CITATION: Zhao v. Xiao, 2026 ONSC 425

COURT FILE NO.: FS-24-287-00

DATE: 2026-01-21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Lixin Zhao

Self-represented

Applicant

• and -

Tian Xiao

Timothy Matthews, for the Respondent

Respondent

HEARD: December 17, 2025, at Thunder Bay, Ontario

Madam Justice R.A. Lepere

Decision on Appeal

Background Information

1The parties were married on February 26, 1995. They separated on or about March 3, 2002.

2The parties have two children, Victor Shucheng Xiao, born August 28, 1996 (currently 29 years old) and Daisy Shuyi Xiao, born June 17, 2002 (currently 23 years old). Since separation, the children have been in the primary care of the Appellant Mother. The Appellant Mother is remarried. Her current spouse is Apichart Linhananta.

3A trial was held in the Ontario Court of Justice before MacKinnon J. in 2019 and 2020 with respect to issues of retroactive child support, ongoing child support, and section 7 expenses.

4Further to the decision of MacKinnon J. following the trial, a final Order was issued dated September 30, 2020 (the “Final Order”). The relevant parts of the Final Order for the purposes of this appeal are as follows:

a. the Respondent Father was ordered to pay child support for the two children commencing October 15, 2020, in the amount of $2,702.00 per month based on his annual income of $202,053.00;

b. the child support shall only be paid if:

i. the child is in full time attendance at post-secondary education and applying themself;

ii. a consent is provided to the educational institution for disclosure of the academic progress and financial records and accounts of the child to the Respondent Father;

iii. the education plan of the child has been approved by the Respondent Father in writing;

iv. the relationship between the child and the Respondent Father has been maintained by monthly discussions or conversations in private of at least 15 minutes and at least two face to face visits per year with terms as set out in the Final Order;

c. each child will become ineligible for support on their 25^th birthday;

d. when Victor becomes ineligible for support, the Respondent Father shall pay support for Daisy in the amount of $1,674.00 per month unless otherwise ineligible;

e. on April 30^th of each year, the Respondent Father shall provide his proof of income to the Appellant Mother;

f. no retroactive section 7 expenses were owing by either party; and

g. with respect to the calculation of ongoing section 7 expenses, the Appellant Mother was ordered to provide proof of her income and the income of her husband, Mr. Linhananta to the Respondent Father by April 30^th of each year.

5The Appellant Mother subsequently appealed the Final Order to the Superior Court of Justice. She alleged that MacKinnon J. erred as follows:

a. limiting retroactive child support to the date of effective notice;

b. ordering the termination of child support upon the children turning 25 years old;

c. imposing conditions on the father’s ongoing child support obligations;

d. improperly calculating the father’s income for child support purposes; and

e. adding her income to that of her current spouse when calculating the parties’ obligations for section 7 expenses.

6The appeal was largely dismissed further to the decision of Fregeau J. dated April 20, 2022, save and except for the fact that it was held that some of the conditions required to be met for the continuation of the payment of child support from the Respondent Father were deemed unreasonable and were removed from the Final Order.

7The Appellant Mother then further appealed to the Ontario Court of Appeal alleging the following errors:

a. dismissing her claim for retroactive child support from 2006 to 2013;

b. improperly calculating her share of the section 7 expenses; and

c. ordering the termination of child support upon the children turning 25 years old.

8Her appeal was dismissed in its entirety pursuant to a decision dated June 23, 2023.

9The Appellant Mother thereafter sought leave to appeal to the Supreme Court of Canada, which was dismissed.

10At each stage, costs were ordered to be payable by the Appellant Mother to the Respondent Father. The principal amount of all cost awards have been paid, but not the post-judgment interest that has accrued.

11The Respondent Father brought a motion to change the Final Order in the Ontario Court of Justice on August 11, 2022 (the “Motion to Change”). The Respondent Father asserts that there have been changes to his income and the Appellant Mother has not met the conditions for the continued payment of child support as per the terms of the Final Order. Therefore, adjustments should be made to child support on both a retroactive and ongoing basis.

12The Motion to Change is scheduled to be heard in the Ontario Court of Justice in February 2026.

13The Appellant Mother’s lawyer filed a Response to Motion to Change on November 30, 2022. By the Fall of 2023, the Appellant Mother was no longer represented by a lawyer. The parties attended a Settlement Conference with respect to the Motion to Change on November 7, 2023. At that time, the Appellant Mother was given leave to file an Amended Response to Motion to Change. Same was filed on November 21, 2023 (the “Amended Response”).

14In the Amended Response, the Appellant Mother sought the following changes to the Final Order:

a. that child support be paid by the Respondent Father from January 1, 2020, onward based on imputed income determined by his gross pay and the lower income taxes he pays in the United States rather than the annual income of $202,053.00 determined by MacKinnon J. [sic] at trial;

b. the condition that the children be in full-time attendance at post-secondary education and applying themselves and that a consent be provided to the educational institution allowing information to be released to the Respondent Father as a condition on the payment of child support be removed and that child support be payable as long as the children remain children as defined by the Family Law Act;

c. that the termination of child support on the children’s 25^th birthdays be removed, and that child support remain payable as long as they remain children as defined by the Family Law Act;

d. that retroactive child support be ordered for the period July 2013 to December 2019;

e. that an order be made for payment of retroactive section 7 expenses; and

f. an order terminating the requirement that Mr. Linhananta disclose his income to the Respondent Father.

15The Respondent Father thereafter brought an interim motion to strike the claims advanced by the Appellant Mother in the Amended Response on the basis that she has not complied with various cost orders made in the proceeding and that the orders sought are vexatious, without merit or an abuse of process of the court as she was seeking to re-litigate issues that had already been determined on a final basis (the “Motion to Strike”).

16Mr. Linhananta thereafter brought a motion (although not a party to the proceeding) seeking to have the requirement in the Final Order that he provide his income information to the Respondent Father removed (the “Non-Party Motion”).

17The Motion to Strike and the Non-Party Motion (collectively hereinafter referred to as the “Motions”) were heard before Isbester J. of the Ontario Court of Justice on June 5, 2024, July 15, 2024, and October 1, 2024. In his decision dated November 28, 2024, he:

a. allowed the Motion to Strike and struck the relief sought by the Appellant Mother in the Amended Response; and

b. dismissed the Non-Party Motion.

18He thereafter heard cost submissions on the Motions on February 12, 2025, and March 5, 2025. In his decision dated April 8, 2025, he determined that the Respondent Father was entitled to costs in the amount of $6,000.00, with $5,000.00 payable by the Appellant Mother and $1,000.00 payable by Mr. Linhananta.

19The Appellant Mother and Mr. Linhananta now appeal the decisions of Isbester J. dated November 28, 2024, and April 8, 2025.

Decision of Isbester J. dated November 28, 2024

20In his decision dated November 28, 2024, Isbester J. granted the Motion to Strike and struck all orders sought by the Appellant Mother in the Amended Response on the basis that the orders sought were vexatious, without merit, and are res judicata. In doing so, he held that from the Appellant Mother’s perspective there had been no material change in circumstance since the Final Order that would entitle the Appellant Mother to seek a change to the Final Order.

21In making that finding, he determined that the orders sought in the Amended Response were previously litigated and appealed and therefore, they were simply an attempt to re-litigate issues that had already been determined.

22He also refused to strike the Final Order pursuant to Rule 25(19) of the Family Law Rules as requested by the Appellant Mother. In refusing to do so, he held that r. 25(19) was not applicable as the Appellant Mother and Mr. Linhananta were arguing that the Final Order ought to be struck due to disagreement with the findings of the trial judge. This was not a proper use of r. 25(19) and therefore, the rule was not applicable and could not be used to strike the Final Order.

23In his decision dated November 28, 2024, Isbester J. also dismissed the Non-Party Motion. Prior to making a determination on the merits of the Non-Party Motion, he dealt with the issue of Mr. Linhananta’s standing to bring a motion. He determined that since the Appellant Mother and Mr. Linhananta were self-represented, he accepted that Mr. Linhananta had brought an oral motion to be added as a party.

24Isbester J. first held that Mr. Linhananta was not to be added as a party to the Motion to Change. In making that determination, he found that there was no reason to add him as a party as there was nothing left to be litigated in the Ontario Court of Justice that Mr. Linhananta could be a party to.

25In then dismissing the Non-Party Motion, Isbester J. held that:

a. most of the relief sought by Mr. Linhananta was already sought by the Appellant Mother and he had no standing to advance such relief as against the Respondent Father;

b. it was the Appellant Mother that was ordered to disclose his income information, not him; and

c. the issue of whether his income information should be disclosed to the Respondent Father has already been determined and any issues or concerns with that order should have been made on appeal.

26Isbester J. made a further order that the Appellant Mother and Mr. Linhananta could not file any further motions with respect to this matter without leave of the court.

Decision of Isbester J. dated April 8, 2025

27In his decision dated April 8, 2025, Isbester J. dealt with the issue of costs of the Motions. In directing the Appellant Mother and Mr. Linhananta to pay costs to the Respondent Father (in the amounts set out above) he:

a. considered the relevant legal principles, including reasonableness, proportionality, and the rules applicable to the determination of costs and set those out in his decision;

b. found that the Respondent Father was wholly successful on the Motions;

c. found that the Appellant Mother and Mr. Linhananta simply wanted to re-litigate the issues that were already tried and determined on a final basis and on appeal;

d. found that the Respondent Father had spent a lot of money dealing with their attempts to re-litigate;

e. held that he was not prepared to reduce any costs awarded because the Respondent Father filed a late Factum, as he found the Factum useful and the Appellant Mother and Mr. Linhananta were granted an adjournment to respond to the Factum; and

f. held that he was not going to punish the Appellant Mother and Mr. Linhananta because they were self-represented even though this impacted the effectiveness of the case.

Grounds of Appeal

28It is difficult to decipher from the written materials the specific grounds of appeal the Appellant Mother and Mr. Linhananta advance in support of this appeal. The oral submissions of the Appellant Mother and Mr. Linhananta did not assist in that regard as they simply re-argued the issues that were determined at trial and on the subsequent appeals with respect to alleged errors made by the trial judge.

29With that being said, having reviewed the materials and hearing the submissions of the parties, I have identified five grounds of appeal on which the Appellant Mother and Mr. Linhananta rely:

a. the conduct of Isbester J. raises an apprehension of bias;

b. Mr. Linhananta’s Charter rights were violated with respect to the Motions;

c. Isbester J. erred in declaring that he does not have jurisdiction to strike the Final Order;

d. Isbester J. erred in striking the Amended Response; and

e. the Family Law Rules do not adequately protect non-parties and self-represented litigants and therefore, legislative reform should be undertaken.

Standing of Mr. Linhananta on Appeal

30Before I deal with the merits of this appeal, I will first deal with the standing of Mr. Linhananta on this appeal.

31Mr. Linhananta is not a party to the Motion to Change and therefore, is not a party to this appeal.

32Despite this, Mr. Linhananta brought the Non-Party Motion and Isbester J. heard submissions from Mr. Linhananta on the issue of whether he should be added as a party and on the merits of the Non-Party Motion.

33Isbester J. did not make Mr. Linhananta a party to the proceeding and therefore, dismissed the Non-Party Motion as Mr. Linhananta did not have standing to bring same.

34The Appellant Mother has now filed this Notice of Appeal in response to the decision of Isbester J. which included the above noted findings and orders with respect to Mr. Linhananta. Mr. Linhananta is not a party to the appeal. He appeared at the appeal wanting to make submissions with respect to the orders made by Isbester J. that were relevant to him. This would include the decision not to add him as a party and the dismissal of the Non-Party Motion.

35While Mr. Linhananta is not a party to the appeal, he was directly affected by the decision now under appeal. As such, I granted leave to Mr. Linhananta to make submissions on the appeal with respect to whether Isbester J. erred in not adding him as a party and whether Isbester J. erred in dismissing the Non-Party Motion. He was advised that he was not to use this platform to advance arguments on behalf of the Appellant Mother on her appeal. His oral submissions were restricted to the above noted issues.

Standard of Review

36In Patrick v. Taylor, 2013 ONSC 2971, at para. 5, Allen J. made the following statements regarding the standard of review on family law appeals:

5Rule 38(4) of the Family Law Rules provides for appeals to the Superior Court of Justice of orders of the Ontario Court of Justice. The following principles govern review by an appellate court of a trial court’s decision:

• The standard of review of findings of fact by a trial judge is “palpable and overriding error”. A palpable error is one that can be plainly seen.

• The appellate court should not intervene in the trial judge’s determinations and findings of fact unless the reasons demonstrate a manifest error, a significant misapprehension of the evidence, or evidence has been ignored or erroneous conclusions have been drawn [Housen v. Nikolaisen, 2002 SCC 33 (S.C.C.); Stein v. "Kathy K" (The) and Woodhouse v. Woodhouse(Ont. C.A.)].

• Deference toward the findings of the trial court must be given by the appellate court [Hickey v. Hickey, [1999] 2 SCR 518 (S.C.C)].

37The standard of review in family law proceedings is designed to promote finality and recognize the importance of the appreciation of the facts by the trial judge: see Ludmer v. Ludmer, 2014 ONCA 827, at para. 14.

Analysis and Disposition

Does the Conduct of Isbester J. raise an Apprehension of Bias?

38The Appellant Mother and Mr. Linhananta allege that Isbester J. showed bias in his decisions of November 28, 2024, and April 8, 2025 in that his reasons for judgment only reference the position of the Respondent Father.

39The concept of bias denotes a state of mind that is in some way specifically predisposed to a particular result, or to decide an issue in a particular way. The threshold for finding an apprehension of bias is high, there is a strong presumption of impartiality, and the grounds for the apprehension must be substantial: see Children Aid’s Society of Toronto v. J.H., 2020 ONSC 1264, at paras. 19 and 22.

40The issue is whether a hypothetical observer, who is informed of all the facts, would believe it is “more likely than not” that a judicial decision-maker “would not decide fairly”, an analysis which does not engage the views or conclusions of a particular litigant before the court.

41I agree with the submissions of the Respondent Father that the allegations of apprehension of bias against Isbester J. arise from the personal view of the Appellant Mother and Mr. Linhananta with respect to the correctness and outcome of the litigation. The outcome of the Motions and the reasons of Isbester J. reflect the unreasonable positions being taken by the Appellant Mother and Mr. Linhananta, not an apprehension of bias.

42I find that the conduct of Isbester J. with respect to the Motions and his decisions dated November 28, 2024, and April 8, 2025 do not raise a reasonable apprehension of bias.

Have Mr. Linhananta’s Charter Rights Been Breached?

43The Appellant Mother and Mr. Linhananta allege that there has been a breach of Mr. Linhananta’s s. 7 Charter right to liberty. More specifically, that his right to liberty has been infringed because the Final Order requires his income information to be provided to the Respondent Father on an annual basis for the purpose of calculating section 7 expenses.

44He asserts that MacKinnon J. had no authority to make this order as he was not a party to the litigation.

45It is important to note that the Final Order does not require Mr. Linhananta to provide his income information to the Respondent Father. It requires the Appellant Mother to provide this information to the Respondent Father for the purposes of calculating the payment of section 7 expenses.

46It has also been determined at trial and subsequently on appeal, that it is necessary to use the household income (which includes Mr. Linhananta’s income) when determining the allocation of section 7 expenses.

47No orders were made against Mr. Linhananta in the Final Order. Therefore, I find that there has been no breach of his s. 7 Charter rights.

48I also find that the issue of whether Mr. Linhananta’s income ought to be disclosed has already been determined and was not properly before Isbester J. on the Motions as it had already been determined. In dismissing the Non-Party Motion, Isbester J. did not make a palpable and overriding error.

Did Isbester J. err in Determining that he did not have Jurisdiction to Strike the Final Order?

49The Appellant Mother takes the position that Isbester J. had the jurisdiction to change or strike the Final Order pursuant to r. 25(19) of the Family Law Rules which states:

(19) The court may, on motion, change an order that,

a) was obtained by fraud;

b) contains a mistake;

c) needs to be changed to deal with a matter that was before the court but that it did not decide;

d) was made without notice; or

e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present. O. Reg. 151/08, s. 6.

50In Gray v. Rizzi, 2011 ONCA 436, at para. 5, the Ontario Court of Appeal clarified when r. 25(19) would be appropriate to use and stated:

The Rule was not, in my view, intended to apply to cases of alleged legal errors, such as the suggestion that the court exceeded its jurisdiction in making the Order. Mistake, or errors in law are appealable errors and not subject to correction under r. 25(19).

51The court in N.S. v. R.M., 2020 ONSC 3359, at para. 38, further stated the following about the use of r. 25(19):

…Rule 25(19) should be used to correct technical mistakes due to inadvertence or oversight in order to ensure that the court’s intention to the parties’ common intention is accurately reflected. I also agree that the Rule should not be used to empower the court to revisit, reopen and reargue a case or allow the court to hear an appeal of its own decision.

52Isbester J. did not make a palpable and overriding error in finding that r. 25(19) could not be used to strike the Final Order. His reasons do not demonstrate a manifest error, a significant misapprehension of the evidence, that evidence has been ignored, or that erroneous conclusions have been drawn.

53Rule 25(19) has no application to this matter. The issues that the Appellant Mother and Mr. Linhananta take with the Final Order go far beyond technical mistakes due to inadvertence or oversight. They go to the merits of the issues. If Isbester J. had struck the Final Order pursuant to r. 25(19), it would have permitted the Appellant Mother and Mr. Linhananta to revisit, reopen and reargue a case that has already been determined and appealed all the way to the Supreme Court of Canada. The law is clear that this is not permitted.

54For the reasons set out above, I find that Isbester J. did not err in declining to strike the Final Order pursuant to r. 25(19).

Did Isbester J. err in Striking the Claims of the Appellant Mother from the Amended Response?

55Isbester J. struck the claims of the Appellant Mother from the Amended Response on the basis that she had already sought the relief at the original trial and on two subsequent appeals and therefore, the claims were vexatious, without merit and res judicata. As part of this determination, he held that there was no material change that would entitle the Appellant Mother to seek the claims advanced in the Amended Response.

56Isbester J. did not make a palpable and overriding error in striking the claims made by the Appellant Mother in the Amended Response. His reasons do not demonstrate a manifest error, a significant misapprehension of the evidence, that evidence has been ignored, or that erroneous conclusions have been drawn.

57A vexatious claim is one that is commenced without any reasonable grounds with an example being, a proceeding to determine an issue that has already been determined by a court: see Berendson v. Rubio, 2022 ONSC 4488, at paras. 28-29, citing Foy v. Foy (No. 2), (1979), 26 O.R. (2d) 220 (C.A.).

58Isbester J. did not make a palpable and overriding error in finding that the claims advanced in the Amended Response were vexatious for the following reasons:

a. the same claims had been advanced by the Appellant Mother at the trial of this matter in 2019 and 2020 and were determined by the trial judge resulting in the Final Order which was upheld on appeal;

b. the claims advanced by the Appellant Mother in the Amended Response were simply an attempt to re-litigate issues that had already been determined; and

c. there was no evidence before the court of a material change that would entitle the Appellant Mother to seek the relief sought in the Amended Response.

59I also find that Isbester J. did not make a palpable and overriding error in finding that the claims advanced in the Amended Response were without merit given that they had already been litigated and subject to appeal.

60Lastly, Isbester J. relied on the principle of res judicata to strike the claims of the Appellant Mother in the Amended Response.

61The law regarding the application of the doctrine of res judicata was set out by Laskin J.A., writing for the Ontario Court of Appeal in Bear Island Foundation, et al. v. Ontario, [1999] O.J. No. 4290 (C.A.). There, Laskin J.A. stated:

29 Before dealing with these issues, I will briefly discuss the reach of the principle of res judicata. The principle of res judicata is well-established in our law. It applies to claims by aboriginal peoples against the Crown in the same way as it applies in other cases. Res judicata is a form of estoppel. It means that any action or issue that has been litigated and decided cannot be retried in a subsequent lawsuit between the same parties or their privies. The object of res judicata is judicial finality. Two reasons are commonly put forward for the principle: no person should be sued more than once for the same claim, and our law should not tolerate needless litigation.

30 Two aspects of res judicata are relevant to this appeal. The first aspect, relied on by Ontario, is that res judicata prevents a party from relitigating a claim that was decided or that could have been raised in an earlier proceeding. As our court said in Parna v. G. & S. Properties Ltd.: "The rule of res judicata embraces not only those things which were proven in the earlier action, but those which might have been proven in that action." Cartwright J. invoked this aspect of res judicata in Maynard v. Maynard, in a passage that is particularly germane to this appeal:

Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances.

If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle ...

31 The second aspect of res judicata relevant to this appeal and relied on by the appellants is that the court retains a discretion to refuse to apply res judicata when to do so would cause unfairness or work an injustice. As Lord Upjohn wrote in Carl Zeiss Stiftung v. Rayner Keeler Ltd. No. 2: "All estoppels are not odious but must be applied so as to work justice and not injustice." Although the principle of res judicata reflects the public interest in the finality of litigation, sometimes an unyielding application of the principle would be unfair to a party who is precluded from relitigating an issue. Judicial discretion is required to achieve practical justice without undermining the object of res judicata.

62Isbester J. did not make a palpable and overriding error in finding that the claims advanced in the Amended Response were res judicata for the same reasons set out above in paragraph 58 of this decision.

Should there be Legislative Reform to the Family Law Rules?

63The Appellant Mother and Mr. Linhananta argue that the Family Law Rules do not adequately protect self-represented litigants and non-parties. They go on to argue that if they did, the decisions affecting the parties would have been decided differently.

64I do not find that this is a valid ground of appeal. This is a legislative issue that has no bearing on the merits of this appeal. The parties are required to work within the current legislation and rules of the court and can appeal decisions within the confines of those legislative provisions and rules.

65For the reasons set out above, this appeal is dismissed.

Costs

66If the parties are unable to agree on the issue of costs within 30 days of the date of this decision, they shall schedule a one-hour hearing before me to argue the issue of costs by contacting the Trial Co-Ordinator.

67In advance of that hearing date, the parties shall each file written cost submissions not to exceed 5 pages (typed and double spaced). The page limit does not include any Bill of Costs that is attached to the submissions. The timeline for the filing of the cost submissions shall be as follows:

a. the Respondent Father shall serve and file his written cost submissions 20 days before the costs hearing; and

b. the Appellant Mother and Mr. Linhananta shall serve and file their written cost submissions 10 days before the costs hearing.

The Hon. Madam Justice R.A. Lepere