COURT FILE NO.: FS-17-421609
DATE: 20220811
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Feng Wang, Applicant
AND:
Min Li, Respondent
BEFORE: M. Kraft, J.
COUNSEL: Applicant, in person
Daniel Dominitz, acting for the Respondent
HEARD: August 9, 2022
ENDORSEMENT
- This is a motion brought by the applicant (“husband”) in which he seeks findings that the respondent (“wife”) and her counsel have deceived the court by forging documents within this family law proceeding; concealing the wife’s assets and income; committing perjury; and stealing his property after the date of separation. In particular, the husband asks the court to find the wife and her counsel in contempt pursuant to rule 31(5) of the Family Law Rules, O. reg. 114/99 (“FLRs”) and order
a. the wife to be imprisoned for 23 months;
b. the wife’s counsel, Daniel Dominitz, to be imprisoned for 11 months;
c. the wife to be ordered to pay a fine of $10,000 to the court;
d. the wife to be ordered to pay a fine to him in the sum of $10,000;
e. to transfer the matter of the wife’s forgery in an immigration application to the criminal court;
f. the wife to be restrained from disposing of or dealing in any manner with the matrimonial home, municipally known as 437 North Lake Road (“matrimonial home”) or 2391 Doane Road (“investment property”) pending the trial of this matter;
g. the wife to provide complete financial disclosure as set out in his request for information dated February 13, 2022; and
h. the wife to pay him spousal support in the sum of $2,500 a month.
- The wife seeks an order dismissing the husband’s motion with costs on the grounds that the husband’s allegations are baseless, vindicative and vexatious. She asks that the existing order of Papageorgiou, J., dated February 15, 2022, which prevents either party from bringing further motions before the court without first seeking directions or leave, to continue pending the trial of this matter; for a combined settlement conference/trial management conference to be scheduled; and for a case management judge be appointed to this matter.
Issues to be determined on the Motion
- The issues to be decided on the motion are as follows:
a. Should the wife and/or her counsel be found in contempt of the court on account of either person’s alleged perjury, forgery of documents and stealing of the husband’s property in the within proceeding?
b. If the answer to a. is yes, should the court order the wife to be imprisoned; the wife’s counsel to be imprisoned; the wife to pay a fine to the court; and/or the wife to pay a fine to the husband?
c. Should the court make an order restraining the wife from dealing with the matrimonial home and/or the investment property pending the trial of this matter pursuant to s.12 of the Family Law Act, R.S.O. 1990, c.F.3 (“FLA”); and
d. Does the husband have entitlement to spousal support and if so, should the wife be ordered to pay temporary spousal support to the husband in the sum of $2,500 a month.
The husband’s allegations regarding the wife and/or her counsel committing perjury, forgery, concealment of assets/income and theft of his property have not been proven by the evidence he has put forward on the record. Allegations of perjury, forgery, theft and deliberate non-disclosure should not be made lightly. Because these claims allege unlawful conduct, the mere making of such allegations in a court proceeding can damage a person’s reputation. When such allegations are made, they only serve to heighten the conflict between the parties and raise the temperature in family litigation dramatically. Such allegations reduce any prospect for compromise or settlement. Moreover, since such claims are difficult to prove and disprove, they almost always invariably lengthen and increase the cost of litigation.
What distinguishes the allegations made by the husband in this case from other family law cases where allegations are made by spouses against each other, is the scale, scope and complexity of the allegations of perjury, forgery and theft he makes against the wife and her counsel. The husband has accused the wife of being a Chinese Communist Party agent; of committing immigration fraud; of engaging in income tax evasion in Canada and China; of knowingly perjuring herself and of forging documents. He makes the same allegations against the wife’s counsel and accuses Mr. Dominitz of defaming him. The allegations made by the husband are vindictive. The husband has brought many motions in this family law proceeding making similar allegations over and over again, without regard for the damage these allegations may have caused. In addition, the husband admits to reporting the wife to various authorities and administrative bodies in Canada, including CRA, CBRA, and the police. He has deposed that he has caused a number of investigations to occur in China against the wife as a result of these allegations. The husband regularly threatens the wife, her family in China and the wife’s counsel. He does so in a bold and boastful manner without regard for the consequences of making such allegations that cannot be proven. Further, the husband has made complaints to the Law Society against the wife’s lawyer and regularly writes letters threatening Mr. Dominitz. Finally, the relief sought by the husband is not within the jurisdiction of this court. It is not open for a party in a family law case to ask the court to make a finding that another party engaged in criminal conduct. If the husband has reported the wife’s conduct to the police, which he has done on many occasions, it is up to the authorities to decide whether or not a crime has been committed and/or whether charges should be laid. Similarly, a party cannot hurl allegation after allegation at another party, asking the court to find that party in contempt of court, when there has been no breach of a court order. The first element of a contempt finding is that the party in question must be in breach of a court order.
To date, there have been seven court orders made in this case:
a. The order of Backhouse, J., dated July 23, 2018, that each party make disclosure and granting the parties leave to conduct questioning;
b. The ex parte order of Faieta, J., dated June 24, 2021, restraining the husband from annoying, harassing or molesting the wife or her adult child; coming within a 100 metres of the matrimonial home; and communicating with the wife directly or indirectly, except through counsel.
c. The order of Shore, J., dated July 27, 2021, continuing the restraining order against the husband.
d. The order of Papageorgiou, J., dated February 9, 2022, allowing the wife’s motion to sever the divorce to proceed; scheduling the husband’s within motion to a long motion date on August 9, 2022; and scheduling the time table of the delivery of responding and reply material and the exchange of Facta;
e. The order of Papageorgiou, J., dated February 15, 2022, that neither party be permitted to bring any further motion, other than the long motion and the wife’s motion to sever the divorce, without seeking directions of leave of the court by way of a 14B motion to her attention;
f. The order of Shore, J., dated March 10, 2022, dismissing the husband’s motion for since he did not seek directions or leave of the court to bring the motion, and ordering the husband to pay the wife costs of $500; and
g. The order of Shore, J., dated March 15, 2022, severing the divorce from the corollary relief; ordering the wife not to encumber or sell the matrimonial home pending the return of the long motion on August 9, 2022; and ordering the husband to pay the wife’s costs in the sum of $2,000.
None of the husband’s allegations against the wife nor her counsel relate to any of the seven operative orders in this proceeding. I find that the husband’s allegations against the wife and her lawyer are unfounded. The husband is cautioned from continuing to make baseless allegations in these proceedings as against the wife and/or her counsel. If the husband continues to make these allegations against the wife or her counsel, he runs the risk that the wife may bring a motion asking the court to declare him a vexatious litigant pursuant to s.140 of the Courts of Justice Act. A general characteristic of vexatious actions include those brought for improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights: Lang Michener Lash Johnston v Fabian, (1987), 59 O.R. (3d) 353. The husband’s correspondence to the wife’s lawyer includes baseless and damaging allegations of forgery, perjury, and theft with no supporting particulars. The husband deposes to having made complaints against the wife and her counsel to various authorities, including Mr. Dominitz’s regulatory body and he has accused the wife’s counsel of serious impropriety. His communications to the wife and Mr. Dominitz have been denigrating and threatening. This conduct must stop.
For the reasons set out below, I find that the wife is not in breach of any operative court order and, as such, all of the contempt relief sought by the husband is hereby dismissed. Similarly, the wife’s counsel is not found in contempt of any court order. Further, I find that the husband did not seek spousal support in his Application and, even if he had, he has not established a prima facie case for entitlement to spousal support. As such, the husband’s motion for temporary spousal support is dismissed. The husband request that the preservation order requiring the wife not to encumber or sell the matrimonial home remain in force, pending the next scheduled settlement conference/trial management conference is granted. However, the husband’s motion for a preservation order in connection with the investment property is dismissed.
Background:
The parties met online in and around October 2012, at which time the husband resided in Ontario and the wife was living in China.
In March 2013, the wife immigrated to Canada to marry the husband.
The parties were married on May 8, 2013. This is a second marriage for both of them. There are no children of their marriage.
The parties bought the matrimonial home in 2013. There is a dispute as to who paid for the matrimonial home.
The parties were married for 4 ½ years and separated on September 14, 2017.
On December 19, 2017, the husband issued this Application. He sought, among other things, a divorce, orders that the wife is holding the matrimonial home and various accounts in China in trust for him, a preservation order, and an order for the equalization of net family properties.
The parties have now been litigating longer than they were married.
According to the wife, she was subjected to family violence at the hands of the husband throughout the marriage.
On October 7, 2017, the husband was arrested and charged with assaulting the wife; pointing a firearm at the wife; uttering threats to cause the wife bodily harm and uttering a death threat to the wife.
On October 8, 2017, the husband was released from jail with terms of a Recognizance and a no-contact order as between the husband and wife.
On November 14, 2017, the husband was arrested for breaching the terms of his Recognizance and was charged with failure to comply with his Recognizance.
The criminal charges against the husband were adjudicated on terms of Recognizance which expired in 2018. According to the husband, the charges were withdrawn in July 2018.
Litigation History
On July 23, 2018, the parties attended a case conference before Backhouse, J., at which a disclosure order was made requiring both parties to produce documentation to one another and where leave was given for questioning to take place.
On July 24, 2021, the wife brought an ex parte motion seeking an order that the husband be restrained from harassing, annoying or molesting her and her adult child; attending within 100 metres of her or the matrimonial home; and contacting her, except through counsel, which order was made by Faieta, J. on that date. This motion was brought because the husband broke into the matrimonial home and contacted the police in an attempt to convince them that he owned the home and someone had broken into the home. The wife advised the police that title to the matrimonial home was in her sole name and that the husband had not resided in the home since the separation. The husband was asked to vacate the home, which he did. This incident was confirmed in a police report which was attached to the wife’s affidavit as an Exhibit.
On July 27, 2021, at the return of the wife’s motion, Shore, J. continued the restraining order, which remains in place today.
On January 4, 2022, the husband brought the within motion. The wife cross-moved to sever the divorce from the corollary relief issues. Both motions were initially returnable on January 24, 2022, at which Shore, J. ordered the matter to be case conferenced.
On February 9, 2022, the parties attended a case conference before Papageorgiou, J., at which the wife was given leave to bring a motion to sever the divorce; the husband was ordered to use his best efforts to provide the disclosure attached to the wife’s brief at Tab E by March 17, 2022; the parties consented to attend questioning, such that the husband was to be questioned on April 4, 2022 and the wife was to be questioned on April 5, 2022; and the husband’s motion was scheduled to be heard as a long motion on August 9, 2022. Papageorgiou, J. ordered the wife to provide responding material on June 30, 2022; the husband to provide reply material on July 11, 2022; Facta to be exchanged on July 26, 2022 and the long motion to proceed even if the husband had failed to provide the disclosure.
After the February 9, 2022 case conference, the husband proceeded to email the court staff indicating that he believed Papageorgiou, J. had made omissions in her Endorsement, dated February 9, 2022. As a result, a second case conference was scheduled for February 15, 2022.
On February 15, 2022, Papageorgiou, J. ordered that neither party be permitted to bring any other motions prior to the long motion without leave of the court, other than the motion to sever the divorce, for which she had given leave on February 9, 2022. If a party wished to bring a motion prior to the August 9, 2022 long motion, then the parties were directed to bring a 14B motion to her attention seeking directions and/or leave to do so. The husband did not attend the February 15, 2022 conference.
On March 15, 2022, Shore, J. ordered the divorce to be severed from the corollary relief; the wife not to dispose of or encumber the matrimonial home pending the hearing of the long motion; and the husband to pay the wife’s costs of the motion in the sum of $2,000 forthwith.
On July 4, 2022, the husband served his reply affidavit in accordance with the timetable set out by Papageorgiou, J., dated February 9, 2022. However, the husband also served a notice of motion, dated June 28, 2022, returnable August 9, 2022, seeking additional relief from that in his notice of motion, dated December 3, 2021.
On July 7, 2021, the husband served a Notice of Contempt motion on the wife, returnable on August 9, 2022.
In accordance with Papageorgiou, J.’s Endorsement, dated February 15, 2022, on July 14, 2022, the wife brought a form 14B motion seeking an order dismissing the husband’s notice of motion, dated June 28, 2022; dismissing the husband’s Notice of Contempt Motion, dated July 9, 2022, both of which were returnable on August 9, 2022 and costs in the sum of $500. In response, the husband brought a 14B motion seeking to dismiss the wife’s 14B motion on the grounds that it was an abuse of process.
On August 5, 2022, Pollack, J. denied the applicant’s 14B motion on the grounds that it was not an appropriate 14B motion to be heard in writing.
At the commencement of the long motion, the court addressed the husband’s breach of the Papageorgiou order advising him that he was to rely only on his notice of motion, dated December 3, 2021 and the affidavits he had filed in December 2021, along with the reply affidavit he filed on July 4, 2021. It was explained to the husband that since he did not seek directions from the court or leave to serve and file two new notices of motion, he was not permitted to rely on his Notice of Motion, dated June 28, 2022 and/or his Notice of Contempt Motion, dated July 7, 2022. While the husband appeared to understand the court’s direction, he insisted on relying on the two new Notices of Motion. Ultimately, the wife agreed to allow him to do so, in an effort to have the husband’s motion to be heard on the merits.
Issue One: Should the wife and/or her counsel be found in contempt of the court on account of the husband’s allegations that she has engaged in perjury, forgery of documents and theft of the husband’s property in the within proceeding?
Before a finding of contempt can be made, a party has to have failed to comply with a live court order. Rule 31(1) of the Family Law Rules, O. Reg. 114/99, as amended, governs motions for contempt of court orders in family law proceedings. The civil contempt remedy exists where a party fails to comply with a live or operative order of the court: Family Law Rules, r. 31(1); Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 2006 81792 (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27.
There are several components to the test for contempt of a court order. Civil contempt proceedings are quasi-criminal in nature, and therefore each element of the claim must be proven beyond a reasonable doubt (Bhatnager v. Canada (Minister of Employment and Immigration), [1990] S.C.R. 217 (S.C.C.); Carey, Supra.; Rogacki v. Belz (2003), 2003 12584 (ON CA), 67 O.R. (3d) 330 (C.A.); Prescott-Russell, Supra.; Fisher v. Fisher, 2003 2119 (ON SC), [2003] O.J. No. 976 (S.C.J.); Peers v. Poupore, 2012 ONCJ 306 (O.C.J.) Supra.; Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612 (S.C.C.); Vigneault v. Massey, [2014] O.J. No. 1435 (C.A), 2014 ONCA 244 (C.A)). The burden of proof rests with the party alleging the contempt (Brown v. Bezanson (2002), 2002 SKQB 148, 27 R.F.L. (5th) 1 (Sask. Q.B.); L. (A.G.) v. D. (K.B.), 2009 14788 (ON SC), [2009] O.J. No. 1342, 2009 CarswellOnt 1764 (S.C.J.); Peers, Supra.). Any doubt with respect to the necessary elements of a contempt case must be exercised in favour of the alleged contemnor (Prescott-Russell, Supra.; Peers, Supra.; Ricafort, Supra.; Hobbs v. Hobbs, 2008 ONCA 598, [2008] O.J. No. 3312 (Ont. C.A.); L. (A.G.) v. D. (K.B.), Supra.).
As set out in Jackson v. Jackson, 2016 ONSC 3466,
[49] The first element of the test for contempt of a court order is that there is a court order to be enforced. Given that the fundamental purpose of the civil contempt remedy is to protect and enforce private rights, it is only available to redress breaches of orders that are live and operative when the contempt finding is made, and which the aggrieved party wishes to enforce. It is not available for the purpose of sanctioning historical breaches of orders that have been superseded or are no longer governing the parties for any other reason as of the time when the contempt finding is made (Fiorito v. Wiggins, 2015 ONCA 729 (C.A.)). Rule 31(1) reinforces the private law enforcement purpose of the civil contempt remedy in family law cases by specifically stating that an order may be “enforced” by a contempt motion made in the case. To extend the use of the civil contempt remedy to cases where the purpose is not to enforce an outstanding order, but simply to sanction or deter misconduct in relation to orders that are no longer governing the parties, would fundamentally alter the concept of civil contempt by cloaking it with “the public dimension that lies at the heart of criminal contempt.” (Vidéotron Ltée. v. Industries Microlec Produits Électroniques Inc., 1992 29 (SCC), [1992] S.C.J. No. 79 (S.C.C.))). The Ontario Court of Appeal recently reinforced these points in Fiorito, where it stated that “the civil contempt remedy exists where a party fails to comply with a live or operative order” (at para. 17). In that case, the court set aside contempt findings and sentencing on the basis that the orders upon which the trial judge had based the contempt findings had been superseded by a final custody and access agreement that the parties had reached. The court concluded that the temporary orders were no longer operative at the time of the contempt finding, even though the Minutes of Settlement had never been incorporated into a court order, since the parties had been abiding by the terms of the Minutes of Settlement rather than the orders.
The husband has made serious allegations that the wife had committed perjury, forged documents filed in these proceedings and in an immigration application and stole property from him. It is on this basis that the husband asks this court to find the wife in contempt. He did not, however, link the allegations he has made against the wife, to the breach of any of the six operative court orders in this proceeding.
None of the wife’s conduct complained of by the husband is a breach of any of these court orders. As such, I find that there is no jurisdiction for this court to make the contempt orders sought by the husband given that the first element of the test for contempt of a court order is that there is a court order to be enforced.
Nonetheless, given the serious allegations made by the husband against the wife in both his affidavits, sworn on December 3, 2021 and on June 28, 2022, a review of these allegations is reproduced below with my determinations and comments as to whether any of these allegations amount to a breach of an operative court order in this proceeding. The allegations made by the husband can be grouped into four categories of a) perjury; b) concealment of her assets/income; c) forgery of documents in this proceeding: and c) theft of his property post- separation. I have arranged the allegations in each of these four categories and addressed each allegation:
Allegations against the Wife in the Husband’s affidavit, sworn on December 3, 2021:
a. Forgery Allegations
Forgery Allegations:
Determination / Comments
The husband alleges that in 2011, the wife forged financial documents related to “Henan Yingjia Business Company” to apply for the Quebec Investment Immigration Project. The husband states that he retained a lawyer in China who confirmed this company has never been registered or operated in Canada and that the wife had a lawyer forge this document. The wife’s immigration application was rejected by Quebec.
There was no evidence attached to the husband’s affidavit, sworn on December 3, 2021 nor his affidavit, sworn on June 28, 2022 to confirm these statements. They are bald allegations without any proof. In any event, even if the husband is correct that the wife forged financial documents in the context of an immigration application, she did not breach an operative court order in this proceeding, since this litigation was not commenced until 2017 and the remedy of civil contempt is, therefore, not available. The family court cannot punish a litigant for conduct that a party alleges is criminal. If a crime was, in fact, committed, the husband’s recourse is to report it to the police and if the police choose to investigate and charge the wife, that would be within their jurisdiction and the matter would proceed in the criminal courts.
The husband alleges that in May 2013, the wife used forged financial documents, concealed her real identity information, criminal arrest, prosecution information in China, concealed her assets and income and committed tax evasion in Canada of approximately $4.35 million (CAD). According to the husband, the wife forged financial documents when she applied for family immigration, which was not detected by the Immigration Department. The husband deposes that he, unknowingly, applied for reunion immigration so the wife could come to Canada which was approved by Canada Immigration
These are bald allegations made by the husband without any documentation or proof provided. However, even if the allegations made by the husband prove to be correct, an operative court order was not breached by the wife, as no litigation had been commenced in May 2013. The husband deposes that he filed reports to Canada (CBSA) and CRA to commence an official investigation. If these reports result in any wrongdoing, it will up to the authorities involved, such as Canada Immigration or CRA to determine what, if any, consequences arise.
The husband alleges that the wife forged her identity documents and withheld the information that she is a member of the Communist Party of China, secretary of the general branch. He alleges that in 2006, the wife joined the United Front Work Department as an informant in Jiyuan City, Henan Province, China. In September 2008, he claims the wife accepted the training fee paid by the United Front Work Department.
The husband provides no documents verifying these allegations. Even if the allegations are true, the wife’s member in a political party is irrelevant to the family law issues before this court. Either way, these allegations if true, do not breach an existing court order in this matter and therefore, the remedy of contempt is not available.
b. Perjury Allegations
Perjury Allegations
Determination / Comments
The husband alleges that the wife falsely accused him of family violence resulting in his initial arrest and charges in October 2017 and the second arrest of failing to follow his Recognizance in November 2017.
There is no operative court order in this proceeding that the wife breached, making the remedy of civil contempt available to the husband. There are other remedies the husband may have against the wife such as damages, if he can prove that the allegations she made were false and caused him emotional pain and suffering. However, the husband did not plead damages in his Application issued on December 19, 2017.
c. Concealed Assets / Income
Concealed Assets / Income
Determination / Comments
The husband alleges that the wife concealed assets and income and was involved in tax evasion crimes in China. He deposes that on September 9, 2021, the Chinese law enforcement agency emailed him notifying that they are formally investigating the matter. In terms of the wife concealing assets and income in the family case, the husband alleges that the wife holds 48 sets (rooms) of Chinese properties of which 45 sets (rooms) are commercial properties that are leased out and she only disclosed owning three properties in China.
In terms of income, the husband alleges that the wife has not disclosed her investment income from both Hong Kong and China of about $1.2 million CAD for the period 2013 to 2017.
If the husband’s allegations about tax evasion crimes in Canada prove to be true, then the Chinese authorities will investigate the matter and determine what, if any, penalties or consequences the wife may face. The wife’s financial statement, sworn on June 30, 2022 clearly lists the 3 properties she owns in China. The property at 2-1-301 Backyard of Planning Architecture Design Institute was purchased by the wife in 2003 as a one-unit apartment. In 2008, the wife re-modelled it into two separate units. She and her parents resided in one unit and the wife sold the other unit to one of her employees. The unit she retained is listed as a date of marriage asset in the wife’s financial statement. During the marriage, the wife’s parents relocated to a unit at East 20 Floor, Jian ye No. 1, ChengBeng, which the wife disclosed on her financial statement.
With respect to the property at Yingjia Commercial/Residential Building on JiShui Street that the husband lists as 45 separate units, the wife disclosed her ownership in the property on JiShui Street which has a value on the date of separation of $3,644,100. This property contains 40 units and the wife disclosed it as one building. In any event, even if the husband is correct that the wife failed to disclose a property she owns in China, this is not a breach of an order that would result in a contempt remedy.
With respect to the wife’s income from China for the period 2013 to 2017, the family law proceedings were not initiated by the husband until 2017. The wife has sworn financial statements in this proceeding and if it turns out that the trial judge determines that she has not fully disclosed her income, then a negative inference will be drawn against her and income could be imputed to her. Again, there is no operative court order that exists in this proceeding which the wife has breached triggering the husband’s right to bring a motion for contempt.
d. Allegations of Theft
Stolen Property from the Husband
Determination / Comments
The husband produced copies bank statements as Exhibits to his affidavit to verify that when he was in jail as a result of his arrest, the wife stole funds from his bank account and incurred charges on a credit card in his name.
The statements attached to the husband’s affidavit do not prove that the wife stole these funds. Rather, they show that monies were withdrawn from the husband’s accounts and charges were made on credit cards. Even if the husband is correct, there is no operative court order that the wife has breached. If the wife unilaterally took funds from the husband without his consent after separation, then the trial judge hearing this matter will address this as a post-separation adjustment to the division of the parties’ net family property. Contempt is not a remedy available to the husband.
The husband alleges that the wife has criminal prosecutions and arrests in China from January 10, 2008
Even if this is correct, there is no court order in this proceeding breached by the wife triggering contempt remedies. These allegations are not proven and in any event, pre-date the parties’ marriage and have no bearing on the family law issues.
Allegations against the Wife in the Husband’s affidavit, sworn on June 28, 2022:
a. Forgery Allegations
Forgery Allegations
Determination / Comments
The husband alleges the wife forged a Chinese asset assessment report which he attached to his affidavit as Exhibit “C”. Specifically, he alleges that the wife forged and fabricated a Chinese company, named JiYuanXIChengGuangFA Real Estate Information Centre, which prepared an assessment of the market value of her commercial and residential building located at Yingjia Commercial and Residential Building, JiShui Street, JiYuan. The husband’s complaint is that the company retained by the wife to conduct an appraisal of her commercial properties in China was completed by a company that is not qualified to appraise real estate. Exhibit “D” to the husband’s affidavit is a document that confirms the wife has a 95% ownership in the Henan Yingjia Commercial Building and her daughter holds a 5% interest in and states that the JiyuanXichengGuangfa Real Estate Information Service Centre was a company who registration was cancelled as of February 22, 2017 and is a company not qualified to conduct real estate appraisals. Since the wife filed an appraisal report from this company on April 4, 2018, the husband alleges that the appraisal report is a forged assessment report.
If the husband is correct and it is determined that either the wife obtained an appraisal report from a company not qualified to conduct appraisals or the wife’s report is a forgery, in filing the report the wife did not breach an operative court order. When the matter of property division is dealt with a trial, it is open to the husband to attempt to discredit the wife’s appraisal report and, if successful, he can argue that the court should disregard the report, give little or no weight to the report, and/or prefer his evidence as to the value of her commercial property in China to the wife’s evidence. The remedy of civil contempt isn’t triggered in this circumstance.
b. Perjury Allegations
Perjury Allegations
Determination / Comments
The husband alleges the wife committed perjury because she swore an affidavit in this proceeding in which she deposed that she sold her Chinese architect company in 2013 of $2.13 million USD. Attached to the husband’s affidavit as Exhibit “W” is a Chinese document which the husband claims is an official Chinese government document which is translated (however, no certified copy of a translation was provided) which confirms that the wife sold her business in China on November 27, 2013 for $3 million RMB.
The wife attached to her affidavit at Exhibit “C” a copy of an affidavit of Matthew Kroftchick, a Chartered Business Valuator, who prepared an expert report in this matter tracing funds from the wife’s investment account with Changjiang Securities on August 9, 2013 of Y5 million which were used to purchase the matrimonial hoe and to account for the funds the wife received regarding the sale of her business. The Expert report, dated June 24, 2022, confirms that the wife sold her design and architectural firm. Jiyuan City Planning and Architecture Design. to Mr. Weiman Zhang for Y5 million and that Mr. Zhang at the time of purchase repaid his debt to the wife in the sum of Y3.8 Million, thereby, making the total payment from Mr. Zhang to the wife Y8.8 million.
If the husband is correct that the wife lied in her financial statement then this will impact credibility. Either way, the wife did not breach an operative order and contempt is not an available remedy.
The husband alleges that the wife and her counsel blatantly perjured and deceived the judge by referencing that they had video footage showing the husband stealing the wife’s Rolex from the matrimonial home in 2018. The husband deposes that the video footage provided by the wife on February 15, 2002 shows the husband trying to enter the home in the presence of police officers.
The wife denies the husband’s allegations. The wife’s affidavit does not state that she has video footage of the husband stealing her Rolex. She does attach a copy of a bank draft in the sum of $32,000 payable to Damiani Jewellers Ltd. to identify the source of the funds she used to purchase a Rolex watch. This evidence is contrary to the husband’s Exhibit which shows the back of a watch but does not verify that the Rolex belongs to him. In terms of video footage, the wife’s affidavit refers to an incident that took place on June 16, 2021 in which she deposes the husband broke into the matrimonial home and called the police to report a break in. The wife attaches a copy of the police Report from the incident which verifies her version of events. Paragraph 37 of the wife’s affidavit refers to security footage relating to the June 16, 2021 incident and not a Rolex watch. In any case, there is no court order requiring the wife to produce video footage of the husband breaking into the home in 2018. Accordingly, there is no breach of an order and contempt is not an available remedy.
c. Allegations of Theft
Allegations of Stolen Property
Determination / Comments
The husband alleges that when he was arrested and forced to leave the matrimonial home, the wife stole high-end furniture, oil paintings, Italian art, high-end cowhide sofas, handmade canoes, fitness equipment, jewelry and Rolex watches from the home. In support of the husband’s allegations, he attaches comparison photographs of the house which show rooms with household contents and photographs of the house empty at Exhibit “F”. None of the photographs are date stamped. The husband also attached photographs of stolen Jewellery taken at 2391 Doane Road in September 2019, as Exhibit “G” to confirm that the wife and the husband’s younger brother, Mr. Yue Zhang, have some the items in question. Again, the photographs in the Exhibit are not date stamped.
The pictures provided by the husband do not prove that the wife stole any items from the house. Rather, they show pictures of a house with contents and pictures of empty rooms. Even if the allegations are true that the wife took items from the matrimonial home without the husband’s consent when he was arrested, the wife did not breach an operative court order triggering the remedy of contempt. Again, this is an issue that can be dealt with at trial when the property division is determined. Items removed from the house can be valued and the equalization payment can be adjusted for unilateral removal. Alternatively, the husband could seek the return of the items at trial or an order that the wife pay him a specific sum for half of the items taken that he claims belong to him.
The husband alleges that the wife and his younger brother, Ms. Yue Zhang, stole cash and stocks worth $3.4 million CAD from him. As proof for this allegation, the husband attaches bank records from the Bank of China and ICBC showing balances in 2012 and 2013, as Exhibit “I”; bank records that show deposits of funds from Chinese relatives in Canada between 2013 and 2015 to the husband (most statements are in Chinese and were not translated), along with a flowchart which attempts to trace the source of funds, which is undated and could have been prepared by any third party, as Exhibit “J”; As Exhibit “K” the husband attached a receipt, dated November 14, 2017, which states that the wife received $123,150 CAD from Yifeng Xu and Yingxing Ma, which is payment of her private loan of $120,000 on March 9, 2017. He claims that when he was released from jail he has debt in his name of $81,966.25 CAD and that he is living on Ontario works of $798 a month.
There is no proof that these funds were stolen by the wife or the husband’s younger brother. There is no evidence on the record before me which conclusively proves the husband’s allegations which are denied by the wife. Again, even if the allegations are true, there is no court order that the wife has breached in this proceeding which triggers the civil contempt remedy. If the husband is correct that the wife unilaterally took funds from his accounts without his consent, this will be addressed at trial as a post-separation adjustment to property division.
The husband alleges that the wife and his younger brother conspired together, called Rogers and pretended to be him and stole the ownership in his phone numbers 647-832-5555 and 647-949-5555 which he claimed he purchased between 2009 and 2013. He also alleges that the wife sole his social software QQ: 99801541.
If the husband’s allegations are true, the wife did not breach a court order and the remedy of civil contempt is not triggered.
Given my findings that the wife has not breached any operative orders of the court, the contempt relief sought by the husband is not within the jurisdiction of the court and it is not necessary for me to answer issue #2 and/or determine whether the wife ought to be imprisoned or pay a fine to the court or to the husband.
The husband’s allegations against the wife’s counsel are highly inflammatory. He has written numerous letters threatening to report the wife’s counsel criminally, to the Law Society and other authorities. He has accused the wife’s counsel of perjury and forgery. Examples of inappropriate statements made about the wife’s counsel in the husband’s affidavit, sworn on December 7, 2021, include the following:
a. “The true intention of Respondent and Daniel Dominitz, J.D. is to mislead and deceived family law judges, damage my reputation, and obtain a superior position in divorce cases and property division cases”;
b. “Respondent, Daniel Dominitz, J.D. Family Court, slandered me for the third time for illegal possession of firearms;”
c. “The behaviour of Respondent, Daniel Dominitz, J.D. is worse than Sarah-Jane Parkinson, an Australian sick liar!”;
d. “Respondent and Daniel Dominitz, J.D. had no moral bottom-line behaviour and have seriously violated my constitutional power!”
- The allegations made by the husband against the wife’s counsel are very serious allegations that are baseless. The husband shall not communicate with the wife’s lawyer in which he denigrates Mr. Dominitz, threatens him or makes allegations of improper behaviour against him. The husband’s communications with Mr. Dominitz shall be brief, informative and contain pertinent information regarding this proceeding only. The husband is reminded that the wife’s counsel is an advocate for the wife and he does not owe the husband a duty of care.
Issue three: Should the court make an order restraining the wife from dealing with the matrimonial home and investment property pending the trial of this matter pursuant to [s.12](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html) of the [Family Law Act,](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html) R.S.O. 1990, c.F.3 (“FLA”)?
On consent, the wife agreed that she would not encumber or sell the matrimonial home pending the long motion. The husband seeks that the preservation order of Shore, J., dated March 15, 2022, remain in force. The order of Shore, J. does not, however, require the wife to preserve the investment property.
Section 12 of the Family Law Act, R.S.O. 1990, c.F.3 (“FLA”), provides the court with jurisdiction to make an interim or final order restraining the depletion of a spouse’s property it is considers it necessary for the protection of the other spouse’s interest under Part 1 of the FLA.
Given that neither party presented evidence on the record for this motion as to which party owes the other an equalization payment, I cannot determine whether the husband would be prejudiced if the wife were permitted to encumber and/or sell the matrimonial home and the investment property pending trial. The purpose of an order under s.12 of the FLA is to ensure that there are sufficient assets to make an equalization payment once the court determined such payment and makes an order under s.9 of the FLA: Lasch v. Lasch (1988), 64 O.R. (3d) 464, para. 13.
The onus is on the husband to establish the strength of his claim for an equalization payment in seeking to extend the existing preservation order and to obtain an order that the wife also preserve the investment property. As set out in Bronfman v. Bronfman, 200 22710 (ONSC) by Sachs, J,
“A court will want to consider how likely it is that the plaintiff or petitioner will receive an equalization payment. It will also want to consider the effect that granting, or not granting, such an order will have on the parties. Under s.12, the agenda is to protect the spouse’s interests under the Family Law Act, so that if a spouse is successful in obtaining relief under that Act, there are assets available to satisfy that relief. Relevant to this exercise is an assessment of the risk of dissipation of the assets in existence prior to the trial.
There are certain cases where the factual record, and the applicable legal principles, make it very clear that a spouse will be entitled to an equalization payment in a particular amount. In such cases, considerable weight will be given by the court to this factor when deciding an interim application under s. 12, and perhaps less weight to the other factors. There are others where the facts and the law are disputed and complicated. ... In such cases, the court will want to go on and give serious consideration to the other factors, being the balance of convenience and the risk of dissipation prior to trial. [Emphasis added.]
In Taus v. Harry, 2016 ONSC 219, Justice Gauthier held, at para. 35, that the test under s. 12 or s. 40 is the same: “The question to be asked is whether there is a real risk that the applicant's equalization claim and claim for retroactive support could be defeated if the preservation/non-dissipation order is not made.” In that case, equalization had not been determined, with each party saying the other would owe a significant amount.
Price v. Price, 2016 ONSC 728 is an example where there was no evidence a significant equalization payment would be required. In fact, the applicant, who had obtained a preservation order on an ex parte basis, failed to show any likelihood that she would be entitled to equalization. Justice Timms set aside the preservation order. In doing so, he said (at para. 6), “The correct standard is the same one to be applied when determining whether to grant an interim injunction.”
In the more recent decision of Conforti v. Conforti, 2021 ONSC 1767, Chown J. found that the merits of the wife’s claim were weak and that there was no evidence that the husband would her a significant or even any amount of money. Further, there was no evidence to support her concern that the husband would hide or deplete assets. As a result, a preservation order was not made.
The husband has not made out a case to demonstrate that he will be owed an equalization payment by the wife. There is no net family property statement on the record before me and the marriage is under 5 years. There are, however, serious allegations made by the husband that the wife has unilaterally removed funds from his accounts and allegations that the wife has failed to fully disclose her assets and/or income in this proceeding. On a written record, I cannot determine whether these allegations have any merit. I am concerned that if I permit the wife to encumber or sell the matrimonial home and it is determined that the husband is owed an equalization payment by the wife, there could be potential irreparable harm. Accordingly, the preservation order of Shore, J., dated March 15, 2020, will be extended pending the combined Settlement Conference/Trial Management Conference. The husband’s motion for a preservation order in connection with the investment property is hereby dismissed.
Issue Four: Does the husband have entitlement to spousal support and if so, should the wife be ordered to pay temporary spousal support to the husband in the sum of $2,500 a month?
The husband did not make any submissions at the motion regarding his entitlement to spousal support. He seeks spousal support of $2,500 a month in his notice of motion, dated December 3, 2021. However, his affidavit does not establish that he has entitlement to spousal support.
The husband’s evidence is that he is currently in receipt of Ontario Works in the sum of $798 a month and he has debt in excess of $80,000. The fact that the husband has need for more income does not translate into entitlement on his part to spousal support from the wife.
The husband’s application was issued on December 19, 2017. In his pleading, he seeks a divorce, a declaration that the wife is holding title to the matrimonial home in trust for him; an order listing the matrimonial home for sale; a declaration that the wife is holding all funds in Changjiang Securities and a Hong Kong HSBC account, Bank of China account in trust for him and her; an order restraining the depletion of the wife’s property; an order that the wife provide financial disclosure to hm; an order for the equalization of the parties’ net family properties and costs. The husband did not seek spousal support. Accordingly, the husband cannot now seek a temporary order for spousal support unless he seeks directions or leave of the court to amend his pleading.
Even if the husband seeks directions or leave of the court to bring a motion for temporary spousal support and is successful, he first has to establish entitlement to spousal support. This was a short-term 4 ½ year marriage. Neither party worked during the marriage. The evidence of the parties is that they each lived off their own investment income and/or capital. The parties do not have children together and did not assume roles in their marriage that resulted in either one of them having an economic disadvantage by virtue of such roles or expectations. If there is any entitlement on the husband’s part for spousal support it has not been established on the written record.
ORDER
- Accordingly, this court makes the following order:
a. The applicant’s motion in which he seeks findings that the respondent has committed perjury; forged documents in this proceeding; concealed her assets/income and/or stole his property is hereby dismissed;
b. The applicant’s motion in which he seeks an order that the respondent be found in contempt of court and that she be imprisoned; pay him a fine; pay the court a fine; and that this case be transferred to the criminal court, is hereby dismissed.
c. The applicant’s motion in which he seeks an order that the respondent’s counsel, Daniel Dominitz, be found in contempt of court and that he be imprisoned and pay him a fine is hereby dismissed.
d. The order of Shore, J., dated March 15, 2022 is hereby extended such that the respondent is restrained from depleting, disposing of, encumbering or otherwise dealing with the matrimonial home pending the date of the combined settlement conference/trial management conference.
e. The applicant’s motion for temporary spousal support is hereby dismissed, without prejudice to his right to seek leave to bring a motion to amend his pleadings pursuant to the Family Law Rules if he intends to seek spousal support at trial;
f. The order of Papageorgiou, J., dated February 15, 2022 is hereby extended such that neither party is permitted to bring a motion in this matter without seeking directions or leave of the court by way of a 14B motion to the attention of the case management judge.
g. The order of Faieta, J., dated June 24, 2021 restraining the applicant from annoying, harassing or molesting the respondent, coming within 100 metres of the matrimonial home and/or having any direct or indirect communication with the respondent, which was extended by the order of Shore, J., dated July 27, 2021, remains in force pending the trial of this matter.
h. There shall be a judge appointed to case manage this matter going forward.
i. The parties shall attend a combined Settlement Conference/Trial Management Conference on December 5, 2022 at 12:00 p.m. In addition to serving and filing Settlement Conference briefs, the parties shall complete Trial Scheduling Endorsement Forms and upload same onto Caselines so a determination can be made as to the length of the trial at the conference and a trial date can be scheduled. If this date is not agreeable, counsel for the wife shall contact the Family Law Trial office and obtain the next available date.
j. The applicant shall refrain from sending the respondent’s counsel any denigrating, threatening correspondence that contains allegations of wrongdoing on the part of Mr. Dominitz, either by email, text, fax, letter or otherwise. All correspondence from the applicant to the respondent’s counsel shall be brief, informative and contain pertinent information regarding this case only.
k. The parties are encouraged to try and reach an agreement as to costs. If they are unable to do so, the respondent shall serve and file written costs submissions of no more than 3 pages in writing, not including a Bill of Costs and Offers to Settle within 20 days of the release of this Endorsement. The applicant shall serve and file responding costs submissions of no more than 3 pages in writing, not including a Bill of Costs and Offers to Settle within seven days of being served with the respondent’s costs submissions. The respondent shall file reply submissions, if necessary, or not more than 1 page in writing within 5 days of being served with the applicant’s responding costs submissions.
August 11, 2022 M. Kraft, J.
COURT FILE NO.: FS-17-421609
DATE: 20220811
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Feng Wang
Applicant
AND:
Min Li
Respondent
ENDORSEMENT
M. Kraft, J.
Released: August 11, 2022