Court of Appeal for Ontario

Date: 20240516 Docket: COA-23-CV-0793 & COA-23-CV-0960

Before: Zarnett, Coroza and Favreau JJ.A.

Between:

Yuan Xiang Ding Applicant (Respondent)

and

Hang Chen Respondent (Appellant)

and

Toronto Employment & Social Services (‘TESS’) Assignee of Support Order (Respondent)

and

Ministry of Children, Community and Social Services (‘MCCSS’) Assignee of Support Order (Respondent)

Counsel: No one appearing for the appellant Victor Pilnitz, for the respondent Yuan Xiang Ding Jean Hyndman, for the respondent assignees Toronto Employment & Social Services and the Ministry of Children, Community and Social Services

Heard: April 26, 2024

On appeal from the orders of Justice Melanie Kraft of the Superior Court of Justice, dated June 1, 2023, and from the order of Justice Melanie Kraft of the Superior Court of Justice, dated June 21, 2023, with reasons at 2023 ONSC 3733.

Reasons for Decision

Introduction and Procedural History

[1] The appellant had two appeals scheduled before this panel on April 26, 2024. The first appeal is from an order dismissing his motion to change child support. The second appeal is from an order imposing penalties for contempt.

[2] The appellant did not appear on the appeals. The day before the hearing, he emailed the Registrar requesting an adjournment, without details as to the reason. As the respondents did not consent, the appellant was advised that he would have to attend to request the adjournment in person or virtually. He emailed the Registrar the morning of the hearing to advise that he was in the hospital and unable to attend by video. He did not provide any supporting medical documentation at that time. Nor did he take up the Registrar’s invitation to attend by telephone, although the opportunity was offered to him.

[3] At the hearing, based on a suggestion from counsel for the respondents, the panel made an order requiring the appellant to serve and file, within seven days, evidence demonstrating that he was unable to attend the hearing because he was hospitalized. If he did not do so, the panel would decide the appeal based on the written materials. The court sent the written endorsement setting out this order to the appellant following the hearing.

[4] The appellant did not comply with this court’s order. The court did not receive any evidence from the appellant that he was unable to attend the hearing due to hospitalization.

[5] The appellant has a history of commencing proceedings and not attending hearings. He did not attend the motion to quash his motion to change before the motion judge on June 1, 2023. He did not attend the contempt motion before Czutrin J. on June 8, 2023. He also did not attend the penalty hearing before the motion judge on June 20, 2023.

[6] In these circumstances, we are satisfied that it is appropriate to decide both appeals based on the written materials filed by the parties, including the materials filed by the appellant.

[7] Having reviewed and considered those materials, we conclude that the two appeals should be dismissed.

A. Appeal from the order dismissing the motion to change

[8] The motion judge dismissed the motion to change because the appellant failed to provide the financial disclosure previously ordered by the court and had substantial outstanding unpaid support and costs obligations.

[9] We are satisfied that the motion judge made no errors in granting this order.

[10] The appellant claims that the motion judge made the decision without the benefit of his submissions. However, it was not an error for the motion judge to hear the motion in the appellant’s absence if she was satisfied that he had properly been served, which she was.

[11] The appellant also claims that he was deprived of legal representation at the motion because the motion judge made an order removing his previous counsel from the record. However, the appellant did not respond to the removal motion nor has he appealed that order. Therefore, there is no merit to this position.

[12] Besides the issues of procedural fairness, the appellant makes numerous allegations of misconduct against the personal respondent, including with respect to her relationship with other men since the marriage breakup. These allegations are irrelevant to the issue of whether the motion judge erred in dismissing the motion for change, and specifically to her findings that the respondent failed to comply with financial disclosure orders and obligations to pay support and costs.

[13] Given that the appellant brought the motion to change and that he failed to provide the required financial disclosure, the motion judge’s decision dismissing his motion was clearly warranted. Accordingly, we see no merit to this appeal.

B. Appeal from the order imposing the contempt penalty

[14] On June 8, 2023, Czutrin J. made an order finding the appellant in contempt for failing to comply with an order made February 1, 2023 by Bingham J., and with the motion judge’s June 1, 2023 order dismissing his motion to change. Bingham J.’s order required the appellant to make financial disclosure in support of his motion to change. The motion judge’s order dated June 1, 2023 included a requirement that the appellant make various cost payments. Czutrin J. gave the appellant a chance to purge his contempt by July 10, 2023, failing which there would be a penalty hearing. The order also required the parties to reattend court on July 19, 2023 to provide an update and to make further necessary orders. In a subsequent endorsement dated June 13, 2023 made by Czutrin J., he corrected the July 19, 2023 attendance date to June 20, 2023.

[15] The June 20, 2023 hearing proceeded before the motion judge. The appellant did not appear on that date. The motion judge heard the respondents’ submissions on the issue of penalty for the contempt, and she made an order requiring the appellant to pay a penalty of $10,000 and requiring the payment of full indemnity costs.

[16] The appellant’s notice of appeal refers to the motion judge’s order imposing a penalty. However, his factum on appeal appears to also take issue with Czutrin J.’s June 8, 2023 order finding him in contempt. In any event, we see no merit to the appeal, even if it is also meant to be from Czutrin J.’s order.

[17] As on his appeal from the order dismissing his motion to change, the appellant raises issues of procedural fairness. He argues that he did not have an opportunity to make submissions at the contempt and penalty hearings. Again Czutrin J. and the motion judge were satisfied that the appellant was properly served and, in the circumstances, it was appropriate for them to hear and consider the motions in the appellant’s absence.

[18] The appellant also argues that the penalty hearing took place before the deadline for purging his contempt had expired. Czutrin J.’s order did indeed set July 10, 2023 as the deadline for the appellant to purge his contempt, whereas the penalty hearing took place before that date, on June 20, 2023. However, the June 20, 2023 hearing was scheduled “to update the court and to make such further orders as required to satisfy all orders made to date and going forward”. Evidently, this was worded broadly, and, in the circumstances, we see no error in the motion judge deciding the appropriate penalty for the appellant’s contempt at the June 20, 2023 hearing. Had the appellant attended the hearing on that date, he would have had an opportunity to address this issue, but, consistently with his previous pattern, he chose not to attend the hearing. More importantly, there is no evidence that the appellant purged his contempt by July 10, 2023 or that he has any intention of ever doing so.

[19] Besides the issues of procedural fairness, the appellant renews his attacks on the personal respondent’s behaviour and lifestyle. These issues are irrelevant to whether the judges below erred in finding him in contempt and in imposing the penalty.

[20] It is evident that the appellant has a history of failing to comply with court orders, failing to make support and cost payments, and failing to attend court proceedings that he initiated. The orders below were clearly appropriate and warranted.

Disposition

[21] The appeals are dismissed.

[22] We order the appellant to pay costs of the appeals to the respondent Yuan Xiang Ding for both appeals on a substantial indemnity basis in the amount of $25,000, inclusive of disbursements and HST.

[23] We further order the appellant to pay costs of the appeals to the respondents Toronto Employment & Social Services and the Ministry of Children, Community and Social Services in the amount of $2,000.00, inclusive of disbursements and HST.

“B. Zarnett J.A.” “S. Coroza J.A.” “L. Favreau J.A.”