NEWMARKET COURT FILE NO.: FC-20-675-00

Date: 2025-04-22
Court: Superior Court of Justice – Ontario – Family Court

Re: Jinhui Huang, Applicant
And: Yangjie Li, Respondent

Before: The Honourable Justice A. Himel

Counsel:
Applicant – Self-represented
H. (Pandora) Du, Counsel for the Respondent

Heard: April 16, 2025

Ruling on Motion

Relief Sought

[1] The Respondent husband brings a motion to strike out the Applicant wife’s pleadings.

[2] This matter has been outstanding since June 2020, with a long history of motions, 14B motions and conferences. The parties most recently attended a Case Management Hearing on January 20, 2025. The attendance was arranged because the wife scheduled a motion for January 8, 2025, which was vacated by the court when she did not comply with the court’s rules for filing deadlines. The wife’s motion was intended to address the husband’s alleged non-compliance with my disclosure order dated April 17, 2024 (the April 2024 order).

[3] Justice Jarvis granted leave to the husband to bring this Motion to Strike peremptory to both parties, and he gave clear directions, deadlines, and page limits. No other motion could be brought without leave of the court first being obtained.

[4] The husband relies on affidavits dated October 29, 2024 and March 14, 2025. The wife relies on affidavits dated November 4, 2024 and April 9, 2025. While the wife’s second affidavit was served after the deadline imposed by Justice Jarvis (two weeks before the motion), I permitted the wife to rely on this evidence given the serious consequences of this motion.

Background Facts

[5] The parties married on September 16, 1996 in China, and have two adult daughters. The parties resided in Ontario from 1999 to 2009, and then returned to China. The wife is a professor and doctoral advisor at Nankai University. The husband (who returned to Ontario in October 2018) is employed with a U.S. based technology company.

[6] The parties separated on May 31, 2020, and the wife commenced this Application for equalization on June 22, 2020, but did not claim a divorce. The husband claimed a divorce and other relief in his Answer.

[7] The husband resides in the jointly owned matrimonial home in Ontario, which is in the process of being sold. The wife resides in the jointly owned property in China which is located at 7-2-501, Hao Tian Jiao Yuan, Yishui Road, Nankai District, Tianjin, China (the Tianjin Property). The wife states that she has complied with the order requiring the listing of this property for sale, but that is one of the issues that form the basis of this motion.

[8] The wife alleges that the husband misappropriated significant funds (of over $300,000 Canadian) during the marriage. That is disputed by the husband. She was ordered to attend questioning on that issue, which is the other issue that forms the basis of this motion.

[9] In February 2024, the wife commenced a claim in China seeking a divorce (which she states is a requirement to deal with property in that jurisdiction) and property issues. She alleges that the husband has failed to repay funds to her. The wife’s parents commenced a claim respecting an alleged loan, but that case has been dismissed, and the wife amended her pleading to include that relief.

[10] At present there are ongoing cases in Ontario and in China related to the parties’ properties, and orders made in both jurisdictions for disclosure.

[11] The wife denies the husband’s claims that she failed to attend for questioning, and that she failed to provide evidence that she has taken all required steps to have the Tianjin property listed for sale with a specific realtor. She states that the property is listed for sale (but that the real estate agency has changed its name from the one previously identified).

[12] The wife alleges that the husband failed to fully disclose his bank accounts in a sworn financial statement he produced on April 28, 2024, and in violation of the April 2024 order. She has obtained orders and authorizations to obtain bank statements/records from financial institutions in Canada and China, who have provided disclosure. While some new accounts have now been disclosed, it seems that they had no/nominal assets on the date of separation and/or for the time period that the records were disclosed.

[13] The husband denies any failure to provide full financial disclosure. He submits that the wife is using the bank account issue to distract the court from the only motion that was authorized by Justice Jarvis, being the motion to strike out the wife’s pleadings based on her failure to comply with court orders.

[14] Both parties allege bad behaviour and delay caused by the other party.

[15] This motion is on the sole issue of the wife’s alleged breaches of court orders, and the appropriate remedy for same.

Law and Analysis

[16] Pursuant to Rule 1(8) of the Family Law Rules, O. Reg. 114/99, as amended, the court has wide discretion in dealing with a party’s failure to obey an Order. The section reads as follows:

Failure to Obey Order

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order. O. Reg. 322/13, s. 1.

[17] The three-pronged test governing the exercise of judicial discretion to strike a party’s pleadings/dismiss a party’s case is well established in the caselaw:

• (a) Is there a triggering event justifying the striking of pleadings;
• (b) Is it appropriate to strike the pleadings in the circumstances of the case; and
• (c) Are there other remedies in lieu of striking pleadings that might suffice?
  Lamothe v. Ellis, 2021 ONSC 4883, para 25; Van v. Palombi, 2017 ONSC 2492, paras 30-31

The Triggering Event: The Breaches and Justifications to Strike

[18] The husband summarizes the wife’s breaches of the court orders as follows:

a. The wife failed to attend questioning regarding the alleged missing funds, in violation of the April 2024 order, and Justice Jarvis’ orders dated May 2, 2024 (the May 2024 order) and September 9, 2024 (the September 2024 order).

b. The wife failed to comply with the terms set out in the order of Justice Jarvis dated October 22, 2024 (the October 2024 order) respecting the sale of the Tianjin Property. The wife was ordered to retain a branch of the Lianjia Tianjin real estate brokerage by October 22, 2024, and a listing agent to list the Tianjin property for sale. The wife also failed to rectify the breach by providing the husband with proof that she has “signed all documents needed for the listing” of the Tianjin property by January 24, 2025.

Questioning

[19] The wife states that she made herself available to be questioned (virtually) between April 25 and May 1, 2024, as per the April 2024 order. However, the father’s counsel’s delay in arranging same led to the husband’s request to adjourn the Settlement conference from May 2, to September 9, 2024. On May 28, 2025, the wife requested copies of the documents that would be referred to in questioning (stating that the husband’s counsel had earlier stated that documents must be previously provided before he would answer questions).

[20] The wife attended virtual questioning on May 29, 2024. The father’s counsel put a document on the video screen. However, as the father declined her request (May 28) for copies of the documents that would be referred to in the questioning, she declined to confirm the authenticity of a letter purportedly sent by her prior counsel. A party is not required, nor expected, to provide copies of documents to the person being questioned prior to the questioning when they have been previously provided. The document presented on the video screen was “previously provided to the wife” as it was the wife’s letter to the husband.

[21] The husband states that he terminated the questioning after approximately 30 minutes as the wife was not responsive to the questions. Given that the questioning was about a document that was previously provided, I find that the mother’s non-responsiveness vitiates her statement that she “attended for questioning.” The husband submits that this was a violation of the April 2024 order. I agree.

[22] On September 9, 2024, Justice Jarvis ordered the wife to re-attend for questioning between September 9 and October 4, 2024, on any date chosen by the husband. Justice Jarvis warned that if she failed to attend for questioning the Court may strike the wife’s pleading.

[23] The husband served the Notice of Questioning for an attendance that he scheduled for September 23, 2024 at 9:00 a.m. in Ontario (which was 9:00 p.m. in China).

[24] As per her affidavit sworn April 9, 2025, the wife requested that the questioning be delayed until after October 4, 2024, due to her professional obligations. The wife advised that she was an event organizer hosting senior EU officials in Beijing for the China-EU Water Platform. As she was an event organizer of a hot pot event that started at 7:30 a.m. (in Ontario) on September 23, 2024, she could not attend for questioning at 9:00 a.m.

[25] The wife was aware that her request to delay the questioning was refused, however she did not attend the questioning. The wife admits that the event ended at 11:00 a.m. (in Ontario). She provides no evidence that she contacted the husband’s counsel as soon as it was over to advise that she was prepared to attend the questioning.

[26] The court-ordered questioning was set for two hours. The wife’s refusal to attend questioning on September 23, 2024, and her request to delay the questioning until after the deadline imposed by Justice Jarvis was unreasonable. The wife is in breach of the September 2024 order.

The Sale of the Tianjin Property

[27] With respect to the sale of Tianjin Property, the October 2024 order directs the wife to retain Lianjia Tianjin real estate brokerage or, if she refuses to do so, to provide the husband with the names of three real estate agents operating in Nankai District by October 23, 2024. The husband could then choose the agent.

[28] The husband states that by email dated October 21, 2024, the wife refused to provide the Lianjia Tianjin real estate brokerage with the requested documents for the sale, stating that the property is “already being represented by other agents from beike.com.”

[29] The wife states that she listed the Tianjin Property with Shell House Searching, which is another name for Lianjia after it went public on the NYSE. She notified the husband of this listing on February 13, 2024, and the husband reached out to the agent.

[30] The husband was not satisfied with the materials provided by the wife. He did not (and does not) believe that the wife signed the documents required to list the Tianjin Property for sale, either with the Lianjia Tianjin real estate brokerage or any other brokerages.

[31] At the conference on January 20, 2025, Justice Jarvis provided the wife with the opportunity to rectify any breach by providing the husband with proof that “she has signed all documents needed for the listing” of the Tianjin Property by January 24, 2025. She was ordered to provide proof that she had signed all documents needed for the listing of the parties’ property in China and was permitted to produce the documents in Chinese (Mandarin). If the husband was not satisfied after reviewing the documents, the husband was permitted to raise this issue in the motion to strike.

[32] By affidavit sworn March 14, 2025, the husband states that he has not received any documents regarding the listing of the Tianjin Property.

[33] The wife’s April 9, 2025 affidavit fails to address the Tianjin Property’s sale, or the January 2025 order for production.

[34] In oral submissions the wife stated that she emailed the father’s counsel the listing documents on February 2. She failed to include the year of the provision of the documents (2024 not 2025) until confronted by the husband’s counsel. The previously disclosed documents did not satisfy the husband, which is why Justice Jarvis articulated what the wife needed to do to address this issue.

[35] Given that Justice Jarvis ordered the delivery of disclosure between January 20 and 25, 2025, and the fact that the wife failed to send any documentation, she is in breach of the order.

The Appropriateness of the Remedy of Striking the Wife’s Pleadings

[36] As stated in Manchanda v. Thethi, 2016 ONSC 3776, “Without enforcement of the primary objective, a party can frustrate the civil justice system’s goals of efficiency, affordability, proportionality, and fairness, by making the process slow, expensive, and distressful.” The Court of Appeal held that striking of pleadings is not reserved for drastic and extreme cases.
Manchanda v. Thethi, 2016 ONCA 909

[37] Once the Court is satisfied that there has been a triggering event, it will turn to whether exceptional circumstances exist such that the Court should exercise its discretion in favour of the responding party and not strike his or her pleadings. In undertaking this task, the Court should consider and weigh the following factors:

• (a) The extent and persistence of the non-compliance;
• (b) Whether the disobedience of the orders and rules was willful in nature;
• (c) Whether the non-compliant party made reasonable efforts to comply and is able to provide acceptable explanations for the breaches;
• (d) Where the non-compliance relates to support orders, the payor’s financial circumstances and their ability to pay support; and
• (e) The remedy should be proportionate to the issues in question and the conduct of the non-compliant party.
  Nikfar v. Nikfar, 2022 ONSC 1252, para 65

[38] In this instance the wife has repeatedly breached various court orders that were imposed to address two significant issues in this case, being: (a) her claim that the husband misappropriated funds; and, (b) the sale of the jointly owned Tianjin Property.

[39] The wife’s decision to commence a proceeding in China for much of the same relief, years after the commencement of this Application runs the risk of “competing proceedings in different jurisdictions involving the same, or related, relief” (as stated by Justice Jarvis in the January 2025 order).

[40] The wife’s divorce claim in China (and the one withdrawn by her parents) relates to alleged loans and funds owed to the wife and her family. While the wife is actively pursing the litigation in China, she declined to attend the questioning related to the misappropriation of funds in Ontario.

[41] This disobedience is willful and displays a blatant disregard for the Ontario court, and Ontario court orders.

[42] The Ontario property where the husband resides is in the process of being sold. The October 2024 order requires that the Tianjin Property, where the wife resides, also be sold. As a consequence of the wife’s breach, it is unclear if the property is even properly listed for sale. The properties are both jointly owned and, in accordance with both parties’ rights pursuant to the Partition Act and as addressed by the October 2024 order, the properties must be sold.

[43] I note that wife was given repeated opportunities to remedy the breaches but failed to do. Her focus is to defend her non-compliance with allegations about the husband’s non-compliance (including demands for relief on this motion, and focusing her affidavits on that issue).

[44] The wife’s actions are willful. She failed to provide reasonable efforts to comply or reasonable explanations for the breaches. The remedy of striking out the wife’s pleadings is appropriate and proportionate to the breaches.

Another Remedy that Might Suffice

[45] As stated above, the wife was provided several opportunities to comply with the court orders.

[46] I recognize that the power to strike out the pleadings is to be used sparingly and only in exceptional cases. The wife’s conduct in ignoring court orders and failing to follow the basic principles of family law litigation puts her in the exceptional category of cases where the judge’s discretion to strike.
Roberts v. Roberts, 2015 ONCA 450, paras 15-16

[47] As stated above, the wife commenced this Application on June 22, 2020. That was almost five years ago. It has been marred by delays that include those related to the wife’s breaches of the court orders, and the complications that now arise by her decision to commence a claim in China based on similar and/or related issues.

[48] There is no other remedy that will suffice.

Costs

[49] The husband filed a Bill of Costs that includes fees ($8,505 (24.3 hours)), disbursements ($795) and HST ($1,015), for a total amount of $10,406.

[50] The wife did not file a Bill of Costs.

[51] There are no offers to settle.

[52] The primary objective, of course, is to enable the court to deal with cases in a fair and timely manner. Four fundamental purposes are served: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants;
Serra v. Serra, 2009 ONCA 395
and (4) to ensure that cases are dealt with justly.
Mattina v. Mattina, 2018 ONCA 867, para 10

[53] Family law litigants must act in a reasonable and cost-effective way: they should, and will, be held accountable for the positions they take in their litigation.
Heuss v. Sarkos, 2004 ONCJ 141;
Peers v. Poupore, 2004 ONCJ 615
As observed by the Court of Appeal in Beaver v. Hill, 2018 ONCA 840, para 4, reasonableness and proportionality frame the exercise of the court’s discretion: the amount to be awarded is what the “court views as a fair and reasonable amount that should be paid by the unsuccessful [party]”:
Boucher v. Public Accountants Council for the Province of Ontario

[54] In setting the amount of costs, Rule 24(12) requires the court to consider the reasonableness and proportionality of each enumerated factor as it relates to the importance and complexity of the issues. Assessing costs is “not simply a mechanical exercise.”
Delellis v. Delellis
The Court retains discretion to make costs awards that are fair, proportional, and reasonable in all the circumstances.
M. (C.A.) v. M. (D.)

[55] The husband is the successful party on this motion and he is entitled to costs. The wife’s willful non-compliance with court orders is the basis for this motion. The motion (and the related costs) could have easily been avoided had she attended for questioning (two hours) and provided documents relating to the sale of the jointly owned Tianjin property.

[56] This is a case where significant costs are warranted. A reasonable and proportionate amount of costs is $7,500, payable by May 1, 2025.

Next Steps

[57] I am giving the wife one opportunity to take steps to restore her Application, as per the directions set out in the order below.

[58] If the wife fails to serve and file the 14B by May 6, 2025, the husband may proceed by Form 23C uncontested trial, on notice. The husband is reminded of the need to provide trial-ready evidence as discussed in
Ling v. Ling, 2024 ONSC 1444,
and
Cedeno v. Cedeno, 2023 ONSC 6686.

Order

1. Pursuant to Rule 1(8) (b)(c) of the Family Law Rules, the Applicant’s pleadings shall be struck and the Respondent may proceed by way of Form 23C. He may serve and file the affidavit for uncontested trial (and related materials) on or after May 6, 2025, subject to paragraph 3 below. The matter will proceed in writing, with the ability to provide oral evidence should the court require clarification on his Form 23C, and a date shall be set by the trial coordinator.

2. The Respondent’s affidavit in support of his Form 23C, shall be limited to 20 pages of narrative with hyperlinked exhibits. He shall serve and file the 23C, a statement of law for any legal issue, new form 13.1 and back up documentation, an NFP statement.

3. The Applicant may move to restore her Application on further order of the court by May 6, 2025, by remedying the breaches and complying with the outstanding orders and the orders set out below. The wife may serve and file a 14B motion (that includes a Notice of Motion and 14A affidavit (no more than 5 pages double space and the relevant documents referred to below as exhibits)) to my attention which includes:

   a. Evidence that she has completed the required two hours of virtual questioning on the date chosen by the husband (between April 25 and May 5, 2025), and she is responsive to the questions that are asked.

   b. Proof that she has signed all documents needed for the listing of the parties’ property in China. These documents may be produced in Chinese (Mandarin) and shall be translated by a certified translator into English and attached to the affidavit.

   c. A letter from the realtor stating: (i) when the wife signed all documents needed for the listing of the parties’ property; (ii) the number of showings and the number of offers since the listing (and dates and purchase price); (iii) his/her opinion as to why the property has not sold. The letter shall be translated by a certified translator into English and attached to the affidavit.

   d. Payment of costs of $7,500 to the husband by May 1, 2025.

4. If the Applicant serves and files the 14B by May 6, 2025, the Respondent may file a responding affidavit (no more than 5 pages double space and any relevant exhibits), by May 13, 2025. The Applicant may serve and file a brief reply (no more than 2 pages double space) by May 16, 2025.

The Honourable Justice A. Himel
Date: April 22, 2025