COURT OF APPEAL FOR ONTARIO DATE: 20230223 DOCKET: M53870 (COA-22-CV-0081)

Brown, Sossin and Copeland JJ.A.

BETWEEN

Feng Wang Applicant (Appellant/Responding Party)

and

Min Li Respondent (Respondent/Moving Party)

Min Li, acting in person Feng Wang, acting in person

Heard: February 16, 2023

On appeal from the endorsement of Justice Melanie Kraft of the Superior Court of Justice, dated August 11, 2022, with reasons reported at 2022 ONSC 4680.

REASONS FOR DECISION

OVERVIEW

[1] The moving party, Min Li, seeks to quash the appeal brought by Feng Wang, the responding party. The appeal is from an endorsement of Kraft J. granting an Order in favour of Ms. Li.

[2] As part of the ongoing family law litigation, Mr. Wang made a number of allegations against Ms. Li, including that she committed immigration fraud, theft of family property, and contempt of court. He also alleged that Ms. Li’s lawyer, Mr. Dominitz, committed contempt of court. Among other claims, Mr. Wang had asked that Ms. Li be imprisoned for 23 months and pay a $10,000 fine to him and to the court, and that her lawyer be imprisoned for 11 months. Ms. Li sought an order dismissing Mr. Wang’s motion on the grounds that his allegations were baseless, vindictive, and vexatious.

[3] The motion judge found that none of Mr. Wang’s allegations were proven by the evidence. She provided a thorough review of the allegations as compared to the evidence on the record. She expressed concern over the scale, scope, and complexity of the allegations against Ms. Li, and found that they were vindictive, unfounded, and made without regard for the damage caused to Ms. Li. She also noted that Mr. Wang admitted to reporting Ms. Li to administrative bodies and the police in Canada, and that he had caused a number of investigations to occur in China against her as a result of these allegations.

[4] The motion judge also stated that the relief Mr. Wang sought was not within the jurisdiction of the court. She advised that if he continued bringing such allegations against Ms. Li, Ms. Li could bring a motion asking the court to declare him a vexatious litigant. Finally, the motion judge noted that Ms. Li was not in breach of any court order, so all the contempt of court relief sought was dismissed, and that Mr. Wang had not raised spousal support in his application, nor had he established a prima facie case for spousal support. The only portion of the motion she granted was Mr. Wang’s request that the preservation order requiring Ms. Li not to encumber or sell the matrimonial home stay in force pending the next settlement conference, but she dismissed the request to make a preservation order in connection with the investment property.

[5] In a subsequent endorsement, dated September 19, 2022, the motion judge ordered that Mr. Wang pay Ms. Li’s costs on a full indemnity scale, in the sum of $24,353.24.

[6] Mr. Wang brought an appeal of the motion judge’s endorsement. He initially brought a motion for leave to appeal to the Divisional Court. The Divisional Court then issued the following directions on September 12, 2022, dismissing the motion for leave to appeal pursuant to r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:

The motion for leave to appeal is dismissed pursuant to R.2.1 as frivolous, vexatious and an abuse of process for the following reasons. As previously explained by this court in its endorsement directing the R.2.1 notice, the focus of the moving party's motion for leave to appeal is the dismissal of the contempt allegations below. This aspect of the decision below is a final order, and jurisdiction over the appeal lies in the Court of Appeal. In his response to the R.2.1 notice, the moving party accepts this characterization of the appeal and does not provide a description of any interlocutory issues he wishes to appeal in this court. I decline to transfer this matter to the Court of Appeal, because it appears to lack merit. Use of the contempt power is discretionary, to be used sparingly, with a view to encouraging current and future compliance with court orders. The decision below is based upon factual findings and the application of judgment to the circumstances of the case. The moving party has not identified any legal error on the face of the decision below, or any basis upon which an appellate court would interfere with the exercise of discretion. These findings do not preclude the moving party from seeking to initiate appeal proceedings in the Court of Appeal which, at this stage, would likely require him to move for an extension of time in which to bring an appeal.

ANALYSIS

[7] Mr. Wang filed an appeal with this court. In his Notice of Appeal, dated August 31, 2022, Mr. Wang claims the motion judge erred and seeks a range of remedies against Ms. Li.

[8] Ms. Li argues that Mr. Wang’s appeal be quashed because it lacks merit and because the motivation for pursuing his appeal is simply to delay the family proceeding and his obligation to pay the substantial cost order made by the motion judge. Ms. Li argues this appeal is a continuation of Mr. Wang’s frivolous and vexatious conduct motivated by his desire to destroy Ms. Li financially and emotionally, and constitutes an abuse of process.

[9] In Bell v. Fishka, 2022 ONCA 683, at para. 13, this court held:

To permit the appellant to continue with her appeals would allow her to ignore the consequences of her breaches of numerous court orders, endlessly re-litigate issues, and continue to abuse the process of the court. It would also be grossly unfair to the respondent and their child, both of whom are entitled to finality. As this court stated in Simpson, at para. 41: “Everyone is entitled to their day in court but once they have had that day, they cannot be permitted to subject other parties to the cost of further proceedings attempting to re-litigate issues that have already been decided”.

[10] That is the case here. See also Van Delst v. Hronowsky, 2022 ONCA 881, at para. 20.

[11] A similar conclusion is appropriate in this case. The motion judge reviewed Mr. Fang’s allegations in detail and with careful regard to the record. She concluded, “None of the wife’s conduct complained of by the husband is a breach of any of these court orders. As such, I find that there is no jurisdiction for this court to make the contempt orders sought by the husband given that the first element of the test for contempt of a court order is that there is a court order to be enforced.”

[12] As the Divisional Court concluded in its decision on the motion for leave to appeal, Mr. Wang’s Notice of Appeal does not raise potential legal errors, but rather seeks to re-litigate the motion judge’s findings of fact.

[13] Permitting Mr. Wang to pursue his appeal in this court would constitute an abuse of process and the motion to quash the appeal is granted on that basis.

[14] Ms. Li also argued that this court has no jurisdiction over the appeal, as it is an appeal from an interlocutory rather than final order. Appeals from interlocutory orders are to the Divisional Court, with leave, pursuant to s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. We note that the Divisional Court, in declining to grant leave to appeal in this case on the basis that it was an abuse of process, treated an appeal from a decision on a motion for contempt as final.

[15] In Chirico v. Szalas, 2016 ONCA 586, 132 O.R. (3d) 738, at paras. 36-49, this court addressed the question of whether orders dealing with allegations of contempt are final or interlocutory. In Chirico, Epstein J.A. confirmed that orders dismissing a contempt motion are final only where there are no ongoing proceedings and the party seeking the order has no other means of obtaining relief arising out of the failure to abide by the terms of the order: see also Overtveld v. Overtveld, 2022 ONCA 269, at para. 7.

[16] In this case, the underlying proceedings are ongoing. As such, the motion judge’s contempt order does not fall into the category of cases where a motion decision dismissing allegations of contempt may be treated as a final order. Indeed, part of the relief ordered by the motion judge in her endorsement was the appointment of a case management judge to deal with various pre-trial matters which remain pending in this litigation.

[17] Consequently, this court has no jurisdiction over Mr. Wang’s appeal.

Disposition

[18] For these reasons, we grant the motion to quash the appeal. The appeal is quashed.

[19] Ms. Li is entitled to costs. Mr. Wang shall pay to Ms. Li costs in the amount of $10,000 inclusive of all taxes and disbursements.

“David Brown J.A.”

“L. Sossin J.A.”

“J. Copeland J.A.”