COURT OF APPEAL
    FOR ONTARIO

CITATION: Middleton Estate v. Middleton, 2020 ONCA 552

DATE: 20200904

DOCKET: C65585

Feldman, van Rensburg and Thorburn JJ.A.

IN THE MATTER OF
    THE ESTATE OF EVA ROSEMARY MIDDLETON, deceased

BETWEEN:

Julia Gurr
    Lacasse,

in her capacity as Estate
    Trustee of the Estate of Eva Rosemary Middleton

Applicant (Respondent)

and

Linda Middleton

Respondent (Appellant)

Robert J. Reynolds, for the appellant

Charles Hammond and Jennifer Ng, for the respondent

Heard: June 16, 2020 by video conference

On appeal from the judgment of Justice Patrick Hurley of
    the Superior Court of Justice, dated June 4, 2018, with reasons reported at 2018
    ONSC 3461, 38 E.T.R. (4th) 215.

REASONS
    FOR DECISION

A.

INTRODUCTION

[1]

The issue on this appeal is whether the trial judge made any reversible
    error in arriving at his conclusion that the first of two promissory notes
    reflected the true intention of the deceased, Eva Middleton: the first note provides
    that a loan to her daughter, the appellant, Linda Middleton, was repayable on her
    death, while the second provides that the loan be forgiven on death.

[2]

The appellant claims the trial judge erred by:

a)

rejecting the evidence of Joyce Willard, a friend of the appellant and
    Eva Middleton who witnessed the signing of the notes; and

b)

finding that the December 12, 2014 email purportedly sent by Eva
    Middleton to the appellant was never in fact sent.

[3]

For the reasons that follow, we dismiss the appeal. There was no
    reversible error in the trial judges conclusion that the first promissory note
    reflected the intention of Eva Middleton with respect to the loan, and that
    monies advanced to the appellant, Linda Middleton, were repayable to the
    estate.

B.

FACTS

[4]

Eva Middleton died on June 5, 2015. The office of her lawyer, Ken
    Menlove, provided the estate trustee (the respondent, who is her great-niece)
    with her will and a promissory note dated July 16, 2014 (the first promissory
    note). The promissory note was for the sum of $142,000 and is in relation to a
    loan that Eva Middleton advanced to her daughter, the appellant, after the note
    was signed.

[5]

The appellant provided the estate trustee with a second promissory note dated
    July 22, 2014, which she said she found at Eva Middletons condominium, and which
    provided that the loan would be forgiven upon Eva Middletons death (the
    second promissory note). The appellant told the estate trustee that this reflected
    the true agreement between herself and her mother. She later also provided a
    copy of an email from her mother, dated December 12, 2014, that stated that the
    loan was cleared upon [her] death.

[6]

The estate trustee brought an application seeking the opinion of the
    court as to which of the two promissory notes was valid and enforceable. The
    application was directed to proceed to trial.

[7]

There were six witnesses. The appellant testified about how the two
    promissory notes came about. It was her evidence that the purpose of the loan from
    her mother was to assist in her purchase of the interest of her former spouse
    in their cottage property. She thought the advance would be a gift. However,
    when Eva Middleton came to visit the appellant in Picton from her home in
    Georgetown in July 2014, and before the money was advanced, Eva Middleton brought
    with her a draft promissory note prepared by her Picton lawyer, Jacob Walinga. The
    note provided for monthly payments of $600, with the first payment due August
    20, 2014 and no interest until maturity (the earlier of July 20, 2019 or the
    date of the sale of the cottage property).

[8]

The appellant testified that after she and her mother discussed the
    terms, she revised the draft promissory note to add the mortgage will be
    forgiven upon the death of the Lender, providing it is in good standing at the
    time of death", and deleting the maturity date of the loan. She sent the
    revised draft to Mr. Walinga by fax, noting that her mother would call him that
    afternoon for his approval before signing the note. After Eva Middleton
    discussed the matter further with Mr. Walinga, the appellant further revised
    the draft, removing the provision for forgiveness of the loan upon her mothers
    death. She faxed this version to Mr. Walinga, as well as another draft that included
    the words and shall run for a term of five years. Ultimately the appellant revised
    the draft promissory note to add that the note may be re-negotiated under any
    Mutually Agreeable Terms. The appellant said she understood from the
    conversation between her mother and Mr. Walinga that forgiveness of the note
    would be included in Eva Middletons will. It was on this basis that the
    appellant signed the first promissory note, with Joyce Willard as witness. Eva Middleton
    had met Ms. Willard through the appellant and asked her to witness the note. The
    appellant gave the signed promissory note to her mother before Eva Middleton returned
    to her home in Georgetown.

[9]

The appellant testified that her mother subsequently called and told her
    she was afraid of her sisters reaction if the forgiveness of the loan was in her
    will, and instead she had decided to include it in the promissory note. Accordingly,
    the appellant prepared the second promissory note (which was the same as the
    note she had first faxed to Mr. Walinga). Her mother called Ms. Willard, and again
    asked her to witness the appellants signature. The appellant signed the second
    promissory note on July 22, 2014, witnessed by Ms. Willard, and she testified
    that she gave it to her mother in Georgetown on September 9, 2014.

[10]

In
    October 2014, Eva Middleton moved to a condominium she had purchased in Picton.
    The appellant and her daughter provided care and companionship to Eva Middleton.
    Two months before her death, Eva Middleton signed a codicil to her will leaving
    her condominium and its contents to the appellant, as well as a document
    providing that a loan to her granddaughter would be considered paid in full
    upon her death. Neither of these transactions was challenged by the estate
    trustee.

[11]

The
    appellant relied on two pieces of evidence as corroborative of her evidence
    that the second promissory note reflected her mothers true intention: a paper
    copy of an email dated December 12, 2014, after Eva Middleton had received her
    terminal diagnosis, in which Eva Middleton confirmed to the appellant that the
    loan would be forgiven on her death; and the affidavit evidence of Ms. Willard,
    that, before she witnessed the first promissory note, Eva Middleton told her
    that she was trying to figure out how to keep her personal wishes out of her
    will and that there might be a second note (the inference being that the second
    note achieved her stated purpose).

[12]

Ms.
    Willard also testified at trial. Ms. Willard did not read the contents of either
    promissory note.  She knew the first signing was of a promissory note but was
    not privy to the details.  She swore that:

Eva told me that she and her lawyer had also prepared another
    Promissory Note as she was trying to figure out how to leave her personal
    wishes out of her Will. She said that I may be asked to witness the other
    version once she had thought it all through.

Eva called me about a week later to ask me to witness the
    replacement Note that she mentioned and I did so.

[13]

Ms.
    Willard testified that Eva Middleton told her there might be a second note, she
    wanted to think everything through but there was no discussion about gifts to
    children.

[14]

Jacob
    Walinga testified about the promissory note he had prepared and his advice to
    Eva Middleton. Referring to notes he made on July 15, 2014, he testified about
    the fax he had received from the appellant attaching a revised draft, and his
    conversation with Eva Middleton, where she indicated that she had not agreed to
    the change and wanted it out. He testified that this was the only time the
    issue arose, and at no point did Eva Middleton indicate to him that she wished
    to forgive the loan upon her death. He said that after he had received the
    revised note from the appellant with the reference to forgiveness of the loan
    removed, he was concerned that it still did not contain the maturity date of
    July 20, 2019 and he left a message on Eva Middletons telephone suggesting she
    should use the promissory note he had drafted. He confirmed this advice by
    letter. Mr. Walinga said there was no discussion with Eva Middleton about wanting
    to forgive the loan in a promissory note or about including forgiveness of the
    loan in her will.

[15]

Eva
    Middletons lawyer in Picton, Mr. Menlove, testified that he met with Eva Middleton
    in December 2014 when she needed a local lawyer who could assist with her
    estate. She brought with her a will prepared by Mr. Walinga in September 2014 and
    the first promissory note. Mr. Menlove stated that it was his understanding
    from their discussion that Eva Middleton had loaned her daughter, the
    appellant, money and that this was a debt to be repaid upon her death. He
    confirmed that there was no discussion about any other terms or any paperwork
    other than the note itself.

[16]

Eva
    Middletons grandson, Charles Simpson, testified that he had purchased his
    grandmother's iPad and helped her set up email on that device. He produced
    copies of a number of emails he had received from his grandmother and noted
    that her emails to him usually concluded with the words Sent from my iPad but
    that the December 12, 2014 email had no such wording.

[17]

The
    estate trustee testified about the timing of her receipt of the promissory
    notes and the December 12, 2014 email, and she confirmed that the estate had
    not challenged the codicil and forgiveness of the mortgage in favour of the
    appellants daughter.

C.

the TRIAL Judges REASONS

[18]

The
    trial judge concluded that only the first promissory note was valid and
    enforceable. He relied on the testimony of the two lawyers, which he found to
    be credible and reliable, to find that Eva Middleton never changed her mind
    about forgiving the loan, did not receive the second promissory note, and did
    not send the December 12, 2014 email to the appellant. He reasoned that:

Mr. Walinga's testimony, which I have no hesitation in
    accepting, is that he did not prepare a second promissory note because Eva was
    "trying to figure out how to leave her personal wishes out of her
    Will" as Ms. Willard deposed in her affidavit sworn June 2, 2016. Mr.
    Walinga struck me as a careful solicitor and he prepared comprehensive notes of
    his discussion with Eva on July 15, 2014. If there had been a second promissory
    note prepared by him for the purpose described by Ms. Willard, he would have
    said so during his testimony and also recorded that in his notes.

There may have been a conversation between Eva and Ms. Willard
    about a second promissory note because of Mr. Walinga's advice to Eva in his
    telephone message of July 15 and his reporting letter of July 22, 2014 that he
    was concerned about the potential confusion with respect to the maturity date
    and that the original promissory note which he had prepared should be used in
    order to clear up this issue. This would explain why Eva might have spoken to
    Ms. Willard about another promissory note.

Given that Mr. Walinga was her long time solicitor, her
    consultations with him in June and July about the promissory note and her
    execution of a new Will on September 2, 2014, it is passing strange that Eva
    withheld from him that she had changed her mind and a new promissory note had
    been prepared and signed by Linda.

The most compelling evidence that Eva did not change her mind
    and that Linda did not give her promissory note 2 was the testimony of Mr.
    Menlove. Eva gave him promissory note 1 with her Will. Any argument that she
    could have been confused over the promissory notes and forgot that she had
    received a second note which superseded the first one founders on Mr. Menloves
    evidence that, at their meeting in December 2014, she confirmed that the loan
    remained payable on her death.

I consider Mr. Menlove's testimony both credible and reliable.
    Eva was an elderly client he did not know well, who met with him to discuss important
    legal documents prepared by another lawyer. He did what any competent lawyer
    would do in the circumstances - talk to his new client about their contents and
    ask if her wishes remained the same.

There are circumstantial
    guarantees of trustworthiness; the primary ones are the contemporaneous notes
    made by Mr. Walinga and the fact that the documents were given to Mr. Menlove
    for safekeeping [Citations omitted].

[19]

The
    trial judge rejected the appellants account of the circumstances surrounding
    the signing of the promissory notes. He rejected the evidence that she relied
    on as confirmatory. Although he accepted that Ms. Willard had witnessed the
    signing of the two promissory notes, he concluded that she had been mistaken
    about the conversations she claimed she had with Eva Middleton about the
    notes.  He also found that Eva Middleton did not know Ms. Willard well at the
    time, so it was improbable that she would have discussed such a private matter
    in detail with Ms. Willard. He also noted that Mr. Walinga testified that there
    were changes to the promissory note: changes respecting the payment of interest
    on the loan, that had nothing to do with forgiveness of the loan.

[20]

As
    for the December 12, 2014 email, the trial judge did not accept that Eva Middleton
    had sent it. He gave a number of reasons for this conclusion, including that
    the email was unnecessary if both knew about the existence of the second
    promissory note; the email is dated nine days after Eva Middleton met with Mr.
    Menlove and told him that the promissory note would form part of her estate;
    the email was not included with the appellants affidavit in response to the
    application; and that the email would likely have stated that it came from Eva Middletons
    iPad if she had composed it.

D.

THE ISSUES ON APPEAL

[21]

The
    appellant claims the trial judge erred in his assessment of the evidence that
    corroborated her account of Eva Middletons intentions and in particular, (1) in
    rejecting Ms. Willards evidence about what Eva Middleton said in respect of
    the second promissory note, and (2) in his assessment of the evidence about the
    December 12, 2014 email, leading to his conclusion that Eva Middleton did not
    send the email. The appellant submits that these errors were central to the
    trial judges reasoning and conclusion that only the first promissory note was
    valid and enforceable. As such, the judgment must be set aside and a new trial
    ordered.

[22]

In
    support of her second argument, the appellant seeks to introduce fresh evidence
    on appeal. The fresh evidence consists of affidavits of the appellant, her
    trial counsel, and her daughter to contradict certain evidence at trial
    concerning the December 12, 2014 email. The appellant says that, once the fresh
    evidence is admitted, her evidence concerning the email ought to be accepted.

E.

ANALYSIS

(1)

The Trial Judges Treatment of Ms. Willards Evidence

[23]

The
    appellant asserts that the trial judge erred in his treatment of the evidence
    of Joyce Willard that would have supported her version of the events, in
    particular that the second promissory note was signed after her mother had
    decided that the note would be forgiven upon her death.

[24]

To
    be clear, Ms. Willard witnessed the signing of both promissory notes at Eva Middletons
    request but she did not read either of them. Nor did she have any discussions
    with Eva Middleton about gifts to her children.  The only relevance of Ms.
    Willards evidence is to address the issue of what Eva Middleton believed the second
    note said and any conversation she may have had with Ms. Willard about why there
    was a second note.

[25]

However,
    even if the trial judge had accepted Ms. Willards evidence, there was nothing
    Eva Middleton said to Ms. Willard that indicated that Eva Middleton intended to
    forgive the loan on her death or that the new note contained such a provision.
    Nor could what she said have overcome the direct evidence of Eva Middletons
    intention. That evidence was Eva Middletons subsequent actions in delivering
    her will and the first note to the lawyer who would handle her estate, and
    confirming her intentions to him.

[26]

We
    see no reversible error in the trial judges conclusions on this issue. The
    credibility and reliability of the evidence of the witnesses is the province of
    the trial judge to which this court owes deference.

(2)

The December 12, 2014 Email

[27]

The
    appellant proposes to introduce fresh evidence to prove that one of the emails
    that Charles Simpson produced to compare with the December 12, 2014 email  an
    email addressed to him and dated December 17, 2014 - could not have been sent
    by Eva Middleton from her iPad that day and must have been falsified by Charles
    Simpson. According to the appellant, the proposed fresh evidence confirms that
    Eva Middleton was in the hospital on the date the email was sent, and suggests
    that she did not have her iPad with her.

[28]

The
    appellant contends that this evidence is important, because it means that
    evidence the trial judge relied on to conclude that Eva Middleton did not send
    the December 12, 2014 email to her was itself falsified. She asserts that it
    was only when she was going through her mothers papers that she realized that
    Eva Middleton had been in the hospital at the time of the December 17, 2014
    email. The appellant contends that it had never occurred to her during the
    trial that Charles Simpson might have been making things up.

[29]

This
    evidence does not meet the requirements for admitting fresh evidence on appeal
    as set out in
Sengmueller v. Sengmueller
(1994), 17 O.R. (3d) 208
    (C.A.), at pp. 210-11. The appellant knew before the hearing commenced that Charles
    Simpson would be testifying about Eva Middletons emails. Indeed, she was
    provided with copies of the emails that Charles Simpson had exchanged with his
    grandmother and advised that the emails would be tendered to demonstrate that
    the December 12, 2014 email was fabricated by the appellant. The appellant was
    asked whether she wished to proceed in the face of this new allegation, and she
    agreed to proceed without an adjournment.

[30]

The
    fact that Eva Middleton was in the hospital on December 17, 2014 is information
    that was available to the appellant before and at the trial  Eva Middleton was
    staying at her home, and the appellant testified that her mother was very sick,
    and went to the hospital the day after the December 12, 2014 email. Indeed, the
    evidence at trial was that Eva Middleton was in and out of the hospital for the
    month of December. The appellant and her counsel had the opportunity to
    question the authenticity of the emails tendered by Charles Simpson at the
    trial. The fact that they may not have turned their minds to the issue they now
    raise does not justify the admission of the proposed fresh evidence.

[31]

In
    any event, the admission of the proposed fresh evidence would not have changed
    the outcome of the trial. Even had the trial judge accepted the December 12,
    2014 email as a genuine message from Eva Middleton to the appellant, there
    could have been many explanations for it in the context of her illness.  As
    with Ms. Willards evidence, sentiment expressed vaguely in an email could not displace
    the only direct evidence of Eva Middletons intention with respect to the loan
    and her estate, which was her delivery, just a couple of weeks earlier, of the
    first promissory note and her will to Mr. Menlove.

[32]

Even
    if Eva Middleton had told the appellant that her intention was to forgive the
    loan on her death, based on the evidence that was available, the appellant was
    not able to prove that intention at trial in the face of her mothers act of
    relying on the first note by giving it to her lawyer.

(3)

The Trial Judges Assessment of Eva Middletons Intention

[33]

In
    addition to the errors alleged above, the appellant contends that the trial
    judge erred in his assessment of the evidence, pointing to his failure to
    consider the possibility that Eva Middleton may have been confused or mistaken
    when she met with Mr. Menlove in December 2014, and that she may have given him
    the wrong instructions.

[34]

Contrary
    to the appellants submission, the trial judge specifically addressed the
    appellants suggestion, in argument, that Eva Middleton simply forgot that she
    had received a second note which superseded the first one. Eva Middleton
    deposited the documents with Mr. Menlove for safekeeping so that her estate
    plan would be carried out. Mr. Menlove reviewed the contents of those documents
    with her and confirmed that her wishes remained the same. It was not suggested
    to Mr. Menlove that Eva Middleton had been confused when she met with him. Nor
    was there any other evidence at trial that would have supported this inference.
    The trial judge was entitled to conclude that Eva Middleton had accurately
    conveyed her wishes to Mr. Menlove when she brought the first promissory note
    and will to him and they met about her estate.

F.

CONCLUSION

[35]

For
    these reasons, the appeal is dismissed.

[36]

In
    accordance with the parties' agreement on costs, the respondent, as the successful party, is entitled to costs of $15,000 for the appeal and a further $10,000 for the fresh evidence motion plus disbursements and applicable taxes on both amounts.

K.
    Feldman J.A.

K. van
    Rensburg J.A.

J.A. Thorburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mudronja v. Mudronja, 2020 ONCA
    569

DATE: 20200911

DOCKET: C67802 & M51619

van Rensburg, Pardu and Huscroft
    JJ.A.

BETWEEN

Eddy
    Mudronja

Applicant (Appellant/
Respondent by way of cross-appeal/
Moving Party)

and

Marijana Mudronja

Respondent (Respondent/
Appellant by way of cross-appeal/
Responding Party)

Evelyn K. Rayson, for Eddy Mudronja

Avneet Virk, for Marijana Mudronja

Heard: in writing

On
    appeal from the order of Justice Kofi N. Barnes of the Superior Court of
    Justice, dated November 25, 2019, with reasons reported at 2019 ONSC 6811.

REASONS
    FOR DECISION

[1]

Each party appeals from the order of the motion judge, Barnes J.,
    settling amounts owing pursuant to a judgment of Seppi J., as varied on consent
    in the order of Andr
é
J.

[2]

Mr. Mudronja also seeks leave to appeal from the award of costs against
    him by Barnes J.

[3]

The parties married in 1986. They are divorced.
    After a trial in 2014, Seppi J. ordered Mr. Mudronja to pay Ms. Mudronja an
    equalization payment of nearly $1.8 million. Seppi J. also ordered that he pay
    her retroactive lump sum child support of $150,000, retroactive lump sum
    spousal support of $136,760 and periodic spousal support of $7,500 per month
    until the equalization and retroactive support was fully paid. Seppi J. ordered
    post-judgment interest calculated at three percent and awarded costs in favour
    of Ms. Mudronja.

[4]

Mr. Mudronja did not make the payments required
    by the judgment. In 2015, André J. issued a consent order varying some aspects
    of Seppi J.s order, including that Ms. Mudronja would purchase Mr. Mudronjas
    interest in the matrimonial home. Mr. Mudronja was ordered to pay $322,000 to
    comply with the trial costs order in favor of Ms. Mudronja. André J.s order
    provided that interest on payments in default under that order would be
    calculated at two percent.

[5]

In 2018, Ms. Mudronja brought a motion for
    financial disclosure to try to enforce the judgment in her favor and Mr.
    Mudronja brought a motion requesting the courts direction regarding credits to
    reduce the outstanding equalization payment and interest owed. André J.
    consolidated the motions and issued another order in January 2019, ordering Mr.
    Mudronja to pay, by July 1, 2019, $1.3 million towards the equalization payment
    judgment of 2014 and the $12,000 that remained unpaid on the costs awarded by
    Seppi J. to Ms. Mudronja. By July 1, 2019, Mr. Mudronja had done both. The
    remaining matters were adjourned to a hearing in July 2019.

Decision Below

[6]

The motion judge, Barnes J., ordered that Mr.
    Mudronja make several payments to Ms. Mudronja. The motion judge accepted Ms.
    Mudronjas calculation of the outstanding equalization payment and
    post-judgment interest, totalling $266,907.79. The motion judge rejected Mr.
    Mudronjas position that his monthly periodic spousal support payments of
    $7,500 should be credited against the equalization payment or against the post-judgment
    interest on the outstanding equalization payment. The motion judge also ordered
    that Ms. Mudronja pay Mr. Mudronja retroactive child support, to be set off
    against the outstanding equalization and post-judgment interest payment that Mr.
    Mudronja was ordered to pay his former wife.

Mr. Mudronjas Grounds of Appeal

[7]

Mr. Mudronja raises two arguments on appeal. He
    submits that the motion judge erred in calculating post-judgment interest on
    the equalization payment, both by calculating interest on an amount that Mr.
    Mudronja disputed and by applying the rate specified in the judgment of Seppi.
    J, as opposed to the rate stipulated in the later order of André J. Second, he
    argues that the periodic spousal support of $7,500 paid to Ms. Mudronja should have
    been credited against the post-judgment interest accruing on the equalization
    payment.

[8]

We do not accept these arguments. The hearings
    before Barnes J. and André J. were in the nature of proceedings to enforce
    compliance with the judgment of Seppi J. Just because Mr. Mudronja disputed
    that he owed further funds on the equalization payment or sought a reduction in
    the amount because of spousal support paid  positions that were not accepted
    does not mean that he does not owe post-judgment interest on that amount. Further,
    it is the original judgment giving rise to the entitlement that determines the
    rate of post-judgment interest.

[9]

Seppi J.s judgment is clear. Mr. Mudronja was
    to pay post-judgment interest on the equalization payment at the rate of three
    percent and was also to pay periodic spousal support until the equalization
    payment was made in full. The motion judge was correct to use this as the basis
    for determining the parties obligations. He was not hearing an appeal from the
    judgment of Seppi J. Accordingly, the interest owing on the equalization
    payment was $197,528.66 and the balance owing on the equalization payment was
    $69,379.12, for a total owing for equalization and interest on the equalization
    payment of $266,907.79.

Ms. Mudronjas Grounds of Appeal

[10]

Ms. Mudronja sought orders from Barnes J. to determine
    the amounts of post-judgment interest on the equalization payment,
    post-judgment interest on orders for lump sum payments of spousal and child
    support, and post-judgment interest on costs awarded to her, all in accordance
    with the judgment of Seppi J. On appeal she asks this court to settle the post-judgment
    interest owing on the arrears of spousal and child support and on the costs
    awarded in her favour. Although Barnes J. indicated an intention to deal with
    those matters at the beginning of his written decision, he did not deal with
    them. Further, Ms. Mudronja submits that he erred in calculating the guideline
    support payable by her as a result of a child going to live with the father.
    She submits that the
Child Support Guidelines
, O. Reg. 391/97, provide
    that in calculating income for the purpose of determining child support payable
    by a payor who is also a recipient of spousal support, the total income must be
    adjusted by deducting the spousal support received.

Post-judgment Interest Due to Ms. Mudronja

[11]

At paragraph 10 (3) of his reasons, Barnes J.
    noted that one of the issues to be determined was Does Mr. Mudronja owe Ms.
    Mudronja interest on unpaid support and cost award?, but he did not deal with that
    issue. According to the material before this court, Mr. Mudronja paid the
    $12,000 balance of the costs award against him, due on November 23, 2015, on
    February 1, 2019. Ms. Mudronja says he owes her $766.03 on this amount. Seppi
    J. ordered retroactive child support in the sum of $150,000 on October 30,
    2014. Since the funds were not paid until October 30, 2018, Ms. Mudronja claims
    post-judgment interest on this amount in the sum of $18,000. Seppi J. also
    ordered a lump sum retroactive spousal support payment of $136,760. Since these
    funds were also not paid until October 30, 2018, Ms. Mudronja claims post-judgment
    interest on this amount in the sum of $11,402.17, less $2,426.00 for payments
    by Mr. Mudronja since Barnes J. heard the motion, leaving $8,976.17
    outstanding.

[12]

Section 129(1) of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43, provides that money owing under an order, including
    costs, bears interest at the post-judgment interest rate, calculated from the
    date of the order.

[13]

Mr. Mudronja does not dispute the entitlement to
    or calculation of interest but submits that the interest on support arrears
    should be left to enforcement by the Family Responsibility Office.

[14]

There is no reason why Ms. Mudronja is not
    entitled to interest on the late payments of costs or support in accordance
    with the judgment of Seppi J. The costs awarded by Seppi J. did not include an
    order that those costs were to be enforced as if they were a support order. The
    dispute about the equalization payment was much more substantial in monetary
    terms than the issue of arrears of support. Ms. Mudronja is entitled to enforce
    payment of the $766.03 interest on the late costs payment as she sees fit. On
    that basis, we would credit her with that further sum in the calculation of
    what Mr. Mudronja owes her.

[15]

Section 6(7) of the
Family Responsibility and
    Support Arrears Enforcement Act
,
1996
, S.O. 1996, c. 31, FRSA, provides
    that no person other than the Director shall enforce a support order that is
    filed in the Directors office. Support order is defined in s. 1 as a
    provision in an order made in or outside Ontario and enforceable in Ontario
    for the payment of money as support or maintenance and includes a provision for
     (g) interest or the payment of legal fees or other expenses arising in
    relation to support or maintenance. The order of Seppi J. provides at paragraph
    12 that [u]nless this support order is withdrawn from the office of the
    Director of the Family Responsibility Office, it shall be enforced by the
    Director and amounts owing under the support order shall be paid to the
    Director, who shall pay them to the person to whom they are owed. The consent
    order of July 9, 2015 provides that [i]f the parties agree to opt out of the
    Family Responsibility Office at any time, they are both required to file with
    the Offer [sic] of the Director of the Family Responsibility Office a separate
    written request consenting to the withdrawal of the Support Order and the
    Support Deduction Order.

[16]

We conclude therefore that the Family
    Responsibility Office is the proper authority to enforce the payment of the
    $18,000 interest on child support arrears and the $8,976.17 interest on spousal
    support arrears at this time, unless and until enforcement of support is
    withdrawn from that office. We will not add these to the amounts to be paid
    directly by Mr. Mudronja to Ms. Mudronja.

Determination of Ms. Mudronjas Income to Calculate
    Her Child Support Obligations

[17]

Section 16 of the
Child Support Guidelines
provides that [s]ubject to sections 17 to 20, a parents or spouses annual
    income is determined using the sources of income set out under the heading
    Total income in the T1 General form issued by the Canada Revenue Agency and
    is adjusted in accordance with Schedule III.

[18]

Schedule III of the
Child Support Guidelines
provides, in s. 3(a), that support payments, other than child support, received
    by the payor from the other parent or spouse must be deducted when calculating
    the child support payors income. The motion judge included the spousal support
    in determining Ms. Mudronjas child support obligations at paragraph 33:

At trial Ms. Mudronjas
    income was inputted to be $20,000.00. In addition, since January 1, 2014, she
    has received monthly periodic spousal support of $7,500.00. Thus, an annual
    income of $110,000.00 is imputed to Ms. Mudronja. As per the Child Support
    Guidelines, the amount of monthly child support is $1,369.00. Over the 51-month
    period the amount of retroactive child support payable is $69,819.00.

[19]

Seppi J. concluded that Ms. Mudronja was
    reasonably capable of earning $25,000 per annum. Applying the Guidelines to
    this amount results in a monthly child support payment of $200 over the 51-month
    period in issue, entitling Mr. Mudronja to $10,200 in retroactive child
    support, rather than the $69,819 ordered by the motion judge.

[20]

This, too, is an order for support within the
    meaning of the FRSA, and an order will issue in the usual form directing
    payment to the Family Responsibility Office in respect of this amount.

[21]

The result of the foregoing is that Mr.
    Mudronjas appeal is dismissed. Ms. Mudronjas cross-appeal is allowed.
    Paragraph 4 of the order of Barnes J. of November 25, 2019 is varied to
    substitute $10,200 for the retroactive child support ordered payable by Ms.
    Mudronja for the 51-month period to July 1, 2019. Paragraph 5 is varied to
    recalculate the balance owing on the equalization payment, interest on the
    equalization payment, and interest on costs owed by Mr. Mudronja, to provide
    that Mr. Mudronja shall pay Ms. Mudronja $267,673.82 to satisfy these aspects
    of the order of Seppi J. Ms. Mudronja is at liberty to enforce payment of that
    amount as she sees fit. That paragraph is further varied to provide that Mr.
    Mudronja is to pay the interest owing on the spousal and child support
    (totaling $26,976.17) to the Family Responsibility Office, and that Ms.
    Mudronja is to pay the retroactive child support in the sum of $10,200 to the
    same office, leaving a net amount owed in respect of support by Mr. Mudronja of
    $16,776.17, as at July 1, 2019. This amount shall be enforced by the Family Responsibility
    Office unless and until enforcement is withdrawn from that office, in
    accordance with the order of André J. or any subsequent order of the Superior
    Court permitting Ms. Mudronja to withdraw the enforcement of the order
    unilaterally.

The Motion for Leave to Appeal Costs

[22]

Mr. Mudronja also seeks leave to appeal from the
    award of costs against him by Barnes J. on June 3, 2020, in the sum of
    $111,372.17. Barnes J. concluded that Mr. Mudronja took active steps to delay
    and frustrate compliance with the final order of Seppi J. and characterized his
    behaviour as unreasonable and in bad faith. These findings were reasonably available
    on the evidence and were factors properly considered in assessing costs and
    specifically stipulated under r. 24(8) of the
Family Law Rules
, O.
    Reg. 114/99. The motion judge concluded that Ms. Mudronja was entitled to full
    recovery of her costs and assessed the reasonableness of those costs claimed by
    her.

[23]

Leave to appeal costs is granted sparingly and
    we are not convinced that there are strong grounds upon which the appellate
    court could find that the judge erred in exercising his discretion (
Brad-Jay
    Investments Ltd. v. Village Developments Ltd.
(2006),
218 O.A.C. 315 (C.A.), leave to appeal refused,
    [2007] S.C.C.A. No. 92).

[24]

The motion for leave to appeal costs is
    dismissed.

[25]

The parties may make brief written submissions
    regarding the costs of this appeal, and the motion for leave to appeal costs,
    due from Ms. Mudronja within 10 days of the release of this decision, and from
    Mr. Mudronja within 7 days after he receives Ms. Mudronjas costs submissions.

K.
    van Rensburg J.A.

G.
    Pardu J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Murray (Re), 2020 ONCA 547

DATE: 20200901

DOCKET: C67746

Tulloch, Paciocco and Harvison Young JJ.A.

IN THE MATTER OF: Jason Murray

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jason Murray, acting in person

Ailsa Miller, for the respondent, Attorney General of
    Ontario

Lennard M. Dimitry, appearing as
amicus curiae

Heard: August 19, 2020 by video conference

On appeal from the disposition of the Ontario Review
    Board dated, October 30, 2019.

REASONS FOR DECISION

OVERVIEW

[1]

Jason Murray, with the assistance of
amicus curiae
, appeals from
    the Ontario Review Board (the Board) disposition of October 30, 2019,
    requiring his detention at a forensic psychiatric facility. This order is
    subject to discretionary supervised community release conditions. Further
    conditions require that Mr. Murray abstain from alcohol and drugs, provide
    urine and breath samples, and not possess weapons.

[2]

Grounds of appeal advanced at the hearing include challenges to the
    reasonableness of the disposition, and to the fairness of the hearing. For
    reasons that follow, we must dismiss Mr. Murrays appeal.

MATERIAL FACTS

[3]

Mr. Murrays mental disorder is currently diagnosed to be schizophrenia.
    The evidence before the Board is that Mr. Murray, an otherwise accomplished
    gentleman, continues to have a very significant delusional system involving a
    considerable amount of paranoia, including the belief that he is being raped
    and tortured by hospital staff and targeted by government.

[4]

The index offences that resulted in the July 7, 2016 finding that Mr.
    Murray was not criminally responsible on account of his mental disorder
    involved findings relating to six breaches of three separate probation orders,
    a count of mischief for defacing property with the letter V (understood to be
    as in V for Vendetta), and possession of a concealed weapon. Mr. Murray,
    who has a prior criminal record that includes threatening and assault
    convictions, was arrested on these charges in a bar, while consuming alcohol
    and in possession of a box cutter. He had screwdrivers strapped to his wrists,
    concealed under his clothing. Mr. Murray explained that he felt compelled to
    carry these weapons for quick use should the need arise, and he related
    incidents in which he said others had tried to kill him.

[5]

At the time, Mr. Murray was also in possession of a bag of suspected
    marijuana. Although Mr. Murray denies he is a drug abuser, evidence presented
    at his ORB hearings supports the conclusion that he has a history of substance
    abuse.

[6]

At his initial disposition hearing on September 9, 2016, Mr. Murray was
    placed under an ORB detention order. That disposition has been affirmed after
    each Board review.

[7]

Regrettably, Mr. Murray did not attend the ORB hearing that resulted in
    the detention order of October 30, 2019, that he is now appealing. On July 14,
    2019, Mr. Murray notified the Board that he would not be doing so in protest
    because of interference by forensic hospital staff in the preparation of his
    case, and the Boards refusal to accept the relevance of evidence he wished to
    present. The October 30, 2019 hearing was conducted in his absence.
Amicus
    curiae
was appointed to protect his legal interests and did so admirably.

THE ISSUES

[8]

Mr. Murray, with the assistance of
amicus
, now raises two grounds
    of appeal from that October 30, 2019 detention order: (1) that the Boards
    finding that he presents a significant threat to public safety is unreasonable,
    in part because the Boards analysis is cursory and failed to engage positive
    factors that would favour a finding to the contrary, and (2) that the Board
    breached its obligation to make inquiries into his allegation that forensic
    hospital staff prevented him from preparing for the annual review by
    interfering with his use of a computer and internet access, thereby exhibiting
    bias. Based on the first ground of appeal, Mr. Murray seeks an absolute
    discharge. If only the second ground of appeal succeeds, the request is for a
    new hearing.

[9]

In support of his appeal Mr. Murray offers fresh evidence including
    his claim that in 2017 his evidence was switched out with evidence supporting
    the ORBs case, as well as video documentary films he has prepared that he says
    prove that he is not delusional.

ANALYSIS

A.

THE FINDING OF SERIOUS THREAT WAS REASONABLE

[10]

We
    do not accept Mr. Murrays contention that the Boards determination that he is
    a significant threat to public safety is unreasonable. The reasoning of the
    Board can bear even a somewhat probing examination, and we must decline to
    interfere:
R. v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33.
    Specifically, the Boards reasoning is both internally coherent and justified
    in light of the legal and factual constraints, including the evidence before
    the Board, the submissions made, and the impact of the decision on Mr. Murray:
Canada
    (Minister of Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, 441
    D.L.R. (4th) 1, at paras. 102-106.

[11]

We
    recognize that the Findings of the Board section of the Boards Reasons for
    Disposition is concise, including only one paragraph addressing its significant
    threat finding. This, however, is not a fair measure of the reach of the
    Boards reasoning on this issue. The Board was explicit that it accepted the
    evidence of Dr. Courtright and the Hospital Report which it summarized in
    commendable depth in the Evidence at Hearing section of its Reasons for
    Disposition.

[12]

When
    the Boards Reasons for Disposition are read in their totality it is plain that
    the Board found that Mr. Murray, who has a significant criminal history and a
    history of substance abuse, suffers from an elaborate paranoid delusional
    system believing that he is a target. The Board found that he has a history of
    improvising and carrying weapons and has admitted to being prepared to use weapons
    to protect himself from the threats he perceives. It noted that, at the time
    of the disposition hearing, Mr. Murray was refusing to accept treatment in the
    belief that he is not mentally disordered and that the prescribed medication is
    harmful to him. He has been deemed treatment incapable. The Board accepted
    evidence that Mr. Murray is a fit man who engaged in a planned escape from
    hospital staff during an escorted pass and was gone for approximately six days.
    It also accepted the conclusion that it is predictable based on Mr. Murrays
    history and his current mental state that unless detained he will abuse
    substances. On this fully supported, transparent and coherent basis the Board
    found that, [t]here is no doubt  that Mr. Murray would likely act out in an
    aggressive, assaultive manner and act out in a criminal manner involving
    serious injury to members of the public if he is not subject to a detention
    order.

[13]

Nor
    is there any basis for concluding that the Board failed to consider the
    positive factors that favour the appellant, including his intelligence, his
    more remote history of being gainfully employed and making a meaningful
    contribution to society, his lack of aggression towards staff during detention,
    and his compliance with unit rules. These considerations, which Mr. Murray also
    highlighted eloquently before us during the appeal hearing, were brought
    forward by Dr. Courtright after she was specifically asked to advise the Board
    of Mr. Murrays positive features. The Board expressly accepted her
    testimony and related these facts in its summary of the evidence.

[14]

There
    is therefore no basis for concluding that these considerations were disregarded
    notwithstanding that they were not explicitly laid out in the paragraph where
    the Board summarizes its serious threat finding. This is not a case such as
Marchese
    (Re)
, 2018 ONCA 307, 359 CCC (3d) 408, at paras. 10-11, where material
    evidence was alluded to but not identified, or
Hammoud (Re)
, 2018 ONCA
    317, at para. 9, where the reasons raised a concern that the Board may have
    failed to apply the proper test. On the evidence before it, the Board was
    entitled to find Mr. Murray posed a serious threat notwithstanding these
    positive considerations, and the path to the Boards decision is clear.

[15]

Nor
    is the decision rendered unreasonable because the Board could have been more
    explicit about the need for the conditions that were attached to the
    disposition order. No issue was taken during the hearing with the suitability
    of those conditions which were already in place. These conditions are
    manifestly reasonable in the circumstances, given the Boards finding of Mr.
    Murrays planned and deliberate elopement during an escorted pass, as well as
    the opinion of the clinical team that Mr. Murrays path to move into the
    community is his acceptance of medication.

B.

THE BOARD DID NOT BREACH ITS DUTY TO INQUIRE

[16]

There
    are cases where a Review Board has an obligation to seek out information not
    presented by the parties, or to conduct an inquiry that goes beyond the record
    presented. In
Winko v. British Columbia (Forensic Psychiatric Institute)
,
    [1999] 2 S.C.R. 625, at para. 54, the Court described the Review Board process
    as inquisitorial. As this court explained in
R. v. LePage
, [2006] O.J.
    No. 4486 (C.A.), at para. 22, the Boards burden to search out and consider
    evidence may extend not only to evidence that favours restricting the NCR
    accused, but also evidence in his or her favour, regardless of whether the
    NCR accused is even present.

[17]

This
    obligation to inquire will arise where there is a foundation before the Board
    supporting the need for further investigation to ensure an appropriate
    decision. For example, in
LePage
and
Mazzei v. British Columbia
    (Director of Adult Forensic Psychiatric Services)
, 2006 SCC 7, [2006] 1
    S.C.R. 326, the record showed a treatment impasse that called for a
    comprehensive review of past and current treatment approaches that might lead
    to a solution. In
Re Magee
, 2020 O.J. No, 2838 an inquiry was required because
    the Board itself suggested that a sexual behaviours assessment would be useful.
    That being so, the Board had an obligation to seek such a report.

[18]

The
    duty to inquire is a unilateral one, falling on the Board. It is not dependent
    on a request for inquiry being made by a party before it. For this reason, we
    are not concerned that no-one, including
amicus
, asked for an inquiry at
    the Board hearing now under appeal. Simply put, even without a request for an
    inquiry having been made, if an inquiry was required in the current
    circumstances, the Boards failure to do so would require a new hearing.
    However, we are not of the view that an inquiry was required into Mr. Murrays
    complaints made in his July 14, 2019 email. The foundation before the Board did
    not call for such inquiry.

[19]

Before
    Mr. Murrays email was received the Board was aware that Mr. Murray had a
    history of attempting to file extensive amounts of irrelevant material,
    including video material, at prior hearings. Indeed, the Board had conducted
    two pre-hearing conferences, one on June 13, 2019, and another on July 8, 2019,
    in which Mr. Murray attempted to have the hearing time extended so that he
    could file before the Board hundreds of pages of documentary material, and
    extensive video material which he believed would show, among other things, a
    Mass Rape Epidemic at the hospital. At both pre-hearing conferences the Board
    implored Mr. Murray to use his editing skills to confine himself to relevant
    material. At the second pre-hearing conference a schedule was established
    during which counsel for the Attorney General and the hospital would review the
    proposed material for relevance. Yet this relevance review did not happen.
    Instead, Mr. Murray elected not to attend the hearing.

[20]

Mr.
    Murray, who has a history of delusions about persecution by the hospital and a
    history of using the internet to post messages that others may perceive to be
    threatening, did not simply complain about hospital staff limiting his computer
    access. He also said in his July 14, 2019 email that they had fried [his]
    laptop and broken his pens. Moreover, he made clear that his decision not to
    attend the hearing was in protest to the Boards belief that all evidence is
    irrelevant accept [sic] for a Psychiatrists finger pointing, and he claimed
    that his evidence for the 2017 hearing had been switched.

[21]

It
    is in this context that the failure of the Board to initiate an inquiry must be
    considered. Given Mr. Murrays history of attempting to file copious amounts of
    irrelevant evidence; his failure to take advantage of the planned review of the
    relevance of his evidence; and the nature of the allegations being made in his
    email of July 14, 2019 in light of his history of delusional thinking about the
    conduct of hospital staff, the Board acted reasonably in not initiating further
    inquiry. Simply put, Mr. Murrays complaint did not have the kind of air of
    reality needed to require the Board to do so.

CONCLUSION

[22]

The
    appeal is dismissed.

M. Tulloch J.A.

David M. Paciocco
    J.A.

A. Harvison Young
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Attorney General) v. Nanji, 2020 ONCA 591

DATE: 20200918

DOCKET: M51732 (C68536)

Gillese, Lauwers and Benotto JJ.A.

BETWEEN

Attorney General for Ontario

Respondent/Moving Party

and

Persons Unknown

Respondents

and

Hasina
    Nanji, Indra Gordon, and Advocacy Centre for Tenants Ontario

Appellants/Responding Parties

Sarah Blake and Domenico
    Polla, for the respondent/moving party

Benjamin Ries, Joe Myers,
    and Moira Daly for the appellants/responding parties

Kristin A. Ley, Mark
    Melchers, and Joseph J. Hoffer, for the Federation of Rental Housing Providers
    of Ontario, participating party pursuant to the order of Pepall J.A.

Heard: in writing

REASONS
    FOR DECISION

[1]

This is an appeal from the order of Myers J. dismissing a motion for an
    interim stay of the order of Chief Justice Morawetz with reasons reported at
    2020 ONSC 4676.

[2]

The respondent Attorney General for Ontario (AGO) moves for an order
    quashing the appeal on the basis that the order appealed from is interlocutory
    and this court lacks jurisdiction. The appellants, Hasina Nanji, Indra Gordon
    and the Advocacy Centre for Tenants Ontario, submit that the order under appeal
    finally determined the issues raised and is thus final. For the following
    reasons, we conclude that the order appealed from is interlocutory and this
    court does not have jurisdiction.

[3]

By order dated March 19, 2020, Chief Justice Morawetz ordered that the
    eviction of residents from their homes pursuant to eviction orders issued by
    the Landlord and Tenant Board or writs of possession, are suspended during the
    suspension of regular court operations due to the COVID-19 pandemic. At the end
    of June 2020, the Chief Justice advised that a phased resumption of some
    in-person hearings would begin on July 6, 2020. The AGO brought a motion
    seeking clarification about the status of future eviction orders. On July 6,
    2020, the Chief Justice ordered that the moratorium on evictions  ordered in
    March 2020  would end on July 31, 2020.

[4]

The appellants seek to be recognized as class representatives for
    vulnerable tenants seeking to avoid eviction. They requested an urgent case
    conference to deal with the scheduling of their application. They also brought
    a motion seeking an interim stay of the order of July 6, 2020 until their
    motion to set aside the order of the Chief Justice can be heard. On August 2,
    2020, the motion judge dismissed the appellants motion for an interim stay.

[5]

The appellants submit that the order is final and this court, not the
    Divisional Court, has jurisdiction. They submit that, while the order appears
    interlocutory on its face, the exceptional nature of the order must be
    considered because: (i) it effectively determined that their case was not
    justiciable; and (ii) as the eviction orders are enforced, the individual
    appellants will have no further interest in the action. In other words, the
    motion judge finally determined the issue of jurisdiction and disposed of the
    substantive rights of the individual appellants.

[6]

We do not agree.

[7]

The appeal involves an interim stay pending an interim motion in an
    application. The motion to set aside the Chief Justices order remains
    outstanding.

[8]

The general principle is
    that an order granting a stay is final, but an order refusing one is
    interlocutory:
McClintock v. Karam,
2017 ONCA 277
.

[9]

An order is interlocutory if the merits of the case remain to be
    determined:
Hendrickson v. Kallio
, [1932] O.R. 675 (C.A.). The motion
    judge specifically stated that he was not deciding the motion on its merits. The
    appellants say that, despite this wording, the order cannot be reconciled with
    a continuation of their motion.  Again, we disagree. The motion judge spoke
    directly to a continuation of the motion and the application by referring to
    the need for a case conference to determine who will be the parties, who should
    be given notice, whether representation orders ought to be made and the
    provision of a schedule for exchange of material and cross-examinations. The
    need for broad participation is demonstrated by this courts order granting
    leave to the Federation of Rental Housing Providers of Ontario to participate
    in this motion by filing a factum.

[10]

The
    appellants submission conflates the merits of their appeal with the nature of
    the order under appeal. The issues raised by the appellants go to the merits of
    their appeal which is within the jurisdiction of the Divisional Court.

[11]

The
    order of August 2, 2020 is interlocutory, and this court has no jurisdiction to
    hear the appeal:
Courts of Justice Act,
R.S.O. 1990, c. C.43, ss.
    6(1)(b), 19(1)(b)
.

[12]

The
    appeal is quashed. Consequently, there is no need to consider the appellants
    motion for directions.

[13]

Costs were not sought, and none are ordered.

E.E. Gillese J.A.

P. Lauwers J.A.

M.L. Benotto J.A.