



COURT OF APPEAL FOR ONTARIO

CITATION: Li v. Li, 2021 ONCA 669

DATE: 20210929

DOCKET: C68703

Feldman, Paciocco and Coroza
    JJ.A.

BETWEEN

Xiang
    Li

Applicant (Respondent)

and

Xiang-E
    Li

Respondent (Appellant)

Heng (Pandora) Du, for the appellant

Michael J. Stangarone and Stephen P.
    Kirby, for the respondent

Heard: March 12, 2021 by video conference

On appeal from the order of Justice E.
    Llana Nakonechny of the Superior Court of Justice, dated September 15, 2020,
    with reasons reported at 2020 ONSC 5552.

Coroza J.A.:

I.

overview

[1]

The appellant appeals from the dismissal of her
    motion (the Motion), in which she sought an order dismissing, on
    jurisdictional grounds, the respondents application for relief arising from
    the breakdown of their marriage (the Application). Before the motion judge,
    the appellant argued: i) that Ontario lacked jurisdiction to hear the
    Application and ii) in the alternative, that the city of Kunming, in the
    province of Yunnan, Peoples Republic of China was the more appropriate forum
    for the dispute. The motion judge rejected both arguments, concluding that Ontario
    had jurisdiction and that the appellant had not met her burden of showing that
    China was the clearly more appropriate forum for the case.

[2]

For the reasons that follow, I would not
    interfere with the motion judges finding that Ontario has jurisdiction to hear
    the dispute. However, I conclude that the motion judge erred in reaching the
    conclusion that China was not the clearly more appropriate forum for
    resolving the respondents property and support claims.

[3]

At its core, this litigation relates to assets
    located in China and the respondents post-separation interest in them, if any.
    The respondent purportedly waived his interest in the assets by entering into
    three written agreements in China. These agreements have not been set aside.
    Since these documents were executed and witnessed in China, the Chinese courts
    are in a far better position to deal with their applicability. Respectfully,
    the motion judge ignored this very important factor in analyzing the doctrine
    of
forum non conveniens
.
[1]
Instead, the motion judge focused on the fact that the respondent was pursuing
    a trust claim interest in a single property in Ontario: a property worth a
    small fraction of the appellants overall assets. In my view, the failure to
    consider the parties domestic agreements as central to the
forum non conveniens
analysis was an error in principle justifying intervention by this
    court.

II.

background

[4]

In 2003, the appellant and the respondent met in
    China. In 2012, they married in the city of Kunming, Yunnan Province, China.

[5]

The appellant is a Chinese citizen. She
    previously held Canadian permanent resident status, until it expired in March
    2019. This status was not renewed. The respondent is a Canadian citizen.

[6]

The appellant provided evidence during the Motion
    demonstrating that, between the date of marriage in 2012 and the date of
    divorce in 2018 (approximately 6 years), she was in Canada for a total of approximately
    300 days (less than 10 months in total). She conceded during questioning that
    some visits to Toronto, Ontario in 2015 may not have appeared in the evidence
    filed by the parties.

[7]

Both parties were previously married and have
    children from those marriages. They do not have any children together.

[8]

The parties do not agree on their date of
    separation. The appellant claims that the parties separated in April 2016,
    after a physical altercation in their home. For his part, the respondent claims
    that the parties continued to reside together as a couple both in China and
    Toronto until at least March 2018.

[9]

In March 2018, the parties obtained a divorce
    certificate in China. As discussed in further detail below, the respondent
    disputes the validity of this divorce.

(1)

The Parties Assets and Debts

[10]

The respondent claims that he and the appellant
    contributed work and resources to a series of family companies that are located
    in China. He suggests that the appellant leveraged assets from certain family
    businesses to borrow funds to purchase real estate in her name alone.

[11]

The appellant states that she owned corporations
    and real property in China before and during the marriage. She denies that the
    respondent made any financial contributions to her assets.

[12]

The respondent claims that the parties shared
    two matrimonial homes located in Toronto. In 2012, just prior to the marriage,
    the appellant purchased a property at 220 Elmwood Avenue (the Elmwood
    Property), in her name alone. She claims that she purchased the Elmwood
    Property for her son to reside in while he attended school in Canada. In May
    2016, the Elmwood Property was sold, and the proceeds were used to purchase
    property at 33 Bevdale Road, Toronto (the Bevdale Property), also in the
    appellants name alone. The respondent claims he found the Bevdale Property and
    worked with a real estate agent to arrange the purchase. He states that the
    parties were not separated at this time.

[13]

The appellant has a Royal Bank of Canada account
    in Toronto, in her name alone, which she used to pay the expenses for the Elmwood
    and Bevdale Properties. The respondent argues that he made contributions to
    this account that were used to pay for the mortgage, taxes, utilities, and
    other expenses for the Bevdale Property.

(2)

The Marital Assets Agreement, Letter of
    Commitment, and Repayment Agreement

[14]

On March 11, 2014, the parties signed a Marital
    Assets Agreement addressing five Chinese properties the appellant purchased in
    her name alone. This Agreement confirms that the respondent has no entitlements
    to the properties.

[15]

On May 12, 2015, the respondent also signed a
    Letter of Commitment clarifying that he lacked any interest in 41 specified
    investment properties. These properties are all located in China.

[16]

In 2019, after the divorce, the parties
    negotiated the terms of a repayment agreement for a 2,000,000 RMB
[2]
loan made to the appellant by
    the respondent, his mother, sister, and brother-in-law. The repayment amount is
    6,000,000 RMB, which the appellant claims includes interest and an equitable
    voluntary payment by her to the respondent, representing his monetary
    interest in their relationship. The respondent argues that the repayment
    agreement is unrelated to any division of marital property. The Marital Assets
    Agreement, Letter of Commitment, and loan repayment agreement were all executed
    and witnessed in China, in the Chinese language and in Chinese currency.

(3)

The Divorce Agreement and the Supplementary
    Agreement

[17]

On March 26, 2018, the parties applied for a
    divorce in Kunming. They attended together at the Kunming City Ministry of
    Civil Affairs Marriage Registry and brought a handwritten document stating
    their intention to divorce as well as their agreement that i) there will be no
    disputes in relation to the children and ii) all issues related to
    property, debts, and liabilities had been resolved through private negotiation.

[18]

The registrar required a typed document, so the
    respondent typed a document with the same terms as the handwritten document
    (the Divorce Agreement). Both parties signed the document, added their
    fingerprints, and obtained a divorce certificate.

[19]

The appellant claims this divorce certificate is
    valid and reflects the parties agreement. The respondent states that the
    appellant misled him, assuring him that this was not a real divorce.

[20]

The appellant states that on March 26, 2018, the
    parties signed a Supplementary Agreement to the Divorce Agreement. In this
    document, the respondent waived his rights to any of the appellants assets. It
    states that all property in either partys name belongs to the appellant, except
    for a car and a debt owing by the respondent, which he would retain.

[21]

The appellant argues that the Supplementary
    Agreement reflects the parties negotiations and the fact that the respondent
    made no contributions to her corporations or real estate.

[22]

The respondent asserts that he does not recall
    executing the Supplementary Agreement. He claims he was unaware of the
    Supplementary Agreements existence until December 2019. He admits that the
    signature on the document resembles his but claims the appellant would ask him
    to sign blank documents in case his signature was needed while he was absent.
    The respondent contests the validity of the divorce obtained in China as well
    as the Supplementary Agreement.

III.

procedural history

(1)

The Application

[23]

In February 2020, the respondent commenced an
    Application for various relief, including: i) a declaration that the Chinese
    divorce not be recognized or enforced in Ontario; ii) a declaration setting
    aside the Supplementary Agreement; and iii) a declaration that Ontario has
    jurisdiction to determine the outstanding property and support issues between
    the parties. The outstanding property and support issues included claims for
    equalization, spousal support, and the respondents claim of a resulting and/or
    constructive trust over the Bevdale Property, based on the allegation that the
    appellant was unjustly enriched by his contributions to the Bevdale Property.

[24]

The appellant refused to attorn to the
    jurisdiction of the court. Instead, she brought a motion for an order: i)
    dismissing the respondents Application and ii) declaring that the city of Kunming,
    in Yunnan Province, China, is the more appropriate forum to determine any
    outstanding issues between the parties arising from the breakdown of their
    marriage.

(2)

The motion judges reasons

[25]

In her reasons, the motion judge framed the
    issues on the Motion as: i) whether an Ontario court had jurisdiction to
    determine the respondents property and spousal support claims and ii) if the
    court had jurisdiction, whether Ontario was the appropriate forum to determine
    the issues.

(a)

The motion judge finds Ontario has jurisdiction

[26]

The motion judge noted that she was not asked to
    determine the validity of the Chinese divorce. She acknowledged that there is a
    presumption in favour of recognizing the validity of foreign divorces, and that
    it is rare for a Canadian court to refuse to recognize a divorce properly
    obtained under the laws of another jurisdiction. While the divorces validity
    would impact the respondents spousal support claim, it would not impact the
    equalization and trust claims made under s. 15 of the
Family Law Act
, R.S.O. 1990, c. F.3 (
FLA
), which the motion judge
    considered next. In considering these claims, the motion judge recognized that,
    absent a statutory rule, an Ontario court may take jurisdiction
simpliciter
over the case if there is a real and substantial connection between
    the forum and the subject matter or the parties to the dispute:
Club Resorts Ltd. v. Van Breda
, 2012 SCC 17, [2012] 1 S.C.R. 572.

[27]

The motion judge concluded that Ontario had
    jurisdiction to hear the respondents equalization and property division
    claims. In her view, the following factors provided Ontario with a real and
    substantial connection to the dispute:

·

The respondent is a Canadian citizen who
    primarily resided in Canada during the marriage and since separation (on either
    separation date put forward by the parties);

·

The respondent claims a beneficial interest in
    an Ontario property. The parties and their children resided in the Elmwood and
    Bevdale Properties as their family homes during the marriage;

·

The appellant regularly visited Ontario each
    year and obtained permanent resident status. In her application for this
    status, she expressed a desire to make Canada her home;

·

There may be unfairness to the respondent if
    Ontario does not assume jurisdiction. Expert evidence, adduced by the
    respondent yet untested by cross-examination, suggested that the respondent is out
    of time to make his claim for property division in China; and

·

Although there are relevant documents and
    witnesses in both China and Ontario, the documents relevant to the trust claim
    would primarily be in Ontario, as would some evidence relevant to determining
    the date of separation.

(b)

The motion judge finds Ontario is the more
    appropriate forum

[28]

The motion judge then went on to address the
    appellants argument that if the court found that Ontario had jurisdiction, it
    should nevertheless
decline to exercise jurisdiction on
    grounds of
forum non conveniens
because China was clearly the more
    appropriate forum. The motion judge disagreed and referenced the following
    considerations:

·

All the witnesses and evidence relating to the
    respondents trust claim would be in Ontario, except for the appellants evidence;

·

The natural forum for a claim to an interest
    in an Ontario property is Ontario;

·

The appellant would be able to present her case
    in Ontario without significant difficulty. While Chinese documents and currency
    values would need to be translated and converted for purposes of a claim in
    Ontario, the parties were able to do this for purposes of the Motion and the
    proceeding unfolded without disruption;

·

If the respondent is successful in asking an
    Ontario court not to recognize or enforce the Chinese divorce, he could then
    proceed with his spousal support claim. Certain relevant documents and
    witnesses would be in Ontario as the respondent spent more time here than in
    China; and

·

If the court declined jurisdiction, the
    respondent may be out of time to pursue a claim for division of marital
    property in China, as demonstrated by the conflicting expert evidence. This
    would represent the loss of a legitimate juridical advantage.

[29]

Accordingly, the motion judge dismissed the
    Motion, permitting the respondent to proceed with his claims in Ontario.

IV.

GROUNDS OF APPEAL

[30]

The appellant raises the following issues on
    appeal in her factum:

1.

Is there a real and substantial connection
    between the parties, the matrimonial claims being litigated, and Ontario?

2.

Is Yunnan Province, China the more appropriate
    forum to determine the claims raised in the respondents Application?

3.

Should this court strike out all or part of the respondents
    Application, leaving only the trust claims concerning the Bevdale Property to
    proceed in Ontario
?

V.

THE LEGAL FRAMEWORK

[31]

Both parties agree that in the absence of a
    statutory rule, the common law conflicts rule of Canadian private international
    law  the real and substantial connection test  determines whether
    jurisdiction exists in Ontario's courts. It is not disputed that the motion
    judge properly referenced
Van Breda
and identified that a real and
    substantial connection must be established primarily on the basis of objective
    factors that connect the legal situation or the subject matter of the
    litigation with the forum. The parties also agree that the motion judge
    properly recognized that, even when an Ontario court assumes jurisdiction, if
    the defendant (or respondent in the Application) establishes that another forum
    is clearly more appropriate for disposing of the litigation, then the court can
    decline to exercise jurisdiction on the grounds of
forum non conveniens
: see
Van
    Breda
,
at para.
    108.

VI.

DISCUSSION

(1)

Is there a real and substantial connection
    between the parties, the matrimonial claims being litigated, and Ontario?

[32]

The appellant argues that the motion judge erred
    in ignoring or misapprehending the facts in concluding that there was a real
    and substantial connection between this matter and Ontario.

[33]

In her factum, the appellant contends that the
    material before the motion judge suggests that the respondent worked in China
    and that his affidavit did not establish that he lived in Canada. She, on the
    other hand, does not live in or carry on business in Ontario; the appellants
    business is based entirely in China, and the respondents employment and
    business activities during the material times were entirely in China.
    Furthermore, the appellant argues that her only connection to Ontario is a
    single encumbered piece of real property (the Bevdale Property) and a bank
    account; by contrast, the appellant owns many assets and owes significant debts
    in China.

[34]

Absent palpable and overriding error or an
    extricable error of law warranting correctness review, deference ought to be
    afforded to the motion judge. In my view, the appellant has not identified any
    extricable errors of law or palpable and overriding error in the motion judges
    analysis on the question of whether Ontario has jurisdiction.

[35]

The motion judge found that the respondent was a
    Canadian citizen and that he resided primarily in Canada during the marriage
    and post separation. I do not accept the appellants submission that the motion
    judge misapprehended the evidence on this point and that there was not a
    shred of evidence that the respondent lived primarily in Canada. The
    respondent presented proof of Canadian citizenship and the respondents
    passport and drivers licence all indicated that he lived at the Elmwood and
    Bevdale Properties. Furthermore, there was evidence before the motion judge
    that he made payments towards the carrying costs of maintaining the properties
    in Ontario. In my view, the motion judge did not err in finding that the
    respondent resided primarily in Canada.

[36]

In
Wang v. Lin
, 2013 ONCA 33, 358
    D.L.R. (4th) 452, this court accepted that in the context of marriage breakdown
    the presumptive connecting factors are necessarily different from those
    identified in
Van Breda
, which was a tort case. This court noted that
    the list of presumptive connecting factors is not closed and the location of
    the real home or ordinary residence should be a presumptive connecting
    factor:
Wang
,
at paras. 46-47; see also
Knowles v. Lindstrom
, 2014 ONCA 116, 118 O.R. (3d) 763, at para. 27, leave to
    appeal refused, [2014] S.C.C.A. No. 161. Therefore, the respondents ordinary
    place of residence was a significant factor to consider in determining
    jurisdiction.

[37]

Furthermore, the motion judge noted that part of
    the respondents claim is an assertion that he has an equitable interest in the
    Bevdale Property. The location of that property is in Ontario. This court has
    held that the location of a property is also a presumptive connecting factor
    sufficient to establish jurisdiction
simpliciter
: Knowles
,

at paras. 21, 24.

[38]

As this court explained in
Knowles
, a single presumptive connecting factor, in the absence of any
    rebuttal of that presumption by the appellant, is sufficient to establish
    jurisdiction under the
Van
    Breda
analysis:
Knowles
,

at para. 24. In this case, the motion judge identified
    that the appellant was a Canadian citizen, ordinarily resident in Canada, and
    that he was advancing a claim on property located in Ontario.

[39]

I would defer to the motion judges conclusion
    that there was a sufficient connection to Ontario to establish jurisdiction
simpliciter
.

(2)

Is Yunnan Province, China the more appropriate
    forum to determine the claims raised in the respondents Application?

[40]

After finding that the Ontario court had
    jurisdiction, the motion judge then considered the appellants argument that
    she should decline to exercise that jurisdiction under the
forum non conveniens

doctrine because China was clearly
    more appropriate for determining the issues in the case. The burden was on the
    appellant to show why jurisdiction should not be exercised:

Van Breda
, at para. 103.

[41]

The motion judges conclusion on the
forum non conveniens
issue is properly viewed as an exercise in judicial discretion and
    this court will defer to that assessment, absent an error in principle, a
    material misapprehension of the evidence, or if, in the circumstances, the
    exercise of that discretion is unreasonable:
Knowles
,
at para. 40.

[42]

In essence, the doctrine focuses on the
    circumstances of the case, and its purpose is to ensure that both parties are
    treated fairly and that the process for resolving their litigation is
    efficient:
Van Breda
, at para. 105. The factors that come into play in considering the
    question of
forum non conveniens
depend on the context and may include
    the locations of parties and witnesses, the cost of transferring the case to
    another place, the impact of a transfer on the case or a related case, the
    possibility of conflicting judgments, problems relating to recognition or
    enforcement of judgments, and the relative strengths of the connections of the
    parties:
Van Breda
, at para. 110.

[43]

Loss of juridical advantage to one or the other
    of the parties is also a relevant consideration:
Knowles
, at para. 43. Even then, however, comity and an attitude of respect
    for the courts and legal systems of other countries may be in order:
Van Breda
, at para. 112. A court must not lean too instinctively in favour of
    its own jurisdiction:
Van
    Breda
, at para. 112.
[44]

In my view, the motion judge erred in principle
    in her analysis on the issue of
forum non conveniens
. I find this for
    several reasons.
[45]

First, the motion judge ignored a very important
    factor  the existence of three signed agreements waiving the respondents
    entitlement to the assets and properties in China. The Divorce Agreement, dated
    March 26, 2018 (translated), says, the [appellant and respondent] acknowledged
    that issues pertaining to assets, financial claims and debts have been resolved
    on their own through negotiations. The appellant claims that several key
    agreements have come out of the parties private negotiations, including:
·

The Supplementary Agreement to the Divorce
    Agreement, dated March 26, 2018, which states that the respondent
    will move out and waive rights to any property or assets (English
    translation). It further stipulates that [a]ll corporation or companys
    shares [sic] and personal assets under either the respondent or appellants
    name belong to the appellant, including the real estate property in Canada
    purchased by the appellant before the marriage (English translation).
·

The Marital Assets Agreement, dated March 11,
    2014, which states that the five properties in China being purchased are in the
    appellants name and the parties agree that she alone owns them and the
    respondent has no interest in them.
·

The Letter of Commitment, dated May 12, 2015,
    which states that the respondent makes the sincere promise to forego ownership
    in 41 properties he co-owned with the appellant (English translation).
[46]

As this court stated recently in
Krebs v. Cote
, 2021 ONCA 467, 459 D.L.R. (4th) 730, at para. 19, [p]arties
    should be encouraged to enter agreements to define their rights and
    obligations. Jurisprudential shoals upon which an agreement may founder
    unnecessarily do not advance that goal.
[47]

To this end, under Ontario law, there is a high
    bar to set aside a domestic contract that complies with the enforceability
    requirements of s. 55(1) of the
FLA
: namely, that it is made in
    writing, signed by the parties and witnessed.
[48]

In this case, to proceed with his claims for
    equalization or an interest in the properties covered by the agreements, the
    respondent would first have to seek to set those agreements aside. The
    respondent would also have to address the appellants position that there was a
    loan repayment agreement executed in 2019 that settled some of the matrimonial
    claims. In Ontario, of course, a claim for equalization or support under the
FLA
would engage the factors set out at s. 56(4) of the Act for setting aside
    a domestic agreement.
[49]

Section 56(4) of the
FLA
provides that,
A court may, on application, set aside a
    domestic contract or a provision in it,
(a) if a party failed to disclose to the other
    significant assets, or significant debts or other liabilities, existing when
    the domestic contract was made;
(b) if a party did not understand the nature
    or consequences of the domestic contract; or
(c) otherwise in accordance with the law of
    contract.
[50]

There was also evidence before the motion judge
    that similar provisions exist in China to set aside unfair contracts. The
    opinion letter tendered by the appellant on the Motion states that, according
    to Article 54 of the Contract Law of Peoples Republic of China, a valid
    contract can be set aside where there is a significant misunderstanding, or
    when one party uses fraudulent or coercive means or takes advantage of the
    other party while they are in a vulnerable state, not unlike Ontario.
[51]

In this way, the preliminary question of whether
    the agreements could be set aside, was in my view central to assessing the more
    appropriate forum. Respectfully, the motion judge erred in considering the
    respondents claims in the Bevdale Property  and his potential entitlements to
    share in some way (whether by way of equalization or a direct property
    interest) in the appellants Chinese properties  without considering the
    question of setting aside the divorce and/or the agreements about property. With
    the agreements as the proper focus, and given that the agreements were all
    executed and witnessed in China, in the Chinese language, it becomes clear that
    China is the most appropriate forum for the dispute.
[52]

Second, the motion judges reasons state that
    the natural forum for the claim to the Bevdale Property is here in Ontario. As
    set out above, the location of the property is a factor that carries
    considerable weight on the jurisdiction inquiry. However, the motion judges
    focus on the Bevdale Property overwhelmed her analysis of
forum non conveniens
. In this case, the far more valuable property interests are in
    China and are governed by contracts in China; there are multiple agreements
    between the parties that are, as mentioned, written in the Chinese language and
    in Chinese currency. These agreements concern multi-million-dollar business
    interests and properties there. In contrast, the Bevdale Property is worth
    considerably less. The Bevdale Property should not have been the focal point of
    the analysis and it certainly was not the natural forum for the division of
    property claim viewed as a whole.
[53]

Third, the motion judge held that the respondent
    was not claiming any property interest in properties or corporations located in
    China, only in the monetary payment that would occur after the equalization
    calculation based on properties or corporations in China. However, this factor
    assumes that an equalization payment would be the only remedy under Chinese
    law. There was no evidence that equalization rather than distribution of
    properties would be the remedy in China and the motion judge engaged in
    speculation that this would be the case.
[54]

Finally, the motion judge erred in her analysis
    in terms of the respondents loss of a legitimate juridical advantage. The motion
    judge identified the juridical advantage as the respondents ability to pursue
    his claim for property division in Ontario because he may be out of time in
    China. On the Motion, the respondent produced an opinion from a lawyer stating
    that, in China, where a man and woman are divorced by joint divorce and the
    parties have a change of mind over the issue of property division, they have
    one year from the date of the divorce to request to modify or revoke the
    property division agreement. The respondents legal opinion concludes that,
    based on this rule, litigation concerning division of property by joint divorce
    needs to be filed within one year.
[55]

For her part, the appellant disagreed that the
    respondent was out of time in China. She also produced an expert opinion that
    stated that the respondent could seek redress in a Chinese court to amend or
    void the Supplementary Agreement if he could demonstrate that he was under a
    serious misunderstanding, or there was an appearance of unfairness, or that he
    was defrauded, coerced or taken advantage of while in a vulnerable state that
    caused him to erroneously express his intention. Faced with this conflicting
    evidence, the motion judge nevertheless held that if Ontario declined
    jurisdiction, the respondent could lose a legitimate juridical advantage
    because he was out of time in China.
[56]

I acknowledge that there is some support for the
    respondents position that an expired limitation period in the other
    jurisdiction would make Ontario the more juridically advantageous forum for him
    as plaintiff, and that a juridical advantage to a plaintiff in Ontario weighs
    against staying the proceedings: see
Garcia v. Tahoe Resources Inc.
, 2017
    BCCA 39, 407 D.L.R. (4th) 651, at para. 91, leave to appeal refused, [2017]
    S.C.C.A. No. 94.
[57]

However, some courts have ruled that the
    plaintiffs failure to bring a claim within the time limit militates against
    attaching any weight to the juridical advantage factor because, in some
    circumstances, a plaintiff could successfully oppose a defendants
forum non conveniens
application in one jurisdiction by simply allowing the limitation
    period to expire in the other jurisdiction:
Tahoe
,
    at para. 91. It seems, then, that the weight attached to the juridical
    advantage factor when considering the expiration of a limitation period in
    another jurisdiction is a case-specific inquiry that turns on the facts:
Tahoe
,
    at para. 92.
[58]

In this case, the motion judge held that the limitation
    period weighed in the respondents favour. There was no case-specific inquiry in
    reaching that conclusion. As noted, this case involves the
potential
expiry of a limitation period; the
    respondents evidence on this point does not lead to this conclusion with any
    certainty. The motion judge did not resolve an inconsistency between the facts
    of the case and the facts relied upon by the respondents expert opinion. The
    opinion regarding the one-year time limit concerned parties who change their
    mind over property division. The respondents evidence, however, was that he
    was misled in terms of the Divorce Agreement and was not aware of the existence
    of a Supplementary Agreement. He did not argue that he had changed his mind
    about the agreements. On that evidence, it becomes less clear that the
    respondent is, in fact, out of time in China.
[59]

Furthermore, the respondent testified during
    questioning that he has never thought of going to court in China to deal with
    property division. This fact does not help the respondent claim the juridical
    advantage of an Ontario action: see
Hurst v. Société Nationale de L'Amiante
, 2008 ONCA 573, 93 O.R. (3d) 338, at paras. 51-52.
[60]

In summary, the motion judge erred in principle
    in her analysis under
forum non conveniens
. In my view, the appellant has
    demonstrated that the balance tips heavily in favour of China as the clearly
    more appropriate forum for resolving the parties property issues and the
    motion judge should have declined to exercise jurisdiction. Accordingly, I
    would allow this ground of appeal.
(3)

Should this court strike out all or part of the
    respondents Application, leaving only the trust claims concerning the Bevdale
    Property to proceed in Ontario?
[61]

The appellant also argued that this court should
    consider severing the respondents trust claim over the Bevdale Property,
    allowing it to proceed in Ontario while striking the remainder of the claims.
[62]

As I have already decided that China is the more
    appropriate forum to hear the claims arising from the parties marital
    breakdown, this issue is now moot.
[63]

However, I do make the following observations.
    Severing the specific claims in relation to the Bevdale Property appears to be
    contrary to some of the factors identified by the Supreme Court of Canada as
    relevant to the
forum
    non conveniens
analysis in
Van Breda
, at paras. 105, 110, including a desire to avoid a multiplicity of
    legal proceedings and avoiding conflicting decisions in different courts.
[64]

Severance of the trust claim is also potentially
    problematic because this court has made clear that claims of unjust enrichment
    are rarely appropriate to address financial issues after the breakdown of a
    marriage and a court would, in all likelihood, find that equalization of all
    net family properties under the legislation would provide a full remedy to any
    unfairness that would otherwise arise from different contributions to family
    assets:
McNamee v.
    McNamee
, 2011 ONCA 533, 106 O.R. (3d)
    401, at para. 66;
Martin
    v. Sansome
,

2014 ONCA 14, 118 O.R. (3d) 522,
    at para. 64.
VII.

CONCLUSION
[65]

For these reasons, I would allow the appeal and
    stay the respondents Application.
[66]

I would award the appellant her costs of the
    appeal in the agreed amount of $13,000 inclusive of disbursements and
    applicable taxes.
Released: September 29, 2021 K.F.
S.
    Coroza J.A.
I
    agree. K. Feldman J.A.
I
    agree. David M. Paciocco J.A.

[1]

I note that in a recent Superior Court decision,
Kore Meals

LLC v.
    Freshii Development LLC
, 2021
    ONSC 2896, 156 O.R. (3d) 311, E.M. Morgan J. observed that the world of
    videoconference hearings may have implications for the relevance of
forum non conveniens
.
I leave that issue for another day. In the present case,
    where the competing forums involve different languages and different time zones,
    the choice of forum remains relevant.


[2]

The evidence before the motion judge was that CAD$1 equals
    approximately 5.07 RMB.
