https://www.cbc.ca/news/world/canadian-fights-to-see-son-in-japan-where-legal-system-leaves-many-parents-behind-1.4938910

 

Canadian fights to see son in Japan, where legal system leaves many parents behind

Courts don’t have ‘ a lot of coercive powers in cases involving children,’ law professor says

Tim Terstege shows copies of family pictures and previous media coverage of his situation. Even with a court order giving him some visitation rights, Japan’s legal system is not structured to enforce it so he can see his son. (Adam Walsh/CBC)

A Canadian man living in Japan who has spent years trying to reconnect with his son after a marriage breakdown says under the current system, his best chance at restoring visitation would be to move — all the way back to Canada.

Tim Terstege, a 44-year-old Barrie, Ont., native, says he last saw his son during a supervised visit three years ago. Today, he doesn’t know where his wife and son are but suspects they are in the city of Yokohama, about 40 kilometres south of Tokyo, where his wife took his son after the couple split.

When parents divorce or separate in Japan, one parent typically gets custody. Visitation can be part of the arrangement, but parents don’t have a lot of recourse if it doesn’t happen as scheduled. They’re generally sent back to the family court system, where cases can take years to be resolved.

Terstege, who is separated but not divorced, says he’s found the system almost impossible to navigate.

“Everybody knows that family is one of the cornerstones of having a good life,” he said. “That’s one of the great things that we have in this time, and to lose that is just pretty much for me everything.”

Terstege says after he and his wife split in 2012, the pair went into a lengthy mediation process that established visitation rights for Terstege. The Canadian says he wasn’t allowed to see his son while the mediation was underway, but in the end, he was granted 24 hours of supervised visitation per year. But by the time the mediation was over, his wife had already taken their son to live in Yokohama, a four-hour train ride from where Terstege lives in Himeji.

Even though a 2015 Yokohama family court mediation order granted him visitation rights, Terstege says he’s only seen his son for a total of an hour-and-a-half since his wife left. He says he’s fed up with a system that ignores cases such as his and thinks Japan essentially “condones the abduction of a child.”

CBC News has made multiple attempts to contact Terstege’s wife’s lawyer to get her side of the story but has not received a response.

The history of divorce and custody cases in Japan is complex, Tokyo lawyer Marie Sasagawa says. After the Second World War, Japanese courts felt it was more important for children to be with their mothers rather than their fathers, who had previously been seen as the unchallenged heads of families.

“Traditionally, Japanese have relatively negative images for divorce, so the relationships of couples who have reached divorce mediation are assumed to be very bad,” Sasagawa said.

That meant joint custody wasn’t generally considered an option. Granting custody to mothers by default has been challenged in court in recent years, but the system still favours the mother in most cases. Recent media reports have suggested the Japanese government is considering changing the law to allow for joint custody, but when or if that will happen is not yet clear.

Hunting for help

Exasperated by the slow process, Terstege reached out to the Canadian government for help. When contacted by CBC News, Global Affairs Canada said it is aware of the case and that “consular officials in Japan are in close contact with the family and are providing consular assistance.”

A 2016 letter from an official with GAC outlines some steps consular officials have taken, but also notes the limits Canadian officials face working in other countries.

Terstege looks at the sign in front of an elementary school in Yokohama. He knows his son went to school here but has no idea if that is still the case. (Adam Walsh/CBC)

“We recognize the need to continue to raise the issue of parental child abduction cases with Japanese authorities in an effort to bring some closure to affected parents like you,” the letter reads.

GAC says it is aware of 24 active consular cases in Japan relating to parental child abductions, noting there could be others who haven’t contacted the department.

Last year at the UN Human Rights Council’s universal periodic review, Canada said what’s going on in Japan is contrary to the Convention on the Rights of the Child and called on the country to establish better enforcement mechanisms to allow both parents access to their child.

A long shot

An official with Japan’s Ministry of Foreign Affairs said one possible option for Terstege would be to apply for visitation rights through the Hague.

Japan signed the Hague Abduction Convention in 2014. While the treaty provides a structure for the return of children who are abducted internationally, it doesn’t apply to Terstege’s case because he lost contact with his son within the child’s country of residence.

The treaty, however, allows Terstege to apply for visitation rights if he makes his case from his home country.

The courts can order things, they can declare things, but they really don’t have a lot of coercive powers in cases involving children.– Colin Jones, law professor

If he were in Canada, Terstege could seek assistance from the Japanese government that is not available to him in Japan, including additional mediation sessions and translation services for court petitions. But even if he moved back to Canada, a country he hasn’t lived in for 13 years, and successfully made his case, Terstege doesn’t think he’d make meaningful progress in his bid to actually see his child.

According to Terstege, moving to Canada would be a high-risk decision with the possible reward being a 30 minute video chat every month or two. His estranged wife would still have a say in how that chat unfolded and could ultimately still cut off contact.

Courts lack ‘coercive’ power

Colin Jones, a professor at Kyoto’s Doshisha Law School and the author of a recent book on the Japanese legal system, says the current law only frames visitation as something parents have to think about. It leaves it to them to make arrangements.

“The courts can order things, they can declare things, but they really don’t have a lot of coercive powers in cases involving children,” Jones said.

Parents who ignore an order may be forced to pay a fine, he says, but in most cases, that is as far as punishment goes. Jones says in the case of marriages involving foreigners and Japanese citizens he hears a lot of stories about fathers being the parent left behind.

CBC News has spoken with two other Canadian fathers, as well as an American, who have similar stories as Terstege. They all cite years of frustration, bureaucratic red tape and endless waiting in hope of seeing their children again. Ultimately, they say, it’s the children who end up paying the price for an ineffective and unfair system.

As for Terstege, he says the last few years have taken a toll on his health. He has gained weight and developed a skin condition that his doctor attributed to stress. He says he is considering his next move but that he won’t stop trying to see his son again.

“He is my everything.”

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http://www.youtube.com/watch?feature=player_embedded&v=JS5VC8much4

 

Published on Aug 24, 2013

CBC News August 22, 2013 – (Toronto, Canada): “International Parental Child Abduction Nightmares” – A group of Canadian parents in Ontario, where about a third of child abductions are reported across Canada, is highlighting the plight of parents such as Cesar Caetano whose children have been abducted with little international protection for their rights.

Video: http://www.youtube.com/watch?v=JS5VC8…

Caetano is one of three [four] Greater Toronto Area fathers who banded together to form the advocacy group iCHAPEAU Association, which stands for the “International Child Harbouring and Abduction Prevention Enforcement Act Under-Law”.

Three years ago, his former wife allegedly abducted his daughter, Alice, and took her to Brazil, and she’s still missing.

“There’s lots of cases, and people don’t know what to do and they don’t go public. They don’t know where to run,” Caetano said, explaining the reason behind iCHAPEAU Association, which fights for the rights of parents whose children have been abducted.

“I’m missing the good years, but I won’t give up.” – Cesar Caetano, parent of missing child, co-founder of iCHAPEAU Association.

The group is lobbying the federal government to harmonize Canadian laws with tougher U.S. laws.

Ontario accounts for roughly a third of all domestic and international child abductions reported nationwide over the past two years, according to Statistics Canada data.

Earlier this week, a CBC News exclusive told the story of Zaiba Zaiba, a Toronto mother whose two young children where allegedly abducted by their father and taken to Afghanistan.

According to iCHAPEAU’s Twitter account, the group has reached out to Zaiba Zaiba to “offer our assistance, provide information and to assist in disseminating information about her children’s case.”

The Middle Eastern country is not a signatory to the Hague Convention, which includes laws protecting children who are victims of abduction.

Ontario accounts for 55 of the 174 child abductions between 2011 and 2012, Statistics Canada figures indicate, although data does not differentiate between international and domestic cases.

However, a spokesperson with Canada’s Department of Foreign Affairs said there are approximately 170 “ongoing” international cases in over 50 countries that have been reported to the government.

TOUGHER LAWS ADVOCATED

A common characteristic in most international abductions is that the parent left behind usually has sole custody and believes they have legal protection when allowing their children to travel without them.

When asked about such a proposal, a Department of Justice spokesperson said the government is “always looking for ways to improve Canada’s justice system.

“We will continue to work with our international partners to reinforce laws related to international abductions,” the spokesperson said in a written response to questions from CBC News.

But for Stephen Watkins, who also helped form iCHAPEAU Association after his two sons were taken to Poland by their mother in 2009, the response from Ottawa simply hasn’t been good enough.

“What we want for our government is to see them standing up and enforcing the treaties that we’ve signed,” he said.

Watkins has full custody of his two sons, and said the Polish courts have on one occasion ruled against returning them to Canada, citing it would be “detrimental to their health.”

Stephen Watkins, father of Alexander, left, and Christopher, is one of founders of the advocacy group iCHAPEAU Association, which is lobbying the federal government to harmonize Canadian laws with tougher U.S. laws. (Handout/Canadian Press)

“It’s worse that they’re in Poland because [their] mother’s been diagnosed with something. She can’t take care of the children. She has a neighbour and the boyfriend taking care of the children,” Watkins said. “What is this? … I have no platform in that nation.”

Caetano has spent his own money attempting to ensure his daughter’s return to Canada and vows not to stop.

“I’m missing the good years, but I won’t give up,” he said.

CBC Toronto News August 22, 2013
Reported By: Marivel Taruc
Twitter: @MTaruc

Original Source:
http://www.cbc.ca/news/canada/toronto…

If your children have been abducted, please contact:

Canada’s iCHAPEAU Association
International Child Harbouring & Abduction Prevention Enforcement Act Under-Law
“Helping to Bring Abducted Children Home and STOP Parental Child Abductions”

Please JOIN, LIKE and SUBSCRIBE to help share the iCHAPEAU cause:
FACEBOOK: http://www.facebook.com/iCHAPEAU
YOUTUBE: http://www.youtube.com/iCHAPEAU
TWITTER: https://twitter.com/iCHAPEAU_Law (@iCHAPEAU_Law)
MOBILE: http://www.uQR.me/iCHAPEAU
WEBSITE: http://www.iCHAPEAU.ca

http://www.majiroxnews.com/2012/10/11/the-hell-of-japans-divorce-laws/

 

The hell of Japan’s divorce laws

10/11/2012

By 

An ex-resident of Japan tells the story of how he may never see his daughter again, as a result of the country’s laws governing divorce

Vincent and his daughter, Emilie

MONTREAL — I need time to heal. I am still raging at my Japanese ex-wife and the way the laws of Japan allowed her to gain custody of our daughter. The shock of the outcome shook my faith in people. After living in Tokyo for 23 years, I moved back in with my parents near Montreal on June 30, 2012. 

I met my former wife on the Internet. We were divorced, she in her late 30s, I in my early 40s, and neither of us had children. After dating for a few months she got pregnant. The news was exciting and we eventually got married. Our daughter Emilie was born on February 9, 2011.

However, the marriage didn’t work out. We constantly fought and once the police were called to our house. Then after Christmas in December 2011 my wife returned to live with her parents in Tokyo and took Emilie with her.

The divorce proceedings were inhuman and brutal. I almost died. I walked out of the court mediation in shock and fainted. Luckily, I had asked my father to come for moral support. I had prepared documents that I had professionally translated, and I had hired an interpreter, but I wasn’t prepared for the process. I won’t go into details but the whole process of a contested divorce would have taken two years during which time I would not have been allowed any visits with my daughter. After walking out of the first mediation hearing, I realized the Japanese system was biased towards whomever the child was currently living with.

What I did know is that I wasn’t going to waste my life on what I believe is a rigged process. My dad couldn’t stay with me in Tokyo for the many months it would take in court, so I signed the divorce papers giving my wife full custody of Emilie. I saw what had happened to my divorced friends, how their ex-wives manipulated them or cut them off completely. If I had been employed in Japan, I would have fought on principle, but without a job I didn’t have the financial or emotional resources to do that. I left Japan soon after the divorce, a broken man.

In Montreal, I visit friends and family, I read, I go to the theatre. I wrote a short book on Shakespeare’s plays. I need to get my mind off things and when a friend invited me to sail the Caribbean with him, I said, ‘yes.’ He needs someone to help him with his boat and I need to get away. I almost died and I still need to heal.

My parents are very supportive. In order to function and to be productive and happy again, I have to do exactly as my father says: I have to move on the same way one moves on after losing a child. But I can’t just forget my daughter when I know she is alive, when I know she’s been deprived of her father. I have to juggle my feelings.

I avoid talking about Emilie with friends and family. When asked, I give a very short account but I explain that talking about it is painful. When I talk with friends, it’s difficult for me to get off the topic once I’ve started and it ruins the evening.

I believe my wife and her family treated me in a shameful manner. But I have plans to meet with my daughter again, but I don’t know how I can do it. I am hoping that in the next few years Japan will change its laws and force my ex-wife to allow contact. We’ll see what the future brings.

During the past year the U.S. Embassy in Japan deleted a page from its website that included statistics for the U.S., Canada, France, Australia, and the United Kingdom showing the tremondous growth in the number of international child abduction cases by Japanese spouses since 2000, with the number of cases having quadrupled from 2005 to 2009.

It is not clear why this information is being suppressed, but CRC of Japan has retrieved this information and is reposting it on our blog, at the following link:

Rapid Increase in Child Abductions to Japan

How can it be in the “best interests of the child” when children are allowed to be abducted into Japan and then forced to live 45 kilometers away from the melting nuclear reactors at Fukushima and the other left-behind parent is not even given the slightest chance to have any contact with them?  Here is a link to the article:

http://www.royalcityrecord.com/Westminster+daughters+abducted+radioactive+Fukushima/5013371/story.html

This article from the Japan Times online provides an excellent update regarding the status of the Hague treaty being enacted by Japan. 

The article notes that before the Hague treaty can become effective, it still must be passed by the Diet.  Other related bills need to be drafted and passed by the Diet as well, despite widespread opposition to the treaty.  The treaty will not be retroactive to current cases. 

The article mentions the following statistics that the Japanese Foreign Ministry is officially admitting to as being currently active cases “involving Japanese spouses who took their children to Japan” from the following four countries:

U.S.:     100 cases

U.K.:      38 cases

Canada:  37 cases

France:   30 cases

http://search.japantimes.co.jp/cgi-bin/nn20110607i1.html

Tuesday, June 7, 2011

FYI

THE HAGUE TREATY

Hague treaty seeks to balance rights of kids, parents

By MASAMI ITO

Staff writer

Prime Minister Naoto Kan’s administration said in May it would establish legislation as part of preparations for Japan joining an international convention to prevent cross-border abductions of children by their parents.

Despite international pressure to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction, Japan had been reluctant amid strong opposition from politicians in the ruling and opposition parties, experts and Japanese mothers who took their children to Japan after failed international marriages.

Japan’s decision was welcomed by the international community, but it is still unclear whether the country will actually be able to sign the treaty anytime soon.

What does the treaty entail?

The Hague treaty aims “to secure the prompt return of children wrongfully removed to or retained in” a member state. The treaty covers children up to age 15.

A typical example of what the treaty tries to address would be a case in which an international marriage has failed and one of the spouses takes offspring out of the country where the child has been living without the consent of the other parent. Such a physical removal may also be in defiance of a court custody decision, such as in cases of divorce when both estranged spouses have certain custody and visitation rights.

If offspring are spirited away from a country, the parent who thus lost custody would file an abduction complaint with the government, or “central authority” that handles such matters.

If both the nation that the offspring are removed from and the one they are taken to are Hague signatories, the designated central authorities of the two nations would seek to ensure the safe return of the child to its “habitual residence.”

But if the nation where offspring are taken to is not a member of the treaty, such as Japan, it is not obliged to hand over the offspring. This can cause bilateral friction on a political level, and also lead to charges of felony abduction being leveled at the parent who took the child or children away.

As of April, the treaty had 85 signatories, including Australia, Brazil, New Zealand, South Africa and Spain. Of the Group of Eight countries, only Japan and Russia have refused to join.

What prompted Japan to move toward joining the Hague treaty?

Although not the first child abduction case involving a Japanese parent, an incident in September 2009 brought Japan’s stance on the issue into the international spotlight.

Christopher Savoie of Tennessee came to Japan to reclaim his children from his Japanese ex-wife, who had brought them to the country without permission.

Savoie was arrested by Japanese police for allegedly attempting to “kidnap” minors, but prosecutors didn’t file criminal charges against him. The case was widely reported by both the foreign and Japanese media and became a bilateral diplomatic headache.

International pressure to sign the Hague treaty has increased since then.

According to the Foreign Ministry, there are 100 cases involving Japanese spouses who took their children to Japan from the U.S., 38 who brought offspring here from the U.K., 37 from Canada and 30 from France. But these are just the numbers reported to the ministry. The actual number is believed to be higher and to stretch back many years.

Why has Japan been reluctant to sign the treaty?

The government feared that Japanese mothers who claimed to have been victims of domestic violence would be forced to return their children to the abusive environments they fled from.

“If Japan were to sign the Hague Convention, (my child would) be forced to live with an abusive father and be exposed to violence again,” said a women who attended a government panel discussion on the Hague treaty in March. “And I will become a (declared) criminal.”

The Hague treaty in principle is geared toward returning offspring to their country of habitual residence.

Cultural and legal differences have also been noted, as many Western countries have a joint-custody system. Japan uses a system that grants sole custody, usually to the mother.

Are there circumstances under which a child is not returned to the country of residence?

-Article 13 also says a state is not obligated to return a child if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

But experts have pointed out that the clause is vague and opponents argue that it does not include abuse against mothers.

According to the data collected by the Hague Conference on Private International Law released in 2008, only 20 percent of all global return applications were either rejected or judicially refused.

How will Japan address the strong concern about cases of domestic violence?

The outline of a draft bill approved by the Cabinet stipulates that the return of the child will be denied if the child has experienced physical or verbal abuse “and is in danger of being subjected to further abuse if returned to its habitual residence.”

In addition, the child will not be returned if the spouse has been the victim of “violence that caused the child to suffer from psychological trauma” and that the parent was in danger of further abuse if he or she returns with the child back to the country the offspring was taken from.

Experts, however, noted that the conditions for rejecting the return are extremely strict.

“The draft lists various conditions, not making it easy for the spouse to claim domestic violence to make sure that the child would not be returned,” attorney Mikiko Otani said. “And the parent would also need to prove that there was domestic violence.”

What are the positive aspects of Japan joining the treaty?

There are Japanese parents whose children have been taken away to another country by their ex-spouses. Japan, not being party to the treaty, has been powerless to rectify these situations.

Otani, an expert on family law, pointed out that there are many cases in which the ex-spouse is from a member country of the convention and that government has the responsibility to deal with these international parental kidnapping cases.

In Japan, the responsibility falls on the individual because Tokyo has not signed the treaty.

Otani also expressed concern that if Japan continues to delay joining the treaty, other member states will take harsher measures.

In the U.S., for example, several Japanese mothers are on the FBI website, wanted for “parental kidnapping.”

“I think it comes down to the fact that the Hague treaty is the active international rule,” Otani said. “If Japan refuses to join the convention, all the (member states) can do is make sure that the children cannot be taken out of their countries. They already have a tendency to do so, but I think they will make it even harder for the children to leave.”

In many cases, court orders are issued ordering the child not to leave the country.

Does this mean that Japan will immediately conclude the convention?

No. Even if the Japan signs the treaty, it needs Diet ratification. Related bills must also be drafted and passed.

According to the draft legislation, the “central authority” will be the Foreign Ministry, which will be in charge of overseeing cases related to the Hague treaty, including locating abducted children, taking measures to prevent child abuse and advising parents on the voluntary return of children.

But there is still strong domestic opposition among the public, as well as in both the ruling and opposition camps, and it is unclear how soon Japan will be able to conclude the treaty and enact related domestic laws.

If Japan joins the treaty, would it apply to current cases?

No. The treaty will only apply to cases that are brought against Japan after it signs the Hague Convention. Experts say it will be up to the government to decide how to handle the cases that occurred before Japan signs the treaty.

Otani pointed out that there were cases in which the mothers eventually want their children to make the most of their dual nationality, such as visiting the country they were taken away from, but can’t for various reasons, including the mother’s fear of being arrested if she were to accompany the offspring to a nation where she is listed as a fugitive.

“It may be impossible to resolve all cases or return the children, but there may be some fathers who would just be happy to be able to have access to their children,” Otani said. “The benefits of these children are being robbed . . . and I think that it is necessary to establish a (bilateral) scheme for those who want to resolve their case so that the children” can visit both countries freely.

The Weekly FYI appears Tuesdays. Readers are encouraged to send ideas, questions and opinions to hodobu@japantimes.co.jp

On its website, the U.S. Embassy in Japan has compiled statistics for the U.S., Canada, France, Australia, and the United Kingdom showing the tremondous growth in the number of international child abduction cases by Japanese spouses since 2000, with the number of cases having quadrupled from 2005 to 2009.  The chart shows that there are about 400 reported cases just for these 5 nations since 2005, and many of these cases involve more than just one child.

http://tokyo.usembassy.gov/e/p/tp-20100122-85.html

 

NOTE:  The U.S. Embassy in Japan has deleted the above link.  CRC of Japan has retrieved this page and reposted it at the following link:

 

Rapid Increase in Child Abductions to Japan

This is good news for all left behind parents with children in Japan.  The U.S. and 7 other countries (Australia, Britain, Canada, France, Italy, New Zealand and Spain) told Justice Minister Keiko Chiba that Japan should sign an international convention on child abduction and set up ways to allow foreign parents to visit their children.

http://www.miamiherald.com/news/world/AP/story/1285710.html