SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-15-20202-00

DATE: 20151014

RE: Hong Wang (aka Jennifer Wang), Applicant

AND:

Wei Lin, Respondent

BEFORE: Kiteley J.

COUNSEL: Daniel S. Melamed for the Applicant

HEARD: October 14, 2015

ENDORSEMENT ON 14b MOTION

[1] This is a motion on behalf of the Applicant for the following:

(a) An order that there shall be an abridgment of the time for service and filing of the Motion Materials, pursuant to Rule 3(5) of the Family Law Rules;

(b) An Order validating service of the Applicant’s Application, Financial Statement and Certificate of Financial Disclosure;

(c) An Order that a copy of this Order and any other documents in this proceeding shall be served on the Respondent by e-mail to the Respondent’s e-mail address [email address omitted] and by couriering a copy to the Respondent at the Chinese residential address: [municipal address omitted] in the People’s Republic of China;

(d) An Order permitting any further motion to be heard before the necessity of a case conference on the basis of urgency or hardship or in the interest of justice pursuant to Rules 14(4.2) and 14(6) of the Family Law Rules; and

(e) An Order for costs of this motion payable by the Respondent to the Applicant in the amount of $[no amount inserted].

[2] The notice of motion indicates that counsel relies on Family Law Rules 6(3), 6(15) 8(5).

[3] The following affidavits were filed in support of the 14B motion:

(a) Affidavit of Charley Toby Levitan sworn October 2, 2015 (associate at Torkin Manes LLP)

(b) Affidavit of Nicholas John William Sampson sworn October 2, 2015 (articling student at Torkin Manes LLP). There are 10 exhibits attached to this affidavit including documents used in the proceedings in the High Court of Justice in the British Virgin Islands (BVI), documents filed in this proceeding, letters and emails to various lawyers and to the Respondent sending documents from this proceeding and attempting to effect service.

[4] The Applicant did not file an affidavit. To the extent that I refer to background information below, I have relied on the Application and the affidavits listed above. I do not consider that they are findings of fact but provide the context within which the motion is brought.

[5] The parties were married in China on January 19, 2002. They have children born in 2002 (now 13.5 years old) and 2003 (now 12 years old). They were residents of Toronto from October 5, 2005 to September 2010. Commencing in September 2010, they became residents of Beijing. According to the Applicant, they separated on November 1, 2011 and she came to Canada in April 2012.

[6] In April 2012, the Applicant commenced an Application in the Superior Court of Justice action number FS-12-377681. In the First Application, the Applicant sought a divorce, child and spousal support, custody of the children and various property relief. She relied on the Divorce Act, the Family Law Act and the Children’s Law Reform Act.

[7] At about the same time, the Applicant brought proceedings in the BVI and on April 18, 2012, an ex parte order was made freezing the Respondent’s assets.

[8] According to the Application in this proceeding (the Second Application), the Respondent brought a motion in Ontario to stay the proceedings on the basis that the Court lacked jurisdiction under either the Divorce Act or the Family Law Act. While the Court reserved judgment on the Respondent’s motion, the Applicant moved the children from the PRC to Canada. The Respondent moved for the children’s return to China pursuant to section 40(b)(c) of the Children’s Law Reform Act.

[9] On May 8, 2012, the Respondent commenced family law proceedings in the PRC.

[10] On June 7, 2012, Justice Jarvis concluded that the court did not have jurisdiction to hear and determine the divorce proceedings under section 3(1) of the Divorce Act, on the basis that the Applicant had not been ordinarily resident in Ontario for one year immediately preceding the commencement of the Application, as she and the children were living in the PRC from September 2010 to April 2012.

[11] The Court of Appeal dismissed the Applicant’s appeal and stayed the First Application.

[12] Other steps occurred in the BVI proceedings which I need not detail here.

[13] On June 16, 2014, the Respondent withdrew the family law proceedings in the PRC.

[14] In the Second Application, the Applicant does not seek a divorce, custody, child or spousal support. Acknowledging that the last common habitual residence of the parties was in the PRC, the Applicant seeks a determination of her property rights arising out of the marital relationship in accordance with the law of the PRC and has included the content of an expert opinion which she has obtained about the applicable law. The Second Application does include requests for the following relief:

(a) An order for substituted service on the Respondent;

(b) An Order that the property rights of the parties arising out of the marital relationship be determined in accordance with the laws of the People’s Republic of China;

(c) An Order that the stay imposed on the Application made under FS-12-377681 by the Court of Appeal for Ontario be lifted, save for the Applicant’s claim for a divorce and the equalization of net family property;

(d) An order that the First Application be “combined” with the Second Application on the basis that it would be more convenient to hear those Applications together.

[15] In his affidavit, Sampson deposed that:

(a) he was advised that extensive efforts to effect service had been made and that on that basis, it is reasonable to assume that the Application, Financial Statement and Certificate of Financial Disclosure have come to this attention;

(b) he was advised by the Applicant that it is urgent that the order for substituted service be granted due to the fact that the Respondent has commenced divorce proceedings in China “which put the relief ultimately requested [in the Second Application] in jeopardy”;

(c) he was advised that “because the Respondent and a corporation breached the 2013 undertaking that the Applicant was prompted to apply for and was granted receivership and injunction orders by the BVI and Hong Kong courts in support of the Canadian proceedings. Owing to the extreme and draconian nature of the relief sought and granted, the Applicant is under an obligation to pursue the Canadian proceedings as expeditiously as possible; and it is equally in the interests of the Respondent to have the Canadian proceedings resolved as soon as possible so that consequential disposal of the current BVI and Hong Kong interim orders can follow. Conversely, without an order for substituted service, service on the Respondent would have to be through a “competent authority” and will cause a significant delay of several months, which will not result in justice for any party.”

(d) he was advised that on July 7, 2015 the Applicant commenced another proceeding in the BVI and the hearing is scheduled for December 10 and 15, 2015. The date for the hearing in Hong Kong has not been set but will be after the BVI hearing.

[16] In his affidavit, Levitan said that he had been advised by the Applicant that in July 2015, she “stopped receiving any monies for support of the Applicant and the children” and that the Applicant has a mortgage that is in default, has a request for the children’s private school payment and “has had to borrow monies from family and friends to attempt to meet her day-to-day expenses and legal fees”. And that she advises that “her financial situation is becoming desperate and she will be moving immediately for urgent spousal support and other relief”.

[17] The nature of the motion that the Applicant intends to bring is not specified but based on the Application and the affidavits of Sampson and Levitan it will likely include a request to partially lift the stay issued by the Court of Appeal in the First Application (although the jurisdiction of the Superior Court to lift a stay order of the Court of Appeal is questionable); an order “combining” the Second Application and part of the First Application; and if that relief is granted, an order for spousal and child support.

[18] Exhibit I to the Sampson affidavit is the “2nd AFFIRMATION OF WEI LIN” which appears to be dated September 17, 2015 and appears to have been filed in the BVI proceedings. He responds to the allegation that he breached the undertaking. In addition to giving his evidence on that point, under the heading “Ms. Wang does not have a good arguable case”, he refers to the proceedings in Ontario. It is clear that he has read and understood the Second Application (which had been attached to her affidavit in the BVI proceeding) and he deposed at paragraph 23 that he had not been served with Ms. Wang’s new Ontario proceedings “but have, obviously, reviewed it as part of the evidence filed by Ms. Wang in these proceedings”. He too has an expert opinion as to what law applies to their matrimonial affairs. At paragraph 22, he deposed that on August 10, 2015 he commenced divorce proceedings in the PRC. At paragraph 24, he deposed that it is his belief that the PRC is the most appropriate forum for dealing with Ms. Wang’s claims. At paragraph 25 he deposed that “when I have been served with the Ontario proceedings, I will retain counsel to seek a stay of those proceedings”.

Analysis

[19] As indicated in Pitman v. Moi 2014 ONSC 2551 the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters applies to family law proceedings. In Khan Resources Inc. v. Atomredmetzoloto JSC 2013 ONCA 189, the Court of Appeal held that where rule 17.05(3) applies, it is mandatory that it be followed.

[20] The PRC is a contracting state to the Hague Convention.

[21] On the evidence of Levitan, the Respondent has altered the financial status quo by not paying the spousal support which is indicated in the Applicant’s Form 13.1 as $26,666.66 per month. On the evidence of Sampson, there is a synergy between the proceedings in BVI, Hong Kong and Ontario which necessitates the matter moving forward in the Second Application.

[22] On the evidence of Sampson, significant efforts have been made to serve the Respondent and the Respondent or his counsel in various countries have either not responded or have not accepted service. On his own evidence, the Respondent has received at least the Application and, based on the evidence of Sampson, he probably also has received the Form 13.1. On his evidence, the Respondent has started proceedings in Beijing and whenever he is served with the documents in the Second Application, he will bring a motion to stay, as he was successful in doing in 2012.

[23] If the Respondent were in Canada, it would be appropriate to make the order validating service and providing for future substituted service by email and by courier.

[24] However, the Respondent is not in Canada. As the courts have held, it is important that courts respect and comply with conventions into which Canada has contracted, even if the responding party has had actual notice of service through other means: see Khan Resources at para. 49. On the basis of the evidence filed in this 14B motion, I see no basis for making the order sought for validating service of the Application, Form 13.1 Financial Statement and Form 13A Certificate of Financial Disclosure nor for an order that service in the future be by email or by courier to the Respondent’s residential address in the PRC.

[25] At paragraph 15(c) above, I referred to the evidence of Sampson including his evidence about service through a “competent authority” from which I infer that the Applicant is aware of the requirements of the Hague Convention.

[26] This motion was brought on the basis of written material. I did not receive a factum. I am dismissing the motion on the basis of the material before me. However, I leave open to the Applicant that she may renew the motion before me in court with a factum and whatever additional evidence she relies on to make her submission that this court has jurisdiction to not comply with the Hague Convention.

[27] As indicated above, the Applicant has asked for costs in an amount not specified. The Applicant has not been successful in this motion. I leave that decision to the judge who ultimately hears the case.

ORDER TO GO AS FOLLOWS:

[28] The motion without notice and in writing is dismissed without prejudice to the Applicant renewing her motion on the basis of existing and additional evidence and a factum.

[29] If the Applicant does renew her motion, her counsel shall send by email to the Respondent at the email address in the notice of motion a copy of the notice of motion and the affidavit(s) on which she relies, providing that sending such documents is a courtesy only does not constitute service within the meaning of the Family Law Rules and the Hague Convention.

[30] In any event, counsel for the Applicant shall send by email to the Respondent at the email address in the notice of motion a copy of this endorsement, providing that sending such endorsement is a courtesy only and does not constitute service within the meaning of the Family Law Rules and the Hague Convention.

[31] Costs of this motion are in the discretion of the judge who hears that motion or the trial, whichever comes first.

Kiteley J.

Date: October 14 , 2015