Court File and Parties

COURT FILE NO.: FS-18-001701 DATE: 20180724 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Li Sheng, Applicant AND: Guang Zhu Qi, Respondent

BEFORE: Kiteley J.

COUNSEL: Parineeta Chahal, for the Applicant Respondent is self-represented

HEARD: June 15, 2018

Endorsement

[1] The Applicant wife and Respondent husband married in China on January 3, 1997. Their son W. was born on March 26, 2002. The parents separated on April 1, 2007 when the child was 5 years old.

Separation Agreement dated May 22, 2014

[2] The parties signed a separation agreement dated May 22, 2014 that indicated that the Applicant was living in Toronto and the Respondent in Regina, Saskatchewan. The separation agreement contained these terms:

(i) they separated April 1, 2007 and intended to continue to live separate and apart; (ii) they were financially independent and each released the other from spousal support claims; (iii) the husband had sole custody of the son who was then living with the wife; (iv) the wife was to have access to the son upon 24 hours prior notice to the husband; (v) the wife would pay $209 per month as child support to the husband until the child reached 18 years of age and the wife would pay directly not through the Family Responsibility Office; (vi) at the moment, the son was living with the wife and the husband agreed to pay a monthly support charge of $1,600 to the wife until the son started to live with the husband; (vii) with respect to the “marital residence” condominium on Cherokee Blvd. in Toronto, the parties agreed that the title would be transferred to the wife so that the wife had “exclusive title ownership of, and right to reside at, the premises after the divorce”; (viii) the husband owned the property in Regina and title would not be changed; (ix) the husband owed the Wife $10,000 CDN which he agreed to pay at the rate of $1,000 for ten months to settle the debt; (x) personal property release; (xi) the spouses agreed that neither would contract in the name of the other nor in any way bind the other for any debts and obligations. And they agreed that if either did so, that spouse would indemnify the other. Emphasis added

[3] The agreement contained other terms as to household contents, agreement to survive divorce, and standard releases.

[4] At paragraph (xviii) the parties indicated that each had had independent legal advice or had had the “full and fair opportunity to receive independent legal advice”; had read the agreement and had full knowledge of the contents; understood his or her rights and obligations; had made full and complete disclosure; acknowledged that the terms of the agreement were fair and reasonable; that neither was subject to coercion or undue influence and signed voluntarily. At paragraph (xix), the parties each waived independent legal advice. Attached to the agreement was an “Acknowledgement and Waiver of Independent Legal Advice” signed by each of them and witnessed by a named Commissioner for taking affidavits at a law firm in Ontario.

Final Divorce Order

[5] A divorce application (FS-14-395986) was issued in which the wife was shown as the Applicant and the husband as the Respondent. Neither had counsel. In a divorce order dated October 14, 2014, (which was signed and entered December 5, 2014), Paisley J. considered the application made by “the spouses” and made the following orders:

Paragraph 1: granted the divorce which took effect after 31 days; Paragraph 2: granted the husband sole custody; Paragraph 3: granted the wife access on 24 hours notice; Paragraph 4: ordered the wife to pay $209 per month as child support to the husband until the child reached age 18; Paragraph 5: the order bore post-judgment interest at 3%; Paragraph 6: unless the order was withdrawn, the Director, Family Responsibility Office was required to enforce it; Paragraph 7: for as long as child support is paid, the parties must provide updated income disclosure annually.

Motion to Change

[6] In FS-14-395986, the Respondent started a Motion to Change Final Order. The parties attended a Dispute Resolution Case Conference on August 30, 2017 at which time the DRO made a notation (wrongly described as an endorsement) as follows:

Enforcement Parties agree that their child W. (born March 26, 2002), resided full time with the Wife from October 14, 2014 to January 2016. Mr. Qi will advise FRO that he only seeks to enforce the support provisions of the order [dated October 14, 2014] from February 2016 forward. The remainder of Mr. Qi’s relief is not appropriate for a Motion to Change.

[7] The Respondent did not contact FRO to clarify the period of the arrears. It appears that FRO took enforcement proceedings. The materials filed in the Motion to Change are not before me.

Application FS-18-001701

[8] On April 9, 2018, the Applicant’s lawyer issued a form 8 Application in which the former wife sought an order under the Family Law Act for spousal support and child support in the amount of $1,600 per month as required by paragraph 6 of the agreement; an order that the Respondent pay her $10,000 as required by paragraph 9; an order that the order dated October 14, 2014 be varied so that she would have sole custody of the child and he would have his primary residence with her and if necessary, reference to the Office of Children’s Lawyer; an order that the Respondent pay table amount of child support and his proportionate share of the s. 7 expenses; an order that the support order dated October 14, 2014 be terminated effective immediately; an order that the arrears of child support owing by her be set at $0.

[9] In her form 8 Application, the former wife stated that she had been the primary caregiver of the child from birth until February 7, 2016 when the father returned to Toronto and took the child to live with him. She asserted that the child liked living with her and had developed a special bond with her and that she had provided for his necessities, education and welfare. She referred to the Case Conference on August 30, 2017 and the failure of the Respondent to contact FRO.

[10] The Applicant has remarried. In her form 13 financial statement, she shows income for 2016 in the amount of $15,121.26 and current income of $1,300 per month from self-employment. She owns a property in Georgina, Ontario with a mortgage that appears to represent 80% of the value. She has limited funds in bank accounts, an 8 year old car and credit card debt. She provided part of her income tax return for 2016, and notices of assessment for 2014 showing line 150 income of $17,277; for 2015 showing line 150 income of $19,290; and for 2016 line 150 income of $15,121.

[11] The Application, form 35.1 and form 13 financial statement were served on the Respondent.

[12] On May 4 2018, the Respondent was served with a form 17 notice for a case conference to be held on June 15, 2018.

[13] On May 23, 2018, without having served an Answer, the Respondent served counsel for the Applicant with Form 17 Conference Notice to be held on May 28, 2018 to deal with “urgent payment”. He also served a form 14A affidavit sworn May 23, 2018 attached to which was his statement and eight schedules consisting of 47 pages.

[14] On May 28, 2018 Justice Sanfilippo made an endorsement adjourning the case conference to June 15, 2018.

[15] On or about June 1, 2018, counsel for the Applicant served a form 20 Request for Information.

[16] On June 1, 2018 the Respondent served a form 14A affidavit sworn June 1, 2018 in which he indicated that his income and expenses had not significantly changed since his last financial statement and he attached a copy of his notice of assessment for 2017 with line 150 income of $27,784. I cannot identify his “last financial statement” but I infer that it was one he filed in his Motion to Change.

[17] On June 11, 2018 the Respondent served a form 10 Answer consisting of 67 pages, some of which had been attached to his affidavit sworn May 23, 2018. He also served a form 35.1 affidavit. He served a form 13 financial statement sworn May 18, 2018 showing his income “last year” at $19,500 and his “current income” of $1,625 per month from self-employment income and child tax benefits of $564 for a total of $26,268 annually. Yet he listed expenses of $87,228. He owns a property in Saskatchewan which he valued at $50,000 and a 7 year old pick up truck and a 17 year old BMW. He has negative bank accounts and debts totalling $97,620. He attached a notice of assessment for 2016 with a line 150 income of $19,740; 2015 notice of assessment with a line 150 income of $17,300; and for 2014, a line 150 income of $17,300.

[18] In his Answer and Claim, the Respondent asked for an equalization of net family properties, freezing assets, sale of family property, and, pursuant to the Family Law Act, he asked for support for the child and support for him. At page 16 he asserted that his rent was $1800 per month and, since the house is mainly for easy access to high school, the Applicant should pay 25% of the rent from February 2016 to May 2018 in the amount of $12,150. He also claimed child support in the amount of $209 per month for 43 months totalling $8,987. He asserted that the Applicant should pay 50% of listed child expenses that totalled $9,550. At page 17 he asked for an order that the Applicant comply with the October 14, 2014 order that she give 24 hours notice and he asked for a restraining/non-harassment order because of her rude replies to his text messages. He made a claim for an equalization of net family property on the basis that Cherokee had been co-owned but she had sold it and had not paid him any amounts. He asserted that the court should freeze her interest in her property in Georgina until the disputes had been resolved. He also claimed that after the separation agreement, the legal, common expenses and mortgage were shared and there were unresolved disputes. He asked for costs of $1,800. He took the position that he had overpaid the “monthly support charge” and she should repay him the difference between $1,600 per month and $142 per month.

[19] In a form 20 Request for Information dated June 8, 2018 he asked for the Applicant’s “real income” for 2016 and various questions about the property in Georgina and information about her husband as well as medical information about the Applicant.

Case Conference

[20] In her case conference brief, the Applicant said that she was 48 years and the Respondent was 63 years old and the child is now 16. At paragraphs 12 and 13, the Applicant gave notice that she asked the court to make the following orders at the case conference:

1. an order that the Respondent pay to the Applicant $1,600 per month as per paragraph 6 of the Separation Agreement dated May 22, 2014;
2. an order that the Respondent pay to the Applicant $10,000 as per paragraph 9 of the Separation Agreement dated May 22, 2014;
3. an order that the order dated October 14 2014 shall be varied so that the Applicant shall have sole custody of the child;
4. an order that the child shall primarily reside with the Applicant;
5. if necessary, an order for the involvement of the Office of Children’s Lawyer to investigate and provide a report regarding custody and access, taking into account the child’s wishes and preferences;
6. an order that the Respondent shall pay to the Applicant the table amount of child support and his proportionate share of the child’s section 7 expenses;
7. an order that the support order dated October 14, 2014 shall be terminated effective immediately;
8. an order that arrears of child support owing by the Applicant shall be set at $0.

[21] In his case conference brief, the Respondent listed 11 issues for the case conference. His list is included at paragraph 11 of his case conference brief. However, based on the balance of his case conference brief and his submissions on June 15, I am satisfied that he too was asking for the court to consider all of them at the case conference. His list was as follows:

1. an emergency order against the Applicant to pay the “Past due from the Respondent for Child support to up May of 2018”;
2. an order against the Applicant “to pay extra expensive for child support” (which I infer is s. 7 expenses) based on a calculation in exhibit B that indicates a payment of 50% of listed expenditures, in the amount of $9,775;
3. an order that those payments be mandatory and enforced by the authorities;
4. an order that the payment of $1,600 per month was not calculated under the “Child Support Table Amount at all” and that was unfair to the Respondent and must be readjusted in accordance with exhibit C with an order that the Applicant pay the overpayment in the amount of $21,812;
5. the Respondent is suspicious that the Applicant’s finance statement contains fraud and [an order] she must be asked to verify the statement;
6. an order that the Applicant pay the “unpaid amount to the Respondent for a property located at 165 Cherokee Blvd North York Ontario” calculated in accordance with Exhibit D in the amount of $12,241;
7. an order that the court “readjust equal benifit [sic] share” for Cherokee;
8. an order that the Applicant “must follow the court order to access to the child” namely give 24 hours notice;
9. the Respondent denied the Applicant’s claim for custody for reasons indicated;
10. that the court order to “freeze” the Georgina property until the unpaid issues caused by the Applicant is resolved;
11. an order that the Applicant submit specific medical information.

Arrears pursuant to the final order dated October 14, 2014

[22] Paragraph 4 of the final order requires the Applicant to pay child support in the amount of $209 per month until the child reaches age 18. The parents agree that the child lived with the Applicant from the date of separation on April 1, 2007 to February 7, 2016 including the period ostensibly covered by the final order dated October 14, 2014 to and including January 2016.

[23] At tab D to her case conference brief, the Applicant provided the Director’s Statement of Arrears dated April 25, 2018 indicating arrears of $8,297.77. The first entry is dated July 18, 2017 and is a “re-filing fee” in the amount of $50.00. That coincides with when the Respondent initiated his Motion to Change. The Statement of Arrears lists debits of $209 per month for the months of December 2014 to and including January 2017 that total $2,976. That is the amount that the Respondent was supposed to inform the Director that was not owing. The statement lists debits of $209 per month from February 14, 2016 to an including April 14, 2018. After minor diversion payments, the total owing is $8,297.77. It is agreed that the arrears as of April 14, 2018 are $8,297.77 minus $2,976 for a total of $5,321.77. On the basis of their consent, pursuant to rule 17(c) of the Family Law Rules I will make a final order eliminating arrears of $2,976.

[24] In February, 2018 the Applicant’s driver’s licence was suspended. If the Respondent had advised FRO that a credit of almost $3,000 should have been made, I infer that it may have impacted the extent to which vigorous enforcement steps including licence suspension were pursued.

Analysis

[25] The form and content of the separation agreement suggests there had been some legal input. Paragraph (xviii) of the agreement is inconsistent with paragraph (xix) waiver of independent legal advice that is confirmed by the certificates attached to the agreement. Each says the other forced or pressured the other to sign the agreement.

[26] The child lived with the Applicant from April 2007 when the parents separated until and including January 2016. The separation agreement confirms in paragraphs (iii) and (vi) that that was the status quo. Yet the agreement contained terms as to child support and access as if the child was living with the Respondent. Based on the material before me, the parties expected that the $209 would start after the son was with the father and expected that the Applicant had no obligation to pay child support to the Respondent until the child lived with the Respondent.

[27] Under the heading “Support from the Husband”, the separation agreement stated that while the son lived with the Applicant, the Respondent would pay $1,600 per month as “monthly support charge” although in paragraph (ii), the parties agreed that they would be independent and neither would pay spousal support. The Respondent now says that amount was “extremely higher than the Child Support Table Amount” and it should now be re-calculated and reduced to $142 per month and the Applicant should be ordered to repay to the Respondent the difference between what he says he paid of $1,600 and what he should have paid, namely $142 per month for a total over 14 months of $21,812.

[28] On the other hand, the Applicant asserts that he did not pay regularly and he owes her money. I note that during the period from the signing of the separation agreement to February 2016, there is no indication that the Respondent paid any child support.

[29] The Respondent made the application for divorce judgment and he included terms to his benefit: custody, access and child support, even though that did not reflect the child’s current circumstances. Furthermore, he did not include terms that were to the benefit of the Applicant, namely $1,600 per month and $10,000. The separation agreement specified that the Applicant would pay child support directly and not through FRO. Because the order included child support, paragraphs 6 and 7 of the final order were required by the court office. As a result, the Respondent had the benefit of enforcement through FRO including enforcement starting December 2014 when she had no obligation to pay.

[30] The Respondent has financial problems. He has many debts including some apparently arising from a failed business. In his case conference brief in May 2018, he said he was facing eviction.

[31] As for Cherokee, the situation is complex. The separation agreement was signed May 22, 2014. The Applicant became the legal and beneficial owner. The agreement included a term with respect to debts including an indemnification. In his material, the Respondent has attached documents indicating that in 2010 they were both sued by the condominium corporation. He attached one page of a multi-page endorsement dated July 8, 2013 in which M.G. Quigley J. indicated that, in 2012, he had granted judgment for possession to the condominium corporation. Based on the limited information, I infer that in 2012 he had granted judgment against the Applicant and the Respondent for $46,735 and the endorsement dated July 8, 2013 was dealing with costs. In his case conference brief, the Respondent claims she owes him $12,241 and that he is not required to pay her the $10,000 referred to in the separation agreement. Based on the material he provided, all of the transactions involving the Cherokee property occurred prior to the separation agreement including the term that they had no further debts.

[32] Having reviewed his material, it seems that the Respondent is, in effect, trying to vary or enforce his interpretation of the separation agreement with respect to spousal support and Cherokee. He provided no basis upon which this court has such jurisdiction.

[33] Rule 17 of the Family Law Rules describes the purposes of a case conference which includes identifying the issues that are in dispute and those that are not in dispute. The rule also identifies the orders that may be made at a case conference:

(b.1) if notice has been served, make a final order or any temporary order, including any of the following temporary orders to facilitate the preservation of the rights of the parties until a further agreement or order is made. . .

[34] As indicated above, the Applicant and the Respondent each gave notice of the orders sought at this case conference. Indeed, the submissions made by both parties were adversarial and demonstrated that neither was willing to exchange offers to settle and explore a negotiated outcome. Each wanted specific orders. Neither made any submissions as to the scope of authority at a case conference. As I said several times during the case conference, the record was a mess and the parties had unrealistically high expectations as to what the court could do.

[35] There may be limited and exceptional circumstances in which a case conference judge may make a final order provided it is upon notice and in line with the broad objective of dealing with cases justly. At conferences, it may often be appropriate to make procedural orders or temporary orders to preserve positions, provide for temporary support and ensure necessary disclosure and move the case along. However, seldom (if ever) should a final order be made at a conference when it is opposed and not on consent. In making the decision about what is appropriate, a judge must consider the objective of the Rules, the various remedies the Rules offer and the guidance of Rule 17 as to what orders can clearly be made. B. (A.) v. A. (N.L.), 2013 ONSC 2990, [2013] O.J. No. 2861, 34 R.F.L. (7th) 469 (Ont. S.C.J.)

[36] In this case, the Respondent obtained a final order dated October 14, 2014 which incorporated the provisions of a separation agreement that did not reflect the then circumstances with respect to custody and child support and did not incorporate the provisions that did not benefit him. The Respondent initiated a Motion to Change Final Order in which he agreed that he would notify FRO that 14 months of alleged arrears were not owing and he did not do so. The driver’s licence of the Applicant was suspended at a time when the alleged arrears were almost $3000 more than actual. The DRO noted that the balance of the relief the Respondent sought in his Motion to Change was not appropriate. The Respondent filed an Answer and Claim and a case conference brief in which he asked for relief that cannot be pursued, including seeking an order varying a separation agreement, seeking an order freezing the Georgina property, seeking an order retroactively varying the separation agreement to reduce the amount of spousal support from $1,600 per month to $142 per month and asking for an order for repayment. In doing so, he has prolonged what should be a straightforward Application.

[37] Pursuant to subrules 2(2), (3) and (5)(a), I am satisfied that there are exceptional circumstances which require this court to make such final order as is on consent and such temporary orders as will afford the Applicant the relief from enforcement to which she is entitled and will prevent the Respondent from continuing to use limited judicial resources in asserting claims without any basis in law.

[38] The child was 16 years old on March 26, 2018. He appears to have a relationship with both of his parents. Each parent is critical of the parenting of the other. One of the Respondent’s claims is that this court should enforce paragraph 3 of the final order that requires the Applicant to give 24 hours notice. On the other hand, the Applicant asks for an order for custody. The child is of an age that this court ought not to make any parenting orders.

[39] The challenge is to establish steps forward. As indicated, the parties focused on their immediate outcomes. As indicated below, I make orders dealing with those immediate issues. However, the parties must attend a case conference with the agenda set out below. I am not in a position to make orders as to disclosure without determining what issues raised are viable. For example, the Respondent has made a claim for an equalization of net family property although he signed the separation agreement and the time limit for making such a claim has passed. Based on his Answer and Claim and his case conference brief, the Respondent ought not to be permitted to pursue claims that are not viable and use up scarce judicial resources. For that reason, I have taken the unusual step of requiring the Respondent to retain counsel and requiring the Applicant to continue to retain counsel.

FINAL ORDER TO GO AS FOLLOWS:

[40] The final order is varied as follows:

Pursuant to paragraph 3 of the final order dated October 14, 2014, there are no arrears of child support for the period December 14, 2014 to and including January 1, 2014 because the Applicant had no obligation to pay child support during that period.

TEMPORARY ORDER TO GO AS FOLLOWS:

[41] The support obligation in paragraph 4 of the final order dated October 14, 2014 is terminated.

[42] The arrears pursuant to paragraph 4 of the final order dated October 14, 2014 are reduced to zero.

[43] Pursuant to s. 8 of the Family Responsibility and Support Arrears Enforcement Act, the Director shall cease to enforce the support obligation in paragraph 4 of the final order dated October 14, 2014.

[44] If the Director has received any amounts since the statement of arrears dated April 24, 2018 and the Director has not dispersed such amounts, the Director shall pay to the Applicant any balance held at the date of this order.

[45] The parties and counsel shall attend before me on Tuesday, September 4, 2018 at 11:00 for a case conference on these conditions:

(a) both parties shall have a lawyer who prepares the case conference brief and who attends the case conference; (b) by August 20, 2018, each party shall serve and file a case conference brief that lists the claims each party asks to pursue, provided that in describing the claim, the legal basis upon which the claim is asserted is specified; (c) after service of the case conference brief and no later than August 27, 2018 each party shall serve and file an offer to settle each of the issues raised by that party and by the other party.

[46] The Applicant’s counsel may take out this order without approval as to form and content by the Respondent.

[47] Costs of the case conference held on June 15, 2018 are reserved to the next case conference.

Kiteley J. Date: 2018