COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McRae, 2021 ONCA 525

DATE: 20210722

DOCKET: C66363

Rouleau, Pepall and Roberts
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John McRae

Appellant

Matthew R. Gourlay, for the appellant

Andreea Baiasu, for the respondent

Heard: March 18, 2021 by video
    conference

On appeal from the conviction entered on
    June 14, 2018 by Justice Robert N. Beaudoin of the Superior Court of Justice,
    sitting with a jury, and from the sentence imposed on June 20, 2018, with
    reasons reported at 2018 ONSC 4035.

Rouleau J.A.:

OVERVIEW

[1]

The appellant stabbed his son causing his death. He
    was convicted of second-degree murder and sentenced to life imprisonment with a
    parole ineligibility period of 12 years. He appeals both conviction and
    sentence. For the reasons that follow, I would dismiss the appeal.

FACTS

[2]

At the time of the murder, the appellant, then 70
    years old, and his son Michael, 51 years old, had for some time been living
    together in an apartment with a third roommate, Alain Chaput. The father and
    son relationship was a rocky one. Both struggled with substance abuse and had
    prior criminal records.

[3]

On the day of the incident, July 7, 2015, the
    appellant began drinking at noon. Around 2:00 p.m., Mr. Chaput met the
    appellant at a bar, where they drank together. When they returned to the
    apartment, the appellant and Michael had a confrontation in the backyard. The
    appellant approached Michael and angrily confronted him about his failure to
    pay his share of the rent. This sparked an exchange of threats and insults with
    both men uttering threats to kill each other one day. Michael pushed the
    appellant down twice and the appellant hit Michael with small punches.

[4]

Following this exchange, Mr. Chaput and the
    appellant went to a pub across the street, returning home around 5:45 p.m. Mr.
    Chaput ate dinner and went back to his room.

[5]

A few minutes later, the appellant knocked on Mr.
    Chaputs door and asked Mr. Chaput to call 911 because he had just stabbed his
    son. Mr. Chaput called 911 and asked for an ambulance at 6:40 p.m.

[6]

The appellant had stabbed Michael twice in the
    upper abdomen with a butcher knife, each time plunging the knife to the hilt
    about 20 cm deep. He also cut the front of Michaels neck, leaving a 15 cm long
    gash. That cut, however, was only a superficial injury. Death was caused by the
    stab wounds to the abdomen. Emergency surgery could not save Michaels life and
    he was pronounced dead at the hospital at 9:35 p.m. that same night.

[7]

There were several descriptions as to how the
    murder had been committed. Mr. Chaput testified that, immediately after the
    stabbing, when he asked the appellant what had happened, the appellant answered:

I just stabbed
    him. I was fed up with him. Hes keeping pushing me around, threaten to kill me
    and all that bullshit. Just fed up. I went there to stab him so I seen him, he
    was full of blood.

[8]

Upon his arrest, the appellant told the police: I
    came home. He kicked the shit out of me. I said, Im not going to stand for it
    no more. Then, as he was being escorted by the police out of the building, a
    neighbour asked the appellant: Why did you do it? The appellant replied: He
    deserved it.

[9]

The next day, the appellant was interviewed by
    police at the station. He described what happened as: Nothing happened. Just I
    come home and he was sitting out in the back drinking and that there and I
    flipped. And he pushed me down a couple of times and I said well Ill get you
    back. Later the appellant confirmed that he stabbed Michael when he was asleep
    because I wanted my revenge I guess. He further recalled that Michael woke up
    after being stabbed and asked: What are you doing that for? Toward the end of
    the police interview, the appellant said: I just snapped. Thats why I should
    see a psychiatrist or something.

[10]

Eight months after the stabbing, on April 29, 2016, the appellant met
    with Dr. Helen Ward, a forensic psychiatrist, and spoke with her about the
    stabbing. He said that he went to his bedroom at 6:00 or 7:00 p.m. and pretended
    to be asleep for 20 minutes when Michael came in and said Ill kill you, you
    old bastard, a threat which he had uttered before. The appellant remained in
    bed and waited until Michael was quiet. He then grabbed a knife from the block
    on top of the fridge and went over to Michael who was lying on the couch on his
    back, his eyes partially shut, and stabbed him once in the stomach. He told Dr.
    Ward that Michael then opened his eyes and said: What are you doing? to which
    the appellant replied: I am putting an end to the argument. He then stabbed
    Michael again. The appellant added: and I think I cut his throat. I just
    couldnt take it no more, just had my fill of it.

[11]

When the appellant saw Dr. Ward again on October 21, 2017, he told her that
    he remembered having an argument with Michael about the rent, and nothing else
    after that until he told Mr. Chaput to call the police. The appellant said that
    he was very drunk and did not remember Michael uttering any threat, and that he
    did not remember stabbing Michael.

[12]

At trial, the appellant gave a different version. He said that he did
    not remember going to the pub for a second time, and that the next thing he
    remembered after the argument about the rent was Michael kicking open his
    bedroom door and saying: Youre gonna die tonight you old bastard. The
    appellant then looked for the baseball bat he used to keep in his bedroom, but
    it was gone. He went to the kitchen and grabbed the knife because he was
    scared. Michael had gone into the living room and was lying on the couch
    watching television. The appellant testified that he approached Michael who
    stood up and called his father: a rotten something and then thats when I shoved
    a knife in him. It was fast and he fell down on the couch. And then I went over
    to [Mr. Chaputs] door. The appellant described the situation as it was
    either kill or be killed. He acknowledged not mentioning Michaels threat to
    kill him when interviewed by the police because I was so used to it. I thought
    it was normal.

[13]

The trial judge charged the jury on self-defence and intoxication, as
    requested by the defence. The defences position was that the history of the
    relationship between the appellant and his son was crucial to understanding the
    July 7 killing, which the defence urged the jury to see as an act of
    self-defence after years of elder abuse and escalating violence. The Crowns
    position was that the appellant stabbed his son with the intention to kill him,
    committing second-degree murder. The appellant was fed up with his son and his
    sons lifestyle. He was angry and killed him as revenge for the backyard
    confrontation, not to defend himself.

[14]

Neither the Crown nor defence made any serious reference to the partial
    defence of provocation. The only mention of it came in passing from the trial
    judge who, during the pre-charge conference, noted that: There is no evidence
    of provocation so I eliminated references to provocation from the rolled-up
    charge. Neither counsel objected.

[15]

During deliberations, the jury asked a question about how anger may
    raise a reasonable doubt as to the
mens rea
for murder. Specifically,
    the jury indicated that they were having an issue with the evidence of anger
    may raise
[sic]
a reasonable doubt
    whether, when he unlawfully killed Mike McRae, John McRae had either state of
    mind required for murder. In discussing the appropriate response, both the
    Crown and defence acknowledged that the defence of provocation did not arise in
    this case. They agreed that the trial judge should repeat the rolled-up charge
    for the jury, specifying that: anger is not a defence; anger only in
    combination with the other factors and on consideration of all the evidence
    that youve heard is for you to consider as whether or not he had either states
    of mind to commit the offence of murder.

[16]

The jury returned a verdict of guilty for second-degree murder and the
    appellant was sentenced to life imprisonment with a parole ineligibility period
    of 12 years.

GROUNDS OF APPEAL

[17]

The appellant raises four grounds of appeal as follows:

1.

the trial judge erred in failing to charge the
    jury on provocation;

2.

the trial judge erred in dismissing the
    appellants
Scopelliti
and
Corbett
applications
;

3.

the trial judge erred by giving a special hearsay
    caution; and

4.

the trial judge erred in his sentencing of the
    appellant by relying on the appellants position of trust as an aggravating
    factor and in imposing a parole ineligibility period of 12 years.

ANALYSIS

(1)

Did the trial judge err in failing to charge the
    jury on provocation?

[18]

The appellant argues that there was an air of reality to the partial
    defence of provocation and that the trial judge erred in failing to charge the
    jury on it. The fact that provocation was not specifically raised by counsel
    did not absolve the trial judge of his duty in that regard.

[19]

Under s. 232 of the
Criminal Code
, R.S.C. 1985, c. C-46, provocation
    provides a partial defence to an accuseds unlawful conduct in killing another
    human being where the killing is perpetrated as a result of a sudden event
    triggering a loss of self-control:
R. v. Tran
, 2010 SCC 58, [2010] 3
    S.C.R. 350, at paras. 9-12;
R. v. Thibert
, [1996] 1 S.C.R. 37, at
    para. 4. The defence consists of both objective and subjective elements. There
    must have been a wrongful act or insult sufficient to deprive an ordinary
    person of the power of self-control, the objective element, and the accused
    must have acted upon that insult on the sudden and before there was time for
    the accuseds passion to cool, the subjective element:
Tran
, at para.
    10, citing
Thibert
, at para. 4. The appellant correctly notes that a
    2015 amendment to s. 232, which now requires that the provocative act also
    constitute an indictable offence punishable by five or more years imprisonment,
    does not apply in this case because the amendment came into force after the
    charged conduct:
R. v. Singh,
2016 ONSC 3739, at paras. 43-44, citing
R.
    v. Bengy,
2015 ONCA 397, 325 C.C.C. (3d) 22.

[20]

According to the appellant, the defence of provocation had an air of
    reality in light of his evidence about what Michael had said to him prior to
    the stabbing. He testified that Michael had called him names and said he would die
    tonight. Such a threat can, the appellant submits, constitute provocation.
    Further, an act of provocation is not considered in isolation, but rather in
    the context of the course of events that led up to it, including the
    relationship between the parties.

[21]

In this case, the context is one of a long abusive relationship between
    two men, including a confrontation earlier in the day. In the appellants
    submission, the jury was entitled to accept the appellants trial evidence that
    he flipped after Michael came into his room to threaten him and call him
    names. After being threatened while he lay on his bed, the appellant got up,
    went into the kitchen where he retrieved the knife and, upon confronting
    Michael, was insulted once again. This combination of threat and insult was, the
    appellant argues, sufficient to deprive an ordinary person of the power of
    self-control and, accordingly, satisfies the objective portion of the test for
    provocation.

[22]

As for the subjective element of the defence, the appellant
    acknowledged that he was angry, but he also testified that he was scared. He
    argues that as long as there was some evidence that he acted in sudden response
    to provocation, the subjective element required for the defence of provocation
    had an air of reality and should have been left with the jury.

[23]

The appellant further submits that trial counsels failure to ask for a
    provocation instruction did not relieve the trial judge of his obligation to
    leave the defence with the jury. It is an error of law not to leave provocation
    with the jury if the defence has an air of reality:
R. v. Cinous
, 2002
    SCC 29, [2002] 2 S.C.R. 3, at para. 51. On the facts of this case, the appellant
    argues that the jury could have been persuaded, or at least left with a
    reasonable doubt, that an ordinary person in the accuseds circumstances would
    have lost control when Michael made his final taunting threat. Furthermore, the
    air of reality was evident from the jurys question.

[24]

I disagree. It is well established that in considering whether a
    defence has an air of reality, the accused is entitled to the most favourable
    view of the evidence. It is assumed that the evidence relied upon by the
    accused is true. However, a mere assertion by the accused is not sufficient to
    put a defence to the jury:
Cinous
, at para. 98.

[25]

As explained by McLachlin C.J. in
R. v. Pappas
, 2013 SCC 56,
    [2013] 3 S.C.R. 452, at paras. 24 and 26:

An air of reality cannot spring from what
    amounts to little more than a bare, unsupported assertion by the accused,
    which is otherwise inconsistent with the totality of the accuseds own evidence:
R. v. Park
, [1995] 2
    S.C.R. 836, at para. 35,
per
LHeureux-Dub
é J.

Defences supported
    only by bald assertions that cannot reasonably be borne out by the evidence,
    viewed in its totality, should be kept from the jury.

As I will explain, the record in this
    case supports neither the presence of the required objective nor subjective
    elements of the defence.

(a)

No air of reality to the objective element

[26]

The nature of the threat in this case is not such that an ordinary
    person would be deprived of self-control. Accepting the appellants evidence
    that Michael came to the appellants bedroom door and told him Ill kill you,
    you old bastard or Youre gonna die tonight you old bastard, there is no
    evidence that this threat was accompanied by any physical assault or intention
    to follow through. In fact, after the alleged statement was made, Michael
    simply walked away. He went back into the living room, opened a beer, lay on
    the couch and started watching television. An ordinary person would not be
    deprived of self-control by a mere threat of future harm in those
    circumstances.

[27]

Placing this threat in context is of no assistance to the appellant. By
    all accounts, the relationship between the appellant and his son was plagued by
    mutual insults and threats of violence for years without any significant
    injuries to either party. In other words, even steeped in the hostile dynamic of
    that relationship, an ordinary person would not lose self-control, as they
    would not have been shocked by the insult, nor would they have any reason to
    think that Michael was going to inflict immediate physical harm.

[28]

As for the utterances the appellant claims that Michael made when the
    appellant came toward him carrying the knife, namely calling the appellant a
    rotten something and saying what do you want you old bastard, these were
    obvious and predictable reactions to the appellants confrontational conduct. Michaels
    utterances lacked the element of sudden shock required to cause an ordinary
    person to lose self-control. Michael did not draw a weapon or make any
    aggressive gesture toward the appellant in the living room. His statements to
    the appellant were unsurprising given the fact that he was being confronted at
    knifepoint. A properly instructed jury acting reasonably could not have been
    persuaded that Michaels conduct was sufficient to deprive an ordinary person
    of the power of self-control, nor could it have left the jury with a reasonable
    doubt.

(b)

No air of reality to the subjective element

[29]

In my view, the subjective element of the air of reality test has not
    been made out on the record. Specifically, the appellants evidence in this
    case does not provide a basis upon which the jury could believe or entertain a
    reasonable doubt that he lost self-control and that he acted on the sudden, stabbing
    Michael before there was time for his passion to cool. At no point did the
    appellant suggest that he lost the power of self-control or that he killed
    Michael in the heat of passion.

[30]

When considered in the context of the whole of the evidence, the
    appellants evidence about his motivation for the killing to the effect that he
    snapped or flipped after Michael came into his room and threatened him is
    insufficient to give an air of reality to the defence of provocation. Even
    accepting the appellants evidence that he snapped or flipped, this
    isolated evidence is ripped from the context of the rest of the evidence and
    does not satisfy the subjective element of the test:
R. v. Doucette
,
    2015 ONCA 583, 328 C.C.C. (3d) 211, at para. 31.

[31]

In this case, it is apparent that the stabbing, when viewed in the
    context of all the evidence at trial, was not a sudden reaction on the
    appellants part. Although the appellant testified that there were only seconds
    between the threat and the stabbing, his own evidence shows that, after the
    threat, he took the time to look for the baseball bat he usually kept in his
    room, could not find it, and decided to go to the kitchen for a knife. He then
    went over to the couch where he confronted Michael. He not only stabbed him
    twice but went on to inflict a 15 cm cut to Michaels throat. The isolated
    statements that he snapped or flipped are inconsistent with the appellants
    principal narrative as to how the murder was committed and are insufficient to
    give an air of reality to the defence of provocation. Viewed in the entire
    context of this case, the subjective element, acting on the sudden, is lacking.

[32]

The appellant argues that the present case is similar to
R. v. Gill
,
    2009 ONCA 124, 241 C.C.C. (3d) 1 and
R. v. Angelis
, 2013 ONCA 70, 296
    C.C.C. (3d) 143. In both of those cases, this court held that provocation
    should have been left with the jury because the Crown, in arguing that the
    accused had acted out of anger, implicitly acknowledged that there was some
    evidence of provocation. In the appellants submission, the same argument was
    made by the Crown in this case, that is, that the appellant was fed up and
    angry at Michael and that was why he killed him.

[33]

In my view,
Gill
and
Angelis
are quite different. In
    those cases, there was an undisputed element of suddenness in the sense that
    the appellant became enraged immediately before or during the fatal
    confrontation with the deceased. By contrast, in this case, the Crown did not suggest
    that the appellant was animated by sudden anger immediately before stabbing
    Michael to death. Instead, the Crown pointed to the appellants long-standing
    frustration and seething anger with Michael, which was aggravated by the
    confrontation hours earlier in the backyard. The stabbing was neither sudden nor
    immediate.

[34]

In the final analysis and considering the totality of the evidence in
    this case, the trial judge and all counsel at trial correctly concluded that there
    was no air of reality to the suggestion that the appellant killed Michael in a
    sudden fit of anger before he had time to regain control. The trial judge did
    not err in failing to put the defence of provocation before the jury.

(2)

Did the trial judge err in his
Scopelliti
and
Corbett
rulings?

[35]

At trial, the appellant brought applications to adduce evidence of Michaels
    criminal history pursuant to
R. v. Scopelliti
, (1981), 63 C.C.C. (2d)
    481 (Ont. C.A.) and to exclude evidence of his own criminal history pursuant to
R. v. Corbett
, [1988] 1 S.C.R. 670.

[36]

On the
Scopelliti
application, the
    appellant argued that Michaels prior history of violent and criminal behaviour
    with the appellant and others was
relevant to the
    appellants claim of self-defence. The
Scopelliti
application was brought before the defence had called its case, but
    the appellant undertook that he would testify and provided a short will-say
    statement. He further acknowledged that if the
Scopelliti
application was granted
    and evidence of Michaels violent criminal behaviour admitted, he would have no
    basis upon which to resist the admission of his own criminal record. In
    essence, he argued that in the interest of fairness, the jury should receive a
    complete picture of both protagonists, including their violent and criminal
    history.

[37]

The
Corbett
application
    was argued during a break in the appellants testimony in chief. The appellant
    opposed the introduction of his criminal record by the Crown on the basis that
    his convictions were dated and that the crimes involved did not speak to
    credibility. He argued that the introduction of his criminal record could only
    give rise to impermissible propensity reasoning.

[38]

On the
Scopelliti
application, trial judge ruled that the
    evidence of Michaels
prior acts of violence that were
    known to the appellant was relevant and admissible. However, where the
    appellant had no direct knowledge of the prior acts of violence, the evidence
    would be excluded. He limited the
Scopelliti
application in this way
    on the basis that the appellants testimony about Michaels aggression did not
    open the door wide to all of Michaels past disreputable conduct.

[39]

In his ruling on the
Corbett
application, the trial judge
    noted that the appellant had already introduced a substantial portion of his
    own criminal record through his testimony in chief. Because the appellant was
    the only surviving party to the final confrontation with Michael, his
    credibility would be central to the case and the jury should be presented with
    a complete picture, accompanied by the appropriate instruction. The trial judge
    therefore permitted the Crown to cross-examine the appellant on his criminal
    record without restriction.

[40]

The appellant challenges both rulings. In the appellants submission, the
    trial judges
Scopelliti
ruling was wrong and prejudiced the
    appellants defence because a significant quantity of evidence pertaining to
    Michaels violent disposition was never heard by the jury. This included
    Michaels full criminal record, evidence of violence toward his former
    girlfriend that the appellant was unaware of and the evidence of a police
    officer about a February 2015 violent interaction between Michael and the
    police that occurred when the appellant was not present. In the appellants
    submission, all of this evidence was clearly relevant to self-defence. Its
    probative value exceeded any prejudice it might cause.

[41]

The appellant also maintains that the trial judges error was
    compounded by his giving a cautionary midtrial instruction to the jury in which
    he told the jury that Michaels extraneous misconduct was irrelevant.

[42]

As for the
Corbett
application, the appellant submits that,
    because he excluded Michaels criminal record, it was an error for the trial
    judge to then deny the appellants
Corbett
application and permit the
    Crown to cross-examine the appellant on the entirety of his criminal record.

[43]

I would not give effect to these submissions. As submitted by the
    Crown, even if the ruling on the
Scopelliti
application was an error,
    the jury ended up hearing substantially all of the evidence of Michaels violent
    history that the defence first sought to adduce through the
Scopelliti
application
. The
Scopelliti
ruling
    had no significant impact on the outcome of the trial and cannot be said to
    have occasioned a substantial wrong or miscarriage of justice. Accordingly, to
    the extent of any error in the trial judges
Scopelliti
ruling, I
    would apply the curative proviso, as urged by the Crown.

[44]

The appellant was allowed to testify that he and Michael committed a
    robbery together and that Michael went on to commit robbery of a liquor store
    and of a Dairy Queen. He also testified about Michaels fight with a police
    officer at a liquor store. Michaels former girlfriend testified to having been
    threatened by Michael should she take their daughter away, that the threats
    were getting out of hand and that he was getting more violent. Finally, the
    fact that Michael had been to the penitentiary came out in evidence, and his
    criminal record appears to have been put in as an exhibit at trial, possibly,
    as the Crown suggests, as an inadvertent attachment to the appellants criminal
    record. The appellant simply suffered no prejudice as a result of the
Scopelliti

ruling.

[45]

I also agree with the Crown that, in the context of this case, the
    trial judges midtrial instruction to the jury concerning Michaels extraneous
    misconduct would have had no effect on the appellants claim of self-defence.
    The main hurdle for the appellants self-defence claim was not that Michael would
    utter threats and become verbally abusive when drunk. There was plenty of
    evidence to that effect. The difficult issue was whether the appellants act of
    stabbing Michael in response to the threat was reasonable in the circumstances
    where Michael had left and returned to the living room to watch television. Even
    on the most favourable view of the appellants evidence, Michael was not the
    aggressor at the time of the stabbing. Evidence that Michael had robbed a
    liquor store, been belligerent with the police or had verbally threatened his
    girlfriend would have had no impact on the jurys assessment of the
    reasonableness of the appellants reaction purportedly in self-defence.

[46]

Finally, given that the evidence of Michaels bad character and
    criminal conduct was heard by the jury, I see no error nor any prejudice arising
    from the trial judges dismissal of the
Corbett
application. The jury
    received a warts and all picture of both father and son, as the defence had
    originally sought. The exclusion of the appellants criminal record would have
    resulted in an imbalance. I would not give effect to this ground of appeal.

(3)

Did the trial judge err by giving a special
    hearsay caution?

[47]

The appellant argues that the trial judge erred by characterizing Michaels
    utterances on the day of the murder as hearsay and by instructing the jury that
    it should treat them with special caution because Michael was not under oath or
    available for cross-examination. The appellant places particular emphasis on
    the following passage from the trial judges jury charge:

First, you have to decide what, if anything,
    Michael McRae said to John McRae. In deciding whether Michael McRae said these
    things, or any of them, you should use your common sense. Take into account the
    condition of Michael McRae and of the witnesses at the time of the
    conversation, the circumstances of when the conversation took place, and
    anything else that may make the witnesss story more or less believable.

If you find that the witness has reliably
    reported any or all of what Michael McRae said, you may use those parts of the
    witnesss testimony to help you decide the case. Do not use what you conclude
    the witness has not  do not use what you conclude that the witness has not
    reliably reported.

You should be cautious when you determine how much or how little you
    rely on this evidence and of what you find Michael McRae said to any witness to
    decide this case. It may be less reliable than other evidence that has been
    given. Michael McRae was not under oath or affirmation. He did not promise to
    tell the truth. You did not see or hear Michael McRae testify, although you
    heard his voice on the 911 call. He could not be cross-examined here like the
    other witnesses who testified before you
.
    [Emphasis added by appellant.]

[48]

The appellant explains that Michaels utterances were not adduced for
    the truth of their content, so the hearsay rule was inapplicable. It did not
    matter if the threats issued by Michael were true in the sense that they would
    have actually been carried out. What mattered was whether the appellant perceived
    them as being serious. The threats gave support to the appellants claim of
    self-defence.

[49]

In support of this submission, the appellant relies on
R. v. Delellis
,
    2019 BCCA 335. In that case, as here, the accused claimed self-defence. The
    deceased was a drug dealer who had threatened the accused about a week prior to
    the incident. The evidence of threats made by the deceased was given by the
    accuseds girlfriend and, in his charge to the jury, the trial judge cautioned the
    jury about the limitations of this evidence. The caution was due to the lack of
    cross-examination. The trial judge urged the jury to consider [the evidence]
    carefully before giving [it] the weight you think it deserves and specified
    that [e]ven if you find that [the witness] accurately reported the statements
    made to her by [the deceased], you must still determine whether [the deceased]
    was being truthful at the time.

[50]

The Court of Appeal in
Delellis
held that the trial judges
    instruction amounted to reversible error notwithstanding the lack of a defence
    objection. The issue according to the Court of Appeal was not whether the
    threat was truthful but whether it was in fact made. In undermining the ability
    of the defence to rely on this important evidence, the instruction amounted to
    reversible error.

[51]

In my view, on the facts of this case, the cautionary instruction did
    not undermine the appellants defence. The parties at trial agreed that
    Michaels statement should be treated as admissible hearsay and they approved
    of the proposed jury instruction in that regard. It is not at all clear that a
    detailed instruction on the non-hearsay-purpose use of those statements would
    have assisted the appellant. The trial judge would have been required to remind
    the jury that Michaels statements may or may not have been true. This would in
    turn emphasize that we do not know if Michael meant to carry out the threat and,
    in fact, that he had never carried out earlier threats. The warning would call
    into question both the sincerity and the reasonableness of the appellants
    apprehension of harm.

[52]

Moreover, the present case is distinguishable from
Delellis
as
    the impugned hearsay instruction did not undermine the jurys assessment of the
    appellants claim of self-defence. First, the instruction concerned Michaels
    statements in the afternoon before the murder and the statements made by
    Michael that could be overheard when Mr. Chaput made the 911 call. The
    instruction did not specifically concern the threat made in the evening at the
    bedroom door, which was the basis of the appellants self-defence argument. Second,
    and more importantly, the jury in this case was not instructed that they first
    had to determine whether Michaels afternoon threats were true before
    considering them for the benefit of the appellant. The trial judges focus was
    on the fact of Michaels threats rather than their veracity:

If you find that
    the witness has reliably reported any or all of what Michael McRae said, you
    may use those parts of the witness testimony to help you decide the case.
Do not use what you conclude the witness has not reliably
    reported
.

[53]

The trial judge then added a standard warning to the effect that
    Michael was not present at trial, did not testify under oath and did not
    promise to tell the truth. This added caution was not an invitation to discount
    Michaels statements if the jury determined they were untrue. The trial judge
    immediately returned to the issue of whether the witness reporting Michaels
    words could be believed:

In deciding how
    much or little of a witnesss testimony about what Michael McRae said you will
    believe and rely upon, you might ask yourselves questions such as: Would the [witness]
    have any reason to make up the story about what Michael McRae said?  Might the
    witness be mistaken about what Michael McRae said, or might the witness have
    put his or her own interpretation on what Michael McRae said?

[54]

Crucially, the trial judge did not take the additional step, like the
    trial judge in
Delellis
, of adding: [e]ven if you find that [the
    witness] accurately reported the statements made to her by [the deceased], you
    must still determine whether [the deceased] was being truthful at the time.

[55]

Further, the trial judges later instructions on self-defence made no
    reference to the earlier hearsay instruction. Self-defence was not made
    dependent on the truth of Michaels threats. Rather, the jury was properly
    instructed that the appellant was entitled to be mistaken in his belief about
    Michaels threatened use of deadly force.

[56]

The jury charge on self-defence contained a review of the relevant
    evidence, including the history of verbal abuse, threats and fights between
    Michael and the appellant, Michaels threat during the afternoon confrontation
    and the appellants testimony that, shortly before 6:40 p.m., Michael
    threatened to kill him later that night. None of the evidence in this portion
    of the charge was qualified or discounted in any way as a result of Michaels
    statements being hearsay. Accordingly, the instruction did not undermine the
    defences ability to rely on self-defence in this case.

(4)

Did the trial judge err in sentencing?

[57]

The appellant argues that the trial judge erred in finding that the
    aggravating factor set out at s. 718.2(a)(iii) of the
Criminal Code
applied because Michael was dependent on the appellant and the appellant stood
    in a position of trust towards Michael. Further, in the appellants submission,
    the trial judge erred in exercising his discretion in setting the parole
    ineligibility period at 12 years for this 73-year old offender, who was in poor
    health.

[58]

I see no basis to interfere with the sentence imposed. As found by the
    trial judge, this was a cruel and horrific murder. The appellant stabbed his
    son, who was apparently sleeping, twice in the abdomen, plunging the butcher
    knife up to the hilt each time. There was no clear expression of remorse from
    the appellant who, upon arrest, suggested that his son deserved it.

[59]

As for the finding that the appellant stood in a position of trust, this
    court has generally not insisted upon a narrow approach to the interpretation of
    s. 718.2(a)(iii). See
R. v. Orwin
, 2017 ONCA 841, at paras. 54
    and 57;
R. v. Hamade
, 2015 ONCA 802, at paras. 28-30, and
R. v.
    C.R.
, 2010 ONCA 176, at paras. 84-86. In this case, Michael was very
    dependent on his father, with whom he had lived most of his adult life. There
    is no question that it was by exploiting an element of trust that the appellant
    was able to kill his son while he was in a vulnerable position, lying on the
    couch in their shared apartment.

[60]

The trial judge considered the appellants age and poor state of health
    and, weighing these together with other relevant factors, exercised his
    discretion to set the parole ineligibility at 12 years. I see no error in that
    regard.

CONCLUSION

[61]

For these reasons, I would dismiss the conviction and sentence appeals.

Released: July 22, 2021 P.R.

Paul Rouleau J.A.

I agree S.E. Pepall J.A.

I agree L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R.F. v. J.W., 2021 ONCA 528

DATE: 20210722

DOCKET: C68225

Juriansz, van Rensburg and
    Sossin JJ.A.

BETWEEN

R.F.

Applicant (Appellant)

and

J.W.

Respondent (Respondent)

Ken Nathens and Denniel Duong, for the
    appellant

Kirsten Hughes, Mackenzie Dean and Darryl
    Willer, for the respondent

Heard: May 7, 2021 by video
    conference

On appeal from the order of Justice Mary
    Jo McLaren of the Superior Court of Justice, dated February 26, 2020, with
    reasons reported at 2020 ONSC 1213.

van
    Rensburg J.A.:

OVERVIEW

[1]

The parties R.F. and J.W.
[1]
are former spouses and the
    parents of two children, who are now 15 and 11 years old. After 14 years of
    marriage, they separated in 2014, and divorced in 2017. Both remarried.
    Although they were able to agree on an equal time-sharing arrangement after
    their separation, ultimately they became involved in high conflict litigation.

[2]

The appeal is from a judgment following a 16-day
    trial that took place in September 2019. A final order with reasons for
    decision was released on February 26, 2020. The trial was primarily concerned
    with parenting time and decision-making responsibility in relation to the
    parties children and child support.
[2]

[3]

The trial judge concluded that it was in the
    best interests of the children for the parties to have shared parenting time on
    an alternating weekly time-sharing schedule and for the respondent father to
    have final decision-making responsibility for the children after consultation
    with the appellant mother. The trial judge fixed the parties income for child
    support purposes for 2018, dismissed the claim for a retroactive adjustment of
    support, ordered set-off child support to be paid by the mother, commencing
    March 1, 2020 (with the requirement that the father provide an income analysis
    from a chartered accountant every two years for the preceding two years,
    commencing in 2021), and s. 7 expenses to be shared proportionate to the
    parties incomes.

[4]

The mother appeals both the parenting and child
    support provisions of the trial judges final order. She asserts that the trial
    judge made reversible errors in her approach to and consideration of the
    evidence respecting parenting of the children, in the determination of the fathers
    income for child support purposes (and the sharing of s. 7 expenses), and in
    failing to order the father to pay support arrears.

[5]

The mother also seeks to introduce as fresh
    evidence in this appeal her affidavit setting out changes and events [that]
    have transpired since the judgment under appeal was made.

[6]

For the reasons that follow, I would dismiss the
    appellant mothers motion to introduce fresh evidence and, except for one issue
    that I would remit to the trial judge, the appeal.

THE FRESH EVIDENCE MOTION

[7]

The mothers proposed fresh evidence is her affidavit,
    which speaks primarily to events concerning the children since the date of the
    trial and the final order under appeal. The father opposes the motion, but if
    the mothers affidavit is admitted, he asks the court to consider his own
    affidavit that sets out his post-trial observations, and attaches as exhibits
    the interim reports of the therapist who was appointed on consent at the
    conclusion of the trial, Lourdes Geraldo,
[3]
and of the childrens individual therapist.

[8]

Evidence about the circumstances prevailing
    since the date of an order under appeal is not, strictly speaking, fresh evidence
    that would meet the test for admission under
R. v. Palmer
, [1980] 1
    S.C.R. 759, at p. 775, or
Sengmueller v. Sengmueller
(1994), 17 O.R.
    (3d) 208 (C.A.). As Benotto J.A. observed in
Goldman v. Kudelya
, 2017
    ONCA 300, the
Palmer
criteria are more flexible where an appeal
    involves the best interests of a child, in order to provide the court with
    current information about the condition, means, needs, circumstances and well‑being
    of the child. However, she cautioned that [t]he more flexible approach to the
Palmer
test in custody matters is not an opportunity for parents to continue an
    affidavit war: at para. 28. Except for one agreed upon fact, the parties
    contradictory affidavits were not admitted as fresh evidence in
Goldman.

[9]

Similarly, in the present case the proposed
    fresh evidence speaks to events since the trial, and in particular after the
    parenting regime provided for in the order under appeal was implemented. The mothers
    affidavit repeats and continues themes from the trial: that the father is
    responsible for the deterioration in his relationship with the children, and
    that he is ignoring the childrens best interests. The mother asserts that,
    contrary to the trial judges findings, events since the date of the final
    order demonstrate that the father is the primary source of conflict between the
    parties. She recounts incidents with the children that suggest that they are
    doing less well under the equal time-sharing regime, and she objects to the fathers
    decision to prevent the children from attending in-person dance classes due to
    COVID-19 restrictions.

[10]

I agree with the father that the matters raised
    in the proposed fresh evidence were either considered by the trial judge at
    first instance or are matters that are being addressed through the therapy that
    was ordered by the trial judge on consent at the conclusion of the trial. In a
    further attendance on November 18, 2020 (to deal with issues of cell phone use
    and dance registration), the trial judge ordered the parties, through counsel,
    to arrange a further attendance to speak to the matter in 2021, among other
    things to advise the court of the status of therapeutic assistance provided by
    Ms. Geraldo.
[4]
It is in this context that Ms. Geraldos interim report will be considered.

[11]

Although the best interests of the children are
    engaged in family law appeals of final parenting orders, an appeal is not the
    place to address ongoing conflict between the parties arising out of the order
    under appeal. There is a strong interest in finality, not only for the parties,
    but for the children. This is especially the case where the parties have been
    involved in years of high-conflict litigation, culminating in a lengthy trial. The
    order under appeal must be treated as a final order, unless there are
    demonstrated errors meeting the exacting standard of review on appeal. As this
    court has emphasized in other cases, the proper place for new evidence about
    changed circumstances  if in fact the threshold of material change can be met
    is a motion to change before the court that has original jurisdiction, and not
    in the context of an appeal: see e.g.,
Katz v. Katz
, 2014 ONCA 606, 324
    O.A.C. 326, at para. 75;
Myles v. Myles
, 2019 ONCA 143, at para. 7;
    and
Gagnon v. Martyniuk
, 2020 ONCA 708, 50 R.F.L. (8th) 266, at para.
    3.

[12]

Generally, where information about a childs
    current circumstances is properly considered on appeal, it must be such that it
    would reasonably be expected to have changed the outcome in the court below:
Childrens
    Aid Society of Oxford County v. W.T.C.
, 2013 ONCA 491, 308 O.A.C. 246, at
    para. 43;
Ojeikere v. Ojeikere
, 2018 ONCA 372, 140 O.R. (3d) 561,
    at para. 48. In this case the proposed fresh evidence could not reasonably have
    changed the outcome of the trial. The mothers affidavit speaks to the
    circumstances following the trial judges order, after equal parenting was
    implemented, and the father assumed decision-making responsibility for the
    children. The challenges faced by the children and their relationship with their
    father were front and centre at the trial, and it is not surprising that there
    would be some difficulties in the transition. The parties recognized, as early
    as September 2019, the benefits of therapy with Ms. Geraldo, which is
    ongoing, and which will be the subject of a further attendance before the trial
    judge this year. This is the appropriate forum for the consideration of Ms.
    Geraldos interim report.

[13]

For these reasons I would dismiss the motion to
    admit fresh evidence.

THE PARENTING DECISION

(1)

Brief Background

[14]

At the time of separation in 2014 the parties
    two children were eight and four years of age. For the first two years the
    parties operated under a
de facto
equal alternating weekly time-sharing
    arrangement with the children, sometimes referred to as week about, which
    they arranged first on their own, and then with the assistance of a parenting
    coordinator.

[15]

The mother commenced proceedings in November
    2016, seeking, among other things, sole custody of the children
    (decision-making responsibility), primary residence of the children, and child
    support. The father sought joint or sole custody (decision-making
    responsibility), primary residence and child support.

[16]

As the litigation progressed, the parties
    remarried  each to a spouse with their own children. Their conflict escalated.
    As the trial judge observed, both parties contributed to this high conflict
    case. Each contacted the Catholic Childrens Aid Society (the CCAS) more than
    once with serious allegations that were never verified. Unfortunately, during
    the years of litigation the parents also took steps that subjected the children
    to many interviews with various professionals. They (and the mothers partner,
    K.) exchanged emails and messages that contributed to the conflict.

[17]

In 2017, pursuant to a consent order, a custody
    and access assessment was performed by John Butt, a registered marriage and
    family therapist. His report (the 2017 Parenting Plan Report) recommended a
    joint/parallel parenting arrangement for the children, with primary residence
    with the mother and time with the father one night during the week and every
    second weekend, and shared holiday and vacation time. These recommendations
    were incorporated into the temporary consent order of Mazza J. dated August 17,
    2017, which was in place at the date of trial. Mr. Butt had started work on an
    updated report, however he could not complete it or attend at trial due to
    illness. The 2017 Parenting Plan Report and his clinical notes for the updated
    report were admitted in evidence at trial on consent.

[18]

At trial each party sought an order for sole custody
    (decision-making responsibility) and primary residence of the children. By the
    end of the trial, the mother asked for an order further reducing the fathers parenting
    time.

[19]

The evidence at trial consisted of the testimony
    of 15 witnesses, including 6 professionals who had dealings with the family,
    and the business records of Mr. Butt, the Hamilton CCAS and Hamilton
    Police Services.

(2)

Standard of Review

[20]

The scope of appellate review in family law
    matters, including those involving parenting orders is intentionally narrow. This
approach promotes finality in family law litigation and
    recognizes the importance of the appreciation of the facts by the trial judge:
Van de Perre v. Edwards
, [2001] 2 S.C.R. 1014,
at para. 11, citing
Hickey v.
    Hickey
, [1999] 2 S.C.R. 518, at paras. 10, 12.

[21]

The trial judges order must only be disturbed
    where there are demonstrated errors meeting the exacting standard of review on
    appeal. An appeal in a case involving parenting time and decision-making responsibility
    (as in any case on appeal to this court) is not an opportunity for a retrial.
Deference
    is owed to the decision of the trial judge, particularly after a lengthy trial.
    As the Supreme Court noted in
Van de Perre
, [c]ase
    by case consideration of the unique circumstances of each child is the hallmark
    of the process
.

Intervention on appeal is warranted only
    where there is a material error, a serious misapprehension of the evidence or
    an error of law:
at para. 13.

(3)

Alleged Errors of the Trial Judge: The Parenting
    Order

[22]

The mother contends that the trial judge erred
    in her determination that the parties would have shared parenting time on an
    alternating weekly time-sharing schedule and that the father would have sole
    decision-making responsibility for the children.

[23]

She makes three main arguments:

·

First, the trial judge erred in law by failing
    to give effect to the childrens views and preferences, including those set out
    in the 2017 Parenting Plan Report and Mr. Butts more recent clinical notes. In
    a related argument, she says that the trial judge overlooked the childrens
    legitimate reasons for preferring to live with their mother (and her spouse)
    because she failed to properly consider Mr. Butts evidence;

·

Second, the trial judge erred in her treatment
    of evidence of the parties alternative lifestyle and other pre-separation
    conduct, including in her conclusion that this evidence affected the mothers
    credibility, but not the credibility of the father; and

·

Third, the trial judge erred in permitting the father
    to change the childrens family doctor.

(4)

Discussion

[24]

I would not give effect to any of these grounds
    of appeal. No reversible error has been demonstrated in the final order
    respecting the parenting of the children. As I will explain, it is apparent
    from a review of the trial judges lengthy and detailed reasons that she considered
    all of the evidence at trial, she made all necessary findings of fact
    including that both parties were good and loving parents to the children  and
    she assessed the parties credibility in the context of determining which of
    the parties was more likely to encourage the others relationship with the
    children. This was a very important factor in this high conflict case, where
    the childrens relationship with their father had deteriorated over time.

[25]

In arriving at her decision, the trial judges
    focus was without question on the best interests of the children. Consistent
    with the new legislative provisions on allocating parenting time, she
    recognized that children should have as much time with each parent as is
    consistent with their best interests.
[5]
The trial judge was concerned about how the children had come to align
    themselves with their mother. She observed that their relationship with their
    father had deteriorated, in part, because of the actions of the mother, and she
    was concerned that, if sole decision-making responsibility were awarded to the mother,
    the children would become more entrenched in their determination not to see
    their father, which was not in their best interests.

[26]

The trial judge also reasonably concluded that
    it would not be appropriate to allocate decision-making between the parents:
    neither party suggested this option, both parties expressed that it would not
    work, and the trial judge observed that, if areas of decision-making were
    divided, undoubtedly they would overlap and conflict would result. While the mothers
    evidence was that she had done nothing to discourage the relationship between
    the children and their father, the trial judge found the father to be more
    credible than the mother on this point, and she determined that he would be the
    party most likely to promote a relationship with the other parent. For those
    reasons, she ordered equal time-sharing, with decision-making responsibility to
    the father.

The trial judges treatment of the childrens
    views and preferences

[27]

Turning to the first ground of appeal of the
    parenting order, I do not agree that the trial judge ignored the evidence of
    the childrens views and preferences, including what was contained in Mr.
    Butts 2017 Parenting Plan Report and the notes he took of his discussions with
    the children in July 2018. Nor do I agree that the trial judge erred in finding
    the children had aligned themselves with their mother, or that she overlooked the
    legitimate reasons for the children to prefer their mothers home.

[28]

Several witnesses reported that, based on
    conversations with the children and their observations, the children preferred
    the home environment with their mother and her new spouse to the environment at
    their fathers home. They also reported that there was conflict between the
    children and the fathers spouse, D.
[6]

[29]

The trial judge noted that a significant part of
    the mothers case at trial related to the childrens views and preferences, and
    she recited the evidence in her reasons. The trial judge explained why she
    considered such evidence to be of limited value in this case: it was not obtained
    through a professional whose job it was to consider the independence of the
    views, and to look for external influences. The potential for influence was
    noted by Mr. Butt, who observed that the childrens views and preferences,
    although consistent with the observations he made, could not reasonably be
    deemed to be fully independent and should be cautiously considered.

[30]

The trial judge concluded that she was not
    inclined to rely on the expressed views and preferences of the children, other
    than to make time sharing a week about rather than giving the father the
    majority of the time, which would be too contrary to what the [children] would
    like, and what they are used to. She concluded that the children had likely
    been influenced by their mother, and that they had become increasingly aligned
    with her.

[31]

In so concluding, the trial judge considered the
    evidence of the mothers witnesses that they never heard the mother speak
    negatively about the father, and that she promoted a relationship between the
    children and their father. However, the trial judge also referred to evidence at
    trial that contradicted this assertion. What was squarely before the trial
    judge was whether the deterioration of the childrens relationship with their
    father  which was reflected in their stated preference to live only with their
    mother and her partner, K.  was, as was alleged by the mother, the natural
    result of the fathers conduct (as well as that of his spouse at the time, D.).
    Ultimately the trial judge concluded that the evidence at trial did not support
    this conclusion.

[32]

This conclusion was open to the trial judge on
    the evidence. She reasonably concluded that the childrens views had not been
    ascertained independently and that the children had become increasingly aligned
    with their mother against their father.

The trial judges treatment of the parties
    pre-separation conduct evidence

[33]

This takes us to the mothers second ground of
    appeal of the parenting order: that the trial judge erred in her assessment of
    the evidence of the parties alternative lifestyle before separation: their
    involvement in a swingers club and sexual infidelities. The mother asserts
    that the trial judge, after finding that this was irrelevant past conduct,
    wrongly took the evidence into consideration as affecting the mothers credibility
    and not the fathers. She asserts that one particular aspect of the evidence,
    the father having retained nude photos of her, ought to have been considered as
    family violence, which is a relevant factor in determining a childs best
    interests under s. 24(4) of the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12
.

[34]

There was a lot of evidence about the parties pre-separation
    alternative lifestyle. The thrust of the mothers evidence, which was
    contradicted by the fathers account, was that she was not a willing
    participant in many of these activities, including an incident resulting in
    nude photos of her with another man, and on a girls weekend  photos that
    ended up in the fathers possession. Unfortunately, and unnecessarily in my
    view, a great deal of time at trial was devoted to the parties contradictory evidence
    about these events and allegations. It is also unfortunate that, despite her
    conclusion that the evidence was not ultimately relevant to the parenting
    orders, the details of this evidence were recounted at length in the trial
    judges reasons.
[7]

[35]

At para. 347, the trial judge noted that she was
    very mindful of the fact that none of these activities prevented the parties
    from entering into a joint custody arrangement with an equal timesharing that
    was arranged with the help of a qualified parenting coordinator and which
    lasted for over two years. She concluded:

Give[n] the ability of the parties to
    initially overlook these activities, and the contradictory evidence, I cannot
    say that these activities have impacted either partys ability to parent. As
    such they are not something that helps or hurts the claims made by either party
    with the exception of credibility, which I will address. I am also mindful that
    both parties appear to be in stable new relationships now, and have been for a
    few years. Both have re-married.

[36]

The trial judge stated that she made no
    determination as to who was the instigator of the trips to the swingers club
    or whether it was a mutual decision, and that neither this nor the mothers extra-marital
    relationship was a factor in her decision. In addition to a lack of independent
    evidence, there [was] no reason to believe that the children were affected in
    any way: at para. 360.

[37]

I see no error in the trial judges conclusion
    that the evidence about the parties pre-separation lifestyle would not affect her
    decision on parenting, except in the sense she described as relevant to credibility.

[38]

First, the trial judge did not err in failing to
    find that the fathers retention of nude photos of the mother was an incident
    of family violence. This was not the argument at trial; rather the mothers
    counsel referred to s. 162.1 of the
Criminal Code
(making it an
    offence to knowingly publish an intimate photo of someone without their consent).
    The trial judge reasonably concluded that this provision was not relevant: there
    was no suggestion that the photos were made available to anyone other than
    private individuals and no witnesses were called to say they saw them. One
    witness said the father offered to show some photos to her, but the father denied
    this. The trial judges treatment of the evidence about the nude photos was
    appropriate. She noted that, although the mother was understandably upset
    that the father kept the photos, there was contradictory evidence about how
    they came to be, and there was no evidence at trial that they had been shared
    by the father, although she accepted that he had told people about them. The
    trial judge also appropriately observed that there was no reason why the photos
    should not be destroyed.

[39]

Nor in my view did the trial judge err in her
    limited consideration of the alternative lifestyle evidence, including the
    evidence about the photos, to assess credibility. She had to determine which of
    the two parents was more likely to encourage a relationship with the other. She
    concluded that the father would be more likely to facilitate contact with the
    mother than the reverse. In arriving at this decision, she identified certain aspects
    of the mothers testimony that lacked credibility: that the father had harassed
    her and her adult friends into taking nude photos of themselves on their
    girls weekend; that the complimentary comments in greeting cards she wrote to
    the father were written, not because they reflected her feelings, but because it
    was expected; and that the mother was forced by the father to travel by cab to
    another mans house for sex and photos, contrary to what appeared in the mothers
    own explicit text messages. By contrast, the trial judge stated that she did
    not find specific areas where the father lacked credibility on substantive
    issues, and she was more inclined to accept his evidence overall.

[40]

The trial judges assessment of credibility is
    entitled to deference. It is supported by the evidence and reveals no
    reversible error.

The fathers ability to change the childrens
    family doctor

[41]

Finally, I see no merit in the mothers argument
    that the trial judge erred in permitting the father to change the childrens
    family doctor. The trial judge stated that, since the father was going to have
    custody (decision-making responsibility), it was not unreasonable for him to
    change the family doctor. The trial judge noted that while she did not doubt
    the family doctors sincerity (the family doctor had testified as a witness at
    trial for the mother and recounted detailed conversations with the children
    about their preference for their mothers home), the father might want to start
    with someone new, who had not had the history of hearing the childrens
    complaints about the father and his spouse. The trial judge, who had the
    benefit of hearing and considering all the evidence, provided a sensible reason
    for refusing the mothers request that the children remain with their current
    family physician. There is no reason to interfere.

CHILD SUPPORT

[42]

From October 1, 2017 until August 1, 2019 the father
    had been paying the mother $1,416 per month voluntarily based on an estimated annual
    income of $100,000. He stopped paying child support one month before trial. At
    trial both parties sought retroactive adjustments to child support. The mother asserted
    that she was owed child support for 2017, 2018 and 2019 based on the father
    having earned more than $150,000 in each of those years. The father argued that
    he had overpaid child support and was entitled to repayment over time given that
    the children were with him more than 40% of the time between October 2017 and
    August 2019.

[43]

The trial judge ordered support on a set-off
    basis from March 1, 2020 based on her determination of the 2018 income for the mother
    of $152,314.81 and of the father of $93,341. Although she fixed child support
    going forward based on the parties 2018 incomes, she ordered the father to
    provide an income analysis from a chartered accountant every two years for the
    preceding two years, commencing in 2021 (for 2019 and 2020).

[44]

The trial judge refused to make any retroactive
    adjustments to child support. She acknowledged the parties contradictory
    calculations of the amount of time the children had spent with their father.
    Noting that the court has discretion and the child support is the right of the
    child, she observed that both parties knew the time‑sharing schedule when
    child support was agreed to, and that if the father had the children over 40%
    of the time, she was not prepared to say that he had no obligation to pay child
    support. She concluded that the estimated income of $100,000 was close to what
    the father actually earned, and it was a fair amount under all the circumstances.
    She concluded: I will use my discretion and leave child support on a
    retroactive basis, in the amount that was agreed to.

[45]

The mother asserts that the trial judge made two
    errors in her determination of child support: the first relates to the calculation
    of the fathers income for child support purposes for 2018. The second is that
    the trial judge erred by failing to award retroactive support for the six-month
    period from September 2019 to February 2020.

The fathers 2018 income for child support
    purposes

[46]

With respect to the fathers income, the mother makes
    the same arguments on appeal that were rejected at first instance. She says
    that, in determining the fathers income for 2018, no deduction ought to have
    been allowed for his rental and home office expenses. She contends that the trial
    judge ought to have included in the fathers income the amount that was allowed
    as a deduction for rent and home office expenses plus gross up for taxes (an
    amount exceeding $6,000), as well as pre-tax corporate earnings ($50,114.62). She
    seeks to impute income of over $150,000 to the father for 2018 (and for the
    preceding year, 2017).

[47]

I would not give effect to this argument. The
    trial judge accepted the opinion of the fathers expert, R. Andrew MacRae, a
    chartered accountant and business valuator, who provided an income report for
    the year 2017 and testified at the trial. Mr. MacRaes opinion was that,
    although the fathers line 150 income for 2017 was $84,000, he had an income of
    $90,000 for child support purposes. Adopting the same approach, the fathers
    income for 2018 for child support purposes was $93,341. The trial judge
    accepted Mr. MacRaes calculation and rationale for adding back the sum of $6,431
    for certain personal expenses that had been included in corporate deductions
    for meals and entertainment, telephone, travel, rent and home office expenses, with
    a gross up at 34%. And, although she acknowledged that there was a good
    argument that retained earnings should be included in the determination of income
    for support purposes, the trial judge elected not to attribute pre-tax
    corporate income in 2018 as there were substantial losses in 2017 and the father
    had been drawing on his cash reserves and line of credit to pay himself his
    monthly draw. The trial judge accepted Mr. MacRaes opinion that the prior
    years losses had to be considered as part of the analysis. His evidence was
    not seriously challenged and the mother provided no professional opinion to
    the contrary. There is no reason to interfere with the trial judges
    determination of the fathers income for 2018.

The child support arrears from September 2019
    to February 2020

[48]

Second, the mother argues that the trial judge
    erred by failing to order the father to pay arrears of child support in respect
    of a six-month period. She seeks payment of support for the period between
    September 1, 2019 and February 1, 2020. The father paid no child support during
    this period.

[49]

The mother points to the fact that the father
    was paying child support of $1,416 per month based on the parenting regime that
    was in place up to trial, which continued until the end of February 2020, when
    the new equal time parenting arrangements ordered by the trial judge were put
    in place. The fathers last child support payment was made in August 2019. The father
    renews the argument made at trial that he had overpaid child support because
    the children were living with him more than 40% of the time. This argument
    however had been rejected by the trial judge in refusing the fathers request
    for a retroactive adjustment to child support.

[50]

Although the final order states that there is no
    adjustment to child support as of February 29, 2020, the trial judges reasons do
    not address the question of child support for the six-month period between
    September 2019 and February 2020. I would remit the issue of child support for
    this period to the trial judge in the particular circumstances of this case, in
    which the parties are to reattend before the trial judge in any event to
    address the status of the therapeutic assistance provided by Ms. Geraldo.

DISPOSITION

[51]

For these reasons I would dismiss the motion to
    introduce fresh evidence and, except for the one issue I would remit to the
    trial judge, the appeal. If the parties are unable to agree on costs, the court
will receive written submissions limited to three pages each exclusive of any
    costs outline, with no right of reply. The respondents submissions are to be served
    and filed within 15 days of these reasons and the appellants submissions
    within ten days thereafter.

Released: July 22, 2021 R.G.J.

K.
    van Rensburg J.A.

I
    agree. R.G. Juriansz J.A.

I
    agree. Sossin J.A.

[1]
I have
    chosen to initialize the parties names in the title of proceedings and this
    decision at the parties request and to protect the childrens privacy, given
    the particularly sensitive nature of the evidence in this case.

[2]
Pursuant
    to amendments to the
Divorce Act
,
    R.S.C. 1985, c. 3, which came into effect on March 1, 2021, custody and
    access terminology has now been replaced by terms such as decision-making
    responsibility, parenting time and contact.
Section 35.4 of the Act
    deems a person who had custody of a child by virtue of a custody order to have
    parenting time and decision-making responsibility and a spouse or former spouse
    who had access by virtue of a custody order to be a person to whom parenting
    time has been allocated.

[3]
Ms.
    Geraldo was appointed on consent of the parties at the conclusion of the trial
    on September 26, 2019 to facilitate any and all therapeutic interventions,
    therapies and approaches to ensure a balanced relationship as between the
    children and the parties. The order also provided for the termination of any
    other counselling or therapy involving the children and prohibited further
    therapy without it being part of the process undertaken by Ms. Geraldo and
    specifically recommended by her.

[4]

The
    parties attended before the trial judge in accordance with paras. 34-35 of her
    final order that directed she would remain seized of the issue of the
    therapeutic interventions, and adjourned the issue of mobile phone use for the
    children, and any time limits for the childrens activities.

[5]

See
Childrens Law Reform Act
,
    R.S.O. 1990, c. C.12, s. 24(6) and the
Divorce Act
, s. 16(6).

[6]
The
    proposed fresh evidence discloses that the father has since separated from D.

[7]
It is
    unclear why it was necessary to have 16 days of evidence in this trial,
    including a great deal of evidence that the trial judge concluded was
    irrelevant to the issues she had to determine. A trial judge has an important
    role in determining as the trial progresses the relevance of the evidence which
    is led: see e.g.
R. v. Forrester
,
    2019 ONCA 255, 375 C.C.C. (3d) 279, at para. 16;
Burton v. Howlett
, 2001 NSCA 35, at para.
    15;
Canada (Attorney General) c.
    JTI-MacDonald Corp.
, 2012 QCCA 2017, at para. 8. There is also a concern
    about the length and style of the trial judges reasons in this case, which
    include a
seriatim
review of the
    evidence of each witness, and many details that are not only embarrassing to
    the parties but reveal medical and other confidential information about the
    children. Setting out the detailed evidence of each witness in the reasons for
    judgment is typically unhelpful: see
Welton
    v. United Lands Corporation Limited
, 2020 ONCA 322, at paras. 56-63. And
    the inclusion of confidential information that is unnecessary to the
    determination of the case should be avoided. As the Supreme Court noted
    recently, [proceedings] in open court can lead to the dissemination of highly
    sensitive personal information that would result not just in discomfort or
    embarrassment, but is an affront to the affected persons dignity:
Sherman Estate v. Donovan
, 2021 SCC 25,
    at para. 7.