Court File and Parties

Court File No.: F751/16 Date: February 27, 2019

Ontario Superior Court of Justice

Family Court

Between: Xu Wang, Applicant R. Jonathan McKinnon for the applicant

- and -

Wan-Peng Sun, Respondent Zachary Wilson for the respondent

Heard: September 11, 12, 13, 14, 24, 25, 26, 27, 28 of 2018

Before: Mitrow J.

Introduction

[1] The central issue in this trial relates to custody and access issues in relation to the parties’ daughter, Mingxi, born July 13, 2015 (“the child”); Mingxi was age three at the time of trial.

[2] The applicant, Xu Wang (“Ms. Wang”), and the respondent, Wan-Peng Sun (“Mr. Sun”), are the child’s mother and father. The parties, and Ms. Wang’s mother (“maternal grandmother”), were the only witnesses at trial.

[3] There are also issues relating to child support, spousal support and equalization payment; the parties agree on the amount of the equalization payment.

[4] Regarding the main issue – custody and access – Ms. Wang’s position is that she should have sole custody, with access to Mr. Sun of one overnight each weekend and two midweek visits from 5 p.m. to 8 p.m. each week. Ms. Wang submits that she has been the child’s primary caregiver since birth and that it is in the child’s best interests for her to continue in that role.

[5] Mr. Sun submits that he has been subjected to a course of conduct engineered by Ms. Wang to minimize his parenting time with the child. Mr. Sun proposes a parenting plan where he soon will have the child for half of the time.

[6] For reasons that follow, Ms. Wang is awarded custody of the child but Mr. Sun’s parenting time and his role in the child’s life is more than what Ms. Wang proposed.

[7] Although a claim for divorce has been made by both parties, it was agreed during trial that the divorce claim would proceed later via r. 36. Accordingly, the final order made below in relation to custody, access, child support and spousal support is made pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) and Family Law Act, R.S.O. 1990, c. F.3 (“FLA”). [1]

Custody/Access

A. Background

[8] Both parties were born in China. They met each other as university students while attending Western University in London, Ontario.

[9] By the fall of 2008, the parties began to cohabit; they were both students at the time.

[10] The parties’ relationship faltered when Mr. Sun was charged with assault against Ms. Wang in or about 2009. Although no court documents were produced at trial confirming Mr. Sun’s criminal record, it was Mr. Sun’s evidence that he did plead guilty to the charge and received a conditional discharge. He testified that he was required to attend the “Changing Ways” program as part of his sentence. Ms. Wang agreed in her testimony that Mr. Sun did plead guilty and was required to attend Changing Ways.

[11] Despite that occurrence, the parties resumed their cohabitation.

[12] They were married in Canada in March 2014 and later that year the parties had a ceremony in China to celebrate their marriage.

[13] There was little doubt, on the evidence, that the parties’ relationship, after marriage, continued to deteriorate.

[14] A significant event occurred in December 2015 when Mr. Sun withdrew his sponsorship application in relation to Ms. Wang that he had filed with Citizenship and Immigration Canada.

[15] This occurred while the parties were still living together and the child was approximately five months of age. Although Mr. Sun attempted to “sugar-coat” his action, expressing regret, it was indeed a callous and mean-spirited act that exposed Ms. Wang to significant jeopardy of being forced to leave Canada given her immigration status. Such an event would raise the issue of the child returning with Ms. Wang or staying in Canada with Mr. Sun.

[16] Ms. Wang had demanded to see the document filed by Mr. Sun to revoke the sponsorship application; however, Mr. Sun, in my view based on the evidence, procrastinated unduly in obtaining this document, offering long-winded and not credible explanations at trial concerning the delay in obtaining this document.

[17] For Ms. Wang, the withdrawal of the sponsorship application was the end of the marital relationship. Soon thereafter, Ms. Wang and the child travelled to China for a period of approximately 90 days from January to April 2016. Mr. Sun agreed with this trip and apparently signed all necessary documents to allow the trip to take place.

[18] On her return to Canada, Ms. Wang was clear that she regarded the marital relationship at an end and the parties in effect lived separate and apart under the same roof until June 2016.

[19] The withdrawal of the sponsorship application created great turmoil for Ms. Wang. She was unable to renew her work permit and, by February 2018, she was no longer able to continue her employment at a financial institution where she had been gainfully employed for a number of years.

[20] In order to avoid having to leave Canada, Ms. Wang made an application to Citizenship and Immigration Canada for permanent residence within Canada on humanitarian and compassionate grounds.

[21] During the time of her testimony at trial, Ms. Wang had not heard back regarding her application; she testified that this might be a process that could extend over two years. Ms. Wang did express concern in her testimony that there was some potential that she may be required to leave Canada by the end of 2018.

[22] However, somewhat fortuitously, near the end of the trial and after Ms. Wang had testified, Ms. Wang’s counsel, on consent, filed a letter forwarded to Ms. Wang from Citizenship and Immigration Canada and dated September 27, 2018.

[23] This letter confirmed that Citizenship and Immigration Canada had approved Ms. Wang’s request to allow application for permanent residency to be processed from within Canada on the basis of humanitarian and compassionate grounds.

[24] However, the letter explained that this is a two-step process and that, for the second step, Ms. Wang must meet all other statutory requirements of the Immigration and Refugee Protection Act. This could, for example, include medical, security and passport considerations and arrangements for Ms. Wang’s care and support. This letter also referred to a process lasting 12 to 24 months to make a final determination on Ms. Wang’s application for permanent residence. Ms. Wang has the ability, according to the letter, to apply to continue working in Canada while awaiting the finalization of her application.

[25] The trial proceeded on the basis that Ms. Wang will continue to reside in London, Ontario. There was consensus by both parties that if Ms. Wang is required to leave Canada, then that circumstance would trigger a motion to change.

[26] I find there is some merit to Mr. Sun’s complaints about difficulties making arrangements for access. This started with the surreptitious manner in which Ms. Wang took the child and moved from the matrimonial home on or about June 23, 2016. Ms. Wang arranged the move while Mr. Sun was at work; when he came home, there was only a note left, indicating that Ms. Wang and the child were in a safe place but providing no other information.

[27] There was no evidence at trial as to any specific event that had occurred to require Ms. Wang, for safety or other reasons, to execute a clandestine plan to flee the matrimonial home with the child. Ms. Wang had retained counsel (not her current trial counsel) at the time and her court application was issued at the same time that she was preparing to execute her plan.

[28] Mr. Sun, when he came home and found the note, was worried that something may have happened to Ms. Wang and the child; he called police, who were able to make contact with Ms. Wang and were able to assure Mr. Sun that Ms. Wang and the child were safe.

[29] I accept Mr. Sun’s evidence that he next saw the child on July 13 – her first birthday – which was almost three weeks following Ms. Wang’s sudden departure from the matrimonial home.

[30] Mr. Sun responded with an emergency motion, as a result of which he was able to have his first access visit, for two hours, that he exercised at Childreach as required by a court order.

[31] Pursuant to the next court order made July 20, 2016 on an interim without prejudice basis, the child’s primary residence was to be with Ms. Wang and Mr. Sun’s access was specified to be twice each week on a weekday for three hours, and for six hours each weekend on alternating Saturdays and Sundays from 10 a.m. to 4 p.m., with the weekend access to be extended to eight hours from 10 a.m. to 6 p.m. effective August 20, 2016. That order also required Ms. Wang to pay costs in the amount of $200.

[32] Following this order, it was necessary for the parties to engage in discussions to implement the weekday access as the order was not specific regarding the weekday or the times. Considering the evidence of both parties, I accept Mr. Sun’s evidence that it took to August 24, 2016 to agree to one of the weekdays being Wednesday from 5 to 8 p.m., and that it was not until October 31, 2016 that the parties were able to agree to the second weekday, being Monday from 5 to 8 p.m.

[33] I find that this delay to implement the weekday access portions of the July 20, 2016 order was neither necessary nor child-focussed, and is attributable mostly to Ms. Wang’s failure to act reasonably and with dispatch.

[34] The child’s access to her father then settled into a weekly routine, being 5 p.m. to 8 p.m. on Mondays and Wednesdays and each Saturday from 10 a.m. to 6 p.m. (the parties having agreed to the weekend access being on Saturdays rather than alternating Saturdays and Sundays). Access exchanges continued at Childreach.

[35] The parties agree that in March 2017, overnights were implemented. The weekly schedule became Wednesdays from 5 p.m. to 8 p.m. and each weekend from Friday at 5 p.m. to Saturday at 5 p.m., later changed to Friday at 7:30 p.m. to Saturday at 7:30 p.m. This schedule continued until May 2018 when Mr. Sun was charged with criminal harassment, as a result of Ms. Wang’s allegations that he was stalking her. More about that later.

[36] Until Mr. Sun was charged, the access exchanges continued at Childreach, with the exception of Fridays when the exchange took place at the financial institution where Ms. Wang was employed.

[37] It was Mr. Sun’s evidence that when the overnights were agreed to, that he lost one of his weekday visits because Ms. Wang had indicated to him it was a “take it or leave it” proposal if he wanted an overnight visit. Ms. Wang’s conduct to that point in relation to access raises concerns whether she was acting in the child’s best interests. There was no child-focussed reason to have deprived the child from seeing her father for about three weeks after Ms. Wang fled the matrimonial home; and as noted earlier, Ms. Wang failed to act reasonably in implementing the weekday access set out in the July 20th order.

[38] The evidence at trial supports no child-focussed reason to have removed the Monday weekday visit as a “price” for the weekend overnight visit. I find that Ms. Wang’s approach to access expansion was tainted somewhat by arbitrariness, focussed not on the child’s best interests but rather suggestive of an agenda to limit the child’s time with her father.

[39] Ms. Wang, for a significant period of time, engaged in videotaping access exchanges at Childreach. The maternal grandmother also did some videotaping. While Ms. Wang complained about some aspects of Mr. Sun’s conduct at access exchanges, I find on the evidence that the length and extent of the videotaping was inappropriate and displayed poor judgment.

[40] Notwithstanding the difficulties encountered by Mr. Sun in relation to access as discussed earlier, it is noteworthy that in or about May 2017, when Ms. Wang had to go to Toronto for a period of time for work-related training, that the parties agreed to cancel the midweek Wednesday access; this was an accommodation for Ms. Wang’s benefit, made with Mr. Sun’s cooperation.

[41] I deal now with the two “stalking” incidents, where Ms. Wang alleged that Mr. Sun, while driving in his vehicle, was purposely following Ms. Wang as she was driving her vehicle. Both alleged stalking incidents occurred after an access exchange at Childreach; in both cases, Mr. Sun had returned the child to Ms. Wang at the conclusion of his access visit. In relation to each of the two occurrences, Ms. Wang testified that Mr. Sun, in his vehicle, was following her as she was heading home driving north along Adelaide Street. In my view, the evidence at trial as it relates to these two occurrences, in totality, is trivial and merits little weight in arriving at a final decision regarding custody and access issues. I do, however, deal with these occurrences given the amount of time the parties spent at trial dealing with these matters.

[42] The first incident occurred on February 21, 2018 after the Wednesday access visit. I accept Mr. Sun’s evidence that after dropping off the child, that he purposely travelled north along Adelaide Street because he had decided to go to the Asian grocery store located on Adelaide Street close to the Huron Street intersection.

[43] Mr. Sun recalled seeing Ms. Wang’s vehicle on Adelaide Street near its intersection with Oxford Street. Mr. Sun at that point continued travelling north on Adelaide and went to the Asian grocery store.

[44] Ms. Wang’s evidence is consistent insofar as she testified that she saw Mr. Sun’s vehicle behind hers at “almost Adelaide and Oxford.” Ms. Wang then testified that she changed lanes trying to “get rid of him” but was unsuccessful; so she pulled into a gas station at the intersection of Adelaide and Cheapside and waited for “15 minutes.” Ms. Wang did testify that she saw Mr. Sun’s vehicle pass the gas station. This would be consistent with Mr. Sun’s evidence that he was heading to the Asian grocery store which was further north along Adelaide Street.

[45] Ms. Wang testified that, after waiting 15 minutes, she continued north along Adelaide Street. It was her evidence that she saw Mr. Sun “following” her again along Adelaide Street “around” the intersection at Windermere Street. She then turned around and took an indirect route home. She did not see Mr. Sun’s vehicle again.

[46] For his part, Mr. Sun, during cross-examination, said it was dark at the time and he did not notice Ms. Wang’s vehicle again that night (after seeing it near Oxford Street). However, importantly, it was his evidence that after leaving the Asian grocery store that he continued travelling north along Adelaide Street because he also went to the Sobeys grocery store near the intersection of Adelaide and Fanshawe.

[47] Consequently, Mr. Sun, in resuming travelling north along Adelaide Street towards Sobeys, after leaving the Asian grocery store, would have travelled along the same portion of Adelaide Street where Ms. Wang claimed to have seen Mr. Sun’s vehicle a second time.

[48] While there is no evidence as to how much time Mr. Sun spent at the Asian grocery store, it is plausible that Ms. Wang, given her 15 minute wait at the gas station, would have encountered Mr. Sun a second time as he resumed travelling north on Adelaide Street after leaving the Asian grocery store.

[49] In accepting Mr. Sun’s evidence as to his actions that evening, I find there is no credible evidence that Mr. Sun was stalking or deliberately following Ms. Wang.

[50] However, Ms. Wang convinced herself that she was being stalked and called the police; Mr. Sun testified that the police did attend at his residence to warn him not to follow Ms. Wang. No charge was laid.

[51] Mr. Sun testified that he was scared as a result of this incident, so he purchased a “dash cam” (referred to as “the camera”) from China. He received it two weeks later and installed it in his car. Mr. Sun testified he would turn the camera on after leaving the access exchange location after the conclusion of his access visit.

[52] The parties agree that on Saturday, April 21, 2018, that Ms. Wang had picked up the child at the Childreach location following Mr. Sun’s access visit.

[53] Ms. Wang testified in-chief that following the access exchange, on her way home, that she was travelling north on Adelaide Street and that, as she was approaching the intersection of Adelaide and Windermere, that she “found” that Mr. Sun was following her again. Ms. Wang testified that this was the first time that she had seen Mr. Sun’s vehicle following her departure from Childreach.

[54] Mr. Sun’s evidence was that after leaving Childreach, it was his intention to travel north along Adelaide Street to the Sobeys grocery store near the intersection of Adelaide and Fanshawe (being the same Sobeys store referred to in the earlier incident).

[55] Mr. Sun testified that he forgot to turn on the camera immediately on leaving Childreach, but that he did turn the camera on soon thereafter while on Adelaide Street at the Dundas Street intersection.

[56] The video taken by the camera was digitally placed onto a USB drive which was filed as an exhibit on consent. This video showed Mr. Sun travelling north on Adelaide Street from the Dundas Street intersection until he pulled into the parking lot at Sobeys near the intersection of Adelaide and Fanshawe. The camera displayed the time continuously as it was recording. The entire recording was just under ten minutes.

[57] There is no dispute, and Ms. Wang agreed during cross-examination while the video was being played for her, that her vehicle, travelling in the center northbound lane of Adelaide Street, can be seen passing Mr. Sun’s vehicle which was in the northbound curb lane. This occurred at a little over five minutes into the video recording. The location at which Ms. Wang’s vehicle passed Mr. Sun’s vehicle was close (just south) of the intersection of Adelaide and Huron; importantly, this location was well south of the intersection of Windermere and Adelaide which was the approximate location where Ms. Wang claimed that she first saw Mr. Sun’s vehicle. Mr. Sun’s evidence, that I accept and which is corroborated by the video, is that Mr. Sun had no intention to follow Ms. Wang – he was just heading to the Sobeys grocery store; further, Ms. Wang’s vehicle had been behind his vehicle until she passed him.

[58] Mr. Sun, when he realized that Ms. Wang had passed his vehicle, would have been wiser, as a precaution, to have taken a different route to the Sobeys grocery store given the earlier occurrence in February 2018; however, I am satisfied that Mr. Sun was no more “following” Ms. Wang than Ms. Wang was “following” Mr. Sun until she passed him.

[59] Ms. Wang’s evidence during cross-examination that Mr. Sun had slowed down and was waiting for her is baseless speculation not borne out by the evidence.

[60] Although the date stamp on the video recording was shown as April 22, 2018 (whereas the incident occurred April 21, 2018), Mr. Sun explained that the date is set via GPS for Chinese time, and that he had been unable to change that setting.

[61] I do not view this discrepancy as significant given Mr. Sun’s explanation, which I accept. Both parties agree that the access exchange did occur on April 21, 2018 and Ms. Sun was able to identify her vehicle in the video. I am satisfied that the video depicted what occurred on April 21, 2018.

[62] During her evidence in-chief, Ms. Wang failed to advise the court that she had passed Mr. Sun’s vehicle earlier. Either Ms. Wang did not notice Mr. Sun’s vehicle when she passed it; or Ms. Wang was aware that earlier she had passed Mr. Sun’s vehicle and gave false evidence that she first noticed Mr. Sun’s vehicle at a later time when it was behind her vehicle. While I am not prepared to find that Ms. Wang gave false evidence, I do remain suspicious as to Ms. Wang’s motive in accusing Mr. Sun of stalking her.

[63] As a result of the occurrence on April 21, 2018, Ms. Wang complained to police and Mr. Sun was charged on or about May 10, 2018 with criminal harassment.

[64] Part of Mr. Sun’s conditions contained in his undertaking when he was released from custody required him not to communicate directly or indirectly with Ms. Wang or to be within a specified distance of Ms. Wang and her residence.

[65] What is concerning is that after being charged, Mr. Sun had no access to the child until almost three months later in early August 2018. It became necessary for the parties to renegotiate the access exchange conditions because any contact between the parties was prohibited pursuant to the undertaking in the criminal proceeding. There were disagreements between the parties regarding access exchange locations and access times. Eventually, Mr. Sun had to bring another motion.

[66] Pursuant to an interim order made July 18, 2018, it was ordered that Mr. Sun have access every week from Wednesday at 5:30 p.m. until Thursday at 10 a.m. and every Friday from 5:30 p.m. to Saturday at 4:30 p.m. Access exchanges were ordered to take place at Merrymount: Family Support and Crisis Centre (“Merrymount”).

[67] It was Mr. Sun’s evidence that it was two weeks following the order that the first access visit was set up.

[68] At the time of trial, Mr. Sun’s criminal charge remained outstanding. Mr. Sun did testify that a copy of the video had been provided to the police.

B. Discussion

[69] Although the CLRA applies, the discussion below, and the factors considered, would lead to the same conclusion if this case was to be decided under the Divorce Act.

[70] I consider the factors in s. 24(2) of the CLRA in relation to the child’s best interests:

24(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

[71] Regarding cl. (a), the relationship between the child and each of her parents was one of the more positive aspects of the evidence.

[72] Ms. Wang’s care of the child has been exemplary. The child has been thriving in her primary care. Ms. Wang engages the child in many activities, including swimming, dancing and singing. Ms. Wang plays the piano and encourages the child to sing. She reads extensively to the child and teaches the child to speak Mandarin. Ms. Wang introduced the child to dance classes at age two; she involves the child in age-appropriate activities within the community.

[73] Mr. Sun agreed during cross-examination that his first access visit was the first time that he was alone having the child in his care.

[74] The maternal grandmother lived with the parties from December 2014 until June 2016, and thereafter the maternal grandmother continued to live with Ms. Wang and the child. The maternal grandmother accompanied Ms. Wang and the child to China for three months from January to April 2016; there was one occasion, for approximately one month after April 2016, when the maternal grandmother returned to China. The evidence demonstrates that the maternal grandmother is a significant part of the child’s life.

[75] I am satisfied on the evidence of Ms. Wang and the maternal grandmother, which I prefer over Mr. Sun’s evidence, that when the maternal grandmother lived with the parties, that she was a significant support for Ms. Wang both before the child was born and after. During this time, the maternal grandmother assumed responsibility for most of the household chores, including cleaning and cooking.

[76] Mr. Sun was busy with his employment responsibilities which led to the maternal grandmother becoming the primary support for Ms. Wang. Following the child’s birth, Mr. Sun was off work for approximately three weeks; on his return to work, the maternal grandmother continued in her role as the significant support for Ms. Wang and the child.

[77] Although Mr. Sun did spend time with the child and did activities with the child while the parties were still living in the same residence, the evidence satisfies me that Ms. Wang was the child’s primary caregiver with substantial assistance from the maternal grandmother.

[78] Ms. Wang’s parents have provided substantial financial assistance; they purchased for Ms. Wang an Audi sport utility vehicle and they purchased the house where Ms. Wang and the child continue to reside with the maternal grandmother.

[79] Mr. Sun has made an impressive effort to form a close bond and relationship with the child. Mr. Sun sought out appropriate parenting techniques by taking a number of parenting courses. Ms. Wang, seemingly unable to acknowledge anything positive that Mr. Sun does in relation to the child, was rather critical of the courses taken by Mr. Sun. This criticism, I find, was misplaced and symptomatic of Ms. Wang’s general negative view of Mr. Sun, including his parenting efforts.

[80] Particularly significant and commendable in relation to Mr. Sun’s evidence as to his relationship with the child was his ability to describe the child’s various stages of development and how he adapted his activities with the child to meet her changing needs.

[81] Mr. Sun is a very active child-centered parent when the child is with him. He engages the child in many activities, such as going to the park, YMCA and the library. At home, Mr. Sun and the child play together, listen to music, read, cook together and play with puzzles. Mr. Sun teaches the child English and speaks to her in English and Mandarin.

[82] Mr. Sun became quite adroit at applying the information learned at his parenting classes.

[83] Although Ms. Wang describes Mr. Sun’s parents mostly in negative terms, and claims that Mr. Sun has a poor relationship with his parents, I find little credible evidence to support those conclusions. I prefer Mr. Sun’s evidence as to his positive relationship with his parents. Mr. Sun gave evidence about the prospect of his mother (“paternal grandmother”) moving to London. The paternal grandmother has provided support to Mr. Sun in relation to his care of the child.

[84] The child is too young to ascertain her views and preferences: cl. (b).

[85] In relation to cl. (c), the child has been in Ms. Wang’s primary care, since birth, in a stable home environment; however, Mr. Sun, when the child is with him, also provides the child with stable parenting and a stable home environment.

[86] Regarding cl. (d), each party is eager, willing and capable of meeting the child’s individual needs.

[87] I address cls. (e), (f) and (g) together.

[88] The child has a caring and loving relationship with both parties. The child has a rich array of child-focussed activities with each parent, some of which complement each other. For example, Mr. Sun and Ms. Wang are each exposing the child to the Mandarin language.

[89] Unfortunately, the parties have done little to improve their relationship with each other, which is fraught with bickering and conflict. The parties presented conflicting evidence of each other’s behaviour at the hospital following the child’s birth.

[90] I am unable to accept Mr. Sun’s evidence that a parallel parenting regime is in the child’s best interests. The order proposed by Mr. Sun allows each party to make decisions about the child’s care. For example, the proposal for health care is that each party shall make health care decisions for the child, while the child is in that party’s care. I find that such a plan would foment argument and conflict between the parents. Neither parent would have final decision making authority over any aspect of the child’s life. Even if the arrangement gave one party authority over health care, for example, and the other party authority over education, these parties lack the necessary maturity and cooperation to navigate, successfully, the road of parallel parenting; this plan inevitably would degenerate into strife-plagued acrimony.

[91] The inescapable conclusion is that Ms. Wang and Mr. Sun function largely like two independent silos. They have created for the child a world of two solitudes, where the parents each focus all their attention on the child, with little or no positive interaction or communication with each other. The nature of their relationship, and conflict between them, is not conducive to any form of a successful parallel parenting regime.

[92] For her part, Ms. Wang views Mr. Sun with much suspicion and mistrust. She wants nothing to do with him. At the commencement of the trial, Mr. Sun was not aware of Ms. Wang’s residence address as she had purposely refused to disclose it. However, somewhat surprisingly, during her evidence in-chief, Ms. Wang readily disclosed her residence address. It was not clear on the evidence why Ms. Wang had not made this disclosure to Mr. Sun earlier.

[93] Some of Ms. Wang’s deep-rooted mistrust of Mr. Sun stems from his betrayal of her, and indirectly the child, when Mr. Sun withdrew his sponsorship application. Ms. Wang is a victim of spousal abuse, to which Mr. Sun pleaded guilty. However, Mr. Sun testified that he has benefitted from the Changing Ways program that he was required to attend.

[94] The level of antagonism and mistrust between the parties requires, on the facts, and in the child’s best interests, that Ms. Wang continue in her role as the sole custodial parent. Mr. Sun relies on the decision of Campbell v. Campbell, 2017 ONSC 3787. However, that case, I find, is distinguishable on its facts.

[95] Ms. Wang’s behaviour, discussed earlier, in relation to limiting Mr. Sun’s parenting time with the child, can be addressed properly by increasing Mr. Sun’s parenting time, by specifying exactly when the parenting time is and by limiting opportunities for Ms. Wang to have control over access days and access times.

[96] Mr. Sun’s participation in the child’s life also can be maintained, in the child’s best interests, by requiring consultation with Mr. Sun in relation to important decisions regarding the child.

[97] In her evidence, Ms. Wang mentioned the possibility of private education for the child. Mr. Sun, however, needs to have some control over the child’s education, and that is reflected in the order below.

[98] Each party has submitted a specific proposal regarding parenting time and various terms and conditions that should be included in a final order. I have considered those proposals in formulating the order below.

Spousal Support and Child Support

[99] The parties are not in dispute regarding their respective incomes for spousal support and child support purposes.

[100] For 2016 and 2017, Ms. Wang had an income of $20,185 and $39,827 respectively. For 2018, Ms. Wang last worked in February of that year. After February 2018, Ms. Wang’s income is zero. The circumstances of Ms. Wang being unable to work after February of 2018 were explained earlier in these reasons. However, it would be the court’s expectation that Ms. Wang would apply for a work permit as soon as possible, as she is apparently able to do, as explained in the letter from Citizenship and Immigration Canada referred to earlier.

[101] For 2016, 2017 and 2018, Mr. Sun’s income was $71,784, $82,757 and $101,398 respectively.

[102] For the purpose of dealing with spousal support on an ongoing basis, there is no dispute between the parties that Ms. Wang’s income on a go forward basis effective March 2018 and into 2019 should be zero and Mr. Sun’s income effective 2019 is $87,110. Mr. Sun’s income was higher in 2018 because he had a second job as a teaching instructor at a college and earned approximately $14,000. The evidence at trial was that he was not going to be renewing that contract for 2019.

[103] Mr. Sun’s income otherwise is derived from his fulltime employment at a financial institution.

[104] An interim order was made on September 27, 2017 that included child support and spousal support. In relation to child support, Mr. Sun was required to pay $751 per month, effective January 1, 2017, based on a “prorated” income of $83,566. In relation to interim spousal support, Mr. Sun was ordered to pay $400 per month commencing October 1, 2017 based on his income of $83,566 and Ms. Wang’s income of $34,000, on a without prejudice basis to readjust the spousal support retroactive to the date of separation.

A. Child Support

[105] The issue of child support in essence proceeds on consent.

[106] There was agreement by the parties to fix child support arrears at $1,452 up to and including September 30, 2018.

[107] As to ongoing child support, the parties agree that effective October 1, 2018 that the child support is $921 per month based on Mr. Sun’s income of $101,398. Effective January 1, 2019, the parties agree that the child support drops to $811 based on an income of $87,110.

[108] The foregoing is reflected in the final order made below.

B. Spousal Support

[109] After Ms. Wang and the child returned from China in or about April 2016, the parties continued to live separate and apart in the matrimonial home until June 23, 2016 as discussed earlier. There is no dispute between the parties that spousal support should be calculated from July 1, 2016 as they were now physically living and separately apart.

[110] In relation to “retroactive” spousal support, Ms. Wang proposed a simple solution. She is content that spousal support be quantified at $400 per month for the period commencing July 1, 2016 up to and including September 30, 2017, being the same amount as the current interim spousal support order. Ms. Wang also is content that the interim spousal support order, which started October 1, 2017, continue up to and including the end of February 2018 when Ms. Wang ceased employment.

[111] Mr. Sun, in relation to “retroactive” spousal support, had a more complicated approach. It was his submission that for the period July 1, 2016 to the end of February 2018 that for each calendar year that spousal support be calculated using the Spousal Support Advisory Guidelines (“SSAG”) based on the parties’ incomes for each of those respective years, and then fixing spousal support for each year at the midpoint of the SSAG range.

[112] In my view, it is not necessary to engage in the complexity as suggested by Mr. Sun. The SSAG calculations provided by Mr. Sun confirm that with the varying incomes for those three calendar years that $400 per month spousal support falls within the SSAG range for each of the three years, although the location within the range would vary depending on the incomes.

[113] Also, given the fluctuating incomes of the parties throughout this period, the reality is that there is little difference between using either approach.

[114] Considering that the current interim spousal support order commences October 1, 2017, I fix the “retroactive” portion of the spousal support for the period of July 1, 2016 up to and including September 30, 2017 at $400 per month. I find also that this is an appropriate circumstance to make a lump sum order.

[115] This produces a lump sum equivalent payment of $6,000 (15 months X $400).

[116] Given that the SSAG calculate spousal support on the basis of the income being tax deductible to the payor and taxable to the recipient, the lump sum approach needs to consider a discount for income tax and I use 20%. This percentage is consistent with the submissions made by the parties.

[117] The net amount of spousal support payable by way of lump sum for the period July 1, 2016 to September 30, 2017 is $4,800 ($6,000 – $1,200). The order below reflects this lump sum payment.

[118] Regarding spousal support for the period March 1, 2018 to the end of 2018, the parties agree that there should be no income for Ms. Wang and Mr. Sun’s income is $101,398.

[119] Mr. Sun submits that the spousal support should be the mid-range of the SSAG and Ms. Wang submits that the spousal support should be at the high end of the range. The SSAG ranges for low-mid-high are $1,896 - $2,165 - $2,441. I find that spousal support of $2,200 per month is appropriate.

[120] In relation to spousal support for the period commencing January 1, 2019, the parties agree that Ms. Wang’s income is zero and Mr. Sun’s income is $87,110. Ms. Wang seeks the high end of the range and Mr. Sun seeks the mid-range. I find that spousal support of $1,800 per month is appropriate. The low-mid-high ranges are $1,557 - $1,761 - $1,984.

[121] There is no dispute that Ms. Wang’s inability to work currently is related to her immigration status. Both parties are on common ground that the spousal support needs to be re-evaluated if and when Ms. Wang obtains employment.

[122] Accordingly, the order below addresses the adjustment of spousal support when Ms. Wang is able to work, and further contains various disclosure obligations for Ms. Wang to keep Mr. Sun advised as to her employment status and her work permit status and also requires the parties to exchange financial disclosure.

[123] As an incident of support, the order below deals with Mr. Sun’s obligation in relation to securing the child and spousal support obligation by life insurance. The evidence at trial was that Mr. Sun had $154,000 in group life insurance available to him from his employer. No evidence was led as to Mr. Sun’s insurability or the cost for Mr. Sun to obtain more life insurance. Mr. Sun should name Ms. Wang as the irrevocable beneficiary of all his group life insurance through his employer.

[124] The order below also deals with Mr. Sun’s obligation to keep Ms. Wang and the child covered under all his group employee health and drug plans.

Equalization Payment

[125] The parties have agreed that there is an equalization payment owing by Mr. Sun to Ms. Wang in the amount of $73,931.50. Ms. Wang had calculated the pre-judgment interest to October 1, 2018 in the amount of $1,650.15. No dispute was taken by Mr. Sun as to the calculation of pre-judgment interest.

[126] The parties agreed that Mr. Sun should have 90 days to pay the equalization payment.

[127] The order below reflects the equalization payment, pre-judgment interest and 90 days to pay.

Final Order

[128] For the foregoing reasons, a final order shall issue as follows:

1. Ms. Wang shall have custody of the child.

2. Mr. Sun shall have regular access to the child as follows: a) Week 1 i. 5 p.m. Monday to 9 a.m. Tuesday; ii. 5 p.m. Friday to 9 a.m. Monday; b) Week 2 i. Wednesday from 5 p.m. to 8 p.m.; and ii. 5 p.m. Thursday to 9 a.m. Friday; c) week 1 shall commence Monday, March 4, 2019 and week 2 shall commence Monday, March 11, 2019; and d) when the child is in school and a weekday pickup for Mr. Sun’s access visit is scheduled to occur at 5 p.m., then the pickup instead shall occur at the child’s school after the child finishes school; when the child is to be returned at 9 a.m. after an access visit on a weekday and the child is in school, then Mr. Sun shall drop the child off at school when school starts.

3. The following provisions override the regular access schedule: a) the child shall be with Mr. Sun on Father’s Day from 10 a.m. to 6 p.m. and with Ms. Wang on Mother’s Day from 10 a.m. to 6 p.m.; b) during Christmas in odd-numbered years, the child shall be with Ms. Wang from 1 p.m. December 24 to 1 p.m. December 25, and with Mr. Sun from 1 p.m. December 25 to 1 p.m. December 26; during Christmas in even-numbered years, the child shall be with Mr. Sun from 1 p.m. December 24 to 1 p.m. December 25, and with Ms. Wang from 1 p.m. December 25 to 1 p.m. December 26; c) for the Chinese New Year in even-numbered years, the child shall be with Mr. Sun from 10 a.m. to 6 p.m. Sunday if the Chinese New Year falls on a Sunday; otherwise, the child shall be with Mr. Sun from 10 a.m. to 6 p.m. on the first Sunday following the Chinese New Year; d) for the Chinese New Year in odd-numbered years, the child shall be with Ms. Wang from 10 a.m. to 6 p.m. Sunday if the Chinese New Year falls on a Sunday; otherwise, the child shall be with Ms. Wang from 10 a.m. to 6 p.m. on the first Sunday following the Chinese New Year; and e) after the child is enrolled in school, either party may travel with the child for a vacation during March break on giving written notice to the other by February 1st; Mr. Sun shall have that option in even-numbered years and Ms. Wang shall have that option in odd-numbered years; if there are no plans to travel with the child, then the regular access schedule shall continue during March break.

4. Each party is entitled to vacation time with the child, uninterrupted by access to the other parent as follows: a) for up to two weeks in 2019 to be taken prior to September 2019; the weeks may be taken consecutively; b) for up to three weeks commencing 2020 during the school summer vacation; the weeks may be taken consecutively; and c) each party shall give written notice to the other of his or her desired vacation weeks by May 1st of each year (except for 2019, the notice shall be given by April 1st); if there is a conflict in vacation times which the parties cannot resolve, then Mr. Sun’s vacation plans have priority in even-numbered years and Ms. Wang’s vacation plans have priority in odd-numbered years.

5. The following provisions apply with respect to vacations: a) each party, during his or her vacation time, may travel with the child within or outside of Canada; b) the parties shall work in a cooperative manner to facilitate each other’s international travel with the child including, in particular, travel to China; c) each party shall execute any and all travel documentation to permit the travelling party to travel with the child outside of Canada; and d) the travelling party shall provide the other with a complete travel itinerary and contact information for all travel outside of Canada; if the travel is within Canada, each party shall provide the same information if the travel is for a period in excess of five days.

6. The child’s original passport and original health card shall be in the possession of Ms. Wang, and the child’s original birth certificate shall be in the possession of Mr. Sun. The party having possession of the child’s original document shall provide that document to the other party for any period of time reasonably required by that party, including international travel, following which the original document shall be returned.

7. Notwithstanding the requirement that all vacation time with the child shall take place during the school summer vacation after the child is enrolled in school, if either party intends to travel to China with the child, then that travel may also occur in the spring and fall if the child is attending either junior or senior kindergarten and if the non-travelling party consents, such consent not to be unreasonably withheld.

8. The following provisions apply with respect to the child’s registration for school: a) the location of the child’s school shall be determined by Ms. Wang’s residence; Ms. Wang shall register the child for school commencing 2019 in the school that is located in the catchment area for Ms. Wang’s residence; b) the child shall not be registered in a publicly-funded school outside the catchment area of Ms. Wang’s residence, or in a private school, unless Mr. Sun consents in writing; c) the parties shall be listed at the child’s school as the first two emergency contacts; and d) each party shall have the same and equal right to attend at the child’s school, to meet with the child’s teacher, to attend parent-teacher interviews, to meet with the school principal, to meet with any school counsellor, to attend at any special school events involving the child and to receive all information regarding the child’s progress at school, including receipt of report cards.

9. Prior to making any major decision relating to the child, Ms. Wang first shall consult with Mr. Sun and shall provide him with reasonable notice and a reasonable opportunity to provide his viewpoint with the goal of reaching an agreement, failing which Ms. Wang shall make the final decision, subject to Mr. Sun bringing a motion to change and obtaining an order to override Ms. Wang’s decision. If Mr. Sun brings a motion to change, the requirement of demonstrating a material change in circumstances shall be deemed satisfied if Ms. Wang has failed to provide Mr. Sun with reasonable notice and a reasonable opportunity to provide his viewpoint prior to making the final decision. Major decisions that relate to the child’s health care are to be dealt with as provided in paragraph 10 of this order.

10. The following provisions apply to the child’s health care: a) either party make take the child to her routine doctor and dental appointments; Ms. Wang shall be primarily responsible for making the child’s doctor’s appointments and Mr. Sun shall be primarily responsible for making the child’s dental appointments; b) each party shall provide the other with a reasonable notice of any doctor or dental appointment, and the other may attend at the appointment; if only one party attends the appointment, he or she shall provide written notice to the other within 24 hours as to the outcome of the appointment; c) each party shall be responsible for, and has the authority to handle, any medical emergency relating to the child when the child is in that party’s care; the other party shall be notified immediately regarding the emergency and may attend at the place where the child is being treated; d) the parties shall cooperate and endeavor to reach consensus regarding any medical, dental or other health care treatment for the child, including surgery, based on the recommendations of the treating physician, dentist or other health care provider; if there is no agreement, the final decision shall be made by Ms. Wang, subject to Mr. Sun bringing a motion to change and obtaining an order overriding Ms. Wang’s decision; if Mr. Sun brings a motion to change, the requirement of demonstrating a material change in circumstances shall be deemed satisfied if Ms. Wang has failed to provide Mr. Sun with reasonable notice and a reasonable opportunity for discussion; and e) there shall be no changes to the child’s pediatrician or dentist unless both parties agree.

11. The child’s principal place of residence shall not be changed from London, Ontario except on the written consent of both parties or an order of this court.

12. The child’s name shall not be changed except on written consent of both parties.

13. The access exchanges for the child shall be as follows: a) if the child is in nursery school, the exchanges shall occur at the nursery school and, after the child has started school, the exchanges shall occur at the school; b) during the summer vacation, if the child is enrolled in a day camp or a similar program then, to the extent possible, the access exchanges shall occur at that location; c) subject to subparagraph d), if the locations listed in subparagraphs a) and b) are not available, then the pickup of the child at the beginning of Mr. Sun’s access shall occur at Ms. Wang’s residence, and the return of the child at the conclusion of the access visit shall occur at Mr. Sun’s residence; d) if any conditions, including an order, are in effect pursuant to the Criminal Code that prevent contact or communication, direct or indirect between the parties, then subparagraph c) shall not apply and instead the access exchanges shall take place at Merrymount: Family Support and Crisis Centre (“Merrymount”), and for that purpose all access returns that occur at 9 a.m. on a weekday are extended to 10 a.m.; if Merrymount is not available, then the access exchanges shall occur at Childreach located on Maitland Street in the playroom or, if the playroom is closed, then in the parking lot; also the parties are at liberty, on consent, to arrange any other location for access exchanges; the parties shall arrange for other persons to be present at the access exchanges to ensure that, at maximum, only one party is physically present; and e) each party may delegate a responsible adult known to the child to attend at any access exchange in place of the party; for Ms. Wang, this includes her parents and for Mr. Sun, this includes his parents.

14. On a presentation of a copy of this order: a) Ms. Wang and Mr. Sun are each entitled equally to receive copies of all records from a doctor, dentist, any other health care professional, counsellor, teacher and school principal, where the records pertain to the child; b) each party’s right pursuant to subparagraph a) includes the right to speak to, and be given information pertaining to the child from, all persons listed in subparagraph a); and c) where required, each party shall sign all necessary consents to permit the other party to obtain the records and information set out in subparagraphs a) and b).

15. Each party shall have reasonable telephone access to the child while the child is in the care of the other party, and this includes all forms of electronic communication when age appropriate.

16. The following applies in relation to enrolling the child in extracurricular activities: a) each party may enroll the child in one extracurricular activity; and b) while neither party is obligated to take the child to an activity during his or her parenting time if the activity has been scheduled by the other party, the parties shall schedule extracurricular activities in consultation with each other, and shall make all reasonable efforts, in the child’s best interests, to allow the child to maximize her attendance at extracurricular activities irrespective of whose parenting time the activities fall on.

17. Mr. Sun shall pay to Ms. Wang for the support of the child pursuant to s. 3(1)(a) of the Ontario Child Support Guidelines: a) $921 per month commencing October 1, 2018 based on an income of $101,398; and b) $811 per month commencing January 1, 2019 based on an income of $87,110.

18. For the period ending September 30, 2018, child support arrears are fixed at $1,452 and Mr. Sun shall pay this amount to Ms. Wang forthwith.

19. All child support payments made by Mr. Sun subsequent to September 30, 2018 pursuant to the existing interim order dated September 27, 2017 (requiring Mr. Sun to pay $751 per month interim child support) shall be credited to Mr. Sun’s obligation to pay periodic child support pursuant to paragraph 17 of this order.

20. Mr. Sun shall pay to Ms. Wang spousal support as follows: a) $2,200 per month commencing March 1, 2018; and b) $1,800 per month commencing January 1, 2019.

21. Mr. Sun shall pay forthwith to Ms. Wang spousal support arrears for the period July 1, 2016 to September 30, 2017 fixed in the lump sum amount of $4,800 with the said lump sum spousal support payment being neither taxable nor tax deductible.

22. All interim spousal support payments made by Mr. Sun on or after March 1, 2018 pursuant to the existing interim order dated September 27, 2017 (requiring Mr. Sun to pay interim spousal support in the amount of $400 per month) shall be credited to Mr. Sun’s obligation to pay periodic spousal support pursuant to paragraph 20 of this order.

23. Any expense, net of tax benefits, for the child incurred pursuant to s. 7 of the Ontario Child Support Guidelines shall be shared by the parties proportionate to their respective incomes, after taking into account the child’s contribution where appropriate; a party who plans to incur a s. 7 expense and seek contribution from the other party first shall obtain the other party’s consent, such consent not to be unreasonably withheld; if the parties are unable to agree on their respective contributions to a s. 7 expense, then a motion to change may be commenced.

24. Ms. Wang shall advise Mr. Sun immediately in writing if her immigration status changes to permit her to work, if she obtains a work permit or if she obtains employment; any of these occurrences shall constitute a material change in circumstances in relation to spousal support, and unless the parties are able to reach an agreement, a motion to change may be commenced. Ms. Wang, within 30 days, shall advise Mr. Sun in writing as to whether she has applied for a work permit, and the status of that application.

25. Mr. Sun shall pay within 90 days to Ms. Wang an equalization payment in the amount of $73,931.50, plus pre-judgment interest to October 1, 2018 in the amount of $1,650.15, plus pre-judgment interest at the rate specified in the Courts of Justice Act from October 1, 2018 to the date of this order.

26. Mr. Sun shall maintain coverage for Ms. Wang under all group health and drug benefit plans available through his current employer and any subsequent employer for so long as Mr. Sun is required to pay spousal support and for so long as Ms. Wang remains eligible for coverage.

27. Mr. Sun shall maintain coverage for the child under all group health and drug benefit plans available through his current employer and any subsequent employer for so long as Mr. Sun is required to pay child support and for so long as the child remains eligible for coverage.

28. Mr. Sun shall name Ms. Wang as the irrevocable beneficiary for all group life insurance benefits available through his current employer, and any subsequent employer, for so long as Mr. Sun is required to pay either spousal support or child support.

29. Within 30 days, Mr. Sun shall provide proof of compliance with paragraphs 27 and 28 of this order, and also within 30 days following any change in employment.

30. By June 1st of each year commencing 2019, the following financial disclosure shall be exchanged: a) subject to subparagraph d), the parties shall exchange, for the immediately preceding calendar year, copies of their respective T1 General income tax returns, with all slips and schedules, and their notices of assessment (including notices of reassessment, if any); b) the parties shall adjust the table amount of child support for the preceding calendar year based on Mr. Sun’s actual income for that year; any overpayment shall be credited to Mr. Sun commencing with the child support payment due July 1st until the overpayment has been credited in full; any underpayment shall be paid by Mr. Sun by July 1st; if required, the parties shall forward a signed consent to the Director of the Family Responsibility Office with a request that the Director shall enforce child support consistent with the executed consent and this order; c) subparagraph b) also shall apply to any s. 7 expense that has been quantified pursuant to a court order; and d) Ms. Wang’s obligation to provide disclosure as ordered in subparagraph a) shall apply only if Mr. Sun continues to have an obligation to pay spousal support or there is an existing order for the payment of a s. 7 expense.

31. Where this order requires the parties to communicate with each other, or give written notice to each other, and where the parties are prohibited from doing so as a result of an order, or conditions, pursuant to the Criminal Code, the parties shall communicate through counsel, or otherwise, in a manner that complies with any order or conditions pursuant to the Criminal Code.

32. The claim for a divorce is severed from all other claims and shall proceed pursuant to s. 36 of the Family Law Rules.

33. This final order is made pursuant to the Children's Law Reform Act and the Family Law Act.

34. If the parties are unable to agree on costs, then written costs submissions may be forwarded to the trial coordinator; the applicant shall forward her submissions within three weeks of the date of this order; the respondent shall forward his submissions within five weeks of the date of this order, and the applicant shall forward her reply submissions, if any, within six weeks of the date of this order; all written submissions are limited to three typed pages (two typed pages for the reply), double spaced, together with copies of any authorities, offers, bill of costs and time dockets.

“Justice Victor Mitrow” Justice Victor Mitrow Released: February 27, 2019

COURT FILE NO.: F751/16 DATE: February 27, 2019 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEEN: Xu Wang Applicant

• and - Wan-Peng Sun Respondent REASONS FOR JUDGMENT MITROW J. Released: February 27, 2019

[1] Final corollary relief orders under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) can only be made if a divorce has been granted pursuant to the Divorce Act: see Rothgiesser v. Rothgiesser, 2000 CarswellOnt 50 (Ont. C.A.) and Okmyansky v. Okmyansky, 2007 ONCA 427 (Ont. C.A.).