COURT FILE NO.: FS-09-348548
DATE: 20140606
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY LAW LIST
BETWEEN:
HONG YAN ZENG,
Applicant
– and –
PENG FEI FU,
Respondent
Unrepresented and acting in person
Unrepresented and acting in person
HEARD: APRIL 7, 8 and 9, 2014
JUDGMENT: GREER J.:
[1] The Applicant, Hong Yan Zeng (“the Wife”), and the Respondent, Peng Fei Fu (“the Husband”), were married on June 1, 2000 in Beijing, China. Their daughter, Jin Shu Fu (“the daughter”) was born on May 30, 2001. She is presently 13 years of age. The family moved to Canada and has been living in Ontario since July 5, 2002. All are Canadian citizens. The Wife is 37 years old and the Husband 47 years old. They separated on April 18, 2008, after 8 years of marriage.
[2] Although the parties have been separated for nearly 5 years, they have been unable to resolve any of the issues between them. In the early years, after their separation, the parties were represented by counsel. They now appear before me as unrepresented litigants. While a Trial Record was filed and other documentation filed, neither party presented the Court with or referred to any case law or any statute or Family Law Rules. Any case law, statutes and Rules referred to in this Judgment, were added to the Judgment by me.
[3] The parties now come before the Court on the following jurisdictional and substantive legal issues:
(a) What is the effect of the legal decisions made by the Court in China regarding divorce, child custody and child support and property issues?
(b) What is the effect of the Wife’s Application for the same relief in this Court as was heard and determined by the Court in China?
(c) Is the Wife entitled to an Order for Spousal Support by this Court?
(d) Is the Wife entitled to an Order by this Court for Child Support and Section 7 extraordinary expenses for the parties’ daughter?
(e) Is the Wife entitled to an Order by this Court for an Equalization payment?
The Proceedings in China
[4] While residing in Beijing, China, the parties began around December 1999, living together in a rented apartment. They were married in China on June 1, 2000. They purchased their apartment in Beijing on November 14, 2001, after their marriage. The title to the apartment was taken solely in the Husband’s name.
[5] The Wife says that she learned, after they separated on April 18, 2008, that the Husband, on September 19, 2008, had entered into a private agreement with his mother for the purpose of transferring the ownership of the apartment in Beijing to her. The Wife saw this as an attempt to try to transfer the ownership of the apartment out of the Husband’s name to prevent her from claiming an interest in it.
[6] With this knowledge, the Wife flew to Beijing and began a matrimonial proceeding in China. She says it was to protect her rights. In that proceeding, the Wife asked for relief respecting the apartment and for a divorce and other relief. Under the September 19, 2008, Agreement entered into by the Husband and his mother respecting the transfer of the ownership of the apartment to her, the mother was to pay the sum of RBM 300000 for the apartment. A copy of that Agreement was entered in the proceeding as an Exhibit and has now been translated from Mandarin into English.
[7] The Husband says that the Wife took steps in China before there was any documentation regarding the transfer of the property to his mother there. He denies having signed the transfer document. The Court in China eventually dealt with the issue of the property ownership and it found that the ownership was to be held by the parties in their joint names.
[8] The Husband’s mother then made a claim against the apartment and sued her son. That claim was dismissed by the Court in China on December 17, 2010. In December 2011, the Court in China dealt with the appeal of that finding and the finding was upheld. The apartment therefore is jointly owned by the parties for the purposes of this Trial.
[9] The parties were divorced in China by a Divorce Order dated August 10, 2010. The Court later, on November 3, 2010, issued what is called a “Civil Mediation Certificate”. The Husband appealed the Divorce Order but that appeal also failed. The Court in China confirmed that the Divorce Order remained in place.
[10] The Court in China also gave custody of the daughter to the Wife and ordered that the Husband pay her child support. The support is fixed at 6000 RMB Yuan per month until the daughter reaches the age of 18 years. In addition, the Wife was also ordered to pay the Husband 35,000.00 RMB Yuan within 7 days of the verdict becoming “valid” to retain her interest in the apartment.
[11] The parties agree that they were legally divorced in China.
The Application in Ontario
[12] The Wife was aware that, in Ontario, a party may apply for a Divorce and Corollary relief one year after a married couple separates. She then made an Application to this Court on April 29, 2009, in which she asks for a divorce, spousal support, custody of the daughter, child support, the equalization of the net family properties and the sale of family property.
[13] The Wife ignores the proceedings which she had already begun in China. She did not tell the truth when she failed to answer the question on p.3 of the Ontario Application as to whether there were proceedings elsewhere. The question to be answered was whether the parties or the children had been in a court case before. The Wife answered “no”, despite the proceeding already commenced in Beijing, China.
[14] The Husband served and filed his Answer late on September 10, 2009. He also requested a divorce, custody of the daughter and access to her. He further asks that the Court for an order staying in Ontario, the “proceeding herein relating to property.” He, too, was not as forthcoming as he should have been about the parties’ relationship in his Answer. He said that they “have been able to communicate and co-operate effectively” on issues involving their daughter. This, on the evidence before me, does not appear to be the case.
[15] The Husband seeks an Order for joint custody of the parties’ daughter. He says he is opposed to paying spousal support. He says that the Wife had no right to claim against the Beijing property and wants the issues in China to be determined first, before anything is to be decided in Canada. The two proceedings begun in different jurisdictions overlap each other.
The Ontario Court Orders in place before the Trial took place
[16] Five years ago each party was represented by counsel. Over those years, there were a number of interim Orders made. These are important in the overall picture of the litigation, which is before me. There were several attempts to set the matter down for Trial but each was adjourned for a variety of reasons. The parties were remiss in providing proper disclosure over those years, which contributed to the delays. The jurisdictional issue about the Chinese Court proceeding was never properly examined even when the parties had counsel.
(a) The Order of Mr. Justice Paisley
[17] On July 3, 2009, Mr. Justice Paisley adjourned a Case Conference to allow the Husband to retain counsel. He noted that a Mandarin interpreter was needed and we had one during the Trial. The Wife was allowed to bring on a Motion for custody and support, if she so desired. She set down a Motion to be heard on those issues.
(b) The Order of Madam Justice Mesbur
[18] The Motion was heard on October 13, 2009 by Madam Justice Mesbur. She refused to sever the Divorce from the Corollary relief requested by the parties. A Case Conference was set to be heard in November and a Settlement/Trial Management Conference set to be scheduled, so, as she said, “…the case can proceed to trial expeditiously.” The case never moved expeditiously to Trial.
[19] An interim order was made by Mesbur J. that the daughter, “…will continue to live primarily with the Applicant mother Hong Yan Zeng.” The Husband was given access on alternate weekends from Saturday at 9:00 a.m. to Sunday at 6:00 p.m., continuing on Mondays of long weekends. The parties were to share the daughter’s holidays. The Husband was given the right to receive third party records about the daughter, and the parties were to consult about all major health and educational issues for the daughter.
[20] With respect to child support, the Husband was ordered to pay the Wife $755 per month commencing October 1, 2009, based on his likely income of $84,500 per annum. This was to be adjusted by the Trial Judge if the income figure changed. The Husband was also to pay 75% of the daycare/babysitting costs fixed in the amount of $337 per month and 75% of all dental costs as they occurred for the daughter. The extraordinary expenses were fixed at $90 per month to be paid by the Husband also commencing October 1, 2009. The issues of the daughter’s summer camp fees and contributions to her RESP were to be left to Trial.
[21] Spousal support was also dealt with by Mesbur J. She ordered the Husband to pay interim spousal support to the Wife of $775 per month commencing October 1, 2009. She said that figure, “may be” varied at Trial. She awarded the Wife $1,500 in Costs.
(c) The November 18, 2009 Order of Mr. Justice Paisley
[22] The parties were ordered to produce and exchange a long list of documentation within 30 days of the Order. It included financial disclosure, proof of S.7 expenses when occurred, proof of debts claimed at the date of separation, the Wife’s income tax returns from 2006 onward, proof of assets and values, including the Husband’s pension with the Bank.
(d) The November 24, 2010 Order of Mr. Justice Grace
[23] The parties appeared before Mr. Justice Grace on a Trial Management Conference. It was to continue in December. The parties were allowed to bring on Motions and at liberty to question one another. The Trial was set for 3 days in mid-March 2011.
(e) The 2011and 2013 Orders of Mr. Justice Czutrin
[24] On February 25, 2011, the Trial date was vacated and Mr. Justice Czutrin ordered that a further Trial Management Conference be held. The parties were, at that point, waiting for the Chinese Court to deliver a decision about the property. The parties again appeared before him on June 20, 2011. The parties wanted to proceed to trial here in the Fall of 2011, only on the validity of the Divorce in China. Full disclosure had still not been made by the parties. They did agree upon the terms of an Order allowing either party to travel outside the country with the daughter.
[25] On November 30, 2011, the parties were ordered to file Affidavits no later than December 2, 2011 and to exchange Factums by that date, for a Trial on the discrete limited issues of the Chinese Divorce and spousal support.
[26] On June 6, 2013, the parties attended on a Mediation to resolve disclosure issues between them. A Memorandum of Understanding was reached by the parties. It sets out the disclosure details which each party agreed to comply with before the Trial took place. Various other interim motions took place.
[27] On October 23, 2013, Czutrin J., at a Case Conference, made a detailed disclosure Order, as the parties had still not properly complied with financial disclosure so that the net family property issues could be dealt with.
(f) The December 3, 2012 Order of Madam Justice Goodman
[28] The Trial of the 2 issues took place on December 5, 2011 before Madam Justice Goodman. Her Judgment was delivered on December 3, 2012. She found the Divorce granted in China to be valid and enforceable by this Court. She then, in part, made the following Orders, numbered as they appear in her Judgment:
The claims for corollary relief that have been made under the Divorce Act are stayed.
Upon the applicant filing with the court an order vacating the custody order obtained in China, the claims in this court relating to custody of and/or access to Jing Shu Fu, born May 20th, 2001, shall proceed under the CLRA.
The issue of the entitlement of the respondent to repayment of the temporary spousal support he paid under the order of Mesbur, J., dated October 13th, 2009 after the divorce was granted in China, shall be adjourned to the trial judge, such that evidence may be adduced at that time as to the actual date upon which the divorce was granted in China (that is, November 3rd, 2009 or August 10th, 2010); the issue whether the repayment of temporary spousal support paid after the divorce was granted is automatic or a discretionary matter; and the issue of the set-off of any amount that may be required to be repaid by the applicant against any amount(s) owing by the respondent to the applicant can be considered. They may well have either obtained tax relief or paid tax on the support paid in 2009 and 2010, which issue may also have to be considered.
[29] On February 28, 2014, Goodman J. delivered an Endorsement with respect to the Costs of the Trial before her. She ordered the Wife to pay the Husband the sum of $5,500 plus HST and disbursements of $890 plus HST. I calculate HST to be $830.70. I find that the total of these Costs is $7,220.07. The Wife is given the right to set off these Costs against any equalization payment that may be awarded to her by me at Trial.
[30] In any event of the cause, I order that the Wife pre-pay the total HST awarded, which I have calculated as $830.70, by certified cheque or bank draft to the Husband within 30 days after the date of this Judgment. The Husband shall then immediately remit the amount payable to the Minister of Finance, Ontario, together with a copy of the issued and entered Judgment arising out of this Trial. I make such an Order since the HST cannot be subsumed into a set-off against any equalization payment the Wife may receive. The HST costs are personal to the Wife and must be remitted to the Minister of Finance and cannot be set-off with the rest of the Costs she owes to the Husband.
(g) The July 25, 2013 Order of Mr. Justice Penny
[31] Despite the fact that Goodman J. ordered the Wife to get the Chinese Order vacated respecting child support, the Wife again brought on another Motion for child support in Ontario. Mr. Justice Penny noted that, “…the issue of entitlement to support is clouded by a complex conflict of laws question involving Chinese law and procedure.” He also noted that the Wife had failed to do this. The Wife now says there is no procedure in China to do what she was ordered to do.
[32] The Wife’s support Motion was dismissed and she was advised to move before Goodman J. to vary the stay Order, on proper evidence of Chinese law and procedure.
(h) The October 3, 2013 Order of Madam Justice Croll
[33] The Wife, with counsel, moved before Madam Justice Croll, seeking to lift the stay imposed by Goodman J. The Husband told her that he had a letter from a Chinese lawyer about the issue and he was ordered to give the Wife a copy of it. In exercising her inherent parens patriae jurisdiction, Croll J. made an interim Order for child support until the issue of Chinese law is resolved. She ordered the Husband to, “…pay the sum of $880 to AM within 7 days on a without prejudice basis.” It was based on the Husband’s income of approximately $100,000 on that date. The Husband complied with that Order and made the one payment. There was no reference to on-going child support in that Order.
(i) The December 19, 2013 Order of Madam Justice Herman
[34] The Husband brought on this Motion and the Wife did not appear, although duly served. The Wife had not complied with the disclosure Orders of the Court and had not provided her income tax information and copies of her tax returns. The Husband asked for Costs of the attendance to try to obtain disclosure and these Costs were reserved to the Trial Judge. A copy of that Endorsement was e-mailed to the Wife, so she would be aware that the Costs thrown away that day are to be determined by me as the Trial Judge. An e-mail was apparently sent by the Wife at 8:51 a.m. saying she was ill.
(j) The January 7, 2014 Order of Madam Justice Frank
[35] The Husband again tried to obtain proper disclosure from the Wife. She again did not appear and again said she was ill. The Husband wanted the Wife to sign a direction to CRA to obtain the Wife’s income tax information, which she had been ordered to produce months before this appearance. She was ordered by the Court to sign the direction to CRA. Again, Costs of the day were reserved to the Trial Judge and a copy of the Court’s Endorsement was e-mailed to the Wife. By the time the Trial began, the Wife finally provided the Court with her Income Tax information.
Analysis
1. The Jurisdictional Issue
[36] Under the Divorce Act, S.C. 1967-68, c. 24, s.22, a divorce granted in a foreign jurisdiction is valid if either:
At least one of the former spouses was ordinarily resident in the foreign jurisdiction for at least one year immediately preceding the commencement of proceedings for the divorce, or
At least one of the former spouses had a real and substantial connection with the foreign jurisdiction.
There is also case law to the effect that the limitations on the court’s jurisdiction cannot be altered by the parties’ consent.
[37] It is clear that the Court in China assumed jurisdiction in the proceeding, making Orders that not only dealt with the divorce but those dealing with child custody, child support and property rights. There is nothing in the translated copies of the Orders made by that Court which set out why the Court agreed to hear the Wife’s proceeding. It knew that the parties were married in China, that their daughter was born there and that the parties, while now resident in Ontario, Canada, owned the apartment in Beijing. In addition, both of the parties have parents who still live in China.
[38] This case is similar, in many respects, with that of Okmyansky v. Okmyansky (2007), 2007 ONCA 427, 86 O.R. (3d) 587 (C.A.). There the Court made a thorough and detailed analysis of the applicable sections of both the Family Law Act, R.S.O. 1990, c.F.3 (“the FLA”) and the Divorce Act in coming to the conclusions it did. I rely on those sections without repeating them in my analysis.
[39] In Okmyansky, supra, the parties were married in Russia and lived in Ontario for 6 months. The husband then returned to Russia and obtained a divorce. The wife brought an application in Ontario for support under the Divorce Act or the FLA and for a division of assets under the FLA. The Ontario Court found that the divorce in Russia was a valid divorce but found that the parties’ last common residence was in Ontario. It held it would not be appropriate to stay the wife’s application. The husband appealed.
[40] The appeal was allowed in part. The Court of Appeal held that an Ontario Court does not have jurisdiction to hear and determine corollary relief under the Divorce Act, following a valid divorce in a foreign jurisdiction. Therefore that portion of the wife’s application requesting corollary relief, in Okmyansky, supra, under the FLA, was stayed.
[41] Since the divorce in Russia was valid, the Court of Appeal also found that a “former spouse” is not entitled to claim support under the FLA. Therefore that portion of her application requesting spousal support was stayed.
[42] The Court, however, found that the Ontario Court had jurisdiction to hear and determine an equalization claim by a former spouse following a valid divorce in a foreign jurisdiction. It also found that the term “foreign spouse” in Part I of the FLA was not restricted to a former spouse divorced in Canada. See: paras. 31-42 of Okmyansky, supra.
[43] In coming to these conclusions, the Court of Appeal looked at the definition of a “corollary relief proceeding” in S.2(1) of the Divorce Act, which means a proceeding in a court in which either or both former spouses seek a child support order, a spousal support order or a custody order.
[44] The Court of Appeal also applied certain principles followed in Rothgiesser v. Rothgiesser, 2000 CanLII 1153 (ON CA), [2002] O.J. No. 33, 46 O.R. (3d) 577 (O.C.A.) and Trotter v. Trotter (1992), 1992 CanLII 8600 (ON SCDC), 90 D.L.R. (4th) 554, 40 R.F.L (3d) 68 (Ont. Gen. Div.), in coming to the decision it did.
[45] A useful analysis of S.22 of the Divorce Act, is set out in Stephen G.A. Pitel & Nicholas S. Rafferty, Conflicts of Laws (Toronto: Irwin Law, 2010). On p.409, the authors point out that “…it is irrelevant whether the foreign tribunal took jurisdiction on the basis of one party’s ordinary residence for one year or on some other basis.” On P.11, the authors also analyze what is a “domicile of origin”. In the case at bar before me, both parties’ domicile of origin is China. Both parties were born there, lived there for many years and have family there. While the parties then moved to Canada, I find that the Wife, in going to China to commence legal proceedings, had not made Canada her domicile of choice.
[46] The authors, supra, also point out at p. 24 that an “ordinary residence” is not necessarily lost on the adoption of a new ordinary residence. It is also possible for an individual to have more than one ordinary residence at a given time. See: Mester v. Kummu (1957), 1957 CanLII 424 (ON SC), 11 D.L.R. (2d) 217 (Ont. H.C.J.).
2. Child Custody and Access
[47] In her Order of 2009, Mesbur J. made no interim or final Order as to custody of the parties’ daughter, who has had her primary residence with the Wife since the parties’ date of separation. The Husband was given an access schedule under that Order. It gave him access every second weekend from Saturday at 9:00 a.m. to Sunday at 6:00 p.m., which was extended to Monday at 6:00 p.m. on long weekends if that was an access weekend. In addition, the parties were to share equally the daughter’s holidays and the daughter’s vacation time. The Husband was also to have access to the daughter’s school, medical, dental and other records if he wished to have them.
[48] At law, when there is no interim or final Order for custody of a child, both parties have equal rights. The Wife asks the Court to grant her sole custody of the daughter, given that she has had her primary residence with her for the past 5 years. The Husband asks the Court to grant the parties joint custody of the daughter.
[49] The issue of custody and access was never raised by either party in their many proceedings over the past 5 years until they came to Trial. Neither tried to analyze what had taken place in the order produced by the Court in China that the Wife have sole custody of the daughter. As has been set out in Okmyansky, supra, and the other cases mentioned, child custody is part of the corollary relief as set out in our legislation. Since the Chinese custody order grants the Wife sole custody of the daughter, I have no jurisdiction to vary that order.
[50] The Court in China also ordered the Husband to pay child support to the Wife. It quantified the amount of such support to be paid monthly. Since child support is also corollary relief, I have no jurisdiction to vary that order. A motion judge has no jurisdiction to vary the order for child support. See: Leonard v. Booker, 2007 NBCA 71, [2007] N.B.J. No. 381 (N.B.C.A.).
[51] Custody Orders fall within S. 16(4) of the Divorce Act, where the Court may make an Order granting custody of, or access to, any or all children of the marriage to any one or more persons. Under S.16(5) of that Act, if one spouse is granted access to a child of the marriage, that spouse has the right to make inquiries, and be given information as to the health, education and welfare of the child. In her interim Order respecting child support, Mesbur J. gave the Father certain rights, and he dutifully paid the interim child support in the face of the order made by the Court in China.
[52] I asked the Husband to provide me with a list of dates on which he had access to his daughter over the years leading up to this Trial, since the Wife said he had not exercised regular access with the daughter. The Wife’s position is that the Husband has not accepted his responsibility as a father, since he stopped making interim child support payments from January 2013. This was in accordance with the Order of Madam Justice Goodman, who stayed the interim Order Mesbur J. with respect to spousal and child support for the reasons set out in her decision.
[53] The Husband, did provide me with an outline of an access calendar during which he had access for the period 2009 to 2014. The calendar shows that the Husband began his access immediately in November 2009. Since the Order gave him access every second weekend, the Husband saw the daughter at least one weekend per month each year and sometimes for two weekends. In 2013, the Husband had the daughter with him for 9 straight days during the July holiday when she was not at school.
[54] By the time the Trial commenced, the Husband had only seen his daughter on one weekend during 2014. He says the Wife has prevented him from seeing his daughter because of the Order staying the payment of spousal and child support.
[55] It is the Husband’s position that the Wife thwarted his access visits by not allowing the daughter to spend time with him after the Order Goodman J. stayed both the child support and spousal support payments to be made by him. In giving his evidence under oath, the Husband also says that the Wife did not properly look after the daughter during the period he was paying child support.
[56] The Husband produced examples of what he says was improper footwear the daughter had on when she came to stay with him. The Wife denies that this had belonged to the daughter. In my view, the Husband has a genuine interest in seeing the daughter, is interested in her well-being and wants to have a closer relationship with her.
[57] I find the Wife, on the other hand, to be very angry about the issue of the loss of both spousal and child support. She seems to be using those issues to thwart the Husband’s access to the daughter.
[58] Access is the right of a child and not the right of a parent. A child has a right to see both parents equally unless the Court orders otherwise. I am deeply concerned that the Wife’s anger has coloured her view as to how access operates. She has done nothing that I could see to foster a relationship between the Husband and their daughter, which she has an obligation to do.
[59] The Husband produced a picture album of places he and the daughter had visited on access times. In addition, he has continued to solely fund the daughter’s RESP so that there is now $32,930 held in the account he administers for the daughter. It is invested through the Bank of Nova Scotia. Mr. Calvin Chung, a Personal Banking Officer with that Bank stated in a letter of May 24, 2013, confirmed the existence of the RESP#554-34165, stating that the funds and shares are “…currently sitting at Itrade Inc. with the sole purpose for education funds for Jin Shu Fu.”
[60] The Husband is very supportive of the daughter doing well in school. He wants her to attend university when she graduates from high school and there will be money for her in this RESP to meet some of her needs.
[61] In the circumstances of this case, in my view it is in the best interests of the daughter to have an Order that gives each parent as much contact with the daughter as possible. While I would like to be able to grant the Husband joint custody of his daughter, given that custody was dealt with by the Court in China, I have no jurisdiction to do so.
[62] The Husband shall, however, have an equal right to all information regarding the daughter’s education and shall be entitled to receive copies of her education, medical and health records, attend all school functions or activities in which the daughter participates.
[63] I can, however, in exercising my right of parens patriae, increase the Husband’s access to the daughter and I do so on the following terms:
(a) The Husband shall have the access granted by Mesbur J. plus expanded access during the week when he has no weekend access. It shall be called Week I. His access shall be expanded so that he sees the daughter on the Wednesday of Week I after school to Thursday morning, when the daughter shall be dropped off by him at her school. She will return to the Wife’s home after school on the Thursday.
(b) During Week II, in which the Husband has weekend access, he shall continue to have access to the daughter from after school on Friday until Monday morning when he shall drop the daughter off at her school. She shall then return to the Wife’s home that evening.
(c) The Wife shall have the daughter with her on all other times during Weeks I and II, subject to the holiday access set out herein.
(d) This pattern shall continue each week until further Order of this Court unless the Husband and Wife agree otherwise in writing.
(e) The parties shall divide the Christmas week, the March-break week and the months of July and August equally between them as they agree in writing well in advance of these holidays. If they cannot agree in writing, they will have to return to Court on that issue.
(f) Any statutory holiday that falls on a Monday, shall be divided between them with the Wife having the first one following January 1 each year, with the Husband the second one and so on, even though the Monday may fall on either party’s access time or they may otherwise agree in writing.
(g) I make no Order as to the daughter’s attendance at summer camp, given that she is 13 years of age and there is no record of her having attended a summer camp. The Husband and Wife, however, can agree in writing on this if they wish the daughter to attend such camp, with the cost being shared by them in the 75:25 proportion as set out in the Order of Mesbur J.
(h) The issue of the daughter’s RESP has already been dealt with. The Husband shall continue to make whatever payments he is able to make and he shall provide the Wife with a copy of the statement provided by the Bank at the year-end each year. The Wife may start her own RESP for the daughter if she wishes.
3. The issue of Spousal Support
[64] Since the Chinese Order governs corollary relief, as noted above, the Wife is entitled to no spousal support, as the Court there granted none. The Wife is unable to use the laws of Ontario to now gain spousal support for herself. Even if she had qualified for such spousal support in Ontario, it would have been limited to a range of 6-8 years, given the short duration of the parties’ marriage.
[65] The Wife did improperly receive interim spousal support of $755 per month under the Mesbur J. Order from October 2009 to December 2012, when it was stayed by the Order of Goodman, J. At $755 per month, for 39 months this amounts to $29,445. Since it was taxable in the Wife’s hands and deductible by the Husband, the real affect on the Husband was less, given his rate of tax.
[66] The Husband asked the Court to refund him for paying the Wife spousal support since he always took the position that she was not entitled to it. There was a large disparity in the parties’ incomes during the years she received it. Her income was between $26,000 and $36,000 in the years in question. In 2013, the Wife became unemployed for a period of time. She is now employed.
[67] I make no Order that the Wife repay any of these amounts, given my findings below with respect to retroactive child support.
4. The issue of Child Support
[68] The Wife has provided no Order from the Chinese Court saying that the child support order has been rescinded by it. As has been noted earlier in this Judgment, the Court in China set the figure of 6000 RBM Yuan as child support to be paid monthly by the Husband. The Wife says this is equal to about $916 Canadian per month.
[69] Under the Interim Order of Mesbur, J., the Husband dutifully paid the child support at $755 per month until it was stayed by the Order of Madam Justice Goodman on December 3, 2012.
[70] Since I am unable, at law, to change the corollary relief as noted earlier in the Judgment, I can, in my role as parens patriae, consider what is in the best interests of the child. In that regard I am changing the amount of child support to be paid to bring it up to meet the Child Support Guidelines, based on the Husband’s income over the period in question.
[71] The Husband’s income tax Notices of Assessment show his gross income for the years in question and the Guidelines support as follows: (see Schedule A for calculations):
2008 – income of $93,602 results in a payment of $829 per month
2009 - income of $88,360 results in a payment of $788 per month
2010 - income of $98,161 results in a payment of $865 per month
2011 - income of $128,775 results in a payment of $1,105 per month
2012 - income of $111,489 results in a payment of $970 per month
2013- income not yet known, so it is based on $970 per month
2014- is to be based on 2013 income so I have used $970 per month
[72] A Judge of the Court in Ontario has an inherent jurisdiction over minors under the sovereign power of guardianship, which flows from the role it exercises of parens patriae. Since I have exercised that jurisdiction with respect to the quantum of child support the Husband should have paid from the date of the Order of Mesbur J. in October 2009, I find that the Husband owes child support arrears of $24,680 from October 2009 to May 2014.
[73] An Order shall go that the Husband pay those arrears at the rate of $1,000 per month in addition to his regular child support payments until fully paid. He shall be given credit for the $880 he paid under the Order of Croll J.
[74] The Wife asks for retroactive child support payments from the date of separation of April 18, 2008 to December 2008 and for the additional 9 months in 2009 until the Mesbur J. Order was made in October, 2009. This would result in an additional payment in 2008 of 8 months of $6,632 and an additional 9 months in 2009 of $7,092 for a total of $13,742. I make no Order for arrears during that period, given that the Wife received spousal support here in Ontario to which she was not entitled at law.
[75] The Husband shall send the Wife a copy of his Income Tax Return on June 1 each year and calculate whether there are any adjustments to be made to the child support given a change in his income in that year. He shall adjust his 2014 child support payments based on his 2013 as shown on his 2013 Income Tax Return. He shall forward any arrears of child support to the Wife in July of the tax- year in question. He shall also send her a copy of his Notice of Assessment each year when it is received by him.
5. Section 7 Expenses
[76] The Husband had been paying the Section 7 expenses fixed by Mesbur J. at $90 per month. This did not include the RESP payments being made. He also paid 75% of the daughter’s urgent dental care and daycare/babysitting costs, with the Wife paying 25%. The daughter is now 13 years old and no longer requires daycare or babysitters. The Husband shall continue to keep the daughter covered with his benefits through his employer.
[77] The parties must agree on what are proper and reasonable Section 7 expenses for the daughter, the cost of which they share in proportion to their respective incomes each year. The Wife says that for the 2013 year, the S.7 expenses for the daughter include $2,666 for piano lessons, $418 for French classes, $84 for swimming lessons and $2,038.25 for childcare for a total of $5,206.25. She then adds additional expenses for the RCM piano examination of $240 and $527.05 for theory lessons and texts. In 2013 she says her income was $19,454.53 and the Husband’s was $107,810. She asks that the Husband be ordered to pay $188.21 per month for these expenses, none of which he had approved of.
[78] The Wife also says that the Husband has failed to pay all of his 75% of the dental expenses he was ordered to pay his share of $724 incurred in 2011, which is $543. I order the Husband to pay that amount to the Wife when she provides a current statement showing that she actually paid that amount herself. If it is still owing to the dentist, the Husband shall pay the dentist directly upon receiving an invoice from the dentist showing the amount remaining unpaid.
[79] The Husband objects to the childcare expenses as there are no proper receipts for these expenses. Without those taken into consideration, the Husband owes $2,378.25 for his 75%. Of that amount, the Husband was paying $90 per month or $1080 per year for those expenses, which leaves a balance owing of $1,298.25. I order the Husband to pay that amount to the Wife for those S.7 arrears.
[80] On a go forward basis, the parties shall agree on what S.7 expenses are to be paid for the daughter’s activities with them continuing to pay those on a 75:25 basis. The daughter does not require babysitting so that expense will not occur. If the parties cannot agree on those expenses, the Husband shall pay a flat amount of $200 per month as his 75% share to the Wife for those expenses and she shall provide him with copies of receipts showing payments she has made for the various activities. If the payments exceed that amount, the Wife shall bear any overage.
6. The issue of the Parties’ Net Family Property Statements and the Equalization Payment
[81] This Court has the jurisdiction to deal with the issue of an Equalization Payment. As has been noted earlier in this Judgment, the Equalization Payment is not a Corollary relief under the Act. A spouse can make a claim for such a payment even after the parties have been divorced from one another. Section 7(1) of the Family Law Act states that a former spouse may legally make an Application for an entitlement under S. 5(1) of the FLA. That section mentions that such a claim may be made even after a divorce has been granted.
[82] The parties each prepared Net Family Property Statements which they submitted with their materials. I ordered them both to file amended ones or to correct entries on the ones first submitted. It is the Wife’s initial position that the Husband owes her an equalization payment of $38,088.39. Annexed here as Schedule A is my recalculation of that payment.
[83] With respect to the values of household goods and personal effect, the Husband disputes the Wife’s claim that the Yamana piano was a gift to their daughter from the Wife’s grandparents. The Bank account statement presented by the Husband shows the debit of $3,200 for the piano from the bank account. He also includes e-mails from the store which sold the piano to the family. The value of the piano therefore goes on the Wife’s side of the equation.
[84] On the husband’s side of the equation, I have said that the Husband had items such as the computer, the laptop, the audio equipment and golf equipment, which the Wife values at $2,600. I accept her evidence, as the Husband provided no evidence about these items which he took. On each party’s side of the form, I have said each has other household items worth $500. There is no description of any of these and no receipts that any items were more than just the usual furniture and beds.
[85] I gave neither party a value for the car which remained in the Wife’s possession. It had been in an accident and was not roadworthy so it had no re-sale value. I deleted it from the Wife’s statement.
[86] The Wife accepts most of the Husband’s figures for his various bank accounts and investments, shares and pensions. She says the total is $116,071.15. Included in that amount is the daughter’s RESP shown as having a value of $15,230. In my view, this amount should not be included as part of the Husband’s assets at the date of separation. He made all the payments but the beneficiary of the amount is the daughter when she goes on in her education. This amount should therefore be deducted from her calculation.
[87] The Husband says his figure for those assets is $96,813.51. I accept his figure of $3,994.06 rather than the Wife’s of $3,960.47. The difference is created by the parties using different exchange rates as this is a US$ account. I accept the Wife’s figure of $22,798 for the RRSP. It is the figure shown on the Husband’s documentation. His figure is $22,454.40 but there is no calculation to show how it was reached for the April 18, 2008 date. The same is true of the Scotia investment, which he says is $8,718 and she says is $8,911. I accept the Wife’s two figures of $22,798 and $8,911 as shown on the documents, as there is no calculation shown how the Husband arrived at his figures for the April 18, 2008 date.
[88] Having added all the accepted figures together, I find that the Husband’s assets in that category are valued at $97,138.11 for purposes of his Net Family Property Statement.
[89] The Wife shows that her bank accounts and savings had a total of $19,674.06 on the date the parties separated. The Husband has totalled the Wife’s assets as having a value of $45,045.55 at separation. He says that the Wife failed to include as part of her savings, a TD Waterhouse account with a value of $7,974.56 and a TD GIC at $8,206.83. He has included in his brief, copies of the vouchers for both items. The TD Waterhouse is shown to be invested in mutual fund units. The Statement is for the period April 1, 2008 to June 30, 2008.
[90] The TD GIC was purchased on August 2, 2007 for $8,000 with interest of 3.65% due August 2, 2008. The Husband, in his calculation, accrued the interest to the date of separation. It is the Wife’s evidence that she cashed it in prior to maturity and put the money in the bank. I asked her to provide me, after the Trial was completed, with proof of that statement. She did so. She says it was redeemed on November 5, 2007 and was deposited in her chequing account showing when the amount came out to be invested.
[91] There is a deposit of $10,294.82 going into the Wife’s account on November 5, 2007 with the same amount withdrawn on that date. It became part of the GIC shown on her NFP statement of $10,168.49. Her Scotiabank statement for her Money Master account shows a balance of $10,389.36 in her account as of April 30, 2008. I am satisfied on the evidence that his was the case and that the amount was, at separation, included in her bank account as shown.
[92] The Wife says that the $7,914.81 in her bank account at separation is money her mother brought from China, when she came to visit her in Canada. As a visitor, says the Wife, her mother could not deposit money in a Canadian account. There is, however, no evidence to support this. Even if there had been, there is no evidence that the mother never intended it not to be the daughter’s money. On its face, the account was never a trust account. I find that the sum of $7,914.81 belongs on the Wife’s side of the equation. I total the Wife’s assets in this category at separation as $27,561.87 at separation.
[93] The parties disagree about what debts the Wife had at separation. The Wife says her VISA bill was $353.33 at separation and the Husband says it was $151.82. The Wife’s actual VISA statement shows that as of March 27, 2008, the Wife owed $133. The Husband then accrued interest to April 18, and came up with the figure of $151.82. The Wife gave no calculation as to how she arrived at it but I assume she spent more after March 27. Even if that were the case, those debts show up on the statement for April 27 payment. The Husband’s calculation is therefore correct.
[94] The Husband shows his debts as $30,937.84. One of these debts is the amount of $19,578.59 which he says “no job parent support.” There is no evidence to show that the Husband had a legal obligation to pay his parents this sum. There is no promissory note to say that he would pay the money back to them if they had lent it to him. If it was advanced and never paid back, then it is considered a “gift” to him and cannot be deducted as a debt.
[95] The Husband’s evidence to support this alleged debt is a document that has been translated from Chinese to English, in which the mother says that they had advanced to him 80,000 Yuan to assist with his studies between 2000 and 2002. She says “When you have the money you will return it to us, right?” He replies that he has discussed it with Hong Yan and he agreed to the parents’ request for repayment.
[96] There is no documentary evidence showing that money coming out of the parents’ bank account and a bank draft being sent to the Husband. There is no document showing a deposit of that sum into his bank account and no signed Promissory Note witnessed by the Wife. I therefore disallow that sum as a debt and find that the Husband’s debts at separation to be $11,359.25 for purposes of his Net Family Property Statement.
[97] The Husband has provided proof that at the date of marriage, he had the sum of $20,777.40 (converted from Yuan) in an account in China. He provided a translation from the Chinese to English. He therefore may deduct this sum as the value of his assets coming into the marriage.
[98] I have not taken the Chinese property into account in the compilation of each party’s Net Family Property, as it is jointly owned by them and its value has no effect on the balances in their statements.
[99] I find that the Wife’s Net Property is valued at $31,116.05 at the date of separation and the Husband’s at $68,101.48. I order the Husband to pay to the Wife and Equalization payment of $18,492.72. Interest shall start to run at the Courts of Justice Act rate after the date of this Judgment if the sum has not been paid. See Schedule B for calculations.
Conclusions and Orders
The Order of Goodman J. made December 3, 2012, is hereby set aside.
The parties’ divorce in China is valid and the parties were divorced on August 10, 2010, being the date of Mediation summary issued by the Court in China.
The Order of the Court in China giving the Wife sole custody stands, as it is corollary relief under the jurisdiction of that Court.
The Superior Court of Justice in Ontario has no jurisdiction to award the Wife any spousal support as it is corollary relief which cannot be changed or varied in this Court. Each of the Wife and Husband provided translated statements about the marriage laws in China. The Husband’s is a translated excerpt from “Marriage Law of the People’s Republic of China”, which seems to indicate that if one party lives in poverty, the Court has the power to make an Order if the two parties cannot agree. The Wife provided a translated statement from an Attorney at Law in Beijing which confirms that the date of the Divorce is August 10, 2010. He says there is no right for the Wife to “…ask a court to vacate a court order which has been in effective (sic) (including the order of custody and child support).” This statement is dated May 4, 2013.
I have varied the Child Support Order issued by the Court in China by exercising my parens patriae jurisdiction to bring the child support payments into line with the Ontario Child Support Guidelines. I find that there are arrears of child support in the amount of $24,680 with adjustments to be made when the Husband receives his Notice of Assessment showing his income for 2013. The arrears shall be paid in the amount of $1,000 per month until fully paid. The Wife asks for retroactive child support in the amount of $13,742 for the period from the date of separation until the interim order was made by Mesbur J. I accept the additional figure as retroactive child support. Child support shall be paid on the first of every month and shall continue until the first of the daughter completing her first university degree or is over the age of majority and no longer in school full-time or her death.
I have accepted the interim child access provisions ordered by Mesbur J. in her interim Order and added to that an additional Wednesday overnight access for the Husband, as set out in this Judgment.
The Husband asks that he be reimbursed in the amount of $31,000 for all the spousal support he paid prior to the Order of Goodman J. staying that spousal support. I hereby set off that support against the child support arrears. The Husband received a tax benefit while paying that support, which in my view is close to equalling the difference now asked for in retroactive child support. While the amounts may not be quite equal, in my view it is equitable in the circumstances of this case. An Order shall go accordingly to that effect so that the Husband does not have to pay the retroactive arrears of child support to the Wife. The Wife’s claim for these is set-off against the Husband’s claim for repayment of spousal support of him.
The S.7 extraordinary expense orders I have made can be summarized as follows:
(a) The Husband shall continue to keep the daughter covered under any benefit plan he receives through his employment.
(b) On-going S.7 expenses shall be shared by the parties with the Husband paying 75% of them and the Wife 25%.
(c) The Husband shall pay to the Wife the sum of $1,298.25 in arrears of S.7 expenses for the 2013 year. In addition, he shall pay her $543 for his share of the balance owing to the dentist since 2011.
(d) The Husband shall pay to the Wife the sum of $200 per month as his 75% towards the daughter’s S.7 expenses. The Wife is responsible for 25% of those expenses. At the end of each calendar year, an accounting shall take place of what has been paid for the daughter. The Wife shall provide copies of paid receipts for all S.7 expenses during each calendar year.
In her Order, Goodman J. when ordering Costs against the Wife, said that those Costs may be set off against any equalization payment the Wife receives. Those Costs total $7,220.07, including $830.70 for HST. In paragraph 30 hereof, I order the Wife to pay that amount personally to the Husband so he can remit it. The balance of the Costs is $6,389.37, which may be set off against the equalization payment owed by the Husband to the Wife.
It is the Husband’s theory that the Wife has not been truthful about her assets at separation, given the later figures shown in her documents. He believes she has hidden assets. This Judgment is not a forensic accounting. I can only rely on the figures which are supported by evidence. Therefore the figures stand as I have found them.
Post-Judgment interest shall run at the Courts of Justice Act rate.
Costs
[100] If the parties cannot otherwise agree on Costs, I will receive brief written submissions from them no longer than 3 pages plus case law on which they rely. They shall address not only the Costs of the Trial but the Costs left for me to decide from two of the interim motions brought on shortly before Trial. They shall be sent to me care of Judges’ Administration, 1st floor, 361 University Avenue Court House within 30 days of this Judgment/Final Order. If one party is asking for Costs against the other party, since each was self-represented at Trial, that party must set out reasons why Costs should be more than that party’s out-of-pocket expenses.
Greer J.
Released: June 6, 2014
COURT FILE NO.: FS-09-348548
SCHEDULE A
Calculation of Child Support Arrears from October 2009 to May 2014
2009 – received $755 but should have received $788 per month – owes $90
2010 – received $755 but should have received $865 per month – owes $1,320
2011 – received $755 but should have received $1,105 per month – owes $4,200
2012 – received $755 but should have received $970 per month – owes $2,580
2013 – received no payment as per Stay under Goodman J. Order – using $970 per month
- owes $11,640
- 2014 – 5 months at $970 – owes $4,850
TOTAL $24,680
COURT FILE NO.: FS-09-348548
SCHEDULE B
Net Family Property Statement
TABLE 1: Value of assets owned on valuation date
| ITEM | APPLICANT | RESPONDENT |
|---|---|---|
| 1. Land in China – jointly owned | ||
| 2. Household Items and Vehicles | ||
| a) Car – in accident – no value | ||
| b) Yamaha Piano | $ 3,200.00 | |
| c) LAPTOP, Audio, Golf, etc. | $ 2,600.00 | |
| d) General Household items | $ 500.00 | $ 500.00 |
| 3. Bank Accounts, Savings, Securities and Pensions | $ 27,561.87 | $ 97,138.11 |
| TOTAL 1 | $ 31,267.87 | $ 100,238.11 |
TABLE 2: Value of debts and liabilities on valuation date
| ITEM | APPLICANT | RESPONDENT |
|---|---|---|
| 1. | $ 151.82 | $ 11,359.25 |
| TOTAL 2 | $ 151.82 | $ 11,359.25 |
TABLE 3: Net value on date of marriage of property (other than a matrimonial home) after deducting debts or other liabilities on date of marriage (other than those relating directly to the purchase or significant improvement of a matrimonial home)
| PROPERTY ITEM | APPLICANT | RESPONDENT |
|---|---|---|
| 3. | $ 20,777.40 | |
| TOTAL 3 | $ 20,777.40 |
TABLE 4: Value or property excluded under subsection 4(2) of the Family Law Act
| ITEM | APPLICANT | RESPONDENT |
|---|---|---|
| Nil | ||
| TOTAL 4 |
SUMMARY
| APPLICANT | RESPONDENT | |
|---|---|---|
| TOTAL 2 (from page 1) | $ 151.82 | $ 11,359.25 |
| TOTAL 3 (from page 2) | $ 20,777.40 | |
| TOTAL 4 (from page 2) | $ Nil | $ Nil |
| TOTAL 5 ([Total 2] + [Total 3] + [Total 4]) | $ 151.82 | $ 32,136.65 |
| TOTAL 1 (from page 1) | $ 31,267.87 | $ 100,238.11 |
| TOTAL 5 (from above) | $ 151.82 | $ 32,136.65 |
| TOTAL 6: NET FAMILY PROPERTY ([Total 1] minus [Total 5]) | $ 31,116.05 | $ 68,101.46 |
COURT FILE NO.: FS-09-348548
DATE: 20140606
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY LAW LIST
BETWEEN:
HONG YAN ZENG,
Applicant
– and –
PENG FEI FU,
Respondent
JUDGMENT
Greer J.
Released: June 6, 2014