COURT FILE NO.: FS-11-71563
DATE: 2012-05-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kun Li 20 – 118 Vaughan Road York, ON M6C 2M1
Unrepresented
Applicant
- and -
Shuangqun Zhao
Did not attend (noted in default)
Respondent
HEARD: January 30, 2012
REASONS FOR JUDGMENT
Uncontested Trial
Justice M. J. Donohue
INTRODUCTION
[ 1 ] This is a divorce action in which the applicant seeks possession of the matrimonial home in order to have it sold. She seeks an unequal share of net family property to be made in her favour.
[ 2 ] Ms. Li seeks an order for child support and for section 7 expenses to be made as a lump sum from the sale of the home.
[ 3 ] Ms. Li, age 45, was married to Mr. Zhao, aged 48, in China on January 21, 1991. They immigrated to Canada in 1999 with their daughter Jie, born March 6, 1992. They were separated on February 1, 2009 after 18 years of marriage. Jie, aged 19, is the only child of the marriage.
THE ISSUES
(a) The matrimonial home
[ 4 ] Since separation on February 1, 2009, Mr. Zhao has occupied the jointly owned matrimonial home by himself. Ms. Li moved out with their daughter Jie Zhao. Although Ms. Li moved out, she has continued to pay the mortgage, management fee, and taxes on the home. She maintains that Mr. Zhao has let the property get run down. Ms. Li seeks an order for exclusive possession of the home so it can be cleaned and listed for sale.
(b) Unequal Division of Net Family Property
[ 5 ] Ms. Li has been employed in Canada since 1999 and has shouldered the responsibility of the matrimonial home expenses. Mr. Zhao has not worked in Canada apart from a nine-month period. He has not answered disclosure orders of his financial information. Ms. Li seeks an unequal division of the parties’ net family property.
(c) Child Support and Section 7 expenses
[ 6 ] The daughter of the parties, Jie, is in second year at University of Toronto. Ms. Li seeks retroactive child support from January 2009 in the table amount and section 7 expenses to defray the cost of university tuition, accommodations, books and activity fees.
(d) Divorce—uncontested
[ 7 ] There is no dispute to the grounds entitling the wife to a divorce and a divorce judgment is granted.
(e) Costs
[ 8 ] Mr. Zhao has not assisted in resolving the above issues and Ms. Li has been forced to pursue litigation.
BACKGROUND
[ 9 ] Ms. Li was the only witness. She testified as to the background of the marriage and the financial circumstances of the parties during and after the marriage.
Mr. Zhao
[ 10 ] Mr. Zhao was a civil engineer and took an MBA in Paris in 1992. He speaks English and is literate in English. He is a financial analyst. After coming to Canada in 1999 he did not obtain employment. He studied an on line course in Chinese Medicine for which Ms. Li paid $4,000.00 - $5,000.00. He intended to open a clinic in their home so they purchased the property in 2006 that is now the matrimonial home. He did not, however, open a clinic.
[ 11 ] Since 1999, Mr. Zhao has not been employed in any capacity except for a nine-month period as a labourer. Ms. Li believes he earned about $20,000.00 in those nine months. He collected employment insurance for a period after that.
[ 12 ] Ms. Li testified that Mr. Zhao did not contribute much to their family life. He only did some cooking, some snow shovelling and planted grass at the property. He refused to pick up their daughter after school and so Ms. Li paid a sitter to do so. Ms. Li did most of the cooking, the gardening, the laundry, the cleaning and took out the garbage.
[ 13 ] Mr. Zhao had two apartments in the south part of China in Xiamin, which he sold. Ms. Li estimates he made a profit of $40,000.00 and invested that money in the “A” stock market for Chinese people and the “B” stock market for foreigners.
[ 14 ] Mr. Zhao brought $20,000.00 American to Canada in 1999 but sent $15,000.00 of that back to China to be invested. Mr. Zhao has no bank accounts in Canada. He has approximately $15,000.00 cash in a locked bedroom in the matrimonial home. He has not disclosed to her what assets and income he has. She believes he has investments in China worth at least $80,000.00.
[ 15 ] Mr. Zhao has been living alone in the home since February 1, 2009 (roughly three years.) The wife has no information of his means of support. With his education level, Ms. Li advises that he could be earning at least as much as she is ($58,000 per annum).
[ 16 ] There was an order by Justice Price, dated October 31, 2011, to provide a sworn Financial Statement in Form 13.1. This order was served December 28, 2011. There was no response and no compliance to same.
Ms. Li
[ 17 ] At the time of their marriage in China they did not have any debts. Mr. Zhao had approximately $2,000.00 (U.S.). Ms. Li's employer in China gave her an apartment in Beijing which is in her name. Mr. Zhao contributed about $8,000.00 to the costs of that apartment. From 1996-1999, Ms. Li lived there with her daughter. Her husband, Mr. Zhao, was working in Xiamin for most of that time but he spent vacations with her there. She estimated he resided there less than a year in total.
[ 18 ] The apartment is valued at approximately $100,000.00 but can only be sold back to her former employer. Ms. Li's mother lives there. Ms. Li's nephew also lives there paying heat and hydro in lieu of rent.
[ 19 ] In 1999, the parents came to Canada. Within two months Ms. Li obtained employment working at Apotec. She has been steadily employed with that company, presently earning $58,000 this year.
MATRIMONIAL HOME
[ 20 ] In 2006, Ms. Li and Mr. Zhao purchased the matrimonial home for approximately $220,000.00. Mr. Zhao contributed $20,000.00 cash from investments in China. Ms. Li contributed $40,000.00 from an RRSP and from cash. They obtained a mortgage on the property for $160,000.00, which Ms. Li has paid since 2006 even after she moved out.
[ 21 ] At the valuation date, separation, the mortgage was $140,000.00. Ms. Li says, based on other MLS listings, the value of their home is $250,000.00. Mr. Zhao has changed the locks and will not allow a real estate agent or an appraiser to attend. Ms. Li requires possession of the property to fix it up and list it for sale with a real estate agent.
CHILD SUPPORT
[ 22 ] Ms. Li seeks child support and/or section 7 expenses for Jie's last two years of university costs as well as future schooling costs. Jie is in her second year at University of Toronto and has applied to the pharmaceutical program, which is four years.
[ 23 ] Jie's tuition is $12,000.00. Her accommodation costs are $4,500.00. Books are $600.00 and food is $4,500.00. The activity fee is $1,000.00. This totals $22,600.00 per year. These costs for the last two years, based on these figures, are $45,200.00. Ms. Li expects Mr. Zhao to be responsible for half those past expenses. Ms. Li states she paid some of the past costs with an RESP and so seeks $15,000.00 from Mr. Zhao for past expenses.
[ 24 ] Ms. Lee did not have any actual receipts for the expenses noted above apart from the tuition. However, I accept her evidence that those are the daughter’s post-secondary costs.
[ 25 ] As their daughter has another four years of university at $22,600.00 approximately per year, there are future needs of a total of $90,400.00 of which the respondent's share would be $45,200.00.
ANALYSIS
Matrimonial Home - Unequal Division of Net Family Property
[ 26 ] From the limited information Ms. Li was able to give me, the calculation would be as follows:
Cash
$ 2,000.00
House – half the value
125,000.00
Beijing apartment
100,000.00
RRSP
8,000.00
Life insurance policy cash value
3,500.00
Total
$238,500.00
Deduct her half of mortgage
70,000.00
Net family property
$168,500.00
[ 27 ] Mr. Zhao's assets would be as follows:
Cash
$ 15,000.00
House – half the value
125,000.00
Investments in China
80,000.00
Total
$220,000.00
Deduct his half of mortgage
70,000.00
Amount owned at date of marriage
2,000.00
Net family property
$148,000.00
[ 28 ] Half the difference would be $14,250 owing to Mr. Zhao by Ms. Li. I am satisfied that the husband has assets he has not disclosed to the wife which are equal to or greater than Ms. Li’s assets. Accordingly, I have assumed their net family property is equal and no equalization payment is owed by either party to the other.
[ 29 ] If I am wrong about the parties’ having equal net family property amounts, I would not make an order that Ms. Li pay an equalization payment to Mr. Zhao based on the following analysis.
[ 30 ] The court has discretion to award a spouse an amount which is greater than one-half the difference between her net family property and that of her husband if the court is of the opinion that equalizing the net family property would be unconscionable, having regard to several factors listed in section 5(6) of the Family Law Act two are relevant to this fact situation.
[ 31 ] Two factors are:
(1) The fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family ;
and
(2) Any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. (Emphasis added)
[ 32 ] By shouldering the entire mortgage debt, while having de facto custody of their daughter, Ms. Li has incurred a disproportionately larger amount of debts than has Mr. Zhao in “the support of the family.”
[ 33 ] The term “unconscionable” has been interpreted to mean “shocking the conscience of the court”. ( Macdonald v. Macdonald (1997), 1997 14515 (ON CA) , 33 R.F.L. (4 th ) 75 (Ont. C.A.).
[ 34 ] Mr. Zhao has not worked for the last 13 years and based on the evidence has hardly contributed in any way to the family unit. It is also clear that Mr. Zhao has the educational qualifications to be gainfully employed and the ability to contribute to the expenses of the family.
[ 35 ] I, therefore, find that it would be unconscionable to equalize the parties’ net family property and that this is an appropriate case to award an unequal division of the net family property.
[ 36 ] Mr. Zhao is clearly under employed based on his qualifications. He has contributed nothing by way of support for his daughter. There is no point in making a monthly support order that cannot be enforced. This is clearly a case where lump sum support is the appropriate way to deal with Mr. Zhao’s support obligation. I have not dealt with the issue of retroactive support owed by Mr. Zhao for the support of the child. If this matter is re-opened for any reason, the issue of income imputation to the husband, and an order for retroactive child support may be raised by the wife at that time.
[ 37 ] I have only dealt with the child’s past and future post-secondary costs in this.
[ 38 ] From the respondent's proceeds from the sale of the matrimonial home should be deducted the past section 7 expenses of $15,000.00, and the lump sum future expenses for their child's support and education of $45,200.00.
[ 39 ] I order that the matrimonial home be vested in the applicant’s name alone for the purposes of listing and selling same.
[ 40 ] I order that the respondent’s consent is not required on the listing agreement or purchase and sale documents.
[ 41 ] I order that the applicant have exclusive possession of the matrimonial home so that it can be listed for sale. A writ of possession shall issue along with this court order. This term of my order shall be enforced by the Peel Regional Police.
[ 42 ] I order the divorce judgment to issue.
[ 43 ] With respect to costs, the applicant shall file written submissions on her costs and expenses of two pages or less within 14 days of today’s date.
Justice M.J. Donohue
Released: May 16, 2012
COURT FILE NO.: FS-11-71563
DATE: 2012-05-16
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Kun Li Applicant - and – Shuang Oun Zhao Respondent REASONS FOR JUDGMENT Justice M.J. Donohue
Released: May 16, 2012