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Wood v. Wood

CASE STUDY: WOOD V. WOOD


Note: This case is a stark illustration of the complete failure of the Japanese legal system to protect children. The Canadian court rendered a careful evaluation of the case. The mother then abducted the children to Japan and the Japanese courts sanctioned the mother's actions. The children have been effectively stolen, not solely by their mother, but by the Japanese legal system. --Jeremy D. Morley


This is an unofficial translation of the judgment of the Saitama Family Court in the case of Wood v. Wood, issued on July 8, 2005. A request to appeal to the Supreme Court of Japan was denied on September 6 2005. Other documents concerning this matter can be seen at http://public.sd38.bc.ca:8004/~MWood/Home%20Page

 

Saitama Family Court

Shimizu Atsushi, Judge

Heisei 17 (KA) Case Nos. 30045 and 30065: Motion for Change of Custody

TRIAL

Registered Domicile: 4-4 Ennami, Chuo-ku, Saitama City, Saitama

Address: 4-4-20 Ennami, Chuo-ku, Saitama City, Saitama

Plaintiff: Ayako Wood

Counsel for Plaintiff: Shinichiro Isu

Nationality: Canada

Address: 424 41st St. Vancouver, British Columbia, Canada

Defendant: Alexander Murray Wood

Counsel for Defendant: Masayuki Honda

Registered Domicile:Same as the Plaintiff's address

Address:Same as the Plaintiff's address

Age of Minority: Alexander Takara Maniwa

Born on May 21, 1994

Nationality: Same as the Defendant's nationality

Address:  Same as that of the Plaintiff

Age of Minority: Manami Sheona Maniwa-Wood

Born on January 6, 1997

JUDGEMENT

Custody of the children will be changed to the plaintiff from the defendant. 

REASONS FOR JUDGEMENT

I.  Objective of Motion: To receive the ruling described in the Adjudication. 

II.  Judgment by the Court

1.  The following facts were confirmed according to the records of this case and examination results by the family court probation officers:

(1)     The plaintiff was born the second girl of two sisters in Yosano City, Saitama Prefecture on June 2, 1968.  The father was an architect with a construction company and the mother was an instructor at a knit-work school.  The plaintiff graduated from the food course of the Hosoda Gakuen High-school where she obtained a cookery license, and also graduated from Kawagoe School of Nursing where she obtained a license as a registered nurse.  The plaintiff had been working as a nurse at the Cardiovascular Institute for about a year and three months.  The defendant was born in Vancouver, British Columbia, Canada on December 9, 1966, as the first boy (second child) and has two blood sisters; one older and one younger.  The father was working as an elementary school teacher and ultimately serving as the principal, and the mother was an assistant teacher with an elementary school.  The defendant graduated from Simon Fraser University.

The plaintiff met the defendant around December 1990 when the plaintiff was studying at Kawagoe School of Nursing and when the defendant was working part-time as an English teacher in Japan after graduating from the university.  They married in Japan on April 28, 1993, and then moved to Canada in July 1993.  During their marriage, they had the first boy, Alexander Takara Maniwa (age of minority, hereinafter Takara) on May 21, 1994, and the first girl, Manami Sheona Maniwa-Wood (age of minority, hereinafter Sheona) on January 6, 1997.  Takara has dual citizenship of Japan and Canada as the application for retention of the nationality was filed, whereas Sheona possesses Canadian citizenship.  

(2)     When the plaintiff moved to Canada in July 1993, the defendant was doing a teaching license course at the university, and afterwards started to work as an elementary school teacher.  In October 1993, the plaintiff became pregnant with Takara, however, the defendant tried to force her to have an abortion.   Because of that, she came back to Japan for a temporary period.  Also, despite the promise made before marriage that the defendant would learn Japanese for communicating in both Japanese and English at home, the defendant did not attempt to do so.  Further, the defendant was busy at work and kept ignoring the plaintiff when she tried to speak to him, which resulted in the plaintiff feeling lonely in her first living experience in Canada without having any support from the defendant.  In such situations, the marital relationship lacked harmony.  For about two years from September 1996, the couple lived with the defendant¡¯s parents due to financial reasons.  During this period, the plaintiff was prohibited to speak Japanese by the defendant.  For about two months, the defendant¡¯s sister and her child also lived together.  Eventually the plaintiff got stressed and suffered insomnia.  When the plaintiff complained to the defendant of his sister, etc., the defendant first denied her point and got angry and then apologized, and this behavior of the defendant was repeated.  Just around the time when Sheona was born on January 6, 1997, Takara suffered pneumonia, and the plaintiff herself also had an operation on her appendix in March the same year.  However, even during this period the plaintiff did not receive any support from the defendant with housework and childcare.  As a result, the plaintiff got seriously depressed and mentally unstable.  The plaintiff was isolated from the defendant and his parents and relatives, and the relationship with the defendant's family was deteriorated.  For this reason, the plaintiff did not prefer to socialize with the defendant's family, and the defendant started to be frustrated with this situation of not being able to casually socialize with his parents and relatives.  The relationship between the plaintiff and the defendant further deteriorated and the couple started to live separate lives under the same roof in around September 2001.    

(3)     While the plaintiff had been doing most of the housework and childcare since marriage, she was employed by Canadian Airlines in April 1998, which was later acquired by Air Canada in April 2000.  The plaintiff worked as a flight attendant mainly for flights to Asia including Japan normally for 11 days or 17 days at most per month.  When the plaintiff started working, she employed a live-in nanny to take care of the children while she was away.  However, when the nanny resigned in May 2000, the defendant arranged to work mainly during the weekend and stayed home to take care of the children during the weekdays.  When the plaintiff could not be home, the defendant was taking care of the children.

(4)     In April 2002, while the plaintiff was away for work, the defendant took the children to live separately without the plaintiff's permission.  When the plaintiff phoned home, defendant said that he would leave the house with the children and would not give any contact information.  Therefore, the plaintiff took days off and came home, however she could not reach the defendant and had to spend some time with great anxiety.  In the meantime the defendant came home.  (The defendant took away the children based on the idea that he was allowed to take care of the children during the plaintiff's absence.  However, as the defendant heard that the plaintiff took leave, he decided to come home considering that it would be necessary to live together until the couple reached an official agreement on custody and guardianship.)  The plaintiff consulted with an immigrant support center, and it was explained to her that the defendant¡¯s behaviors were domestic violence.  Given this advice, when the children returned home, the plaintiff escaped with the children to the refuge called Kate Booth House on April 22.

(5)     On April 24, as the plaintiff and the children disappeared, the defendant filed a legal action with the District Court of British Columbia, demanding sole guardianship and custody by the defendant and formulation of access regime (Case No. E021298).

(6)     The plaintiff learned about the legal action and appointed an attorney.  On April 30, 2002, the counsels for both parties appeared in the said court, and the court consensually gave interim orders.  The details of which are that the plaintiff shall return the children to the prior residence of the couple, that the plaintiff and the defendant shall have interim joint custody and guardianship, and that the defendant shall be granted an access to the children commencing on May 1, 2002, in the first week or the second week, on an alternate basis (first week: Wednesday 4pm through Sunday 10am; second week: Wednesday 4pm through Saturday 2pm), that the plaintiff shall be granted an exclusive right of possession of the prior residence of the couple, and that both the plaintiff and the defendant are prohibited from going to the other's residence.  Given this order, the plaintiff returned to the prior residence with the children.  On August 12, 2002, the counsel for the plaintiff filed an answer objecting to the above motion.

(7)     Further, on November 6, 2002, the court decided interim orders based upon agreement by the counsels of both plaintiff and defendant.  Such interim orders contained provisions stating that the plaintiff and the defendant shall have interim joint custody and guardianship, that the primary address of the children shall be the defendant's address, that for the purpose of access arrangements the plaintiff shall promptly inform the defendant of her monthly work schedule, and the defendant shall make efforts to ensure the children spend equal time with both the plaintiff and the defendant and, upon receipt of such work schedule, draw a calendar setting out parenting time for each parent for the coming month, and that the plaintiff shall be allowed to travel to Japan with the children from November 2, 2002 through November 18, 2002. 

In accordance with this order, the plaintiff traveled to Japan with the children in November 2002, and did the same in November 2003. 

The plaintiff consented to the above orders, as she wanted to travel to Japan with the children.  However, as the defendant's address was designated as the primary address of the children by this order, the defendant had the right to decide access schedule.  Because of that, the plaintiff was given less time to see the children than before.  From the time the plaintiff came back to Canada after the trip to Japan in November 2003, she was unable to see the children at all until March 2004. 

(8)     In September 25, 2003, the defendant filed for commencement of a trial with the District Court of British Columbia on the ground that the plaintiff did not corporate in the joint custody and guardianship of the children by failing to pay child support, etc.  Notice of a trial that commenced on February 9, 2004 was sent to the counsel of the plaintiff using the method defined by the Rules of the District Court of British Colombia.  Later, the counsel of the plaintiff resigned.  As the plaintiff was unable to pay legal fees, she was unable to select a new counsel, and on November 5, 2003 signed to agree to represent herself.

The plaintiff did not attend pretrial discovery and pretrial conference.  Although the plaintiff was aware that the trial was taking place between February 9 and February 11, 2004, as she was in a mentally unstable state, she did not appear on these specified dates and did not submit any documents to the court. 

(9)     As the plaintiff did not appear in court, the court approved the following facts provided by the defendant at the hearing.  The statements included that the primary rearer of the children was always the defendant, that the defendant had means and abilities to meet the needs of the children in all aspects including love and affection for the children, spiritual welfare of the children, and education and parenting, that the defendant was providing a stable, safe and reliable environment where children could grow, that the plaintiff was not willing to or able to assume responsibility for child-rearing for the best interest of the children.  Based on these statements, the court rendered the following orders (the Orders) on February 18, 2004.  As this trial was held by the District Court, no psychology or education experts such as family court probation officers, etc. were involved in the trial and no research on the children¡¯s living conditions, etc. was made by such experts whatsoever.  

1)  The defendant shall have sole custody of the children, and

2)  The plaintiff shall be granted an access to the children based on the methods prescribed by the Orders. 

The plaintiff did not appeal against such court order within the legal period, and therefore, such court order was determined. 

(10) The defendant filed suit for divorce with the District Court of British Columbia on March 8, 2004.  The court, with the counsels of the both parties in attendance and based upon their agreement, rendered a judgment on July 16, 2004.  The judgment ruled that the plaintiff and the defendant shall divorce, and that the plaintiff shall pay to the defendant interim child maintenance in the monthly amount of $633 on the first day every month until further order of the court.  The divorce takes effect on the 31st day. 

(11) In November 2004, the plaintiff requested for travel to Japan with the children as in the previous years.  As a result of negotiation between the plaintiff's counsel and the defendant¡¯s counsel, the District Court of British Columbia made the following orders, with the counsels of both parties in attendance and based upon their agreement on November 26 (the November 26 Orders).

1)  With respect to the unpaid portion of child support totaling $5790.24, the plaintiff shall make installment payments to the defendant in the monthly amount of $200 commencing in December 2004. 

2)  In addition to the payment mentioned in above 1), the plaintiff shall continue to pay $325 to the defendant every month until either of the parties reach an agreement or the court renders further order. 

3)  The plaintiff shall be allowed to take the children to Japan between November 27, 2004 and December 9, 2004.  The plaintiff shall return the children to the defendant by 7pm on December 9 2004.

4)  The access regime decided by the Orders shall be partially changed, and the unchanged part shall remain in force.

(12)   The defendant demanded a payment of child support from the plaintiff before leaving for Japan at the Vancouver Airport on November 27, 2004.  The plaintiff had no choice but to give three cheques; one dated November 1, 2004 for the amount of $633 and two dated December 1, 2004 for the amount of $633 and $525 each. However, the plaintiff was afraid that these cheques would be dishonored and and overdraft charge would be imposed, and contacted the bank to arrange payment stop when she arrived in Japan.  In addition, in November 2004, the plaintiff submitted a request for 6-month leave to the employer.  Due to the situation where the plaintiff had rent in arrears and had to evacuate her residence, she sold off part of her household goods to help pay for the travel expenses.  The plaintiff was planning to stay at her friend's residence when she came back to Canada after the trip to Japan.  However, as it was not possible to move all of the goods that were in the plaintiff's residence into the friend's residence, the plaintiff packed her and her children's belongings in 18 boxes (total weight: 360kg) and sent them to the plaintiff's parents' residence in Japan via surface mail.

The defendant, on the other hand, asserted that the plaintiff accepted the November 16 Orders (November 26th Order?), disguising the fact that she did not have an intention to come back to Canada from the beginning, for the purpose of taking the children.  Indeed, that plaintiff's behaviors of requesting for 6-month leave, disposing part of the household goods, and packing up and shipping of her and her children's clothing, etc. to her parents' place in Japan may strongly suggest that the plaintiff did not have an intention to come back to Canada.   However, when the plaintiff traveled to Japan with the children in November 2002 and November 2003 based on the similar court order, she came back to Canada.  The plaintiff had no other choice than evacuating her residence and planned to stay at her friend's place when she returned to Canada.  She was employed by Air Canada and attending mainly flights to and from Asia including Japan.  Taking account of these facts, it is a rather reasonable behavior for the plaintiff to ship the clothing, etc. that cannot fit into the friend's house to the parents' house in Japan for storage purposes.  If the plaintiff did not intend to return to Canada from the beginning, she would have closed the bank account, but she did not do so.  Further, no rationale explanation can be found for the plaintiff's action of arranging to stop the cheques due to concern on possible burden of overdraft charge for dishonored cheques.  From a comprehensive standpoint, it is not possible to admit that the plaintiff accepted the November 26 Orders, disguising her intention of not returning to Canada, for the purpose of taking the children.  Apart from the above facts, there exists no sufficient evidence that supports the defendant's assertion.

(13)  In November 28 2004, the plaintiff came to Japan with the children. On this occasion, they took a trip to Okinawa against the November 26 Orders.  After that, they stayed at the parents' home, and the plaintiff has been taking care of children at the same place up to the present date, without returning the children to the defendant even after the December 9, 2004.

The children were enrolled in Saitama City Yono Seihoku Elementary School as of January 11, 2004.  On March 31, 2004, Takara completed 4th grade and Sheona completed 2nd grade, and in April 2004, both of them advanced to the next grade. 

Takara's residency was registered in the plaintiff's parents' residence.  Although Sheona originally had a short-stay resident status, change of status (As a child of a Japanese spouse, etc.) was approved as of March 11, 2004.  (The period of stay is for three years from February 27, 2004).

(14)  As the plaintiff had not returned the children even after December 9, 2004, the District Court of British Columbia gave orders to the plaintiff on December 14, 2004 to return the children to the defendant and to prohibit the plaintiff's access to the children.  Then, on January 14, 2005, the court issued an arrest warrant for the plaintiff for abduction of the children in violation of the custody orders by the court.  In addition, the defendant attempted to demand return of the children to the plaintiff through the Canadian Embassy and his counsel.  However, as the plaintiff did not do so, the defendant requested habeas corpus with Saitama District Court on February 15, 2005. 

In response to this, respecting the will of children, the plaintiff refused to return the children and on April 8, 2005, filed this motion with the Saitama Family Court, in order to request change of custody of the children to the plaintiff. 

On May 13, 2005, the defendant filed a motion with Saitama Family Court for return of the children (Heisei (KA) No. 30074 and No. 30075) and preservative measures. 

On May 18, 2005, Saitama District Court rejected the defendant's request for habeas corpus.

(15)  The plaintiff has been living at her parents' residence, the registered domicile, since December 2004 after coming back to Japan in November 2004.  The house is owned by the plaintiff's father.  The two-story wooden house with 5 bedrooms with a dinning and kitchen space (approx. 110 square meters) is built within the land of approx. 200 square meters.  The first floor has two 6-mat rooms, study room, and bathroom, etc., and the 2nd floor has one 10.5-mat room, one 6-mat room, bathroom and toilet.  The plaintiff is currently living with her mother, her sister and the husband, and the children 6 people in total.  The plaintiff and the children are living in the space of two 6-mat rooms on the first floor.  The plaintiff's father is receiving a pension, however is suffering Parkinson's disease and is in a hospital for the last two years till now.  The plaintiff's mother is healthy and goes to the hospital everyday.  As she is a licensed care-worker, she is working in the morning for 4 days in a week as a caretaker, and also working in the afternoon from 4pm to 7pm on the weekdays for the after-school care program at the elementary school where the children are enrolled.  The mother says that she is willing to provide support to the children when necessary.  The plaintiff's sister is married and used to live in Chiba Prefecture.  However, she once attempted suicide in 1996.  Since then, she started living in the parents' place together with her husband.  The plaintiff's sister and her husband do not have any children.  The plaintiff's sister was in hospital due to stress at one point in the past, however left the hospital on May 7, 2005.  This couple is showing affection and caring the plaintiff's children, and during absence of the plaintiff and mother, they are taking care of the children. 

The plaintiff was receiving an annual salary of approx. CA$ 40,000 from Air Canada.  However, now the plaintiff is thinking of resigning.  Just when the plaintiff was looking for a job where she can use her license of registered nurse, she was involved in a road accident, and had two broken bones on her left shoulder blade, which was diagnosed as an injury requiring two months for recovery.  Therefore, she is currently unemployed and receiving support from her parents and her brother-in-law for the living cost of children, etc.  The plaintiff plans to start working as a nurse, as soon as she recovers from the injury.  During her job search activity, she had some interview offers, which suggests good potential for her to find a job.

            The plaintiff has been raising the children with affection, and no problem can be found in the current custody and parenting situation.  Because the children wish to stay in Japan, the plaintiff is not willing to go back to Canada.  She wants to raise children by working as a nurse in Japan.  Therefore, on April 8, 2005, she filed a motion to change custody of the children to the plaintiff from the defendant. 

            In the past, the plaintiff suffered mental instability around the time of giving birth to Sheona.  However, as mentioned earlier, it was due to that Takara suffered pneumonia and the plaintiff also had an operation on appendix all at the same time.  It was also due to that the plaintiff did not receive any support from the defendant even during such time.  At present, other than injury from the road accident, no physical or mental problem is seen with the plaintiff. 

(16)  The defendant is an elementary school teacher in Canada and receiving an annual salary of CA$ 58,000.  The defendant is renting a house in Vancouver, which has 4 bedrooms, a living room, a dining room, basement, office space and a large garden.  The defendant lives with his fiancé, Ms. Bret Whitelaw (36 years of age, hereinafter ¡°Bret¡±) who is an elementary school teacher.  They plan to get married in the near future.

The defendant has affection for the children and is willing to take care of them.  He has been taking care of the children with a definite parenting policy.  There is no specific evidence that shows any problem with the living condition of the children under the custody of the defendant.  Bret has been living with the defendant since June 2003 and taking care of the children with a feeling of affection for them.  She is also willing to take charge of parenting of the children cooperating with the defendant.  

(17)  The children were living with the defendant and Bret at the defendant¡¯s residence since June 2003 until they came to Japan with the plaintiff on November 27, 2004.  At that time, they were going to an elementary school in Canada and excellent students.  On January 11, 2003, the children transferred to the current Yono Seihoku Elementary School.  They could make many friends immediately.  Other than having one day of absence for cold during the third term, they had no absence, delay or early dismissal.  Takara does well at school, although he is slightly week in kanji.  He currently belongs to the basketball club and participates in practice actively.  Whereas, Sheona is learning Japanese in order to build relationships with friends and was able to write an essay in Japanese by the end of third term.  With an excellent comprehension, she is brilliant in arithmetic and other subjects and no problem can be seen.  Currently Takara is in 5th grade and Sheona is in 3rd grade.  Although there is a language issue, they are making efforts and successfully adapting to the school life and building close relationship with friends.

As the children are adapting well to the school and family in Japan, making many friends, and playing with friends at home after school, the basis of their lifestyles involving the elementary school has been mostly developed.  Also, enjoying the love and support from the plaintiff, her mother and others, the children are spending a mentally stable life.

The children have always lived together after Sheona was born and has a very good relationship.  Takara has a sense of responsibility to protect his sister as an older brother. 

The children showed to the probation officers of the family court their desire to continue living with their mother in Japan, and refused to go back to the life with the defendant.  On May 10, 2005, the children were given an opportunity to have a short interview with the defendant.  Takara refused to meet him and did not actually meet him.  Sheona was encouraged to meet him and actually met him, however, after the meeting she said that she would not want to see him in the future. 

2.       In light of the facts provided above, the following matters were reviewed:  

(1)     Adjudicative Jurisdiction

It is reasonable to approve the plaintiff¡¯s parents¡¯ address as the address of the children, comprehensively considering the conditions that the children have been living at the residence of the plaintiff¡¯s parents in Saitama City since December 2004, that they go to Saitama Yono Seihoku Elementary School since January 2005 where both of them advanced to the next grades in April 2005 and where the basis of life has been mostly developed while adapting well to the school and family, that the children wish to continue living in the current address in the future, and that for Takara resident registration for the current address has been completed as of January 7, 2005, and for Sheona a change of her status of short-stay ??(to ¡°Japanese spouse, etc.¡±)?? has been approved as of March 11, 2005 (period of stay: 3 years from February 27, 2005). 

With respect to issues concerning custody and guardianship of the children requiring change, from the standpoint of children¡¯s welfare, it is appropriate to authorize adjudicative jurisdiction to a court having jurisdiction over the abiding place or the habitual residence of the children.  Therefore, a court in Japan should have adjudicative jurisdiction for this case. 

The defendant asserts the point that the children were abducted by the plaintiff, therefore, a court of a country where the children were taken to should not have jurisdiction over the matters concerning the children¡¯s custody.  Indeed, considerable illegality is observed in the plaintiff¡¯s behavior of not returning the children to the defendant against the November 26 Orders.  A special consideration should be given in this regard.  However, in this case, it is more appropriate to review the parenting and living conditions, etc. in the children¡¯s residence from the standpoint of welfare of the children.  Consequently, adjudicative jurisdiction should be authorized to a court in Japan, and it is not possible to adopt the defendant¡¯s assertion. 

(2)     Approval of the ¡°Order¡±

According to the facts provided in the previous section, the Order is deemed a ¡°definitive judgment¡± under Article 118 of Civil Procedure Code.  While the trial concerning the Order was proceeding, all of the parties including the plaintiff, defendant, and the children were living in British Columbia, Canada.  Therefore, a court in British Columbia should have adjudicative jurisdiction.  It is also confirmed that the plaintiff has filed an answer by appointing a counsel.  Further, no circumstance suggests that approval of the Order is contrary to the public policy.  Articles 48 and 55.6 of Family Law of British Columbia stipulate matters concerning approval of custody disputes overseas, and the necessary conditions for approval under such Law do not substantially differ from those of the Civil Procedure Code of Japan.  Therefore, the Order also satisfies the necessary conditions of mutual guarantee (Ï໥±£Ô^).  It indicates that the Order satisfies the conditions required by Article 118 of the Civil Procedure Code.    

(3)     Applicable Law, etc.

Takara has double-citizenship of Japan and Canada, whereas Sheona has Canadian citizenship.  Pursuant to Law Nos. 21 and 28, the applicable law concerning change of custody for Takara should be the law of Japan, and that for Sheona should be the law of Canada.  However, the law of Japan authorizes change of custody through trial by a family court.  The Canada Divorce Act also states in Section 17 that a court may render an order to change custody taking account of the best interest for the children, in case that change in circumstances arises after the original custody order was rendered.  A court order to change custody under the laws of Canada can be replaced sufficiently by a trial for change of custody by a family court in Japan.  From this perspective, it is possible for Saitama Family Court to take charge of the trial for change of custody for both of the children.

(4)     Judgment on Change of Custody

In judgment of change of custody, mother and father¡¯s living environments, financial situations, and attitudes towards children, and children¡¯s will and needs, etc. need to be taken into consideration in a comprehensive manner.  In respect of this case, considerable illegality is seen in the plaintiff¡¯s behavior of not returning the children to the defendant.  In this regard, it requires a special consideration, different from other general cases. 

            No special problems are identified either with the plaintiff or the defendant in terms of living environment, financial situation and attitude towards children.  (The plaintiff is unemployed at the moment, however, it is more likely that she will be employed as soon as she recovers from the injury in the accident.  She is deemed to be capable of supporting the children.)

            The children showed a desire to continue living with the mother in Japan and refused to go back to the life with the defendant.  Wills of children should be reviewed individually according to their level of judgment and mental maturity.  According to the tentative standard, a child of 10 years or order is considered to have a sense of judgment.  Takara is currently 11 years and one month old in 5th grade in elementary school.  He excels at school with good marks, understands Japanese and is considered to be achieving an appropriate level of mental development for his age.  If it is the case, it is regarded that Takara desires the life under the custody of his mother, after understanding the situations surrounding him, comparing the family and school lives in Canada and Japan, and predicting the future.  Sheona is currently 8 years and 6 months in 3rd grade in elementary school.  She is bright and has keener judgment compared to children in the same age.  Her will should be respected and taken into consideration.  However, it is not to say that she has sufficient judgment to make decision by considering issues concerning her future. 

            In the meantime, the children are considered to have been adapting well to the family life at the defendant and school life, even in the situation of experiencing the parents fighting for a long time.  It is assumed that the children were able to adapt to the environment despite stress and anxiety caused by such situation, because the two children were always living together, having a good sister-brother relationship, and supporting and helping each other.  The children came to Japan at the end of November in 2004, and started living at the current place in December 2004, and enrolled in the current elementary school in January 2005.  Having the affection and support of the plaintiff and her mother, the children are adapting well to the school and family in Japan while making their own efforts by studying Japanese, etc.  As a result, the children have nearly formed the basis of their lifestyles involving elementary school and living a mentally stable life.  The reason that the children refused to see the defendant can be that they wished to continue the current stable life. 

            As a result of comprehensive review on issues provided above, even with the illegality of the plaintiff, it is still the best interest for the welfare of the children to change the custody of both of them to the plaintiff from the defendant, respecting Takara¡¯s will and giving sufficient consideration to Sheona¡¯s will.  (If Sheona¡¯s age becomes a point of issue, and it is considered that her will should not be weighed so much, a different judgment may be possible.  However, if change of custody is not approved with respect to Sheona, it may result in separating Takara and Sheona in Japan and Canada.  Considering the fact that two children were adapting well to the society on the basis of having a strong relationship, living together, supporting and helping each other, such decision could negatively affect Sheona¡¯s mental and physical health.  This does not conform to the purpose of welfare (best interest).  Therefore, for the purpose of conforming to the welfare (best interest) of Sheona, the order should be to change the custody with respect to Sheona.)  The above circumstance that requires Sheona¡¯s custody occurred after the Order was rendered.  Such case applies to the ¡°the event that the circumstance changes after the custody order is rendered¡± defined under Article 17 of Canada Divorce Act.  From this point of view, the best interest for the child under the changed circumstance should be considered, and the decision to change the custody of Sheona to the plaintiff from the defendant is the best interest for Sheona. 

Now therefore, the judgment was rendered as described in ADJUDICATION. 

July 8, 2005/07/19

Saitama Family Court

Shimizu Atsushi, Judge

FEB. 18, 2004

In the Supreme Court of British Columbia

Citation:  Wood v. Wood, 2004 BCSC 225  Date: 20040218   Docket: E021298  Registry: Vancouver  

Between:  

Alexander Murray Wood, Plaintiff

and

Ayako Wood, Defendant

Before: The Honourable Mr. Justice Hood

Reasons for Judgment

Date and Place of Trial/Hearing:        February       9, 10, 11, 2004    Vancouver, B.C.

[1]     This is a matrimonial case. The primary issues are whether the plaintiff should have sole custody and guardianship of the two children of the marriage, and the formulation of an access regime having reasonable balance and certainty, and being in the best interests of the children.  

[2]     Other matters, including child support, the calculation of the defendant's income, the payment of extraordinary expenses and so on have not been dealt with, due mainly because of the lack of cooperation by the defendant. They were adjourned.

[3]     When the trial commenced, Ms. Robin appeared on behalf of the plaintiff. The defendant did not appear.  

[4]     The plaintiff is a Richmond school teacher. The defendant is a flight attendant with Air Canada. They met in the early 1990s when the plaintiff was teaching English as a second language in Japan where the defendant was a citizen. They met and eventually married. He returned to Canada and she followed him later as a landed immigrant. She has been living in Canada for 11 years and speaks English.  

[5]     The couple have two children, a son Alexander Takara Maniwa-Wood, born May 21, 1994, and a daughter, Manami Sheona Maniwa-Wood, born January 6, 1997.  

[6]     At the commencement of trial Ms. Robin advised me, and it is evident, that since the couple separated, the defendant has effectively refused to cooperate with the plaintiff and to communicate with him in a proper or meaningful manner. As a result he has had to obtain some nine orders of this Court; including three orders permitting the defendant to take the children to Japan on vacation.  

[7]     When the parties separated in April of 2002, the defendant disappeared with the two children for about one week. She returned once she was served an ex parte order dated April 24, 2002, the effect of which was to require the return of the children to the plaintiff's residence. By a consent order dated April 30, 2002, the parties were granted interim joint custody and guardianship of the children. The order also provided for specified access-by the plaintiff, which was effectively a one week on and one week off or shared parenting scheme.  

[8]     By a further order dated November 6, 2002, the parties continued to have interim joint custody and guardianship, with the primary residence of the children being with the plaintiff. The order contained basic provisions with respect to the care and parenting of the children usually found in separation agreements. Significant decisions pertaining to the children were to be discussed. In the event that the parties could not agree with respect to a major decision, the plaintiff had the right to make the decision.  

[9]     The most important provisions in the order, from my perspective, were that the defendant was required to produce to the plaintiff her monthly work schedule as soon as reasonably possible but in any event within 48 hours of receiving it; that upon receiving the defendant's work schedule the plaintiff was required to draw a calendar setting out parenting time for each parent for the coming month, the primary aim being to see that the children spend equal time with both parents if possible. It will be seen that the defendant never did effectively follow or abide by this order.  

[10]     The children's access to the defendant has been the main problem facing the parties, and which has caused the plaintiff to continue with these proceedings. She simply will not cooperate with him. When it comes to the children's access to her and at times even with the plaintiff, she is obstructive, rather than a facilitator. The plaintiff is concerned with the financial drain of his legal fees, having to be in court on numerous occasions and, more importantly, with the defendant's erratic and stressful access to the children, which she imposes on them and which is clearly not in their best interests.  

[11]     In brief, the problem is that none of the access regimes worked out by the plaintiff, on the basis of whatever information he received from the defendant, has enjoyed any success. She will not cooperate with him. She does not. provide him with her monthly work schedule as required by the November 6, 2002 order of Madam Justice Martinson. She does not abide by court orders. when the defendant has the children she will suddenly appear on the plaintiff's doorstep saying that he must take the children because she has to go to work or for some other reason. Alternatively, when he has the children she will arrive at his doorstep and simply take the children for her parenting time because she is available. It will be seen that on these and most occasions the plaintiff gives into her rather than add to the observable stress she has already placed on the children.  

[12]     Lately the defendant has begun communicating with the plaintiff and with Ms. Robin in Japanese. Neither the plaintiff nor counsel speak or read Japanese. In this regard, the defendant emailed Ms. Robin at 1:38 a.m. on the morning of trial. The email was in Japanese. In any event at 9:30 a.m. Ms. Robin emailed the defendant reiterating that the trial was to commence at 10:00 a.m. that morning. She also left phone messages at the defendant's number. However, she was unable to communicate with the defendant.

[13] Counsel also advised me that she had obtained a rough interpretation of the defendant's email in Japanese which was sent early that morning. Roughly translated it said that she was waiting to hear from counsel, "tell me when to appear and here is my phone number". I am unable to ascribe any air of sincerity to the email or to the defendant's conduct.  

[14] I then determined that the action should proceed to trial notwithstanding the absence of the defendant. I am satisfied that she was served notice of trial through her counsel who, I am told, recently withdrew because he was unable to obtain instructions. I am also satisfied that it is more likely than not that she has received the emails and the telephone messages and knows that the trial is proceeding; that she has no intention of appearing. In layman's terms she is playing games, including the use of the email in Japanese. She continues to fail to cooperate, and to communicate in a proper manner with the plaintiff.  

[15] I should have noted earlier that on two occasions the defendant failed to attend for examination for discovery; that on January 16, 2004, Master Donaldson ordered that she attend for examination for discovery on January 21, 2004. The defendant did not attend for the discovery, and communicated no explanation for her failure to do so. She was served with notice of a pr

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