COURT OF APPEAL FOR ONTARIO

CITATION: Liu v. Huang, 2020 ONCA 450

DATE: 20200710

DOCKET: C66143

Rouleau, van Rensburg and Roberts
    JJ.A.

BETWEEN

Chong Liu

Applicant

(Respondent)

and

Fang Huang

Respondent

(Appellant)

Gary S. Joseph and Stephen Kirby, for
    the appellant

Toni E. Wharton, for the respondent

Heard: in writing

On
    appeal from the order of Justice Freya Kristjanson of the Superior Court of
    Justice dated October 9, 2018, with reasons reported at 2018 ONSC 3499, and from
    the costs order dated December 14, 2018, with reasons reported at 2018 ONSC
    7441, 19 R.F.L. (8th) 403.

REASONS FOR
    DECISION

A.

Overview

[1]

The appellant mother appeals from the trial
    judges order granting sole custody of their young daughter to the respondent
    father, ordering her to pay child support and other amounts, and providing for
    certain credits to the respondent father on equalization. If unsuccessful on
    her appeal, the appellant seeks leave to appeal the trial judges costs order
    that the appellant pay full recovery costs to the respondent.

[2]

At the heart of this proceeding was a high-conflict
    contest over the custody of the parties young daughter. The parties separated
    under the cloud of allegations of domestic violence against each other. The appellants
    focus at the 12-day trial was to demonstrate that the respondent was an angry, inattentive
    father who cared little for his daughter. The respondent denied these
    allegations and attested to the appellants violence against him, while
    nevertheless agreeing that she was a good mother to their daughter.

[3]

The trial judge noted at the beginning of her
    lengthy reasons that the credibility and reliability of the parties were key in
    this case. After a detailed assessment, the trial judge rejected the appellants
    version of events and accepted the evidence called by the respondent. She found,
    among other things, that the appellant had fabricated allegations of domestic
    violence by the respondent, and that the appellant had been violent toward the
    respondent. She concluded that there were no domestic violence concerns that
    would affect the appellants ability to parent. However, she concluded that the
    appellant had made concerted efforts to exclude the respondent from their
    daughters life, and that the respondent would best support access and consultation
    about significant issues involving the child, and who placed the childs best
    interests first. As a result, the trial judge determined that it was in the best
    interests of the parties daughter to grant the respondent sole custody of
    their daughter with a shared parenting schedule providing for residence with
    each parent 50% of the time.

[4]

With respect to the parties financial and
    property issues, the trial judge found that the appellant was not entitled to
    spousal support, either on a compensatory or a needs basis. She ordered the
    appellant to pay the respondent $74,812.83 as equalization of net family
    property, $28,392.12 as reimbursement for expenses paid on her behalf by the
    respondent, and child support plus a proportionate contribution for other
    expenses for their daughter. The trial judge ordered that the net proceeds of
    sale of the parties matrimonial home would be divided equally between the
    parties, subject to certain credits for payments owing between the parties,
    including occupation rent that the trial judge ordered that the appellant pay to
    the respondent until the closing of the sale of the matrimonial home.

[5]

For the following reasons, we dismiss the appeal
    and deny leave to appeal the costs award.

B.

Issues and Analysis

(1)

Order Regarding Custody and Support

[6]

The appellant raises several grounds of appeal
    which we address in turn.

(i)

There Was No Denial of Natural Justice

[7]

The appellant submits the trial process denied her
    natural justice. She argues that following the trial, the respondents trial counsel
    improperly communicated directly with the trial judge. Further, she contends
    that the trial judge incorrectly issued a temporary order granting sole custody
    of the parties daughter to the respondent and her reasons for judgment delivered
    three months later provided after-the-fact justification for her temporary
    order.

[8]

We are not persuaded by these submissions. There
    was no unfairness in these trial proceedings.

[9]

The exchanges between counsel for both parties
    and the trial judge about the respondents re-employment following trial did
    not violate natural justice nor r. 1.09 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194. Communication with the trial judge by email was initiated
    on consent. The appellants trial counsel was copied on the correspondence, did
    not object to this communication, and had an opportunity to be heard.

[10]

Moreover, we see no error in the trial judge
    issuing a temporary custody order following trial that was incorporated into
    the final order. As the appellant acknowledges, it was within the trial judges
    discretion to issue an order and subsequently provide reasons:
R. v. Teskey
,
    2007 SCC 25, [2007] 2 S.C.R. 267, at para. 16. In this 12-day trial where
    custody of the parties young daughter was the key focus and had been the subject
    of considerable acrimony between the parents for several years, it was a reasonable
    exercise of the trial judges discretion to advise the parties as quickly as
    possible of her determination of this extremely important issue. Her detailed
    reasons released only three months later do not give rise to any suggestion of
    after-the-fact reasoning.

(ii)

The Credibility Assessment Was Fair

[11]

The appellant maintains that the trial judges
    credibility assessment of the parties was unfair, uneven and erroneous and that
    she failed to consider the whole of the evidence.

[12]

We see no error in the trial judges credibility
    assessment of the parties. Her reasons reflect a careful and thorough review of
    the whole of the evidence, including the frailties and strengths of both parents
    credibility and reliability. The trial judges negative assessment of the
    appellants credibility was open to her to make and included consideration of the
    significant inconsistencies in her evidence, as well as her introduction of
    new issues, allegations and documents at trial. Importantly, the appellant
    takes no issue with the trial judges acceptance of the evidence of Haifang Zhang,
    a friend of both parties, which supported the respondents version of events,
    including the appellants unreasonable exclusion of the respondent because she wanted
    [the respondent] to leave her life and leave the babys life and she did not
    want him to see the baby again.

[13]

The appellant argues that the trial judges credibility
    analysis was impaired by the following additional errors: (1) she accepted the
    respondents evidence concerning the incidents of domestic violence between the
    parties without considering the contradiction about this issue in his pleadings;
    (2) she drew an adverse inference against the appellant for her failure to call
    her parents to corroborate her allegations of domestic abuse, and she failed to
    draw the same inference against the respondent for failing to call his mother
    as a witness to attest to the circumstances surrounding the 9-1-1 call; (3) she
    relied on unauthenticated hearsay evidence contained in a police occurrence
    report; and (4) she misapplied the rule in
Browne v. Dunn
(1893), 6 R.
    67 (H.L.), in her assessment of the appellants evidence.

[14]

We are not persuaded by these submissions.

[15]

With respect to the respondents pleadings, the appellant
    submits that the respondent departed from the statement in his Amended Application
    that there had been no physical violence between the parties before the date of
    separation. In his Reply to the allegations contained in the appellants Answer,
    he alleged the incidents of violence were committed against him by the appellant
    in 2007 and 2012.

[16]

When the respondent was cross-examined on this
    alleged contradiction, he explained that he did not initially think the incidents
    were relevant to the issues before the court. When the appellant included
    allegations of domestic violence against him in her Answer, he addressed those
    incidents in his Reply, advancing his position that it was the appellant who was
    the aggressor in these incidents. It does not appear that the appellant took
    the position at trial that the alleged contradiction constituted the withdrawal
    of an admission. In her closing submissions, the appellant included the allegations
    contained in the respondents Reply as part of her recitation of the facts. However,
    nowhere in her closing submissions did she assert that there was a withdrawal
    of an admission or a contradiction between the Amended Application and the
    Reply.

[17]

The trial judge can hardly be criticized for not
    including something in her reasons regarding credibility that was not emphasized
    at trial as a material contradiction, let alone an alleged withdrawal of an
    admission. Moreover, we do not see the respondents pleadings as giving rise to
    any contradiction or clear withdrawal of an admission, but rather as a clarification
    of the respondents position in response to the appellants Answer. Regardless,
    the manner in which the respondent pleaded his case occasioned no prejudice to
    the appellant. The respondent detailed the incidents of violence alleged to
    have been committed by the appellant against the respondent in his Reply more
    than two years prior to trial. Her trial counsel cross-examined the respondent
    on the Reply allegations and dealt with them in her closing submissions.

[18]

In any event, the trial judges credibility
    analysis did not depend on the parties pleadings, but rather on her assessment
    of their testimony and the other evidence presented at trial. The evidence at
    trial as a whole provided an ample basis for her conclusions. She was under no
    obligation to reference every alleged inconsistency in the evidence or respond
    to every argument put before her:
R. v. A.M.
, 2014 ONCA 769, 123 O.R.
    (3d) 536, at para. 14.

Based on her assessment of the whole of the
    evidence, including the respondents explanation for only including the allegations
    in his Reply, which she was entitled to accept, the trial judge reasonably did
    not impugn the respondents credibility because of the manner in which he
    pleaded.

[19]

Further, in the circumstances of this case, it
    was open to the trial judge to draw an adverse inference against the appellant.
    The appellants allegations of domestic abuse throughout the marriage and on
    the date of separation raised important questions materially affecting the
    issues of custody and access. She maintained that her parents had witnessed the
    alleged abuse. However, she did not call her father as a witness and her mothers
    affidavit was silent in relation to the appellants allegations of domestic assault
    by the respondent. This was contrary to the appellants indication at the trial
    management conference that her mother would attest to issues of custody and
    access, as well as financial issues. Her mothers affidavit only addressed financial
    issues. The situation concerning the respondents mother is distinguishable because
    the circumstances of the 9‑1‑1 call that she witnessed were
    supported by the recording of the call itself.

[20]

The police occurrence report concerned the
    incident where the appellant called 9-1-1 and, as the trial judge found, made very
    serious but unfounded allegations against the respondent. Both parties testified
    at trial concerning this incident. No issue regarding its admissibility was
    raised at trial. Rather, both parties included the police report in their exhibit
    books and referenced its contents during their trial testimony. The trial judge
    placed little reliance on the police report, referring to it only to note her
    agreement with its conclusion that the appellants side of the story regarding
    this incident did not make sense. Her rejection of the appellants version of
    events depended principally on her assessment of the parties trial testimony
    and the recording of the 9-1-1 call, which she reviewed in the portion of her
    reasons immediately preceding her reference to the report.

[21]

Finally, the trial judge did not misapply the
    rule in
Browne v. Dunn
. This rule of trial fairness requires parties
    to cross-examine opposing witnesses on points that the party will later seek to
    contradict by calling evidence to that effect and thereby give witnesses the opportunity
    to address major contradictions so that their evidence can be assessed fairly. It
    is not an inflexible rule but rather a matter within the trial judges
    discretion. Its application is therefore subject to significant deference on
    appeal: see
Nemchin v. Green
, 2019 ONCA 634, 147 O.R. (3d) 530, at
    paras. 27-29;
R. v. Quansah
, 2015 ONCA 237, 125 O.R. (3d) 81, at
    paras. 80-82, leave to appeal refused, [2016] S.C.C.A. No. 203.

[22]

The appellant had failed to cross-examine Mr.
    Zhang on an important conversation between them that she detailed in her direct
    examination about her fear of the respondent and her efforts to find a safe
    way to include him in their daughters life. This directly contradicted Mr.
    Zhangs evidence and should have been put to him during cross-examination. The respondents
    counsel promptly objected to the admission of this evidence as contrary to
Browne
    v. Dunn
, and the trial judge heard submissions about whether the rule had
    been breached and the appropriate remedy. She concluded that it was not
    suitable to recall Mr. Zhang. She permitted Ms. Huang to testify, but
    ultimately concluded that the failure to cross-examine Mr. Zhang about the conversation
    called into question the reliability of her evidence. She stated that she
    preferred Mr. Zhangs evidence where the evidence of the two were in conflict.

[23]

The appellant contends that there was no breach
    of the rule in
Browne v. Dunn

because her counsel had cross-examined
    Mr. Zhang on one aspect of his testimony: that she had admitted to scratching
    the respondent during the date of separation incident. The appellant also
    suggests that any breach could have been remedied by recalling Mr. Zhang as a witness.

[24]

We disagree. The argument that the rule was not
    breached was made before the trial judge and properly rejected. The appellants
    counsel did not cross-examine Mr. Zhang about the specific and important
    conversation that the appellant later recalled in her own testimony. There was
    no question that the rule in
Browne v. Dunn

was engaged.

As
    for remedy, it was within the trial judges discretion not to recall Mr. Zhang and
    to approach the appellants evidence as she did. We see no error in the exercise
    of her discretion.

[25]

We therefore see no reason to interfere with the
    trial judges credibility assessment.

(iii)

The Trial Judge Properly Considered the Best Interests
    of the Child

[26]

The appellant submits that the trial judge failed
    to focus on the best interests of the child and erroneously based her determination
    of custody on irrelevant considerations of parental rights and conduct.

[27]

We disagree. To the contrary, the trial judges
    focus was entirely on the best interests of the parties daughter. In particular,
    the trial judge recognized the importance of the daughter having the benefit of
    both parents in her life. She also acknowledged that notwithstanding the
    appellants efforts to exclude the respondent from their daughters life, the
    appellant was otherwise a good and loving mother. The trial judge contrasted
    the appellants refusal to engage in joint decision-making or even to consult
    with the respondent about their daughter, with the respondents conduct that
    respected the importance of the appellants role in their daughters life. The
    trial judge found that it was the appellants inability to put the childs
    interests above her own and to permit their daughter to foster a relationship
    with both parents that warranted an award for sole custody to the respondent. Moreover,
    the trial judge concluded that the appellants unwillingness and inability to
    communicate with the respondent precluded an order for joint custody. Nevertheless,
    the trial judges custody order that requires their daughter to reside equally with
    her parents fairly reflects the equal importance of both parents in their daughters
    life.

(iv)

The Trial Judge Made No Error by Including RRSP Withdrawals
    in the Appellants Income

[28]

The appellant submits that the trial judge erred
    in her assessment of the appellants income for support purposes by including
    the appellants 2017 registered retirement savings plan (RRSP) withdrawals.

[29]

It was open to the trial judge to include the appellants
    2017 RRSP withdrawals in her income for support purposes. As the appellant acknowledges,
    the starting point is a partys total income as indicated on the partys T1
    income tax form, which may include RRSP income:
Federal Child Support Guidelines
,
    S.O.R./97-175, s. 16; see
Fraser v. Fraser
, 2013 ONCA 715, 40 R.F.L.
    (7th) 311, at paras. 97-98. As such, RRSP income received in a particular year
    is presumptively part of a spouses income. Section 17 of the
Guidelines
permits a court to depart from the income determination made under s. 16 where
    it is of the opinion that this would not be the fairest determination of income.
    However, this exclusion is not mandatory and remains within a courts discretion:
Fraser
, at paras. 103-104, 107.

[30]

We see no error in the trial judges exercise of
    her discretion. She was alive to the issue of potential unfairness. As the
    appellant included RRSP withdrawals in the respondents income to calculate his
    income for child support purposes, the trial judge reasonably determined that a
    reciprocal arrangement would not be unfair in this litigation. Moreover, any
    prejudice to the appellant is mitigated by the terms of the order. The trial
    judge specifically provided for annual retroactive adjustment of child support
    based on the previous years income. As a result, if the appellant does not draw
    from her RRSP in a given year, such that her total income is lower, she will be
    compensated for any overpayment in that year and the child support amount will
    be adjusted for the following year.

(v)

The Trial Judge Made No Error in Her Assessment
    of Post-separation Adjustments

[31]

Finally, the appellant submits that the trial judge
    erred in her assessment of the post-separation adjustments claimed by the
    respondent and effectively permitted the respondent triple recovery for his payment
    of expenses for the matrimonial home.

[32]

We are not persuaded by this submission. The
    trial judge did not err in her treatment of the respondents post-separation
    contributions. The trial judge determined the child support and s. 7 expenses retroactive
    to the date of separation that the respondent owed to the appellant. The trial
    judges finding that the respondent had paid certain of the parties joint
    expenses post-separation was rooted in the record. As a result, the trial judge
    allowed the respondent to offset amounts that he had paid on behalf of the
    appellant towards joint expenses from the amounts owing by him to the appellant
    for child support and s. 7 expenses.

[33]

The trial judge also permitted the respondent to
    offset the occupation rent that she ordered against the appellant from these
    amounts. This order was within the trial judges discretion and was reasonable in
    the circumstances. The appellant had sole use of the jointly-held matrimonial
    home, which she directed the respondent to leave, and he could not have reasonably
    moved back. The respondent had sought the sale of the home since separation and
    the trial judge reasonably attributed the delay in bringing a motion to sell the
    house to the respondents litigation focus on access issues. We see no reason to
    interfere with the trial judges exercise of her discretion.

[34]

Neither of these offsets constitute double or
    triple recovery for the respondent.

[35]

Overall, we see no reason to interfere with the trial
    judges conclusions on these issues and we accordingly dismiss the appeal.

(2)

Costs Order

[36]

As we are dismissing the appeal on the merits,
    the appellant requires leave to appeal the costs award made against her in the
    amount of $249,765.47:
Courts of Justice Act
, R.S.O. 1990, c. C.43, s.
    133(b). In order to be granted leave to appeal, the appellant must show strong grounds
    on which this court could find the trial judge erred in exercising her
    discretion to award costs:
Hobbs v. Hobbs
, 2008 ONCA 598, 54 R.F.L. (6th)
    1, at para. 32. The appellant has failed to meet this threshold.

[37]

We see no error in the exercise of the trial
    judges discretion to award the respondent his costs on a full recovery basis. The
    trial judge considered the general legal principles governing costs in family litigation,
    including the overarching factors of reasonableness and proportionality. She noted
    this courts observations in
Mattina v. Mattina
, 2018 ONCA 867, at
    para. 10, that modern family cost rules are designed to foster three fundamental
    purposes: (1) to partially indemnify successful litigants; (2) to encourage
    settlement, and; (3) to discourage and sanction inappropriate behaviour by
    litigants. She reviewed and applied the applicable provisions of rr. 18 and 24
    of the
Family Law Rules
respecting offers to settle and costs. In particular,
    she noted the reasonableness criteria set out in r. 24(5), the costs consequences
    for a party who has acted in bad faith under r. 24(8), and the various factors
    set out in r. 24(12), including the reasonableness and proportionality of each
    partys behaviour, the time spent by each party, and any written offers to
    settle.

[38]

The trial judges reasons reflect these principles.
    She made her costs order on the basis that the respondent exceeded his offer to
    settle and that the appellant took unreasonable and obstructive positions throughout
    the proceedings. She concluded that the appellant had engaged in bad faith
    conduct that was designed to inflict emotional and financial harm to the [respondent],
    [was] harmful to the daughter, and [was] taken to deceive both the [respondent]
    and the Court. She determined that the respondents substantial legal fees could
    have been avoided but for the unreasonable positions and bad faith conduct of
    the appellant. The trial judges findings were amply supported by the record.

[39]

While the amount awarded by the trial judge is
    large, when considered in the context of these proceedings, it is reasonable,
    proportionate and fair. These costs were incurred over three years of litigation
    made acrimonious and costly by the appellants actions, which culminated in a 12-day
    trial. The trial judge found that the appellant had engaged in deceitful and obstructive
    conduct and was not a credible or reliable witness. The respondent was credible
    and reliable as a witness, did not overreach in his positions at trial, and supported
    the appellant as a good parent. His positions were reasonable and prevailed.

[40]

We do not accept the appellants submission that
    the trial judge erred by failing to consider the impact this costs order will
    have on the appellants ability to provide for her daughter. This was not an issue
    before the trial judge. The appellant made no such submission to the trial
    judge. Nor, significantly, is there evidence that this will be the case. Indeed,
    according to the appellants financial circumstances as reflected in her
    financial statement at trial, she had a current income of over $79,000 per year
    and will have approximately $100,000 remaining from her share of the proceeds
    of the matrimonial home, after payment of her liabilities, including the costs
    order.

[41]

As a result, leave to appeal is denied.

C.

Disposition

[42]

For these reasons, the appeal from the trial judges
    order on the merits is dismissed. We do not grant leave to appeal the costs
    order.

[43]

The respondent claims his costs of this appeal on
    a substantial indemnity basis. We see no basis to depart from the usual partial
    indemnity scale on this appeal. While the appellant was unsuccessful, her appeal
    was not totally without merit or conducted in a way that would warrant the exceptional
    scale of substantial indemnity costs.

[44]

Accordingly, the respondent is entitled to his
    partial indemnity costs. If the parties cannot agree on the amount, they may submit
    brief written submissions of no more than two pages, plus their respective costs
    outlines, electronically to
coa.e-file@ontario.ca
within
    ten days of the release of these reasons.

Paul
    Rouleau J.A.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: M.A.A. v. D.E.M.E., 2020 ONCA 486

DATE: 20200729

DOCKET: C68182

Benotto, Fairburn and Jamal
    JJ.A.

BETWEEN

M.A.A.

Respondent
(Applicant/Respondent on Cross-Application)

and

D.E.M.E.

Appellant
(Respondent/applicant on Cross-Application)

and

The Office of the Childrens Lawyer

Counsel for the Children

Sarah Clarke and Cheryl Robinson, for the appellant

Daryl Gelgoot,
    Vanessa Amyot and Barbara Jackman, for the respondent

Sheena Scott,
    Caterina Tempesta and Roger Rowe, for the Office of the Childrens Lawyer

Michael Bossin,
    Laïla Demirdache, Jacqueline Bonisteel, and Jamie Chai Yun Liew, for Amnesty
    International Canada

Archana Arun
    Medhekar, for the Barbra Schlifer Commemorative Clinic

Maureen
    Silcoff and Adam B. Sadinsky, for the Canadian Association of Refugee Lawyers

Lorne Waldman,
    Charles Steven and Sumey Mulla, for the United Nations High Commissioner for
    Refugees

Heard: July 7, 2020 by video conference

On appeal from the order of Justice Lucy K. McSweeney
    of the Superior Court of Justice, dated February 19, 2020, with reasons
    reported at 2020 ONSC 1109.

Benotto J.A.:

[1]

The appellant is the mother of three children
    now ages 4, 7, and 11. Two years ago, she brought them from Kuwait to Canada
    without the respondent fathers consent. On arrival in Canada, she sought
    refugee status for herself and the children. She claims she fled an abusive
    relationship that put her safety and that of her children at risk of serious harm.
    The father denied the allegation and claimed that she wrongfully kidnapped the
    children.

[2]

The father applied for an order requiring that
    the children be returned to Kuwait. The mother asked Ontario to exercise jurisdiction
    to decide her custody claim. The basis for her claim was s. 23 of the
Childrens
    Law Reform Act
, R.S.O., 1990, c. C.12 (
CLRA
), which, despite
    other jurisdictional limits, permits an Ontario court to exercise its jurisdiction
    to make custody and access orders where the child is physically present in
    Ontario and the court is satisfied on a balance of probabilities that the
    child(ren) would suffer serious harm if removed from Ontario.

[3]

The application judge found that Ontario did not
    have jurisdiction under s. 23 because there was no risk of serious harm to the
    children. She ordered the children returned to Kuwait.

[4]

The mother appeals. She submits that the
    application judge erred in her determination of serious harm or, in the
    alternative, that the application should have been adjourned pending a
    determination of the refugee status. The mothers appeal is supported by the Office
    of the Childrens Lawyer (OCL) and the four interveners:
United Nations High Commissioner for Refugees (UNHCR),
    Canadian Association of Refugee Lawyers (CARL), Amnesty International Canada,
    and Barbra Schlifer Commemorative Clinic.

[5]

I conclude that the application judge erred in her
    treatment of the childrens evidence provided through the OCL. That evidence establishes
    a risk of serious harm. Ontario therefore has jurisdiction under s. 23 to make
    a custody and access order. I also conclude that it was an error to order the
    return of the children to Kuwait in the face of their asylum claim.

FACTS

[6]

The mother and father are Jordanian citizens. They
    married in Kuwait on May 30, 2008, where they continued to live with their
    three children: a son I.A., born May 2009; a son A.A., born May 2013; and
    daughter H.A., born December 2015.

[7]

The family appeared to have a successful life in
    Kuwait. Both parents worked, the mother as a senior human resources executive
    and the father for various financial institutions and a car resale business.
    The boys attended the British School of Kuwait. The family socialized with
    extended family and friends and participated in community and extracurricular
    activities with the children.

[8]

On March 14, 2018, an incident occurred which
    led to the separation of the parties. The mother alleges that she was attacked
    by the father in front of the children. She says that this was part of a pattern
    of ongoing personal and sexual violence that she suffered and could no longer
    tolerate. The police were called and advised the parties not to bring charges.
    The father denies the allegations.

[9]

The parties separated and commenced court
    proceedings in the Hawally Family Court in Kuwait. The mother and children
    stayed in the family home and the father had access every Friday for twelve
    hours and on certain holidays.

[10]

Two months later, on May 14, 2018, the mother
    left Kuwait with the children and sought refugee status in Canada. She did not
    seek the fathers consent, nor did she advise him in advance.

[11]

On October 3, 2018, the father commenced an
    application in Ontario under the
CLRA
, seeking the return of the
    children to Kuwait.

[12]

The mother filed a cross-application
    requesting that the court assume jurisdiction for custody and access. She
    submitted that the children would suffer serious harm if returned to Kuwait. She
    said the father had been violent towards her and the children and they were
    afraid of him. She referred to a legal system in Kuwait that cannot protect her
    or the children in a meaningful way. An affidavit from a  legal expert on
    Sharia law and statutory law in Kuwait was filed.

[13]

The application judge appointed the OCL and
    requested a Voice of the Child Report for the oldest boy, I.
[1]
The child described his father
    as mean, angry, and threatening. He described being hit with a belt and
    threatened with a hot iron. He said that while in Kuwait, his mother would
    protect him from his father, that his father would threaten to hurt him and that
    when he did this, his mother would get in his way thereby protecting him.

[14]

Mary Polgar, a Clinical Investigator with the
    OCL, interviewed I. and his brother A. Both children told her that they saw
    their father grab their mother on March 14, 2018. When describing the event, A.
    grabbed and squeezed his own mouth. I. said he did not know if it was choking
    or something else bad. The children were also interviewed by Mahesh Prajapat of
    the OCL.

[15]

Dr. Vincent Murphy, a child psychologist,
    conducted an assessment of I. He concluded that I.s logical-analytical and holistic
    problem-solving skills are at or slightly above the level of an average-age peer.
    Further, I. was fairly consistent in what he had to say, both about fear of
    his father abusing him were he to return to Kuwait, and in his desire to stay
    in Canada.

[16]

The father strenuously denied all allegations of
    abuse. He tendered evidence from seven witnesses including the childrens nanny
    that he was not a violent person, that they never witnessed abuse, and that he
    was a loving father. The childrens doctor wrote a letter confirming that he
    had never seen any signs of abuse. The father claimed that the mother only
    returned to Canada to be with her family and that the allegations of abuse are
    a ruse.

[17]

The application judge had originally planned to
    await the outcome of the refugee proceedings. However, in February 2020 when that
    determination had not been made, she released her decision.

DECISION OF THE APPLICATION JUDGE

[18]

The application judge addressed the requirements of s. 23 of the
CLRA
,
which authorizes the court to assume
    jurisdiction to make or to vary an order in respect of the custody of or access
    to a
child if the court is satisfied that the child would,
    on the balance of probabilities, suffer serious harm if the child is removed
    from Ontario.

[19]

The application judge concluded that the mother had not established
    that the children would suffer serious harm. She d
id
    not accept the mothers allegations of abuse. She found that:

When
    cross-examined on her affidavits, [the mothers] testimony was inconsistent,
    contradictory, and contradicted by other evidence, including other witnesses
    and her own documentary evidence. At times, she exaggerated her evidence. She
    omitted important details which did not serve her narrative. When challenged to
    provide detail, she was evasive and argumentative with counsel.

[20]

The application judges concerns included the
    fact that the mother had not mentioned the sexual violence before her testimony
    in court, nor did she mention the physical abuse of the children by the father.

[21]

The application judge further considered the
    submission that the Kuwaiti courts would be biased against her and concluded
    that the expert evidence did not support her contention that she would not be
    fairly treated in Kuwait.

[22]

With respect to the evidence of I., the
    application judge said:

I find I cannot
    give much weight to his views because they have been influenced by his mother.

She accepted I.s maturity for the
    purpose of considering his views but concluded that:

He wishes to
    remain in Canada because he wants to stay with his mother, his asthma is better
    here, and Canada is a peaceful place to live.

Relying on
Andegiorgis v. Giorgis
,
    2018 ONCJ 965, she determined that these reasons were not substantial and
    that:

An overall
    preference for Canada is not a factor to ground an assumption of jurisdiction
    by this court.

[23]

Since the application judge was not satisfied
    that the children were at risk of serious harm, she concluded that Ontario did
    not have jurisdiction. She then proceeded under s. 40 of the
CLRA
to
    order the return of the children to Kuwait.

[24]

With respect to the childrens refugee claim she
    stated:

The existence of a
    refugee claim or an ongoing hearing before the Refugee Protection Division does
    not require the court on a removal application to stay its process until the
    determination in the refugee process. Although not required by law, I did attempt
    to avoid concurrence of the refugee and
CLRA
proceedings in this
    application by granting an initial, and then subsequent, adjournment to permit
    the scheduled refugee hearing to conclude. The refugee hearing did not conclude
    in a reasonable time and I ultimately ruled that this hearing would be brought
    to conclusion.

POSITIONS OF THE PARTIES

[25]

The mother submits that the application judge
    erred in her credibility analysis of the mother in a number of ways including
    by employing unfounded myths about typical behaviour of a victim of sexual
    violence and by rejecting the expert evidence relating to family law in Kuwait.
    The error as to the credibility analysis then tainted the application judges consideration
    of the childrens evidence. In the result, she effectively gave no weight to
    the childrens evidence and failed to properly analyze the best interests of
    the children. Further, by ordering their return to Kuwait, she undermined their
    rights to have their refugee claim determined. The mother submits that the
    court has two options: adjourn the entire application until the childrens
    refugee status is determined; or consider the risk to the children and accept
    that Ontario has jurisdiction.

[26]

The OCL submits that given the uncontroverted
    expert and social work evidence that the children face the risk of serious
    emotional, psychological, and physical harm if returned to Kuwait, and the
    expert assessment that their evidence was independent of the mothers
    influence, the application judge was compelled to accept that evidence. The
    failure to do so is a reversible error. The OCL also submits that the entire
    matter  including the consideration of serious harm  should have been
    adjourned until the refugee status is determined.

[27]

The father submits that the application judges
    findings as to credibility are entitled to deference and it was open to her to treat
    the childrens evidence as she did. There has been, he submits, a significant
    delay already during which time the father has been unable to be with his
    children. He submits that it would have been an error to adjourn the return
    order simply because the refugee claim has not yet been determined. (To date,
    the delay has been 27 months). The father requests that  application judges
    return order be respected.

POSITIONS OF THE INTERVENERS

United Nations High Commissioner for Refugees
    (UNHCR
)

[28]

UNHCR submits that the application judge erred
    by ordering the children returned while there is an outstanding refugee
    application. It submits that the provisions of the
CLRA
must be informed by principles of non-refoulement set
    out in the 1951
Convention relating
to
    the Status of

Refugees
,

July 28, 1951, 189 U.N.T.S. 150
    (the 1951 Refugee
Convention).
An order requiring the
    return of the children before a full review of the merits of the asylum claim
    violates the
Charter
rights of the children, Canadas obligations
    under the 1951 Refugee Convention and the
Convention on the Rights of the
    Child
.

Canadian Association
    of Refugee Lawyers (CARL)

[29]

CARL submits that a child who is subject to
    return proceedings should benefit from the assessment of their refugee claim
    prior to the return matter proceeding. The Refugee Protection Division of the
    Immigration and Refugee Board of Canada is a specialized tribunal with institutional
    expertise, and it is best situated to conduct this inquiry.

Amnesty International Canada (Amnesty)

[30]

Amnesty submits that Canadian courts must
    interpret domestic law (here the
CLRA
) in conformity with Canadas
    intersecting international obligations including

the
Convention on the Rights of the
    Child.
Refugee claimants should not be ordered returned to a country
    before their claim for refugee protection has been determined. The issuing of a
    family law return order before the determination of the refugee claim is an
    error.

Barbra Schlifer Commemorative Clinic (the
    Clinic)

[31]

The Clinic submits that when assessing the
    credibility of evidence to determine the risk of harm on a balance of
    probabilities under s. 23 of the
CLRA
, the Family Court should
    consider the legal framework of the
Act
in its entirety and read the
    section through a gender-based violence lens, which would include the harmful
    effects of domestic violence on children.

NEW EVIDENCE AND ITS ADMISSIBILITY

[32]

All parties have filed new evidence.
[2]

[33]

When the welfare of a child is at stake the
    courts adopt a flexible approach to the admission of new and/or fresh evidence
    consistent with the need for up-to-date information on children and matters
    relevant to their best interests:
H.E. v. M.M.
,
2015 ONCA 813, 393 D.L.R. (4th) 267, at
    paras. 70-75. I have considered and rely on the new evidence.

[34]

Since the removal order was granted, the mother
    has been convicted in Kuwait of kidnapping the children. She was ordered to pay
    a fine and to be on good behaviour for a year. The father now has two court
    orders in Kuwait: an order granting him custody of the children and an obedience
    order. The obedience order obligates the mother to enter into submission to
    her husband and obey her husband.  The father says that he obtained the
    orders so that the mother would have a home to come back to.

[35]

Meanwhile, Dr. Murphy has met with the children
    again.  He met with I. more than once and reported that his anxiety is
    heightened. I. does not see a scenario where he can be in Kuwait and be safe
    from his father. I. has experienced an increase in physical complaints
    associated with anxiety, most notably insomnia, nightmares, lack of appetite,
    and gastrointestinal issues.

[36]

The OCL also tendered new evidence in the form
    of a Clinical Panel members affidavit stating that when she informed I. of the
    courts decision that he return to Kuwait, he spontaneously and powerfully
    responded NO, asking to speak to the judge. When advised that he might have
    to live with his father, his response was, do they not understand that my dad
    hit me and did bad things to me?

ISSUES

[37]

These issues are best addressed in two stages:

1.

the serious harm analysis under s. 23 of the
CLRA
;

and

2.

the effect of the refugee claim on the application.

ANALYSIS

(1)

Serious harm under s. 23

[38]

Child abductions (also called wrongful
    removals or wrongful retentions) can greatly harm children and seriously disrupt
    relationships with parents. Canada is a signatory to an international agreement
    entitled the
Convention on the Civil Aspects of International Child
    Abduction
, 25 October 1980, Can. T.S. 1983 No. 35 (entered into force 1
    December 1983) (
the

Hague

Convention
)
. The
Hague

Convention
aims to return children to the country where they
    are classed as Habitually Resident based on the belief that the courts in the
    country of habitual residence are generally best-placed to deal with the issues
    of where and with whom the child should live. The
Hague

Convention
is incorporated into Ontario law through s. 46 of the
CLRA
. With respect to
    non-signatory countries, the
CLRA
applies and reflects the
Hague

Conventions
goals of discouraging child abductions by confining
    Ontario jurisdiction over custody to limited circumstances.  This is one of
    those circumstances.

[39]

The legislature and the courts are alive to the potential
    damage to childrens well-being caused by abductions and seek to discourage
    self-help attempts by parents in custody disputes. At the same time, even in
    the face of a wrongful removal from another jurisdiction, s. 23 of the
CLRA
carves out an exception where the child is physically present in Ontario and
    the court is satisfied on a balance of probabilities that the child would
    suffer serious harm if removed from Ontario.

[40]

The threshold for engaging the harm
    exception differs under the
CLRA
and under the
Convention
:
Ojeikere
    v. Ojeikere
, 2018 ONCA 372, 140 O.R. (3d)
    561, at paras. 111-114
.

[41]

Here,
    the father seeks a return of the children to their habitual residence of Kuwait,
    which is not a signatory to the
Hague Convention
.
    The
CLRA
alone applies.

[42]

Section
    23 sets out a serious harm exception to the limits on Ontarios jurisdiction to
    make custody and access orders established by ss. 22 (jurisdiction) and 41
    (enforcement of extra-provincial orders):

Serious harm to child

23
Despite sections 22 and 41, a court may exercise its jurisdiction to
    make or to vary an order in respect of the custody of or access to a child
    where,

(a) the child is physically present in
    Ontario; and

(b) the court is satisfied that the child
    would, on the balance of probabilities, suffer serious harm if,

(i) the child remains in the custody of the
    person legally entitled to custody of the child,

(ii) the child is returned to the custody
    of the person legally entitled to custody of the child, or

(iii) the child
    is removed from Ontario.

[43]

This court has determined that the serious
    harm analysis under the
CLRA
is less stringent than the intolerable
    situation test under the
Hague Convention.
Laskin J.A. came to this
    conclusion in
Ojeikere
, at paras. 59-61 because of the different
    wording used in the
CLRA
and also:

because under
    the preamble to the
Convention
all signatories accept and
    are firmly convinced that the interests of children are of paramount
    importance in matters related to their custody. Signatories have accepted this
    principle and its enforcement by their agreement to adhere to their reciprocal
    obligations under the
Convention.
In
Hague Convention
cases
    Ontario courts can have confidence that whatever jurisdiction decides on a
    childs custody it will do so on the basis of the childs best interests.
    Ontario courts cannot always have the same confidence in
s. 23
cases  Some non-signatory countries
    may do so; others may not.

[44]

In
Ojeikere
,
Laskin J.A. took a holistic approach to the determination
    of serious harm and concluded that, based on a combination of factors, the
    children were at risk. He considered: (i) the risk of physical harm; (ii) the
    risk of psychological harm; (iii) the views of the children; and (iv) the
    mothers claim that she would not return to the habitual residence even if the
    children were required to do so.

[45]

Here, the application judge determined that
    Ontario could not exercise jurisdiction to make custody and access orders
    because she was not satisfied on a balance of probabilities that the children
    would suffer serious harm if returned to Kuwait. In coming to this conclusion, she
    discounted the childrens evidence on the basis that it was the product of the
    mothers inappropriate influence. She made this assessment in the face of
    uncontradicted evidence from three separate OCL experts that the childrens
    views were in fact independent. She did not explain why this expert evidence
    should be rejected. This was an error.

[46]

The right of children to participate in matters
    involving them is fundamental to family law proceedings. Canada has adopted the
Convention on the Rights of the Child
,

effectively guaranteeing that their views will be heard. A determination
    of best interests  which is engaged in all child-related matters  must
    incorporate the childs view.

[47]

The two older children (aged nine and five at
    the time of their arrival in Canada) were interviewed on numerous occasions to
    assist the court in ascertaining their views. The youngest child was also
    interviewed. In total, I. was interviewed on at least nine separate occasions:
    twice by an OCL caseworker who prepared a Voice of the Child Report, four times
    by an OCL clinical investigator, once by a psychologist, and at least twice by
    the Peel Childrens Aid Society.

[48]

The oldest child I. said he had been hit by his
    father with a belt. The belt had a buckle. He was also frequently threatened
    with the belt and with a hot iron. He was afraid when his father was angry and
    anxious because his grandfather knew, and yet the abuse continued. His mother
    was his protector, but she could not stop it. He witnessed the events of March
    14, 2018. He said that his mother fell on the couch and his father tried to do
    something to her. His grandmother and two uncles were there and tried to
    defend his mother. He saw his father grab his mothers face. Fear of his father
    was the main reason for not wanting to return to Kuwait. His fathers violence was
    like a nightmare.

[49]

A., then age four, was aware of the conflict
    between his parents. He said that his father grabbed his mothers mouth and
    blood came out. He said he was scared and tried to get a key to leave. He said
    that if his mother was going to go  back to Kuwait he would lock the door so
    she cant go.

[50]

The application judge did not address the
    childrens evidence about violence in the home, nor did she address their fear
    of the father. She reframed their evidence as a mere preference to remain in Canada
    and mentioned in passing I.s asthma relief. She gave little weight to the
    childrens evidence because they have been influenced by [their] mother.

[51]

Crucially, without explanation, the application
    judge rejected the uncontradicted expert evidence of Dr. Murphy, Mary Polgar,
    and Mahesh Prajapat supporting the independence of the childrens views. While
    it was open to her to reject the mothers testimony and conclude that the
    mother may have tried to influence the childrens views, to reject the three experts
    evidence that the childrens views were actually independent and free from
    influence required explanation. Absent any explanation as to why the
    application judge did not accept the three experts, her conclusion cannot stand.

[52]

The clinicians who interviewed the children
    provided evidence that their views were independent.

[53]

OCL clinician Mary Polgar testified that I.
    spoke with a clear, strong, and independent wish to remain in Canada. I. told
    her that no one told him what to say, that his feelings were his own.

[54]

This was supported by child psychologist Dr.
    Murphy who said of I.:

He was fairly
    consistent in what he had to say, both about his fear of his father  and his
    desire to stay in Canada  He talked about how hard it was when his father hit
    his mother.

[55]

Dr. Murphy assessed I.s ability to make
    independent judgments as an individual in his first assessment of March 2019.
    His assessment included factors consistent with those discussed in
A.C. v.
    Manitoba

(Director of Child and Family Services),
2009 SCC 30, [2009]
    2 S.C.R. 181, at paras. 82, 84, 86, 87 and 88 about the weight to be given to a
    childs views. He met I. three times and assessed issues of influence and
    honesty, with reference to his past assessment of independence. In terms of
    assessing veracity, using clinical assessment tools, Dr. Murphys conclusions
    continue to support that I. is honest, makes his own judgments, and is genuine
    in his accounts and his expressed fear of his father. Dr. Murphy also stated
    that, although on the surface I. presents as confident and outgoing, he is
    suffering a significant level of anxiety due to the potential return to Kuwait.
    He also feels some measure of responsibility to shield and/or comfort his
    younger siblings, all the while being in a state of fear.

[56]

The
    application judge said she could not put much weight on the childrens evidence
    because of the mothers influence. In so concluding, she presumably relied on
    the father and his counsels bald assertion that the children had been coached as
    well as her negative assessment of the mothers credibility. What she did not
    do was offer any explanation as to why she rejected the uncontested expert
    evidence. This evidence involved assessments of independence put forward by
    three separate experts who actually met with the children at different points
    in time over a long period and whose expertise was directly focused on the
    issue of whether the childrens views were their own. The experts said that they
    were.

[57]

Judges
    are encouraged to probe and engage with expert evidence. They need not accept
    what an expert says simply because the witness is an expert. But to reject
    uncontroverted evidence of independence without any explanation for why she
    believed the experts were misled or wrong was an error.

[58]

All of the
Ojeikere
factors are present
    here. There is a risk of physical and psychological harm, the childrens views
    are clear and  considering the new evidence including the obedience order
    the mother cannot realistically return to Kuwait. She has been the primary caregiver
    since birth and the children would likely lose their primary caregiver if
    forced to return to Kuwait. (The fathers statement that he would not enforce the
    custody order or the obedience order offers little reassurance).

[59]

On the evidence before this court, I am
    satisfied on the balance of probabilities that the children would suffer serious
    harm if returned to Kuwait. The Ontario court may exercise its jurisdiction to
    make custody and access orders for these children.

[60]

I now turn to the issues raised with respect to
    the refugee claim.

(2)

Effect of the refugee claim on the application

[61]

The principle of
non-refoulement
[3]

has been
    considered the cornerstone of international refugee protection. Canada has
    implemented the principle of non-refoulement in s. 115(1) of the
Immigration
    and Refugee Protection Act
, S.C. 2001, c. 27, which provides:

115

(1)
A protected person or a person who is
    recognized as a Convention refugee by another country to which the person may
    be returned shall not be removed from Canada to a country where they would be
    at risk of persecution for reasons of race, religion, nationality, membership
    in a particular social group or political opinion or at risk of torture or
    cruel and unusual treatment or punishment.

[62]

Canada has ratified both the 1951 Refugee Convention
    and the
Protocol relating to the Status of Refugees
. In
Suresh v.
    Canada (Minister of Citizenship and Immigration)
,
2002 SCC 1
, [2002]
    1 S.C.R. 3, at para.
72
,
    the Supreme Court explained that the
Refugee Convention
. . .
    expresses a profound concern for refugees and its principal purpose is to assure
    refugees the widest possible exercise of  fundamental rights and freedoms.

[63]

As submitted by CARL and UNHCR, the principle of
non-refoulement
applies not
    only to recognized refugees, but also to asylum seekers whose status has not
    yet been determined. Refugee protection is not limited to those granted refugee
    status but applies equally to asylum seekers.

[64]

If, under the
CLRA
, a child is ordered
    returned to a place from which asylum is sought, the childs rights to asylum
    are lost. A person is not permitted to continue a refugee claim once in their
    home country. Nor is the person entitled to make a second claim should the
    person return to Canada:
Immigration and Refugee Protection Act
, at ss.
    96 and 101(1)(c)).

[65]

Further, art. 22 of
the
Convention on the Rights of the Child
provides:

States Parties shall
    take appropriate measures to ensure that a child who is seeking refugee status
    or who is considered a refugee in accordance with applicable international or
    domestic law and procedures shall, whether unaccompanied or accompanied by his
    or her parents or by any other person, receive appropriate protection and
    humanitarian assistance in the enjoyment of applicable rights set forth in the
    present Convention and in other international human rights or humanitarian
    instruments to which the said States are Parties.

[66]

I adopt the reasoning of the High Court of
    Justice of England and Wales in
F.E. v. Y.E.
,
[2017] EWHC 2165 (Fam), which held at
    para. 17:

Approaching the
    matter from first principles I have no hesitation in concluding that where a
    grant of asylum has been made by the Home Secretary it is impossible for the
    court later to order a return of the subject child under the 1980 Hague
    Convention. Equally, it is impossible for a return order to be made
while an asylum claim is pending
. Such an order would
    place this country in direct breach of the principle of non-refoulement. It is
    impossible to conceive that the framers of the 1980 or 1996 Hague Conventions
    could have intended that orders of an interim procedural nature could be made
    thereunder in direct conflict with that key principle. [Emphasis added.]

[67]

This same reasoning applies to a potential
    return order under s. 40(3) of the
CLRA
.

[68]

Children are entitled to protection as they seek
    asylum. The application judge erred by ordering their return under s. 40(3) of
    the
CLRA
before the determination of the refugee claim.

[69]

The OCLs submissions (and the mothers
    alternate submission) go further to suggest that the
entire application
,
including the mothers request that
    Ontario exercise its jurisdiction to make custody and access orders for the
    children under s. 23 of the
CLRA
, should have been adjourned pending
    the refugee determination. I disagree for three reasons.

[70]

First, it is the s. 40(3) return order that
    would engage the non-refoulement principles, not the s. 23 analysis. Section
    40(3) empowers the court to make a return order in extra-provincial matters. The
    section reads:

40.
Upon application, a court,

(a) that
    is satisfied that a child has been wrongfully removed to or is being wrongfully
    retained in Ontario; or

(b) that
    may not exercise jurisdiction under section 22 or that has declined
    jurisdiction under section 25 or 42,

may do any
    one or more of the following:

1. Make
    such interim order in respect of the custody or access as the court considers
    is in the best interests of the child.

2
. Stay the application subject to,

i. the
    condition that a party to the application promptly commence a similar
    proceeding before an extra-provincial tribunal, or

ii.
    such other conditions as the court considers appropriate.

3. Order a party to
    return the child to such place as the court considers appropriate and, in the
    discretion of the court, order payment of the cost of the reasonable travel and
    other expenses of the child and any parties to or witnesses at the hearing of
    the application.

[71]

Section 40 confers broad powers on the court and
    unlike the terms of the
Hague Convention
, does not
require
a
    return of the child to his or her habitual residence absent engagement of the
    harm exception.

[72]

A return order must not be made under s. 40(3) in
    the face of a pending refugee claim. This is consistent with the submissions of
    Amnesty, CARL, and the UNHCR, all of whom stressed that it was the execution of
    the
removal order under s. 40(3)
that extinguishes the refugee claim. (I would leave to another day how the
    court should proceed if a return order to a signatory country was sought under
    the
Convention
in the face of a pending refugee claim).

[73]

Second, the OCL submits that the serious harm
    analysis in s. 23 should not proceed until the refugee determination is made
    because it is only after a positive refugee determination that the children
    would have the benefit of a rebuttable presumption of the risk of harm. In
A.M.R.I
.
v. K.E.R.
, 2011 ONCA 417, 106 O.R. (3d) 1, this court held that, in
    the
Hague

Convention
context, refugee status gives rise to a
    rebuttable presumption of a grave risk of harm on return to the childs
    habitual residence. While
A.M.R.I
. concerned the
Hague

Convention,
the rebuttable presumption would also apply in contemplating a return to a
    non-signatory country in the face of refugee status.

[74]

It defies common sense to require children to await
    a refugee determination because the case for serious harm may get stronger. If
    the court is satisfied as to serious harm, it may exercise jurisdiction under
    s. 23 and proceed to make custody and access orders for the children even
    before the refugee determination.

[75]

The OCL is concerned that in the face of a pending refugee claim a
    court might, as here, conclude that it is not satisfied as to serious harm
    under s. 23 and the rebuttable presumption would be lost. In other words, if
    the court is not satisfied that the child would, on the balance of
    probabilities, suffer serious harm as required by s. 23, the court would not exercise
    its jurisdiction. This, it is suggested, would render unavailable the
    rebuttable presumption of harm for the purposes of s. 23 articulated in
A.M.R.I
. when the child ultimately
    qualifies as a refugee. I do not share this concern.

[76]

When the issue is potential harm to children, the
    courts must always be guided by the childrens best interests. If a rebuttable
    presumption of harm arises from a refugee determination following an adverse s.
    23 finding, the court would be required to revisit the s. 23 determination using
    the rebuttable presumption flowing from the childs new status as a refugee.

[77]

Under s. 23, the court must be satisfied that the
    child would,
on the balance of probabilities
, suffer serious harm. When the child becomes a refugee,
A.M.R.I.
requires a fundamental shift in
    the courts approach by introducing a rebuttable presumption that the child
    would
with some certainty
suffer serious harm. Introducing a rebuttable presumption means the court must
    consider harm differently for the purpose of s. 23.

[78]

When a request is made for the court to exercise
    jurisdiction under s. 23 in the face of a pending refugee claim, but the court
    is not satisfied that the serious harm requirement has been met, the court may
    want to consider exercising its power under s. 40(2) to stay the proceedings until
    the refugee claim is determined. However, even when the court concludes that
    the s. 23 test was not previously met, it will always be required to revisit
    the s. 23 analysis in light of the refugee determination and through the lens
    of the rebuttable presumption of harm. Most importantly, the return order under
    s. 40 could not be made before the refugee claim is resolved.

[79]

Finally, the best interests of the child require
    that when the court is satisfied as to serious harm under s. 23, there be no
    further delay in making custody and access orders. This case demonstrates why. The
    new evidence describes that the children are anxious, exhibiting physical
    symptoms, and unsure of their immediate future. A delay is not in their best
    interests.

DISPOSITION

[80]

I have concluded that the evidence establishes
    that the children would, on a balance of probabilities, suffer serious harm if
    returned to their habitual residence of Kuwait. Ontario therefore may and
    should exercise jurisdiction to determine custody and access.  I have also
    concluded that it was an error to order the return of the children pending the
    determination of their refugee claim.

[81]

I would therefore allow the appeal and order a
    custody and access hearing to proceed in the Superior Court of Justice as soon
    as possible. In accordance with the agreement between the parties, I would
    order the respondent father to pay the appellant mother costs fixed at $25,000
    inclusive of HST and disbursements.

Released: MLB JULY 29 2020

M.L.
    Benotto J.A.

I
    agree. Fairburn J.A.

I
    agree. M. Jamal J.A.

[1]
A Voice of the Child Report presents the views and preferences of
    the child to represent the childs viewpoint in a family matter.

[2]
Since the evidence did not exist at the time of the decision under appeal,
    I prefer the term new instead of fresh evidence.

[3]
A principle that forbids a country from returning an asylum seeker
    to a country in which they would likely be in danger of persecution.


COURT OF APPEAL FOR ONTARIO

CITATION: M.W. v. Halton (Police Services
    Board), 2020 ONCA 463

DATE: 20200716

DOCKET: C67115

Rouleau, van Rensburg and
    Roberts JJ.A.

BETWEEN

M.W.

Plaintiff (Appellant)

and

Halton Regional Police Services Board
    and Constable Ross Amore

Defendants (Respondents)

Davin Charney, for the appellant

Robin A.F. Squires and Natalie T.
    Salafia, for the respondents

Heard: May 22, 2020 by videoconference

On appeal from the judgment of Justice Clayton
    Conlan of the Superior Court of Justice, dated May 24, 2019, reported at 2019
    ONSC 3176.

REASONS FOR DECISION

I.

INTRODUCTION

[1]

This is an appeal from a partial summary judgment dismissing certain
    claims in an action commenced by the appellant, M.W., against the respondents,
    the Halton Regional Police Services Board and Detective Constable Ross Amore.

[2]

The action arises out of two interactions between M.W., the Halton
    Regional Police Service (the HRPS) and D.C. Amore. The first interaction took
    place on February 18, 2015 when M.W. was questioned at the police station about
    an alleged assault against one of his sons Co. (no charges were laid). The
    second interaction took place on March 23, 2016 when M.W. was arrested and
    charged with assaulting his daughter Ca. (the charge was subsequently
    withdrawn by the Crown).

[3]

M.W. sued for damages for false arrest, false imprisonment, negligent
    investigation, malicious breach of public duty, malicious prosecution,
    misfeasance in public office and for violation of his rights under ss. 7, 9 and
    10(b) of the
Canadian Charter of Rights and Freedoms
.
    He claimed that, on February 18, 2015, he was detained and investigated by the
    HRPS for allegedly assaulting his son Co. without being given his right to
    counsel and without a proper caution, that the allegations of assault were
    found to be unsupported, and that he was released unconditionally from the
    police station. M.W. further claimed that, on March 23, 2016, he was again investigated
    for allegedly assaulting Co. (these allegations were found to be unsupported),
    that in the course of the investigation his children were manipulated into
    making broad incriminating statements against him, and that he was arrested that
    day for assaulting his daughter Ca. without reasonable and probable grounds.

[4]

In their statement of defence, the respondents pleaded the facts leading
    to the investigation of M.W. for assault on Co. in February 2015 and March
    2016. They confirmed that no criminal charges were laid against M.W. in
    February 2015 and denied that M.W.s rights under the
Charter

had been infringed. The respondents pleaded that there
    were reasonable and probable grounds to arrest and charge M.W. with assault on
    March 23, 2016, after Ca. disclosed, during her conversation with D.C. Amore
    that day, details of an assault by M.W. in July 2015, and that once charges
    were laid, any decision as to whether the charges would proceed through
    prosecution rested in the hands of the Crown.

[5]

The respondents moved for summary judgment dismissing the action on the
    basis that there was no genuine issue requiring a trial as: (1) D.C. Amore had
    reasonable and probable grounds to arrest and charge M.W. with assault; and (2)
    M.W. was not detained on February 18, 2015.

[6]

The evidence on the motion included the affidavits of D.C. Amore, Detective
    Constable Wendy Clayton (D.C. Amores partner at the time, who was also
    involved in the investigation of M.W.) and M.W., the transcripts of their
    cross-examinations, and various exhibits. These consisted of the transcript
    from the court proceeding respecting the withdrawal of charges against M.W., the
    video-taped interviews of M.W., his wife and children on February 18, 2015 and
    March 23, 2016, file notes from the Halton Childrens Aid Society (the HCAS),
    and email exchanges between the HRPS and the Crown.

[7]

After considering the evidence on the motion and the arguments of
    counsel, the motion judge dismissed all of M.W.s claims, except for the claim
    that his
Charter
rights had been violated in the context of what
    happened at the police station on February 18, 2015.

II.

THE REASONS OF THE MOTION JUDGE

[8]

In his endorsement, the motion judge referred to what he characterized
    as a concession by M.W.s counsel that all causes of action pleaded, except
    for the
Charter
claims, ought to be dismissed if [the] Court sides
    with the Defendants and holds that there is no genuine issue for trial on
    whether the Police had reasonable and probable grounds for the arrest of M.W.
    on March 23, 2016: at para. 19. Citing
R. v. Storrey
, [1990] 1 S.C.R.
    241, at pp. 250-51, the motion judge set out the test for reasonable and
    probable grounds for an arrest: the arresting officer must have had
    subjectively reasonable and probable grounds on which to base the arrest and
    these grounds must be justifiable from an objective point of view. The motion
    judge noted that the only issue was whether D.C. Amores subjective grounds
    were objectively reasonable in the circumstances. He concluded that they were.

[9]

The motion judge rejected M.W.s submission that the HRPS ought to have
    investigated further before arresting him, and for example, questioned the HCAS
    worker who was present when Ca. was interviewed on March 23, 2016. It was
    submitted that if the HRPS had done so, they would have discovered that at the
    time the allegation was disclosed, the HCAS did not verify the incident. In
    rejecting this submission, the motion judge noted that there was nothing
    improper about arresting someone based on the uncorroborated allegation of one
    witness, as child abuse is rarely witnessed by others and is often not brought
    to the attention of the Police right away: at para. 23. Acknowledging that the
    objective component of the test set out in
Storrey

must be looked at contextually, he referred to the fact
    that Ca. made the allegation spontaneously, that she provided detail, and that
    her allegation was not isolated from two prior complaints received by the HRPS
    that M.W. had assaulted another one of his children.

[10]

After
    concluding that D.C. Amore had reasonable and probable grounds to arrest M.W.,
    the motion judge dismissed the following causes of action on a final basis:
    false arrest, false imprisonment, negligent investigation, malicious breach of
    public duty, malicious prosecution, and misfeasance in public office.

[11]

The
    motion judge then turned to the issue of M.W.s
Charter
claims. He
    concluded that there was a genuine issue for trial, namely whether M.W. was
    detained when he was questioned by the HRPS on February 18, 2015. After setting
    out the legal test for detention, he noted that the evidence was conflictual
    and required an assessment of the credibility of the HRPS, D.C. Amore and M.W.,
    and that a trial was thus clearly required. He observed that, if pressed to
    make a determination of the issue, not only would he find that a genuine issue
    remained, he would also likely find that the preponderance of the evidence
    filed to date suggested that there had been a detention. The
Charter
claims were therefore permitted to proceed.

III.

ISSUES

[12]

For
    convenience, we have grouped M.W.s arguments into three issues, which we will
    address in turn:

1.

Did the motion judge make a reversible error in concluding that there
    were reasonable and probable grounds for M.W.s arrest on March 23, 2016?

2.

Did the motion judge err in dismissing all of the tort claims?

3.

Did the motion judge err in granting partial summary judgment?

IV.

ANALYSIS

(1)

Standard of review

[13]

For this court to interfere with the motion judges partial summary
    judgment, M.W. must demonstrate an error of law or a palpable and overriding
    error of fact or of mixed fact and law:
Hryniak v. Mauldin
, 2014 SCC
    7, [2014] 1 S.C.R. 87, at paras. 81-84. The parties agree that the motion
    judges findings of fact are entitled to deference absent a palpable and
    overriding error but that his ruling as to whether the facts are sufficient at
    law to constitute reasonable and probable grounds is reviewable on a
    correctness standard:
R. v. Shepherd
, 2009 SCC 35, [2009
] 2
    S.C.R. 527, at para. 20;

Tremblay v. Ottawa (Police
    Services Board)
, 2018 ONCA 497, 48 C.C.L.T. (4th) 1, at paras.
    43-45.

(2)

Did the motion judge make a reversible error in concluding that there
    were reasonable and probable grounds for M.W.s arrest on March 23, 2016?

[14]

M.W.s
    main argument on appeal is that D.C. Amore did not have reasonable and probable
    grounds for his arrest on March 23, 2016.

[15]

Although,
    as we discuss below, the concession of M.W.s counsel was not as broad as the
    motion judge noted, the focus on the motion was on whether there were reasonable
    and probable grounds for M.W.s arrest. The presence or absence of reasonable
    and probable grounds was characterized as the lynchpin of M.W.s tort claims,
    at least in respect of the March 23, 2016 incident. Because there was no
    dispute that the arresting officer had subjective grounds for the arrest, the question
    was whether those subjective grounds were objectively reasonable. Objectively
    reasonable grounds exist when a reasonable person, standing in the shoes of the
    police officer, would have believed that reasonable and probable grounds
    existed to make the arrest:
Storrey
, at p. 250.

[16]

M.W.
    asserts that there were no objectively reasonable grounds because the HRPS
    failed to conduct a reasonable investigation before arresting him. M.W.
    contends that the investigation in this case was insufficient. Ca. disclosed
    the alleged assault by her father in the span of two minutes during an
    interview concerning an alleged assault on Co. When asked whether she told
    anyone, she replied Igor (the name of the HCAS worker that was at her side
    during the interview). The HRPS did not ask for further details, interview
    Ca.s siblings about the incident, or question the HCAS worker, except to ask
    him to confirm that Ca. had disclosed the complaint to him.

[17]

M.W.
    does not argue that a two-minute investigation is insufficient in all cases. Rather,
    he contends that, in the context of this case, where the alleged incident
    occurred some eight months earlier, and where it would have been convenient to interview
    Ca.s siblings and the HCAS worker, these additional steps should have been
    taken before he was arrested. M.W. contends that the motion judge, in
    concluding that there were objectively reasonable grounds for his arrest,
    failed to consider these shortcomings in the investigation. He asserts that the
    HRPS ought to have explored the reliability of the information Ca. provided and
    ought to have taken into consideration all of the information that was
    available: see
Dix v. Canada (A.G.)
, 2002 ABQB
    580, 7 Alta. L.R. (4th) 205, at paras. 355-57. In support of his argument, M.W.
    points to the following passage in
R. v. Golub

(1997), 117 C.C.C. (3d) 193 (Ont. C.A.), at para. 21,
    leave to appeal refused, [1997] S.C.C.A. No. 571: In deciding whether
    reasonable grounds exist, the officer must conduct the inquiry which the
    circumstances reasonably permit. The officer must take into account all
    information available to him and is entitled to disregard only information
    which he has good reason to believe is unreliable. Here, according to M.W.,
    the motion judge ignored the context of the very limited investigation conducted
    by the HRPS when he concluded that D.C. Amore had objectively reasonable
    grounds for his arrest.

[18]

We
    disagree. Contrary to M.W.s submission, the motion judge did not ignore the
    alleged shortcomings in the investigation or the context when considering
    whether there were objectively reasonable grounds for the arrest. The motion
    judge correctly concluded that there were reasonable and probable grounds for
    the arrest based on Ca.s spontaneous allegation that she had been pushed down
    and then choked by her father. He referred to the need to look at the objective
    component contextually, noting that Ca. made the allegation spontaneously in
    the context of an investigation of an alleged assault against her brother, that
    she provided detail, and that her allegation was not isolated from two prior
    complaints received by the HRPS that M.W. had assaulted another one of his
    children.

[19]

In
    challenging the thoroughness of the police investigation in this case, M.W.
    does not suggest that Ca.s allegation was unreliable or false. Rather, he
    contends that the HRPS should have taken further investigative steps, namely by
    asking Ca. substantive questions about her allegation and by conducting
    interviews with other possible witnesses who could have provided potentially
    exculpatory evidence. For example, he submits that if the HCAS worker had been
    interviewed, the HRPS would have learned that the agency had concluded that
    Ca.s allegation that she had been assaulted in July 2015 was unverified, and
    for that reason had not been reported to the police. We agree with the motion
    judge that the fact that Ca.s complaint was not verified by the HCAS would
    not have changed the assessment of whether there were reasonable and probable
    grounds for the arrest.

[20]

D.C.
    Amore was reasonably entitled to make his decision to arrest M.W., based on the
    reliable information he had at the time of the arrest, and not based upon what
    he or anyone else learned later:
495793 Ontario Ltd.
    (Central Auto Parts) v. Barclay
, 2016 ONCA 656, 132 O.R. (3d) 241,
    at para. 50, citing
Wong v. Toronto Police Services Board
,
    [2009] O.J. No. 5097 (S.C.), at para. 61. D.C. Amore was not required to
    exhaust all possible routes of investigation or inquiry, interview all
    potential witnesses prior to arrest, or to obtain the suspects version of
    events or otherwise establish that there is no valid defence before being able
    to establish reasonable and probable grounds:
Tremblay
,
    at para. 60. See also
Payne v. Mak
, 2018 ONCA
    622, 78 M.P.L.R. (5th) 179, at para. 47.

As Juriansz J.A. noted in
Tremblay
, at para. 64, the words all information
    available in the passage in
Golub

cited by M.W. refers to the information the officer had
    in his or her possession, not additional information that the officer could
    have had upon a simple inquiry.

[21]

In
    our view, the evidentiary record on the summary judgment motion, which included
    the video recording of Ca.s interview, the history of the prior interactions
    between the HRPS and M.W. in connection with complaints from Co.s school, and
    the confirmed fact that Ca. had disclosed the assault to the HCAS worker, fully
    supports the motion judges conclusion that D.C. Amore had objective grounds
    for M.W.s arrest.

[22]

M.W.s
    second argument on this ground of appeal is that the motion judge wrongly
    relied on a finding that the facts of
J.H. v. Windsor Police Services Board
    et al.
, 2017 ONSC 6507, 44 C.C.L.T. (4th) 257 were similar to the facts of
    this case in support of his finding of reasonable and probable grounds. There
    is no merit to that assertion. The motion judge referred to this case only for
    a convenient summary of the applicable legal principles in the context of
    motions for summary judgment. While he described the case as dealing with a
    similar motion to dismiss a similar claim, he did not rely on any findings in
    that case to support his analysis. He did not use the case as a precedent in
    finding that there were reasonable and probable grounds in the present case.
    Indeed, the motion judges analysis was focused on whether  on the evidence
    before him  objectively reasonable and probable grounds for M.W.s arrest had
    been made out.

[23]

As
    his third argument on this issue, M.W. argues that the motion judge erred in
    failing to draw an adverse inference from the respondents failure to produce
    affidavit evidence from the HCAS worker to whom Ca. disclosed the assault and
    the Crown counsel who negotiated the resolution of the charge against him.

[24]

Under
    r. 20.02(1) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, on the hearing of a summary judgment motion, the court
    may, if appropriate, draw an adverse inference from the failure of a party to
    provide the evidence of any person having personal knowledge of contested
    facts. An adverse inference can be drawn against a party who, in the absence of
    an explanation, does not testify or fails to provide the evidence of a material
    witness over whom he or she has exclusive control. Such failure amounts to an
    implied admission that the evidence of the absent witness would be contrary to
    the partys case or at least would not support it: Sidney N. Lederman, Alan W.
    Bryant & Michelle K. Fuerst,

The Law of
    Evidence in Canada
, 5th ed. (Toronto: LexisNexis Canada Inc., 2018),
    at para. 6.471.

[25]

This
    argument, which was not made at first instance, cannot succeed. The respondents
    placed before the court all the evidence they considered necessary on the
    motion for summary judgment. While the respondents bore the evidentiary burden
    of demonstrating that there was no genuine issue for trial, they were not
    obliged to put the evidence of every possible witness before the court. If M.W.
    had considered the evidence of these witnesses, who were not witnesses over
    whom the respondents had exclusive control, to be important in his response to
    the summary judgment motion, he could have required their attendance for
    examination under r. 39.03.

[26]

For
    these reasons, we do not give effect to M.W.s argument that the motion judge
    erred in concluding that there were reasonable and probable grounds for his
    arrest on March 23, 2016.

(3)

Did the motion judge err in dismissing all of the tort claims?

[27]

We
    would, however, give effect to M.W.s submission that the motion judge erred in
    dismissing the non-
Charter
claims in relation
    to the February 2015 incident without making findings with respect to those
    claims. M.W. asserts that the motion judge referred to a concession that was
    not made, that all causes of action pleaded, except for the
Charter
claims, ought to be dismissed if [the] court  holds that there is no genuine
    issue for trial on whether the Police had reasonable and probable grounds for
    the arrest of M.W. on March 23, 2016.

[28]

The
    transcript of the hearing discloses that M.W.s counsel stated that whether
    there were reasonable and probable grounds for the arrest was the lynchpin
    for the tort claims. However, later in his submissions he said the following:

We would submit that as reasonable and probable grounds remain
    in
question
with respect to the arrest and charge in
    March of 2016, the false arrest and negligence claims should survive. The false
    imprisonment in 2015 should also survive. If they do, I submit weve been
    largely successful and we would oppose partial summary judgment on this matter.

[29]

M.W. did not concede that only the
Charter

claims would survive in relation to the February 2015 incident. Rather, his
    position was that he had
Charter
claims, as well as tort claims, in
    relation to that incident. In his statement of claim, M.W. pleaded negligent
    investigation in respect of the February 2015 interaction and broadly pleaded
    misfeasance in public office. These claims do not hinge on whether D.C. Amore
    had reasonable and probable grounds to arrest M.W. Indeed,
for the
    purposes of a claim for negligent investigation, the conduct of a reasonable
    police officer may vary depending on the stage of the investigation and the
    legal considerations:
Barclay
, at para. 48. Moreover,
    a claim for misfeasance in public office centres on the deliberate unlawful
    conduct of a public official:
Trillium Power Wind
    Corporation v. Ontario (Natural Resources)
, 2013 ONCA 683, 369
    D.L.R. (4th) 90, at para. 38.

These claims could not be
    dismissed on the basis that D.C. Amore had reasonable and probable grounds for M.W.s
    arrest on March 23, 2016. As such, the motion judge ought not to have dismissed
    all claims other than the
Charter

claims in relation to the
    February 2015 incident. M.W. is entitled to pursue these claims.

(4)

Did the motion judge err in granting partial summary judgment?

[30]

M.W.
    submits that the motion judge erred in granting partial summary judgment
    without considering whether it was appropriate in the context of the litigation
    as a whole. Essentially, his argument is that the determination of whether he
    was unlawfully detained in February 2015 is also relevant to his tort claims in
    respect of the March 2016 arrest, and that for this reason, all of the claims
    should have been allowed to continue.

[31]

We
    disagree. This was an appropriate case for partial summary judgment. The March
    2016 claims, which were decided on the basis of reasonable and probable grounds
    for arrest, could be determined separately from the February 2015 claims. This
    is not a case where intertwined claims could lead to inconsistent results, as was
    the case in

Baywood Homes Partnership v. Haditaghi
,
    2014 ONCA 450, 120 O.R. (3d) 438, at paras. 37-38 and
Butera
    v. Chown, Cairns LLP
, 2017 ONCA 783, 418 D.L.R. (4th) 657, at para.
    38.

[32]

There
    were two distinct issues before the motion judge: the first was whether D.C.
    Amore had reasonable and probable grounds for M.W.s arrest in March 2016, and
    the second was whether M.W. was unlawfully detained in February 2015. While it
    is correct to say that the evidence about M.W.s treatment in February 2015 would
    have been relevant to M.W.s claims based on the investigation and arrest that
    took place in March 2016 had these claims continued, the March 2016 claims were
    disposed of on the basis that there were reasonable and probable grounds for
    M.W.s arrest. The motion judge was able to determine the question of
    reasonable and probable grounds for M.W.s arrest in March 2016, something that
    everyone agreed was determinative of the claims asserted in respect of the
    events that took place on that date. The finding that there were reasonable and
    probable grounds for M.W.s arrest in March 2016 meant that his claims in respect
    of that date could not succeed, and it was accordingly appropriate that this
    part of the litigation be determined by summary judgment.

[33]

Although
    the events of February 2015 provided some background and context for what
    occurred in March 2016, the tort and
Charter

claims alleged in relation to the events of February
    2015 involve separate issues that do not depend on a finding of reasonable and
    probable grounds for arrest. It is therefore appropriate that the claims
    related to the February 2015 incident be allowed to proceed independently.

[34]

Accordingly,
    we see no error in the motion judges decision to grant partial summary judgment
    in this case.

V.

CONCLUSION AND DISPOSITION

[35]

For
    these reasons, we allow the appeal but only to the extent of permitting M.W.s tort
    claims to proceed, together with his
Charter

claims, in relation to the February 2015 incident. Costs
    of the appeal are to the respondents fixed at $5,000, inclusive of taxes and
    disbursements, which amount reflects the divided success on the appeal.

Paul Rouleau J.A.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Marin v. Baiu, 2020 ONCA 444

DATE: 20200707

DOCKET: C67604

Doherty,
    MacPherson and Benotto JJ.A.

BETWEEN

Angela
    Marin  formerly Baiu

Applicant (Respondent in Appeal)

and

Lucian
    Baiu

Respondent (Appellant in Appeal)

Lucian Baiu, acting in person

Angela Marin, acting in person

Heard: in writing

On appeal from the judgment of Justice George MacPherson of the Superior
    Court of Justice, dated October 8, 2019.

REASONS FOR DECISION

[1]

This appeal is in relation to the dismissal of
    the appellants motion to vary child support. This court recently dismissed
    another appeal by the appellant arising from the dismissal of his motion to
    change another family law order: see
Marin v. Baiu
, 2019 ONCA 769.

[2]

The appellant moved to change his child support
    obligations with a retroactive reduction to May 2015. The motion judge
    concluded that his income had not changed for the years 2015, 2016 and 2017 but
    that there had been a change for 2018 and 2019.  The child support was adjusted
    accordingly.

[3]

The appellant alleges that the motion judge
    erred (i) in attributing income to him based on deposits made to his bank
    account; (ii) by not reducing his income by the amount equal to a four-week
    vacation for 2019; and (iii) by requiring him to secure the payments with life
    insurance. He also submits that the motion judge failed to answer his question
    about why he was not credited with a debt in the equalization payment.

[4]

The underlying matrimonial litigation has gone
    on for nearly nine years. The appellant has been twice to this court and his
    application for leave to appeal to the Supreme Court was dismissed. A recurrent
    theme in the various orders and the judgment is the appellants inadequate
    financial disclosure. The motion judge relied on the appellants corporate
    financial statements, income tax returns and bank statements to establish his
    income. It was open to him to do so.

[5]

Likewise, it was open to the motion judge to
    pro-rate his income on an annual basis without deducting a notional four-week
    holiday.

[6]

The life insurance provision was a term of the
    original judgment and remains outstanding. It was not a change ordered by the
    motion judge.

[7]

All issues regarding the equalization payment
    were
res judicata
having been the subject of the previous appeal. The issue
    was not properly before the motion judge.

[8]

The appeal is dismissed. If the parties do not
    agree on costs, they may exchange with each other and then provide to the
    court, written submissions limited to 3 pages within 15 days of the release of
    this decision.

Doherty
    J.A.

J.C.
    MacPherson J.A.

M.L.
    Benotto J.A.