CITATION: Peng Mav. Lien Chao, 2016 ONSC 585
DIVISIONAL COURT FILE NO.: 469/15
DATE: 20160125
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Peng Ma v. Lien Chao
BEFORE: Swinton J.
COUNSEL: Valois P. Ambrosino, for the Applicant (Responding Party)
Michael J. Stangarone and Ryan M. Kniznik, for the Respondent (Moving Party)
HEARD at Toronto: in writing
ENDORSEMENT
[1] The respondent Lien Chao seeks leave to appeal the order of J. Wilson J. dated September 3, 2015 ordering her to make a payment of $150,000 to the applicant Peng Ma with the categorization of that payment to be determined by the trial judge. The payment order was made pursuant to rule 24(12) of the Family Law Rules, which allows the court to order that one party pay an amount to another party to cover part or all of the expenses of carrying on the case. The respondent also seeks to leave to appeal the order that she pay costs of the motion.
[2] The respondent relies on both parts of rule 62.02(4) of the Rules of Civil Procedure.
Is there a conflicting decision on the matter involved in the proposed appeal?
[3] The test under rule 62.04(2)(a) requires the moving party to show that different legal principles have been applied in deciding a similar legal problem or in guiding the exercise of discretion (Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div. Ct.)). It is not sufficient to show that judges in other cases have exercised their discretion differently on the basis of established legal principles.
[4] The decision to make an order pursuant to rule 24(12) is discretionary. The motions judge stated that she relied on and adopted the principles in Stuart v. Stuart, 2001 28261 (ON SC), [2001] O.J. No. 5172 (Ont. S.C.). This case is often cited when relief is sought pursuant to rule 24(12), as it summarizes relevant considerations. That case and others, such as Ludmer v. Ludmer, 2012 ONSC 4478, make it clear that the judge’s discretion is to be exercised to further the primary objective of fairness by levelling the playing field between the parties.
[5] The respondent argues that there are conflicting lines of cases, some of which require that the moving party show exceptional circumstances and others that do not do so. Cases such as British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 and Waxman v. Waxman, 2003 CarswellOnt 84 (C.A.) were decided in the civil context and did not consider the operative Family Law Rules, particularly rules 24(12) and 2(2). In any event, exceptional circumstances is one of the considerations identified in Stuart, where the Court also stated at para. 9:
The court interprets the Family Law Rules to require the exercise of discretion in rule 24(12) on a less stringent basis than the cases that call for such only in exceptional cases. The discretion should be exercised to ensure that all parties can equally provide or test disclosure, make or consider offers or possible [sic] go to trial. Simply described, the award should be made to level the playing field.
[6] In my view, the respondent has not shown that there are conflicting decisions within the meaning of the rule. Rather, she has shown that different judges, in applying rule 24(12) and the family law jurisprudence, have exercised their discretion in different ways, based on the facts before them.
Is there good reason to doubt the correctness of the order?
[7] The motions judge made her order on the basis of a number of considerations: the applicant is of very limited means; there is a clear financial imbalance between the parties because of properties in dispute in the litigation are registered in the respondent’s name and she receives the rental income; the inability of the applicant to proceed to trial without a payment to him; and the ability of the respondent to pay. She considered the merits, noting that this is a credibility case that requires a trial, and she considered the evidence regarding the applicant’s past and anticipated legal fees and disbursements. Ultimately she concluded that fairness required a payment from the respondent to the applicant in order to level the playing field and to allow this action to proceed to trial.
[8] In this motion, the respondent takes issue with respect to certain findings of the motions judge, claiming that the applicant does have financial assets, and she has no ability to pay, in part because of Certificates of Pending Litigation registered against various properties. However, there was evidence before the motions judge on which she could rely to make her findings about the parties’ respective positions.
[9] The respondent also argues that the motions judge failed to consider important questions: the merits of the applicant’s case; the likelihood that the applicant would be unable to repay the respondent if he does not succeed in the action (since this is not a case where there may be an equalization payment, as the parties never married and their claims are based in trust); and the quantum ordered of $150,000, which effectively covers most of the applicant’s past costs and a large part of his ongoing legal costs, thus giving him a licence to litigate.
[10] The motions judge did consider the merits to the extent she was able, given the nature of the dispute, as well as a number of other factors. An award of interim disbursements is not limited to cases where there will be an equalization payment (Stuart, above). She exercised her discretion in the interests of fairness so as to level the playing field in a trial that was rapidly approaching and estimated to last 11 days. In my view, there is no good reason to doubt the correctness of the decision.
[11] Nor does the proposed appeal raise issues of general importance with respect to the development of the law or the administration of justice.
[12] Accordingly, the motion for leave to appeal is dismissed. Costs to the applicant are fixed at $2,500.00, an amount agreed upon by the parties.
Swinton J.
DATE: January 25, 2016