Ontario Superior Court of Justice

Court File No.: FS-94-MP213667
Date: 2025-03-17

Parties

Between:
Maria Elena Lao Chan, Applicant
– and –
Wing Sang Chan, deceased,
Jennifer Chan (Estate Representative for Wing Sang Chan), and
Nelda P. Reyes also known as Nelda Chan, Respondents

Appearances:
Shahram Bahmadi, lawyer for the Applicant
Mayssia Elajami, lawyer for the Respondent Jennifer Chan (Estate Representative for Wing Sang Chan)
Jinkee Bantug, lawyer for the Respondent Nelda P. Reyes also known as Nelda Chan

Heard: March 11, 2025

Endorsement

Robert Diamond

Overview

[1] On March 11, 2025, and after several adjournments, I heard a motion brought by the applicant, Maria Elena Lao Chan (“Maria”) seeking an order “setting aside the Divorce Judgment dated March 3, 1995 on the basis of mistake and/or in the further alternative, fraud”.

[2] The impugned order is a divorce judgment (as those orders were referred to at the time) signed by the Honourable Justice Walsh on March 3, 1995 (“the 1995 divorce order”), which ordered Maria and her now deceased husband, the respondent Wing Sang Chan (“Chan”), to be divorced as of April 3, 1995.

[3] The procedural history of Maria’s motion is quite lengthy, lasting nearly two years, and will be explained in greater detail below. The actual history of the 1995 divorce order spans more than 30 years, and is replete with competing narratives between the parties, allegations of fraud, deceit and secrecy, and enough twists and turns to support a soap opera major storyline.

[4] Despite competing narratives and documents both going back 30 years, for the reasons which follow, Maria’s motion is dismissed for lack of sufficient supporting evidence.

Summary of Relevant Facts

[5] Maria and Chan were married on March 24, 1963. According to Maria, as of the date of the 1995 divorce order, she and Chan had been residing in Hong Kong, China as a married couple since 1990, and were never separated.

[6] Chan passed away on September 15, 2019. The respondent Jennifer Chan (“Jennifer”) is the party’s eldest child (of six children), and resides in the Philippines. Jennifer currently acts as the representative for her father’s estate.

[7] Shortly after Chan’s death, Maria arranged for her niece to contact a business associate of Chan to begin inquiries into his financial affairs for estate distribution purposes. To Maria’s shock, in or around mid-October 2019 Maria learned that the respondent Nelda P. Reyes (“Reyes”) was claiming to be Chan’s wife. Reyes produced a copy of a Hong Kong marriage certificate dated August 25, 1995 between Chan and Reyes, and in that marriage certificate Chan was described as having been previously divorced.

[8] Maria informed Jennifer of these shocking discoveries. Unfortunately, the COVID-19 pandemic effectively delayed their efforts to investigate the matter further.

[9] Ultimately, in or around July 2022, Jennifer (who resides in the Philippines) travelled to Hong Kong to meet with Maria and review the matter in person with her mother.

[10] Searches of the Ontario Central Divorce Registry were subsequently undertaken, and in or around late 2022, Maria learned of the existence of the 1995 divorce order.

[11] Reyes swore a lengthy affidavit in response to Maria’s motion. Reyes is apparently contesting the estate proceedings, which are not taking place in Ontario. The contents of Reyes’ affidavit disclose that Maria and Chan were no strangers to Canada, as they owned properties in Canada, and some of their children resided in Canada. According to Reyes, her sister Lucia was employed by Maria and Chan to “work for the Chan household” as a housekeeper in Canada.

[12] Reyes further states that in the early 1990s, she arrived in Hong Kong and was hired by Chan as a housekeeper in Hong Kong. Reyes gave evidence that Chan began “flirting with her”, asking if Reyes had a boyfriend and offering her gifts for no reason. By the spring of 1995 Chan had declared his romantic interest in Reyes, and showed her the 1995 divorce order. Reyes testified that she accepted Chan’s proposal of a romantic relationship and ultimately married Chan on August 25, 1995. According to Reyes, she and Chan lived together in Hong Kong and the Philippines although Chan would travel to Canada on occasion for business purposes and to see his children and grandchildren “with Maria”.

[13] For her part, Maria completely denies Reyes’ allegations, but admitted that Reyes was employed in Hong Kong as her and Chan’s housekeeper. Maria gave evidence that Reyes had resigned from her housekeeping position once Maria’s daughter Stephanie had caught Reyes making lewd advances towards Chan.

[14] Obviously, these two completely divergent factual narratives cannot possibly be resolved on a paper record. However and in any event, a substantive resolution of these two narratives is not necessary for the disposition of Maria’s motion.

1995 Divorce Materials

[15] The 1995 petition for divorce, issued on September 26, 1994, lists Maria as the petitioner and Chan as the respondent. The details of the party’s marriage history are set out in the petition, and are accurate.

[16] The petition listed Jane Harvey Associates at 1800 Sheppard Avenue East, Unit 219B, Willowdale, Ontario as Maria’s solicitors.

[17] The petition sought a divorce, and nothing more. The grounds for the divorce consisted of Maria and Chan having lived separate and apart since February 15, 1993 with no possibility of reconciliation.

[18] According to the petition, Maria and Chan had resided in Toronto, Ontario since 1988. Chan’s then-current address was listed at 99 Braemore Gardens, Toronto, Ontario. This Braemore property is owned by Jennifer.

[19] The petition listed only one “child of the marriage”, namely Kathleen Chan who at that time was 14 years old and in grade nine at Trafalgar School. The petition stated that Kathleen lived with both her parents in a shared parenting arrangement with “each parent providing for the child as required”, and thus “no formal support provisions required”.

[20] Chan never responded to the petition for divorce. In early 1995, a motion record seeking a divorce judgment (in accordance with Rule 69.19(1) of the Rules of Civil Procedure in force at the time) was submitted to the court by Jane Harvey Associates on behalf of Maria.

[21] In support of that motion for a divorce judgment, an affidavit in Maria’s name was sworn on February 8, 1995 and filed. According to that affidavit, Chan had signed the back page of the acknowledgment of service in the petition for divorce.

[22] Maria’s affidavit confirmed the following:

• Maria had read over the petition for divorce and adopted its contents as true.
• The divorce proceedings were uncontested and no legal costs were being sought.
• The parties mutually agreed to separate on February 15, 1993, and they had lived separate and apart since that date.
• A copy of the party’s marriage certificate was attached, but despite several efforts Maria was unable to obtain a certified copy of the marriage certificate.
• Neither Maria nor Chan had any other marriages.
• Maria and Chan were domiciled in Canada since 1988, with habitual residency in Ontario for at least one year preceding the commencement of the divorce proceeding.
• Maria resided at 45 Wychcrest Avenue, Toronto, Ontario. As stated, Chan’s address was the Braemore property and he had been living there since 1993.
• There was one child of the marriage, Kathleen, and she has remained in the custody, care and control of both parties who were content that this situation continue.
• No claims for spousal support or maintenance were being advanced as Maria was capable of supporting herself.
• No claim for division of property was being advanced on behalf of Maria.
• No claim for child support was being advanced on behalf of Kathleen.

[23] An additional affidavit of witness also sworn on February 8, 1995 formed part of the motion record. That affidavit was in the name of Jennifer. In that affidavit, Jennifer identified herself as Maria’s daughter, confirmed that her parents had not cohabitated since February 15, 1993, and further confirmed that there was no likelihood of a reconciliation between her parents.

[24] Both February 8, 1995 affidavits were commissioned by the same member of the Jane Harvey Associates law firm. There is evidence filed in the record before this Court that, unfortunately, no one at Jane Harvey Associates has any direct knowledge or other information about this file, and the records have understandably been destroyed after nearly 30 years.

The History of this Motion

[25] In early 2023, Maria tried to bring this motion on an ex parte basis. In her first supporting affidavit sworn February 22, 2023, she stated that there was no administrator, trustee or other representative of Chan’s estate, and it was thus impossible to serve Chan’s estate with her motion materials. Such a position is rather interesting given Maria’s current evidence that she and Chan were married and resident in Hong Kong together until his death, and yet she had no idea nearly four years after his death whether he had a will, or who was the representative of his estate.

[26] In any event, in support of her original ex parte motion Maria gave evidence that the 1995 divorce order was obtained fraudulently for, inter alia, the following reasons:

(a) Maria never contacted or retained Jane Harvey Associates to act on her behalf in the 1995 divorce proceeding;
(b) Maria never executed any documentation relating to the divorce proceeding;
(c) Maria’s 1995 affidavit only mentions Kathleen when the parties had six children of the marriage;
(d) Maria and Chan continued to reside together until Chan’s passing in 2019 and they never separated; and,
(e) All tax returns filed by Maria and Chan in Hong Kong list their status as spouses, both before and after the 1995 divorce order.

[27] Although not specifically listed in Maria’s notice of motion, the grounds in support of her request to set aside the 1995 divorce order are three-fold:

i. The 1995 divorce order “was obtained by fraud”;
ii. The 1995 divorce order does not make adequate child support provisions contrary to section 11(1)(b) of the Divorce Act; and,
iii. As the parties were not permanent residents of Ontario at the time of the 1995 divorce order, the Ontario Court (General Division) did not have jurisdiction to hear and/or decide the divorce proceeding as per section 3(1) of the Divorce Act.

[28] Maria’s ex parte motion was heard by Justice Myers on March 28, 2023. Justice Myers (correctly) dismissed the applicant’s ex parte motion without prejudice to her right to bring a new motion on notice to Reyes and Chan’s estate (once it was properly represented). The full contents of Justice Myers’ Endorsement are as follows (my emphasis in bold):

“The applicant moves for an order setting aside a Divorce Decree of this Court dated June 16, 1995. She says the Divorce Decree was fraudulently obtained. She says she and her late husband remained happily married living in Hong Kong until his death on September 15, 2019.

The applicant says that a person named Nelda Reyes claims to be the deceased’s spouse and is relying on the allegedly fraudulent divorce.

The applicant says that she did not bring this proceeding. She never retained the law firm whose name was associated with the file. She says that neither she nor her late husband were resident in Ontario for more than a year before the filing.

The applicant has not served this motion on anyone. In my view this prevents the motion from being heard today.

First, although there may be no formal estate of the deceased husband organized, he was a party. Rules 4(5) and (6) of the Family Law Rules provide for representation of a deceased party. Moreover, under the case law, an estate’s legal representative must be represented by a lawyer.

In addition, the applicant has not named Nelda Reyes as a party or served her with the motion. The applicant submits that the only parties to this application are herself and her late husband. Therefore, there is no need to involve anyone else.

Once again, the Family Law Rules provide otherwise. Rule 7(2) says that, ‘a person who is affected by a motion is also a party’.

On this motion, the applicant asks me to declare an in rem divorce order invalid. The effect of doing that, if successful, would be to render Ms. Reyes’ alleged marriage to the deceased bigamous and likely invalid. Therefore, Ms. Reyes is affected by the motion to set aside the divorce. She is affected in her legal interests as it may invalidate her legal status of being married (allegedly).

Furthermore, although this application was brought in the applicant’s name, the applicant says that she never truly was a party. Someone started this application in her name fraudulently. If the applicant is not actually Ms. Lao, then her standing to bring this motion is the same as that of Ms. Reyes. Ms. Lao too has been affected in her legal interests and status by the divorce order and she has the right to set it aside as a person who has been affected by the order. It does not lie with her to deny a hearing to someone else who may be in the exact same position.

Perhaps Ms. Reyes has a defence to the claim that the divorce was fraudulent? Perhaps there are other bases to refuse to set the order aside? For example, might it matter that it took Ms. Lao four years to bring this motion after her husband passed away and Ms. Reyes came forward? I do not know. The applicant did not point me to any possible answers that might be available to resist her motion. That too is her obligation when moving without notice.

This motion is dismissed without prejudice to Ms. Lao’s entitlement to bring a new motion once her late husband is properly represented and on notice to Ms. Reyes and anyone else affected by the order sought.”

[29] In response to Justice Myers’ endorsement, Maria added Reyes and Jennifer (as the representative for Chan’s estate) as respondents to this motion. Maria swore a new affidavit dated October 11, 2003 in support of her renewed motion, which sought the identical relief as her original motion.

[30] In Maria’s second affidavit, she repeated her evidence in support of her request to set aside the 1995 divorce order on the basis of fraud, and explicitly stated as follows:

“I never contacted Jane Harvey Associates to act on my behalf in the above proceeding, never retained their services to dissolve my marriage with my husband, and never executed any documentation relating to the Petition, February 1995 Affidavit or Divorce Judgment.”

[31] Once served with Maria’s new motion record, Reyes responded with her own affidavit, the particulars of which are summarized earlier in this Endorsement. Maria then delivered a reply affidavit, essentially denying all of Reyes’ allegations. Of note, Maria gave the following evidence:

“Even if they had a spousal relationship, which is not admitted but expressly denied, I do not understand why it should affect the validity of the Divorce Judgment between myself and my husband.”

[32] In other words, Maria (properly, in my view) took the position that the validity of the 1995 divorce order was and remains a “stand alone” issue to be resolved by this Court.

[33] Maria’s reply affidavit (which was her last affidavit sworn in support of her motion) stated the following:

“With respect to the signatures on the affidavits dated February 8, 1995 that were utilized in support the Divorce Judgment, neither I, nor the Respondent Jennifer Chan (the estate administrator for respondent Wing) recognized the affiants’ signatures as our own.”

[34] While the wording chosen by Maria differed from the wording set out in her first two affidavits, she clearly maintained her denial of ever signing the February 8, 1995 affidavit.

[35] When the parties previously attended before me on November 21, 2024, I adjourned Maria’s motion to permit cross-examination on the affidavits. The motion was then made returnable before me (as I seized myself) on January 7, 2025. On that date, it became apparent to this Court that since both Maria and Jennifer took the position that they never signed the February 8, 1995 affidavits, expert handwriting evidence may prove to be important for this Court’s disposition of Maria’s motion.

[36] Counsel for the parties agreed that handwriting experts were needed, and would be retained. The contents of my Endorsement dated January 7, 2025 included the following (again, my emphasis in bold):

“Since the release of my two Endorsements dated November 21, 2024, the parties have filed additional motions materials and participated in questioning upon those materials.

The Court is being asked to set aside a nearly 30-year-old uncontested divorce judgment, and the primary argument in support of that request is that a fraud on the Court has taken place. Understandably, I do not take such allegations lightly. While counsel should be commended for the steps they have taken over the last six weeks, in my view a full, in person motion attendance is necessary in order to ensure that all potential sources of evidence have been searched and produced for the Court’s review and assessment.”

[37] Handwriting experts were retained. Unfortunately, the conclusions reached by those experts merely served to significantly muddy the proverbial waters of Maria’s motion.

[38] Counsel for Jennifer retained the services of Hawkeye Studios to opine on the validity of Jennifer’s signature on the February 8, 1995 affidavit by comparing and contrasting it with numerous other signature specimens from Jennifer. The conclusions of Hawkeye Studios were clear and reached with a high degree of certainty, namely that Jennifer never signed the February 8, 1995 affidavit.

[39] Neither Maria nor Reyes took any contrary position to the conclusions reached by Hawkeye Studios. All parties to this motion were and remain in agreement: Jennifer never signed the February 8, 1995 affidavit.

[40] Maria retained the services of Forensic QD Services to conduct a similar analysis comparing and contrasting Maria’s signature on the February 8, 1995 affidavit with various other signature samples provided by Maria. However, Forensic QD Services concluded that Maria’s specimen signatures matched the signature on the February 8, 1995 affidavit.

[41] Reyes retained DocuFraud Canada as her own forensic document examiner to conduct the same analysis between the signature on the February 8, 1995 affidavit and various signature specimens from Maria. It was also DocuFraud Canada’s conclusion that there was a high probability that the February 8, 1995 signature in question was genuine and authored by Maria.

[42] Maria subsequently confirmed to the respondents, and ultimately this Court, that she was not taking a contrary position to the conclusions put forth by Forensic QD Services and DocuFraud Canada, and conceded that the signature on her February 8, 1995 affidavit was her own. In other words, contrary to Maria’s sworn evidence set out in three separate affidavits filed in support of her motion, Maria now confirmed that she did indeed sign the February 8, 1995 affidavit.

[43] No further evidence on this issue was tendered on behalf of Maria.

Decision

[44] This Court is being asked to set aside a divorce order. As Justice Myers noted in his own Endorsement, a divorce order is an in rem order which, by its very nature, affects the status of one or more persons. As held by Justice Barrow in Dhaliwal v. Dhaliwal, 2013 BCSC 1376:

“There are a number of features peculiar to divorce orders that stand them apart from other court orders. The most significant of those features is that a divorce decree is a judgment in rem; that is, it affects the status of the parties. The Divorce Act goes to some length to ensure the finality of divorce orders because of their in rem quality. Section 12 of the Act provides that a divorce takes effect on the 31st day after the day on which the judgment granting the divorce was rendered. If an appeal is taken within the 31-day period, then the effective date of the divorce is delayed until the expiration of the time limited for appealing the result of the appeal. Whether the divorce takes effect at the expiration of the 31-day period following pronouncement or on the expiration of any of the extensions which apply as a result of appeals, once the order takes effect the court must, on request, issue a certificate under s. 12(7) to the effect that the divorce has “dissolved the marriage” of the parties to the divorce proceeding. Such a certificate is, by virtue of s. 12(8), “conclusive proof” of the facts contained in it.

Parliament and the authorities which have had occasion to comment on the regime created by the Divorce Act have recognized the importance of the need for certainty and finality in relation to divorces. An individual’s status as either married or divorced has implications for a range of other aspects of people’s lives. Among other things, it is a status which affects succession and estate issues; it is a status that determines whether the individuals can remarry without committing a crime by doing so; and it is a status that may affect the rights of children of subsequent marriages, a marriage whose validity may be called into question if the status of a previous marriage is in doubt.”

[45] I will now address each of the three grounds put forward by Maria in support of her request to set aside the 1995 divorce order.

a) Fraud

[46] With respect to the first ground, Maria relies upon Rule 25(19)(a) of the Family Law Rules, which permits the court to change an order that was “obtained by fraud”. Obviously, the Court does not take allegations of fraud lightly, as fraud is arguably the most serious finding to be made in a civil and/or family proceeding. Rule 25.06(8) of the Rules of Civil Procedure mandates any pleading that alleges fraud, misrepresentation, breach of trust or other intentional conduct to contain full particulars.

[47] Maria’s original theory of fraud was that her signature on the February 8, 1995 affidavit was forged. If that was a finding of fact available to this Court, then perhaps Maria could have been the victim of a fraud “at large”, much like someone who experienced identity theft. It would be difficult to locate the perpetrator in such a situation, but fraud could still be proven based upon false documentation (i.e. never having been seen or signed by Maria) being tendered to the Court.

[48] However, that theory of fraud clearly cannot stand as Maria has now conceded that she signed the February 8, 1995 affidavit. There is absolutely no evidence filed in the record before this Court explaining how it came to be that the February 8, 1995 affidavit was even placed before Maria for her signature, let alone signed by Maria. This Court is left with a myriad of questions as to how Maria ended up signing the February 8, 1995 affidavit. The Court is also perplexed by how Maria has failed to provide any attempt to reconcile her seemingly irreconcilable positions. Maria has not provided answers to any of those questions.

[49] In his submissions, counsel for Maria sought to address this glaring omission by suggesting that the alleged fraud could only have been carried out by the individual who benefited the most, i.e. Reyes. In other words, “the getaway driver was the one who robbed the bank”. Maria did not make any such allegations in her three affidavits, and the theory that Reyes carried out such a fraud was never put to Reyes on her cross-examination.

[50] Counsel for Maria then attempted to make submissions that Maria could not have understood what she was signing when she signed the February 8, 1995 affidavit. To the extent that such a submission amounts to a request that this Court make a finding of non est factum (which is a defence in any event), the elements of non est factum are clearly not made out on the record before this Court. Those elements are as follows:

(a) A party must prove that he/she was mistaken about the nature of the document;
(b) A party must prove that his/her mistake was the result of misrepresentation by the other party; and
(c) A party must prove that he/she was not careless in signing the document.

[51] The only sworn evidence before this Court is that Maria did not sign the February 8, 1995 affidavit. Again, when the factual landscape pivoted as a result of the forensic document examination, Maria took no steps to explain this 180 degree turn of events.

[52] It may be that Maria was a victim of some act or omission on the part of a party or third party. It is also entirely possible that Maria knew full well that she was signing an affidavit in support of a request for a divorce from Chan. This Court cannot make any findings one way or another because Maria has still not owned up to the fact that she signed the February 8, 1995 affidavit. Maria’s refusal to do so completely hinders this Court’s ability to make any findings necessary to meet the high evidentiary bar that the 1995 divorce order was obtained by fraud.

[53] To the extent that Maria relies upon the fact that Jennifer never signed the February 8, 1995 affidavit of witness (a fact which this Court accepts), the provisions of Rule 69.19(1) of the Rules of Civil Procedure (in force at that time) did not require any such affidavit from a witness in support of a request for a divorce judgment. As such, the presence or absence of an affidavit actually signed by Jennifer is moot as Justice Walsh had the jurisdiction and discretion to sign the 1995 divorce order in any event.

[54] For these reasons, this ground fails.

b) Inadequate Child Support Arrangements

[55] Section 11(1)(b) of the Divorce Act prescribes a duty on the Court to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage and, if such arrangements have not been made, to stay the granting of a divorce until such arrangements are made.

[56] Maria argued that while she and Chan had six children, only Kathleen was listed as a child of the marriage in her February 8, 1995 affidavit. While it is true that Maria and Chan had six children, as of the date of the February 8, 1995 affidavit, only one of those children was a “child of the marriage” as that term is defined by the relevant legislation and jurisprudence.

[57] At the time, Kathleen was a grade 9 student in a private Toronto-area high school. It is possible that Kathleen would have required child support arrangements, although not much evidence was tendered by Maria on this point.

[58] What is more important is the fact that Maria signed an affidavit on February 8, 1995 that stated no child support was required or necessary for Kathleen. It is unknown whether that statement was in fact true or not. Maria has not given this Court any evidence to explain why she represented to Justice Walsh in her motion that satisfactory arrangements had been made for Kathleen.

[59] Much like this Court’s rejection of the first ground, the same theme arises here. Since there is no evidence to explain the contents of an affidavit which Maria signed, this Court cannot conclude whether the February 8, 1995 affidavit was true or false and as such the evidentiary foundation for a finding under section 11(1)(b) of Divorce Act is simply not present.

[60] For these reasons, this ground also fails.

c) Ontario did not have Jurisdiction

[61] Maria claims in her three recent affidavits that she and Chan did not ordinarily reside in Canada during the years leading up to the 1995 divorce order. Once again, that may or may not be true, but Maria has not permitted this Court to undertake any substantive analysis necessary to assess whether Ontario maintained jurisdiction over the parties and the divorce in 1995.

[62] This inability is due to the same reasons: Maria signed an affidavit on February 8, 1995 clearly stating that the parties were ordinarily resident in Ontario, and had lived separate and apart for more than a year leading up to the petition for divorce. That sworn evidence is completely incongruous and at odds with the evidence tendered by Maria on this motion, and the onus was squarely upon Maria to explain that and other glaring inconsistencies. She did not, and her refusal to do so is fatal to her motion.

[63] For these reasons, this ground also fails. Maria’s motion is dismissed.

Costs

[64] I would urge counsel for the parties to exert the necessary efforts to try and resolve the costs of Maria’s motion. If those efforts prove unsuccessful, they may serve and file written costs submissions (limited to no more than five pages including a Bill of Costs) in accordance with the following schedule:

(a) Reyes’ costs submissions within 10 business days of the release of this Endorsement;
(b) Jennifer’s costs submissions within 10 business days of the receipt of Reyes’ costs submissions; and,
(c) Maria’s costs submissions within 10 business days of the receipt of Jennifer’s costs submissions.

Robert Diamond

Released: March 17, 2025