Zhang v. Chen

2024 BCSC 2649 Zhang v. Chen

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Zhang v. Chen, 2024 BCSC 2649 Date: 20240129 Docket: E202085 Registry: Vancouver Between: Nina Zhang Claimant And: Wei Chen Respondent Before: The Honourable Justice D.M. Masuhara Oral Reasons for Judgment In Chambers Counsel for the Claimant: F. MacLean L. MacLean, KC S. Hothi L. Ledesma Counsel for the Respondent: M. Perry Counsel for Ms. Ke: J. Forstrom Place and Date of Hearing: Vancouver, B.C. January 24, 2024 Place and Date of Judgment: Vancouver, B.C. January 29, 2024 [1] THE COURT: This is an application by Mr. Chen relating to parenting matters. There are three children of the marriage. At present, the children reside here in Canada with their mother, Ms. Zhang, the application respondent. [2] There are three components to the application. One is for parenting time in China, which is the focal point. The second is for terms regarding the facilitation of video calls between the father and the children on specified terms. The third, is to restrict the travel of the children outside of British Columbia without the father's written consent or a court order. [3] With respect to parenting time, there are periods of time that are sought which do not fit within the current time period. There are references to the winter break for parenting time, parenting time in January. Those do not appear to be workable at this stage. There

are alternatives which relate to parenting time for three weeks during Spring Break, as well as for the summer break period, which I will address. [4] In terms of the position of Ms. Zhang, she opposes parenting time in China but is prepared to offer time in Canada and/or the United States. The parents are citizens of China. For a good period of the marriage they lived there. However, they had each of their children born in the United States. As I understand it, each child has US citizenship. Here in Canada, the parents obtained permanent resident status; however, the father's status has expired. [5] Mr. Zhang is a businessman and is a general manager of a construction firm in Shanghai. The materials indicate that he holds a large number of assets in China, which on the information I have been provided is about $70 million plus. [6] This application also involves counsel for the applicant inserting cases in the notice of application purporting to support the application that were obtained from ChatGPT, a generative AI platform. Unfortunately, these cases do not exist. The facts came to light when counsel for the respondent could not find the cases cited and requested copies from Ms. Ke. There was some communication exchanged, and after some period, the response from the applicant's counsel was that those cases were no longer being relied upon. [7] A revised set of cases to

replace the originally cited cases was provided. It was only on the day before the hearing before me did applicant's counsel advise that the cases were obtained from ChatGPT and that the cases did not exist. An apology was made by counsel to the court at the hearing before me. [8] Counsel for Ms. Zhang takes the position that the conduct here in relation to the cases is sufficiently serious for the application to be dismissed as an abuse of process. The respondent seeks special costs against counsel, Ms. Ke. During the brief hearing before me on January 24, 2024, Mr. MacLean, after some prompting by me, advised that he would not be seeking special costs against Mr. Chen. [9] The best interests of the children are a focus here and are at stake, and the circumstances here should not be a barrier to the court. Considering the application, the actions of applicant's counsel should not be laid at the feet of the client. As well, the outstanding support payment that was mentioned to me was made by Mr. Chen, albeit with some prompting from this court. [10] Turning, then, to the parenting arrangements. In terms of a brief background, I understand the parties are from Shanghai, China. They were married there, and though there is an issue with the separation date, there is agreement that it occurred sometime in 2019 or 2020. The parties have had difficulties in their marriage, including

a prior separation. The materials indicate that Ms. Zhang left the marriage with the children in March 2015 and moved from their home in Shanghai to another community, Xuzhou [or Suzhou], and applied for a divorce in the Shanghai court. She had moved there with the children. [11] The action was withdrawn as a result of an agreement between the parties in which it appears was executed in 2016. That agreement identifies 61 real estate properties which are declared to be community property. Certain properties were to be transferred to Ms. Zhang and to the children, and the agreement also requires Mr. Chen to pay Ms. Zhang the equivalent of $1 million per year for spousal and child support. As I understand it, the terms were not fulfilled by Mr. Chen. [12] In any event, from June 2016 to June 2018, Ms. Zhang and the children moved to California where she attended graduate studies at the USC School of Music. They were supported there by Mr. Chen. Near the end of that period, the parties visited Vancouver, identified a private school for their children and a West Vancouver house where they could reside. The house was purchased with a mortgage and title being registered solely in the name of Ms. Zhang. [13] According to Ms. Zhang, the mortgage was to be paid out by Mr. Chen as part of fulfilling his obligations under the 2016 separation agreement. She says that he had stated he would

sell some of the properties in China to effect this. She says she signed the authorization for the sale of those properties. However, he refused to pay out the mortgage. After attempts to get him to fulfill his promise were unsuccessful, she gave up hope and separated from Mr. Chen. The house has since been sold with the proceeds in part used by Ms. Zhang to purchase a more modest home in North Vancouver where she and the children reside. The balance of funds, as I understand it, are held in trust with a solicitor. [14] I should mention that there are three children of the marriage at present, ages 12, 10, and 9. I should also note that during the pandemic, Mr. Chen visited the family in Vancouver. As I have mentioned, his permanent-resident status has expired. He had not spent the minimum time required time over a five‑year period in Canada. He has retained a lawyer to appeal the expiry to the Immigration, Refugees and Citizenship Department. [15] The children all attend an independent private school in West Vancouver, the costs which I understand have been paid for by Mr. Chen. The information before me indicates that they are excelling in school and extracurricular activities, and as I have mentioned, Ms. Zhang has throughout been the primary caregiver of the children. [16] A 22‑day trial date is scheduled to start in June 2025. Recently the parties agreed to obtain a s. 211

report. However, the writer of the report has not yet been agreed to. There is some information, though, that one of the writers would have been able to start this March. [17] The test here is the "best interests of the child" test, which is the only consideration. It is under s. 37 of the Family Law Act and requires that all of the needs and circumstances of the child must be considered. There are a large number of factors which are enumerated under s. 37(2), (a) to (j), and as well as (3), and (4). I am not going to read them all in here, but they have been referred to in the materials. Also assessing family violence under s. 38 is a factor that must be considered. [18] Mr. Chen in this regard relies on the evidence of the loving relationship he has with the children, the times he has taken care of the children, including visits in China and in Japan. He spoke of his engagement with each of the children. He submits that there is an absence of any risk of violence or other risk to the children. He says he has no way to visit the children in Canada because his permanent-resident card has expired, and thus they should visit him in China, where they will also be able to visit with relatives, including their paternal grandmother. In this way, the children would be reacquainted with relatives and reconnect with the Chinese culture and lifestyle. As I understand it, he proposes

taking the children to various attractions and important sites around Shanghai such as Disney World and The Bund. [19] He also raises concerns regarding the conduct of Ms. Zhang when she moved the children without his knowledge in China and to other international locations without consulting him. He argues that the children should not be used to obtain personal benefits, which he asserts Ms. Zhang is attempting to do with respect to opposing his application. He also notes the difficulties he has had in having video time with the children, as well as the apparent altercation between him and Ms. Zhang and Ms. Zhang's mother in 2022. [20] He cites a number of cases: D.W. v. Y.Y., 2018 BCPC 37, involving travel to China and the sharing of important Chinese holidays; M.W. v. N.L.M.W., 2021 BCSC 1273, which relates to comments on family violence and components which comprise it; D.M.F. v. T.J.D., 2021 BCSC 1249, a decision where the maximum‑contact idea was identified and commented upon; and B.J. v. R.S.B., 2022 BCSC 2135, another decision of this court which speaks about family violence. [21] The position of Ms. Zhang is that the proposed parenting time in China is not in the best interests of the children, as the children at present are thriving in her care; as shown by the evidence of their performance in education, and extracurricular activities; that Mr. Chen has been, in her

view, minimally involved with the children since separation; and the evidence of a regular history of no‑shows for video calls for a significant number of the calls with the children by Mr. Chen, and lateness for majority of the calls when Mr. Chen does attend for the video calls. [22] She notes that he has had limited time with the children and asserts that his care has not been up to the standard required and gave some examples: one child being lost on a ski hill, and another child at the age of four required to find a restroom on his own. [23] She also identifies a potential risk that the children will not be returned from China, premised on alleged past threats by Mr. Chen to Ms. Zhang that he would take the children away from her and that she would never see them again. In this regard, Mr. MacLean notes that China is not a signatory to the Hague Convention related to children and abduction. He also referred to the Government of Canada publication guide on child abduction and the warning signs for such risk. It is submitted that some of those signs are present in this case. [24] The legal opinion regarding Chinese law and the risks associated with the children's potential travel tendered by Ms. Zhang indicates that seeking legal remedies for return of the children or restraining Ms. Zhang through Chinese judicial procedures would be a "lengthy" process for the

claimant. [25] Ms. Zhang also references violence from a verbal dispute between her and Mr. Chen, which she alleges led to Mr. Chen grabbing her hands and pushing her down the stairs in February 2022, which is the same event which Mr. Chen mentioned in his submissions. One child also had his head bumped as the child was inadvertently involved in the dispute. Ms. Zhang alleges that she sustained bruises from the incident and has produced a photo. [26] To support parenting time for Mr. Chen, Ms. Zhang is willing to facilitate the respondent's parenting time in Canada or the United States. She submits this is the appropriate course to allow the children to safely adjust to parenting time with their father. She says the respondent's immigration status is suitable to effect parenting in either Canada or the United States. I am told he has a valid US tourist visa. A legal opinion from an immigration lawyer tendered by Ms. Zhang indicates that Mr. Chen is able to enter Canada through the United States using his US tourist visa to have parenting time with the children. [27] A further valid alternative identified was for Mr. Chen to obtain a temporary residence visa, which would take a few months to obtain and has options for visitor record extensions. She argues that it is premature to make an order for parenting in China in the absence of a s. 211 report, which the parties had agreed

to in December. I also queried during the hearing if a "views of the child" report might be sought, which would require shorter time. However, Ms. Lokshin for Mr. Chen was not agreeable to that. [28] The cases cited by Mr. MacLean in terms of international travel are Jofre v. Jofre, 2006 ABQB 623; Usova v. Harrison, 2011 BCCA 209; Gleckman v. Glover, 1996 CanLII 2539; T.M.W. v. P.T.S., 2007 BCSC 1017; A.R.D. v. G.B.G.D., 2004 BCSC 1080; Wang v. Lapke, 2021 BCSC 2740; and Duygun v. Shih, 2023 BCSC 1693. [29] Having reviewed the evidence and considered the submissions, at this point, I am not persuaded that travel by the children to China for the period sought is in their best interests. I would say, however, the potential of summer parenting may be considered if further information becomes available. Though I do not deny the evidence of a loving relationship between Mr. Chen and the children, the facts weigh much more in favour of the present status quo. [30] I give weight to the fact that the children are thriving and excelling in school and extracurricular activities, including weekly Chinese language classes, which addresses in some way the need for a connection with the Chinese‑culture point raised by Mr. Chen. While important, the cultural connection argument of Mr. Chen seems to be secondary in this case, given the decision of the parents to have each of their children

born in the United States, then to have them reside there and then move to Canada, to reside here in Vancouver and enroll them for school here. The materials also suggest the parent's desire that the children attend university in the United States. The materials also indicate the children have resided outside of China since 2016. These militate against the cultural connection argument. [31] Also, Mr. Chen, based on the immigration opinion tendered, has the option to visit the children in Canada or the United States through his US tourist visa. This spring school break, which is three weeks, is a period when the father can visit with the children in Vancouver and participate in parenting and any interviews for the s. 211 report if that writer is retained. [32] There is also the fact that China is a non‑Hague Convention signatory, and that the available opinion evidence is that there could be significant hurdles if the children are caught in a parenting dispute in China. I would say that if safeguards against this concern can be obtained, this is something Mr. Chen should bring forward in a subsequent application. The s. 211 writer, as Mr. MacLean indicates, may also have the ability or qualifications to comment on the risk or safeguards, as I understand his submission. [33] There is also some evidence that Mr. Chen harbours anger toward Ms. Zhang which includes the financial

support that was withheld until recently. While both sides reflect an incident involving violence in which where their son was inadvertently caught up in, I do not see that, based on the materials, as a continuing problem which needs fuller consideration for the determination before me. I do not make any finding as to fault at this point. [34] Having made my determination on parenting in China, I recognize the importance of contact between a child and a child's parent. There is considerable distance between Shanghai and Vancouver; however, regular communications between father and children can be achieved through a properly scheduled video conferencing plan that accommodates the time difference between Shanghai and Vancouver, the children's school schedule, and Mr. Chen's work schedule. In this regard, Ms. Zhang should plan the children's activities in a way that enables reasonable video conferencing between the children and their father. [35] There are some specific terms at this point which I wish to set out here: 1. The parties are urged to move expeditiously to obtaining a s. 211 report. That, of course, will involve the parties moving expeditiously to retaining a consultant who has an ability to provide a report at an early date.

2. That the father's parenting time with the children over the Spring Break, either in the Lower Mainland or in the United States, should be constructed to permit optimal parenting time for Mr. Chen and that the schedule be set in advance by agreement as to location and times.

3. The parenting time at present will not include overnights during the Spring Break unless the parties agree in writing as to the specifics, and I could see the children are at an age now where the gradual introduction may well lead to some overnights during the course of the Spring Break, but of course that would be dependent on how the children interact with their father.

4. That the parenting time for Mr. Chen is to be a priority for the Spring Break, given that if he comes, he will have travelled some distance, and Ms. Zhang is to consult with him on any programs she intends to enroll the children in over the Spring Break to ensure that the parenting time is not interrupted unreasonably.

5. This matter was not spoken to, and I am prepared to receive any further submissions on this point, but my view presently is that the reasonable travel and accommodation costs for Mr. Chen for the Spring Break parenting time, if exercised, should be shared between the parties in proportion to their respective incomes that were found on an interim basis by Associate Judge Robertson. The credit for this can be applied to his support payments. The reasonable travel accommodation costs should be approved in advance hopefully between the parties or counsel.

6. That the issue of further parenting time and what that would include, such as overnights and the location, be revisited once the s. 211 report is completed or unless circumstances change. Thus, that question should be specifically itemized as a matter for the s. 211 report.

7. In the event that a s. 211 report and recommendations is not available sufficiently in advance of the summer vacation period for the children, the parties should return to have the issue of summer parenting for Mr. Chen addressed. In this circumstance, a "views of the children" report may be of assistance to the court.

8. And, again, while this next point was not a matter that was specifically referred to in the submissions, and I am open to further comments on this, my view is that Ms. Zhang is to provide Mr. Chen regular reports and updates on the status of the children's educational and extracurricular activities, social development, health and medical status, et cetera. These are all terms, of course, which often find themselves in the standard template for this sort of thing. Further, Ms. Zhang is to provide reasonable notice in advance to Mr. Chen of my travel by any of the children that would take them outside of British Columbia.

9. A schedule for the WeChat calls between each child and Mr. Chen is to be arranged, as sought in his application, of not less than 20 minutes with each child and in total not less than one hour for all of the children. He seeks four times a week of this. That would seem a reasonable request. Ms. Zhang is to facilitate such video calls and to allow at least a half hour before any of the children's scheduled activities. The calls are to be in private between each child and Mr. Chen, and Ms. Zhang is to arrange for a space in which the call can be held in private as between each child and Mr. Chen. Ms. Zhang is to be mindful that contact between a child and a parent is very important, and a reasonable schedule that takes into consideration the time difference between Shanghai and Vancouver is to be crafted. Flexibility is to be incorporated in the approach to the schedule. The children's study times and extracurricular activities should not be put as an obstacle to facilitating communications. At the same time, it is up to Mr. Chen to ensure that he adheres to the schedule, as there is evidence of his no‑shows and his lateness to them. Ms. Zhang is to use all efforts to not have any activities of the children interfere with the schedule of calls, and as I have mentioned, Mr. Chen is not to miss or be late unless circumstances dictate that it was unavoidable. As much as Mr. Chen can, if he is going to miss or be late, he is to provide reasonable notice in advance. [36] That ends my ruling. "Masuhara J."