



COURT OF APPEAL FOR ONTARIO

CITATION: Cheng v. Liu, 2017 ONCA 104

DATE: 20170208

DOCKET: C62435

Strathy C.J.O., MacPherson and Hourigan JJ.A.

BETWEEN

Li
    Cheng

Applicant

(Respondent
    in Appeal)

and

Yangzhou
    Liu a.k.a. Yang Zhou Liu a.k.a. Steele Liu

Respondent
    (Appellant)

Steven M. Fehrle, for the appellant

Christopher P. Goldson, for the respondent

Heard: January 9, 2017

On appeal from the order of Justice David Price of the
    Superior Court of Justice, dated June 13, 2016, with reasons reported at 2016
    ONSC 3911.

Hourigan J.A.:

Overview

[1]

The issue on this appeal is whether an Ontario court has jurisdiction to
    award child support, spousal support, and equalization of net family property after
    a foreign court has issued a divorce.

[2]

The trial judge ruled that the Superior Court had jurisdiction to adjudicate
    a claim for corollary relief under the
Divorce Act
, R.S.C. 1985, c. 3
    (2d. Supp.), despite the fact that the parties divorce had been validly
    granted by a foreign court. In so ruling, he distinguished the case from
Okmyansky
    v. Okmyansky
, 2007 ONCA 427, 86 O.R. (3d) 587, where this court reached
    the opposite conclusion.

[3]

I accept the submission of the appellant that the trial judge erred in
    finding jurisdiction based on the
Divorce Act
and in distinguishing
Okmyansky
.
    However, for reasons that I will explain below, I am of the view that the
    Ontario Superior Court has jurisdiction to determine the issues of child
    support and equalization of net family property pursuant to the
Family Law
    Act
, R.S.O. 1990 c. F. 3 (the 
FLA
). There is, in my view, no
    jurisdiction under that legislation, or otherwise, for the Superior Court to
    order spousal support in this case.

Facts

[4]

The factual circumstances of this case are unusual and are relevant to
    the issue of the jurisdiction of the Superior Court. Accordingly, they merit a
    detailed recitation in order to place the legal issues in context.

[5]

The appellant is a Canadian citizen who has resided in Mississauga since
    at least 2005. He is an engineer, and all of his assets, property and sources
    of income are in Canada.

[6]

The respondent resides in Taian City in China, where she works as an
    office clerk. She has never been to Canada.

[7]

The parties were married in China on August 7, 2006. A daughter
    (Chang) was born on February 3, 2007 and has resided with the respondent in
    China her entire life. The parties separated either on December 14, 2007 (the
    appellants claim) or January 15, 2008 (the respondents claim). For most of
    the marriage, the appellant was in Canada and the respondent in China. If there
    was a period of cohabitation, it was extremely short.

[8]

The respondent brought a divorce application in the Ontario Superior
    Court on March 28, 2009. She sought a divorce, as well as spousal support, child
    support, and custody of Chang (corollary relief) pursuant to the
Divorce
    Act
, and equalization of net family property pursuant to the
FLA
.

[9]

On January 26, 2010 the appellant brought a divorce application in
    China, seeking a divorce, custody of Chang, and equalization of property.

[10]

Meanwhile, in Canada the respondent brought a motion in front of Quigley
    J., who, on February 17, 2010 ordered the appellant to pay temporary child
    support of $825 monthly.

[11]

On April 15, 2010 the appellant brought a motion in front of Baltman J.,
    seeking to have the matrimonial proceeding stayed in Ontario so that it could
    be heard in China. The respondent sought to have the application heard in
    Ontario. Baltman J. concluded that the Ontario court had jurisdiction to hear
    the application, as the husband had been resident in Ontario for the year
    immediately preceding the commencement of the proceeding. However, she noted
    that the issues of custody and access would necessarily have to be determined
    in China, where Chang resided. Thus, if the respondent were successful on the
    motion, there would have to be two court cases.

[12]

Additionally, given the brevity of the marriage, Baltman J. found that
    the pivotal issue was child support, and logically child support should be
    decided in the same forum as custody and access. Thus, Baltman J. concluded
    that China was the more appropriate forum for the matrimonial proceeding, and
    that the application in Ontario should be stayed.

[13]

Baltman J. was concerned to ensure that any child support order made in
    China could be enforced against the appellant and his Canadian assets. She
    stated the husband will be held to his undertaking to this court to abide by
    Chinese court orders. The court ordered the respondents application stayed on
    the following terms:

(a)

The appellant shall comply promptly with all procedural orders and rules
    of the courts of China in the case now pending there between the parties, as it
    may be amended or reconstituted, including orders and rules relating to
    disclosure of documents and information and submission to questioning in China
    for purposes of a motion or preparation for trial.

(b)

The appellant shall comply promptly with all substantive orders of the
    courts of China in the case now pending there between the parties, as it may be
    amended or reconstituted, including orders relating to custody, access, child
    support, spousal support, ownership of property, liability for debts, division
    of matrimonial property and debts, and the granting of divorce.

(c)

If
    the appellant does not comply with the above terms, the respondent may move in
    this court on five working days notice to the appellant to lift the stay
    imposed by this order.

[14]

The proceeding advanced in China. The Chinese family court granted the
    divorce and awarded custody of Chang to the respondent. The respondent was also
    granted sole ownership of the real property she had purchased in China prior to
    the marriage. Because of the way disclosure works in the Chinese legal system,
    the respondent did not learn that the appellant had not made full financial
    disclosure until the release of the judgment in China.

[15]

The Chinese family court stated, This court ordered the applicant (i.e.
    the husband) to fully disclose, within a timeframe, his properties and income
    in Canada. However, the applicant failed to disclose and he only provided a
    Declaration. In the Declaration, the applicant claimed that his income in
    Canada was $150 per month. While the Chinese court noted that the appellant
    should pay child support, there was no evidence of the appellants income and
    properties in Canada, and consequently no basis to make a support order. The
    respondent also argued that such claims were best resolved in Canada.

[16]

The court thus declined to exercise its jurisdiction and determine
    support and equalization. It directed that if the parties could not reach an
    agreement on these issues, an application could be brought in Canada.

[17]

The appellant appealed the decision of the Chinese family court. The
    Chinese Appeal Court released its decision on September 7, 2012, holding that:

All of the assets and properties in
    dispute are located in Canada. Because the court was not able to determine the
    true income of [the husband], the child support amount could not be determined.
    In addition the trial court has agreed to [the wifes] claim that the Chinese
    court is not the best forum to decide this issue.

[18]

The appellant next applied to the Chinese Court of Appeal for a retrial.
    The Chinese Court of Appeal dismissed the application on December 25. 2013. It
    held:

All disputed assets are located in Canada, and the courts could
    not determine the actual income of [the husband]. Therefore the child support
    amounts could not be determined Therefore, the judgments of the trial court
    and the Court of Appeal with respect to the child support and family assets are
    correct.

[19]

Following this, the respondent brought a motion in Ontario Superior
    Court to lift the stay of the Ontario application, arguing that the stay should
    be lifted because the appellant had breached the orders of the Chinese court to
    make full financial disclosure, and breached the undertaking and terms in
    Baltman J.s stay order. Ultimately, a consent order was entered, which lifted the
    stay without prejudice to the issue of retroactive support.

[20]

A trial management conference was held on June 19, 2015. The Superior
    Court, on its own initiative, ordered the trial bifurcated, so that the
    threshold issue of jurisdiction could be determined first. If the court
    determined that it had jurisdiction, a trial on the merits would be held on the
    issues of spousal support, child support, and equalization.

[21]

On August 4, 2015 the respondent amended her application so that her
    claims for spousal and child support were made pursuant to the
FLA
in
    addition to the
Divorce Act
. The appellant consented to the amended
    application. The trial on jurisdiction proceeded before the trial judge.

Decision of the Trial Judge

[22]

The trial judge described the issue before him as whether the Superior
    Court was precluded from assuming jurisdiction in light of
Okymansky
,
    or whether the facts of the instant case were so different that the court could
    entertain the respondents application for support and equalization,
    notwithstanding the Chinese divorce.

[23]

The trial judge provided several reasons why this case was
    distinguishable from
Okymansky
and thus why the Superior Court could
    assume jurisdiction, notwithstanding
Okymansky
. At the end of his
    judgment, at para. 47, the trial judge provided a summary of five bases on
    which
Okmyansky
was distinguishable:

1.

The
    respondent commenced her proceeding in Ontario before the appellant commenced
    his proceeding in China and well before the court in China granted him a
    divorce.

2.

The
    court in Ontario stayed the respondents application provisionally, on
    conditions that the appellant later breached.

3.

The
    appellant procured his foreign divorce in a proceeding in which he misled the
    court in China by making a false declaration as to his income, and thereby
    prevented that court from determining the issue of support.

4.

The
    court in China explicitly declined to exercise its jurisdiction over economic
    issues, including support and division of property, and explicitly left those
    issues for the court in Canada to determine.

5.

Without
    the court in Canada assuming jurisdiction over the issues of support and
    division/equalization of property, the respondent will be left without any
    forum in which to make her claims.

[24]

The text of the trial judges order was: The Superior Court of Justice
    has jurisdiction to determine the issues of child support, spousal support, and
    equalization of net family property.

Issues

[25]

The appellant concedes that the Ontario courts have jurisdiction under
    the
FLA
to adjudicate the issue of equalization of net family
    property. The respondent does not submit that she can seek spousal support
    under the
FLA
.

[26]

Thus, the appeal raises the following issues:

1.

Does an Ontario court have
    jurisdiction to hear and determine a corollary relief proceeding under the
Divorce
    Act
following a valid divorce in a foreign jurisdiction?

2.

Does an Ontario court have jurisdiction under the
FLA
to
    determine the issue of child support after a foreign court has issued a divorce?

Analysis

(i)
Divorce Act

[27]


I accept that the facts of the present case are significantly
    different then the facts of
Okmyansky.
Notably, the respondents
    application in Ontario predated the Chinese application, whereas in
Okmyansky
the

Ontario application was commenced after the foreign divorce
    was issued. However, the courts analysis in
Okmyansky
was based on an
    exhaustive review of the legislative history of the
Divorce Act
, and not
    on the particular facts of the case. Having undertaken that analysis, Simmons
    J.A. concluded, at para. 33, that there is nothing in the legislative history
    of the
Divorce Act
to indicate that Parliament intended the 1993
    amendment to confer jurisdiction on Canadian courts to hear and determine a
    corollary relief proceeding following a valid divorce in a foreign
    jurisdiction.

[28]

Okmyansky
is clear and unequivocal authority that an Ontario
    court does not have jurisdiction to hear and determine a corollary relief proceeding
    under the
Divorce Act
following a valid foreign divorce. Simmons J.A.
    held, at para. 38, that without a divorce granted in Canada, a support order could
    not properly be viewed as corollary relief.

[29]

Various superior court cases have followed
Okmyansky
in the
    last ten years. Thus the court in
Stefanou v. Stefanou,
2012 ONSC
    7265, 47 R.F.L. (7th) 385, held, at para. 170, that [i]f the divorce is not
    granted pursuant to the
Divorce Act
, then there is no divorce to which
    corollary relief may be incidental. The British Columbia Court of Appeal came
    to the same conclusion in
L.R.V. v. A.A.V.
, 2006 BCCA 63, 52 B.C.L.R.
    (4th) 112, holding that the Supreme Court of British Columbia has no
    jurisdiction under the
Divorce Act
to grant corollary relief founded
    upon a foreign divorce.

[30]

In my view, the trial judge erred in law when he attempted to
    distinguish this case from
Okmyansky.
That case was binding authority,
    and nothing in the unique circumstances of this case serves to confer
    jurisdiction where the statute does not provide jurisdiction. Simply put, there
    is no jurisdiction for an Ontario court to grant corollary relief under the
Divorce
    Act
after a foreign court has validly issued a divorce.

[31]

In his reasons, the trial judge also relied on the forum of necessity
    doctrine, as described by Sharpe J.A. in
Van Breda v. Village Resorts Ltd.
,
    2010 ONCA 84, 98 O.R. (3d) 721. This doctrine allows a forum to take
    jurisdiction despite the absence of a real and substantial connection, where
    there is no other forum in which the plaintiff could reasonably seek relief. In
    my view, this doctrine is not applicable to this case. Ontario does have a real
    and substantial connection in this case by virtue of the appellants residence
    in Ontario. In my view, if the Ontario court has jurisdiction, it is clear that
    Ontario is an appropriate forum.

[32]

Given my conclusion on the absence of jurisdiction under the
Divorce
    Act
, it is unnecessary to decide the point, but there may also be
    constitutional issues underlying the inability of courts to award corollary
    relief pursuant to the
Divorce Act
without a valid Canadian divorce.
    As noted by the British Columbia Court of Appeal in
L.R.V.
, it is
    arguable that if Parliament extended the jurisdiction to Canadian courts to
    grant corollary relief pursuant to the
Divorce Act
based on foreign
    divorces, this would be an unconstitutional invasion of provincial jurisdiction
    over property and civil rights.

(ii)
FLA

[33]

The appellant does not dispute the jurisdiction of the Ontario courts to
    adjudicate the issue of equalization of net family property under the
FLA
,
    notwithstanding the foreign divorce. There was a clear finding to this effect
    in
Okmyansky
, at para. 43.

[34]

The respondent does not submit that it is open to her to seek spousal
    support under the
FLA
. In
Okmyansky
, at para. 42, the court,
    relying upon
Rothgiesser v. Rothgiesser
(2000), 46 O.R. (3d) 577
    (C.A.), noted that there is no provision in the
FLA
that entitles a
    former spouse to claim support under that Act.

[35]

The question that remains is whether an
    Ontario court has jurisdiction under the
FLA

to award child support after a foreign court
    has issued a divorce. This is an issue that was not considered in
Okmyansky.

[36]

Recall that in the respondents initial application, dated March 28,
    2009, she sought spousal and child support pursuant only to the
Divorce Act
.
    However, in her amended application dated August 4, 2015 she sought spousal and
    child support pursuant to both the
Divorce Act
and the
FLA
.

[37]

The only case dealing with the jurisdiction
    of an Ontario court to order child support following a foreign divorce is
Morwald-Benevides
    v. Benevides
, 2014 ONSC 699, 44 R.F.L. (7th) 432, at para. 18. In that
    case,

the court

distinguished
Okmyansky
on the basis
    that the wife was not seeking corollary relief, but rather was seeking child
    support as a matter of provincial law under the
FLA
.

[38]

There is also a line of jurisprudence developed in the trial courts that
    holds that where a court in a province has issued a divorce, but has not dealt
    with child support, then the courts in another province have jurisdiction to
    order child support pursuant to provincial legislation. The case law is mostly
    older, as the importance of this issue decreased following the 1993 amendments
    to the
Divorce Act
. Prior to these amendments, the only court with
    jurisdiction to hear a claim for corollary relief was the court of the province
    that had granted the divorce. Following the amendments, the courts of any
    province where one of the former spouses has resided for at least a year have
    jurisdiction to hear a corollary relief claim, as do the courts of any province
    to which both spouses attorn.

[39]

An example of this line of authority is
Seary
    v. Seary
, [1994] O.J. No. 3929 (Gen. Div.). There LaForme J. (as he then
    was) quoted, at para. 5, the earlier case of
Pageau v. Szabo
, 1986
    CarswellOnt 3651 (Prov. Ct.), for the proposition that so long as the divorce
    court has not in any way adjudicated on the matter of child support, it is open
    to a party thereafter to invoke provincial law for relief.

[40]

In
Pageau
,

James J.
    conducted a lengthy review of the jurisprudence on this question. He held, at
    para. 9, that following a divorce, the court that granted the divorce would
    have exclusive jurisdiction over child support in the following situations:

(a)

whenever the divorce
    court has granted child support, no matter how nominal or how limited in time;

(b)

whenever the divorce
    court, after considering the question of support, has
refused
to grant
    it or rejected the prayer to grant it; or

(c)

whenever the divorce
    court has
reserved
its right to make subsequent pronouncements on
    support. [Emphasis in original.]

[41]

According to James J., in any such situation, a court acting under the
    provincial statute would be barred from dealing with the issue of child
    support. Where, however, the divorce court has not dealt with child support in
    one of these three ways, then there is scope for the operation of provincial
    law, even if the divorce court has exercised its jurisdiction in making a
    custody order.

[42]

Similarly, in
French v. Mackenzie
(2003), 38 R.F.L. (5th) 81
    (Ont. S.C.), at para. 8, Kennedy J. explained that if there has been a divorce
    but no child support order was made under the
Divorce Act
, the option
    exists to bring child support proceedings under either federal or provincial
    legislation. In that case, there had been a divorce granted, but no
    adjudication on child support, as there had been an informal agreement between
    the parents. Kennedy J. held that the mother had the option of bringing her
    child support application under the
FLA
,

or as a corollary
    relief proceeding under the
Divorce Act
. This case was cited most
    recently in
Durso v. Mascherin
, 2013 ONSC 6522. Chappel J. noted, at
    para. 14: see para. 50:

[T]he parties were divorced on May
    18 2001, in the context of a Divorce Application that did not include any child
    support claims. The court dealing with the divorce did not in any way
    adjudicate on the matter of child support. In such circumstances, either party
    had the right at a later time to commence a new proceeding to advance child
    support claims under either the
Divorce Act
as a separate
    corollary relief proceeding, or pursuant to the
Family Law Act.

[43]

This line of jurisprudence is helpful in the analysis of the issue in
    the present case. It stands for the proposition that where a court issuing a
    divorce has not adjudicated the issue of child support, provincial legislation
    is a valid means of seeking a child support remedy.

[44]

In my view, the principles developed in the case law are analogous to a
    situation where a foreign court grants a valid divorce, but does not deal with
    child support. In the present case, while there is a valid divorce in place issued
    by the Chinese court, that court has expressly ruled that the issue of child
    support is better determined by the Ontario courts.

[45]

There is also no statutory prohibition against utilizing the
FLA
in such circumstances. Indeed, the use of the
FLA
to provide a remedy is
    entirely consistent with the statuary objective of ensuring that parents
    provide support for their dependent children.

[46]

Counsel for the appellant does not argue that there is any impediment in
    the
FLA
to the court assuming jurisdiction after the issuance of a
    foreign divorce. His argument is that relief under the
FLA
is not
    available due to the constitutional doctrine of paramountcy. According to the
    appellant, given that the respondent initially sought an order for child
    support under the
Divorce Act
, a remedy under the
FLA
is not
    available. I would not accede to this argument for the following reasons.

[47]

The appellants understanding of the doctrine of paramountcy is outmoded
    and inconsistent with the law that has developed over the last thirty years. In
    the past, when a divorce was claimed, support had to be claimed and awarded
    under the
Divorce Act
, as Parliament had occupied the field of
    support upon divorce. Provincial legislation that might also have provided
    support upon divorce was rendered inoperative pursuant to the doctrine of
    paramountcy. This changed when the Supreme Court fundamentally altered the
    doctrine of paramountcy in the early 1980s, so now provincial legislation is
    rendered inoperative only if the federal and provincial legislation are
    operationally incompatible:
Canadian Western Bank v. Alberta
, 2007 SCC
    22, [2007] 2 S.C.R. 3, at paras. 69-75;
Multiple Access Ltd v. McCutcheon
,
    [1982] 2 S.C.R. 161.

[48]

The case law makes clear that there is no operational incompatibility
    between the
Divorce Act
and provincial family law legislation. Child
    support can be claimed under provincial legislation following a divorce. Thus,
    in
Gomes v. Gomes
(1985), 47 R.F.L. (2d) 83 (B.C. S.C.), the court
    decided that there was no conflict between the
Divorce Act
and the
    British Columbia provincial legislation in terms of child support. It held, at
    para. 34:

When the order can be made under
    either Act a judge will make his or her order under the
Divorce Act
in
    preference to the
Family Relations

Act
, but if the judge
    finds an obstacle in making the order under s. 11 of the
Divorce Act
there is nothing to preclude the judge from making the order under the
Family
    Relations Act
.

[49]

Likewise, in
Abernethy v. Peacock
, (2009), 68 R.F.L. (6th) 456
    (Ont. S.C.), discussing the context of varying a
FLA
support

order
    following a divorce proceeding being initiated, the court held, at paras. 20-21:

[T]he jurisdiction of the provincial court would only be
    superseded by the doctrine of paramountcy if support were ruled on in the
    divorce proceeding A court can apply provincial legislation even if there is
    federal legislation in the field as long as applying the provincial legislation
    is not operationally incompatible with the federal legislation. Thus if there
    is a support order under the
Family Law Act
and no support order under
    the
Divorce Act
, there is no operational incompatibility.

[50]

See also
Ward v. Spear
, (1999), 46 R.F.L. (4th) 396 (Ont.
    S.C.),
Slattery v. Slattery
(1993), 48 R.F.L. (3d) 38 (B.C. S.C.), and
Smith v. Kozakevich
(1988), 63 Sask. R. 68 (Q.B.).

[51]

In the present case, no court has adjudicated in a manner that has
    operationalized the
Divorce Act
, either in granting a divorce or
    granting corollary relief. Indeed, the appellant has argued vociferously that
    there is no jurisdiction under the
Divorce Act
to award child support.
    It would be a perverse result if he could at the same time argue that a mere
    reference to that legislation in the original application of the respondent prevents
    a court from exercising its authority to award child support under the
FLA
.
    In that regard, I wholly endorse the sentiments expressed in
Emerson v.
    Emerson,
[1972] 3 O.R. 5 (H.C.). In that case, the wife sought child
    support under the provincial legislation in Ontario, while the husband objected
    that only New Brunswick had jurisdiction to award such support, as it had
    granted the divorce. The court held, at paras. 25-26:

[I]n the matter of the future and
    welfare of infants, there need be no absolutes or imperatives. It would be a
    great pity if constitutional doctrine had to be so applied as to prevent a
    court, able to help a child, from doing so. It is the rule of common sense that
    I should hear this application.

[52]

Ontario courts have authority to award child support under s. 33 of the
FLA
.
    There is nothing in the legislation that restricts that authority in situations
    where a divorce order has been granted outside of Canada. The use of the
FLA
in circumstances where relief under the
Divorce Act
is unavailable
    does not engage the paramountcy doctrine, as there is no operational
    incompatibility between the federal and provincial statues. To the contrary,
    the two statutes are operating harmoniously to ensure that a remedy for child
    support is available.

Disposition

[53]

I would dismiss the appeal but vary the order below as follows:

The Superior Court of Justice
    has jurisdiction pursuant to the
FLA
to determine the issues of child
    support and equalization of net family property.

[54]

The respondent as the successful party is entitled to costs of the
    appeal, which I would fix at $11,000, inclusive of fees, disbursements, and
    taxes.

C.W. Hourigan J.A.

I agree G.R. Strathy
    J.A. C.J.O.

I agree J.C.
    MacPherson J.A.

Released: February 8, 2017


