Liu v. Zhao

2024 BCSC 1744 Liu v. Zhao

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Liu v. Zhao, 2024 BCSC 1744 Date: 20240920 Docket: E211707 Registry: Vancouver Between: Yunshan Liu Claimant And Siqin Zhao Respondent Corrected Judgment: The text of the judgment was corrected on the cover page on October 17, 2024 Before: The Honourable Madam Justice W.A. Baker Reasons for Judgment Counsel for Claimant: A. Wormeli Counsel for Respondent: B. Desruisseaux A. Kwok, Articled Student Place and Date of Hearing: Vancouver, B.C. September 3-5, 2024 Place and Date of Judgment: Vancouver, B.C. September 20, 2024 Introduction [1] In this family law proceeding, the claimant Ms. Liu resides in Vancouver, B.C. and the respondent, Mr. Zhao, resides in China. They have one child, Zhao Hanyu, who has been living with the claimant in Vancouver since June 5, 2023. Both parties are Chinese citizens, and permanent residents of Canada. [2] In this application, the respondent seeks a return of the child to China, pursuant to s. 77 of the Family Law Act, S.B.C. 2011, c. 25 [FLA], together with various related declarations. The claimant opposes the application and makes her own application for a stay of the respondent's application pending the final appeal or review of certain orders made in China. [3] Prior to the hearing of this application, the claimant was waiting to receive a decision of an appeal she filed in China. That appeal

decision was rendered on August 30, 2024, the Friday before the hearing of this application. On Tuesday September 3, 2024, the first business day following the long weekend, the claimant submitted an opinion from a lawyer in China with respect to the availability of a further appeal, and the intention of the claimant to file such a further appeal. The respondent provided me with a translation of the appeal decision and indicated that he had not had a chance to receive his own opinion with respect to the process of a further review in China. [4] Given the uncertainties with respect to the outstanding process in China, and the overlap in the facts relevant to the two applications, I decided that I would proceed to hear both applications, and deal with them together in these reasons. I gave the respondent leave to file, during the course of the hearing, any further opinion in relation to the August 30, 2024 decision. Background facts [5] The parties met in Vancouver in January 2018 when the claimant was visiting friends. They began a relationship. The respondent travelled several times to visit the claimant in China, and the claimant visited him in Vancouver. In September 2018, the claimant became pregnant, and the couple began living together in Vancouver in November 2018. [6] They were married on February 2, 2019 in Vancouver. The respondent's family wanted the child to be born

in China so that he would have a Chinese passport. As a result, the claimant travelled to China in March 2019 and gave birth to their child on May 29, 2019. She stayed in China until November 2019, at which point she and the child returned to Canada. The respondent sponsored his child's immigration application to Canada. [7] In January 2021, the claimant and the child returned to China so that she could complete her PhD. The claimant commenced divorce proceedings in China in August 2021, seeking orders for divorce, parenting, child support and division of family property. She also filed a notice of family claim in B.C. in July 2019 seeking orders for divorce and division of family property. [8] The claimant returned to Canada in June 2023. She says that she did not intend to stay in China as long as she did. She says that she was unable to return to Canada for a number of reasons, none of which are material to the issues I have determined. Facts regarding the legal proceedings in China [9] On January 24, 2022, the Futian District People's Court of Shenzhen City, Guangdong Province, China issued judgment in the family proceedings filed by the claimant in August 2021. In that judgment, the following orders relevant to this application were made: 2. The legitimate son Zhao Hanyu is to be raised by the plaintiff Liu Yunshan 3. The defendant Zhao Siqin can visit the legitimate son

Zhao Hanyu once a week, one day at a time. The defendant Zhao Siqin can live with his son Zhao Hanyu for 7 days from the second day of his winter vacation and 15 days from the second day of his summer vacation. When the defendant is living with his son Zhao Hanyu, it is not necessary for the plaintiff Liu Yunshan to be around. The specific visit time, place and method shall be negotiated between the plaintiff Liu Yunshan and the defendant Zhao Siqin. The plaintiff Liu Yunshan is obliged to assist the defendant Zhao Siqin in his visit. [10] On July 20, 2023, the respondent applied to the same court requesting the execution of his visitation rights. On October 13, 2023, the same court issued a Paper of Execution Ruling in response to the respondent's application (the "Execution Decision") [1]. The court made the following findings relevant to this application: In the course of execution, the court contacted the person subjected to execution, Liu Yunshan, who indicated that she had brought her legitimate son, Zhao Hanyu, to live in Canada and had no plans to return to China in the near future. The court has included the person subjected to execution, Liu Yunshan, in the list of dishonest persons subjected to execution and restricted her high consumption in respect of her refusal to perform effective legal document. The court believes that the matter applied for execution in this

case is the obligation to perform the act of exercising the visitation right, and the content of the performance of the act has irreplaceable characteristics. Now because the person subjected to execution is staying abroad with the child, the conditions for compulsory execution are not available for the time being, and this execution procedure cannot continue and can be terminated. The condition for continuing execution must be met before restarting. During the termination of this execution procedure, the execution applicant has the right to continue requiring the person subjected to execution to fulfill her obligations, and the person subjected to execution has the obligation to continue fulfilling her obligations to the execution applicant. This execution procedure is terminated. When the execution applicant finds that the conditions for compulsory execution have been fulfilled, he may apply for execution again. [11] On November 5, 2023, the claimant submitted a petition challenging the finding that she prevented the respondent from visiting the child. On December 8, 2023, the court issued a Decision of Enforcement. The court held: In summary, the court finds that, in light of the circumstances of this case, it can be concluded that the person subject to enforcement, Liu Yunshan, has failed to fulfill her obligation to cooperate as specified in the judgment, which has

objectively resulted in the failure to realistically and effectively realize the right of visitation in this case. In order to induce the person subject to enforcement to consciously fulfill the obligations determined by the effective legal instrument, the court issued (2023) Y. 0304 Z. No. 25031 Decision of Enforcement on October 13, 2023 to include Liu Yunshan in the list of persons subject to enforcement for dishonesty, and the treatment was not improper. The applicant Liu Yunshan's petition for revoking the decision on her inclusion in the list of persons subject to enforcement for dishonesty has no factual and legal basis, and the court does not support it. The court rejects applicant Liu Yunshan's petition for revoking the decision to include her in the list of persons subject to enforcement for dishonesty. [12] The claimant then applied to the Shenzhen Intermediate People's Court of Guangdong for reconsideration of the Execution Decision, and the November 5, 2023, Decision of Enforcement, requesting the annulment of both decisions. [13] On August 30, 2024, the decision of the Shenzhen Intermediate People's Court of Guangdong was rendered ("Reconsideration Decision"). The court held: Upon review, this court holds that according to Article 12 of the "Provisions of the Supreme People's Court on the Publication of Information on the List of Dishonest Persons Subject to

Enforcement", if a citizen, legal person, or other organization applies for correction after being included in the list of dishonest persons subject to enforcement and their reasons are found to be unsubstantiated, the enforcement court shall decide to reject the application. If dissatisfied with the rejection, they may apply for reconsideration to the higher people's court. Moreover, a legally effective civil judgment is the basis for enforcement by the people's court, and The Court must strictly and fully enforce the judgment according to its contents. The effective enforcement basis in this case, Civil Judgment No. (2021) Yue 0304 Minchu 47087, ordered that "the specific visitation time, place, and manner shall be negotiated between the plaintiff, Liu Yunshan, and the defendant, Zhao Siqin, and the plaintiff, Liu Yunshan, is obligated to assist with the defendant, Zhao Siqin's, visitation." In this case, the reconsideration applicant, Liu Yunshan, did not provide sufficient evidence to prove that they had fulfilled the obligation to assist with the applicant's visitation rights, which constitutes a refusal to comply with the effective legal document. The enforcement court's corresponding compulsory enforcement measures were therefore appropriate. The reconsideration applicant, Liu Yunshan, impeded the genuine and effective realization of visitation rights in this case. This

was adequately and appropriately addressed in Execution Decision No. (2023) Yue 0304 Zhi 25031-1, which this court confirms and will not elaborate further. The reconsideration request of Liu Yunshan lacks factual and legal grounds and is not supported by this court. The Futian Court's Execution Decision No. (2023) Yue 0304 Zhi 25031-1 was legally sound and properly handled, and this court upholds it in accordance with the law. The reconsideration application of Liu Yunshan is rejected, and the Execution Decision No. (2023) Yue 0304 Zhi 25031-1 of the People's Court of Futian District, Shenzhen, is upheld. [14] Upon receiving the Reconsideration Decision on the Friday before the application before me, the claimant obtained an opinion with respect to filing an appeal of the Reconsideration Decision. This opinion provides that the claimant may appeal to the High People's Court of Guangdong Province. The Claimant affirms that it is her intention to file such an appeal, which she will do within approximately one month. [15] The respondent obtained his own opinion, and his expert states that there is no further right of appeal, per se. However, there is a complaint process by which the claimant may adduce new evidence, and such evidence must be crucial to overturning the reconsideration, otherwise it is unlikely to alter the result of the reconsideration. [16] It is not for me to

comment on the likely success of the claimant's appeal, or complaint, or further process to address the result of the Reconsideration Decision which she finds to be unacceptable. Suffice it to say, it appears there is some further process available to her, and she intends to pursue it. [17] On June 4, 2024, the respondent filed a Civil Complaint with the Chinese court to seek custody of the child. No decision in this respect had been made as of the date of the hearing. Issues [18] At the beginning of the hearing, I heard the claimant's application for a stay pending the outcome of the further proceeding in China. This was originally styled as a stay pending the outcome of the reconsideration hearing. However, given the Reconsideration Decision was issued on the Friday before argument started, the claimant had not yet commenced any further process, although stating her intention to do so. [19] The respondent argued that regardless of the outcome of the proceeding in China, he had additional arguments that would support an order pursuant to s. 77 of the FLA, and no stay should issue. [20] It was clear that the facts and the issues on the two applications were completely intertwined. As such, I determined I would hear both applications, and my decision would address both. [21] Having now heard both applications, I am satisfied that the respondent cannot succeed on his application

and given this result, it is not necessary to issue a stay as requested by the claimant. [22] This application raises the following issues: a) Should the orders made in China in relation to the child be recognized in B.C.? b) Does the B.C. court have jurisdiction over issues relating to the child? c) Is there an order issued by a Chinese court which would require the return of the child to China? d) Should I exercise my discretion to order the return of the child to China? Should the orders made in China in relation to the child be recognized in B.C.? [23] In the January 24, 2022, judgment, when reviewing issues related to the child, the court held: About child custody. The court held that in hearing divorce cases, the people's court should properly solve the problem of child rearing in accordance with the relevant provisions of the civil code of the People's Republic of China, starting from the benefits to the physical and mental health of children and the protection of the legitimate rights and interests of children, and in combination with the specific conditions such as the rearing ability and conditions of both parents. Combined with the facts of this case, the plaintiff requested to directly raise the legitimate son Zhao Hanyu in the hearing, and the defendant clearly agreed to let the plaintiff raise the legitimate son Zhao Hanyu in court. After the hearing, the two

parties could not reach an agreement on the ownership of the custody of the legitimate son. With the divorce of the plaintiff and the defendant, the two parties would inevitably be unable to live together and raise their child together. Considering the specific conditions of the plaintiff and the defendant and the court statements of both parties, the court decided that the legitimate son Zhao Hanyu should be raised by the plaintiff. About the right to visit. The relationship between parents and children is not dissolved due to divorce. But due to the existence of divorce, parents cannot raise children together, and minor children or children who cannot live independently can only be raised directly by one of their parents. Parents have equal rights in raising their children after divorce. After parents' divorce, the children live together with the father or the mother, which is only a change in the form of parental support for the children and does not affect the rights and obligations of parents to their children. The father or mother who does not live with the children still has parental rights over the children. The party who does not directly raise the children has the right to visit the children, and the party who directly raises the children has the obligation to let the party who does not directly raise the children visit the children. Visiting can meet the emotional

needs of parents for their children's care, upbringing and education, enhance the communication between parents and children, reduce the sense of family fragmentation of children, and is conducive to the healthy growth of children. Therefore, the court supports the defendant's request to confirm the right to visit the legitimate child. The court determined that the defendant could visit the legitimate child once a week, one day each time. Due to the short winter vacation and long summer vacation, the court decided that from the second day of the legitimate child's winter vacation and summer vacation, the defendant and the legitimate child will live together for 7 days in winter vacation and 15 days in summer vacation. The specific visit time, place and method shall be negotiated by the plaintiff and the defendant, and the plaintiff is obliged to assist the defendant in his visit. [24] Having set out these reasons for decision, the court then made the specific orders awarding custody of the child to the claimant, and setting the respondent's visitation rights and the claimant's obligations in relation to such visitation rights. [25] The respondent seeks recognition of the orders made by the Chinese court on January 24, 2022. The orders made by the court address a number of issues which were not before me on this application. I will only consider whether the orders made in

relation to custody and visitation ought to be recognized pursuant to s. 75 of the FLA. [26] Section 75 of the FLA states: Recognition of extraprovincial orders 75 (1) A court must recognize an extraprovincial order if all of the following apply: (a) the extraprovincial tribunal would have had jurisdiction to make the order under the rules that are applicable in British Columbia; (b) each party to a proceeding in which the extraprovincial order was made had (i) reasonable notice that the order would be made, and (ii) a reasonable opportunity to be heard respecting the order; (c) the extraprovincial tribunal was required by law to consider the best interests of the child; (d) it would not be contrary to public policy in British Columbia to recognize the order. [27] I am satisfied that the Chinese court has jurisdiction to make the orders in relation to custody and visitation, and that both parties were aware of and participated in the proceedings in China. Based on the reasons of the court, I am satisfied that the Chinese court was required to consider the best interests of the child. Finally, I find that it is not contrary to public policy in B.C. to recognize these orders. [28] I recognize the January 24, 2022, orders made by the Futian District People's Court of Shenzhen City, Guangdong Province, China, to the effect that: a) The claimant Yunshan Liu has sole custody of the

child Zhao Hanyu. b) The respondent Siqin Zhao is entitled to visit the child Zhao Hanyu one day each week, 7 days in winter vacation and 15 days in summer vacation, with the specific visit time, place, and method of the visits to be negotiated between the parties. The claimant Yunshan Liu must assist the respondent Siqin Zhao in realizing his visitation rights. Does the B.C. court have jurisdiction over issues relating to the child? [29] Both parties submit that China should retain jurisdiction over the child, and neither party is seeking to have the B.C. court assert jurisdiction over the child. [30] I have considered whether it would be appropriate to exercise my jurisdiction pursuant to s. 74 of the FLA. Section 74 permits the court to exercise jurisdiction under Part 4 of the FLA if certain conditions are met. Given that the parties accept the jurisdiction of China in relation to parenting issues, and the Chinese court has made orders with respect to custody and parenting which both parents accept, I find that matters relating to the child are more appropriately exercised by the Chinese courts, and I decline to exercise jurisdiction over matters relating to the child. [31] Although the respondent seeks a declaration that the child is habitually resident in China, I am not persuaded that such a declaration is relevant given my decision to decline to exercise jurisdiction

over matters relating to the child. Is there an order issued by a Chinese court which would require the return of the child to China? [32] In China, the court ordered that the claimant would raise the child. The parties referred to this order as an order for custody, and I agree that is the equivalent order if it had been made in British Columbia. The respondent has visitation rights but not custodial rights. [33] Both parties obtained legal opinions on the relevant law in China and the effect of the orders made by the Chinese court. Neither party challenged the qualifications of the lawyers who prepared the opinions. [34] The claimant obtained a number of opinions. In the first opinion rendered in June 2023 by Wu Ruanxia, a lawyer with the Henan Xundi law firm, the expert states, in part: After the divorce, one of the parents with custody rights has the right to independently determine the specific place for where minor children live and study of minor children [sic], without the need to apply to Chinese courts or other Chinese government management departments. After the divorce, in case of any change in the place where minor children live or study, the party with custody rights only needs to inform the party with visitation rights and does not need to seek the consent from the party with visitation rights. Parents with custody rights who bring their minor children to live

and study in other cities or countries do not violate Chinese laws and regulations, nor do they need to apply to Chinese courts. [35] In the opinion of Wu Ruanxia rendered in August 2023, the expert states, in part: Chinese citizens are entitled to personal freedom under the law, and the party granted custody following a divorce holds the prerogative to independently determine the specific residence and educational environment for minor children. Article 1068 of the Civil Code of the People's Republic of China does not impose restrictions on the location where visitation rights can be exercised. Hence, the aforementioned judgment's text also refrains from limiting the geographic scope for Siqin Zhao's exercise of visitation rights and Yunshan Liu's fulfillment of assistance obligations. Instead, the matter was subject to negotiation between both parties. [36] The respondent obtained an opinion from Guofang Wu, a lawyer with Hunan Boda Law Firm in August 2023 and July 2024. In the opinion of Guofang Wu dated July 18, 2024, the expert states, in part: The laws of the People's Republic of China do not explicitly stipulate that a parent with custody rights must obtain the consent of the other parent to change the child's habitual residence. However, changing the child's habitual residence must not interfere with the other parent's right of visitation. Therefore, although Liu

Yunshan's relocation of Zhao Hanyu does not violate the laws of the People's Republic of China, Liu Yunshan's relocation, which results in the Zhao Siqin [sic] being unable to carry out court-ordered visitation, constitutes an illegal act. Liu Yuanshan has already been subjected to enforcement measures by the People's Republic of China court. Once Liu Yunshan and Zhao Hanyu enter the territory of the People's Republic of China, the court can compel them to temporarily live together to ensure visitation rights. Zhao Siqin has now filed a lawsuit with the Shenzhen Longhua District People's Court of the People's Republic of China, requesting a change in Zhao Hanyu's custody. If the Shenzhen Longhua District People's Court of the People's Republic of China rules that Zhao Hanyu's custody should be transferred to Zhao Siqin, the court will compel Liu Yuanshan to bring Zhao Hanyu to live with Zhao Siqin permanently in the People's Republic of China. [37] The opinion of Guofang Wu also summarizes the restrictions on the claimant arising from her inclusion on the list of dishonest persons subject to enforcement. These include a prohibition on the claimant travelling by airplane or purchasing air tickets, restrictions on her exit from the country, and potential criminal liability if she fails to comply with the terms of the enforcement order. [38] On July 28, 2024, Guanghao Fan, a

lawyer with Hebei Jihua Law Firm, provided a responsive opinion to the opinion of Guofang Wu described above, which states, in part: Article 68: For individuals or organizations that refuse to assist the other party in exercising the right of visitation, the People's Court may take compulsory measures such as detention and fines in accordance with the law, but cannot enforce the personal behaviour and visitation of children. [39] The opinions which I have not referenced were not helpful to me in analyzing the issues before me. As a result, although I did read them, I have not referenced them in my decision. [40] There are factual disputes between the parties as to whether either of them withheld the child from the other at various points in time before the claimant moved to Canada on June 5, 2023. The issues between the parties as to whether the claimant has properly complied with the visitation order is a live issue before the Chinese courts, as is the enforcement of such decision. [41] There is no dispute that the claimant has custody of the child, and that she is entitled at law to relocate the child anywhere in the world without the consent of the respondent, who has visitation rights but no custodial rights. As stated by Guofang Wu, an expert retained by the respondent, "Liu Yunshan's relocation of Zhao Hanyu does not violate the laws of the People's Republic of

China". [42] Guofang Wu also opines that "Liu Yuanshan's relocation, which results in the Zhao Siqin [sic] being unable to carry out court-ordered visitation, constitutes an illegal act." I do not accept that this opinion reflects the language of the various enforcement decisions. However, to the extent the claimant has been found in breach of her obligations, what is relevant on this application is the remedy awarded by the court in respect of her breach, namely her entry onto the list of dishonest persons. [43] It is clear from the decisions made in China, and the opinions tendered, that there is no existing order for the return of the child or the claimant to China. The only enforcement decision against the claimant orders her entry onto a list of dishonest persons, which carries with it certain restrictions and penalties. The inclusion of the claimant in this list is described in the Enforcement Decision as being done "[i]n order to induce the person subject to enforcement to consciously fulfil the obligations determined by the effective legal instrument". In the Reconsideration Decision, the court held, "Liu Yunshan, did not provide sufficient evidence to prove that they had fulfilled the obligation to assist with the applicant's visitation rights, which constitutes a refusal to comply with the effective legal document. The enforcement court's corresponding compulsory

enforcement measures were therefore appropriate." [44] It appears from the opinion of Guofang Wu that, should the claimant return to China, the court in China could compel her to live with the respondent to ensure visitation rights. Alternatively, if the court awards custody to the respondent, the court could compel the claimant to bring the child to the respondent in China. In the opinion of Guanghao Fan, the court has jurisdiction to order detention against a person who is not assisting the party in the exercise of visitation rights. [45] I find, based on the opinions tendered in this case, that the courts in China have jurisdiction to make orders compelling the return of the child to China, or detaining the claimant. The courts in China have not made any such orders to date. [46] Therefore, I find that the existing orders in China provide the following: a) The claimant, as the custodial parent, has the right to choose where in the world the child will live, and is not required to obtain the consent of the visitation parent or the Chinese authorities before relocating out of the country. b) The claimant is in breach of the portion of the January 24, 2022 order which requires her to assist the respondent in the exercise of his visitation rights with the child. c) The Chinese court has sanctioned the claimant for her breach by placing her on the list of dishonest people subject

to enforcement. [47] There is no existing order that the child or the claimant return to China. Should I exercise my discretion to order the return of the child to China? [48] The relevant portions of s. 77 of the FLA are the following: Wrongful removal of child 77 (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. (2) In the circumstances set out in subsection (1), a court may do one or more of the following: (c) order a party to return the child to a place the court considers appropriate and, in the discretion of the court, order a party to pay all or part of the expenses reasonably and necessarily incurred for travel and other expenses of the child and of any parties to or witnesses in the proceeding. [49] I am satisfied that s. 77(1)(a) has no application to the facts before me, as I have declined to make an order pursuant to s. 74. [50] With respect to s. 77(1)(b), I do not agree that the respondent has established that the claimant has wrongfully removed the child to B.C. or has wrongfully retained the child in B.C. [51] Given that both parties agree that the Chinese courts have jurisdiction over the child, and both are actively engaged in the processes before the courts in China to address the

issues of custody and visitation, I am not satisfied that it would be appropriate for me to order the return of the child to China. [52] There is no evidence before me that the claimant is wrongfully retaining the child in B.C. While under B.C. law, she would require the consent of the respondent or a court order to move the child to a different country, that does not appear to be the law in China. All the expert opinion evidence before me confirms that the claimant has the right to unilaterally establish the residence of the child pursuant to the existing January 2022 order in China, which both parties agree is applicable before me. [53] On the materials before me, there is no order compelling the return of the child, although the courts in China appear to have the power to make such an order. The courts in China have decided to enforce the claimant's obligation to assist the respondent in exercising his visitation rights by placing the claimant on a list of dishonest persons. In other words, the Chinese courts have determined the appropriate remedy is one designed to induce the claimant's compliance. If that is not adequate, on the evidence before me, the respondent is not without remedies in China. [54] I am not satisfied that it flows from any of orders made in the execution decisions that the claimant is wrongfully retaining the child in B.C. [55] I decline to order the

return of the child to China, pursuant to s. 77 of the FLA. Disposition [56] The application of the respondent dated June 14, 2023, to recognize the January 24, 2022 Chinese orders, as set out in these reasons, is allowed. All other orders sought in such application are dismissed. [57] The application of the claimant dated August 12, 2024, is dismissed. Costs [58] The parties did not make submissions on costs. If they are unable to reach agreement on costs, they may provide written submissions through the registry within 60 days of this order. I leave it to the parties to reach agreement on the timing of submissions from each party, but all submissions must be received within 60 days. "W.A. Baker J." [1] The translation provided states the date of the decision is October 16, 2023, however all court documents referencing the decision refer to the date of October 13, 2023, as the date of the decision. I have adopted October 13, 2023, as the correct date of this decision