COURT OF APPEAL FOR ONTARIO

CITATION: Bors v. Bors, 2021 ONCA 513

DATE: 20210716

DOCKET: C67846

Feldman, van Rensburg and Sossin
    JJ.A.

BETWEEN

Ciprian Teodor Bors

Applicant (Respondent)

and

Ana Cristina Bors (Beleuta)

Respondent (Appellant)

Tiffani A. Frederick and Gloria E. Ichim,
    for the appellant

Brian Ludmer, for the respondent

James R.G. Cook and Jessica Schissler,
    for the appellants trial counsel

Heard: May 19, 2021 by video
    conference

On appeal from the order of Justice Francine
    Van Melle of the Superior Court of Justice, dated December 4, 2019, with
    reasons reported at 2019 ONSC 7029.

REASONS FOR DECISION

A.

Overview

[1]

The parties are former spouses and the parents of two children, a
    daughter, M, who is now 15 years old, and a son, C, who is 9.

[2]

This is an appeal of an order granting sole custody
[1]
of the children to the respondent father, and imposing other terms, after the
    trial judge concluded that the appellant mother had engaged in parental
    alienation. The order was made after an eight-day trial of a motion to change a
    final order.

[3]

The motion to change was prompted by the alleged failure of the mother
    to comply with the provisions of the final order respecting the fathers access
    to the children. By the time the trial took place there had been more than 200
    failed access transitions, the father had not had access to M for two years,
    and, with limited exceptions, he had not had C in his care since the end of the
    previous school year, in June 2019. Moreover, the parties had been involved in
    the litigation of the motion to change for several years, and there had been
    numerous court attendances and orders, most of which were to address ongoing
    and worsening problems with the fathers access.

[4]

The trial judge concluded that the evidence was overwhelming that the
    children were alienated from their father and that their mother was
    responsible. She held that the best interests of the children required the
    father to have custody of the children, with an initial period where the mother
    would have no contact with C and reduced contact with M. The order required the
    parties and the children to engage in reconciliation therapy with family
    therapist Lourdes Geraldo, and provided for reports to the court. The trial
    judge remained seized of the matter.
[2]

[5]

The mother asserts that the trial judge erred in finding that she had
    alienated the children from their father. She also contends that the order
    imposed by the trial judge was not in the childrens best interests, and that
    some other order short of changing custody and restricting her access to the
    children would have sufficed. Finally, she argues that she was deprived of a
    fair trial because she was ineffectively represented by her trial counsel and
    the trial judge demonstrated bias.

[6]

The father denies that there were any reversible errors, and he seeks to
    rely on fresh evidence consisting of his own lengthy affidavit, which includes,
    as an exhibit, a summary report dated January 12, 2021 from Ms. Geraldo.

[7]

For the reasons that follow, we dismiss the motion to introduce fresh
    evidence, except for the report of Ms. Geraldo, which is admitted, and we
    dismiss the appeal. As we explain, there was no reversible error in the trial
    judges conclusion that the mother engaged in parental alienation, or her
    conclusion that the best interests of the children required a change in custody
    and the other measures that were included in the order. Nor was the mother
    deprived of a fair trial.

B.

Brief Procedural History

[8]

The parties separated in 2012 after ten years of marriage. At the time,
    M was six years old and C was under a year. The father commenced proceedings in
    the Superior Court shortly after the parties separation.

[9]

A custody and access investigation pursuant to s. 112 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43,
was undertaken by
    the Office of the Childrens Lawyer (the OCL). In its 2013 report the OCL recommended
    custody of the children to the mother and access by the father every other
    weekend and one night a week.

[10]

Shortly
    before a trial on custody and access was to begin, the parties reached an
    agreement. Its terms were incorporated into the consent final order of Snowie
    J. dated May 11, 2015. In broad terms, that order provided for the mothers
    custody of the children, with the father having access on alternate weekends.

[11]

The
    father brought a number of motions to address problems with his access to the
    children, which resulted in a number of interim orders as well as the final
    order of André J. of February 23, 2017 increasing access time and providing for
    access transitions at the childrens school.
[3]

[12]

On
    March 23, 2017 the father commenced a motion to change proceeding, and further
    court attendances and temporary orders followed.

[13]

An
    updated OCL report was issued on May 4, 2018 (the 2018 OCL report). While the
    author of the report, Wendy MacKenzie, recommended that the mother continue to
    have custody of the children, with the father having access (including access
    to C on alternating weeks), she was concerned about the father losing his
    relationship with the children. She recommended that the mother consider
    counselling support to help her to encourage a positive and healthy
    relationship between the children and their father despite her feelings about
    him and, she cautioned that if this cannot be achieved, consideration should
    be given to a change in custody.

[14]

In
    June 2018, after the children were refusing to transition to their fathers care,
    he brought an interim motion for access. By that point the father had not had
    access to M since September 2017 and C was attending access visits reluctantly.
    Coroza J., as he then was, adjourned the motion to a long motion, he made an
    order for questioning of Ms. MacKenzie, and he ordered that the children attend
    separation counselling with a mutually agreed upon practitioner. Coroza J.
    heard the long motion on August 13, 2018. During the months that his decision
    was under reserve, M was still not seeing her father and Cs visits were
    sporadic. On January 31, 2019, Coroza J. made an order increasing the fathers
    parenting time, and ordered the motion to change to proceed to trial.

[15]

At
    a further attendance on May 31, 2019, seeking compliance with the Coroza J.
    orders, the trial of the motion to change was expedited. Mossip J. cautioned
    the mother that continuing her behaviour could lead to a reversal in custody.

[16]

The
    trial took place on eight days in October and November 2019. By that time, M
    was still refusing to transition to her fathers care and C, who, with limited
    exceptions, had not been in his fathers care since the end of the previous
    school year, was missing a great deal of school, or leaving school early.

[17]

On
    November 18, 2019, the trial judge heard closing submissions. The mother,
    without explanation, was not present in court that day, and the trial judge was
    advised that C had left school early. The trial judge provided an oral
    decision, ruling that the mother had alienated the children from their father.
    She ordered that the best interests of the children required the father to have
    custody, and for the mothers access to be temporarily restricted. She ordered
    C to move immediately to the fathers full-time care and M to live with the father
    from after school until 8:00 pm, and from 9:00 a.m. to 8:00 p.m. on days M
    was not in school. On December 4, 2019 the trial judge released written reasons
    for judgment that set out the terms of her final order.

C.

Standard of Review

[18]

The
    determination of custody and access (now parenting orders) involves issues of
    mixed fact and law. As such, intervention on appeal is warranted only where
    there is a material error, a serious misapprehension of the evidence, or an
    error of law. As the Supreme Court has stated, [c]ustody and access decisions
    are inherently exercises in discretion. Case by case consideration of the
    unique circumstances of each child is the hallmark of the process:
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R.
    1014, at para. 13.

[19]

As
    this court has reiterated many times, an appeal court must not retry parenting cases,
    but instead approach the appeal with considerable respect for the task facing
    a trial judge in difficult family law cases, especially those involving custody
    and access issues:
C.S. v. M.S.
, 2010 ONCA
    196, 262 O.A.C. 225, at para. 4.

[20]

In
A.M. v. C.H.
, 2019 ONCA 764, 32 R.F.L. (8th)
    1, which was the appeal of an order reversing custody after a finding of
    parental alienation, Pardu J.A. articulated the standard of review. She stated,
    at para. 74:

Each case must be determined on its own specific facts. The
    trial judge hears from all the witnesses and as such, is in the best position
    to assess the childs best interests. If there is no
error
in law, no palpable and overriding error of fact, and no misapprehension of
    evidence, appeal courts should not interfere.

D.

Issues on Appeal

[21]

The
    mother raises a number of issues on appeal. In essence, she makes three
    arguments:

1.

The trial judge made a palpable and overriding error when she concluded
    that the childrens unwillingness to have access with their father resulted
    from parental alienation, and not some other reason, and when she ignored
    evidence of domestic abuse;

2.

The trial judge erred in making the order she did, changing custody and
    restricting the childrens access to their mother, (i) when the father had only
    asked for joint custody; and (ii) when a less restrictive order could have been
    made to enforce the fathers right of access; and

3.

She was deprived of a fair trial by reason of (i) the ineffective
    assistance of her trial counsel; and (ii) bias on the part of the trial judge.

[22]

We
    consider each issue in turn.

Issue One: Did the Trial Judge Err in Her Conclusions about
    Parental Alienation?

[23]

The
    mother contends that the trial judges conclusion that she had engaged in
    parental alienation was speculative, and based only on the childrens behaviour
    in refusing to transition into their fathers care. As such, she argues that
    the trial judge made a palpable and overriding error in concluding that there
    was parental alienation.

[24]

The
    mother asserts (as she did at first instance) that it was sufficient for her to
    bring the children to the access transfer point (typically the police station),
    and that she was not responsible if the children refused to transition to their
    fathers care. She also submits that her behaviour should be understood in the
    context of the domestic abuse she had suffered, which she says the trial judge
    ignored.

Discussion

[25]

It
    was not contested at trial that the children had become alienated from their
    father. Indeed, both parties took the position that reunification or
    reconciliation therapy was required to attempt to restore the relationship. The
    issue before the court was why the alienation had occurred, which would then
    inform the decision about the appropriate remedy.

[26]

The
    trial judge provided clear and detailed reasons for her conclusion that the mother
    had engaged in parental alienation. The finding of parental alienation was not
    based on speculation; rather it was firmly based on the evidence before the
    court. Indeed, the trial judge reasonably concluded from the evidence that the
    children were suffering emotional harm caused by their mothers behaviour.

[27]

The
    trial judge heard evidence from the parties and other witnesses. Several
    professionals who had been involved with the family testified, including Ms. MacKenzie
    (the author of the 2018 OCL report) and caseworkers from the Peel Childrens
    Aid Society (the CAS). It is unnecessary to detail here the evidence of the
    witnesses; it is sufficient to observe that the trial judge assessed the
    evidence and made findings of fact. She identified a long list of the mothers
    actions that were consistent with alienation. The trial judge also referred to
    the continuing failure by the mother to abide by court orders.

[28]

It
    was not sufficient then, nor is it now, for the mother to assert that she was
    only required to bring the children to the access transfer, and that she was
    not responsible for their refusal to transition to their fathers care. Once a
    court has determined that access is in the childs best interests, a parent
    cannot leave the decision to comply with the access order up to the child. Ontario
    courts have consistently held that a parent has some positive obligation to
    ensure that a child who allegedly resists contact with the access parent complies
    with the access order:
Godard v. Godard
, 2015
    ONCA 568 at para. 28.

[29]

The
    mother had been advised repeatedly to encourage and not to undermine the
    childrens relationship with their father, and that alienation could be highly
    damaging to the children. Yet the mother persisted in her conduct, and the
    relationship between the children and their father deteriorated.

[30]

Nor
    do we accept the contention that the mothers conduct  in failing to support
    and assist in the fathers access to the children  can be explained by the
    fact that she was a victim of domestic abuse. In support of this allegation her
    counsel on appeal relied on the fact that in 2014 the father had pleaded guilty
    to mischief and received a term of probation after he placed a GPS tracker in the
    mothers vehicle.
[4]

[31]

The
    GPS incident was not referred to in the trial judges reasons, for good reason.
    In 2015 the mother had consented to a final order that provided for the fathers
    access to the children on alternate weekends. The focus of the trial was on the
    parenting of the children since that time, and their alienation from their
    father. There was nothing to suggest that the mothers resistance to assisting
    in the childrens transition to their fathers care resulted from any
    consequences of the GPS incident or abuse that she had suffered in her
    relationship with the father. Rather, she suggested that the fathers
    mistreatment of the children justified their reluctance to transition into his
    care. She made numerous false allegations to the CAS and the OCL that the father
    was abusing the children. She had persisted in making complaints, including at
    trial, even after they were investigated and not substantiated. The OCL and the
    CAS, who had extensive dealings with the family over a number of years, identified
    no concerns with the fathers fitness as a parent, and the testimony of their
    representatives emphasized their concern with the mothers alienating
    behaviours.

[32]

The
    mothers attitude toward the father was reflected in the inflammatory and
    untrue comments she made to others, including to witnesses at the trial. Although
    the mother denied speaking ill of the father before the children, the trial
    judge noted in her oral reasons that [the mothers] whole demeanour and
    attitude telegraphs her intense dislike for him. There is no way that her
    attitude is not transmitted to the children. The mothers alienating conduct,
    as the trial judge observed, resulted from her lack of insight into the effect
    of her behaviour on the children, as well as her total disregard for previous
    court orders.

[33]

There
    is no reason to interfere with the trial judges conclusions about parental
    alienation. They are sound, and fully supported by the evidence.

Issue Two: Did the Trial Judge Err in the Terms of the Order
    that She Imposed?

[34]

The
    mother makes two arguments on this issue.

[35]

First,
    she submits that the trial judge erred in law when she ordered a custody
    reversal in light of the parties positions at trial, and in the absence of an
    updated OCL report.

[36]

Second,
    the mother asserts that the trial judge erred in making an order restricting
    her access to the children when other alternatives were available, such as an
    order for access with police enforcement, an order finding her in contempt of
    earlier orders or, if custody were changed, an order for supervised access. The
    mother further argues that a different order should have been made because the trial
    judges order requires her to gain a level of insight that is beyond her reach,
    and prevents her from demonstrating positive behavioural changes in order to
    regain access to the children.
[5]

Discussion

[37]

The
    mother is correct that the fathers counsel indicated at the outset of trial that
    the preference was for an order for equal parenting with the children residing
    with each parent on alternating weeks. He expressed concern about the mothers
    compliance with such an order, and he advised that, depending on the evidence, the
    father might be seeking custody with a period restricting the mothers access
    to the children. Indeed, by the end of the trial it was apparent that an order
    for equal parenting would not be sufficient to address the ongoing parental
    alienation, particularly with the negative views the mother continued to
    express about the father in her evidence at trial, and her history of non‑compliance
    with court orders. The fact that the father asked for an order for equal
    parenting as one alternative did not prevent the trial judge from making the
    order she did, in the circumstances of this case. It was apparent even before
    the trial commenced that an order reversing custody might well be required. As
    in
A.M.
, the mothers conduct and its effect
    on the [children] was front and centre in the fathers pleadings: at para. 29.

[38]

There
    was no requirement for an updated OCL report. The OCL had provided a report in
    2013, and the 2018 OCL report was prepared for the motion to change proceeding.
    The author of that report, Ms. MacKenzie, had attended for questioning in 2018,
    and she was a witness at trial where she was examined by the parties. She spoke
    to what she had observed and determined at the time of her report  including the
    parenting abilities of both parties and the difficulties experienced with
    access transitions  and she confirmed her opinion that a custody reversal should
    be considered if the mother continued to not encourage the childrens
    relationship with their father. There is no indication that anyone requested an
    updated OCL report before the expedited trial took place or that further delay
    was justified in the circumstances.

[39]

As
    for the appropriateness and necessity of the order made by the trial judge, this
    is a unique case. Attempts to rectify the problems with access through repeated
    court attendances and interim orders had not succeeded. Indeed, the situation
    had worsened to the point that C, who was only transitioning to his fathers
    care after school, was frequently missing school or leaving early in order to
    avoid the transfer to his fathers care. Other available measures had proved
    inadequate or ineffective.

[40]

Although
    the mother had asked for an order for reunification therapy at trial, she had
    not complied with earlier directions respecting therapy and counselling. Nor
    had she followed the recommendation of the OCL to pursue individual therapy so
    that, despite her own feelings about the childrens father, she could still encourage
    a relationship between him and the children.

[41]

In
    the circumstances, including the history of the mothers failure to comply with
    court orders, it was reasonable for the trial judge to conclude that the family
    reconciliation therapy that the parties agreed was required was best supported
    by a reversal of custody and restriction on the mothers access to the children
    for a period of time. As this court recently observed, [w]here a reversal of
    decision-making and primary residence has been ordered, courts may order that
    the alienating parent have no contact with the child for a minimum period:
M.P.M. v. A.L.M.
, 2021 ONCA 465, at para. 37.

[42]

Finally,
    we do not agree with the mother that it is impossible for her to comply with
    the trial judges order. The mothers alienating behaviour is informed by her
    beliefs and attitudes. The order requires the mother to engage in individual
    therapy to assist her to recognize the need to support the childrens
    relationship with their father  which is in their best interests. The mother is
    not expected to change her attitude overnight; she is however expected to
    comply with the order by engaging in counselling with a view to helping her to
    develop behaviours that facilitate, and do not impede, the childrens relationship
    with their father, irrespective of her own feelings about him.

[43]

For
    these reasons we do not give effect to this ground of appeal.

Issue Three: Did the Mother Receive a Fair Trial?

[44]

The
    mother asserts that she did not receive a fair trial because (1) the case was
    not presented effectively by her trial counsel; and (2) the trial judge did not
    demonstrate impartiality.

(1)

The Claim of Ineffective Assistance of Counsel

[45]

The
    claim of ineffective assistance of counsel was raised in the notice of appeal
    and the mothers factum. The notice of appeal states as a ground of appeal that
    the appellants counsel was incompetent, negligent or ineffective. Her factum
    asserts that the mother was deprived of meaningful legal representation, that
    her trial counsel aligned himself entirely with the position of the father,
    that he refused to follow her instructions and declined to lead relevant
    evidence. She asserts that her trial counsel acted outside his mandate and
    instructions.

[46]

At
    the outset of the hearing of the appeal the panel raised the concern that the mother
    had not followed this courts protocol for appeals involving claims of this
    nature. The fathers counsel and counsel for the mothers trial counsel argued
    that the ineffective assistance ground of appeal ought not to be considered
    because of the failure to follow the protocol. The mothers appellate counsel
    sought an adjournment for the purpose of taking the steps required under the
    protocol.

[47]

The
    mothers trial counsel was represented at the hearing of the appeal and had
    filed a factum. Counsel for the mother indicated that she would be relying on
    the existing record, and that, even if an adjournment were provided, she did
    not intend to put forward evidence on this issue. In the exceptional
    circumstances of this case, the panel was satisfied that the record was
    sufficient to permit this ground of appeal to be considered based on the
    materials filed, and, in the interest of avoiding further delay, it would be
    appropriate to do so notwithstanding the failure to comply with the protocol.

[48]

In
    order to establish ineffective assistance of counsel as a ground of appeal, an
    appellant must satisfy the court on a balance of probabilities that trial
    counsels conduct fell below the standard of reasonable professional assistance
    and that the ineffective representation resulted in a miscarriage of justice. A
    miscarriage of justice occurs when the ineffective representation undermines
    the appearance of the fairness of the trial, or the reliability of the result
    in the sense that there is a reasonable probability that the result would have
    been different had there been effective representation:
R.
    v. Archer
(2005), 203 O.A.C. 56 (C.A.), at paras. 119-20.

[49]

We
    do not give effect to this ground of appeal. The mother did not file any
    affidavit evidence to support the bald allegations in her factum of ineffective
    assistance of counsel. She has not provided any evidence in support of her
    allegations that trial counsel failed to follow her instructions, that he failed
    to lead relevant evidence that would have changed the result, or that he acted
    contrary to her interests.

[50]

Nor
    do we agree that counsels ineffectiveness is obvious on the record. The mother
    contends that her position at trial was that she was a victim of domestic abuse,
    and that her counsel failed to advance this position. In fact, her evidence that
    there was abuse, including the GPS tracker incident, was squarely before the
    court in her trial affidavit. The issues at trial however, were whether the
    children were refusing to transition to their fathers care because of parental
    alienation or for some other reason, and the appropriate order to respond to
    those circumstances. The mothers counsel brought out the mothers evidence
    denying that she was alienating the children, her explanations for their
    behaviour, and her assertion that she was doing all that was required in
    bringing them to the access transfer. Her counsel cross-examined the various
    witnesses. In the end, the evidence of alienation was overwhelming. Even then,
    the mothers trial counsel advocated for her position that reunification
    therapy (to which she had agreed) could occur without the need for a custody
    reversal and restriction on her access. There is nothing in the transcript to
    suggest that the mothers counsel was ineffective or incompetent.

[51]

The
    claim of ineffective assistance of counsel is not made out. We dismiss this
    ground of appeal.

(2)

Did the Trial Judge Demonstrate Bias?

[52]

The
    mother asserts that the trial judge showed a lack of judicial impartiality,
    and that as a result she had an unfair trial. She focuses on the trial judges
    interventions or comments over the course of the trial, which she claims were
    excessive and one-sided. This ground of appeal can be dispensed with briefly.

[53]

The threshold for showing bias is high and requires cogent
    evidence. The standard is objective. The test is whether an informed person,
    viewing the matter realistically, and having thought the matter through, would
    conclude that the trial judge would not decide the matter fairly:
McGregor v. Pitawanakwat
, 2017 ONCA 77, at para. 19,
citing
Committee for
    Justice & Liberty v. Canada (National Energy Board)
, [1978] 1 S.C.R. 369, at p. 394. See also
Miglin v. Miglin
, 2003 SCC 24, [2003] 1 S.C.R. 303, at para. 26.

[54]

We
    have reviewed the passages the mother relies on as evidence of bias. Contrary
    to her submissions, none of the interjections and comments by the trial judge, viewed
    individually or collectively, would suggest to a reasonable person that the
    trial judge was biased, or that she had prejudged the issue of parental
    alienation. Her interjections occurred throughout the case, and for the most
    part were directed to keeping the evidence and submissions focused on the
    issues at hand, and preventing the witnesses who testified from straying beyond
    their observations and expertise. As the trial progressed, the evidence
    demonstrated a clear case of parental alienation. The fathers evidence went in
    first, and included the testimony of a number of professionals who had worked
    with the family. During closing arguments the trial judge observed that she was
    struck by how unusual it was for so many professionals involved with the family
    to uniformly conclude that a parents behaviour was the cause of alienation and
    the childrens risk of harm. She also noted that the mother had readily
    admitted to many of the allegations of alienating behaviour. These were fair
    and appropriate comments on the evidence before the court, and not an
    indication that the trial judge had pre-judged the issues.

[55]

Accordingly,
    we see no merit to this ground of appeal.

Fresh Evidence

[56]

The
    father sought to file as fresh evidence on the appeal his own lengthy
    affidavit, with various exhibits.

[57]

The
    test for admitting fresh evidence on appeal requires the moving party to
    satisfy four criteria: (i) the evidence could not have been adduced at trial;
    (ii) the evidence must be relevant in that it bears on a decisive or
    potentially decisive issue; (iii) the evidence must be reasonably capable of
    belief; and (iv) the evidence must be such that, if believed, it could
    reasonably, when taken with the other evidence adduced at trial, be expected to
    have affected the result:
R. v. Palmer
, [1980]
    1 S.C.R. 759, at p. 775.

[58]

The
Palmer

criteria are more
    flexible where an appeal involves the best interests of children, where it is
    important to have the most current information possible [g]iven the inevitable
    fluidity in a childs development:
Goldman v. Kudelya
,
2017
    ONCA 300, at para. 25.

[59]

Notwithstanding
    the more flexible approach for receiving fresh evidence where an appeal
    addresses the best interests of children, the fresh evidence in the present
    case does not meet the test for admission. The proposed fresh evidence is
    essentially a whole new record, full of lengthy, contextualized narrative, that
    expands on issues explored at the trial, and provides the fathers account of
    what has transpired since the order under appeal was made, including his
    assertions that the mother has failed to comply with the order.

[60]

In
Fiorito v. Wiggins
, 2015 ONCA 729, 69 R.F.L.
    (7th) 5, this court admitted as fresh evidence two reports prepared by Dr.
    Ricciardi, the therapist who saw the parents and children on a weekly basis
    pursuant to the trial judges order which granted custody of the children to
    their father and limited the mothers access to the children to the weekly
    therapy sessions. Similarly, we are prepared to receive the report of Ms.
    Geraldo, which summarizes the therapeutic work carried out with the parties and
    children pursuant to the trial judges order in the instant case. That report
    indicates that as a result of the increased time with their father, the
    children have gone on to settle into their fathers care. While the report is
    not essential to our decision to dismiss the appeal, it provides some comfort
    that the measures that were ordered are underway and have gone a considerable
    distance to restoring the childrens relationship with their father.

[61]

Ms.
    Geraldos report also states that there have been problems with the mothers
    engagement in the reconciliation therapy, in part due to her pursuit of this
    appeal. Now that this court has determined the appeal, affirming the decision
    of the trial judge, it is expected that she will comply with its terms,
    including the requirements for individual therapy and participation in the reconciliation
    therapy led by Ms. Geraldo.

[62]

We
    dismiss the motion to admit fresh evidence, except for the report of Ms. Geraldo.

E.

Disposition

[63]

For
    these reasons the appeal is dismissed. The father and the mothers trial
    counsel are entitled to their partial indemnity costs from the mother. If the
    parties are unable to agree on the amounts, we will receive brief written
    submissions. The father and the mothers trial counsel are to provide their
    submissions within 15 days of these reasons, with responding submissions to be
    provided by the father within ten days thereafter, with no right of reply.

K.
    Feldman J.A.

K.
    van Rensburg J.A.

L.
    Sossin J.A.

[1]

Pursuant
    to amendments to the
Divorce
    Act
, R.S.C. 1985, c. 3, (the Act) which came into effect on
    March 1, 2021, custody and access terminology has now been replaced by
    terms such as decision-making responsibility, parenting time and contact.
    Section 35.4 of the Act deems a person who had custody of a child by virtue of
    a custody order to have parenting time and decision-making responsibility and a
    spouse or former spouse who had access by virtue of a custody order to be a person
    to whom parenting time has been allocated. However, since counsel argued the
    appeal using the terminology under the original orders, our reasons will also
    employ the historical language.

[2]

This
    is a broad outline only of the order, which contains detailed terms respecting
    the residence of the children, the required therapy, and the reporting to and
    supervision and review by the trial judge.

[3]

This
    order was amended on April 13, 2017, to provide for access transitions at a Tim
    Hortons, using the services of the Brayden Access Centre (Brayden), for
    times where the children were not in school. In June 2017, and after Brayden withdrew,
    a temporary order provided for access to be transferred at a police station.

[4]

The
    father explained, in his affidavit evidence for trial, dated October 11, 2019,
    that he had done so when he feared that the mother would leave the country with
    the children, and take them back to Romania.

[5]

The
    order provides that the trial judge will remain seized of the case, to review
    the progress of the childrens relationship with their father and to gradually
    increase their mothers access. The order requires the mother to engage
in individual therapy to assist her to recognize the need to support
    the childrens relationship with their father, and it provides that the co
urt
    shall not undertake a review of the custody and access provisions of the order
    until the mother engages and meaningfully participates in therapy to gain
    insight into her alienating behaviour and meaningfully works towards supporting
    reconciliation between [the father] and the children.


COURT OF APPEAL FOR ONTARIO

CITATION: Boudreau v. Jakobsen, 2021 ONCA
    511

DATE: 20210716

DOCKET: C68278

Brown, Roberts and Zarnett JJ.A.

BETWEEN

Bruce Boudreau

Applicant

(Respondent)

and

Randi Jakobsen

Respondent

(Appellant)

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

Jenna Beaton and Jessica Grys, for the respondent

Heard: In writing

On appeal
    from the order of Justice Sharon Shore of the Superior Court of Justice dated February
    5, 2020.

REASONS FOR DECISION

Overview

[1]

The appellant appeals from the trial judges order
    requiring her to pay spousal support to the respondent, whom the trial judge
    found was the appellants common law spouse.

[2]

The parties met at university in Nova Scotia in
    1989 and became romantically involved. They moved to Toronto and started living
    together in 1997, later moving into a house purchased by the appellant in 2008.
    The parties never married and have no children. The appellant achieved
    substantial success in her career. She paid the household, mortgage, vacation
    and other expenses for the parties throughout the relationship. She financially
    supported the respondent who had access to her bank and credit cards, as well
    as a joint bank account. They cared for two dogs together. They presented to
    the public as a couple.

[3]

The respondent suffers from mental health
    issues and has been mostly unemployed, earning no more than $10,000 in any of
    the few years he worked. He performed no household duties for the parties nor
    did he otherwise contribute to the appellants professional success. The
    relationship ended on April 7, 2018 when the respondent was charged with
    assaulting the appellant. The appellant was 49 and the respondent was 52 years
    old at the time of separation.

[4]

The parties were self-represented at a trial
    that lasted nine days. The trial judge concluded that the parties were common
    law spouses. While she acknowledged that there were times that the respondent was
    likely unable to work because of his mental health issues, she found that the
    respondent had failed to provide any medical evidence to support his inability
    to work and, rather, chose not to accept work that he felt was beneath him. She
    found that the respondent was intentionally underemployed and financially
    advantaged by living with the appellant. She imputed to the respondent a yearly
    income at minimum wage in the amount of $29,120 from January 1, 2020 onwards. She
    denied his claims based on unjust enrichment and joint family venture, and
    found he was not entitled to compensatory spousal support. However, the trial judge
    ordered the appellant to pay the respondent retroactive and ongoing spousal
    support in an amount below the lowest end of the
Spousal Support Advisory
    Guidelines
from May 1, 2018, subject to review on December 31, 2025 at the
    latest, unless a material change in circumstances justified an earlier review.

Issues

[5]

The appellant submits that the trial judge
    made the following substantive reversible errors: she erred in finding that the
    parties were spouses under s. 29 of the
Family Law Act
, R.S.O. 1990,
    c. F.3; and she erred in awarding spousal support to the respondent in respect
    of which she provided inadequate reasons. In addition, the appellant argues
    that the trial judge erred in failing to allow the parties to make submissions
    regarding costs and in failing to determine the issue of costs. We shall
    consider each submission in turn.

(i)

Did the trial judge
err
in finding that the
    parties were spouses?

[6]

The appellant submits the trial judges
    finding that the parties were common law spouses was based on a narrow review
    of select documentary evidence and a failure to consider other relevant
    evidence that undermined her conclusion.

[7]

We see nothing in the trial judges reasons to
    suggest she relied on only some of the documentary evidence to the exclusion of
    other relevant evidence. Rather, her reasons demonstrate that she carefully
    reviewed all the relevant evidence.

[8]

The trial judge reviewed the applicable
    definition of spouse under s. 29 of the
Family Law Act
, meaning: a
    spouse defined in subsection 1(1) including either of two persons who are not
    married to each other and have cohabited, (a) continuously for a period of not
    less than three years. She noted that s. 1(1) of the Act defines cohabit as
    to live together in a conjugal relationship, whether within or outside marriage.
    The trial judge correctly instructed herself that the question to be answered
    was whether the parties were in a conjugal relationship. In determining whether
    a conjugal relationship existed between the parties, she carefully reviewed the
    relevant evidence in accordance with the well-established factors set out in
Molodowich
    v. Penttinen
(1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), as adopted and
    affirmed by the Supreme Court in
M. v. H.
, [1999] 2 S.C.R. 3.

[9]

The trial judge made negative assessments of
    the parties and witnesses testimony. It was therefore reasonable and
    necessary for the trial judge to turn to documentary evidence to assist her in
    determining the issue. The trial judge found that both parties had serious
    credibility and reliability issues and that they gave whatever answer they
    thought would assist them in advancing their case and the answers changed
    during the trial. She reviewed in detail the inconsistent and unreliable
    elements in each partys testimony and in their witnesses testimony. Her
    assessment was amply supported by the record.

[10]

The appellant had denied financially supporting the
    respondent and maintained that they were no more than friends and roommates.
    The trial judge found that the appellants contentions were contradicted by her
    own documents. Importantly, the trial judge saw that the appellant had
    consistently named the respondent as her common law spouse and beneficiary in
    important documents, including: her will, powers of attorney for property and
    care, her life insurance policy, pension plan, group retirement savings plan,
    extended medical and health insurance, and in her income tax returns, where he
    was also claimed as a dependant. The trial judge observed that the appellant
    had deliberately failed to disclose these documents until just before the
    trial. We also note that on cross‑examination, the appellant admitted
    that she indicated that the respondent was her common law spouse in her will
    and powers of attorney because she felt that he was.

[11]

We reject the appellants assertion that the trial judge
    erred in failing to refer explicitly to documentation signed by the respondent
    to transfer land in Nova Scotia in which he stated that he was not married or a
    spouse. It is well established that the trial judge was not required to refer
    to every piece of evidence, notably evidence that did not and could not have a
    material effect on her decision. The respondent testified that his statement was
    correct because common law spouses are not recognized as married or spouses
    in Nova Scotia. Whether or not the respondents assertion is accurate, this isolated
    piece of evidence does not undermine the significant evidentiary support for
    the trial judges conclusion that the parties lived together in a conjugal
    relationship.

[12]

We see no error in the trial judges analysis on this issue
    that warrants appellate intervention. Her determination that the parties were
    spouses under the provisions of the
Family Law Act
because they had
    lived together in a conjugal relationship for 21 years involves questions of
    fact and mixed fact and law that are subject to deference on appeal absent
    palpable and overriding error:
Climans v. Latner
¸ 2020 ONCA 554, at
    para.
61;
Opie v. Zegil
(1997), 28 R.F.L. (4th) 405 (Ont. C.A.), at paras.
15-17. The appellant does not suggest that the trial judge
    applied incorrect statutory provisions or inapplicable legal principles to
    determine whether a conjugal relationship existed. She has not identified any
    palpable or overriding error. Essentially, the appellant objects to the outcome
    of the trial judges analysis and asks us to reweigh the evidence and redo the
    trial judges findings. That is not our task on appeal.

(ii)

Did the trial judge err in awarding retroactive and ongoing spousal
    support to the respondent?

[13]

The appellant submits the trial judge erred in awarding any
    spousal support to the respondent because she erroneously applied the criteria under
    the
Divorce Act
, R.S.C., 1985, c. 3 (2nd Supp.) for determining
    eligibility to spousal support when she should have considered the factors
    under the
Family Law Act
. She also says the trial judges reasons are
    inadequate to explain the amount and duration of the support ordered,
    especially given the respondents failure to provide an evidentiary basis for
    his support claim.

[14]

This court in
Ballanger v. Ballanger
, 2020 ONCA
    626, at paras. 22-23, recently and compendiously reiterated the
    well-established deferential appellate standard of review and its rationale in
    relation to support orders:

The Supreme Court of Canada has instructed
    courts of appeal to accord significant deference to the decisions of trial
    judges relating to support orders. The discretion involved in making a support
    order is best exercised by the judge who has heard the parties directly. The
    deferential standard of review avoids giving parties an incentive to appeal
    judgments to attempt to persuade the appeal court that the result should be
    different. This approach promotes finality in family law litigation and
    recognizes the importance of the appreciation of the facts by the trial judge.

An appeal court can therefore only interfere
    with the trial judge's decision if there is a material error such as a serious
    misapprehension of the evidence, or an error in law. It is not entitled to
    overturn a support order simply because it would have made a different decision
    or balanced the factors differently: see
Hickey v. Hickey
, [1999] 2 S.C.R. 518,
at paras. 11-12.

[15]

There is no dispute that in determining the respondents
    entitlement to spousal support, the trial judge explicitly referenced only the
    statutory criteria set out in s. 15.2(6) of the
Divorce Act
, which has
    no application to common law spouses, rather than the factors mandated for her
    analysis under ss. 33(8) and (9) of the
Family Law Act
. While this was
    an error, the question is whether this error is so material that it wholly
    undermines the trial judges decision.

[16]

In our view, it does not. There is significant overlap
    between the
Divorce Act
and the
Family Law

Act
criteria. Significantly, the promotion of economic self‑sufficiency within
    a reasonable period of time figures prominently in both statutes. Giving the
    trial judges reasons the generous reading they require, it is clear that she
    considered all the relevant factors in determining whether spousal support was
    warranted, including the respondents lack of contributions and work efforts,
    his mental health issues, his diminished resources, the appellants income, the
    parties lifestyle during their relationship, the parties ages, and the length
    of their relationship.

[17]

There was ample evidence to support the respondents
    economic dependence on the appellant during their relationship and his need for
    financial support following separation. The respondents unchallenged evidence
    was that he was in receipt of disability benefits, lived in shelters and
    frequented food banks. Economic self-sufficiency does not mean mere subsistence
    but is a relative concept tied to the achievement of a reasonable standard of
    living having regard to the lifestyle the couple enjoyed during their
    relationship and the time needed to reach the goal of self-sufficiency:
Rioux
    v. Rioux
, 2009 ONCA 569, at paras. 42-44;
Fisher v. Fisher
, 2008
    ONCA 11, 288 D.L.R. (4th) 513, at paras. 58-59;
Chutter v. Chutter
,
    2008 BCCA 507, 301 D.L.R. (4th) 297, at paras. 55-61.

[18]

The trial judges award of spousal support was not so high that
    it warrants intervention. Rather, it was below the lowest range of the SSAGs
    having regard to the parties respective ages, the length of their relationship
    and the income earned by the appellant and imputed to the respondent. Given the
    finding that the parties had cohabited for 21 years and the respondent was 52
    at the time of separation, the trial judge could have awarded time-unlimited
    support in accordance with the Rule of 65 under the SSAGs. She did not do so.

[19]

The trial judge was alive to the respondents deliberate
    failure to become economically self-sufficient notwithstanding any demonstrated
    impediment other than his self-imposed aversion to what he saw as low-level
    work that would really rip out [his] soul. As a result, she imputed income to
    him and implicitly imposed a time-limited award by ordering a mandatory review
    of her support order no later than 2025. By her findings and her review order,
    the trial judge sent a strong message that the respondent will have to show significant
    efforts toward economic self-sufficiency by the time of any review or risk the
    termination or reduction of the spousal support order on that basis alone.

[20]

We see no basis to interfere.

(iii)

Trial costs

[21]

The appellant submits that the trial judge erred in failing
    to allow the parties to make submissions as to costs and in failing to make any
    provision for costs in her decision. We disagree.

[22]

As the parties were unrepresented at trial, to obtain an
    award of costs, it was incumbent on the appellant to demonstrate that she forewent
    income or incurred disbursements in relation to the trial:
Fong v. Chan
(1990), 181 D.L.R. (4th) 614, at para. 26. There is no evidence in the record
    to support the appellants claim for any trial costs. In any event, success was
    mixed at trial.

[23]

We therefore decline to make any order respecting the trial
    costs.

Disposition

[24]

Accordingly, the appeal is dismissed.

[25]

If the parties cannot agree on the disposition of costs of
    the appeal, they may make brief written submissions of no more than two pages,
    plus a costs outline within ten days of the release of these reasons.

David
    Brown J.A.

L.B.
    Roberts J.A.

B. Zarnett
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Paletta International Corporation
    v. Liberty Freezers London Ltd., 2021 ONCA 512

DATE: 20210716

DOCKET: C67449

Roberts, Zarnett and Sossin
    JJ.A.

BETWEEN

Paletta International Corporation

Plaintiff

(Respondent)

and

Liberty Freezers London Ltd.

Defendant

(Appellant)

Kim G. Ferreira and Asad Ali Moten, for
    the appellant

Robert C. Dunford and Sarah Wouters,
    for the respondent

Heard: January 27, 2021 by
    video conference

On
    appeal from the judgment of Justice Dale Parayeski of the Superior Court of
    Justice, dated August 26, 2019.

REASONS
FOR DECISION

[1]

By reasons dated June 4, 2021, the appeal was
    allowed in part with respect to the respondents damages. In accordance with our
    invitation, the parties have made further submissions respecting the issues of
    rent differential damages and trial costs.

[2]

The respondent submits that it has incurred rent
    differential damages in the amount of $50,827.83, plus post-judgment interest,
    because of the appellants breach of the lease.

[3]

We agree with the appellants position that the
    respondent has not suffered any damages. The $200,000 deposit that the
    appellant forfeited to the respondent because of the breach must be deducted
    from the respondents damages. As a result, we order that no rent differential damages
    are payable.

[4]

The parties have resolved the issue of the trial
    costs. They have agreed that the trial judges April 15, 2020 costs award in
    favour of the respondent in the amount of $300,000 is set aside and that each
    party shall bear its own trial costs. No further order is required.

L.B.
    Roberts J.A.

B.
    Zarnett J.A.

L.
    Sossin J.A.


WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the
    Criminal Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following
    offences;

(i)      an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by
    the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2),
    in proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of
    an offence other than an offence referred to in subsection (1), if the victim
    is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

(b) on application of the victim
    or the prosecutor, make the order.

(3)     In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s.  8(3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.  13,
    s. 18.

486.6(1)       Every person who
    fails to comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Litt, 2021 ONCA 510

DATE: 20210716

DOCKET: C65746

MacPherson, Trotter and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Grant Litt

Appellant

Danielle Robitaille and Lauren Mills
    Taylor, for the appellant

Jamie Klukach and Caitlin Sharawy, for
    the respondent

Heard: January 21, 2021 by video conference

On appeal from the conviction entered on
    May 10, 2018 by Justice Frederic M. Campling of the Ontario Court of Justice.

Harvison Young J.A.
:

A.

Overview

[1]

The charges underlying this appeal arose out of
    a frightening home invasion. When the 15-year-old complainant answered the
    door, she was attacked by a young man who pushed her to the floor and later fled.
    The appellant was charged with breaking and entering and committing an
    indictable offence, touching a person under 16 for a sexual purpose, and
    attempting to choke a person to enable himself to commit the indictable offence
    of sexual assault.

[2]

The only issue at trial was identity. The
    complainant had provided descriptions of the attacker and worked with the
    police to create a composite sketch. She had also noted the appellants photo
    in a photo line-up. The attacker had left a boot print on the floor at the
    home, and the Crown advanced expert evidence at trial comparing the boot print at
    the scene with the appellants boots, which were seized from his car. The
    appellants evidence on his whereabouts also placed him in the vicinity of the
    complainants home around the time of the attack. The trial judge convicted the
    appellant of all three charges.

[3]

On appeal, the appellant argues that the trial
    judge erred in his assessment of the evidence and erred in dismissing his
    application to exclude from evidence his boots and evidence flowing from those
    boots pursuant to s. 24(2) of the
Canadian Charter of Rights and Freedoms
.
    He also seeks to introduce fresh evidence consisting of a revised opinion on
    the boot print by the Crowns expert from trial.

[4]

For the following reasons, I conclude that this
    fresh evidence must be admitted with the result that the appeal must be allowed
    and a new trial ordered. Accordingly, it will not be necessary to consider the
    other grounds of appeal except to the extent that any aspects of those
    arguments bear on the fresh evidence issue.

B.

BACKGROUND

(1)

Facts

[5]

The 15-year-old complainant and her sister had
    just arrived home from school. They lived on a country road near Hamilton,
    Ontario. The complainant was vacuuming when the family dog started barking. She
    looked out the window and saw a red dump truck parked on the road. A few
    minutes later, a young man knocked on her door, asked for directions, came into
    the home, grabbed her by the arms, and pushed her to the floor. She started
    screaming, and he started to touch her breasts. He put his hand over her mouth
    and choked her, but he abandoned the attack when her sister in another room
    heard screaming and called out. The young man fled.

[6]

The complainant called 911 shortly after the
    attack. That evening, at a police interview, she provided the police with a
    detailed description of her attacker. A boot print was also found on the floor
    of the house. The day after the attack, the complainant met with police to
    create a composite sketch of her attacker.

[7]

The appellant worked for a landscaping company,
    which had headquarters near the complainants home, in the spring of 2016. The employees
    used red trucks. On May 25, 2016, the day of the attack, the appellant was in Guelph
    with his grass cutting crew and returned to the company headquarters in the
    afternoon at around 3 to 4 p.m. He was driving a red dump truck that day. After
    returning to headquarters, he went to the dump alone to dispose of the grass
    clippings, located to the west. To delay having to clean out his bosss pond,
    which was an apparently unpleasant job, he went east instead and drove up the
    road the complainant lived on before looping back to the dump. This added
    around five minutes to his trip. The appellants route in a red dump truck on
    the way to the dump took him past the complainants home around the time of the
    attack. The appellant testified at trial and denied attacking the complainant.

[8]

The police planned to arrest the appellant,
    seize his boots and cell phone incidental to arrest, secure his vehicle, secure
    his home, and then release him unconditionally. They also planned to then
    obtain search warrants for his car, home, and cell phone. The appellant was
    arrested on June 1, 2016 and read his rights and cautioned. The police seized
    his cell phone and the boots he was wearing, which were new. They noticed another
    pair of boots in his car as well. The appellant was handcuffed and placed in
    the back of the police car. One officer asked for his consent to search his
    phone and vehicle, which the appellant declined. The appellant was unconditionally
    released about an hour later, and in the meantime, the police had secured his
    home and towed his vehicle to the police station. The police obtained a search warrant
    for the car the next day and seized the pair of boots.

[9]

According to the police, the appellant had not
    asserted his right to counsel at any point. According to the appellant, he was
    searched and handcuffed before he was read his rights and cautioned, and he had
    asserted his right to counsel multiple times and had given his lawyers name,
    but the police did not facilitate a call to his lawyer. During the trial, the
    appellant applied under s. 24(2) of the
Charter
to exclude the evidence
    of or any evidence flowing from the boots seized from his car based on alleged
    breaches of ss. 8, 9, and 10(b). The trial judge assumed, without deciding,
    that the appellants right to counsel had been breached when he was arrested, and
    the trial judge held that the evidence was admissible on the basis that the
    evidence had not been obtained in a manner that violated the appellants
Charter
rights pursuant to s.24(2).

[10]

The complainant participated in a photo line-up
    on July 20. The appellants photo was taken from his drivers licence, which
    could not be enlarged without degrading it, so the photos in the line-up were
    all rather small. The complainant selected the appellants photo, saying
    [t]his picture really stood out to me  Im not really sure why  it really
    reminds me of  the person who was at my home.

[11]

The appellant was arrested and charged with the
    attack on the complainant on December 15.

(2)

Reasons for Conviction

[12]

The trial judge began his reasons by reviewing
    the circumstances of the attack on the complainant and her evidence on the
    attackers description. There were some discrepancies between her descriptions
    given at various times, which were minor and understandable, and some
    differences between the descriptions and the appellant. He also noted that the
    appellant resembled the composite sketch that the complainant and police
    created. The trial judge found that the photo line-up was fair, based on the complainants
    description, and he discussed the complainants photo line-up evidence and
    evidence at trial. Based on the appellants lies in his evidence regarding his
    physical appearance, the trial judge disbelieved the appellants denial of the
    attack.

[13]

He then described one part of the other evidence
    implicating the appellant, the evidence on the boot print. The Crown had called
    an expert on footwear impressions, Sgt. Annette Huys, to compare the boot print
    left at the complainants home with the old boots seized from the appellants
    car. The experts opinion was that there was a high degree of association
    between the left boot from the appellants car and the boot impression at the
    scene. The trial judge found that the evidence came extremely close to proving
    that the left boot from the appellants car made the impression in the
    complainants home.

[14]

In conclusion, the trial judge said that he
    considered all of the evidence, and that because the appellant lied rather
    obviously to exonerate himself, he disbelieved the appellants evidence of
    innocence. The Crowns evidence was overwhelming proof that the appellant
    attacked the complainant, and the trial judge convicted the appellant of all
    three charges.

C.

Discussion

[15]

The appellant raises a number of grounds of
    appeal. First, he claims that the trial judge erred in his assessment of the
    evidence by failing to properly and evenly scrutinize the evidence. He also
    claims that the trial judge misapprehended the expert evidence when he
    described it as coming extremely close to proving that the appellants boot
    seized from his car made the impression at the scene, when her opinion was that
    there was a high degree of association between the two.

[16]

Second, the appellant argues that the trial
    judge erred in failing to exclude the boot print evidence on the basis that it
    was not obtained in a manner that infringed a
Charter
-protected
    interest. He submits that his boots were obtained in the same investigative
    transaction as his initial arrest on June 1, and that the trial judge erred in
    accepting the Crowns argument that the search of the appellants car the next
    day, which led to the seizure of the boots, was not sufficiently connected to
    the failure to permit him to contact a lawyer.

[17]

The appellant also asks this court to admit fresh
    evidence on appeal. The fresh evidence consists of a revised expert report by
    the same expert, Sgt. Annette Huys, whose original report concluded that there
    was a high degree of association between the impression at the scene and the
    appellants boot. She prepared the subsequent report after reviewing an expert
    report obtained by the appellants appeal counsel after the trial. In this
    report, her opinion is that there is only an association of class
    characteristics between the impression at the scene and the appellants boot.

(1)

The Fresh Evidence

[18]

It will be useful to review the circumstances
    giving rise to the application to admit fresh evidence on this appeal.

[19]

To form her opinions, Sgt. Huys used the Range
    of Conclusions Standard for Footwear and Tire Impression Examinations published
    by SWGTREAD (Scientific Working Group for Shoeprint and Tire Tread Evidence),
    which provides possible conclusions ranging from insufficiency of detail to a
    positive identification. For a conclusion of association of class
    characteristics, the class characteristics of design and physical size must
    correspond between the questioned impression and known footwear, and
    correspondence of general wear may also be present. For a conclusion of high
    degree of association, the questioned impression and known footwear must
    correspond in the class characteristics of design, physical size, and general
    wear. There must also exist: (1) wear that, by virtue of its specific location,
    degree and orientation make it unusual and/or (2) one or more randomly acquired
    characteristics. In Sgt. Huys original opinion, she based her comparison only
    on the first criterion, wear that is unusual. While she observed a small
    accidental characteristic in the heel in the test impression of the appellants
    boot, she did not base her opinion on it because of the debris in that area of
    the scene impression and lack of clarity.

[20]

Upon reviewing the trial judges reasons, the
    appellants appeal counsel (who was not trial counsel) sought their own opinion
    of the boot print evidence. A footwear analysis report (the Benton Report) was
    obtained on September 22, 2019 and provided to the Crown. Mr. Benton also used
    the SWGTREAD Range of Conclusions. He could not verify the conclusion reached
    by Sgt. Huys, but rather opined that the definition of this conclusion can be
    misleading and is not supported by the testimony and evidence provided. The
    conclusion that should have been reached was that there was either a limited
    association of class characteristics or an association of class
    characteristics between the appellants boot and the scene impression.

[21]

The Benton Report also considered the size of
    the possible population of boots that resembled those seized from the appellant.
    The appellants boots were mens size 9½ Kodiak Rebel Steel Toe 6 Inch Work
    Boots. The outsole pattern used on this boot was used from 2012 to 2016. The
    same mold is used for size 9 and 9½ boots. In only one year (2015-2016), 1909
    pairs of boots in those sizes were sold in Ontario. It is unknown how many were
    sold in the proximate years and geographic areas. In addition, the same outsole
    pattern has been used on 7 different models of footwear from the same
    manufacturer.

[22]

The appellate Crown provided this report to Sgt.
    Huys. Upon reconsideration, she changed her opinion, downgrading her conclusion
    about the footwear evidence along the lines of the Benton Report. Sgt. Huys, in
    her new report, stated that while in her opinion there was an association of
    wear from the scene impression to the test impression of the appellants boot, Mr.
    Benton had pointed out areas of discrepancy due to lack of clarity in the scene
    impression. This lack of clarity changed her level of opinion from a
high degree of association
between the appellants
    boot and the scene impression to association of class characteristics.

[23]

In her revised opinion, Sgt. Huys made no
    express findings about the degree of association of wear between the scene
    impression and the test impression from the appellants boot. But, when
    comparing her conclusion to the SWGTREAD Range of Conclusions, it can be
    inferred that she no longer viewed the scene impression as containing wear
    that, by virtue of its specific location, degree and orientation make it
    unusual. Rather, to fall within the scope of an association of class
    characteristics this must have been only general wear.

(a)

The Parties Submissions

[24]

The appellant argues that the fresh evidence is
    admissible pursuant to the test in
Palmer v. The Queen
, [1980] 1
    S.C.R. 759 and
Truscott (Re)
, 2007 ONCA 575, 225 C.C.C. (3d) 321 because
    it was not available at trial, it is cogent and would have affected the
    verdict, and is credible. In particular, he submits that the fresh evidence is
    highly relevant to the identity of the assailant, which was the only issue at
    trial, and that, given the trial judges heavy reliance on Sgt. Huys trial
    opinion that there was a high degree of association between the scene
    impression and the appellants boot print, it is clear that her revised opinion
    could have affected the verdict.

[25]

The respondent argues that the appellant fails
    to meet the cogency argument. In its view, the potential ability of the fresh
    evidence to affect the verdict must be considered within the broader context of
    the evidence as a whole. It argues that the Crowns case, viewed in its
    entirety, was overwhelming, and that even with the revised expert opinion, it
    defies reasonable possibility that the tight web of incriminating
    circumstantial evidence engulfing the appellant could have been the product of
    bad luck or incredibly unfortunate coincidence.

(b)

The Law

[26]

The test for the admission of fresh evidence on
    appeal begins with s. 683(1) of the
Criminal Code
, R.S.C. 1985, c.
    C-46, which provides that an appellate court has a broad discretion to receive
    evidence on appeal where it considers it is in the interests of justice to do
    so. The burden is on the applicant to establish that the fresh evidence is
    admissible:
R. v. Abbey
, 2017 ONCA 498, 140 O.R. (3d) 40, at para. 43.

[27]

As explained in
R. v. Allen
, 2018
    ONCA 498, 362 C.C.C. (3d) 509, leave to appeal refused, [2020] S.C.C.A. No. 298,
    the phrase interests of justice signals a broad discretion. However, this
    discretion is not unbordered and a context-sensitive inquiry is required. As
    this court explained, at para. 90:

The interests of justice are
    furthered when verdicts shown to be unreliable on the basis of fresh evidence
    are set aside. But those same interests  the interests of justice  would
    undoubtedly suffer if the appellate process were routinely invoked to rewrite
    the trial record several years later. Admitting fresh evidence on appeal
    necessarily undermines legitimate finality expectations. This negative
    consequence can only be justified if the overall integrity of the process is
    furthered by the reception of the fresh evidence. As a result, admitting
    further evidence on appeal of facts litigated at trial is, as it must be,
    exceptional
.
[Citations omitted.]

[28]

Although the overriding test for the admission of
    fresh evidence is the interests of justice, appellate courts have structured
    their discretion under this broad standard by prescribing a specific set of
    criteria to be addressed which may be understood as addressing these concerns:
Abbey
,
    at para. 44. The leading Supreme Court of Canada case articulating the criteria
    is
Palmer
. In
Truscott
, a five-judge panel of this court reformulated
    the
Palmer
test. As in
Abbey
, I will use our courts reformulation.
    It consists of three criteria, summarized in
Abbey
, at para. 44:

1.

Is the evidence admissible under the operative
    rules of evidence? (admissibility criterion)

2.

Is the evidence sufficiently cogent in that it
    could reasonably be expected to have affected the verdict? (cogency criterion)

3.

What is the explanation offered for the failure
    to adduce the evidence at trial and should that explanation affect the
    admissibility of the evidence? (due diligence criterion)

[29]

This appeal turns on the second and third
    criteria  the cogency and due diligence criteria.

(i)

Cogency

[30]

Cogency has a three-pronged focus:
Truscott
,
    at para. 99;
R. v. C.B.
, 2019 ONCA 380, 146 O.R. (3d) 1, at para. 134.
    The three prongs are:

1.

The proposed evidence must be relevant to a decisive or potentially
    decisive issue at trial;

2.

It must be credible in that it is reasonably capable of belief; and

3.

It must be sufficiently probative that, when taken with the rest of
    the evidence received at trial, it could reasonably be expected to have
    affected the result.

[31]

There is no question that the proposed evidence
    here is relevant to the identification of the person who attacked the
    complainant in her home, which was the central issue at trial. Similarly, there
    is no serious issue as to the credibility of the fresh evidence as it consists
    of an amended opinion of the same expert whose opinion the trial judge accepted
    and relied on at trial. The heart of the cogency question in this appeal is whether
    the proffered fresh evidence could reasonably have affected the verdict at
    trial.

[32]

In
R. v. Reeve
, 2008 ONCA 340, 233
    C.C.C. (3d) 104, at para. 72, Doherty J.A. wrote that the could reasonably be
    expected to have affected standard is somewhere between would probably have
    affected the result and could possibly have affected the result. This
    determination requires a weighing of the potential probative value of the fresh
    evidence in the context of the trial evidence and the positions advanced by the
    parties at trial:
Reeve
, at para. 72.

[33]

This also requires a consideration of the trial
    judges reasoning. For example, in
R. v. J.A.A.
, 2011 SCC 17, [2011] 1
    S.C.R. 628, the trial judge commented that the case was a close one. He
    ultimately found the complainant to be credible and disbelieved the accuseds
    testimony. In his credibility discussion, he referenced evidence of an injury
    to the accuseds finger. A police officer had testified and explained why he
    thought the injury was a bite mark. The trial Crown had urged the trial judge
    to accept the officers testimony and argued that it corroborated the
    complainants version of events (that she bit down on the accuseds finger as
    hard as she could). The trial judge mentioned evidence of this finger injury
    twice and clearly regarded it as corroborative. On appeal, the appellant adduced
    compelling evidence that the injury was not a bite mark. In concluding that the
    fresh evidence could reasonably have affected the result, Charron J. stated for
    the majority, at paras. 12-13, that:

It is apparent, and understandable, from the
    trial judges reasons that he looked closely at any item of physical evidence
    that could assist him in determining the credibility issue.

When considered in
    the context of the other evidence at trial and the trial judges reasons as a
    whole, I agree with Winkler C.J.O. that Dr. Woods evidence is sufficiently
    cogent that it could reasonably be expected to have affected the verdict
    (para. 80).

[34]

In
Reeve
, Doherty J.A. commented that
    looking at the closing submissions of the parties is one way to glean the
    potential value of the discredited evidence: at para. 76. The discredited evidence
    in
Reeve
was expert toxicology evidence indicating that the victim
    died within 20 minutes after having his last drink, which contradicted the
    appellants version of events and supported the Crowns theory. Fresh evidence
    tendered suggested that this opinion was incorrect. The discredited evidence
    itself occupied a few seconds in a lengthy trial: at para. 73. However, the
    evidence was unchallenged in cross-examination and the experts credibility was
    not disputed. Because of this, there was a real likelihood that the jury gave
    Mr. Robinsons evidence significant weight: at para. 75. The evidence played
    an important role in the Crowns closing submissions and, if believed, would
    have undermined the appellants credibility and suggested that the murder was
    planned. Thus, although the Crowns case was formidable, the fresh evidence
could be reasonably expected to have affected the result
.

[35]

In summary, the application of the could
    reasonably be expected to have affected test requires
an
    examination of the fresh evidence, the evidence at trial, the submissions of
    the parties, and the role that the discredited evidence played in the reasoning
    process.
In
J.A.A.
and
Reeve
, the fresh evidence
    undermined aspects of the Crowns case. In
J.A.A.
, the discredited
    evidence played an important role in the trial judges reasoning process,
    especially because the trial judge admitted that it was a close case. In
Reeve
,
    it was impossible to know exactly what role the discredited evidence played in
    the jurys reasoning process. However, the evidence was an important component
    to the Crowns case and, given the fact that the evidence was unchallenged on
    cross-examination, there was a real likelihood that the jury gave the
    evidence significant weight.

(ii)

Due Diligence

[36]

The due diligence factor is not a condition precedent
    to the admissibility of fresh evidence on appeal. It only becomes important if
    the fresh evidence meets the first two criteria of admissibility and cogency. It
    is concerned with
the broader integrity of the criminal
    justice system, including the need for finality in the trial process
. It
    asks whether the explanation offered, if any, for the failure to adduce the
    evidence at trial should affect the admissibility of the evidence on appeal. The
    explanation offered or absence of an explanation may result in the fresh
    evidence being excluded despite being otherwise admissible on appeal. It is a
    factor to be taken into account, along with the requirement of cogency, in
    deciding whether the interests of justice warrant admission of the evidence:
Truscott
,
    at para. 93;
C.B.
, at para. 127;
Reeve
, at para. 68.

[37]

Where the fresh evidence was available but not
    tendered at trial for tactical reasons, an additional degree of cogency is
    required before the fresh evidence may be received on appeal:
C.B.
, at
    para. 135. As Watt J.A. explained in
R. v. Manasseri
, 2016 ONCA 703, 132
    O.R. (3d) 401, leave to appeal refused, [2016] S.C.C.A. No. 513, at paras.
    247-48:

We generally hold fresh evidence to a more
    stringent standard of cogency where it was available, but not adduced at trial
    because of a tactical decision by trial counsel.

The rule is
    general, but not unyielding. Due diligence is not a trump card that denies
    entry to all evidence tendered for the first time on appeal that satisfies the
    admissibility and cogency requirements for admission.

[38]

The general rule is less strictly applied in
    criminal law, and, as in
Manasseri
, when the charges are very serious
    as they were in that case: at para. 224.

(c)

Application to the Facts

[39]

There is no dispute as to the admissibility of
    the evidence pursuant to the general rules of evidence. It is relevant to the
    issue of the identity of the assailant, which was the sole issue at trial, and consists
    of an opinion by an expert whose qualifications were accepted at trial.

[40]

As I have already indicated, the fresh evidence
    issue turns on the questions of cogency and, relatedly, due diligence. The
    question of cogency considers whether the fresh evidence is relevant, credible,
    and sufficiently probative such that it could reasonably be expected to have
    affected the result. The fresh evidence is highly relevant and bears on a
    decisive issue at trial, identity. The experts revised opinion is credible. The
    same expert was qualified and testified on the same issue at trial. This was
    not a case, for example, where a witness who was reluctant and uncooperative at
    trial recants his evidence later: see e.g.
Allen
.

[41]

The respondent argues that this was an
    extremely strong case and that the proposed evidence could not reasonably be
    expected to have affected the verdict. With respect, I disagree.

[42]

In considering whether Sgt. Huys revised
    opinion could reasonably be expected to have affected the result, the court
    must examine its broader context, such as the fresh evidence, the evidence at
    trial, the submissions of the parties, and the role that the discredited
    evidence played in the reasoning process:
Reeve
, at paras. 72-76;
J.A.A.
,
    at para. 13.

[43]

In this case, the most important factor bearing
    on whether the fresh evidence could reasonably be expected to have affected the
    result is the trial judges reasons themselves. These reasons were brief, and a
    significant portion focused on the boot print evidence.

[44]

The trial judge readily dismissed the
    appellants evidence. The trial judge found that the appellant was lying when
    he said his hair was straight when the assault took place, and when he said
    that he shaved every day and explained that what appeared to be stubble in surveillance
    photos had been dirt and mud. The complainant had described stubble and said
    that her attacker had hair that was not really curly, but it wasnt, like
    straight. After referring to the appellants drivers licence photo and his
    arrest photo, and the appellants appearance throughout the trial, the trial judge
    noted that he would consider the appellants hair to be curly and had no doubt
    that it was curly on the day of the attack. Regarding the stubble and mud
    explanation, the trial judge stated that, in his opinion, the appellant was
    lying to exonerate himself. He commented that the composite sketch produced
    from the complainants description resembles [the appellant] very closely, but
    not precisely.

[45]

The trial judge then turned to the evidence on
    the photo line-up and the complainants evidence at trial, stating:

Whether the manner
    in which [the complainant] referred to your photo in the July 20, 2016 line-up
    and again in court, amounts to proof of your identity beyond a reasonable
    doubt, I do not need to decide because of the other evidence implicating you.

[46]

He then reviewed just one part of this other
    incriminating evidence, the boot print evidence, relying on Sgt. Huys opinion
    that there was a high degree of association between the left boot from [the
    appellants] car and the boot impression at the scene. He explained that:

Within this method
    of classifying conclusions, high degree of association is the closest
    conclusion to a positive finding that the boot made the impression. I am not
    bound by the classification system  nor am I bound by Officer Huys opinion. However,
    examining the evidence she examined and listening to her testimony I agree with
    her conclusion.
The evidence comes extremely close to
    proving that the left boot from your car made the impression in [the
    complainant]s home.
[Emphasis added.]

[47]

The trial judge then stated that he disbelieved
    the defence evidence in the context of the other evidence, concluded that the
    Crown evidence was overwhelming proof that he attacked the complainant, and found
    him guilty.

[48]

It is not necessary to determine whether the
    trial judges view that the expert opinion came extremely close to proving that
    the left boot made the impression was, as the appellant argues, a
    misapprehension of evidence. The point is that, given the fact that this was
    the only Crown evidence, apart from the identification evidence, that the trial
    judge considered in his reasons, it clearly had significant importance for him.
    The discussion of the boot print evidence amounted to about one third of the
    reasons. In itself, that makes it more difficult to say that Sgt. Huys fresh
    evidence could not reasonably be expected to have affected the verdict.

[49]

Moreover, the trial judges failure to
    scrutinize the other discrepancies and inconsistencies raised by the appellant
    exacerbates this difficulty.

[50]

This is especially true in a case such as this in
    which eyewitness identification plays a significant role. The complainants
    description of her attacker, the composite photo, and her photo line-up
    evidence were reviewed and largely accepted by the trial judge. As this court
    explained in
R. v. Gough
, 2013 ONCA 137, at paras. 35-36, triers of
    fact should treat eyewitness identification evidence with caution:

Being notoriously unreliable, eyewitness
    identification evidence calls for considerable caution by a trier of fact. It
    is generally the reliability, not the credibility, of the eyewitness
    identification that must be established. The danger is an honest but inaccurate
    identification.

The trier of fact
    must take into account the frailties of eyewitness identification in
    considering such issues as whether the suspect was known to the witness, the
    circumstances of the contact during the commission of the crime (including
    whether the opportunity to see the suspect was lengthy or fleeting) and whether
    the circumstances surrounding the opportunity to observe the suspect were
    stressful. [Citations omitted.]

[51]

The trial judge appears to have considered the boot
    print evidence to be so significant that it was not necessary for him to carefully
    scrutinize the other evidence and, in particular, the manner in which the complainant
    had selected the appellants photo from the line-up. He did not review, much
    less critically examine, a great deal of the circumstantial evidence relied on
    by the Crown, including evidence of the appellants whereabouts, before
    concluding that the Crown evidence was overwhelming proof that the appellant
    attacked the complainant. I hasten to add that it is not necessary for a trial
    judge to consider every single item of evidence and explain how they resolved every
    single inconsistency. However, given that the boot print evidence is less
    probative of the appellants identity than Sgt. Huys indicated at trial, the
    rest of the evidence required greater scrutiny than they received in the
    reasons in order to sustain a conviction. There are a number of examples that
    illustrate this point:

·

The appellant submitted at trial, and on appeal,
    that there were flaws in the manner in which the photo line-up was created, and
    in particular, that only a few of the photos were of men with round faces in
    accordance with the complainants description. The trial judge did say that he
    considered the line-up to have been adequate in this regard. However, the
    appellant also argues in this court that the photo line-up took place a number
    of months after the creation of the composite drawing which had been widely
    publicized, raising the possibility that the complainant was comparing the photos
    in the line-up to the composite she had in her mind rather than to the person
    she actually remembered.

·

Several other landscaping companies in the area
    also used red trucks, which were frequently seen on the road the complainant
    lived on. The activity and locations of other red trucks were not investigated
    or ruled out.

·

The complainant said she saw a red truck parked
    on the road, and also thought she had heard a vehicle backing out from her
    driveway after the attack, leaving open the possibility that multiple vehicles were
    present at the time.

·

The appellants evidence was that he always wore
    black shorts to work, while the complainant described her attacker as wearing green
    cargo or khaki shorts.

·

The complainant described her attacker as
    wearing a sweater or hoodie, but the appellants evidence was that he was not
    wearing a sweater that day as it was a hot day. He had also misplaced a sweater
    matching the complainants description the weekend before the incident.

[52]

The respondent may well be right that, had the
    trial judge scrutinized the evidence as the appellant argues that he should
    have, the circumstantial case was so strong that the appellant would have been
    convicted nonetheless. But given the absence of reasons on so many of these
    discrepancies, it is not, in my view, possible to say that the fresh evidence
    could not reasonably be expected to have affected the result.

[53]

The final consideration is that of due diligence.
    Although it is true that the evidence would have been available at trial had
    the defence retained and called Mr. Benton at that point, the appellant did
    provide an explanation. At trial, the appellants counsel was of the view that
    a cross-examination of the Crowns expert would be sufficient to cause the
    expert to concede or change her opinion. Having reviewed the reasons while
    considering an appeal, the appellants appeal counsel decided to obtain another
    expert opinion. That report, which addressed some of the same issues raised by
    trial defence counsel on cross-examination, caused the Crown expert to revise
    her opinion and downgrade the level of similarity between the impression at the
    scene and the boot. In these circumstances, the concern for the broader
    integrity of the criminal justice system, even taking into account the need for
    finality in the trial process, leads me to conclude that there was no failure
    of due diligence to warrant a refusal to admit the fresh evidence: see
C.B.
,
    at paras. 146-47.

[54]

In summary, the admissibility of the revised
    opinion under the operative rules of evidence, its credibility, the emphasis of
    the trial judges reasons on the now-revised boot print evidence combined with
    the absence of sufficient analysis of the rest of the evidence at trial, and
    the explanation for the failure to tender this evidence at trial satisfy the criteria
    for admissibility of fresh evidence and the proposed evidence should be
    admitted.

[55]

Admitting this evidence would not allow this
    court to dispose of the matter on appeal, as it is not so clear and conclusive to
    allow an immediate disposition in the form of an acquittal: see
R. v.
    Stolar
, [1988] 1 S.C.R. 480, at pp. 491-93;
R. v. Hay
, 2013 SCC
    61, [2013] 3 S.C.R. 694, at paras. 76-77. The revised opinion by the Crowns
    expert could, however, have potentially altered the result at trial when considered
    with the other evidence in the case. The result is that a new trial must be
    ordered.

[56]

In light of my conclusion as to the admissibility
    of the fresh evidence, I do not find it necessary to address the other
    arguments advanced on this appeal, including the trial judges conclusion that
    evidence should not be excluded under s. 24(2) of the
Charter
. This
    will be for the trial judge to decide at the new trial if this argument is
    renewed.

D.

Disposition

[57]

The fresh evidence is admitted. The appeal is therefore
    allowed, and a new trial is ordered.

Released: July 16, 2021
J.C.M.

A. Harvison Young J.A.

I agree J.C. MacPherson J.A.

I agree Gary Trotter J.A.