Court File and Parties
COURT FILE NO.: FS-16-20913-0000 DATE: 20230227
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: JUE YAN Applicant – and – WEI XU Respondent
Counsel: Aristotle Lebedev, lawyer for the Applicant Joseph Paradiso, lawyer for the Respondent
HEARD: February 2, 2023
REASONS FOR DECISION
Overview
1On February 2, 2023, I heard a motion and cross-motion brought respectively by the applicant and respondent. I had adjourned both motions on several prior occasions to ensure that (a) they were both properly characterized and constituted, and (b) the necessary evidence (including expert evidence) was amassed and filed in the record to ensure a fulsome hearing with a view to deciding the very important issues before the Court.
2The facts giving rise to both motions are somewhat unique. After the breakdown of the parties’ marriage, the applicant commenced a family proceeding in the province of Ontario, while the respondent commenced a family proceeding in the People’s Republic of China (“China”). As explained in greater detail hereinafter, both parties attorned to both jurisdictions. As such, each legal proceeding existed and unfolded concurrently and simultaneously with the other.
3The respondent has now secured final judgments (three separate judgments dealing with separate legal issues) from the Chinese Court. Save for the issues of decision-making authority and parenting time, the Ontario application is still pending and ongoing.
4The applicant’s motion seeks an order granting interim child support and spousal support. In support of her motion, she argues that “the province of Ontario had jurisdiction to make such orders”. As the children reside in Ontario, and the respondent has attorned to the province of Ontario, the applicant is correct. However, it is the respondent’s position that the Chinese judgments ought to be recognized and enforced in Ontario, thereby precluding the applicant’s claims for child support and spousal support. The respondent’s cross-motion thus seeks summary judgment granting an order recognizing and enforcing the Chinese judgments as judgments of this Court.
5Argument of both motions proceeded before me during a half day attendance. During that attendance, I heard viva voce evidence (cross-examination) from the respondent’s qualified expert in Chinese legal procedure and family law, Wei (Sabrina) Wang (“Wang”).
6At the conclusion of the hearing, I took my decision under reserve. These are my Reasons.
Summary of Relevant Facts
7The salient facts are not in dispute between the parties.
8The parties are both Chinese nationals. They were married in China on April 8, 2008. There are two children of the marriage, born in China on April 15, 2008 and September 21, 2010 respectively.
9In or around July 2014 the respondent relocated to Ontario for employment reasons. He applied on the family’s behalf for Canadian permanent residency status in Canada. The applicant arrived in Ontario with the parties’ children in 2015, but at the respondent’s request she returned to China with the children within a few months.
10The applicant returned to Ontario with the children in early 2016. While in Ontario, the parties then separated on April 5, 2016.
11The applicant has remained in Ontario with the children since then.
12Between 2016-2019, the respondent resided primarily in China. The respondent returned to Ontario in 2019 and has remained here until the present.
13On June 13, 2016, the applicant commenced this application with claims for corollary relief under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).
14On September 12, 2017, the respondent served and filed an Answer to this application. At that time, the respondent was residing in China, having returned there shortly after the parties had separated.
15In this application, a final Order was made on October 18, 2018 awarding sole decision-making responsibility of both children to the applicant, and setting out a parenting schedule for the parties.
16On July 2, 2022, the applicant amended her Application to include claims for corollary relief under the Family Law Act, R.S.O. 1990, c. F.3.
17Commencing in 2017, the respondent commenced three, separate family proceedings in China:
(a) a divorce proceeding (which also addressed corollary relief including child support),
(b) a division of property proceeding, and
(c) an “after divorce” proceeding (which addresses any remaining issues which were not adjudicated in the first two proceedings).
18As explained later in these Reasons, the applicant participated in the Chinese proceedings and made submissions to the Chinese Court.
19All three Chinese proceedings culminated in judgments between 2016-2019.
20Within the divorce proceeding, the Chinese court granted a divorce judgment dated May 10, 2018. That divorce judgment also determined the issues of child support and property division (save for one other property co-owned by the respondent’s parents, as that property was made the subject matter of the division of property proceeding).
21Within the division of property proceeding, the Chinese court granted a judgment dated December 19, 2018. The applicant was unhappy with that decision, and appealed it to a higher Chinese court. The applicant’s appeal was dismissed by order dated April 24, 2019.
22Within the “after divorce” proceeding, the applicant tried to revisit the issues raised in her appeal in the division of property proceeding. The applicant’s request was dismissed by order dated November 15, 2019 of the Chinese court.
23There is no dispute that the Chinese judgments are final in nature and the appeal periods for each of them have long since expired.
Summary Judgment - Generally
24In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada held that on a motion for summary judgment, the Court must first determine whether there is a genuine issue requiring a trial based only upon the record before the Court, without using the (then) new fact-finding powers. The Court may only grant summary judgment if there is sufficient evidence to justly and fairly adjudicate the dispute, and if summary judgment would be an affordable, timely and proportionate procedure.
25The overarching principle is proportionality. Summary judgment ought to be granted unless the added expense and delay of a trial is necessary for a fair and just adjudication of the case.
26As held in Sanzone v. Schechter, 2016 ONCA 566, only after the moving party discharges its evidentiary burden of proving that there is no genuine issue requiring a trial for resolution does the burden then shift to the responding party to prove that its claim has a real chance of success. The Court must address the threshold question of whether the moving party discharges its evidentiary obligation to put its best foot forward by adducing evidence on the merits.
27Nothing in Hryniak v. Mauldin, 2014 SCC 7 or the subsequent jurisprudence displaces the onus upon a party responding to a motion for summary judgment to “lead trump or risk losing.” The Court must assume that the parties have put their best foot forward and placed all relevant evidence in the record. If the Court determines that there is a genuine issue requiring a trial, the inquiry does not end there and the analysis proceeds to whether a Court can determine if the need for a trial may be avoided by use of its expanded fact-finding powers.
Summary Judgment – Family Proceedings
28In the family law context (and specifically Rule 16 of the Family Law Rules, O. Reg. 114/99), the principles of summary judgment are the same. As held by the Court of Appeal for Ontario held in Ramdial v. Davis, 2015 ONCA 726:
“The appellant argues that there are gaps in the record relating to the matters in issue and those gaps created an uncertainty which could not be resolved without the benefit of a trial. Thus, she contends, the motions judge erred in failing to order a trial of the issues raised on the motions.
In my view, this submission reflects a misunderstanding of the operation of rule 16(6) of the Family Law Rules, O. Reg. 114/99.
Rule 16(6) provides that if there is no genuine issue requiring a trial of a claim or defence, the Court shall make a final order for summary judgment.
As the party bringing the motion for summary judgment, the respondent had the burden of showing no genuine issue requiring a trial. As the responding party, the appellant had to comply with the dictates of rule 16(4.1), which required that she tender evidence of specific facts showing a genuine issue requiring a trial. The responding party may not rest solely on mere allegations or denials, but must set out, in an affidavit or other evidence, ‘specific facts showing that there is a genuine issue requiring a trial.’
Rule 16 (4.1) reads as follows:
In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
Each party had to ‘put its best foot forward’ with respect to the existence or non-existence of material issues to be tried: Papaschase Indian Band No. 136 v. Canada (A.G.), 2008 SCC 14, [2008] 1 S.C.R. 372, at para 11, citing Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434; Goudie v. Ottawa (City), 2003 SCC 14, [2003] 1 S.C.R. 141, at para. 32.
Further, in Corchis v. KPMG Peat Marwick Thorne, [2002] O.J. No. 1437 (C.A.), at para. 6, this court affirmed that the responding party to a motion for summary judgment has an obligation to ‘lead trump or risk losing’.
While these cases rely on the summary judgment rules in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, they apply also to the summary judgment rules in the Family Law Rules, O. Reg. 114/99: Brusch v. Brusch, 2007 ONCA 612, at para. 1.”
Consent-Based Jurisdiction
29When a Canadian Court is asked to recognize and enforce a foreign judgment, the first stage of any analysis is to determine whether the foreign court had jurisdiction over the parties and/or the subject matter of the dispute. Such an analysis would typically invoke the application of the “real and substantial connection” test developed by the Supreme Court of Canada in Beals v. Saldanha, 2003 SCC 72.
30However, both prior and subsequent to Beals v. Saldanha, 2003 SCC 72, jurisdiction of the foreign court may also be proven by the responding/defending party attorning to the foreign court. Attornment will result in the foreign court being granted and maintaining jurisdiction over that party.
31As held by the Court of Appeal for Ontario in Kunuthur v. Govindareddigari, 2018 ONCA 730, a party attorns to a foreign court’s jurisdiction when that party goes beyond simply challenging the jurisdiction of the foreign court and, instead, takes steps to litigate the foreign claim on the merits.
32Justice Myers recently provided a helpful summary of the principles of attornment in Mehralian v. Dunmore, 2023 ONSC 1044:
“Attornment is a common law principle for recognition of foreign judgments. A party’s decision to voluntary submit to a foreign jurisdiction has been a basis for recognition of foreign judgments for hundreds of years. Morguard Investments Ltd. v. De Savoye at paras 14 to 16. Due to its voluntariness, attornment supersedes the need to assess the parties’ connectedness to a jurisdiction. In Beals v. Saldanha, 2003 SCC 72, the Court found at para. 37:
Although such a connection is an important factor, parties to an action continue to be free to select or accept the jurisdiction in which their dispute is to be resolved by attorning or agreeing to the jurisdiction of a foreign Court.”
Did the Applicant Attorn to the Chinese Court?
33In my view, a review of the record before this Court shows that the applicant clearly attorned to the jurisdiction of the Chinese court. Indeed, during argument, counsel for the applicant effectively conceded this point. Nevertheless, it is important to review these facts to support the finding that the applicant did attorn.
34According to Wang (and she was not explicitly challenged on this evidence), Articles 58 and 59 of the Civil Procedure Law of the People’s Republic of China provide that a party to a legal proceeding may appoint one or two persons to act as his/her agent(s) ad litem. The agent can be a lawyer, legal worker or a close relative of the party. Where a party appoints an agent to act on his/her behalf in litigation, that person must submit a power of attorney bearing his/her signature or seal to the Court.
35Article 62 of the Civil Procedure Law of the People’s Republic of China deals with agents ad litem in family proceedings, and provides that even where a party has appointed such an agent, he/she shall still appear personally in court unless he/she is incapable of expressing his/her own will. Any party who is unable to appear personally in court for those reasons shall then submit his/her views in writing to the Court.
36On the record before this Court, the applicant clearly abided by and complied with Articles 58, 59 and 62 of the Civil Procedure Law of the People’s Republic of China. In the Chinese proceedings, the applicant signed two separate powers of attorney (dated August 25, 2016 and January 16, 2018) authorizing her parents to represent her as the applicant’s agents. Both powers of attorney were certified by the Consulate General of the People’s Republic of China in Toronto.
37The applicant did not personally attend in China to appear before the Chinese court. However, she prepared two separate written submissions to the Court filed in the divorce proceeding and the “after divorce” proceeding. Those submissions were signed by the applicant (and her parents) on October 25, 2016 and March 22, 2018 respectively. I have reviewed the English translations of those written submissions, and note that the applicant did not take any issue with the jurisdiction of the Chinese court, but instead recounted her experiences with the respondent during the marriage, including allegations of infidelity, questionable parenting on the part of the respondent, and financial issues between the parties.
38In addition, it cannot be ignored that the applicant also appealed the original judgment in the division of property proceeding to a higher Chinese court, and sought to revisit the same issues in the “after divorce” proceeding.
39Even though the applicant commenced this application, she clearly abided by the provisions of the Civil Procedure Law of the People’s Republic of China and participated on the merits in the Chinese proceedings. Her decision to do so was understandable, but it was obviously also voluntary.
40The applicant wanted her voice heard by the Chinese court before any decisions were rendered. It cannot possibly lie in the applicant’s mouth at this stage to challenge the jurisdiction of the Chinese court after voluntarily submitting to its jurisdiction and participating on the merits.
41The applicant clearly attorned to the jurisdiction of the Chinese court, and thus the issue for this Court’s determination is whether the applicant can avail herself of any of the narrow defences open to claims of enforcement of foreign judgments.
Defences to Enforcement of Foreign Judgments
42Once a moving party establishes that the foreign court had jurisdiction over the parties and/or the subject matter of the dispute, the grounds upon which this Court may decline to recognize and enforce a foreign divorce judgment are quite limited.
43There are three essential defences which the post-Beals v. Saldanha, 2003 SCC 72 jurisprudence has consistently addressed and examined:
a) extrinsic fraud (ie. fraud going to the jurisdiction, and not the merits),
b) a denial of natural justice, and
c) public policy.
44With respect to the defence of extrinsic fraud, there is no evidence in the record before this Court that any such fraud occurred. In any event, the applicant attorned to the jurisdiction of the Chinese Court, and as such this defence is not even available to her.
45With respect to the defence of a denial of natural justice, I cannot find the Chinese proceedings to be contrary to Canadian notions of fundamental justice. In Beals v. Saldanha, 2003 SCC 72, the denial of natural defence is concerned with the form of the foreign procedure and the process by which the foreign court arrived at its judgment. In my view, the minimum standards of fairness were applied by the Chinese court, and the applicant was granted a fair process in which she actively participated. Basic procedural safeguards governing the participants in the Chinese legal system were adhered to and followed.
46The applicant was duly served with the Chinese proceedings, attorned to the jurisdiction of the Chinese court, and filed written submissions. In the Chinese judgments, the Chinese court acknowledged receiving and reviewing the applicant’s submissions.
47When assessing the denial of natural justice defence, there is no opportunity for this Court to revisit the merits of the Chinese proceedings, only the legal process that was followed. That process complied with the principles and tenets of natural justice, and thus the applicant cannot make out a defence of a denial of natural justice.
48This leaves the defence of public policy. In her submissions, the applicant advanced two arguments in support of her defence that the Chinese judgments should not be recognized and enforced due to those judgments being void for public policy.
49The first ground is that the child support ordered payable under the Chinese judgments amounts to approximately $676.00 CAD per month for the two children of the marriage, and the respondent would owe approximately $1,967.00 CAD per month in accordance with the Ontario Child Support Guidelines. The applicant argues that the approximate $1,300.00 “discount” was intentionally obtained by the respondent through his alleged “forum shopping for the cheapest international child support rates”, and such an approach is so offensive to this Court’s moral conscious that the Chinese judgments should not be enforced.
50The second ground is that the Chinese family law system/regime does not recognize any right by a spouse to claim spousal support arising from the breakdown of a marriage. As such, the applicant argues that her inability to pursue a remedy of spousal support so offends the Canadian sense of morality that the Chinese judgment should not be recognized and enforced in Ontario.
Public Policy
51In Beals v. Saldanha, 2003 SCC 72, the Supreme Court of Canada explicitly held that when a party seeks to challenge the enforcement of a foreign judgment, the defence of public policy involves the impeachment of that judgment by condemning the foreign law on which the judgment is based (my emphasis). This defence must be applied narrowly as “the expansion of this defence to include perceived injustices that do not offend our sense of morality is unwarranted”.
52In Boardwalk Regency Corp. v. Maalouf, the Court of Appeal for Ontario equated public policy with foreign law invoking “our instinctive moral repugnance” so that enforcing a foreign judgment would shock our moral conscience and place our society’s fundamental values at stake.
53In Sangi v. Sangi, 2011 BCSC 523, the Court was asked to refuse enforcement of an Iranian judgment on the basis that the doctrine of unconscionability was not available under Iranian contractual law. The Court rejected that submission and enforced the Iranian judgment, holding as follows:
“Is it contrary to ‘essential public or moral interest’ or our view of basic morality for foreign law of contract to admit a doctrine of unconscionability? In my view, it is not. The doctrine of unconscionability is an important protection for the vulnerable under our law of contract. However, it is not so essential a part of our law that its omission would shock the conscience. The defence of public policy has a narrow application, which is consistent with the principle of comity.”
54An example of a foreign divorce judgment being unenforceable for public policy is found in Kariminia v. Nasser, 2018 BCSC 695. In that case, the Court refused to recognize two orders denying a divorce to a woman in Iran on the basis that an Islamic divorce was exclusively available in Iran to a man, and not a woman. The Court held that it was against Canadian public policy to recognize a divorce that was solely the right of a man. Clearly, such a result would run contrary to section 15 of the Canadian Charter of Rights and Freedoms and the equality of sexes jurisprudence.
55In assessing the public policy defence, it is essential to remember that the Court should only be concerned with alleged repugnant law, and not repugnant facts. Whether or not a foreign judgment is unenforceable for reasons of public policy is a question based upon the underlying foreign law, and not the merits of the foreign dispute or the conduct of any of the parties. A public policy defence turns upon whether the foreign law is contrary to our view of basic morality.
Ground #1 – Alleged Forum Shopping for Lower Child Support
56As this Court is only concerned with the Chinese law, and not the facts giving rise to the Chinese judgments, I cannot find that the Chinese judgments are unenforceable by reason of the respondent returning to China, commencing divorce proceedings there, and obtaining a final judgment which provides for child support in a lesser amount than what could (or even likely would) have been awarded in Ontario.
57The respondent was free to commence the Chinese proceedings. The applicant was free to decide whether or not to participate in those Chinese proceedings. She did, and did so voluntarily. The fact that the amount of child support awarded by the Chinese court did not fall within the same range that the Ontario Child Support Guidelines would have dictated does not offend or shock the conscience of this Court. The Chinese court had jurisdiction to deal with the issue of child support, and the principles underlying the Ontario Child Support Guidelines are arguably irrelevant to the Chinese court’s disposition of the issue. The Chinese court’s decision regarding child support ought to be respected by this Court.
58I pause to address a recent decision of this Court (which was not referenced by either party during argument of the motions). In Vyazemskaya v. Safin, 2022 ONSC 7311, the Court refused to enforce a Russian divorce judgment on the grounds that the husband “forum shopped” by seeking and obtaining a divorce in Russia because it was advantageous for him to do so. The Court further held that for the respondent to “race to another jurisdiction to obtain a foreign divorce to avoid paying spousal support Ontario law” involved the type of “moral and fundamental values” that inform the public policy defence. Respectfully, I do not agree with the rationale in Vyazemskaya v. Safin, 2022 ONSC 7311, and had it been raised and argued during the hearing of the motions I would not have followed that rationale. The finding of the Russian divorce judgment being void for public policy reasons in Vyazemskaya v. Safin, 2022 ONSC 7311 was based upon admittedly repugnant facts, but not a determination of the alleged repugnancy of the law. This runs contrary to the Supreme Court of Canada’s holdings in Beals v. Saldanha, 2003 SCC 72 and the jurisprudence developed thereunder over the last twenty years.
59Interestingly, in Vyazemskaya v. Safin, 2022 ONSC 7311 it was established that the applicant could not receive spousal support under Russia law, as she did not fit within the limited three categories of spouses to which spousal support was available. The evidence was that in Russia, a former spouse may only seek spousal support in one of three cases: (a) when pregnant, (b) when caring for a child under the age of one years old, or (c) when physically or mentally incapable to work. Ultimately, the Court’s refusal to enforce the Russian judgment for being contrary to public policy was decided upon other considerations, namely the Court’s distaste with the actions of the respondent. While I take no issue with the finding that the respondent’s action in Vyazemskaya v. Safin, 2022 ONSC 7311 may have been morally offensive, the Russian judgment was found to be unenforceable in the absence of a substantive assessment of whether the Russian law was contrary to Canadian fundamental values.
Ground #2 - Inability to Claim Spousal Support
60Wang was the only expert (retained by the respondent) who participated in these motions. She gave extensive evidence relating to the inability to claim spousal support in China. The relevant excerpts from her expert report (which she adopted in her evidence) are as follows:
“There is no concept of spousal support provided in Chinese laws. Nonetheless, the right analogist to spousal support has been taken into account in divorce cases.
It is provided in Article 39 of the Marriage Law of the People’s Republic of China that at the time of divorce, except for otherwise agreed by the parties, the People’s Court shall make it judgment in consideration of the actual circumstances of the property and on the principle of carrying for the rights and interest for the wife and the child(ren).
Property division is the primary means of providing financial resources for a divorcing spouse. It is similar to equalization, but not simply dividing the net family property equally, nor a straight-forward calculation. The judge shall divide the property considering the roles of husband and wife usually play in a family unit, reflecting an equitable distribution between the spouses, and carrying for vulnerable family members. Therefore, the property division is an overall relocation of the matrimonial property. The issue of spousal support cannot be separated from the overall division of the property”.
61In other words, at the time of divorce, a party to the marriage has the right to request compensation from the other party in the event the requesting party may have “performed more duties in rearing children, looking after elders, and/or assisting the other party in work”. However, any such compensation is solely a function of the marital property accumulated during the marriage, and not a function of the current and/or ongoing income of the payor spouse. It appears to be a one-time payment from the marital property by way of potential unequal distribution of that marital property.
62Even if such an unequal distribution of marital property under Chinese law is ordered, in my view this does not amount to spousal support as Canadian law defines it. There is of course no fundamental right to obtain spousal support, as it is a remedy available to spouses at the discretion of the Court in light of a number of factors such as the length of the marriage, and the extent of the compensatory/non-compensatory basis for the request. Using an extreme example, if a spouse in China was in need of compensation after a lengthy marriage, made such a request at the time of divorce, and very little marital assets were accumulated during the marriage, that spouse would likely be out of luck and be awarded no appropriate compensation even if the payor spouse was employed with a high salary.
63In Canada, the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) ensures and promotes a recognition and accounting for both the economic disadvantages incurred by a spouse who makes sacrifices during the marriage, and the economic advantages conferred upon the other spouse during the marriage. In Moge v. Moge, the Supreme Court of Canada held that the equitable dealing of the economic consequences of the breakdown of a marriage “may well accord with society’s sense of what is just”.
64In Okmyansky v. Okmyansky, 2007 ONCA 771, the Court of Appeal for Ontario held that an Ontario court does not have jurisdiction to hear and determine a corollary relief proceeding (ie. a claim for spousal support) under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) following a valid, enforceable foreign divorce. As such, if the Chinese judgments are recognized and enforced here, even though the issue of spousal support was (and could never have been) adjudicated in China, the applicant would be precluded from advancing any claim for spousal support.
65Does the applicant’s inability to seek spousal support in China so offend our Canadian moral conscience that the Chinese judgment should be held unenforceable pursuant to the public policy defence? This very question was put before the Court in Cao v. Cheng, 2020 BCSC 735, a case which is nearly on all fours with the motions before this Court.
66In Cao v. Cheng, 2020 BCSC 735 (which was a trial decision), the husband commenced a family proceeding in China several months before the wife commenced a family proceeding in British Columbia. The husband’s Chinese proceedings were similar to those initiated by the respondent in the within case. Justice Forth found that the Chinese court had jurisdiction over the parties. Justice Forth was then asked to enforce the Chinese judgments wherein a divorce was granted, custody and child support were ruled upon, marital property was divided, and “compensation” was denied to the wife.
67In Cao v. Cheng, 2020 BCSC 735, the summary of the lack of spousal support available in China is very similar to Wang’s evidence given to this Court on these motions:
“There is no general right to spousal support in Chinese law. Support is only awarded where, at the time of the divorce, one spouse has “difficulties in life” such that they are unable to maintain a basic standard of living in their region. This is assessed after taking into consideration the property/assets they received in the division of marital property, which is the primary means of addressing the financial consequences of divorce under Chinese law.
Spousal support in Chinese law is not intended to reflect the marital standard of living enjoyed by both spouses prior to separation, nor is it aimed at reflecting an equitable distribution of the economic consequences of the marriage. It is not intended to compensate spouses for sacrificing labour force participation to take care of family responsibilities, nor is it awarded for loss of economic opportunity or economic disadvantage resulting from the roles adopted during the marriage.
Since property division is the primary means of addressing the financial circumstances of the spouses in divorce proceedings, it is also relevant to consider. The experts were in general agreement on the legal principles.
According to the Marriage Law of the People’s Republic of China, property acquired by the husband and wife during the marriage is considered “joint property”. Joint property includes, among other things, income earned, real estate, stocks, bonds, shares, and other investments. Some property is excluded, such as property that belonged to one party before the marriage (except where it has been jointly used during the marriage for a long period of time) and certain items that were specifically used by one spouse during the marriage. The parties may also exclude property by written agreement.
Upon divorce, parties are encouraged to agree on the division of property, but the court will decide where they are unable to do so. Where parties come to their own agreements, the court may require a readjustment where one spouse has contributed disproportionately to raising the children, supporting elderly relatives, or assisting the other spouse in his or her work (article 40, Marriage Law of the People’s Republic of China).
Where the parties do not reach an agreement, the court determines the division of property based on the circumstances of the case. Generally, jointly owned property and debts are divided equally between the spouses, but courts may decide otherwise based on what is appropriate in the circumstances, including their standards of living. There is also a principle of disposition in favour of children’s and women’s rights and interests which means that, if the court becomes involved in the division of property, the court must consider the rights and interests of the children and the wife in its decision.
As noted above, according to article 42 of the Marriage Law of the People’s Republic of China, which the experts agree is the closest equivalent to the Canadian notion of spousal support, if one spouse is unable to support himself or herself at the time of the divorce after the jointly held property has been divided, the other spouse must assist them with his or her property”.
68Again, any decision must be based on the foreign law giving rise to the foreign judgment, and not the facts of the particular case. While I am obviously sympathetic to the applicant due to the fact that her financial situation appears somewhat dire and could obviously be improved in the event she were awarded spousal support and/or increased child support in Ontario using the relevant governing principles and guidelines, as I am limited to deciding whether the defence of public policy applies, any such facts are legally irrelevant to the task at hand.
69In Cao v. Cheng, 2020 BCSC 735, Justice Forth ultimately rejected the public policy defence and found the Chinese judgments to be enforceable:
“The case law is clear that it is insufficient to invoke the public policy defence only because the foreign law is based on different policies or leads to different outcomes than it would have had Canadian law been applied. The issue is: is the Chinese law regarding spousal support so unjust as to offend Canadian sense of justice and basic morality?
In my view, the high bar needed to invoke the public policy defence is not met in this case. Although the bases for awarding spousal support are different in Canadian and Chinese law, the Chinese law is not so contrary to public policy as to offend basic Canadian standards of morality.
A major difference between Canadian and Chinese law is that Canadian law recognized a compensatory ground for spousal support, while Chinese law does not. However, in both jurisdictions, support may be awarded on a non-compensatory basis when a spouse is unable to meet their basic needs and the other spouse has the means to provide for them.
In addition, it is relevant that some of the compensatory principles for awarding spousal support in Canada are embodied in the Chinese law regarding division of property, which is the primary means of equalizing the financial situation of spouses in Chinese law. For example, courts may set aside agreements respecting property division where one spouse has disproportionately contributed to raising the children, supporting relatives, or assisting the other spouse in their work. Courts are also required to consider the rights of women and children when making and order with respect to property division.
For these reasons, the Chinese Judgment is not contrary to public policy. As no defences apply, it should be recognized in British Columbia”.
70In my view, while (a) the applicant’s lack of an ability to seek spousal support on traditional “Canadian grounds”, and (b) the absence of any “compensation” being tied to the income of a payor spouse both amount to obvious differences between the underlying policies of the Canadian and Chinese law, the right to spousal support in Canada is not, in and of itself, fundamentally guaranteed.
71I agree with Justice Forth in Cao v. Cheng, 2020 BCSC 735. Some of our principles of compensation for awarding spousal support are imported and taken into account when the Chinese court approaches the division of marital property. Such principles of compensation are therefore not foreign to the Chinese court, but merely applied in a different fashion and without taking concepts such as “maintaining marriage lifestyle” into account.
72As held in Beals v. Saldanha, 2003 SCC 72, the public policy defence is indeed a narrow one. The differences in the treatment of spousal support between Canadian law and Chinese law, while arguably significant, do not justify invoking the public policy defence in the case before this Court.
73Under Chinese law, if one spouse has difficulty supporting him/herself at the time of the divorce, the other spouse may be ordered to render appropriate assistance from his/her personal property to the spouse encountering such difficulty. That “appropriate assistance”, according to Wang, ensures a basic standard of living for the payee spouse post-divorce.
74While the “appropriate assistance” is likely “a one-time payment” and not an ongoing (but potentially time-limited) financial obligation in accordance with the underlying principles of Canadian spousal support, absent any appellate authority on this subject I cannot conclude that the lack of traditional Canadian spousal support in China amounts to the type of “shock to our moral conscience” sufficient to substantiate the public policy defence.
75For these reasons, the Chinese judgments are recognized and enforced in Ontario, and the respondent’s motion for summary judgment is granted.
Final Considerations
76Even in the face of an enforceable foreign judgment, there are still two limited exceptions available to the Court to address a request for payment of child support in Ontario.
77As held in Okmyansky v. Okmyansky, 2007 ONCA 771, an Ontario court lacks jurisdiction to grant corollary relief under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) after a foreign court has issued a valid and enforceable divorce judgment. However, in Cheng v. Liu, 2017 ONCA 104, the Court of Appeal for Ontario revisited its decision in Okmyansky v. Okmyansky, 2007 ONCA 771 when dealing with a request for child support in Ontario:
“The question that remains is whether an Ontario court has jurisdiction under the Family Law Act, R.S.O. 1990, c. F.3 to award child support after a foreign court has issued a divorce. This is an issue that was not considered in Okmyansky v. Okmyansky, 2007 ONCA 771.
Recall that in the respondent's initial application, dated March 28, 2009, she sought spousal and child support pursuant only to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). However, in her amended application dated August 4, 2015 she sought spousal and child support pursuant to both the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and the Family Law Act, R.S.O. 1990, c. F.3.
The only case dealing with the jurisdiction of an Ontario court to order child support following a foreign divorce is Morwald-Benevides v. Benevides, 2014 ONSC 699, [2014] O.J. No. 444, 44 R.F.L. (7th) 432 (S.C.J.), at para. 18. In that case, the court distinguished Okmyansky v. Okmyansky, 2007 ONCA 771 on the basis that the wife was not seeking corollary relief, but rather was seeking child support as a matter of provincial law under the Family Law Act, R.S.O. 1990, c. F.3.
There is also a line of jurisprudence developed in the trial courts that holds that where a court in a province has issued a divorce, but has not dealt with child support, then the courts in another province have jurisdiction to order child support pursuant to provincial legislation. The case law is mostly older, as the importance of this issue decreased following the 1993 amendments to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Prior to these amendments, the only court with jurisdiction to hear a claim for corollary relief was the court of the province that had granted the divorce. Following the amendments, the courts of any province where one of the former spouses has resided for at least a year have jurisdiction to hear a corollary relief claim, as do the courts of any province to which both spouses attorn.
In Pageau, James J. conducted a lengthy review of the jurisprudence on this question. He held, at para. 9, that following a divorce, the court that granted the divorce would have exclusive jurisdiction over child support in the following situations:
(a) whenever the divorce court has granted child support, no matter how nominal or how limited in time;
(b) whenever the divorce court, after considering the question of support, has refused to grant it or rejected the prayer to grant it; or
(c) whenever the divorce court has reserved its right to make subsequent pronouncements on support.
This line of jurisprudence is helpful in the analysis of the issue in the present case. It stands for the proposition that where a court issuing a divorce has not adjudicated the issue of child support, provincial legislation is a valid means of seeking a child support remedy.
In my view, the principles developed in the case law are analogous to a situation where a foreign court grants a valid divorce, but does not deal with child support. In the present case, while there is a valid divorce in place issued by the Chinese court, that court has expressly ruled that the issue of child support is better determined by the Ontario courts.”
78Accordingly, where a foreign court has issued a valid divorce judgment, an Ontario court still maintains jurisdiction under the Family Law Act, R.S.O. 1990, c. F.3 to adjudicate and award child support but only if the foreign divorce judgment has not dealt with the issue of child support.
79The applicant relies upon my decision in Leavens v. Fry, 2020 ONSC 5077 in support of her position that that while the Court should refrain from exercising jurisdiction under the Family Law Act, R.S.O. 1990, c. F.3 over issues of child support in the face of a valid and subsisting foreign divorce judgment dealing with child support, in situations where child support claims are brought together with custody claims, the Court does maintain a discretion to consider taking jurisdiction over both issues and hear them together.
80In my view, Leavens v. Fry, 2020 ONSC 5077 is distinguishable from the facts of this case. In Leavens v. Fry, 2020 ONSC 5077, the parties only referenced and relied upon the existence of the foreign (Connecticut) divorce judgment. Neither party sought an Order recognizing and enforcing the Connecticut divorce judgment as an Ontario judgment. In this application, the applicant previously obtained a final Ontario order granting her sole decision-making responsibility over the children, and the respondent has now successfully obtained an Order recognizing and enforcing the Chinese judgments. I therefore find that Cheng v. Liu, 2017 ONCA 104 is the governing test on the facts of this case.
81In her Amended Application, the applicant did claim child support under both the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and the Family Law Act, R.S.O. 1990, c. F.3. However, the Chinese judgments clearly dealt with and awarded child support. As such, this Court lacks jurisdiction to address and award any child support to the applicant.
82Finally, and although not specifically argued before me, I wish to briefly address this Court’s parens patriae jurisdiction. The Court may (and in some cases arguably should) only invoke its inherent parens patriae jurisdiction to act in the best interest of children in very limited circumstances. The Supreme Court of Canada described the narrow application of the Court’s parens patriae jurisdiction in E (Mrs.) v. Eve as follows:
“While the scope of the parens patriae jurisdiction is unlimited, the jurisdiction must nonetheless be exercised in accordance with its underlying principle. The discretion given under this jurisdiction is to be exercised for the benefit of the person in need of protection and not for the benefit of others. It must at all times be exercised with great caution, a caution that must increase with the seriousness of the matter. This is particularly so in cases where a court might be tempted to act because failure to act would risk imposing an obviously heavy burden on another person.”
83In Bhajan v. Bhajan, 2010 ONCA 714, the Court of Appeal for Ontario attempted to define the limited situations where the Court’s inherent parens patriae jurisdiction may be invoked in the best interests of children:
a) to rescue a child in danger,
b) to bridge a legislative gap, or
c) in the absence of a legislative gap, if invoking the Court’s parens patriae jurisdiction was the only way to meet the legislation's paramount objective.
84The first situation is not in play. The applicant’s children are not in danger.
85The second situation is not engaged by the facts before this Court. The legislative field is occupied by the provisions of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and the Family Law Act, R.S.O. 1990, c. F.3, and appellate decisions such as Okmyansky v. Okmyansky, 2007 ONCA 771 and Cheng v. Liu, 2017 ONCA 104 have already served to fill in any arguable gaps left open in that legislative field.
86The third situation is also not engaged by the facts before this Court. The paramount legislative objective is the best interests of children, and given my findings the Court’s inherent parens patriae jurisdiction is not the only route available to meet that objective.
87The applicant’s motion for interim child and spousal support is therefore dismissed.
Costs
88I would urge the parties to exert the necessary efforts to resolve the costs of these motions. If those efforts prove unsuccessful, they may serve and file written costs submissions (totaling no more than five pages including a Costs Outline) in accordance with the following schedule:
(a) the respondent shall serve and file his written costs submissions within ten business days of the release of these Reasons; and
(b) the applicant shall serve and file her written responding costs submissions within ten business days of the receipt of the respondent’s written costs submissions.
Diamond J.
Released: February 27, 2023
