CITATION: Liu v. He 2026 ONSC 3666
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MIAOYING LIU
Applicant
– and –
KENING HE
Respondent
Wen Chin (Celia) Hu, counsel for the Applicant
Heng (Pandora) Du, counsel for the Respondent
HEARD: Thursday February 05, 2026
MOTION ENDORSEMENT
SHIN J:
1The respondent Mr. He brought this motion seeking: (1) to strike out Ms. Liu’s application due to her failure to obey a disclosure order; and (2) for the release of $20,000 to him from the proceeds held in trust from the sale of a jointly owned condominium (the “New York Condo”). By the start of the hearing, the parties had settled the second issue on the basis that each receive $20,000 and I signed the consent order on February 6, 2026. This is not the first release of funds to the parties since the sale of the New York Condo and approximately $210,000 of the proceeds from the sale will remain in trust.
2The parties were married on August 20, 2001 and separated on February 10, 2019. The application was issued on July 13, 2022 and the issues are parenting time, child support, spousal support and equalization. They have six children ranging from 9 years old to 22 years old, three of whom are autistic and require extra care. Both parties are living in rental units and the children reside with the applicant Ms. Liu.
3The parties are currently living in very difficult financial circumstances. Mr. He lost his job in April 2024 without a severance package. He is 64 years old and has been unable to find employment. He stopped paying child support in May 2024 as he has had no income since he lost his job. He has been living off his savings or the proceeds from the sale of the New York Condo he has received.
4Ms. Liu has always been the primary caregiver to the children. She has not worked outside the home in the last 20 years, though counsel advised that she has worked a few odd or part-time jobs recently given her very difficult financial circumstances. Since Mr. He stopped paying child support, she has been paying her and the children’s expenses from the proceeds from the sale of the New York Condo she has received and her recent small income.
5Legal title to an apartment in Beijing, China was transferred to Ms. Liu on October 8, 2006 (the “Beijing Property”). Mr. He’s position is that the Beijing Property should be included in Ms. Liu’s net family property and as such, Ms. Liu will owe an equalization payment to him.
6Ms. Liu disputes that the Beijing Property ought to be included in her net family property. In her January 19, 2026 affidavit on this motion, Ms. Liu deposes that that she is holding title to it in trust for her mother and that she has no beneficial interest in it. Her mother funded the entire purchase of the property and all its carrying costs. She says she has never contributed to the property. As far as she is aware, her mother and brother have always lived in the property, never rented it out, and have paid all expenses related to it. Her mother has never made any promise that the property would be gifted to her. Moreover, Ms. Liu deposes that she did not sign the 2006 ownership transfer.
7The parties agree that the New York Condo and the disputed Beijing Property were the two largest assets between them prior to separation.
8In May 2025, Mr. He brought a disclosure motion regarding the Beijing Property and any bank accounts Ms. Liu has in Canada or China. On May 21, 2025, Vella J. ordered disclosure with a deadline of July 20, 2025 (attached to this endorsement as Schedule A).
9To date, Ms. Liu has failed to provide the ordered disclosure. Starting in August 2025, Mr. He’s counsel sent reminders and advised a motion to strike would be brought. Mr. He waited until early December 2025 before serving his motion materials.
LEGAL PRINCIPLES
10Rule 1(8) of the Family Law Rules, O. Reg. 144/99, provides the following [emphasis added]:
(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;
(a.1) an order to pay an amount to a party or into court as a penalty or fine;
(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) a contempt order, if sought under rule 31.
11Rule 1(8.4) sets out the following consequences of an order striking out an application:
The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).
The party is not entitled to participate in the case in any way.
The court may deal with the case in the party’s absence.
A date may be set for an uncontested trial of the case.
12Pleadings should only be struck and trial participation denied in exceptional circumstances and where no other remedy would suffice: Mullin v. Sherlock, 2018 ONCA 1063, at para. 33. In Mullin, our Court of Appeal set out the following decision-making framework on a motion to strike for failure to obey a disclosure order:
44First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.
45Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:
the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;
the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;
the extensiveness of existing disclosure;
the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and
any other relevant factors.
46Having considered these factors, the judge will then determine the best remedy. The orders identified in Rule 1(8) are not exclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverse inference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision. Parties frequently rely on another option, namely a request for an adjournment to allow for more time to effect disclosure. Occasionally this may be appropriate especially in a complex case, but an adjournment should not be considered to be automatic. Fully compliant disclosure is the expectation, not the exception.
ANALYSIS
13Ms. Liu acknowledges her non-compliance with Vella J.’s order. She deposes that since the order was made, “I have made numerous attempts to obtain information regarding the Beijing Property from both my mother and my brother, but despite my repeated requests, they have not provided me with the necessary information.” However, she does not provide any details regarding these efforts or documentation supporting this short explanation.
14If it is true that Ms. Liu made efforts and her mother refused, it would not have taken much effort to comply with Vella J.’s order. She was not ordered to simply produce documentation that was not within her control. Vella J. recognized that Ms. Liu could not force her mother to produce documents. As such, Ms. Liu was ordered to provide an affidavit setting out what information and documentation she has with explanations; to request that her mother provide information and facilitate an appraisal; and to include a copy of her request to her mother and the response in her affidavit. She also failed to produce any of the other ordered disclosure including: an updated financial statement; a list of her Canadian bank accounts; and information regarding any bank accounts she may have China if any (see Schedule A to this endorsement).
15Not only did Ms. Liu fail to produce any of the ordered disclosure by the July 20, 2025 deadline, her failure persists to date. This despite Mr. He’s reminders, being served with the motion materials and the adjournments of this motion in December 2025 and January 2026. She has also not provided any plan to cure her failure to comply with the order.
16There is no real issue that Ms. Liu’s non-compliance calls out for sanction. Given the history and chances she has been given to provide the required disclosure, simply doing nothing is not sufficient. Determining what the most just and fair remedy in all the circumstances is not simple given the implications for each party and the children, in particular given the challenging financial circumstances of the parties.
17Striking out the entire application would clearly be disproportionate, unfair and not in the children’s best interests as Ms. Liu’s non-compliance relates only, or almost exclusively, to this issue of equalization. The parenting, child support and spousal support portions of the application ought to remain as doing so is in the best interests of the children and there has been no disclosure issues related to those issues, other than perhaps disclosure of her bank accounts.
18The focus of submissions was on whether there was a lesser effective alternative remedy to striking the entire application that might suffice. Ms. Liu’s preferred alternative remedy is for a fine to be imposed on her payable immediately (she would use part of the $20,000 to be released from the trust account to her). I find that this is not an appropriate remedy in all the circumstances. It does not provide any comfort that Ms. Liu will comply with Vella J.’s order. Moreover, in my view, as much of the $20,000 as possible ought to preserved for the children and Ms. Liu’s basic living expenses given their dire financial circumstances.
19The alternative remedy proposed by Mr. He – only if I were disinclined to order striking the application and in recognition of the best interests of the children and the fact that the ordered disclosure is relevant only to equalization – is that only Ms. Liu’s claim for equalization be struck.
20Ms. Liu submits that she ought to be given one more chance to obey the order. She has made inquiries to her mother and brother, but they have refused. Her non-compliance to date has not been willful or motivated by wanting to frustrate the process. Rather, is has been caused by her very difficult financial and personal circumstances which have led her to have very limited time and resources to prioritize compliance. Moreover, she argues, this alternative remedy would likely lead to her having to make an equalization payment to Mr. He as she would be barred from participating in the litigation regarding whether the Beijing Property ought to be included in equalization. She submits, this consequence would be financially devastating on her and the children, disproportionate and unfair. She therefore proposes that she be ordered to comply with a strict deadline failing which the equalization portion of her application be struck.
21Counsel for Mr. He submits that the alternative of giving Ms. Liu more time to comply, failing which the equalization portion of her application will be struck, will almost certainly not provide a fair or effective remedy. Given her track record, one can expect that Ms. Liu will provide deficient information before the deadline and claim she has complied with the order. Mr. He will then need to expend more time and resources to further litigate her non-compliance causing more delay. He submits that the onus should not be on him to do so given it is Ms. Liu who has failed to obey an order. This litigation commenced in 2022 and further delay and additional litigation costs undermines the objectives of effective adjudication in a just, efficient and timely manner.
22I have considered the factors as set out in Mullin as noted above. The disclosure at issue is highly relevant to equalization and is hindering resolution of the issues in dispute. The equalization issue is not complex and compliance with Vella J.’s order is not onerous. As I have already explained, striking out the entire application would clearly be disproportionate, unfair and not in the children’s best interests as Ms. Liu’s non-compliance relates only to this issue of equalization. I have also explained above why imposing an immediately payable fine on Ms. Liu is not an appropriate remedy.
23With respect to striking the equalization portion of the application, I agree with Ms. Liu that including the Beijing Property in equalization would likely add a further financial burden on top of her current very difficult financial circumstances. She may have a good argument as to why it should not be included but would be barred from participating in the determination of this issue. If Ms. Liu can prove that she has no interest in the Beijing Property, it may be unfair to bar her from participating given the consequences.
24On the other hand, Ms. Liu’s proposal that she be given a further short deadline to comply, failing which the equalization portion would be struck, is problematic. I agree with Mr. He that given Ms. Liu’s track record and failure to provide any sort of plan for compliance, there is a good chance that he will have to expend more time and resources on litigating this issue. It would be fundamentally unfair to place that burden on him in all the circumstances.
25I find that a just and fair remedy in all the circumstances is that the equalization portion of the application be struck without prejudice to Ms. Liu’s ability to bring a motion seeking to reinstate the portions struck, but only if she complies with Vella J.’s order. To be clear, there would be no automatic reinstatement of her equalization claim should she comply. If she complies, the burden will be on her, not Mr. He, to bring a motion and demonstrate her compliance and establish why her equalization claim ought to be reinstated.
COSTS
26Mr. He is presumptively entitled to costs of this motion as he is the successful party: R. 24, Family Law Rules, O. Reg. 114/99. He seeks full recovery costs given the circumstances that required Mr. He to bring this motion and his offer to settle. I note that the parties settled the portion of the motion related to the release of funds prior to the commencement of the hearing of the motion.
27After making my determination on the merits, I reviewed the bill of costs and offer to settle submitted by Mr. He. The 15 hours spent, rate charged and total amount of $6,356.25 are reasonable.
28With respect to the offer to settle, Mr. He has not met the requirements for full recovery costs as set out in R. 24(12). The release of funds settlement occurred prior to the expiry of the offer to settle. With respect to striking the application, Mr. He did not obtain an order that is as good or better than the offer.
29I agree with Mr. He that he should not have had to bring this motion and I have taken into account the circumstances that led to this motion. However, I do not find Ms. Liu’s behaviour with respect to disclosure willful or in bad faith but unacceptably careless. I take into account the financial hardship to Ms. Liu that will result from any costs order while recognizing that Mr. He is also in dire financial circumstances.
30I have also considered when the costs award should be payable. On the disclosure motion, Vella J. ordered Ms. Liu pay $3,000 costs to be paid out from Ms. Liu’s share of the New York Condo’s sale proceeds after adjustments. As we are now in the situation where Mr. He was made to seek enforcement of that order, it is appropriate that Ms. Liu pay costs now.
31Having considered the factors set out in R. 24(14), I find that $3,500 all inclusive payable now is a fair, reasonable and proportionate costs award in all the circumstances.
CONCLUSION
32Ms. Liu’s claim for equalization in her application is struck out. This order is made without prejudice to Ms. Liu’s ability to bring a motion seeking to reinstate her equalization claim but only if she complies with Vella J.’s order dated May 21, 2025.
33Ms. Liu will pay Mr. He’s costs of this motion in the amount of $3,500 inclusive of H.S.T. and disbursements within 30 days.
34This order bears post-judgment interest at the rate of 4.0% per year effective from the date of this order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.
The Honourable Justice L. Shin
Released: Feb 12, 2026
CITATION: Liu v. He 2026 ONSC 3666
COURT FILE NO.: FS-25-00049508-0000
DATE: 20260212
ONTARIO
SUPERIOR COURT OF JUSTICE
MIAOYING LIU
Applicant
– and –
KENING HE
Respondent
MOTION ENDORSEMENT
The Honourable Justice L. Shin
Released: Feb 12, 2026