COURT FILE AND PARTIES
COURT FILE NO.: FS-11-17636
DATE: 20140725
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jing (Sarah) He, Applicant
AND:
Xiao Hui Fu, Respondent
BEFORE: Kiteley J.
COUNSEL: Yehuda Levinson, counsel for the Applicant
Annie A. Cheng, counsel for the Respondent
HEARD: July 3, 2014
ENDORSEMENT
[1] This is a motion by the Respondent for an order for sole custody of Kevin born June 22, 1999 with generous and liberal access to the Applicant; an order removing paragraphs 3 and 4 of the order of Czutrin J. dated December 13, 2011; an order for summary dismissal of the application; alternatively, an order for directions “with respect to the continuation of this non-meritorious application”; and costs.
[2] This is also a motion by the Applicant for an order requiring the Respondent to fulfill undertakings on or before July 25, 2014 failing which the Applicant shall be free to bring a motion seeking dismissal of the Answer and Claim; and for an order requiring the Respondent to deliver the information and documentation pursuant to the request made under cover of letter dated May 22, 2014 on or before July 25, 2014, failing which the applicant shall be free to bring a motion seeking dismissal of the Answer and Claim.
[3] The Respondent acknowledges that he has undertakings outstanding. He says that he is unable to answer them because he has been unable to pay his lawyer because of the terms of the order dated December 13, 2011.
[4] The key issue for the Respondent is the order made on December 13, 2011. As it happens, I made an order that preceded that order. On October 13, 2011, when Ms. He was represented, I made an ex parte order restraining the Respondent from depleting assets and more particularly assets at the Bank of Nova Scotia and I adjourned the matter to October 27th. On October 27, 2011, Czutrin J. made an order continuing the October 13th order provided that the Respondent could take $5000 from the Bank of Nova Scotia accounts to pay a retainer to counsel.
[5] On December 13, 2011, Czutrin J. set aside the restraining order dated October 13, 2011 and, on consent of the parties, he ordered in paragraph 2 that both parties were restrained from depleting their respective property in Canada or elsewhere in the world. Paragraphs 3 and 4 are as follows:
The Respondent, Xiao-Hui Fu may withdraw $4000 each month from the Bank of Nova Scotia accounts for his and his children’s living expenses.
The Respondent, Xiao-Hui Fu is also entitled to $25,000 for legal fees and disbursements.
[6] Ms. He issued the Application in 2011. She takes the position that the parties separated in January 2011 in Ontario. Mr. Fu takes the position that the parties separated in 2009 in China and have been divorced both in China (in 2009) and in Ontario (2010). There are major credibility issues as to the date of separation. If Ms. He’s evidence is ultimately accepted, she may be entitled to an equalization of net family property. If Mr. Fu’s evidence is accepted, they were separated more than two years prior to the issuance of the Application and the limitation period has expired. Furthermore, if Mr. Fu’s evidence is accepted, Ontario was not the last common habitual residence of the parties and consequently, Ms. He is not eligible to make a claim for an equalization of net family property.
[7] Since the orders were made in 2011, progress on the case has been slow. At a case conference on February 24, 2012, Mesbur J. made an order that questioning of both parties be completed within 2 months and that requests for information be exchanged within 2 weeks with responses to be delivered within 3 weeks of receipt of the request. That order was not complied with by either spouse. Mr. Fu was examined for discovery over 4 days in January 2014. An interpreter was required and hence the substance of the evidence was consistent with approximately 2 days. Ms. He was examined for 3 days in February and March, 2014. Ms. He has recently hired a professional valuator who has made a request for documents and information in relation to Ms. He’s date of separation.
[8] Each party blames the other for the lack of progress, but I need not establish responsibility for the lack of progress. The point is that the parties appear no closer to resolution than when the order was made by Czutrin J. on December 13, 2011.
[9] For almost three years, the parties have been subject to the order of Czutrin J. Orders of that nature are not expected to last for such a lengthy period of time. In this case, Mr. Fu has been responsible for both of the children: Yue born December 7, 1993 and now in university and Kevin born June 22, 1999 who is in high school. The order permitted Mr. Fu to withdraw $4000 each month from the Bank of Nova Scotia accounts for his and his children’s living expenses. He conceded that he has withdrawn more than $4000 each month. He asks that that restriction on his withdrawals be removed so that he can (a) cover the necessary expenses of him and his sons including university expenses; and (b) pay his lawyer so that he can respond to undertakings.
[10] For her part, the Applicant insists that Mr. Fu has failed to comply with the order by withdrawing more than $4000 per month and has failed to answer undertakings and provide disclosure needed by her business valuator.
[11] Having read the affidavits filed in these motions and the extensive exhibits, it is a challenge to ascertain where the truth lies on many issues. What is apparent is that while, in theory, both Ms. He and Mr. Fu have been subject to the December 13, 2011 order, the evidence is that only Mr. Fu has suffered the consequences. Ms. He is not paying child support. Mr. Fu has been challenged to cover the expenses of the boys, including university expenses for Frank and extra-curricular activities for Kevin and to continue to retain his lawyer in what continues to be a labour-intensive and therefore expensive proceeding. He has provided a budget that indicates monthly expenditures of approximately $7500. He has provided an accounting of withdrawals from the bank account.
[12] I am satisfied that the order of Czutrin J. should be changed to ensure that Mr. Fu has access to his funds in order to support himself and his children and to pay lawyer’s fees and disbursements in connection with this proceeding. There should be no restriction on his use of funds in the Bank of Nova Scotia accounts.
[13] During submissions, counsel indicated that there may be an agreement as to his undertakings but that agreement was not in the form of a written consent. To the extent that he has not already fulfilled undertakings, once he provides the retainer to his counsel, she will assist him in answering his undertakings.
Custody of Kevin
[14] In a consent dated February 24, 2012, the parties agreed to the appointment of the Children’s Lawyer to act for Kevin.
[15] Dan Goldberg of the Office of the Children’s Lawyer became involved. He wrote a letter to both counsel dated June 27, 2014 in which he indicated that he had not been consulted about the date of the motion and was not available. He confirmed in writing what he had already advised the parents, namely that Kevin’s views and preferences are that the status quo continue: Kevin wishes to be in his father’s custody and have access to his mother on alternate Saturdays and Sundays from 11:00 a.m. to 8:00 p.m. and on special other holidays as indicated in his letter.
[16] Kevin is almost 16 years old. Ms. He objects to the making of a custody order at this time. Indeed, at that age, it is often the case that an order for custody is not needed or appropriate. However, Mr. Fu’s affidavit speaks to issues he has had travelling with Kevin, and particularly the fact that in the summer of 2012, Ms. He withheld consent to allow Kevin to travel to China with his father. It is in Kevin’s best interests that these issues be resolved.
[17] On the basis of the position taken by Mr. Goldberg, I am satisfied that it is in Kevin’s best interest that an order of custody be made, subject to the terms contained in Mr. Goldberg’s letter.
Next steps
[18] In an effort to bring matters to a conclusion, Mr. Fu’s counsel has served a motion for summary judgment which was originally returnable January 14, 2014 and has been adjourned to March 17, May 15 and is now scheduled for a full day on November 17, 2014.
[19] The credibility issues could be profound vis-à-vis the date of separation and the integrity of the Chinese and Ontario divorce orders. I observed to counsel during submissions that the credibility issues could mean that the summary judgment motion brought by Mr. Fu which is now returnable November 17, 2014 may not be successful. I queried whether that exercise would be productive and whether there might be an alternate route to explore resolution. I encouraged them to consider other options such as a settlement conference provided that the parties collaborated to ensure readiness. Having reviewed again the evidence filed in connection with the motions, given the extent of the conflict between the parties, I doubt that they are capable of collaboration without a court order.
[20] Rule 2(2) provides that the primary objective of the Family Law Rules is to enable the court to deal with cases justly. Rule 2(3) provides that dealing with a case justly includes ensuring that the procedure is fair to all parties; saving expense and time; dealing with the case in ways that are appropriate to its importance and complexity; and giving appropriate court resources to the case while taking account of the need to give resources to other cases. Pursuant to rule 2(4), the court is required to apply the rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.
[21] This Application cries out for a strategy that will respond to the primary objective. The order I make below is intended to meet that objective. The key issue is the date of separation. I will direct a settlement conference on that issue.
[22] On July 24th, as I was finishing this endorsement, I received from Ms. He a letter attached to which were 24 pages of documents. I have read the letter. I have not read the 24 pages of documents. Ms. He ought not to have forwarded documents to my attention. I will not read them. Mr. Levison should instruct his client that it is not appropriate for her to contact a judge directly. On the basis of the covering letter which I did read and other material filed on her behalf in these motions, I anticipate a lack of co-operation in having this order signed and entered and for that reason I will dispense with approval from her or her counsel.
ORDER TO GO AS FOLLOWS:
[23] The order made by Czutrin J. dated December 13, 2011 is changed by deleting paragraphs 3 and 4.
[24] The Respondent is not subject to limitations on withdrawals from the Bank of Nova Scotia accounts.
[25] Unless he has already done so, the Respondent shall use his best efforts to answer undertakings by August 29, 2014.
[26] The Respondent’s motion for judgment is adjourned to November 17, 2014.
[27] Counsel having agreed as to the amount of costs subject to outcome, Ms. He shall pay to Mr. Fu costs of these motions fixed in the amount of $5000 payable by August 29, 2014.
[28] The Respondent shall have permanent custody of Kevin Fu born June 22, 1999 subject to access to his mother on alternate Saturdays and Sundays from 11:00 a.m. to 8:00 p.m. and holiday periods as outlined in the letter from the Office of Children’s Lawyer dated June 27, 2014.
[29] Ms. He’s consent to travel for Kevin is dispensed with.
[30] The parties shall attend a settlement conference before me on October 10, 2014 at 10:00 a.m. on the following conditions:
(a) By September 29, 2014, the Applicant shall serve and file the following:
(i) settlement conference brief that focuses on the facts and the documents relied on by her to substantiate valuation date in January 2011 and that Ontario is the last common habitual residence;
(ii) sworn financial statement form 13.1 which includes her assets and liabilities as of the valuation dates asserted by the parties, namely: February 2009 (respondent) and January 2011 (applicant);
(iii) net family property statement as of the following valuation dates:
• February 2009
• January 2011;
(iv) Comprehensive offer to settle.
(b) By October 2, 2014, the Respondent shall serve and file the following:
(i) settlement conference brief that focuses on the facts and the documents relied on by him to substantiate valuation date in February 2009 and that China is the last common habitual residence;
(ii) sworn financial statement form 13.1 which includes his assets and liabilities as of the valuation dates asserted by the parties, namely: February 2009 (respondent) and January 2011 (applicant);
(iii) net family property statement as of the following valuation dates:
• February 2009
• January 2011;
(iv) comprehensive offer to settle.
[31] Counsel for the applicant shall confirm the settlement conference in the usual way.
[32] By October 8, 2014 counsel shall make best efforts to prepare a net family property worksheet which they will bring to the settlement conference.
[33] Approval by Ms. He or her counsel as to the draft order to be prepared by Ms. Cheng is dispensed with.
[34] Before the settlement conference is concluded, neither party shall:
(a) Bring any new notice of motion;
(b) Require the attendance of the other party for examinations for discovery or cross-examinations on affidavits.
Kiteley J.
Date: July 25, 2014