ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No. FS-12-382093
Date: 20131212
B E T W E E N:
DAN LI
(Applicant)
Heng Du for the Applicant Wife
- and -
YIMING MEI
(Respondent)
Appeared for himself
HEARD: November 4, 5, 7 & 8, 2013
M.A. SANDERSON J.
Reasons for Decision
Introduction
[1] The applicant wife Dan Li ("the wife") seeks an order for divorce; unequal division of family property; exclusive possession of the matrimonial home and contents; an order directing Yiming Mei ("the husband") to repay her $35,180.64 for the purchase of a 2009 Nissan 370Z motor vehicle; a further order for repayment of $1800; costs.
[2] The respondent husband Yiming Mei seeks a divorce; equalization of net family property; payment of occupation rent of $600 per month from June 2012 until the divorce is granted; an order for return of the marriage gifts; costs.
Chronology
2010
[3] In 2010 the husband and wife were introduced to each other by Jiang Xiao Xia, a Chinese matchmaker/family friend. At the time of their introduction, the wife was a student, living in Winnipeg.
[4] By June 19, 2010, the husband and wife were discussing entering into a marriage arranged by the husband's and wife's parents. The husband gave evidence that as of June 19, he was living with, loved and wanted to marry Ms Jin Pei Wang ("Wang.") He never loved the wife or wanted to marry her.
[5] On June 19, 2010, in email correspondence the wife was questioning whether or not the husband was "serious." She wrote: "I feel from you uncertainty- Why I can’t say yes. Do you really love me? …I was catching cold. Did you ask anything about me? Have you ever paid attention? How could you never call me a single call? Maybe we were made to separate…"
[6] The husband gave evidence that when she asked, "Are you serious?" he understood the wife to be asking, "Are you serious about marriage?" He said he was not serious about the wife but was serious about marriage. He "separate[d] marriage and love."
[7] The husband gave evidence he was aware in November of 2010 that the wife intended to purchase a condominium in Toronto. He knew that she had put a deposit on a condominium unit at 18 Parkview Avenue, Suite 1608.
[8] The husband’s mother gave evidence that in October 2010 the wife’s mother asked her to pay 60% of the purchase price.
2011
[9] By January 8, 2011, the husband had been living with Wang for about a year. He said that on that day, he proposed marriage to Wang. They set their wedding date for August 21, 2011.
[10] At the same time, I find the husband's and wife's parents in China were negotiating the marriage of their children.
[11] The husband gave evidence he tried to fight the arranged marriage to the wife.
[12] The husband's mother said when she asked her son to marry the wife, he did not object.
[13] On February 10, 2011, the husband’s parents agreed to sell a property in China for 450,000 RMB [Renmibi currency] (about $65,217 Canadian) [Exhibit 19].
[14] The husband’s mother gave evidence that on February 19, 2011, she paid 330,000 RMB in cash to the wife's mother in China.
[15] Wang gave evidence that when she called the husband’s mother early in 2011 to announce that she was engaged to marry her son, the husband's mother screamed at her and said she had already arranged something for her son.
[16] The husband's mother gave evidence that she told Wang to stay away from her son.
[17] When the wife's counsel asked the husband's mother in cross-examination whether her son had told her he did not love the wife, she answered, "I personally think my son would like to listen to me as before. I thought my son listened to me. My son always listened to me. I thought there would be no problems. Even til now I don’t think my son formally dated her [Wang]. I think the girl was pursuing my son."
[18] The wife and her mother gave evidence that by late February of 2011, the wife's mother had forwarded to the wife in Canada a total of Cdn$440,000 from China to purchase the condominium at 18 Parkview, Suite 1608, Toronto.
[19] The wife's condominium purchase closed on March 1, 2011. She took title in her name alone.
[20] Contrary to the husband's mother’s evidence that in October 2010, the wife's mother asked her to pay 60% of the purchase price of a Toronto home for the couple condominium and that on February 19, 2011, before the closing on March 1, 2011, she paid 330,000 RMB to the wife's mother, the husband pleaded the following in his Answer [that the husband personally prepared and signed in these proceedings] at paragraphs 15-17:
[15] In March 2011, the Applicant’s parents asked the Respondent husband’s parents to contribute towards the purchase of the parties’ home in Canada. The respondents parents agreed to contribute 60% of the purchase price. However the respondents parents were short of funds at the time. The applicants wife’s parents agreed to remit the purchase price first.
[16] The respondents parents sold their property in Changzhou China in Feb 2011 [Ex. 19]for Cash RMB 450000 and a property in Nanjing China [Ex. 20] in July 2011 for Cash RMB 1,200,000.
[17] The respondent husband’s mother gave the applicant wife’s mother RMB 1,568,100 in cash on July 30,2011,which is equivalent to Cdn$227,261. The respondent husband’s mother also provided the applicants wife's mother with a promissory note for outstanding amount of RMB 150,000 (equivalent of Cdn$21,739). The total is $249,000 being 60% of the purchase price of $415,000.
[21] Wang gave evidence that on July 27, 2011, she sent a text message, Ex. 35, to the wife including a picture of Wang and the husband together and another showing a diamond ring on Wang's left ring finger. Wang wrote:
This is what happened every night since January. We called you and told you that he already engaged. Now we are getting married August 21.Mason has been living with me for more than half a year now…. That is the ring he bought for me. Do you need to see the receipt that have his and mine name on it? Now this issue has been hurting me and my family. His mom told me she already gave all the house money to you. Why don’t you give the money back to his mom and let both me and him stay out of this? Why do you have to marry to someone who don’t love you at all and engaged with some other women?
The wife responded to Wang: "I don’t care."
[22] I have already noted that in his Answer the husband pleaded that the husband's mother gave the wife's mother the equivalent of $227,261, 1,568,100 RMB, on July 30, 2011.
[23] The husband's mother gave evidence that on July 30, she paid the wife's mother 1.24 million RMB in cash, out of the proceeds of the sale evidenced by Ex. 20. She said she did not ask the wife's mother for a receipt for the cash because: "It's marriage, not business."
[24] Ex. 26 is a promissory note for 150,000 RMB dated July 29, 2011 from the husband's parents to the wife's parents. The husband's mother gave evidence the note was for the balance owing on the amount she had agreed to pay to secure the marriage. The wife gave contrary evidence. She said on July 29, 2011, her mother advanced the 150,000 RMB to the husband's parents so they could renovate their home to prepare for the marriage celebrations. Ex. 26 reads: "Today we borrowed total sum 150,000 RMB can use this address as collateral."
[25] The husband's mother conceded in cross examination that in August 2011, she did renovations to her home costing 200,000 RMB in anticipation of the wedding. However, she said she paid for those renovations herself.
[26] The husband gave evidence that in China, the man pays to secure the marriage and puts the property into the name of the wife.
[27] With respect to her agreement with the wife's parents and her alleged payments, the husband's mother gave evidence at one point that she understood if she paid the money and the couple divorced, the proceeds from the matrimonial home would be split 50/50. At another point in her evidence, she said she understood that on marriage the woman's name would go on the property certificate, and if the couple divorced, the property would belong to the person having the title for it. In China, in the event of divorce, she said the parties do not expect a refund of any contributions made to secure a marriage. The husband's mother said she did not expect the couple would divorce.
[28] Even though the husband's mother knew her son was seeking a divorce and she was giving evidence by Skype in a proceeding where divorce was being sought, she said, "I hope they get back together. I don’t expect them to divorce. I hope Li Dan can change his lifestyle. I think it's possible for them to get along well together."
[29] The husband gave evidence that just before August 21, he cancelled his plans to marry Wang "because of his mom." He said had he not married the wife, his mother would have lost all her savings. He did not want his mother to lose all her savings or jump off the roof.
[30] By the end of August 2011, the wife had moved to Toronto. The husband's mother told Wang that her son must move in with the wife.
[31] On September 5, 2011, the husband attempted suicide/slit both his wrists.
[32] The husband's mother gave evidence that when Wang phoned to advise of her son's suicide attempt, she did not believe her.
[33] Wang gave evidence she separated from the husband on September 6, 2011 because she did not want him or his mother to die.
[34] On September 22, 2011, shortly after moving in with the wife, the husband signed an agreement to purchase a 2009 Nissan 370Z and paid a $7,000 down payment on the car using his credit card.
[35] The wife's mother gave evidence that in October, she gave him 60,000 RMB (Cdn$7,000) to pay off that $7,000 credit card debt.
[36] During October, the husband gave the wife a diamond ring [worth $2608.70], a wedding band [worth $610.58], other wedding presents including gold bracelets [worth $4,826.09 and $3,941.98,], a gold necklace [worth $3,260.87], and another bracelet [worth $123.19].
[37] In cross-examination, the wife's mother was asked whether the husband was wearing casts on his wrists at the time of the wedding .She said she didn’t see them. However, she knew he had injuries.
[38] The husband said he told the wife's mother two days before the wedding he thought the arranged marriage would end up in divorce. The husband said he entered the marriage with "a dead heart."
[39] On October 31, 2011, the husband and wife were married in China. There were about 300 guests at the wedding.
[40] The husband said they received 310,000 RMB for wedding gifts, which he gave to the wife's mother so she could use her contacts in China to transfer it to Canada.
[41] The husband's mother gave evidence that the wife's mother kept all but 40,000 RMB of the wedding gift money. She said she gave that 40,000 RMB plus an additional 210,000 RMB of her own money directly to the couple to pay for the car, telling them to give it to the wife's mother for transfer to Canada.
[42] A friend of the wife's mother gave evidence [also by Skype] that the wife's mother transferred money from her own account and made out a bank draft payable to the wife in Canada to buy the car for her son-in-law. She said the wife's mother told her it was for a car for her son in law and she commented to the wife's mother, "You like your son-in-law that much?"
[43] The couple returned from China to Canada on November 20, 2011.
[44] On November 21, 2011, the husband paid the balance owing on the car, using the money the wife's mother had sent to the wife by bank draft.
[45] The wife gave evidence that on November 23 she also gave $2,600 to the husband to pay for his car insurance.
[46] The wife gave evidence that during the marriage, apart from $2,939 she received from the husband, she paid for virtually everything.
[47] The husband gave evidence that during the marriage the wife did not work. When she found out he was not as rich as she had thought, they argued about everything.
2012
[48] The husband's mother said when she learned that the husband and wife were quarrelling, she wanted them to stay together.
[49] The wife's application includes the following:
On or about May 29, 2012 the wife discovered that the husband was having an extra marital affair. She immediately confronted the husband who admitted to the affair. During their conversation the husband told the wife that the only reason he had married her because her family is well situated financially. The wife was deeply hurt by the husband's confession and the husband decided to move out…
[50] The husband's Answer contains the following:
[7] On May 29 2012 the applicant wife yelled at the respondent husband when he got home after work complaining that the husband did not take her to watch a movie. The respondent tried to calm her down but to no avail.
[8] The respondent tried to get some help from his friends and left home to avoid an ugly situation. On May 30, 2012, the husband returned home. However, the parties had another argument on June 4, 2012 and the respondent husband left home again to avoid any further escalation.
[9] Between June 4 and June 24, the respondent husband would go back home to change his clothes but would not stay overnight. The respondent did not take his personal belongings as the respondent husband did not have any intention to separate.
[10] On June 24, 2012, the respondent husband went home and found that the applicant wife had changed the home lock without advising the condo management office. The respondent husband could not get in and he called the condo security for assistance…The security called the applicant wife and she asked the security to force the husband out… As such the husband believed that the applicant had no intention to reconcile with him.
[51] The husband did not mention in his Answer that he had signed an agreement [Ex 8] on June 14, 2012 to rent a room from Wang and her parents.
[52] He produced no rental receipts from Wang or her parents.
[53] In his Answer, the husband pleaded at paragraph 6 that he had never had an affair during the marriage. Wang gave evidence that she has lived with her parents since the separation. The husband denied having a relationship with Wang at present.
[54] In her evidence, the husband's mother referred to Wang as her son's "current girlfriend." The husband gave evidence he “absolutely" loves Wang more than the wife.
[55] Before the trial, the husband advised the wife's counsel that he was planning to bring his mother to Canada to give evidence. However, the husband's mother first gave evidence that he had never requested her to come to Canada to give evidence at this trial. She later changed her evidence and said "I don’t remember exactly when, but he asked me to come to Canada to testify."
[56] At the beginning of the trial, the husband said he was prepared to proceed without his mother's evidence. After he suggested later in the trial that the wife's counsel had told him his mother could not give evidence by Skype, I allowed the husband to use Skype to call his mother's evidence from China. When I made the order allowing the husband's mother to give evidence by Skype, I was not aware that he had not made any efforts for her to give evidence in person at this trial.
Findings
The Separation Date
[57] The husband's position on the date of separation was inconsistent. For example, he pleaded that the separation date was June 24. However, after it was obvious that the wife knew that on June 14 he had signed an agreement to rent a room in a house partly owned by his ex-fiancée, Wang, he changed his evidence on the separation date from June 24, the date set out in his Answer, to June 14. I accept the wife's evidence they separated on May 29. However, I find the wife did not learn on May 29, 2012 about Wang. As noted earlier, Wang had corresponded with her before the marriage [for instance, on July 27, 2011, when Wang advised the wife they were engaged and the wife replied, "I don't care."]
Ownership of 18 Parkview, Suite 1608 (The Condo)
[58] I find before the closing date, March 1, 2011, the wife's parents contributed all of the Cdn$427,000 the wife used to purchase the condo.
[59] I reject the husband's mother's evidence that she promised to pay 60% of the purchase price in October 2010 and that she made a payment in February 2011. That evidence was contrary to the husband's understanding at the time he prepared his Answer. Further, the timing seems unlikely given the contents of Ex. 19. I find the husband's mother fabricated her evidence about the February 19 payment date in order to suggest she had made a payment before the March 1 closing date.
[60] I find the husband did not ask his mother to come to Canada to give evidence about the alleged payments she made to the wife's parents, because he understood it should not affect the division of property in Ontario. He knew his mother did not expect any payments she may have made to secure the marriage to affect the legal position of the husband and wife on a divorce. I find the husband's mother understood and agreed that if a divorce were to occur, the condo would still belong solely to the title holder, the wife.
[61] If the husband's parents did make any payment to the wife's parents on or around July 30, it was not forwarded to the couple in Canada and was not intended to affect their respective legal positions in Ontario in the event they divorced.
[62] I have found no payments by the husband's parents were received in Canada by the husband or wife.
[63] I have rejected the evidence of the husband's mother that she was aware of the division of property regime in Ontario, that she made payments to her son from the sale of properties in China or that she had an expectation that any payments made before the marriage would affect any division of assets in Ontario in the event of a divorce.
[64] Since neither the husband nor the wife received any money allegedly paid by the husband's parents to the wife's parents, and since the husband's parents knew the title would be in the wife's name only, and since they did not expect the title to change in the event of divorce or there to be a division of the proceeds in the event of a divorce, I find any payment that may have been made in China to other than the husband or wife is irrelevant in the Ontario proceedings.
[65] The contract and payments if any were between the husband's parents and the wife's parents. I have therefore made no findings with respect to any amounts paid or not paid in China [apart from my finding that no payments whatever were made before March 1, 2011.]
[66] I have rejected the husband's mother's evidence on the July 29, 2011 note. I find the July 29 note evidences a loan from the wife's mother and father to the husband's parents for renovations to their own home. It had nothing to do with any payment by the husband's parents to the wife's parents to secure the marriage. The husband's mother continues to owe the wife's mother 150,000 RMB on July 29 2011 promissory note roughly $21,739.
The Car
[67] I find the car was purchased with money provided by the wife's mother. However, I find she intended to make a gift of the car to her new son-in-law.
The Wedding Gifts
[68] I reject the husband's evidence about the wedding gifts received and payments therefrom. The husband's evidence differed significantly from the evidence of his mother.
Other Facts Relevant to Equalization of Assets
[69] While under s. 5 of the Family Law Act, the spouse whose net family property is the lesser of the two net family properties is generally entitled to one-half of the difference between them, s. 5(6) allows the Court to award a spouse an amount that is more or less than half the difference between the net family properties if the Court is of the opinion that equalizing the net family properties would be unconscionable. Relevant considerations include whether the share the spouse would receive would be disproportionately large in relation to a period of cohabitation less than 5 years, and any other circumstances relating to the acquisition, maintenance or improvement of the property.
[70] After the marriage, I accept the wife's evidence that apart from payments totalling $2,939.00, the husband did not contribute to the upkeep of the condominium during the marriage.
[71] In this case, the wife owned Suite 1608 at 18 Parkview, Toronto at the date of the marriage. The parties cohabited for less than a year. The husband did not contribute to the purchase price or much to its upkeep during the marriage. After the wife took title, there may have been negotiations between the parents of the husband and wife that may have resulted in the payment of some amount in China. I have found the payments, if any, were not sent to the husband or wife in Canada. I have found they were not intended by the husband's parents to affect the wife's sole ownership of the Toronto condo. They were not intended to be a relevant factor in any division of assets in the event of a divorce in Canada. Any payments made by the husband's parents to the wife's parents were made in China and remained in China. This Court does not have jurisdiction in China. This Order is not intended to affect in any way the rights of the husband's parents under the laws of China to seek to recover from the wife's parents any funds paid in China.
[72] I have held that any agreements that may have been made in China between the parents in China, any payments made in China to other than the husband and wife, and any rights arising from those payments, are a matter for the Court in China, not for this Court. This Order is not intended to affect the rights of the husband's parents to seek a refund in China of any money they paid to secure the marriage in China.
Disposition
[73] In all the circumstances, I order a divorce.
[74] In all the circumstances here, an unequal division of net family property would not be unconscionable.
[75] I order an unequal division of net family property, as follows:
(a) that the wife owns and will continue to 18 Parkview, Suite 1608, Toronto on a 100% basis.
(b) that the wife owns all the jewellery that was gifted to her at the time of the marriage.
(c) I find that the husband owns the car gifted to him by the wife's mother around the time of the marriage, on a 100% basis.
[76] I make no further order with respect to occupation rent or other amounts claimed.
Costs
[77] Cost submissions may be made in writing on or before January 10, 2014.
M.A. SANDERSON
Released:
Court File No. FS-12-382093
Date: 20131212
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DAN LI
(Applicant)
- and –
YIMING MEI
(Respondent)
REASONS FOR DECISION
M.A. SANDERSON J.
Released: December 12, 2013