FCJA 2423/2018
[2025] HKFC 96
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
JOINT APPLICATION NO. 2423 OF 2018
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BETWEEN
| | YCR
also known as CRY | First Applicant |
and |
| | YSJ
nee SJE | Second Applicant |
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| Coram: | Her Honour Judge Thelma Kwan in Chambers (not open to public) |
| Date of Trial: | 12-14 August 2024 |
| Date of Opening Submission: | First and Second Applicant 5 August 2024 |
| Date of Closing Submission: | First and Second Applicant 19 and 20 September 2024 |
| Date of Judgment: | 26 May 2025 |
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J U D G M E N T
( Relocation )
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The Application
1. There is an application by the 2nd Applicant mother (“M”) on 7 October 2022 to relocate the two children of the family H and G (together the “Children”) to Kelowna, British Columbia, Canada.
2. The 1st Applicant father (“F”) opposes her application.
Background of Parties
3. Both the M and F are Canadian; she was aged 45 and F aged 47 at the time of the hearing. They teach at the same International School in Hong Kong (the “International School”). She is a Guidance Counsellor at school and previously a classroom teacher and Head of Department, F teaches mathematics.
4. F holds a Bachelor degree in Electrical Engineering, and a Bachelor and Master degree in Education from Canadian universities. M holds a Bachelor and a Master degree in Education also from Canadian universities, and also a Master of Social Sciences in Counselling Therapy from the Hong Kong University. Other than being a member of the Guidance Counselling team at the International School, she also provides counselling at a medical clinic in Hong Kong with a focus on adolescents.
5. The parties met at university in Canada in 2001 and got married in July 2005. Both had taught in Kelowna, and then went to Dubai together to work as International teachers between 2008 to 2010, parties returned to Kelowna to teach in late 2010/2011.
6. Their eldest son H was born in Kelowna, Canada in April 2011, he was 13 years of age at time of trial.
7. Parties moved to HK in August 2012, having accepted positions at the International School in Hong Kong.
8. The parties’ second child G was born in Hong Kong in October 2014.
9. M met her current female partner K in September 2015, who also taught at the International School. Their relationship developed and M moved out of the matrimonial home in January 2017. They moved in together in April 2018 and are together until now.
10. F started dating his current wife in the Spring of 2017, they got married in December 2021, their child C was born in April 2023.
11. H excels in sports, and in particular, enjoys inter alia, soccer and golf. However, he has been diagnosed with dyslexia and executive function issues from a psychoeducational report in 2020 and is further diagnosed with ADHD from an updated report in April 2024.
Some relevant Procedural History
12. The parties applied as joint applicants for their divorce on 18 May 2018, the Decree Nisi was granted on 8 November 2018, and the Decree Absolute on 19 February 2019.
13. By Consent, an Order was made by HHJ Melloy on 8 November 2018, and inter alia, the parties were granted joint custody, and shared care and control of H and G. The Children are on a week-on / week-off arrangement with the parents, holidays are shared equally.
14. There was no further activity in this case until M filed the current Relocation Summons on 7 October 2022.
The Evidence
| | 1st Applicant (F) | 2nd Applicant (M) | Other Witnesses |
| 7/10/2022 | | Affirmation | |
| 6/12/2022 | | | MR (M’s mother)
Affirmation |
| 7/12/2022 | | | K (M’s partner)
Affirmation |
| 30/1/2023 | Affidavit | | |
| 30/1/2023 | | | S (F’s current wife)
Affidavit |
| 6/3/2023 | | 2nd Affirmation | |
| 31/5/2023 | ISIR | |
| 20/7/2023 | SIR | |
| 10/5/2024 | Updated SIR | |
| 13/5/2024 | 2nd Affidavit | | |
| 13/5/2024 | | 3rd Affirmation | |
| 13/5/2024 | Updated Psychoeducational Report | |
15. It is noted that a previous Psychoeducational report from December 2020, prepared by Dr Craigen (“Dr C”), was exhibited in evidence under the M’s 1st Affirmation.
16. At the hearing, Dr C and the SWO gave evidence. M’s case is supported by her mother MR (who gave evidence remotely) and her partner K, and F’s case is supported by his current wife S; all gave evidence and were cross-examined by the other party.
17. Both parties acted in person.
M’s case
18. M calls this a return home application. Kelowna is where she was born and raised. She says both parties are from British Columbia and had worked as teachers in Kelowna before moving to HK in 2012. H was born in Kelowna in 2011.
19. M asks for relocation to take place in June 2026. This marks the end of H’s Grade 9, and enable him to start Senior High School in Kelowna, which begins at Grade 10; this is ideal for H as she says he will be starting at a new school together with students coming from other different schools. G will then be attending Grade 6, which is his final year of elementary school, and has a year to adjust before Middle School begins. She says by going earlier, the Children will also be able to establish residency in Canada, which makes university education more affordable. M says this aligns with the Children wishes to relocate “at a later time”, and allow M to obtain ADHD coaching, support and medication in HK and to obtain guidance on how to support H’s learning needs.
20. M says relocation is in the best interest of the Children because of the following reasons:
a. H’s special needs confirmed from the previous diagnosis of dyslexia and recent finding of ADHD, are not supported at the International School as it is not well placed to support these “atypical learners”. The proposed schools in Kelowna are more well placed and appropriate and will appeal to H’s diverse strengths and interests.
b. The Children are Canadian, their roots are in Canada. With the Children relocating to Canada, they will also develop closer relationship with extended family there.
c. The Children are likely to be attending Canadian Universities; they will benefit from strengthening their ties and experiencing life in Canada prior to post-secondary school studies.
d. M says she has been expressing her desire to return to Canada to F since 2018 so this is no surprise to him. She says she has never intended the move to Hong Kong to be permanent, but the upheaval of separation and divorce, and co-parenting has kept her here.
e. She says that she is homesick and suffering from fatigued living in HK and the emotional impact on her continuing to stay here would adversely affect the Children.
M’s Relocation Plan
21. M most updated proposal will be to move in with her mother into her large family home on a temporary basis. Her mother’s residence is in the right catchment area for the desired schools for the Children, and is familiar to them. This would enable M and K to settle down, secure stable income and find an appropriate home.
22. M is of the view that the holistic schooling system in Canada is more suited to the Children’s needs. Children can explore more interest outside of the classroom and has less pressure academically compared to that in HK. The subject matter options offered in Canadian schools are also of a much wider range.
23. M says that she wishes to propose a school for H which lands him at one of the many high school sports academics. Her top choice is OKM which offers soccer and golf academics, and which also ranks high (45 out of 252) among the secondary school choices in British Columbia. Her second choice is KSS which offers a wide choice of program and rank 63 on the same list. Both are public schools and should pose no hurdle for the Children to be enrolled. She has also explored private independent school AHS where there is individualized programme for students requiring additional support, which is suitable for H, this school ranks 33 on the above-mentioned ranking system. This private school will require tuition fees.
24. M has looked into the medical system, found temporary medical insurance for the Children before they qualify under the provincial system; and has placed them on the waitlist at a family doctor’s clinic.
25. M envisages that K and herself will be the Children’s main carers. H will be in a position to self care while G will need more attention due to his age.
26. M’s mother, retired and recently widowed, is ready to assist in the care of the Children. She has a close relationship with them, as the Children used to visit twice a year before Covid, and once a year thereafter. Under the current plan, they will be living with her initially, and even if they find a place of their own, it will be nearby as M intends to stay within the same catchment zone of her proposed schools for the Children.
27. M’s father and his partner are also close to the Children, and expressed to the international social welfare officer that they are happy to help out with the Children. There are also other family members nearby including siblings and step siblings and their family, as well as some of M’s best friends and their family. All of whom are in a position to assist when called upon.
28. M has reached out to several of her previous contacts and also conducted research on employment in schools and private clinics doing counselling work. She has considered her likely income and expenses. She also add that as both she and K have IB training, this could be a sought-after qualification to schools. She is of the view that the employment opportunities for both herself and K is high, and she should be able to get both public and private school positions. She also looks into counselling positions in both a school setting and in the private sector. M has maintained professional certification for Canada; she was given reassurance of her and K’s employability from the people with whom she reconnected.
29. M also speaks to K’s qualifications who has a Bachelor degree in Kinesiology, Education and MSc in Nutrition science, K is also completing graduate studies in Mental Performance coaching.
30. She acknowledges that she is facing a 50% cut in her salary compared to what she is earning in HK. She has provided a table of estimated expenses in her evidence. Her budget in Canada still gives her some room for savings, and the household income will be supplemented by K, although she hopes that F can contribute to the Children’s expenses should relocation be allowed.
31. M says that there are a lot of open space and nature in Kelowna, it is a beautiful city on a lake and nestled among mountains, orchards and vineyards, with rich cultural amenities. It is also where the Okanagan campus of UBC is situated.
32. M wishes for the Children to experience an environment that is accepting of LGBT individuals. M notes that there is stigma against same-sex relationships in HK, including within the school setting where both parties teach and the Children attend. She asserts that Canada is more open and accepting of diversity, and desires that the Children live in a place where such relationships are legally and culturally validated.
M’s Proposal: If leave is granted for Children to permanently relocate to Kelowna
33. Joint custody of the Children will continue. M asks for sole care and control, and proposes generous access to F.
34. M’s written open proposals was based on Kelowna’s school calender, and that of the International School. The following is offered:
a. Summer Holiday (Split 67% to F, and 33% to M)
b. October Break (All to F)
c. Christmas (To be shared 50-50 between the parents)
d. Lunar New Year (All to F)
e. Spring Break in March (All to F)
M calculates this to 76% of the Children’s holiday time.
35. M will encourage and support remote access and the Children both have their own mobile phones.
36. If F decides to move back to Kelowna, and they live within one hour drive from each other, M proposes that the current week-on / week-off arrangement shall continue.
M’s Proposal: If Relocation is not granted
37. M will remain in HK and asks for the current joint custody and shared care and control order to be maintained; specifically with H switching home on Thursday after school, and G on Fridays.
38. If the parties are to continue co-parenting in HK, M asks for the following series of mutual undertakings:
“a. While the children are in the care of one party, the other party will respect the Children's time with them and not attend every event, regardless of significance. An exception can be made for scheduled sports league games. The other party will furthermore not make a point of lingering around after the said games, nor ride the team bus, nor attend social events. The other party will not intervene on any decisions made around participation when in the care of the one party.
b. The First Applicant Father will not communicate with the 2ndApplicant Mother's domestic helpers, unless in an emergency and the 2nd Applicant Mother nor her partner are unreachable.
c. The parties will not denigrate or criticize the other party or their partners in the presence of the children nor allow any third party to denigrate or criticize the other party or their partners.
d. The parties will not discuss the legal proceedings with the children.
e. The parties will commit to a scheduled co-parenting meeting prior to the start of each school year, touching on any topics the other party wants to bring up.
f. The parties will respect workplace boundaries and not discuss private family matters, including legal proceedings, with colleagues.
M’s Witness – K
39. K is from Canada, she grew up in Ottawa and had lived in Toronto. She maintains her contacts there and visits Toronto once or twice a year. Her sister and brother-in-law and family, and her cousin and family live nearby in Vancouver, four hours’ drive away.
40. Collating from the evidence, K has a BSc in Kinesiology from Rice University in Houston while on a full ride basketball scholarship, then she was a professional women’s basketball player for Canada. Upon retirement, she earned a Bachelor of Education and MSc in Nutrition Science from the University of Toronto. She has also completed graduate studies in Mental Performance Coaching, and fully qualified to teach in Canada.
41. M has been in a relationship with K for 6 years, she says their relationship is “committed, serious, and long term”. M says K’s role is as carer, friend and mentor to the Children.
42. In her Affirmation, K speaks to both F and M as loving and involved parents. She talks about her relationship with M, and how they support each other. More importantly, she describes the care and support she provides to the Children, their weeks’ routine, how she loves them and feels their love back.
43. She also mentions her working opportunities in Kelowna, which can be teaching, or to pursue careers relating to her recent qualification as mental performance coach, either at UBC – Okanagan or in the private sector.
M’s Witness – her mother MR
44. M’s mother is aged 70, she gave evidence via VCF, and was cross-examined by F at the hearing. She is retired and recently widowed. The Children stay with her whenever they visit Kelowna.
45. MR has lived in Kelowna for more than 30 years. Her other two children, M’s younger sister and brother, both live close by.
46. MR shares that H is her first grandchild, with whom she shares a special bond as H spent his early years in Kelowna. There were many occasions when the parties or M with K have brought the Children to Kelowna over winter or summer holidays when she spent time with them. She also speaks to the time when the Children spent time with their aunts and uncles and cousins.
47. MR confirms that learning assistance for children who are in need is readily available and quite commonplace in Canada.
48. In the cross examination by F, she was asked about her residence, her thoughts on the Canadian school system and how it compares to that in HK as she understands it. F challenges the maternal grandmother’s residence in that it is a retirement community, she says it is actually in a golf course and the Children spends a lot of time during the holidays golfing; in any event, it is planned to be only a temporary arrangement. When asked how to justify “splitting children away from their father”, MR says H’s education and H’s success in high school is her number one concern.
F’s Case
49. F contests the relocation application and M’s ask for sole custody.
50. F says he is a very involved father in all aspects of the Children’s life; he has a close relationship with them, and the Children with his current wife S, and with C. Breaking up this relationship will have a damaging effect on the Children.
51. F makes it very clear that he will not be moving to Canada in the foreseeable future. He states quite clearly to the SWO that quitting his current job would impact on his retirement plan, and he will not leave this stable job and go to a place where he is not certain that he will find employment.
52. His position is summarized as follows:
a. F says W has “contravened” Court ordered arrangement. This is with reference to the previous Order prohibiting the relocation of the Children without mutual agreement or court authorization. He says M has made a unilateral relocation decision, and proposed relocation without his consent or concrete justification.
b. F says this move impact on sibling relationship, the Children will be separated from their half-brother C (who was 16 months old at time of the hearing). He says separating them could lead to “profound emotional distress and developmental challenges for all his children”.
c. Allowing relocation would reduce his time with the Children, missing important occasions, and undermines the “foundational principles of equal parenting time”.
d. The relocation introduces “logistical and financial difficulties”. F elaborates to say that there will be financial burden and logistical complications of coordinating visit. He also says that research highlights the importance of close contact between children and parents, and the move to Kelowna will make the children feel “abandoned”. Beyond travel, he says there will be further costs involve in “Legal costs related to international custody, potential increase in costs of living, and new healthcare arrangement for the children who may require continued care … ensuring continuity in their healthcare and education….” etc.
e. F says the M’s relocation plan would disrupt the Children’s education which is thriving in Hong Kong. He says Kelowna could not offer a comparable quality of education, nor is H and G’s place in the Kelowna school confirmed due to “catchment” area.
f. H has achieved honour roll status with specialized learning support offered by the International School and G excels academically. Uprooting them would force them to adapt to new educational standards, teaching styles and social environment. F says he is concerned about the availability of support for H, and how that would affect his academic performance.
g. F says relocating would be an “irreversible mistake”, by this he means the Children will have difficulty getting re-admitted to their current school and would likely lose their current 80% tuition subsidy.
h. F says moving to Canada present substantial risks to the Children’s social and emotional well-being, as it would disrupt these established relationship in their lives. “Uprooting them could sever vital connections with peers in HK, adversely affecting their ability to form and sustain relationship in the future.” It would also disrupt the continuity of care from teachers, counsellors, and community members who support their developmental needs.
i. F says the “transition to a new country necessitates adapting to unfamiliar cultural and social norms”, which can be overwhelming and stressful for young children, “potentially affecting their sense of identity and self-esteem.”
53. The following summary of the F’s position is taken from his opening submission:
a. M has an outdated plan and does not take into regard the Children’s needs and wishes.
b. M focuses on environmental recreational benefits and overlooks educational quality and social stability.
c. F says M has no proof of M’s mental health concerns and whether it relates to the relocation issue.
d. F says the M’s position on financials may not be sustainable due to the increase of living expense in Canada.
e. F says M provides no detailed comparison between the education system or schools in HK and Kelowna. M has disregarded the high-quality education available in HK
f. M has not established how the move would be in the best interest of the Children.
g. The proposed living arrangement with the maternal grandmother “raises concerns due to the lack of personal space and potential for conflict, creating an unstable environment that would hinder their development”.
54. F objection also appears to want the Children to continue to have an academic focus education instead of M’s approach in choosing a school which has both academic focus as well as sports pathways for the Children.
55. In his closing submission, F relies on the International School’s XXXXXXXX Learning Support Procedures to say that H continues to have adequate and robust support from the school.
56. F also attack the M’s learning support document produced with her last affirmation which she prepared based on her contact and the information obtained from a recent trip to Kelowna. He says that M “lacks the professional expertise to perform the evaluation”.
F’s Proposal: If leave is granted for the Children to relocate to Kelowna
57. F asks for Joint custody.
58. F asks that M secures a “permanent residence for at least 3 years” for stability before the long term move to Kelowna. This residence should adhere to his criterion of safety. The residence has to be in the catchment zone of KSS or OKM, although he would prefer the private school AHS which M has also looked into. F wants to have a say regarding the Children’s living condition.
59. F asks that both M and K should have secured employment before the Children relocate. F seems to suggest that this be done by M and K in Kelowna “without childcare pressure”. He says this will enable M and K to settle down without the need to stay with maternal grandmother, and give him time with the Children before they move.
60. F asks for daily video calls for 30 mins.
61. F asks:
a. To be given priority to care for the children during his non-working days, including the entire summer break, all holidays throughout the year, and weekend.
b. To be given first priority during any school-free days on the children’s calendar.
62. F then says as his physical time with Children will be reduced, he aims to make the most of it whenever possible: all of summer holidays, October break, Christmas break, Lunar New Year break, Spring break, every weekend throughout the year, and all additional holidays that align with the Children’s school calendars. He then says any of the period he cannot be with the Children would “naturally default to [M]”.
63. F says that M should contribute to his trips to Canada when he goes to visit:
a. If he travels alone to Kelowna, he expects M to help with travel and accommodation costs in Kelowna, or provide a place to stay. M should pay for half of his costs.
b. If he travels with his wife and C, he expects M to share the travel and accommodation costs, M is to pay for half of the travel costs for F, his wife and C.
c. If H and G fly to HK, M and F should share the flight and transportation costs for them.
d. If F and children will meet at a different location, M and F should share the flight and transportation costs.
e. All flights and related transportation including chaperone fees are to be shared
64. Due to the emotional implication of separation of siblings, F and M is to share counselling costs for all three children.
65. As for F’s preference for schools in Kelowna, his first choice is the private school AHS, and second choice is OKM where he has worked. He believes the latter offers a “reasonable academic fit and has adequate learning support structures to meet H’s needs”.
66. F offers to share with M all education expenses equally, including fees for ECAs and additional academic tutoring; sports opportunities and medical cost.
67. He asks to be involved with discussion concerning the Children’s education and career planning, and any decision relating to H’s dyslexia and ADHD.
68. F says that the existing arrangement where parties pay for the general expenses, food and entertainment individually when they are with the Children should be maintained.
69. F then proposes a list of “safety measures”, this includes in broad brush: the need of “legal binding agreement” to cover “terms of relocation custody arrangement, financial expectations, travel arrangements and access”, a system to help Children to adapt and prevent M from making drastic changes to her relocation plan, co-parenting arrangement involving third party intervention, regular reviews, provision to enable the children to return to HK if they wish, mechanism to deal with M if in financial difficulty or when she faces other logistical challenges.
F’s Proposal: If leave is not granted for the Children to relocate to Kelowna and they will be staying in HK
70. F asks for the existing arrangement to remain, together with certain undertakings from M. This includes:
a. Both parties to agree not to suggest or imply to the children that the education system in Canada is inherently easier or more enjoyable than in HK.
b. Both parties to commit to actively support the Children’s learning and active involvement in their academic lives so as to demonstrate their shared value of their education.
c. Both parties to refrain from portraying athletics in Canada as superior or suggesting that athletic success can only be achieved there.
F’s Witness, Wife S
71. S is American, her family is in Michigan. She has a Bachelor and a Master Degree in Education, she is a kindergarten teacher who initially taught at the same International School as the parties. and then in around 2022 changed to another international school.
72. She met F at the International School, they dated for a few years before she moved into live with F in 2019 and got married in 2021. Their child C was born in April 2023.
73. Her Affidavit also speaks to the time she has travelled to meet F’s extended family and for the Children to meet hers.
74. She calls F “Super Dad”, and describes how F prioritize the Children in his life, and how much time he spends with them. She talks about her evolved role to become as a co-parent to the Children with F, and her relationship with them. She also emphasized their financial stability from their teaching jobs which enables the Children to have experience rich life.
75. She says after she left the International School, she has joined another one for the 2022-2023 school year, and intends to stay at this school, which she believes is where her son C will be studying. She says she has serious concerns about the probability of obtaining a teaching job in Canada, due to the additional schooling and certifications required. Under cross examination, she says she heard this from an American friend who moved from Abu Dhabi to Canada and had difficulty obtaining Canadian citizenship and ends up switching to a different profession from teaching.
76. In her cross examination by M, M challenges her regarding how much time the Children gets to spend with C when they have the alternate week with F, taking into account what time the Children leave home and return and coping with a busy sporting weekend. S was also asked as to her unwillingness to move to Canada.
The Social Investigation Reports
Social Investigation Reports
77. Two SIRs were filed on the following dates.
First Report dated 20 July 2023
78. This SIR provides background to the parties, and their relationship.
79. The SWO reiterates M’s reasons for the relocation, which is her belief that the Canadian school system is more suited to H.
“M shared that the Children are really good and into sports and the education system in Canada could allow a wider opportunity and experience for the children if they would like to go for a sports pathway.”
“Despite [the International School] having support for H who had special educational needs (SEN), mother considered it was not good enough as compared to the education system in Canada which would allow students with diversities to develop their full potential through different pathways, not only academics.”
80. The SWO records F’s objections. F wants the stability for the Children after they have gone through the separation, divorce and re-partnering, and the Children having settled into the week-on / week-off arrangement. He also report that :
“[F] acknowledged H had learning difficulties, but he considered [the International School] had a full system in supporting students with SEN issues.”
81. The SWO says that F takes the view that M’s relocation plan is not well planned nor well researched; and that he is rooted in HK and the Children relocation to Canada would weaken the father and son bond.
82. As for the Children’s wishes, the following is recorded:
“36. Among the 4 interviews, both H and G views were consistent. For H, he shared that he was happy and fine with current week on / week off arrangement and enjoyed the time with both sides of the family and he had a very good relationship with [S] and [K], in addition to [F] and [M]. When talking about his study, H shared that he did not feel much academic stress from school, but he considered at some point of his life he would like to go to Canada but not sure when it should be and maybe to study Grade 9 there was one of the options. However, H emphasized that he definitely would study University in Canada as he considered it would be a good experience for him to have that exposure and also could get closer to his family in Canada. When talking about the relocation issue, he understood his mother would like to go back to Canada while his father would like to stay in Hong Kong. H bursts into tears during one of the interviews and insisted that he was not moving or staying with either parents, unless both of them go or stay as he loved both of them very very much.
37. For G, he shared that was happy to have 2 homes and 3 mums now that were full of love and care. During one interview, he showed a picture of the wedding of [F] and [S], with the presence of [M] and [K], and said it was a very good and amazing memory for him. He also enjoyed his current school as he said he was a very popular boy and that he had good friends in all Grades in [the International School]. Concerning the relocation issue, G also understood that his mother would like to go to Canada while his father wanted to stay in Hong Kong. G shared that as he loved both Canada and Hong Kong, it did not really a matter for him of where to stay but he also expressed his wish to study university in Canada as except [S], everyone in his family all graduated from Canada. As for the relocation arrangement, he would like to make it fair for both Mum and Dad, so he proposed to change from the current arrangement that he switched homes weekly to switching between Hong Kong and Canada monthly, despite having no idea on how it could be operated in reality.”
83. The SWO finds that M’s application was genuine and not motivated by selfish desire to exclude F from the Children’s life, and that her proposal was feasible and well researched. She also found that F’s opposition was motivated by his concern over the Children and not driven by some ulterior motive, as F wants both parents to be involved in raising the Children. But the SWO has reservations in supporting the application “at the present stage”. And taking the Children’s wishes into account, propose that the parties should discuss better timing and plan for relocation to be effected.
Second SIR dated 10 May 2024
84. This is an updated report prepared by the SWO, he was asked by me to specifically pose to the Children and to seek their views in the situation where the parents will be in two different countries.
85. On the F’s update, he shares that his wife will take one more year off to take care of their baby. On the M’s side, she has moved to a bigger place close to the Football Club where the Children play; and that she and K have bought a 2-bedroom apartment in Kelowna with a mortgage, which is in the catchment zone of KSS, one of the schools she chose for the Children.
86. The SWO reports that M considers F not to have seen H’s special education needs and that he has been struggling at the International School. She supplements that H would not have the support he is currently receiving when he promotes to Grade 9 in the coming academic year.
87. F emphasized to the SWO that that there is zero chance of him moving to Kelowna as he really likes staying in Hong Kong.
88. The SWO reports the Children’s wishes as follows:
“15. When the Investigation Officer tried to posit the scenario to H where his parents were in different countries, he strongly emphasized that such scenario would not happen and be possible. H shared that he did not really care where they were in the world but just want to be together. He stated clearly that he would only stay in Hong Kong if both parents stay and he would only go to Canada if both parents relocate. According to H, he considered he would like to study in Canada, but it could be in a later time when he was in Grade 10 or 2-3 years later.
16. When the Investigation Officer tried to posit the scenario to G where his parents were in different countries, G burst into tears and shared that he wanted both of his parents happy but he did not know how to deal with their disagreement. He shared to the Investigation Officer that he did not care where he was if he could spend equal time with his family. G further shared that if he moved to Canada while his father did not, it would be very hard for him as it means he needed to separate with his father for long time and it took so many planes to see each other and so as the case if he stayed in Hong Kong while his mother would go to Canada. He shared that he would like to study in Canada, but it could be in a later time when he was grade 9 or several years later.”
89. In conclusion, the SWO reports that:
“The present investigation revealed that both [F] and [M] shared a close bonding with H and G. Taking advantage of the efforts that both parents put in co-parenting and liaising the access arrangement, the children used to enjoy being loved and cared for by both parents dearly. Such close bonding with both parents, however, seems also leading to stress to the children in facing the present relocation application. Both H and G were in tears during the interviews with the Investigation Officer during the previous and present investigation respectively when they were sharing their view concerning the relocation issue and the diverse view that the parents held.”
“The investigations also revealed that both H and G presented to have no obvious difficulties staying in either Hong Kong or Kelowna except both of them showing strong preference to stay with both parents in the same place. While on the other hand, H and G continued to express their wish to further their study in Canada at a later time.”
90. At the end of the report, the SWO says he continues to have reservation in “supporting the relocation at the present stage and believe it is of the best interest for the children if the parents could reach an agreement on the best timing and plan for relocation to be effected, taking into account the children’s well being and their holistic development as the paramount concern.” (my emphasis)
Cross Examination by M
91. On cross examination by M, the SWO confirms that M’s plan is genuine, and that M has put the needs of the Children first. The SWO also repeats that it is clear that both Children have plans to study at universities in Canada, and H says maybe he can go for Grade 9. Further, the SWO confirms that with M’s proposal of access, F will be able to maintain a strong connection with the Children.
92. M asks that if knowing H has dyslexia and ADHD and support in HK is inadequate, would the SWO have changed his perspective. The SWO’s answer is:
“If there is – well, if such modes of education or alternatives in Hong Kong is not enough or insufficient, and at the same time, somewhere in Canada could provide H with such education system in order to provide H for his needs, well, then my conclusion maybe different.”
Cross Examination by F
93. The one point that I would like to highlight from this interchange, is that F asks how the Children’s emotional reactions to the topic of relocation “highlight the potential emotional distress they might experience”, the SWO answers as follows:
“… I did mention that the reason why they got some emotional distress was that because the both of the children … were in between of the different view of their parents and they could not work out a solution, because they both treasure … both the relationship of the father as well as the mother. And also, they also demonstrate that they would like to pursue further education in Canada in near future. So I think those emotional distress they suffered contains their own struggle as well as their sentiments towards their parents.” (my emphasis)
94. I will take up these points later in my analysis.
The International Social Investigation Report (“ISIR”) dated 31 May 2023
95. The Counsellor spoke to M, the maternal grandmother MR, and M’s two siblings. She also went to look at the property owned by M in Kelowna although she is aware that M intends to rent or purchase another place which is in the catchment zone of the Children’s intended schools.
96. M’s sister lives 20 mins away and have twin daughters who are close to the age of the Children; the cousins are close. M’s brother also live in British Columbia and is nearby. All the family members confirm that they are all ready to provide any assistance on childcare that M may need from time to time.
97. The Counsellor also confirms the M’s choices of school of OKM and KSS are good. OKM is known for its many successful sports programs and KSS for its successful music and arts programs.
Psychoeducational Report dated 10 May 2024
98. There have been two Psychoeducational Report. The first one, as above mentioned, was contained in the M’s supporting affirmation for her application. For the purpose of this decision, it is sufficient to note that in this earlier report, and when H was aged 9, he was already diagnosed with dyslexia and has issues with his executive functions.
99. I called for an updated report, after some initial challenges with defining the scope, the report dated 10 May 2024 is focused on H’s education condition and needs.
100. As H’s education needs is one of the main reasons M applies for relocation, it is important to quote some of the findings from Dr C from the updated report.
“11. [H]’s father has no concerns regarding H’s socio-emotional development and minor concerns regarding his academic performance. [F] reports H’s grades to be in the average range with his main academic challenges being poor spelling and reading skills which he feels interfere “only a little” with classroom learning. On the contrary, [M] reports H struggles across all subjects and although he’s surviving, his grades are “below average by [the International School]’s standards”.”
“12. Three of H’s teachers comment that he has definite challenges with concentration and behaviour which interfere with his classroom learning a great deal. H has a “short attention span”, is “easily distracted” and “does not know how to start tasks and is reliant on teachers to do his work” …. H … has low self confidence in terms of how he sees himself as a learner, and can lack the motivation required to “implement the strategies, time, and / or put in the effort. (my emphasis)
101. With regards to tests in relation to H’s academic skills:
“14. … H is much slower than the majority of his peers when reading sight words. … and while the pace at which he can phonetically decode words is just within the average range, his overall accuracy is compromised…”
“15. In addition, H’s mathematical skills are an area of significant weakness as they are in the low average range.”
“16. Based on teacher feedback and his current scores, he now meets diagnostic criteria for ADHD, combined presentation. Therefore, it is likely that a combination of his impulsive response style, poor attentional control, and erratic executive functioning compromised his performance across many cognitive tasks while his specific learning disorder with impairments in reading will further impact his ability to fully access the curriculum without the provision of needs specific support and accommodations.”
“19. …. His reading fluency is further likely to impact the success with which he can correctly comprehend written material under timed conditions, as are his weak executive functions (i.e. poor working memory, slow processing speed, and mental inflexibility when required to shift between various sets of information.)
(my emphasis)
102. Dr C finds that H is achieving the scores he currently has at school because he has support and accommodation:
“23. In terms of his general coursework, H’s grades are fairly solid and he appears to be performing in line with his cognitive potential. However, in light of his learning differences and the profound impact unsupported reading difficulties and executive dysfunction can have on academic outcomes, it can be reasonably inferred that H is extremely well scaffolded throughout the completion of academic tasks and exam accommodations seems to provide him with ample opportunity to demonstrate his knowledge and classroom learning. However, more standardised testing … reveal there to be rather profound gaps in his foundational academics.”
“26. … H is likely to continue to require moderately intensive support and accommodations in order to meet his academic potential over the longer term, especially as coursework becomes more cognitively complex, the demands placed on executive skills increase, assessments become more rigorous and grading parameter stricter, and expectations, in such a competitive environment, intensify …” (my emphasis)
103. With regard to admission into the IB program, Dr C says:
“Students with learning needs maybe admitted if the school believes their needs can be met by the school’s Learning Support Programmes … At present, H’s grades are barely meeting the criteria. As he progresses through the IBDP, parental support at home will most certainly increase his chances of academic success yet based on his current attitude towards his studies, providing the amount of scaffolding H is likely to require may be unachievable given the demands of his daily life and the heavy IBDP course load.” (my emphasis)
104. It is Dr C’s finding that “Yet H appears to lack insight into the nature, severity and impact of his attention problems in his learning.” She makes recommendations on how support can be given to H, both at school and at home.
105. At the end of her report, Dr C also says that H told the examiner that he would “leave school any minute” and his resentment and dissatisfaction towards going to school is further reflected in his self-reported data, which include “I don’t care about school, I can’t wait for school to be over; I don’t like thinking about school – True” and “I hate school; I feel like I want to quit school; School is boring – Often.”
106. The last paragraph in the main body of the report says that H is a “phenomenal athlete” and has recently won the school’s Junior Athlete of the Year Award; he is a very talented and committed soccer player who plays in HK Premier Youth league. “Furthermore, he shared with the examiner that he had already been scouted and invited to play with the Vancouver White Caps Youth Team. His goal is to “turn pro” at 16 years old and play Major League Soccer with the Vancouver White Caps Football Club.”
Cross Examination by F
107. In F’s cross examination of Dr C, he asks whether H, with his learning limitations, be able to pass the school’s diploma program. To this Dr C says while it is always going to be harder and frustrating for them, and that it is important that the child is motivated to do so.
108. F also cites the 100% graduation rate from the International School, he asks Dr C whether it is possible for students that have learning issues like H, to have success in the school. Dr C’s answer is as follows:
“The difficulty is when we see that hundred percent .. success, we’ve got to note that everyone did the IB and the XXX. But what inflates that is we get to a point, as per the learning support document you sent me, where I called it managed out. And so if a child isn’t performing, what I see as a trend across these high-calibre Hong Kong international schools, if you’re not meeting the grade, you are asked to leave. And that’s kind of clearly here, you know, they can support children with mild to moderate learning needs ….”
“So in the [International School]’s XXXXXXXXXXX Policy, there is a statement that says, “Alternative School Placement”. If the school cannot adequately meet the student’s needs, the family may be asked to find an alternative placement.” (my emphasis)
109. In F’s exploration of whether H can benefit from medication as a treatment option for his inattentive symptoms, Dr C has this to say:
“I think as children with ADHD get older, what we typically find is, for want of a better term, the wheels fall off when they’ve got to do things on their own in a self-directed way. At this minute, he’s being well supported, but what the general trend we tend to see is, in the younger years, students are very well supported, they’re taught strategies, and they’re expected to implement them independently as they get older with minimal intermittent support from teachers. So I think it’s in order to pre-empt that as it becomes more – as he becomes more autonomous as a student, we’re ready for that because it’s planning tasks, organising materials, breaking down assignments, they’re all things he’s going to struggle to do on his own with his ADHD until he learns self-initiated strategies.”
110. Dr C also says that some children with ADHD have learned strategies to compensate, without which they start to “academically underachieve” and that is then internalised, and their self-esteem will go down and possibly even lead to drop out of school. She says she see that a lot with kids with ADHD “who cannot manage themselves and self-regulate, mange the curriculum and so they end up leaving school early”.
111. F asks Dr C whether there are other options locally in Hong Kong that could support students with dyslexia and ADHD, her response with regard to H, is as follows:
“As I mentioned, I don’t think it’s his learning differences or dyslexia, because we can compensate for this, it’s his academic motivation. Not everyone wants to finish school. Some people want to leave school and go into a trade and or do hairdressing or be a carpenter. We don’t have access to that sort of thing here because we can’t speak the local language … so its academic motivation that concerns me most.” (my emphasis)
Cross Examination by M
112. Under M’s cross examination, she manages to elicit from Dr C who acknowledges that M was able to see more signs than F of H’s struggle when he was younger as to various learning limitations and the way that it was impacting his studies. Furthermore, M notices that H was becoming more conscious of the challenges he was facing, as at times, he gets nervous when he needs to read aloud in class. Dr C repeats here, that as they become more self-aware, their self-esteem drops.
113. Dr C also summarizes further observations from the recent updated report. In that H is easily distracted and impulsive; his executive function is down in the 10th percentile, he has very variable verbal retrieval with dyslexia, and erratic executive functioning; which all points to ADHD.
114. M has also focused her cross examination on the school support of Children in H’s situation. M says that according to the school support team, H is at the top tier (Tier 3), being 3-5% of the children, who require the highest needs of support and at the highest risk. M says the support that H has been getting at school, which was a new set up from two years prior, has helped H in his grades, but will only be in place for one more year. This is Dr C’s answer to M’s question regarding the disconnect that would take place when that happens.
“… so all schools are different across Hong Kong in what they can provide in terms of support and resources. I believe [the International School] has two learning support specialists, but other teachers that sort of help out as well as … run a class themselves. Essentially, we start to get very … the resources are quite drained as we get higher up in schools, that’s typically what I start to see. Not just that, the expectations change. So we try to throw more resources at children to build their skills in terms of managing, you know their own course load and their attention and building their reading. And as we get older, it all tends to be more on the student themselves with some intermittent support.” (my emphasis)
115. As to whether the excess of support H has results in his current academic scores, Dr C says they are, and adds:
“…and that is why I really highlighted the need that we’ve got to get in and start teaching him how to do what the teachers are doing, for himself. Because we know he’s cognitively capable, we know he can succeed, we know he can do the work, but the problem is the planning, organising, making sure that things are done. That’s going to be his greatest area of difficulty...”
116. Dr C goes on to confirm that the decrease in support is problematic for a Tier 3 student, and this is when they could be managed out because the school cannot meet their needs.
Legal Principles
117. My starting point is found in s.3 of the Guardianship of Minors Ordinance (Cap. 13), which states that the best interest of the minor is the first and paramount consideration.
Legal Principles: Relocation
118. The applicable principles governing relocation application were based on the English Court of Appeal case of Payne v Payne [2001] Fam 473 and adopted by our Court of Appeal in SMM v TWM [2010] HKFLR 308, [2010] HKLRD 37 CA where Cheung JA summarised them at §21 of his judgment as follows:
“1) …
2) …
3) The application should be approached as follows:
(1) Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life? Then ask, is the mother’s application realistic, i.e. founded on practical proposals both well researched and investigated? If the application fails either of these tests, refusal will inevitably follow.
(2) If, however, the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?
(3) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
(4) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist in so far as appropriate. (per Thorpe LJ at paragraph 40)
4) In short, the relevant factors are:
(1) The welfare of the child is always paramount.
(2) There is no presumption created by section 13(1)(b) of the English Children Act 1989 in favour of the applicant parent.
(3) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.
(4) Consequently the proposals have to be scrutinised with care and the Court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.
(5) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.
(6) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.
(7) The opportunity for continuing contact between the child and the parent left behind may be very significant. (per Butler-Sloss P at paragraph 85)”
119. In the case of BA v BL (Child Relocation) [2019] 4 HKLRD 23 the Court of Appeal per Cheung JA reiterated and further elaborated on the approach to be taken in relocation cases:
“4.12 This led to the more recent decisions of the English Court of Appeal such as K v K where it is stressed that, in the determination of applications for permission to relocate, the welfare of the child was the paramount consideration … The three judges in K v K, Thorpe, Moore-Bick and Black LJJ were of the same view on this point.
4.13 …
4.14 … Ultimately it is one of the factors to be considered in the overall assessment whether the relocation is in the best interests of the child and the weight to be attached to this factor depends on the facts of the case. The value of Payne is that it "identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case", per Black LJ at [144] in K v K. In my view Payne is not to be jettisoned. The relevant factors provide a structured framework in which the appraisal is to be made holistically.
...”
120. I have also found the following from Lady Justice Black (as she then was) in the abovementioned case of K v K [2011] EWCA Civ 793 to be of assistance:
“141. The first point that is quite clear is that, as I have said already, the principle – the only authentic principle – that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child.”
121. HHJ I Wong has in his recent case of JTMW v NAV FCMC 8504/2017 [2020] HKFC 244 succinctly summarized important points of principles enunciated in the case of ZJ v XWN at paragraphs 53 - 55:
53. The Court of Appeal endorsed what Vos LJ said in Re C (A Child) (International Relocation) at [82] and [83],
82. I add a few words in an attempt to summarise the position that has now been reached. As counsel before us agreed, in cases concerning either external or internal relocation the only test that the court applies is the paramount principle as to the welfare of the child. The application of that test involves a holistic balancing exercise undertaken with the assistance, by analogy, of the welfare checklist, even where it is not statutorily applicable. The exercise is not a linear one. It involves balancing all the relevant factors, which may vary hugely from case to case, weighing one against the other, with the objective of determining which of the available options best meets the requirement to afford paramount consideration to the welfare of the child. It is no part of this exercise to regard a decision in favour or against any particular available option as exceptional.
83. ...
54. The Court of Appeal also dealt with the use of the “welfare checklist” in the balancing exercise. The “welfare checklist’ is only an aide-memoire. A judge is not required to mechanically list every factor to demonstrate that he has considered the same.
55. The Court of Appeal emphasized that the guidance in Payne or SMM v TWM or the welfare checklist are simply tools to assist a Family Judge in making the multifactorial assessment to reach a result which is in the best interest of the child after taking account of the potential impact on the parents: at [30].
122. The consideration of guiding legal principles will be incomplete without citing what has been referred to as the welfare checklist factors, which have been listed in our Children’s Proceedings (Parental Responsibility) Bill, and has yet to be passed as law in Hong Kong (the “Welfare Checklist”). These are factors that should be taken into account when determining issues relating to children and where their best interest is to be considered:
a. the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding;
b. the child’s physical, emotional and educational needs;
c. the nature of the relationship of the child with each of the child’s parents and with other persons;
d. The likely effect on the child of any change in the child’s circumstances;
e. The child’s age, maturity, sex, social and cultural background and any other characteristics which the court considers relevant;
f. The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
g. Any harm which the child has suffered or is at risk of suffering;
h. Any family violence involving the child or a member of the child’s family;
i. How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
j. (a broader formulation along the lines of) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
k. The range of powers available to the court under this Ordinance in the proceedings in question.
l. Any other fact or circumstance that the court thinks is relevant.”
123. With these principles in mind, I shall proceed to apply them to the case at hand.
Discussion on some Issues
Parties’ relationship
124. It is obvious that the parties’ relationship is strained, this is despite the façade of the smooth operation of the week-on/week-off care arrangement of the Children. It was from the two SIRs and the SWO’s oral evidence that reflect the Children’s awareness of the tension between their parents and the struggle within themselves in the love they have for both their parents.
125. I also recall that M has at times at call-over hearing raised the issue about the F’s lack of boundaries in terms of his physical presence to see the Children sports training or games even though it is the Children’s week with M, and she has restrained from reacting for the Children’s sake. This was a subject matter of cross examination by the M of both the F and S; which is also the basis of her requested undertaking.
126. M’s application has clearly triggered off strong emotions in all involved parties, which have surfaced at this hearing.
H’s Condition and his needs
127. A child’s education needs is one of the considerations under the Welfare Checklist and is an important point to address in this case.
H’s learning limitations
128. Following the two reports from Dr C in 2020 and 2024 respectively, H is now diagnosed with dyslexia and ADHD.
129. H’s learning limitations have been identified, and I do not believe there is any dispute on this diagnosis. Except that according to Dr C’s updated report, F seems to say it “interferes “only a little” with his classroom learning”. Further, F says H is in the mild to moderate segment of learning issues, while M says H is moderate but on the top tier of students with the most serious needs at the International School. But H does acknowledge Dr C’s professional opinion when under cross examination.
130. One of the important issues I have to consider in this application is whether on a balance of probabilities, what M says about the support (or lack thereof) for H at the International School is, on a balance of probabilities, true.
Is the support enough at the International School for H
131. M says the support at the International School is minimal and only started to be available for H during the academic year 2021-22. H now has a personalized Individualized Education Program and is given special accommodation due to his condition; but she says the school support resources continue to be limited and stretched. According to her, H at Grade 6 received support in Mathematics and English as separate independent support classes in the timetable. But this is not offered in Grade 7 and by Grade 9, there is no timetabled support for students in H’s situation. If there is insufficient support at school, parents have to find extra-curricular and intensive tutorial to support children with H’s challenges.
132. She says the International School, like a lot of schools in HK, is focused on academic rigour. H is increasingly aware of his learning differences from his classmates, which is affecting his self-esteem and self-worth. H has become increasingly vocal about this difference and M is concerned this this will intensifies his anxieities on his learning.
133. Turning to the support from the International School. I accept the M’s submission in this regard. Her concern about the dwindling support is corroborated by Dr C’s evidence which I shall not repeat here; as a member of the counselling team at school focusing on adolescents, M is clearly sensitive to and in a position to see the challenges ahead for H in this regard.
134. F extent of opposition to this is to say that there is sufficient support for H. He also seeks to rely on a document from the International School on learning support (“XXXXXXXXLearning Support Procedures”). But according to this document, the International School may only support student in the mild to moderate learning difficulties and may not support H in the longer term as he in the category of serious needs (Tier 3).
135. F’s cross examination of Dr C fails to challenge her evidence with regard to the support system at the International School and her concerns about the students being “managed out”.
136. F did not make reference to Dr C’s findings in her report in his opening submission, and then he makes selective references to Dr C’s oral evidence and incorrectly represents it in his closing submission:
a. He says Dr C in her expert testimony “emphasized the importance of a stable and supportive educational environment for a child with dyslexia.”
I am unable to find on the record that Dr C made this statement. F did ask about how a change in the environment might impact the stability of H’s routine. To which she says it is important to have routine in the home and a relocation does not mean that they cannot have the same consistency at home.
b. He says Dr C “acknowledged the [International School]’s effectiveness in supporting H’s academic potential, thereby challenging the necessity of relocation for education reasons.”
While Dr C acknowledges that the school is providing sufficient support for H considering his learning issues at the point of time, this is taken out of context in the light of Dr C’s subsequent evidence about diminishing support, removal of scaffolding, and H’s lack of motivation.
c. He also says Dr C also confirmed the availability of alternative educational institutions within HK capable of supporting H’s learning needs, further suggesting that relocation is not necessary.
Reference is made to paragraph 111 above, Dr C actually did not say there is alternative education institutions.
137. On these bases, I find that H’s support in the International School is likely to be decreasing as he moves up to the High School; and this lack of support will no doubt has a negative impact on him, not just in the likelihood of declining grades, but also a damper to his self-esteem.
Is support in Kelowna better?
138. On this point, it comes down to the research that M has done. On one of her trips to Kelowna, she seeks out the support that is likely to be available at the schools in Kelowna; and she also attended KSS in person.
139. KSS accommodates a wide range of neurological profiles. M says that KSS is well equipped and resourced, and well-staffed with specialist teachers, which is available to a student throughout to High School graduation and into university. KSS allows students to incorporate sports into their daily routine, M says H is an avid sportsman, and this will boost his self-esteem. M also provides KSS’s curriculum in evidence, there are 246 specific courses in total and a wide range of options offered, these options allow pathways into the academics, vocational / trade training as well as sports.
140. M says that sports as part of the Children’s education is vital. Sports plays an important role in the Children’s life, and this focus is endorsed by both parents. The schools in HK, and certainly not the International School, cannot offer what her choice of schools in Kelowna offer, which gives H more options for future development.
141. M has a contact at KSS who is a learning support teacher for the school. She was informed that KSS has a:
“… well designed management system and structure for children with dyslexia. It offers far more resources to implement its structure and system than are available at [the International School]. She confirmed to me that there will also be extracurricular support in school. Examples accommodations afforded to a child with H’s challenges would be adaptation such as Google read/Write, extra time, audio books, oral response when appropriate, and so on. It would be selected based on what is appropriate for each student, tailored for their individual needs. He would also be supported by its Learning Centre and the one-on-one assistance it makes available. KSS also has drop-in sessions during school hours and lunch time for students who needs it. These students will also have the option to write exams in the Learning Centre. Overall, it is more enhanced, experienced system which H can greatly benefit from.”
142. From the meeting with this learning support teacher at KSS, she produced a note detailing the information from their conversation. This is entitled “School District 23: Learning Support Assistance for Students with Diverse Learning” (the “Note”). This short document covers topics including dedicated learning space, staffing, Individualized Education Plan for students, school-based assessment for students, post-secondary articulation support, collaboration and support within school-based teams to ensure cohesive support for students. The Note was confirmed to accurately representing the services and staffing positions at KSS by the person who met with M.
143. M also made contact with the District Principal of XXXXXXXXXXX, while the latter declined to endorse the above Note from M as she says she opted not to put her name in family legal issue; M records the following from their meeting:
“[The District Principal] confirmed that the district’s driving philosophy hinges on the development of a sense of belonging and strong self-advocacy skills. Both components are shown to service as drivers in overall wellbeing and academic success. The district priorities this and strives to make sure all students feel safe, valued and part of an inclusive community.”
144. M also produced Ministerial Orders (“Individual Education Plan Order” and “Special Needs Student Order”) from the provincial government which directs the development, enforcement and review on an annual basis, individual education plans for students with special needs.
145. M also accesses the Enhanced School District Report which shows that the percentage of learning diversities needs of the Children in central Okanagan are in the 17-20% range of each grade in Kelowna’s High School, which she says is more than that in the International School. M says:
“For students like H with learning differences, this would be a welcomed change compared to the lack of learning diversity here. I believe he will feel much more normalized as a learner there. This is important because feeling included and socially and emotionally safe is the strongest marker for academic success. … On average, class sizes are smaller in [Kelowna] compared to [the International School] (Grade 8,9,10) which is also of great benefit to H and G. Small class sizes are desirable for a wealth of reasons: the most obvious being attention. The smaller the class size, the higher likelihood that the classroom teacher actually gets to know a student and how they best learn. Instructions can be better differentiated to meet individual needs, especially when learners have differences and how they learn. Students in smaller classes are also more likely to advocate for themselves in a variety of ways as their behaviors are positively reinforced - the teacher can give students more time, and students are more likely to feel safe and heard. All of this is highly beneficial for Harrison as he is best served if all teachers have the capacity to meet his needs (rather than just a few on the learning support team).”
146. Turning now to how F has challenged these support frameworks in Kelowna. F says that there is declining funding for British Columbia, on this he produces the Central Okanagan Public Schools Superintendent of Schools / CE 2022/2023 Budget Recommendation Report. According to him in his Affidavit, he says this report show the following:
- A reduction in mental health supports for middle schools $150,000 CAD.
- A decrease in a 1.0 FTE position overseeing student support for classrooms.
- A decrease of $92,774 for the XXXXXXXXXXXX Department.
- A reduction of 7.5 FTE teaching positions resulting in larger class sizes and a higher student-to-teacher ratio.
- No budgetary increase for additional in-class supports for classroom support, social emotional, literacy, numeracy, and mental health supports.
147. First of all, when F produced this report in evidence, there are only 5 pages, and a remark on the first page reads “ONLY A PORTION OF THIS PUBLICATION IS SHOWN. THE ENTIRE ARTICLE CAN BE PROVIDED UPON REQUEST.” F has produced around 200 pages of exhibits to this Affidavit, but I do not have the full content of this report on which he relies. In trying to see the basis of his comments from this report, I am only able to find on the second page the comment:
“The District has shifted its mental health support model from Child and Youth Mental Health clinicians to ARC clinicians to provide a more proactive service at the middle schools resulting in a savings of $150,000”
In my view, the above comment, if this is what the F is referring to, is not a “reduction in mental health support”, but a change in the model of support. This is also made with reference to middle school, which is not where H is heading. And lastly, this was a budget proposal, and it is not clear, even if it has the impact that F alleges, whether these budget proposals were implemented, or represents a trend. I am therefore unable to place weight on F’s case in this regard.
148. Furthermore, he also challenges M’s Notes during her cross examination, he then says she lacks the expertise to perform the evaluation. My observation is that M is not performing an evaluation report, the Note contains the content of discussion M has with the support teacher at KSS, which was verified by this teacher after. F then says the District Principal refused to endorse on it. M explains that she did meet with the District Principal but did not compose a report for the latter’s confirmation as she respects her decision not to be involved in legal proceedings.
149. I do acknowledge that the information from both the Learning Support teacher and this District Principal are hearsay evidence and appropriate weight will be considered, but F has not challenged the accuracy nor the veracity of the information that M has gathered.
150. Considering all of the above, I find that, on a balance of probabilities, H should be able to access more support in Kelowna than he can if he stays at the International School, he would also be able to access a wider range of curriculum and therefore choices, to ensure he can optimize his personal strength for his future development, be it in the academics, or any other area.
H’s cross examination of M’s partner K and his allegation of M coaching her witness
151. F challenges K that as she has no father in her life, whether it makes it easier to see or to imagine M relocating, and “moving the kids away from him”; he also asks K to elaborate on what things other than H’s education that she sees as more important such that the father-son bond be disrupted. To which K responds, that both M and K want F to also move back to Canada, that there is no intention to remove the kids from him, but Canada has much to offer in terms of both academics and athletics for the Children.
152. F asks about K’s efforts to look for work in Canada, K says she can look for teaching jobs, which she says is in demand in Canada; or jobs in coaching, or consultation on mental performance in sports, in which she has just obtained a degree. F challenged K in that she has not yet applied to BC College of Teachers, and K says there will still be time as the relocation is aimed for 2026. K confirms that even with her Ontario training, she is well able to teach in British Columbia.
153. There is a part of F’s cross examination which needs to be highlighted, the following is the exchange of questions and answers:
“F: A key concern, or I guess a question, is how you can justify, rolling back a few years back, being a key player in the breakup of a heterosexual relationship, marriage?
Court: Key what?
F: Key player, a key …
F: You played a key role, I’m sorry, in [M] and my divorce. I talked to you about it, we went there, and now here we are, what, five or six years later, and you’re using the fact, you’re like “I” – you know, “ I’m a lesbian, I am going to break up” – you know, “[M] and I want to have a marriage”. Okay I tried to deal with it, we move on, and now you’re saying, “Oh, we’re in Hong Kong, I’m in a lesbian relationship, I need to move back to Canada. And not only am I moving back to Canda, I want to take your kids”. That doesn’t sit well with me. How can you justify those types of decisions?
K: I’m not sure what you’re asking me
F: How can you – are you okay with knowing that you played a role in a divorce, a very strong role, and now are playing an even bigger role in the relocation application that will possibly cause a lot of harm and distress to the kids and to me, and damage my relationship with my own kids, Are you ok with that? It’s a yes or no question.
K: I don’t know if it’s…
Court: It’s not a yes or no question …
F: I’m making it a yes or no question.
Court: … even if I’m allowing it.
F: Pardon me?
Court: I said, even if I allow it, it is not a yes or no question. You said, “How do you justify?” How can you say yes or no to the question “How do you justify?”
F: Are you okay with the way things have …
Court: So you’re changing your question?
F: No
Court: What do you want to ask?
F: I want to ask, do you think that there’s anything wrong with those actions?
Court: Actually, [F], I heard – I might put a stop to questions that I do not think is relevant to the application.
F: Okay
Court: I think this is bordering on one of them.
F: Yes …
Court: This is not the platform for this.
F: Okay
Court: and you know what I am talking about.
F: Okay
154. At this point M was in tears, and K was visibly disturbed by the line of questions that F was putting forward; I adjourned the hearing to the following day. Looking at the way the questions were phrased, and F’s attitude at the relevant time, I find that it was quite oppressive and highly inappropriate of F to use the court process to vent his hostility towards the person he thinks has destroyed his marriage, and to express his discontent with M for leaving the family for her relationship with K.
155. On the following day, K continues to deal with questions about employment and managing of living expenses, there were also questions regarding her role with the Children.
156. F also embarked on a line of questioning for K, as to why the relocation is for Kelowna and not Vancouver. This is clearly not a question for M’s partner, but should be addressed to the applicant. When asked why she did not ask M, F says that this is an important question, but he did not have enough time to ask M when he was cross examining her.
157. At some point during this day 2 of the cross examination, F suddenly asks K whether she spoke with M on the case the previous night and K says they did. She says she was not aware that she should not. When asked what they talked about, K says:
“I was instructed not to meet with her at lunch. Most of it was around emotional support and it was a difficult day yesterday.”
“Really just how I felt in the box, kind of over some of the points that were made, and that was really it, and just how difficult this is.”
158. At the end of K’s cross examination, I asked K specifically whether the M coached her on what to say in her oral evidence, K says no.
159. F wrote to the Court after the hearing in February 2025 and complained about M coaching K. He says this was admitted by K under oath that discussion has taken place. He says that as a result K has “altered her testimony regarding her university education, which directly affected her credibility and the relocation application.” He then quoted the case of R v Gary Skinner (1994) 99 Cr App R 212 and says this “precedent underscores the importance of preventing any discussion that could influence witness testimony.”
160. Dealing first with the cited case. This is a criminal appeal, in which one of the bases involves allegations of police witnesses speaking to each other prior to going into Court to give evidence. It was indeed mentioned that as a general principle, that witness talking to each other prior to giving evidence in court, should not take place, and I agree that this principle is trite. This appeal was dismissed, and is also distinguishable from the present case as it involves police officers in a criminal trial.
161. F also says she K has altered her testimony with regard to her education. On day one of her cross examination, she was asked if she received her teaching credentials in the States, and she said it was OISE (Ontario Institute for Studies in Education) at the university of Toronto. Then on day two, she was asked if she went to Rice University in Texas, USA, and K says she went to Rice for undergraduate study in Kinesiology. When asked about the change in the answer, she says she thought F was asking about her education degree, which was not in the US. Looking back at the transcript of the hearing, it is correct that F was asking about her “teaching credentials”, which K rightly answered. Furthermore, K’s qualification is mentioned in M’s affirmation. K has not changed her evidence. Considering the significance of this line of question, I take the view that this may go towards the type of employment that K may be looking for. She has consistently said she is looking for work in education or mental performance coaching, both of which she is qualified to take up. I have further looked at the line of questions on the first and second day of her cross examination, there does not appear to be any change from her position in her Affirmation or change of direction in her answers at trial. I see no element of a lack of credibility here that affects her testimony in this regard, or the M’s relocation application.
162. M and K live together, if there has been the need to align on what to say at this hearing, they do not have to wait until the trial; if there has been coaching deliberately for the purpose of the onward evidence, K would have denied that she talked to M. Furthermore, K’s evidence corroborates M’s in terms of her relocation plan, and whatever allegation F has against K’s evidence, it has not diminished the merits of the M’s case.
163. While the M should know better than to talk to K about the hearing, I take the view that there has been no “coaching” that the F alluded to which affects the evidence or prejudice him. K is here to support M’s application, what is important to me is her ability as a co-carer of the Children; and to a lesser extent, her job opportunities as her finance will supplement M’s. I accept her evidence in her continuous role as friend and mentor to the Children. I agree with her that she is not here to replace the F; but her continuous relationship with the Children will allow her to support them in their transition to life in Kelowna. I also accept her evidence with regard to her confidence in job hunting in Kelowna, her education in kinesiology, teaching, her previous role as a basketball player for XXXXXXXX and her qualification in mental performance coaching should place her well to look go for positions in schools, or in private practice.
Dealing with F’s objections
164. I have never doubted the F’s love and strong bond with his children. I understand this is the very reason F is fighting so hard to resist M’s application. I have extracted his objections from his affidavit and his submissions and broadly deal with them as follows.
165. There is no contravention to the Order previously made with regard to the Children’s arrangement. M does not need F’s consent to plan for or to make an application for relocation. It is apparent that there has been conversation on this topic but to no avail; M has properly applied as there is no consent from F.
166. While it would have been ideal, there is no “foundational principles of equal parenting time” in this jurisdiction.
167. In the inevitable reality of a relocation application, it is unavoidable that any children will need to be separated from one of the parents, there will be strong emotions and time with the stay behind parent will be reduced. It will also naturally follows that the children will need to adapt to a new country, new school, new environment and social community, and make new circle of friends. This is the very reasons that these concerns are factors that the court has to weigh in this decision amongst a whole basket full of considerations.
168. F argues that the relocation of the Children to Kelowna “necessitates adapting to unfamiliar cultural and social norms”, I do not accept this argument, moving to Canada for H and G should not be difficult to adapt as they have been going to Canada on a regular basis since a young age, H was born there. And Canada is not an unfamiliar place with unfamiliar cultural and social norm to them.
169. F argues that he will not be able to provide academic support to the Children as he does now, and this will “jeopardize H’s academic progress”, and as this daily support system would cease to exist, H has to “navigate academic challenges independently”. I am somewhat surprised that F seems to suggest that he will not be providing assistance to the Children should they relocate. In the same way that F can assist when the Children spends the week with M, support can still be provided remotely, if need be, time difference considered. H would also have assistance from school, and both M and K are available if the F is not able to provide help.
170. This Court is not bound by the SWO’s recommendation. For this case, it should be highlighted that the Officer has no criticism on the M’s plan nor the F’s intention, and it was not an outright “no” to the application. The SWO stressed twice in the two reports that the relocation is not supported at this stage, he has arrived at his recommendation taking the Children’s wishes heavily into account; whereas this Court will look at the SWO recommendations as one of the many factors it has to weigh.
171. The Children’s wishes is also one of the factors I have to consider in my balancing exercise and will be dealt with below.
172. F says H is thriving in the school, but he has omitted to address the comments made by Dr C that H has the grades only because he has the support he is given from school; and that once the “scaffolding” is taken away, H will struggle. Dr C says that although he has the cognitive capability, H still lacks the organising and planning ability to enable him to finish his tasks and be successful academically.
173. F says he is concerned about the availability of support for H, this has been addressed above.
174. F has suggested that if support if not enough at the International School, M can look to other international schools locally. M says in her 1st affirmation that the reasons why H and G are in their current school is because the parties teach there and their tuition is largely subsidized; and that the school teaches a Canadian curriculum alongside the IB curriculum, which is important considering the Children’s wishes to go to Canadian universities. She has also explained in her subsequent affirmation that other local options have been explored, she is concerned about the quality of these other schools, and the financial burden that comes with it as the parties will not have the tuition discount they have at the current school.
175. F makes reference a number of times in his closing submission to the “XXXXXXXX Learning Support Procedures”, this document came in as further information by agreement of the parties. This document, relied on by F, talks about the support that the International School will offer to students with special needs; and F says this shows that the school has a proven record of successfully supporting students with diverse learning needs. However, as above mentioned, that support at the school is given to Children with mild or medium learning needs, but H belongs to the tier of children with more serious needs so there is no certainty that the International School can support H is the way that he thought they could. Furthermore, F has made no comment on the paragraph titled “Alternate School Placement” which appears to be the school policy where students maybe managed out:
“Alternative School Placement
With the student’s best interest in mind, and if the School cannot adequately meet a student’s needs, the family may be asked to find an alternative school placement.”
176. F says that letting the Children relocate will cause a breakdown in the relationship between them and their half-brother C. M contends that C was only 16 months at the time of the hearing, and that the Children do not get to see him that often. From M’s cross examination of S, she accepts that during the week when they are with F, the Children left before C wakes up and the Children return late from activities in school, and C may only attend their games once or twice a month during the weekend. M therefore says the F’s alleged extent of damage caused to C from the relocation of the Children has been “hyperbolized”. I tend to agree. I acknowledge that relationship between siblings and half siblings are important, but it is difficult to accept, on F’s say-so, that there will be “profound emotional distress and development challenges for all his children.”
177. F also says the living arrangement with the maternal grandmother “raises concerns due to the lack of personal space and potential for conflict, creating an unstable environment that would hinder their development”. There is no evidence before me that supports this contention. The maternal grandmother now lives in a house with 5 bedrooms, in a gated community on a golf course. This is a place where the Children often spend time whenever they are in Kelowna, they are familiar with the neighbourhood and the community; contrary to what F alleges, I take the view that the Children will transition better under the current proposed accommodation plan.
178. F’s criticism of the M’s plan that she has not secured employment or long-term accommodation are both unwarranted. It is not expected that the applying parent would have confirmed job positions or found a permanent place to stay in the intended relocation country. It makes no sense for a parent to look for a job and rent or buy a residence prior to the Court granting permission for children to leave. The important point here is whether research has been done in this regard, and apparently M has provided evidence of her writing to Kelowna seeking job opportunities, quoting her qualifications; and she is confident that looking for a job will not be a huge challenge for her or K. Her plan to stay with her mother initially while waiting for jobs to be secured is also sound and sensible.
179. F emphasized that he plays an important role and is very much engaged in the Children’s lives, I have no doubt about this. And for this reason, I also have no doubt that their bond will continue despite the physical distance between them. This is also a view confirmed by the SWO.
A Return Home Application
180. M says this is a return home application, I agree. M is Canadian, she was born and raised in Kelowna, her family is in Kelowna and nearby, she has worked there as a teacher, kept contacts in professional and personal capacities, and know Kelowna well.
181. It has often been said that a return home application by a primary carer of the children should be considered as a lower bar to cross than otherwise Re R & H per Thorpe LJ at §9:
“… the bar as to the practicalities that must be jumped by the relocation application is set at a wide variety of heights depending on the facts and circumstances of the case: the bar is particularly low when the primary carer is returning to the completely familiar hole life after a brief absence.”
Even if the F were to argue that M is not the primary carer and their stay in HK is not brief, I take the view that this principle still applies as the rationale is obvious. The familiarity of the applicant to a previous home base, the knowledge of the proposed place of residence and the community will make transition easier for children in general; the presence of family members in providing support for the applicant and care for the children are additional factors to take into consideration. All of these elements are present in the M’s application.
My findings
182. The following deals with the application of the principles and guidelines from the caselaw to the facts in this case.
Are the applications genuine and not motivated by the M’s desire to exclude the F from the Children’s life
183. Looking at the parties’ respective cases, I accept M’s reasons for her application. Most importantly, she has concern for H’s academic progress in the current school, Dr C’s report also confirms his situation. I accept this evidence and find that M’s application is genuine and not motivated by her desire to exclude the Children from F’s life.
Is the application realistic and found on proposals well researched and investigated
Accommodation
184. M says she will be staying with her Mother, and will find more permanent accommodation at a later point of time when she and K are more settled. Her mother’s residence is in the catchment zone for the schools she has proposed for the Children.
Schools
185. M has identified schools for both Children. And in particular for H, has conducted research into what support is available for his special education needs.
Financial
186. M has done research on her possible income and outgoings and discussed this in her Affirmation. I am satisfied that she has the financial means although recognising that she would have limited savings based on her estimation. However, M could also look to the income that K will bring into the household to ease any financial burden. She has said that she would like F to contribute to the Children, F has offered this in his statement of proposals in the event that relocation is granted, and his undertakings will be dealt with below.
Care Plan
187. Other than M and K taking on the key carer roles, the maternal grandmother, and M’s siblings and friends are on standby to provide assistance. I accept this arrangement and note that there are extended family in the vicinity.
Is the F’s opposition motivated by genuine concern for the future of the the Children’s welfare or is it driven by some ulterior motive
188. I find that F’s opposition stems from his main concern that he will lose his relationship with the Children. He has gone as far as saying that M is cutting him off from the Children’s lives; from the F’s case and his oral evidence, I understand his concern but find that his allegation has not been substantiated.
189. There is no ulterior motive on the F’s part.
Will the granting of the Relocation Application be detrimental to F and his future relationship with the Children
190. In answering this question, M has submitted that she hopes F will reconsider returning to Kelowna. In this regard, there will be no change to the current shared care arrangement; but if F fails to do so, then it would be his choice.
191. On my assessment of the situation, taking into regard M’s generous offer in terms of holiday time and remote access she proposes; and also that there was no allegations that M has been obstructive in access at all, I am of the view that F will be able to maintain his relationship with the Children.
192. I am also satisfied that F has the financial means and his personal leave days based on school holidays to travel to meet the Children.
To what extent would that be offset by extension of the Children’s relationships with the maternal family and homeland?
193. M has produced in evidence photographs of the time the Children spent in Canada with their extended family. M has brought the Children back to Canada several times for both summer and winter holidays in the past.
194. The Children’s maternal grandmother, uncle and aunt and her family, maternal grandfather and step grandmother, step aunt and uncle and their families are in Kelowna and in other parts of British Columbia. The Children’s paternal grandparents and aunt are in Cranbrook and Creston, British Columbia; and paternal uncle in Alberta.
195. It would clear that the Children, in relocating to Canada, will be surrounded by a number of family members, including cousins of similar ages. I have no doubt that there will be physical and emotional support to the Children during the time of transition.
What would be the impact on M on the refusal of her realistic proposal?
196. M has repeatedly said in her affirmations and submissions that the refusal of her application will have a detrimental effect on her. She has struggled with seeing the Children’s best friends’ family leaving HK, she is homesick and misses her extended family members, and she has no other family members in HK. She says as K is also desirous returning to Canada for the long term, and while she has been accommodating, M thinks that if she has to stay in HK in the next while, it may cause more stress to their relationship.
197. I accept M’s concern; I am of the view that an unhappy mother will always have an impact on the Children she parents. If the M is depressed, stressed and unhappy, she cannot give what she lacks, and it may reduce the quality of care that she can provide to them.
Other factors to consider
198. Reference must be made to the Welfare Checklist wherein stressed the need to consider the wishes of the children.
Wishes of the Child
199. I make reference to the quotations above from the two SIRs where the SWO reports on the views of the Children.
200. I am also conscious of the need to take into account the Children’s views as this is a decision that affects them. This will be dealt with in my holistic assessment below.
Education Needs
Any harm which the child has suffered or is at the risk of suffering
201. These topics has been covered above with regard to H’s needs.
Holistic assessment of what is in the best interest of the Children: theBalancing Exercise
202. I have only one guiding principle in making the determination for this application, I have to decide what is in the Children’s best interest. Relocation cases are always challenging, while the decision requires a black or white answer, the balancing exercise that is required to be undertaken consist of several shades of grey.
203. I have decided to allow the Children to relocate to Kelowna with their mother.
204. I have considered a number of factors, the most important of which is H’s education needs, I have elucidated above the details from Dr C’s evidence. I accept the concerns that have been raised. More particularly this has to do with H learning limitations, which is both his dyslexia and his ADHD. I have accepted that H will be receiving less support as he progresses up in the school. It is not because he does not have the cognitive understanding, but the concern is in his lack of ability to manage his schoolwork, and motivation to do so. F is particularly proud of H’s honour roll achievement, but Dr C has opined that H could not be there without the support he now has. This then begs the question if those support falls away when the school is unable to provide to him, what would happen to H.
205. M says she is fully aware of the fact that there will be insufficient support as H moves on. This is because she is on the counselling team and would be in a position to see this happening to the students at school. On the contrary, F appears to be less sensitive to H’s conditions. He says that H’s difficulties is not affecting him, but this is not what Dr C, nor the school, nor the M says.
206. While F attempts to put forward the case that the International School will continue to provide the robust support that H needs, he did not highlight in his submissions his own email exchange with the Learning Support Co-ordinator in May 2024. This deals with his ask of the Co-ordinator of an IB Evaluation Report which highlights the lack of support at school. For Year 11-12, the report says there is an “unmanageable ratio of learning support teachers to student’s needs”; for year 9-12, there is limited learning support and only one learning support teacher available the Upper school. To this the Learning Support Co-ordinator agrees, and his answer is that additional support is needed. This is precisely what M is saying. Furthermore, The XXXXXXXX Learning Support Procedures (on which the F relies) also says this:
“The Upper School is resourced to support children with mild to moderate learning needs who can access the school curriculum. The school is not resourced to support children with moderate to severe learning difficulties …
For the sake of clarity, this means that a … student will be expected to keep pace with and progress through [the school curriculum]…
As mentioned above, M says that H is in the moderate learning needs segment but still at the top tier of students who has serious needs.
207. In the absence of support, one has to consider what would happen to H, two issues stand out here, and these come from the psychoeducational report. One is Dr C’s concern about H’s lack of motivation, the second is that H says to the examiner that he does not like school. While the latter point speaks for itself, my understanding of Dr C’s evidence is that when there is not enough support, H has to learn on his own, and when he is not motivated and not interested in school, it does not matter if he has the cognitive skills, he will struggle.
208. On the evidence before me, I am of the view that, on a balance of probabilities, there is a chance that H will not have the ability to keep up his grades when the school support and accommodation decreases or stop, and there is a chance that he may be “managed out”, using Dr C’s terminology.
209. I recall that F has asked M in his cross examination whether it is reasonable to actually wait to see or wait to have a child show more solid signs of struggle before attempting the relocation change. M says that she was unable to have a constructive conversation with F on this. Pondering on this approach, and even putting aside whether parties can even agree on what are “solid signs of struggle”, I do not think F has considered the extent of psychological or emotional harm H will suffer while waiting for the signs to show.
210. H is aware that he learns differently from his classmates, he has struggled when he was suddenly asked to read out things in class without prior preparation or accommodation. When this happens, there will be a negative impact on H’s self-esteem and confidence.
211. What M has done in this application is to pre-empt a situation where H may have to suffer the fate of diminishing support at school, struggling in class trying to catch up or face the eventuality of being “managed out”. M puts this in her opening submission:
“When the above educational needs are better met in Canada, the children’s emotional needs will follow suit. The additional of extended familiar presence and support will bolster that which is already provided by their parents and immediate family. H in particular will enormously benefit from being in a school which accepts his learning differences and gives him the opportunity to excel.”
212. It appears from the evidence that what the Kelowna schools can offer is a more flexible syllabus including the integration of sports into academic studies leading to further development in a “sports pathway” which plays to H’s forte. F has clearly opposed this as this takes away from the Children the academic focus schools in Hong Kong, he says H has indicated his aspirations to be a businessman and an architect, and he says M’s action has reduce H’s opportunity in this respect. I do not agree with the F’s views; he has not proved that a child studying in Kelowna cannot one day be a businessman or an architect. I accept the M’s position in opening up possibilities to H at this point of time, recognizing H’s limitations and protecting him from the possible harm of feeling like a failure.
213. I have considered what local options the parents have, this was briefly covered above. M says that the Children are at this International School because the parties teach there, and they have an 80% discount on the tuition. In her last affirmation, she says there are limited choice if she is to look at international school with a Canadian syllabuses, she has said that the two choices she found was either not appropriate on not of the quality as the current International School; not to say the parties will also not be enjoying the tuition discount they now benefit from. F says he can pay for the tutorial, but M says H will need substantive support if they remain in HK and engage help here, she worries about how much tutorial is required to enable H to catch up with the rest of his class, and how much this would intrude into his daily life and his much preferred sport activities after school.
214. As mentioned above, I have accepted M’s position that Kelowna has more support for H than his current school, and I will not repeat the points here.
215. I am very conscious of the Children’ wishes as reported by the SWO. Children’s wish is only one of the several factors that I need to take into account given, in particular, H’s age. I understand the Children want both parents to be in the same place; as would most children who go through their parents’ divorce, and those who may need to face a change of residence to a different country. But as reported by Dr C, H lacks insight into “the nature, severity and impact of his attention problems on his learning … and to a lesser degree, his conduct”. This will in turn negatively impact his performance in an academically focused environment. Having considered this and weighing against other factors, the Children’s wishes in my view do not tip the scale in my overall assessment of this case and my decision to let them leave for Canada.
216. I have not forgotten GXX, and there is no doubt that he is a bright, friendly, outgoing child who is doing well academically and engaged in diverse extracurricular activities. A child who does well at school will do well in any education institution. The F’s objections put education in Canada in a most inferior position compared to Hong Kong. I recall that that both Children have expressed their wishes to continue their university education in Canada, and F did not contest their views.
217. I have considered the SWO’s recommendations. It is his findings that M’s application is genuine and not intending to exclude F from the Children’s lives, and that her relocation plan is sound. The only hesitation he has on both occasions is the Children’s reaction and therefore he could not support the application at this stage, he therefore urges the parents to discuss a future date for the Children to go to Canada. Indeed, the SWO has said that both Children presented to have no obvious difficulties staying either in HK or Kelowna. I repeat here that M has actually elicited from the SWO that if support to H is not sufficient in HK, and Canada can provide the education system to provide his needs, his recommendation may be different. The SWO also says that he feels that the strong connection between F and Children can be maintained if relocation is granted given the history of the care and control arrangement, the cooperation between the parties and the M’s access proposals.
218. The shared care arrangement has been smooth in the past. There was no obstruction of access, and I am confident that M will continue to provide generous and unfettered access to the F subject to the Children’ schedules, which I am also confident that F will honour. Both the Children are old enough to maintain their line of contact with F.
219. Admittedly, there will be a change in the amount of time that F is able to spend with the Children. With the Children moving to Canada, he will only be able to see them during the holidays; and M has offered a generous share of the Children’s holidays to him. Dr C has said that it is the quality of the time together that is more important than the quantity. I am of the view that the occupation of the F as a teacher enable him to have more time to spend with the Children, and he has more leave following a school timetable, and there are longer holidays than an average employed person. F has made trips for home visits to Canada in the past, his own parents and siblings is there, and there is no reason why this would not continue. F is also in the financial position to make this journey by himself, or with S and C.
220. I have also considered M’s concern about her mental condition. While she is not at a stage at which she is in a position to produce medical evidence or require medical intervention, I accept generally that a mother who is in a good mental condition will always be able to parent better than otherwise.
Timing of the Relocation
221. M asks that the relocation to take place in Summer of 2026. Considering all the variables that can arise, I have decided to allow the relocation with immediate effect. This will give M the liberty and flexibility to decide what is the most appropriate time to leave for Canada with the Children.
F’s Access after relocation
222. I have reviewed both the parties’ open proposals with regard to the access arrangement. I have decided that M’s proposal is a reasonable one. She has offered all of the Children’s holidays to F except for:
b. Summer Holiday to be split with 2/3 of the time to F. F asks for the whole of the Summer Holiday, but it is only fair that M can have some time in the Summer holiday period with the Children to enable them to take some trips together further afield.
c. Christmas holiday to be shared 50-50 between the parents.
For the Christmas holiday, given that sometimes there may be travel plans, parties may consider the option of alternating Christmas holidays year on year, e.g. F have access to the Children for Christmas 2026, and M has the Children for Christmas 2027. This could be a subject matter for discussion between parties with a default position.
223. F is to have daily remote access for 30 mins, at a time to be discussed between the parties.
224. It is acknowledged that there may be times when F can visit the Children when there is a school holiday in Hong Kong but not in Kelowna, e.g over Lunar New Year; or it could be on an ad hoc basis. If not already planned when they discuss the annual holidays, there should be proper prior notice to M on these trips and should not be disruptive to the Children’s school schedule or activities.
Contribution to travel costs
225. I do not accept F’s ask for M to share every single trip he and his family take to visit Canada or other places to meet up with his Children. In particular, the difference between the salary of the parties after relocation highlights the unreasonableness of this proposal.
226. I only intend to make an Order that M contributes 50% of the airfare of one trip per year for the Children to meet up with F, this could be to Hong Kong or a place where F intends to spend a holiday with the Children. This contribution shall end on each child attaining the age of 18.
Parenting Co-ordinator
227. I accept that M will continue to engage in conversation with F regarding the Children, and in particular co-ordinating F’s access.
228. That said, given F’s submission in his open proposal, and M’s concern about the difficulty in communicating with F, a parenting co-ordinator should be engaged so that the parties can plan the F’s access time to the Children when the respective school calendars are available, this could be done on a once a year basis, with forward planning from both parties. The costs of the parenting co-ordinator should be shared equally between the parties.
Undertakings by F
229. In the F’s open proposal, he states his position to share equally the Children’s education expenses, and to include, all ECAs, sporting opportunities, academic tutorials, counselling sessions and medical costs.
230. This is accepted as an undertaking by the F to M and this Court.
Costs
231. As these applications concern children, I shall make the usual no order on costs.
The Order
232. Upon the undertaking by F in paragraph 229 above, the Orders to be made are as follows:
a. The M’s application for leave to relocate H and G to Kelowna, British Columbia, Canada be granted, with immediate effect.
b. The Order for the Joint custody of the Children shall continue to stand.
c. On relocation, Care and Control of H and G be granted to M.
d. The access arrangement after relocation shall be as follows:
i. F shall have access to the children for 2/3 of Summer holidays, whole of October Break, Lunar New Year and Spring Break.
ii. Christmas to be shared on a 50-50 basis, with the option of alternating on a year-on-year basis subject to agreement between the parties, and if not agreed, the parties is to share equally the number of days for this holiday.
iii. Remote access daily not less than 30 minutes at a time to be agreed between parties taking into account the Children’s school and ECA / tuition timetable.
iv. If there is to be any ad hoc access, F should give M 21 days prior notice of his travel plans.
v. M shall contribute 50% of the airfare of one trip per year for the Children to meet up with F, this could be to Hong Kong or a place where F intends to spend a holiday with the Children. This contribution shall end on each child attaining the age of 18.
e. A parenting co-ordinator be appointed for the purpose of discussions on access for when the parents are in Hong Kong and Canada respectively, whose costs is to be shared equally between the parties.
f. I make no Order as to Costs, including all costs reserved. This to be a Costs Order nisi to be made absolute within 14 days of this Order.
233. The parties are directed to obtain a Mirror Order in Canada of the terms made herein, costs to be shared equally.
| | (Thelma Kwan) |
| | District Judge |
Both First and Second Applicant acting in person