Court File and Parties

NEWMARKET COURT FILE NO.: FC-20-1483-00 DATE: 20210504

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Guangnian Li, Applicant AND: Xueying Zhang, Respondent

BEFORE: The Honourable Mr. Justice R. Kaufman

COUNSEL: W. Chin (Celia) Hu, Counsel for the Applicant H. Wang, Counsel for the Respondent

HEARD: May 3, 2021

RULING ON MOTION

[1] The Respondent mother, resident in China, seeks leave to bring an urgent motion in advance of a Case Conference or, in the alternative, that the court fix an urgent Case Conference date.

[2] The purpose of the motion is to obtain an Order enabling the Respondent to apply for a renewal of the passport for the child AHZ-L without the Applicant’s consent.

[3] The Applicant father has been served with the motion and has not responded.

Background

[4] The parties commenced cohabitation in January 2010 and married on June 1, 2013.

[5] They are the parents of AYL, aged 7 and AHZ-L, aged 5.

[6] The parties separated on July 21, 2017.

[7] In December 2017, the Respondent went to China with the younger child. She indicates that her plan was to return to Canada some time in 2018 but her plan had to be abandoned because her maternal grandmother fell ill and then Covid came along.

[8] The Respondent wishes to enrol the child in grade 1, in China, in September 2021. She is unable to do so without the child having a current passport.

[9] Although the Applicant has not filed a responding affidavit, correspondence exchanged between counsel and marked as an exhibit to the Respondent’s affidavit, indicates that his preference is to finalize a parenting plan for both children.

[10] The Application was issued by the Applicant on October 15, 2020. On October 27, 2020, the Applicant placed an Urgent Motion, without notice, before the court seeking a form of injunctive relief with respect to a property owned by the Respondent. The motion material was dated October 14, 2020 and filed on October 27, 2020. The affidavit of the Applicant dated October 14 but also filed on October 27 describes financial transactions between the parties following separation. It indicates that the financial matters arising from their marriage and subsequent separation remain outstanding.

[11] The court rejected the Applicant’s Urgent Motion. It was of the opinion that the Applicant was seeking to gain leverage to try and force the Respondent to negotiate a Separation Agreement. The Motion was dismissed without prejudice to the Applicant relying on the events between the parties following separation in the event that the Respondent sought relief against him. After service of the Application, assuming an Answer is filed, the Applicant was at liberty to schedule a Case Conference.

[12] I do note that in his Application, the Applicant seeks custody (relief claimed prior to the amendments to the Divorce Act) of the older child who has continued to reside with him. He makes no claims for any type of parenting with respect to the younger child.

[13] According to the material before me, the Application has yet to be served. If it has, it does not appear that an Answer has been filed.

Determination

[14] The Respondent is residing in China. Her citizenship is unknown. The youngest child was born in Canada. Her affidavit indicates that she left for China in December 2017. It is presumed that she departed with the child with the consent of the Applicant. Presumably that consent would have been reduced into writing. This court has no knowledge of the terms of the consent; perhaps it permitted the departure but contained a stipulated return date as part of the consent.

[15] The affidavit indicates an expected return date in 2018 which was delayed due to illness. Did the Applicant consent to an extension of the visit to China? Presumably the maternal grandmother fell ill in 2018. What is the status of the illness? Has the maternal grandmother recovered? If so, when?

[16] The Respondent states in her affidavit “and then Covid came along.” Canadian borders were not immediately closed. What efforts did the Respondent make to return to Canada with the child? Was a further consent requested or provided by the Applicant?

[17] The Application indicates a date of separation in July 2017 and that the Respondent departed Canada in August 2017 and not December as she now attests. She also indicates an intention to return to Canada in 2018. Where was she intending to reside?

[18] Without a resolution of parenting plan, there are going to be problems. What happens when the Applicant needs to renew the older child’s passport? What if he wishes to travel outside Canada with the older child? His Application indicates travelling to Disneyworld and the Dominican Republic with the older child. How did he do that? Did he have a travel consent from the Respondent?

[19] This court is also mindful that if the Respondent decides not to return to Canada with the younger child and decides to remain in China that China is not a signatory to the Hague Convention. That will render meaningless any Orders made by this court in the future. Perhaps that is the reason why the Respondent has not filed an Answer?

[20] The Respondent has been outside Canada since 2017 (either August or December). She has had ample time to pursue a resolution of her outstanding issues with the Applicant, both regarding the parenting of their children and the financial issues arising from their marital breakdown. It is evident that when convenient, in 2018, the parties negotiated advances of funds and a determination of at least one property interest. When inconvenient, both parties attempt to rely upon the urgency of a matter to obtain relief from the court.

[21] Since the pandemic commenced, court time is scarce. Many matters have been delayed despite the efforts of the courts to provide access to the courts to litigants requiring a just determination of their outstanding disputes. If this matter is urgent, the urgency element could have been avoided between the Respondent’s departure from Canada and now.

[22] The primary objective of the Family Law Rules (O.Reg. 114/99 as amended) (“Rules”) is to enable the court to deal with cases justly. This includes ensuring that the procedure is fair to all parties, saves expense and time, deals with cases in ways that are appropriate to its importance and complexity and gives appropriate court resources to the case while taking into account the need to give resources to other cases. Of note, the court, the parties and their lawyers are all partners in applying the Rules of the court to promote the primary objective.

[23] Dealing with matters on a piecemeal basis or when the need arises runs contrary to the primary objectives of the Rules.

[24] This court also has too many questions outstanding with respect to the younger child being in China more than three years following his departure.

[25] This court would also be remiss in not stating its concern about two young brothers growing up as virtually total strangers to one another but presumably, the parents know better. As such, this concern does not impact on the decision rendered.

[26] The Respondent appears to have two options. She can negotiate with the Applicant to attempt to achieve a resolution to the issue of concern to her (or other issues of mutual concern) or she can deliver her Answer and Claim and then seek a Case Conference.

[27] This motion is dismissed as not being Urgent as contemplated by the Practice Direction for Central East Region or by Rule 14(4.2) of the Rules.

Justice R. Kaufman

Date: May 4, 2021