



COURT OF APPEAL FOR ONTARIO

CITATION: Liu v. Huang, 2020 ONCA 450

DATE: 20200710

DOCKET: C66143

Rouleau, van Rensburg and Roberts
    JJ.A.

BETWEEN

Chong Liu

Applicant

(Respondent)

and

Fang Huang

Respondent

(Appellant)

Gary S. Joseph and Stephen Kirby, for
    the appellant

Toni E. Wharton, for the respondent

Heard: in writing

On
    appeal from the order of Justice Freya Kristjanson of the Superior Court of
    Justice dated October 9, 2018, with reasons reported at 2018 ONSC 3499, and from
    the costs order dated December 14, 2018, with reasons reported at 2018 ONSC
    7441, 19 R.F.L. (8th) 403.

REASONS FOR
    DECISION

A.

Overview

[1]

The appellant mother appeals from the trial
    judges order granting sole custody of their young daughter to the respondent
    father, ordering her to pay child support and other amounts, and providing for
    certain credits to the respondent father on equalization. If unsuccessful on
    her appeal, the appellant seeks leave to appeal the trial judges costs order
    that the appellant pay full recovery costs to the respondent.

[2]

At the heart of this proceeding was a high-conflict
    contest over the custody of the parties young daughter. The parties separated
    under the cloud of allegations of domestic violence against each other. The appellants
    focus at the 12-day trial was to demonstrate that the respondent was an angry, inattentive
    father who cared little for his daughter. The respondent denied these
    allegations and attested to the appellants violence against him, while
    nevertheless agreeing that she was a good mother to their daughter.

[3]

The trial judge noted at the beginning of her
    lengthy reasons that the credibility and reliability of the parties were key in
    this case. After a detailed assessment, the trial judge rejected the appellants
    version of events and accepted the evidence called by the respondent. She found,
    among other things, that the appellant had fabricated allegations of domestic
    violence by the respondent, and that the appellant had been violent toward the
    respondent. She concluded that there were no domestic violence concerns that
    would affect the appellants ability to parent. However, she concluded that the
    appellant had made concerted efforts to exclude the respondent from their
    daughters life, and that the respondent would best support access and consultation
    about significant issues involving the child, and who placed the childs best
    interests first. As a result, the trial judge determined that it was in the best
    interests of the parties daughter to grant the respondent sole custody of
    their daughter with a shared parenting schedule providing for residence with
    each parent 50% of the time.

[4]

With respect to the parties financial and
    property issues, the trial judge found that the appellant was not entitled to
    spousal support, either on a compensatory or a needs basis. She ordered the
    appellant to pay the respondent $74,812.83 as equalization of net family
    property, $28,392.12 as reimbursement for expenses paid on her behalf by the
    respondent, and child support plus a proportionate contribution for other
    expenses for their daughter. The trial judge ordered that the net proceeds of
    sale of the parties matrimonial home would be divided equally between the
    parties, subject to certain credits for payments owing between the parties,
    including occupation rent that the trial judge ordered that the appellant pay to
    the respondent until the closing of the sale of the matrimonial home.

[5]

For the following reasons, we dismiss the appeal
    and deny leave to appeal the costs award.

B.

Issues and Analysis

(1)

Order Regarding Custody and Support

[6]

The appellant raises several grounds of appeal
    which we address in turn.

(i)

There Was No Denial of Natural Justice

[7]

The appellant submits the trial process denied her
    natural justice. She argues that following the trial, the respondents trial counsel
    improperly communicated directly with the trial judge. Further, she contends
    that the trial judge incorrectly issued a temporary order granting sole custody
    of the parties daughter to the respondent and her reasons for judgment delivered
    three months later provided after-the-fact justification for her temporary
    order.

[8]

We are not persuaded by these submissions. There
    was no unfairness in these trial proceedings.

[9]

The exchanges between counsel for both parties
    and the trial judge about the respondents re-employment following trial did
    not violate natural justice nor r. 1.09 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194. Communication with the trial judge by email was initiated
    on consent. The appellants trial counsel was copied on the correspondence, did
    not object to this communication, and had an opportunity to be heard.

[10]

Moreover, we see no error in the trial judge
    issuing a temporary custody order following trial that was incorporated into
    the final order. As the appellant acknowledges, it was within the trial judges
    discretion to issue an order and subsequently provide reasons:
R. v. Teskey
,
    2007 SCC 25, [2007] 2 S.C.R. 267, at para. 16. In this 12-day trial where
    custody of the parties young daughter was the key focus and had been the subject
    of considerable acrimony between the parents for several years, it was a reasonable
    exercise of the trial judges discretion to advise the parties as quickly as
    possible of her determination of this extremely important issue. Her detailed
    reasons released only three months later do not give rise to any suggestion of
    after-the-fact reasoning.

(ii)

The Credibility Assessment Was Fair

[11]

The appellant maintains that the trial judges
    credibility assessment of the parties was unfair, uneven and erroneous and that
    she failed to consider the whole of the evidence.

[12]

We see no error in the trial judges credibility
    assessment of the parties. Her reasons reflect a careful and thorough review of
    the whole of the evidence, including the frailties and strengths of both parents
    credibility and reliability. The trial judges negative assessment of the
    appellants credibility was open to her to make and included consideration of the
    significant inconsistencies in her evidence, as well as her introduction of
    new issues, allegations and documents at trial. Importantly, the appellant
    takes no issue with the trial judges acceptance of the evidence of Haifang Zhang,
    a friend of both parties, which supported the respondents version of events,
    including the appellants unreasonable exclusion of the respondent because she wanted
    [the respondent] to leave her life and leave the babys life and she did not
    want him to see the baby again.

[13]

The appellant argues that the trial judges credibility
    analysis was impaired by the following additional errors: (1) she accepted the
    respondents evidence concerning the incidents of domestic violence between the
    parties without considering the contradiction about this issue in his pleadings;
    (2) she drew an adverse inference against the appellant for her failure to call
    her parents to corroborate her allegations of domestic abuse, and she failed to
    draw the same inference against the respondent for failing to call his mother
    as a witness to attest to the circumstances surrounding the 9-1-1 call; (3) she
    relied on unauthenticated hearsay evidence contained in a police occurrence
    report; and (4) she misapplied the rule in
Browne v. Dunn
(1893), 6 R.
    67 (H.L.), in her assessment of the appellants evidence.

[14]

We are not persuaded by these submissions.

[15]

With respect to the respondents pleadings, the appellant
    submits that the respondent departed from the statement in his Amended Application
    that there had been no physical violence between the parties before the date of
    separation. In his Reply to the allegations contained in the appellants Answer,
    he alleged the incidents of violence were committed against him by the appellant
    in 2007 and 2012.

[16]

When the respondent was cross-examined on this
    alleged contradiction, he explained that he did not initially think the incidents
    were relevant to the issues before the court. When the appellant included
    allegations of domestic violence against him in her Answer, he addressed those
    incidents in his Reply, advancing his position that it was the appellant who was
    the aggressor in these incidents. It does not appear that the appellant took
    the position at trial that the alleged contradiction constituted the withdrawal
    of an admission. In her closing submissions, the appellant included the allegations
    contained in the respondents Reply as part of her recitation of the facts. However,
    nowhere in her closing submissions did she assert that there was a withdrawal
    of an admission or a contradiction between the Amended Application and the
    Reply.

[17]

The trial judge can hardly be criticized for not
    including something in her reasons regarding credibility that was not emphasized
    at trial as a material contradiction, let alone an alleged withdrawal of an
    admission. Moreover, we do not see the respondents pleadings as giving rise to
    any contradiction or clear withdrawal of an admission, but rather as a clarification
    of the respondents position in response to the appellants Answer. Regardless,
    the manner in which the respondent pleaded his case occasioned no prejudice to
    the appellant. The respondent detailed the incidents of violence alleged to
    have been committed by the appellant against the respondent in his Reply more
    than two years prior to trial. Her trial counsel cross-examined the respondent
    on the Reply allegations and dealt with them in her closing submissions.

[18]

In any event, the trial judges credibility
    analysis did not depend on the parties pleadings, but rather on her assessment
    of their testimony and the other evidence presented at trial. The evidence at
    trial as a whole provided an ample basis for her conclusions. She was under no
    obligation to reference every alleged inconsistency in the evidence or respond
    to every argument put before her:
R. v. A.M.
, 2014 ONCA 769, 123 O.R.
    (3d) 536, at para. 14.

Based on her assessment of the whole of the
    evidence, including the respondents explanation for only including the allegations
    in his Reply, which she was entitled to accept, the trial judge reasonably did
    not impugn the respondents credibility because of the manner in which he
    pleaded.

[19]

Further, in the circumstances of this case, it
    was open to the trial judge to draw an adverse inference against the appellant.
    The appellants allegations of domestic abuse throughout the marriage and on
    the date of separation raised important questions materially affecting the
    issues of custody and access. She maintained that her parents had witnessed the
    alleged abuse. However, she did not call her father as a witness and her mothers
    affidavit was silent in relation to the appellants allegations of domestic assault
    by the respondent. This was contrary to the appellants indication at the trial
    management conference that her mother would attest to issues of custody and
    access, as well as financial issues. Her mothers affidavit only addressed financial
    issues. The situation concerning the respondents mother is distinguishable because
    the circumstances of the 9‑1‑1 call that she witnessed were
    supported by the recording of the call itself.

[20]

The police occurrence report concerned the
    incident where the appellant called 9-1-1 and, as the trial judge found, made very
    serious but unfounded allegations against the respondent. Both parties testified
    at trial concerning this incident. No issue regarding its admissibility was
    raised at trial. Rather, both parties included the police report in their exhibit
    books and referenced its contents during their trial testimony. The trial judge
    placed little reliance on the police report, referring to it only to note her
    agreement with its conclusion that the appellants side of the story regarding
    this incident did not make sense. Her rejection of the appellants version of
    events depended principally on her assessment of the parties trial testimony
    and the recording of the 9-1-1 call, which she reviewed in the portion of her
    reasons immediately preceding her reference to the report.

[21]

Finally, the trial judge did not misapply the
    rule in
Browne v. Dunn
. This rule of trial fairness requires parties
    to cross-examine opposing witnesses on points that the party will later seek to
    contradict by calling evidence to that effect and thereby give witnesses the opportunity
    to address major contradictions so that their evidence can be assessed fairly. It
    is not an inflexible rule but rather a matter within the trial judges
    discretion. Its application is therefore subject to significant deference on
    appeal: see
Nemchin v. Green
, 2019 ONCA 634, 147 O.R. (3d) 530, at
    paras. 27-29;
R. v. Quansah
, 2015 ONCA 237, 125 O.R. (3d) 81, at
    paras. 80-82, leave to appeal refused, [2016] S.C.C.A. No. 203.

[22]

The appellant had failed to cross-examine Mr.
    Zhang on an important conversation between them that she detailed in her direct
    examination about her fear of the respondent and her efforts to find a safe
    way to include him in their daughters life. This directly contradicted Mr.
    Zhangs evidence and should have been put to him during cross-examination. The respondents
    counsel promptly objected to the admission of this evidence as contrary to
Browne
    v. Dunn
, and the trial judge heard submissions about whether the rule had
    been breached and the appropriate remedy. She concluded that it was not
    suitable to recall Mr. Zhang. She permitted Ms. Huang to testify, but
    ultimately concluded that the failure to cross-examine Mr. Zhang about the conversation
    called into question the reliability of her evidence. She stated that she
    preferred Mr. Zhangs evidence where the evidence of the two were in conflict.

[23]

The appellant contends that there was no breach
    of the rule in
Browne v. Dunn

because her counsel had cross-examined
    Mr. Zhang on one aspect of his testimony: that she had admitted to scratching
    the respondent during the date of separation incident. The appellant also
    suggests that any breach could have been remedied by recalling Mr. Zhang as a witness.

[24]

We disagree. The argument that the rule was not
    breached was made before the trial judge and properly rejected. The appellants
    counsel did not cross-examine Mr. Zhang about the specific and important
    conversation that the appellant later recalled in her own testimony. There was
    no question that the rule in
Browne v. Dunn

was engaged.

As
    for remedy, it was within the trial judges discretion not to recall Mr. Zhang and
    to approach the appellants evidence as she did. We see no error in the exercise
    of her discretion.

[25]

We therefore see no reason to interfere with the
    trial judges credibility assessment.

(iii)

The Trial Judge Properly Considered the Best Interests
    of the Child

[26]

The appellant submits that the trial judge failed
    to focus on the best interests of the child and erroneously based her determination
    of custody on irrelevant considerations of parental rights and conduct.

[27]

We disagree. To the contrary, the trial judges
    focus was entirely on the best interests of the parties daughter. In particular,
    the trial judge recognized the importance of the daughter having the benefit of
    both parents in her life. She also acknowledged that notwithstanding the
    appellants efforts to exclude the respondent from their daughters life, the
    appellant was otherwise a good and loving mother. The trial judge contrasted
    the appellants refusal to engage in joint decision-making or even to consult
    with the respondent about their daughter, with the respondents conduct that
    respected the importance of the appellants role in their daughters life. The
    trial judge found that it was the appellants inability to put the childs
    interests above her own and to permit their daughter to foster a relationship
    with both parents that warranted an award for sole custody to the respondent. Moreover,
    the trial judge concluded that the appellants unwillingness and inability to
    communicate with the respondent precluded an order for joint custody. Nevertheless,
    the trial judges custody order that requires their daughter to reside equally with
    her parents fairly reflects the equal importance of both parents in their daughters
    life.

(iv)

The Trial Judge Made No Error by Including RRSP Withdrawals
    in the Appellants Income

[28]

The appellant submits that the trial judge erred
    in her assessment of the appellants income for support purposes by including
    the appellants 2017 registered retirement savings plan (RRSP) withdrawals.

[29]

It was open to the trial judge to include the appellants
    2017 RRSP withdrawals in her income for support purposes. As the appellant acknowledges,
    the starting point is a partys total income as indicated on the partys T1
    income tax form, which may include RRSP income:
Federal Child Support Guidelines
,
    S.O.R./97-175, s. 16; see
Fraser v. Fraser
, 2013 ONCA 715, 40 R.F.L.
    (7th) 311, at paras. 97-98. As such, RRSP income received in a particular year
    is presumptively part of a spouses income. Section 17 of the
Guidelines
permits a court to depart from the income determination made under s. 16 where
    it is of the opinion that this would not be the fairest determination of income.
    However, this exclusion is not mandatory and remains within a courts discretion:
Fraser
, at paras. 103-104, 107.

[30]

We see no error in the trial judges exercise of
    her discretion. She was alive to the issue of potential unfairness. As the
    appellant included RRSP withdrawals in the respondents income to calculate his
    income for child support purposes, the trial judge reasonably determined that a
    reciprocal arrangement would not be unfair in this litigation. Moreover, any
    prejudice to the appellant is mitigated by the terms of the order. The trial
    judge specifically provided for annual retroactive adjustment of child support
    based on the previous years income. As a result, if the appellant does not draw
    from her RRSP in a given year, such that her total income is lower, she will be
    compensated for any overpayment in that year and the child support amount will
    be adjusted for the following year.

(v)

The Trial Judge Made No Error in Her Assessment
    of Post-separation Adjustments

[31]

Finally, the appellant submits that the trial judge
    erred in her assessment of the post-separation adjustments claimed by the
    respondent and effectively permitted the respondent triple recovery for his payment
    of expenses for the matrimonial home.

[32]

We are not persuaded by this submission. The
    trial judge did not err in her treatment of the respondents post-separation
    contributions. The trial judge determined the child support and s. 7 expenses retroactive
    to the date of separation that the respondent owed to the appellant. The trial
    judges finding that the respondent had paid certain of the parties joint
    expenses post-separation was rooted in the record. As a result, the trial judge
    allowed the respondent to offset amounts that he had paid on behalf of the
    appellant towards joint expenses from the amounts owing by him to the appellant
    for child support and s. 7 expenses.

[33]

The trial judge also permitted the respondent to
    offset the occupation rent that she ordered against the appellant from these
    amounts. This order was within the trial judges discretion and was reasonable in
    the circumstances. The appellant had sole use of the jointly-held matrimonial
    home, which she directed the respondent to leave, and he could not have reasonably
    moved back. The respondent had sought the sale of the home since separation and
    the trial judge reasonably attributed the delay in bringing a motion to sell the
    house to the respondents litigation focus on access issues. We see no reason to
    interfere with the trial judges exercise of her discretion.

[34]

Neither of these offsets constitute double or
    triple recovery for the respondent.

[35]

Overall, we see no reason to interfere with the trial
    judges conclusions on these issues and we accordingly dismiss the appeal.

(2)

Costs Order

[36]

As we are dismissing the appeal on the merits,
    the appellant requires leave to appeal the costs award made against her in the
    amount of $249,765.47:
Courts of Justice Act
, R.S.O. 1990, c. C.43, s.
    133(b). In order to be granted leave to appeal, the appellant must show strong grounds
    on which this court could find the trial judge erred in exercising her
    discretion to award costs:
Hobbs v. Hobbs
, 2008 ONCA 598, 54 R.F.L. (6th)
    1, at para. 32. The appellant has failed to meet this threshold.

[37]

We see no error in the exercise of the trial
    judges discretion to award the respondent his costs on a full recovery basis. The
    trial judge considered the general legal principles governing costs in family litigation,
    including the overarching factors of reasonableness and proportionality. She noted
    this courts observations in
Mattina v. Mattina
, 2018 ONCA 867, at
    para. 10, that modern family cost rules are designed to foster three fundamental
    purposes: (1) to partially indemnify successful litigants; (2) to encourage
    settlement, and; (3) to discourage and sanction inappropriate behaviour by
    litigants. She reviewed and applied the applicable provisions of rr. 18 and 24
    of the
Family Law Rules
respecting offers to settle and costs. In particular,
    she noted the reasonableness criteria set out in r. 24(5), the costs consequences
    for a party who has acted in bad faith under r. 24(8), and the various factors
    set out in r. 24(12), including the reasonableness and proportionality of each
    partys behaviour, the time spent by each party, and any written offers to
    settle.

[38]

The trial judges reasons reflect these principles.
    She made her costs order on the basis that the respondent exceeded his offer to
    settle and that the appellant took unreasonable and obstructive positions throughout
    the proceedings. She concluded that the appellant had engaged in bad faith
    conduct that was designed to inflict emotional and financial harm to the [respondent],
    [was] harmful to the daughter, and [was] taken to deceive both the [respondent]
    and the Court. She determined that the respondents substantial legal fees could
    have been avoided but for the unreasonable positions and bad faith conduct of
    the appellant. The trial judges findings were amply supported by the record.

[39]

While the amount awarded by the trial judge is
    large, when considered in the context of these proceedings, it is reasonable,
    proportionate and fair. These costs were incurred over three years of litigation
    made acrimonious and costly by the appellants actions, which culminated in a 12-day
    trial. The trial judge found that the appellant had engaged in deceitful and obstructive
    conduct and was not a credible or reliable witness. The respondent was credible
    and reliable as a witness, did not overreach in his positions at trial, and supported
    the appellant as a good parent. His positions were reasonable and prevailed.

[40]

We do not accept the appellants submission that
    the trial judge erred by failing to consider the impact this costs order will
    have on the appellants ability to provide for her daughter. This was not an issue
    before the trial judge. The appellant made no such submission to the trial
    judge. Nor, significantly, is there evidence that this will be the case. Indeed,
    according to the appellants financial circumstances as reflected in her
    financial statement at trial, she had a current income of over $79,000 per year
    and will have approximately $100,000 remaining from her share of the proceeds
    of the matrimonial home, after payment of her liabilities, including the costs
    order.

[41]

As a result, leave to appeal is denied.

C.

Disposition

[42]

For these reasons, the appeal from the trial judges
    order on the merits is dismissed. We do not grant leave to appeal the costs
    order.

[43]

The respondent claims his costs of this appeal on
    a substantial indemnity basis. We see no basis to depart from the usual partial
    indemnity scale on this appeal. While the appellant was unsuccessful, her appeal
    was not totally without merit or conducted in a way that would warrant the exceptional
    scale of substantial indemnity costs.

[44]

Accordingly, the respondent is entitled to his
    partial indemnity costs. If the parties cannot agree on the amount, they may submit
    brief written submissions of no more than two pages, plus their respective costs
    outlines, electronically to
coa.e-file@ontario.ca
within
    ten days of the release of these reasons.

Paul
    Rouleau J.A.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.


