Victor Pilnitz

The appellant, Hang Chen, brought two appeals before the Court of Appeal for Ontario: one from an order dismissing his motion to change child support and another from an order imposing penalties for contempt.

The appellant failed to appear for the appeal hearing and did not comply with a court order to provide evidence for his absence.

The Court of Appeal dismissed both appeals, finding no errors in the lower court's decisions, which were warranted due to the appellant's consistent failure to provide financial disclosure, pay outstanding support and costs obligations, and attend court proceedings.

The appellant, having initiated parallel spousal support proceedings in the Ontario Court of Justice and divorce/equalization in the Superior Court of Justice, appealed the dismissal of her spousal support claim.

The initial dismissal was due to improper use of resources and jurisdictional issues.

The Superior Court appeal judge remitted the matter back to the Ontario Court of Justice for submissions on jurisdiction.

The Court of Appeal found this disposition failed to promote the primary objective of the Family Law Rules, which is to deal with cases justly and efficiently.

The Court of Appeal allowed the appeal, set aside the lower appeal order, and transferred the spousal support application to the Superior Court of Justice to be heard concurrently with the equalization and divorce claims, imposing a stay on the Ontario Court of Justice application.

Costs were awarded to the appellant.

This decision addresses the penalty phase of a contempt motion where the respondent, Hang Chen, was found in contempt of court for persistent non-compliance with multiple court orders, including financial disclosure, support payments, equalization payments, and costs orders.

The applicant, Yuan Xiang Ding, sought a $10,000 penalty and full indemnity costs.

The court, applying Rule 31 of the Family Law Rules and considering aggravating factors such as flagrant and wilful breaches and bad faith conduct, imposed the requested $10,000 penalty and ordered the respondent to pay the applicant's costs of $10,324.75, both enforceable by the Family Responsibility Office.

The applicant proceeded with an uncontested trial seeking a divorce, spousal support, equalization of net family property, and a permanent restraining order.

The respondent did not participate in the proceedings.

The court imputed an annual income of $72,800 to the respondent based on his profession as an electrician and ordered him to pay spousal support of $495 per month for six years, noting his immigration sponsorship of the applicant.

The court also ordered an equalization payment of $59,517.40, issued a permanent restraining order due to the respondent's threatening behaviour, and awarded full indemnity costs of $45,762.57 against the respondent for bad faith conduct.

The applicant brought a motion for summary judgment seeking an annulment of her marriage on three grounds: lack of mental capacity at the time of marriage, the respondent's fraudulent intent to secure sponsorship, and non-consummation due to the respondent's refusal.

The court dismissed all grounds for annulment, finding the applicant had capacity to marry, no evidence of fraudulent intent for sponsorship, and insufficient evidence to prove non-consummation due to the respondent's incapacity or inability rather than mere refusal.

The respondent's claims for equalization of net family property and loan repayment were also dismissed.

The applicant was granted leave to amend her application to claim a divorce based on separation.

This trial concerned parenting arrangements for two children, ages 8 and 4, following the separation of the parents.

The applicant mother sought joint custody with the children residing primarily with her, while the respondent father sought sole custody with a shared parenting schedule.

The court rejected the Office of the Children's Lawyer's recommendation for joint custody, finding the parents unable to cooperate or communicate effectively.

The court granted sole custody to the father, finding him to be the more stable and reliable parent capable of making decisions in the children's best interests.

The mother was found to be emotionally impulsive, dishonest, and engaged in parental alienation.

A shared parenting schedule with fewer transitions was ordered, transitioning to a week-about schedule by September 2021.

The children were to remain in their current school.

No child support was ordered, with income imputed to the mother at $45,000 per annum.

The appellant failed to appear at the scheduled appeal hearing despite being aware of the hearing date.

The Court of Appeal dismissed the appeal and awarded costs to the respondent in the amount of $5,000, payable to Legal Aid Ontario, inclusive of disbursements and HST.

The applicant mother sought a declaration that the child was wrongfully removed from France by the respondent father and sought an order for the child's immediate return.

The father opposed the application, claiming a grave risk of physical or psychological harm to the child if returned to France.

The court found that the child was habitually resident in France, the mother had custody rights, the mother was exercising those rights at the time of removal, and the child was being wrongfully detained in Canada.

The court rejected the father's defences under Article 13(b) of the Hague Convention, finding insufficient evidence of grave risk.

The court also found the child had not attained sufficient age and maturity to have her objections considered.

The court ordered the child's return to France, subject to transitional arrangements to be determined at a follow-up conference.