Court File and Parties

COURT FILE NO.: CV-17-571500 DATE: 2023-03-20 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: QING QUAN CHENG also known as JAMES CHENG, Plaintiff – and – BIYING QIU also known as BI YING QIU also known as MICHELLE QIU and SUI LING LI, Defendants

Counsel: Self-Represented and acting in person, Qing Quan Cheng, Plaintiff Self-Represented and acting in person, Biying Qiu also known as Bi Ying Qiu also known as Michelle Qiu, Defendant(s) Self-Represented and acting in person, Sui Ling Li (Defendant)

HEARD: January 9, 10, 11 and 12, 2023

Reasons for Decision

G. DOW, J.

[1] The plaintiff seeks to recover the engagement ring and $40,000.00 given to the defendant Biying (also known as Michelle) Qiu between October, 2014 and December 2015. The Defendant, Sui Ling Li is Michelle Qiu’s mother and participated in meetings and discussions between the other two parties.

[2] The trial proceeded under Rule 76-Simplified Procedure with the evidence in chief of the parties tendered by affidavits (Exhibits 3, 4, 7 and 8). Sui Ling Li required Cantonese interpretation which was done simultaneously and, with her consent, without creation of a Cantonese transcript. Each of the litigants were self-represented at trial.

Background

[3] Unless indicated, the following is not in dispute.

[4] Michelle Qiu began dating Qing Quan (also known as James) Cheng in 2014. At that point, Mr. Cheng was on the verge of obtaining a full time job. Michelle Qiu had finished an undergraduate degree at the University of Toronto while living at home with her parents and brother. She had also attended Dalhousie University in Halifax and obtained a Master’s Degree between 2012 and 2014. These degrees were financed, in part, by loans from OSAP and funds she was given in the amount of $20,000.00 by her paternal grandmother, resident in China, to assist her in furthering her education. By the spring of 2014, Michelle Qiu was back in Scarborough, residing with her parents and brother.

[5] It should be noted that Ms. Qiu attended an Ontario law school outside Toronto beginning in the fall of 2016. She graduated in 2019 and articled with a North York law firm. She was called to the Bar in Ontario and has been employed at two well known personal injury litigation law firms up to the present.

[6] By the beginning of the fall of 2014, the romance had blossomed and discussions had turned to marriage. There was evidence that in the Chinese culture, meeting the parents of a person one is dating is an indication the relationship was serious and parental approval was important. Despite this, it was undisputed James Cheng did not meet Michelle Qiu’s parents and, specifically her mother, before their engagement.

[7] A proposal for marriage occurred and was accepted by Michelle Qiu on Thanksgiving weekend. A ring purchased by James Cheng from an online jeweller in the amount of $8,716.00 was provided to Michelle Qiu. The invoice (Exhibit 1, Tab 8) is dated September 21, 2014.

[8] Importantly, there was evidence from both James Cheng and Michelle Qiu of her input into the size and shape of the ring with a visit to Tiffanys, and perhaps other locations, to examine rings preferred by Michelle Qiu.

[9] There was contrary evidence about when James Cheng finally met Sui Ling Li. Mr. Cheng’s evidence was that it occurred in the fall of 2014. This seems unlikely given Michelle Qiu’s evidence she did not tell her mother of the engagement until December because she was “thinking it over”. This suggests and I find Michelle Liu was not committed to the marriage, certainly not on an emotional basis.

[10] As part of planning the wedding, James Cheng and Michelle Qiu agreed Mr. Cheng would provide $30,000.00 to Ms. Qiu towards the cost of the wedding. James Cheng’s evidence in chief refers to discussions about a “trip to China as a pre-wedding event”.

[11] There were three cheques tendered in evidence:

(a) January 1, 2015 for $9,000.00 (Exhibit 1, Tab 10) plus evidence of $1,000.00 tendered in cash;

(b) March 11, 2015 for $10,000.00 (Exhibit 1, Tab 11); and

(c) June 14, 2015 for $10,000.00 (Exhibit 1, Tab 12).

[12] Each of the cheques are from James Cheng to Michelle Qiu with the words “For Wedding Planning” on them.

[13] The banking records of Michelle Qiu confirm each cheque was deposited and the funds promptly withdrawn in various sums of cash between $500.00 to $5,000.00. Michelle Qiu’s evidence was that the cash was stored at her home and done to separate the money from her other funds.

[14] As part of attempting to clarify her evidence on this point, I asked about why the funds were taken out in various sums and received answers that were inconsistent and undermined her credibility. Her initial explanation for initially taking out only $3,000.00 at a time was this was the daily limit imposed by the bank branch. However, that did not explain a subsequent withdraw of $3,000.00 twice on the same day. She testified the limit was a branch limit and she obtained the second $3,000.00 at a different branch. This led to how the subsequent sums of $4,000.00 and $5,000.00 were withdrawn after the third cheque was deposited and her evidence was the daily limit was at the discretion of the customer service representative at the branch. This was an occupation Michelle Qiu had been employed at before attending law school.

[15] James Cheng testified that Sui Ling Li participated in persuading him to advance the wedding expense funds between December, 2015 to January, 2016. Both Michelle Qiu and Sui Ling Li deny this occurred.

[16] James Cheng’s interest in purchasing real property continued with efforts to identify and purchase a condominium. This led to financial discussions and Michelle Qiu’s student debt which included OSAP loans. There was a dispute about whether Michelle Qiu had also advised James Cheng about the $20,000.00 from her grandmother. There is no dispute James Cheng gave a fourth cheque in the amount of $10,000.00 dated December 11, 2015 with the statement on it “Helping For Your Student Debt”. Michelle Qiu’s evidence is that she offered this amount to her grandmother as part of repayment of $20,000.00 but was advised repayment of that $10,000.00 was not necessary and that loan amount was forgiven. Rather than requesting her grandmother accept the funds to retire the balance of this apparent loan, the funds were kept and used by Michelle Qiu for her ongoing expenses. James Cheng testified the intention of the payment was to reduce their debt which would be treated jointly once they were married.

[17] Disputes between James Cheng and Michelle Qiu arose subsequently and into the spring of 2016. Emails in April and May of 2016 (Exhibit 1, Tabs 18-23) attest to those disputes. Each of the parties relied on portions of the contents of those emails.

[18] Also in the spring of 2016, the search for a condominium included efforts by Sui Ling Li to assist her daughter and James Cheng in researching and attending at the properties for sale. She alleged that she spent 150 hours in this regard (paragraphs 6 of her Statement of Defence) and that the plaintiff “should be responsible for these losses “(at paragraph 8 of her Statement of Defence).

[19] Her evidence regarding efforts to purchase a condominium included a request by James Cheng or his parents, for $25,000.00 from her to increase the down payment to be made, her willingness to loan $10,000.00 and that neither occurred. She also testified being asked to purchase furniture in April, 2016. However, the defendants produced five invoices dated between November 11 – November 22, 2016 for bedding totaling $2,283.15 (Exhibit 5, Tabs 21, 22, 24, 25 and 26) which is after James Cheng and Michelle Qiu’s final break up had occurred, detailed below.

[20] James Cheng’s email of April 24, 2016 (Exhibit 1, Tab 18) sets out both emotional and financial reasons for requesting return of the money he transferred to Michelle Qiu, the latter being to use the money for a “20% down payment on a home or plan a wedding or pay down student debt”. He also asked for the ring back if the relationship had ended.

[21] Michelle Qiu’s response on April 28 also sets out emotional and financial considerations. Michelle Qiu acknowledged the “relationship/engagement was unstable” and “this behaviour of asking for the ring and wedding money returned kept occurring throughout our engagement every time we had a disagreement”. Michelle Qiu states “you did this a total of three times”. Michelle Qiu’s conclusion is “I will return the ring back to you along with the wedding money and we can dissolve the engagement”. However, regarding “the 10 K you gave me in assistance for my student debt as I have used it to return some loans” is contrary to her evidence at trial of using it for her own expenses. Her statement “I have borrowed from others who supported my education” without detailing it was from her grandmother undermines her evidence of having previously disclosed this to James Cheng and further undermines her credibility.

[22] James Cheng’s response, (unfortunately), rejected that offer and insisted on return of the ring and all of the money including the “10 K for student debt”. Further, if Michelle Qiu did not agree, James Cheng stated “I WILL seek legal action”.

[23] The acrimony continued with a May 9 email from James Cheng concluding with “I contacted some lawyers to schedule some consultations” and “I hope this won’t be our last exchange before a lawyer gets involved”.

[24] With multiple more emails and a meeting, James Cheng and Michell Qiu come to an agreement, put in writing and signed by both of them June 19, 2016 (Exhibit 1, Tab 24). The first term is Michelle Qiu gets to determine how the wedding planning money is to be spent. The second term begins to reference the $10,000.00 towards student loans but is not completed and scratched out. The third term gave James Cheng the decision making power on when and which property is to be purchased.

[25] The last term acknowledges James Cheng was not required to be included in the trip to China but will get to know “how the money is spent”. This clearly infers he was aware of items to be purchased in China as part of the wedding process.

[26] As part of detailing how the wedding planning funds were spent, Michelle Qiu produced a receipt from Chanel dated July 23, 2016 for the purchase of a purse. The purse was paid for by using two Visa credit cards, one charged for $3,000.00 and the other for $1,068.00. This contradicts her evidence having segregated the money James Cheng gave to her in cash and its use for wedding planning expenses.

[27] Following these events, the paternal grandmother, Wu Suk Yuen, purchased items in July, 2016 for Michelle Qiu at her request. The receipt and photographs of these items were retrieved by Michelle Qiu and her mother during a trip to China in May, 2017 after the litigation commenced (Statement of Claim issued March 14, 2017).

[28] The invoices indicate a total of 134,660 in Chinese currency was spent on cosmetics, jewellery, shoes, dresses, a scarf and quilt. The parties agreed the Canadian equivalent was $26,000.00. Michelle Qiu and Sui Ling Li testified they took the $30,000.00 Canadian in cash that James Cheng had given Michelle Qiu to China for the grandmother to be reimbursed for these purchases. When questioned about such a large sum being brought into China and requiring declaration to customs official, Michelle Qiu testified being unaware of same. This contradicts her explanation of taking photographs of the items purchased rather than returning to Canada with them in order to avoid paying duty on them. This would require some research into what and how much individuals can bring in or take out of China. This also undermines Michelle Qiu’s credibility.

[29] The engagement terminates in October, 2016 and involves further email exchanges (Exhibit 1, Tab 27). The absence of any reference to Michelle Qiu having moved out of the greater Toronto area to attend law school reinforces James Cheng’s evidence that he was unaware that she had been accepted and began attending. It confirms James Cheng’s email and position, that as of October 11, 2016, “You win OK? I’ll write your letter for you that I am breaking up [with] you. But I want the ring upfront immediately after you receive the breakup in written confirmation”. It also confirms the payment to Michelle Qiu’s grandmother for wedding related items in the email on October 20. Michelle Qiu states “there is only $5,000 left in the wedding planning budget. Do you want that along with the ring?”.

[30] The last email of October 21, 2016 from James Cheng outlined his position “you blackmailed me and threatened to terminate the relationship if I didn’t transfer the money to you”.

Issue – The Ring

[31] The plaintiff seeks return of the engagement ring. In submissions, Michelle Qiu confirmed she still has the ring and would rather return it than be ordered to repay its purchase price of $8,716.00 if unsuccessful. James Cheng submitted he was indifferent to either manner of relief.

[32] I was directed by Michelle Qiu to case law dealing with the return of engagement rings. In Iliopoulos v. Gettas (1981), 32 O.R. 2(d) 636, the law in Ontario was stated to be:

“though the origin of the engagement ring has been forgotten, it still retains its character of a pledge or something to bind the bargain or contract to marry, and it is given on the understanding that a party who breaks the contract must return it. Whether the ring is a pledge or a conditional gift, the result is the same”.

[33] I was also directed by Michelle Qiu to P.S. v. H.R., 2016 BCSC 2071 which involves similar facts. That is, a relationship with an engagement, purchase of a ring, the purported groom making payments to reduce the purported debts of the bride and termination of the relationship. Regarding the ring, the law in that province treats “the gift of an engagement ring is being conditional on marriage and therefore returnable upon the failure of the condition” (at paragraph 69). I find the termination of the engagement and relationship was orchestrated by Michelle Qiu given her conduct. This induced James Cheng to send his email of October 11, 2016, quoted above. I rely on Michelle Qiu’s evidence that, while she accepted the ring in October, 2014, her failure to advise her mother for months was because she was “thinking it over”. I accept James Cheng’s description of the events that Michelle Qiu was requesting that he state he was breaking up with her when, as I find, the reverse is what occurred. On this issue I prefer the evidence of James Cheng. I order the ring be returned.

Issue – Wedding Planning Funds

[34] In submissions, James Cheng described the $30,000.00 provided to Michelle Qiu as money held in trust for the purpose of wedding planning that never happened. In the Statement of Claim (drafted by counsel which James Cheng had at the time), it is described in various forms that is, unjust enrichment, conversion and held in trust.

[35] Again, the legal precedents provided to me by Michelle Qiu such as Barber v. MacGee, 2017 ONCA 558 requires that the burden of proof is on the party seeking to characterize the transfer of funds as a gift. The court should examine, with regard to a gift, the expectation of repayment through the absence of security or efforts to collect payment. With regard to a loan, the court looks for a more formal documentation of the transfer or the absence of same.

[36] Michelle Qiu referred to and relied on section 33 of the Marriage Act, R.S.O. 1990, c. M.3 which states “Where one person makes a gift to another in contemplation of or conditional upon their marriage to each other and the marriage fails to take place or is abandoned, the question of whether or not the failure or abandonment was caused by or was the fault of the donor shall not be considered in determining the right of the donor to recover the gift”. In my view, this does not assist Michelle Qiu. The ‘donor’ was James Cheng. The section excludes addressing “the question of whether or not the failure or abandonment was caused by or was the fault of the donor”. It does not preclude a legal determination of whether funds advanced should be returned where the failure or abandonment was caused by the recipient or “donee” of the funds.

[37] I find James Cheng purposed marriage to Michelle Qiu and she accepted. As a result, a wedding ceremony was to occur. Both parties were aware of accepted cultural norms of their upbringing and clearly committed to an event, likely to be held in China with the usual ceremonies and the associated expenses included.

[38] The required funds and the manner of who contributed and was to hold the funds were determined between the parties. James Cheng submitted that he was “forced” to give Michelle Qiu the funds. I disagree. The funds were clearly designated to be spent on expenses associated with the wedding ceremony, reception and what was naturally associated with conducting such an event.

[39] I am satisfied the cosmetics, shoes, dresses, scarf and quilt valued at $26,000.00 Canadian, were purchased while they were engaged. While unusual or, in hindsight, unwise, I accept the $30,000.00 provided by James Cheng to Michelle Qiu was taken to China to reimburse Michelle Qiu’s grandmother. I have concluded that the portion of the $30,000.00 given to Michelle Qiu’s grandmother to reimburse her is not required to be repaid.

[40] Consistent with how Michelle Qiu chose to reimburse, that being Canadian currency in cash, I reject that the Channel purse purchase on July 23, 2016 was related to wedding plans. That is, it was not paid for with the cash rather by Visa credit cards. As a result, it is not to be credited to Michelle Qiu as part of wedding plan expenses.

[41] I was not satisfied, in accordance with the evidence of Michelle Qiu (upon whom the burden rested) to show the payments were a gift. Her inconsistent evidence of the events described in these reasons undermined her credibility. I prefer the evidence of James Cheng and that the funds were advanced for the purpose of marriage expenses.

[42] I find Michelle Qiu is required to return the balance of the $30,000.00 not spent, being $4,000.00 Canadian.

Issue – Student Debt Funds

[43] I reject the evidence and submissions of Michelle Qiu that the $10,000.00 provided to her for “Helping For Your Student Debt” was a gift. As indicated above, portions of her evidence undermined her credibility. To that end, her own evidence was that she did not use those funds for its intended purpose. That is, after it was offered to her grandmother to reduce the $20,000.00 provided and her grandmother forgave that portion of the funds, she neither offered it to her grandmother to satisfy the balance of the debt nor did she use it to reduce her OSAP loans. By her own evidence, she used it for her ongoing expenses.

[44] I accept James Cheng’s evidence that the funds were a loan, to be forgiven once they were married, and their financial situation would be considered jointly for certain purposes such as qualifying for loan repayment assistance or tax credits.

[45] Michelle Qiu again relied on the legal test set out in Barber v. MacGee, supra for determining whether these funds were advanced as a gift or as a loan. It should be noted this decision reviewed the trial decision of equalization and property claims in a matrimonial dispute and as part of a divorce. That decision addressed consideration after application of the Family Law Act in determining the financial claims of the parties. That was not the situation before me. The Court of Appeal confirmed the law of resulting trust included weighing all the evidence as part of determining the actual intention of the person who made the payment at the time it was made. It also repeated that the burden is on the party claiming a gift to prove it.

[46] While Michelle Qiu submitted the absence of documentation detailing the $10,000 was a loan, the statement on the cheque is clear; “Helping For Your Student Debt”. Given my concerns about the credibility of Michelle Qiu’s evidence on a variety of points, I find that she has failed to meet the burden imposed on her at law.

Issue – Defendants’ Losses

[47] Both defendants pleaded losses in time, labour and money with regard to wedding planning and searching for condominium unit with James Cheng which he subsequently purchased. Further, James Cheng apparently subsequently sold the condominium he purchased at a higher price. Both Statements of Defence claimed, at their conclusion, “Cheng should be responsible for these losses”. I disagree. There is insufficient evidence that the efforts were to have any compensable value or what value those efforts had.

[48] In addition, these claims were not properly pleaded under Rule 27 – Counterclaim. As indicated, no evidence of the monetary value of such efforts was tendered at the trial. As a result, such claims are dismissed.

Conclusion

[49] James Cheng shall have judgment against Michelle Qiu for:

(a) the return of the engagement ring; and

(b) the sum of $14,000.00, representing the $4,000.00 of unspent wedding plan funds and $10,000.00 for reduction of Michelle Qiu’s student loan.

[50] As the claims were not proven to involve Sui Ling Li, the action as against her is dismissed.

Costs

[51] At the conclusion of submissions, I required each side to identify the amount they were seeking in legal costs in the event that they were successful. James Cheng indicated that he was seeking recovery of the $58,807.00 he has apparently paid in legal bills before representing himself and, in response to the amount being sought by the defendants, payment of the difference between that amount and $70,000.00 for his efforts preparing for and attending at the trial.

[52] Michelle Qiu submitted she wished to be awarded almost $47,000.00 for her time, billed at $100.00 per hour, and disbursements she incurred.

[53] Sui Ling Li quantified the value of her time and expenses requesting for more than $56,000.00.

[54] I provided the parties with a copy of Mustang Investigations v. Ironside et al., 2010 ONSC 3444 in which lay litigants must demonstrate the time and effort they expanded was work ordinarily done by a lawyer which has resulted in them foregoing other “remunerative activity” (at paragraph 23).

[55] In addition, at the outset of the trial, I was provided with a Joint Trial Document Book which became Exhibit “1”. However, before doing so, I noted the index described at Tabs 45 to 49, inclusive, Offers to Settle. I explained to the parties such information is not usually made available to the trial judge before a decision is rendered and inquired if they wished to redact that information. This was agreed and Exhibit “1” was marked without inclusion of any Offers to Settle and without my having reviewed these documents.

[56] I urge the parties to agree on costs. I can suggest that often, in matters where there is divided success, as has occurred here, the court makes no order as to costs. That is, each party bears their own legal costs.

[57] If the parties are unable to agree, each side may deliver to me, on or before May 1, 2023, no more than five double spaced typed written pages in a readable font what legal costs and disbursements order they are requesting and the reasons for same. They should refer to related items such as legal accounts, orders made where costs were awarded, legal disbursements incurred or Offers to Settle being relied on and attach same separately.

Mr. Justice G. Dow Released: March 20, 2023