Zhang v. Yang, 2013 NLCA 54

Date: 201308 15 Docket: 13/62 Citation: Zhang v. Yang , 2013 NLCA 54 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : YIFAN ZHANG APPELLANT AND : GUANG YANG RESPONDENT Coram: Rowe, White and Hoegg JJ.A. Appeal Heard: August 15, 2013 Judgment Rendered: August 15, 2013 Memorandum of Disposition filed: August 15, 2013 Counsel for the Appellant: Self Represented Counsel for the Respondent: Self Represented MEMORANDUM OF DISPOSITION Hoegg J.A.: [ 1 ] Yifan Zhang and Guang Yang jointly appeal the judgment dated July 16, 2013 granting their divorce. [ 2 ] Ms. Zhang and Mr.

Yang jointly filed an application for a divorce Judgment on May 28, 2013. Shortly thereafter they decided they did not want to divorce. Ms. Zhang contacted inquiries@Supreme.Court.nl.ca asking to discontinue their divorce application on

June 6, 2013, and was advised to contact familyinquiries@Supreme.Court.nl.ca about her case. She emailed “family inquiries” on June 7, 2013, advising that she and her husband no longer wanted to divorce. She received no reply. Ms. Zhang assumed that their application for divorce was halted until she and her husband received the divorce Judgment in the mail shortly after it was granted. [ 3 ] Ms. Zhang’s and Mr. Yang’s May 28, 2013 Application for Judgment was accompanied by a jointly sworn Affidavit, a sworn Originating Application and a Divorce Agreement, all of the same date.

Paragraph two of the Originating Application sets out the grounds on which a divorce can be sought. There are two options: ground “a” is the ground stating “we have lived separate and apart for at least one year preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding”, and ground “b” is the ground addressing adultery and physical or mental cruelty. In Ms. Zhang’s and Mr.

Yang’s application, ground “a” is ticked. [ 4 ] Paragraph six of the Originating Application requires the parties to provide particulars of the marriage to support the request for judgment. In subsection (

c) of that paragraph, the applicants wrote that they married on April 28, 2012 at Happy Valley-Goose Bay, NL and that they ceased co-habitating on April 29, 2013. This sworn evidence indicates that the couple lived separate and apart for a period of less than three months before their desk divorce was granted. I also note that in paragraph eight of the application, both Ms. Zhang and Mr.

Yang state that they live at 737C Chatham Street, Goose Bay as of the date of the application. [ 5 ] When parties wish to divorce on the ground of marriage breakdown, they must prove that they have lived separate and apart for at least one year between the date they ceased co-habitating and the date of the commencement of the divorce proceeding ( Section 8(2) (

a) of the Divorce Act , RSC 1985, c. 3(2 nd Supp.)). If a sworn and uncontested Originating Application and supporting documentation state that the parties have lived separate and apart for over a year between the date they ceased co-habitating and the date of the commencement of the proceeding, a judge may grant the divorce without the parties having to appear. This is called a desk divorce. In this case, the sworn information is that the parties were separated less than three months prior to July 16, 2013. Accordingly, the evidence does not meet the requirement of

section 8 of the statute. [ 6 ] There is another discrepancy in the documentation provided to the Court at Goose Bay. Ms. Zhang and Mr. Yang have one child, Jiayi Yang, who was born at Goose Bay on August 20, 2012. In the Application for Judgment, it is stated that Mr. Yang will pay $1000 per month for child support; in the Divorce Agreement, it is stated that Mr. Yang will pay $1500 per month to Yifan Zhang as support for Jiayi Yang “until Jiayi Yang married”.

While this discrepancy is not material to the grounds for divorce, it serves as an alert that further inquiry of the parties may be warranted and that a desk divorce may not be appropriate. [ 7 ] In the circumstances, the divorce judgment of July 16, 2013 must be set aside. [ 8 ] Of some concern are the facts of Ms. Zhang’s and Mr. Yang’s desire to withdraw their application for divorce. Parties wishing to withdraw a court proceeding have a positive obligation to ensure that their matter is indeed withdrawn, and ought not to assume same in the absence of confirmation.

The record shows that the Court in Goose Bay was not advised of Ms. Zhang’s correspondence, and that it was not communicated to the judge. Such failures to follow up make for unnecessary effort and expense, if not trouble, for all concerned. [ 9 ] In the result, the Judgment dated July 16, 2013 granting the divorce of Yifan Zhang and Guang Yang is set aside. The parties may attend at the Supreme Court of Newfoundland and Labrador at Goose Bay and retrieve their original marriage certificate. [ 10 ] There is no order as to costs. __________________________________ L. R. Hoegg J.A.