COURT FILE NO.: FS-22-28849-000 0 DATE: 202506 09 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Mingke Chen Applicant – and – Valeriia Huang Respondent Self-Represented A. Sam Zaslavsky, Counsel for the Respondent HEARD: October 15, 16, 17, 18, and Written submissions received October 26, and November 12, 2024 REASONS FOR DECISION rHINELANDER, J. [ 1 ] A trial was held in this case to resolve on a final basis the following issues: equalization of net family property, spousal support, child support, and damages for the tort of intrusion upon seclusion. Background [ 2 ] I refer to the Applicant as the Applicant or the husband. I refer to the Respondent as the Respondent or the wife. [ 3 ] The parties met on a website “Fdating.com” in the spring of 2019. The husband resided in Bolton, Ontario, and the wife lived in Kyiv, Ukraine. [ 4 ] After communicating for several months through the dating app, the husband went to Kyiv to meet the wife in person. He arrived in November 2019, and stayed at an Airbnb apartment for two weeks. The parties discussed marriage and starting a family together once the wife moved to Canada. [ 5 ] The husband returned to Ukraine on January 20, 2020, and the parties married January 24, 2020. During this visit, the husband stayed with the wife, her son, S, and the wife’s mother. [ 6 ] Prior to returning to Canada, the husband met S’s biological father, James Huang. This meeting was unplanned as Mr. Huang attended at the wife’s residence unannounced to see his son. [ 7 ] After the parties married, the husband sent funds to the wife through Western Union to assist her with daily expenses and support her studies. [ 8 ] Prior to coming to Canada, the wife was employed as a secretary and a part-time teacher’s assistant at a public school in Kyiv. She also provided private tutoring lessons in English. In addition, the wife was attending part-time studies for a bachelor’s degree in Preschool Education and Psychology. She had obtained one of four scholarships for this program. [ 9 ] The wife and S lived in an apartment with her mother. This was an apartment inherited by the wife’s mother, and registered equally between the wife, her mother, and the wife’s sister. S had his own bedroom. They lived a middle-class lifestyle in Ukraine, and the wife had family supports to assist with the care of S. [ 10 ] S was enrolled in after-school activities including music (violin, music theory, choir), clay modeling, science classes, and they had annual passes to the National Philharmonic Orchestra concerts, the science museum, and theatres. [ 11 ] With family supports, the wife was able to take S on vacation approximately twice a year. The wife advised she still needed two jobs to make ends meet, however she was able to provide S with a modest but comfortable life. [ 12 ] Between January 24, 2020, and November 4, 2020, the parties made plans for the wife and S to move to Canada. These plans included having the wife and S travel to Canada on a visitor’s visa in anticipation of applying for permanent residency. [ 13 ] The husband provided letters to the Canadian government undertaking to support the wife and her son during their visit to Canada. The first request for a temporary resident visa application was made in June 2020. In a letter dated August 4, 2020, the application was denied because the Government of Canada was not satisfied that the wife and S would leave Canada at the end of their stay due to i) their family ties in Canada and in their country of residence; and ii) based on the purpose of the visit. An additional reason for not approving S’s travel was his “travel history”. [ 14 ] A further application was made on August 26, 2020. In the application and letters of support and invitation written by the husband, the parties addressed issues of concern that resulted in the first request being denied. The husband emphasized that “return” tickets had been purchased, provided an explanation why they had not done so on the first request, the stay was shortened to 90 days, explained medical and health coverage available to S in Ukraine but not in Canada, why the husband could not travel to Kyiv, and their goal to have the wife immigrate to Canada legally. The second request for a visitor visa was approved. [ 15 ] The wife and S arrived in Canada on November 4, 2020. The parties cohabitated from that date until April 28, 2021, at 68 Rolling Hills Lane, Bolton, Ontario. This was a home owned solely by the husband and purchased in 2016, prior to the marriage. [ 16 ] An application for permanent resident status was filed on January 27, 2021. The husband supported the application as the sponsor for the wife and her son. The parties included photographs of their time together in the Ukraine, Canada, and of their wedding as proof of the validity of their relationship to obtain the approval from Immigration Canada. [ 17 ] The parties had not received a response from the government regarding the sponsorship application when the husband applied to extend the wife’s visitation documentation to prevent her from having to exit and re-enter Canada. [ 18 ] After submitting the sponsorship application, the parties’ relationship began to deteriorate, and S’s emotional outbursts and distress grew, adding to the discord within the household. [ 19 ] The wife had her lawyer send a letter to the husband on April 28, 2021, advising there were irreconcilable differences and she wished to terminate the marriage. On May 4, 2021, the wife left the home. She initially went to a female friend’s home before moving into the apartment of a male companion with S. [ 20 ] The husband sent messages to the wife to reconcile. When this failed, the husband withdrew the immigration sponsorship application in August 2021. [ 21 ] The husband made an application for a simple divorce dated March 25, 2022, using a Form 8A. The wife served her Answer dated April 7, 2022, and made claims for spousal and child support and equalization of the net family property. [ 22 ] The parties attended a case conference on December 12, 2022, where the divorce was severed from the corollary issues. In preparation for the Settlement Conference, the husband included messages obtained from the wife’s email and social media accounts in his conference brief. This was when the husband first learned the wife had commenced a relationship with someone else prior to their separation. [ 23 ] Kristjanson, J. granted the wife leave to bring a motion seeking declaratory relief for the tort of invasion of privacy or intrusion on seclusion. The motion was heard February 22, 2024, by Vella, J. who granted the declaratory relief and ordered the issue of ancillary remedies be reserved to the trial judge. [ 24 ] Following the settlement conference held on September 22, 2023, the husband flew to the Ukraine to obtain a divorce. The husband filed his materials in or about October 30, 2023, and failed to serve or notify the wife of his actions in the Ukraine. The husband withdrew his Form 8A application and reply in these proceedings on November 12, 2023. A divorce was granted in Ukraine on January 8, 2024. Having been successful in this endeavour, the husband failed to attend the trial management conference scheduled for January 25, 2024. The husband erroneously believed since the Ukrainian court had ordered a divorce, the Ontario court would no longer have jurisdiction to determine the support and equalization claims and these proceedings would end. Diamond, J. held the husband’s withdrawal of his application did not terminate the wife’s claims for relief and ordered costs payable by the husband to the wife. The Court held the period of cohabitation occurred in Canada. [ 25 ] The husband’s Notice of Withdrawal was voided, and he was granted leave to refile his pleadings and amend his application. A further Trial Management Conference was held resulting in this trial. [ 26 ] Ultimately, the wife obtained her permanent resident status under the criteria of Humanitarian and Compassionate grounds due in part to her personal circumstances but also because of the war in Ukraine. Members of the wife’s family came to Canada pursuant to the Canada-Ukraine Authorization for Emergency Travel (CUAET) program, including her mother, who currently resides with her and S. [ 27 ] The husband is employed at Verifone Inc. and in 2023, earned an annual income of $107,726. He has been employed with this company for several years prior to the marriage. [ 28 ] At trial, the wife was employed at Corporate Facility Supply Inc., with an annual income of approximately $31,000. [ 29 ] At the time of trial, the husband was 51 years old, and the wife was 35 years old. Issues [ 30 ] The issues to be determined are: (i) Equalization of Net Family Property; (ii) Spousal Support (retroactive and prospective); (iii) Child Support (retroactive and prospective); (iv) What damages should be awarded to the wife for the Tort of Intrusion upon Seclusion; and (v) Costs. Position of the Parties Husband’s Position [ 31 ] The husband seeks to have the marriage annulled on the basis the marriage was obtained under fraudulent pretenses. In the alternative, he seeks a divorce or that the divorce obtained by the husband in Kyiv, Ukraine be recognized as valid, applicable, and enforceable. [ 32 ] The husband claims the wife induced him to marry her so she could obtain a visitor visa to come to Canada. Shortly after arriving in Canada, the wife began a relationship with someone else and subsequently separated from the husband. He says there was never any intent for the wife and her son to remain in Canada beyond the visa. [ 33 ] At no time did the husband undertake or promise to become a father figure to S or support him as his child. As such, he says he is not obligated to pay child support. [ 34 ] As the marriage was obtained under false pretenses, there should be no equalization payments to the wife or alternatively, an unequal division of net family property. The home they lived in was not a “matrimonial home” and should be excluded from any equalization calculations. Further, the wife should not be entitled to support for herself or S. The husband denies any abuse of any kind. [ 35 ] The husband maintained his initial access to the wife’s social media accounts was inadvertent. However, there was communication between the wife and other third parties that the husband sought to utilize to further the family litigation in his favour. The husband did not dispute his actions, nor was he apologetic. He argued the wife should not be entitled to any monetary awards as she has failed to demonstrate any damages. He, on the other hand, suffered emotional harm and the wife’s social media posts had impacted his reputation. If anyone should be entitled to an award, it is him. Wife’s Position [ 36 ] The wife claims, despite the short marriage, she gave up her security in Kyiv to relocate to Canada and start a family with the husband. The husband promised to support both her and S. He obtained a visitor visa to get them to Canada quicker and had begun the application for them to obtain permanent resident status. [ 37 ] Shortly after arrival, the relationship broke down due to the husband’s abusive behaviour towards the wife and S. The husband was emotionally and financially abusive and controlling towards the wife. At one point, he demanded she send S back to the Ukraine until she became pregnant with his child. On other occasions, the husband would cut the wife off from any financial support which included money to purchase insulin for S who has Type 1 diabetes. [ 38 ] Initially the wife had no status in Canada and was unable to work or obtain health care. Since separation, she has obtained her permanent resident status and is employed. She seeks spousal and child support from the husband retroactively and prospectively, equalization of the family property, and damages for the tort of intrusion upon seclusion and invasion of privacy. Analysis [ 39 ] The Supreme Court of Canada and the Ontario Court of Appeal have provided guidance on the approach to determining economic disputes between spouses in matrimonial litigation. A court must determine the issues affecting net family property equalization before any analysis of a party’s claim for spousal support. In Greenglass v. Greenglass , 2010 ONCA 675 , 99 R.F.L. (6th) 271, at para. 44 , the Court of Appeal explained that the amount of the equalization payment, and its potential income-generating potential, will have an impact on the support analysis, and therefore must be calculated before any determination of spousal support. Equalization of Net Family Property Legal Framework [ 40 ] Marriage is recognized as a partnership where each spouse contributes in different ways, with the different contributions recognized as having equal value and importance within the marriage: Reeson v. Kowalik , 1991 12833 (ON SC) , [1991] O.J. No. 1634 (Ont. Gen. Div.). [ 41 ] Therefore, pursuant to section 5(1) of the Family Law Act (FLA), the starting point for calculating the equalization of net family property is a presumptive entitlement of 50% of the net family property. [ 42 ] In calculating net family property, the matrimonial home is treated differently from other property owned at the date of marriage. [ 43 ] Under s. 4(1) of the FLA, the matrimonial home is a unique asset that is not subject to any date of marriage deduction. The combined effects of ss. 4, 5, and 18, is that when a solely owned property is brought into the marriage and it becomes and remains the matrimonial home on the date of separation, the spouse who brought the property into the marriage may not deduct the marriage date value of that property from their net family property to be equalized: Knight v. Knight-Kerr , 2021 ONCA 686 . [ 44 ] In Rawluk v. Rawluk, 1990 152 (SCC) , at p. 90, Justice Cory explained that the effect of ss. 4 and 5 of the FLA is to require the court to “determine individual ‘ownership piles’ and then equalize the spouses’ assets by ordering the spouse with the larger ownership pile to pay money to the spouse with the smaller pile.” [ 45 ] Section 5(6) of the FLA provides an exception to the general rule of equalization of net family properties. It allows a court to order an uneven sharing of wealth which includes cohabitation lasting less than five years and where there are written agreements other than a domestic contract. The court must find that equalizing the net family properties would be unconscionable, in regard to enumerated factors. Under s. 5(6)(e) of the FLA, the Court shall have regard to the fact that the amount a spouse would otherwise receive is disproportionately large in relation to a period of cohabitation that is less than five years. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court”. See: Serra v. Serra , 2009 ONCA 105 , at paras. 47 and 48 . [ 46 ] In M.N.B. v. J.M.B. , 2022 ONSC 38 at para. 135 , the court held that to make an unequal division of net family property, the court must find that: (a) the parties cohabited for less than five years; (b) payment of the presumptive amount would be unconscionable; and (c) that the presumptive amount is disproportionately large in relation to the length of cohabitation. [ 47 ] In Gomez v. McHale , 2016 ONCA 318 , the Ontario Court of Appeal acknowledged that courts have considered the entire period of cohabitation in calculating an unequal division of net family property based on a percentage of the five-year statutory period. Whether to apply a mathematical formula will depend on the circumstances of the case. Courts may determine whether an equal division would be unconscionable and, if so, fix what it regards as a reasonable figure that is fair, just, and equitable in consideration of all the evidence. Analysis [ 48 ] The marriage was approximately fifteen months although they cohabited for only six months. [ 49 ] The husband argued the marriage was not valid and was obtained by fraud. [ 50 ] The husband also argued the home should be excluded from the calculations because he owned it prior to the marriage and his brother and mother have an interest in it. He argued monies were transferred from his brother and mother years prior for the purchase of the current residence. [ 51 ] The wife argued the marriage was valid and that she is entitled to a minimum of 20% of the net family property despite the short marriage because her financial position did not improve or stay the same because of the marriage, but instead became worst, leaving her destitute. She had no choice but to leave the marriage due in large part to the family violence. Credibility and reliability [ 52 ] Credibility and reliability of witnesses are factors courts must consider when assessing the evidence and what to accept or not accept. [ 53 ] The husband struggled to maintain a consistent version of events. When confronted with materials that contradicted him, his explanations were often implausible. He assured the Court he believed in God and that “it is God who dissolved this marriage because God knows this is not a genuine marriage.” He went on to explain that God was trying to teach him that the wife had no interest in building a family but was here only for immigration and gold digging. [ 54 ] Based on the evidence before me, it is clear the husband wanted control of this relationship. His goal was to get married and immediately start a family of his own. His actions demonstrate a pattern of behaviour that is inconsistent with several portions of his testimony. I reach this conclusion based on, but not limited to, the following: • The husband viewed the marriage as a contractual agreement; the wife had agreed to have at least one child with the husband, and he agreed to support the wife financially and to relocate her to Canada with her son. • Upon arrival in Canada, the wife was hesitant to start a family with the husband pending a determination of her immigration status. This was not what the husband had agreed. • Throughout the trial, the husband maintained the wife had come to Canada on a visitor’s visa for no more than 90 days. He claimed there was no intention or willingness on his part for her to stay beyond this timeframe. This makes no sense based on the communications between the parties and his actions. Once the initial application for a visitor visa failed, one that included only one-way tickets, the husband set a plan in place to ensure his new wife and S would arrive in Canada sooner than later. Further, the wife made an application to immigration as a Spouse in Canada Class with the husband as the sponsor. The application was submitted January 27, 2021, mere days before the 90 days would end. • The husband initially denied giving the wife an engagement ring but subsequently admitted that he did give her a ring and it was one he had previously purchased for someone else. • The husband repeatedly threatened to withdraw his Immigration sponsorship of the wife and S, demonstrating the power he had on whether she could remain in Canada. • When the husband realized the marriage was in jeopardy, he suggested the parties divorce, sign a marriage contract, and remarry. The husband looked for ways to protect the assets and home he brought into the marriage. • The husband alleged the wife tricked him into extending the visitor visa and submitting the family sponsorship immigration application on the basis that she would sign a marriage contract. • After the parties separated, the husband continued to contact the wife in hopes of reconciling. The husband made more promises to the wife, including financial support, credit cards, and health coverage. • When the husband realized the wife had no intention of reconciling, he accused her of perpetuating a fraud by using him to come to Canada. He argued that she lured him in by the promise of a child with no intention to deliver. • The husband commenced these proceedings in Canada to obtain a simple divorce. • Upon realizing the wife was seeking support and equalization of property, the husband travelled to the Ukraine to obtain a divorce on the belief that it would prohibit the wife from pursuing her claim for equalization, and spousal and child support here in Canada. However, the husband intentionally failed to inform or serve the wife with the proceedings in Ukraine and failed to advise the courts in Ukraine of the proceedings in Canada. • The husband implies the wife owes him for the monies he spent on the marriage certificate, financial assistance while she was still in the Ukraine, visa applications, flight tickets, and more. • He engaged in efforts to intimidate a potential witness of the wife by threatening legal action. • He provided his brother with materials in these proceedings and not interceding when his brother sent an email to the wife threatening to have her deported. • He accessed the wife’s social media account with the intent to use the materials in this litigation. [ 55 ] The above demonstrated the lengths the husband went to absolve himself of any financial responsibility to the wife and to minimize any financial fallout. The husband’s actions and behaviour started when it became clear the wife had begun to distance herself from the relationship and did not seem interested in having a child with the husband, which was the impetus of the marriage. The wife throughout the relationship did research in anticipation of moving to Canada, challenged the husband when she disagreed with him, and sought legal counsel in advance of their separation, including the impact of signing a marriage contract after the parties were wed. [ 56 ] The wife was not without issues of credibility. There were several errors and contradictions in her evidence, some which related to timeframes and dates that often accrued to her benefit when conducting an analysis on entitlement: • The wife stated the husband pursued her from the time they met online and for the first five months of their virtual relationship they had videocalls almost every night prior to the husband coming to Ukraine to meet her in person. The husband stated he was communicating with several different women and did not decide to focus on the wife until the fall of 2019. The husband’s position is confirmed from the parties viber messages. They communicated for a short time in June and then had no contact until the end of August. This is inconsistent with the wife’s evidence. • The wife claimed in her affidavit that the marriage was sixteen months. It was fifteen months. • The wife initially claimed the parties cohabitated for a month in Kyiv. The wife later corrected this in her viva voce evidence that it was two weeks and a few days due to the husband’s flight being cancelled. The husband’s affidavit included his travel itinerary, but testified he slept in a separate room from the wife during that stay, except for one night. The other nights the wife stayed with her son. I accept the husband’s evidence on this point. • She claimed the husband wanted to send S back to Ukraine during the onset of the pandemic. The pandemic began mid March of 2020, the wife and S did not arrive in Canada until November, months after the onset, courts had reopened, and travel was permitted within and outside Canada. • The wife claimed the husband promised and assured Mr. Huang on the one occasion when they met in January 2020, that he would fully support the wife and S in Canada and be financially responsible for them. Based on this, Mr. Huang signed the consent letters within days. Messages between the parties in July and early August of 2020, contradict the wife’s evidence on this point. Mr. Huang had concerns about the impact of the consent letter on his parental rights. Further, he did not sign the consent within days of meeting the husband. In fact, the consent was not signed until August 11, 2020, after negotiations and discussions with the wife, including the possibility that she would not enforce alimony and/or child support. • The wife testified that the husband did not want to wait for her to obtain approval for a permanent residency as it would take more than a year. He decided she should come to Canada on a visitor visa, and they could apply after she arrived. Messages between the parties demonstrate they were jointly seeking a plan for her to come to Canada as quickly as possible and not wait to apply for permanent residency before coming to Canada. The messages contradict her evidence as this was clearly both their plans and not solely the husband’s plan. In fact, there were several occasions where she proposed ideas to the husband on how to affect her travel to Canada sooner. • The wife testified she did not like the husband speaking to S about sex and her getting pregnant. Yet there is evidence that S insisted she show him her pregnancy test results before showing them to the husband. It is possible the wife did not want the husband to speak to S about sex while it was okay for her to have those conversations, but the impression left with the court was she did not want anyone speaking to S about the possibility of her getting pregnant which is contradicted by permitting S to insist on seeing the pregnancy tests and to watch the test results appear. • The wife clearly gave up her employment in the Ukraine. However, she owned 1/3 of the apartment she moved from with her mother and sister. Her sister lived elsewhere. Her explanation for why she could not return to the multi-bedroom apartment was because her mother’s boyfriend had moved in. This should not have impacted the bedrooms that she and S had prior to moving to Canada. No evidence was called regarding the use of these two rooms after the wife moved. • On several occasions the wife responded to questions in cross-examination that she “did not remember” and asked to be directed to evidence. • The wife was adamant that she and S could not return to Ukraine due to Covid and their lack of vaccinations, yet they still travelled to Canada when risks were extremely high and very limited travel was permitted. Validity of the Marriage [ 57 ] As property equalization only applies to married spouses, I begin with the factual determination on the validity of the marriage. I understand the husband is asking that the marriage be annulled on the basis of fraud. Fraud justifying an annulment can exist where one party enters the marriage solely to immigrate to Canada, while giving the impression to the other party that the marriage is a love match and will be consummated. Torfehnejad v. Salimi, 2006 38882 (ON SC) , [2006] O.J. No. 4633 at para. 87 (Ont. S.C.J.), aff’d [2008 O.J. No. 3165, 2008 ONCA 583 (Ont. C.A.) . [ 58 ] The husband argued the marriage was a fraud and that the wife lured him to marry her solely so she could immigrate to Canada. It is his position she had only come to Canada for a short visit and was a “guest” in his home with her son. A return ticket had been purchased which is evidence of her intent to not remain in Canada. Further, she only brought a 90-day supply of insulin for S who has Type 1 diabetes. He pointed to this as additional evidence that she was not planning on staying in Canada. [ 59 ] Lastly, the husband relied upon the wife overstaying her visitor’s visa and entering a new relationship before theirs had ended as reasons why the court should find the marriage was a sham. The husband discovered the wife had moved in with a new partner within days of their separation and therefore was not truly committed to their marriage and used it to come to Canada. [ 60 ] The wife introduced evidence and testified that she was nervous but happy and looking forward to moving to Canada with S to start a family with the husband. Just prior to their flight to Canada, she expressed hesitation in starting a family immediately and suggested they wait. This is not evidence of the wife’s deception or master plan to fool the husband, but that of the wife’s uncertainty for how things would unfold upon her arrival and a few doubts that had arisen based on some of their communications in the intervening months. [ 61 ] Evidence was introduced that the parties communicated with each other daily while residing in different countries in the months immediately before they were married and until the wife arrived in Canada. The messages clearly demonstrate a common intention and goal for the wife to relocate and move to Canada. The impediment was the length of time it would take to apply and be approved for a permanent residency. To get around the wait, the parties sought to have the wife come to Canada under the pretense of a visit. [ 62 ] The initial application for a visitor’s visa did not address how long the wife would stay and no plans were made to purchase a return ticket. After being rejected the first time around, the parties devised a plan to convince the government of Canada, that the wife fully intended to return to Kyiv. This too was false. The wife came with her son, their cat, had given up her job in Kyiv, and had explored options for what needed to be done upon her arrival in Canada, including registering S in school. [ 63 ] The wife was prepared to leave behind her family, her employment, and security, knowing she would be dependent on the husband. The husband was aware that he would be responsible for providing for the wife upon her relocation to Canada until she could obtain status. In fact, he had sent her money to assist her while they were in separate countries. Both parties had investigated what was required for the immigration process and had commenced creating the image of a loving relationship and partnership. [ 64 ] Based on the months of communications introduced as evidence, I am satisfied the parties’ appeared committed to the relationship and their respective intents were genuine. The parties had discussed the possibility of having a child of their own early in the relationship which led to the quick proposal of marriage. There is no doubt that the husband was eager to get married and have a child of his own. [ 65 ] I am not satisfied the wife entered the marriage with fraudulent intent to induce the husband into agreeing to marry her. As such, I find that the marriage was valid, and the husband was not misled by the wife for the purpose of immigration and coming to Canada. Recognition of Foreign Divorce [ 66 ] After the commencement of these proceedings, the husband flew to Ukraine to obtain a divorce. Pursuant to section 22 of the Divorce Act , a divorce obtained outside Canada will not be recognized where neither party had been a habitual resident in the country for at least one year immediately preceding the commencement of the proceedings for the divorce. [ 67 ] Section 22(3) of the Divorce Act preserves common law rules regarding the recognition of foreign divorces. Courts will not recognize a foreign divorce where there is evidence the responding party did not receive notice of the divorce application; if the foreign divorce is contrary to Canadian public policy; and there was a denial of natural justice by the authority that granted the divorce in making the divorce order. [ 68 ] The wife arrived in Canada on November 4, 2020, and has resided here since that date. The husband applied for the divorce in Ukraine in October 2023, almost three years after the wife had lived in Canada. There is no evidence the wife returned to Ukraine since her arrival. [ 69 ] There is no dispute the wife was not served or provided any notice regarding the husband’s divorce application and proceedings in the Ukraine. [ 70 ] The husband readily acknowledged he flew to the Ukraine and retained counsel to obtain a divorce there, because Ukraine does not recognize equalization of net family property or spousal support. The husband believed by obtaining a divorce in Ukraine, the wife would not be permitted to continue her claims for corollary relief in Canada. [ 71 ] Based on the evidence before this court, there are several exceptions why the divorce obtained in Ukraine can not be recognized in Canada. Firstly, neither party was a resident in the Ukraine in the twelve months preceding the initiation of the application. Secondly, the wife was not served with the application and not provided an opportunity to respond. Thirdly, the husband was clearly forum shopping in hopes of bypassing any claims the wife had here in Canada, thereby creating a denial of natural justice. For these reasons, I do not recognize the divorce obtained by the husband in Ukraine. Matrimonial Home as Deduction [ 72 ] In calculating the net family property, the husband deducted the matrimonial home. He argued the residence was not a matrimonial home because the wife did not live there, as she was merely a guest who was visiting. I do not accept this argument. [ 73 ] The husband purchased the home at 68 Rolling Hills Lane, Bolton, in 2016. He is the only person on title and on the mortgage. This is where he resides. [ 74 ] In messages to the wife, he sent her photos of the home, telling her this is where she would live and referred to the house as “our home”. When the wife and S arrived with their cat, this is where they lived. In messages to her, he referred to “our kitchen” as being fully stocked and she looked forward to cooking in it. A joint Walmart credit card account was obtained with cards in both names and the address identified as the wife’s. [ 75 ] The husband did not own any other properties. The couple were married, and this is where the parties’ resided from the date the wife arrived in Canada until separation. [ 76 ] I do not accept that the wife was merely a visitor to return to the Ukraine after 90 days. I have found that the purpose for the visitor’s visa was a ruse for the wife to come to Canada as quickly as possible and to apply for a permanent resident application after her arrival. [ 77 ] The parties resided in the home as a married couple and the property was not sold during the period of cohabitation. Therefore, the residence was the matrimonial home and can not be considered a date of marriage deduction. Pursuant to the FLA, the matrimonial home is not a date of marriage deduction. Property Held in Trust and/or Loan held by Family Members [ 78 ] The husband argued this could not be a matrimonial home because his brother and mother had an interest in it. The only person on title is the husband. [ 79 ] The husband relied on a promissory note from his brother that was dated in 2015 and a money transfer from 2013. The home was not purchased until 2016. The husband testified he also received cash from his mother and brother to put towards the home. Neither his brother nor mother were called to testify to give any evidence of a beneficial interest in the home. They are also not parties. I am not satisfied on the evidence adduced that his brother and/or mother provided him a loan to purchase the home. Therefore, these amounts should not be considered as debts for purposes of equalization. [ 80 ] I am also not satisfied that the husband holds the house, or any proportion of its value, in trust for his mother and/or brother. Family Violence [ 81 ] After the parties separated, the wife claimed she could not return to Ukraine without financial assistance. She had no income, no status in Canada to seek employment, and there was concern regarding tensions between Russia and Ukraine. Ultimately, members of the wife’s family came to Canada pursuant to the Canada-Ukraine Authorization for Emergency Travel (CUAET) program. [ 82 ] The wife claimed the husband repeatedly threatened to send S back to Ukraine. Several of these threats were said in the presence of S, causing him unnecessary trauma at the fear of being separated from his mother. A large part of this fear is based on S’s reliance on his mother for daily monitoring day and night of sugars due to his diabetes. [ 83 ] In Dworakowski v. Dworakowski , 2022 ONSC 734 , at para. 58 , Papageorgiou, J. found that a withdrawal of an immigration sponsorship can be a form of family violence. [ 84 ] This was followed by Sharma, J. in Dworakowski v. Dworakowski , 2022 ONSC 7209 , at paragraph 98 , where he stated, “Where a spouse is dependent upon the other spouse to support or maintain their immigration status, that dependency can be leveraged as a threat or as a means to exert coercion and control over the other. The threat can be particularly traumatic for a spouse who is also a parent, who in addition to fearing deportation, may also fear losing parenting time and being removed from the care of their child for immigration reasons”. [ 85 ] In paragraph 99, he stated, “Under section 2(1) of the Divorce Act , “family violence” has an expanded meaning and includes “any conduct…that is violent or threatening…or that constitutes a pattern of coercive and controlling behaviour…” Where one spouse threatens to withdraw their support of a spouse’s immigration application or uses such threats to coerce or control the other spouse, I find it can constitute family violence under the Divorce Act.” [ 86 ] The wife alleged the husband had sexually assaulted her on one occasion in March 2021. The husband denied there was ever non-consensual sexual conduct, or any improper sexual conduct directed towards the wife. There was a lack of details and information provided by the wife in her affidavit and she was not questioned on the allegations during her testimony. The husband was adamant this did not occur. On the evidence before the court, I am not satisfied on a balance of probabilities that the husband sexually assaulted the wife. [ 87 ] Having considered the evidence before me, the husband controlled the financial means of the household and determined a hierarchy that he wrote on a white board setting out that he was at the top, followed by the wife, and then S. [ 88 ] The relationship was deteriorating, messages between the parties demonstrated the wife’s unhappiness and that the loving and intimacy of their relationship had weakened. I find on a balance of probabilities that the husband controlled the household financially. The wife did not have financial freedom and was dependent on the husband. [ 89 ] I am satisfied that there were often heated arguments between the parties where there was verbal abuse. I am satisfied that each party had a role in instigating these fights at different times, and they often arose about starting a family, S, the newness of living together, and the challenges of adapting in a new country. I am not able to say with confidence that he was solely responsible for the emotional upheaval in the home. However, threats to send the child back is one form of family violence. The child was having a very difficult time adapting and resented the husband. The wife admitted that being the sole parent in his life for several years, it was more of an equal relationship despite his young age, than a parent child relationship with S. The husband had difficulty adjusting to S’s outbursts and demands to be treated equally as an adult. [ 90 ] The wife argued that the family violence had an impact on her ability to become self‑sufficient and this should be considered in the division of the net family property. Equalization of Net Family Property [ 91 ] The difference between the two parties’ net family property calculations was dependent on findings of whether the residence was a matrimonial home and if there was a pre-existing debt/loan owed by the husband to his mother and brother. Given my decision above, I accept the wife’s calculations regarding a presumptive payment to her of $407,040.38. I must now determine whether there should be an unequal division of property because the parties cohabited less than five years pursuant to section 5(6) of the FLA. [ 92 ] The wife is not seeking an equal division of the net family property, but argued she should receive at a minimum $81,408 which is the equivalent of 20%. [ 93 ] I have considered the jurisprudence relied upon by the parties and it is evident that each case is impacted by its own set of facts. In several cases where the marriage was of short duration, the courts have generally applied a purely mathematical analysis. In cases where courts have departed from this approach, there has been recent births of a child/ren which are the responsibility of the party seeking full equalization. [ 94 ] The value of the equalization payment arises from the acquisition of the property, which became the matrimonial home, purchased before marriage. When applying the principle of sharing equally in wealth accumulated during marriage, the application of the presumptive equalization payment would result in a windfall to the wife that was not representative of her contributions and would shock the conscience of the court. [ 95 ] I have concluded that the presumptive equalization is disproportionately large in relation to the length of cohabitation, and it would be unconscionable to order an equal division of the net family property. Having looked at the totality of the factors in this case, including the discord and family violence in the marriage, I see no reason to depart from the formulaic approach. [ 96 ] In this case 6 months of cohabitation would result in 10% of the equalization payment, or $40,704.03 being paid to the wife. I find this amount to be fair and equitable under section 5(6) of the FLA. This amount represents more than what the wife would have earned over ten years in Ukraine where her annual income was approximately $3,000, albeit the cost of living was significantly different. [ 97 ] Accordingly, I order that $40,704.03 be paid by the husband to the wife as an equalization payment. Spousal Support [ 98 ] Section 30 of the Family Law Act states that every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she can do so. [ 99 ] Section 15.2(1) of the Divorce Act authorizes the court to make an order to require a spouse to secure or pay such lump sum or periodic sums, "as the Court thinks reasonable for the support of the other spouse". [ 100 ] Both the Divorce Act ( s. 15.2(6) ) and the FLA (s. 33(8)) indicate the objectives that are to be achieved by an order for spousal support include: i) the recognition of any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown, ii) the relief of any economic hardship of the spouses arising from the breakdown of the marriage, and iii) as far as is practicable, the promotion of the economic self-sufficiency of each spouse within a reasonable period of time. [ 101 ] The court has considered the above sections and subsections in making its decision and the factors and objectives of spousal support. Entitlement to Spousal Support [ 102 ] The first issue to determine is whether the wife is entitled to spousal support. Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow , 1999 715 (S.C.C.) . [ 103 ] Based on the parties’ marriage, the wife gave up her employment, family supports, and housing, to move to Canada. The wife relocated to Canada on the promise that the husband would sponsor her application for permanent resident status. [ 104 ] The wife had given up everything to move to Canada to be with the husband (non-specific compensatory), had no legal status in Canada, was unable to work, and had no savings (non‑compensatory), and the husband had sponsored her immigration application (contractual), although he later withdrew it. The subsequent breakdown of the marriage put the wife in an economically disadvantaged position. [ 105 ] I find that the wife has established entitlement to spousal support on a compensatory (non‑specific), non-compensatory (financial need), and contractual (immigration sponsorship) basis. Quantum and Duration [ 106 ] The next issue to determine is the appropriate quantum and duration. [ 107 ] The Court of Appeal in Fisher v. Fisher , 2008 ONCA 11 , stated that the Spousal Support Advisory Guidelines (SSAG), while only advisory, are a useful starting point to assess the quantum and duration of spousal support once entitlement is established. The court wrote at paragraph [103]: “[103] In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result. This is no different than a trial court distinguishing a significant authority relied upon by a party.” [ 108 ] Amount and duration are interrelated parts of the SSAG formula. See: Domirti v. Domirti , 2010 BCCA 472 . Using one part of the formula without the other undermines its integrity and coherence. Extending duration beyond the formula ranges, for example, may require a corresponding adjustment of amount by means of restructuring (see SSAG Ch. 10 ) or a finding that the facts of the case require an exception (see SSAG Ch. 12 ). See: Spousal Support Advisory Guidelines: Revised User’s Guide, supra, Chapter 7 ). [ 109 ] Where entitlement is established, short-term marriages will usually result in limited-term support, designed to enable the recipient to either achieve self-sufficiency or adjust to a lower standard of living. In contrast, in long-term marriages, spousal support awards should generally be indefinite. See: Jackson, supra , paragraphs 745 and 746. [ 110 ] As Kimmel, J. stated in Khan v. Irum , 2021 ONSC 3314 , at paragraph 19 , “Where the SSAG formula generates results that are inconsistent with the objectives of the Divorce Act or the Family Law Act , an appropriate result is achieved by departing from the formula”. [ 111 ] The SSAG uses the length of the relationship to categorize cohabitation with a short-term cohabitation being one of less than five years. In this case, the parties lived together for less than six months and were married for fifteen months. [ 112 ] Where there are no dependent children, the without child support formula applies. See: Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016 : Professor Carol Rogerson and Professor Rollie Thompson. For reasons set out under Child Support, I have determined the husband had not formed a settled intention to parent S. Therefore, I proceed using the without child support formula. [ 113 ] This formula relies predominantly on the length of the relationship to determine both the amount and duration of support. The primary basis for entitlement in shorter marriages without children will be non-compensatory. [ 114 ] Pursuant to the SSAGs, the wife would be entitled to six months of spousal support, ranging between $48 to $64 per month. I have found the wife is entitled to spousal support on all three grounds and therefore, subject to the husband’s ability to pay, would award her spousal support at the high range on the figures above. However, this amount would not assist the wife with her daily needs and life necessities. [ 115 ] As Bielby, J. found in Sidhu v. Sidhu , 2014 ONSC 2965 at para. 78 , “It is hard to imagine a greater economic disadvantage as the one facing the respondent. Clearly it has arisen from the breakdown of the marriage”. [ 116 ] In Sidhu , the wife had given up everything in another country to marry the applicant. She travelled to Canada not knowing the applicant had withdrawn his sponsorship of her immigration application which would have made him responsible to financially support her. The respondent wife sought periodic support and a lump sum. Despite the short marriage, fourteen months with six weeks of cohabitation, the court ordered the applicant to pay support for a period of three years in the amount of $350 per month based on an imputed annual income of $35,000, and a lump sum payment of $10,000. The Court acknowledged that guidelines are just that, guidelines, and are not binding. [ 117 ] The SSAGs recognize there are circumstances that warrant exceptions. Like Sidhu , this is one of those cases. [ 118 ] While this was a short marriage without children, there are significant compensatory claims that make the suggested amounts inadequate. These include the wife’s economic loss caused by moving and leaving her employment. It also fails to address the wife’s basic needs in circumstances where she had no income and was not permitted to work. I note, however, that she has since found work and obtained permanent residence status. [ 119 ] Another factor for the court to consider is the timing of the marital breakdown and whether there was an immigration sponsorship agreement in place at the time of separation. [ 120 ] Although an immigration sponsorship agreement is one factor to be considered in assessing spousal support, it is not determinative of the issue. It was found to be a strong factor in favour of ordering spousal support in Camilleri v. Camilleri , 2001 60971 (ON SCDC) , [2001] O.J. No. 2602 (Ont. Div. Ct.) ; Carty‑Pusey v. Pusey, 2015 ONCJ 382 ; Javed v. Kaukab , 2010 ONCJ 606 [4] and Gutierrez v. Petten, 2011 ONCJ 549 ; and Singh v. Singh , 2013 ONSC 6476 . [ 121 ] Here, the wife had no legal status in Canada and was unable to seek employment until she received a work permit and ultimately, her permanent resident card. She is currently employed and earned approximately $31,000 in 2024. [ 122 ] I have determined it is necessary in this case to depart from the formula ranges and that exceptions exist of compelling financial need, the wife’s relocation, and basic needs and hardship. [ 123 ] Although the relationship was short, the parties had expectations that they were marrying each other for the long term and based on this, the wife uprooted her life in Ukraine and moved to Canada. In Kyiv, the wife worked and was completing her masters. The husband applied to sponsor the wife to stay in Canada, although he withdrew his support of the application after the parties’ separation. In the initial sponsorship, he committed to being financially responsible for the wife for three years until 2024. [ 124 ] At the time of separation, the wife had no income, no savings, and no means of support. The sponsorship application was submitted at the end of January 2021. The husband continued to support the wife until their separation, which was a period of three months. In sponsoring the wife, the husband agreed he would be responsible to support the wife for a period of three years. Using the approximate date of the submission of the application, three years would terminate January 31, 2024. [ 125 ] This case is different than other cases where courts found a contractual obligation based on sponsoring a spouse’s immigration and determined the duration of spousal support on the three‑year contractual agreement with the government. In several of those cases, prior to arriving in Canada, the spouse seeking to immigrate had been approved for permanent resident status. See: Khan v. Irum , L.M.A. v. P.H ., 2014 ONSC 1707 , Johnson v. Johnson , 2005 ONCJ 325 . [ 126 ] I have determined the appropriate duration of spousal support is thirty-three months commencing May 1, 2021, and ending January 31, 2024. [ 127 ] Retroactive spousal support is paid in the form of a lump sum. Ordinarily, lump sum spousal support is neither deductible to the payor, nor taxable in the hands of the recipient. This means that any calculation of periodic spousal support, or increased support, must be discounted or netted down to arrive at an after-tax amount. See: Spousal Support Advisory Guidelines: The Revised User’s Guide , April 2016. [ 128 ] In McKinnon v. McKinnon , 2011 CarswellOnt 11430 (Ont. C.A.) , the Court determined that lump-sum spousal support needs to be netted down to reflect its tax-free status. However, the court is not required to guess at the tax effects. [ 129 ] I have considered all the circumstances of the parties, including their means and needs, the economic dependency of the wife on the husband and the significant economic consequences that their separation had on her, having moved from Ukraine to Canada without any close family, job or friends here. I have also considered the Sponsorship Agreement and the goal of self-sufficiency for the wife. [ 130 ] In all these circumstances, having found this is an appropriate case to depart from the SSAG, and the husband’s ability to pay, an appropriate quantum is $500 per month after-tax. I find lump sum spousal support payable by the husband to the wife to be $16,500 ($500 x 33 months), less credits owed to the husband. The credits to which the husband is entitled are $3002 as conceded by the wife for credit card expenses of $2002 and $1000 cash post separation. Therefore, after considering credits to the husband, the I order the husband to pay lump sum spousal support of $13,498. Since separation, the wife has obtained employment and her permanent resident status in Canada. In considering the sum owed to her for equalization, the wife should be self-sufficient with these amounts paid. This lump sum spousal support is also within the means of the husband to pay. Child Support [ 131 ] It is agreed the husband is not the biological father of S. The Court must determine whether the husband had a settled intention to treat S as a child of his family. [ 132 ] The Supreme Court of Canada in Chartier v. Chartier , (1999) 1999 707 (SCC) , 43 R.F.L. 4 th 1 S.C.C. sets out the following factors to consider:
- What are the actions and the expressed intention?
- Are they forming a new family?
- Does the child participate in the extended family like a biological child would?
- Whether the person contributes financially to the family (depending on ability to pay)?
- Whether the person disciplines the child?
- Whether the person represents to the child, the family, the world, either explicitly or implicitly that he or she is responsible as a parent to the child?
- The nature or existence of the child’s relationship with the absent biological parent? [ 133 ] The length of the relationship is an important factor. Oxley v. Oxley 2003 64327 (ON SC) , [2003] O.J. No. 5275 (SCJ). Spence, J. sets out a review of the law in Watts v. Watts , 2011 ONCJ 104 , where he states: “Someone in Malcolm’s shoes would want to demonstrate kindness, cordiality, financial support where it is not otherwise available from his new wife, respect and generally a positive interpersonal relationship. In circumstances such as these, where a new stepfather and a child are living together under the same roof, there is a natural inclination to at least try to get along with one another. None of that, however, equates with demonstrating a settled intention to treat the child as a child of that stepfather. See , for example, Segal v. Qu , 2001 28201 (ON SC) , [2001] O.J. No. 2646, (Ont. S.C.) . ” [ 134 ] A sponsorship agreement may be evidence of the sponsor’s settled intention to treat a child as their own, creating a child support obligation. See: Lalli v. Lalli , 2002 CarswellOnt 1685 (OCJ) ; Karkulowski v. Karkulowski, 2015 ONSC 1057 . However, the sponsorship agreement is not determinative. See: Watts v. Watts , 2011 ONCJ 104 ; Charan v. Charan , 2018 BCSC 1537 . [ 135 ] Although not specifically referenced by the Court of Appeal, there are really two policy ends at play in the whole idea of in loco parentis . On one hand, once a person becomes a "step‑parent" and starts to treat a child as a child of his or her own, the law does not want to simply allow that party to wholly financially withdraw from what has become a new family financial unit. But on the other hand, if courts too readily determine that new partners are standing in loco parentis , that will discourage repartnering: See: Widdis v. Widdis, 2000 SKQB 441 , 2000 CarswellSask 594 (Q.B.); Watts v. Watts (2011), 2011 ONCJ 104 , 99 R.F.L. (6th) 225 (Ont. C.J.). [ 136 ] In Spring v. Spring (1987), 1987 4379 (ON SC) , 61 O.R. (2d) 743, [1987] O.J. No. 1569, 1987 CarswellOnt 1022 (Ont. U.F.C.), the court had to decide whether the relationship between the husband and the stepdaughters constituted a settled intention. The court ultimately decided in favour of the wife's position, namely that settled intention had been established. The court did so, having regard to several factors including (at paragraph 20):
- the parties had pooled their incomes into a joint account;
- all expenses including those of the children were paid out of this account;
- the children called the husband "daddy";
- the parties gave the children gifts and cards, in which they wrote "from mommy and daddy";
- the parties shared the task of disciplining the children; and
- the father provided flowers for one of the children on her birthday, stating that it was the father's duty to provide his daughter with her first flowers. [ 137 ] The issue is whether the husband had a settled intention to act as a parent to S. If the evidence establishes that the husband demonstrated a “settled intention” to treat S as his child, he would be obligated to pay child support. The test is on a balance of probabilities. [ 138 ] The court must examine the family dynamics to determine whether the husband had demonstrated a settled intention to treat S as a child of his family. In doing so, the court must look at the family’s interactions, relationships, and how they functioned prior to separation. [ 139 ] The wife relies on the following: • The husband sent money to her in Russia to buy glucose tests for S. • The husband, in messages, trying to reconcile referred to the wife and S, as “my family”. • The husband provided a home and financial support while they were living together. • The husband signed the sponsorship agreement for both her and S and agreed to provide and support them pursuant to the timeframes set out in the agreement. • The husband assured S’s biological father that S would be well taken care of if he provided consent for S to relocate to Canada with the wife and the husband. • The wife relies on a document written for purposes of litigation, purportedly authored by the biological father of an understanding or agreement between the husband and him where the husband promised her and S’s biological father, James, that he would care for S as his own, they were moving to Canada for a better life, and to start a family. • The wife claimed the husband researched diabetes to learn more about S and his needs. [ 140 ] The husband testified that he had not formed, nor did he express a settled intention to treat S as his own child. He acknowledged the marriage to the wife, and her love and concern for S and S’s health. He was aware that S would come to Canada with the wife, and they would live together. He wrote letters to immigration to assist in their arrival to Canada. The husband knew that a relationship with the wife would include her son S. [ 141 ] The present case is different than L.M.A. v. P.H. , where the duration of the marriage was more than five years, the parties had lived together more than two years, and the husband had created a bond with the wife’s child. That is not the case here. [ 142 ] In that case, the parties met online and communicated for more than a year before the husband flew to Panama to meet the wife. The pair agreed to marry, and the husband flew down a second time for the wedding. The wife remained in Panama pending approval of her permanent resident card. The husband supported the wife and her child during this time which took much longer than anticipated. When the wife and the child moved to Canada the couple had been married three years. The parties cohabitated for over two years before separating. During their marriage, there was overwhelming evidence of the father’s settled intention to be a parent to the child. This included the child calling him dad, his mother, grandma, involvement in his schooling, decision‑making, attendance at parent-teacher interviews, a complete absence of the involvement of the biological father, the husband had supported the wife and child for over five years, and the husband presented himself to others as the child’s father. That evidence is lacking in this case. [ 143 ] The Court accepts that sponsoring both the wife and S was a “package deal”. It was clear the wife would not contemplate marriage or relocation without her son. [ 144 ] The husband had no choice but to sign the document if he wished to continue his marriage to the wife and start a family of their own. It would be impossible to only bring the wife. Accordingly, as in Watts , I see the sponsorship agreement as one factor only, and provides little assistance that the husband had formed a settled intention to treat S as his own child. [ 145 ] I find that the husband did not demonstrate a settled intention to treat S as a child of his family for the following reason: • There was minimal interaction between the husband and S. • There was a significant language barrier between the husband and S. The wife and S communicated in Ukraine, a language the husband did not speak. The wife would interpret for S and the husband. The husband asked they speak English. • S did not refer to the husband as a father. • The husband did not refer to S as his son or stepson. In letters of support to Immigration, the husband referred to S as his “future stepson”. The husband introduced S to others as the wife’s son. It may be that if the wife and husband had a child of their own, he may have accepted the wife’s son, however, the evidence before this court is abundant regarding the husband’s disdain and attitude towards S as an inconvenience in his goal to have a child of his own with the wife. • While the husband obtained clothing and gifts for S, he insisted the clothing be kept for when the wife and husband had a child of their own. For S’s first Christmas in Canada, the husband found a “free” bike on Kijiji not wanting to spend money on purchasing him a new bike. • As requested by the wife, the husband investigated whether S could be registered for school but concluded S could not because one parent had to have a work permit and he did not think he counted as a parent. • The husband did not want S to stay in Canada. • The husband did not want S to have meals at the table with the wife and husband. • The husband referred to S, and the wife, as “invaders” of his home. • Pictures were introduced into evidence of a loving relationship between the husband and S; however, these were all taken for purposes of the immigration application to convince immigration the relationship was real. Early pictures demonstrate S did not appear comfortable and leaned towards his mother and away from the husband. • There is no evidence that the husband disciplined S. In fact, he was frustrated by the wife’s lack of disciplining her son and the son’s behaviour. I accept the husband drew on a whiteboard the hierarchy in the household with both S and the wife below him. I also accept that the door to S’s room was removed but am not satisfied this was solely the husband’s idea and initiative. • There is no evidence that the husband participated in significant decisions for S. • There is no evidence the husband prepared meals for S or put him to bed. In fact, the evidence is just the opposite. • While the husband did sponsor S to remain in Canada, this was done in support of the wife’s application. • The biological father did not testify in these proceedings and was not produced for cross-examination. He initially did not sign the consent to travel and was not prepared or willing to give up his rights as the father. A letter, purportedly written by him in October 2023, which is inadmissible as hearsay, yet the wife seeks to rely upon, contradicts earlier messages sent prior to litigation of his intent and discussions with the husband. • Contrary to evidence of the wife, the biological father did not sign the consent within days of speaking to the husband, but only months later, after negotiations between the wife and him. The letter of consent was not signed until August 11, 2020, as opposed to January 2020. • In messages between the wife and the husband, she expressed the biological father’s reluctance to sign the consent letter. She offered to not enforce alimony payable to her in exchange for his consent. • In all messages, other than one email sent post-separation in hopes of reconciliation with the wife, he refers to S as her son, and despite being married as his “future stepson”. [ 146 ] I am not satisfied that the husband had demonstrated a settled intention to treat the child as his or part of his family. The evidence in this case establishes the husband was focused solely on finding a wife to have a child of his own and believed he had found that with the wife and S was merely an obstacle to him obtaining what he wanted and believed the wife had agreed to provide him. With the passage of time, this may have changed but had not in the few months that the parties were married. [ 147 ] Therefore, no child support is owed prospectively or retroactively. What damages should be awarded to the wife for the Tort of Intrusion upon Seclusion? [ 148 ] The husband committed the tort of the intrusion upon seclusion when he accessed several emails and private Facebook postings between the wife and third parties. The wife only became aware that the husband had accessed her accounts when he included the materials in his Settlement Conference brief. [ 149 ] The wife was granted leave by Kristjanson, J. to bring a motion seeking declaratory relief only. The motion was heard February 23, 2024, before Vella, J. who granted the relief sought and declared that the husband committed the tort of intrusion upon seclusion with respect to the emails and Facebook communications he attached to his Settlement Conference Brief. Had the wife sought damages and/or consequential relief in her pleadings, Vella, J. would have been inclined to assess those damages. However, the wife did not seek such relief, nor did she seek leave of the court in advance of the motion to request a remedy beyond the declaratory relief. The Court ordered that any ancillary remedies, including damages and admissibility rulings be reserved for the trial judge. [ 150 ] In holding the husband had committed the tort, Vella, J. held: “The surreptitious obtaining of a spouse's private communications by the adverse spouse, with a view to using those private communications against the privacy holder's interests within the context of family law proceedings, is not to be sanctioned and will, absent extraordinary circumstances, be highly offensive and cause distress, humiliation or anguish/mental distress to the privacy holding spouse from the objective perspective of the reasonable person. Persons in spousal relationships are particularly vulnerable to having their private and confidential communications intercepted by their partners who will often have enhanced access to them for reasons such as in the current motion, where the Wife routinely used the Husband's home computer. See: Chen v. Huang , 2024 ONSC 1173 at para. 17 .” [ 151 ] Writing on behalf of a unanimous court in Jones v. Tsige , [2012] ONCA 32, Sharpe, J.A. held that “damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done”. He suggested a range up to $20,000 and summarized factors to consider in deciding where in the range a case may fall (at para.87): (1) the nature, incidence and occasion of the defendant's wrongful act; (2) the effect of the wrong on the plaintiff's health, welfare, social, business or financial position; (3) any relationship, whether domestic or otherwise, between the parties; (4) any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and (5) the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant. [ 152 ] Jones and Tsige did not know each other. Both worked for the Bank of Montreal at different branches. Tsige accessed Jones bank records on 174 separate occasions. Tsige was involved in a romantic relationship with Jones’ ex-partner. There was no legal basis for Tsige to have viewed or accessed Jones banking records. [ 153 ] In determining a higher award was warranted, Sharpe, J.A. found, “Tsige’s actions were deliberate and repeated and arose from a complex web of domestic arrangements likely to provoke strong feelings and animosity.” He was not satisfied, “Jones suffered any public embarrassment or harm to her health, welfare, social, business, or financial position and Tsige had apologized and had made genuine attempts to make amends.” The court ordered damages of $10,000. [ 154 ] Here, the wife seeks damages of no less than $20,000. The basis for the wife’s position is the passage of time since the Ontario Court of Appeal decided Jones v. Tsige and the husband’s pattern of intimidation throughout the family proceedings that included: • Engaging in witness intimidation prior to trial, which resulted in a witness’ refusal to testify under threat of the husband initiating civil proceedings against the witness. • Providing the wife’s email address to family members. • Emails sent by the husband’s brother threatening to have the wife deported. • A surreptitious trip to Ukraine to obtain a divorce in hopes of halting these proceedings. [ 155 ] The husband argued when assessing damages for the tort, the court must understand the intention was to prove the wife’s extra-marital relationship and that he had not been abusive during the relationship. Further, the wife’s posts included a “libelous attack” against him that was available on social media for the community and his friends to see. [ 156 ] The factors in this case are distinguishable from Tsige v. Jones , insofar as there were far less intrusions on the wife’s privacy. However, although there was no public embarrassment or harm to her health, welfare, social, business, or financial position, the purpose for which the husband accessed and/or hacked into the wife’s social media accounts was to gain a tactical advantage. At no time, has the husband made any efforts to apologize for his actions. In fact, he continues to finger point and blame the wife for circumstances requiring him to explain himself to his new partner. [ 157 ] A message needs to be sent to parties in family proceedings that this type of behaviour will not be condoned. It must have an impact and be denunciatory yet consider the factors identified by Sharpe, J.A. I have determined an appropriate award in this case is $5,000. Costs [278] If the parties are unable to agree on costs, written submissions shall be served and filed and shall not exceed three pages, 12-point font, double spaced, attached with a bill of costs submitted as follows: Respondent wife to serve and file no later than 5:00 p.m. on Friday, June 20, 2025; Applicant husband to serve and file no later than 5:00 p.m. on Monday, June 30, 2025. Conclusion [ 158 ] The husband owes an equalization payment of $40,704.03 to the wife. [ 159 ] The husband owes lump sum retroactive spousal support to the wife in the amount of $13,498, inclusive of credits the wife owes to the husband. [ 160 ] The husband is ordered to pay the wife $5,000 for the tort of intrusion and seclusion. _____________________________________ C. RHINELANDER J. RELEASED: JUNE 9, 2025 COURT FILE NO.: FS-22-28849-0000 DATE: 20250609 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Mingke Chen Applicant - and – Valeriia Huang Respondent REASONS FOR DECISION C. RHINELANDER J. RELEASED: JUNE 9, 2025