Court File and Parties

Court File No.: D71250/14 Date: September 16, 2014

Ontario Court of Justice

Re: Xue Min Zhong – Applicant

And: Zhong Ling Yang – Respondent

Before: Justice Roselyn Zisman

Counsel:

• Glenda Perry - for the Applicant
• Heng (Pandora) Du – for the Respondent

Heard On: September 15, 2014

Reasons for Decision on Motion

Introduction

[1] The Applicant mother brings a motion, pursuant to Section 27 of the Children's Law Reform Act, lifting the automatic stay imposed on her claims for custody and incidental orders related to custody and access. The mother seeks to have all issues, including child support, adjudicated in this court.

[2] The Respondent father is opposed to the motion and wishes all matters to proceed in the context of a divorce proceeding he has begun in the Superior Court of Justice wherein he has claimed joint custody, access and incidental orders related to custody and access.

Brief Background

[3] The parties were married in January or February 1994. There are two children of the marriage: Xinge Yang born February 3, 2000 and Shang Hua Yang born August 20, 2002. The parties and the children all moved to Canada on July 31, 2013.

[4] The parties separated on January 19, 2014 following an assault by the father on the mother. The father was charged with assault with a weapon and subsequently charged with a breach of the terms of his release.

[5] The father has not seen the children since January 19th, 2014.

[6] The mother and children were initially placed in a shelter in Halton region and were then relocated to a shelter in Toronto. The mother does not speak or understand English. The mother and the children were transferred to Toronto to better access services in Mandarin and with the Chinese community.

[7] On July 18, 2014 the father pleaded guilty to the charges of assault and fail to comply with his recognizance. He received a conditional discharge and was placed on probation for two years. The relevant terms require the father to complete counselling for anger management and domestic violence. The father is not to have any contact with the mother, directly or indirectly, except pursuant to a family court order, separation agreement, in the presence of counsel or a police officer or for the purposes of access through a mutually agreed third party. The father is also not to be any place where the mother may be.

Court Proceedings

[8] The mother commenced this proceeding on July 15, 2014 to deal with the issues of custody and access and related orders with respect to travel and passports, child support, a restraining order and non-removal order against the father.

[9] The father was served on July 22, 2014 with a first appearance date of September 10, 2014.

[10] On August 2nd, 2014 Glenda Perry, mother's counsel, received a Notice of Change in Representation from Pandora Du indicating she was counsel of record for the father. A covering letter was also sent indicating that the father intended to bring a divorce application in Superior Court of Justice and requesting that this proceeding be stayed.

[11] On August 3rd, 2014 mother's counsel responded and indicated that she was not prepared to discontinue the application and outlined her reasons for continuing the application in this court. Mother's counsel also made it clear that she was not authorized to accept service of the divorce application on behalf of her client.

[12] On August 6th, 2014 both counsel agreed to vacating the first appearance scheduled for September 10th and scheduling a case conference for September 15th, 2014. Both counsel agreed that the jurisdictional issue would be dealt with at this attendance. There was further correspondence between counsel regarding the jurisdictional issue. Mother's counsel also requested the father pay child support on a voluntary basis.

[13] On August 22nd, 2014 father's counsel sent mother's counsel a divorce application continuing record with mother's counsel's name listed as counsel of record. A Notice of Case Conference was also served with mother's counsel's name returnable on October 17th, 2014. Mother's counsel again corresponded with father's counsel making it clear that she was not accepting service of the divorce application and would proceed with a motion on September 15th, 2014 to lift the automatic stay pursuant to section 27 of the Children's Law Reform Act. Mother's counsel demanded proof that her name had been removed as counsel for the mother on the divorce application. It is not clear if this was done formally as father's counsel has only provided a copy of the same divorce application with a line through mother's counsel's name.

[14] The mother was only served with the divorce application and other supporting documents on September 15th before this motion was heard.

[15] The father has not filed any responding materials in this proceeding but his divorce application, Form 35.1 affidavit and financial statement were produced. The father also filed an affidavit in response to the motion and supporting affidavit of the mother.

[16] In response to my question with respect to child support, I was advised that the father brought some post-dated cheques with him to court for $452.00 based on his income of $31,000.

The Law

[17] Section 27 of the Children's Law Reform Act provides that where an action for divorce is commenced, any application under the Children's Law Reform Act for custody of or access to a child that has not been determined is stayed except by leave of the court.

[18] There is no guidance in section 27 as to when or why a court should grant leave to continue a proceeding under the Children's Law Reform Act after a divorce has been commenced. Some guidance is provided in section 138 of the Courts of Justice Act which states that "as far as possible, multiplicity of legal proceedings should be avoided."

[19] Justice D. Kent Kirkland stated in Leper v. Leper, the following principle, that has been followed in many other cases over the years, as follows:

The dominant principle in dealing with this issue appears to be the wisdom of dealing with similar matters simultaneously in one court. Clearly, the "staying" provision is designed to prevent inconsistent results among courts, redundant litigation, constitutional entanglements and delay in finality.

[20] The case law also establishes that in addition to the dominant principle, the Ontario Court of Justice should consider the following factors when deciding whether or not to lift an automatic stay:

1. Bad faith: Was the divorce application issued in bad faith? Is there some maneuvering to obtain a tactical or strategic advantage? Is there an issue raised that can only be dealt with by the Superior Court of Justice? Are there serious or bona fide issues raised or is there no real chance of success?

2. Prejudice: Will a party or child be prejudiced by the probable delay in transferring the proceedings to the Superior Court of Justice? Is there a disproportionate financial prejudice to one of the parties if the stay is not lifted?

3. Waste of court resources: Will the failure to lift the stay result in a waste of court resources contrary to Family Law Rules 2 that is, the duty to deal with cases justly and in a manner that saves expense and time.

Application of the Law to the Facts of This Case

1. Bad Faith

[21] It is clear in this case, that except for the granting of a divorce, all of the issues can be dealt with in this court. Unlike the case of Husein v. Chatoor that is relied on by father's counsel, there is no claim of an equalization payment or a claim for exclusive possession of the matrimonial home.

[22] The father commenced his divorce application after being served with the mother's application and despite being aware a court date had already been scheduled in the Ontario Court of Justice.

[23] The father issued the divorce application despite the fact the parties had not been separated for a year. Father's counsel submitted that the divorce could be severed from the corollary issues but this can only be done if the mother agrees or the court is satisfied that reasonable arrangements have been made for the support of the children. Clearly neither of these criteria has been met. I do not accept the submission of father's counsel that as the father has now provided the mother with some child support cheques that this would be deemed a reasonable arrangement for child support.

[24] Father's counsel also submitted that by the time the case was heard or resolved the one year would have lapsed and the divorce could be granted. However, I agree with mother's counsel that it would have been much simpler for the father to continue with the application in the Ontario Court of Justice and then apply for an uncontested divorce once the parties had been separated for one year.

[25] The father's divorce application accuses the mother of physically and emotionally abusing him. He attempts to explain and justify the incidents that led to his criminal charges. His claim for joint custody is unlikely to be successful in light of his criminal convictions and the terms of his probation.

[26] I also have some concerns about the manner in which father's counsel proceeded to serve the divorce application and list mother's counsel as counsel of record when it was abundantly clear that mother's counsel was not prepared or authorized to accept service and was not retained as counsel for the divorce proceeding. I am prepared to accept father's counsel's submission that mother's counsel's name was indicated on the divorce application through inadvertence.

[27] Although I have these concerns, I am not prepared to find the father acted in bad faith, as I believe there may have been a lack of understanding by father's counsel as to the fact that the father could still obtain a divorce without requiring the issuance of a divorce application at this juncture.

2. Prejudice

[28] I have considered that the proceedings in the Ontario Court of Justice have just begun and no substantive orders have been made and the father has obtained a case conference date in the Superior Court of Justice for October 17th.

[29] Other than the case conference date, father's counsel was unable to provide any further information regarding the length of time for the next step in the divorce application.

[30] The mother has just been served and does not have counsel for the divorce proceeding. It is not clear that she will be in a position to proceed with a case conference on the date selected by father's counsel. I do not accept father's counsel submission that her pleadings can be easily converted to an Answer, the Form 35.1 and brief can have the headings changed and a financial statement can be prepared if it is necessary. The mother does not speak or read English. All of the documents need to be translated for her and therefore arrangements have to be made for a Mandarin interpreter. The mother also deposed that she does not know her way around Toronto and is accompanied by a shelter worker and she has already spent considerable time meeting with counsel and preparing her court documents. In view of the language barriers, there is prejudice to the mother if she is required to prepare new pleadings.

[31] The father is in a better financial position than the mother and can more easily absorb the cost of preparing responding materials to the application before this court. In any event, the father chose to incur the expense of commencing a divorce application instead of simply responding the mother's application.

[32] Mother's counsel submits that there is an advantage to the proceedings in the Ontario Court of Justice as this court makes use of the case management system with family law specialist judges. It is submitted that the mother is familiar with this court location and finds it less intimidating. It is also submitted that the Ontario Court of Justice is less formal in that it does not require facta for motions which impact on the expenses of court proceedings.

[33] Without casting aspersions of courts that do not have case management by specialist family court judges, I find that there is an advantage to litigants in appearing before the same judge with knowledge of family law issues. A litigant does not have to repeat the facts of the case and does not have to face the possibility of obtaining different opinions from several different judges. The case management judge can control the process of the litigation to ensure cases proceed without undue delay and set expectations for each step in the proceeding. This is especially important for litigants such as the mother in this case who does not speak English and is not familiar with the legal system in Canada.

[34] I would also add that in this case, the mother has deposed that she is intimidated by the father who is a trained lawyer in China and she would feel even more nervous having to start the legal process again.

[35] It is also submitted on behalf of the mother that interpreters are always provided in the Ontario Court of Justice and that it is counsel's experience that interpreters are not provided as of course in the Superior Court of Justice.

[36] For the reasons outlined above, I find that it would be prejudicial to the mother if she was required to proceed in the Superior Court of Justice. I also find that it would be in the best interests of the children to begin to see their father, if they wish and that any further delay would not be in their best interests.

[37] I also find that it is prejudicial to the mother if the father is in control of the litigation. The mother has already been subject to physical abuse by the father and has deposed that she has been controlled and intimidated by him. To permit the father to now take control of the litigation with no obvious need or benefit is to again permit him to control the mother.

3. Waste of Resources

[38] In this case, the father does not dispute that the children should continue to reside primarily with the mother. However, he seeks joint custody which is opposed by the mother. Both parties seek some ancillary orders regarding restrictions on travel by the other parent. There are no complicated child support issues as the father is employed and child support will be based on the child support guidelines.

[39] Therefore the contentious issue of sole versus joint custody can be scheduled for a focused trial utilizing the principles of Rule 2 of the Family Law Rules ("focused Rule 2 trial") that is frequently scheduled in this court. The issues can be dealt with expeditiously and with far less expense than the formal trials that are generally held in the Superior Court of Justice.

Conclusion

[40] For the above reasons, I make the following order:

1. The Applicant's motion is granted. The automatic stay pursuant to section 27 of the Children's Law Reform Act is lifted.

2. The Respondent shall file this Order with the Superior Court of Justice.

3. The Respondent's time to serve and file his Answer, Form 35.1 and financial statement is extended to September 30th, 2014.

4. Case conference held.

5. Adjourned to October 31, 2014 for a settlement conference. Briefs to be filed.

6. Costs of this motion if not agreed to by counsel will be dealt with on the return date.

Justice Roselyn Zisman

Date: September 16, 2014