Courts don’t have ‘ a lot of coercive powers in cases involving children,’ law professor says.
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.
“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.”
If you have any questions or concerns regarding International Parental Child Abduction feel free to contact CARI Child Abduction Recovery International 24/7. We are always available at firstname.lastname@example.org or by calling our CEO Adam Whittington directly +46 707385598
We don’t just talk, we actually recover children!