Court of Appeal for Ontario

Date: 2024-11-08 Docket: COA-24-CV-0476

Simmons, Coroza and Sossin JJ.A.

BETWEEN

Feng Wang Appellant

and

Min Li Respondent

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

Heard: October 11, 2024

On appeal from the judgment of Justice Paul B. Schabas of the Superior Court of Justice, dated April 22, 2024, with reasons reported at 2024 ONSC 2352.

REASONS FOR DECISION

[1] Following a seven-day trial at which the parties were self-represented and testified using an interpreter, the trial judge dismissed the appellant Feng Wang’s family law application and granted certain relief requested by the respondent, Min Li.

[2] Among other things, at trial, the appellant claimed an equalization of net family properties, a declaration that the respondent held title to the matrimonial home in trust for both parties and spousal support. [1]

[3] The trial judge granted the respondent’s requests for exclusive possession of the matrimonial home and an unequal division of net family properties, with the result that no equalization payment was owing from the respondent to the appellant. The trial judge also ordered that the appellant pay the respondent $75,000 for physical and psychological abuse, that he return certain personal property to her and that a restraining order previously issued by the court remain in effect.

[4] The appellant raises multiple issues on appeal and also seeks to introduce fresh evidence on appeal.

[5] For the reasons that follow, we decline to admit the fresh evidence and dismiss the appeal.

Background

[6] The parties met online in 2012. Both had been married previously. The respondent was living in China with her daughter from a previous relationship when the parties met. She had a successful architectural and design business and owned several properties, some of which produced income for her. In early 2013, the appellant travelled to China to meet the respondent, who was in the process of selling her business. The parties agreed to marry and that the respondent and her daughter would move to Toronto to live with the appellant.

[7] The parties were married in May 2013. In the fall of that year, the respondent purchased the matrimonial home, which was registered in her name alone, for $2,050,000. She paid a deposit of $800,000 and obtained a mortgage for $1,250,000.

[8] The parties separated on September 13, 2017, when the respondent left the matrimonial home and began living in a shelter and hotels.

[9] On October 7, 2017, the appellant was charged with various offences including assault, pointing a firearm and uttering threats. He was released on a recognizance that required that he have no contact with the respondent. In November 2017, the appellant was charged with breaching the recognizance.

[10] The respondent returned to the matrimonial home after the breach charge was laid and was still living there at the time of trial.

[11] The charges against the appellant were withdrawn in 2018 after he entered into a peace bond stipulating that he would have no contact with the respondent for 12 months. The respondent obtained a restraining order against the appellant in June 2021. The restraining order was renewed in July 2021 and remained in effect at the time of the trial.

The trial judge’s reasons

[12] The trial judge preferred the respondent’s evidence where it differed from that of the appellant. He found the appellant evasive and selective in his memory. Further, he concluded that the appellant’s evidence was often inconsistent with contemporaneous records and that the appellant gave evidence that was demonstrably false. On the other hand, the trial judge found the respondent’s evidence straightforward and responsive and supported on all material issues by contemporaneous records.

[13] Major issues at the trial included the valuation of assets and what, if any, financial contributions the parties made to assets and living expenses.

(i) Ownership of the matrimonial home

[14] The trial judge found that the respondent sold her architecture and design business located in China in January 2013 for RMB 5,000,000 and that, at the time of the sale, the purchaser, Wei Min Zhang, also repaid the respondent RMB 3,800,000 that he owed to her on account of a loan. These funds, totaling RMB 8,800,000 (approximately $1,200,000 CDN), were initially deposited into two accounts opened on the appellant’s behalf in China. The funds were eventually transferred to a joint account in Canada in the name of both parties in the summer of 2013 through a series of transactions designed to avoid limits on currency leaving China. The respondent subsequently used some of these funds to purchase the matrimonial home. The trial judge found that, throughout cohabitation, the respondent paid all property taxes and mortgage payments in relation to the matrimonial home. The trial judge rejected the appellant’s claims that he had contributed any of the funds brought from China. Given these findings, the trial judge concluded there was no basis to find that the respondent held any portion of the title to the matrimonial home in trust for the appellant.

(ii) Equalization of net family properties

[15] Concerning equalization, the trial judge found that apart from the matrimonial home, the respondent’s assets had declined in value since the date of marriage.

[16] The trial judge accepted the evidence of the respondent’s appraiser that the respondent’s Chinese properties likely declined in value during cohabitation and found the evidence of the appellant’s appraisers about rental income hypothetical and unsupported by any evidence. As for the respondent’s Canadian holdings, the trial judge found their value had declined during cohabitation and that the respondent’s debt level had increased from approximately $950,000 to $2,592,000. Neither party was employed during cohabitation. The couple lived instead on the respondent’s savings and income she made from a Canadian investment property she owned between 2013 and 2015 and possibly her Chinese properties.

[17] Taking account of the appraisal evidence presented at trial, the trial judge concluded that the net equity in the matrimonial home as of the date of separation was $1,848,252.47, potentially requiring an equalization payment from the respondent to the appellant of $924,126.23. However, based on his assessment of the factors set out in s. 5(6) of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”), he concluded that requiring such a payment would be unconscionable. In particular, he noted the following points:

• the period of cohabitation was less than five years (s. 5(6)(e));
• it would be an “understatement” to say that the respondent paid a disproportionately larger amount to support the family during cohabitation, including significantly increasing her debt load (s. 5(6)(f));
• the appellant had signed a Prenuptial Declaration prior to the parties’ marriage confirming the respondent would retain “sole ownership … of assets under her name” (s. 5(6)(g));
• it was apparent that the appellant had either provided false financial disclosure or was advancing false claims about his assets at trial (s. 5(6)(h)); and
• during cohabitation, the appellant demanded money from the respondent, sought control over her assets and made threats to her if she did not agree (s. 5(6)(h)).

[18] In the result, the trial judge concluded that an equalization payment of any kind to the appellant would be unconscionable, and he declined to order one.

(iii) Spousal support

[19] Although the trial judge noted that the appellant failed to formally amend his application to claim spousal support, he still considered the appellant’s request.

[20] Neither party filed income information for the years 2017 to 2019. The trial judge accepted that neither party worked during that period.

[21] According to the appellant, after the separation, he had been studying English and living on funds received from Ontario Works. Between 2020 and 2022, his social assistance income was approximately $733 per month or $8,900 per year. Although the appellant made claims about working as a fund manager both before and during marriage, and post separation, the trial judge did not accept that evidence. The trial judge noted that the appellant agreed in cross-examination that he had not looked for a job since the marriage. The appellant claimed that he had borrowed over $175,000 from relatives and friends for legal expenses, including $34,000 he had recently paid to the respondent in costs.

[22] Post separation, the respondent initially enrolled in a Bachelor of Community Health program at Seneca College, but she quickly withdrew from that program as a result of the stress she was experiencing from the breakdown of the marriage. She earned consulting income of about $2,800 in 2020 and $27,000 in 2022 but claimed she had no income in 2021 or 2023. Shortly before trial, she had become employed as a spa attendant, earning about $1,700 bi-weekly.

[23] The trial judge concluded that the appellant was not entitled to compensatory support as there was no evidence that he made any contributions to the marriage that would justify such an award. While the respondent acknowledged that the appellant gave up a job at a factory following the marriage, the appellant admitted he took no steps to seek other employment either following the marriage or post separation.

[24] As for non-compensatory support, the trial judge noted that the marriage was relatively short and was a second marriage for both parties in middle age. The respondent possessed significant assets but was not as well off at the time of the separation as she had been at the time of the marriage. She had not been steadily employed until recently. Taking account of the short duration of the marriage, the age of the parties, the appellant’s failure to take steps to promote his own self sufficiency and his delay in making a claim, the trial judge concluded he was not entitled to support.

(iv) Damages for physical and psychological abuse

[25] The trial judge accepted the respondent’s evidence of physical and psychological abuse by the appellant both during cohabitation and following the separation. Such abuse included pointing a gun at the respondent’s head, driving erratically with the respondent in the vehicle and threats to harm her and her daughter if she did not pay his expenses or give him money. A psychotherapist and a psychiatrist testified about the stress, depression and emotional trauma the respondent continues to suffer because of both the ongoing legal proceedings and the abuse the respondent suffered during the marriage.

[26] The trial judge stated that the respondent “testified to terrifying incidents and controlling behaviour during a marriage that lasted four years and led to [the respondent] fleeing the home fearing for her safety and the safety of her daughter”. Holding that the harmful effects of the appellant’s conduct are “long-lasting and must be condemned”, he awarded the respondent damages in the amount of $75,000.

Discussion

[27] In his appeal factum, the appellant lists 12 mistakes he alleges the trial judge made in arriving at his decision. The allegations are repetitive and somewhat confusing. [2] We have attempted to consolidate them into six main issues, which we will address in turn. The appellant also seeks to introduce fresh evidence on appeal.

(1) Mistakes in findings relating to the sale of the respondent’s business, the purchase of the matrimonial home and payment of expenses during cohabitation

[28] Mistakes one to six and eight alleged by the appellant all relate to the trial judge’s findings that, in January 2013, the respondent received RMB 8,800,000 for the sale of her Chinese architecture and design business and repayment of a loan, and that she subsequently used a portion of these funds to purchase the matrimonial home and pay all the parties’ expenses during cohabitation.

[29] Among other things, the appellant argues that:

• the trial judge erred in permitting the respondent to file a supplementary trial record on March 25, 2024 (the sixth day of trial), in contravention of an October 2023 trial scheduling endorsement, which required that the respondent file all documents on which she intended to rely 40 days in advance of the trial;
• he (the appellant) had never seen the documents included in the supplementary trial record prior to March 25, 2024;
• the supplementary trial record included documents that were either not translated, not properly translated and/or forged;
• the trial judge ignored the appellant’s objections to the improper documents and abused his discretion by admitting and relying on the improper documents and the respondent’s testimony;
• the sale price for the respondent’s business was actually RMB 3,000,000 and not RMB 5,000,000;
• the respondent’s forensic accounting expert, Matthew Krofchick, admitted that he did not speak to Zhang and produced no convincing evidence that Zhang and his brother transferred money to the appellant’s bank account;
• Mr. Krofchick improperly relied only on a forged Payment & Receipts confirmation document dated January 17, 2023, allegedly signed by the respondent and Zhang, forged tax documents, and information from the respondent for his conclusion that the sale price of the respondent’s business was RMB 5,000,000 – his report does not include the Payment & Receipts confirmation document, and the appellant saw it for the first time on March 25, 2024; and
• after permitting the respondent to file new documents on March 25, 2024, the trial judge erred in failing to permit him to call evidence in response, in particular expert evidence to demonstrate that Zhang’s signature on the Payment & Receipts document was forged.

[30] We do not accept these submissions.

[31] In her factum, the respondent asserts that her supplementary trial record was simply a compilation of relevant documents she planned to refer to, gathered from six volumes of material she filed in advance of trial. Other than a transcript of his cross-examination of Mr. Krofchick, the appellant did not file a transcript of the trial proceedings. A transcript would have demonstrated whether the appellant objected to the supplementary trial record or any of the documents contained within it being filed and/or translated at trial and would also have included any ruling(s) the trial judge may have made. Absent a transcript, we have no basis for concluding that the trial judge made any error in permitting the respondent to file her supplementary trial record and rely on the documents contained within it. To the extent that the trial judge permitted some of the documents to be translated at trial, even leaving aside the absence of proof of any objection, the appellant has not pointed to any Ontario authority that would limit a trial judge’s discretion to permit documents in a foreign language from being translated at trial especially where both parties are testifying through an interpreter. [3]

[32] Further, we observe that Mr. Krofchick referred to the January 17, 2013, Payment & Receipts document in his report dated June 24, 2022, and also reproduced a verbatim translation of it in his report. According to the respondent, Mr. Krofchick’s report was delivered prior to a long motion heard in August 2022.

[33] It is clear from his reasons that the trial judge was satisfied that the appellant at least had notice of the January 17, 2013, Payment & Receipts document and had an opportunity to address any issues about its authenticity in advance of trial. In footnote 2 of his reasons, the trial judge stated that he refused the appellant’s request to re-open the trial to adduce evidence concerning the authenticity of Zhang’s signature because issues relating to the validity of Zhang’s signature should have been raised in the appellant’s own evidence. Without a transcript, the appellant cannot demonstrate any error in the trial judge’s conclusion in this respect, nor any basis for interfering with his decision not to re-open the trial to permit the appellant to adduce additional evidence.

[34] Further, and in any event, at para. 29 of his reasons, the trial judge indicated that even if there were issues concerning the validity of Zhang’s signature, that did “little to undermine [the respondent’s] evidence that funds which were deposited to [the appellant’s] account … came from [the respondent]”. For reasons that we will elaborate on, without a transcript of the trial, the appellant has no basis to challenge this conclusion.

[35] In his factum and submissions, the appellant asserts that, as opposed to the January 2013 sale found by the trial judge, the respondent sold her business to two individuals, one of whom was Zhang, in February 2013 for RMB 3,000,000. The appellant identified no evidence to support these assertions, and we can see none.

[36] Further, in our view, the appellant has not identified any basis for challenging the trial judge’s acceptance of Mr. Krofchick’s evidence. Although we do not have a transcript of Mr. Krofchick’s evidence in-chief, we have reviewed his report, in which he explains his conclusions that the respondent received funds totaling RMB 8,800,000 from Zhang and his brother in January 2013 and provided the funds for the purchase of the matrimonial home. Although Mr. Krofchick acknowledged in cross-examination that he did not speak to Zhang, in his report, he described the documentary records, including screenshots purporting to be bank statements of accounts belonging to Zhang and his brother, on which he relied to reach his conclusions.

[37] In addition to evidence from the respondent and Mr. Krofchick, the trial judge’s finding that the respondent was the source of the RMB 8,800,000 the parties arranged to have transferred from China to Canada in 2013 was premised on three main points.

[38] First, the trial judge found that the appellant’s assertions that he provided the funds were false and unsupported.

[39] Second, the trial judge found that unredacted copies of the appellant’s bank statements, which the trial judge ordered the appellant to produce at trial, revealed that the sources of deposits into his accounts in January 2013 totaling RMB 8,800,000 were from accounts Mr. Krofchick had identified as belonging to Zhang and his brother: Bank of China, deposits of 4,170,000 RMB came from accounts belonging to Zhang and his brother, Xiaomin Zhang; Industrial and Commercial Bank of China, a deposit of 4,630,000 RMB came from Xiaomin Zhang’s account. The trial judge also referred to the January 17, 2013, Payment & Receipts document.

[40] Third, the trial judge observed that, at trial, the appellant did not challenge the evidence concerning the sources of the RMB 8,800,000 deposits but rather suggested, in cross-examination that the sale price of the company was RMB 3,000,000 and not RMB 5,000,000. However, the trial judge noted the respondent had explained that the paid-up capital of her company was 3,000,000 RMB. The respondent had also referred to an untranslated letter dated December 27, 2021, to Chinese tax authorities, which was translated at trial, which explained that she had been paid RMB 5,000,000 for the sale of the company and 3,800,000 on account of a loan repayment as well as a document recording a 400,000 RMB tax payment, being 20 percent of her 2,000,000 RMB profit on the sale.

[41] The appellant has not advanced any arguments to challenge the trial judge’s findings that his claims that he provided RMB 8,800,000 were false and unsupported. While the appellant challenges the authenticity of Zhang’s signature on the January 17, 2013, Payment & Receipts document, as was the case at trial, he has not identified any evidence to challenge the trial judge’s findings that Zhang and Zhang’s brother were the source of the deposits of RMB 8,800,000 into his China accounts. In our view, standing alone, this is sufficient to dispose of the appellant’s arguments concerning the source of the RMB 8,800,000. However, we observe as well that the appellant’s claims about the tax documents relied on by the respondent are unsubstantiated.

(2) Findings relating to registration of the matrimonial home in the respondent’s name and the appellant’s pre-marital property

[42] The seventh mistake alleged by the appellant is that the trial judge “deliberately concealed” favourable evidence he gave at trial about why he permitted the matrimonial home to be registered in the respondent’s name and about the property he brought into the marriage.

[43] We reject these submissions. Again, we observe that the appellant failed to file a transcript of the proceedings. He cannot therefore support his claims that the trial judge overlooked evidence favourable to him.

(3) Failure to admit evidence favourable to the appellant about the domestic abuse allegations

[44] The ninth mistake alleged by the appellant is that the trial judge erred in accepting the respondent’s allegations of domestic violence given that the charges against him were dropped and the respondent failed to call any witnesses or recordings to support her allegations. The appellant also asserts that the trial judge erred in failing to admit an affidavit from his daughter in which she stated she did not observe any domestic violence while living with the couple. Further, he relies on a submission that the couple’s family doctor “refused to testify in court to support ‘the domestic violence case’”.

[45] We do not accept these submissions. The trial judge noted that the charges against the appellant were withdrawn after he entered into a peace bond. In any event, even where criminal charges are dismissed after a trial, the result in the criminal proceedings is not binding in civil proceedings in which the standard of proof is on a balance of probabilities. See, for example, Canada v. Doiron, 2012 FCA 71, 432 N.R. 80 at para. 47. As the appellant apparently did not make his daughter available to testify at the trial, the trial judge made no error in rejecting her affidavit. Because the appellant did not file a transcript of the trial proceedings, he cannot substantiate his claims about the family doctor. Based on our review of the trial judge’s reasons, it appears that there was ample evidence before him to support his findings.

(4) Improper reliance on the appellant’s Prenuptial Declaration

[46] The tenth mistake asserted by the appellant is that the trial judge erred in failing to find his Prenuptial Declaration illegal and of no force and effect.

[47] We reject this submission. The trial judge rejected the appellant’s evidence that he was drunk when he signed the Prenuptial Declaration and his efforts to repudiate it for reasons that he explained. The appellant has not identified any errors in the trial judge’s reasons. The trial judge recognized that the Prenuptial Declaration is not an enforceable domestic contract under s. 55(1) of the FLA. Nonetheless, it remained open to him to consider the Prenuptial Declaration when addressing whether an equalization of net family properties would be unconscionable: s. 5(6)(g) of the FLA.

(5) Order for the return of personal property

[48] The 11th mistake alleged by the appellant is that the trial judge erred in accepting the respondent’s evidence concerning the personal property. Once again, as the appellant failed to file a transcript of the trial proceeding, he cannot substantiate his allegations.

(6) General allegations of impropriety

[49] The 12th mistake alleged by the appellant involves allegations of general misconduct and impropriety on the part of the respondent as well as bias on the part of the trial judge. Once again, without a transcript of the trial proceedings, the appellant cannot substantiate these allegations.

[50] Before leaving this subject, we also note that in oral submissions, the appellant made general allegations of bias, prejudice and hostility because the trial judge was Jewish. We observe that the appellant made similar offensive remarks at paras. 37 and 40-42 of his written opening statement at trial but apparently withdrew them. At footnote 1 of his reasons, the trial judge states that he told the appellant that such statements had no place in the trial. Without a transcript, the appellant has no evidence to support an allegation of bias, and his claim in that respect is without merit. More importantly, and leaving aside the absence of a transcript, the appellant’s submissions reflect prejudice antithetical to Canadian values. The submissions are reprehensible and have no place in a Canadian courtroom.

(7) The Fresh Evidence application

[51] The appellant seeks to adduce fresh evidence on appeal. The proposed fresh evidence appears to consist of:

i. a handwriting examination report relating to Zhang’s signature on the January 17, 2013, Payment & Receipts document that the appellant sought unsuccessfully to introduce at trial; ii. the appellant’s daughter’s affidavit, which was included as an attachment to his opening statement and which the trial judge declined to admit at trial; and iii. four documents respectively dated May 2013, October 20, 2017, November 2017, and November 19, 2018.

[52] The test for admitting fresh evidence is well known. It requires that: i) the evidence could not, by the exercise of due diligence, have been obtained for the trial; ii) the evidence is relevant in that it bears upon a decisive or potentially decisive issue; iii) the evidence is credible in the sense that it is reasonably capable of belief; and iv) the evidence is such that, if believed, it could have affected the result at trial. The overarching consideration is whether the evidence should be admitted in the interests of justice. See: Palmer v. The Queen, [1980] 1 S.C.R. 759; Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1.

[53] The trial judge declined to admit items i) and ii) at trial. As we see no basis on which to interfere with his decision on the admission of those documents, they are not admissible as fresh evidence.

[54] The appellant did not file an affidavit to explain why the four documents dated at least five years prior to the trial could not have been adduced at trial. In any event, their relevance is questionable, and we see no basis for concluding they could have affected the result at trial.

Disposition

[55] Based on the foregoing reasons, the appeal is dismissed.

[56] The respondent may deliver written costs submissions not to exceed five pages listing any disbursements she incurred in relation to the appeal and fresh evidence motion (including any amounts paid for legal fees for advice relating to the appeal or fresh evidence motion) and itemizing any income lost as a result of attending court for the purposes of the appeal and fresh evidence motion (including dates and relevant pay rates). The respondent shall serve and file her written costs submissions within 14 days of the date of the release of this decision. The appellant may serve and file written submissions not to exceed five pages in response to the respondent’s written costs submissions within 14 days following receipt of same.

[57] The appellant’s approval of the formal order is dispensed with.

“Janet Simmons J.A.” “S. Coroza J.A.” “L. Sossin J.A.”

[1] The appellant’s claim for a divorce had been severed from his application prior to trial. The appellant did not claim spousal support in his original application. In a trial scheduling endorsement dated October 18, 2023, he was granted leave to amend his application to claim spousal support within 30 days. He failed to do so prior to the trial, which commenced on March 11, 2024. Nonetheless, because the appellant was self-represented and the parties had made some disclosure regarding the issue, the trial judge addressed the appellant’s claim for spousal support as advanced at trial.

[2] For example, the appellant refers to the trial judge “concealing” evidence favourable to the appellant and rule violations by the respondent, as well as “reversing” or “distorting” Chinese government records. His references to statutory provisions and case law are also at times confusing. For example, he refers to the Canada Courts Act 125(2), which we have determined is a reference to the Courts of Justice Act, R.S.O. 1990, c. C.43.

[3] Section 125(2)(b) of the Courts of Justice Act states: 125(2) Except as otherwise provided with respect to the use of the French language, (b) documents filed in courts shall be in the English language or shall be accompanied by a translation of the document into English language certified by affidavit of the translator.