; if a person has more than one residence, his principal residence is considered in establishing his domicile.”

Articvle 80 of the Code provides that, “ Article 80 of the Code provides that, “An unemancipated minor is domiciled with his tutor. Where the father and mother exercise the tutorship but have no common domicile, the minor is presumed to be domiciled with the parent with whom he usually resides unless the court has fixed the domicile of the child elsewhere.”
The Code also provides that, “Even though a Québec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide.” Civil Code, Article 3135.

               e.  Saskatchewan

The jurisdictional rules in Saskatchewan concerning child custody mirror those in Ontario in most – but not all -- respects. Section 15, Saskatchewan Children’s Law Act, 1997.
 
One important exception is that custody jurisdiction in Saskatchewan can be based solely upon the parties’ having consented to it. (Section 15 (c).

In addition, while Saskatchewan’s definition of habitual residence is the same as Ontario’s, the Saskatchewan law provides that if the child’s habitual residence cannot be determined pursuant to the regular provisions, the child is to be considered as habitually resident in “the jurisdiction with which the child has the closest connection.”
                  f.  New Brunswick    
    
The jurisdictional rules in New Brunswick concerning child custody mirror those in Ontario (Family Services Act, Section 130).

                  g.  Nova Scotia

Nova Scotia has not enacted any law that specifies the terms under which it may assert child custody jurisdiction, except that Section 32A of the Judicature Act simply authorizes the Supreme Court (Family Division) to exercise jurisdiction in relation to custody and access to children and parens patriae jurisdiction. 

Accordingly, the general common law rules apply in Nova Scotia.  Detcheverry v. Herritt, supra. 

                  h.  Alberta

Alberta has not enacted any law that specifies the terms under which it may assert child custody (parenting) jurisdiction. 

Accordingly, the general common law rules apply in Alberta. M. (L.C.) v. S. (P. N.) (2008), [2009] 1 W.W.R. 299, 2008 ABQB 459.

                  iBritish Columbia

Section 74 of the Family Law Act of British Columbia contains rules concerning jurisdiction in parenting matters that parallel those that are provided by the Ontario statute (though with some language variations). 

                  jManitoba

Manitoba has not enacted any law that specifies the terms under which it may assert child custody (parenting) jurisdiction.

Accordingly, the general common law rules apply in Manitoba.

                  k.  Prince Edward Island

The jurisdictional rules in Prince Edward Island concerning child custody mirror those in Ontario (Children’s Law Act, Section 12).
 
                  l.  Newfoundland and Labrador

The jurisdictional rules in Newfoundland and Labrador concerning child custody mirror those in Ontario (Custody Jurisdiction and Enforcement Act, Section 28). 
 


[1] Jeremy Morley, a New York lawyer, taught private international law at the University of New Brunswick, Canada Faculty of Law. He handles many international family law issues that have a Canadian connection, always working with local counsel in Canada as appropriate.