Court File and Parties

COURT FILE NO.: FS-22-33553-0000 DATE: 20240912 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ming Pan, Applicant AND: Guoyao Zhao, Respondent

BEFORE: Mathen J.

COUNSEL: R.P. Zigler, for the Applicant Warren Milne, Respondent

HEARD: September 12, 2024

Endorsement

[1] The Respondent obtained leave for an urgent motion seeking leave to list and sell the parties’ matrimonial home located at 30 Bennington Heights, Toronto (“Bennington”), and another property located at 40 Rockland Drive (“Rockland”).

[2] The Respondent obtained leave for this hearing via a written (14B) motion to which Applicant’s counsel did not reply. I am satisfied that the non-reply was through inadvertence.

[3] The parties married in 1998 and separated in 2020. There are two adult children of the marriage. The Applicant currently resides at Rockland with the two children. The Respondent lives in China.

[4] There is a complicated history between the parties and concerning the two properties which is not necessary to relate.

[5] While the initial motion sought relief with respect to both properties, at the hearing the Respondent dropped his request with respect to Rockland, in part because all mortgage arrears have been paid.

[6] The Respondent’s counsel did not contest that the Respondent has yet to comply with the following court orders: a. An order by Justice Vella restraining the Respondent from continuing with a divorce proceeding in China; b. A costs order by Justice Vella in the amount of $8750; and c. At least one order for basic financial disclosure.

[7] Given the Respondent’s failure to comply with orders of this Court, I find that it would be inappropriate to grant him any of the relief that he seeks today. An order shall issue that the Respondent is not entitled to any further Order of the Court until he satisfies all outstanding court orders.

[8] That said, the Respondent’s counsel argued persuasively that this matter has been “drifting along”. Respondent’s counsel made several concessions and suggestions that were of assistance to the Court.

[9] The Applicant has persuaded me that, under Rule 1(8) of the Family Law Rules, I may grant relief related to the Respondent’s breach of the rules notwithstanding that such relief was not the subject of this motion, so long as I find such relief appropriate and consistent with the overall objective of the Rules to treat cases justly: Hughes v. Hughes. I add that several items of the Applicant’s requested relief were not opposed by the Respondent.

[10] I am persuaded that the Applicant wishes to sell the Bennington Heights Property as urgently as the Respondent does. The Applicant filed a sworn affidavit of a realtor, Julia Yang, attesting to the difficulties encountered in dealing with the Respondent’s realtor. I am persuaded that it is appropriate to give the Applicant sole authority to carry out the sale in order to capitalize on the Fall market.

[11] The Bennington Heights Property requires deck repairs. The parties are willing to equally share the cost equally. The Applicant shall pay for those costs upfront and the Respondent’s share shall be adjusted from the net proceeds of sale.

[12] The Applicant asked that half of one child’s tuition be paid by the Respondent from the net proceeds of sale. The Respondent does not object.

[13] The Applicant asked that $100,000 be released to her from the net proceeds immediately. Given the lack of disclosure by the Respondent and the uncontested allegation that the Respondent has yet to pay any support, I find this request is warranted.

[14] The Applicant has requested costs of $5076.50. Given that the initial 14B motion was not responded to, albeit through inadvertence, and given that today’s motion has assisted the parties to move forward, I find that a costs award of $4000 appropriately recognizes the degree to which the Applicant has prevailed on the merits.

Order

[15] In conclusion, I make the following order:

[16] The Respondent’s Motion is dismissed.

[17] The Respondent is not entitled to any further Order of this Court until he satisfies all outstanding orders against him, or until this Court orders otherwise.

[18] The Respondent shall pay to the Applicant forthwith from his share of the net proceeds of sale of 30 Bennington Heights Drive, East York, Ontario (“the property”) the following amounts: a. 50% of the cost for rebuilding the deck from the property (upon being provided with proof of payment). b. 50% of the school fees for Shuhan Zhao (upon being provided with proof of payment). c. The costs ordered by Justice Vella on July 27, 2024, in the amount of $8750.00.

[19] The Applicant shall be entitled to receive the sum of $100,000.00 forthwith from her share of the net proceeds of sale of the property.

[20] The Respondent’s consent to the sale of the property is dispensed with.

[21] The Respondent shall pay to the Applicant her cost of this motion, fixed in the amount of $4000 inclusive of disbursements and HST, forthwith from his share of the net proceeds of sale.

[22] The balance of the net proceeds of sale of the property after payment of the amount stipulated in this Order shall be held in trust pending further Court order on Motion or at trial.

Mathen J. Date: September 12, 2024