WARNING

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

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

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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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

(a)       any
    of the following offences;

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

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

(iii)       REPEALED: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

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

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

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

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

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    information that could identify the victim shall not be published in any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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Zou, 2017 ONCA 90

DATE: 20170203

DOCKET: C61309

Hoy A.C.J.O., Doherty and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bo Zou

Appellant

Marie Henein and Christine Mainville, for the appellant

Jill Witkin, for the respondent

Heard:  November 8, 2016

On appeal from the conviction entered by Justice Robert F.
    Goldstein of the Superior Court of Justice, on July 10, 2015, with reasons
    reported at 2015 ONSC 4479.

Doherty J.A.:

I

overview

[1]

The appellant was convicted of sexually assaulting A.Y.  The trial judge
    imposed a sentence of two years, less one day.  The appellant appeals
    conviction only.

[2]

The appellant advances three grounds of appeal.  The first raises the
    often vexing question of the evidentiary use that can be made of a
    complainants prior consistent statement.  Shortly after the alleged assault,
    A.Y. sent an anonymous email to the police in which she said she had been
    sexually assaulted by the appellant.  Her description of the assault was
    consistent with her trial testimony.  In his reasons, the trial judge relied on
    the email as corroboration of A.Y.s testimony.  The appellant submits that although
    the email was admissible for a limited purpose, it could not, as a matter of
    law, corroborate A.Y.s evidence.

[3]

I agree with this submission and would allow the appeal.  I would not
    give effect to the other arguments and do not propose to address them in these
    reasons.

II

the evidence

(i)

The photo shoot

[4]

A.Y. is from China.  In July 2012, she was 18 years old and attending university
    in Toronto on a student visa.  The appellant was 33 years old and working for
    an IT company.  The two met on a social networking app.

[5]

A.Y. testified that the appellant described himself in his profile as a
    photographer.  His profile included photographs of young women.  A.Y.
    recognized one of the women as a person she knew from school.  In his profile,
    the appellant offered to provide aspiring models with free photographs.

[6]

A.Y. and the appellant exchanged messages. After browsing some of the
    photographs of other young women on the appellants profile, A.Y. agreed to
    meet the appellant at his condo/studio for a photo shoot.  On the agreed-to
    day, A.Y. went to the appellants condo and waited in the lobby.  The appellant
    arrived about one hour later and they went upstairs to his condo.

[7]

The appellant offered A.Y. a drink.  She took one and had a few sips.
    They talked about different things.  The appellant presented himself as a well
    off, sophisticated, talented fashion photographer.  A.Y. was not sure whether the
    appellant was telling the truth about himself.

[8]

The appellant expressed some disappointment with the black dress A.Y. was
    wearing.  He intended to photograph her in a style popularized by a famous
    Japanese photographer.  That style called for colourful erotic clothing.

[9]

The appellant took two series of photographs of A.Y.  In the first series,
    A.Y. wore the black dress.  In the second, she wore a tank top provided by the
    appellant.  Some of the photographs were sexually suggestive.  A.Y. testified
    that the appellant told her how to pose.  He testified that A.Y. chose her
    poses without his input.

[10]

After
    taking two sets of photographs, A.Y. and the appellant sat down on the couch to
    look through the photographs on his camera.  According to A.Y., the appellant
    attempted to kiss her twice.  He also touched her.  The appellant assured A.Y.
    that it was common for photographers and their models to be intimate so that
    they could gain a better understanding of each other.

[11]

A.Y.
    testified that she repeatedly told the appellant to stop.  He eventually stopped
    and assured her that he would not make any more advances.  The appellant invited
    A.Y. to sit on the side of the bed near the couch.  She did so and they talked
    briefly.  The appellant then attacked A.Y., pushing her to the bed and groping
    her.  A.Y. tried to push the appellant away, but she could not overcome his
    assaults.  He eventually removed his clothing and pulled her underwear off.  He
    tried to have a sexual intercourse with A.Y.

[12]

A.Y.
    testified that she initially resisted the efforts at sexual intercourse, but
    then realized that she could not stop him.  She asked the appellant to use a
    condom.  He produced a condom and proceeded to have sexual intercourse with A.Y.
    She did not consent, but instead stopped resisting, realizing that it was
    futile.  After about ten minutes, the appellant stopped.  A.Y. fled into the
    bathroom.  She was not sure whether the appellant had used a condom, but she
    suspected that he had not as she noticed a liquid discharge in her vagina.

[13]

A.Y.
    testified that she was angry and wanted to get away from the appellant.  When
    she left the washroom, the appellant said she should come back to his condo in
    a few days to get her photographs.  Although A.Y. had no interest in the
    photographs and only wanted to get away from the appellant, she replied, Well
    see.

[14]

The
    appellant escorted A.Y. to a taxi stand near the condo.  He was holding her
    hand as they went through the condo lobby.  A.Y. got into a taxi and went straight
    home.

[15]

The
    appellant gave a very different version of the events following the photography
    sessions.  He testified that when he and A.Y. were sitting on the couch looking
    at the photographs, A.Y. kissed him.  The appellant said he was surprised and
    shocked.  He told A.Y. that he had a girlfriend and reminded A.Y. that she had
    told him that she had a boyfriend.  A.Y. became angry when the appellant
    rebuffed her advances.

[16]

The
    appellant agreed that before A.Y. left, he invited her to return in a few days
    to pick up her photographs.  He escorted her to a taxi stand outside his condo.
    He heard nothing about any alleged sexual assault until about 14 months later.

(ii)

The email

[17]

A.Y.
    testified that she was angry when she got home.  She blamed herself for
    foolishly putting herself in a position in which the appellant could take
    advantage of her.  She was so upset that she could not sleep.  Early the next
    morning, A.Y. decided to report the assault by sending an anonymous email to
    the local police station.  A.Y. did not use her regular email address, but
    instead used one she had registered years earlier and no longer used.

[18]

In
    the email, A.Y. described the appellants attack on her in some detail.  The
    description was consistent with her trial testimony.  She referred to the
    appellant as Jay  an alias he used online  and provided his phone number.
    She concluded the email with a request that the police contact her and do
    something about the assault.  A.Y. did not give her name and the only email
    address available to the police was the one A.Y. used to send the email.

[19]

A.Y.
    sent the email on July 31, 2012, the morning after the alleged assault.  The
    police responded by email on January 10, 2013, about five and one-half months
    later.  According to the police email, no one had checked the mailbox to which
    A.Y. had sent her email for a few months.  In their email, the police asked A.Y.
    to come forward and identify herself so that they could investigate the
    allegation.

[20]

A.Y.
    testified that although she initially checked for responses to her July 31,
    2012 email on a regular basis, she stopped doing so after receiving no response
    from the police.  A.Y. had not checked the email for some time when she checked
    it in August 2013 and found the email sent by the police on January 10, 2013.

[21]

A.Y.
    was with her boyfriend when she read the police email.  She became upset and
    eventually told her boyfriend what had happened.  He convinced her that she had
    to go to the police.  She did so and the ensuing investigation led to the
    appellants arrest, some 14 months after the incident.

III

the trial judges reasons

[22]

A.Y.
    and the appellant were the only witnesses at trial.  The defence position was
    that the alleged assault never happened. The defence claimed that A.Y. falsely
    accused the appellant because he had rebuffed her sexual advances.

[23]

The
    trial judge recognized that the outcome of the trial turned on his assessment
    of the credibility and reliability of A.Y. and the appellant.  He directed
    himself that he must make his assessment using the well-known three-part
    analysis described in
R. v. W.(D.)
, [1991] 1 S.C.R. 742.

[24]

The
    trial judge first considered and rejected the appellants evidence, concluding
    that it was incredible and did not leave him with a reasonable doubt (at paras.
    21-28).  The trial judge accepted that the appellant gave his evidence in a
    straightforward and non-argumentative manner, but ultimately found that his
    story does not make sense.

[25]

The
    trial judge turned next to A.Y.s evidence.  He reviewed her testimony and
    found it credible and reliable (at paras. 29-39).  At para. 30, the trial judge
    set out in bullet point form his reasons for finding A.Y. credible.  For
    convenience, I have numbered the bullet points.  The third bullet point is the
    main focus of this ground of appeal:

[1]  A.Y. readily agreed to factual
    errors in her testimony both before me and at the preliminary inquiry and
    explained the reasons for them.  She did not argue with counsel, but took her
    time to try and answer the questions.

[2]  A.Y.s decision to send an
    email and not follow up is very consistent with the behaviour of a victim who
    is ashamed of her own gullibility.  Wanting to remain anonymous is common among
    victims of sexual assault.  A.Y. said as much herself.  She called herself
    ignorant.  I would use different words.  I would say that she was young and
    naïve.

[3]  Thus most importantly, I find
    A.Y.s email, sent contemporaneously with the events, to be corroboration of
    her evidence.

IV

did the trial
    judge make improper use of A.Y.s email to the police?

A:      References to the email
    at trial

(i)

In the evidence

[26]

A.Y.s
    email to the police was introduced into evidence during her
    examination-in-chief.  She read the document into the record in its entirety
    and it was made an exhibit.  There was no objection by trial counsel for the
    appellant and no indication by counsel or the trial judge of the purpose for
    which the email was tendered or any limitation on its use.

[27]

In
    cross-examination, A.Y. testified that the contents of the email helped refresh
    her memory on a few details of the encounter with the appellant.  A.Y. was
    cross-examined about the time at which she sent the email and one minor
    inconsistency between the email and her testimony.

(ii)

In the arguments

[28]

Both
    counsel made reference to the email in their closing arguments.  Defence
    counsel relied on the sending of an anonymous, untraceable email, and the
    failure to follow-up on the email, to support the position that the allegation
    was untrue and fabricated by A.Y. as revenge for the appellants rejection of
    her advances and as some form of self-protection should her boyfriend or family
    members find out about the encounter with the appellant.

[29]

In
    his submissions at trial, Crown counsel maintained that A.Y. was a credible and
    reliable witness. He referred to both the email and A.Y.s conduct after leaving
    the condo.  He argued that the defence position that A.Y. had made a false
    accusation to gain revenge or somehow protect herself made no sense in light of
    the manner in which A.Y. reported the assault.  Counsel submitted that
    sending an anonymous email and not following-up on it was a truly bizarre way
    for a complainant to make a false allegation of sexual assault.

[30]

Crown
    counsel also argued that A.Y.s version of the incident had been consistent
    throughout, beginning with the description of the assault in the email and
    culminating with her testimony at trial:

The night that she returned from his condominium, she wrote in
    somewhat halting English an account of what happened to her that night in his
    condominium [the email],
which has really, in terms of material facts, has
    been completely unchanged from the moment she wrote it until the day that she
    finished testifying here at this trial.
She has never wavered.  She has
    been cross-examined at a preliminary inquiry and cross-examined at a trial and
    she has been consistent in terms of the material and important elements of what
    occurred that night.  [Emphasis added.]

(iii)

In the reasons

[31]

The
    trial judge referred to the email six times in his reasons. He first averted to
    it in his overview of the case at the beginning of the judgment.  The second
    and third references to the email appear at paras. 16 and 17, when the trial
    judge is summarizing A.Y.s evidence.  The relevant portion, at para. 16, reads:

The email went on to describe the sexual assault in some
    detail.  It did not differ in any significant way from the evidence that [A.Y.]
    gave at this trial.

[32]

The
    trial judge refers to the email for a fourth time when he is explaining his
    reasons for rejecting the appellants evidence.  In the course of examining the
    defence submission that A.Y. had falsely accused the appellant because she was
    angry with him after he rejected her, the trial judge said, at para. 25:

Most importantly, the idea that A.Y. decided to go to the
    police and claim she was sexually assaulted because [the appellant] spurned her
    makes no sense given how her contact with the police developed.  She
    deliberately hid her identity and then did not pursue the matter when the
    police did not respond instantly.  She only went to the police when her
    boyfriend insisted.  Her behaviour was inconsistent with a desire to see [the
    appellant] arrested and charged.  Her behaviour was much more consistent with
    that of a sexual assault victim who was embarrassed than with a woman spurned
    and seeking revenge.  Obviously, [the appellant] is not responsible for A.Y.s
    behaviour, but in the context of these facts the defence theory does not make
    sense.

[33]

The
    fifth and sixth references by the trial judge to the email appear in the paragraph
    in which he sets outs his reasons for finding A.Y. credible.  The paragraph is
    set out at paragraph 25 of these reasons.  For convenience, I will repeat the two
    bullet points that refer to the email:

[2]   A.Y.s
    decision to send an email and not follow up is very consistent with the
    behaviour of a victim who is ashamed of her own gullibility

[3]  Thus most
    importantly, I find A.Y.s email, sent contemporaneously with the events, to be
    corroboration of her evidence.

B:      The trial judges uses of
    the email in his reasons

[34]

At
    para. 25 of his reasons, the trial judge used the evidence that A.Y. sent an
    anonymous email to the police complaining about the assault in considering and
    rejecting the defence submission that A.Y. had falsely accused the appellant
    because she was angry when he rejected her sexual advances.

[35]

Ms.
    Henein, for the appellant, accepts that the email could be used to undermine
    the defence position as to the motive for A.Y.s false accusation.  Used in
    this way, the email is a relevant piece of circumstantial evidence that, placed
    in the context of the rest of the evidence, makes the existence of the reason
    advanced by the defence for A.Y.s false allegation more or, as the trial judge
    found, less likely.  The truth of the contents of the email is irrelevant to
    this evidentiary use.

[36]

The
    trial judge used the email in a second way that is very closely related to the
    first.  In bullet point [2], the trial judge reasoned that A.Y.s decision to
    send an anonymous email to the police and her failure to follow-up on that
    email were consistent with her evidence that she was angry, confused and ashamed
    of her own gullibility after the incident.  In the trial judges assessment, the
    sending of the email and the failure to follow-up was conduct that was consistent
    with A.Y.s testimony about her state of mind after the incident.  As with the
    first use of the email, the truth of the contents of the email was irrelevant
    to this evidentiary use.

[37]

In
    my view, this second use of the email is indistinguishable for evidentiary
    purposes from the first.  In both instances, the email is treated as a piece of
    circumstantial evidence relevant to a fact in issue.  The trial judges finding
    that A.Y.s conduct in respect of the email and its aftermath was consistent
    with A.Y.s description of her state of mind necessarily impacted the trial
    judges assessment of her credibility in a positive way:  see
R. v.
    Stirling
, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 11-12.

[38]

If
    the trial judge used the email evidence only for the two purposes described
    above, this ground of appeal would fail.  The appellant submits, however, that
    the trial judge went beyond those two uses.  He refers to the trial judges
    description of the email as corroboration of [A.Y.s] evidence in bullet
    point [3] as demonstrating that the trial judge used the contents of the email
    as evidence of the truth of the allegations in the email, and used the
    consistency between the contents of the email and A.Y.s testimony to confirm
    her testimony.  The appellant relies heavily on
R. v. Dinardo
, 2008
    SCC 24, [2008] 1 S.C.R. 788, at para. 40, in which the court held that a trial
    judges reference to a prior consistent statement as a form of corroboration
    of the complainants evidence constituted reversible error:  see also
R. v.
    Lopez
, 2015 BCCA 294, at para. 35.

[39]

Ms.
    Witkin, for the Crown, does not suggest that the email was admissible for the
    truth of its contents.  Nor does she argue that the consistency between the
    contents of the email and A.Y.s trial testimony can confirm the truth of
    A.Y.s evidence.  Ms. Witkin contends that the trial judge did not use the email
    for any purpose other than the two legitimate purposes described earlier in these
    reasons.  She submits that the second and third bullet points must be read
    together as describing a single use of the email as circumstantial evidence to
    rebut the defence position with respect to A.Y.s motive for reporting the
    incident and to support the complainants evidence as to her state of mind when
    she left the condo.  Crown counsel points to the word thus at the start of
    the third bullet point as providing the bridge joining the second and third
    bullet points.

[40]

The
    trial judges use of the word corroboration in the context of a prior
    consistent statement by a witness is troubling.  That word, as commonly understood,
    refers to evidence from a source other than the witness whose evidence is
    challenged which is capable of confirming the veracity of the evidence of the challenged
    witness:  see
Vetrovec v. The Queen
, [1982] 1 S.C.R. 811, at p. 829;
R.
    v. Kehler
, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 12-15; and
R.
    v. Khela
, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 37-40.

[41]

The
    email evidence did not have either characteristic required for evidence to be
    corroborative.  It was not from a source independent of A.Y.  Nor could the
    email confirm the veracity of A.Y.s trial testimony unless the email was
    improperly used for the truth of its contents, or the consistency between the
    email and A.Y.s testimony was improperly viewed as confirmatory of her trial
    testimony.  If, as the appellant submits, the trial judge used the word corroboration
    as it is customarily used in the law of evidence, he erred in law in treating
    the email as corroborative.

[42]

Appellate review of a trial judges reasons does not, however, focus on
    individual words considered in isolation from the rest of the reasons or the entirety
    of the trial proceedings.  Words take their meaning from the context in which
    they are used.  In a criminal case, context includes the evidence led, the
    arguments made, and the rest of the trial judges reasons.  What might appear
    to be a judicial misstep, or an ambiguity in the language used in the reasons,
    is often clarified after a careful review of the whole of the reasons read in
    the context of the entirety of the proceedings:  see
Stirling
, at paras.
    13-14;
R. v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 19;
    and
R. v. B.A.
, 2008 ONCA 556, 238 O.A.C. 198, at paras. 33-34, leave
    to appeal refused, [2008] S.C.C.A. No. 415.  A proper contextual reading of the
    reasons will sometimes demonstrate that the trial judge used the word corroboration
    in a more limited sense than it is typically used:  see e.g.
R. v. G.M.
,
    [2000] O.J. No. 5007 (Ont. C.A.), at para. 2;
R. v. R.M.
, 2014 ONCA
    785, 317 C.C.C. (3d) 145, at paras. 69-76; and
R. v. Luceno
, 2015 ONCA
    759, 331 C.C.C. (3d) 51, at para. 58.

[43]

My
    review of the entirety of the reasons, considered in the context of the trial
    as a whole, reveals nothing that would support the claim that the trial judge
    meant to use the word corroboration in some way other than in its normal
    sense.  There is no express indication by the trial judge or either counsel, at
    any point in the trial, that they understood that the email could not be used for
    the truth of its contents or to support A.Y.s credibility because its contents
    were consistent with her testimony.  Unlike some of the cases referred to by Crown
    counsel, the trial judges use of the word corroboration is not clarified or
    modified by any other comment made by him in his reasons or anywhere else in the
    trial proceedings.

[44]

Crown
    counsel on appeal argued that an exchange between counsel for the accused and
    the trial judge during the defences closing submissions demonstrated that the
    trial judge appreciated that the email was not admissible for the truth of its
    contents.  I do not read the exchange in that way.  As I read it, the trial
    judge was simply indicating that he did not regard the sending of the email by
    A.Y. as necessarily inconsistent with the truth of her allegations.  I do not
    think that the comment says anything about the trial judges understanding of
    the evidentiary use that could be made of the email or its contents, or any
    limits on that use.

[45]

To
    the contrary, to the extent that counsels submissions shed light on how the
    trial judge may have used the email, one of Crown counsels submissions invited
    a misuse of the email.  Crown counsel argued that the consistency in A.Y.s
    description of what happened from her first telling in the email to her testimony
    supported her credibility.  He emphasized that A.Y. never wavered.

[46]

If
    the trial judge accepted this argument, and he did refer to the consistency
    between the content of the email and A.Y.s trial testimony in his reasons (see
    para. 16), he misused the email to buttress A.Y.s credibility by virtue of the
    consistency between the content of the email and her testimony.  This misuse of
    the email is arguably reflected in the trial judges description of the email
    as corroborative, that is, confirmatory of A.Y.s testimony.

[47]

I
    also cannot agree with Crown counsels reading of bullet point [2] and bullet
    point [3] as referring to a single evidentiary use of the email.  The potential
    ambiguity introduced by the word thus does not outweigh the other indicators
    demonstrating that the trial judge used the email for a different and improper
    purpose in the third bullet point.  The trial judge saw fit to refer to each in
    a separate bullet point.  The structure of the relevant paragraph strongly
    suggests that the trial judge saw the email as providing two separate bases for
    finding A.Y. credible.

[48]

The
    language used in bullet point [2] compared with the language used in bullet
    point [3] confirms that the trial judge used the email for two different
    purposes.  In bullet point [2], the trial judge referred not to the email itself,
    but to the sending of the email and the failure to follow-up on the email with
    the police as conduct that was consistent with one specific feature of A.Y.s
    evidence  her description of her state of mind after the incident.  The actual
    content of the email was clearly irrelevant to this analysis.

[49]

In
    bullet point [3], the trial judge refers to the email sent contemporaneously
    with the events as corroborating A.Y.s testimony, without any reference to a
    specific part of her testimony.  Bullet point [3] reflects a broader use of the
    email itself as confirmatory, not of a specific aspect of A.Y.s testimony, but
    of her testimony as a whole.  This broader use of the email to confirm A.Y.s
    credibility in a general sense is exactly the manner in which evidence which
    fits the generally accepted meaning of corroboration works to enhance the
    credibility of a witness.  The language of bullet point [3] indicates to me
    that the trial judge gave the word corroboration its generally accepted
    meaning.

[50]

Lastly,
    I consider the submission that a trial judge is assumed to know the law and
    that any ambiguity in the language used by the trial judge should, by force of
    that assumption, be resolved in favour of an interpretation of the reasons that
    is consistent with the applicable law.  No doubt, trial judges are assumed to
    be alive to the relevant legal principles.  That assumption, however, operates when
    there is a true ambiguity in the trial judges reasons.  Having considered
    these reasons as a whole, I do not see any ambiguity in the trial judges declaration
    that the email was corroborative of A.Y.s testimony.  I think he meant that it
    confirmed A.Y.s testimony.  In law, it could not have that effect.  I would
    add, that it would be somewhat ironic to resort to the assumption that a trial
    judge knows the law to interpret the word corroboration in a manner that is contrary
    to the accepted meaning of the word in the legal lexicon.

V

conclusion

[51]

The trial judge erred in law in holding that the email was corroborative
    of A.Y.s evidence.  The Crown, correctly in my view, does not argue that the
curative
    proviso
can be applied to this error.  I would allow the appeal, quash the
    conviction, and order a new trial.

Released: AH  FEB 03
    2017

Doherty J.A.

I agree Alexandra Hoy A.C.J.O.

I agree K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ralhan v. Singh, 2017 ONCA 147

DATE: 20170222

DOCKET: C61952

MacFarland, van Rensburg and Huscroft JJ.A.

BETWEEN

Shavinder Ralhan

Respondent/Applicant

and

Jaswinder Singh

Appellant/Respondent

Lance Carey Talbot for the appellant/respondent

No one for the respondent/applicant

Heard and released orally: February 14, 2017

On appeal from the order of Justice S.R. Goodman of the Superior
    Court of Justice, dated March 8, 2016.

ENDORSEMENT

[1]

The appellant appeals from the order of Goodman J. which dismissed his
    appeal from the order of Spence J. of the Ontario Court of Justice finding him
    in contempt in relation to an earlier access order.

[2]

Justice Spence has been the case management judge on this matter for a
    considerable period of time and was well familiar with the dynamics of this
    particular dispute.

[3]

The appellant appeals both the finding of contempt and the penalty
    imposed. The contempt finding was based on the appellants failure to comply
    with the order granting the respondent access to the children on two
    consecutive occasions. This matter has a lengthy history. The events which gave
    rise to the motion before Spence J. and the appeal from that order are detailed
    in the reasons of the respective judges.

[4]

On the finding of contempt, the appellant was disbelieved on his
    explanations for why he prevented the mother from seeing the children. While it
    might be argued that the respondent mother jumped the gun in proceeding
    directly to a contempt motion in the circumstances, on the factual findings Spence
    J. made, we would not interfere. As for the penalty, this is a matter for the
    discretion of the presiding justice to determine an appropriate remedy in all
    the circumstances of the particular case.

[5]

The trial judge ordered that the appellant pay costs of $10,000. This is
    a significant sum for the appellant to pay. He is a single father with full
    custody of the two boys and receives no child support. He is of modest means
    and works as a taxi driver. However, the mothers costs exceeded $15,000 and
    the motion judge reduced that amount to reflect the appellants means.

[6]

The order further provided that the appellant, respondent and children
    engage in counselling and that the appellant co-operate fully with all
    recommendations made by the counsellor, including with respect to the
    involvement of Mr. V., the mothers current partner.

[7]

The record is replete with allegations of abuse perpetrated by Mr. V.
    against the appellant, the respondent and their two children. The access order
    which is the subject to this proceeding contains a restraining order that Mr. V.is
    not to come within 500 metres of where the respondent is exercising her access
    to the two children.

[8]

In making this term neither the motion judge nor the appeal court
    considered the best interest of the children in relation to the order involving
    Mr. V. in the counselling. Further, it was in our view an error of law to order
    counselling that involved Mr. V. in the face of an order that restrains his
    ability to be anywhere near the children.

[9]

Accordingly, we would set aside subparagraph 4 of the order of Spence J.
    found at paragraph 27 of his reasons for decision and replace it with the
    following: The father shall attend and co-operate with the counselling
    process. In all other respects, the appeal is dismissed.

[10]

The
    appeal is allowed in part in accordance with these reasons.

[11]

Costs
    to the appellant fixed in the sum of $4,000 inclusive of disbursements and HST.

J. MacFarland J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: St. Jean v. Armstrong, 2017 ONCA 145

DATE: 20170221

DOCKET: C60876

MacFarland, van Rensburg and Huscroft JJ.A.

BETWEEN

Cindy St. Jean, Claude Pothier and Adam Pothier
    (by his Litigation Guardian Claude Pothier)

Plaintiffs (Appellants)

and

Richard Armstrong, Co-Op Taxi and Marcel
    Desjardins

Defendants (Respondents)

BETWEEN

Adam Pothier (by his Litigation Guardian Claude
    Pothier)

Plaintiff (Appellant)

and

Royal & Sun Alliance Insurance Company of
    Canada

Defendant (Respondent)

Geoffrey Adair, Q.C., and Kathleen Erin Cullin, for the
    appellant Cindy St. Jean

No one appearing for the respondents

Heard: February 13, 2017

On appeal from the judgment of Justice R.G.S. Del Frate
    of the Superior Court of Justice, dated May 4, 2015.

ENDORSEMENT

[1]

This is an appeal by the solicitors who represented the plaintiffs in
    two proceedings in the Superior Court which ultimately led to a motion for
    approval of the infant settlement reached in both of those proceedings.

[2]

It is not, as the title of proceedings would indicate, an appeal by
    those plaintiffs.

[3]

There are no responding parties to this appeal. The plaintiffs do not
    oppose this appeal nor do the respondents. The Childrens Lawyer was served
    with the appeal materials but takes no position on the appeal.

[4]

The solicitors appeal the motion judges decision to reduce their fee on
    the accident benefits claim, and to not award them GST/HST (which they claim at
    a prorated rate of 8%) in addition to the amount claimed for fees. They also
    appeal the motion judges refusal to grant a sealing order and his failure to
    refer their fees to an assessment officer.

[5]

At the outset of argument, Mr. Adair, on behalf of the solicitors,
    abandoned the appeal in relation to the sealing order and did not make any
    argument in relation to the assessment point.

[6]

The facts of the motor vehicle accident giving rise to this matter are
    set out in paragraphs two and three of the reasons of the motion judge. The
    infant plaintiff suffered a traumatic brain injury and has permanent sequelae
    as a result of the accident.

[7]

Mr. Wallbridge was retained shortly after the accident to act in
    relation the tort and accident benefits claims. In July, 2006, about two years
    post-accident, Mr. Pothier signed a contingency fee agreement (CFA). The
    relevant part of that document provides:

Assuming we obtain a settlement on your behalf, we will charge
    one third of your recovery, plus GST and disbursements.

[8]

Both actions ultimately settled before trial in the amounts set out in
    paragraphs eight to ten of the reasons of the motion judge:

Tort Action

Damages                         $550,000.00

Costs including HST       $110,000.00

Disbursements
$84,510.00

Total                                $744,510.00

Accident Benefits Claim

Total Amount                   $850,000.00

Costs
$125,000.00

Total                                $975,000.00

[9]

The global settlement, inclusive of costs, was $1,719,510.00. In accordance
    with the CFA counsel sought fees in the amount of $466,000.00 plus GST/HST of
    $37,280 plus disbursements of $84,510.00 for a total of $587,790.00.

[10]

The motion judge requested and received further information
to
    substantiate the claim for one third of the AB Claim
. He met with counsel
    twice and ultimately held a hearing on December 18, 2014.

[11]

He reviewed the jurisprudence in relation to CFAs and
    particularly in relation to those involving claims both in tort and for
    accident benefits. In particular he noted
Raphael Partners v. Lam
(2002), 61 O.R. (3d) 417 (S.C.), as well as
Henricks-Hunter v. 814888
    Ontario Inc.
, 2012 ONCA 496, among others. He also noted Justice Wilkins
    decision in
Adler v. State Farm
(2008), 92 O.R. (3d) 266, which as he
    noted
highlighted the difference between a CFA requiring court approval in
    a tort claim and an AB claim.

[12]

The motion judge approved the CFA in relation to the tort claim and
    approved the agreement in relation to that claim. He allowed fees in the sum of
    $183,333.00 but made the amount inclusive of HST. This amount reflected one
    third of the $550,000.00 amount allocated for damages.

[13]

He then reduced the amount sought for legal fees in relation to the AB
    claim from $280,500.00 to $170,000.00 again, such figure to be inclusive of
    HST. There was no issue in relation to the disbursements which were allowed as
    claimed.

[14]

In his reasons in paragraphs 25 through 40, the motion judge considered
    the nature of each of the distinct claims made.

[15]

He pointed out the difficulty he had in relation to the reconstructed docket
    entries.

[16]

He accepted the distinction in the jurisprudence between tort and
    accident benefit claims and contrasted the risk assumed by the firm in the tort
    claim compared to the relative lack of risk on the AB claim.

[17]

There was a serious risk that there could be no recovery on the tort
    claim but no such risk existed in relation to the AB claim  it wasnt a
    question of if but rather how much would be recovered with the limits
    prescribed by the legislation.

[18]

In his able argument, Mr. Adair emphasized the excellent result achieved
    by counsel in having achieved an overall settlement in excess of $1.7 million
    dollars. He stressed the high risk nature of the tort claim, the length of
    time counsels firm carried the case (some eight years before settlement was
    reached) and the high disbursements carried by the firm. None of this was lost
    on the motions judge. But while there was risk in the tort claim, there was little
    risk in the AB claim. Adam was covered under the policy, and while there were
    some differences over the amount to be paid for attendant care benefits,
    payments were made and the claim was ultimately settled after pleadings.

[19]

Counsel also pointed out that the sum of $275,000.00 had been paid in
    accident benefits, in addition to the $850,000.00 lump sum of the settlement
    amount. No fees were charged in relation to these monies and he says the lawyer
    is entitled to something for that.

[20]

We do not agree. First, until argument on this appeal, the lawyers never
    claimed any fees in relation to this amount. Secondly, it was not part of any
    settlement on which the CFA was based.

[21]

The initial agreement was that the plaintiffs would pay a percentage
    based on the settlement amount  not on any and all amounts they received.

[22]

We are not persuaded that the motion judge made any errors in his
    consideration of these claims. We agree with his conclusion that the AB claim
    did not entail the sort of risk and complexity that the tort claim did.

[23]

Nor do we agree that he erred in considering the tort and AB claims
    distinctly. Before the motion judge, counsel took that approach and sought to
    be paid on that basis of one third of the $550,000.00 allotted to the damages
    in the tort claim and one third of the $850,000.00 for the AB claim.

[24]

In our view, it was not an error for the motion judge to consider the
    fee claims for the tort action and the AB action separately. The claims were
    different with different risks associated with each of them.

[25]

We do not agree with the submission that the motion judge ought to have
    simply looked at the big picture and considered the claimed amount for fees
    of $466,000.00 in relation to the total amount of the settlement for damages
    which was $1,400,000.00 in both claims.

[26]

In our view, it was appropriate for him to treat these matters as he did
    and particularly so when it was the way counsel presented it to him.

[27]

Every case must be considered on its own particular facts and we are
    satisfied the motion judge carefully considered the issues raised in relation
    to this settlement and we would not interfere with his overall conclusion.

[28]

That said, an issue does arise in relation to the GST/HST. The CFA does
    clearly say that the lawyers were to be paid one third of any settlement plus
    GST and disbursements. The motion judge fixed the fees (which were percentage
    calculations) inclusive of HST. He approved the CFA in relation to the tort
    claim and accordingly the GST/HST on those fees ought to have been paid to the
    lawyers in addition to the fee amount. The GST/HST at the prorated rate of 8%,
    on fees of $183,333.00 is $14,666.64.

[29]

Similarly, in our view, although he reduced the fee on the AB claim to
    $170,000.00, the lawyers should have the GST/HST of $13,600.00.

[30]

When the lawyers raised this issue with the motion judge after the
    release of his reasons and asked that he amend this finding, the motion judge
    considered that he was
functus
at that point and accordingly the issue
    was left for this court.

[31]

In the result, the judgment is amended in accordance with these reasons.
    In all other respects the appeal is dismissed.

J. MacFarland J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Scott (Re), 2017 ONCA 94

DATE: 20170202

DOCKET: C62083

Feldman, MacPherson and Hourigan JJ.A.

IN THE MATTER OF: DAVID THOMAS SCOTT

AN APPEAL UNDER PART XX.1 OF THE
CODE

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

Dena Bonnet, for the respondent Attorney General of
    Ontario

Breese Davies and Owen Goddard, for the respondent David
    Thomas Scott

Heard: December 15, 2016; Disposition delivered orally December
    15, 2016 with reasons to follow

On appeal against the disposition of the Ontario Review
    Board dated March 23, 2016.

Feldman
    J.A.:

[1]

The hospital appeals from paragraph 3) of the disposition of the ORB amended
    on April 20, 2016, which provides:

AND IT IS FURTHER ORDERED that the
    accused have passes for 4 hours, up to twice a year, to have dinner at the home
    of the accuseds mother in Coldwater, Ontario, escorted by staff.

[2]

The original disposition of the Board included the passes home as part
    of the discretionary powers of the hospital, along with attending for medical
    or compassionate purposes outside the hospital and grounds privileges beyond
    the secure perimeter.

[3]

The Board then issued its amended disposition together with its reasons
    for disposition on April 20, 2016. The amended disposition contained the new
    mandatory pass provision based on the reasons of the majority of the Board. In
    minority reasons, Ms. Kert dissented from the provision that required the
    hospital to provide passes to Mr. Scott to be escorted to his mothers home for
    two meals.

[4]

The hospitals main objection to the order is that it is mandatory and
    does not give the hospital its normal discretion to implement only if and when
    circumstances permit. The hospital also objects that the order was made without
    notice to it that the order was to be mandatory. Third, the hospital submits
    the Board erred in making the order without notice to Mr. Scotts mother, who
    was not a party to the proceeding, but is bound by the result. Fourth, the
    hospital submits that there was no evidentiary basis from the treating
    psychiatrist for the order. Finally, the hospital submits that the Board
    misapprehended the treating psychiatrists evidence about the potential risk if
    Mr. Scott were to be escorted to his mothers home.

Factual Background

[5]

Mr. Scotts index offences were sexual assault of a 19-year-old woman
    with threat to use a weapon and sexual assault causing bodily harm of an 8-year-old
    girl, which both occurred in November of 1987. Mr. Scotts mental illness was
    caused by a severe head injury as a result of a car accident when he was 11
    years old. He has been detained at Waypoint since March 1989, in the Provincial
    Forensic Programs Division unit, which is the highest security, all-male unit.

[6]

At the hearing, it was agreed that Mr. Scott continues to represent a
    significant threat to the safety of the public. The hospital report recommended
    that he remain in the Provincial Forensic Programs Division at Waypoint, which
    has a large secure perimeter and numerous therapeutic, recreational and
    educational opportunities that would allow him a better quality of life than in
    a less secure setting. The report also recommended that his hospital grounds
    privileges, escorted by staff, be continued.

[7]

Mr. Scott has significant support from his family. His mother lives in Coldwater,
    about 20 minutes from Waypoint, and visits him there often. The proximity to
    family was an important reason for keeping Mr. Scott at Waypoint. Although
    there is a less secure unit at Waypoint, it is co-ed and not appropriate for Mr.
    Scott. Therefore any move to a less secure unit farther away would disrupt the
    easy access by his family.

[8]

At the hearing, the treating psychiatrist, Dr. Danyluk, agreed with the
    suggestion from Mr. Scotts counsel that Mr. Scott be assessed at the Chedoke
    Acquired Brain Injury Clinic in Hamilton, with the view to seeing if there is
    any relevant medical treatment that could help him. Counsel also raised with
    Dr. Danyluk whether the privilege of having a meal at his mothers home would
    be a reasonable goal for him for the future, if he were moved to the General
    Forensic Unit. She said she would be open to it as a goal for the next few
    years. She explained that the secure unit does not manage risk in the
    community.

[9]

When the lay member of the Board pursued this questioning with Dr.
    Danyluk, Dr. Danyluk referred the issue to the Vice President of Clinical
    Services, Mr. Desroches who was called in to testify. He explained a number of
    concerns with the suggestion, including that staff on the secure unit are not
    trained to do community escorts, budget constraints, and the likelihood that
    other patients whose families live much further away could request a similar
    privilege, which would be very difficult to accommodate.

[10]

The Board released its original disposition on March 23, 2016,
    delegating to the person in charge of Waypoint the discretion regarding certain
    privileges for Mr. Scott including up to two escorted passes of four hours to
    have a meal at his mothers home. Then on April 20, 2016, the Board released an
    amended disposition, stating that through oversight, the original disposition
    contained an error. The amended disposition removed the discretion of the
    hospital regarding the two escorted visits.

[11]

The majority reasons that explained the disposition gave the following explanations
    for ordering the escorted home visits:

·

Dr. Danyluk felt [Mr. Scotts] risk in the community could be
    appropriately managed by having him escorted to his mothers home;

·

The reasons offered by the Vice President of Clinical Services did
    not appropriately [take] Mr. Scotts needs into account;

·

Seeing his mother and other family members at his mother's home
    is something [Mr. Scott] wants and is likely to be therapeutic for him;

·

While it is possible for Mr. Scott, under current Waypoint
    policies, to have meals with his mother on the Waypoint premises  [t]he
    Majority finds there is a significant distinction between Mr. Scott visiting
    with his mother at Waypoint and visiting her at her home. Accordingly, escorted
    visits to his mother in her home outside of Waypoint must also be implemented
    as a more appropriate way to meet his needs;

·

Granting Mr. Scott visits outside Waypoint to his mother's home
    would represent a departure from Waypoint policy. The Majority of the Board
    notes that permitting Mr. Scott to exercise such visits would be a rare
    exception due to his particular circumstances that are not found in other
    long-term patients at Waypoint;

·

[O]rdering such visits outside of the medical, dental or
    compassionate clause on a limited basis is important to Mr. Scotts ongoing
    quality of life, meets his needs, is likely to be therapeutic and affords him
    the utmost liberty compatible with his situation; and

·

While the Majority of the Board could have found a visit to his
    mother's home given her age constituted a compassionate reason for entering the
    community, it wished to avoid a conflict with any hospital interpretation of
    that clause and to make it abundantly clear by means of a specific Order that
    such visits must occur, assuming Mr. Scott's ongoing behavioural stability.

[12]

The legal member of the Board did not agree with granting this privilege
    to Mr. Scott. In her dissenting reasons, she stated that there was no
    sufficient reason to make an exception from the hospital policy of no escorted
    visits outside the secure perimeter except for certain medical, dental and
    compassionate purposes. However, she suggested that the policy could be reconsidered
    for the benefit of long-term detainees such as Mr. Scott.

Issues

[13]

The hospital raises five issues on appeal:

1)

Was the Boards
    decision to impose a mandatory order an error in law and unreasonable?

2)

Did the Board
    err by making the order mandatory without notice to the hospital?

3)

Did the Board
    err by making an order that binds a third party without notice or consent?

4)

Was there an
    evidentiary basis for the order?

5)

Did the Board
    misapprehend the evidence about risk management in the community?

[14]

The hospital seeks an order quashing the escorted passes provision or
    alternatively, an order for a new hearing.

[15]

The Crown supports the position of the hospital that the mandatory order
    made by the Board was unreasonable and an error in law. The discretion given to
    the hospital to implement privileges that affect the safety of the community is
    a risk management tool that protects the public. Further, the Board erred in
    law by imposing an order that binds the mother without her consent. However, the
    Crowns position on remedy is that the court should set aside the order only to
    the extent that it imposes a mandatory obligation, and reinstate the original
    discretionary order.

[16]

Mr. Scotts position is that no error was made, and the appeal should be
    dismissed.

[17]

Following oral argument, the court announced its decision with reasons
    to follow. The appeal is allowed, the mandatory part of the order is set aside
    and the original order with discretion to the hospital is re-instated.

Analysis

1.       Was the Boards decision to impose a mandatory order
    an error in law and unreasonable?

[18]

Having found that Mr. Scott continued to pose a significant threat to
    the safety of the public and that the least onerous and least restrictive disposition
    required his continued detention in the secure Provincial Forensic Programs
    Division at Waypoint, it was the Boards role to set out the general parameters
    of Mr. Scotts detention, leaving the day-to-day management decisions to the
    hospital. See:
R. v. Petroniuk
, 2014 ONSC 6951, 322 C.R.R. (2d) 276;
Conway
    (Re)
, 2016 ONCA 918, where the courts observed that it is not the role of review
    boards to micromanage the day-to-day operations of the hospital.

[19]

In setting out the parameters of the disposition, the Board must balance
    the twin goals of public safety and fairness to the detained person as
    described by the Supreme Court of Canada in
Pinet v. St. Thomas Psychiatric
    Hospital
, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 19, as follows:

The objective is to reconcile the twin goals of public safety
    and treatment. In this process of reconciliation, public safety is paramount.
    However, within the outer boundaries defined by public safety, the liberty
    interest of an NCR accused should be a major preoccupation of the Review Board
    when, taking into consideration public safety, the mental condition and other
    needs of the individual concerned, and his or her potential reintegration into
    society, it makes its disposition order.

[20]

However, within those parameters, the hospital requires the flexibility
    to implement the disposition in accordance with the day-to-day needs of the
    detained person and the circumstances that may arise. In
R. v. M.L.C.
,
    2010 ONCA 843, 104 O.R. (3d) 450, this court discussed the relationship between
    the roles of the Board and the hospital in formulating and implementing the
    least onerous and least restrictive disposition at para. 28:

While the Board has the jurisdiction to review a patients
    disposition at a particular hearing, it is not in a position to oversee the
    patient on a day-to-day basis and to refine the restrictions on his or her
    liberty. This is why the statutory framework gives the hospital the ability and
    flexibility to monitor patients who suffer from mental disorder. The
    responsibility for adjusting the restrictions for such a patient comes from s.
    672.56(1), which allows the Board to delegate to the hospital certain decisions
    about the patients liberty. Any restrictions the hospital places on the
    patient must fall within the envelope of the conditions enumerated by the Board
    in its disposition. As a safeguard, any decision by a hospital that significantly
    restricts a patients liberty for more than seven days must be considered by
    the Board in a restrictions review.

[21]

In this case, the efficacy and propriety of any visit to Mr. Scotts
    mother for a meal would depend on his clinical state, the availability of staff,
    the consent and convenience of his mother, as well as any other administrative
    issues that could arise. While it made the order mandatory, the Board
    recognized that Mr. Scotts clinical state should be determinative of his
    ability to make such visits, as it stated in the reasons that the visits must
    occur, assuming Mr. Scotts ongoing behavioural stability.

[22]

The record discloses that the hospital has a policy of not providing
    escorted visits to the community for patients on the secure unit. In her argument,
    counsel for the Attorney General submitted that the Board may have removed any
    implementation discretion from the hospital in order to ensure that in spite of
    the policy, the hospital would implement the visits. If that was the case, then
    the Board erred in failing to appreciate that a hospital is already required to
    implement a discretionary order if the circumstances permit it, in order to
    comply with the Boards directive.

[23]

We accept that submission. The original order was for the creation of a
    program for Mr. Scott within the Provincial Forensic Programs Division of
    Waypoint where the hospital may permit up to two escorted passes for him to
    have dinner at his mothers home. Under that order, the hospital would have
    been required to exercise that discretion with a view to implementing the
    Boards intention to give Mr. Scott certain liberty privileges, if it was
    possible to do so. The Board would not have been entitled to refuse to
    implement the order because of its pre-existing policy.

[24]

The hospital has patients like Mr. Scott who are long-term residents of
    the unit whose interests may be served by facilitating community visits, like
    family visits for a meal as contemplated for Mr. Scott. By making an order that
    allows the hospital to do that in appropriate cases and where circumstances
    allow it to be done safely, the Board can give the hospital the opportunity to
    review its policy to determine whether it can and should be modified to be able
    to accommodate the legitimate needs of particular patients, within the context
    of the need for public safety.

[25]

However, by making the order mandatory, with no discretion accorded to
    the hospital to implement it only if and when circumstances permitted for the
    benefit of Mr. Scott and while ensuring public safety, the Board erred in law and
    acted unreasonably.

2. Did the Board err by making the order mandatory without
    notice to the hospital?

[26]

The issue of according Mr. Scott the privilege of escorted visits to his
    mothers home for a meal arose during the hearing as a result of questions from
    counsel for Mr. Scott followed up by questions from the Board. The hospital
    submits that making such an order mandatory on the hospital was not raised
    squarely with proper notice to the hospital to be able to respond.

[27]

The courts decision to remove the mandatory aspect of the order and
    leave its implementation in the discretion of the hospital addresses the
    concern raised by this issue.

3.       Did the Board err by making an order that binds a
    third party without notice or consent?

[28]

Both the hospital and the Crown submit that the Board erred by imposing
    an order that affects Mr. Scotts mother directly by requiring her
    participation without notice to her or her consent. Mr. Scotts position is
    that if his mother did not want him to visit and she so advised the hospital,
    then the hospital could request a mandatory review of the disposition under s.
    672.81(2) of the
Criminal Code
and explain to the Board why the order
    could not be implemented.

[29]

Similar to the issue regarding notice to the hospital, the courts
    decision to remove the mandatory aspect of the home visit order also addresses
    the concern raised by the issue of binding Mr. Scotts mother without her
    consent. However, we note that it is clear that such visits may not be imposed
    on Mr. Scotts mother without her consent and co-operation. Consultation with
    her should be part of the considerations and arrangements necessary to
    implement the order.

4. Was there an evidentiary basis for the order?

[30]

The hospital also submits that there was no evidentiary basis that
    visits to Mr. Scotts mother for a meal would have a therapeutic benefit for
    him, especially as he could have a meal with her on the grounds of the
    hospital.

[31]

In our view the Board was entitled to conclude, based on its discussion
    with Dr. Danyluk during her evidence, that according Mr. Scott the privilege of
    visiting his mother at the family home would be beneficial for him, either now
    or in the future, if it were possible to accommodate. There was no suggestion
    that such visits would have a negative effect on him.

[32]

In the normal course, according privileges to a patient that can be
    accommodated and facilitated by the institution, which has the effect of
    granting the patient more freedom while under the supervision of the Board,
    constitutes an important part of the process of the patients rehabilitation
    and reintegration into society. It is consistent with the Boards mandate to
    protect the public and be fair to the NCR accused who is held under its
    jurisdiction.

5.       Did the Board misapprehend the evidence about risk
    management in the community?

[33]

The hospital submits that the Board misapprehended Dr. Danyluks
    evidence about the hospitals ability to manage Mr. Scotts risk in the
    community. It submits that although Dr. Danyluk initially appeared to testify
    that she thought the risk could be managed, she later clarified this. In her
    clarification, she indicated that she was speaking about risk management in a different
    environment, namely if Mr. Scott were to reside in a different facility with
    staff trained to manage risk in the community.

[34]

In our view, the Board did not misapprehend this evidence. In its
    reasons, the Board correctly noted that Dr. Danyluk testified that Mr. Scotts
    risk could be managed if he were to be escorted to his mothers house. The
    Board went on to address the evidence that staff at Mr. Scotts portion of the
    facility lacked training in managing risk in the community. There was no
    misapprehension of the evidence.

Result

[35]

The Board erred by imposing a mandatory order on the hospital to take Mr.
    Scott for up to two escorted visits to his mothers home for a meal, rather
    than make the order with implementational discretion in the person in charge of
    the hospital. The person in charge must be able to ensure that Mr. Scott is
    able to handle such a visit, that his mother is prepared to accommodate it, and
    that the hospital is able to facilitate it.

[36]

The appeal is allowed. Paragraph 3 of the amended disposition is set
    aside and paragraph 2(c) of the original disposition is reinstated.

Released: February 2, 2017 (K.F.)

K.
    Feldman J.A.

I
    agree. J.C. MacPherson J.A.

I
    agree. C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Schulstad v. Schulstad, 2017 ONCA 95

DATE: 20170203

DOCKET: C61349

Weiler, Rouleau and Roberts JJ.A.

BETWEEN

Campbell Karl Schulstad

Respondent (Applicant)

and

Diann Borden Schulstad

Appellant (Respondent)

Pam MacEachern, for the appellant

Ron Paritzky, for the respondent

Heard: November 7, 2016

On appeal from the order of Justice L. Lacelle of the Superior
    Court of Justice, dated October 23, 2015.

Roberts J.A.:

[1]

The appellant wife appeals the order terminating the respondent
    husbands obligations to continue to pay spousal support and maintain life
    insurance for her benefit, past the respondents retirement date of June 1,
    2016.

Background

[2]

The appellant is 69 years old and the respondent is 70. They were
    married for over 24 years when they separated in 1990. They have one child who
    is now an independent adult.

[3]

The appellant resides in Ontario and has not worked outside the home
    since before their separation. The respondent resides in Kentucky, in the United
    States, where he has enjoyed a very successful and well-remunerated career as a
    general surgeon.

[4]

On July 30, 1996, Byers J. ordered the respondent to pay spousal support
    of $7,500 CAD per month, indexed each year based on the Consumer Price Index
    for Canada, and to maintain insurance policies in favour of the appellant. The
    support order was based on both compensation and need, recognizing the parties
    long marriage, the appellants sacrifices in supporting her husband while he
    completed medical school, and the appellants physical and psychological
    difficulties at that time.

[5]

At the time of Byers J.s order, the respondent was working as a general
    surgeon earning an income of $275,000 CAD. His income over the years has been
    well in excess of $200,000 USD. For example, his 2014 income was $288,836 USD.

[6]

In January 2014, the respondent brought an application to terminate his
    spousal support and life insurance obligations effective June 1, 2016, on the
    basis that he was planning to retire in June 2016. He also sought to reduce
    these obligations leading up to his retirement date.

[7]

At the time of the respondents application, he was paying the appellant
    over $10,000 CAD per month in spousal support and maintaining life insurance
    policies at a monthly cost of about $300 USD.

The Application Judges Decision

[8]

The application judge heard the matter in August 2015, ten months before
    the respondent intended to retire.

[9]

The application judge accepted that the respondent was going to retire
    from employment in June 2016 and held that he was acting in good faith in
    seeking to retire.  She stated at para. 28 of her reasons:  I do not find the
    motion is premature, and rather, find that the Applicants timing in bringing
    it was a responsible approach to the issue.

[10]

She also accepted the respondents evidence that his income would be
    reduced from an annual salary of over $250,000 USD to an annual income from
    pensions and investments of about $35,000 to $40,000 USD. During his oral
    testimony, the respondent estimated his annual pension income would be about
    $30,000 USD, plus a small amount of income from savings, for a total of about
    $35,000 to $40,000 USD per year.

[11]

The application judge concluded that the respondents approaching retirement,
    and consequent reduction in income, was a material change in circumstances
    since Byers J.s order.

[12]

The application judge determined that the parties respective assets and
    income would be about equal after the respondents retirement. Therefore, the
    application judge terminated the respondents spousal support and insurance
    obligations, effective on the anticipated date of his retirement in June 2016.

Standard of Review

[13]

An application judges order for spousal support is entitled to
    significant deference on appeal. An appeal court is not entitled to interfere
    with a spousal support order simply because it would have balanced the relevant
    factors differently or arrived at a different conclusion:
Hickey v. Hickey
,
    [1999] 2 S.C.R. 518, at paras. 10-12. However, an appeal court must intervene
    where the application judges reasons disclose an error in principle, a
    significant misapprehension of the evidence, or if the award is clearly wrong:
Hickey
,
    at para. 11.

Discussion of the Issues

[14]

The appellant raises the following issues:

(a)        Did the application judge err
    in considering the respondents application because it was premature?

(b)        Did the application judge err
    in finding that the respondents retirement and reduction in income were a
    material change in circumstances?

(c)        Did the application judge err
    in finding that the parties would be in financially similar circumstances after
    the respondents retirement?

[15]

For the reasons that follow, I would not give effect to the appellants
    submissions on the first two issues, but agree with her on the final issue. In
    my view, the application judge erred in finding that the parties would be in
    financially similar circumstances after the respondents retirement.

Analytical Framework

[16]

It is helpful to consider the issues on this appeal in the context of
    the relevant legislation and jurisprudence.

[17]

Section 17(a) of the
Divorce Act
, R.S.C. 1985, c. 3 (2
nd
Supp.) provides that a court of competent jurisdiction may make an order
    varying, rescinding or suspending, prospectively or retroactively a support
    order or any provision thereof on application by either or both former
    spouses.

[18]

Before a variation order in respect of spousal support order can be
    made, s. 17(4.1) of the
Divorce Act
requires that:  the court shall
    satisfy itself that change in the condition, means, needs or other
    circumstances of either former spouse has occurred since the making of the
    spousal support order or the last variation order made in respect of that
    order, and, in making the variation order, the court shall take that change
    into consideration.

[19]

The Supreme Court of Canada established the analysis to be applied by
    the court in considering a variation application in
Willick v. Willick
,
    [1994] 3 S.C.R. 670, at p. 688, as follows:

The approach which a court should take is to determine first,
    whether the conditions for variation exist and if they do exist what variation
    of the existing order ought to be made in light of the change in circumstances.

In deciding whether the conditions for variation exist, it is common ground
    that the change must be a material change of circumstances.

[20]

With these general principles in mind, I turn to consider each of the
    issues in turn.

(a)     Did the application judge
    err in considering the respondents application because it was premature?

[21]

The issue of prematurity is an issue at the first stage of the
Willick
analysis. In other words, prematurity is an issue impacting the threshold
    question of whether or not there has been a material change in circumstances. It
    is well-established that any decision to vary must not be made in accordance
    with events which may or may not occur:
Messier v. Delage
, [1983] 2
    S.C.R. 401, at p. 416. An application to vary will be premature if based on
    speculative or uncertain changes in circumstances:
Dufresne v. Dufresne
,
    2009 ONCA 682.

[22]

The appellant submits that the application judge erred in considering
    the respondents application because it was premature; the respondent had not
    yet retired and was unlikely to retire given that his monthly expenses well
    exceeded his projected monthly income. The appellant relies on
Vaughan v.
    Vaughan
, 2014 NBCA 6, 415 N.B.R. (2d) 286, for this submission.

[23]

I do not agree. In the particular and fact-specific circumstances of
    this case, it was open to the application judge to decide that the respondents
    application was not premature. This distinguishes the present case from
Vaughan
.

[24]

In
Vaughan
, the payor was 61 years old and his retirement was
    merely speculative. The New Brunswick Court of Appeal set aside an order
    varying the payors spousal support obligation if and when he retired.

[25]

In the present case, the application judge was satisfied on the evidence
    before her that the husbands retirement was a certainty. There was sufficient
    evidence available to the application judge at the time of the hearing to find
    that the respondent would retire in June 2016 at age 70 as planned. The
    respondent had given notice to his employer, and his employer was proceeding
    with a process to replace him.

[26]

The application judge was also of the opinion that there was sufficient
    evidence regarding the parties respective assets and incomes upon the
    husbands retirement to enable her to reach a decision as to whether the
    application was premature. This was a finding that was available to her on the
    evidence. Although her interpretation of this evidence was in error (to which
    issue I return later in these reasons), there is no basis to interfere with her
    conclusion that the respondents application was not premature.

[27]

That said, I would not endorse as a general principle the application
    judges encouragement of the early timing of the respondents application
    because of the potential problems created by premature applications to vary.
    This case is exceptional in that there was evidence to support the application
    judges conclusion that the respondent would, indeed, retire, that the change
    in income of the respondent and support payments following his retirement would
    be very significant, and that there was sufficient financial information to
    permit the application judge to determine that his retirement would be a material
    change in circumstances.

[28]

In most cases, such an application so far in advance of the alleged
    material change in circumstances will run counter to the fundamental principle articulated
    in both legislation and jurisprudence that a material change must have already
    occurred in order for a court to have jurisdiction to vary a final order.  This
    is because there is a real likelihood that the financial disclosure and other
    evidence in support of an alleged material change in circumstances will be speculative
    due to its prematurity. Encouraging premature, speculative applications to vary,
    which lack the necessary solid and certain evidentiary foundation, will simply
    increase the already extremely high costs of litigation in family law
    proceedings.

(b)     Did the application
    judge err in finding that the respondents retirement and reduction in income
    were a material change in circumstances?

[29]

The appellant submits that the respondents proposed retirement could
    not constitute a material change in circumstances because it was within the
    contemplation of the parties and Byers J. when the original spousal support
    order was made. The appellant refers to Byers J.s statement that the appellant
    is entitled to spousal support forever.

[30]

She also submits that, regardless of whether or not the respondent was
    acting in bad faith by trying to frustrate his support obligations, his
    decision to retire was unreasonable. The respondent still has the capacity to
    work, and has failed to financially prepare for retirement. By this point in
    his life, the respondent ought to have amassed significantly more assets to
    provide better post-retirement income. The respondents retirement constitutes voluntary
    unreasonable unemployment, as in
Bullock v. Bullock
(2004), 48 R.F.L.
    (5th) 253 (Ont. S.C.) and
Innes v. Innes
, 2013 ONSC 2254 (S.C.).

[31]

I would not accept these submissions. While the respondents retirement
    was within Byers J.s contemplation, the effect of that retirement was not
    considered in fixing the amount of support nor was there any evidence in the
    record to permit him to assess the financial impact of retirement. Byers J.s
    determination that the appellant was entitled to spousal support forever
    could not foreclose the respondents future application to reduce or terminate
    his support obligations upon the material change in his financial circumstances
    caused by his complete retirement from remunerative employment. Indeed, Byers
    J. appears to have alluded to this possibility when he cautioned the parties
    that if the respondent stops working, the money stops.

[32]

Further, the application judges findings that the respondent was
    sincere in his proposed retirement and intended to live frugally within his
    reduced means were available to her on the record.

[33]

While the respondents financial planning certainly could have been
    better, it was within the application judges discretion to find that the
    respondents retirement at age 70, after a long and stress-filled career as a
    surgeon, was reasonable in the circumstances. This is not a case like
Bullock
or
Innes
where the payors voluntarily took early retirement at age 62.

(c)     Did the application
    judge err in finding that the parties would be in financially similar
    circumstances after the respondents retirement?

[34]

The appellant submits that the application judge erred in concluding
    that the parties present financial circumstances were relatively equal, such
    that spousal support should be terminated.

[35]

I agree. The application judge erred in finding that the factors that
    resulted in economic disadvantage to the appellant during the marriage and
    after its breakdown no longer existed and that the lost advantage had been
    recovered by the appellant.

[36]

In paras. 41-42 and 44-45 of her reasons, the application judge set out
    her conclusions on this issue:

In this instance, I find that the [respondent]
    and [appellant] are in substantially different positions than at the time the
    original order was made. They are now in similar financial positions. The [appellant]
    claims a net worth of ... $942,618.42.  In addition to this asset base, the [appellant]
    receives Canada Pension Plan benefits. While currently her entitlement to Old
    Age Security is clawed back, those funds will be available to her if support
    payments cease.

The [respondents] most recent
    financial statement of July 2015 indicates he has a net worth of $819,873.88 in
    U.S. funds. Since he will be living his retirement in the United States,  the
    value of those funds in Canadian dollars is irrelevant to this analysis.

I accept the [respondents]
    projection of his retirement income as being in the range of $35,000.00 to
    $40,000.00 per year. Manifestly,  he cannot make monthly support payments in
    excess of $10,000.00 in Canadian funds.

I find that maintaining this
    level of support will result in an inequitable sharing of the economic impact
    of the marriage and its breakdown. While the [appellant] is entitled to
    maintain a reasonable standard of living in retirement, her capital assets and
    government pensions will permit her to have a similar income to that of the
    [respondent] if the spousal support order is terminated upon the [respondents]
    retirement.

[37]

The application judge appears to have unduly focussed on the parties
    respective net worth. In doing this, she made a significant error by failing to
    appreciate the material disparity between the parties expected incomes.

[38]

More specifically, the following errors led the application judge to
    mistakenly believe that the appellants assets and government pensions would
    permit her to have a similar income to that of the respondent.

[39]

First, the application judge did not consider the value of the
    respondents net worth and anticipated retirement income in Canadian dollars. The
    application judge held that the Canadian dollar value was irrelevant because
    the respondent lived in the United States. This was an error. By failing to convert
    the respondents net worth and anticipated retirement income into Canadian
    dollars, the application judge could not fairly compare them to those of the
    appellant and thereby assess whether the parties were in similar financial
    positions.

[40]

Second, the application judge miscalculated the respondents potential
    investment income from his assets and treated the parties assets differently.
    As stated above, she accepted the respondents evidence that his annual pension
    income would be about $30,000 USD and his other income would be about $5,000 to
    $10,000 USD, for a total of $35,000 to $40,000 USD.

[41]

The respondents estimate of an expected return on his investments of
    between about 1 to 2% appears to be inconsistent with the evidence of what, in
    the absence of any other explanation, seems to be his actual return on
    investments in the record. For example, the respondents IRA Account grew from
    $416,274.70 in 2014 to $467,185.00 in 2015, reflecting an increase of over 10%
    in that year. There is no indication in the respondents statement of his
    expenses that he contributed anything to his IRA Account, suggesting, in the
    absence of any other explanation, that the increase must largely represent a
    return on investment. If a 10% return on investment is applied, it would result
    in the respondent having notional investment income of over $50,000.00 USD,
    rather than $5,000 to $10,000 as the respondent estimated. Accepting the
    appellants application of a USD/CAD currency conversion rate of 1.3, the
    respondents potential retirement income of $50,000 USD would convert to
    $65,000 in Canadian dollars.

[42]

I also note that the respondents modest estimated annual rate of return
    on his investments has not been adopted in recent case law. For example, in
Berta
    v. Berta
, 2016 ONSC 5723, a 6% interest rate was used; this court in
Mason
    v. Mason
, 2016 ONCA 725, 403 D.L.R. (4th) 64, attributed a 4.5% interest
    rate; and the British Columbia Court of Appeal

in
Parrett v.
    Parrett
, 2016 BCCA 151, 78 R.F.L. (7th) 1, applied a 4% interest rate.

[43]

Further, in accepting the respondents estimate, the application judge erroneously
    excluded the potential income that could be generated from the notional
    investment of the equity from the respondents house. However, in contrast, the
    application judge included the value of the appellants house while assessing
    her income potential.

[44]

As identified by the application judge at para. 42, the respondents net
    worth is $819,874 USD, including the value of his house. This figure is based
    on his 2015 financial statement, showing that his assets of $918,869 USD minus
    his debts of $98,995 USD are equal to $819,874 USD. The respondents net worth
    of $819,874 USD includes non-income producing assets totalling $46,950 USD
    (paintings, sculptures, a computer, and cars). After subtracting these
    non-income producing assets from the respondents net worth, the value of his
    income-producing assets is $772,924 USD. Again accepting the appellants
    application of a USD/CAD currency conversion rate of 1.3, the respondents net
    worth of $819,874 USD would be equivalent to $1,065,836 CAD. His
    income-producing assets of $772,924 USD would have a value of about $1,004,801
    CAD.

[45]

The appellants net worth is $942,618 CAD, including her house. Her 2015
    financial statement shows that her assets of $893,695 CAD minus her debts of
    $51,077 CAD are equal to $842,618 CAD. At the time of the hearing before the
    application judge, the appellants net worth was closer to $942,618 CAD,
    because the value of her home had increased by $100,000 CAD. The appellants
    net worth of $942,618 includes non-income producing assets totalling $10,500
    (furniture and a tractor). After subtracting these non-income producing assets,
    the value of the appellants income-producing assets would be $932,118 CAD.

[46]

The difference of $72,683 between the appellants and the respondents
    respective net income-producing assets is material.  The application judge
    erred in not taking this material difference into account in her analysis of
    whether spousal support and insurance should be reduced or terminated.

[47]

Third, the application judge did not recognize that the respondents
    yearly pension income of $30,000 USD is significantly greater than the
    appellants annual Canada Pension Plan (CPP) of about $3,500 CAD or any
    potential Old Age Security (OAS) income, and that the disparity is even
    greater once the $30,000 USD is converted into Canadian dollars, which amount, using
    a 1.3 conversion rate, becomes $39,000 CAD.

[48]

Given the respondents materially larger assets and potential income, it
    was an error for the application judge not to assess whether the spousal
    support and insurance should be reduced rather than terminated.

[49]

As I earlier indicated, I would not interfere with the application
    judges findings that the respondents retirement and dramatic reduction in
    income will result in a material change in circumstances.  The respondents
    material change in circumstances must necessarily affect the amount of spousal
    support and insurance that the respondent should be required to pay. The
    question is what should the reduction be?

Spousal Support

[50]

Based on the evidence before her, the application judge erred in failing
    to conclude whether the respondents obligations for spousal support should be
    reduced rather than terminated. However, to be fair to the application judge,
    the appellants steadfast position on the application, as on appeal, was that
    the application for termination or reduction of spousal support was premature
    and should be dismissed.

[51]

In my view, the evidence establishes that the initial compensatory and
    need bases for the appellants entitlement to support continue to exist. The
    disparity in the parties potential incomes and income-producing assets is
    indicative of the appellant suffering economic disadvantage arising from her
    role during the parties long-term marriage and its breakdown. In contrast, the
    respondent gained a significant economic advantage from the marriage that has
    not been affected by the marriage breakdown. A finding that the appellant is no
    longer entitled to support would undermine the objectives under s. 17(7) of the
Divorce Act
.

[52]

The
Spousal Support Advisory Guidelines
(Ottawa: Department of
    Justice Canada, 2008) (the SSAGs) by Carol Rogerson and Rollie Thompson are a
    useful tool in calculating spousal support on a variation application:
Gray
    v. Gray
, 2014 ONCA 659, 122 O.R. (3d) 337.

[53]

The SSAGs provide a number of factors to consider in determining the
    appropriate quantum of support within the ranges. The three most relevant
    factors in this case are the strength of the appellants compensatory claim;
    her need; and the respondents needs and ability to pay.

[54]

Section 9.1 of the SSAGs states, [a] strong compensatory claim will be
    a factor that favours a support award at the higher end of the ranges both for
    amount and duration. In accordance with compensatory principles, the more the
    recipient gave up in the paid labour market, the higher support should be.

[55]

The appellant has a very strong compensatory claim. This was a long-term
    traditional marriage where she made significant sacrifices for the respondent.
    During the marriage, she worked to support the family while he finished medical
    school. The family then relocated to Ottawa where the respondent completed his
    residency in general surgery. As Byers J. stated, [t]ogether  they made him a
    doctor. The respondent thereafter continued to further his career working as a
    surgeon while the appellant stayed home to care for their child.

[56]

The issue of need is measured against the parties marital standard of
    living:
Mason
, at para. 201. Section 9.2 of the SSAGs states, [i]n a
    case where the recipient has limited income and/or earning capacity, because of
    age or other circumstances, the recipients needs may push an award to the
    higher end of the ranges for amount and duration.

[57]

The appellant has a continuing need for support relative to the parties
    marital standard of living. As Byers J. stated, [w]e are not talking about
    subsistence living here. This woman was married to a high-earning medical
    practitioner. Further, the appellant continues to have limited earning
    capacity.

[58]

Section 9.4 of the SSAGs addresses the payors needs and ability to pay.
    Need and limited ability to pay on the part of the payor may push an award to
    the lower ends of the range.

[59]

The respondents income and ability to pay will significantly decrease
    post-retirement. The respondents 2015 financial statement shows annual
    expenses greater than his estimated post-retirement income. However, he
    submitted that he will adjust to his reduced income by living more frugally.

[60]

A payors retirement also has a particular impact on the SSAG analysis. Recognizing
    this impact, Rogerson and Thompson state the following in s. 19(e) of the
Spousal
    Support Advisory Guidelines: the Revised Users Guide
(Ottawa: Department
    of Justice Canada, 2016):

Eventually, as we get old enough,
    we all have to live off our capital, to draw down our capital resources to
    pay for our current needs, especially those without pensions. RRSPs have to be
    converted into RRIFs (Registered Retirement Income Funds) or annuities.
    Businesses and farms have to be sold. Interest from investments becomes insufficient
    to fund daily needs.

[61]

Respondents counsel submits that if this court were to find that the
    spousal support should be reduced, the matter should not be sent back for
    determination but that this court should recalculate the appropriate reduction.
    Appellants counsel was concerned that this court did not have sufficient
    information to make that calculation because the respondents post-retirement
    net worth and income are undetermined.

[62]

While the evidence in the record demonstrates that the amount of spousal
    support should be reduced and not terminated, there is insufficient information
    in the record to permit this court to calculate the appropriate reduction in
    spousal support in accordance with the factors required to be applied under s.
    17 of the
Divorce Act
and under the SSAGs.

[63]

For example, the absence of evidence respecting the respondents actual
    investment income, return on his investments, and expenses precludes a
    meaningful calculation of his income for the purposes of determining his needs
    and ability to pay spousal support.

[64]

Moreover, additional evidence concerning the appellants income is
    needed.  At the time of the hearing before the application judge, the
    appellants Old Age Security (OAS) income was being fully clawed back due to
    her spousal support. On appeal, respondents counsel submitted that the
    appellant would begin receiving OAS when support is terminated, raising her
    combined annual CPP and OAS income to at most $12,000. However, the appellant
    did not agree with that figure and there was no evidence as to what the
    appellants OAS income actually is. Further, the appellants August 14, 2015
    financial statement shows monthly income from investments of $94.27 and monthly
    RRSP/RESP withdrawals of $1,863.67. It is uncertain, for the purposes of
    calculating the appellants need for spousal support, what her return on
    investment is with respect to her investments within and outside her RRSP
    account.

[65]

As a result, the question of the appropriate reduction in spousal
    support, having regard to the long-term, traditional marriage, and the
    appellants compensatory and need-based entitlement to support, must be
    remitted back to another application judge of the Superior Court of Justice.

Life Insurance

[66]

The application judge terminated the respondents obligation to continue
    the approximate $300 USD of monthly insurance premiums because of his material
    change in circumstances. For the reasons already given, she erred in failing to
    consider whether the respondents insurance obligations should be reduced,
    rather than terminated.

[67]

According to the summary of benefits provided by the respondents
    insurer, on November 4, 2013, if not terminated beforehand, the respondents
    term life insurance could have continued to 2024, without a change in the monthly
    premiums of $278.30 USD. As the application judge noted, the respondent also
    maintained another policy for accidental death and dismemberment at a modest
    monthly premium.  According to the respondents application, this policy was
    carried at a monthly cost of $18.95 USD.
[1]

[68]

Byers J. originally ordered the maintenance of insurance because of his
    concern about the respondent not paying because of his track record.  However,
    given his material change in circumstances, the respondents ability to pay
    monthly insurance premiums has changed.

[69]

As I earlier noted with respect to the issue of spousal support, on this
    record, I am unable to determine whether the respondent would be able to
    continue or should be ordered to maintain the monthly insurance premiums for
    the life insurance and accidental death and dismemberment policies.

[70]

As a result, I would leave the question of whether the respondents
    insurance obligations should be reduced or terminated to the next application
    judge who hears this matter.

Disposition

[71]

Accordingly, I would allow the appeal and set aside the application
    judges termination of spousal support and insurance.

[72]

The issues of the amount of the appropriate reduction to be made and the
    amount of spousal support to be paid, retroactive to June 1, 2016, as well as
    whether the respondents insurance obligations should be reduced or terminated,
    are remitted back to another application judge of the Superior Court of Justice
    for determination.

[73]

Pending this determination, the respondent shall pay spousal support to
    the appellant in the amount of $1,000.00 per month, retroactive to June 1,
    2016.  This figure shall be adjusted retroactively to June 1, 2016, for any
    overpayment or underpayment, upon the final determination of this issue by the
    Superior Court of Justice.

[74]

If the respondent has not yet cancelled them, unless the appellant
    advises in writing that she does not wish the respondent to continue to
    maintain the insurance policies, he shall continue them until the final
    determination of this issue by the Superior Court of Justice. On providing
    proof of their payment to the appellant, the respondents monthly insurance
    costs shall be deducted from the monthly amount of spousal support of $1,000.00
    otherwise payable to the appellant in accordance with these reasons.

[75]

The appeal is otherwise dismissed.

[76]

With respect to the issue of costs on appeal and below, if the parties
    cannot agree on their disposition, they shall make written submissions of no
    more than two pages, plus costs outlines, as follows:  the appellant shall
    deliver her submissions by February 13, 2017; the respondent shall deliver his
    submissions by February 23, 2017.  There shall be no reply submissions.

Released: February 3, 2017

L.B. Roberts J.A.

I agree K.M.
    Weiler J.A.

I agree Paul
    Rouleau J.A.

[1]

Exhibit D to the affidavit of Jennifer James, sworn August
    18, 2015, in support of the respondents application to vary.