IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
SUIT NO. 13264 OF 2002
Coram : H.H. Judge Bruno Chan in Chambers
Date of Hearing : 16, 21 – 23 March 2005, 8 April, 6, 9 – 10 May, 23 – 24, 28 – 30 June, 5 – 6 July & 9 August 2005
Date of Judgement : 20 September 2005
J U D G M E N T
1. The parties are Canadian expatriates who married each other in 1983 in Canada. They have 6 children, 3 boys and 3 girls between the age of 8 and 19, with the eldest 3 born in Canada and the rest in Hong Kong after the family moved here in 1991 when the Husband was employed by Cathay Pacific Airways as an airline pilot.
2. Like most marriages that fail, there were numerous conflicts between the parties in particularly towards the latter stage of their marriage, with matters coming to a head in November 2002 when the Wife moved out of the matrimonial home in Clearwater Bay with the children and withdrew $2 million being half of the savings from the parties’ joint account, and proceeded to file for divorce against the Husband and for custody of the children and general ancillary relief as well as for leave to remove the children out of the jurisdiction to return to Canada.
3. Shortly thereafter the parties entered into discussion about the possibility of both relocating to Vancouver, Canada with the Husband taking a basing of his employment there, where each would purchase their own property with the children going between the two households.
4. Unfortunately there was to be no settlement between the parties who went ahead with the proceedings which had descended into a long and acrimonious battle over virtually every issue, in particularly those concerning their children, and over whether the Wife was suffering from the psychiatric condition of Munchausen Syndrome, to the almost complete depletion of their liquid assets. On 20th October 2004 I delivered a judgment granting custody care and control of the 4 minor children to the Wife after an unusually bitter trial that lasted more than 30 days, but postponed my decision over her application for leave to remove the children, which was then also strenuously opposed by the Husband, to be dealt with together with her application for ancillary relief, which is now the matter before me, the trial of which has turned out every bit as bitter and contentious as before, lasting a further 20 days.
5. I do not propose to recite any further details of the background and history of the case here. They could be found in my earlier judgment of 20th October 2004. It would however be relevant to update the situation and circumstances of the parties and their children since that judgment.
6. The Wife, who is now 42, has remained a housewife and lives with the 3 youngest children namely A (12), B (9) and S (8) at her village house in Sai Kung under a lease until early 2006 but with a break-clause which she says will allow her to leave Hong Kong for Canada as soon as she is allowed to remove the children out of the jurisdiction. In the meantime A is in her second year at KGV School after a successful transfer from Christian Alliance International School (“CAIS”), where the 2 youngest boys have remained.
7. The other minor child, N, who is 16 and whose custody has also been granted to the Wife, is still boarding at Grenville Christian College in Ontario, Canada but shares her time with her parents while holidaying in Hong Kong.
8. The 2nd eldest child, Y has turned 18 and, having graduated from Grenville Christian College, will be entering university at Fanshawe College in London, Ontario, Canada.
9. The eldest child C, who is now 19, used to attend the same Grenville Christian College with his 2 sisters, but left school sometime in 2004 to return to stay with his father in Hong Kong where he had worked first as a restaurant waiter and later as a chef. In June 2005 he returned to Canada to prepare for his enrolment into George Brown College in Toronto.
10. The Husband, at 43, is still in the employ of Cathay Pacific Airways as an airline captain pilot and lives in his rented village house in Clearwater Bay. He has now accepted that the Wife and the minor children should be allowed to leave for Canada in July 2006, but not earlier as intended by her, as he believes that it would be beneficial for the children to have a period of access with him in Hong Kong after these proceedings are over when he will no longer be occupied by the case and court attendances. He has also confirmed that in all likelihood he will apply for a basing of his employment in Toronto, Canada in the summer of 2006 or shortly thereafter to coincide with the Wife’s move so that he may remain close to the children, and that in any event the time for applying for a basing in Canada for this year has according to him already passed.
11. In my earlier judgment I found that there was no evidence to suggest that the Wife’s application was anything other than a genuine desire to return to Canada where the parties came from and where she believes the children’s future lies. But I also questioned whether it was realistic or practical for her to do so immediately upon the conclusion of these proceedings, and that the full spectrum of ancillary relief in particularly the needs and requirements of her and the children in Canada, if they are allowed to leave, which now seems to be the case but only a question of timing, as well as the Husband’s means and ability to make proper and reasonable financial provisions for them, need to be fully explored and investigated, which I now propose to do, before a final decision can be made of her application.
The Wife’s case
12. The Wife seeks periodical payments for herself and for the children, as well as lump sum payment and costs of the ancillary relief proceedings. Formerly she had also sought the reimbursement of school fees and medical expenses previously paid by her but subsequently not reimbursed by the Husband, but she agreed, under cross examination, that in the interest of expediency, not to pursue this. She had also requested that the Husband give her negatives of the children’s photographs, which the Husband has indicated that he is willing to supply to her after his visit to Canada where they are stored. The Wife has submitted that if this is to be an undertaking by the Husband, which I understand to be the case, she will no longer seek an order for their production on her undertaking to return the negatives to him afterwards.
13. It is however the Wife’s case that the way in which the Husband has conducted himself from the very onset of the proceedings, and in relation to his basing in Canada, and the efforts he made to destablise her in order to enhance his own position and win custody, care and control of the children and to thwart her every plan, must be taken into account by the Court in making financial orders. Had the Husband not decided to go into full scale battle with her in November 2002, the Wife says, they would both now be living in Canada, close by and financially stable, or that at the very least he could have agreed to settle the matters after she was found mentally fit by the court appointed psychiatrist Dr Lo to have custody care and control of the children, but instead he insisted on ploughing on at ruinous financial and emotional cost, with legal bills run up to the region of $6 million, of which the Wife argues that she should not have to bear the financial consequences.
14. As to her application for the removal of the children to Canada, the Wife says that now that the Husband has accepted that they be allowed to leave for Canada in July 2006, she does not see why they cannot leave right away after she has been delayed already for some considerable time as a result of the Husband’s action, and instead have to wait for another 9 months until next July for no good reason.
15. She has provided some information as to properties, school and amenities in the Ottawa area to which she would return, as it is her home area where she and the children are familiar with, and which is near her parents’ home in Cornwall, but until such time as she know when she can move and the funds she may have available to her, she cannot find a house, enrol the children into school or make arrangements for moving. She plans to initially stay with her parents until such time as she locates a property to buy in Ottawa.
16. For as long as she remains in Hong Kong, the Wife estimates her monthly expenses, to include a domestic helper, to be HK$44,357 plus her rent of HK$33,000. In addition she estimates the travel costs and holiday expenses for her and the children at a further HK$8,015 per month, totalling HK$85,372, which is about what the Husband has been paying, albeit she accepts quite tightly with his budget.
17. She says that the picture will change dramatically with her removal to Canada principally because of the costs of accommodation as not only is it much cheaper than in Hong Kong, but the money that is lost each month on rent here will be going to purchase a home as long-term security for herself and the children.
18. She estimates a suitable house in Ottawa would cost in the region of C$375,000 – $400,000 (HK$2.44 – 2.60 million), which would be funded by a deposit from a lump sum from the Husband with a mortgage for HK$2 million over 25 years at a rate of 6% giving a monthly mortgage repayment within HK$15,000 per month which is to be funded from the periodical payment from the Husband.
19. As for her monthly expenses in Canada including holiday expenses, the Wife estimates that a monthly sum of HK$41,500 for her and the children would be reasonable, bringing the...