ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Wenjia Wang
Applicant
– and –
Chen Ma
Respondent
COUNSEL:
Nicholas Sun, Agent, for the Applicant
Janice Qing Zhang, for the Respondent
Kathryn Junger for the Office of the Children’s Lawyer
HEARD: December 4-5, 2025
BEFORE: Mathen, J.
CORRECTED REASONS FOR DECISION
INTRODUCTION
1G. is a seven-year-old girl who lives with her father, Chen Ma, in Toronto. G. was born in China, has dual Chinese and Canadian citizenship, and came to Toronto in September 2023. G.’s mother, Wenjia Wang, lived in Canada at various times, but now is in China.
2In 2024, Ms. Wang initiated divorce proceedings in China. On May 16, 2025, the District People’s Court, Jiamusi City, Heilongjiang Province, issued an order that, among other things, awards custody of G. to Ms. Wang.
3On July 29, 2025, Ms. Wang initiated an Application in the Superior Court alleging that Mr. Ma was wrongfully retaining G. in Ontario, in a case involving a country that is not under the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”).
4The matter was assigned to my regular motions list on August 12, 2025. I issued an endorsement that, as mainland China is not a signatory to the Hague Convention, Ms. Wang’s application for G.’s return to China must be governed by Ontario law. I requested that the Office of the Children’s Lawyer represent the child.
5Justice Diamond scheduled a two-day hearing to consider the mother’s application and, in particular, whether China or Ontario has jurisdiction over the child.
6This is a very sad case. No matter what the court decides, barring a change in circumstances the child will live far away from one of her parents.
BACKGROUND TO THIS PROCEEDING
7Mr. Ma was born in China. He came to Canada at the age of 14. He is a citizen of Canada and no other country. He is 36 years old.
8The parties met in Ontario in 2016.
9Ms. Wang is a Chinese national who came to Canada in 2013. She had permanent residence status, which has now lapsed. Ms. Wang is 35 years old.
10The parties married in Ontario on April 27, 2017. When Ms. Wang became pregnant, she decided to give birth in China to have parental support – a choice that Mr. Ma supported. The parties settled in Jiamusi City where their daughter was born in 2018.
11Mr. Ma returned to Canada, alone, in 2019. Tickets were purchased for Ms. Wang and G. to join him in January 2020. The plan was scuttled after the Chinese government closed its borders due to COVID-19, leading to the family’s geographic separation for several years.
12Mr. Ma returned to China in April 2023.
13One month later, Ms. Wang suffered a bout of encephalitis. Mr. Ma says Ms. Wang’s personality dramatically changed. She had psychotic episodes. Ms. Wang describes her condition as autoimmune encephalitis. She says her condition was caused by Mr. Ma’s alleged abuse of her. Ms. Wang was hospitalized for a few weeks and continued to receive treatment for several months.
14Over the summer of 2023, arrangements were made for the family to return to Canada. While the parties dispute whether Ms. Wang agreed to the return, it is not disputed that:
a. By this time, G. had her Canadian passport (to which she was entitled by virtue of her citizenship by descent from Mr. Ma).
b. Ms. Wang’s Canadian Permanent Resident card had expired. A Permanent Resident Travel Document for her was applied for and eventually received.
c. Mr. Ma and G. left China for Toronto on September 25, 2023.
d. Ms. Wang travelled to Toronto in October 2023.
15From October 2023 to January 2024, the parties lived together in Toronto. G. went to school and attended extracurricular activities.
16For at least some of this period, Mr. Ma’s parents lived with the parties, which created tension.
17Ms. Wang suffered a medical episode in Toronto on or about January 6, 2024. Mr. Ma says she suffered from psychosis and threatened to kill herself. Ms. Wang said she had a mental breakdown due, again, to Mr. Ma’s alleged abuse. She was hospitalized involuntarily for a few days. Ms. Wang said she could not remember details of her hospitalization.
18Ms. Wang returned to China on or about January 13, 2024, where she was hospitalized again.
19The parties were in contact over the spring of 2024. At some point, Ms. Wang asked Mr. Ma to bring the child back to China.
20From China, Ms. Wang contacted Toronto police twice during the spring and summer of 2024 – complaining that she did not know where G. was. She also made one complaint to the Children’s Aid Society. The complaints were resolved fairly quickly, without much follow-up. There are currently no open investigations.
21On or about August 6, 2024, Ms. Wang initiated court proceedings in China, for a divorce and for what in Canada would be termed corollary relief. Mr. Ma was served some months later.
22A Chinese trial took place in late December 2024. Mr. Ma participated in the hearing and filed submissions. Neither party had a lawyer.
23The Chinese court issued a decision on May 16, 2025, which appears to have taken effect one month later.
24The parties disagree whether the Chinese court ordered G.’s return to China, but not that the court (a) awarded custody of G. to Ms. Wang and (b) granted a divorce order.
25Mr. Ma received a copy of the Chinese decision in June 2025. He commenced family proceedings in the Ontario Court of Justice shortly thereafter. Those proceedings have been stayed.
26On July 29, 2025, Ms. Wang commenced an application in this court. Mr. Ma filed an answer on September 25, 2025.
27The Office of the Children’s Lawyer became an added party to speak for the child.
28In her pleadings, Ms. Wang cites a separation date of January 13, 2024. In her closing submissions, she says that separation occurred sometime in May 2024.
29In his pleadings, Mr. Ma states that the parties separated on January 13, 2024.
30Mr. Ma does not seek a divorce order from this court.
31At this two-day hearing, Mandarin interpretation was required for Ms. Wang, who remains in China. To ensure that the jurisdictional issue could be addressed in the allotted time, all parties agreed to proceed by oral cross-examination of the main parties and the OCL clinician, that no third-party affidavits would be admitted, and that exhibits would be limited.
32The court thanks the interpreters for their assistance.
PARTY POSITIONS
33Ms. Wang says that she never consented to G. being brought to Canada. Due to her illness in 2023, Ms. Wang could not object to what Mr. Ma was doing. She says she did not personally apply for her Canadian travel document, nor did she participate in the process to get G.’s Canadian passport. Ms. Wang says she did not ‘resettle’ in Ontario in October 2023. She came only to get free health care. Ms. Wang says that, during the months she was in Ontario, any contact she had with G.’s teachers, or any participation in family activities, was motivated by love for her daughter. Those actions do not suggest that G. was habitually resident in Ontario. Since leaving Canada in January 2024, Ms. Wang has repeatedly asked Mr. Ma to bring G. back to China. Ms. Wang acknowledges that G. is doing well in Canada but says that G.’s desire to stay in Canada has been influenced by Mr. Ma. Ms. Wang says she had no choice but to commence proceedings in China, and that Mr. Ma had fair notice of them and participated in them fully. Ms. Wang says that the Chinese court’s decision drew on evidence from both parties, and its conclusion is grounded in an appreciation of G.’s best interests. Ms. Wang says she is in good health and G. would suffer no harm were she to be returned to China.
34Mr. Ma says that the parties agreed to return to Canada in the summer of 2023. He says it became clear that he could not find suitable long-term employment in China. He says that both parties had to cooperate in (a) getting G. a Canadian passport (b) getting Ms. Wang a Canadian travel document and (c) convincing Chinese authorities to let G. – a child born in China – leave the country in September 2023. Ms. Wang came to Ontario in October 2023 to be with Mr. Ma and G. She did seek medical care in Ontario, but she was part of a family unit. Ms. Wang departed Canada for health reasons. Her encephalitis caused profound changes in her mood and temperament. Ms. Wang does not appreciate the seriousness of her condition. Her communications with Mr. Ma were inconsistent – at times asking him to bring G. back to China and at other times seeking reconciliation. Ms. Wang also behaved inappropriately during some video calls, which G. witnessed. Mr. Ma says he received only two weeks’ notice of the Chinese hearing. Due to his employment, his care responsibilities for G., and the time difference, he was unable to hire a Chinese lawyer. The court process was fundamentally unfair, the Chinese decision was one-sided, and the decision should not be recognized.
35The Children’s Lawyer notes the following information in Ms. Polgar’s affidavit based on her interviews with G.:
a. G. stated that when she came to Canada with her father, she was moving to Canada to live forever. She was not coming for a ‘visit’.
b. G. stated that she wants her mother to move to Canada and live here. G. advised that she wants her mother to live with her father, but if her mother cannot do so, she would like her mother to live next door to her father. She stated that she would like “all her family” to take care of her. G. wants her family to work together.
c. G. clearly and unwaveringly stated that she does not want to live in China. She stated that she did not like the mosquitos in China, stating that she was allergic to them. G. did not like the school in China, stating that it was “too big.” She stated that she did not like the teachers in China, adding “they scream a lot”.
d. G. stated that she was very worried that if she went to China to see her mother, her mother would not let her come back to Canada, indicating, “I think this by myself. I’m worried about myself. It’s so scary”.
e. G. stated that after school, she enjoys playing in the local park. She described several after-school activities that she attends, including music classes, Cubs and going to church, in which she has been engaged since coming to Canada.
36The Children’s Lawyer argues that G.’s habitual residence is Ontario. Alternatively, if G.’s habitual residence is not Ontario, this court can and should assume jurisdiction over the child based on the factors in section 22(1)(b) of the CLRA. Even if Mr. Ma attorned to the Chinese proceeding, that does not oust Ontario’s jurisdiction over G. The Chinese decision should not be recognized in any event, because the decision does not consider G.’s views and preference and the decision is contrary to public policy in Ontario. G. would suffer serious harm were she to be removed from Canada, including separation from her primary caregiver for the last two years, and the frustration of her clear and firm wish to not go back to China.
ISSUES AND BRIEF CONCLUSION
37The issues for this hearing are:
a. Should this court recognize and enforce the Chinese order and, consequently, order that the child, G., be sent to her mother in China? In particular:
i. Should this court decline to recognize the order because, as set out in section 41(e) of the Children’s Law Reform Act, R.S.O. 1990 c. C.12 (“CLRA”), and in accordance with section 22 of that Act, the Chinese court would not have had jurisdiction if it were a court in Ontario? or
ii. Should this Court decline to recognize the order on the basis of a lack of procedural fairness to Mr. Ma as set out in section 41(a) or (b) of the CLRA? or
iii. Should this Court decline to recognize the order because Chinese law did not require the Chinese court to have regard for the best interests of the child as set out in section 41(c) of the CLRA? or
iv. Should this Court decline to recognize the Chinese order because it is contrary to public policy in Ontario as set out in section 41(d) of the CLRA? or
v. If none of the exceptions to recognition in section 41 of the CLRA are satisfied, should this court nevertheless decline to order G.’s return to China because doing so would subject her to the risk of serious harm contrary to section 43 or section 23 of the CLRA?
b. If this court does not order G.’s return to China, what are the next steps in this case, including any interim parenting and decision-making orders?
Brief Conclusion
38Ms. Wang’s application to recognize the Chinese order, and to have G. sent to China, is dismissed. Whether to recognize and enforce the Chinese order can be fully disposed of under issue (a)(i), above, that is, based on the jurisdiction to make parenting orders set out in section 22 of the CLRA. G. was not wrongfully removed from China. She has been habitually resident and physically present in Ontario since at least January 2024 which is before Ms. Wang commenced her application in China. Therefore, if it were a court in Ontario, the Chinese court would not have had jurisdiction to make a parenting order about G under section 22 of the CLRA.
39I am not persuaded that Mr. Ma suffered from a lack of procedural fairness as defined in section 41(a) and (b) of the CLRA, that section 41(c) applies, or that the Chinese order is contrary to Ontario public policy under section 41(d). However, I am persuaded that forcing G. to return to China would cause her to suffer serious harm.
40Unless the parties settle, final parenting and decision-making orders will require another proceeding. On an interim basis, G. shall have primary parenting with her father. The schedule of video calls that I previously ordered shall continue. Should Ms. Wang travel to Canada, Mr. Ma will facilitate in-person visits. Mr. Ma may on a temporary and without prejudice basis exercise sole decision-making on major issues affecting G. with the exception of certain decisions about religion. Subject to further order of this court, Mr. Ma shall not relocate G. from Toronto. This matter will proceed to next steps on an urgent basis.
41Ms. Wang shall pay costs to Mr. Ma in the amount of $18,000 inclusive of disbursements and HST.
ANALYSIS
42The following analysis contains my findings of fact on a balance of probabilities.
43The court heard from three witnesses, Ms. Wang, Mr. Ma, and the OCL Clinician Ms. Polgar. Generally, I preferred Mr. Ma’s testimony to Ms. Wang. Ms. Wang’s narrative was less plausible, such as when she testified that Mr. Ma’s abuse caused her encephalitis, and that she travelled to Canada in October 2023 only for medical treatment. Ms. Wang failed to recall things that would have been helpful to her case, such as whether she personally applied for Canadian travel documents in 2023, or whether her October 2023 plane ticket to Canada was one-way.
44Mr. Ma was not a perfect witness – at times I found his answers evasive. For example, he was reluctant to confirm that he had travelled with the child to the United States without first informing Ms. Wang. On the critical issues of wrongful removal and habitual residence, however, Mr. Ma’s account was consistent both internally, and with the record before the court.
45Ms. Polgar gave a reliable account of what she was told in the various interviews she conducted, particularly with Ms. Wang and with G. Ms. Polgar’s accounts of her interviews with Ms. Wang contradicted parts of Ms. Wang’s testimony. And Ms. Polgar was able to speak to G.’s views and preferences which are an important consideration for the court: Dunmore v. Mehralian, 2025 SCC 20, 503 D.L.R. (4th) 686, at para. 66.
46Ms. Wang alleges that Mr. Ma abused her throughout their marriage. Based on the information before me, I am not persuaded by her allegation. I am persuaded that the parties’ relationship was very strained at points, that they argued, and that the child witnessed at least some of that conflict.
The Law
47The CLRA states that Ontario courts should refrain from exercising jurisdiction in cases where, by reason of a closer connection between a child and another jurisdiction, it is more appropriate for a tribunal in that jurisdiction to make parenting orders: section 19.
48Relatedly, the CLRA states that valid extra-provincial parenting orders, including those issued by foreign courts, must be recognized and enforced: section 41.
49However, under section 41, the court may decline to recognize and enforce a foreign judgment if the court is satisfied that:
a. The respondent to the foreign proceeding was not given reasonable notice;
b. The respondent was not given an opportunity to be heard;
c. The law of the jurisdiction did not require consideration for the best interests of the child;
d. The order is contrary to public policy in Ontario; or
e. In accordance with section 22 of the Act, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario.
50Section 22(1) of the CLRA defines Ontario courts’ jurisdiction to make parenting and contact orders. Jurisdiction exists if, among other things:
(a) the child is habitually resident in Ontario at the commencement of the application for the order; or
(b) if the child is not habitually resident in Ontario, the court is satisfied that,
(i) the child is physically present in Ontario at the commencement of the application for the order,
(ii) substantial evidence concerning the best interests of the child is available in Ontario,
(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,
(v) the child has a real and substantial connection with Ontario, and
(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
51Section 22(2) defines “habitual residence” as the place in which whichever of the following circumstances last occurred:
a. The child resided with both parents.
b. If the parents are living separate and apart, the child resided with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order.
c. The child resided with a person other than a parent on a permanent basis for a significant period of time.
52The proper interpretation of the word “reside,” grounded in the text, context and purpose of Part III of the CLRA, is that a child resides where they are “at home”. The notion of ‘home’ indicates that a court is not in search of legal formalities but focuses on the child’s life and circumstances: Dunmore, at para. 62.
53Section 22(3) states that one parent removing or withholding a child without the other parent’s consent does not alter the child’s habitual residence unless the other parent acquiesced to or unduly delayed challenging that removal or withholding.
54Section 23 of the CLRA states that, despite sections 22 and 41, a court may make or vary a parenting order if the child is physically present in Ontario and, among other things, the court is satisfied that the child would on a balance of probabilities suffer serious harm if the child is removed from Ontario.
55Section 43(c) states that an Ontario court may supersede an otherwise valid extra-provincial order if the court is satisfied that removing the child from Ontario would cause the child to suffer “serious harm”.
56No party addressed the burden of proof. Given that Ms. Wang has an order from an extra-provincial tribunal, this court must recognize and enforce that order unless one of the exceptions to recognizing that order is met. The responding parties Mr. Ma and the OCL bear the burden of proof with regard to those exceptions: Onuoha v. Onuoha, 2020 ONSC 6849, 49 R.F.L. (8th) 115, at para. 61; Corti v Mazzini, 2023 ONSC 7158, at para 17.
Issue One: Should this court order that the child, G., be returned to her mother in China?
(i) Should this court decline to recognize the order because, as set out in section 41(e) of the Children’s Law Reform Act, R.S.O. 1990 c. C.12, and in accordance with section 22 of that Act, the Chinese court would not have had jurisdiction if it were a court in Ontario?
57Under section 41(e), this court must recognize and enforce the Chinese order if, were it a court in Ontario, the Chinese court would have jurisdiction to make a parenting order under section 22 of the CLRA. As set out above, section 22 contains two bases for jurisdiction: habitual residence (22(1)(a)) and the cumulative factor test (22(1)(b)).
58Therefore, the first question concerns G.’s habitual residence. In this case, part of the analysis of G.’s habitual residence includes whether she was wrongfully removed from China to Ontario in September 2023.
59For the following reasons, I find that the child was not wrongfully removed from China to Ontario in 2023:
a. I am persuaded that, despite the parties’ agreement that the child would be born in China, they did not view it as a permanent relocation.
b. I accept Mr. Ma’s testimony that, after he returned to Ontario in 2019, the parties intended to reunite in Canada. I am persuaded that the parties booked January 2020 plane tickets for Ms. Wang and G. to travel to Canada, which became impossible after China closed its borders due to COVID-19.
c. It is not disputed that the child obtained a Canadian passport while the parties were geographically separated. I find it implausible that Ms. Wang did not participate in that process, particularly since the child was living outside Canada with her. The fact that a parent cooperates in obtaining a child’s Canadian passport does not necessarily indicate that they intend to relocate the child to Canada. Here, however, the passport supports Mr. Ma’s narrative.
d. Furthermore, I am persuaded when Mr. Ma lived in China after G.’s birth he had difficulty finding a good job. Because he moved to Canada at the age of 14, Mr. Ma testified, his spoken Chinese is not perfect which is a barrier to certain kinds of employment. This detail has a ring of truth. I am therefore persuaded that by 2019, Mr. Ma determined that he could not easily find a position in China commensurate with his skills and potential. Given that the parties met and married in Canada, and Ms. Wang knew that Mr. Ma held Canadian citizenship, I find it more likely than not that Ms. Wang anticipated that the family would eventually return to Canada.
e. I am persuaded that Mr. Ma travelled to China in April 2023 as part of the parties’ plan to return to Canada. I am further persuaded that the family’s return to Canada was delayed because of Ms. Wang’s encephalitis. For clarity, I do not accept Ms. Wang’s contention that Mr. Ma caused her encephalitis.
f. I am persuaded that the parties continued their relocation plans over the summer of 2023 while Ms. Wang received treatment. I am persuaded that Ms. Wang participated in choosing a school for the child in Toronto. I am further persuaded that Ms. Wang applied for a Canadian Permanent Resident Travel Document because her original permanent residency card had expired. I do not accept Ms. Wang’s claim that Mr. Ma obtained the travel document without her knowledge or consent.
g. Having considered all the evidence, while Ms. Wang was not well over the summer of 2023, I am persuaded that she had the capacity to understand what was happening regarding the parties’ relocation to Canada. I find it more likely than not that, had she received her Canadian travel documents in time, Ms. Wang would have travelled with Mr. Ma and the child in September 2023.
h. Considering all the evidence, including the fact that China has exit controls which no party disputed, I find it more likely than not that Ms. Wang gave her explicit consent for the child to leave China.
60Therefore, based on all the above findings, I am persuaded that Ms. Wang consented to Mr. Ma and the child departing China for Canada in September 2023.
61Were it necessary to reach the issue, I would find that Ms. Wang acquiesced to the child’s removal to Canada. Ms. Wang travelled to Canada one month after Mr. Ma and G. did. Ms. Wang’s claim that she came solely to receive medical treatment is implausible. Ms. Wang clearly travelled to Canada to reunite with her husband and daughter.
62Therefore, I find, the child was not wrongfully removed to Ontario, Canada. Her parents, Mr. Ma and Ms. Wang, decided to bring her here.
63The next step is to determine the child’s habitual residence at the time foreign proceedings started in August 2024.
64Prior to coming to Canada in 2023, G. lived her entire life in China. However, I am satisfied that, by the time Ms. Wang left Canada in January 2024, G.’s habitual residence had become established in Ontario. Based on the relevant links and circumstances, G had become ‘at home’ in Ontario where she was last living with both of her parents prior to January 2024. I make this finding because:
a. G. and Ms. Wang and Mr. Ma lived together in Toronto for several months.
b. G. was attending school.
c. G. was enrolled in activities such as scouts.
d. The parties participated in family activities with G., such as trips to the aquarium, the zoo, and museums.
e. Ms. Wang’s departure from Canada was not planned, but the result of an unfortunate medical episode. Ms. Wang testified that she had become disillusioned about Canadian health care. Therefore, after her January 2024 episode, she decided to go back to China for treatment. Ms. Wang’s departure from Canada for medical reasons does not affect G.’s habitual residence at the time of that departure.
f. Ms. Wang’s desire for G. to return to China in 2024 does not affect G.’s habitual residence.
g. The fact that Ms. Wang now states that she has no intention of ever returning to Canada does not affect G.’s habitual residence.
h. Ms. Wang gave inconsistent statements about her intentions. Ms. Polgar reports that, during her interview with Ms. Wang in the fall of September 2025, Ms. Wang stated that “it had been her intention to travel between Canada and China, sharing time between the two countries.” Further, Ms. Wang told Ms. Polgar that “she wanted [G.] to travel to China during the winter for Chinese New Year and in the summer.” Ms. Wang testified that there was an interpretation issue during the interview. I do not find this credible or reliable. Ms. Wang did not register any complaints about the interpretation during the interviews themselves. Despite Ms. Wang’s use of an interpreter at the hearing, it is not disputed that she can speak and understand some English. Considering all the evidence, I am satisfied that Ms. Wang made the statements that Ms. Polgar deposed to. The fact that Ms. Wang wanted G. to travel to China during certain periods suggests that Ms. Wang recognized that G. was living on a permanent basis in Ontario.
i. I accept Ms. Polgar’s testimony that G. has consistently expressed a connection to, and desire to stay, in Canada. While G. is young, there is no evidence that she is unable to form and express her likes and dislikes including about her living environment. Indeed, Ms. Polgar found G. to be expressive, interested, and aware of her surroundings. Contrary to Ms. Wang’s submission, I am not persuaded that G. has been subject to undue pressure from her father. I find it more likely than not that G. expressed a genuine preference based, in part, on her educational, social and extra-curricular experiences formed over the last two years that she has spent in Ontario.
65I find it more likely than not that Ms. Wang either agreed or acquiesced to G.’s relocation to Ontario. Then, owing to her deteriorating marital relationship and her own return to China, Ms. Wang sought to have G. return there too. It is understandable that Ms. Wang wants her daughter with her. However, if Ms. Wang had a change of heart about where her daughter should live, that does not change G.s’ habitual residence.
66Section 22(1) of the CLRA provides two bases for a court (in this case, the Chinese court) to make parenting orders. Having disposed of the first basis, habitual residence, I will now turn to the second basis, section 22(1)(b). That subsection states that a court in Ontario may assume jurisdiction to make a parenting order for a child who is not habitually resident in Ontario if the court is satisfied that:
a. the child is physically present in Ontario at the commencement of the application for the order,
b. substantial evidence concerning the best interests of the child is available in Ontario,
c. no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
d. no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,
e. the child has a real and substantial connection with Ontario, and
f. on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
67The above test is conjunctive. In applying it for the purpose of determining whether to enforce the Chinese judgment under section 41(1)(e), one must replace the word “Ontario” with “China”.
68In this case, section 22(1)(b) is not satisfied because the child was not physically present in China when Ms. Wang commenced her application.
69To conclude, I find that, if it were a court in Ontario, the District People’s Court would not have had jurisdiction to make parenting and decision-making orders for G. under section 22 of the CLRA. At the time Ms. Wang commenced her Chinese application, G. was both habitually resident and physically present in Ontario.
70Mr. Ma has not challenged the Chinese court’s grant of divorce. The order also contains support provisions which are not properly before me. Therefore, my findings are confined to those aspects of the Chinese order that deal with parenting and decision-making.
71For completeness, I will now address the remaining sub-issues.
(ii) Should this Court decline to recognize the order on the basis of a lack of procedural fairness to Mr. Ma as set out in section 41(a) or (b) of the CLRA?
72Sections 41(a) and (b) of the CLRA state the following exceptions to a court’s obligation to recognize an extra-provincial order:
a. The respondent was not given reasonable notice of the commencement of the proceeding in which the order was made.
b. The respondent was not given an opportunity to be heard before the order was made.
73Rather than address (a) and (b) separately, Mr. Ma groups his complaints under a general category of procedural fairness. His concerns about the Chinese proceeding include that:
a. he received “extremely short notice in early December 2024 of a hearing scheduled for December 27, 2024”;
b. he had “no meaningful opportunity to retain counsel in China, obtain disclosure, prepare materials, or participate on an equal footing” in the proceeding;
c. he faced “procedural limitations” as an “overseas litigant” compounded by his sole caregiving responsibilities for G. and, because of the time difference, his “inability to remain awake through the night”;
d. the proceeding “lasted only two hours”, “proceeded in a summary manner” and involved “no meaningful evidence”; and
e. the resulting decision showed bias in favour of Ms. Wang.
74Therefore, according to Mr. Ma, the proceeding was “procedurally and substantively unfair.”
75I am not persuaded that either subsection applies.
76Having considered all the evidence, I make the following findings:
a. Mr. Ma admitted that, after receiving the notice of the Chinese hearing, he did not seek advice from a lawyer in Ontario.
b. While Mr. Ma stated that it would have been difficult to find a lawyer in China, he provide no details about his efforts to do so.
c. Mr. Ma prepared materials for the Chinese hearing. Under cross-examination, he did not dispute that his materials were around thirty pages.
d. There is no evidence that Mr. Ma asked the Chinese court for an adjournment.
e. At the Chinese hearing, both parties were self-represented.
f. While it is true that the Chinese order accepted Ms. Wang’s position, I am not satisfied that proves that the Chinese court did not consider all the evidence. Nor am I persuaded that the Chinese court was biased in Ms. Wang’s favour.
77Therefore:
a. I am not persuaded that section 41(a) applies. While Mr. Ma received only a few weeks' notice, he was able to prepare and submit materials. Mr. Ma did not sufficiently explain why he did not seek legal advice, at least in Canada. I am not persuaded that Mr. Ma was deprived of reasonable notice of the Chinese proceeding.
b. Section 41(b) does not apply either. Mr. Ma was not denied an opportunity to participate. He gave evidence and submitted materials. Mr. Ma’s complaints about the difficulties he faced because of the time difference, such as his inability to stay awake all night, are not persuasive – especially given that Ms. Wang faced the same difficulty with respect to this hearing.
(iii) Should this Court decline to recognize the order because Chinese law did not require the court to have regard for the best interests of the child as set out in section 41(c) of the CLRA?
78Section 41(c) of the CLRA asks whether “the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child.”
79Both Mr. Ma and the OCL argue that the Chinese order does not address the best interests of the child.
80Both respondents argue there is no evidence that the Chinese proceeding allowed for an opportunity to consider G.’s views and preferences.
81Using the translated version of the decision provided by Ms. Wang, the Chinese decision’s entire analysis of custody is the following passage:
Regarding the issue of custody of [G.], a daughter born in marriage, given that [G.] is a young girl who has been living with her mother in China since birth and is more adapted to domestic living habits and environment, taking into account the living conditions and environment of both parents, which are more conducive to the healthy growth of the child, and continuing to live with her mother in China is more conducive to the physical and mental health of the child, it is more appropriate for [G.] to be raised by Wang Wenjia.
82The decision is terse on what the court considered in making its custody decision. The translation does not use the term “best interests”. There is no mention of G.’s views.
83Given the constraints on the hearing before me, no expert evidence was admitted regarding Chinese law on the best interests of the child.
84Neither respondent offered arguments about how to interpret section 41(c), and, in particular, whether this court may simply consider the Chinese decision on its face or must also consider Chinese law (in the words of the CLRA, “the law of the place in which the order was made”). In other words, neither respondent clarified whether, under section 41(c), it is the broader structure of Chinese law that is significant, or just the decision at issue.
85Mr. Ma and the OCL bear the burden of proof on whether the exception under section 41 (c) applies. Given the lack of evidence about Chinese law, and the lack of argument over how to interpret section 41(c), I find that they have not met that burden.
(iv) Should this Court decline to recognize the Chinese order because it is contrary to public policy in Ontario as set out in section 41(d) of the CLRA?
86Both Mr. Ma and the OCL submit that recognizing the Chinese order would be contrary to public policy.
87Mr. Ma’s explanation for why recognizing the Chinese order would be contrary to public policy appears to rest on his other arguments for why the order should not be recognized, such as procedural fairness and the court’s failure to consider G.’s best interests.
88The OCL makes the following submissions about this exception:
a. The Chinese order contains gender-based presumptions: first, that G. would be better off with Ms. Wang simply because Ms. Wang is the mother; and second, that the court emphasized that Ms. Wang is unable to have further children; and
b. Courts have declined to recognize an extra-provincial order where that order did not consider the best interests of the children despite it being a requirement in the legislation: Guillemaud v. Geurts, 2015 ONSC 4229, at para. 46.
89A conclusion that the Chinese order is contrary to public policy requires “very careful consideration”: Essa v. Mekawi, 2014 ONSC 7409, 56 R.F.L. (7th) 133, at para. 80. Such a finding “involves impeachment of that judgment by condemning the foreign law on which the judgment is based” and, therefore, “is not a remedy to be used lightly”: Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, at para. 76.
90Given the high threshold required before invoking public policy as a reason not to enforce a foreign order, and the sparse arguments by both respondents, I am not persuaded that section 41(c) is satisfied in this case.
(v) If none of the exceptions to recognition in section 41 of the CLRA are satisfied, should this court nevertheless decline to order G.’s return to China because doing so would subject her to the risk of serious harm contrary to section 43 or section 23 of the CLRA?
91Mr. Ma and the OCL argue that returning G. to China would subject her to the risk of serious harm.
92Mr. Ma says that “[r]eturning [G.] to China would severely disrupt her emotional stability, schooling, community relationships, religious activities, and her well-established cultural and personal identity in Ontario since September 2023.”
93Mr. Ma says additional proof of risk of harm to G. comes from Ms. Wang’s behaviour during recent video calls, “including inappropriate threatening or violence contents statements [sic]” in G.’s presence. Mr. Ma cites G.’s statement to Ms. Polgar that she is “scared” of her mother. Mr. Ma also cites G.’s distress at witnessing an incident that likely happened during Ms. Wang’s medical episode in January 2024. Finally, Mr. Ma raises concerns about Ms. Wang’s ability to care for G. in China. Mr. Ma says that Ms. Wang’s parents will not have time to care for G because they will be caring for Ms. Wang.
94Relying on section 23 of the CLRA, the OCL emphasizes that relocating G. would cause her extreme disruption including: separation from her primary caregiver; being uprooted from her school, community and friends; and being forced to leave Canada against her express wishes.
95A serious harms analysis must be child-centered and individualized: F. v. N., 2022 SCC 51, [2022] 3 S.C.R. 616, at paras. 70-74, 76-77.
96I am persuaded that, at this time, forcing G. to go to China would cause her to suffer serious harm.
97For clarity, I am not persuaded that Ms. Wang herself is a threat to G. I am not persuaded that G.’s statement that she is “scared” of her mother establishes such a threat. I am not persuaded that Ms. Wang has behaved in a threatening manner. While I accept that Ms. Wang may have had outbursts, most likely due to encephalitis, which would have been frightening for a small child to witness, that does not amount to a threat to G. Finally, I find that Mr. Ma’s allegations regarding Ms. Wang’s and her parents’ ability to care for G. in China are speculative.
98At the same time, I am persuaded that forcing G. to go to China would be profoundly destabilizing. G. has lived in Ontario for the last two years. She is deeply rooted in her community and school, and connected to her father, paternal grandparents, and friends. G. has clearly and consistently said that she does not want to go to China.
99Therefore, having considered all the evidence, and adopting a ‘child-centered’ lens, I am persuaded that ordering G. to go to China at this time would cause her to suffer serious psychological and emotional harm. Had it been necessary to reach this issue, I would not enforce the Chinese order, on this basis.
100I therefore decline to grant Ms. Wang’s request that this court recognize the Chinese order, and order that G. be sent to China.
Issue Two: If this court does not order G. returned to her mother, what are the next steps in this case, including any interim parenting and decision-making orders?
101The fact that G.’s habitual residence is in Ontario does not resolve the issues of parenting and decision-making. Should the parties not reach a settlement, a different proceeding, such as a trial, will be required to issue final orders.
102Subject to further court order, I am continuing the schedule of video calls that I ordered on August 12, 2025. It is important that Ms. Wang have regular opportunities to connect with G. while Ms. Wang remains in China.
103Should Ms. Wang travel to Toronto, Mr. Ma will ensure appropriate access to and visits with the child. Subject to further court order, such visits will not include overnight visits.
104Subject to further court order, and with one caveat, Mr. Ma will exercise sole decision-making on major issues affecting the child. The caveat is with respect to decisions that would permanently affect the child’s religious observance, such as whether she receives Catholic first communion. Based on the evidence from both parties, I am satisfied that they have a genuine difference of opinion about this. Therefore, at present, I find it inappropriate for Mr. Ma to make unilateral religious decisions that would have such an effect.
105Mr. Ma will continue to hold the child’s official documents. Subject to further court order, he shall have the authority to obtain or renew such documents. Given the dynamics between the parties and the logistical issues posed by their geographic distance, subject to further court order Ms. Wang’s consent shall be dispensed with.
106Subject to further court order, Mr. Ma shall keep Ms. Wang informed of any travel with the child outside of Ontario, including providing Ms. Wang with an itinerary as soon as one is available. For clarity, and again subject to further court order, Mr. Ma may travel with the child to any location in or outside of Canada.
107Subject to further court order, Mr. Ma may not relocate the child outside of Toronto, Ontario.
108Mr. Ma seeks an order preventing Ms. Wang from “harassing” him or his family members. I find that he has not established the basis for a restraining or no contact order. His request is dismissed without prejudice. Both parties shall be subject to a non-disparagement order and an order to not discuss this litigation with or in front of the child.
109The parties shall proceed to a case conference on an urgent basis. Within 30 days of this decision, Mr. Ma will reach out to the Family Trial Office to schedule one.
COSTS
110Mr. Ma prevailed on this hearing and is entitled to some costs. He claims full indemnity of $23,165.
111Ms. Ma incurred costs of $16,916.00.
112Modern costs results foster four purposes: 1) to indemnify successful litigants for the cost of litigation; 2) to encourage settlement; 3) to discourage and sanction inappropriate behavior by litigants; and 4) to ensure that cases are dealt with justly, in accordance with the primary objective of the Family Law Rules set out in Rule 2(2).
113Rule 24(5) of the Rules sets out factors that the court must consider when deciding whether a party has acted reasonably or unreasonably, including whether a party failed to accept an offer or comply with court orders.
114Under Rule 24(8), if a party has acted in bad faith, the court shall decide costs on a full recovery basis which shall be paid immediately.
115While I ruled against Ms. Wang, and did not find her credible on some points, I do not believe that her actions were made in bad faith. I am persuaded that she is desperate to be reunited with her daughter.
116I also found that Mr. Ma did not establish all of his arguments. In addition, while Mr. Ma seeks costs for all of the prior TBST appearances, some of those appearances relate to parenting and decision-making issues that are more relevant for trial. They are not appropriately included in the costs for this hearing.
117In the circumstances, I find that $18,000 is an appropriate costs award that reflects the degree to which Mr. Ma prevailed at this hearing.
ORDER
118The Applicant’s application is dismissed. For clarity:
a. Pursuant to section 41 of the CLRA, with respect to the judgment issued by the Heilongjiang Province Jiamusi City People’s Court on May 16, 2025, Court File No (2024) Hei (0803) Min Chu No. 1584, those provisions concerning parenting and decision-making of the child, G., born January 6, 2018, are not recognized in Ontario.
b. The child was not wrongfully removed to Canada.
c. Since January 1, 2024, Ontario has been the habitual residence of the child, G., born January 6, 2018.
d. Pursuant to section 22 of the CLRA, the Superior Court of Justice of Ontario has jurisdiction to make parenting and decision-making orders concerning the child, G., born January 6, 2018.
119Subject to further court order, on an interim and without prejudice basis:
a. Ms. Wang shall continue to have Facetime/WeChat call with the child in accordance with the order of Mathen J. issued on August 12, 2025. For clarity, the calls shall occur every Saturday and two other days midweek. If a change to the midweek schedule is required because of the child’s extracurricular activities, Mr. Ma shall confirm the new schedule by January 16, 2025. The schedule is intended to apply without deviations subject only to such occasional changes requested in good faith and consistent with the child’s best interests.
b. Should Ms. Wang travel to Toronto, Mr. Ma will ensure appropriate access to and visits with the child. For the time being, such visits will not include overnight visits.
c. Mr. Ma will exercise sole decision-making on all major issues affecting the child except for decisions that would permanently affect the child’s religious observance, such as whether she receives Catholic first communion.
d. Mr. Ma will continue to hold the child’s official documents. He shall have the authority to apply for or renew such documents. Ms. Wang’s consent shall be dispensed with.
e. Mr. Ma shall keep Ms. Wang informed of any travel with the child outside of Ontario, including providing Ms. Wang with an itinerary as soon as one is available.
f. For clarity, Mr. Ma may travel with the child to any location in or outside of Canada.
g. Mr. Ma may not relocate the child outside Toronto, Ontario.
120Neither party shall disparage the other directly or indirectly. Neither party shall discuss this litigation with or in front of the child.
121Mr. Ma’s request for an order preventing Ms. Wang from harassing him or his family members is dismissed without prejudice.
122Within 30 days, Mr. Ma shall contact the Family Trial Office to schedule an urgent case conference to discuss how to resolve all remaining issues on a final basis. Mr. Ma shall make best efforts to coordinate with Ms. Wang.
123Within 60 days, Ms. Wang shall pay to Mr. Ma costs fixed at $18,000 inclusive of disbursements and HST.
124No costs shall be awarded against or to the OCL.
Justice C. Mathen
Released: January 5, 2026