Hui v. Chan, 2025 ONSC 5611

CITATION: Hui v. Chan, 2025 ONSC 5611

DIVISIONAL COURT FILE NO.: 1625/25 (Oshawa)

DATE: 2025-10-06

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Lococo, Faieta and L. Bale JJ.

BETWEEN:

Agras Seabo Hui

Applicant/Appellant

– and –

Sik Wai Chan (a.k.a. Roy Chan)

Respondent

David Tobin and Jordan Shanlin, for the Applicant/Appellant

Self-represented Respondent

HEARD: September 15, 2025 at Oshawa

L. BALE J.

DECISION ON APPEAL

NATURE OF THE PROCEEDING

[1] The appellant, Ms. Hui, appeals the final order of the Honourable Justice Amelia M. Daurio, of the Superior Court of Justice, Family Court Branch, dated January 3, 2025, which dismissed the appellant’s application for a lump sum retroactive payment of spousal support in the amount of $745,286 for the period from December 1, 2015 to December 31, 2022.

[2] The appellant asserts that she was denied procedural fairness, and that the trial judge made legal errors regarding the application of the burden of proof, the determination of income, and the application of the Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, July 2008) (the “SSAG”).

[3] For the reasons that follow, I would dismiss the appeal.

JURISDICTION

[4] The final order was made pursuant to the Family Law Act, R.S.O. 1990, c. F.3. This court has jurisdiction over the appeal as per s. 19(1)(a.1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which permits an appeal as of right to the Divisional Court from a final order of a judge of the Family Court made only under a provision of an Ontario Act or regulation.

STANDARD OF REVIEW

[5] Appellate standards of review apply. The standard of review is correctness for questions of law, including legal principles extricable from questions of mixed fact and law. The standard of review is palpable and overriding error for questions of fact and for questions of mixed fact and law, where there is no extricable question of law: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 19, and 26–37.

[6] The Court of Appeal for Ontario has recently articulated the high standard of review to be applied in determinations of spousal support in R.L. v. M.F., 2025 ONCA 595, at paras. 20–21:

[20] The determination of support obligations, including the amount and duration of any order and any entitlement to share in a payor spouse’s post-separation income increases, involves the exercise of considerable discretion by trial judges, giving rise to significant deference on appeal: Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, at paras. 10 to 12; Hendriks v. Hendriks, 2022 ONCA 165, 71 R.F.L. (8th) 266, at paras. 17, 40; Scheibler v. Scheibler, 2024 ONCA 191, 100 R.F.L. (8th) 51, at para. 10. As this court noted in Berta v. Berta, 2017 ONCA 874, 138 O.R. (3d) 81, at para. 49: “This deference is augmented for payor incomes over $350,000 where the SSAG themselves suggest ‘pure discretion’ as one of two possible approaches”.

[21] Absent material error, such as a serious misapprehension of the evidence or an error of law, an appellate court is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: Ballanger v. Ballanger, 2020 ONCA 626, 2 C.C.L.I. (6th) 15, at para. 23. In Johanson v. Hinde, 2016 ONCA 430, W.D.F.L. 4103, at para. 1, this court explained the rationale behind the particular deference owed to factual findings of trial judges in family law litigation: “The deferential standard of review of decisions of trial judges on questions of fact, and questions of mixed fact and law, is designed to promote finality and to recognize the importance of trial judges' appreciation of the facts. If anything, this is more accentuated in family litigation.” See also: Hickey, at paras. 11 to 12.

[7] Whether there has been a breach of procedural fairness is a question of law, subject to review on appeal on a correctness standard: see Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 79; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 S.C.R. 220, at paras. 26–30. The degree of procedural fairness required is determined by reference to all the circumstances of the case, including the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21–28.

BACKGROUND

Relationship History

[8] The parties commenced cohabitation in December 1989. They separated on April 2, 2006. They have three children together, all of whom are now independent adults well over the age of majority.

[9] During the relationship:

a. The parties resided together in Canada (Ontario) between 1989 and 1992;

b. The parties resided together in Hong Kong between 1992 and 1999;

c. The appellant resided with the children in Canada and the respondent remained in Hong Kong from 1999 to 2006; and

d. The appellant and children returned to Hong Kong briefly between 2006 and 2007, before ultimately returning to Ontario.

[10] Following their separation in 2006, a financial arrangement was established wherein the parties shared their funds. This arrangement continued until approximately November 2015.

Litigation History

[11] The appellant commenced an application on October 5, 2017 under the Family Law Act.

[12] The case moved slowly through the court system. Case management endorsements expressed the court’s frustration with the parties’ non-compliance with disclosure orders and wasted court attendances.

[13] Eventually, the case proceeded to trial. The trial was heard over six days in May/June, 2024.

[14] The decision of Daurio J. was released on January 3, 2025, almost 20 years post-separation.

[15] Amongst other things, the court made the following observations and findings:

a. Both parties had successful careers. The appellant’s career flourished in both Hong Kong and Canada. She won a number of awards. She had many clients and agents working for her.

b. The parties’ relocations were at the respondent’s behest.

c. The appellant was the primary caregiver of the children both before and after separation.

d. The appellant was subjected to intimate partner violence and controlling behaviour by the respondent. There was an imbalance of power in the relationship.

e. In 2006, a financial arrangement between the parties was established:

i. The agreement was not written;

ii. The respondent’s income was deposited into the appellant’s bank account;

iii. The appellant would keep a portion, and send a portion back to the respondent; and

iv. The portion retained by the appellant supported the appellant, the children, and the respondent’s parents.

f. The parties did not agree in their evidence on the portions or amounts retained by the appellant. The appellant asserted that she retained 75 percent and sent the respondent the balance. The respondent disagreed with this estimate but did not provide his own.

g. The parties disagreed as to why the financial arrangement came to an end in 2015:

i. The appellant claimed that the respondent unilaterally terminated the agreement without cause; and

ii. The respondent claimed that the appellant began selling off properties that had been accumulated under their arrangement, for her own benefit, and he therefore determined that their mutual arrangement had come to an end.

h. The appellant claimed that in 2015 she started a company, Ashlac, with her best friend’s husband, Lawrence. She advised that she sold two properties and netted approximately $700,000 which she invested into Ashlac for a ten percent interest in the company. She claimed not to know how much Lawrence invested. Lawrence testified that he invested $500,000 for a 90 percent interest in the company. The appellant asserted that the company was not successful, and she lost her investment. To support herself, she said that she entered into a loan agreement with Lawrence. She advised that she sold her interest in the company to Lawrence for $20,000 in 2022, but that no funds were exchanged because she owed him money under their loan agreement. The trial judge was very skeptical of this arrangement.

i. The respondent claimed that the appellant was in a relationship with Lawrence, and that the business arrangement with Lawrence was done solely to shield the appellant’s assets from the respondent and his family. He alleged that the financial arrangement with Lawrence was a sham. The trial judge shared these concerns. Late in the trial, the court learned (during Lawrence’s cross-examination) that the appellant’s best friend, Lawrence’s wife, had passed away in 2015.

j. The appellant bought and sold multiple properties between 2015 and 2017. She transferred two properties held in her name to Ashlac for $2. Ashlac, in turn, sold these properties and netted $1.17 million. The sales did not occur on the open market. The trial judge found that, by arranging her affairs in this manner, the appellant avoided paying various taxes.

k. Neither party provided the court with evidence of their respective incomes in the post-separation years between 2006 and 2012. The trial judge found that there was a “massive gap” in the evidence relating to financial particulars between 2006 and 2015.

l. Neither party provided the court with particularized evidence relating to spousal support, child support, s. 7 expenses, or payments made for the benefit of other third parties post-separation.

m. The amount paid by the respondent to the appellant from 2006 to 2015 was sufficient to meet the needs of the family and to enable the appellant to make significant investments in property in Canada.

n. The appellant was an educated and successful businesswoman. She led no evidence to support her claim that she was unable to reach some element of self-sufficiency. She did not establish a non-compensatory entitlement to spousal support beyond 2015.

o. The parties had an informal (or implied) financial arrangement regarding spousal support for the period of 2006 to 2015. The parties did not provide any particulars of the terms of their agreement. The appellant did not prove an ongoing entitlement to spousal support on a contractual basis.

p. The appellant was entitled to compensatory spousal support in 2006.

q. The appellant led insufficient evidence to establish that she continued to have a compensatory entitlement to spousal support after payments ceased in 2015.

[16] The trial judge was very concerned with the appellant’s evidence relating to her income and financial circumstances. She found that it was “wrought with deception, scheming, fraud, and misrepresentation”. She did not accept that any of the appellant’s evidence relating to her financial dealings and income was credible.

[17] Ultimately, the trial judge determined that, absent detailed and reliable records of the financial arrangements that existed between the parties during the decade that followed the parties’ separation, the court could not conclude that the appellant had established an entitlement to spousal support for the period of 2015 to 2022, as claimed.

ISSUES

Allegations of Procedural Unfairness

[18] With respect to concerns relating to procedural fairness, the appellant advances three arguments:

a. The trial judge applied uneven scrutiny to the evidence;

b. The trial judge relied upon a theory not raised by the respondent and did not permit the appellant an opportunity to respond; and

c. The trial judge made findings of credibility that were not tethered to the evidence.

[19] I do not accept these arguments.

[20] Complaints regarding credibility assessment are often recast as procedural fairness arguments concerning uneven scrutiny to avoid the high level of appellate deference given to credibility findings: see MacDonald v. College of Dental Hygienists of Ontario, 2022 ONSC 632, at para. 13.

[21] Appellate courts have repeatedly indicated that uneven scrutiny is a notoriously difficult argument to make successfully because credibility findings are “the province of the trial judge” and attract significant deference on appeal: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 99; R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 23, leave to appeal refused, [2017] S.C.C.A. No. 294; R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183. Appellate courts invariably view this argument with skepticism, seeing it as “a veiled invitation to reassess the trial judge’s credibility determinations”: Aird, at para. 39.

[22] In this case, I am not satisfied that Daurio J. unevenly scrutinized the evidence. She did not adopt the wholesale narrative of either party over the other. She was critical of the respondent’s evidence where warranted and made adverse findings in favour of the appellant in areas where the respondent’s evidence did not survive her scrutiny. For example, the court accepted the appellant’s date of separation and allegations of family violence perpetrated by the respondent over the narrative presented by the respondent. The court declined to consider alleged business deductions from his income and circumstances of a recent bankruptcy argued by the respondent, which in her view were not particularized or supported by documentary evidence. The court also rejected the respondent’s evidence and arguments relating to inability to pay support. The trial judge was required to address material inconsistencies, not address every seemingly contradictory piece of evidence. It is evident that the trial judge carefully scrutinized and, where appropriate, rejected the evidence of both parties. Her assessment was balanced and fair.

[23] In the ordinary course, credibility and reliability assessments are reviewable for palpable and overriding error: R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at para. 29. The trial judge made no such error. The trial judge’s finding that the appellant had engaged in an “elaborate scheme” designed to avoid capital gains and hide income was firmly grounded in the evidence. She gave detailed reasons for her concerns which included, amongst other things, concern that the funds received by the appellant from the respondent in the years following separation were not reported on her Canadian income tax returns as either foreign income or spousal support. The trial judge’s findings of deception, scheming, fraud and misrepresentation were not ‘untethered’.

[24] I agree with the appellant that it is improper and procedurally unfair for a judge to raise personally and without notice the issue on which the disposition turns without inviting submissions from the parties: 200 Ferrand Realty Ltd. v. 1284225 Ontario Ltd., 2024 ONCA 684, at para. 4, citing Rodaro v. Royal Bank of Canada (2002), 2002 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), at paras. 61–63. However, that is not what happened in this case. The trial judge’s statements relating to the unreliability of the appellant’s financial evidence were not theories; they were credibility findings made in the context of assessing the appellant’s financial circumstances. A trial judge is entitled to believe some, none, or all of the evidence of a witness, regardless of the level of vigour and effectiveness of cross-examination. It is clear from the pleadings that the appellant’s income (including corporate income), and assets (including real property), for the period of 2006 to the present were at issue from the very outset of this litigation.

[25] There was no procedural unfairness to the appellant. These grounds of appeal cannot succeed.

Alleged Errors in Law

[26] The trial judge engaged in a comprehensive and accurate review of the law as it pertains to spousal support. Neither party takes issue with her recitation of the law, and it need not be repeated.

Burden of Establishing Entitlement

[27] The appellant submits that the trial judge committed an error in law by placing the onus of proof on the appellant to establish entitlement to spousal support in 2015. This is the argument that lies at the heart of this appeal. If this argument fails, it follows that the remaining issues raised by the appellant regarding determination of income and application of the SSAG cannot succeed.

[28] The trial judge expressed concern that the parties did not provide any law regarding delayed applications for spousal support, despite the body of caselaw on this topic and a specific invitation to address this issue. Instead, the appellant advanced a position that the court should disregard the financial arrangement in place between the parties from separation until 2015 and simply consider the claim for spousal support prospectively from the appellant’s requested commencement date.

[29] The trial judge correctly declined to do so.

[30] Justice Daurio opined that the appellant had the onus to provide the evidence (and the supporting SSAG calculations) for the period of 2006 to 2015 to establish that she had an ongoing entitlement to compensatory spousal support for the time period that she claimed (i.e., 2015–2022). The trial judge concluded that the appellant failed to meet this burden.

[31] There is no limitation period in respect of a claim for spousal support under family legislation or the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 16(1)(c): Kyle v. Atwill, 2020 ONCA 476, 152 O.R. (3d) 59, leave to appeal refused, [2020] S.C.C.A. No. 394. However, the trial judge correctly identified that a lengthy period of delay in bringing a claim is a relevant consideration in the assessment of spousal support claims and the applicability of the SSAG: Quackenbush v. Quackenbush, 2013 ONSC 7547; Hillhouse v. Hillhouse (1992), 1992 5983 (BC CA), 74 B.C.L.R. (2d) 230 (C.A.).

[32] This case was not a motion to change an existing order for support, nor was it an application to enforce or vary terms of a domestic contract. Rather, this case was an initial application for spousal support brought pursuant to s. 33 of the Family Law Act for the payment of a lump sum amount (for the period of 2015 to 2022). The appellant does not challenge the trial judge’s finding that the appellant was not entitled to spousal support either on a non-compensatory or contractual basis in 2015. Rather, the appellant argues that, because the trial judge found that the appellant was initially entitled to compensatory spousal support upon separation in 2006, the burden fell to the respondent to establish that she was no longer entitled to spousal support in 2015.

[33] I disagree.

[34] A party seeking spousal support on initial application bears the burden of establishing their entitlement for the period that they are seeking support. As noted by the trial judge, orders for spousal support are intended to recognize the contributions and consequences of spousal partnerships, to ensure that the economic burden of supporting the children is shared, to make fair provision for spouses post-separation and to assist in self-sufficiency, and to relieve financial hardship arising from the breakdown of a relationship: Family Law Act, s. 33(8). These four objectives are viewed as an attempt to achieve an equitable sharing of the economic consequences of spousal relationships and their breakdown: Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813, at para. 74.

[35] The objectives and intended purposes of spousal support orders are equally applicable to applications for spousal support brought immediately upon separation and to applications commenced after prolonged periods of delay. What changes is not the burden of establishing entitlement, but rather the totality of the events and circumstances that the court will consider in determining whether an award of spousal support is required to meet these objectives.

[36] In this case, because of the inadequacy and unreliability of the evidence led regarding the financial arrangements in place for a post-separation period of almost ten years, the court could not find that there was any remaining purpose upon which to base an order for spousal support from 2015 to 2022. The failure of the appellant to provide sufficient (reliable) detail regarding the financial arrangement in place between the parties during this post-separation period, and the justification or rationale for those payments, deprived the trial judge of the ability to assess whether the disadvantages to the appellant arising from the relationship and its breakdown had been alleviated by 2015.

[37] On her own evidence, the appellant acknowledged receiving unclassified tax-free payments from the respondent totalling almost $2.5 million over ten years following separation. If the appellant believed that she was entitled to additional amounts because these payments did not adequately compensate her for the economic consequences of the roles assumed by the parties during the relationship and/or the disadvantages which arose from its breakdown, she had to establish that entitlement. In the eyes of the trial judge, she did not. The trial judge did not err in law or application in reaching this conclusion.

Residual Grounds of Appeal

[38] Entitlement is a preliminary threshold issue. Entitlement informs the proper application of the SSAG, not the inverse: Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, at paras. 108–110; Rathee v. Rathee, 2024 ONCA 912, 8 R.F.L. (9th) 251, at para. 24.

[39] In this case, the appellant did not satisfy the court that further compensation, in the form of a lump sum payment of spousal support, was necessary to effect an equitable sharing of the economic consequences the parties’ spousal relationship and its breakdown. In other words, the appellant did not establish the requisite threshold entitlement to spousal support in 2015 and beyond. It was therefore not an error for the trial judge to decline to engage in a thorough review of the parties’ incomes from 2015 to 2022, or to analyze SSAG calculations for that period.

CONCLUSION

[40] The trial judge’s decision is entitled to significant deference. The appellant was not denied procedural fairness. The appellant has not established a material error in the form of any serious misapprehension of the evidence or an error of law. There is no basis upon which to intervene.

[41] There are no categorical rules relating to self-represented litigants that either prevent recovery of costs or provide for an automatic right of recovery. The matter remains fully within the discretion of the court. In this appeal, the respondent was the successful party. It is evident that he devoted some time and effort to this appeal. It is reasonable that he be awarded costs of $750 in the context of this appeal.

[42] The appeal is dismissed with costs payable by the appellant to the respondent fixed in the all-inclusive sum of $750.

Bale J.

I agree _______________________________

Lococo J.

I agree _______________________________

Faieta J.

Date Released: October 6, 2025