Court File and Parties
NEWMARKET COURT FILE NO.: FC-22-436-00 DATE: 20220318 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Xinxin Yan, Applicant AND: Qian Wan, Respondent
BEFORE: The Honourable Mr. Justice G.A. MacPherson
COUNSEL: R. Tao, Counsel for the Applicant P. Du, Counsel for the Respondent
HEARD: March 16, 2022
Ruling on Motion
Relief Requested
[1] The Applicant filed an urgent motion, before a Case Conference on short notice, requesting an Order:
(a) that the child, Miles Li Wan born January 13, 2017, be returned to Ontario and placed in the Applicant’s care;
(b) an Order vesting the property known municipally as 45 Walter English Drive in the name of the Applicant;
(c) that the Respondent refrain from depleting property;
(d) that the Respondent be restrained from depleting and/or disposing of property; and
(e) leave for the Applicant to file a Certificate of Pending Litigation (hereinafter “CPL”).
Service
[2] The Applicant served the Respondent by email on March 10, 2022 by sending the documents to: qianwan1988@gmail.com.
[3] Justice Speyer, on March 9, 2022, permitted service by email although the Endorsement does not indicate what email address.
[4] The Respondent has filed a response and did appear at the motion with counsel.
Urgency
[5] Justice Speyer, on March 9, 2022 determined that two issues were urgent and could proceed by way of urgent motion before a Case Conference:
(a) the request to have Miles returned to Ontario; and
(b) the request for a Certificate of Pending Litigation.
Brief Background
[6] The parties were married on December 20, 2014 and separated in or about July (Applicant) or August (Respondent) 2021.
[7] There is one child of the marriage namely, Miles Li Wan born January 13, 2017.
Request for a Return of Miles
[8] The parties and Miles lived in China from 2017 through January 2018.
[9] From January 2018 through July 2018 Miles lived with the Applicant in Canada.
[10] From July 2018 through December 2018 Miles lived in China.
[11] In 2019 Miles lived in Canada for part of the time and lived in China between March 2019 and July 2019.
[12] In December 2019 Miles and the Applicant went to China.
[13] The Applicant returned to Canada in October 2020. Miles remained in China.
[14] In June 2021, the Applicant returned to China and remained there until September 17, 2021.
[15] Miles from birth until December 2019 lived in both Canada and China. Since December 2019 (a period of two years and three months) Miles has lived in China.
[16] Pursuant to Rule 5 of the Family Law Rules, an application that deals with decision-making responsibility or parenting time the case shall be commenced where the child habitually resides.
[17] Miles has resided in China for the past two years and three months. He is registered in school and attends school. I am not satisfied, on this urgent motion, that Miles’ habitual residence is in Canada. Based on the evidence before me today, and I appreciate there is a dearth of it, Miles’ habitual residence is in China.
[18] The Court is unable to assume jurisdiction under section 22 (1) (b) of the Children’s Law Reform Act as Miles is not physically present in Ontario, and there is an application for decision-making and parenting time in China. An application for divorce was commenced in China on January 21, 2022 and that included a request for ‘custodial’ determination.
Certificate of Pending Litigation
[19] Section 103 of the Courts of Justice Act governs the issuance of CPLs. It provides:
The commencement of a proceeding in which an interest in land is in question is not notice of the proceeding to a person who is not a party until a certificate of pending litigation is issued by the court and the certificate is registered in the proper land registry office under subsection (2).
[20] Pursuant to Rule 40.03 (1) of the Rules of Civil Procedure, on a motion for an interlocutory injunction the moving party shall, unless the court orders otherwise, undertake to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to the Responding party for which the moving party ought to compensate the responding party.
[21] The moving party has not provided the undertaking aforementioned.
[22] The guiding principles in issuing a CPL are summarized by Master Glustein, as he then was, in Perruzza v. Spatone, 2010 ONSC 841 (Ont. S.C.J.) at para. 20.
[23] The moving party must:
(a) demonstrate that there is a triable issue with respect to the moving party's claim to an interest in the Property: Pacione v. Pacione, 2019 ONSC 813 (Ont. S.C.J.); and
(b) the Court must consider all relevant factors between the parties, including whether damages would be a satisfactory remedy, and balance the interests of the parties in exercising its discretion equitably. See also Natale v. Testa, 2018 ONSC 2823 (Ont. S.C.J.) at paras. 49 and 50.
[24] On a motion for a CPL it is not the Court’s role to make a determination of the underlying issues. Instead, the Court must make a determination in respect of the test for a CPL.
Analysis
[25] The parties were married for seven years.
[26] 45 Walter English Drive, was purchased in 2017 and is registered in the name of the Respondent. This property will form part of the parties’ net family property.
[27] The Applicant introduced sufficient evidence that the Respondent intended to sell the property. Following the Applicant registering Notice on the title to the property, the Respondent refused to provide any further details of the sale.
[28] The Applicant introduced evidence that the Respondent resides in China and may transfer the funds back to China if the property is sold, thereby frustrating the Applicant’s claim to equalization. Further, as I understand it, the Respondent has a business in China, he works in China and he lives in China.
[29] On January 21, 2022 the Respondent filed an Application seeking: a) a Divorce, b) ‘custody’ of the child, and c) a division of matrimonial assets in China. The Respondent resides in China and has done so continuously since March 2018 (save and except for 10 days in February 2019).
[30] On March 9, 2022, the Applicant filed an application for similar relief in Canada. It is noteworthy that the Application includes claims for divorce and corollary relief in her application that was filed in March 2022. The Applicant was residing in China:
a) July, 2017 – January 2018; b) July 2018 – December 2018; c) March 2019 – July 2019; d) December 2019 – October 2020; and e) June 2021 – September 2021.
[31] It is noteworthy that Section 3 of the Divorce Act requires a spouse to have been habitually in a province for at least one year immediately preceding the commencement of the proceeding.
[32] The child resides in China, and that appears to be the child’s habitual residence.
[33] Most assets related to the parties’ marriage are in China. They include two residential properties owned by the Respondent as well as his registered corporation.
[34] The only asset in Canada is the home owned by the Respondent.
[35] I am not satisfied, on the evidence before me, that the Applicant has an interest in the property. The Applicant may have a statutory entitlement to an equalization of net family properties. However, it is unclear what interest, if any, she has in the property.
[36] The Applicant is not an owner registered on title. The parties rented out the property in 2019 to third party tenants. 45 Walter English Drive is not a matrimonial home. The Applicant may very well have an entitlement to some value as a result of her claim to a division of net family properties but her interest in the property, right now, if any, remains unclear to me.
[37] The Applicant may have a beneficial interest in the property as a result of a constructive or resulting trust claim. The only evidence before the court in this respect is the following statement: “It was purchased with joint funds from our joint savings account with CIBC #-6298. The joint funds consisted (sic) the proceeds from the previous sale in 2017 of our former family residence at 19 Yakefarm Blvd., Stouffville, Ontario.”
[38] When weighing the relevant factors and balancing the interests of the parties, I am not inclined to exercise my discretion and grant leave to file a Certificate of Pending Litigation. The Respondent may very well suffer financially if the sale does not proceed. As stated, there is no undertaking regarding damages.
[39] In addition, the Respondent has demonstrated sufficient evidence that China may be the more appropriate forum for resolving the parties’ claims. The child is in China and has been for 2 ½ years. The Respondent resides in China and has done so continuously since March 2018 (save and except for 10 days in February 2019). The Applicant, in the last two years, has spent approximately equal time in Canada and China. Three out of four properties are in China. It is noteworthy that the Respondent filed his Application for relief in China in advance of the Applicant filing for the same relief here.
[40] For the reasons stated above, I decline to exercise discretion in respect of a CPL.
Order
The Applicant’s motion is dismissed.
If the parties cannot agree on the issue of costs regarding this motion, I shall consider the request for costs. The Respondent shall serve on the Applicant and file electronically, through the Trial Coordinator, his written submissions, limited to three pages exclusive of the Bill of Costs and Offers to Settle within 20 days of the date of this decision. The Applicant shall serve on the Respondent and file electronically, through the Trial Coordinator, her written submissions, limited to three pages, exclusive of the Bill of Costs and Offers to Settle within 10 days of receipt of the Respondent’s submissions. There shall be no right of Reply.
Justice G.A. MacPherson Released: March 18, 2022