COURT OF APPEAL FOR ONTARIO DATE: 20210929 DOCKET: C68703

Feldman, Paciocco and Coroza JJ.A.

BETWEEN

Xiang Li Applicant (Respondent)

and

Xiang-E Li Respondent (Appellant)

Counsel: Heng (Pandora) Du, for the appellant Michael J. Stangarone and Stephen P. Kirby, for the respondent

Heard: March 12, 2021 by video conference

On appeal from the order of Justice E. Llana Nakonechny of the Superior Court of Justice, dated September 15, 2020, with reasons reported at 2020 ONSC 5552.

Coroza J.A.:

I. Overview

[1] The appellant appeals from the dismissal of her motion (the “Motion”), in which she sought an order dismissing, on jurisdictional grounds, the respondent’s application for relief arising from the breakdown of their marriage (the “Application”). Before the motion judge, the appellant argued: i) that Ontario lacked jurisdiction to hear the Application and ii) in the alternative, that the city of Kunming, in the province of Yunnan, People’s Republic of China was the more appropriate forum for the dispute. The motion judge rejected both arguments, concluding that Ontario had jurisdiction and that the appellant had not met her burden of showing that China was the “clearly more appropriate” forum for the case.

[2] For the reasons that follow, I would not interfere with the motion judge’s finding that Ontario has jurisdiction to hear the dispute. However, I conclude that the motion judge erred in reaching the conclusion that China was not the “clearly more appropriate” forum for resolving the respondent’s property and support claims.

[3] At its core, this litigation relates to assets located in China and the respondent’s post-separation interest in them, if any. The respondent purportedly waived his interest in the assets by entering into three written agreements in China. These agreements have not been set aside. Since these documents were executed and witnessed in China, the Chinese courts are in a far better position to deal with their applicability. Respectfully, the motion judge ignored this very important factor in analyzing the doctrine of forum non conveniens [1]. Instead, the motion judge focused on the fact that the respondent was pursuing a trust claim interest in a single property in Ontario: a property worth a small fraction of the appellant’s overall assets. In my view, the failure to consider the parties’ domestic agreements as central to the forum non conveniens analysis was an error in principle justifying intervention by this court.

II. Background

[4] In 2003, the appellant and the respondent met in China. In 2012, they married in the city of Kunming, Yunnan Province, China.

[5] The appellant is a Chinese citizen. She previously held Canadian permanent resident status, until it expired in March 2019. This status was not renewed. The respondent is a Canadian citizen.

[6] The appellant provided evidence during the Motion demonstrating that, between the date of marriage in 2012 and the date of divorce in 2018 (approximately 6 years), she was in Canada for a total of approximately 300 days (less than 10 months in total). She conceded during questioning that some visits to Toronto, Ontario in 2015 may not have appeared in the evidence filed by the parties.

[7] Both parties were previously married and have children from those marriages. They do not have any children together.

[8] The parties do not agree on their date of separation. The appellant claims that the parties separated in April 2016, after a physical altercation in their home. For his part, the respondent claims that the parties continued to reside together as a couple both in China and Toronto until at least March 2018.

[9] In March 2018, the parties obtained a divorce certificate in China. As discussed in further detail below, the respondent disputes the validity of this divorce.

(1) The Parties’ Assets and Debts

[10] The respondent claims that he and the appellant contributed work and resources to a series of family companies that are located in China. He suggests that the appellant leveraged assets from certain family businesses to borrow funds to purchase real estate in her name alone.

[11] The appellant states that she owned corporations and real property in China before and during the marriage. She denies that the respondent made any financial contributions to her assets.

[12] The respondent claims that the parties shared two matrimonial homes located in Toronto. In 2012, just prior to the marriage, the appellant purchased a property at 220 Elmwood Avenue (the “Elmwood Property”), in her name alone. She claims that she purchased the Elmwood Property for her son to reside in while he attended school in Canada. In May 2016, the Elmwood Property was sold, and the proceeds were used to purchase property at 33 Bevdale Road, Toronto (the “Bevdale Property”), also in the appellant’s name alone. The respondent claims he found the Bevdale Property and worked with a real estate agent to arrange the purchase. He states that the parties were not separated at this time.

[13] The appellant has a Royal Bank of Canada account in Toronto, in her name alone, which she used to pay the expenses for the Elmwood and Bevdale Properties. The respondent argues that he made contributions to this account that were used to pay for the mortgage, taxes, utilities, and other expenses for the Bevdale Property.

(2) The Marital Assets Agreement, Letter of Commitment, and Repayment Agreement

[14] On March 11, 2014, the parties signed a Marital Assets Agreement addressing five Chinese properties the appellant purchased in her name alone. This Agreement confirms that the respondent has no entitlements to the properties.

[15] On May 12, 2015, the respondent also signed a Letter of Commitment clarifying that he lacked any interest in 41 specified investment properties. These properties are all located in China.

[16] In 2019, after the divorce, the parties negotiated the terms of a repayment agreement for a 2,000,000 RMB [2] loan made to the appellant by the respondent, his mother, sister, and brother-in-law. The repayment amount is 6,000,000 RMB, which the appellant claims includes interest and an “equitable voluntary payment” by her to the respondent, representing his “monetary interest” in their relationship. The respondent argues that the repayment agreement is unrelated to any division of marital property. The Marital Assets Agreement, Letter of Commitment, and loan repayment agreement were all executed and witnessed in China, in the Chinese language and in Chinese currency.

(3) The Divorce Agreement and the Supplementary Agreement

[17] On March 26, 2018, the parties applied for a divorce in Kunming. They attended together at the Kunming City Ministry of Civil Affairs Marriage Registry and brought a handwritten document stating their intention to divorce as well as their agreement that i) there will be no disputes in relation to the children and ii) all issues related to property, debts, and liabilities had been resolved through private negotiation.

[18] The registrar required a typed document, so the respondent typed a document with the same terms as the handwritten document (the “Divorce Agreement”). Both parties signed the document, added their fingerprints, and obtained a divorce certificate.

[19] The appellant claims this divorce certificate is valid and reflects the parties’ agreement. The respondent states that the appellant misled him, assuring him that this was not a real divorce.

[20] The appellant states that on March 26, 2018, the parties signed a Supplementary Agreement to the Divorce Agreement. In this document, the respondent waived his rights to any of the appellant’s assets. It states that all property in either party’s name belongs to the appellant, except for a car and a debt owing by the respondent, which he would retain.

[21] The appellant argues that the Supplementary Agreement reflects the parties’ negotiations and the fact that the respondent made no contributions to her corporations or real estate.

[22] The respondent asserts that he does not recall executing the Supplementary Agreement. He claims he was unaware of the Supplementary Agreement’s existence until December 2019. He admits that the signature on the document resembles his but claims the appellant would ask him to sign blank documents in case his signature was needed while he was absent. The respondent contests the validity of the divorce obtained in China as well as the Supplementary Agreement.

III. Procedural History

(1) The Application

[23] In February 2020, the respondent commenced an Application for various relief, including: i) a declaration that the Chinese divorce not be recognized or enforced in Ontario; ii) a declaration setting aside the Supplementary Agreement; and iii) a declaration that Ontario has jurisdiction to determine the outstanding property and support issues between the parties. The outstanding property and support issues included claims for equalization, spousal support, and the respondent’s claim of a resulting and/or constructive trust over the Bevdale Property, based on the allegation that the appellant was unjustly enriched by his contributions to the Bevdale Property.

[24] The appellant refused to attorn to the jurisdiction of the court. Instead, she brought a motion for an order: i) dismissing the respondent’s Application and ii) declaring that the city of Kunming, in Yunnan Province, China, is the more appropriate forum to determine any outstanding issues between the parties arising from the breakdown of their marriage.

(2) The motion judge’s reasons

[25] In her reasons, the motion judge framed the issues on the Motion as: i) whether an Ontario court had jurisdiction to determine the respondent’s property and spousal support claims and ii) if the court had jurisdiction, whether Ontario was the appropriate forum to determine the issues.

(a) The motion judge finds Ontario has jurisdiction

[26] The motion judge noted that she was not asked to determine the validity of the Chinese divorce. She acknowledged that there is a presumption in favour of recognizing the validity of foreign divorces, and that it is rare for a Canadian court to refuse to recognize a divorce properly obtained under the laws of another jurisdiction. While the divorce’s validity would impact the respondent’s spousal support claim, it would not impact the equalization and trust claims made under s. 15 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), which the motion judge considered next. In considering these claims, the motion judge recognized that, absent a statutory rule, an Ontario court may take jurisdiction simpliciter over the case if there is a real and substantial connection between the forum and the subject matter or the parties to the dispute: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572.

[27] The motion judge concluded that Ontario had jurisdiction to hear the respondent’s equalization and property division claims. In her view, the following factors provided Ontario with a real and substantial connection to the dispute:

• The respondent is a Canadian citizen who primarily resided in Canada during the marriage and since separation (on either separation date put forward by the parties);
• The respondent claims a beneficial interest in an Ontario property. The parties and their children resided in the Elmwood and Bevdale Properties as their family homes during the marriage;
• The appellant regularly visited Ontario each year and obtained permanent resident status. In her application for this status, she expressed a desire to make Canada her home;
• There may be unfairness to the respondent if Ontario does not assume jurisdiction. Expert evidence, adduced by the respondent yet untested by cross-examination, suggested that the respondent is out of time to make his claim for property division in China; and
• Although there are relevant documents and witnesses in both China and Ontario, the documents relevant to the trust claim would primarily be in Ontario, as would some evidence relevant to determining the date of separation.

(b) The motion judge finds Ontario is the more appropriate forum

[28] The motion judge then went on to address the appellant’s argument that if the court found that Ontario had jurisdiction, it should nevertheless decline to exercise jurisdiction on grounds of forum non conveniens because China was clearly the more appropriate forum. The motion judge disagreed and referenced the following considerations:

• All the witnesses and evidence relating to the respondent’s trust claim would be in Ontario, except for the appellant’s evidence;
• The “natural forum” for a claim to an interest in an Ontario property is Ontario;
• The appellant would be able to present her case in Ontario without significant difficulty. While Chinese documents and currency values would need to be translated and converted for purposes of a claim in Ontario, the parties were able to do this for purposes of the Motion and the proceeding unfolded without disruption;
• If the respondent is successful in asking an Ontario court not to recognize or enforce the Chinese divorce, he could then proceed with his spousal support claim. Certain relevant documents and witnesses would be in Ontario as the respondent spent more time here than in China; and
• If the court declined jurisdiction, the respondent may be out of time to pursue a claim for division of marital property in China, as demonstrated by the conflicting expert evidence. This would represent the loss of a legitimate juridical advantage.

[29] Accordingly, the motion judge dismissed the Motion, permitting the respondent to proceed with his claims in Ontario.

IV. Grounds of Appeal

[30] The appellant raises the following issues on appeal in her factum:

1. Is there a real and substantial connection between the parties, the matrimonial claims being litigated, and Ontario?
2. Is Yunnan Province, China the more appropriate forum to determine the claims raised in the respondent’s Application?
3. Should this court strike out all or part of the respondent’s Application, leaving only the trust claims concerning the Bevdale Property to proceed in Ontario?

V. The Legal Framework

[31] Both parties agree that in the absence of a statutory rule, the common law conflicts rule of Canadian private international law — the “real and substantial connection” test — determines whether jurisdiction exists in Ontario's courts. It is not disputed that the motion judge properly referenced Van Breda and identified that a real and substantial connection must be established primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation with the forum. The parties also agree that the motion judge properly recognized that, even when an Ontario court assumes jurisdiction, if the defendant (or respondent in the Application) establishes that another forum is clearly more appropriate for disposing of the litigation, then the court can decline to exercise jurisdiction on the grounds of forum non conveniens: see Van Breda, at para. 108.

VI. Discussion

(1) Is there a real and substantial connection between the parties, the matrimonial claims being litigated, and Ontario?

[32] The appellant argues that the motion judge erred in ignoring or misapprehending the facts in concluding that there was a real and substantial connection between this matter and Ontario.

[33] In her factum, the appellant contends that the material before the motion judge suggests that the respondent worked in China and that his affidavit did not establish that he lived in Canada. She, on the other hand, does not live in or carry on business in Ontario; the appellant’s business is “based entirely in China”, and the respondent’s employment and business activities during the “material times” were entirely in China. Furthermore, the appellant argues that her only connection to Ontario is a single encumbered piece of real property (the Bevdale Property) and a bank account; by contrast, the appellant owns many assets and owes significant debts in China.

[34] Absent palpable and overriding error or an extricable error of law warranting correctness review, deference ought to be afforded to the motion judge. In my view, the appellant has not identified any extricable errors of law or palpable and overriding error in the motion judge’s analysis on the question of whether Ontario has jurisdiction.

[35] The motion judge found that the respondent was a Canadian citizen and that he resided primarily in Canada during the marriage and post separation. I do not accept the appellant’s submission that the motion judge misapprehended the evidence on this point and that there was not a “shred” of evidence that the respondent lived primarily in Canada. The respondent presented proof of Canadian citizenship and the respondent’s passport and driver’s licence all indicated that he lived at the Elmwood and Bevdale Properties. Furthermore, there was evidence before the motion judge that he made payments towards the carrying costs of maintaining the properties in Ontario. In my view, the motion judge did not err in finding that the respondent resided primarily in Canada.

[36] In Wang v. Lin, 2013 ONCA 33, 358 D.L.R. (4th) 452, this court accepted that in the context of marriage breakdown the presumptive connecting factors are necessarily different from those identified in Van Breda, which was a tort case. This court noted that the list of presumptive connecting factors is not closed and the location of the “real home” or “ordinary residence” should be a presumptive connecting factor: Wang, at paras. 46-47; see also Knowles v. Lindstrom, 2014 ONCA 116, 118 O.R. (3d) 763, at para. 27, leave to appeal refused, [2014] S.C.C.A. No. 161. Therefore, the respondent’s ordinary place of residence was a significant factor to consider in determining jurisdiction.

[37] Furthermore, the motion judge noted that part of the respondent’s claim is an assertion that he has an equitable interest in the Bevdale Property. The location of that property is in Ontario. This court has held that the location of a property is also a presumptive connecting factor sufficient to establish jurisdiction simpliciter: Knowles, at paras. 21, 24.

[38] As this court explained in Knowles, a single presumptive connecting factor, in the absence of any rebuttal of that presumption by the appellant, is sufficient to establish jurisdiction under the Van Breda analysis: Knowles, at para. 24. In this case, the motion judge identified that the appellant was a Canadian citizen, ordinarily resident in Canada, and that he was advancing a claim on property located in Ontario.

[39] I would defer to the motion judge’s conclusion that there was a sufficient connection to Ontario to establish jurisdiction simpliciter.

(2) Is Yunnan Province, China the more appropriate forum to determine the claims raised in the respondent’s Application?

[40] After finding that the Ontario court had jurisdiction, the motion judge then considered the appellant’s argument that she should decline to exercise that jurisdiction under the forum non conveniens doctrine because China was “clearly more appropriate” for determining the issues in the case. The burden was on the appellant to show why jurisdiction should not be exercised: Van Breda, at para. 103.

[41] The motion judge’s conclusion on the forum non conveniens issue is properly viewed as an exercise in judicial discretion and this court will defer to that assessment, absent an error in principle, a material misapprehension of the evidence, or if, in the circumstances, the exercise of that discretion is unreasonable: Knowles, at para. 40.

[42] In essence, the doctrine focuses on the circumstances of the case, and its purpose is to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient: Van Breda, at para. 105. The factors that come into play in considering the question of forum non conveniens depend on the context and may include the locations of parties and witnesses, the cost of transferring the case to another place, the impact of a transfer on the case or a related case, the possibility of conflicting judgments, problems relating to recognition or enforcement of judgments, and the relative strengths of the connections of the parties: Van Breda, at para. 110.

[43] Loss of juridical advantage to one or the other of the parties is also a relevant consideration: Knowles, at para. 43. Even then, however, comity and an attitude of respect for the courts and legal systems of other countries may be in order: Van Breda, at para. 112. A court must not lean too instinctively in favour of its own jurisdiction: Van Breda, at para. 112.

[44] In my view, the motion judge erred in principle in her analysis on the issue of forum non conveniens. I find this for several reasons.

[45] First, the motion judge ignored a very important factor – the existence of three signed agreements waiving the respondent’s entitlement to the assets and properties in China. The Divorce Agreement, dated March 26, 2018 (translated), says, “the [appellant and respondent] acknowledged that issues pertaining to assets, financial claims and debts have been resolved on their own through negotiations.” The appellant claims that several key agreements have come out of the parties’ private negotiations, including:

• The Supplementary Agreement to the Divorce Agreement, dated March 26, 2018, which states that the respondent will “move out and waive rights to any property or assets” (English translation). It further stipulates that “[a]ll corporation or company’s share’s [sic] and personal assets” under either the respondent or appellant’s name belong to the appellant, including the real estate property in Canada purchased by the appellant before the marriage (English translation).
• The Marital Assets Agreement, dated March 11, 2014, which states that the five properties in China being purchased are in the appellant’s name and the parties agree that she alone owns them and the respondent has no interest in them.
• The Letter of Commitment, dated May 12, 2015, which states that the respondent makes the “sincere promise to forego ownership in 41 properties” he co-owned with the appellant (English translation).

[46] As this court stated recently in Krebs v. Cote, 2021 ONCA 467, 459 D.L.R. (4th) 730, at para. 19, “[p]arties should be encouraged to enter agreements to define their rights and obligations. Jurisprudential shoals upon which an agreement may founder unnecessarily do not advance that goal.”

[47] To this end, under Ontario law, there is a high bar to set aside a domestic contract that complies with the enforceability requirements of s. 55(1) of the FLA: namely, that it is made in writing, signed by the parties and witnessed.

[48] In this case, to proceed with his claims for equalization or an interest in the properties covered by the agreements, the respondent would first have to seek to set those agreements aside. The respondent would also have to address the appellant’s position that there was a loan repayment agreement executed in 2019 that settled some of the matrimonial claims. In Ontario, of course, a claim for equalization or support under the FLA would engage the factors set out at s. 56(4) of the Act for setting aside a domestic agreement.

[49] Section 56(4) of the FLA provides that,

A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

[50] There was also evidence before the motion judge that similar provisions exist in China to set aside unfair contracts. The opinion letter tendered by the appellant on the Motion states that, according to Article 54 of the Contract Law of People’s Republic of China, a valid contract can be set aside where there is a significant misunderstanding, or when one party uses fraudulent or coercive means or takes advantage of the other party while they are in a vulnerable state, not unlike Ontario.

[51] In this way, the preliminary question of whether the agreements could be set aside, was in my view central to assessing the more appropriate forum. Respectfully, the motion judge erred in considering the respondent’s claims in the Bevdale Property – and his potential entitlements to share in some way (whether by way of equalization or a direct property interest) in the appellant’s Chinese properties – without considering the question of setting aside the divorce and/or the agreements about property. With the agreements as the proper focus, and given that the agreements were all executed and witnessed in China, in the Chinese language, it becomes clear that China is the most appropriate forum for the dispute.

[52] Second, the motion judge’s reasons state that the natural forum for the claim to the Bevdale Property is here in Ontario. As set out above, the location of the property is a factor that carries considerable weight on the jurisdiction inquiry. However, the motion judge’s focus on the Bevdale Property overwhelmed her analysis of forum non conveniens. In this case, the far more valuable property interests are in China and are governed by contracts in China; there are multiple agreements between the parties that are, as mentioned, written in the Chinese language and in Chinese currency. These agreements concern multi-million-dollar business interests and properties there. In contrast, the Bevdale Property is worth considerably less. The Bevdale Property should not have been the focal point of the analysis and it certainly was not the natural forum for the division of property claim viewed as a whole.

[53] Third, the motion judge held that the respondent was not claiming any property interest in properties or corporations located in China, only in the monetary payment that would occur after the equalization calculation based on properties or corporations in China. However, this factor assumes that an equalization payment would be the only remedy under Chinese law. There was no evidence that equalization rather than distribution of properties would be the remedy in China and the motion judge engaged in speculation that this would be the case.

[54] Finally, the motion judge erred in her analysis in terms of the respondent’s loss of a legitimate juridical advantage. The motion judge identified the juridical advantage as the respondent’s ability to pursue his claim for property division in Ontario because he may be out of time in China. On the Motion, the respondent produced an opinion from a lawyer stating that, in China, where a man and woman are divorced by joint divorce and the parties have a change of mind over the issue of property division, they have one year from the date of the divorce to request to modify or revoke the property division agreement. The respondent’s legal opinion concludes that, based on this rule, litigation concerning division of property by joint divorce needs to be filed within one year.

[55] For her part, the appellant disagreed that the respondent was out of time in China. She also produced an expert opinion that stated that the respondent could seek redress in a Chinese court to amend or void the Supplementary Agreement if he could demonstrate that he was under a serious misunderstanding, or there was an appearance of unfairness, or that he was defrauded, coerced or taken advantage of while in a vulnerable state that caused him to erroneously express his intention. Faced with this conflicting evidence, the motion judge nevertheless held that if Ontario declined jurisdiction, the respondent could lose a legitimate juridical advantage because he was out of time in China.

[56] I acknowledge that there is some support for the respondent’s position that an expired limitation period in the other jurisdiction would make Ontario the more juridically advantageous forum for him as plaintiff, and that a juridical advantage to a plaintiff in Ontario weighs against staying the proceedings: see Garcia v. Tahoe Resources Inc., 2017 BCCA 39, 407 D.L.R. (4th) 651, at para. 91, leave to appeal refused, [2017] S.C.C.A. No. 94.

[57] However, some courts have ruled that the plaintiff’s failure to bring a claim within the time limit “militates against attaching any weight to the juridical advantage factor because, in some circumstances, a plaintiff could successfully oppose a defendant’s forum non conveniens application in one jurisdiction by simply allowing the limitation period to expire in the other jurisdiction”: Tahoe, at para. 91. It seems, then, that “the weight attached to the juridical advantage factor when considering the expiration of a limitation period in another jurisdiction is a case-specific inquiry that turns on the facts”: Tahoe, at para. 92.

[58] In this case, the motion judge held that the limitation period weighed in the respondent’s favour. There was no case-specific inquiry in reaching that conclusion. As noted, this case involves the potential expiry of a limitation period; the respondent’s evidence on this point does not lead to this conclusion with any certainty. The motion judge did not resolve an inconsistency between the facts of the case and the facts relied upon by the respondent’s expert opinion. The opinion regarding the one-year time limit concerned parties who “change their mind” over property division. The respondent’s evidence, however, was that he was misled in terms of the Divorce Agreement and was not aware of the existence of a Supplementary Agreement. He did not argue that he had changed his mind about the agreements. On that evidence, it becomes less clear that the respondent is, in fact, out of time in China.

[59] Furthermore, the respondent testified during questioning that he has never thought of going to court in China to deal with property division. This fact does not help the respondent claim the juridical advantage of an Ontario action: see Hurst v. Société Nationale de L'Amiante, 2008 ONCA 573, 93 O.R. (3d) 338, at paras. 51-52.

[60] In summary, the motion judge erred in principle in her analysis under forum non conveniens. In my view, the appellant has demonstrated that the balance tips heavily in favour of China as the “clearly more appropriate” forum for resolving the parties’ property issues and the motion judge should have declined to exercise jurisdiction. Accordingly, I would allow this ground of appeal.

(3) Should this court strike out all or part of the respondent’s Application, leaving only the trust claims concerning the Bevdale Property to proceed in Ontario?

[61] The appellant also argued that this court should consider severing the respondent’s trust claim over the Bevdale Property, allowing it to proceed in Ontario while striking the remainder of the claims.

[62] As I have already decided that China is the more appropriate forum to hear the claims arising from the parties’ marital breakdown, this issue is now moot.

[63] However, I do make the following observations. Severing the specific claims in relation to the Bevdale Property appears to be contrary to some of the factors identified by the Supreme Court of Canada as relevant to the forum non conveniens analysis in Van Breda, at paras. 105, 110, including a desire to avoid a multiplicity of legal proceedings and avoiding conflicting decisions in different courts.

[64] Severance of the trust claim is also potentially problematic because this court has made clear that claims of unjust enrichment are rarely appropriate to address financial issues after the breakdown of a marriage and a court would, in all likelihood, find that equalization of all net family properties under the legislation would provide a full remedy to any unfairness that would otherwise arise from different contributions to family assets: McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, at para. 66; Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, at para. 64.

VII. Conclusion

[65] For these reasons, I would allow the appeal and stay the respondent’s Application.

[66] I would award the appellant her costs of the appeal in the agreed amount of $13,000 inclusive of disbursements and applicable taxes.

Released: September 29, 2021 “K.F.” “S. Coroza J.A.” “I agree. K. Feldman J.A.” “I agree. David M. Paciocco J.A.”

[1] I note that in a recent Superior Court decision, Kore Meals LLC v. Freshii Development LLC, 2021 ONSC 2896, 156 O.R. (3d) 311, E.M. Morgan J. observed that the world of videoconference hearings may have implications for the relevance of forum non conveniens. I leave that issue for another day. In the present case, where the competing forums involve different languages and different time zones, the choice of forum remains relevant.

[2] The evidence before the motion judge was that CAD$1 equals approximately 5.07 RMB.