[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Zhou v. Yao, 2024 ONSC 821
DIVISIONAL COURT FILE NO.: DC-23-1366 (Oshawa)
DATE: 20240207
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: CONNIE ZHOU, Applicant (Appellant)
AND:
JUN YAO, Respondent
BEFORE: D.L. Corbett, McGee, Ryan Bell JJ.
COUNSEL: Connie Zhou, Unrepresented Applicant (Appellant), Not Present
Jun Yao, Unrepresented Respondent, In Person
HEARD: January 26, 2024
ENDORSEMENT[^1]
D.L. CORBETT J. (Orally)
[1] The appellant did not appear for this Zoom hearing by 10:40 a.m. Court staff sought to reach her by email and by telephone without success. No communication was received from the appellant by the court in advance of the hearing, and the date for this hearing was set in the ordinary course during case management. In the circumstances, we treat the appeal as abandoned and dismiss it.
[2] Further, we have reviewed the written materials filed and we are satisfied that the appeal lacks merit in any event.
[3] The appellant, Ms. Zhou, and the respondent, Mr. Yao, are former spouses who separated on December 30, 2011, and divorced in January of 2019. They are the parents of two adult daughters whom I will identify in these reasons by their initials C.Z. and D.Y.
[4] The property, child support and spousal support claims arising from the end of the parties’ marriage were decided on a final basis within a final order of January 12, 2021. In November of 2021, Mr. Yao issued a Rule 15 motion to change asking to vary a child support term in the January 12, 2021 final order on the grounds that C.Z. was no longer eligible for child support given the amount available to her in RESPs and her available funding from multiple sources. In her response to the motion to change, Ms. Zhou also sought certain variations to the final order. A Rule 15 motion to change is a variation proceeding which is strictly limited to parenting and support claims arising from the material change in circumstances since the making of the final order.
[5] A long motion to determine the variation claims was heard by Justice Jarvis on December 9, 2022, with reasons released on January 4, 2023. In lengthy and detailed reasons, Justice Jarvis ordered that, in brief:
a) Ms. Zhou was to pay $30,216 to Mr. Yao being an overpayment of child support for the period April 1, 2021, to February 28, 2023, and
b) paragraph 3 of the amended order of Justice Himmel, dated January 12, 2021, was varied to provide the father pay $2,527.00 in child support commencing March 1, 2023.
[6] In all other respects, the January 12, 2021 order was confirmed. Justice Jarvis dismissed the balance of relief claim by Mr. Yao in his motion to change, and he dismissed the balance of relief claim by Ms. Zhou in her response to motion to change. With respect to the latter, Justice Jarvis made specific findings that there was an insufficient evidentiary basis upon which to grant the claims set out in Ms. Zhou pleadings. Costs were granted to Mr. Yao in the amount of $5,000.
[7] On February 10, 2023, Ms. Zhou brought a 14B motion seeking changes and further orders from Justice Jarvis in relation to the January 4, 2023 final order. In a hand-written decision made on March 1, 2023, Justice Jarvis dismissed the 14B motion, writing that he had dealt with “all issues of merit” before him and he was “not prepared to reconsider” his decision. I would add that the orders sought by Ms. Zhou are unavailable on a 14B motion, which is restricted to procedural, uncomplicated or unopposed matters pursuant to Rule 14(10) of the Family Law Rules.
[8] Before us today, Ms. Zhou appeals both the March 1, 2023 endorsement and Justice Jarvis’ lengthy decision of January 4, 2023. The appellant argues in her written materials that Justice Jarvis failed to address all the issues before the court on the long motion and that his subsequent denial of her 14B request to address those issues raised by Ms. Zhou were errors. She asked that the matter be returned to the lower court and another justice be assigned to avoid prejudice.
[9] The standard of review for judicial and statutory appeals is set out by Housen v. Nikolaisen, 2002 SCC 33: on questions of law, the standard is correctness; on questions of fact, the standard is palpable at overriding error; and on questions of mixed fact and law with respect to application of the correct legal principles to the evidence, the standard of review is palpable in overriding error. Having read the factums of the parties and reviewed the record, we find there is no basis upon which to grant Ms. Zhou’s appeal. We see no error in Justice Jarvis’ application of the law to the facts and no palpable in overriding error of fact. Justice Jarvis did not fail to address the appellant’s unpaid s.7 expenses or her proposal with respect to RESP accounts. To the contrary, he found within his January 4, 2023 endorsement that Ms. Zhou had failed to provide sufficient evidence for either claim, for which she bore the onus. Neither do we see any error with respect to the collection of s.7 expenses in the January 4, 2023 ruling, because Justice Jarvis provides in paragraph 46 that a support deduction shall issue.
[10] For these reasons the appeal is dismissed.
[11] In respect to costs Mr. Yao has submitted a Bill of Costs seeking $13,440, inclusive of HST. Within that Bill of Costs we have identified $300.00 that is attributable to out-of-pocket disbursements. The balance of this claim appears to be for the value of Mr. Yao’s time to prepare appeal materials and to appear at the appeal. Costs for self-represented litigants are not calculated at a basis of hourly rates in the same way that the costs claimed by a lawyer are calculated on hourly rates. Certainly, time spent by a self-represented litigant is one factor that the court may consider in exercising discretion on this issue, but the point is that costs are an indemnity to a party for out-of-pocket expenses that are incurred to appear in court. They are not a means of compensating a party for the time that they spend on their own case. The time spent by a party on their own case is generally not compensable, whether a party is represented by counsel or not.
[12] In this case, as we advised Mr. Yao, the ordinary costs that we would expect would be payable to a party represented by a lawyer would be no more than $5,000.00, inclusive. The costs to a self-represented litigant to appear before the court will be but a fraction of the cost that would otherwise be awardable to a party who has incurred the expense of paying for a lawyer. In the circumstances of this case, we are satisfied that an all-inclusive costs award of $1,000.00 is appropriate to cover both the out-of-pocket costs and to acknowledge the time spent by Mr. Yao since he did not have a lawyer. Accordingly, the costs order of this court for this appeal shall be that the appellant shall pay the respondent $1000, inclusive, within 30 days.
[13] These reasons will be typed up by the court and provided to the parties in due course.
[14] After the hearing in this matter was concluded, the court received an email from Ms Zhou advising that she had understood that this hearing was scheduled for January 29, 2024. She advised that when she received an email from the court about today’s hearing, she logged on to the ZOOM hearing room, but she was not admitted to the hearing: she remained in the waiting room.
[15] Ms Zhou’s email was apparently sent to the court at about 11:15 am, after the hearing had concluded.
[16] The court sent the following directions to the parties after considering Ms Zhou’s email:
[17] The President of the Divisional Court panel, D.L. Corbett J., directs me to advise you as follows:
Ms Zhou has contacted the court by email at 11:16 am, advising that she did attempt to log on to the ZOOM hearing after receiving an email from the court when she did not appear for the ZOOM hearing. She indicates in her email that she had understood the hearing was scheduled for January 29th.
The [appeal] proceeded as scheduled and the court dismissed the appeal as abandoned and on the merits. The court's brief oral reasons will be circulated to the parties in due course.
If Ms Zhou wishes to move to set aside the court's decision on the basis of having a good explanation for her non-attendance at the scheduled hearing, she may deliver motion materials and the panel will consider her request and give directions. She should provide any such request promptly after the court has released its written reasons for today's dismissal of the appeal.
[18] Subsequent to this email, the court confirmed that the appeal date was set in October 2023, and that Ms Zhou confirmed the January 24th date back to court staff at that time.
[19] If, in light of these circumstances, and the court’s reasons dismissing the appeal, Ms Zhou still wishes to move to set aside the appeal decision and to request that it be rescheduled, she shall serve and send to the court by email her complete motion materials by February 21, 2024, after which the court will give further directions. This panel is seized of any such motion.
“D.L. Corbett J.”
“McGee J.”
“Ryan Bell J.”
Date of Reasons for Decision: January 26, 2024
Date of Written Release: February 7, 2024
[^1]: Paragraphs 1 – 17 of this endorsement were delivered orally on January 26, 2024. The balance of the endorsement references events that took place after the court’s oral decision.