COURT OF APPEAL FOR ONTARIO

CITATION: Calin v. Calin, 2021 ONCA 558

DATE: 20210805

DOCKET: C67175

Tulloch, Nordheimer and Jamal JJ.A.

BETWEEN

Ilinca Calin and Ana Calin

Plaintiffs (Respondents/

Appellants by way of cross-appeal)

and

Liviu Calin

Defendant (Appellant/

Respondent by way of cross-appeal)

Andréa Baldy, for the appellant/respondent by way of cross-appeal

Alexander C. Gibson and Charles M. Gibson, for the
    respondents/appellants by way of cross-appeal

Heard: April 8, 2021 by video conference

On appeal from the judgment of Justice Sally A. Gomery of
    the Superior Court of Justice, dated June 7, 2019 with reasons reported at 2019
    ONSC 3564 and from the costs order dated July 16, 2019 with reasons reported at
    2019 ONSC 4313.

Jamal J.A.:

[1]

After a three-week trial, the appellant, Liviu Calin, was found liable
    for assault, battery, negligence, and breach of fiduciary duty for physically
    and emotionally abusing his twin daughters, the respondents, Ilinca and Ana Calin.
    The respondents claims for intentional infliction of mental distress and
    wrongful imprisonment were, however, dismissed. The appellant was ordered to
    pay the respondents a total of $85,000 as general damages and $20,000 as
    punitive damages.

[2]

The appellant now appeals the findings of liability and the quantum of
    damages awarded at trial. The respondents cross-appeal the dismissal of their
    claim for intentional infliction of mental distress and the quantum of damages.

[3]

In my view, the parties largely seek to relitigate the trial judges
    factual findings, credibility findings, and assessment of the evidence. I see
    no basis to do so. For the reasons that follow, I would dismiss the appeal and
    cross-appeal.

Background

[4]

The respondents were born in Romania and moved to Ottawa in 1994 with
    their father (the appellant) and mother. In 1999, the respondents mother was
    diagnosed with cancer. She died about a year later, just as the respondents
    were entering high school. In 2002, the appellant began a romantic relationship
    and moved in with another woman, leaving the respondents in the family home alone.
    In 2004, the respondents graduated from high school and began university. They continued
    to live in the family home until March 2005.

[5]

On March 26, 2005, the appellant went to the family home to have Easter
    dinner with the respondents. An argument and physical confrontation ensued. The
    respondents fled the home and sought refuge with the family of Ilincas
    boyfriend. The next day, the respondents filed a police report, alleging that
    the appellant had assaulted them, but they decided not to press charges.

[6]

In 2012, the respondents sued the appellant for assault, battery,
    negligence, breach of fiduciary duty, intentional infliction of mental
    distress, and wrongful imprisonment. They alleged that, on March 26, 2005, the
    appellant beat them violently and threatened Ana with a knife. They said that the
    March 26, 2005 incident was the culmination of a lifetime of physical and
    emotional abuse by the appellant. They claimed he beat them often, called them
    degrading names, isolated them from their peers and maternal relatives, and
    controlled their activities. They said the abuse caused them to suffer post-traumatic
    stress disorder (PTSD), depression, and anxiety, resulting in their inability
    to continue their education or obtain employment at the level they otherwise would
    have achieved. The appellant denied ever having physically or emotionally
    abused the respondents.

The trial decision

[7]

The trial judge found the appellant liable for assault, battery,
    negligence, and breach of fiduciary duty, but not liable for intentional
    infliction of mental distress and wrongful imprisonment. She awarded general
    damages of $50,000 to Ilinca and $35,000 to Ana and punitive damages of $10,000
    to each of them.

[8]

In thorough reasons, the trial judge acknowledged that determining what
    happened was challenging because most incidents were alleged to have occurred
    during the respondents childhood or adolescence, between 14 and 30 years ago, when
    they were alone with the appellant or their mother. No medical records documented
    the alleged physical injuries. The credibility of the central witnesses  the
    appellants, the respondents, and their grandmother  was thus a critical issue
    at trial.

[9]

Based on the totality of the evidence, the trial judge accepted the respondents
    accounts about certain incidents prior to March 26, 2005 as credible and
    largely accept[ed] their account of what happened that day, which reinforce[d]
    the plausibility of their allegations of earlier physical violence. She found that
    the appellant was physically violent towards the respondents nine times between
    1994 and 2005. She concluded that the appellants acts exceeded the reasonable
    discipline that parents may impose on their children. He had slapped them,
    punched them, pulled their hair, and beat them with a belt at least once. One
    time, he slapped Anas face, dragged her by the hair, punched her in the
    stomach, and threatened to hit her with a wooden beam. Another time, he hit Ilinca
    with a wooden broom. The trial judge also found that, on March 26, 2005, the
    appellant slapped and spanked the respondents and pulled their hair, punched
    Ana, held a steak knife to her throat, called her a fucking bitch, and
    threatened to kill her.

[10]

Even
    so, the trial judge found that the appellant did not socially isolate the
    respondents or control all their activities. She also concluded, based on the
    expert evidence, that the respondents had not proved the appellants conduct
    caused them to suffer from psychiatric disorders. Finally, she concluded that
    the respondents had not proved loss of income or competitive advantage because
    of the appellants actions.

Issues

[11]

On
    the appeal, the appellant asserts that the trial judge made palpable and
    overriding errors in her factual findings and credibility assessments and erred
    by awarding inordinately high damages.

[12]

On
    the cross-appeal, the respondents argue that the trial judge erred in finding that
    they did not prove that the appellants actions caused their psychiatric
    conditions, awarded inordinately low damages, and should have awarded damages for
    the loss of competitive advantage.

Issue #1: Did
    the trial judge err in her factual findings or credibility assessments?

[13]

The
    appellant argues that the trial judge made palpable and overriding errors in her
    factual findings underlying the appellants tort liability.

[14]

First,
    the appellant argues that the trial judge misapprehended the evidence by
    failing to consider and give sufficient weight to relevant evidence in
    assessing the respondents credibility. He highlights inconsistencies between the
    witnesses accounts of the incidents and between the respondents trial and
    discovery evidence, and the absence of contemporaneous evidence corroborating their
    alleged physical or psychological injuries. He asserts that the trial judges
    failure to address these inconsistencies was a reversible error.

[15]

I
    disagree.
Inconsistencies in a witnesss evidence, even absent
    corroborative evidence, do not open the door to appellate review of a trial
    judges credibility findings:
F.H. v. McDougall
, 2008 SCC 53, [2008]
    3 S.C.R. 41
, at paras. 70, 72, and 75-76. A trial judge may place
    less weight on certain evidence and accept other, conflicting evidence
that
they find more convincing. An appellate court cannot intervene
    just because it would weigh the evidence differently and arrive at alternative factual
    findings:
Salomon v. Matte-Thompson
, 2019 SCC
    14, [2019] 1 S.C.R. 729, at para. 33;
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 58.

[16]

Moreover,
    a trial judges
credibility findings attract heightened
    deference:
R. v. G.F.
, 2021 SCC 20,

71 C.R. (7th) 1, at para. 81;
McDougall
, at para. 72.
A trial judge need not
    find a witness not credible or unreliable because of inconsistences in the witnesss
    evidence. If the trial judge was alive to the inconsistencies, assessed the
    witnesss credibility in
the context of
the evidence
as
    a whole,
and concluded that the witness was credible, absent
    palpable and overriding error, there is no basis for an appellate court to
    interfere:
McDougall
, at paras. 70, 75-76.

[17]

Here, in my view, the trial judge was alive to the inconsistencies
    in the respondents evidence. She highlighted those inconsistencies throughout
    her reasons, rejecting aspects of their evidence and accepting others, or
    finding the evidence insufficient to conclude one way or another. She did not
    have to expressly reconcile every inconsistency arising from the respondents
    evidence: see
R. v. R.E.M.
, 2008 SCC 51, [2008]
    3 S.C.R. 3, at paras. 32, 64;
R. v. A.M.
, 2014
    ONCA 769, 123 O.R. (3d) 536, at para. 14.

[18]

For example, because of
the witnesses significantly
    divergent accounts of two incidents that occurred between 1994 and 2000, the
    trial judge could not determine precisely what had happened. Although she found
    that the appellants exact words and actions were in doubt, considering the
    overall accounts of the respondents and their grandmother and the appellants
    testimony and demeanour at trial, she concluded that the appellant had lashed
    out physically and verbally at the respondents on both occasions
.

[19]

Similarly,
    the trial judge expressed doubts about certain aspects of the evidence of the
    incident on March 26, 2005 that she found concerning, such as the absence of
    any mention of the knife in the police report and the embellished account given
    by the respondents to Ilincas boyfriends father right after the incident. Having
    considered these concerns in the context of all the evidence, the trial judge accepted
    that the appellant threatened Ana with a knife but found that the appellants
    violence was much less extreme than what the [respondents] described.

[20]

As
    these examples illustrate, the trial judge carefully considered the
    inconsistencies in the context of the evidence as a whole, with the benefit of
    the intangible impact of watching and listening to [the] witnesses and
    attempting to reconcile their evidence, and ultimately accepted aspects of the
    respondents evidence while rejecting others:
G.F.
, at para. 81;
R.
    v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20. I see no
    palpable and overriding error in the trial judges approach or conclusions.

[21]

Second,
    the appellant asserts that the trial judge erred by failing to address concerns
    about the respondents reliability, focusing only on their credibility.

[22]

I
    do not accept this submission. A trial judges determination to accept a
    witnesss evidence includes an implicit assessment of its accuracy or
    reliability. T
he trial judge is presumed to have correctly
    applied the law in accepting a witnesss evidence, including the relationship
    between credibility and reliability:

G.F.
,
    at para. 82. Assessing reliability is within the province of the trial judge
    who has the opportunity to hear and observe all of the witnesses:
R. v.
    Slatter
, 2019 ONCA 807, 148 O.R. (3d) 81, at para. 118,
per
Pepall
    J.A. (dissenting), affd 2020 SCC 36.
If the trial judge was
    alive to reliability concerns, considered those concerns, and assessed the
    witness's reliability and credibility, the trial judge's assessment attracts deference:
R. v. Sanichar
, 2012 ONCA 117, 280 C.C.C. (3d)
    500, at para. 82,
per
Laskin J.A.
    (dissenting), affd, 2013 SCC 4, [2013] 1 S.C.R. 54.

[23]

Here,
    the trial judge was sensitive to the reliability concerns arising from the
    respondents evidence. She raised concerns about their ability to recall
    incidents that took place when they were children or teenagers, their coloured
    view of the appellant, their tendency to describe emotional memor[ies] reflecting
    an amalgamation of events rather than a specific incident, and to repeat
    family folklore consisting of reconstructed accounts of events that they did
    not recall clearly but had told themselves and others over many years. The trial
    judge observed that the respondents may have confused the details of some
    incidents because the appellant had been violent with them many times. When these
    concerns warranted, the trial judge rejected their evidence as an example of
    how [they] may have reconstructed events to impute the [appellant] with more
    extreme and consistently abusive conduct than the evidence otherwise indicates.
    She cautioned herself that, to find the appellant liable, she must be
    persuaded that [the respondents] evidence is based on genuine recollection as
    opposed to the memory of a memory, tailored over time to suit a certain
    narrative.

[24]

That
    the respondents did not remember certain particulars of the incidents or
    remembered certain particulars incorrectly did not oblige the trial judge to
    disregard their evidence or conclude that they were lying. She found that the
    respondents were sincere and were honestly attempting to recall what
    happened to them. It was open to her to not accept the respondents evidence
    about certain details because of her reliability concerns and to accept their
    evidence about other aspects. I see no error in the trial judges treatment of the
    reliability concerns arising from the evidence.

[25]

Third,
    the appellant argues that the trial judge ignored credibility concerns about
    certain aspects of the respondents evidence, which he says undermined their evidence
    as a whole.

[26]

I
    do not agree with this submission. As with the reliability concerns discussed
    above, the trial judges credibility concerns did not oblige her to reject all the
    respondents evidence. Even after raising
credibility concerns
    about some aspects of their evidence, it was open to her to find them credible
    and reliable on other aspects. She
was entitled to accept
some, all, or none of their evidence: see
R.E.M.
, at para. 65;
R. v. N.K.
, 2021
    ONCA 13, at para. 11; and
R. v. A.K.
, 2018
    ONCA 567, at para. 7.

[27]

The
    trial judges reasons show that she considered the credibility concerns arising
    from the respondents evidence and rejected evidence that she did not find
    credible. She was entitled to assess the respondents credibility in light of all
    the evidence, including the appellants admissions of having physically
    punished the respondents twice. I see no reviewable error in the trial judges
    credibility findings.

[28]

Finally,
    the appellant asserts that the trial judge reversed the burden of proof and applied
    uneven scrutiny to the evidence.

[29]

I
    do not agree. The trial judges reasons show that she understood and applied
    the correct law on the burden and standard of proof. She is presumed to have
    applied the correct burden and standard, unless the appellant establishes reviewable
    error: see
McDougall
, at para. 54. In my view, the appellant has failed
    to do so.

Issue #2: Did
    the trial judge err in finding that the respondents had not proved that the
    appellants acts caused their psychiatric conditions?

[30]

The
    respondents argue on cross-appeal that the trial judge made a palpable and
    overriding error by failing to draw a common sense inference that their psychiatric
    conditions were caused by the appellants abuse and improperly relying on the evidence
    of the appellants expert rather than on their experts evidence.

[31]

I
    see no reviewable error in the trial judges causation analysis. Whether an
    inference of causation is warranted is within the trial judges discretion, to
    be determined with reference to all of the evidence:
Benhaim v. St-Germain
,
    2016 SCC 48, [2016] 2 S.C.R. 352, at para. 52. Such an inference must be
    reasonably available on the evidence and involves a consideration of the
    factual issues underlying causation and the relative position of each party to
    adduce evidence:
Ediger v. Johnston
, 2013 SCC 18, [2013] 2 S.C.R. 98,
    at para. 36;
Goodwin v. Olupona
, 2013 ONCA 259, 305 O.A.C. 245, at
    paras. 44-46.

[32]

Here,
    both parties led expert evidence on causation. The respondents expert was
    equivocal. He testified that it was plausible that the respondents psychiatric
    conditions were caused by the appellants abuse. He acknowledged that the circumstances
    of the respondents mothers death, of which he had been unaware when he formed
    his opinion, could also have triggered PTSD in the respondents. The trial judge
    found that this expert had limited experience in diagnosing PTSD and that his
    assessment was based on a review of the respondents records and a two-hour
    video conference with them. She therefore gave this experts evidence less
    weight.

[33]

The
    trial judge preferred the evidence of the appellants expert because of her
    experience and training as a forensic psychiatrist, which the respondents
    expert lacked. The appellants expert testified that it was impossible to
    determine whether the respondents conditions were triggered by the appellants
    abuse, by their mothers death, or by a biological predisposition.

[34]

The
    trial judge, with the benefit of watching and hearing the witnesses, also noted
    that she was struck  by how much Ilinca was visibly affected by memories of
    her mothers death. In her view, this loss [had] as profound an effect on
    [Ilinca] as [the appellants] abuse. She also noted that the respondents had
    exaggerated the extent of the appellants physical and emotional abuse in their
    interviews with both expert witnesses.

[35]

The
    trial judge weighed the evidence of both experts, in view of all the other
    evidence before her, and preferred the evidence of the appellants expert. She declined
    to infer causation and concluded that the respondents had not proved that their
    psychiatric disorders were caused by the appellants actions. The trial judges
    weighing of the expert evidence attracts appellate deference: see
Hacopian-Armen
    Estate v. Mahmoud
, 2021 ONCA 545, at paras. 66-68. I see no basis for this
    court to intervene.

Issue #3: Did the trial judge err in her assessment of
    damages?

[36]

The
    appellant argues that the damages awarded are inordinately high compared to the
    awards in other domestic assault and battery cases.

[37]

By
    contrast, the respondents argue that the damages awarded are inordinately low.
    They assert that their difficulties in life are attributable to the abuse they
    suffered at the hands of the appellant and ask this court to increase the
    quantum of general damages awarded to Ana from $35,000 to $100,000 and to Ilinca
    from $50,000 to $125,000.

[38]

The
    respondents also argue that the trial judge erred in not awarding damages for
    their loss of competitive advantage, despite evidence that the abuse hurt their
    ability to pursue their chosen vocations and work in competitive environments. The
    respondents seek $300,000 each for their loss of competitive advantage.

[39]

An
    appellate court can interfere with a damages award only if the trial judge made
    an error in principle, misapprehended the evidence, failed to consider relevant
    factors, considered irrelevant factors, made an award without any evidentiary
    foundation, or made a wholly erroneous assessment of damages:
Armstrong v.
    Moore
, 2020 ONCA 49, 15 R.P.R. (6th) 200, at para. 30.

[40]

In
    my view, neither the appellant nor the respondents meet the exacting standard
    for appellate intervention. The case law and evidence now relied on by the parties
    were canvassed and considered by the trial judge in her reasons. The trial
    judge considered that the appellants violence did not result in permanent
    physical injury to the respondents, while also recognizing the seriousness of
    the emotional and psychological scars that the respondents will bear their
    entire lives. She acknowledged that the respondents had suffered pain and
    fear that a child should never experience, much less at a fathers hands. She also
    considered the evidence of the impact of the abuse on the respondents,
    including their social, educational, employment, and health history and current
    situation. The trial judge considered and weighed all the relevant evidence and
    came to her own determination of the appropriate damages. I see no basis for
    this court to intervene.

[41]

I
    similarly see no basis to reverse the trial judges finding that the
    respondents are not entitled to damages for loss of competitive advantage. There
    is no dispute that the trial judge correctly articulated the criteria for such an
    award. She found, however, that the respondents failed to meet the applicable criteria.
    She found that [t]here is no evidence that [the respondents] have been less
    able to get or keep a job, or have lost out on employment opportunities, as a
    result of the psychological and emotional impact of their experiences with [the
    appellant]. Those findings were available to the trial judge on the record
    before the court. I again see no basis for this court to intervene.

Disposition

[42]

I
    would dismiss the appeal and the cross-appeal. Given the divided success, I
    would make no order as to costs.

Released: August 5, 2021 M.T.

M. Jamal J.A.

I agree. M. Tulloch
    J.A.

I agree. I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Dreesen v. Dreesen, 2021 ONCA 557

DATE: 20210805

DOCKET: C68996

Fairburn A.C.J.O., Harvison Young and Jamal JJ.A.

BETWEEN

Tracey Catherine Dreesen

Applicant (Respondent)

and

Stefan Siegfried Dreesen

Respondent (Appellant)

Gary S. Joseph and Julia McArthur, for the appellant

Victoria E. Craig, for the respondent

Heard: June 10, 2021 by video conference

On appeal from the order of
    Justice Michael R. Gibson of the Superior Court of Justice, dated December 22,
    2020.

Harvison Young J.A.:

[1]

The appellant father appeals from the dismissal of his motion to
    decrease the quantum of the child and spousal support payable to the respondent
    mother on the basis that the loss of his job in July 2017 had been a material
    change and that his subsequent income had dropped significantly. He also
    appeals from the motion judges refusal to terminate spousal support.

[2]

The central issues in this appeal are whether the motion judge erred in imputing
    the fathers pre-tax corporate income in calculating his income available for
    support, and whether he erred in ordering step-down spousal support rather than
    terminating spousal support as the father sought.

[3]

The relevant facts may be briefly summarized. The parties were married
    in 2000 and separated in 2012. The parties minutes of settlement on child and
    spousal support were reflected in the consent order of Miller J. dated August
    2, 2017, although the minutes of settlement had been executed earlier in April
    2017. The order of Miller J. provided that, among other things:

·

both parties would pay set-off table child support in accordance
    with the
Federal Child Support Guidelines
, S.O.R./97-175 (CSG), based
    on the fathers income per his notice of assessment of the previous year or
    that may otherwise be imputed to him and based on the greater of the mothers actual
    income or $48,000;

·

in the event of a material change in circumstances, either party could
    seek a variation of the child support arrangements;

·

the parties would adjust child support on a going forward basis every
    year based on their respective incomes in the prior year, the living
    arrangements of the children, and the CSG;

·

the father would pay the mother compensatory spousal support in
    the amount of $4,292 per month based on the mothers imputed income of $48,000
    and the fathers annual income of $257,312;

·

spousal support could be changed if there is a material change in
    circumstances, even if the change was foreseen or foreseeable; and

·

there would be a review of spousal support in October 2019, which
    would be an assessment of the mothers efforts to become self-sufficient.

[4]

When the parties entered their minutes of settlement, the father was
    employed by Yellow Pages, but he had also started his own business in 2012,
    Volt Media Inc., which acquired another corporation, Smart Workplace Inc., in
    2018. He was laid off from Yellow Pages in July 2017. He commenced a motion to
    change on June 28, 2019 which was ultimately heard on September 1, 2020 on the
    basis of affidavit evidence. In the meantime, he had unilaterally reduced
    support to reflect what he claimed his actual income was at that point. In his
    motion, he sought to have his child and spousal support reduced retroactively and
    going forward and to terminate spousal support.

[5]

The motion judge found that the father had not demonstrated a material
    change in circumstances warranting a retroactive or ongoing reduction in child
    support. The fathers employment with Yellow Pages ended in July 2017, prior to
    the date of Miller J.s order, and it was known at that time. Further, the
    father continued to have significant self-employment income available for
    support. The motion judge accepted the mothers submission that the fathers
    income had actually increased since the date of Miller J.s order. It was
    appropriate to add back the pre-tax corporate income and any unreasonably
    deducted expenses to the fathers income for child support purposes in this
    case, where the father was the sole shareholder and director of two
    corporations and had complete control over the income that he was paid. The
    motion judge determined that it was also appropriate to average the last three
    years of the fathers income from 2017-2019, such that his average income was
    $401,534.67. The total amounts of the fathers child support arrears and
    spousal support arrears were $81,407 and $52,626, respectively.

[6]

For child support going forward, the motion judge ordered that the
    father pay set-off table child support based on incomes of $401,502 imputed to
    the father and $48,000 imputed to the mother. The motion judge also found that
    the mother had made efforts to become self-sufficient but that she continued to
    have need for support. He noted that the mother was agreeable to a step-down
    and ultimate termination of spousal support and that step-down support would
    best balance her ongoing entitlement to compensatory and needs-based support
    with the need for her to transition to full self-sufficiency. He ordered the
    full spousal support amount of $4,292 per month for the year following the
    October 2019 review date, followed by a three-year step down and termination of
    spousal support after a final payment in September 2023.

[7]

The appellant father alleges a number of errors that he says warrant
    allowing the appeal and granting the relief he claimed in his motion to change:

1.

The
    determination that the fathers change in financial circumstances did not
    constitute a material change given the language in Miller J.s order that a
    change may be foreseen;

2.

The
    imputation of pre-tax corporate income;

3.

The
    averaging of the fathers income;

4.

The
    failure to terminate spousal support; and

5.

The
    determination of the motion on a written record alone.

[8]

I will address them in turn.

(1)

Material change

[9]

First, I do not agree that the motion judge erred in finding that there
    was no material change to warrant a variation of child support as requested by
    the father. As the Supreme Court made clear in the recent decision of
Colucci
    v. Colucci
, 2021 SCC 24, where the payor applies to retroactively decrease
    child support, the onus is on the payor to establish a past material change in
    circumstances, such as a material decrease in income: at paras. 59-63, 113. Although
    the father is correct that the loss of his employment actually took place around
    three months after the final minutes of settlement were negotiated in April
    2017, despite the fact that the Miller J. order reflecting the agreement was
    not issued until August 2 of that year, this is not a material misapprehension
    of evidence in light of the other reason given for the motion judges decision:
    his income did not, in fact, go down. The father did not meet the threshold
    requirement for a retroactive decrease in support.

[10]

Further,
    even if the motion judge had erred in finding that there was a material
    increase in the fathers income, rather than a decrease, a court would need to
    take into account the fathers disclosure to the mother in determining the
    appropriate date of retroactivity, given the fathers request for a retroactive
    decrease to August 2017:
Colucci
, at paras. 86-90, 95, and 113. The
    father had notified the mother of his lay off and 12 weeks of termination
    compensation in July 2017. However, in these circumstances where the father had
    been building a business, it is difficult to see how this could have
    constituted effective notice, given his failure to provide any disclosure of
    his corporate income at that point: see
Colucci
, at paras. 87-90, 113.

(2)

Imputation of corporate pre-tax income

[11]

Second,
    the father says that the motion judge erred in his application of s. 18 of
    the CSG, which provides that where a spouse is a shareholder, director or
    officer of a corporation and the court is of the opinion that the spouses
    annual line 150 total income does not fairly reflect all the money available to
    them for the payment of child support, a court may add all or part of the corporations
    pre-tax income to the payors income. He argues that his line 150 income should
    have been used instead and that he provided evidence that it was not
    appropriate to add Volt Media Inc.s pre-tax corporate income to his income.

[12]

I
    do not agree that the motion judges acceptance of the mothers position that
    all of the pre-tax corporate income from both corporations, and unreasonably
    deducted expenses, should be added was unfair in these circumstances. I see no
    error in the motion judges finding that his line 150 income did not accurately
    reflect his actual income. The father also did not lead sufficient evidence to
    explain why either corporation needed to retain earnings. In the cases to which
    he refers, such as
Bravo v. Pohl
(2008), 62 R.F.L. (6th) 209 (Ont.
    S.C.) and
Koester v. Koester
(2003), 50 R.F.L. (5th) 78 (Ont. S.C.), the
    payors led extensive and expert evidence on the issue.

[13]

Here,
    the motion judge had no evidence or documentation other than the limited
    disclosure of the father to ground a broader consideration of the nature of the
    corporations business and had no evidence of legitimate calls on its
    corporate income for the purposes of that business: see
Kowalewich v.
    Kowalewich
, 2001 BCCA 450, 92 B.C.L.R. (3d) 38, at para. 58;
Thompson
    v. Thompson
, 2013 ONSC 5500, at paras. 91-93. The fathers explanations for
    retaining income and business expenses were related to only Volt Media Inc. and
    lacked detail or expert evidence.

[14]

He
    stated that he had to pay staff and that it would not be wise to pay all the
    revenue to himself as dividends or salary. He explained that cumulative
    retained earnings from 2012-2018 of around $960,000 were needed for corporate
    tax, an asset purchase of newsletters and subscriptions, cash reserve for
    payroll, a future company office, and nearly $300,000 in disbursements to his father.
    On appeal, he clarified that those dividends to his father were actually paid
    to himself. His breakdown of the cumulative retained earnings from 2012-2018 and
    his general statement about paying staff lacked supporting evidence and did not
    adequately explain why or how much corporate income from 2017 onward needed to
    be kept in Volt Media Inc.

[15]

Similarly,
    his statement that his business expenses listed were reasonable was bald and
    conclusory, and it did not address the specific issues raised in the mothers
    affidavit. For example, she submitted that adding back half of the telephone
    and internet expenses to the fathers income would be reasonable, given that he
    worked from home.

[16]

The
    father also argues that the motion judge failed to set out the what, the why,
    and the how of his decision to impute pre-tax corporate income. While we agree
    that the motion judges reasons are somewhat lean, we are of the view that in
    light of the record as a whole, it is clear why and how the motion judge
    reached the conclusions that he did: see
R. v. G.F.
, 2021 SCC 20, 71
    C.R. (7th) 1, at paras. 69-71. The issues of adding back pre-tax income and certain
    other expenses were squarely before the motion judge and he was alive to the
    issues, especially given the mothers extensive affidavit evidence and
    submissions on the fathers corporate pre-tax income and expenses. It was open
    to the motion judge to consider all the evidence of the parties and make a
    determination on imputing this income. The observations in
Mason v. Mason
,
    2016 ONCA 725, 132 O.R. (3d) 641, at para. 170, are equally applicable here:

Neither party led much evidence,
    be it expert or otherwise, concerning the question of what, if any, amount of
    pre-tax corporate income should be included in the husbands income. As such, a
    court is left to do its best to resolve the issue with the evidence that is
    available. This is also consistent with achieving a just, expeditious and least
    expensive determination of the parties dispute.

(3)

Averaging income

[17]

Third,
    I do not agree that the motion judge erred in averaging the fathers income
    over the past three years for the purposes of ongoing child support calculations.
    The father argues that his line 150 income from 2018 to 2019 was consistent and
    that the most recent year should have been used. The motion judge rejected the fathers
    submission that he had suffered a decline in income. He also rejected the use
    of the fathers line 150 income alone and added pre-tax corporate income and
    unreasonably deducted expenses, which as noted earlier, was not an error. The
    use of a three-year average in these circumstances where the payor is, as he
    said, growing a business, is fair. The father gave no reasons for expecting a
    continuing decline in the success of his businesses. There is no obligation to
    use the most current years income in such a situation where there is reason to
    think it is anomalous.

(4)

Spousal support

[18]

Fourth,
    I do not agree that the motion judge erred in fact or law in his consideration
    of the mothers entitlement to spousal support. He considered the evidence
    before him and concluded that she had a continued entitlement on both a
    compensatory and needs basis and that despite efforts to become
    self-sufficient, she continued to need support. In imposing a step-down in
    support which will terminate after a final payment in September 2023, he found
    that this approach best balances the [mothers] ongoing entitlement to both
    compensatory and needs-based support with the need for her to transition to full
    self-sufficiency: at para. 29. It was open to the motion judge to make this
    finding based on the evidence of the parties.

(5)

Determining the motion on affidavit evidence alone

[19]

Finally,
    I do not agree that this motion should not have been determined on the basis of
    affidavit evidence and that it required
viva voce
evidence. The father
    concedes that there had been no request for questioning and no request that the
    motion judge hear
viva voce
evidence on the motion. Further, directing
    a trial would have resulted in additional delay and expense for the parties. See
    e.g.
Bloom v. Bloom
, 2018 ONSC 5343 (Div. Ct.), at paras. 8-13;
N.L.
    v. R.R.M.
, 2016 ONCA 915, 88 R.F.L. (7th) 19, at paras. 27-28.

[20]

The
    father argues that there was significant contradictory and conflicting evidence
    in the affidavit material. I disagree. The problem here is not that there was
    conflicting evidence, but that the father did not lead evidence that might have
    grounded his claims on the motion. For example, he did not provide sufficient evidence
    of good reasons for the corporations to retain income, or why certain business
    expenses were reasonable, in response to the mothers submissions. In light of
    this minimal amount of evidence, which he submitted late in the day and only
    after great effort on the part of the mother, it was open to the motion judge
    to accept the mothers evidence over the fathers evidence.

[21]

He
    also did not present conflicting evidence on what the mother had done in terms
    of her efforts in seeking employment and becoming self-sufficient. She had already
    admitted in her evidence that her businesses had not made strong profits and
    that one had not made profits at all. Essentially the fathers position was
    that those efforts were insufficient and unsuccessful. It was open to the motion
    judge to consider the evidence of the mothers efforts and come to his own
    determination about whether she had made efforts to or had become self-sufficient.

(6)

Disposition and costs

[22]

For
    all these reasons, I would dismiss the appeal, and order costs to the
    respondent of $14,000, inclusive of disbursements and HST.

Released: August 5, 2021 J.M.F.

A. Harvison Young
    J.A.

I agree Fairburn
    A.C.J.O.

I agree M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: O'Brien v. Chuluunbaatar, 2021 ONCA 555

DATE: 20210805

DOCKET: C68793

Gillese, Tulloch and Roberts JJ.A.

BETWEEN

Jeffrey OBrien

Applicant (Respondent)
[1]

and

Bia Chuluunbaatar

Respondent (Appellant)

Bia Chuluunbaatar, acting in person

Jeffrey OBrien, acting in person

Heard: June 14, 2021 by video conference

On appeal from the order of Justice James F. Diamond of
    the Superior Court of Justice, dated October 26, 2020, with reasons reported at
    2020 ONSC 6394, and from his costs order, dated November 23, 2020.

Gillese J.A.:

I.

OVERVIEW

[1]

This family law appeal engages new provisions in the
Childrens Law
    Reform Act,
R.S.O. 1990, c. C.12 (the
CLRA
)
    governing relocation and allocation of parenting time.

[2]

The mother and father have one child. They separated when she was about
    nine months old. Based on a consent order, the mother has sole custody of the
    child and the father has access on alternate weekends.
[2]

[3]

When the child was five years old, the mother brought a motion seeking permission
    to relocate with the child to Mongolia. The mother was born, raised, educated,
    and employed in Mongolia before immigrating to Canada. The father opposed the
    motion.

[4]

After a three-day trial in the Ontario Court of Justice, the trial judge
    issued an order permitting the relocation. The fathers appeal to the Superior
    Court of Justice was successful and the relocation order was overturned.

[5]

The mother appeals to this court. Her appeal depends, in part, on
    whether the recent amendments to the
CLRA
relating to relocation apply
    to a case started before the amendments came into effect on March 1, 2021. In
    my view, they do.

[6]

Further, as I explain below, there was no basis to overturn the
    relocation order. A trial judges decision on relocation is fact-based and
    discretionary. Because of this, it is to be given significant deference on
    appeal:
Van de Perre v. Edwards
, 2001 SCC 60,
    [2001] 2 S.C.R. 1014, at para. 11. Trial judges are in a better position than
    appellate judges to determine a childs best interests:
Reeves v. Brand
,
    2018 ONCA 263, 8 R.F.L. (8th) 1, at para. 6. In this case, the trial judge made
    unimpeachable factual findings, correctly articulated the relevant legal
    principles governing relocation, and applied those principles to the facts as
    she found them, before concluding that relocation was in the childs best
    interests. There was no basis for the appeal judge to interfere with the trial
    judges exercise of discretion.

[7]

Accordingly, I would allow the appeal and restore the trial order, with
    the mothers requested variation of the winter access provision.

II.

BACKGROUND

[8]

The appellant (the
mother
) was 43 years old at
    the time of trial and is from Mongolia. After graduating from a top school in
    Mongolia with a B.A. in Financial Management, she obtained an M.A. in Economics
    from Japan. In Mongolia, she worked as an economic analyst, a financial sector
    specialist, and a consultant for various international companies. She immigrated
    to Canada in January 2010. Unfortunately, despite her efforts and completing various
    programs to upgrade her skills, she has not had stable employment in Canada.
    She has been sporadically employed in low-level jobs and is currently
    unemployed.

[9]

The respondent (the
father
) was also 43 years
    old at the time of trial. He was born and raised in Peterborough, Ontario. He has
    full-time employment. In 2018, his annual income was $114,876.

[10]

The parties became romantically involved in 2010. In 2013, they began
    living together and had a child. They separated in September 2014 when the
    child was about nine months old. The mother has been the childs primary caregiver
    since her birth.

[11]

When the child was about two years old, a temporary court order
    allowed the mother to take her to Mongolia without the fathers permission. Since
    then, the child has continued to have a relationship with her maternal
    grandparents, keeping in touch with them through Skype. She has also kept in
    touch with her cousins in Mongolia, playing with them weekly on Skype. While English
    is the childs
first language, she can understand Mongolian in the
    household environment.

[12]

A consent order made in August 2016 (the
Consent Order
) gave
    the mother sole custody of the child and the father access, as agreed-on,
    including on alternate weekends. Although weekend access was specified, overnight
    access did not begin until January 2019.

[13]

In July 2018, the mother brought a motion to change the terms of the
    Consent Order so that she and the child could relocate to Ulaanbaatar, Mongolia
    (the
Motion
). Ulaanbaatar is the capital of Mongolia, a cosmopolitan
    city with a population of about 1,000,000. The mothers family lives in Ulaanbaatar.
    The mother asked that the fathers access be adjusted and offered to provide
    him with extensive access at Christmas and during the school summer vacation, as
    well as at other times, both in Toronto and Mongolia. The father opposed the Motion
    and sought an order for joint custody.

[14]

The mother wanted to relocate to Mongolia with the child because they
    would have a better financial situation and increased family support, and it
    would help the mothers mental health. In Canada, she has been unable to obtain
    work at a level consistent with her education, ability, and experience. In
    Mongolia, she worked as a business consultant, economic analyst, and project
    specialist, but her most recent jobs in Canada have been as a door-to-door
    water tank salesperson, barista, interpreter, and data entry clerk. The mother expects
    to find permanent, full-time work as a mid-level professional with an
    international organization or foreign company in Mongolia.

[15]

As a result of her employment situation in Canada, the mother has
    been unable to independently support herself and the child. They subsist on
    government benefits and child support from the father. In 2018, her total
    income was $38,380. The mother and the child live in a small bachelor apartment
    in Toronto where the child does not have her own room.

[16]

The
    evidence at trial showed that the mothers family has provided her and the
    child with love, support, and financial assistance since the childs birth. The
    maternal grandmother was the only extended family member at the hospital when
    the child was born. No one from the fathers large family in Peterborough attended
    at the hospital. The mothers mother and sister helped care for the child for six
    months after her birth. After the parties separated, the maternal grandparents deposited
    $5,000 in a bank account in Mongolia for the mother and the child. They also gifted
    the child their second apartment on her third birthday for her future use. The
    mothers evidence is that she also has an apartment, held in trust for her, in
    Mongolia.

[17]

If the relocation is permitted, the mothers family will provide childcare
    and the child will enjoy a closer relationship with her maternal grandparents
    and cousins. In contrast, while the child has participated each year in a
    number of large family events with the fathers family, they have otherwise been
    largely absent from the lives of the mother and the child since the parties separation.

[18]

The mother has few friends and no family in Canada. She has been
socially
    isolated since the childs birth, despite having sought help through mental
    health counselling, community supports, and her family doctor. The mothers isolation
    has had an impact on her psychological and emotional well-being.

[19]

The
    Motion was heard over the course of a three-day trial where the parties were
    cross-examined on their affidavit evidence. The mothers evidence included a detailed
    plan of how the childs life would be improved in Mongolia (the
Plan of
    Care
). It shows how the child will benefit from close connection with her
    extended maternal family, the ability to participate in many extra-curricular
    activities, and developing a connection to her Mongolian heritage and
    tradition. As well, her evidence is that the child will have better living
    conditions, including having her own room for the first time. The mother intends
    to sell the apartment in Ulaanbaatar that her parents gifted the child. With
    the sale proceeds, she will buy a two-bedroom apartment and therefore not have
    to pay rent. She plans to enroll the child in a private school with a rigorous
    international curriculum where the child will continue with English language
    instruction and become more fluent in Mongolian.

[20]

The
    t
rial judge found that the relocation was in the childs best
    interests, notwithstanding the change in access for the father. By order dated July
    5, 2019 (the
Order
), she permitted the mother to relocate, with the
    child, to Mongolia; granted the father extensive access; dismissed the fathers
    claim for joint custody; required the father to pay child support in accordance
    with the
Federal

Child Support Guidelines
,
S.O.R./97-175; and, adjusted child support to reflect the
    table amount for the years 2016, 2017, and 2018, based on the fathers income
    for each of those years. The Order specified that winter access would take
    place in Canada, or another location of the fathers choice.
The
    mother was awarded trial costs of $25,000.

[21]

The father appealed to the Superior Court of Justice. In reasons for
    decision dated October 26, 2020 (the
First Appeal Decision
), the
    appeal judge reversed the trial decision on relocation. He said the trial judge
    erred by focusing on the mothers reasons for relocation, rather than on whether
    relocation was in the childs best interests. He also said there was not a
    proper evidentiary record to show how the move was in the childs best
    interests. He further concluded that the trial judge had not given proper
    effect to the maximum contact principle.

[22]

By endorsement dated November 23, 2020, the appeal judge ordered the
    mother to pay the father costs of the trial and the first appeal fixed at $37,500
    (the
First Appeal Costs Award
).

III.

THE TRIAL DECISION

[23]

The
    trial judge gave lengthy, thoughtful reasons for decision. On the relocation
    issue, she began by setting out the legal principles in
Gordon v. Goertz
,
    [1996] 2 S.C.R. 27, as well as additional factors courts have since considered when
    applying those principles. She explained that although the Motion was brought under
    the
CLRA
, not the
Divorce Act
, R.S.C., 1985, c. 3 (2nd Supp.),
    the legal principles in
Gordon
applied nonetheless.

[24]

The
    trial judge then canvassed the evidence relevant to the relocation request and applied
    the
Gordon
principles and additional factors to her factual findings. Throughout
    her reasons, the trial judge repeatedly stressed that the question for
    determination was whether relocation was in the childs best interests.

[25]

The
    trial judges reasons for concluding that relocation was in the childs best
    interests include the following:

-

The mothers family in Mongolia has a long and strong relationship with the
    mother and the child; the family members have made them a priority in their
    lives, which the fathers family has not. The mothers family will continue to support
    them, particularly now when the mother especially needs their help;

-

The mother is struggling in Toronto as a single mother living alone, and
    feels isolated and insecure. She would benefit from the support of her family
    and friends in Mongolia;

-

The mother and child will have a better life in Mongolia  the mothers
    employment prospects are better, she will be more financially secure, and she will
    have help from her family financially and with childcare for as long as she
    needs it;

-

The mother will regain her confidence and her emotional, psychological,
    social, and economic well-being, which will benefit the child and is, therefore,
    in the childs best interests;

-

The child will benefit from a close connection with the mothers extended
    family, being able to participate in numerous extracurricular activities, having
    better living arrangements in a more spacious apartment, and developing a
    connection to her Mongolian heritage and tradition.

[26]

The
    trial judge found that even with the relocation, the mother would facilitate
    the relationship between the child and the father, which the mother recognized
    as important. On the trial judges findings, the mother has always followed the
    court ordered access; been generous with additional access; encouraged telephone
    access between the father and the child even when they were in Mongolia; and, allowed
    the father to attend her residence for access in a period when the father had mental
    health difficulties.

[27]

The
    trial judge considered the relationship between the father and the child, and
    the disruption that would result from the relocation. She recognized that the
    father has a good relationship with the child and noted the mothers evidence
    that the child has developed a strong bond with her father and enjoys spending
    time with him. She concluded that the advantages for the mother and the child of
    moving outweighed the disadvantages of a possible reduction of the fathers
    contact with the child. She ordered extensive access for the father including ten
    weeks in the
summer, three to four weeks in the
    winter, and, in Mongolia any time during a school break, for up to two weeks,
    on one months notice.

IV.

THE FIRST APPEAL DECISION

[28]

The appeal judge acknowledged that the trial judge properly
    articulated the key principles on relocation from
Gordon
. He also accepted the trial judges findings on the mothers mental
    health, isolation, and loneliness. However, the appeal judge concluded that
the trial judge erred by focusing solely upon the
    [mothers] reasons for relocating, saying that a parents reasons for moving
    cannot be the only reason upon which to ground a relocation request.

[29]

The
    appeal judge stated that the court must respect the maximum contact principle
    to the extent that such contact is consistent with the childs best interests. He
    noted that the trial judge had found the father to be a good parent but had
    done little analysis of the negative impact the move to Mongolia would have
    on the relationship between the father and the child.

[30]

The appeal judge also said there was an inadequate evidentiary
    record for the trial judges conclusion that the proposed move was in the
    childs best interests. He described the mothers Plan of Care as speculative,
    saying it was made
without any independent,
    corroborative evidence from any admissible source. He added that it was
    surprising that there was no evidence from any of the mothers family members,
    friends, or business colleagues in Mongolia, and that the mother had failed to provide
    evidence to substantiate the qualifications of the private school she intended
    the child would attend or its admission requirements. He also questioned the
    mothers evidence about her financial and job prospects in Mongolia and was
    critical of her failure to provide the court with more information about
    Mongolia.

V.

THE ISSUES

[31]

The mother submits that the appeal judge erred in:

1.

finding that the trial judge improperly applied the test for relocation;

2.

reweighing the trial judges assessment of the maximum contact principle;
    and,

3.

intervening because of an allegedly deficient evidentiary basis for the
    move.

[32]

If the appeal is allowed, the mother asks that the winter access provision
    be varied. On this matter, she seeks to introduce fresh evidence bearing on the
    appropriate location for the fathers winter break access. The fresh evidence
    consists of two affidavits: one from her and the other from the childs doctor.

ISSUE #1    THE TRIAL JUDGE MADE NO ERROR IN
    HER APPLICATION OF THE TEST FOR RELOCATION

[33]

At
    para. 67 of his decision, the appeal judge gave two reasons for concluding that
    the trial judge erred in her application of the test for relocation. First, he
    said that instead of determining whether relocation was in the childs best
    interests, the trial judge permitted it because the mother would have an
    improved life in Mongolia. Second, he said that the trial judge erred in
    considering the mothers reasons for moving because those reasons should have been
    considered only in an exceptional case where they were relevant to her ability
    to meet the childs needs. In my view, neither reason is correct. The trial
    judge made no error in her application of the test for relocation.

[34]

In
    terms of the first reason, it is simply incorrect to say that the trial judge
    focussed solely on the mothers reasons for relocation. The trial judges focus
    throughout was squarely on whether the relocation was in the childs best
    interests. She repeatedly stressed this: see paras. 15-16, 28-29, 32-34, 36,
    39, 121, 123, 125, 128-30, 132, 136-37, 139, and 141-46. Further, the trial
    judges weighing of the various considerations demonstrates her adherence to
    that focus. Three examples are sufficient to demonstrate this.

[35]

At
    para. 39 of her reasons, the trial judge wrote:

Requiring a parent to remain in a community isolated from his
    or her family and supports and in difficult financial circumstances will adversely
    impact a child.
The economic and financial benefits of moving to a community
    where the parent will have supports
, financial security and the ability to
    complete their education and establish a career
are properly considered

in
    assessing whether or not the move is in the childs best interests
.
    [Emphasis added.]

[36]

At
    para. 137, she wrote:

The court considered all of the following: that the mother feels
    isolated and insecure in Canada; that she would benefit from the support of her
    family and friends in the other location; that her employment prospects are
    better there; that
the child will benefit if the mother is able to become
    independent and live in a stable environment
; and that
the child will
    suffer if the mother is restricted and remains insecure.
[Emphasis added.]

It follows that an improvement in the mothers social, emotional,
    and financial circumstances are in the childs best interests.

[37]

And,
    at paras. 141-42 of her reasons, the trial judge wrote:

There is also a psychological, social and emotional component
    to [the mothers] desire to move, in order for her to regain the general stability
    and control in her life that has been absent since the relationship with the
    father ended in September 2014. There is a connection between the quality of a
    parents emotional, psychological and social and economic well-being and the
    quality of the childs primary care-giving environment.

An improvement in the mothers physical, emotional, and
    financial circumstances can only benefit the child and therefore be in the
    childs best interests.
[Emphasis added.]

[38]

The
    appeal judges second reason for concluding that the trial judge erred in her
    application of the test for relocation  namely, that the trial judge erred because
    she considered the mothers reasons for moving  disappears because of recent amendments
    to the
CLRA
governing relocation.

[39]

The
CLRA
amendments largely mirror amendments to the
Divorce Act.
Section
    16.92(1)(a) of the
Divorce Act
explicitly directs the court, when
    deciding whether to authorize a relocation, to take into consideration the reasons
    for the relocation. It reads as follows:

16.92(1)
In deciding whether to authorize a
    relocation of a child of the marriage, the court shall, in order to determine
    what is in the best interests of the child, take into consideration, in
    addition to the factors referred to in section 16,

(a) the reasons for the relocation;

[40]

The
Divorce Act
amendments came into force and effect on March 1, 2021.
    The transition provision in s. 35.3 of the
Divorce Act
makes it clear
    that the new relocation provision in s. 16.92(1)(a) applies, as of that date,
    to any ongoing proceeding:

35.3
A proceeding commenced under this Act
    before the day on which this section comes into force and not finally disposed
    of before that day shall be dealt with and disposed of in accordance with this
    Act as it reads as of that day.

[41]

Section
    39.4(3) of the
CLRA
also now directs the court to take into account the
    reasons for the relocation:

39.4(3)
In determining whether to authorize
    the relocation of a child, the court shall take into account the best interests
    of the child in accordance with section 24, as well as,

(a) the reasons for the relocation;

[42]

Unlike
    the
Divorce Act
, the
CLRA
does not contain an explicit
    transition provision governing the amendments. However, in my view, the
CLRA
amendments must also apply to any ongoing proceedings when they came into
    force on March 1, 2021. Common sense dictates that the parallel amendments in
    the
Divorce Act
, governing parenting orders for children on married
    parties, and the
CLRA
, governing parenting orders for children of non-married
    parties, operate in the same fashion.

[43]

Accordingly,
    on this appeal, the reasons for relocation are a proper consideration and this
    supposed error on the part of the trial judge falls away.

[44]

For
    these reasons, in my view, the mother succeeds on this ground of appeal.

ISSUE #2    THE TRIAL JUDGE MADE NO ERROR IN
    RESPECT OF THE MAXIMUM CONTACT PRINCIPLE

[45]

The
    appeal judge found fault with the trial judges application of the maximum
    contact principle, saying that the trial judge did little analysis of how the
    move would negatively impact the relationship between the father and the child.
    I do not agree for two reasons.

[46]

First,
    on the law as it stood when the Motion was decided, the trial judge made no
    error. She was fully alive to the maximum contact principle and its importance when
    assessing whether the relocation was in the childs best interests. Her
    relocation decision was an exercise of discretion that involved the weighing of
    competing considerations, including those arising from the maximum contact
    principle. That decision was entitled to deference. Rather than the trial judge
    having erred, it was the appeal judge who fell into error by reweighing the
    competing considerations based on his view of the weight to be afforded to the
    maximum contact principle.

[47]

At
    paras. 84-91 of her reasons, the trial judge addressed the maximum contact
    principle under the heading The Desirability of Maximizing Contact between the
    Child and Both Parents. She referred to the mothers detailed plan for regular
    contact between the father and the child, including a plan for extensive access
    and encouraging the child to have regular video chats as often as possible with
    the father. At para. 91, the trial judge explicitly found that the mother has
    always been supportive of the fathers relationship with the child. Other of
    her findings show how the mother has fostered and preserved that relationship. However,
    the trial judge found at para. 145 of her reasons, the importance of the
    fathers contact with the child could not override the positive effects of the
    move for the child: The advantages for the mother and the child in moving
    outweigh the disadvantage of the possible reduction of contact with the father.

[48]

The
    appeal judge interfered with the trial judges relocation decision because, in
    his view, she had given insufficient weight to the maximum contact principle. In
    so doing, the appeal judge erred in law. An appeal court is not to reweigh the
    relevant considerations. Interference with the trial judges exercise of
    discretion would have been justified only if the appeal judge was satisfied
    that it was unreasonable:
Reeves
, at para. 23. The appeal judge did
    not suggest that the trial judges relocation decision was unreasonable nor, on
    the record, could he have.

[49]

Second,
    the maximum contact principle has been replaced by s. 24(6) of the
CLRA,
another
    new provision.
[3]
As I have explained, because this appeal was heard after March 1, 2021, s.
    24(6) applies.

[50]

Section
    24(6) highlights the importance of a child having time with each parent while explicitly
    providing that the allocation of parenting time must be consistent with the
    childs best interests. It provides that:

In allocating parenting time, the court shall give effect to
    the principle that a child should have as much time with each parent as is
    consistent with the best interests of the child.

[51]

The
    trial judges reasons demonstrate that she was alive to the importance of the
    child having time with each parent so long as the allocation of parenting time was
    consistent with the childs best interests. Accordingly, in my view, the trial
    judges relocation decision and access order are fully consonant with s. 24(6).

[52]

For
    these reasons, in my view, this ground of appeal also succeeds.

ISSUE #3    THE TRIAL EVIDENCE WAS SUFFICIENT

[53]

The
    appeal judge said there was an absence of a proper evidentiary record to
    support the trial judges finding that the proposed move to Mongolia was in the
    childs best interests. In my view, he erred. The mothers evidence was led
    through her affidavits and that evidence was tested before the trial judge through
    cross-examination. The trial judge was best positioned to assess the sufficiency
    of the evidence. Further, she was entitled to accept the mothers evidence, as
    she did.

[54]

In
    her affidavit evidence, the mother gave detailed information about the proposed
    move and how it would affect the child. For example, at para. 50 of her affidavit
    dated April 4, 2019, the mother deposed:

With the move to Mongolia, [the childs] standard of living
    will improve because of my property ownership in Mongolia, she will reside in a
    middle class type of accommodation where for the first time she will have her
    own room and bed. The income that I expect to earn from my consulting job,
    support from [the father] and my parents help will cover [the childs] private
    school tuition, a cost that I could otherwise have not afforded here in Canada.
    I will also be able to enrol her in many extra-curricular activities as
    detailed in [the childs] Plan of Care in Mongolia. I expect [the child] and I
    to have a similar lifestyle as that of my sisters with her two children
    including going away on vacations

[55]

And,
    in the mothers Plan of Care, she addressed her plans for the childs education,
    schooling, healthcare, and extra-curricular activities; the role the maternal
    family would play with respect to the child and as support for the mother; managing
    the childs language and emotional transitions; how the father could stay
    connected with the child while she is in Mongolia; and, how the child would
    become more fluent in Mongolian and learn about her Mongolian heritage, while maintaining
    her English.

[56]

The
    mothers evidence also included information about her career opportunities, her
    connections and professional networks in Mongolia, and sample job postings from
    Mongolia, complete with expected or potential salaries.

[57]

The
    appeal judge questioned the absence of witness testimony from the mothers family
    in Mongolia. The language, financial, and technical barriers to having
    witnesses from Mongolia testify, coupled with the mothers limited financial
    means, go a long way to explaining why direct witness evidence from Mongolia
    was not before the trial court. In any event, however, there was no question about
    the veracity of the information that the mother provided about her education
    and work experience in Mongolia. The evidence concerning the emotional,
    financial, and physical help that the mothers family had already given her and
    the child was unchallenged. Nor was there any dispute about the mothers
    commitment to the fathers relationship with the child and the many ways she
    had fostered it. I will not repeat the evidence on these matters, details of
    which can be found above. The point is that this uncontested evidence provided the
    context within which the trial judge considered the mothers evidence and came
    to the determination that relocation was in the childs best interests. There
    is no basis on which to question the trial judges acceptance of that evidence,
    much less to interfere with her decision to permit relocation.

[58]

To
    say there was an inadequate evidentiary record on which the trial judge based
    her decision fails to recognize that the mothers affidavits and her oral
    evidence at the trial was evidence that the trial judge was entitled to accept.
    That evidence contained detailed information on all aspects of the move and how
    it would affect the child.

[59]

The
    trial judge saw and heard the parties. As
Van de Perre
makes clear, she
    was in the best position to decide whether relocation was in the childs best
    interests. She concluded that it was and exercised her discretion accordingly.
    There was no basis for interference by the first appeal court.

[60]

In
    my view, the mother succeeds on this ground of appeal as well.

VI.

THE FRESH EVIDENCE APPLICATION

[61]

The
    trial judge ordered both summer and winter access to be in Canada or another
    location of the fathers choice. However, at trial, the mother and father had agreed
    that if the move were allowed, winter access should take place in Mongolia
    until the child is 12 years old.

[62]

The
    mother seeks to introduce fresh evidence to show the difficulties for the child
    if winter access were to take place in Canada. That evidence shows, among other
    things, that the child would have to fly for over 25 hours across 12 time zones
    in a 3-week period at an extraordinary financial cost to the parties. The fresh
    evidence also includes an unchallenged letter from the childs doctor that such
    a trip would likely lead to health issues for the child, interruptions in her schooling,
    and behavioural issues arising from sleep loss and fatigue.

[63]

I
    would admit the fresh evidence and make the requested change to winter access. I
    commend the parties for placing the childs best interests ahead of their own
    as demonstrated by their continuing agreement that winter access should take place
    in Mongolia until the child is 12 years old and thereafter rotate, with one
    winter access period taking place in Toronto and the following one in Mongolia.

VII.

DISPOSITION

[64]

For
    these reasons, I would:

a.

allow the appeal;

b.

set aside the First Appeal Decision and the First Appeal Costs Award;

c.

restore the trial judges Order, with the exception that I would vary
    para. 3(b) so that access during the childs winter school break shall take
    place in Mongolia up to and including 2026 and, thereafter, shall alternate
    between Canada and Mongolia, with the visit in 2027 taking place in Canada;

d.

restore the Trial Costs Award; and,

e.

substitute a costs award of $12,500 all inclusive, in favour of the
    mother, in place of the First Appeal Costs Award.

[65]

Because
    the parties each said at the oral hearing of this appeal they would not seek
    costs of this appeal, I would make no order as to costs of this appeal or the
    motion heard by Sossin J.A. on January 19, 2021.

Released: August 5, 2021 E.E.G.

E.E. Gillese J.A.

I agree. M. Tulloch J.A.

I agree. L.B. Roberts J.A.

[1]

The mother requested the use of initials only in the title of
    proceedings. Absent legislative or court-ordered prohibition on identification,
    this courts general practice in private family law disputes is to retain the
    parties names in the title of proceedings while otherwise protecting the
    childs privacy to the fullest possible extent.

[2]

Pursuant to amendments to the
CLRA
, which came into
    effect on March 1, 2021, the terms parental custody and access have been
    replaced by the terms decision-making responsibility and parenting time.
    Sections 76(2) and (3) of the
CLRA

provide that references to custody and access in orders
    prior to March 1, 2021, shall be read as references to decision-making
    responsibility and to parenting time respectively. However, to avoid
    confusion, in these reasons I use the original language in the existing orders.

[3]
The
Divorce Act
now also contains a
    similar provision in s. 16(6):
In
    allocating parenting time, the court shall give effect to the principle that a
    child should have as much time with each spouse as is consistent with the best
    interests of the child.


COURT OF APPEAL FOR ONTARIO

CITATION: Kudrocova v. Kronberger, 2021 ONCA 563

DATE: 20210805

DOCKET: M52528 (C68576)

van Rensburg J.A.
    (Motions Judge)

BETWEEN

Claudia Kudrocova

Appellant (Moving Party)

and

Ferdinand Alois Kronberger

Respondent (Responding Party)

Juliet Montes, agent for Tiffani Frederick, for the
    moving party

Michael Ruhl and Kayla Gordon, for the responding party

Heard and released orally: August 4, 2021

ENDORSEMENT

[1]

This is a motion to set aside the Registrars dismissal of an appeal for
    failure to perfect on time, and awarding costs to the respondent of $750. The
    Order is dated December 9, 2020.

[2]

The appeal is of the orders of Justice McLeod made March 26, 2020 and May
    14, 2020 and the costs orders of June 30, 2020. The orders are in relation to
    the parenting of the parties two children.

[3]

After a Notice of Appeal was served on the respondent personally on
    August 15, 2020, the appeal has proceeded in a manner accurately described by
    Mr. Ruhl, the respondent fathers counsel, as sluggish.

[4]

There have been a variety of problems which were caused or contributed
    to by the appellants initial appeal counsel, which may have resulted, in part,
    from her health problems and car accident in December, 2020. These include: not
    sorting out a fee waiver or attending to pay the fee for filing documents in this
    court; service on the father instead of on his lawyer; not making it clear
    whether the mother was representing herself or represented by counsel; and most
    recently, failing to serve this motion on the respondent until notified by the
    court of the pending motion date. In the interim, counsel for the father was
    served with all of the appellants materials for the appeal, and prepared and
    served, and attempted to file, the responding materials.

[5]

Mr. Ruhl has fairly acknowledged that, except for the Registrars
    dismissal, the appeal has essentially been perfected. The appeal materials were
    served on Mr. Ruhl on October 20, 2020, with amended materials served on
    November 10, 2020. Mr. Ruhl fairly consented to the late filing of the amended
    appeal materials, and on December 18, 2020 he served responding materials, but
    he learned of the Registrars dismissal when trying to file his materials.

[6]

The factors to consider on a motion to set aside a Registrars dismissal
    are 1) whether the moving party had an intention to appeal within the time for
    bringing an appeal; 2) the length of the delay and any explanation for the
    delay; 3) any prejudice to the respondent caused by the delay; and 4) the
    justice of the case:
Paulsson v. University of Illinois
, 2010 ONCA 21,
    at para. 2. The overriding consideration on a motion to set aside a dismissal
    order is the justice of the case, which can include consideration of the merits
    of the appeal:
Akagi v. Synergy Group (2000) Inc
., 2014 ONCA 731, at
    para. 8 (in that case the appeal raised serious issues).

[7]

The moving partys affidavit explains that the delay was the fault of her
    first lawyer on the appeal, who did not sort out the question of a fee waiver,
    and then led her to believe that everything was rectified, and that her appeal
    was proceeding. After receiving the notice dismissing her appeal, the mother
    was assured by the lawyer that a motion to set aside the Registrars dismissal
    order would be brought. Apparently, the lawyer was in a car accident, and
    another lawyer, Ms. Frederick, took over the file in January 2021. This motion
    was brought several months later and was argued by Ms. Montes attending as Ms.
    Fredericks agent.

[8]

The fathers affidavit sets out a chronology of events. The motion to
    set aside the Registrars order is opposed primarily on the basis of the appellants
    delay. The father also asserts that the appeal has little merit, and that to
    the extent the mother is concerned about what she characterizes as the separation
    of the children, there is a mechanism in place for reattendance before the
    trial judge. He is also concerned about the effect of the ongoing delay on the
    children, who have grown accustomed to the parenting orders that were made. The
    father seeks costs of the appeal in excess of the $750 awarded by the Registrar
    for the materials that counsel has prepared to respond to the appeal.

[9]

I have concluded that it is in the interests of justice for the
    Registrars order to be set aside, and for the appeal to be permitted to
    proceed.

[10]

The
    circumstances are unusual. First, the appellant reasonably understood that her
    appeal was proceeding. The circumstances leading to the Registrars Order, as
    well as the delay in bringing the motion, are not of her making. She should not
    suffer the consequences of her lawyers oversight or inattention: see
Akagi
,
    at para. 6. Second, all of the materials have been prepared, including the
    responding materials and the appeal can be perfected without delay. Third, I am
    not persuaded in the circumstances that the delay is prejudicial to the
    childrens best interests. The current
status quo
will continue while
    the appeal is pursued.

[11]

I
    do not express any opinion on the merits of the appeal based on the limited
    argument before me on this point. I remind the appellant that the function of
    this court is not to retry the case on appeal, and that intervention is
    warranted only if there is a material error, a serious misapprehension of the
    evidence, or an error of law:
Van de Perre v. Edwards
, [2001] 2 S.C.R.
    1014, at para. 13. If, as the father submits, the errors that are relied upon
    by the mother are simply questions of fact, she will have a very difficult time
    with this appeal.

[12]

Accordingly,
    an order will go setting aside the Registrars order of dismissal; requiring
    the appeal to be perfected by August 20, 2021; and expediting the hearing of
    the appeal. By agreement of the parties, there is no order as to costs on this
    motion.

K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Thompson, 2021 ONCA 559

DATE: 20210805

DOCKET: C66630

Watt, Roberts and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kebrahas Mark Anthony Thompson

Appellant

Mark C. Halfyard, for the appellant

Scott Wheildon, for the respondent

Heard: April 21, 2021 by videoconference

On appeal from the conviction entered on October 25, 2018
    by Justice Gisele M. Miller of the Superior Court of Justice, with reasons
    reported at 2018 ONSC 6393.

REASONS FOR DECISION

Introduction

[1]

The appellant appeals his conviction for importing cocaine into Canada
    contrary to s. 6(1) of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19
. He submits that the
    trial judge erred in using a recklessness or negligence standard, rather than a
    subjective standard, to find that he was wilfully blind to the presence of
    illegal drugs concealed in his suitcases. He also submits that the trial judge failed
    to treat certain aspects of the appellants after-the-fact conduct as circumstantial
    evidence of innocence, and that she improperly took judicial notice of certain
    facts.

[2]

For the reasons that follow, we dismiss the appeal.

The Factual Context

[3]

Late in the evening on January 13, 2014, the appellant arrived at
    Toronto Lester B. Pearson International Airport on a flight from Montego Bay,
    Jamaica. He was directed to secondary inspection. Border Service Officers
    searched his suitcases, which the appellant confirmed he had packed.

[4]

Eight plastic Betapac brand spice packages were found in the
    appellants suitcases  five curry and three black pepper. Although the
    packages bore no visible irregularities and appeared to contain the labelled spices,
    in handling them, one of the Border Service Officers noted that they seemed
    less malleable than would be expected, given their apparent contents. An
    officer cut open one of the packages and discovered cocaine. The appellant was
    arrested. The other packages were examined and also found to contain cocaine.

[5]

At trial, the parties agreed that: approximately 3.7 kilograms of
    cocaine had been concealed in the spice packages; the appellants fingerprint
    was identified on the exterior of one of them; and, the cocaine had a value in
    the Greater Toronto Area that ranged between $170,000 and $407,000, depending
    on whether it was sold by the ounce, gram, or kilogram.

[6]

The appellant gave evidence at trial. He testified that he had gone to
    Jamaica for a family members funeral. While there, he spent time with Neville
    Williams, with whom he was in a relationship and infatuated.

[7]

According to the appellant, Mr. Williams asked him to bring some
    Jamaican spices to Toronto for Mr. Williams cousin (whose name the appellant was
    not given), for his restaurant Iri Veggie Take-Out. The appellant testified
    that Mr. Williams gave him the eight Betapac packages, that Betapac is a
    recognized brand of Jamaican spices, and that the packages looked normal and
    did not appear to have been tampered with. The appellant said that when he
    questioned Mr. Williams about the quantity, Mr. Williams told him that his
    cousin wanted a lot for the restaurant. Once in Toronto, the appellant was to
    await contact by someone who would pick up the packages.

[8]

The appellant testified that it did not occur to him that the packages
    might have drugs in them. On cross-examination, he agreed that it should have
    occurred to him that something was suspicious, however, he maintained that
    nothing did. The appellant gave evidence about his knowledge of how the drug
    trade operates, and that he would never knowingly traffic drugs because he had
    previously been acquitted of an importing charge and was always checked at
    customs.

The Trial Judgment

[9]

The trial judge set out the principles in
R. v. W.(D.)
, [1991]
    1 S.C.R. 742, relevant to whether the charge was proven beyond a reasonable
    doubt in light of the appellant having given evidence.

[10]

The
    trial judge accepted the appellants evidence about his relationship with Mr. Williams,
    and that it might be true that Mr. Williams provided the cocaine for delivery
    to someone at the restaurant the appellant identified. She also accepted that
    the cocaine was cleverly concealed in packages that appeared from the outside
    to be authentic packages of spice.

[11]

However,
    the trial judge did not believe the appellants evidence that he did not know,
    or even suspect, that the spice packages contained illegal drugs. She found
    that his history and knowledge of the drug trade demonstrated a heightened
    sensitivity to the fact and the ways in which drugs are imported from Jamaica
    into Canada. She found it was inconceivable that it would not have occurred
    to him that the spice packets contained some illegal drug.

[12]

The
    trial judge went on to find that even if [the appellant] did not have direct
    knowledge that there was cocaine in the packets he was bringing into Canada, he
    was wilfully blind as to the presence of drugs in the packets, and did not take
    sufficient reasonable steps to assure himself that they were not there. She
    found that the appellants enquiry of Mr. Williams as to the amount of spice did
    not result in an answer sufficient to reasonably allay his suspicions and the
    fact that he was not given the name of a person to deliver the packets to and
    was to await contact from an unknown person who would arrange pick up should
    have raised rather than allayed any suspicions. As the appellant acknowledged
    that curry powder and black pepper are readily available in Toronto, the trial judge
    observed that there would be no need for the appellant to bring those products
    to a restaurant that would likely have its own supplier and need those goods in
    greater quantities.

[13]

The
    trial judge concluded that she did not believe the appellants evidence that he
    did not know the spice packets contained illegal drugs, nor did it leave her
    with a reasonable doubt. She concluded that she was satisfied on all of the
    evidence that the appellant knew or was wilfully blind to the fact that he
    imported cocaine into Canada.

Analysis

(a)

Wilful Blindness

[14]

The
    appellant argues that the trial judge did not properly find wilful blindness,
    as she focussed on whether the appellant should have been, or should have
    remained suspicious, rather than on whether he actually suspected there were
    drugs in the packages and deliberately failed to further inquire in order to
    avoid knowledge. The appellant argues that in doing so, she used a recklessness
    or negligence standard.

[15]

We
    reject this ground of appeal for two reasons.

[16]

First,
    the trial judges finding of wilful blindness was in the alternative to her primary
    finding that the appellant actually knew that the packets contained illegal
    drugs. The trial judge did not believe the appellants evidence that he did not
    know the packages contained cocaine, stating that it was inconceivable that
    he did not know. She concluded that she was satisfied beyond a reasonable doubt
    on all the evidence that he had the requisite knowledge. The evidence spoke
    powerfully to his knowledge, as it included the undisputed facts that: cocaine
    of significant value was concealed in packages; the packages were in suitcases
    that the appellant had packed and transported; and, that one of the packages
    bore the appellants fingerprint. Even if there was an error in the trial
    judges approach to wilful blindness, it would not affect the result.

[17]

Second,
    we do not accept the argument that the trial judge used the wrong standard in
    her alternative wilful blindness analysis. The trial judge set out the correct definition
    of wilful blindness as articulated by this court in
R. v. Lagace
(2003)
, 178 O.A.C. 391, (Ont. C.A.) and
R.
    v. Rashidi-Alavije
, 2007 ONCA 712, 229 O.A.C. 365. Accordingly, when she
    twice in her reasons stated that the appellant was, in the alternative,
    wilfully blind, there is no doubt she was using the term as described in those
    cases  that the appellant was culpable because he actually suspected drugs but
    declined to make inquiries sufficient to allay those suspicions because he
    preferred to remain ignorant of the truth: see, for example,
Lagace
,
    at para. 28. The trial judge did not proceed on the erroneous basis that all
    that was required was that the appellant should have been suspicious.

[18]

The
    trial judges findings in support of her conclusion on actual knowledge also
    support her alternative conclusion on actual suspicion. The trial judge
    considered, but rejected, the appellants evidence that he did not suspect
    drugs. The evidence she accepted as to the value of the drugs, the appellants
    history and knowledge of the drug trade, the concealment of the cocaine in the
    packages in the appellants suitcases, and the fingerprint, speak with equal
    power to a conclusion of actual suspicion and a deliberate failure to learn the
    truth.

[19]

As
Lagace
makes clear, wilful blindness may be found even where an
    accused who held a suspicion made some inquiry. In determining whether an
    accused who made some inquiry remained suspicious and deliberately refrained
    from further inquiry to avoid the truth, the nature of that inquiry will be an
    important consideration For example, a finding that an accused took all
    reasonable steps to determine the truth would be inconsistent with the
    conclusion that the accused was wilfully blind: at para. 28.

[20]

The
    appellant focusses on the trial judges statements that the appellant did not
    take reasonable steps to ensure there were no drugs, that his inquiries were not
    sufficient to reasonably allay his suspicions, and that certain matters
    should have raised rather than allayed any suspicions. Read in context (and
    given her finding that the appellant was wilfully blind as discussed above), these
    statements reflect the trial judges consideration of the nature of the appellants
    inquiry, that is, of the steps he took to determine the truth. As explained in
Lagace
,
    the reasonableness of the steps taken is one factor to be considered; as
    earlier noted, if an accused took all reasonable steps, that would be
    inconsistent with a finding of wilful blindness. We do not interpret these
    statements to be the basis, let alone the sole basis, on which the trial judge
    concluded that the appellant was wilfully blind.

[21]

We
    therefore reject this ground of appeal.

(b)

After-the Fact
    Conduct

[22]

A
    little over a month after the appellant was arrested, the appellants lawyer
    wrote to the police providing information that the packages had been provided
    to the appellant by Mr. Williams, and that they were to be delivered to Iri
    Veggie Take-Out.

[23]

The
    appellant argues that the trial judge failed to take this evidence into account
    as something that reflected positively on his credibility, especially since the
    trial judge was critical of the appellants inability or failure to locate or
    contact Mr. Williams after his arrest.

[24]

We
    reject this ground of appeal. The fact that the trial judge did not
    specifically refer to the letter does not mean she did not consider it  she
    was not obliged to detail all evidence in her reasons. Moreover, the trial
    judge accepted, based on the evidence at trial, that Mr. Williams may have
    provided the packages and that they may have been intended for delivery to that
    restaurant. She nonetheless rejected the appellants evidence that he did not
    know or suspect that the packages contained drugs. In other words, those facts did
    not exculpate the appellant. We see no basis on which to conclude that the fact
    that this information was contained in the appellants lawyers letter gives it
    a different effect.

(c)

Improper Judicial
    Notice

[25]

In
    her analysis, the trial judge noted that a restaurant would require much
    greater amounts of the spices than the amount the appellant was to deliver. The
    appellant argues that there was no evidence on the appropriate quantity of
    spice for a restaurant, and as such, the trial judges comment constituted an
    improper resort to judicial notice.

[26]

In
    our view, the comment in question was not a finding of fact but was simply a
    minor part of the trial judges assessment of the inherent probabilities of the
    appellants evidence viewed through the lens of common sense. Moreover, the
    trial judge was entitled to disbelieve the appellants evidence, and reach the
    ultimate conclusions that she did, without that reference.

[27]

Accordingly,
    we do not give effect to this ground of appeal.

Conclusion

[28]

For
    these reasons, the appeal is dismissed.

David Watt J.A.

L.B. Roberts J.A.

B. Zarnett J.A.