Court File and Parties

COURT FILE NO.: FS-24-0004060000 DATE: 20241029 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shengjie Wei, Applicant AND: Liang Song, Respondent

BEFORE: Shin Doi J.

COUNSEL: Yi Fang (Annie) Zhuang, for the Applicant Heng (Pandora) Du, for the Respondent

HEARD: May 13, 2024

Endorsement

[1] This is a motion by the Respondent Father for an order dismissing the Applicant Mother’s application issued on January 30, 2024. The Father also seeks a declaration that Ontario does not have jurisdiction to determine the outstanding parenting issues, property division, and support issues, if any, between the parties. In the alternative, the Father seeks a declaration that the City of Shanghai of the People’s Republic of China (“Shanghai People’s Court) is the more appropriate forum to deal with the outstanding issues.

[2] The parties started living together in 2016, were married on January 3, 2019 in China, and separated on March 15, 2022. The parties were divorced on July 13, 2023 by Shanghai People’s Court. The parties have two children, born on May 6, 2018 and November 9, 2020.

[3] I grant the Father’s motion and dismiss the Mother’s Application. I declare that the Shanghai People’s Court is the more appropriate forum to deal with the outstanding issues because the parties attorned to that jurisdiction and an order was already issued in August 2023 that covered parenting, equalization, and support.

Facts

[4] The parties met in China and were married there. On March 15, 2022, when the parties separated, they reached an agreement regarding parenting, support, and property (the “Divorce Agreement”). The parties then became aware that the Divorce Agreement was unenforceable under the laws of China. The Father subsequently commenced a divorce application in May 2023. On July 23, 2023, at the second court hearing in Shanghai People’s Court, the parties voluntarily entered into a final agreement with the assistance of their respective lawyers and judge (the “Final Agreement”). The Final Agreement deals with parenting, property, and monetary issues. The Shanghai People’s Court issued a divorce order dissolving the parties’ marriage (the “Divorce Order”).

[5] In August 2023, the Father and the Mother returned to Toronto, Ontario.

[6] In October 2023, the children came to Toronto with their paternal Grandmother who needed to complete her citizenship application.

[7] There was a breakdown of the relationship between the Mother and the paternal Grandmother/Mother-in-Law. The Mother alleges that she was assaulted by the Grandmother in front of the children and had to call the police. The Mother alleges that the Father also threw a laundry basket at her and she had to call the police again.

[8] The Father, the paternal Grandmother, and the children returned to China in January 2024. The older child returned to the Kindergarten affiliated with the Fudan University where the Father is a professor.

[9] The Father states that the children’s stay in Toronto was meant to be a temporary one. The Mother disagrees and states that they had planned relocation. The Mother alleges that the Father deceptively took the children back to China and lied about his intentions to stay in Canada.

[10] On January 30, 2024, the Mother commenced her Application. The Mother claims that the Father has significant assets in Canada that need to be equalized and spousal support was not deal with in China. The Mother seeks equalization, parenting time, child support, and spousal support.

[11] The Mother currently resides in Toronto and is studying Medical Esthetics.

Analysis and Disposition

[12] The Father’s motion is granted because the parties attorned to the jurisdiction of the Shanghai People’s Court, and an order was issued in August 2023 that covered parenting, equalization, and support. The Shanghai People’s Court is the more appropriate forum to deal with any outstanding issues.

[13] There is no dispute about the validity of the divorce order granted by the Shanghai People’s Court. There is also no evidence that the divorce granted in China was obtained through unfair forum-shopping tactics or for other improper reasons (Vyazemskaya v. Safin, 2024 ONCA 156).

[14] The Final Agreement settled by the Shanghai People’s Court covers parenting, property, and monetary issues. The Final Agreement states, “After the divorce, their children W. and M. would live with the [Father].” The Final Agreement also states, “After the divorce, the residence matters of the [Father] and the [Mother] shall be resolved by themselves.”

[15] The Final Agreement further states, “After the divorce, other properties under the name of the [Father] and under the name of the [Mother] as well as those properties in their own places, shall belong to the [Father] and the [Mother] respectively.” The Final Agreement also sets out how much the Father shall pay to the Mother.

[16] The Father produced a detailed chart indicating that from 2014 to 2019, the children were habitually resident in China and not Canada.

[17] Pursuant to the Children’s Law Reform Act, s. 22(1)(b), a court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if the court is satisfied with 6 factors which include that there is substantial evidence concerning the best interests of the child is available in Ontario, the child has a real and substantial connection with Ontario, and on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

[18] I do not find substantial evidence that the best interests of the children are available in Ontario, that the children have a real and substantial connection with Ontario, and that on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. One of the children is in school in China and both children are being cared for by the Grandmother. Moving the children back to Toronto would not be in the children’s best interests as it would disrupt their lives.

[19] The Father submitted that the Mother has parenting time by video conference call. There is no prohibition on the Mother to return to China to exercise her parenting time in person. It is clear that the Mother loves her children and wants to be with them.

[20] On the balance of convenience, it is more appropriate for jurisdiction to be exercised in China where the parties entered into the Final Agreement through the court. It would be much less expensive and more convenient to conduct further proceedings in China where the Father, the children, and the Grandmother reside. Most of the assets are also in China.

[21] The divorce granted in China is presumptively valid. The Divorce Act, s. 22 stipulates that a divorce granted pursuant to a law of a country other than Canada shall be recognized for all purposes of determining the marital status in Canada if either spouse was ordinarily resident in that country for at least one year immediately preceding the commencement of proceedings. Both the Father and the Mother were resident in China for at least one year prior to the divorce and their last common habitual residence was China. This court does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in China (Okmyansky v. Okmyansky, 2007 ONCA 427).

[22] While the court does have jurisdiction to adjudicate the issues of equalization of net family property and support under the Family Law Act, notwithstanding a foreign divorce (Cheng v. Liu (2017), 136 O.R. (ed) 172 (C.A.)), equalization and support issues were already dealt with by the Shanghai People’s Court. I note that the Final Agreement specifically provides that the Father and the Mother own their respective properties in their own places.

[23] The Mother is now a former spouse of the Father and cannot proceed with claims for spousal support under either the Family Law Act or the Divorce Act (Sonia v. Ratan, 2024 ONCA 152).

[24] The Mother’s argument that there was a relocation contract between the parties and the Father breached that contract does not hold much weight. Relocation (and reconciliation) may have been attempted by the parties but ultimately, failed.

[25] For the reasons above, I grant the Father’s motion and dismiss the Mother’s Application.

[26] While I find in the Father’s favour, I am not inclined to award any costs to the Father because of his alleged conduct towards the Mother prior to moving the children back to China. Costs are in the court’s discretion. If the parties wish to make submissions on costs, they may do so in writing up to 5 pages in length within 15 days.

Shin Doi, J. Released: October 29, 2024