Court File and Parties

Court File No.: FC-23-00000843-0000 Date: 2025-10-16 Superior Court of Justice – Ontario

Re: Xinyu Wang, Applicant And: Yiqi Zhu, Respondent Hu Li Tang, and Jiandong Zhu, Added Respondents

Before: The Honourable Madam Justice Law

Counsel:

• Christopher Martin and Alexandra Cohan for the Applicant
• Marcy Segal for the Respondent
• Annelise Do Rio for the Added Respondents

Heard: October 15, 2025

Pre-Trial Ruling

Introduction

[1] The Respondent brought a pre-trial motion seeking various relief. At the commencement of the motion, I was told by Respondent's counsel that the only issues that still required adjudication were the following:

a. An Order permitting the Respondent to cross-examine Ying Li and Wei Wang on their will-says at trial.

b. In the alternative, an Order that the will-says (as written by the Applicant's lawyer), be translated by a certified mandarin interpreter and signed by the witnesses, prior to the Applicant testifying.

c. In the further alternative, an Order that the Respondent may cross-examine the Applicant on the preparation and content of the will-says.

[2] During argument of the motion, it was clear that the Respondent was most focused on the first two heads of relief as set out above. Respondent's counsel did not seriously pursue her client's request to cross-examine the Applicant on the preparation and content of the will-says. However, I will address this issue briefly in these reasons for completeness.

Relevant Facts

[3] This motion arose on the first day of the trial of these proceedings.

[4] The primary issue in dispute relates to the ownership of the property municipally known as 1164 Barton St., Hamilton, Ontario.

[5] The Applicant was questioned in May 2024. As a part of her questioning, the Applicant's counsel provided the following undertaking:

1 --- UNDERTAKING NO. 1

2 MR. WEINBERG: If you do call her, will you

3 undertake to provide a will-say statement for the

4 mother?

5 MR. MARTIN: Yes, yes.

6 --- UNDERTAKING NO. 2

7 MR. WEINBERG: So just for the record, we

8 have two undertakings. One is to advise by the trial

9 management conference whether or not Ms. Li will be a

10 witness, and the second is to provide a will-say.

11 MR. MARTIN: Yes, agreed.

[6] Mr. Martin was counsel for the Applicant at the questioning. The Respondent was represented by different counsel at the time.

[7] On May 12, 2025, Justice Brown set this matter down for a trial and conducted a trial scheduling conference. Certain deadlines were set for the exchange of materials.

[8] The Applicant's counsel identified the Applicant's parents, Ying Li and Wei Wang, as witnesses in her trial scheduling endorsement form in advance of the trial scheduling conference. However, Applicant's counsel only provided the will-say statements for Ms. Li and Mr. Wang, on September 24, 2025, five days before Purge Court.

[9] The will-say statements were drafted by Applicant's counsel. They were not sworn or signed by Ms. Li or Mr. Wang.

The Parties' Positions

[10] The Respondent does not take issue with the sufficiency of the content of Ms. Li and Mr. Wang's will-say statements. However, the Respondent does argue that the Applicant and her counsel failed to comply with her undertakings given at questioning. She submits that:

a. The will-say statements were provided months after the trial scheduling conference despite the plain language of the undertaking given.

b. The will-say statements are "useless". She is unable to use the will-say statements to cross-examine the Applicant or the witnesses because they are undated, unsigned, and not adopted as evidence. The Respondent says he is entitled to know details surrounding the making of the will-say statements. He says he would essentially be "ambushed" if his lawyer is not permitted access to this information prior to trial.

[11] The Applicant's position can be summarized as follows:

a. There were two undertakings provided. The first was to confirm whether Ying Li would be testifying at the trial by the trial scheduling conference. The second undertaking, to produce will-say statements, did not include a time limit. It was reasonable for the Applicant to provide the undertakings 5 days before Purge Court.

b. A will-say is not an affidavit or a signed statement. The will-say statement cannot be subject to cross-examination. The only function of a will-say statement is to provide notice of the substance of the examination. There is no prejudice to the Respondent.

[12] While not directly related to the specific relief sought by the Respondent, I also note that the Respondent's request was framed in the context of what he and his counsel perceives to be unfairness due to the Applicant and her counsel's alleged failure to comply with deadlines and cooperate in various aspects of pre-trial preparation. The Applicant and her counsel dispute these claims. Suffice it to say, at this point, the evidence provided does not justify a conclusion that the Respondent or his counsel has been prejudiced in the preparation and conduct of this trial.

My Analysis

Timing of Service of Will-Say Statements

[13] With respect to the issue of the Applicant's timing of the service of Ms. Li and Mr. Wang's will-say statements, I do not find that the Applicant's counsel had failed to comply with his or his client's undertakings.

[14] Simply put, the undertaking provided was unclear. On the face of the transcript, it is unclear to me whether the undertaking given was to produce both confirmation of Ms. Li's participation at the trial and a will-say statement by the trial scheduling conference date. In these circumstances and given the lack of clarity in the undertaking, it would be unfair for the court to sanction the Applicant or her counsel, and I do not draw any adverse inference with respect to the late service of these will-say statements.

[15] More importantly, however, I do not find that the service of the will-say statements, several weeks before trial, is prejudicial to the Respondent. The Respondent was aware since at least the trial scheduling conference on May 12, 2025 that Ms. Li and Mr. Wang would be called as witnesses for the Applicant. Certainly, the Respondent could have used the tools provided in the Family Law Rules such as discovery of documents or questioning to obtain information about their prospective evidence. The Respondent was given sufficient time to investigate and discover Ms. Li and Mr. Wang's evidence.

[16] In addition, as is often the case, even lengthy affidavits for trial are served no more than 14 days in advance of the trial. This makes sense as parties do not want to incur the costs of preparation of such materials if the matter settles. There is no evidence provided in the Respondent's materials to assume that his lawyer would require more than several weeks to adequately prepare for the cross-examination of these witnesses. No evidence was provided to show that the facts contained in the will-say statements were so surprising or unexpected that additional time would be required.

Whether the Will-Say Statements Provided were Meaningful

[17] To address the Respondent's submission that the will-say statements, as drafted, are "useless", I first review some of the jurisprudence with respect to the preparation and use of will-say statements.

[18] In Bartch v. Bartch, 2017 BCSC 1625 at paras. 7, 8 and 11, the court set out the generally accepted view of what will-say statements are:

[7] The purpose of the will-say statements are, in my view, clear. They are designed as a procedural tool to ensure fairness, efficiency, and preparedness and to prevent ambush at trial: Sawridge Band v. Canada, 2007 FC 657.

[8] Will-say statements are intended to be a summary of the substance of what a witness will say when that witness is called to testify: Tonolli Canada Ltd. v. USW Local 9042 (Marsiglia), Re, 2013 CarswellOnt 3855 at para. 5; and R. v. Vokey, 1992 CarswellNfld 11 at para. 67.

[11] Therefore, the respondent's application is allowed. The claimant shall produce proper will-say statements, setting out a summary of the evidence that the witnesses named in her April 10 and April 12, 2017 letters, will be giving at trial. It is insufficient to say that she does not need to comply with the Silverman Order because of expense or requirement to write hundreds of pages of detail of what the witness will testify to. That is not what a will-say statement is. A will-say statement is a summary of the evidence, no more and no less. [Emphasis added]

[19] I agree with the court in Bartch. The will-say statement is a procedural tool to ensure fairness, efficiency, preparedness, and to prevent ambush. The purpose of the will-say statement is to provide a summary of the evidence that is to be provided. It is a roadmap of the evidence to be presented. Unless otherwise agreed to or specified by the court, there is no requirement that these statements be signed or sworn, or that they need to be drafted personally by the witness.

[20] Flowing from the fact that a will-say statement is a summary of the evidence to be provided at trial, a will-say statement, by default, is not evidence; it is a disclosure tool. It differs from a sworn witness statement or affidavit, which carries evidentiary weight and are documents on which the deponent may be directly contradicted. The distinction is important, as it underscores that the will-say is used for trial management and preparation, not as proof of fact.

[21] Respondent's counsel referred this court to the case of Avdeeva v. Khousehabeh, 2023 ONSC 1114 to support the proposition that will-say statements must be meaningful to prevent trial by ambush. In that case, the defendant provided will-say statements that were lacking in substance, and simply set out topics that counsel expected the witness to testify to without providing the substance of the expected evidence. That is very different from this case.

[22] In this case, the Applicant provided meaningful will-say statements from Ms. Li and Mr. Wang. The will-say statements were sufficiently detailed and contained information relevant to the issues in this trial. In fact, the content was so relevant that Respondent's counsel seeks to have the will-say statements sworn so that she can use the information to cross-examine the Applicant, Ms. Li and Mr. Wang. It cannot be said that the content of these will-say statements failed to meet the "meaningful standard" adopted by the court in Avdeeva and in other cases.

The Proper Use of the Will-Say Statements

[23] As a result of my finding above that the will-say statements provided properly fulfilled the Applicant's undertakings given at questioning, I will not be ordering the will-say statements to be translated. I will also not be ordering the witnesses to sign or date those statements. To do so would only delay this trial as time would be required for those statements to be translated by a certified translator with the witnesses. The Respondent provided no evidence as to whether a certified translator (as opposed to an interpreter) is available and how long it would take to properly translate the statements.

[24] With respect to the proper use of the will-say statements, the statements themselves are not sworn evidence and cannot be admitted for the truth of their contents. However, I dispute the Respondent's characterization that the will-say statements are therefore "useless". Many uses can still be made of the statements by Respondent's counsel. For example:

a. The substance of the will-say statements can be used as a basis for the Respondent's preparation for the trial. This is of significant value as in many trials, witnesses are called to testify where the general substance of their evidence is unknown to opposing counsel. Furthermore, there is nothing to suggest that Applicant's counsel would have deliberately provided false will-say statements for Mr. Li and Mr. Wang making such preparation by Respondent's counsel fruitless.

b. Respondent's counsel may request that the will-say statements be interpreted to Ms. Li and Mr. Wang and they can then be asked to adopt the statement or paragraphs while under oath. If the contents are adopted, the Respondent can cross-examine Ms. Li and Mr. Wang directly on the statement.

c. Respondent's counsel may cross-examine the Applicant on the expected evidence of Ms. Li and Mr. Wang, as set out in the will-say statements.

d. Respondent's counsel may ask the court to draw adverse inferences on any point of evidence that differs with what is contained in the will-say statements.

[25] With respect to the preparation of the will-say statements, Respondent's counsel may ask Ms. Li and Mr. Wang whether they participated in the making of those statements. Again, depending on their answers, Respondent's counsel may ask the court to make adverse inferences about their credibility.

[26] In summary, I do not find that the Respondent is any way prejudiced or ambushed by being provided the unsworn will-say statements, drafted by counsel. While the Respondent may wish for a perfect discovery process, that is not the standard that is required by the court.

Cross-Examination of the Applicant on the Preparation of the Will-Says

[27] With respect to the Respondent's request that her counsel be permitted to cross-examine the Applicant on the preparation of Ms. Li and Mr. Wang's will-says, she may do so as long as the questions do not elicit any information about communications between the Applicant and her counsel. It is my view that any questions referring to the Applicant's discussions with counsel are communications protected by solicitor-client privilege.

[28] As stated by the Supreme Court of Canada in Jones v. Smith, [1999] 1 S.C.R. 455, at para. 46, solicitor-client privilege "is an element that is both integral and extremely important to the functioning of the legal system." All persons must have access to expert legal counsel without fear that this recourse may be used to their detriment, since "[w]ithout this privilege clients could never be candid and furnish all the relevant information that must be provided to lawyers if they are to properly advise their clients": Jones, at para. 46.

[29] In Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, the Supreme Court confirmed that the privilege must be nearly absolute and that exceptions to it will be rare. The privilege will only yield in certain clearly defined circumstances and does not involve a balancing of interests on a case-by-case basis.

[30] In this case, communications between the Applicant and her counsel about the preparation of a witness' will-say statement are clearly privileged. There is no reason to breach such privilege. This is even more the case when the relevance of such communications to the ultimate merits of the case are questionable.

Conclusion

[31] As a result of the foregoing, the Respondent's motion is dismissed.

Date: October 16, 2025 T. Law J.