CITATION: Zhang v. Mackay, 2017 ONSC 6340
COURT FILE NO.: FS/17/0041463/50000
DATE: 20171023
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lina Zhang
Applicant
- and -
david Mackay
Respondent
V. Pilnitz, for the Applicant
A. Wilford, for the Respondent
HEARD at Toronto: September 25, 26 and 28, 2017
Croll J.
Reasons for judgment
Introduction
[1] The Applicant Lina Zhang (“Lina”) and the Respondent David Mackay (“David”) met through the internet in August 2012. Lina lived in China and David lived in Ontario. They soon began to have daily, lengthy internet conversations. These exchanges were facilitated through computer programs and applications that instantaneously translate Mandarin to English and English to Mandarin.
[2] On February 16, 2013, David travelled to China to meet Lina. David met Lina’s mother and her son from a previous relationship.
[3] Lina and David got married in China on February 25, 2013. David returned to Canada, and filed a sponsorship application to bring Lina to Canada.
[4] David visited Lina in China in July 2013, and then again in September 2014. Lina arrived in Canada on October 28, 2014 as a landed immigrant.
[5] The marriage did not work. Lina and David have differing accounts of what went wrong, and when they separated.
[6] Both parties seek a divorce. Lina seeks an equalization of net family property and spousal support. David submits that his net family property has a negative value. He also submits that Lina is not entitled to support. In closing submissions, David sought reimbursement for those funds (currently undetermined) which he will be required to repay to the government for social assistance that Lina has received during the period of sponsorship. However, no such claim is found in David’s Form 10 Answer to Lina’s Application, and there is no material before me to indicate that this issue has been raised previously, or any steps taken to amend the pleadings. As such, it will not be considered.
[7] In her Application, Lina also seeks a restraining order. No evidence was led, or submissions made, in this regard, and this relief is not found in the draft Order Lina provided. This relief will not be granted.
Lina
[8] Lina is 40 years-old. Prior to coming to Canada, she worked in China as a sales manager, supervising five to eight people.
[9] When Lina came to Canada, she lived with David in his home in Newmarket, Ontario. It is her evidence that after this home was sold, she moved with David to a new matrimonial home in Cargill, Ontario in November 2015.
[10] Lina states that shortly after the move to Cargill, the relationship deteriorated. She claims that David treated her cruelly. In particular, she claims that she had no funds, and that David provided her with a bank card with only $40; that David often refused to buy food and she often went hungry; and that she was forced to do all the housework. Her evidence is that David regularly threatened to send her back to China.
[11] Lina states that on August 5, 2016 she and David had an argument. It was her evidence that she wanted to go to sleep, as she had work the next day, whereas David wanted to continue renovating the bathroom in the new home, and wanted Lina to help him. Apparently, this argument continued until 3:00 a.m. Lina claims that David became very upset, yelled at her and asked her to leave. She feared for her safety and called the police, who brought her to a shelter.
[12] Lina submits that August 5, 2016 is the date of separation.
David
[13] David is a police officer, now retired due to illness.
[14] There appears to be no issue that after Lina’s arrival in Canada, David encouraged her to take English lessons. It is also uncontroverted that he helped teach Lina to drive, and paid for her to take driving lessons with a Mandarin speaking teacher. He bought a Toyota Yaris for $3,500 in May 2015 for Lina to use, for which he paid insurance of $3,500.
[15] David also submits that he assisted with dental and medical bills so that Lina could have her dental problems remedied in Canada. This evidence is not challenged.
[16] It is David’s position that as Lina began to socialize in the Chinese community, she became withdrawn from him. He submits that Lina moved into an apartment in Scarborough on November 1, 2015 and that that is the separation date.
[17] David acknowledges that Lina moved to Cargill and lived with him from July 1, 2016 until she called the police on August 5, 2016. However, his evidence is that she only did so on the basis that he would make efforts to sponsor her parents to come to Canada for three months. Those efforts were not successful, at least in part due to the fact that David did not have $30,000 to provide to Lina’s parents to deposit into a special account with the Chinese Embassy. According to David, once it was apparent that Lina’s parents would not be allowed to travel to Canada, Lina moved out again.
[18] David’s position is that he tried to make the marriage work, but that Lina did not share this desire. He submits that Lina only wanted to be married in order to obtain immigration status in Canada.
Divorce
[19] Both Lina and David seek a divorce. On all the evidence, Lina and David have lived apart for more than one year, and were living apart at the commencement of this proceeding: Divorce Act, R.S.C., 1985, c. 3 (2nd Supp), s. 8(2)(a). Accordingly, a divorce order shall issue, and unless appealed, it shall take effect, and the marriage is dissolved, on the thirty-first day following the release of these reasons.
Valuation date
[20] The determination of the valuation date in this case depends on my assessment of the credibility of Lina and David. In this regard, I note the following:
i. Lina’s evidence is that when she arrived in Canada, she and David had ‘normal’ sexual activities. However, when David picked Lina up at the airport on October 28, 2014, he had just been released from hospital, after having an operation on his urethra. Three weeks later David had a catheter inserted. The evidence of David’s friend Mark Keyzer confirms that David had cancer surgery just prior to Lina’s arrival. David’s evidence was that he was not physically able to have sexual relations. When Lina’s evidence about ‘normal’ sexual activities was challenged by reference to the medical evidence that David was unable to obtain an erection, Lina maintained that by sex she meant manual stimulation. However, her own Skype messages to David stated that they had not sex since her arrival in Canada. While sexual activity has no bearing on the relief sought, Lina’s equivocation on this issue suggests she is not being truthful.
ii. Lina complained that David was abusing her by not providing her with sufficient food. However, there is a photograph attached to an email that suggests she was cooking at David’s soon after her arrival. David’s friends Chad Lee Wing and Mark Keyzer both testified. Chad Lee Wing’s evidence was that there was an abundance of food and drink in the refrigerator and cupboards at David’s home. Mark Keyzer’s evidence was that David would regularly take Lina to a Chinese grocery store in Markham. None of this evidence was challenged. It does not make sense that David would arrange and pay for dental work, driving lessons and a car for Lina to use, and at the same time, deny her food.
iii. Lina’s evidence about some financial matters is inconsistent. For example, she initially stated that she received a $4,000 cash gift from her mother. She stated that she received the gift prior to leaving China and that she spent all but $1,000 of it. However, her financial statement indicates a deposit of $2,800, which she explained by stating that she had $2,000 left from her mother’s first gift, and that she had received another gift from her mother. Lina also testified that she could not recall any Western Union transfer of funds sent by David to China for her and her family. However, those transfers are confirmed by a Western Union letter dated February 6, 2016 which lists 14 transfers from David to China over the period from September 3, 2013 to August 11, 2015. Those transfers total $9,427.88. When Lina’s shifting evidence about what she received from her mother is considered together with her forgetfulness of the Western Union transfers totalling almost $10,000, it brings her evidence about financial matters into question.
iv. David’s evidence was that within two months of Lina’s arrival in Canada she would not kiss him, hug him, or even sit beside him on the couch to watch television. This evidence appears to be confirmed in a printout of their Skype conversations which has been filed.
v. Lina points to a letter that David wrote on April 16, 2016 to the Canadian Embassy to support the August 2016 separation date. In that letter, David wrote “Lina and I live in a large house in Cargill, Ontario.” David wrote that letter in an attempt to obtain permission for Lina’s parents to visit from China. His evidence was that he wrote the letter in order to please Lina, as she told him that she would come to live in Cargill if he helped her parents come from China. His evidence was that she provided him with a form of letter to prepare, and he followed it. David candidly acknowledged that the letter misrepresented their living arrangements.
vi. David was also forthright in acknowledging that he frequently asked Lina why she would want to stay in Canada if she did not want to live with him, sleep with him, or enjoy his companionship. His evidence was that this was not asked in a threatening manner, but rather, was an expression of some frustration that the expectations of the marriage were not being met for either party. The printout of the Skype conversations confirms that these comments were not made in a threatening manner. There is no suggestion in the printout that David told Lina that she would have to leave the country because of their marital breakdown.
vii. Lina’s evidence was that during the argument on August 5, 2016, she wanted to go to sleep because she had to go to work the next day. However, the employment chart she prepared and filed indicates a gap in her employment during the period she moved to Cargill. The chart shows that she worked until June 30, 2016, and then resumed work in September 2016.
viii. Lina’s evidence was that when she moved to the apartment on November 1, 2015, she took only some of her belongings and that the rest of her things were moved to the Cargill home. Lina submits that the inference should be drawn that her intention was always to move to Cargill, and that the apartment was just a temporary residence. In contrast, as indicated, David’s position is that Lina only came to the Cargill home for a brief period of some 34 days in the following summer because he promised to make efforts to bring her parents to Canada. His evidence as to what of Lina’s was taken to Cargill on November 1, 2015 is more specific than Lina’s. His evidence was that only one unmarked box of shoes of Lina’s was taken to Cargill in November, which he returned to her. While a relatively small issue, David’s specific recollection is more credible than the rather vague evidence of Lina about her belongings.
[21] Overall, for these reasons, I prefer the evidence of David to that of Lina. In my view, David’s evidence is more credible and more accurately reflects the timing of the breakdown of the marriage.
[22] I am satisfied that on November 1, 2015, David and Lina were living separate and apart and there was no reasonable prospect of resumption of cohabitation: Family Law Act, R.S.O. 1990, c. F.3, s. 4(1). While David may have been hoping that Lina was moving to Cargill in order to resume cohabitation, Lina’s move there for 34 days was motivated only by her desire to have David assist her parents. I find that Lina had no intention to resume cohabitation; rather, the evidence shows that Lina had already withdrawn from the marriage.
[23] I find that the valuation date was November 1, 2015.
Equalization of Net Family Property
[24] Lina owned no property on the valuation date.
[25] The value of David’s property was $151,956.67. The largest component of this amount is the home at 25 King Street in Cargill, Ontario which David purchased on August 19, 2015 for $135,000. The remainder of the value can be attributed to two cars, the 2007 Toyota Yaris he purchased for Lina’s use and a 2013 Ford 150 truck, and two small RRSPs.
[26] David submits that his liabilities amount to $229,504.59 as shown on the following chart:
Table 2: Value of Debts and Liabilities on Valuation Date
Part 5: DEBTS AND OTHER LIABILITIES
| Category | Details | Applicant | Respondent |
|---|---|---|---|
| Mortgage – Bank of Nova Scotia | 25 King St., Cargill ($107,900) | $107,900.00 | |
| Mortgage – 2nd | 25 King St., Cargill ($20,000) | $20,000.00 | |
| Credit Card | CIBC Visa ***4740 | $18,000.00 | |
| Credit Card | Scotiabank ****3019 * | $9,885.00 | |
| Credit Card | Scotiabank ****4014 * | $9,925.00 | |
| Credit Card | Scotiabank ****7010 * | $7,633.00 | |
| Credit Card | Home Depot **4849 | $9,500.00 | |
| Credit Card | Walmart **3270 | $3,700.00 | |
| Car Loan | 2007 Toyota Yaris * | $3,731.84 | |
| Line of Credit | CIBC ***8938 * | $39,229.75 | |
| 23. Totals: Debts and Other Liabilities, (TOTAL 2) | $0.00 | $229,504.59 |
[27] There is no supporting documentation for the second mortgage of $20,000. However, even when this item is deducted from the calculation of debts and other liabilities, the result continues to be a negative net family property ($151,956.67-$209,504.59).
[28] I accept that David’s debts increased by approximately $50,000 during the course of his relationship with Lina. Among other things, he incurred debt in order to travel to China and provide funds to Lina and her family.
[29] As David’s net family property on November 1, 2015 is zero, he does not owe an equalization payment to Lina. Lina’s claim for an equalization payment is dismissed.
Support
[30] Lina claims monthly spousal support in the amount of $1,573, commencing August 6, 2016, to be reviewed after one year. This amount corresponds to a proposed budget of expenses that Lina prepared and tendered in closing submissions.
[31] A divorce having been granted, support falls to the Divorce Act, s. 15.2, under which the court may order reasonable spousal support payments by taking into account the means, needs, and other circumstances of each spouse: Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 SCR 813; Divorce Act, s. 15.2(4).
[32] Lina relies on a number of cases in support of her claim. However, the facts of each of these cases are distinguishable from the facts at hand.
[33] In Kuznetsova v. Flores, 2016 ONCJ 203, 79 R.F.L. (7th) 499, the length of the marriage was 19 months. There was one child, two years-old at the time of trial. The father had sponsored the mother, but withdrew the sponsorship agreement when they separated, at which time the father was charged with assaulting the wife. The court ordered the father to pay the guideline table amount for one child and indefinite spousal support starting the month after separation, plus arrears owing from an unpaid temporary order (at paras. 67-68). In coming to this conclusion, the court found at para. 59 that “the father has played a large role in the mother’s economic disadvantage. He promised to sponsor her and withdrew that sponsorship, leaving her unable to work and requiring her and the child to go on public assistance.”
[34] In contrast, in this case, Lina’s evidence was that she could not work due to emotional stress and her need to prepare for the trial, not because her sponsorship agreement had been withdrawn. Further, the court in Kuznetsova was not prepared to accept the husband’s income as he reported, finding that his T4 income did not accurately represent his income. There is no such issue in this case. David is a police officer, now retired. His T4 income is not an issue. Rather, it appears that the disclosure deficiencies in this case stem from Lina. It was not until trial that releases of information regarding her bank accounts were provided.
[35] Singh v. Singh, 2013 ONSC 6476, 40 R.F.L. (7th) 78, was an application for interim support. The marriage lasted less than seven months. Mr. Singh had agreed to support his wife for three years through a federal sponsorship agreement. The court made a three-part order unique to the facts of the case, ordering (1) Mr. Singh to pay $400 per month in support, based on their incomes; (2) Mr. Singh to cover Ms. Singh’s post-secondary program tuition, fees, and related expenses and (3) Mr. Singh to include Ms. Singh as his beneficiary on his workplace group health insurance plan for two years.
[36] In this case, Lina has never brought a motion for interim support, suggesting that she was able to support herself in Canada without David’s assistance. Further, significantly, in Singh, the court noted the following at para 28:
Ms. Singh left her successful career as a marketer, sales analyst, and team leader in her employer’s company in India to marry Mr. Singh. She left that country, where she had secured her accreditation, and moved to Canada, where her professional credentials are not valued as highly. She became dependent on her marriage to Mr. Singh for a combined income that would provide an equivalent standard of living to the one she had enjoyed in India. In these circumstances, compensatory spousal support is appropriate, notwithstanding the short duration of her marriage.
[37] In this case, Lina’s evidence was that in China she worked in sales analysis and marketing and managed a staff of, on average, five to eight people. She testified that she had been in that job for eight years, but that she could not return to it in China since she has now been away for three years. Her evidence was that her language skills prevent her from obtaining similar employment in Canada, and that a license is required.
[38] There is no evidence as to the type of sales and marketing in which Lina had worked in China, and it is unclear what type of license Lina was referring to. However, more significantly, while her evidence was that she earned $70,000 RMB (Chinese currency) annually, which she converts to approximately $14,000 Canadian currency, there is a complete deficit of information as to the standard of living she enjoyed in China.
[39] It is also the case that David encouraged Lina to attend English classes, and provided her with a car and driving lessons so that she could travel to her classes. After separation, it appears that Lina no longer had use of a car. Her evidence was that she stopped taking the English classes because she no longer had the funds for transportation and it was a 40-minute walk to the classes. However, in questioning, Lina answered that the walk was 25 minutes and if the weather was nice, she would walk.
[40] Gidey v. Abay, 2007 CanLII 40212 (ONSC), [2007] O.J. No. 3693, was also a case dealing with an interim award made in advance of trial. In that case, the couple married in Ethiopia in August 2003, the wife came to Canada in December 2005, and they separated eleven months later. Mr. Gidey was a Canadian citizen and had agreed to sponsor Ms. Abay for three years. Brown J. (as he then was), at para. 28, held the sponsorship to be the most important factor influencing entitlement to interim spousal support, since “the case law makes it clear that the existence of an immigration sponsorship agreement is a relevant factor in determining entitlement to spousal support.” The court ordered Mr. Gidey to pay $900 per month in support for either the 13 months remaining in the three-year sponsorship commitment or until the date of the trial, whichever came first.
[41] Again, unlike this case, Gidey v. Abay was a motion for interim support. The court ordered less support than the wife requested, noting that the wife had been able to generate some employment income in Canada, notwithstanding her lack of fluency in English. Lina’s ability to generate income in Canada is discussed below.
[42] Carty-Pusey v. Pusey, 2015 ONCJ 382, [2015] O.J. No. 3738, was also a motion for interim or temporary support. That marriage had lasted four years, and while the husband had agreed to sponsor the wife, he later changed his mind. As a result, Ms. Carty-Pusey’s only source of income was social assistance as she could not obtain a work permit through the sponsorship process (at para. 3). The court made an order for support of $1,000 per month until the wife “is issued a work or open permit, or otherwise resumes working”, plus spousal support arrears (at para. 84). The court justified the above-guideline order at para. 81 due to “the applicant’s immediate basic needs, the respondent’s immigration spousal undertaking to support her, and his ability to pay.”
[43] As was the case in Kuznetsova v. Flores, the wife in Carty-Pusey had no status to work in Canada. She had applied for permanent residence on humanitarian and compassionate grounds, and the temporary support order was made while this application was outstanding.
[44] David has presented DivorceMate calculations that provide for very modest support. If Lina earns no income, using David’s employment income of $93,590, the income pursuant to the Spousal Support Advisory Guidelines (SSAGs) calculates support to be $117 at the low end, $136 at the mid-range and $156 at the high end. The duration, given the length of the marriage, is six months to one year. If minimum wage of $23,712 is attributed to Lina, the SSAG amounts are $87 at the low end, $102 at the mid-range and $116 at the high end.
[45] There is no relevance to the calculation prepared by David that shows Lina in receipt of social assistance of $650 per month. As stated in Carol J. Rogerson & D.A. Rollie Thompson: The Spousal Support Advisory Guidelines, A New and Improved User’s Guide to the Final Version (Ottawa: Department of Justice Canada, 2016), at p. 18, “social assistance is not income for spousal support purposes,” for either the recipient or the payor, and will result in underpayment of spousal support.
[46] That said, it is the case that short marriages involving immigration sponsorship agreements raise unique issues under the SSAGs: see Kuznetsova v. Flores, at para. 60. As stated in the 2016 Spousal Support Advisory Guidelines at p. 26.
One category of short marriages, those involving immigration sponsorship agreements, raise some unique issues under the without child support formula. These are cases where a marriage breaks down while a sponsorship agreement is in place. Most spousal sponsorship agreements now run for a period of 3 years, but in the past the duration was as long as 10 years. In some cases involving very short marriages, courts have used the duration of the sponsorship agreement as the appropriate measure for the duration of spousal support, thus extending duration beyond the durational ranges generated by the Advisory Guidelines. As well, in such cases, some courts have also ordered support in an amount beyond the high end of the range to generate an amount of support that will meet the recipients' basic needs and preclude resort to social assistance.
[47] The sponsorship documents were not filed by either party. David acknowledges that the sponsorship agreement he signed expires October 28, 2017, three years after Lina’s arrival in Canada. David also acknowledges that he will be required to repay the government for any social assistance that Lina has received.
[48] The sponsorship agreement, while it may be a factor for consideration, does not supersede or override the obligations and responsibilities the parties have to each other under the Divorce Act.
[49] As stated in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, 169 D.L.R. (4th) 577, at para. 39:
Under the Divorce Act, compensation arguments can be grounded in the need to consider the “condition” of the spouse; the “means, needs and other circumstances” of the spouse, which may encompass lack of ability to support oneself due to foregoing career opportunities during the marriage; and “the functions performed by each spouse during cohabitation”, which may support the same argument. In sum, these compensatory statutory provisions can be seen to embrace the independent, clean-break model of marriage and marriage breakdown.
[50] In this case, there is no evidence as to the standard of living Lina enjoyed in China. In contrast, since the marriage, she has obtained permanent residence status, a Canadian driver’s license, and some English training. The sponsorship agreement is still alive, allowing Lina to work in Canada. There is no evidence of disadvantage to Lina flowing from the marriage.
[51] In my view, there is no basis for compensatory support.
[52] However, non-compensatory support must be considered: Bracklow v. Bracklow, at paras. 40-49. Support should be ordered where it is fit and just to do so: Divorce Act, s. 15.2(3).
[53] In this case, as stated, Lina proposed a budget in closing submissions that shows expenses totalling $1,573 per month. Lina’s budget filed in the Trial Record dated September 23, 2016 shows monthly expenses of $670; her second budget in the Trial Record dated October 22, 2016 shows monthly expenses of $1,040. These increases were not addressed by either party.
[54] The budget that Lina proposed during closing submissions (and upon which she quantifies her support claim), was not sworn by her, and was never filed during the trial. It was not a summary of oral evidence provided by Lina at trial. As such, David had no opportunity to cross examine Lina on these expenses. It is not proper evidence to be considered.
[55] David’s most recent budget shows monthly expenses of $6,489 per month. While I appreciate that David’s budget increased because as of December 2016, he has been living with a woman and her eight year-old daughter whom he supports, I have not considered this factor.
[56] While David claims that the marriage was a sham so that Lina could come to Canada, there is no evidence to support this. The marriage was not a sham, it simply did not work.
[57] In my view, Lina is entitled to support. The real question is what is the appropriate length and quantum.
[58] In answering this question, it must be noted that Lina chose to stop learning English and to stop working. Her reasons for doing so — the stress she was suffering and the need to prepare for trial — are not persuasive. While there is a letter from Dr. Wenli Zhang (no relation), dated July 16, 2017 that discusses Lina’s stress, Dr. Zhang was relying on Lina’s self-reporting. As well, Shelley Maxine Jones, a personal support worker, provided evidence of Lina’s depressed and fearful state while she was at the women’s shelter. However, Ms. Jones does not understand or speak Mandarin and communicated with Lina without the aid of an interpreter. When questioned about her ability to communicate with Lina, Ms. Jones testified that she was good at reading faces and body language. Little, if any, weight can be attached to the evidence of Ms. Jones.
[59] Further, Lina, to her credit, has shown that she is able to secure work in Canada, despite her limited English fluency. During the course of the trial, Lina prepared a chart that outlines the employment she has held since May 2015. While this evidence was somewhat challenging to follow, it appears that Lina has worked in two restaurants, including one owned by a friend of David; in a factory; as a cleaner for an insurance restoration company; and as a housekeeper in a hotel. The cleaning work for the insurance restoration company was the best paying position, paying $1,200-$1,300 per month. Lina quit this job when she temporarily moved to Cargill in July 2016. Her brief time at the hotel cleaning job occurred in September 2016.
[60] Despite the low level of income she earned, as stated, Lina has never moved for interim support. David suggests that Lina is working for cash in the Chinese community to supplement the low income that she has disclosed. There is, however, no real evidence to support this supposition.
[61] That said, Lina has provided no plan as to how she intends to become self-sufficient. This is problematic, especially because she has chosen to stop learning English and because there is evidence that she has rejected legitimate employment that was more secure and better paying than her other positions. The evidence of Chad Lee Wing was that in the spring of 2015, his wife arranged a full time housekeeping job for Lina at an established retirement home that was within a ten kilometre radius of Lina and David’s home. This was a unionized position that offered health benefits. Lina refused to accept the position.
[62] I have reviewed the budgets sworn by Lina and David, including the fact that Lina shows no debt; the decrease in David’s net worth, in some measure due to funds he spent on Lina and her family during the courtship and after her arrival; Lina’s ability to work and her Canadian work history; and the length of their marriage. As stated, Lina and David were married in China on February 25, 2013, Lina arrived in Canada on October 28, 2014 and they separated on November 1, 2015. Their Canadian co-habitation lasted for about one year.
[63] I have also considered the factors set out in ss. 15.2 (4) and (6) of the Divorce Act.
[64] David shall pay Lina final spousal support in the sum of $900 per month for a period of nine months, commencing as of November 1, 2017. This amount, combined with earnings Lina has shown she can generate, while resuming her English studies, should enable her to become self-sufficient.
[65] Lina submits that the support order should be reviewable after one year. However, as stated in Leskun v. Leskun, 2006 SCC 25, [2006] 1 SCR 920, at para. 36:
Review orders under s. 15.2 have a useful but very limited role. As the amicus pointed out, one or both parties at the time of trial may not, as yet, have the economic wherewithal even to commence recovering from the disadvantages arising from the marriage and its breakdown. Common examples are the need to establish a new residence, start a program of education, train or upgrade skills, or obtain employment. In such circumstances, judges may be tempted to attach to s. 15.2 orders a condition pursuant to s. 15.2(3) of the Divorce Act, that entitles one or other or both of the parties to return to court for a reconsideration of a specified aspect of the original order. This will properly occur when the judge does not think it appropriate that at the subsequent hearing one or other of the parties need show that a change in the condition, means, needs or other circumstances of either former spouse has occurred, as required by s. 17(4.1) of the Divorce Act.
[66] In this case, Lina has offered no evidence respecting any investigation she reasonably could have made to determine what steps she could have taken to become self-sufficient through employment, similar to that which she had in China. There is, as well, no evidence that she needs time to adjust to a new standard of living. This is not a case where there is genuine and material uncertainty, such that the parties should be permitted to bring a motion to alter support without having to demonstrate a material change in circumstance: see Leskun, at paras. 35-40. For these reasons, this is not an appropriate case for a reviewable order.
Conclusion
[67] David shall pay spousal support to Lina in the amount of $900 per month, commencing November 1, 2017 for a period of nine months.
[68] A Divorce Order shall issue, and unless appealed, it shall take effect, and the marriage is dissolved, on the thirty-first day following the release of these reasons.
Costs
[69] I strongly encourage the parties to settle the issue of costs. If they are unable to do so, submissions are to be filed by Lina within two weeks of the release of this decision, with any responding submissions to be filed by David within two weeks thereafter. Submissions shall be limited to three pages, exclusive of a Bill of Costs and copies of any Offers to Settle.
___________________________ Croll J.
Released: October 23, 2017
CITATION: Zhang v. Mackay, 2017 ONSC 6340
COURT FILE NO.: FS/17/0041463/50000
DATE: 20171023
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lina Zhang
Applicant
- and -
david Mackay
Respondent
REASONS FOR JUDGMENT
Croll J.
Released: October 23, 2017