COURT OF APPEAL FOR ONTARIO

CITATION:
Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022
    ONCA 66

DATE: 20220127

DOCKET: C69194

Huscroft,
    Trotter and Coroza JJ.A.

BETWEEN

Tallman Truck Centre Limited

Plaintiff (Appellant)

and

K.S.P. Holdings Inc.
and Secure Capital Advisors Inc.

Defendants (
Respondent
)

J. Thomas Curry, Dena N. Varah and Sean
    Lewis, for the appellant

Jeffrey E. Feiner, for the respondent

Heard: January 10, 2022 by
    videoconference

On appeal from
    the order of Justice Frederick L. Myers of the Superior Court of Justice, dated
    February 8, 2021, with reasons reported at 2021 ONSC 984.

REASONS FOR DECISION

[1]

Tallman Truck Centre Limited (Tallman) appeals
    from an order staying its action on the basis that it failed to immediately
    disclose to one defendant, K.S.P. Holdings Inc. (K.S.P.), that it had
    entered into a settlement agreement with the other defendant, Secure Capital
    Advisors Inc. (Secure). Under this settlement agreement, Secure reversed its
    pleaded position and joined cause with Tallman. The agreement was not disclosed
    until three weeks after it was made. K.S.P. successfully moved to stay the
    action, based on the principles in
Handley Estate v. DTE Industries Limited
,
    2018 ONCA 324, 421 D.L.R. (4th) 636.

[2]

The following reasons explain why we dismiss Tallmans
    appeal.

Background

[3]

In the underlying action, Tallman sought to
    enforce a right of first refusal against K.S.P. in the context of a complex
    real estate transaction. It claimed damages against Secure in relation to a
    leaseback agreement that it alleged existed between the defendants, which they
    both denied in their pleadings.

[4]

Tallman brought a summary judgement motion for specific
    performance of the right of first refusal against K.S.P. In the lead up to this
    motion, and unbeknownst to K.S.P., Tallman engaged in settlement discussions
    with Secure, whereby Secure would support Tallmans summary judgment motion by
    providing affidavit evidence in which it acknowledged the existence of the
    leaseback arrangement. In return, Tallman agreed to discontinue the claim
    against Secure. Additionally, in the event that the summary judgment motion was
    unsuccessful, and the action continued, Secure had a continuing obligation to
    provide support and cooperation to Tallman throughout the Litigation. Only
    then would it receive a full and final release, which was being held in escrow
    by Tallmans counsel (not counsel on appeal).

[5]

The timing of these events is important. The
    summary judgment motion was scheduled to be heard in December of 2018. In the
    Spring of 2018, counsel for K.S.P. attempted to contact Secures counsel to
    ascertain whether Secure could provide helpful evidence to K.S.P. concerning
    the alleged leaseback arrangement, consistent with their pleaded positions.
    Counsel for Secure did not respond. As it turned out, Secure was in discussions
    with Tallman.

[6]

On April 12, 2018, Tallmans counsel drafted an
    affidavit for the principal of Secure to swear, in which he acknowledged the
    existence of a leaseback arrangement. On May 14, 2018, Secure returned a
    marked-up copy of the draft. The final version was sworn on May 22, 2018 and
    was held by counsel for Secure.

[7]

The terms of the settlement between Tallman and
    Secure were formally reduced to writing in a document prepared by Tallman and
    sent to Secure on June 6, 2018. On June 7, 2018, Secures counsel provided
    written acceptance of the agreement. The motion judge described the upshot of
    the agreement as follows: Secure was no longer adverse in interest to the
    plaintiff. Rather, to obtain its bargained-for release, the quality of its
    continuing support of the plaintiff was subject to the plaintiffs approval.

[8]

On June 7, 2018, Secures counsel served his
    clients affidavit in a responding motion record. The affidavit purported to be
    sworn
in response to
the motion for summary judgment brought by the
    plaintiff (emphasis added). In reality, it was sworn
in support of
the motion. On June 8, 2018, Tallman attempted to discontinue the action
    against Secure on a without costs and with prejudice basis. For technical
    reasons, the notice of discontinuance was not accepted by the court. Tallman
    filed another version of this document on June 13, 2018. By June 19, 2018,
    the notice of discontinuance had still not been accepted by the court. Because
    pleadings were closed, the consent of K.S.P. was required. Tallman sought
    K.S.P.s consent, still not having disclosed the settlement agreement.

[9]

By this point in time, counsel for K.S.P. suspected
    that a settlement had been reached between Tallman and Secure. He wrote to
    Tallmans counsel on June 21, 2018, asking for confirmation of this fact. On
    June 24, 2018, Tallmans counsel wrote to K.S.P., but did not disclose the
    settlement agreement. Counsel was more focused on keeping up its end of the
    bargain with Secure, writing: In my view, there is no proper basis for you to
    withhold your consent to the filing of the notice of discontinuance.

[10]

The settlement agreement was finally disclosed
    on June 27, 2018, three weeks after it was signed by the parties. Apparently,
    the resistance to earlier disclosure came from Secures counsel. Tallmans
    counsel eventually persuaded Secures counsel that the agreement should be
    disclosed, not because they were legally obliged to do so, but because it would
    be tactically advantageous. In a June 27, 2018 email to K.S.P.s counsel,
    Tallmans lawyer provided a copy of the June 7, 2018 agreement. He advised, We
    will not be producing any of the other documents you have requested in this
    regard. Tallmans counsel held back the release it held in escrow pursuant to
    the written settlement agreement. Tallman disclosed the document only after
    being ordered to do so following a contested motion before a Master.

[11]

On the motion to stay the proceedings, counsel
    for K.S.P. asserted that there was at least an oral agreement as of May 22,
    2018 that should have been immediately disclosed. The motion judge did not
    necessarily reject this submission; instead, he preferred to base his decision
    on the June 7, 2018 written agreement. He said, I am therefore not to be taken
    as finding that there was no disclosable agreement prior to June 7, 2018. I
    simply choose not to decide that question as it is not necessary in this case.

Discussion

[12]

Tallman submits that the motion judge erred in
    the following ways. He mischaracterized the nature of the dispute between the
    parties and erred in finding that the settlement agreement changed the entire
    litigation landscape between the parties. He erred in finding that the
    settlement agreement was not disclosed immediately, as contemplated in
Handley
.
    He erred in finding that
Handley

applied to the
Pierringer
-type
    agreement in this case, and in finding that the factual circumstances fell
    within the ambit of
Handley
. Lastly, to the extent that the facts of
    this case crossed the line drawn in
Handley
, the motion judge erred in
    failing to impose a more measured remedial response, short of a stay of
    proceedings.

[13]

We reject these submissions.

[14]

In his oral submissions, Mr. Curry on behalf of
    Tallman, submits that the motion judge mischaracterized the degree to which the
    positions of K.S.P. and Secure were mutually antagonistic. This led the motion
    judge to erroneously find that Secures change of position was sufficient to
    constitute a change to the litigation landscape, as contemplated in
Handley
and earlier cases: see
Aecon Buildings v. Stephenson Engineering Limited
,
    2010 ONCA 898, 328 D.L.R. (4th) 488, leave to appeal refused, [2011] S.C.C.A.
    No. 84;
Laudon v. Roberts
, 2009 ONCA 383, 308 D.L.R. (4th) 422, at
    para. 39, leave to appeal refused, [2009] S.C.C.A. No. 304.

[15]

We do not accept this submission. This basis for
    challenging the motion judges decision was not included in Tallmans Notice of
    Appeal. Moreover, Tallmans factum appears to acknowledge there was such a
    change, but insists that disclosure had been adequate.

[16]

In any event, the motion judge did not
    misapprehend the nature of the relationship between the defendants. Although there
    were no cross-claims between K.S.P. and Secure (their dispute having been
    addressed in earlier litigation that settled), Secures realignment with
    Tallman was a dramatic change from K.S.P.s perspective. As the motion judge
    said:

[A]fter the settlement between the plaintiff
    and Secure, Secure reversed its position and went from opposing the plaintiff
    to supporting the plaintiffs claim. It is no longer submitting a position in
    the litigation that is adverse in interest to the plaintiff.

. . .

On June 7, 2018, Secures counsel provided a
    written acceptance. From that point onward at least, Secure was no longer
    adverse in interest to the plaintiff. Rather, to obtained its bargained-for
    release, the quality of its continuing support of the plaintiff was subject to
    the plaintiffs approval.

[17]

It was open to the motion judge to make these
    findings. The lack of cross-claims between the defendants was not a necessary
    condition to the application of
Handley
.

[18]

Tallman submits that it did make disclosure
    functional disclosure  of the settlement agreement on June 8, 2018 when it
    served its notice of discontinuance on counsel for K.S.P. Combined with the
    delivery of Secures affidavit (which disingenuously purported to
respond
to the summary judgment motion), the change in the litigation landscape would
    have been obvious to K.S.P.

[19]

It was open to the motion judge to reject this
    proposition. The motion judge credited K.S.P.s counsel for his astuteness in
    realizing that something was amiss when Tallman served the notice of
    discontinuance. However, he observed, [b]ut a settlement can have any number
    of terms. As he explained:

In my view, in serving Secure's responding
    motion record and then the notice of discontinuance, the plaintiff
    and Secure made no disclosure of any settlement agreement. They took
    steps in the litigation that would lead experienced litigants to infer the
    existence of a settlement of some kind. That is not disclosure of an agreement
    that changes the litigation landscape.

Even if KSP's counsel could be said to have
    been told enough to discern that there was a settlement, nothing in the
    documents delivered by the plaintiff and Secure disclosed the
    existence of a litigation agreement under which Secure was obligated
    to provide ongoing support to the plaintiff's satisfaction.

KSP's counsel was left
    to divine the nature of the settlement instead of being told about it
    forthrightly and immediately.
[Emphasis added.]

[20]

We agree with the motion judge that an
    obligation of such importance cannot turn on hints offered by opposing counsel.
    This would leave the matter to guesswork, an especially hazardous situation
    where counsel is less experienced or when parties are self-represented.

[21]

Moreover, this submission does not sit well with
    the position expressed by Tallmans counsel at the time  i.e., that it was not
    legally required to disclose the settlement agreement. There was no evidence
    that service of the notice of discontinuance and the delivery of the Secure
    affidavit were meant to function as disclosure. Consequently, even if there
    were such a thing as functional disclosure in this context, in this case it
    would have amounted to unintentional functional disclosure. This is
    untenable. In reality, the existence of the settlement agreement only became
    apparent when the parties were in the process of implementing it.

[22]

Although counsel for K.S.P. suspected that a
    settlement had been reached, he had no idea about the terms of the settlement.
    As counsel for K.S.P. submitted on appeal, without disclosure of the agreement,
    he would not have known that the affidavit produced by Secure was a negotiated
    piece of evidence. Moreover, while the notice of discontinuance appeared to
    signal Secures departure from the litigation, Secure remained heavily invested
    in the case by virtue of its contractual obligation to assist Tallman  the
    release was being held in escrow, its delivery being contingent on Secures
    performance in its new role. All of this was unknown to K.S.P. until three
    weeks after Tallman and Secure signed their agreement.

[23]

Tallman submits that the motion judge erred by applying
Handley
(which involved a
Mary Carter
agreement) to the
Pierringer
-type
    of agreement in this case. We disagree. The motion judge quoted the following
    passage from para. 39 of
Handley
: The obligation of immediate
    disclosure is
not limited
to pure
Mary Carter
or
Pierringer
agreements. The disclosure obligation extends to
any agreement
between
    or amongst parties to a lawsuit that has the effect of changing the adversarial
    position of the parties set out in their pleadings into a cooperative one
    (emphasis added). As the motion judge said, That describes exactly what has
    happened here.

[24]

More broadly, Mr. Curry submits that the litigation
    conduct in this case does not approach the level contemplated by
Handley
.
    He submits that
Handley
is aimed at rooting out shams, and
    correcting failures of justice. He contends that this case falls far short of
    that standard. He relies on the short period of time that elapsed between the
    settlement agreement being signed and its disclosure  just three weeks. He
    also relies on the motion judges finding that Tallmans counsel had not acted
    for nefarious reasons; at worst, they appeared to be oblivious to the
    obligation to immediately disclose the settlement agreement.

[25]

We agree with the motion judges rejection of
    this submission. He was aware that
Handley
involved a sham process
    that had been perpetuated for as long as five years. However, he found that the
    presentation of Secures affidavit was also a sham and studded with
    pretense. It was open to the motion judge to make these findings. As he noted,
    although the failure to immediately disclose a settlement agreement may
    adversely affect other parties to the litigation, judges may also be impacted. As
    he wrote:

I, for one, read the evidence before I read
    the parties factums. In preparing for the motion,
due to the misleading
    manner of presentation
, I would not have known at the outset,
as
    required
, that the defendant Secure was on the plaintiffs side pursuant to
    a settlement agreement that requires its support to the plaintiffs
    satisfaction. [Emphasis added.]

[26]

We also reject the submission that the
    three-week period between reaching the agreement and disclosing it was
    negligible and ought not to be caught by the immediate disclosure rule. The
    standard is immediate; it is not eventually or when it is convenient. As
    the motion judge said: The rules really cant be any clearer. Where an
    agreement involves a party switching sides from its pleaded position, it must
    be disclosed as soon as it is made. Here, Tallman and Secure attempted to
    implement the settlement agreement before disclosing it to K.S.P. More
    troubling, it is unclear on this record whether Tallman would have disclosed
    the agreement had K.S.P.s counsel not asked for it. Even then, it was
    disclosed for tactical reasons, not in observance of a legal obligation.

[27]

Lastly, Tallman submits that, to the extent that
    this case crossed the line in the
Handley
, it did not warrant a stay
    of proceedings. He relies on the fact that the missteps of Tallmans counsel
    were not taken in bad faith, the delay was comparatively brief, and K.S.P. suffered
    no prejudice as a result of what happened.

[28]

This argument was firmly rejected in
Aecon
,
    in which MacFarland J.A. held, at para. 16: Any failure of compliance amounts
    to an abuse of process and must result in consequences of the most serious
    nature for the defaulting party. Reinforcing this principle, in
Handley
,
    Brown J.A. confirmed that, [t]he only remedy to redress the wrong of the abuse
    of process is to stay the claim asserted by the defaulting, non-disclosing
    party: at para. 45. This remedy is designed to achieve justice between the
    parties. But it does more than that  it also enables the court to enforce and
    control its own process by deterring future breaches of this well-established
    rule.

Conclusion and Disposition

[29]

The appeal is dismissed. K.S.P. is entitled to
    costs in the amount of $25,000 inclusive of disbursements and HST.

Grant
    Huscroft J.A.

Gary
    Trotter J.A.

S.
    Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Hall (Re), 2022 ONCA 67

DATE: 20220125

DOCKET: C69706

Feldman, MacPherson and Thorburn
    JJ.A.

IN THE MATTER OF: Martin Hall

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser, for the appellant

Nicolas de Montigny, for the respondent
    Attorney General of Ontario

Leisha Senko, for the respondent The Person
    in Charge of the Centre for Addiction and Mental Health

Heard: January 21, 2022 by
    video conference

On appeal against the disposition of the
    Ontario Review Board dated June 21, 2021, with reasons dated July 7, 2021.

REASONS FOR DECISION

[1]

The appellant, Martin Hall, appeals the
    disposition of the Ontario Review Board (the Board) dated June 21, 2021,
    which ordered his continued detention at the Centre for Addiction and Mental
    Health (CAMH) with hospital and community privileges, including permission to
    live in the community in accommodation approved by the person in charge.

[2]

The appellant, who is 38 years old, has been
    under the jurisdiction of the Board since 2006 when he was found not criminally
    responsible on account of mental disorder on charges of assault and carrying a
    concealed weapon. He suffers from schizoaffective disorder as well as alcohol,
    cannabis and cocaine addictions. He had no criminal record before the
    commission of these offences. The facts giving rise to the convictions in 2006
    were that the appellant, without provocation, punched an acquaintance in the
    face and, upon arrest, was found to be in possession of a large knife, two
    smaller knives, a steel bar, and a small propane torch.

[3]

The appellant was subject to detention orders (2007-2009),
    conditional discharges (2009-2014), and detention orders (2015-2021). For the
    most part, in recent years the appellant has resided in the community in a
    supportive subsidized bachelor apartment operated by HouseLink and has been
    assisted by a CAMH Forensic Outpatient Services team.

[4]

In its annual review disposition dated June 21,
    2021 and the Reasons for Disposition dated July 7, 2021, the Board continued
    its recent pattern of dispositions. The Board said:

The Board finds that the necessary and
    appropriate disposition is a continuation of the detention order. The Board
    finds that it is necessary that the hospital have the ability to approve residence
    so that the treatment team is able to provide necessary supervision and
    monitoring as well as to ensure that Mr. Hall is not subject to unnecessary
    stress potentially leading to decompensation.

[5]

Section 672.78 of the
Criminal Code
provides that a court of appeal may set aside a Board disposition if it is,
inter
    alia
, unreasonable or cannot be supported by the evidence. In
R. v.
    Owen
, 2003 SCC 33, at para. 33, the court said that this standard means
    that the Boards reasons must be able to withstand a somewhat probing
    examination to determine whether the decision is justifiable, transparent and
    intelligible.

[6]

The appellant submits that the Boards decision is
    unreasonable and should be set aside and replaced by an absolute discharge. In
    support of this position, the appellant advances two arguments.

[7]

First, the appellant contends that the Boards
    finding of significant threat to public safety was not properly justified in its
    Reasons for Disposition and is unreasonable.

[8]

We do not accept this submission. The Board
    carefully reviewed the whole record, and especially the testimony of Dr. Ali,
    the appellants treating psychiatrist. Dr. Ali noted that there has been some
    improvement in the appellants health. However:

Although, Mr. Hall has not acted out
    aggressively since the time of the index offences, the evidence is that the
    reasons for this is the supervision and support provided by his treatment team.
    The Board finds Dr. Alis opinion that, absent the supervision of the Board,
    Mr. Hall would fall away from treatment and decompensate, develop symptomology
    similar to that at the time of the index offences when his paranoia resulted in
    his arming himself with numerous weapons and seriously assaulting a friend
    without provocation, is not speculation and is supported by the evidence.

[9]

Dr. Ali therefore concluded
    that a conditional discharge was insufficient to manage the appellants risk
    and that the hospital needed to approve his housing to ensure adequate
    supervision and medication compliance.
Based on our
    review of the record, this strikes us as an entirely reasonable conclusion.

[10]

Second, the appellant submits that the Board
    erred by not asking the parties to return with evidence about the sufficiency
    of the
Mental Health Act
, R.S.O. 1990, c. M.7, committal provisions to
    bring the appellant to hospital if a conditional discharge order was made and he
    decompensated: see
Blake (Re)
, 2021 ONCA 230, at paras. 33-37.

[11]

We disagree. The Board heard extensive evidence
    on the adequacy of the
Mental Health Act
to manage the appellants
    risk under a conditional discharge order. The Boards finding was that he would
    not be able to be held in hospital long enough if he was required to be brought
    in because he was decompensating. No further evidence was required.

[12]

The appeal is dismissed.

K.
    Feldman J.A.

J.C.
    MacPherson J.A.

J.A.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Pal v. Bhatia, 2022 ONCA 68

DATE: 20220125

DOCKET: C69436

Pardu, Roberts and Miller JJ.A.

BETWEEN

Arun Pal

Applicant
(Respondent)

and

Tanya Bhatia

Respondent
(Appellant)

Michael H. Tweyman, for the appellant

Arun Pal, acting in person

Heard: January 21, 2022 by
    video conference

On appeal
    from the order of Justice Jayne E. Hughes of the Superior Court of Justice
    dated April 6, 2021, with reasons reported at 2021 ONSC 2483.

REASONS FOR DECISION

[1]

This appeal concerns minor modifications made
    to a final order respecting parenting and child support issues. The parties
    separated in 2013 after less than five years of marriage. Their only child, A.,
    is now 11 years old. Since their separation, the parties have been embroiled in
    high conflict litigation.

[2]

A final court order was made on September 15,
    2015 (the September 15, 2015 order). The respondent initiated a motion to
    change the September 15, 2015 order in September 2017, raising compliance
    issues, particularly in relation to his parenting time with A. The proceedings were
    closely case managed by the motion judge who made a series of temporary orders
    to reduce the exposure of A. to parental conflict and assist the parties in
    coming to a resolution of their dispute. At the motion judges direction, the Office
    of the Childrens Lawyer prepared an updated report to account for A.s age and
    new stage of development.

[3]

With the consent of the parties, the motion judge
    ordered the matter to proceed by summary judgment before her, explaining the
    impetus for the order in her endorsement of September 29, 2020, as follows:

Both parties and counsel
    for the Respondent Mother, Reginald McLean, agree that this is not a matter
    that should proceed to trial.
The parties reached agreement on
    the principles of a parenting plan on a number of
occasions
with the assistance of the court and counsel but have been unable to finalize
    the specific terms of the Minutes of Settlement.
I agree with counsels assessment that it is essentially tweaking
    and tinkering but the parties have been unable to conclude a final agreement.
It is agreed that none of the tweaking and tinkering impacts the Applicant Fathers
    child support obligation, and the maximum principles had been reviewed and is
    understood by the parties.
To save
    further time and expense, and to avoid the damage to the co-parenting relationship
    of the parties a trial is likely to cause, the parties have agreed that the
    matter should be scheduled for a summary judgment motion.
[Emphasis added.]

[4]

Both parties sought minor amendments to the
    September 15, 2015 order. The motion judge made minor amendments to the respondents
    parenting time, to child support, and to the shared Christmas holiday schedule.
    Given the mixed success on the issues, the motion judge made no order as to
    costs.

[5]

The appellant raises the following issues on
    appeal:

i.

The motion
    judge erred in making any change to the September 15, 2015 order without addressing
    the threshold issue of material change in circumstances.

ii.

The
motion judge erred in deciding the matter after being the
    case management judge and hearing a settlement conference.

iii.

The motion judge erred in failing
    to give effect to the parties admissions regarding regular parenting time at
    the first appearance on the motion.

iv.

The motion judge erred in failing
    to give proper weight to the childs views and preferences.

[6]

We do not accept these submissions.

[7]

The first two issues have no merit and ignore
    the parties express consent to the procedure followed by the motion judge. There
    was no unfairness or prejudice. Rather, this was a sensible and practical way
    to proceed, given the motion judges long involvement in this matter and the
    minor nature of the amendments that both parties had requested.

[8]

As already indicated, the parties agreed that the
    motion judge should determine by way of summary judgment the very few issues
    that were outstanding in order to avoid the cost and delay of a trial and
    further damage to their co‑parenting relationship. We do not accept the
    appellants submission that she merely acquiesced or was dragged along.
    That is not what happened.

[9]

The
    appellant was represented at all times by counsel (not appeal counsel) who
    never made any objection to proceeding by way of summary judgment or before the
    motion judge. Nor did he raise any issue about a material change in
    circumstances or any other impediment to the motion judge determining the motion.
    On the contrary, he gave the appellants consent to proceed in this manner and
    then sought amendments to the September 15, 2015 order on her behalf.

[10]

With respect to the third and fourth issues, the motion
    judge made no error. There was no firm agreement between the parties on the
    respondents parenting time before the motion was determined and, in any event,
    the motion judge was not bound by the parties negotiations. She had to
    consider what was in A.s best interests, particularly in the context of
    high-conflict litigation where, as the motion judge noted, the parties had
    been struggling for many months to finalize the terms of a final order and had
    reached an impasse.

[11]

The motion judges decision on the merits is unassailable.
    She carefully reviewed the parties respective submissions on each of the
    issues presented for determination. Her reasons on each issue show a sensitive
    and practical approach grounded in the evidence, relevant legal principle, and
    pointedly, A.s best interests. Her decision was clearly designed to provide A.
    with the consistency that both parties agreed was important and to reduce his
    exposure to the conflict between his parents. We see no error in her
    conclusions.

[12]

The respondent has brought a motion to submit fresh
    evidence. It does not affect the outcome of this appeal. We do not admit it.

[13]

For these reasons, we dismiss the appeal.

[14]

The respondent does not seek any costs. We order no costs
    of the appeal.

G.
    Pardu J.A.

L.B.
    Roberts J.A.

B.W.
    Miller J.A.


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. R.H., 2022 ONCA 69

DATE: 20220127

DOCKET: C68425

Paciocco, Nordheimer and Sossin
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.H.

Appellant

Mellington Godoy, for the appellant

Jennifer Epstein, for the respondent

Heard: January 12, 2022 by video
    conference

On appeal from the convictions entered
    by Justice Kevin B. Phillips of the Superior Court of Justice on January 24,
    2020.

Nordheimer
    J.A.:

[1]

R.H. appeals from his conviction for sexual
    assault. He was also convicted of other offences including assault causing bodily
    harm, mischief, and uttering threats. However, his appeal is solely with
    respect to the sexual assault offence.

A.

Background

[2]

The facts underlying the offences are somewhat
    unusual. The appellant and the complainant were in a relationship. At the time
    of the offences, the appellant was using drugs, including crack cocaine, which
    caused him to have paranoid hallucinations. Uncontested testimony from the
    complainant established that these hallucinations led the appellant to believe
    that the complainant was having sexual intercourse with other men while the
    appellant was with the complainant.

[3]

More specifically, the appellant would be lying
    in bed with the complainant and would become convinced that the complainant
    was, then and there, having intercourse with another man. In an effort to
    convince the appellant that this was not occurring, the complainant would allow
    the appellant to touch her vagina so that he would be assured that no act of
    intercourse was taking place.

[4]

The complainant testified that it was not the
    physical act of the appellant touching her vagina that made her uncomfortable.
    Rather, it was the appellants accusations that she was being unfaithful that
    bothered her. The complainant was consistent, both during examination in chief
    and cross-examination, that she allowed the appellant to touch her and that she
    did not feel that she had been sexually assaulted. The complainant also said
    that every time she and the appellant had sex, it was consensual.

B.

the trial judges reasons

[5]

With respect to the sexual assault offence, the
    trial judge concluded that the complainants agreement to permit the appellant
    to touch her sexually was invalid. He said that any consent in this context was
    an illusion. The trial judge based his conclusion on the history of violence
    in the relationship. More specifically, the trial judge said:

[R.H.] wouldve understood full well that he
    had a form of control over her; that he had injected so much violence into this
    relationship, that when his partner acquiesced to him investigating her vagina
    to satisfy himself that other men were not then presently engaged in sex or had
    not recently been, he was being allowed to do so because he had a form of power
    over the complainant, brought about by his violent treatment of her.

C.

Analysis

[6]

In my view, the trial judge erred in reaching
    the conclusion that he did. In so concluding, I do not mean to suggest that
    such a conclusion would not be open to a trial judge to reach on the particular
    facts of any given case. It may well be that a trial judge could conclude, even
    in the absence of specific threatening conduct attached to an act of sexual
    touching, that based on the totality of the evidence of the conduct between the
    parties, the voluntariness of a complainants subjective agreement to that act
    of sexual touching was vitiated by the control that the accused person
    exercised through violence and intimidation within their relationship. Put
    simply, if a complainant agrees to sexual touching because of an operating fear
    of past acts of violence, their subjective agreement to sexual activity will be
    vitiated.

[7]

The problem that arises in this case is that
    neither counsel argued this route to a conviction. This case was not litigated
    as a vitiation of consent case. The contest was about the factual question of
    whether the complainant subjectively agreed to the charged sexual activity.

[8]

The Crowns position was that the complainant
    was a difficult and reluctant witness at trial who downplayed in her testimony the
    actions of the appellant towards her. The Crown sought to have the trial judge
    make his finding of fact relating to her subjective consent based on a
    statement the complainant gave to the police, that was ultimately admitted at
    trial under the principles from
R. v. B. (K.G.)
, [1993] 1 S.C.R. 740
    (the
KGB
statement). Unlike her evidence at trial that the touching
    was consensual, in her police statement the complainant said that the touching had
    upset her. She also said, in response to a leading question from the
    interviewing officer, that she had not wanted the touching to happen.

[9]

The Crown argued that the complainants evidence,
    through the police statement, should be preferred to the complainants evidence
    at trial. The Crown continued by asserting that the fact that the complainant
    said, in her police statement, that the touching bothered her constituted a
    violation of the complainants sexual integrity. The Crown concluded by
    asserting that the fact that the complainant said at trial, and contrary to her
    police statement, that all of the touching was consensual, should be rejected
    and should not raise a reasonable doubt.

[10]

In response, the defence argued that the
    complainants police statement was suspect because, at the time, the
    complainant had a motive to fabricate her allegations. This arose, in part, from
    the complainants concern for her children and the possible involvement of the
    Childrens Aid Society. The complainant was very concerned about the possible
    loss of her children. She wanted to deflect any concerns about what was going
    on in the relationship, as it impacted on the children and her ability to care
    for them, entirely onto the appellant.

[11]

As a consequence, the defence argued that the
    complainants evidence from her police statement should be approached with
    caution and with scepticism. Notably, the defence did not make any specific
    submissions regarding the sexual assault offence, other than to say, in
    reliance on the complainants trial testimony, that the Crown failed to negate consent
    beyond a reasonable doubt.

[12]

The trial judge, because of the inconsistent
    accounts provided by the complainant, was left in a reasonable doubt relating
    to whether she subjectively consented. This led him to move on to consider
    whether that consent had been vitiated.

[13]

I have already set out the vitiated consent theory
    the trial judge used to convict the appellant of the sexual assault offence. This
    theory was never advanced by either of the parties, nor did the trial judge raise
    it with the parties. In convicting on this basis in these circumstances, he visited
    an unfairness on the appellant. That unfairness has two parts. One is that
    raising this issue for the first time after evidence and argument were
    completed did not allow for either counsel, but especially defence counsel, to
    make any submissions as to the validity of that theory, on the facts of the
    case. It did not permit counsel the opportunity to provide case authorities on
    the subject, nor did it permit counsel to refer to evidence that might impact
    on that theory.

[14]

This latter concern leads to the second part of
    the unfairness. Not only was there no indication that this was a route that
    might be taken to a conviction on the sexual assault offence, as I will
    explain, the manner in which the Crown presented the case suggested it would
    not be. Defence counsel was therefore misled in terms of his conduct of the
    defence. It is almost certain that had it been known that this theory was a
    live route to conviction, the defence would have explored the issue with the
    complainant during the course of her cross-examination.

[15]

This is not a fanciful or speculative concern in
    this case. In the course of the examination in chief of the complainant, Crown counsel
    addressed the sexual assault offence. In particular, the following exchange
    took place:

Q.      So, do you remember whether it was
    otherwise in terms of your pants coming down, thats [
sic
] its not
    simply you doing it, but whether he did it as well?

A.      What I said for him, that if he
    thought that something was going on, to check. So, I did allow permission.

Q.      Did he ever do it without your
    permission?

A.      No. I dont feel as if [R.H.] has ever
    sexually assaulted me.

[16]

Those answers were helpful to the defence.
    However, Crown counsel left things there, without asking any questions relating
    to the integrity of the permission the complaint gave. In light of that
    exchange, and the absence of any indication in the
KGB
statement that
    the complainant was concerned about the risk of violence when the accused
    touched her sexually, it is understandable why defence counsel would not address
    voluntariness issues in his cross-examination. In particular, there would be no
    reason for defence counsel to engage with the complainant on the subject of
    whether her stated consent was actually no consent because of the nature of her
    relationship with the appellant and the history of violence. Simply put, Crown
    counsel had not gone there, so why would defence counsel do so? I would add, on
    this point, that because of the differences between the complainants police
    statement and her evidence at trial, Crown counsel had been permitted to
    cross-examine the complainant pursuant to s. 9(2) of the
Canada Evidence
    Act
, R.S.C., 1985, c. C-5.

[17]

The parties do not dispute that the absence of
    consent is subjective and is to be determined by reference to the complainants
    subjective internal state of mind towards the touching, at the time it occurred:
R. v. Ewanchuk
, [1999] 1 S.C.R. 330, at para. 26. However, to be
    legally effective, consent must be freely given. At the risk of stating the
    obvious, the complainant will be the primary source of their subjective view of
    whether they gave consent. The complainant will also be the primary source for
    determining whether any apparent consent was freely given. However, the
    complainants view is not the end of the inquiry. For policy reasons, the law
    may render apparent consent as legally ineffective:
R. v. G.F.
, 2021
    SCC 20, 459 D.L.R. (4th) 375, at para. 34.

[18]

All of these principles highlight the need for
    the issue of consent, and its legal effect, to be canvassed at the trial. This
    will be especially so where the legal effect of the subjective consent is a
    live issue. It was not in this case. Consequently, the issue was not canvassed
    by counsel, either in their questioning of the complainant or in their
    submissions at the conclusion of the trial. That reality renders the subsequent
    reliance by the trial judge on the lack of a legally effective consent, leading
    to a conviction for sexual assault, fundamentally unfair to the appellant.

[19]

The Crown responds to these concerns by pointing
    out that the trier of fact is not confined to the Crowns theory in determining
    liability. To quote the Crowns factum: A conviction may be based on an
    alternative theory of liability not advanced by the Crown so long as it falls
    within the wording of the indictment and is supported by the evidence.

[20]

While that is undoubtedly true as a general
    principle, its application is not without constraint. In particular, that principle
    does not address the corresponding principle of trial fairness. An accused
    person is entitled to know the case that they are being asked to meet. It is
    fundamentally unfair to convict an accused person on a theory of which they are
    entirely unaware, and to which they have not had the opportunity to respond. On
    this point, I note that in two of the cases that the Crown relied on for its
    principle that a conviction can rest on an alternative theory, both this court and
    the Supreme Court of Canada made it clear that the defence was aware of the
    alternative theory on which the convictions ultimately rested:
R. v. Groot
(1998), 41 O.R. (3d) 280 (C.A.), at para. 25, affd [1999] 3 S.C.R. 664;
R.
    v. Pickton
, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 21. Consequently,
    there was no unfairness to the accused in those two cases.

[21]

In contrast, this court concluded in
R. v.
    Ranger
(2003), 67 O.R. (3d) 1 (C.A.), that unfairness to the accused had
    occurred where the trial judge instructed the jury on a route to conviction
    that had not been advanced by the Crown and which the defence did not know
    would be available. Specifically, Charron J.A. said, at para. 162:

In these circumstances, it cannot be said that
    the appellant was not materially prejudiced by the trial judge's failure to
    notify counsel of his intention to charge the jury on this additional theory of
    liability before counsel's final address to the jury.

[22]

This case was argued by both sides on the issue
    whether the complainant had consented to the sexual touching. It was not argued
    that the complainant was incapable of consenting because of the history of her
    relationship with the appellant. As a result, that issue was not explored by
    counsel during the course of the trial. For example, Crown counsel acknowledges
    in her factum that the complainant was never asked what she thought might
    happen if she denied the appellant the opportunity to inspect her vagina.

[23]

As I have said, it is fundamentally unfair to
    convict an accused person on a basis of which they are unaware and which they
    have not had an opportunity to respond. It denies the accused person their
    constitutional right to make full answer and defence:
R. v. Mills
,
    [1999] 3 S.C.R. 668, at para. 69. At the very least, when the trial judge became
    aware that he might convict on that basis, he ought to have alerted counsel to
    that possibility and asked for their submissions. That did not happen.

[24]

The appellant was prejudiced by the trial
    judges adoption of a route to conviction of which he was unaware. The
    appellant was denied trial fairness. The conviction on the count of sexual
    assault must be set aside.

D.

Conclusion

[25]

The appeal is
    allowed and the conviction for sexual assault (count #2) is set aside. A new
    trial is ordered on that count alone.

Released: January 27, 2022 David M.
    Paciocco J.A.

I.V.B. Nordheimer J.A.

I agree. David M. Paciocco J.A.

I agree. Sossin J.A.


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. M.P.L., 2022 ONCA 70

DATE: 20220125

DOCKET: C68633

Fairburn
    A.C.J.O., Gillese and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.P.L.

Applicant
    (Appellant)

Phillip Dinis, for the appellant

Brett Cohen, for the respondent

Heard: January 24, 2022 by
    video conference

On appeal from
    the convictions entered on October 2, 2019 by Justice R. John Harper of the
    Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was found guilty of 10 offences for
    sexually abusing his former partners daughter who was 8 to 9 years old at the
    time. The abuse involved touching, oral sex, mutual masturbation, and attempted
    anal intercourse.

[2]

Pursuant to s. 715.1 of the
Criminal Code
,
    the victim adopted the contents of a video statement she gave to the police, in
    which she detailed the appellants escalating sexual behaviour towards her. The
    trial judge found the victim to be a very compelling and articulate witness;
    she displayed a verbal ability well beyond her years. Her evidence was not
    undermined in cross-examination; indeed, the trial judge found that, In many
    respects her evidence was enhanced.

[3]

The victims mother and grandmother testified
    about living arrangements at the house and the victims subsequent disclosure.
    The evidence painted a picture of hostility and violence in the household. The
    trial judge found that the victim lived in rational fear. Moreover, there was
    animosity between the appellant and the grandmother.

[4]

The appellant testified and denied all
    allegations. In the course of his evidence, he portrayed the victims
    grandmother as controlling and crazy, and the victims mother as a crazy person
    who had tried to kill him. After the victims disclosure, the appellant moved
    in with another woman. He shared his view about the victims mother and
    grandmother. This information made his new partner fearful, both for herself
    and for her own children. Yet, the appellant did not tell her that the victims
    grandmother lived across the street. In cross-examination, it was suggested to
    him that he was keeping it a secret. The appellant disagreed that it was a
    secret; he said it just never came up. Based on his new partners evidence, the
    trial judge found that the appellant spent many hours in the garage where, through
    a window, and undetected, he could see into the grandmothers living room, and
    could see the victim when she came for visits.

[5]

The trial judge gave detailed reasons for
    accepting the victims evidence and equally detailed reasons for rejecting the
    appellants evidence. He found that it did not raise a reasonable doubt.

[6]

The appellant submits that the trial judge erred
    in admitting irrelevant and prejudicial evidence relating to the appellants
    use of pornography on his cell phone. He also submits that the trial judge
    erred in admitting the evidence concerning the location of the grandmothers
    house and the time the appellant spent in his new partners garage. We do not
    accept these submissions.

[7]

The pornography evidence was relevant to a
    material issue. The victim testified that the appellant showed her pornographic
    images on his cellphone for the purpose of teaching her how to perform oral sex
    on him. Evidence concerning the appellants use of pornography in other
    contexts tended to support the victims evidence that the appellant accessed
    this content on his phone. There was no objection to the admission of this
    evidence. Moreover, the trial judge did not use this evidence for any
    prohibited propensity purpose.

[8]

Similarly, we see no error in the admission or
    use of the evidence concerning the appellants time spent in the garage. The
    trial judge restricted his use of this evidence to an assessment of the
    appellants credibility, focusing on the fact that, after telling his new
    partner about the hostility that the victims mother and grandmother harboured
    for him, he did not tell his new partner that the grandmother lived across the
    street. The trial judge inferred that the appellant kept this to himself so
    that he could continue to watch the victim when she visited her grandmother
    across the street.

[9]

The appellant further submits that the trial was
    unfair because the Crown was permitted to cross-examine three of its own
    witnesses without first establishing the threshold requirements in s. 9(2) of
    the
Canada Evidence Act
. He submits that this was achieved through the
    guise of attempting to refresh the memories of these witnesses by having them
    review their police statements.

[10]

We do not accept this submission. Although the
    procedure for having the witnesses refresh their memories might have been
    somewhat relaxed, there was no objection from defence counsel at trial. In the
    circumstances, it was appropriate that these witnesses be given the opportunity
    to review their statements. Contrary to the appellants submissions, cross-examination
    did not follow; instead, proper examinations-in-chief continued. In any event,
    nothing prejudicial or inadmissible was elicited.

[11]

The appeal is dismissed.

Fairburn
    A.C.J.O.

E.E.
    Gillese J.A.

Gary
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: K.K. v. M.M., 2022 ONCA 72

DATE: 20220126

DOCKET: C69393

Paciocco, Nordheimer and Coroza
    JJ.A.

BETWEEN

K.K.

Applicant (Appellant)

and

M.M.

Respondent (Respondent)

Gary S. Joseph, for the appellant

Aida Pasha, for the respondent

Heard: September 3, 2021 by video conference

On appeal from the order of Justice Cynthia
    Petersen of the Superior Court of Justice, dated April 9, 2021, with reasons dated
    June 1, 2021 and reported at 2021 ONSC 3975.

By the Court:

OVERVIEW

[1]

The parties married in 2003 and separated
    in 2012. Regrettably, following separation they engaged in high-conflict
    litigation involving their children, V.K., and J.K. The trial judge described
    this case as a heartbreaking saga of family violence and parental alienation.

[2]

At the time of trial, the children
    were living in separate residences  J.K. with the appellant and visiting the
    respondents (his mother) house on weekends, and V.K. with the respondent.

[3]

After a 19-day trial, the trial
    judge directed that the childrens principal residence would be with the
    respondent, reversing the status quo living arrangement for J.K. The trial
    judge directed that the respondent would have sole responsibility for making
    all day-to-day and significant decisions without being required to consult the
    appellant. The order also addressed issues of child support, section 7 expenses
    under the
Federal Child Support Guidelines
, SOR/97-175, travel restrictions, and restricted
    contact.

[4]

On appeal, the appellants focus is
    on his son J.K. He submits that J.K.s primary residence should be with him and
    that the trial judge erred by reversing the
status quo
that had remained in place for six and a half years
    before trial. The appellant requests that the final order of the trial judge be
stayed
, that J.K. be returned to his care,
    and that the respondents parenting time for both children revert to the
status
    quo
before trial.

[5]

In support of his submission, the
    appellants written materials alleged several legal errors, which were narrowed
    down by counsel in oral submissions to the following two complaints:

1.

The trial judge erred in her application of the best interests test as
    set out in s. 16 of the
Divorce Act
, R.S.C., 1985, c. 3 (2nd Supp.).

2.

The trial judge failed to meaningfully consider the recommendations of Dr. Goldstein,
    a court-appointed assessor who had prepared reports during the litigation pursuant
    to s. 30 of the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12 (CLRA).

[6]

At the end of the hearing, the
    appeal was dismissed, with reasons to follow. These are those reasons.

BACKGROUND FACTS

[7]

The parties were married in India.
    They immigrated to Canada so that the appellant could practice medicine. The
    family initially lived in Newfoundland and then Ontario. The parties separated
    in November 2012. The appellant filed an application issued on January 3, 2013
    and the respondent filed her answer on February 27, 2013.

[8]

Prior to trial,
the parties had
    approximately 40 court appearances at motions and conferences.
During
    the litigation, several pre-trial orders about the childrens primary residence
    were made. Importantly, sole custody of the children was granted to the
    appellant father based on an interim finding of a motion judge of parental
    alienation by the respondent mother in March 2014.
[1]

[9]

In making the interim finding of
    parental alienation, the motion judge relied on the expert evidence of a
    court-appointed assessor named Dr. Sol Goldstein pursuant to s. 30 of the
CLRA
.
Dr.
    Goldstein provided opinion evidence that V.K. had been alienated from the
    appellant by the respondent and that both V.K. and the respondent conspired to
    alienate J.K. from the appellant. Dr. Goldstein expressed the view that V.K.s
    mental health was being seriously compromised by the respondents influence. He
    recommended the immediate removal of the children from the respondents care.

[10]

Once the interim
    finding of parental alienation had been made, for the next six and a half years,
    the children resided with the appellant and the respondent had only limited
    parenting time, including lengthy periods of no contact or communication with
    her children.

[11]

The trial did not start until
    November 30, 2020. At trial,
the appellant intended to call Dr. Goldstein as a witness to testify about the
    assessment he was appointed to conduct. However, Dr. Goldstein did not appear
    for trial despite being served with a summons to attend by the appellant. The
    appellant did not ask for an order from the trial judge compelling the doctor
    to attend. Instead, he sought to admit Dr. Goldsteins s. 30 CLRA

reports into
    evidence and asked the trial judge to give weight to the opinions and
    recommendations contained in them. For her part, the respondent objected to the
    admissibility of Dr. Goldsteins assessment reports and letters. This objection
    was based on findings of the College of Physician and Surgeons (CPSO) arising
    from complaints that she filed against him. Among other things, the respondent sought
    to admit a copy of a decision of the Inquiries, Complaints and Reports (ICR)
    Committee of the CPSO dated April 16, 2018, pertaining to one of her
    complaints. The decision set out that the ICR Committee had serious concerns
    about Dr. Goldsteins approach to the s. 30 assessment in this case. The
    appellant objected to the introduction of this material, citing s. 36(3) of the
Regulated Health Professions Act
, 1991, S.O. 1991, c. 18 (
RHPA
) which makes
    records of regulatory proceedings at the CPSO and decisions made in them
    inadmissible in civil proceedings.
The
    trial judge held that the prohibition did not apply in this case and that no
    weight would be given to Dr. Goldsteins opinions or recommendations.

[12]

During trial, the parties focused
    on the allocation of parental decision-making, the question of with whom the
    children should primarily reside, and the question of parental alienation.
[2]

[13]

After an exhaustive and lengthy
    review of the evidence, the trial judge found that the appellant was not a
    credible witness. In contrast, the trial judge found that the respondent was
    credible and that she had not engaged in alienating conduct, but instead was
    the target of vilification and the victim of parental alienation created by the
    appellant.

[14]

The trial judge concluded that
    there was an abundance of evidence that both children have been subjected to
    verbal, emotional and psychological abuse by the [appellant] and that the
    physical, emotional and psychological safety, security and well-being of both
    children would best be fostered if they were living together in [the respondents]
    home.

FRESH EVIDENCE

[15]

At the outset of the hearing, the
    appellant attempted to file fresh evidence allegedly relating
to the determination of the issues under
    appeal.

[16]

The fresh evidence, an affidavit proffered by the appellant, purports
    to show that the respondent is
wilfully

breaching the final order of the trial judge and is
    undermining the appellants
relationship with J.K.
The
    appellant argues that it is not unusual in this type of high-conflict case for
    this court to receive updated information on appeal with respect to matters that
    relate to the best interests of the children. He submits that the
wilful
breaches by the respondent are an overarching concern
    on this appeal. For her part, the respondent
submits
    that she has taken her responsibility as the decision-making parent very
    seriously. She contends she has used her discretion in the best interests of
    the child.
Where she had concerns about specific
    details of the order and its effect on the child, she sought relief in the
    Superior Court to avoid being in breach of the trial judges order.

[17]

The test for admitting
    fresh evidence on appeal requires the moving party to satisfy four criteria:
    (i) the evidence could not have been adduced at trial; (ii) the evidence must
    be relevant in that it bears on a decisive or potentially decisive issue; (iii)
    the evidence must be reasonably capable of belief; and (iv)
the evidence must be such that, if believed, it could
    reasonably, when taken with the other evidence adduced at trial, be expected to
    have affected the result
:
R. v. Palmer
, [1980] 1 S.C.R. 759, at p. 775. This
    court recently reaffirmed in
Bors v. Bors,
2021 ONCA 513, 60 R.F.L. (8th) 36, that
    the
Palmer
criteria are more flexible where an appeal involves
    the best interests of children, where it is important to have the most current
    information possible [g]iven the inevitable fluidity in a childs
    development:
Goldman v. Kudelya
,

2017 ONCA 300
, at para.
25, citing
Childrens Aid Society
    of Owen Sound v. R.D.
(2003), 178 O.A.C. 69 (C.A.), at para. 21
.

[18]

Notwithstanding the
    flexible approach for receiving fresh evidence where an appeal addresses the
    best interests of children, the fresh evidence in the present case does not
    meet the test for admission. The proposed fresh evidence is essentially the
    appellants account of what has transpired with J.K. since the order under
    appeal was made, including complaints that the respondent has failed to comply
    with the order and that the final order is causing harm to J.K.

[19]

This evidence is not
    essential to our decision to deal with the appellants grounds of appeal.

As will become clear, even if the fresh evidence is believed, it could
    not reasonably, when taken with the other evidence adduced at trial, be
    expected to have affected the result. The trial judges final decision to
    remove J.K. from the appellants care was firmly rooted in the evidence and
    based on clear findings made against the appellants credibility. The
    appellants complaints about what has occurred after the trial judges final
    order, and any allegations about the respondents conduct should more properly
    be taken up with the trial judge. We note that the trial judges final order had
    a built-in review of her parenting order
after
    September 30, 2021.

[20]

Therefore, the motion
    to introduce fresh evidence is dismissed.

DISCUSSION

[21]

Before turning to the appellants
    arguments, a comment should be made about the trial judges reasons in this
    case. The reasons comprise 898 paragraphs over more than 300 pages. The trial
    judge obviously laboured over her reasons and provided careful and thoughtful
    analysis on the multiple issues raised by the parties. We recognize that the
    trial judge had the significant task of reviewing the long litigation history between
    the parties. We also recognize that for certain days during the trial, the
    appellant was self-represented, and the trial judge likely felt that this
    obligated her to specifically address every argument to demonstrate that his
    position was understood.

[22]

Nevertheless, there are portions of the reasons that contain
    lengthy verbatim summaries of evidence. This court has recently raised concern
    about these types of recitations of the evidence in reasons for judgment: see
Welton v. United Lands Corporation Limited
,
    2020 ONCA 322, 64 C.C.E.L. (4th) 265, at paras. 56-63;
R.F. v. J.W.
, 2021 ONCA 528, at para.
    34, n. 7;
N. v. F.
,
    2021 ONCA 614, 62 R.F.L. (8th) 7, at para. 266, n. 14,
per
Lauwers J.A. (dissenting),
leave to
    appeal granted,
[2021] S.C.C.A. No. 364.

[23]

Trial judges are not obliged to
    refer to every piece of evidence that is introduced at trial. All a trial judge
    must show is that they have grappled with the essential issues raised in the
    litigation. Given the narrow issues raised in this case  the best interests of
    the children  these verbatim summaries and, consequently, the length of the
    reasons, are problematic. One of the purposes behind the requirement to give
    reasons is to identify the issues to be resolved and to distill the evidence
    down to the facts that are relevant to those issues: see generally,
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869. The wholescale
    repetition of all the evidence heard does not fulfill that purpose. It does not
    help the parties who may be unable to understand the central basis for the
    decision reached. It does not help counsel in terms of their ability to
    understand and identify possible grounds of appeal. Finally, it does not help
    this court which must, among other things, then determine if extraneous facts
    influenced the trial judges analysis.

[24]

We now turn to the two main issues
    advanced by the appellant.

A.

BEST INTERESTS OF J.K.

[25]

According to the appellant, the
    trial judge erred in law by failing to adhere to the best interests analysis
    mandated by the applicable legislation and case law. He argues that the focus was
    not on J.K.s best interests. Specifically, he submits that the trial judge
    erred by failing to fully consider

the
    disruption caused to J.K. by removing him from the appellant, his school and
    his community, the negative effects on the relationship between J.K. and the
    appellant, and the desirability of maximizing contact between J.K. and both
    parents.

[26]

We do not accept these
    submissions.

[27]

We begin with the undisputed
    premise that since the order under appeal is a parenting order, the trial
    judges exercise of discretion and factual findings in connection with it are entitled
    to considerable deference on appeal:
A.M. v. C.H.
,
    2019 ONCA 764, 32 R.F.L. (8th) 1, at para. 4;
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R. 1014, at
    para. 13. In our view, there is no basis to intervene because the appellant has
    failed to point to any material error, serious misapprehension of the evidence,
    or error of law in the trial judges reasons: see
Van de Perre
,
at paras. 11-12.

The trial judge engaged in a full inquiry
    into the best interests of both children. The appellants submissions invite us
    to retry the case, which is not our function.

[28]

The trial judge was completely
    focused on the best interests of the children. That focus is evident throughout
    her reasons and especially so in the portions of her reasons that are dedicated
    solely to the best interests analysis.

[29]

First, the trial judge noted that,
    in considering the parties respective parenting plans, she was required to
    determine what orders were ultimately in the childrens best interests in
    accordance with s. 16 of the
Divorce Act
. Section 16(1)
    directs that the court shall take into consideration only the best interests
    of the child of the marriage in making a parenting order or a contact order
    and s. 16(3) sets out a number of factors that the court must weigh in carrying
    out the best interests analysis. The trial judge noted that this legislation does
    not create an exhaustive list of relevant factors and that the weight to be
    given to each factor depends on the circumstances of each case.

[30]

Second, the trial judge expressly
    considered the appellants argument that a continuation of the status quo with
    him as the primary caregiver would prevent uprooting the children and disrupting
    their routines. She concluded that these were important considerations but that
    they were more applicable to J.K. because V.K. had already made the transition
    to living in Toronto with the respondent. She noted that J.K. only started
    attending his current school shortly before the trial and that he did not have
    long-established friendships or relationships with teachers and staff at the
    school. The trial judge noted that J.K. would be required to change schools in
    another year to start high school and that the respondent had no intention of
    interrupting his current school year in any event.

[31]

Third, the trial judge weighed the
    appellants parenting plan, which involved the same arrangements he had made
    for the last seven years. She noted that the appellant works long hours and
    runs his own medical clinic. He required the assistance of two nannies who
    would continue to assist J.K. with his homework, take the children to
    appointments, and oversee shopping and preparation of their meals. The trial
    judge found that the respondent, on the other hand, worked on average three
    days per week and spent more time with the children.

[32]

Fourth, the trial judge found that
    there was an abundance of evidence that both children were subjected to
    verbal, emotional, and psychological abuse by the appellant. She specifically
    found that he physically disciplined V.K. and, on more than one occasion,
    struck her when he was in a fit of rage. She concluded that the appellants
    inability to control his anger and his frequent resort to physical discipline
    of V.K. over a long period of time placed both children at risk of physical and
    psychological harm in his care, even if there was no evidence that he had ever
    struck J.K.

[33]

Fifth, the trial judge carefully
    considered J.K.s bond with the appellant. However, she found that it was in
    his best interests that he be removed from the appellants grip. The trial
    judge held:

Still, the greatest factor in favour of
    maintaining J.K.s primary residence with his father is his strong emotional
    attachment to K.K. He has been in his fathers primary care for most of his
    living memory. Separating J.K. from his father to live principally with his
    mother will no doubt have a serious emotional impact on him. I am, however,
    convinced that he needs to be removed from the poisonous atmosphere of his
    fathers orbit in order to escape the crushing pressure under which he has been
    placed. His best interests necessitate not only that he lives principally with
    his mother and sister, but also that he has no contact with his father for a temporary
    period of time.

[34]

Finally, the trial judge found
    that
the respondent, in
    contrast to the appellant who had devoted significant energy to vilifying her
    in the childrens eyes, has been consistently nurturing, yet firm and
    responsible, in her parenting.

[35]

Contrary to the appellants
    submission, the trial judge thoroughly considered J.K.s best interests. She
    sensitively and carefully considered only the best interests of each child as
    required by s. 16(1) of the
Divorce Act
. She clearly considered all factors related to the
    circumstances of each child, giving primary consideration to each childs
    physical, emotional and psychological safety, security and well-being, as
    required by s. 16(2). There is no basis to suggest that she erred in the
    assessment of best interests. Accordingly, this ground of appeal fails.

B.

ASSESSMENT OF S. 30 CLRA REPORTS

(1)

The Trial Judges Ruling

[36]

As noted above, the appellant
    father asked the trial judge to admit Dr. Goldsteins s. 30 CLRA reports
    and letters into evidence and to consider the parenting recommendations
    contained within.

[37]

The respondent objected to the
    admissibility of Dr. Goldsteins evidence. Her objection was based on findings
    of the CPSO arising from complaints that she filed against him. To support her
    objection, she sought to admit several items: a copy of the decision of the ICR
    Committee of the CPSO, copies of documents put before the ICR Committee, and a
    print-out of the CPSOs on-line Public Register indicating Dr. Goldsteins
    member status and his undertakings to the Discipline Committee of the CPSO. The
    reasons of the ICR Committee reveal that it had serious concerns about Dr.
    Goldsteins approach to the s. 30 assessment in the present case and concluded
    that he would benefit from remediation. The public undertakings restricted Dr.
    Goldsteins practice such that he undertook not to conduct any new assessments
    of individuals he believes have been subject to or have engaged in parental
    alienation and to terminate any ongoing practice related to parental
    alienation.

[38]

Dr. Goldstein also undertook not to
    provide opinion evidence about parental alienation to any third party, whether
    orally or in writing, in regards to individuals he had assessed or treated,
    except as required by law, in which case he was to advise the relevant parties,
    in advance of providing such opinion evidence, to consult the CPSOs Public
    Register.

[39]

The appellant objected to the admissibility of
    all the CPSO documents, in part because of the statutory prohibition found in
    s. 36(3) of the RHPA. Section 36(3) renders inadmissible in a civil proceeding
    a record of a proceeding under the RHPA, or a report, document or thing
    prepared for or statement given at such a proceeding.

[40]

The trial judge noted that the
    statutory prohibition did not render inadmissible the
fact
that a complaint was made and did not capture the website information
    referring to the undertakings given by Dr. Goldstein. The trial judge then
    proceeded to interpret s. 36(3) of the
RHPA
 specifically, whether the case before her fell within the meaning of a
    civil proceeding, thus engaging the prohibition.

[41]

After laying out the principles of
    statutory interpretation, the trial judge drew several distinctions between
    traditional civil proceedings and family law litigation, the interests at
    play and remedies available in each. She noted that her task was to interpret
    the legislation within the distinct contextual framework of family law
    parenting disputes wherein the childrens best interests are paramount.

[42]

The trial judge found that to
    consider this case a civil proceeding would yield an absurd result contrary
    to the legislatures intention. Upholding the prohibition would require her to
    ignore the ICR Committees findings. This, in turn, would force the respondent
    to duplicate the CPSO proceeding by calling expert evidence and proving
    deficiencies in the assessors reports from square one, resulting in more delay
    and expense in the litigation. Furthermore, finding the prohibition applied
    would mean determining the childrens best interests without reference to
    highly probative evidence about the validity of the opinions expressed by the
    court-appointed assessor.

[43]

The trial judge held that
    admitting the CPSO materials in the present case would not undermine the objectives
    of s. 36(3). Ultimately, she concluded that s. 36(3) of the RHPA did not apply,
    and in addition to her decision to admit the assessors public undertakings as
    information not captured by s. 36(3), she proceeded to admit the ICR
    Committees decision. Given the ICR Committees findings that the assessment
    reports were conducted in a substandard manner, she gave no weight to Dr.
    Goldsteins written recommendations, and concluded by noting that, in the
    alternative, had she not admitted the ICR decision, she still would not have
    relied on Dr. Goldsteins opinions unless the appellant produced the assessor
    for cross-examination, which he was unable to do.
[3]

(2)

The Appellants Argument

[44]

The appellant submits that the trial judge erred
    in treating s. 36(3) of the RHPA as inapplicable, which makes records of
    regulatory proceedings at the CPSO and decisions made in them inadmissible in
    civil proceedings. He argues that the trial judge erred in concluding that a
    family law proceeding is not a civil proceeding as contemplated by the RHPA. Her
    decision to admit the CPSO materials tainted her decision and she erroneously
    gave no weight to the assessors opinion or recommendations.

(3)

Does s. 36(3) of the RHPA prohibit the admission of the CPSO materials?

[45]

Section 36(3) of the RHPA

provides the following:

No record of a proceeding under this Act, a health profession
    Act or the
Drug and Pharmacies Regulation Act
,
    no report, document or thing prepared for or statement given at such a
    proceeding and no order or decision made in such a proceeding is admissible in
    a civil proceeding other than a proceeding under this Act, a health profession
    Act or the
Drug and Pharmacies Regulation Act
or a proceeding relating to an order under section 11.1 or 11.2 of the
Ontario Drug Benefit Act
.

[46]

As the trial judge correctly
    stated, these words must be read in their entire context and in their
    grammatical and ordinary sense harmoniously with the scheme of the Act, the
    object of the Act, and the intention of the legislature:
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21;
Bell ExpressVu Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

[47]

On a plain reading, this section
    creates a blanket prohibition against admitting in a civil proceeding any records,
    reports or documents directly related to a proceeding under the RHPA. The text
    of the provision leaves no room for exception or discretion in relation to the
    specific items mentioned: a record of a proceeding, a
report, a document
    or thing prepared for or statement given at such a proceeding, or an order or decision
    made in such a proceeding
.

[48]

That said, anything not
    specifically mentioned is fair game. As mentioned, the trial judge noted that
    the statutory prohibition did not preclude admissibility of evidence of the
fact
that a complaint was made and did not capture the website information
    referring to the undertakings given by Dr. Goldstein. We agree. The law is
    clear that the
fact
that a complaint was launched, an investigation held,
    and a decision rendered by the IRC are not covered by s. 36(3) of the RHPA and
    may be otherwise provable in court, without reference to a prohibited document:
F. (M.) v. Sutherland
(2000)
, 188 D.L.R. (4th) 296
    (Ont. C.A.), at para. 45, leave to appeal to S.C.C. refused, [2000] S.C.C.A.
    No. 531;
Pouget v. Saint
    Elizabeth Health Care
, 2012 ONCA
    461, 294 O.A.C. 293, at para. 25;
Ontario v. Lipsitz
, 2011 ONCA 466,
281
    O.A.C. 67, at para. 114, leave to appeal refused, [2011] S.C.C.A. No. 407;
Armitage v. Brantford General Hospital
(2004), 71 O.R. (3d) 44 (S.C.), at para. 29.

[49]

As well, Dr. Goldsteins
    undertakings, while they may have been made in response to a decision or order
    covered by s. 36(3), are also not themselves either a decision or order
    captured by s. 36(3). The undertakings were generated by Dr. Goldstein himself,
    not by the board, and presumably were also generated after the board had
    completed its process and released its decision. The rationale that applies to
    keeping the other items listed in s. 36(3) confidential does not apply to them.
    Public undertakings are not meant to be confidential, they provide the public
    with notice, and their admission in civil proceedings where a trial judge deems
    them relevant does not undermine the purpose of s. 36(3), discussed below. We
    therefore agree with the trial judge that the undertakings themselves were
    admissible.

[50]

However, we respectfully disagree
    with the trial judges conclusion that all proceedings involving the best
    interests of the child are not civil proceedings and entirely evade the reach
    of s. 36(3) of the RHPA. In our view, an exemption for all family law cases goes
    too far.

[51]

First, private family law
    disputes, while distinct from other civil litigation in many respects, are
    civil proceedings in the ordinary sense of the word: they concern private
    relations between members of the community in contrast to criminal or child
    protection proceedings, which both involve state action. If the legislature had
    intended to exempt family law litigation from the reach of s. 36(3), it would
    have said so.

[52]

As this court explained in
Sutherland
, at para. 29,

The purpose of s. 36(3) is to encourage the reporting of complaints
    of professional misconduct against members of a health profession, and to
    ensure that those complaints are fully investigated and fairly decided without
    any participant in the proceedings  a health professional, a patient, a
    complainant, a witness or a College employee  fearing that a document prepared
    for College proceedings can be used in a civil action.

[53]

The
    broad objective of the provision is to keep College proceedings and civil
    proceedings separate:
Sutherland,
at para. 31;
    see also
Lipsitz
,
at paras. 101-3.

[54]

A global exemption to s. 36(3) for all family law
    cases would significantly erode the reach and purpose of s. 36(3). This is
    because unfortunately, family law disputes involving the best interests of
    children are fairly common. It would not be unusual for one of the many
    participants in an RHPA proceeding to at some point become involved in a family
    law proceeding involving the best interests of children.

[55]

Fortunately, it is possible to
    preserve the integrity and purpose of s. 36(3) of the RHPA while also giving effect
    to the purpose of Part III of the CLRA, which includes ensuring, that
    applications to the courts respecting decision-making responsibility, parenting
    time, contact and guardianship with respect to children will be determined on
    the basis of the best interests of the children and to s. 30 of the CLRA,
    under which Dr. Goldsteins report was prepared, the purpose of which is to
    report to the court on the needs of the child and the ability and willingness
    of the parties or any of them to satisfy the needs of the child.

[56]

The trial judge was aware of the
    need to avoid absurdity in the context of these two distinct legislative
    schemes. Specifically, the trial judge was appropriately concerned that in the
    circumstances of this case, where a motion judge had relied on Dr. Goldsteins
    opinions in finding parental alienation by the mother, which in turn resulted
    in a reversal of custody and a temporary order that lasted for more than six
    years, the court should not be deprived of highly probative evidence regarding
    the validity of those opinions and recommendations.

[57]

However, absurdity is avoided and
    the ordinary meaning of s. 36(3) preserved in two ways. First, although it is
    indisputable that increased efficiency could be achieved by allowing for the
    admissibility in family law proceedings of orders or decisions made at a
    proceeding governed by the RHPA, or a r
eport, document or thing
    prepared for or statement given at [an RHPA governed] proceeding, s.
36(3) does not create an evidentiary privilege
    relating to the information or evidence used to prepare such orders, decisions,
    reports, documents, things or statements. There is nothing to prevent the
    parties from selecting and presenting such background evidence or information
    so that a trial judge is not deprived of highly probative evidence regarding
    the validity of relevant opinions and recommendations. Second, and as already
    explained, s. 36(3) does not apply to the fact that the complaint was made, the
    fact that an investigation was conducted, and the fact that a board decision
    was rendered and undertakings given. As this case demonstrates, depending on
    the circumstances those facts may be relevant when determining the probative
    value to give to opinions and recommendations. When these limitations on the
    reach of s. 36(3) are considered, harmony [can be achieved] between the
    various statutes enacted by the same government:
Therrien
    (Re)
, 2001 SCC 35, [2001] 2 S.C.R.
    3, at para. 121;
Shaver-Kudell Manufacturing Inc.
    v. Knight Manufacturing Inc.
, 2021
    ONCA 925, at para. 28.

(4)

Conclusion

[58]

In conclusion, while the
    confidentiality protections of s. 36(3) of the RHPA do apply to family law
    proceedings involving children, in our view the trial judges decision in this
    case was justified. Taken together, the fact of the complaint, the fact that an
    investigation was conducted and a decision given, and the content of the public
    undertakings were all admissible and sufficient to support the decision to give
    Dr. Goldsteins opinions no weight.

[59]

We note that it is by no means
    clear that Dr. Goldsteins opinions, even given more weight, would have
    affected the trial judges overall decision to reverse the status quo parenting
    arrangement. We say this acknowledging that the weight to be attached to the
    assessors evidence of any expert is a matter for the trier of fact. The trial judge
    was aware that the opinion likely supported the status quo because Dr.
    Goldsteins reports were used by the motion judge in making an interim order. However,
    the trial judge gave detailed reasons for why she did not agree with
    maintaining the status quo. As we have set out in this judgment, we are
    satisfied that her findings against the respondents credibility and the best interests
    of J.K. are clearly supported by the record.

[60]

We would not give effect to this
    ground of appeal.

C.

OTHER GROUNDS

[61]

While other grounds of appeal
    were advanced by the appellant in his factum, they were not pressed in oral
    argument or only dealt with in a cursory manner. These issues may be dealt with
    summarily as follows.

(1)

The Assessment of the Appellants Credibility and Evidence

[62]

The trial judge found that the
    appellant was an incredible witness. In contrast, she found that the respondent
    was a credible witness and that her evidence was corroborated by other credible
    evidence at trial including the testimony of the Office of the Childrens
    Lawyer (OCL) clinician, Ms. MacKenzie, and the Childrens Aid Society (CAS)
    worker, Mr. Thomas. The appellant submits that the trial judge made several
    palpable and overriding errors in her assessment of his evidence. He argues
    that the trial judge improperly impugned his credibility, failed to consider
    the whole of the evidence, and improperly drew adverse inferences against him. We
    disagree.

[63]

In assessing his credibility, the
    trial judge found that the appellant:

i.

made several misrepresentations in his Form 35.1 sworn parenting
    affidavit filed before the court;

ii.

concealed from a case supervision judge his plans to travel with the
    children to India;

iii.

misrepresented the status of his health to obtain adjournments of the
    trial under false pretexts;

iv.

tendered a fake Indian hospital record as evidence during the trial;

v.

demonstrated a selective memory during cross-examination;

vi.

became evasive when confronted with difficult questions; and

vii.

made
    several prior inconsistent statements.

[64]

These unequivocal findings were
    amply supported in the record, and there is no basis to interfere with any of
    them.

(2)

Adequate Weight to J.K.s views and preferences

[65]

The appellant submits that the
    trial judge failed to give adequate weight to J.K.s views and preferences as required
    by law. We reject this submission. As noted above, the trial judge carefully
    considered reports from the CAS, the OCL
Voice of
    the Child
report, and the evidence
    of Mr. Thomas and Ms. MacKenzie (the author of the OCL
Voice of the Child

report) setting out the childrens
    views and preferences. The trial judge was aware of J.K.s preference to live
    with the appellant. However, in relation to J.K. the trial judge found that J.K.s
    level of maturity is commensurate with his pre-teen age and that his views
    have been profoundly influenced by [the appellants] relentless vilification of
    [the respondent].

[66]

In a case
where both parties made allegations of parental
    alienation against the other, the trial judge was required to carefully examine
    the possibility that the childrens views may not be independently formed. The
    trial judges reasons demonstrate common sense and a reasoned approach to the
    childrens views. The CAS reports, the OCL
Voice of
    the Child
report, and the
    testimony from the authors of the reports were reviewed by the trial judge and sufficient
    to convey the childrens views and preferences. The trial judge recognized that
    J.K. had a strong emotional attachment to the appellant but felt that his views
    had been manipulated by the appellant. We defer to her findings and dismiss
    this ground of appeal.

DISPOSITION

[67]

As explained above, this appeal was
    dismissed at the conclusion of the oral hearing. The panel requested that if
    the parties were unable to agree on costs, the court would receive brief
    written submissions. We have received those submissions. The respondent is
    entitled to costs in the amount of $20,000 all inclusive.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.

S.
    Coroza J.A.

[1]
We use the former terminology of custody (which is no longer used
    in the legislation) only when referring to this order made in March 2014.

[2]

Although support issues were also litigated at trial, the
    appellant did not advance any support arguments in his factum or oral
    submissions. Needless to say, there is no basis to interfere with the trial
    judges findings on any of the support issues.

[3]

The trial judge also noted that the appellant did not ask
    her to compel Dr. Goldstein to attend cross-examination, but had he done so,
    she would have denied the request based on [Dr. Goldsteins] undertakings. Though
    not directly argued on appeal except for a brief mention in oral argument, we note
    that, as set out above, Dr. Goldsteins undertakings included an exception for
    giving opinions about individuals he has assessed where required by law. A
    court order summoning him to testify would have engaged this exception.