COURT OF APPEAL FOR ONTARIO

CITATION: Lu v. Zhao, 2014 ONCA 12

DATE: 20140109

DOCKET: C56132

Juriansz, Hourigan and Benotto JJ.A.

BETWEEN

Jin Lu

Appellant

and

Hang Zhao

Respondent

Jin Lu, acting in person

Jeff Li, for the respondent

Heard and released orally: December 13, 2013

On appeal from the order of Justice Kevin W. Whitaker of the Superior Court of Justice, dated September 21, 2012.

ENDORSEMENT

[1] This appeal raises several issues. They fall into two categories: the appellant’s claim for a sale and division of property in China and the quantum of child support.

[2] For the following reasons, the appeal is dismissed.

Property in China

[3] The Family Law Act, R.S.O. 1990, c. F.3, contemplates a division of net family property, not a sale and division of all individual properties, particularly property in another jurisdiction. The parties each had net family property of zero therefore, there was no equalization payment. Even if the trial judge had jurisdiction to deal with the property in China, there was no evidence presented at trial that could support a claim in equity or otherwise.

[4] The appellant claims that the property in China is a matrimonial home. The property in China is not a matrimonial home, as the parties were not ordinarily residing in it at the date of separation.

Quantum of child support

[5] The trial judge was entitled to impute income to the appellant with reference to his income tax returns for the years 2009 to 2011 and the undeclared cash income for the years he was winding up his import/export business. The attribution of $30,000 for 2007 and $20,000 for 2008 is substantiated on the record. The extraordinary expenses for tutoring, dental work and violin lessons are appropriate.

[6] The fresh evidence referred to by the appellant regarding so-called forged documents is not relevant to this appeal. The trial judge did not rely on any written agreement between the parties in imputing income to the appellant. After the trial judgment, the trial judge made an endorsement in the continuing record on December 17, 2012. The endorsement fixed the arrears owing to the wife at $13,451.24 and added that “the amount already paid should be deducted from this total”. Before us, the parties disputed “the amount already paid”. The parties are referred back to the trial judge to settle what that amount is.

[7] The appeal is dismissed. Costs are fixed in favour of the respondent in the amount of $3,000 all inclusive.

“R.G. Juriansz J.A.”

“W. Hourigan J.A.”

“M.L. Benotto J.A.”