COURT OF APPEAL FOR ONTARIO

CITATION: Cook v. 1293037 Alberta Ltd. (Travellers Cloud 9),
    2016 ONCA 836

DATE: 20161107

DOCKET: C61716

Blair, Epstein and Huscroft JJ.A.

BETWEEN

Gary Cook and Jennifer Corswandt

Plaintiffs (Appellants)

and

1293037 Alberta Ltd. operating

as Travellers Cloud 9

Defendant (Respondent)

Andrew R. Kerr, for the appellants

David W. Powrie and Nick Galanis, for the respondent

Heard and released orally:  November 3, 2016

On appeal from the order of Justice Gregory M. Mulligan
    of the Superior Court of Justice, dated December 21, 2015, with reasons
    reported at 2015 ONSC 7989.

ENDORSEMENT

[1]

The appellants appeal from the order of the motion judge staying their
    action against the respondent corporation on the basis that it has no real and
    substantial connection to Ontario.

[2]

The appellants primary argument is that the motion judge erred in concluding
    that they failed to establish that the action has a real and substantial
    connection to Ontario. The appellants also argue that Ontario should assume
    jurisdiction on the basis of the forum of necessity exception to the real and
    substantial connection test, and that Ontario is a more convenient forum for
    the action.  Finally, they submit that the motion judge should not have heard
    the motion because they were prejudiced by the failure of the respondent to
    provide them with the information necessary for their defence of the motion.

[3]

We reject these arguments.

[4]

None of the presumptive factors set out by the Supreme Court in
Club
    Resorts Ltd.

v.
Van Breda
,

2012 SCC 17,

[2012] 1 S.C.R. 572 is satisfied on
    the facts of this case. The motion judge found that the respondent is an
    Alberta corporation, resident or domiciled in Alberta, and that the accident
    giving rise to the action occurred when the appellant, Gary Cook, was staying
    at the hotel while he worked temporarily in Alberta.

[5]

These findings were open to the motion judge on the record that was
    before him, and they are fatal to the claim that Ontario has jurisdiction
simpliciter
.
    There is no basis to pierce the corporate veil in this case, or to create a new
    presumptive factor, simply because there is evidence that one of the directors of
    the corporation appears to have resided in Ontario for a period of time. The
    corporation is the respondent to the action, not its director, and on this
    record there is no reason to go behind the corporation. There was no evidence
    as to the nature of the respondents hotel business, and in particular no
    evidence as to whether its business was directed at Ontario clients, such that
    it could be said to be conducting its business in Ontario.

[6]

The necessity argument is made because the limitation period for
    bringing the action in Alberta has expired, and the appellants will be unable
    to bring their action if they are not permitted to do so in Ontario. The
    appellants argue that they were unfairly disadvantaged by the change in the law
    following the commencement of this action that resulted from the Supreme
    Courts decision in
Van Breda
. They submit that they would have been
    permitted to bring their action in Ontario under the decision of this court in
Muscutt
    v. Courcelles
,

[2002] O.J. No. 2128 (C.A.), and that they
    should now be permitted to do so pursuant to the necessity doctrine.

[7]

This submission must be rejected.

[8]

The forum of necessity doctrine is an exception to the real and
    substantial connection test, and operates only in extraordinary and exceptional
    circumstances:
Forsythe v. Westfall
, 2015 ONCA 810,

128 O.R. (3d) 124.

[9]

In our view, this is not an appropriate case for the exercise of the courts
    discretion. The appellants made a tactical decision not to bring their action
    in Alberta and it would not be appropriate to relieve them of the consequences
    of that decision. Although the law has changed, we are not persuaded that the
    action could have been brought in Ontario under the old approach. It is not a
    close call under
Van Breda
.

[10]

Finally, we would not give effect to the appellants argument that they
    were prejudiced by the failure of the respondent to provide them with the
    information necessary for their defence of the motion. The appellants did not
    avail themselves of the procedural options open to them.

[11]

In light of these conclusions, there is no need to consider the
forum
    non conveniens
argument.

Disposition

[12]

The appeal is dismissed with costs to the respondent fixed at $7,500,
    inclusive of taxes and disbursements.

R. A. Blair J.A.

Gloria
    Epstein J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Edwards (Re), 2016 ONCA 901

DATE: 20161129

DOCKET: C61825

LaForme, Rouleau and Brown JJ.A.

IN THE MATTER OF: STEVEN EDWARDS

AN APPEAL UNDER PART XX.1 OF THE
CODE

Sia Pashang, for the appellant

Dena Bonnet, for the respondent, Her Majesty the Queen

Michele Warner, for the respondent, Centre for Addiction
    and Mental Health

Heard: November 23, 2016

On appeal against the disposition of the Ontario Review
    Board dated, January 26, 2016.

ENDORSEMENT

Introduction

[1]

In 2009, the appellant punched a victim in the face after she refused to
    give him a cigarette. After being confronted by several witnesses, he then
    entered a nearby TTC bus, walked to the back, poured an accelerant on the rear
    seats and set the bus on fire. The bus was quickly engulfed in flames and
    destroyed. All on board escaped without injury.

[2]

The appellant was identified by security footage and was later found not
    criminally responsible on account of mental disorder. On April 30, 2015, he was
    discharged from detention subject to conditions. On November 30, 2015, he was
    admitted to CAMH and remained as a voluntary patient.

[3]

After his most recent review on January 20, 2016, the Ontario
    Review Board concluded that a detention order with placement on CAMHs General
    Forensic Unit was the necessary and appropriate disposition in all the
    circumstances. He appeals that order and
argues
    that a conditional discharge is appropriate.

[4]

At the Board hearing the appellant conceded that the test for
    dangerousness is met under s. 672.54 of the
Criminal Code
as well as
Winko
    v. British Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625,
    at paras. 47, 50, 62. In this court, although he no longer concedes
    dangerousness, the focus of his submission is that a conditional discharge is
    the least onerous and least restrictive disposition, taking account of all the
    factors enumerated in the
Criminal Code
and in
Winko
. He says
    that the Boards decision not to order this disposition is unreasonable and is
    not supported by the evidence. Further, he says the Board placed undue weight
    on the areas where improvement was needed.

The Issue

[5]

The central issue is whether it was reasonable for the Board to find
    that the appellants risk needed to be managed with a detention order, as
    compared to his previous disposition, which was a conditional discharge.

[6]

The following reasons explain why the Boards decision is entitled to
    deference and why the appeal should be dismissed.

Discussion

[7]

The Board appreciated that this was a somewhat unique case where the
    hospital was seeking to add an additional restriction to the appellants
    liberty from that ordered on April 30, 2015. The hospital had made a similar
    request for a detention order at the previous hearing, but the Board declined
    to order it. However, at that time, the Board did observe that the appellants
    risk factors had been worsening.

(1)

The Appellants Risk

[8]

Before the Board, the appellant conceded that he continues to represent
    a significant threat to the safety of the public. In spite of this concession,
    the appellant in this court relies on authorities such as
Carrick (Re)
,
    2015 ONCA 866, 128 O.R. (3d) 209, to argue that the Boards conclusion, both
    that he represents a significant threat to the safety of the public and that it
    was appropriate to impose a detention order, are unreasonable. He submits that the
    Board could not simply focus on the potential for breach, as he says it did,
    but must also consider the possible consequences of any breach. It is those
    consequences, he says, which must constitute a significant threat to the safety
    of the public. The risk of the appellants consumption of drugs and other
    breaches are, he contends, speculative and cannot be said to amount to the
    requisite level of risk.

[9]

The Board, at para. 27 of its reasons, specifically addressed the issue
    of risk. It referenced
Carrick
and carefully considered the
    direction mandated by this court. The Board then noted that even if the
    appellant could be taken as conceding that he
continues
    to represent a significant threat to the safety of the public, it was still
    required to consider the evidence to support such a conclusion and make its own
    finding. We accept the approach taken by the Board for the purposes of this
    appeal.

[10]

At para. 28, the Board accepted without hesitation that the appellant
    continued to represent a significant threat to the safety of the public. The
    Board relied on evidence from the hospital and from Dr. Walton of a significant
    change in the appellants mental health since the appellants most recent prior
    hearing.

[11]

Dr. Walton testified that the appellants cocaine use is related
    directly to his major mental illness. The decompensation in his mental state
    brought with it an increased risk of violence. She said that he demonstrated an
    acute increase in his risk commencing in September 2015. Her opinion is as
    follows:

I think the threat for [the appellant] is quite closely related
    to his mental health problems and substance addictions. He suffers from
    schizophrenia and substance use disorder; particularly crack cocaine has been
    the most recent. In the context of both of those issues [the appellant] is at
    increased risk of violence in the community. There is a significant history
    outlined in his hospital report of violent behaviour while actively psychotic;
    making threats, lighting things on fire, even separate from his index offence.
And I think that the recent deterioration in the fall of 2015
    of his mental state was a significant indicator that his level of risk of
    violence was acutely increased
. [Emphasis added.]

[12]

In sum, Dr. Waltons evidence was that the appellants mental illness  schizophrenia
     when combined with his substance use disorder, especially when he used crack
    cocaine, meant that he would begin to show signs of psychosis. When this had
    happened in the past, the appellant had been violent. Past examples of his
    violent behaviour included the index offence and his criminal record.

[13]

The hospitals Report, dated November 20, 2015, was an important piece
    of evidence for the Boards decision. The Report noted that the appellants
    history over the past reporting period included two prolonged periods of
    substance use relapse, involving cannabis and cocaine, which resulted in a
    change in his mental state. He also withdrew from structured activities,
    increased his interaction with antisocial peers and was involved in new
    criminal charges. The Report stated that the appellants risk to the public
    escalates as his use of drugs continues, because psychotic symptoms will become
    more likely to emerge.

[14]

This evidence was hardly speculative and was more than sufficient for
    the Board to find that the appellant continued to represent a significant
    threat to the safety of the public. The decision is entirely reasonable.

(2)

The Boards Disposition

[15]

Finally, we also reject
the
    appellants submission that his risk could be addressed equally on a
    conditional discharge or a detention order. The hospitals reasonable
    assessment that the appellant should reside in approved, supervised community
    housing and that the hospital should be able to return the appellant to the
    hospital in the event of any decompensation in his mental status similar to
    that which occurred in November and December 2015, meant that a conditional
    discharge was not the appropriate disposition.

[16]

Because of his drug use, decompensation and other recent
    activities, the hospital concluded that the appellant required placement in
    approved accommodation with support and supervision to effectively manage his
    risk in the community. The hospitals recommendation to the Board was a
    Detention Order with community living in accommodation approved by the
    hospital. The Board reasonably accepted this medical recommendation.

[17]

We agree with the respondents that it was open to the Board to find
    that, in these unusual circumstances, the necessary and appropriate disposition
    was a detention order with community living. This was a fair result in a
    situation where there were ongoing concerns about the appellants risk level
    and the management of that risk.

Conclusion

[18]

The Board carefully considered the evidence before it and reached a
    reasonable decision. This court recently restated the reasonableness standard
    of review in
Carrick
, at para. 24, where Huscroft J.A. described it as
    follows:

[R]easonableness review begins from the premise that questions
    before specialized tribunals may not give rise to a single, correct answer. A
    range of reasonable decisions may be made in a particular context and that
    range may be more or less broad, depending on a number of considerations in all
    the circumstances.

The Boards decision in this case conforms to this
    standard. Therefore, this court owes deference to it. Accordingly, the appeal
    is dismissed.

H.S. LaForme J.A.

"Paul Rouleau
    J.A."

"David Brown
    J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: Elmgreen v. Elmgreen, 2016 ONCA 849

DATE: 20161114

DOCKET: C59879

Cronk, Rouleau and Huscroft JJ.A.

BETWEEN

Constance Marie Georgette Larouche Elmgreen

Applicant

(Appellant/Respondent
    by way of cross-appeal)

and

Jens Peter Elmgreen

Respondent

(Respondent/Appellant
    by way of cross-appeal)

James R. Webster, for the appellant/respondent by way of
    cross-appeal

Jens Peter Elmgreen, acting in person

Heard: September 22, 2016

On appeal from the judgment of Justice Lydia M. Olah of
    the Superior Court of Justice, dated April 9, 2015.

Cronk J.A.:

Introduction

[1]

This is the latest proceeding in lengthy litigation arising from the
    breakdown of the parties marriage in 2004.  Two matters are now before this
    court:

(1)

an
    appeal by the appellant, Constance Marie Georgette Larouche Elmgreen (the
    Wife), from those parts of the summary judgment granted in favour of the
    respondent, Jens Peter Elmgreen (the Husband), on April 9, 2015, varying the existing
    spousal support arrangements between the parties established by the consent
    order of Magda J. of the Superior Court of Justice, dated October 24, 2005 (the
    Consent Order); and

(2)

a
    cross-appeal by the Husband from those parts of the summary judgment: i)
    dismissing his motion to set aside or rescind the Consent Order; and ii)
    setting aside a domestic contract between the parties dated July 16, 1985 (the
    Marriage Contract) and, in the alternative, declaring that the Husband is
    estopped from asserting a claim that the Marriage Contract governs the parties
    post-separation rights and obligations.

[2]

For the reasons that follow, I would allow the appeal, require the Husband
    to pay spousal support indefinitely in the amounts set out in these reasons,
    and dismiss the cross-appeal.

Background in Brief

A.       Marriage

[3]

The Wife met the Husband in 1983 while she was living and working as a
    barmaid in her home province of Quebec.  The parties married on July 17, 1985,
    after cohabiting for approximately one year.  At the time of the marriage, the
    Wife was 24 years old, had little facility in the English language, limited
    workplace skills, and a grade 10 education.  The Husband was 42 years of age.
    On the motion judge's findings, he was a worldly, multilingual aviator who was then
    employed as a commercial pilot.

[4]

After the marriage, the parties resided in Cameron, Ontario.  They had one
    child, a daughter born on January 15, 1991, who is now 25 years of age.  Child
    support is not in issue in these proceedings.

[5]

The Wife was a full-time homemaker throughout the marriage.  Apart from
    a brief period in 2003 when she worked on a nearby highway construction
    project, the Wife did not work outside the home after marriage.  The Husband
    worked as a commercial pilot until the spring of 1996, when he lost his pilots
    licence.  After losing his licence, he received disability insurance payments
    and, at age 60, retirement pension income.

B.      Marriage Contract

[6]

The parties entered into the Marriage Contract on July 16, 1985, the day
    before their wedding.  It is a two-page document consisting of eight
    paragraphs.  It contains the following provisions concerning spousal support:

4.     Further,
    the parties acknowledge that there is to be no provisions [
sic
] for
    support for either party and further both parties accept this provision in lieu
    of any statutory rights provided.

5.     Further
    provided that in the event of separation or divorce after 15 years, the wife shall
    be entitled to 25% of the husbands net income by way of support in addition to
    an equal division of the assets acquired during the time of the marriage.
    Further, the wife elects to accept this provision in lieu of any statutory
    rights provided.

6.     Further,
    the provision for support is to terminate should the wife remarry or live with
    another man.

[7]

The Marriage Contract contemplated that the parties would receive
    independent legal advice regarding the agreement.  Paragraph 8 reads:

The parties hereto further agree that they will have been given
    independent legal advice in connection with the making of this agreement and in
    connection with the terms agreed upon between the parties as of the date of the
    signing hereof.

C.      Separation and Settlement

[8]

The parties separated in January or February 2004, after almost 20 years
    of marriage.  The Wife was then 43 years old, while the Husband was 60 years
    old.

[9]

On October 14, 2005, the Husband offered to settle the parties
    post-separation financial and property issues, the Wife accepted his offer, and
    the accepted offer was incorporated in Minutes of Settlement and approved by
    the court under the Consent Order.  At the time of the settlement, both parties
    were represented by counsel.

[10]

As I will discuss, the Husband challenges the enforceability of the
    Consent Order on the basis that he allegedly did not sign the Minutes of
    Settlement and, on instructions by him to his lawyer, his offer to settle was
    to be held in abeyance pending resolution of his claims that the Wife and her
    lawyer had engaged in improper conduct.

[11]

I will return to this challenge when addressing the issues raised in the
    cross-appeal.  At this point, I note that the Consent Order had its origins in
    the Husbands October 14, 2005 offer to settle, as accepted by the Wife and
    incorporated into the Minutes of Settlement.  In his offer to settle, the
    Husband offered to pay the Wife an equalization payment in the sum of $185,000
    and monthly spousal support in the amount of $2,200 commencing October 1, 2005.
    The support payments were subject to a material change in circumstances and
    review after five years.  The Consent Order mirrored these terms regarding
    spousal support.

[12]

Within days of his offer to settle, the Husband took issue with the
    settlement and the services provided to him by his lawyer.  Nevertheless, he paid
    the equalization payment and, for a period of about eight years, the monthly
    spousal support contemplated by the Consent Order.

D.      Litigation

[13]

After the settlement, the Husband twice sued his matrimonial lawyer for
    alleged negligence and breach of fiduciary duty, leading to protracted
    litigation between them.  Following a three-week trial in the Superior Court of
    Justice in May and June 2011, his first action against his former solicitor was
    dismissed.  The Husband appealed to this court.  That appeal and the Husbands subsequent
    application for leave to appeal to the Supreme Court of Canada were both
    dismissed:
Elmgreen v. Evans
, 2013 ONCA 624, leave to appeal refused,
    [2013] S.C.C.A. No. 480.

[14]

About three years later, in March 2014, the Husband commenced a second negligence
    action against his former solicitor.  In December 2014, on a motion for summary
    judgment by the solicitor, the second action was also dismissed.  The Husbands
    appeal to this court from that dismissal was in turn dismissed:
Elmgreen v.
    Evans
, 2016 ONCA 682.

[15]

In the meantime, in August 2009 and while his first action against his
    former solicitor was in progress, the Husband moved in the Superior Court for
    an order rescinding the Consent Order, determining the validity of the Marriage
    Contract, and requiring the Wife to provide full financial disclosure.  The court
    addressed the issue of financial disclosure and deferred the balance of the motion
    pending the determination of the Husbands action against his former solicitor.

[16]

On October 22, 2014, the Husband moved in the Superior Court for summary
    judgment concerning the issues raised in his outstanding August 2009 motion,
    including an order rescinding or setting aside the Consent Order, among other
    relief.  In his materials in support of his motion, the Husband also sought an order
    varying the spousal support provisions of the Consent Order based on a material
    change in circumstances.

E.       Parties Financial Circumstances at Date of
    Separation

[17]

According to the motion judges reasons, the parties conceded at the
    hearing of the motion that, as of the date of separation, the Husbands annual
    income consisted of pension income in the amount of $80,000 and the Wifes income
    was $5,000.  Before this court, the Wife disputes the annual income attributed
    to the Husband, claiming that his actual income was approximately $97,000 when
    they separated.

[18]

At or about the date of the parties separation, the Wife began to
    cohabit with Robert J. Moore, a beef cattle farmer who lived on a neighbouring
    farm.  Mr. Moore had limited income and had paid an equalization payment to his
    own wife, from whom he had recently separated, in the approximate amount of
    $102,000 by mortgaging his matrimonial home and farmland.  On cohabitation, the
    Wife and Mr. Moore shared their respective incomes and expenses, ran Mr.
    Moores farm and raised horses together.  They were still cohabiting on this
    basis ten years later, at the time of the hearing before the motion judge.

[19]

In late 2007, the Wife obtained minimum wage employment at a local Tim
    Hortons restaurant.  Her annual income from employment in the years 2010 to 2013
    ranged from approximately $17,580 to $22,750.

[20]

Commencing in 2010, the Wife began a horse boarding business at the farm
    she shares with Mr. Moore.  The Wife maintained that this business was designed
    to assist the parties daughter, by providing a business she could run. This effort
    to assist the daughter failed. However, as I will detail later in these
    reasons, it required the Wife to report her income and expenses related to the
    horse boarding business for income tax purposes.

F.       Motion Judges Decision

[21]

The motion judge treated the Husbands 2009 and 2014 motions as a
    combined motion for summary judgment.  She granted partial judgment in his
    favour, by reducing his spousal support obligation retroactively and
    terminating spousal support as of a set future date.  Specifically, the motion
    judge granted the following relief:

1)

Effective

November

1,

2010,
    the Husbands monthly spousal support obligation was reduced from the sum of
    $2,200 per month to $1,422 per month;

2)

Effective November 1, 2011 and continuing until October 1, 2016, the
    Husbands monthly spousal support obligation was further reduced to $1,219 per
    month; and

3)

Effective

November

1,

2016,
    the Husbands spousal support obligation was terminated.

[22]

In granting this relief, the motion judge imputed annual income to the
    Wife in the amount of $30,000 and annual income to the Husband in the amount of
    $80,000.  The effect of her decision was that, as of the date of her ruling, the
    Wife owed the Husband an approximate $15,000 overpayment of spousal support
    and, effective November 1, 2016, the Husband was relieved of any further
    obligation to pay spousal support.

[23]

The motion judge denied the remaining relief sought by the Husband.  She
    declined to set aside the Consent Order and held, in effect, that the Marriage
    Contract is unenforceable and does not govern the parties post-separation
    rights and obligations.

Issues

[24]

There are two main issues on the appeal:

(1)

Did
    the motion judge err by retroactively reducing the Husbands spousal support
    obligation and terminating it entirely, effective November 1, 2016?

(2)

If
    the answer to (1) is yes, what is the appropriate remedy in the
    circumstances?

[25]

There is one issue on the cross-appeal:

(1)

Did
    the motion judge err by refusing to rescind or set aside the Consent Order and by
    holding that the Marriage Contract does not govern the post-separation rights
    and obligations of the parties?

Analysis

A.       Appeal

[26]

The Wife attacks the motion judges support ruling on multiple grounds.
    In my view, it is unnecessary for the disposition of this appeal to consider
    all the grounds advanced by the Wife.  I am satisfied that, in imputing annual
    income to the Wife and Mr. Moore, the motion judge misinterpreted the contents
    of their income tax returns.  She relied on her misapprehension of their returns
    to anchor her support ruling.  Moreover, she provided no clear notice to the
    parties of her concerns regarding the returns, or of her intention to impute
    income to the Wife and Mr. Moore in reliance on those concerns.  Finally, she
    also failed to factor changes in the Husbands annual income into her spousal
    support analysis. In light of these errors, I conclude that her spousal support
    ruling is fatally flawed.

(1)      Income Imputation to the Wife and Mr. Moore

[27]

The Husband argued before the motion judge that, because he had paid
    spousal support to the Wife for a lengthy period, he should be relieved of the
    obligation to pay any further spousal support.  In the alternative, he sought a
    reduction in his monthly spousal support payments based on a material change in
    circumstances.

[28]

In order to determine whether the Husband had established a change in
    circumstances sufficient to warrant variation of his spousal support obligation,
    the motion judge undertook a detailed review of the Wifes income tax returns
    and those of Mr. Moore for the years 2004 to 2013.  Based on this review, she held,
    at pp. 31-32, that:

1)

the Wife and Mr. Moore had been a fiscal team since 2004;

2)

they had reduced their incomes from their horse and farming operations
    as reported in their annual tax filings by claiming personal expenses as
    deductions, the full value of which should be included in their respective
    incomes for support purposes;

3)

they had been living on a combined income greater than that reported by
    them for income tax purposes, utilizing the spousal support paid by the Husband
    to support their joint lifestyle; and

4)

the Wife had used her equalization payment from the Husband to fund
    renovations to the home she shared with Mr. Moore, to pay off Mr. Moores home mortgage,
    and by writing off the interest on that mortgage against her own income, as
    well as that of Mr. Moore.

[29]

The motion judge concluded that a change in circumstances had occurred
    after the date of the Consent Order by reason of the manner in which the Wife
    and Mr. Moore had structured their financial and living arrangements, as
    described above.  Further, in the motion judges view, this change was material
    because the Wifes income had increased from $5,000 (date of separation income)
    to $17,000 - $21,200 (income in years following separation), her capital asset
    position had improved and her relationship with Mr. Moore had proven to be long-term
    and founded on the joint sharing of incomes and expenses.

[30]

The motion judge therefore held that this was an appropriate case in
    which to apply a step down approach to spousal support, that is, a gradual
    reduction in the quantum of spousal support payments, leading to a final
    termination of the Husbands spousal support obligation.

[31]

I accept that, on the evidence before the motion judge, a material change
    in the parties circumstances did occur after the date of the Consent Order.
    In particular, as I have already said, the Wife commenced steady employment at
    a Tim Hortons restaurant in late 2007.  Based on her 2013 income tax return,
    her employment income in 2013 approximated $22,750.  The Wifes overall
    circumstances had also improved since separation as she had acquired an
    interest in the property she shares with Mr. Moore and she had been enjoying the
    benefits of income and expenses pooled with those of Mr. Moore.

[32]

That said, I agree with the Wifes submission that the motion judge
    erred in her interpretation and use of the Wifes and Mr. Moores income tax
    returns, leading her to further err in her calculation of the annual incomes to
    be imputed to the Wife and Mr. Moore for spousal support purposes.

[33]

Based on her review of the Wifes and Mr. Moores income tax returns, the
    motion judge concluded that they had understated their respective annual
    incomes by claiming personal expenses as deductions against their horse
    boarding and farm income, the full value of which should be imputed to them as
    income for spousal support purposes.  The motion judge held that annual income
    in the amount of $30,000 should be imputed to the Wife for each of the years
    2010 to 2013 and annual income should be imputed to Mr. Moore for the same
    years, in sums ranging from $30,000 (2010) to $41,000 (2013).

[34]

The difficulty with this approach in this case is that it rested on the
    motion judges misinterpretation of the contents of the Wifes and Mr. Moores
    income tax returns.  The following examples will suffice to make this point.

[35]

When considering the Wifes income for 2010, the motion judge stated, at
    p. 30:

In 2010, [the Wifes] employment income was $17,579.37.  Her
    Employment Insurance income was $1,176, and she received $26,400 in spousal
    support.  She also had a farm income in excess of $12,000.  I did not use that
    $12,000 as farm income, however I did take a look at her deductions.  She deducted
    from her farm income $4,708.65, which I deemed to be a personal expense; she
    deducted $843.86; she deducted $2,483.79; she deducted $602.24; she also
    deducted $7,430.80.  So I would impute her income outside of the employment
    income and Employment Insurance to be $30,000.

[36]

The motion judge provided no explanation for her finding that the Wife had
    a farm income in excess of $12,000 in 2010.  With respect, this was an error.
    This amount is not reflected in the Wifes 2010 income tax return, which discloses
    gross farm income of $4,169.32. Further, no explanation for the source of this
    figure was provided to this court.  I appreciate that the motion judge
    indicated that she did not use that $12,000 as farm income.  Nonetheless, her
    finding reflects an erroneous interpretation of the Wifes 2010 income tax
    return.

[37]

The flaws in the motion judges interpretation of the Wifes 2010 income
    tax return do not end there.  The motion judge indicated that she considered
    the Wifes claimed deductions in taxation year 2010 and listed several
    deductions that, in her view, constituted personal, rather than business
    expenses.

[38]

While it is not entirely clear from her reasons, it appears that the
    motion judge added the total value of these deductions, in the aggregate sum of
    $16,069.34, to the Wifes employment income and employment insurance
    ($18,755.37) and rounded the resulting figure to impute aggregate annual income
    to the Wife for 2010 in the amount of $30,000.  In other words, she imputed $11,244.63
    in business income to the Wife, although her reported
gross
business income was only $4,169.32.  That the motion judge proceeded in this
    fashion is confirmed by her comments, at p. 27 of her reasons:

So that the litigants understand, I took the Income Tax
    Returns, I put in whatever income was reflected, I looked at the expenses, and
    identified what I perceived to be personal expenses, including any depreciation
    costs, which were paper deductions, and added them to income. If I did not
    understand wholly whether it was a personal or not personal expense, I did not
    include it as a personal expense.

[39]

The difficulty with this approach, among others, is that it produced an
    adjusted, imputed income for the Wife from her horse boarding and farm businesses
    that greatly exceeded her gross reported income from these sources.

[40]

Moreover, the motion judge stated that she imputed $30,000 of income to
    the Wife
outside
of [her] employment income and
    Employment Insurance (emphasis added). This suggests that the $30,000 imputed
    income was in addition to the Wifes employment income and employment insurance
    for the year 2010.

[41]

With respect, this makes no sense. The total value of the deductions
    identified by the motion judge as personal expenses was $16,069.34, not
    $30,000. The Wifes 2010 income tax return does not reflect $30,000 in income
    outside of [her] employment income and Employment Insurance.

[42]

The motion judge further found that the Wife had deducted $7,430.80 from
    her farm income in 2010 on account of personal expenses.  This, too, was an
    error.  The Wifes 2010 income tax return reveals that this sum was not claimed
    as a deduction at all.  Rather, it was treated as a personal benefit to be
    offset against the Wifes business losses, thereby
reducing
the Wifes
    claimed losses from her horse boarding and farm operations by the same amount ($7,430.80).
    In other words, it was an amount included, rather than excluded, from taxable
    income.

[43]

Similar errors are also evident in the motion judges interpretation of
    the Wifes income tax returns for 2011 to 2013.  For example, the motion judge
    held that the Wife had claimed the following personal expenses as deductions
    against her business income: i) in 2011, the sum of $9,704.86; and ii) in 2012,
    the sums of $7,902.53 and $5,535.27.  The motion judge notionally added these
    amounts, or at least part of them, to the Wifes reported income and used the
    resulting notional annual income figure to impute income to the Wife, in each
    year, in the sum of $30,000.  With respect, in so doing, the motion judge again
    erred.

[44]

A proper reading of the relevant tax returns reveals that the amounts in
    question were not deductions on account of personal expenses: i) the $9,704.86
    claimed on the Wifes 2011 return and the $7,902.53 claimed on her 2012 return
    were deductions for capital cost allowance in respect of the Wifes horse
    boarding and farm businesses; and ii) the $5,535.27 cited by the motion judge
    in respect of the Wifes 2012 tax return
[1]
was not a claimed deduction but, rather, an inclusion in income from the Wifes
    businesses, which reduced her reported business losses from $20,354.27 to
    $14,999.

[45]

The motion judges reasons with respect to taxation year 2013 give rise
    to an additional concern.  For that year, the motion judge noted that the
    Wifes farm income was $5,400 and that [s]he had deductions from income to
    reduce that amount.  For that reason, I would impute her income at $30,000.

[46]

However, the motion judge provided no explanation of the nature or
    amount of the deductions from income to which she referred, or of the basis for
    imputing income to the Wife in the sum of $30,000 for 2013.

[47]

Similar errors are also evident in the motion judges consideration of
    Mr. Moores income tax returns, in relation to deductions from business income claimed
    by him in taxation years 2004 to 2013, and in the motion judges resulting calculations
    of the income to be imputed to him for those years.

[48]

The motions judges spousal support ruling rested on her imputation of
    annual incomes to the Wife and Mr. Moore and her core finding that they
    under-declared their annual incomes  at least for spousal support purposes
    by claiming personal expenses as deductions from their business income.  The
    motion judges errors in interpreting the couples income tax returns, described
    above, fatally tainted her spousal support analysis. On this ground alone, the
    motion judges spousal support ruling cannot stand.

(2)      Hearing Fairness

[49]

Apart from the flawed calculations detailed above, the motion judges consideration
    and use of the Wifes and Mr. Moores income tax returns is troubling for a
    second reason.

[50]

The Husband did not specifically request the motion judge to impute
    income to either the Wife or Mr. Moore based on adjustments to their reported
    finances and income, as disclosed in their income tax returns.  Nor was any
    expert evidence called by either party regarding the proper interpretation of their
    returns.  The motion judges review of the returns was largely undertaken after
    the conclusion of argument on the motion, while her decision was under
    reserve.  Consequently, her interpretation of the returns and the nature of the
    specific deductions claimed and incomes reported was first disclosed to the
    parties in her reasons.

[51]

The parties, therefore, had no meaningful opportunity to address the
    motion judges concerns regarding the returns, especially her views about the
    nature and import of the claimed deductions, or to call evidence or make
    submissions on the proper interpretation of the returns in light of those concerns.
    As a result, in my view, hearing fairness was thereby compromised.

(3)      Husbands Imputed Income

[52]

I consider it appropriate to comment on two additional aspects of the
    motion judges spousal support analysis.  First, the record indicates that the
    Husbands total annual income in the years 2010 to 2013 was as follows: 2010 -
    $103,692; 2011  $102,864; 2012  $104,441; and 2013  $104,633.  The husband
    did not contest these figures at the appeal hearing.

[53]

As I have said, the motion judge imputed $80,000 annual income to the
    Husband as of the date of separation, a figure challenged by the Wife. That
    challenge aside, it is clear that the Husbands income increased in the years
    following separation (2004: total gross income of $82,148; 2013: total gross
    income of $104,633).

[54]

Yet, the motion judge held, at pp. 25-26 and 33, that the Husbands
    annual pension income after separation did not increase significantly  apart
    from one year  except for annual indexing of his pension entitlement.  She
    further held that any increases in his pension income should not be used under
    the federal Spousal Support Advisory Guidelines (the SSAGs) to calculate an
    appropriate amount of spousal support.

[55]

The basis for these holdings is far from clear. The fact is that, by
    2013, the Husbands annual income had increased by about 27 percent since the
    date of separation. Even assuming that $30,000 annual income should be imputed
    to the Wife for spousal support purposes, given that this was a lengthy,
    traditional marriage, the differential in the Wifes and the Husbands
    post-separation incomes, based on increases in the Husbands income, should not
    be disregarded entirely.

[56]

Second, and relatedly, it is noteworthy that nowhere in her reasons does
    the motion judge address whether the Wife is entitled to compensatory support
    in accordance with the principles set out in
Moge v. Moge
, [1992] 3
    S.C.R. 813 and related cases, in addition or in the alternative to
    non-compensatory support.  Based on the length of the marriage and the evidence
    of the roles assumed by the parties during marriage, this, too, was a relevant
    and proper consideration.  It was not taken into account here.

(4)      Conclusion on Motion Judges Spousal Support Ruling

[57]

In all these circumstances, the motion judges spousal support ruling is
    unsustainable.  It is therefore open to this court to evaluate afresh the
    Husbands request for a change in his spousal support obligation.  Since that
    evaluation turns in part on the determination of the issues raised by the Husband
    on his cross-appeal, I will next consider those issues.

B.      Cross-appeal

[58]

At the conclusion of oral argument, this court dismissed the
    cross-appeal, with reasons to follow.  These are those reasons.

(1)

Consent Order

[59]

The motion judge considered her authority to set aside a consent order
    and addressed the grounds advanced by the Husband in support of his contention
    that the Consent Order should be set aside or rescinded.  She provided clear
    and cogent reasons for her refusal to do so.  I agree with her decision on this
    issue and her reasoning.  In particular, the following considerations
    overwhelmingly support the motion judges dismissal of the Husbands request to
    rescind or set aside the Consent Order.

[60]

First, the record does not support the Husbands contention that he did
    not consent to the settlement or that he did not intend to implement it.  The
    impugned court order was made on consent pursuant to a written settlement
    reached by the parties on October 14, 2005.  The Husband did not seek to appeal
    the Consent Order, which would have required leave of the court:
Courts of
    Justice Act
, R.S.O. 1990, c. C.43, s. 133.  Instead, years after the date
    of the Consent Order, he sought to have it set aside or rescinded on the basis that
    he did not sign the Minutes of Settlement and that his signature on the Minutes
    was forged or otherwise fraudulently affixed without his consent or knowledge.

[61]

However, the Husband advanced the same claim to anchor his actions against
    his former solicitor.  Those actions were dismissed, as were his appeals
    therefrom, without any finding of fraud, forgery, breach of fiduciary duty or negligence
    against his solicitor in relation to the Minutes of Settlement and any of the
    other settlement documents.

[62]

Further, and in any event, the Husband admits that he signed his October
    14, 2005 offer to settle, which the Wife accepted.  Both the Minutes of
    Settlement and the Consent Order contain identical terms relating to spousal
    support as those detailed in the offer to settle.  Although the Husband argues
    that he instructed his solicitor to hold the offer in abeyance, the record
    indicates that those instructions were communicated after the date of the
    Consent Order.

[63]

The record also includes a document entitled Acknowledgement, dated October
    14, 2005, which bears the Husbands signature.  In that document, the Husband
    stated:

I fully understand that by signing the Offer to Settle and
    following Minutes of Settlement that this matter will be finalized and there is
    no recourse for me to undo the Minutes of Settlement.

.

I am advising this Honourable Court that I am signing the Offer
    to Settle fully understanding its contents, and I have signed the Offer to
    Settle of my own free will without threat or promise.

[64]

The latter statement provides information directly to the court.  It
    therefore appears that a copy of the Acknowledgement may have been filed with
    the Superior Court in support of the Consent Order.  Regardless, apart from the
    Husbands bald assertions, there was no evidence before the motion judge, and
    there is none before this court, that the Husband did not sign the
    Acknowledgement or that it was the product of fraud or forgery.

[65]

The Husbands execution of the offer to settle and the Acknowledgement is
    wholly inconsistent with any assertion that he did not consent to or understand
    the import and legal consequences of his offer to settle and the settlement
    that followed.  The Minutes of Settlement and the Consent Order simply reflect
    the terms of the Husbands offer to settle, as confirmed in the
    Acknowledgement.  And, I again emphasize, the Husbands negligence actions
    against his former solicitor were dismissed without any finding of impropriety
    against the solicitor in relation to the settlement.  Nor has there been any judicial
    finding of any impropriety by the Wife concerning the settlement.

[66]

Second, the Husbands unsuccessful negligence suits against his former
    solicitor were premised on the validity and enforceability of the offer to
    settle and the Minutes of Settlement, as approved by the court in the Consent
    Order.  The motion judge put it this way, at p. 12 of her reasons:

Given the [Husbands] choice of action to pursue the negligence
    against the [Husbands] counsel, the [Husband] implicitly acknowledged the
    validity of the [settlement] agreement which was the basis of the [Consent
    Order].  The
sine qua non
of the negligence action was the valid
    existence of the agreement and order.

[67]

Similarly, the Husbands actions in paying the equalization payment and the
    monthly spousal support payments contemplated under the offer to settle, the
    Minutes of Settlement and the Consent Order undercut his challenge to the
    validity of the settlement, including the Consent Order.

[68]

In light of these considerations, it is my view that the motion judge
    was fully justified in refusing to set aside or rescind the Consent Order.  There
    was simply no established basis upon which to do so.  That said, the Husband
    remained free to attempt to change the spousal support arrangements effected by
    the Consent Order.  Indeed, that is part of what he hoped to achieve, and did
    achieve, on the motion before the motion judge.

[69]

Finally, I note, as observed by the motion judge, that the Husband
    delayed at least four years (and, arguably, nine years) from the date of the
    Consent Order before actively pursuing steps to set it aside.  His delay in
    seeking to do so strongly militated against granting the relief he belatedly
    sought before the motion judge regarding the Consent Order.

(2)

Marriage Contract

[70]

I reach the same conclusion concerning the motion judges ruling about the
    enforceability of the Marriage Contract.  Here, too, in my view, there was
    ample justification for denying the relief sought by the Husband.

[71]

The Husbands October 14, 2005 settlement offer, by which he offered to
    pay monthly support to the Wife in the sum of $2,200, was inconsistent with the
    terms of the Marriage Contract regarding spousal support.  The Husbands offer,
    once accepted, overtook any prior inconsistent agreement between the parties
    concerning spousal support.  On this basis alone, this ground of appeal fails.

[72]

But there is more.  Having considered the terms of the Marriage Contract
    and the parties positions and circumstances at the time of its execution, the
    motion judge held that it was highly unlikely that the Marriage Contract
    would have governed the parties as of the date of their separation because it
    would have been set aside under the provisions of the
Family Law Act
,
    R.S.O. 1990, c. F.3 and the common law.  I agree.

[73]

Several factors compel this conclusion.  On the motion judges
    uncontested findings, at pp. 13-15 of her reasons:

1)

no
    financial disclosure by the Husband appears to have taken place prior to
    formation of the Marriage Contract;

2)

there is
    no evidence that the Wife received independent legal advice regarding the
    Marriage Contract; indeed, there was evidence to the contrary before the motion
    judge;

3)

no
    financial statements or certificates of independent legal advice are referenced
    in or attached to the Marriage Contract;

4)

at the
    time of execution of the Marriage Contract, an imbalance of power existed
    between the parties, to the detriment of the Wife, created by the pending
    marriage and the lack of appreciation of the legal implications of the domestic
    contract;

5)

the Wife
    did not have an extensive opportunity to review the contents of the Marriage
    Contract or to fully understand its terms and implications prior to its
    execution;

6)

the Wife
    had no input into the drafting of the Marriage Contract, which was prepared by
    the Husbands Ontario solicitor solely on the Husbands  instructions; and

7)

the Wifes
    facility in English in 1985 and the extent of her formal education (grade 10)
    were both limited.

[74]

These key findings, which are not attacked by the Husband before this
    court, were open to the motion judge on the evidentiary record before her.  In
    light of them, I see no error in the motion judges holding that the Marriage
    Contract does not govern the parties post-separation rights and obligations.  In
    light of the factors set out above, I think it is inconceivable that this Marriage
    Contract, aptly described by the motion judge at p. 15 of her reasons as a
    kitchen table agreement, would survive scrutiny under the
Family Law Act
.

C.      Remedy

[75]

The errors in the motion judges spousal support analysis, described
    above, constitute errors in principle and reflect a significant misapprehension
    of some of the key evidence. Accordingly, they displace the usual deference to
    be accorded by a reviewing court to a motion judges discretionary spousal
    support ruling:
Hickey v. Hickey
, [1999] 2 S.C.R. 518, at para. 11.
    The issues, therefore, are what spousal support should be paid by the Husband
    to the Wife, if any, and for how long. In my view, the record before this court
    is sufficient to permit a determination of these issues, without the need to
    order a new trial with attendant delay and additional costs. I did not
    understand the parties to suggest otherwise.

[76]

I have already concluded that the motion judge was correct to hold that,
    on the evidence, a material change in circumstances occurred in this case after
    the date of the Consent Order. That change in circumstances, in my view,
    warrants a variation in the Husbands spousal support obligation on a
    retroactive and prospective basis.  However, I am not persuaded that this is a
    proper case for termination of spousal support.

[77]

The Wifes income from employment is modest. She has worked at Tim
    Hortons since late 2007, at minimum wage and without benefits. She has limited
    education and marketable skills and, on the state of the evidentiary record, no
    reasonable prospects for securing higher paying employment. To the contrary,
    the evidence indicates that she continues to experience medical difficulties
    following surgery on her wrist, which has confined her to light duties at her
    place of employment. Her ability to work indefinitely, even at minimum wage, is
    therefore uncertain and her health appears somewhat precarious.

[78]

Mr. Moores annual income is also modest. He is a beef farmer who drives
    a school bus part-time to supplement his income. This employment yields
    approximately $8-10,000 gross income per year.  His income tax returns for 2004
    to 2013 reveal gross annual incomes ranging from $16,820 (2004) to $2,242
    (2013).

[79]

Even assuming that some of the deductions claimed by the Wife and
    Mr. Moore on their income tax returns could properly be characterized as
    relating to personal expenses for spousal support purposes, the couples annual
    combined income remains modest.

[80]

In contrast, based on his reported 2013 annual income, the Husbands
    current retirement pension income approximates at least $105,000 per year. This
    level of income, which is considerably higher than that of the Wife, is
    sufficient to afford a comfortable, but certainly not a lavish, lifestyle.  It
    establishes the Husbands ability to pay ongoing spousal support.

[81]

The record reveals the following approximate incomes for the parties and
    Mr. Moore in the years 2008 to 2013:

Wifes employment-related Income

Wifes Net Income* after Farm Profit/Loss

Husbands Net Income

Mr. Moores Net Income

2008

$22,611

$101,667

$203

2009

18,330

103,922

401

2010

18,755

16,902

103,692

3,897

2011

20,477

11,752

102,864

13,003

2012

19,082

10,333

104,441

18,491

2013

22,751

13,928

104,633

2,062

*Excluding spousal support payments

[82]

Given the differential between the Husbands net income in 2013
    ($104,633) and the Wifes net income for the same year ($13,928), it is clear
    that some spousal support is required. A comparison of the Wifes net income
    from all sources in 2013, together with that of Mr. Moore, with the Husbands
    net income for the same year yields the same conclusion.

[83]

The SSAGs provide useful guidance in this regard.  Based on the incomes
    set out above (without any deduction on account of the Wifes business losses),
    the SSAGs suggest the following range for monthly spousal support in the years
    after the Wife commenced employment at Tim Hortons:

Low End

Mid-Range

High End

2008

$1,976

$2,036

$2,635

2009

2,140

2,496

2,853

2010

2,123

2,477

2,831

2011

2,060

2,403

2,746

2012

2,134

2,490

2,845

2013

2,047

2,388

2,729

[84]

The Wife acknowledges that some variation in the Husbands spousal
    support payments is warranted in all the circumstances, on both a partially
    retroactive and prospective basis. She proposes the following changes:

(1)

October 2005 to October 1, 2010: $2,200 per month, as paid by the
    Husband

(2)

November 1, 2010 to October 1, 2012: 1,900 per month

(3)

November 1, 2012 to October 1, 2014: $1,750 per month

(4)

November 1, 2014 for an indefinite period: $1,600 per month

[85]

The Husband does not specifically attack this proposal, nor has he put
    forward an alternative proposal, should the appeal otherwise be allowed.

[86]

I regard the Wifes variation proposal as both reasonable and
    appropriate.  First, with the exception of the proposed monthly support amount
    for the period October 2005 to October 2010, the amounts proposed by her are
    well below the low end of monthly support payments set out in the SSAGs for the
    relevant years, based on the continuing differential between the Wifes and the
    Husbands annual incomes.  These lower support amounts reflect a partial
    sharing of the Husbands post-separation income increases and are appropriate
    given the Wifes re-partnering.  Second, the Wifes proposal contemplates spousal
    support on both a compensatory and non-compensatory basis.  This is also appropriate
    on the facts of this case.  Third, at the appeal hearing, neither party
    suggested any change to the quantum of the pre-October 2010 monthly spousal
    support.  Instead, they supported the motion judges ruling that spousal
    support should continue at the $2,200 per month level until October 2010.

[87]

In all these circumstances, I would fix the Husbands spousal support
    obligation as follows:

(1)

October 2005 to October 1, 2010: $2,200 per month

(2)

November 1, 2010 to October 1, 2012: $1,900 per month

(3)

November 1, 2012 to October 1, 2014: $1,750 per month

(4)

November 1, 2014 for an indefinite period: $1,600 per month

[88]

I would also direct that the variation in spousal support from November
    1, 2014 onwards is subject to review in the future as a result of any further
    material change or changes in the parties circumstances.

Disposition

[89]

For the reasons given, I would allow the appeal, set aside paragraph
    four of the judgment below and substitute in its stead spousal support terms in
    accordance with paragraphs 87 and 88 of these reasons. I would leave it to the
    parties to recalculate the state of accounts between them, based on the adjusted
    spousal support terms set out in these reasons. I would also dismiss the
    cross-appeal.

[90]

On my proposed disposition of the appeal and cross-appeal, the Wife has
    been wholly successful.  She is therefore entitled to her costs of the appeal
    and cross-appeal, as well as those of the motion before the motion judge.  I
    would fix the costs of all three proceedings in the total amount of $32,500,
    inclusive of disbursements and all applicable taxes.

Released:

PR                                           E.A.
    Cronk J.A.

NOV 14 2016                          I
    agree Paul Rouleau J.A.

I
    agree Grant Huscroft J.A.

[1]
The amount cited by the motion judge appears to be a typographical error.  The
    actual amount stipulated in the Wifes 2012 tax return is $5,355.27.


COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney General), 2016 ONCA
    813

DATE: 20161101

DOCKET: M47077 (C62519)

Roberts J.A. (In Chambers)

BETWEEN

Larry Philip Fontaine
    in his personal capacity and in his capacity as the executor of the estate of
    Agnes Mary Fontaine, deceased, Michelline Ammaq, Percy Archie, Charles Baxter
    Sr., Elijah Baxter, Evelyn Baxter, Donald Belcourt, Nora Bernard, John Bosum,
    Janet Brewster, Rhonda Buffalo, Ernestine Caibaiosai-Gidmark, Michael Carpan,
    Brenda Cyr, Deanna Cyr, Malcolm Dawson, Ann Dene, Benny Doctor, Lucy Doctor,
    James Fontaine in his personal capacity and in his capacity as the executor of
    the Estate of Agnes Mary Fontaine, deceased, Vincent Bradley Fontaine, Dana Eva
    Marie Francey, Peggy Good, Fred Kelly, Rosemarie Kuptana, Elizabeth Kusiak,
    Theresa Larocque, Jane McCullum, Cornelius McComber, Veronica Marten, Stanley
    Thomas Nepetaypo, Flora Northwest, Norman Pauchey, Camble Quatell, Alvin Barney
    Saulteaux, Christine Semple, Dennis Smokeyday, Kenneth Sparvier, Edward
    Tapiatic, Helen Winderman and Adrian Yellowknee

Plaintiffs
Respondent in Appeal
Appellant in Cross-Appeal

and

The Attorney General
    of Canada, The Presbyterian Church in Canada, The General Synod of the Anglican
    Church of Canada, The United Church of Canada, The Board of Home Missions of
    the United Church of Canada, The Womens Missionary Society of the Presbyterian
    Church, The Baptist Church in Canada, Board of Home Missions and Social
    Services of the Presbyterian Church in Bay, The Canada Impact North Ministries
    of the Company for the Propagation of the Gospel in New England (also known as
    The New England Company), The Diocese of Saskatchewan, The Diocese of the Synod
    of Cariboo, The Foreign Mission of the Presbyterian Church in Canada, The
    Incorporated Synod of the Diocese of Huron, The Methodist Church of Canada, The
    Missionary Society of the Anglican Church of Canada, The Missionary Society of
    the Methodist Church of Canada (also known as the Methodist Missionary Society
    of Canada), The Incorporated Synod of the Diocese of Algoma, The Synod of the
    Anglican Church of the Diocese of Quebec, The Synod of the Diocese of
    Athabasca, The Synod of the Diocese of Brandon, The Anglican Synod of the
    Diocese of British Columbia, The Synod of the Diocese of Calgary, The Synod of
    the Diocese of Keewatin, The Synod of the Diocese of QuAppelle, The Synod of
    the Diocese of New Westminster, The Synod of the Diocese of Yukon, The Trustee
    Board of the Presbyterian Church in Canada, The Board of Home Missions and Social
    Service of the Presbyterian Church of Canada, The Women's Missionary Society of
    the United Church of Canada, Sisters of Charity, A Body Corporate also known as
    Sisters of Charity of St. Vincent De Paul, Halifax, also known as Sisters of Charity
    Halifax, Roman Catholic Episcopal Corporation of Halifax, Les Surs de Notre
    Dame-Auxiliatrice, Les Surs de St. François D'Assise, Institut des Surs du
    Bon Conseil, Les Surs de Saint-Joseph de Saint-Hyacinthe, Les Surs de Jésus-Marie,
    Les Surs de l'Assomption de la Sainte Vierge, Les Surs de L'Assomption de la
    Saint Vierge de L'Alberta, Les Surs de la Charité de St. Hyacinthe, Les uvres
    Oblates de L'Ontario, Les Résidences Oblates du Québec, La Corporation Épiscopale
    Catholique Romaine de la Baie James (The Roman Catholic Episcopal Corporation of
    James Bay), The Catholic Diocese of Moosonee, Surs Grises de Montréall/Grey
    Nuns Of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les Surs de la Charité
    des T.N.O., Hôtel-Dieu de Nicolet, The Grey Nuns of Manitoba Inc.-Les Surs
    Grises du Manitoba Inc., La Corporation Épiscopale Catholique Romaine De La
    Baie D'Hudson - The Roman Catholic Episcopal Corporation of Hudson's Bay,
    Missionary Oblates - Grandin Province, Les Oblats de Marie Immaculée du Manitoba,
    The Archiepiscopal Corporation of Regina, The Sisters of the Presentation, The Sisters
    of St. Joseph of Sault St. Marie, Sisters of Charity of Ottawa, Oblates of Mary
    Immaculate -St. Peter's Province, The Sisters of Saint Ann, Sisters of
    Instruction of the Child Jesus, The Benedictine Sisters of Mt. Angel Oregon,
Les Pères Montfortains
, The Roman Catholic Bishop of Kamloops
    Corporation Sole, The Bishop of Victoria, Corporation Sole, The Roman Catholic
    Bishop of Nelson, Corporation Sole, Order of the Oblates of Mary Immaculate in the
    Province of British Columbia, The Sisters of Charity of Providence of Western Canada,
La Corporation Épiscopale Catholique Romaine de Grouard
,
    Roman Catholic Episcopal Corporation of Keewatin,
La
    Corporation Archiépiscopale Catholique Romaine de St. Boniface, Les
    Missionnaires
Oblates Sisters de St. Boniface-The Missionary Oblates
    Sisters of St. Boniface, Roman Catholic Archiepiscopal Corporation of Winnipeg,
La Corporation Épiscopale Catholique Romaine de Prince Albert
,
    The Roman Catholic Bishop of Thunder Bay, Immaculate Heart Community of Los
    Angeles CA, Archdiocese of Vancouver - The Roman Catholic Archbishop of Vancouver,
    Roman Catholic Diocese of Whitehorse, The Catholic Episcopal Corporation of Mackenzie-Fort
    Smith, The Roman Catholic Episcopal Corporation of Prince Rupert, Episcopal
    Corporation of Saskatoon, Omi Lacombe Canada Inc. and Mt. Angel Abbey Inc.

Defendants
Appellant in Appeal/Moving Party
Respondent in Cross-Appeal

Proceedings
    under the
Class Proceedings Act
, 1992, S.O. 1992 c. 6

Catherine Coughlan, for the appellant/moving party

No one appearing for the respondent, M.F. (claimant)

Heard: October 28, 2016

Motion by the appellant for a stay pending appeal.

ENDORSEMENT

[1]

The appellant moves for an order staying the July 5, 2016 order of
    Mr. Justice Paul Perell of the Ontario Superior Court of Justice, until 30
    days following the final disposition of the appeal and cross-appeal from this
    order.  The appellant and the claimant/respondent, M.F., also ask that the hearing
    of the appeal and cross-appeal be expedited.

[2]

For the reasons that follow, I would allow the appellants motion for a
    stay and expedite the hearing of the appeal and cross-appeal.

Background

[3]

This matter arises out of the adjudication of M.F.s claim for
    compensation pursuant to the Independent Assessment Process (IAP) established
    under the Indian Residential Schools Settlement Agreement (IRSSA).  There is
    no dispute that over 50 years ago, when he was a child, M.F. was sexually
    abused by a priest associated with an Indian Residential School known as
    Spanish Boys IRS, and that he has suffered and continues to suffer ongoing serious
    psychological injuries as a result of this abuse.

[4]

Following two reviews of the adjudication and denial of his claim, M.F. made
    a request for direction to Perell J., as an administrative judge under the
    IRSSA.  M.F.s claim had previously been denied because of the erroneous
    finding that M.F. had been abused after the closure of the Spanish Boys IRS
    and therefore did not qualify for compensation under the terms of the IRSSA.
    By the time of the hearing of M.F.s request for direction, a document had come
    to light that demonstrated that M.F. had in fact been abused while the school
    was still in operation.  As a result, the appellant conceded that M.F.s claim
    should be referred back for adjudication with directions but that his request
    for directions was otherwise moot.

[5]

The administrative judge agreed with the position of M.F. and the Independent
    Counsel Group (the participating parties) that the request was not moot because
    the courts direction was needed in the interests of justice concerning the
    review process in relation to factual findings; the appellants obligation to
    produce documents for the adjudicator during the course of an IAP hearing; and
    the courts role in supervising the review and re-review process under the
    IRSSA.  The administrative judge concluded and ordered as follows:

(1)  although Canada made a mistake in redacting Father Bs
    name from one of the after-the-fact examined documents, Canada did not breach
    the IRSSA;

(2)  without the benefit of hindsight, I conclude that the
    Re-Review Adjudicator:  (a) erred and did not apply the correct standard for a
    Re-Review; (b) should have found that the Adjudicator and Re-Adjudicator had
    failed to apply the IAP Model; and (c) should have made an IAP award to M.F.;

(3)  although the court could remit M.F.s IAP Application to
    the Chief Adjudicator to assign an Adjudicator to quantify M.F.s entitlement
    to an IAP award, the court also had the jurisdiction to quantify M.F.s award
    or to direct that it be quantified by a referee of whom, a Master of this court
    or Court counsel appointed under the IRSSA would be appropriate referees;

(4)  in the immediate case, I shall not send the matter back to
    the Chief Adjudicator or appoint a referee; rather, subject to providing the
    parties a 30-day opportunity from the date of this decision to settle M.F.s
    IAP award and his claim for costs, I shall quantify M.F.s IAP award and I shall
    also determine M.F.s claim for costs;

(5)  if the parties are unable to settle the amount of the
    award and the amount for costs, the parties shall make submissions in writing
    based on:  (a) the record now before the court; (b) a bill of costs with supporting
    documents; (c) a factum of no more than 30 pages; and (d) a book of
    authorities; and,

(6)  subject to the parties settling the matter, M.F. shall
    have 60 days from the date of this decision to make his submissions followed by
    Canadas submissions within a further 30 days.  There shall be no reply
    submissions without leave.

[6]

The issued and entered order also provides for a declaration that M.F. is
    entitled to compensation for sexual abuse at the SL4 level and for
    consequential harm at the H4 level.

[7]

No further submissions were made by the parties because the appellant
    launched an appeal from the July 5, 2016 order.  M.F. commenced a cross-appeal.

Stay pending appeal

[8]

Counsel for the appellant advised that M.F. and the Independent Counsel
    Group do not oppose the motion for a stay.  In their email correspondence that
    counsel produced, counsel confirmed that they do not oppose the stay motion
    because of the Chief Adjudicators position that if a stay is ordered by this
    court, current and future re-reviews of claims under the IAP in relation to
    allegations of factual errors will also be stayed pending the disposition of
    the appeal.

[9]

The test for a stay pending appeal is well-settled and mirrors the test
    for an interlocutory injunction:  the appellant must demonstrate that there is
    a serious issue to be tried; irreparable harm will result if the stay is not
    granted; and the balance of convenience favours a stay pending the disposition
    of the appeal:
Longley v. Canada (Attorney General)
, 2007 ONCA 149,
    at para. 14.  It is also well established that these criteria are not to be
    viewed in isolation from each other but as interrelated considerations, and
    that the overarching question is whether the stay is warranted in the interests
    of justice:
Longley
, at para. 15.

[10]

In my view, in the interests of justice, a stay is warranted in the
    circumstances of this case.

Serious issue to be tried

[11]

First, there is no question that the appellant has raised serious issues
    to be tried on appeal with respect to the ongoing supervisory role of the
    courts and the scope of review of factual errors under the IAP of the IRSSA.

[12]

Specifically, the appellant submits that the administrative judge
    exceeded his jurisdiction and erred in law by expanding the scope of review to
    include the consideration of factual errors and in assuming the role of an
    adjudicator in fixing the level of M.F.s compensation and setting out a
    judicial process to quantify that claim and legal fees.  In this way, the
    appellant submits, the administrative judge has created a fourth level of
    review and failed to apply this courts decision in
Fontaine v. Duboff,
    Edwards Haight & Schachter
, 2012 ONCA 471.

[13]

In
Fontaine
, this court directed at para. 78 that a request for
    direction can only be brought in the following very limited circumstances:

In particular, a Request for Direction may only be brought
    where it is alleged that the Chief Adjudicators decision reflects a failure to
    enforce the provisions of the [IRSSA] and the implementation orders.  This very
    limited availability of a right to seek review of a Chief Adjudicators
    decision reflects both the importance of the finality of decisions under the
    [IRSSA] and the relative expertise of the Chief Adjudicator  .

[14]

As a result, whether or not the administrative judges decision has
    erroneously expanded the scope of review and the courts supervisory role are
    serious issues to be tried.

Irreparable harm to the public interest

[15]

Further, the appellant has satisfied the criterion of irreparable harm
    to the public interest in the consistent and timely adjudication of claims
    under the IRSSA and IAP if the stay is not granted.

[16]

The public interest is a special factor that the appellant is required
    to protect:  it includes the concerns of society generally and the particular
    interests of the identifiable group represented in this class action that
    culminated in the IRSSA and the streamlined adjudicative process of the IAP:
RJR
     MacDonald Inc. v. Canada
, [1994] 1 S.C.R. 311, at paras. 71 and 76.  As
    noted by this court in
Fontaine
, at para. 58, there is the need to
    protect vulnerable claimants and the need for finality, efficiency and the
    timely adjudication of the claims under the IRSSA, especially given the age of
    many of the claimants.

[17]

As counsel submits, the administrative judges decision could affect
    hundreds of cases under review or already settled, in which requests for direction
    to the administrative judge could be sought to review alleged factual errors
    and set compensation and legal fees.  There is the risk of inconsistent results
    and of different treatment among class members.  The decision affects the
    integrity of the IAP process also in that the non-adversarial and inquisitorial
    approach of the adjudicators with respect to fact-finding and the setting of
    compensation and legal fees may be subsumed into the adversarial court process,
    which appears contrary to the intention of the IRSSA.

Balance of convenience

[18]

With respect to M.F. and the Independent Counsel Group, their lack of
    opposition to the appellants motion for a stay satisfies me that they do not
    contest that the balance of convenience favours a stay.  As counsel submits,
    the requested stay will not further delay the payment of compensation to M.F.
    because the appeal would automatically stay any order for the payment of money,
    under r. 63.01(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg.
    194.

[19]

In considering the balance of convenience, the position of the Chief
    Adjudicator requires me to look at this factor not only in relation to the parties
    to the appeal but also with regard to the claimants whose claim re-reviews
    might be held in abeyance for several additional months pending the disposition
    of the appeal.

[20]

In the October 25, 2016 letter that the Chief Adjudicators counsel
    asked be produced to this court, counsel indicated that the Chief Adjudicator
    will take the following approach to re-reviews until the appeal in this case is
    determined:

There will be no change to the processing of first reviews.
    The parties will continue to be expected to bring re-review requests with the
    30-day time period or to seek timely extensions to the period of time within
    which a re-review request may be brought.  The parties will continue to be
    expected to provide their written statement of objections and replies to
    statements of objections with the usual time frames.

Claimant re-reviews involving allegations of errors of fact
    will be put in abeyance until the Courts decision is released, unless
    claimants want their re-review to proceed prior to that time.  The Chief
    Adjudicator Claimant will inform claimants seeking a re-review that, at this
    time, re-review adjudicators cannot consider claims that the original
    adjudicator made a factual error that the reviewing adjudicator failed to
    correct, but that the Ontario Court of Appeal is currently considering a case
    that may decide that re-review adjudicators can consider these kinds of errors
    in some circumstances.  The Chief Adjudicator will provide Claimants with an
    opportunity to ask that their re-reviews proceed, but will otherwise await the
    outcome of the Courts decision before proceeding with re-reviews involving
    allegations of factual error.

[21]

Counsel for the appellant submits that while the results from the
    re-review process may be delayed a few months, the balance of convenience nevertheless
    favours a stay because of the need for consistency, fairness and certainty in
    the process.  Moreover, expediting the appeal will attenuate any prejudice to
    the other claimants that may be caused by the increased delay in the
    determination of their re-reviews on alleged factual errors.  I agree with
    these submissions.

[22]

For these reasons, the appellants motion for a stay is allowed.  The appellant
    did not seek costs of the motion.

Expediting the appeal and cross-appeal

[23]

The hearing of the appeal and cross-appeal is at present scheduled for
    March 20 and 21, 2017.  On October 25, 2016, with the consent of the parties,
    the Chief Adjudicator was granted leave to intervene as a friend of the court.
    Five hours have been allocated to the hearing of the appeal and cross-appeal
    and twenty minutes have been allotted for the Chief Adjudicators submissions.
    Counsel for the appellant fairly acknowledges that the hearing of this matter
    will take more than one day.

[24]

In my view, given that M.F.s claim has been outstanding for several
    years and having regard to the Chief Adjudicators position regarding the stay
    of all re-reviews that involve allegations of factual errors, it is in the
    interests of justice that the appeal be expedited.

[25]

On the hearing of the motion, counsel for the appellant advised that all
    counsel were available for the hearing of the appeal and cross-appeal on the
    following dates:  December 5 to 11, 2016; January 18-19, and 25-26; and
    February 1 and 2, 2017.  By letter yesterday, counsel for the appellant
    confirmed that all counsel were still available on those dates and would hold
    them until the court office confirms the new hearing dates.

Disposition

[26]

Accordingly, the July 5, 2016 order of Perell J. is stayed until 30 days
    following the final disposition of the appeal and cross-appeal from this
    order.  The hearing of the appeal and cross-appeal shall be expedited and
    rescheduled to two consecutive days in accordance with counsels following
    available dates that they shall leave open until the appeal and cross-appeal
    are rescheduled:  December 5 to 11, 2016; January 18-19, and 25-26; and
    February 1 and 2, 2017.

L.B. Roberts
    J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: Froehlich-Fivey v. Fivey, 2016 ONCA 833

DATE: 20161104

DOCKET: M47041 (C62623)

Lauwers J.A. (In Chambers)

BETWEEN

Carolina Froehlich-Fivey

Applicant (Appellant/Responding Party)

and

Jeffrey Richard Fivey

Respondent (Respondent/Moving Party)

Bonnie C. Oldham, for the moving party

D. Andrew Thomson, for the responding party

Heard: October 28, 2016

ENDORSEMENT

[1]

The respondent (the moving party on this motion) moves for an order
    under r. 61.06 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 for
    security for costs of the appeal. He submits that there are good reasons to
    believe the appeal is frivolous and vexatious and that the appellant (the
    responding party on this motion) has insufficient assets in Ontario to pay the
    costs of the appeal.

[2]

For the reasons that follow, I agree with the respondent and order that
    the appellant post security for costs in the amount of $20,000.

Background

[3]

The factual background is extensively set out in the reasons for
    judgment of Koke J. of the Superior Court of Justice (with reasons reported at
    2016 ONSC 4729), which is under appeal.

[4]

The parties began living together in February 1992 and were married on
    February 23, 1993. They moved to the Parry Sound area around 2000 and started a
    heating and air conditioning business in which they were equal owners. They
    separated on August 16, 2011 after about 18.5 years of marriage. They had two
    daughters, Christine and Stephanie. At the time of their separation, the
    appellant was 49 years-old, the respondent was 42, Christine was 17, and
    Stephanie was about to turn 15.

The Trial Judges Decision

[5]

Before their separation, the parties both drew income from the business
    and used the business to pay many of their personal expenses. The appellant
    continued to access company accounts after their separation and ran up debts.
    The trial judge noted, at para. 20, on the evidence that:

[T]he parties lived well beyond their means prior to the
    separation. The purchased a number of expensive boats and personal watercraft,
    ATVs, snowmobiles, and vehicles and they travelled regularly. Many of the
    purchases were made using funds and credit from the business. As will be seen
    below, they accumulated substantial debt at the time of separation.

[6]

Appendix A to the judgment sets out the amounts owing on the various
    amounts in dispute. I attach it as an appendix to these reasons. The amounts in
    dispute and the trial judges determinations of those issues are set out there.
    The list of expenses shows the financial effects of a number of determinations
    of fact and credibility made by the trial judge, which he carefully explains in
    his reasons. The net result was that the appellant was obliged to pay to the
    respondent about $114,000.

[7]

The trial judge issued his costs decision on September 2, 2016, reported
    at 2016 ONSC 5541, in which he awarded the respondent the sum of $63,940.80 for
    fees and $14,093.64 for disbursements, plus HST where applicable.

The Appeal

[8]

In the notice of appeal, the appellant asks that the judgment be set
    aside in part and a judgment be granted as follows:

1.

That the respondent pay to the appellant the sum of $3,490 per month
    spousal support indefinitely;

2.

That the respondent pay to the appellant the sum of $98,295.68 to
    equalize the parties Net Family Property in exchange for her interest in the corporation.

3.

That the respondent pay to the appellant her costs of the trial and this
    appeal.

[9]

The notice of appeal lists thirteen grounds of appeal, all of which take
    issue with factual determinations made by the trial judge. I address some of
    them below.

Discussion

[10]

The respondent submits that an order to post security for costs is
    justified under r. 61.06 which governs security for costs on appeal:

(1) In an appeal where it appears that,

(a) there is good reason to believe that the appeal
    is frivolous and vexatious and that the appellant has insufficient assets in
    Ontario to pay the costs of the appeal;

a judge of the appellate court, on motion by the
    respondent, may make such order for security for costs of the proceeding and of
    the appeal as is just.

...

(2) If an appellant fails to comply with an order
    under subrule (1), a judge of the appellate court on motion may dismiss the
    appeal.

[11]

For such an order to be granted, the motion judge must: (a) have good
    reason to believe the appeal has no merit and is therefore frivolous and
    vexatious, and (b) have good reason to believe the appellant has insufficient
    assets in Ontario to cover the costs of the appeal:
Schmidt v. Toronto-Dominion
    Bank
(1995), 24 O.R. (3d) 1 (C.A.). As this court observed in
Schmidt
, at para. 16
:

A judge hearing a motion for security for costs may reach the
    tentative conclusion that an appeal appears to be so devoid of merit as to give
    "good reason to believe that the appeal is frivolous and vexatious"
    without being satisfied that the appeal is actually totally devoid of merit.

Is the appeal frivolous and vexatious?

[12]

In my view, there is good reason to believe the appeal has no merit. It
    does not raise any arguable error in law. It only challenges the trial judges findings
    of fact and credibility that are sound on their face. Therefore, to succeed,
    the appellant must ultimately demonstrate that the trial judge made a number of
    palpable and overriding errors in his findings, such as failing to address a
    material issue, failing to take into account relevant evidence, or taking into
    account irrelevant evidence.

[13]

I have considered the major grounds of appeal and do not believe that
    the trial judge committed any palpable and overriding errors. The first ground
    of appeal is that the trial judge showed bias against the appellant. The trial
    started on December 14, 2015 and the appellant was present, representing
    herself. She was unable to attend the second day of the trial for medical
    reasons and had Mr. Thomson, who is counsel on this appeal, attend with her on
    her behalf. He made submissions for an adjournment and then left. The trial judge
    granted an adjournment on the following terms. First, he adjourned the trial to
    January 6, 2016. Second, he provided in his order that all arrears of child and
    spousal support are expunged, without prejudice to the parties to raise the
    issue of arrears during the trial. This had the effect of stopping the efforts
    of the Family Responsibility Office to collect the alleged arrears. Third, he
    terminated child support effective immediately again without prejudice to the
    parties to raise the issue of child support at trial, although it appeared
    that child support was no longer tenable in light of the childrens ages.
    Finally, he reduced spousal support to $1,500 per month, effective
    immediately, without prejudice to the parties to raise the issue of spousal
    support at trial. The appellant argues that the reduction of spousal support
    in particular shows bias.

[14]

Alleging bias against a judge is a very serious matter and it needs to
    be substantiated. In this case, the appellant has not done so. I am unable to discern
    in the endorsement of December 16, 2015, any hint of bias. The trial judge was
    simply attending to the situation as he understood it, given the appellants
    request for an adjournment and the prejudice it would cause to the respondent. Furthermore,
    the trial judges reasons for judgment exhibit a balanced approach to the
    issues. Counsel for the appellant does not point to any particular lines in the
    trial judgment as exhibiting bias.

[15]

The second ground is that the trial judge erred in fact and in law in
    finding that the appellant is not entitled to compensatory support given the
    length of the marriage and the circumstances of the parties. The trial judge
    faced this issue directly, at para. 43, noting:

Carolina has worked and was re-educated during the marriage.
    She has experience and a university degree in both education and computer
    science and she has the ability, skills and education to become financially
    independent. In my view she is not entitled to compensatory support.

[16]

He added, at para. 51:

Given that there is strong evidence that Carolina can become
    financially independent, a lump sum or step down of support is appropriate.
    Also, given the fact that this litigation alone has likely hampered Carolina's
    ability to become financially independent, and there is no basis for a
    compensatory award of support, a clear fixed termination of support is
    preferable to an obligation to return to court to re-litigate the issues.

[17]

The trial judge was alive to the issue and addressed it fully. The
    relevant law was set out by this court in
Gray v. Gray
, 2014 ONCA 659,

122 O.R. (3d) 337. In that case, this court increased
    the spousal support awarded to a former wife, whose health problems prevented
    her from securing work. The fact that the appellant can work in this case
    distinguishes it from the situation in
Gray
. This case and
Gray
are
    not comparable at all.

[18]

The third ground relates to the imputation of income to the appellant of
    $35, 000 to $40,000 annually. The trial judge explained his reasoning, which he
    based on the evidence. He grounded his finding, on the availability of work for
    the appellant, which he based on the evidence of a local high school principal.
    He did not assume that the appellant would be able to get full time employment.
    Rather, he stated, at paras. 45 and 46:

However, in my view, if properly focused Carolina could earn a
    reasonable income as a part time or supply teacher. In the case of
Sinclair
    v. Sinclair
, 2013 ONSC 1226, [2013] O.J. No 1150, 2013 CarswellOnt 2788,
    Parayeski J. held that the claimant has to get on with life and support
    herself. (at para 53), and he imputed an annual income to the mother of
    $40,000, being roughly 50% the average annual income for teachers despite the
    fact that she had not been working as a teacher for several years.

The evidence before the court indicates that Carolina should be
    able to earn at least $35,000 to $40,000 per annum from teaching given her
    qualifications at this time. In fact, once she is relieved of her court
    obligations and the distractions which come from being involved in this
    litigation it is likely that she can make significantly more through supply
    teaching, tutoring and providing computer related services.

[19]

In oral argument before me, the appellant pointed out that her income
    for the year before trial was about $27,000, which is less than the $35,000 the
    trial judge imputed to her. However, it became clear during the trial that she
    did not realize she was eligible to teach in both the elementary and secondary
    panels of the school board, as the principal explained in his evidence. The
    trial judges clear expectation was that the appellant would have more time, and
    more opportunity to work once the case was over. This is not, on the face of
    it, an unreasonable expectation.

[20]

The fourth, and related, ground of appeal concerns the trial judges
    limitation on the duration of spousal support. The trial judge addressed this,
    at paras. 51-52:

Given that there is strong evidence that Carolina can become
    financially independent, a lump sum or step down of support is appropriate.
    Also, given the fact that this litigation alone has likely hampered Carolina's
    ability to become financially independent, and there is no basis for a compensatory
    award of support, a clear fixed termination of support is preferable to an
    obligation to return to court to re-litigate the issues.

I am ordering that the existing order of $1500 per month for
    spousal support continue for a period of 12 months, from September 1, 2016
    through August 31, 2017. Thereafter, I am ordering that support continue at the
    rate of $1300 per month for a period of four and a half years, through February
    28, 2022.

The trial judges determination was firmly rooted in
    the evidence.

[21]

The fifth ground of appeal is that the trial judge failed to take into
    account the appellants health as a limiting factor in her ability to earn a
    greater income. In this respect, the appellant complains that the trial judge
    erred in excluding medical evidence and finding that there was no medical
    evidence to support her testimony. The excluded evidence was a letter from her
    doctor sought to be admitted for the truth of its contents in the appellants
    reply, without calling the doctor as a witness. The trial judge refused to
    admit the letter, as he was entitled to do. He addressed the medical issue, at
    para. 44:

There is some evidence to support Carolina's claim that she now
    suffers from depression and/or anxiety which has resulted in a couple of brief periods
    of hospitalization and possibly the need for medication. However, it would
    appear that her condition is at least in part due to the general stress of the
    breakdown of the relationship and her own reduced financial situation (which in
    my view results in part from her refusal to come to terms with the fact that
    she cannot maintain her pre-separation life style and standard of living).
There was no medical evidence presented during the trial that
    would indicate that Carolina has health issues which compromise her ability to
    work full time.
(Emphasis added.)

There is no obvious error in this finding.

[22]

The final ground of appeal concerns the fact that the respondent called Christine
    Larkin as an expert valuation witness. She is an accountant at the firm to
    which responsibility for maintaining the companys books and records was
    transferred after the parties separation. Her impartiality was challenged at
    trial. The trial judge rejected the challenge, at paras. 94- 95:

Carolina questions whether the court should accept Ms. Larkin
    as an expert. Although she agrees that Ms. Larkin is qualified to provide the
    value of a business, she points out that her association with the business
    disqualifies her as an expert.

I do not share these concerns. Ms. Larkin filed and confirmed
    an Acknowledgment of Experts Evidence. She was initially hired to provide a
    business valuation, which she completed on March 29, 2012 and thereafter she
    was retained to prepare the company's financial statements for 2011 and then
    performed the income analysis which was completed on November 2, 2012. Despite
    her subsequent association with the business, I find no basis that Ms. Larkin
    was not able or willing to provide the court with fair, non-partisan and
    objective evidence.

[23]

The decisions on whether a witness is biased, and whether to accept
    expert evidence, are quintessentially within the trial judges mandate. In this
    case, the trial judge knew that Ms. Larkin was a participant expert witness. As
    this court held in
Westerhof v. Gee Estate
, 2015 ONCA 206, 124 O.R.
    (3d) 721 and
Gordon v. Canada (Attorney General)
, 2016 ONCA 625, at
    paras. 327-328, the evidence of participant experts is not subject to the
    strictures of r. 53 of the
Rules of Civil Procedure
. The Supreme Court
    in
White Burgess Langille Inman v. Abbott and Haliburton Co
., 2015 SCC
    23, [2015] 2 S.C.R. 182, at para. 49, stated that:

The trial judge must determine, having regard to both the
    particular circumstances of the proposed expert and the substance of the
    proposed evidence, whether the expert is able and willing to carry out his or
    her primary duty to the court.

[24]

That is precisely what the trial judge did.

[25]

Taken together, the grounds of appeal challenge the trial judge's
    findings of fact, the inferences he drew from the facts, and his assessments of
    credibility and reliability. He gave detailed and coherent reasons for all of
    these. As Strathy C.J.O observed in
Henderson v. Wright
,
2016 ONCA 89, [2016] O.J. No. 533, at
    para. 19: In such cases, there is almost no possibility of successfully
    overturning the result. In my view, the appeal has little if any merit.

Does the appellant have
    insufficient assets in Ontario to cover the costs of the appeal?

[26]

The appellants financial situation is difficult. As the respondent
    points out, the orders that have not been appealed require her to pay him about
    $158,000. Further, the matrimonial home, as of the date of separation, was
    valued at $294,000 and has a current first mortgage on it of about $142,000. The
    respondent acknowledges that, since he assumed the second mortgage on the house
    pursuant to the trial judges order, there is some equity in the house. In
    addition, the appellant has a LIRA worth about $185,000.

[27]

The respondent in his affidavit states:

Although she has these assets, she also had in excess of
    $60,000 in debt (in addition to the mortgage) in 2011. I know that her credit
    card and other debts have increased significantly since the date of separation
    from the information disclosed on her updated financial statements and because
    I have been contacted by creditors threatening to terminate services to
    Carolina (hydro, property taxes) for non-payment.

[28]

In response to this direct challenge, the appellant provides no
    substantive financial information. She states simply that I am informed by my
    bank that I will have access to a portion of my LIRA in April 2017, about
    $20,000. She adds that the creditors referred to by the respondent in his
    affidavit called him at a time when he was paying no support or was
    arbitrarily deducting amounts from the support he was ordered to pay leading to
    debt being accumulated by me. She does not, however, provide any evidence as
    to the amount of debt she is now carrying.

[29]

Taken together, the evidence on the appellants financial responsibilities
    and means gives me no confidence that she has sufficient liquid assets to cover
    the costs of the appeal. Indeed, if she is unsuccessful on appeal then the
    current state of her finances would leave the respondent with a formidable
    collection problem. Further, if the appellant actually has equitable room in
    her assets to pay a costs award, then she should be in a position to provide
    security for costs by, for example, posting a letter of credit: See
Perron
    v. Perron
, 2011 ONCA 776, 345 D.L.R. (4th) 513;
Baker v. Rego
,
    2013 ONSC 3309, O.J. No. 2590; and
Children's Aid Society of York Region v.
    G.S.
, 2010 ONSC 3804, 98 R.F.L. (6th) 179.

Disposition

[30]

Taking into account the lack of merit of the appeal, the respondents
    exposure to the costs of the appeal, and his prospective difficulty in
    collecting costs from the appellant, I find good reason to order the appellant
    to post security for costs in this case. I therefore order the appellant to
    post security for costs in the amount of $20,000 within 60 days of the date of
    this order, failing which a judge of this court may dismiss the appeal on
    motion.

[31]

I fix costs of the motion at $6,000 inclusive of disbursements and
    applicable taxes, payable by the appellant.

P. Lauwers J.A.