COURT OF APPEAL FOR ONTARIO

CITATION: Loran v. Weissmann, 2019 ONCA 962

DATE: 20191206

DOCKET: C66854

Watt, Hourigan and Trotter JJ.A.

In the Estate of Ellery Jay Muchmaker, deceased

BETWEEN

Yaniv Loran in personal capacity, in his capacity as
    Attorney for

Property of Ellery Jay Muchmaker, in his capacity as Estate
    Trustee of

the Estate of Ellery Jay Muchmaker and in his capacity as
    Trustee of

the Jay Muchmaker Family Trust

Appellant

and

Larry Weissmann

Respondent

Svetlana Shpigelman, for the appellant

Miranda Spence, for the respondent

Heard: November 28, 2019

On appeal from the
    judgment of Justice Penny of the Superior Court of Justice, dated January 4,
    2019.

REASONS FOR DECISION

Introduction

[1]

This appeal arises out of a dispute regarding a provision in the will of
    the late Ellery Jay Muchmaker. That provision granted the respondent an option
    to purchase Master Auto Supply Co. Limited (Master Auto). Mr. Muchmaker owned
    Master Auto, and the respondent is a long-term Master Auto employee.

[2]

The respondent was given the option to purchase Master Auto for the
    lesser of $1.75 million or the price determined by multiplying the earnings of
    Master Auto (averaged over the last three fiscal periods) by a factor of 5.5. The
    will provided that the purchase price be delivered by way of a promissory note,
    with interest payable at 5% per annum. A gross annual payment to the estate of
    not less than $180,000, to be made in monthly payments, was required. The
    promissory note was to be secured by a general security agreement against
    Master Autos assets as well as the registration of a collateral mortgage
    against the respondents residence.

[3]

The respondent attempted to exercise his option to purchase Master Auto.
    However, he was unable to reach an agreement with the estate. The parties appeared
    before the application judge for directions.

[4]

In reasons dated January 4, 2019, the application judge gave directions
    regarding the sale of Master Auto. He found that the purchase price shall be
    $529,611, being $716,921 calculated in accordance with the formula in the will,
    less $187,310, representing payments improperly made out of the company to the
    estate after Mr. Muchmakers death. Further, he ruled that the respondent was
    not obligated to provide a collateral mortgage.

[5]

On appeal, the appellant submits that the application judge made the
    following errors: (i) he treated the respondent as a beneficiary instead of a
    favoured purchaser; (ii) he dispensed with the requirement of a collateral
    mortgage; (iii) he accepted the respondents evidence regarding the amount to
    be credited for Mr. Muchmakers salary for the purposes of calculating earnings;
    and (iv) he deducted from the purchase price monies paid out of the company to
    the estate. For the following reasons, we do not give effect to these grounds
    of appeal.

Analysis

(i)

Beneficiary vs. Favoured Purchaser

[6]

The appellant submits that the application judge treated the respondent
    as a beneficiary under the will by shifting the testators intention from
    maximizing the estates value to ensuring that the respondent was able to
    purchase the company. He argues that the application judge interpreted the
    option as a gift or bequest that must not fail.

[7]

There is nothing in the application judges reasons wherein he
    explicitly or implicitly treated the respondent as a beneficiary. His reasons
    evince that he was alive to his obligation to interpret the will in a manner
    that gave effect to the testators intention.

[8]

We are not persuaded that the will establishes that the testators
    intention was to maximize value on the sale of Master Auto. There is no
    reference to selling at market value and there is no requirement for the
    trustee to expose the company to the market or to solicit other offers. The application
    judge found that Mr. Muchmaker intended that the respondent would purchase the
    company in a simple, straightforward transaction, the terms and conditions of
    which would be as stated in the will and as reasonably required by
    implication. That finding is consistent with the terms of the will.

[9]

The provision in the will regarding the sale of Master Auto was not
    detailed. It fell to the application judge to give directions that furthered
    the testators intention. In so doing, he treated the respondent as a potential
    purchaser only and not as a beneficiary who had an absolute right to purchase
    the company. Therefore, we reject this ground of appeal.

(ii)

Collateral Mortgage

[10]

At the time of the execution of the will, the respondent did not own a
    home. The application judge noted that the will did not provide any direction
    about minimum equity or the assumed value of this security. In the circumstances,
    he concluded that the collateral mortgage was from a financial point of view
    at least meaningless.

[11]

Neither party disputes that the application judge had the discretion to
    apply commercially reasonable terms as necessary to carry out the testators
    intention. Given that the mortgage requirement was so vague that it provided no
    security to the estate, the application judge did not err in dispensing with
    this requirement. His finding was made as part of his discretion to provide
    directions regarding a commercially reasonable transaction and it is owed
    deference.

[12]

Before leaving this issue, we note that the appellant brought a motion
    to adduce fresh evidence to the effect that at some point before the execution
    of the will the respondent owned his own home. We do not believe this evidence is
    relevant on the appeal and, in any event, it was available prior to the
    application hearing, had the appellant exercised due diligence. Accordingly,
    the motion to adduce fresh evidence is dismissed.

(iii)

Salary

[13]

The salary attributed to Mr. Muchmaker had an impact on the earnings of
    Master Auto, which, in turn, had an effect on the purchase price for the
    company. The application judge concluded that the personal benefits paid by
    Master Auto on Mr. Muchmakers behalf should be normalized in the earnings formula.
    The application judge rejected the $70,000 normalization amount proposed by the
    appellants valuator and accepted the figure proposed by the respondents
    valuator.

[14]

The appellant submits that the application judge erred in finding the
    respondents experts determination of salary more persuasive. That figure was
    based on survey data from other-similarly sized printing companies and the
    appellant says reliance on generalized information fails to account for case
    specific factors. Specifically, it ignores Mr. Muchmakers lack of involvement
    in Master Auto in the relevant three-year fiscal period due to illness and the
    fact that he was a hands-off manager who sometimes lived overseas
.

[15]

We do not give effect to this argument. As the application judge noted,
    the appellants report does not explain its assessment of the salary at the
    $70,000 figure. He preferred the position of the respondents valuator, as he
    was entitled to do. We note that in advancing this ground of appeal in his
    factum, the appellant submitted that the figure in his expert report was just
    as, if not more, persuasive than the figure in the respondents report. This
    was a judgment call for the application judge, and we are not satisfied that he
    erred in making it or that there is any basis for appellate interference.

(iv)

Support Payments

[16]

The estate trustee caused
    Master Auto to pay certain dependent support payments to Mr. Muchmakers
    common-law spouse, totalling $187,310. He did so because the estate lacked
    liquidity to make these payments. The estate trustee stated that Master Auto
    will be made whole for these payments by means of declaring a dividend from
    Master Auto to the estate at a later time. The application judge held these
    funds must be deducted from the purchase price.

[17]

The appellants position is that as the sole shareholder of Master Auto,
    the estate has the right to withdraw dividends from Master Autos excess
    working capital at its pleasure, provided that the withdrawal does not
    adversely affect the companys functionality. He notes that the application
    judge did not require an adjustment to be made for the dividends paid following
    Mr. Muchmakers death. His point is that there is no principled basis to
    differentiate between dividends and the support payments that will later be
    repaid from dividends.

[18]

We reject this ground of appeal. The application judge was prepared to
    grant the estate some leeway in declaring dividends, despite the fact that he
    found that the estate trustee had refused to provide information about the
    historical dividend practice. According to the application judge, provided the
    declaration of a dividend did not impair the companys operation, no adjustment
    need be made to the purchase price. In his words, the dividend should not be
    repaid unless the dividends could be said to have improperly stripped assets
    from the company to the companys detriment.

[19]

The application judge drew the line when it came to the support payments
    paid to Mr. Muchmakers common law spouse. While a dividend could have been
    declared and the support payments could have been paid from the dividend, that
    is not what happened. Had a dividend been declared, no doubt the application
    judge would have reviewed same to determine whether it qualified as a stripping
    of assets. The application judge drew a distinction between dividends and
    gratuitous payments from the companys cash reserves. That decision was within
    his discretion and there is no basis to interfere with the exercise of that
    discretion.

Disposition

[20]

For the foregoing reasons, the appeal is dismissed. The estate shall pay
    the respondent his costs of the appeal and the fresh evidence motion, fixed in
    the all-inclusive amount of $10,000.

David
    Watt J.A.

C.W.
    Hourigan J.A.

G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mihaljevich (Re), 2019 ONCA 1010

DATE: 20191220

DOCKET: C66922

Hoy A.C.J.O., Lauwers and Nordheimer JJ.A.

IN THE MATTER OF:  ANTE MIHALJEVICH

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser, for the appellant

Adam Wheeler, for the respondent Attorney General of
    Ontario

Janice Blackburn, for the respondent Person in Charge of
    the Waypoint Centre for Mental Health Care

Heard: December 11, 2019

On appeal against the disposition of the Ontario Review
    Board, dated April 4, 2019, with reasons for disposition dated May 1, 2019,
    reported at [2019] O.R.B.D. No. 878.

REASONS FOR DECISION

[1]

The appellant, Ante Mihaljevich, appeals from the disposition of the
    Ontario Review Board dated April 4, 2019, ordering that he continue to be
    detained at the Waypoint Centre for Mental Health Care  Provincial Forensic
    Programs Divisions (Waypoint or the Hospital), with hospital grounds
    privileges beyond the secure perimeter escorted by staff. He asks the court to
    set aside the Boards disposition and order a new hearing.

The Background

[2]

The appellant is a 44-year old male. He has been subject to the Boards
    jurisdiction since 2003, when he was found not criminally responsible on
    account of mental disorder of criminal harassment in relation to his mother and
    of failing to comply with a probation order. He previously progressed to
    community living, where he resided for five years before his use of illicit
    drugs and psychotic symptoms reportedly led him to assault a security guard in
    2015, holding a knife to her throat.

[3]

He was then detained at the Centre for Addiction and Mental Health
    (CAMH). After several incidents, including assaulting three staff members and
    separately assaulting a physician in 2015, he was transferred from CAMH to the
    Toronto South Detention Centre (TSDC). He was transferred to Waypoint after allegedly
    assaulting a correctional officer in 2016 at TSDC. At least some of these assaults
    were in connection with psychotic symptoms and drug-seeking behaviours. At
    Waypoint, he assaulted a nurse in February 2017. In the year preceding the
    hearing before the Board, he again assaulted a nurse, later explaining that he
    believed this occurred because he was the victim of mind control. He also
    engaged in other aggressive incidents over the reporting year which were effectively
    de-escalated through the intervention of staff.

[4]

The appellant has diagnoses of Schizophrenia, Opioid Use Disorder, in
    remission in a controlled environment and on replacement therapy, and
    Antisocial Personality Disorder. He has historical diagnoses of Polysubstance
    Abuse (currently in remission in a controlled environment) and ADHD.

[5]

The Hospitals report indicates that the appellants score on the Violence
    Risk Appraisal Guide (VRAG) was associated with the seventh of nine ascending
    categories for risk of violent recidivism. 64% of individuals with the same
    risk category as the appellant re-offended violently within ten years of
    opportunity. It further indicates that on the Psychopathy Checklist  Revised
    (PCL-R), the appellant scored 35.8 out of a possible 40 points, which is
    considered to fall within the Very High range of psychopathy.

[6]

In the Hospitals report, the appellants clinical team noted that he
    had a difficult year. There were some signs of improvement since being
    started on a new medication, but he continues to present with active and
    behaviour-influencing symptoms of schizophrenia. These symptoms and behaviours have
    led to violence in the past, and have only been marginally less salient over
    the past few months. He requires further stabilization and rehabilitation.

[7]

The Hospital reported that he continued to seek medications of potential
    abuse, even in the Hospital, and it would be easier for him to access illicit
    substances in a less secure facility. His attending physician, Dr. Corriveau,
    testified at the hearing that there was a direct connection between his use of
    illegal substances and risk of violence.

[8]

Dr. Corriveau also testified that the appellant had a significant
    history of non-compliance with his medication even under the watchful eye of
    his Outreach Team. She was concerned that he would immediately discontinue his
    medication if discharged.

[9]

In the clinical teams opinion, the appellant continued to require the
    structure provided in the Hospital and, without it, could represent a threat to
    the safety of the public. The team noted that he had functioned in the
    community for five years and the team hopes he will progress in the next
    review period in order to move in the direction of rehabilitation and eventual transition
    back into the community.

[10]

Dr. Corriveau elaborated that the appellant is quite reticent to engage
    therapeutically with this clinical team, but that the team is hoping to engage
    him further in therapeutic treatment. It is seeking to manage his symptoms so
    that they can move him forward in his disposition. In response to a question by
    a Board member probing the question of rehabilitation, Dr. Corriveau discussed
    the Beckwith Program, which focuses on structure and addressing
    treatment-resistant symptoms. In her opinion, given the appellants symptoms, such
    as his claustrophobia, the amount of lockups in the Beckwith Program could make
    the appellant worse. The Board also explored a medication change. Dr. Corriveau
    also explained that the appellants aversion to needles was a barrier to a
    further medication change. The clinical team want his suffering to be as
    minimal as possible.

[11]

Notwithstanding some signs of improvement, the clinical teams opinion
    was that his assaultive history in addition to his acute psychotic symptoms
    and lack of insight into his diagnosis and drug-seeking behaviours, together
    with his high
    PCL-R score, cause the clinical team concern insofar as recommending that he
    transfer [to a less secure facility] at this time. The team recommended no
    change to his current disposition. Dr. Corriveau reiterated this opinion at the
    hearing: the appellants risk to the public cannot be adequately managed in a
    facility less secure than Waypoint. She noted that CAMH indicated that they were
    unable to manage the appellant at his current level of risk.

[12]

The Board addressed the issue of reintegration at para. 15 of its
    reasons:

When questioned by Counsel as to how his client could move on
    through the system, Dr. Corriveau said it would be necessary for him to
    demonstrate adherence to his oral medications and demonstrate he could
    successfully follow the rules at Waypoint and engage in psychoeducational
    programming. She expressed the view that his non-participation represented a
    barrier to him making further progress.

[13]

The Board concluded, at paras. 22 and 24 of its reasons:

Having heard all the evidence and reviewed the various reports
    made available to us, the Board found [the appellant] continues to represent a
    significant threat to the safety of the public. He remains symptomatic and has
    very poor insight with respect to his mental illness and the disturbing
    behaviours he exhibits on a frequent basis at Waypoint, which have involved
    threatening and aggressive behaviour. [The appellant] has a history of
    non-compliance with medications, substance abuse, and drug-seeking behaviour,
    all of which contribute to the risk he poses.

[I]t is clear to this Board that [the appellant] requires the
    structure and support available to him at Waypoint, and that this represents
    the least onerous and least restrictive Disposition at this time.

The Issues Raised by the Appellant

[14]

The appellant challenges the Boards disposition on three, linked
    grounds. First, he argues that, in determining the question of significant
    threat and the appropriate disposition, the Board committed a legal error by
    failing to consider two of the four statutory factors that s. 672.54 of the
Criminal
    Code
, R.S.C., 1985, c. C-46
prescribes: his reintegration into society and his other needs. Second, he
    argues that the Board did not address these two factors in its analysis of
    risk, leading to an unreasonable disposition. Third, he argues that the Board
    did not exercise the constant vigilance and inquiry this court held in
Tolias
    (Re)
, 2019 ONCA 123, at para. 22, is required in the case of a long-term
    detainee where the index offence was not violent.

Analysis

[15]

We reject these arguments.

[16]

Contrary to the appellants submissions, it is clear the Board
    considered the Hospitals evidence related to community reintegration and the
    appellants other needs, making its own inquiries when necessary. As noted
    above, the Board asked questions about the appellants reintegration and other
    needs. Its failure to make some aspects of its analysis explicit in its reasons
    is not an error of law.

[17]

Further, Dr. Corriveau considered the appellants reintegration and
    other needs in recommending no change to his current disposition. In our view,
    and having regard to all the relevant factors, the evidence reasonably
    supported the Boards conclusion that the appellant remained a significant
    threat to the safety of the public and that his continued detention at Waypoint
    represented the least onerous and restrictive disposition at the time of its
    review.

[18]

Finally, this case is different from
Tolias
.

[19]

In 2005, Ms. Tolias, who suffers from schizoaffective disorder, with
    persecutory delusions, was found not criminally responsible on account of
    mental disorder of four charges of making harassing phone calls to a staff
    psychiatrist at CAMH with whom she had become infatuated, three charges of
    failure to comply with a recognizance, and two charges of failure to comply
    with probation:
Tolias
, at paras. 5, 8. Since the disposition on the
    index offences, she was detained and treated at several hospitals: at para. 10.
    She appealed the Boards disposition of March 2018, ordering that she continue
    to be detained on the secure forensic unit at the Providence Care Hospital in
    Kingston: at para. 1. She sought an absolute discharge or, in the alternative,
    a conditional discharge or transfer to CAMH: at para. 2.

[20]

This court dismissed her appeal but, in so doing commented that cases
    such as this require constant vigilance and inquiry by the Board into the
    appropriate disposition, especially the appropriateness of a conditional discharge
    with community living: at para. 22. The court alerted the Board that, at the
    next review hearing, it expected the Board to inquire actively into the
    appropriateness of alternative dispositions for Ms. Tolias: at para. 23.

[21]

Unlike Ms. Tolias, the appellant has a history of violence and
    aggressive behaviour since his non-violent index offence. Moreover, in the
    appellants case, the Board was alive to the concerns of institutionalization
    of a long-term detainee and specifically probed the question of rehabilitation.

Disposition

[22]

Accordingly, the appeal is dismissed.

Alexandra Hoy
    A.C.J.O.

P. Lauwers J.A.

I.V.B. Nordheimer
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mikhailova v. Skylark Holdings
    Limited, 2019 ONCA 958

DATE: 20191205

DOCKET: C66781

Watt, Hourigan and Trotter JJ.A.

BETWEEN

Larissa Mikhailova

Plaintiff (Respondent)

and

Skylark Holdings Limited and Michael
    Slattery

Defendants (Appellants)

Doug LaFramboise, for the appellants

Scott Turton, for the respondent

Heard and released orally: November 29, 2019

On
    appeal from the order of Justice Kimmel of the Superior Court of Justice, dated
    March 5, 2019.

REASONS FOR DECISION

[1]

The respondent commenced an action against the
    appellants arising from certain mortgage investments made by her with the
    appellants. The respondent noted the appellants in default and brought a motion
    for judgment. The judge hearing that motion required that notice of the motion
    be served on the appellants. Notice was given to the appellants, but they
    failed to appear on the motion for judgment. Default judgment was granted in excess
    of $800,000.

[2]

The motion judge dismissed the appellants
    motion to set aside the default judgment. On appeal, the appellants challenge
    every aspect of the motion judges analysis. We do not give effect to any of these
    grounds of appeal.

[3]

The motion judge properly applied the test from
Intact
    Insurance Company v. Kisel
, 2015 ONCA 205, 125 O.R. (3d) 365. We agree
    with her analysis of each of the relevant factors.

[4]

In particular, the motion judge did not err in
    finding that the appellants failed to establish an arguable defence on the
    merits. The draft defence filed amounts to nothing more than a series of a bald
    denials.

[5]

Further, contrary to the submission of the
    appellants, the motion judge considered the issue of prejudice. In our view,
    she properly determined that there was no evidence of prejudice beyond the axiomatic
    prejudice of having a judgment entered against the appellants.

[6]

In short, the grounds of appeal represent a
    thinly veneered attempt to have this court reweigh the appropriate factors and
    reach a conclusion contrary to that of the motion judge.

[7]

Finally, we note that the appellants included in
    their notice of appeal and factum, an allegation of a reasonable apprehension
    of bias on the part of the motion judge. That argument was abandoned at the
    appeal hearing.

[8]

Allegations of a reasonable apprehension of bias
    are very serious and must be based on evidence. To be clear, there was no
    evidence to support this allegation in the present case and it was recklessly
    made.

[9]

The appeal is dismissed. Costs of the appeal,
    fixed in the all-inclusive amount of $6,000, are payable by the appellants to
    the respondent.

David Watt J.A.

C.W. Hourigan J.A.

G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Moore (Re), 2019 ONCA 1003

DATE: 20191219

DOCKET: C66987

Feldman, Tulloch and Jamal JJ.A.

IN THE MATTER OF: Tara L. Moore

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jeffrey A. Marshman, for the appellant

Jeffrey Wyngaarden, for the respondent,
    the Attorney General of Ontario

Julie A. Zamprogna Balles, for the
    respondent, the Person in Charge for the Southwest Centre for Forensic Mental
    Health Care

Heard: December 5, 2019

On appeal against the disposition of the
    Ontario Review Board dated April 24, 2019.

REASONS FOR DECISION

[1]

The appellant, Ms. Tara L. Moore, appeals from
    the order of the Ontario Review Board (the Board) requiring Ms. Moores
    continued detention at the Southwest Centre for Forensic Mental Health Care,
    St. Josephs Health Care London (the Southwest Centre or the hospital),
    with community living privileges in accommodation approved by the person in
    charge.

[2]

Ms. Moore contends that the Board erred by
    failing to consider several factors that she says justified granting her a
    conditional discharge as the least onerous and least restrictive disposition.

[3]

At the hearing of the appeal, Ms. Moore
    abandoned her alternative request that the court substitute the detention order
    with a direction that the Southwest Centre place her in transitional housing as
    soon as practicable.

[4]

For the reasons that follow, the appeal is
    dismissed. The Boards conclusion that a detention order remained necessary and
    appropriate as the least onerous and least restrictive disposition was
    reasonable and supported by the evidence.

Background

[5]

On April 19, 2016, Ms. Moore was found not
    criminally responsible on account of mental disorder (NCR) on a charge of
    aggravated assault contrary to s. 268 of the
Criminal Code
, R.S.C.
    1985, c. C-46. The index offence, which occurred on June 20, 2015, involved Ms.
    Moore stabbing her former boyfriend in the neck and shoulder with a large
    kitchen knife after she showed signs of paranoid behaviour. She has multiple
    prior criminal convictions, including for aggravated assault, assault of
    police, threats to cause bodily harm, forcible confinement, carrying a
    concealed weapon, theft, intoxication in a public place, mischief, and multiple
    failures to comply with conditions of undertakings and probation.

[6]

Ms. Moore is 43 years of age. Her current
    psychiatric diagnoses are psychoaffective disorder, borderline personality
    disorder, and substance use disorder (in remission). She has been admitted to
    psychiatric hospitals several times for substance use disorder, overdoses, and
    suicidality. She was also recently diagnosed with severe pulmonary hypertension
    which, while treatable, is irreversible and life-threatening.

[7]

At the hearing before the Board, Ms. Moore
    sought an absolute discharge and in the alternative asked to move to an
    apartment on the basis that she no longer poses a significant threat to the
    safety of the public pursuant to s. 672.54 of the
Criminal Code
. On May
    2, 2019, the Board rejected this request and continued the order it first
    imposed on May 15, 2018 for Ms. Moores detention at the Southwest Centre, with
    community living privileges in accommodation approved by the person in charge.
    To date, Ms. Moore has not been approved for community living.

Issue

[8]

The sole issue on appeal is whether the Board
    erred in issuing a detention order with community living privileges, rather
    than a conditional discharge.

Analysis

(a)

The statutory scheme

[9]

The Board is tasked first with determining
    whether an NCR accused poses a significant threat to the safety of the
    public: s. 672.54(a). If she does not, then the NCR accused must be discharged
    absolutely.

[10]

When the Board finds that this threshold is met,
    it is required to order that the NCR accused be discharged or detained in
    custody in a hospital, in either case subject to such conditions as it considers
    appropriate: ss. 672.54(b) and (c);
R. v. Lamanna
, 2009 ONCA 612, 252
    O.A.C. 280, at para. 7. The Board is required to make a disposition that is
    necessary and appropriate in the circumstances (s. 672.54), which has been
    interpreted as meaning the least onerous and least restrictive disposition
    regarding the NCR accuseds liberty interests that is consistent with public
    safety, and the NCR accuseds mental condition, other needs, and eventual
    reintegration into society:
Mazzei v. British Columbia (Director of Adult
    Forensic Psychiatric Services)
, 2006 SCC 7, [2006] 1 S.C.R. 326, at para.
    19;
Lamanna,
at paras. 8-10.

(b)

The standard of review

[11]

Section 672.78(1) of the
Criminal Code
provides
    that this court may set aside a decision of the Board when:

a)

it is unreasonable or cannot be supported by the
    evidence;

b)

it is based on a wrong decision on a question of
    law; or

c)

there was a miscarriage of justice.

[12]

Ms. Moore relies on s. 672.78(1)(a). She no
    longer contests the Boards finding that she remains a significant threat to
    the safety of the public. Instead, she argues that the Boards disposition is
    unreasonable or cannot be supported by the evidence, because the Board failed
    to consider several factors, considered in detail below, that she claims justified
    granting her a conditional discharge.

[13]

In this case, by virtue of s. 672.78(1)(a), the
    standard of review of the Boards decision is reasonableness. This court accords
    a high level of deference to the Board on review pursuant to s. 672.78(1)(a)
    in light of the nature of the inquiries before the Board, the familiarity of
    the Board with the statutory regime and the specific NCR accused persons before
    the Board, as well as the difficulty in assessing whether a given individual
    poses a significant threat to public safety:
Re Collins
, 2018 ONCA 563,
    at para. 26.

[14]

Under a review for reasonableness, the court
    reviews for the existence of justification, transparency and intelligibility
    within the decision-making process and as to whether the decision falls
    within the range of possible, acceptable outcomes which are defensible in
    respect of the facts and law:
R. v. Ferguson
, 2010 ONCA 810, 271
    O.A.C. 104, at para. 11, citing
Dunsmuir v. New Brunswick
, 2008 SCC 9,
    [2008] 1 S.C.R. 190, at para. 47.

(c)

The Boards finding that the appellant remains a
    significant threat to the safety of the public

[15]

Ms. Moore no longer challenges the Boards
    finding that she poses a significant threat to the safety of the public. The
    Board made this finding for the following reasons:

·

Ms. Moores diagnoses include schizoaffective
    disorder, borderline personality disorder, and substance use disorder (in
    remission in a controlled environment). Her behaviour is currently
    dysregulated.

·

She has a lengthy criminal record, including
    convictions for assaults, failing to appear in court, and failing to comply
    with other courts orders.

·

The index offence, which she continues to
    minimize, is a serious offence that could have resulted in the death or serious
    injury of her former boyfriend.

·

Medication for both her physical and mental
    illnesses must be adjusted. This must be done with close supervision by the
    treatment team in the hospital.

·

Ms. Moore has very poor insight into her mental
    illness, her need for rehabilitation, the index offence, and her need for
    medication. She is often non-compliant with her medications when she leaves
    hospital.

·

Although Ms. Moore has not used substances while
    in hospital, she would be vulnerable to relapse if living in the community
    because she has no community supports, other than the forensic outpatient team.

(d)

The Boards disposition of a detention order remains
    necessary and appropriate

[16]

The Board also rejected Ms. Moores request for
    a conditional discharge so that she could move to an apartment and concluded that,
    having regard to the paramount concern for the safety of the public, a
    detention order remained necessary and appropriate for the following reasons:

·

Ms. Moore remains symptomatic for both mental
    and physical illnesses. As a consequence, a detention order would permit the
    hospital to return Ms. Moore to hospital quickly should she be exercising
    community privileges and would give the hospital the authority to approve her
    residence in the community. A conditional discharge would therefore not be
    appropriate.

·

The Board supported the desire of Ms. Moores
    attending psychiatrist, Dr. Roopchand, and Ms. Moores treatment team to
    continue to develop and optimize a therapeutic relationship with her.

·

While Ms. Moore is not currently ready to
    transition to community living, and it is possible though not likely that this
    could occur over the next year, it is necessary and appropriate to maintain
    community living privileges subject to the approval of the person in charge
    because it addresses Ms. Moores other needs, current mental status, and
    reintegration into society.

[17]

On appeal, Ms. Moore claims that the Boards
    disposition was unreasonable because the record before the Board did not
    support a detention order as necessary and appropriate. She claims the Board failed
    to consider five factors that cumulatively suggested that a conditional
    discharge was available in the circumstances pursuant to s. 672.54.

[18]

We disagree. In our view, the Board did not fail
    to consider the five factors, and did not act unreasonably by rejecting a
    conditional discharge as the appropriate disposition at the time.

[19]

As a preliminary matter, it is evident that the
    Board considered the record as a whole. The Boards reasons reveal that the
    Board accepted the testimony of Dr. Roopchand and the comprehensive
    121-page hospital report that supported continuing a detention order. The Board
    was not required to address the evidence in fine detail:
Re Foote
,
    2019 ONCA 731, at para. 3.

[20]

Nor do any of the factors raised by Ms. Moore
    suggest that the Board ignored any relevant considerations.

[21]

First, Ms. Moore asserts that the Board ignored the
    fact that her history of criminal conduct occurred while she was suffering from
    serious substance abuse and addiction and that she has been sober for the past
    three years.

[22]

We do not agree with this submission. The
    Boards reasons twice specifically recognized Ms. Moores recent sobriety and acknowledged
    that she never intends to use substances again, but also included the Boards
    finding that [g]iven her history she is vulnerable to relapse should she be
    living in the community. This finding was based on Dr. Roopchands expert
    testimony that in a setting other than a hospital, where [Ms. Moore] is
    exposed to any kind of stressors, she will become vulnerable again.

[23]

Second, Ms. Moore asserts that the Board erred
    in placing weight on an actuarial assessment, known as HCR-20, which indicated
    that Ms. Moore had a high risk to reoffend violently within the next 12 months,
    even on a detention order. Ms. Moore accepts that HCR-20 is nominally
    predictive of the risk of violence, but asserts that it has limited value in assessing
    significant risk because it: (i) does not reflect the fact that violence tends
    to decrease with age; (ii) tends to exaggerate risk because it overemphasizes
    historical information; and (iii) cannot offer any insight into the seriousness
    or magnitude of any potential reoffending behaviour.

[24]

We do not accept this submission. This court has
    acknowledged that actuarial assessments such as HCR-20 are only capable of
    predicting the likelihood of future violence, and not its nature or magnitude:
Re Woods
, 2019 ONCA 87, at para. 16; see also
Re Krivicic,
2018 ONCA 535, 362 C.C.C. (3d) 490, at para. 60. However, the court has also
    accepted that, in arriving at a disposition, the Board may consider such actuarial
    assessments, alongside the clinical risk assessment in a hospital report and
    the evidence of a treating physician:
Re Woods
, para. 16. That is
    exactly what the Board did here. The actuarial risk assessment was simply one
    factor that the Board weighed, alongside other evidence regarding Ms. Moores
    mental health status, lack of community supports, and the opinions of her attending
    psychiatrist and treatment team.

[25]

Third, Ms. Moore asserts that the Board failed
    to consider that being in a hospital has had a negative effect on her mental
    and emotional state and that even her treatment team acknowledged that her
    stressors would diminish in the community. She notes that she successfully
    resided on her own for many years and that her attitude and illusions improved
    when there was a real possibility of her being transferred into the community,
    but that she regressed when she lost that opportunity.

[26]

We also reject this submission. The Board
    expressly considered the evidence regarding the impact of ongoing detention on
    Ms. Moores emotional state. While Dr. Roopchand acknowledged that Ms. Moores
    fear of being in hospital might diminish to some degree if she were well
    supported in the community, the issue was that she was not eligible for the
    available community living programs and otherwise lacked the necessary
    community supports. The Board was well aware of Ms. Moores need to have hope,
    as reflected in its decision to include a discretionary community living
    condition.

[27]

Fourth, Ms. Moore asserts that she has not
    engaged in any violent behaviour while under the Boards jurisdiction, and that
    her physical functioning has been significantly reduced as a result of her
    declining physical health, reducing the threat she poses to public safety.

[28]

However, the record reveals that Ms. Moore has
    recently engaged in threatening behaviour and both verbal and physical
    aggression, including threatening to punch Dr. Roopchand in the face. The
    record also reveals that Ms. Moore has made numerous comments to the
    effect that her former boyfriend was lucky that she did not injure him more
    seriously in the course of the index offence.

[29]

Fifth, Ms. Moore asserts that the Board
    overlooked the fact that she has shown sincere commitment to continued
    compliance with her treatment.

[30]

Again, we disagree that the Board overlooked Ms.
    Moores commitment to treatment compliance. Although the Board acknowledged
    that Ms. Moore had cooperated to some extent with her ongoing treatment, it also
    noted Dr. Roopchands evidence that Ms. Moores insight regarding her
    mental illness waxes and wanes. Dr. Roopchand testified that in her opinion
    Ms. Moore would not be able to continue treatment without ongoing monitoring.
    The Board also noted that Ms. Moore had refused to take her mood-stabilizing medication
    in January 2019. In our view, the Board was entitled to conclude that Ms. Moore
    had cooperated with her ongoing treatment because of the controls associated
    with being under the Boards supervision.

[31]

We therefore conclude that the Board properly considered
    each of the items of evidence that Ms. Moore claims it overlooked.

[32]

In the circumstances, we see no basis to impugn
    the reasonableness of the Boards conclusion that a detention order was
    necessary and appropriate. The crafting of the specific terms of a disposition
    is properly left to the Boards specialized knowledge and expertise in
    assessing the NCR accuseds level of risk and how best to manage that risk:
Winko
    v. British Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625,
    175 D.L.R. (4
th
) 193, at paras. 59-61;
Pinet v. St. Thomas
    Psychiatric Hospital
, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 22. Here,
    the Boards disposition fell within the range of reasonable options.

Disposition

[33]

The appeal is dismissed.

[34]

In closing, we wish to acknowledge Ms. Moores
    understandable desire to be released from the hospital under conditions. It is hoped
    that, with ongoing treatment under the supervision of her attending
    psychiatrist and the treatment team, she will improve sufficiently that this
    may become a realistic prospect in the future.

K. Feldman J.A.

M. Tulloch J.A.

M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Morwald-Benevides
    v. Benevides, 2019 ONCA 1023

DATE: 20191224

DOCKET: C66709

Lauwers, van Rensburg
    and Roberts JJ.A.

BETWEEN

Melinda
    Morwald-Benevides

Applicant (Respondent)

and

Jeffery Mark Benevides

Respondent (Respondent)

Baaba Forson, for the appellant non-party, Her Majesty
    the Queen in right of Ontario

Sandra J. Meyrick, appearing as
amicus curiae

Heard: August 29, 2019

On appeal from the order of Justice Edward J. Koke of
    the Superior Court of Justice, dated February 19, 2019, with reasons reported
    at 2019 ONSC 1136.

Lauwers J.A.:

[1]

What are the principles governing the appointment of
amicus curiae
in private family law cases? That is the issue in this appeal.

I.

The Procedural Context

[2]

The trial judge, a judge of the Ontario Court of Justice, made orders
    appointing counsel to represent both parents in a contentious family law
    dispute. He appointed Andrew Thomson as
amicus
on behalf of the
    applicant mother, Melinda Morwald-Benevides (the mother). Midway through the
    trial, he appointed Bonnie Oldham as
amicus
for the respondent father,
    Jeffrey Mark Benevides (the father), immediately after he permitted her to get
    off the record as his counsel for non-payment of fees.

[3]

The trial judge dismissed the Crowns motion to set aside the
amicus
    curiae
orders.
[1]
The Crown appealed to the Superior Court of Justice.

[4]

The appeal judge appointed the same two lawyers to act as
amicus
before him.
[2]
He dismissed the Crowns motion to set aside the
amicus
appointments and
    stayed the Crowns appeal, noting at para. 6 of the decision:
The stay can be lifted when the AG and the
amici
have negotiated a mutually acceptable rate of compensation for the
amici
,
    or pursuant to further order of this court.
[3]

[5]

This court set aside the
amicus
appointments and remitted the
    matter to the appeal judge.
[4]
The appeal judge then appointed Ms. Meyrick as a single
amicus.
He went
    on to dismiss the Crowns appeal of the trial judges decision appointing
amicus
.
[5]
The Crown appeals.

[6]

The appeal is technically moot because the trial has been completed with
    both
amicus
participating; nothing substantive between the parties to
    the family law case remains to be resolved.
Amicus
were paid by the
    Crown on a without prejudice basis to permit the trial to be completed, while
    preserving the Crowns right of appeal.

[7]

As I will explain, the trial judge made several errors in principle
    regarding the purpose and role of
amicus
. He erred in appointing both
    the mothers and the fathers former counsel as
amicus
.
It would be rare in a family law case to appoint one
amicus
, and the circumstances would virtually never justify
    the appointment of two. I
n more general terms, the fact that one
    party is represented does not justify the appointment of
amicus
, even
    though trial judges would prefer both parties to be represented by competent
    counsel; maintaining a level playing field is not a valid consideration in
    appointing
amicus
.

[8]

Had the appeal not been moot because
    the underlying family law case has been resolved, I would have allowed it for
    the reasons that follow.

[9]

Before addressing the issues raised by the Crown, I set out the factual
    context.

II.

The factual context

[10]

The appeal judges introduction sets out the factual circumstances
    concisely in paras. 2-9, which I largely paraphrase.

[11]

The applicant mother brought an application for an order for custody of
    the three children of the marriage, then aged 6, 11, and 13 years, an order
    prohibiting access, or in the alternative, supervised access to the respondent
    father, and an order for spousal and child support.

[12]

The litigation was highly contentious with numerous court appearances.
    The father lived in Bermuda. The mothers position was that the father should
    not have access in Bermuda because she feared that he would not return them
    after an access visit, arguing that Bermuda courts have a poor record of
    compliance with the
Convention on the Civil Aspects of International Child
    Abduction
, Can. T.S. 1983, No. 35 (
Hague Convention
). In addition
    to logistical and scheduling issues, the father's residence in Bermuda raised complications
    for grossing-up child support because of different tax treatment of income in the
    two jurisdictions, and the treatment of tax deductions for child support and
    for travel expenses to facilitate access. The father argued that the mother was
    alienating the children from him. The mother alleged abuse.

[13]

After dismissing five counsel, including Mr. Thomson, the mother decided
    to represent herself at trial. She brought an unsuccessful motion at the outset
    of trial for an adjournment on medical grounds. The trial judge described the
    mothers behaviour on the first day of trial as bordering on hysterical. Just
    before noon she collapsed in the courtroom and was rushed to hospital by
    ambulance. In the afternoon her brother attended court on her behalf.

[14]

The trial judge decided to appoint Mr. Thomson as
amicus
to
    assist with the presentation of the mothers case because he had previously
    acted for her and was familiar with her and with the issues. This was the first
amicus
order. Based on the record, it is fair to say that the mother did
    not support the appointment of
amicus
for her, but she did co-operate
    with him. This sense emerges from paras. 67, 72, 75, 96 and 97 of the reasons,
    and from the transcript.

[15]

In his written endorsement, the trial judge wrote that he had appointed
amicus
to assist the court in relation to the interest of the applicant. However, his
    formal order stated that
amicus
was to assist the Court in making
    decisions that relate to the best interests of the children. The record shows,
    as the Crown submitted, that despite the text of the order, Mr. Thomson largely
    acted as counsel for the mother throughout, with the limited exceptions when he
    resisted the mothers instructions on two contentious issues: the psychological
    assessment of the mother and whether the judge should appoint
amicus
for
    the father: at para. 99.

[16]

The trial was originally scheduled for four days and began in the
    Ontario Court of Justice on April 11, 2014. Remarkably, despite the pretrial estimate
    of its length, the trial stretched intermittently over 23 days and finished in
    late June 2015.

[17]

Midway through the trial the father ran out of money. His lawyer, Ms.
    Oldham, brought a motion to get off the record. The trial judge granted the request,
    and then immediately appointed her as
amicus
to assist with the
    presentation of the fathers case. His written endorsement stated that he was
    making an
amicus
order in favour of the father in the usual form. The
    second formal
amicus
order is in the same terms as the first, but Ms.
    Oldham simply carried on as counsel for the father.

III.

The Issue

[18]

As noted at the outset, the issue in this appeal can be concisely
    stated: What are the principles governing the appointment of
amicus curiae
in private family law cases? (Child protection cases involve different
    considerations and are not the subject of this decision.)

[19]

The adversarial system, under which our system of justice operates, was
    designed for and works best when counsel represent the parties. However,
    increasingly, and in most family law trials, one or both of the parties are
    self-represented. Trial judges routinely resolve family law disputes about
    property, spousal support, child support, and child custody and access without
    counsel on both sides.

[20]

This is the context within which the
amicus
issue is addressed.
    This court should give guidance to trial courts about the appointment of
amicus
,
    even though the particular appeal is moot:
New Brunswick (Minister of Health
    and Community Services) v. G.(J.)
, [1999] 3 S.C.R. 46, at paras. 45-47. The
    circumstances of this case, the full exposition of reasons by the trial judge
    and the appeal judge, and the representation of both perspectives by counsel
    (the Chief Justice of this court appointed Ms. Meyrick to serve as
amicus
in this appeal in order to provide submissions opposing the Crowns
    submissions), provide an opportunity to address the issue in an appropriately
    adversarial setting.

IV.

Analysis

[21]

The precedent governing the appointment of
amicus
is the decision
    of the Supreme Court in
Ontario v. Criminal Lawyers Association of Ontario
,
    2013 SCC 43, [2013] 3 S.C.R. 3 (
CLA
).

[22]

What is an
amicus curiae
? Speaking for the majority, Karakatsanis
    J. said, at para. 2: It is not disputed that a court may appoint a lawyer as
amicus
    curiae
, a friend of the court, to assist the court in exceptional
    circumstances; or that the Attorney General is obligated to pay
amici curiae
when appointed. She explored the genesis of the ancient and venerable concept
    of
amicus
at paras. 44-47, noting, at para. 46: the ability to appoint
amici
is linked to the courts authority to request its officers, particularly the
    lawyers to whom the court afforded exclusive rights of audience, to assist its
    deliberations, quoting from B.M. Dickens, A Canadian Development: Non-Party
    Intervention (1977), 40
Mod. L. Rev.
666, at p. 671.

[23]

Speaking for the minority, Fish J. did not disagree, and said, at para.
    87: [C]ourts may appoint an
amicus
only when they require his or her
    assistance to ensure the orderly conduct of proceedings and the availability of
    relevant submissions. He added that once appointed, the
amicus
is
    bound by a duty of loyalty and integrity
to the court
and not to any of
    the parties to the proceedings.
[6]

[24]

It is common ground that a judge of the Ontario Court of Justice has the
    implied jurisdiction to appoint
amicus
to assist the court. It extends
    to those family law matters in which the appointment is essential for the court
    to adequately discharge its judicial functions:
CLA
, at

para. 112.

(1)

The principles governing the appointment of
amicus
in private
    family law cases

[25]

The principles governing the appointment of
amicus
have developed
    in the context of criminal proceedings in which the liberty interests of the
    unrepresented party, the accused, are especially acute, and in which the Crown
    is always well represented, while the accused faces a loss of liberty. By
    contrast, private family law cases involve disputing citizens, although they
    often have important public aspects because protecting the best interests of
    children is a longstanding public commitment reflected in the courts
parens
    patriae
jurisdiction.

[26]

In the delicate exercise of determining when
amicus
will be
    appointed and for what purposes, the relevant principles from
CLA
must
    be applied to family law litigation with necessary modifications. The
    principles or factors that have emerged thus far in the cases are set out
    below, but the list is not exhaustive.

[27]

First, the assistance of
amicus
must be essential to the adequate
    discharge of the judicial functions in the case:
CLA
, at para. 47. The
    stakes must be high enough to warrant
amicus
. This is a circumstantial
    determination within the trial judges discretion.

[28]

Second, a party has the right to self-represent:
CLA
, at para.
    51. However, the trial judge is responsible for ensuring that the trial
    progresses reasonably. There are situations in which the appointment of
amicus
might be warranted, such as when the self-represented party is ungovernable or
    contumelious, when the party refuses to participate or disrupts trial
    proceedings, or when the party is adamant about conducting the case personally
    but is hopelessly incompetent to do so, risking real injustice: see e.g.
R.
    v. Imona-Russel
, 2019 ONCA 252, 145 O.R. (3d) 197;
Zomparelli v.
    Conforti
, 2018 ONSC 610.

[29]

Third, relatedly, while
amicus
may assist in the presentation of
    evidence,
amicus
cannot control a partys litigation strategy, and,
    because
amicus
does not represent a party, the party may not discharge
amicus
:
Imona-RusseI,
at para. 67.

[30]

Fourth, the authority to appoint
amicus
should be used sparingly
    and with caution, in response to specific and exceptional circumstances:
CLA
,
    at para. 47. And see
C.C.O. v. J.J.V.
, 2019 ABCA 292, 91 Alta. L.R.
    (6th) 237, at para. 50. This is in part a recognition of the financial
    exigencies, which is ultimately a political question under our separation of
    powers doctrine, as
CLA
noted at paras. 27-31, 83.

[31]

A trial judge should consider whether a Legal Aid certificate would be
    available and whether the matter should be adjourned to permit a party to apply
    for it. A trial judge should also consider whether other resources could be gathered
    together to suffice. For example, where the interests of children are involved,
    the judge may request the participation of the Office of the Childrens Lawyer
    under ss. 89(3.1) and 112 of the
Courts of Justice Act
, R.S.O.
    1990, c. C.43. There are several modalities of participation available
    including, most recently, Voice of the Child reports. However, the
    consideration of any such services would need to be expedited to avoid delay,
    particularly in a case that involves children.

[32]

Self-represented parties are increasingly routine in family law
    cases. The system recognizes this fact and does provide some resources.
[7]
That one or both parties are self-represented is not a sufficient reason to
    appoint
amicus
, in itself, nor is it sufficient based on the idea that
    since one party is represented,
amicus
is necessary to level the playing
    field. As is sometimes noted in criminal cases, a party is entitled to a fair
    trial, not a perfect trial:
R. v. G. (S.G.)
, [1997] 2 S.C.R. 716, at
    para. 101;
R. v. Harrer
, [1995] 3 S.C.R. 562, at para. 45.

[33]

Fifth, the trial judge must consider whether he or she can personally
    provide sufficient guidance to an unrepresented party in the circumstances of
    the case to permit a fair and orderly trial without the assistance of
amicus
,
    even if the partys case would not be presented quite as effectively as it
    would be by counsel:
Imona-Russel,
at para. 69.

[34]

It is no longer sufficient for a judge to simply swear a party in
    and then leave it to the party to explain the case, letting the party flounder
    and then subside into unhelpful silence. As this court has noted, it is
    well-accepted that trial judges have special duties to self-represented
    litigants, in terms of acquainting them with courtroom procedure and the rules
    of evidence:
Dujardin v. Dujardin
, 2018 ONCA 597, 423 D.L.R. (4th) 731,
    at para. 37, repeated in
Gionet v. Pingue
, 2018 ONCA 1040, 22 R.F.L.
    (8th) 55, at para. 30. The court added, at para. 31 of
Gionet
: In
    ensuring that a self-represented litigant has a fair trial, the trial judge
    must treat the litigant fairly and attempt to accommodate their unfamiliarity
    with the trial process, in order to permit them to present their case, citing
Davids
    v. Davids
(1999), 125 O.A.C. 375, at para. 36. See also
Manitoba
    (Director of Child and Family Services) v. J.A.
, 2006 MBCA 44, at paras.
    19-20.

[35]

A trial judge requires the necessary evidence on which to base a
    sound decision and getting the evidence can be difficult when a party is
    unrepresented, is unfamiliar with the process and the venue, or is tongue-tied
    for other reasons. Recognizing this reality, a common practice has developed in
    which trial judges walk a self-represented party through the essential
    documents, giving the party every opportunity to explain under oath, line by
    line, his or her pleading, financial statement, and any pertinent documents,
    and doing the same with respect to the other partys pleading, financial
    statement, and pertinent documents, requesting the partys responding position
    and evidence. Once the evidence of a party has been received, then the other
    party may cross-examine.

[36]

This active approach on the trial judges part can only work if the
    judge explains the purpose and nature of the exercise beforehand, and maintains
    a calm and impartial temperament throughout. The trial judge should not cross-examine
    a party. Doing so would cross the line into the adversarial representation of a
    party, which would give rise to possible bias allegations.
[8]

[37]

Importantly, it is only in rare cases that the assistance provided by
    the trial judge will be insufficient to ensure trial fairness. Only then might
    the appointment of
amicus
be considered.

[38]

Sixth, it will sometimes, though very rarely, be necessary for
amicus
to assume duties approaching the role of counsel to a party in a family case.
    While the general role of
amicus
is to assist the court, the specific
    duties of
amicus
may vary. This is a delicate circumstantial question.
    If such an appointment is to be made and the scope of
amicuss
duties
    mirror the duties of traditional counsel, care must be taken to address the
    issue of privilege, as in
Imona-Russel
, at para. 89.

[39]

Finally, the order appointing
amicus
must be clear, detailed and
    precise in specifying the scope of
amicuss
duties. The activities of
amicus
must be actively monitored by the trial judge to prevent mission creep, so that
amicus
stays well within the defined limits.

[40]

Ideally the need for
amicus
can be identified and considered at
    the pre-trial case management conference, but sometimes the need only becomes
    evident at trial. A case management judge or a trial judge faced with a trial
    that might require the appointment of
amicus
should prepare an order
    detailing the expected role and work of
amicus
.
Amicus
could, for
    example, be asked to lead some evidence, cross-examine a witness, or make
    submissions on specific issues. The goal should be to use the services of
amicus
only where and to the extent necessary. The order would be a work in progress
    and would be open to change as circumstances demand, with changes made formally
    on the record.

(2)

The Principles Applied

[41]

While the trial judge did not fully observe the principles
    set out above, I would not be unduly critical of his approach, because every
    trial takes on a life of its own, as this one did.
The trial judge asserted that this was the first
amicus
order in a family law case of which he was aware and
    he had nothing outside of the criminal law cases to assist him.
The
    appointment of one neutral amicus with a clearly and properly defined role
    in the very difficult circumstances described by the trial judge would not have
    been an objectionable exercise of his discretion. However, that is not
    what occurred here.

[42]

The trial judge determined that the assistance of
amicus
was
    necessary in the circumstances of this case. He noted that the mother was incapable
    of representing herself: at para. 63. She was bordering on hysterical and
    collapsed in the courtroom: at paras. 61-62. He considered himself to be in a
    crisis situation: at para. 44. The primary reason for the appointment of
amicus
was to stabilize the proceeding: at para. 67. He did not think he could
    manage the mother in the courtroom on his own. Further, because of the
    intensity and desperation as to her deeply rooted fear of the father  [s]he
    needed a buffer: at para. 68.

[43]

Given the mothers attempts to adjourn the trial, the trial judge
    considered it important for
amicus
to be appointed, because she then
    could not dismiss him. Further,
amicus
could proceed even if she did
    not attend court: at para. 75. He noted that the appointment of Mr. Thomson as
amicus
had a significant impact on the potential emotional volatility
    of the mother and that, in his view, she calmed down significantly and the
    proceedings stabilized: at para. 96.

[44]

In addition, the trial judge considered the issues to be complex. He
    noted, at para. 70, that this was not a garden variety case because it
    involved the interpretation and application of the
Hague Convention
, and
    the consideration of multi-jurisdictional tax implications.

[45]

The trial judge addressed the possibility of adjourning the trial to
    permit the mother to apply for legal aid. He noted, at paras. 76-77, that delay
    was the major issue and would have prolonged the dispute. This was a relevant
    consideration.

[46]

The problems of scheduling and delay are real, and delay is especially
    problematic in cases involving child custody and access. Family law trials are
    stressful, perhaps especially so for self-represented parties. It is not
    unusual for trial judges to face adjournment requests. Sometimes one party does
    this repeatedly in the pre-trial process and then presses the request again at
    the outset of trial. Dealing with parties who frequently seek adjournments
    requires judicial patience, determination, and a steady hand, to get cases
    resolved expeditiously and to avoid the waste of scarce judicial resources.

[47]

For the purpose of future guidance, I would point out a number of
    features of this trial that were problematic regarding the appointment of
amicus
.
As I will explain, t
he trial
    judge erred in principle in appointing
amicus
to carry on effectively in
    their roles as counsel for each of the parties.

[48]

First, the trial judge appointed Mr. Thomson, who had previously been
    the mothers lawyer. He did this on the basis of efficiency and the likely
    acceptability of the appointment to the mother. But appointing Mr. Thomson
    immediately injected an adversarial element that was inconsistent with the
    impartial role of
amicus
. The appointment of a partys former counsel as
amicus
was an error in this case.

[49]

Second, the later appointment of a second
amicus
to
    represent the father was contrary to principle. A
single
amicus
could have addressed the courts questions about the application of
Hague
    Convention
Principles as well as the
    complex tax implications inherent in the multi-national dimensions of this
    dispute had the initial error in appointing the mothers former counsel as
amicus
not been made.

[50]

The appointment of the second
amicus
flowed in part from the
    appointment of Mr. Thomson, who could never be seen as neutral because he had
    previously acted as counsel for one of the parties. Mr. Thomsons appointment
    turned out to be problematic when the husbands lawyer quit, because it took
    away from the trial judge the ability to deploy the skills of
amicus
in
    a neutral fashion with respect to both parties.

[51]

If it would be rare in a
    family law case to appoint one
amicus
, the circumstances would virtually never justify the
    appointment of two. In this case, the first appointed
amicus
could not fairly act as
amicus
with respect to the father after his counsel was
    permitted to get off the record. But that is an unusual situation I would not
    expect to see again.

[52]

Third, the decision in
CLA
does not preclude the possibility of
    court-appointed defence counsel in a criminal case with
amicus
-like
    features, as in
Imona-Russel
. Appointing a single counsel dedicated to a
    party might make sense in the context of, for example, a constitutional challenge
    to a family law provision where the Attorney General is present to represent
    the other side. Otherwise, a single
amicus
appointment should almost
    always be able to satisfy the basic requirements of the court. In the family
    context, it is hard to imagine a situation in which appointing two counsel as
amicus
to represent adversarial interests would be appropriate, rather than a
    single state-funded friend of the court.

[53]

Fourth, in more general terms, the fact that one party is represented
    does not justify the appointment of
amicus
for the other party. Most
    family law cases have this feature. And while in an ideal world all parties
    would be represented by competent counsel in maintaining a level playing field,
    it is not practical, as preferable as that might be to a trial judge. This
    underpinned the trial judges comment, at para. 70:
Because of the sharp
    polarization and conflict of the expected evidence, I wanted
amicus
to
    play an adversarial role to properly test the evidence
, so I can make
    findings of fact and credibility
which would then allow me to effectively
    adjudicate on the best interest test
 (emphasis in original). He added at
    para. 73: There would be a significant imbalance wherein the fathers evidence
    would not be properly tested, whereas the mothers would; leaving me in a
    deficit position on the material facts and legal issues. I do not accept these
    as legitimate considerations in most private family law cases.

[54]

Fifth, any judge considering the appointment of
amicus
should
    give notice so that counsel for the Attorney General can make submissions on
    the advisability of the appointment in the circumstances of the case.

[55]

Finally, there was no
    litigation plan prepared by the trial judge or proposed by counsel to guide and
    govern the activities of
amicus
throughout the case. It is not possible to know from this record
    whether
amicus
could
    have played a reduced role focussed on specific issues such as the leading of
    some witnesses but not all, the cross-examination of some witnesses but not
    all, or cross-examination limited to specific issues, or submissions limited to
    the application of the
Hague Convention
and the tax questions, to suggest a few choices.
    Going forward, an
amicus
appointment order in a family law case should be as precise and detailed as
    possible in terms of setting out the parameters of the
amicuss
role, and should not be as open-ended in its
    expression or in its operation as the orders in this case.

V.

Disposition

[56]

Had the appeal not been moot because
    the underlying family law case has been resolved, I would have allowed it for
    the reasons set out above.

Released: M.L.B. December 24, 2019

P. Lauwers J.A.

I agree. K. van
    Rensburg J.A.

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

[1]
2015 ONCJ 532, 127 O.R. (3d) 165

[2]
2015 ONSC 7290

[3]
2016 ONSC 3505, 88 R.F.L. (7th) 183

[4]
2017 ONCA 699, 416 D.L.R. (4th) 711

[5]
2019 ONSC 1136, 146 O.R. (3d) 472

[6]
The majority and minority in
CLA
did not differ on the issue of the
    proper scope of an
amicus
order, but only on whether the trial judge had
    power to fix the fees of
amicus
in the order, with the majority
    concluding that the trial judge did not have such power.

[7]

See, e.g., the following links to resources for
    family law litigants in the OCJ and in the SCJ:

http://www.ontariocourts.ca/ocj/files/guides/guide-family.pdf;

http://www.ontariocourts.ca/scj/family/resources/

[8]
See Michelle Flaherty, Best Practices in Active Adjudication (2015) 28 Can.
    J. Admin. L. & Prac. 291;
Michelle Flaherty,
    Self-Represented Litigants, Active Adjudication and the Perception of Bias:
    Issues in Administrative Law (2015) 38:1 Dal. L.J. 119; and
Jula Hughes
    & Philip Bryden, Implications of Case Management and Active Adjudication
    for Judicial Disqualification (2017) 54:4 Alta. L. Rev. 849.


COURT OF APPEAL FOR ONTARIO

CITATION: Mullings v. Robertson, 2019 ONCA 979

DATE: 20191213

DOCKET: C66780

Lauwers, Paciocco and Fairburn JJ.A.

BETWEEN

Owen Cornelius Mullings

Appellant

and

Jacqueline Alice Dian Robertson

Respondent

Owen Cornelius Mullings, appearing in person

Lauri Daitchman, for the respondent

Heard: November 29, 2019

On appeal from the judgment of Justice Ronald P. Kaufman
    of the Superior Court of Justice, dated February 28, 2019.

REASONS FOR DECISION

OVERVIEW

[1]

Mr. Owen Mullings, the appellant, and Ms. Jacqueline Robertson, the
    respondent, were common law partners. On February 28, 2019, the trial judge
    released a Family Court decision resolving numerous issues raised by the
    appellant and respondent arising out of their separation. The appellant appeals
    several of the rulings that we will identify below. He also seeks leave to
    offer fresh evidence in support of his appeals.

[2]

An issue was raised as to our jurisdiction to hear this appeal. Many
    appeals from the Family Branch of the Superior Court of Justice lie to the
    Divisional Court. Normally this appeal would have been properly heard by that
    court, except for the fact that the appellant also advanced a breach of
    contract claim for more than $50,000 in damages. Our court has jurisdiction
    over the breach of contract claim, the dismissal of which is also appealed
    from. This provides us with jurisdiction to hear all the matters arising in the
    proceedings under the
Courts of Justice Act
, R.S.O. 1990, c. C-43, s. 6(2).

[3]

The grounds of appeal raised by the appellant can conveniently be
    organized according to three general themes: (1) appeals of financial rulings;
    (2) appeals of property related claims; and (3) the funds withdrawn claim.

(1)

APPEALS OF FINANCIAL RULINGS

[4]

The appellant challenges factual decisions made by the trial judge
    relating to the financial contributions that he and Ms. Robertson made to the
    relationship. For example, he contends that in addition to other factual
    errors, the trial judge erred in: establishing the separation date, calculating
    joint family expenditures, and evaluating his contribution to his dependant,
    adult daughters education expenses. The impugned factual findings bear upon the
    trial judges rulings, including: (1) the trial judges denial of the
    appellants claim to spousal support; (2) the trial judges finding that there
    was no joint family venture; (3) the trial judges decision to order the
    appellant to pay retroactive child support and make payments under the
Child
    Support Guidelines
, O-Reg. 391/97, s. 7, relating to his daughters
    education expenses; and (4) the trial judges failure to allow the appellants
    unjust enrichment claim.

[5]

We would deny these grounds of appeal. The appellant is effectively
    attempting to reargue the underlying factual determinations. The appellant has
    not demonstrated that the trial judge committed any legal errors, or palpable
    and overriding errors of fact. The trial judge was entitled to come to the
    findings he did on the evidence before him.

[6]

Those factual findings also explain why the trial judge did not address
    or grant the unjust enrichment claim. This did not prejudice the appellant
    because that claim could not succeed on the facts the trial judge found.

[7]

Moreover, we see nothing in the proposed fresh evidence, or in the
    documents from the evidentiary record included in Mr. Mullings email of
    December 2, 2019, that could have affected the result on any of these
    determinations. We therefore deny leave to admit the fresh evidence in these
    proceedings.

(2)

APPEALS OF PROPERTY-RELATED CLAIMS

[8]

A number of the grounds of appeal raised by the appellant relate to land
    held during the relationship, in particular the Shirrick property and the
    Magdalan property. We would not give effect to these grounds of appeal,
    either.

[9]

When the Shirrick property was acquired, it was placed into the
    respondents name alone. The appellant contends that this property was meant to
    be put in both of their names, but the respondent abused her power of attorney
    and her fiduciary obligations by placing the property in her own name.

[10]

The parties agree that prior to their separation, the Shirrick property
    was placed in both of their names, as joint tenants, and that it was jointly
    owned at the time of separation. The trial judge relied upon joint ownership at
    the time of separation to determine that the appellant and the respondent are each
    entitled to 50% of the net value of the Shirrick property, subject to further
    orders. He then ordered a reduction in the appellants share to account for the
    expenses incurred by the respondent in maintaining the property since the
    separation.

[11]

The appellant claims that the trial judge erred with respect to the
    Shirrick property by:

·

not
    remedying the respondents breaches in wrongly placing the property in her own
    name when it was initially acquired;

·

finding
    that the property was held in joint tenancy at the time of the trial;

·

acting
    on the joint ownership of the property despite the appellants one-sided
    financial contributions to the acquisition of the property; and

·

reducing
    the appellants share based on the respondents maintenance expenses, when the
    trial judge should have set off the respondents share, given that she occupied
    the premises without rent payment to him.

[12]

We disagree with each of these grounds of appeal.

[13]

It is not contested that the Shirrick property was jointly owned at the
    time of separation. Given this fact, the more remote history of how the
    respondent came, for a time, to be the sole owner of the Shirrick property is
    immaterial.

[14]

It is conceded by the respondent that the trial judge misapprehended the
    evidence by failing to note that the joint tenancy was severed after separation
    but before the trial, and that thereafter the property was held as
    tenants-in-common. However, whether title was held as joint tenants or as
    tenants-in-common is also immaterial. What matters is that at the time of
    separation, the Shirrick property was jointly owned.

[15]

The trial judge was entitled to base his determination of the relative
    interests of the parties in the Shirrick home on this joint ownership at the
    time of separation. The trial judge was also entitled to reject the appellants
    contention that he contributed more and is therefore entitled to an increased
    share.

[16]

Similarly, the trial judge was entitled to reduce the appellants share
    for maintenance expenses and to decline to set-off occupation rent expenses.
    These were discretionary determinations for the trial judge to make, based on
    factual findings he was entitled to make.

[17]

The appellants claim relating to the Magdalan property is based on his
    contention that he sustained damages as a result of the respondents refusal to
    close the transaction in which the Magdalan property was acquired. He argues that
    the respondent had agreed to participate in the purchase, but later refused to
    do so, forcing him to purchase it on his own in order to mitigate the damage
    that would be incurred if the transaction did not close. The appellant claims
    that he ultimately lost $41,000 on the sale of the property, and incurred
    additional expenses, which he attributes to the respondents refusal to
    participate in the purchase.

[18]

The trial judge denied the Magdalan property claim because he did not
    accept, on the evidence, that the loss was caused by the respondents failure
    to participate in the purchase. He also appears to have held that the
    limitation period under the
Limitations Act
, 2002
, S.O. 2002,
    c. 24, Sch B expired and barred this claim.

[19]

The appellant contends that the trial judge erred in his factual
    findings relating to causation. He also urges that the trial judge erred in law
    in considering the two-year limitation period provided for in the
Limitations
    Act
, 2002
, because in the appellants view, the correct limitation
    period is ten years pursuant to the
Real Property Limitations Act
,
    R.S.O. 1990. c. L.15, s. 23(1).

[20]

We disagree. We are far from persuaded that s. 23(1) of the
Real
    Property Limitations Act
applies. The appellants claim is not to recover
    the land or an interest in the land. Instead, his claim is for damages arising
    from a breach of an alleged contract relating to land. However, we need not
    decide this issue because there is no basis for interfering with the trial
    judges conclusion that the failure by the respondent to close the transaction
    did not cause the loss on the resale of the Magdalan property. Once again, the
    facts supporting this determination were for the trial judge to make, as was
    this conclusion.

(3)

THE FUNDS WITHDRAWN

[21]

Finally, the appellant argues that the trial judge erred in not awarding
    damages for funds he claims were wrongfully withdrawn by the respondent from
    his bank accounts. On the consent of the parties, the trial judge resolved this
    claim by setting-off the amount of the allegedly wrongfully withdrawn funds against
    a claim by the respondent for an accounting of funds from the sale of her
    Jamaican property. We see no basis upon which the appellant can now retract his
    consent to that disposition, or to find that the trial judges acceptance of
    the parties agreement was in error. This ground of appeal is denied.

CONCLUSION

[22]

The appeal is dismissed. We award costs to the respondent in the amount
    of $29,800.00, inclusive of disbursements and HST.

P. Lauwers J.A.

David M. Paciocco
    J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Narvaez v. Muzlera, 2019 ONCA 959

DATE: 20191205

DOCKET: C66867

Watt, Hourigan and Trotter JJ.A.

BETWEEN

Flor Narvaez, Estnar Limited and Narsach

Property Management Inc.

Plaintiffs (Respondents)

and

Julio Muzlera, Dyana Driscoll,
Giovanni Buemi
,
    Royal LePage Realty Plus, Royal Le Page Real Estate Services Ltd.

Defendant (
Appellant
)

Mauro Marchioni, for the appellant

David Fenig and Frank Loreto, for the
    respondents

Heard and released orally: November 29, 2019

On
    appeal from the judgment of Justice McSweeney of the Superior Court of Justice,
    dated April 2, 2019.

REASONS FOR DECISION

[1]

The respondents obtained a default judgment
    against the appellant. The motion judge declined to set aside the judgment. On
    appeal, the appellant submits the motion judge erred because the judgment was
    irregularly obtained.

[2]

The claim arose from two real estate transactions
    in which the respondents were the purchasers and the appellant was the vendor
    of the properties. The respondents alleged that after the deals closed, they
    discovered that the property taxes for the properties were higher than detailed
    in the MLS listings.

[3]

The statement of claim included a claim against
    the appellant and the other defendants for negligent misrepresentation. It also
    included a plea that, but for the misrepresentations, the respondents would not
    have entered into the transactions.

[4]

This was a sufficient basis to grant default
    judgment. Therefore, the judgment was not irregularly obtained.

[5]

The appeal is dismissed. Costs are to the respondents
    in the amount of $10,000, inclusive of fees, disbursements and all applicable
    taxes.

David Watt J.A.

C.W. Hourigan J.A.

G.T.
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Niras v. Doe, 2019 ONCA 949

DATE: 20191202

DOCKET: C66797

Lauwers, Paciocco and Fairburn
    JJ.A.

BETWEEN

George Niras

Plaintiff (Appellant)

and

John Doe and
Club Pro Adult Entertainment Inc.

Defendants (
Respondent
)

George Niras, acting in person

Philip E. Ghosh, for the respondent
    Club Pro Adult Entertainment Inc.

Heard and released orally: November 25, 2019

On appeal from the order of Justice Lorne Sossin of the Superior
    Court of Justice, dated April 5, 2019.

REASONS FOR DECISION

[1]

The issue in this case is whether the proposed
    amended statement of claim asserts a new cause of action after the expiry of
    the limitation period.

[2]

The motion judge was alive to this issue and
    made legal and factual statements that we find to be accurate. At paras. 11-13
    of his reasons he said:

A pleading will be taken to constitute a new
    cause of action where it is a fundamentally different claim based on facts
    not originally pleaded (
1100997 Ontario Limited v. North Elgin Centre Inc.,
2016 ONCA 848, at para. 23).

The addition of a tort based on a new duty of
    care, for example, has been held to be sufficient to constitute a new cause of
    action for purposes of the presumption of prejudice under Rule 26 (
Davis v.
    East Side Marios Barrie
, 2018 ONCA 410).

I am satisfied
    that the addition of allegations of an intentional tort, and new heads of damages,
    which extend damages originally claimed against John Doe now to include Club
    Pro, and quadruple the amount claimed in damages against Club Pro, meet the
    threshold of a new cause of action for purposes of Rule 26.06.

[3]

Discoverability is the core of the issue. The
    motion judge dealt with it, at para. 21, based on admissions that Mr. Niras
    made about what he learned in 2015:

Given this
    admission in the record establishing that Niras was aware of the facts
    involving the alleged incident involving Joe Doe striking Niras with a gold
    club in 2015, I do not accept that the applicability of the limitation period
    to the discovery of these facts is an issue requiring a trial.

[4]

As a result, the appeal will be dismissed with
    two modest exceptions. The first is the proposed amendment to para. 10 of the
    statement of claim relating to the appellants competitive employment
    advantage, which is permitted. The second is the amendment of the general damages
    claim in para. 1(a) that increases the amount claimed from $1 million to $2.5
    million, which is also permitted. The other amendments will not be permitted.

[5]

We fix costs at $8,000 payable by the appellant
    to the respondent, all inclusive.

P.
    Lauwers J.A.

David
    M. Paciocco J.A.

Fairburn
    J.A.