COURT OF APPEAL FOR ONTARIO

CITATION: Hendriks v.
    Hendriks, 2022 ONCA 165

DATE: 20220225

DOCKET: C68822

Tulloch, Pardu and Roberts JJ.A.

BETWEEN

Stephen
    Harold Hendriks

Respondent

and

Eleanor
    Dawn Hendriks

Appellant

Michael Ruhl and Ashley Timm, for the appellant

Michael Stangarone and Stephen Kirby, for the respondent

Heard: June 16, 2021 by video conference

On appeal from the order of Justice Erika Chozik of the Ontario
    Superior Court of Justice, dated October 9, 2020.

Tulloch J.A.:

[1]

The parties were married for 18 years and separated in 2010. During
    their marriage, they had three children: Tyas, Garett, and Corinne. Following
    their 2010 separation, they litigated until May 12, 2015, at which time
    they entered into a consent final order (the Mossip Order) that incorporated
    terms set out in minutes of settlement. The Mossip Order provided for child
    support and spousal support.

[2]

In August 2018, the respondent began new employment in Qatar and his
    income increased significantly from approximately $78,000 to approximately $214,000.
    Following the respondents post-separation increase in income, the appellant
    brought a motion to vary child support and spousal support, among other relief.
    The motion was dismissed in its entirety.

[3]

The appellant now appeals. She argues that the motion judge made several
    errors in her application of the law and apprehension of the evidence.

[4]

For the reasons that follow, the appeal is allowed in part.

Background Facts

[5]

The relevant terms of the Mossip Order were as follows:

·

The
    respondent would pay ongoing child support for the three children in the amount
    of $1,506 per month, based on an income of $78,528.

·

The
    respondent was to make a one-time payment of $3,108 in retroactive child
    support.

·

The
    respondent would pay 75 percent of the childrens future s. 7 expenses.

·

The
    respondent would make a one-time payment of $4,000 for retroactive s. 7
    expenses.

·

The
    respondent would contribute to s. 7 expenses in the amount of $33 per
    child per month.

·

The
    respondent was to make a one-time payment of $3,000 in retroactive spousal
    support.

·

The
    respondent would pay ongoing spousal support in the amount of $150 per
    month, based on an income of $78,528.

[6]

For clarity and ease of reference, I have set out below, a timeline of
    the relevant events that are the subject of the various support orders, and
    that were under consideration by the motion judge:

Date

Event

August 15, 1992

The parties are married. During the marriage, the
          appellant operates a pottery business and teaches classes.

September 2002

The respondent begins his Masters degree in Social Work
          (MSW).

2005

The respondent completes his MSW. The family moves to
          accommodate the respondents new employment.

December 27, 2010

The parties separate. The appellant finds employment
          outside the home.

October 25, 2012

The parties are divorced. The children reside with the
          appellant.

May 12, 2015

Divorce litigation is resolved by a Final Consent Order of
          Justice Mossip (Mossip Order), which incorporates minutes of settlement
          executed by the parties.

November 2015

The respondent makes a lump sum payment in the amount of
          $22,066.22 (being $22,825 less notional disposition costs). The appellant
          delays acknowledging receipt with the Family Responsibility Office (FRO)
          until March 2018, resulting in continued payments for the eldest child after
          his support terminates on July 1, 2016.

July 1, 2016

Child support is supposed to terminate for the eldest
          child. This is not confirmed until March 2018.

2016 to 2018

The respondent participates in ongoing training and
          development in his field.

July 2017

The eldest child stops living with the appellant.

December 2017

The appellant confirms with the FRO there were no arrears
          owing under the Mossip Order, following receipt of $22,066.22 from the
          respondent.

February 2018

The middle child moves in with the respondent in Barrie. The
          appellant mother does not pay any child support for the middle child despite
          the change in residence. The respondent asks FRO to adjust child support only
          for the youngest child, but FRO is unable to confirm facts with the
          appellant. The respondent continues to pay child support for all three
          children.

March 2018

The parties consent to the termination of child support
          for the eldest child. The parties agree to terminate child support for the middle
          child, since he no longer resides with the appellant. The appellant alleges
          that at this time, the respondent stopped paying all child and spousal
          support. The respondent claims that his overpayments in support effectively
          pre-paid support until February 2020.

May 16, 2018

Child support for Garett, the middle child, ends when he
          moves in with the respondent.

June 2018

The middle child graduates from high school.

August 2018

The respondent and the middle child move to Qatar for the
          respondents new employment. The respondents income increases to
          approximately $214,000 (untaxed and subject to gross-up).

August 7, 2018

The appellant files a motion to change, seeking a change
          in child support, sharing of s. 7 expenses, and a change in spousal support. The
          respondent seeks an order terminating spousal support and adjusting child
          support. The appellant mothers motion is dismissed by Justice Chozik
          (Chozik Order). Spousal support is not terminated, and no retroactive child
          support is awarded to either party.

February 2019

The middle child moves back in with the appellant.

July 2019

The middle child finds full-time employment.

February 2020

The respondent resumes paying child support for the
          youngest child, Corinne only, in the amount of $2,200 per month.

March 31, 2020

The appellants employment is terminated by restructuring
          due to COVID-19.

June 2020

The youngest child graduates from high school.

September 2020

The youngest and middle child both commence full-time
          post-secondary studies. Both reside with their mother due to COVID-19. The
          youngest child maintains a part-time job, and the middle child receives the
          Canada Emergency Response Benefit.

September 2020

The appellant commences full-time studies, working towards
          a Bachelor of Arts in Global Business and Digital Arts.

October 2020

The appellant alleges the respondent stops paying child
          support for the youngest child. The respondent states that child support
          terminated under the Chozik Order.

November 2020

The respondent resumes paying spousal support in
          accordance with the Mossip Order.

Decision Below

[7]

In August 2018, the appellant filed a motion to change the Mossip Order,
    seeking: 1) the enforcement of amounts she claimed remained outstanding; 2) variation
    of spousal support; 3) variation of the child support termination date for both
    the older and middle children; 4) an order for payment of future s. 7 expenses
    for both the middle and youngest child; and Table amount child support
    commencing September 1, 2020 for the middle and youngest child.

[8]

The motion judge refused to grant any of the relief sought.

[9]

First, the motion judge found that the amounts the appellant claimed
    were outstanding were satisfied. The respondent had paid the appellant $18,435
    in net proceeds from the sale of the matrimonial home, paid the appellants
    share of a joint line of credit in the amount of $2,520.60 and transferred
    $22,825.60 to the appellant from his RRSP. She determined that this was more
    than sufficient to cover the outstanding amounts, and that the appellant had
    previously confirmed with the FRO that all arrears were satisfied.

[10]

The motion judge refused to vary the spousal support. Because the Mossip
    Order incorporated minutes of settlement, she held that the appellants
    entitlement to spousal support was solely contractual in nature. Neither the
    Mossip Order nor the minutes of settlement contained terms that would permit a
    variation of support, and there was no finding that the appellant was entitled
    to compensatory or needs-based support. The motion judge further determined
    that the respondents increase in income was not a material change in
    circumstances because, on the appellants own affidavit evidence, it was in
    line with their expectations when the respondent began his MSW. Additionally,
    the increase in income was attributable to an intervening cause: the
    reorganization of his employment arrangements, his new marriage, and his lifestyle
    changes, including his move to Qatar. The appellant was therefore not entitled
    to share in the post-separation increase.

[11]

The motion judge also refused to vary the termination date of child
    support for the oldest child or the middle child. Child support for both
    children was terminated on consent, and there was no evidence that either child
    remained a child of the marriage beyond the termination dates. Moreover, the
    motion judge determined that the respondent overpaid child support because the
    FRO could not confirm with the appellant whether an adjustment of child support
    was needed. Because the appellant failed to communicate promptly with the FRO,
    the respondent had continued to pay child support for three children until
    March 2018. The appellant also continued to collect child support while the
    middle child was no longer living with her.

[12]

With respect to the request that the respondent pay s. 7 expenses as of
    September 1, 2020, the motion judge noted that the Mossip Order also provides
    for these expenses to be shared between the parties, but that the appellant
    must provide an accounting of these expenses and has never done so. There was
    no reason to change the Mossip Order in this regard.

[13]

Lastly, the motion judge declined to order Table amount child support
    for the middle child or the youngest child. The motion judge reviewed the
    jurisprudence on determining child support for a child of majority age who is
    attending post-secondary school. Due to a lack of evidence regarding the
    childrens financial circumstances and the appellants means and needs, the
    motion judge declined to order Table amount child support. The motion judge
    again noted that the Mossip Order already provides for sharing of s. 7
    expenses.

Issues

[14]

The appellant argues that the motion judge erred in several respects, both
    in determining the child support issues and the spousal support issues.

[15]

The issues with respect to child support are the following:

1.

Did the motion judge err in finding that the respondent overpaid child
    support?

2.

Did the motion judge err by failing to consider whether child support
    arrears were owing for Corinne between August 2018 and February 2020?

3.

Did the motion judge err by failing to apply the Child Support
    Guidelines for Garett and Corinne?

[16]

The spousal support issues are the following:

1.

Did the motion judge err by finding the respondents post-separation
    increase was not causally connected to the appellants contributions to the
    marriage?

2.

Did the motion
    judge err by finding that the appellants spousal support entitlement was contractual,
    and no further inquiry was required?

Standard of Review

[17]

At the outset, it is important to note that the decision of a motion
    judge is owed a very high degree of deference. I am guided by the instructions
    of the Supreme Court in
Hickey v. Hickey
, [1999] 2 S.C.R. 518, at
    paras. 11-12:

Our Court has often emphasized the rule that appeal courts
    should not overturn support orders unless the reasons disclose an error in
    principle, a significant misapprehension of the evidence, or unless the award
    is clearly wrong.

There are strong reasons for the significant deference that
    must be given to trial judges in relation to support orders. This standard of
    appellate review recognizes that the discretion involved in making a support
    order is best exercised by the judge who has heard the parties directly. It
    avoids giving parties an incentive to appeal judgments and incur added expenses
    in the hope that the appeal court will have a different appreciation of the
    relevant factors and evidence. This approach promotes finality in family law
    litigation and recognizes the importance of the appreciation of the facts by
    the trial judge.
Though an appeal court must intervene
    when there is a material error, a serious misapprehension of the evidence, or
    an error in law, it is not entitled to overturn a support order simply because
    it would have made a different decision or balanced the factors differently
.
    [Emphasis added.]

[18]

In this case, however, I am satisfied that the motion judge significantly
    misapprehended the evidence of child support overpayments, which in turn
    affected her analysis on whether arrears were owing. I am also satisfied that
    the motion judge erred in law in her analysis of the appellants spousal
    support entitlement and whether there was a material change in circumstances.

Analysis

(1)

Child Support Issues

(a)

Did the Motion Judge Err in Finding the Respondent Overpaid Child
    Support?

[19]

The motion judge made findings that there was an overpayment in child
    support in the amount of $36,000:

[O]n the evidence before me, I am satisfied that the Applicant
    overpaid child support significantly. The Applicant puts the amount of his
    overpayment at $36,000. This amount is not disputed by the Respondent. The
    overpayment resulted in part from the Respondents delay of more than 20 months
    in confirming to FRO that the RRSP transfer had been made.

I also find that the Applicant overpaid child support. In
    February, 2018 the Applicant asked FRO to adjust the child support to be for
    one child. FRO attempted to confirm with the Respondent that an adjustment of
    child support was needed because Tyas had graduated from high school almost two
    years earlier and Garrett was no longer living with her. The Respondent failed
    to respond promptly to FRO. This resulted in a significant overpayment by the
    Applicant of child support. The Respondent continued to collect child support
    for three children until March, 2018  well after Tyas had graduated from high
    school. She did not pay any child support for Garrett for a year knowing that
    she should be because he was not living with her. She continued to collect
    child support for Garrett until May 2018, even though he moved to live with the
    Applicant in February 2018. There was an overpayment of child support as a
    result.

[20]

The appellant mother argues the motion judge erred in finding that the
    respondent father overpaid $36,000 in child support. The appellant argues the
    motion judge misapprehended the FRO statement of account which showed a $36,000
    credit applied on March 19, 2018. The appellant contends that the subsequent
    adjustments on March 19 and 20, 2018, resulted in no overpayment of support.
    The amounts credited to the respondent by the FRO were for amounts owing to the
    appellant in accordance with the Mossip Order. The appellant further argues
    that the respondent admitted that any perceived overpayment was dealt with
    through FRO.

[21]

The respondent disputes that the motion judge erred and states that the he
    did in fact overpay.

[22]

I agree with the appellant that the motion judge misapprehended the
    evidence in finding an overpayment of $36,000. The statement of accounts from
    the FRO shows that beginning November 1, 2015, monthly payments were made to
    the FRO in the amount of $1,755, which total comprises child support for the
    three children, spousal support, and monthly s. 7 expenses as ordered in the
    Mossip Order. These payments continue until March 1, 2018. As noted above,
    March 2018 was when the parties confirmed with the FRO that support for the
    oldest child should have ended in July 2016 when he graduated high school, and
    that support for the other two children should have changed in February 2018
    when the middle child moved in with the respondent.

[23]

On my calculation based on the statement of accounts, the respondent
    paid a total of $36,855 between July 2016 and March 2018, which is equivalent
    to $1,755 per month. However, the monthly rate of $1,755 was based on child
    support and s. 7 expenses for three children. When child support ended for the
    eldest in June 2016, the monthly payments should have changed.

[24]

The credits applied by the FRO reflect that these monthly payments were
    incorrect. Between July 2016 and January 2018, the respondent should have only
    been paying child support for two children. Between February 2018, when Garett
    moved in with the respondent father, and May 2018, when support for Garett
    ended, the respondent father should have been paying child support for only the
    youngest child. The monthly payments for these obligations would almost
    certainly have been less than $1,755 per month. Therefore, it is true that there
    was an overpayment; however, the motion judge misperceived its quantum.

[25]

The $36,855 the respondent paid between July 2016 and March 2018 was not
    over and above what he was required to pay; only a portion of the $36,855 was
    an overpayment, because the respondent was still obligated to pay child support
    for his two other children and pay spousal support. Based on a review of the
    statement of accounts, from July 2016 to January 2018, the period of time when
    support was owing for the appellant and for two children, the respondent should
    have paid $1,396 per month. From February 2018 to May 2018, when support was
    owing for the appellant and only one child (because the middle child began
    residing with the respondent in February 2018 and then his child support
    entitlement terminated in May 2018), the respondent should have paid $896 per
    month. In total, this amounts to $29,595 the appellant should have actually
    paid, leaving an overpayment of $7,260.

[26]

The last adjustment made by the FRO is in May 2018, when support for the
    middle child would have ended. From then on, the statement of accounts shows
    regular debits for $896, presumably the support cost for one child and for
    spousal support. The monthly payments are taken from the $7,260 credit
    remaining on the account; this credit runs out by the end of January 2019.
    Therefore, beginning in February 2019, the respondent should have resumed
    making payments for child support for the youngest child and for spousal
    support. He did not: the parties agree that payments did not resume until
    February 2020.

[27]

This misapprehension of the statement of accounts affected the motion
    judges analysis on whether child support arrears were owing, which I address
    next.

(b)

Did the motion judge err by failing to consider whether child
    support arrears were owing for the youngest?

[28]

The motion judge did not address the issue of child support for the
    period between March 2018 and February 2020.

[29]

The appellant argues that the youngest child was entitled to child
    support between March 2018 and January 2020, but that the respondent did not
    make any such payments. The respondent takes a somewhat internally inconsistent
    position: he acknowledges that the overpayment credit was exhausted by 2019 but
    also argues that the $36,000 overpayment covered March 2018 to February 2020,
    and therefore it was not the case that the respondent did not make payments
    during this period.

[30]

The last payment made by the respondent was in March 2018. Between April
    2018 and January 2020, the youngest child was still a minor residing at home with
    the appellant and attending high school. There is no evidence that any payments
    were received for this time period, aside from the credits applied from the
    overpayment which were exhausted by the end of January 2019, as described above.

[31]

The parties agree that the respondent recommenced making payments in the
    amount of $2,200 in February 2020. This amount roughly corresponds to monthly
    Table support for one child and the $150 per month required by the Mossip
    Order. This leaves a period of 12 months during which the respondent did not
    pay spousal or child support for the youngest child, then in high school and
    living with the appellant.

[32]

I would fix the arrears of child and spousal support owed for this
    period at $26,400.

(c)

Did the motion judge err by incorrectly applying the
Child
    Support Guidelines
to the youngest and to the middle child?

[33]

On the motion, the appellant sought $4,000 per month in Table support,
    since both the middle and youngest children would be residing with her while
    they attended full-time post-secondary studies beginning in September 2020. The
    respondent argued that while the children should be supported, the evidence
    demonstrated that their expenses would be covered by grants and scholarships
    available to them.

[34]

The motion judge declined to order Table support, citing a lack of
    evidence regarding the childrens and appellants financial means and needs.
    She also stated it would be preferable to employ an approach [presumably under
    either s. 3(2)(b) or s. 7] that takes into account the childrens expenses
    and incomes, as well as the means of each parent and puts into place an
    appropriate budget to be shared by the parties. The motion judge further noted
    that the Mossip Order provides for the sharing of s. 7 expenses, and that the
    appellant is required to provide an accounting to the respondent under the Mossip
    Order.

[35]

In my view, the motion judge did not err in not ordering ongoing child
    support. The onus is on the party seeking support to demonstrate that the adult
    child requires educational support: see
Rebenchuk v. Rebenchuk
, 2007
    MBCA 22, at para. 63. This consideration arises even before the judge must
    determine whether the presumptive amount or an amount determining by a
    different approach applies. The insufficient evidence provided by the appellant
    failed to discharge that onus.

[36]

The motion judge concluded that there was inadequate evidence to order
    support beyond the sharing of the s. 7 expenses. I agree with the motion judge
    that the Mossip Order already accounts for the childrens post-secondary
    expenses to be shared by the parties.

[37]

In all the circumstances, I find that the motion judge did not err here.

[38]

However, a child of the marriage should not be prejudiced by the self-represented
    appellants inability to master the intricacies of litigation. If the youngest
    child, in particular, continues to reside with the appellant, the appellant
    likely incurs costs for her shelter and food. The appellant would be at liberty
    to apply for support in addition to the s. 7 expenses, upon presentation of
    adequate evidence, described by the motion judge for the period accruing after
    the October 9, 2020 order, if so advised.

(2)

Spousal Support Issues

(a)

Did the Motion Judge err by Finding the Post-Separation Increase
    was not Causally Connected to the Appellant?

[39]

The motion judge determined that the respondents increase in income was
    attributable to intervening causes:

The increase in the Applicants income is attributable to an
    intervening cause, unrelated to the parties marriage or the roles they adopted
    during the marriage. The Applicants increase in income is as a result of the
    reorganization of his employment arrangements, with new responsibilities, a new
    marriage, and as a result of significant lifestyle changes he has made since
    the separation including moving to Qatar. The passage of time aloneeight
    yearsindicates that the Respondents contributions during the marriage are not
    causally related to the Applicants post-separation income increases. [Citation
    omitted.]

[40]

These are all factual findings which the motion judge was entitled to
    make. In my view, there is no indication that the motion judge misapplied the law
    or misapprehended evidence, and there is no basis to interfere with the
    conclusion reached. This aspect of the decision is owed deference.

(b)

Did the Motion Judge Err in Finding the Appellants Spousal
    Support Entitlement was Contractual and No Further Inquiry was Required?

[41]

There are three bases for entitlement to support, as explained by the
    Supreme Court in
Bracklow v. Bracklow
, [1999] 1 S.C.R. 420:
    contractual, compensatory, and non-compensatory (also called needs-based).
    The contractual entitlement to support reflects the idea that parties
    agreements on support should influence their rights and obligations during the
    marriage and upon its breakup:
Bracklow
, at para. 18. Under s.
    15.2(4) of the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.), a
    court must have regard to any order, agreement or arrangement relating to
    support of either spouse.

[42]

The compensatory basis for entitlement applies where it would be just
    to compensate a spouse for his or her contributions to the marriage or for
    sacrifices made or hardships suffered as a result of the marriage:
Bracklow
,
    at para. 18. The court in
Bracklow
, at para. 39, further notes:

Under the
Divorce Act
, compensation arguments can be
    grounded in the need to consider the condition of the spouse; the means,
    needs and other circumstances of the spouse, which may encompass lack of
    ability to support oneself due to foregoing career opportunities during the
    marriage; and the functions performed by each spouse during cohabitation,
    which may support the same argument.

[43]

Lastly, the court in
Bracklow
, at paras. 40-41, describes the
    non-compensatory basis for entitlement. This requires:

[T]he court consider the condition, means, needs and other
    circumstances of each spouse. To be sure, these factors may support arguments
    based on compensation for what happened during the marriage and its breakdown.
    But they invite an inquiry that goes beyond compensation to the actual
    situation of the parties at the time of the application

Looking only at compensation, one merely asks what loss the
    marriage or marriage breakup caused that would not have been suffered but for
    the marriage. But even where loss in this sense cannot be established, the
    breakup may cause economic hardship in a larger, non-compensatory sense

[44]

These bases for spousal support are complemented by the objectives of variation
    orders for spousal support set out in s. 17(7) of the
Divorce Act
:

17 (7) A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to
    the former spouses arising from the marriage or its breakdown;

(b) apportion between the former spouses any financial
    consequences arising from the care of any child of the marriage over and above
    any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the former spouses
    arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic
    self-sufficiency of each former spouse within a reasonable period of time.

[45]

It is with these policy objectives in mind that the appellants motion
    for a variation in spousal support must be assessed.

[46]

The motion judge made the following finding as to the nature of the
    appellants entitlement to spousal support:

I am satisfied that the Respondents [mother] entitlement to
    support is contractual in nature. The Minutes of Settlement and the Final Order
    do not contain any terms permitting the Respondent to seek increased spousal
    support in the future. There was no finding as to her entitlement to
    compensatory or needs based support. While she may have had a claim in this
    regard at the time, it is not the basis upon which the Final Order was made.

[47]

The appellant argues that an entitlement to spousal support is not
    contractual simply because an order for support incorporates minutes of
    settlement, and that such an order does not erase any underlying bases for
    entitlement to support. The motion judge erred by failing to determine whether
    the support order should be varied on another basis.

[48]

The respondent submits that the minutes of settlement create an
    entitlement to support that is only contractual, and the support available to
    the appellant was therefore circumscribed by the terms set out in the Mossip
    Order. Additionally, unlike a judge on an initial application for spousal
    support, the motion judge did not have the discretion to change the terms of
    the spousal support, because once an initial court approves a support order,
    there is a presumption that the terms of the order comply with the
Divorce
    Act
.

[49]

The motion judge also concluded that the respondents increase in income
    did not constitute a material change in circumstances:

Furthermore, the Respondents [appellant on appeal] own
    evidence in her sworn affidavit dated March 2, 2020 contradicts her submissions
    that the Applicants increase should be regarded as a material change in
    circumstances. In her affidavit, the Respondent states that the Applicants new
    position is exactly in line with what they had discussed when he undertook a
    masters degree program in social work. It cannot therefore be said that the
    change was not contemplated by the parties at the time they entered into the
    Minutes of Settlement that led to the Final Order.

[50]

In my view, it was an error for the motion judge to hold that the
    appellants spousal support could not be varied because the Mossip Order did
    not contain a term permitting variation. While s. 15.2(4)(c) of the
Divorce
    Act
provides that the court shall consider any order, agreement or
    arrangement relating to the support of either spouse, this does not end the
    inquiry required. The appellants motion would have been an application under
    s. 17 of the
Divorce Act
to vary her spousal support. The Supreme
    Court in
L.M.P. v. L.S.
, 2011 SCC 64, [2011] 3 S.C.R. 775 stated, at
    para. 41, even where an agreement incorporated into an order includes a term
    providing that it is final, the courts jurisdiction under s. 17 cannot be
    ousted.

[51]

While the motion judge was entitled to make a factual finding that the
    evidence regarding the respondents income increase did not support a finding
    that there was a material change in circumstances, her analysis fails to ask
    whether the appellant faced a material change in circumstances. The court in
L.M.P
.,
    at para. 29, is clear that the question of a material change applies to both
    parties:

In determining whether the conditions for variation exist, the
    threshold that must be met before a court may vary a prior spousal support
    order is articulated in s. 17(4.1). A court must consider whether there has
    been a change in the conditions, means, needs or other circumstances of
either
former spouse
since the making of the spousal
    support order
. [Italics in original; underlining added.]

[52]

Therefore, despite the existence of an order incorporating an agreement,
    a judge retains jurisdiction to consider whether a variation in support should
    be granted based on whether there has been a material change in the circumstances
    of either former spouse, and having regard to any existing agreement.

[53]

The
Spousal Support Advisory Guidelines provide for
    differing amounts of spousal support, depending on whether child support is or
    is not payable. The motion judge declined to order ongoing Table amount child
    support for the middle and youngest children. The reduction or termination of
    child support constitutes a change in circumstances for the purposes of seeking
    a variation in spousal support:
Divorce Act
,
    s. 15.3(3). Therefore, after child support obligations are reduced or cease, a spousal
    support award may increase: see as examples
Gray v. Gray
, 2014 ONCA 659, 122 O.R. (3d) 337, at para. 43;
Slongo
    v. Slongo
, 2017 ONCA 272, 137 O.R. (3d) 654 at para. 114;
    and
Wharry v. Wharry
, 2016 ONCA 930,
    408 D.L.R. (4th) 548, at paras. 90-92.

[54]

Although the trial judge found that the changes in the
    respondents circumstances were sufficiently disconnected from the marriage so
    as to not qualify as a material change in his circumstances, the respondents
    means may still be relevant to the determination of the extent to which he is
    now able to temper any continuing economic disadvantage resulting from the
    marriage still suffered by the appellant.

[55]

It was an error for the motion judge not to undertake this analysis,
    especially in light of her recognition that the appellant may have had
    compensatory or needs-based entitlements when the Mossip Order was made. This
    is an error that warrants correction.

[56]

When spousal support was set at $150 per month, the respondent was
    paying the Table amount of support for three children, plus s. 7 expenses. That
    he is no longer paying Table support for three children constitutes a change in
    circumstances for the purpose of seeking a variation order under s. 15.3(3) of
    the
Divorce Act
, and therefore satisfies the threshold for variation.
    The question then becomes, what is the appropriate variation? The court in
L.M.P
.
    provides guidance on the analysis required, at paras. 47 and 50:

If the s. 17 threshold for variation of a spousal support order
    has been met, a court must determine what variation to the order needs to be
    made in light of the change in circumstances. The court then takes into account
    the material change, and should limit itself to making only the variation justified
    by that change. As Justice LHeureux-Dubé, concurring in
Willick
,
    observed: A variation under the Act is neither an appeal of the original order
    nor a
de novo
hearing (p. 739). As earlier stated, as Bastarache and
    Arbour JJ. said in
Miglin
, judges making variation orders under s. 17
    limit themselves to making the appropriate variation, but do not weigh all the
    factors to make a fresh order unrelated to the existing one, unless the
    circumstances require the rescission, rather than a mere variation of the
    order.

In short, once a material change in circumstances has been
    established, the variation order should properly reflec[t] the objectives set
    out in s. 17(7), . . . [take] account of the material changes in circumstances,
    [and] conside[r] the existence of the separation agreement and its terms as a
    relevant factor (Hickey, at para. 27). A court should limit itself to making
    the variation which is appropriate in light of the change. The task should not
    be approached as if it were an initial application for support under s. 15.2 of
    the
Divorce Act
.

[57]

The court must first consider the impact of the respondents
    post-separation increase in income, which is a complicating factor: see
Gray
,
    at para. 45. As explained above, the motion judges finding that the appellant
    is not entitled to share in the respondents post-separation increase in income
    is owed deference. Therefore, the assessment of the appropriate variation should
    proceed using the respondents income at the time of the Mossip Order, which was
    $78,528.

[58]

The appropriate variation is one that will remedy the economic
    disadvantage suffered by the appellant from the roles the parties adopted
    during the marriage. On review of the record, I am satisfied that while both
    parents contributed to household and childcare responsibilities, the majority
    of these responsibilities fell to the appellant and had an impact on her
    ability to pursue her business and career. The respondent completed his MSW
    over three years, during which time he worked two jobs. This would have
    required the appellant to take on increased childcare responsibilities. The
    respondents MSW was funded by himself, through his RRSPs and student loans. Though
    she continued to work in pottery in some capacity, the appellant was not able
    to advance her career, unlike the respondent. After the separation, the
    children also resided primarily with the appellant, which continued her
    disadvantage.

[59]

The Guidelines, while not binding, are recognized for their utility in determining
    the quantum and measure of spousal support. On my calculation, at the time of
    the Mossip Order, the range for spousal support under the Guidelines, without
    child support would have been between $1,356 and $1,808 per month. Pursuant to
    the Mossip Order, the appellant received $150 per month. I find that an
    appropriate amount of varied spousal support is in the mid-range, at $1,500.

[60]

As to duration, the Mossip Order did not time-limit the spousal support
    that would be paid to the appellant. However, I find it appropriate to limit
    the varied spousal support payments to 108 months, which is at the low end for
    what the appellant would have received under the without-child formula at the
    time of the Mossip Order. The record demonstrates that the appellant has been
    able to attain higher income levels since the time of the Mossip Order, and she
    has managed to save money. The appellant is also currently pursuing her Bachelor
    of Arts. Given the appellants means and optimistic future, indefinite spousal
    support would not be appropriate.

[61]

I am satisfied that this variation is appropriate: it reflects the
    economic disadvantages the appellant suffered as the primary, though not sole,
    caregiver for the family. In my view, it will also promote the appellants
    self-sufficiency by providing her the financial security she needs to complete
    her education and make herself competitive in the job market.

Disposition

[62]

In conclusion, the appeal is allowed in part.

[63]

I find that the motion judge misapprehended the evidence regarding an
    overpayment of child support, and this affected her analysis of whether there was
    support owing for the youngest child between February 2019 and January 2020. With
    respect to the childrens post-secondary education expenses, I do not find that
    the motion judge made a palpable and overriding error that warrants appellate
    interference.

[64]

With respect to the motion judges findings on the respondents
    post-separation increase in income, I do not find that the reasons disclose any
    reversible error; as such, deference is owed to the motion judges findings on
    this ground. However, in my view, the motion judge erred by failing to assess
    whether the spousal support order could be varied simply because the order
    incorporated minutes of settlement. I would therefore vary spousal support to $1,500
    per month for 108 months, retroactive to July 1, 2020.

[65]

Each of the parties may make brief written submissions as to the costs
    of the motion to vary, and the costs of the appeal, due from the appellant
    within 15 days after the date of the release of these reasons, and due
    from the respondent within 7 days after he receives the appellants costs
    submissions.

Released: February 25, 2022 M.T.

M. Tulloch J.A.

I agree. G. Pardu
    J.A.

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


COURT OF APPEAL FOR ONTARIO

CITATION: Inniss v. Blackett, 2022 ONCA 166

DATE: 20220224

DOCKET: C68681

Strathy C.J.O., Roberts and
    Sossin JJ.A.

BETWEEN

Paul Inniss

Plaintiff (Respondent)

and

Celestine Blackett

Defendant (Appellant)

Edward J. Babin and Brendan Monahan,
    for the appellant

Yan David Payne and James R. D. Clark,
    for the respondent

Heard: February 18, 2022 by
    video conference

On appeal from the judgment of Justice Mario D. Faieta of the
    Superior Court of Justice, dated July 6, 2020.

REASONS FOR DECISION

OVERVIEW

[1]

This appeal arises from a dispute over the
    ownership of a property as between the respondent, Paul Inniss, and his grandmother,
    the appellant, Celestine Blackett.

[2]

In 2002, following the purchase of the house at 470
    Donlands Ave. in Toronto (the house), both parties were listed on title as
    joint tenants. The parties lived in the house between 2002 and 2008. In 2008, the
    relationship between the parties deteriorated, and the respondent moved out of
    the house.

[3]

On March 1, 2016, the respondent brought this
    action for partition and sale. The appellant defended against the action and
    counterclaimed on the basis that the home was always hers alone.

[4]

The trial judge accepted the respondents
    evidence over the appellants evidence with respect to the shared nature of
    contributions to the purchase, mortgage and maintenance of the house during the
    period the parties lived there together.

[5]

The trial judge also accepted that the
    respondents attempt to sell his interest in the property was reasonable and
    rejected the appellants evidence that a sale of the property would result in
    hardship.

[6]

The trial judge found that the appellants contribution
    was greater than that of the respondent (with the appellant holding an 89.93%
    interest in the house and the respondent holding the remaining 10.17%). The
    trial judge provided the appellant with an opportunity to buy out the
    respondent or else the property could be sold pursuant to s. 2 of the
Partition
    Act,
R.S.O. 1990, c. P.4.

[7]

On October 6, 2020, the appellant filed her
    notice of appeal.

[8]

We dismissed the appeal at the hearing with
    reasons to follow. These are those reasons.

ANALYSIS

[9]

The appellant raises four grounds of appeal:

1)

The trial judge failed to find that the respondents
    interest in the house is subject to a resulting trust (or, alternatively, a constructive
    trust) in favour of the appellant;

2)

The trial judge erred by finding that the
    respondent contributed $51,200 towards the carrying costs of the house and that
    such contributions entitled him to a beneficial ownership interest in the house;

3)

The trial judge erred by finding that the house
    should be sold pursuant to s. 2 of the
Partition Act
; and

4)

The trial judge erred in awarding trial costs to
    the respondent.

[10]

We address each ground of appeal below.

[11]

Before turning to the grounds of appeal,
    however, it is important to emphasize the standard of review. This case
    involves findings of fact and findings of mixed fact and law. These findings
    are entitled to deference, absent a palpable and overriding error:
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 10.

The trial judge did not err in rejecting that the
    respondents interest in the house is subject to a resulting or constructive
    trust

[12]

Applying the principles set out by the Supreme
    Court in
Pecore v. Pecore
, 2017 SCC 17, the trial judge rejected the
    argument that a presumption of a resulting trust applied in these circumstances,
    as he found that the respondent gave value for the property. The trial judge
    found that the respondent paid $3,275.13 toward the closing costs of the house.
    The respondent also contributed to the purchase by becoming liable on the
    mortgage.

[13]

The appellant argues that the payments toward
    the closing costs and becoming a co-signatory to the mortgage were insufficient
    to meet the threshold of adding value to the property for purposes of the
    resulting trust analysis, citing
Karen Patterson et al. v. Nadeen Patterson
    and The Estate of Barbara Patrick
, 2018 ONSC 6884, at para. 49. We do not
    accept this submission. Taken together in the context of the house purchase,
    both the respondents contribution to the closing costs and assumption of risk
    in co-signing the mortgage made the house purchase possible. As the trial judge
    concluded, the parties each played a necessary role in making their shared goal
    of home ownership possible: at para. 64.

[14]

The appellant also argues no financial
    contributions to the closing costs by the respondent were documented and that
    corroborating evidence is required to rebut a presumption of a resulting trust.

[15]

The trial judge preferred the evidence of the
    respondent to the evidence of the appellant. The trial judges factual findings
    include findings of credibility. The trial judge stated, at para. 65, The Defendants
    evidence was wildly inconsistent, self-serving and simply not credible.

[16]

The finding that the presumption of a resulting
    trust did not apply was available to the trial judge on the record. The trial
    judge considered the respondents testimony in the context of his bank
    statements and other evidence.

[17]

The trial judge similarly rejected the argument
    that a constructive trust had been established. He found no basis for the
    appellants unjust enrichment claim.

[18]

We see no error in these findings by the trial
    judge.

The trial judge did not err by finding that the respondents
    contributions toward the carrying costs of the house entitled him to an
    ownership interest

[19]

The trial judge made a finding of fact that the
    respondent contributed $800 per month toward the mortgage payments and
    maintenance of the house during a 64-month period, for a total of $51,200. As a
    result, the trial judge calculated that the respondent was entitled to a 10.17%
    interest in the house.

[20]

The trial judge conceded that there was a dearth
    of evidence to support these payments by the respondent but concluded that it
    would not have been possible for the appellant to carry the house over this
    period without the respondents assistance.

[21]

The appellant argues there was indeed an
    alternative explanation for how the appellant could meet her financial
    obligations.

[22]

Again, the trial judges finding was open to him
    on the record and is entitled to deference. There is no basis to interfere with
    this finding.

The trial judge did not err in ordering that the house
    should be sold by virtue of the
Partition Act

[23]

Joint tenants have a
prima facie
right
    to force a sale of a property under s. 2 of the
Partition Act
:
Davis
    v. Davis
, [1954] O.R. 23 (C.A.), at p. 29. The onus is on the party
    resisting the sale of the property to demonstrate that the property should not
    be sold. To exercise its discretion not to approve a sale, a court must be
    satisfied that the party seeking the sale is acting in a malicious, vexatious
    or oppressive fashion:
Brienza v. Brienza
, 2014 ONSC 6942, at para. 25.

[24]

The trial judge concluded that the respondents desire
    to sell his interest in the house was reasonable and was not malicious,
    vexatious or oppressive. The trial judge also rejected the appellants argument
    that her age and illness justified refusing the partition and sale.

[25]

The trial judge did not err in ordering the sale
    of the house if the appellant is unable or unwilling to purchase the
    respondents interest.

The trial judge did not err in awarding costs to the
    respondent

[26]

The trial judge found the respondent to be the
    successful party at trial and we would not interfere with this determination.

[27]

The plaintiffs actual costs were close to
    $70,000, and, inclusive of taxes and disbursements, his costs were nearly
    $85,000.

[28]

In the context of this four-day trial, the trial
    judge found a costs award against the appellant of $35,000 to be reasonable,
    proportionate and fair.

[29]

This issue was not pursued in oral argument by
    the appellant, but, in any event, we see no basis to interfere with the trial
    judges exercise of discretion with respect to costs.

DISPOSITION

[30]

For these reasons, the appeal was dismissed.

[31]

The respondent is entitled to his costs, which
    are set at $9,500, all-inclusive.

G.R.
    Strathy C.J.O.

L.B.
    Roberts J.A.

L.
Sossin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Issa, 2022 ONCA 167

DATE: 20220225

DOCKET: C65394

van Rensburg, Nordheimer and George JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Issa

Appellant

David M. Humphrey and Jared L. Greenspan, for the
    appellant

Samuel G. Walker, for the respondent

Heard: January 31, 2022 by video conference

On appeal from the conviction entered on February 9, 2018,
    and the sentence imposed on April 20, 2018, by Justice James W. Sloan of the Superior
    Court of Justice, sitting without a jury.

George J.A.:

OVERVIEW

[1]

The appellant was convicted of one count of assault in relation to his
    wife, A.B. This one count encompassed four separate incidents of assaultive
    conduct. He was found not guilty on several other counts including allegations
    that he threatened A.B., assaulted their daughter, possessed a prohibited
    weapon, and possessed a firearm while prohibited from doing so. The appellant
    was sentenced to eight months in jail, reduced by the time spent in pre-trial
    custody, followed by a period of probation. Three ancillary orders were made
    (i.e., DNA, further weapons prohibition, and forfeiture of property).

[2]

The appellant appealed against both conviction and sentence, but he did
    not pursue his sentence appeal. On the conviction appeal, he advances these two
    grounds:

i.)

The verdict is unreasonable; and

ii.)

The trial judge provided insufficient reasons.

[3]

In brief, the appellants argument is that the trial judge arrived at an
    illogical result by making and relying upon incompatible findings. In other
    words, having concluded that the complainant was not credible in relation to
    her allegation that the appellant possessed firearms, it then made no sense to
    rely upon her evidence to ground a conviction for assault. The appellant
    submits that the trial judges reasons on the assault charge were insufficient
    because they do not explain how he resolved his concerns about the complainants
    testimony.

[4]

These reasons explain why I would reject that argument and dismiss the
    appeal.

facts

Evidence of A.B.

[5]

The appellant and A.B. met shortly after A.B.s arrival in Canada in
    2010 on a student visa. They promptly moved in with each other; had a daughter;
    and remained together until separating in 2016. A.B. testified that during
    their relationship the appellant assaulted her four times and that, on one
    occasion, he assaulted their child. She further alleged that he routinely
    threatened to kill her. Before this complaint, she had not reported his
    assaultive behaviour to police.

[6]

A.B. testified that on January 8, 2016, while cleaning the main floor
    washroom of their residence, she located under the sink a duffle bag with three
    firearms, some ammunition, and foreign currency. She acknowledged knowing the
    appellant had guns, and that guns had been in the home before, but had not previously
    brought it to the attention of the authorities. On her account, this time was
    different because she found them in a location that was easily accessible to
    their young child.

[7]

On the same day she found these items, she spoke on the phone with the
    clerk of a family lawyer. She was interested in exploring her options and,
    possibly, pursuing a divorce. She met with the lawyer on January 11, 2016. On
    January 13, 2016, she attended at the police station to file her
    complaint. While there, she was joined by the lawyer who had her review and
    swear an affidavit in support of her claims for divorce, custody, support, and
    exclusive possession of the matrimonial home.

[8]

At trial, several date-stamped photographs were tendered which showed
    injuries to A.B. that she said were inflicted by the appellant, as well as photographs
    depicting damage to a lamp, TV, and drywall. One screenshot of a text message
    was filed, which the complainant testified was sent by the appellant in which
    he apologized for threatening her with deportation and taking their child.
    However, this message was not a threat itself. Apart from the screenshot of the
    text apology, there was no independent evidence confirming A.B.s allegation
    that the appellant threatened her. There was no independent evidence confirming
    her allegation that the appellant assaulted the child. Her evidence was that
    while the appellant had left a red mark on the childs face, she did not think
    to take a photograph as she was more concerned with comforting her.

[9]

Cross-examination focused on whether she was aware of allegations
    levelled against the appellant by his ex-wife, and of the nature of the
    financial settlement his ex-wife had received upon the breakdown of their
    relationship. It was suggested that A.B. was following that template to secure
    something similar for herself. She acknowledged being aware of the settlement,
    the appellants assaultive behaviour towards his ex-wife and their child, and
    of his prior convictions for assault and possessing a firearm. She denied any
    suggestion that this informed her decision to come forward. She denied planting
    the firearms.

Police Evidence

[10]

On the strength of a warrant, two police officers searched the
    appellants home where they located, in the place A.B. said they would find
    them, a black duffle bag which contained a dark silver handgun with a black
    handle and unloaded magazine (located inside of a sock); rounds of ammunition (located
    inside of another sock); a red cardboard box containing a loaded handgun; and
    yet another handgun wrapped inside a white shirt (loaded with a fifteen round
    magazine). The bag also contained $2,344 USD and 50 Israeli new shekels. No DNA
    profile or fingerprints were developed on any of the seized items.

Evidence of Ed Said

[11]

Ed Said was a business tenant at a property owned by the appellant. He
    testified that the appellant had once told him that he would love to put  a fucking
    bullet in [A.B.s] head, and that he had a few guns in his home. He
    testified to seeing a gun taped under a toilet tank in one of the appellants
    bathrooms. He testified that, after the appellant was charged and taken into
    custody, the appellant called him from jail about a hundred times to see if
    he would convince A.B. to drop the charges.

[12]

Mr. Said testified about his deteriorating relationship with the
    appellant which, according to him, had to do with the state of his rental unit.
    Apparently, there were issues over a proposed rate hike and questions over who
    would bear the cost of renovations. He did not provide a statement to the
    police at the time of the events, nor even after the appellant was charged. In
    fact, he did not reach out to provide this information until well after the
    preliminary inquiry and after he had demanded from the appellant $47,000 as
    reimbursement for upgrades to the unit he had already undertaken.

POSITIONS AT TRIAL

Defence

[13]

The appellants position at trial was that A.B. had fabricated her
    allegations and planted the guns to match what his ex-wife said about him as
    their relationship came to an end, to secure a similar divorce settlement. He
    argued that she was not credible and should not be believed. Although he did
    not challenge the authenticity or approximate dates of the photographs, in his
    view, the photographs were not corroborative as they were not truly independent
    pieces of evidence, but rather were entirely reliant on [A.B.s] evidence that
    the marks in those photographs [were] the result of assaults as opposed to
    innocent falls or bumps.

Crown

[14]

The Crown argued that A.B. was both credible and reliable and ought to
    be believed. It argued that the photographs corroborated A.B.s assault
    allegations, as did the location of the guns and money on the firearm related
    counts. It argued that, were A.B. intent on framing the appellant by planting a
    firearm, it would have made no sense to plant three of them when one would have
    done the job.

decision below

[15]

The trial judge made these findings:

i.)

Both the complainant and Mr. Said had a motive to testify as they did.
      For her part, A.B. wanted to bolster her family law claims; Mr. Said to exact
      revenge for what he perceived to be the appellants unfair business practices.

ii.)

Given his concerns with A.B.s testimony on the firearm counts, and
      significant concerns with Mr. Saids testimony, he was unable to conclude
      beyond a reasonable doubt that the appellant was guilty of the firearm
      offences. He did not find as a fact that she had planted them. In his reasons
      for judgment, he said this:

Objectively, both the complainant and Ed had a motive to
      testify as they did: the complainant to further her Family Law claim, and for
      Ed to seek revenge for what he perceived were unfair business dealings at the
      hand of his former friend and landlord.

The Crown has raised interesting questions in her submissions,
      asking:

(a)

How
          would the complainant know where to purchase a gun?

(b)

Why
          would the complainant plant three guns, when one would have been sufficient? and,

(c)

Why
          would the complainant plant over $2,000.00 in American and Israeli funds in a
          duffle bag, along with the guns?

Unfortunately, from an evidentiary point of view, no DNA was
      found on the handguns, the magazines, or the ammunition. The Identification
      Officer testified that because of the level of the alleged offence  the Court
      assumes he meant possession as opposed to something more sinister  he was
      restricted to swabbing the objects and sending the swabs to the Centre of
      Forensic Sciences for testimony. His testimony was that when more serious
      crimes are alleged, the actual objects are sent to the Centre of Forensic
      Sciences, and that they have the ability, when the[y] have the actual object,
      to test for incredibly minute quantities of DNA.

Although submissions posed by the Crown with respect to the
      three-guns-versus-one and the cash caused the Court some concern, overall, for
      the reasons given above, I am unable to conclude beyond a reasonable doubt,
      that the accused is guilty of counts 4, 5, 6, 7, 8 or 9, and, therefore, a
      finding of not guilty shall be entered with respect to those counts.

iii.)

Although
      A.B.s testimony on the firearm charges could not be relied upon, in respect of
      the assault charge, the date-stamped photographs she took supported her
      evidence that the appellant assaulted her, and on the dates and in the manner
      she described. In his reasons for judgment, the trial judge said this:

Exhibit 2 shows numerous marks on the complainants body, and
      at the same time and date, pictures were taken of a broken TV, holes in the
      drywall and a broken lamp. The Court can come to no other conclusion, based on
      the evidence before it, that the complainant was assaulted just before the
      pictures were taken and that the accused, in what appears to have been an
      uncontrollable rage, threw a bedroom lamp at the wall, smashing the lamp and
      causing moderate damage to the drywall, after which he smashed a TV.

Although based on the evidence before the Court, it does not
      appear that the accused threw the lamp in an attempt to hit the complainant, it
      would have hit the wall within a few feet of her, certainly terrifying her.

Based on the evidence of the complainant, corroborated by the
      photographic evidence in Exhibits 2, 3, 4 and 5, the Court is satisfied beyond
      a reasonable doubt that the accused assaulted the complainant on the dates in
      question and conviction shall be registered with respect to count 1.

iv.)

As
      there was no similar date-stamped photographic corroborative evidence in
      respect of A.B.s allegation that the appellant threatened her and struck the
      child, he found the appellant not guilty on those counts.

issues

[16]

On this appeal, two issues arise:

i.)

Did the trial judge arrive at an unreasonable verdict?

ii.)

Were his reasons sufficient?

analysis

Introduction

[17]

The presenting issues are related and can, therefore, be addressed
    together.

[18]

Let me start by saying that the trial result is somewhat odd as, at
    least on a first read, it would seem that the trial judges comments about A.B.s
    motive to lie, and the issues he identified with her evidence on the firearm
    counts  and how that gave rise to a reasonable doubt  might well have applied
    equally to his analysis of the assault. Which is to say, the appellants
    position is at least arguable.

[19]

However, though arguable, I do not agree. While I understand the
    appellants submission about demonstrable logical incompatibility and his
    position that the trial judges reasons reveal fundamental flaws, these were
    distinct counts, with different evidence, and as such it was open to the trial
    judge to conclude as he did.

[20]

It remains the fact, however, that the reasons of the trial judge are
    unsatisfactory. He fails to articulate why his credibility findings regarding
    the guns, which he concluded raised a reasonable doubt, did not lead to a
    similar conclusion regarding the assault. While the trial judge may not have
    made a positive finding that the complainant planted, or otherwise orchestrated
    the presence of, the guns, that conclusion is really the only one that
    reasonably arises on the judges findings. Given that reality, the trial judge
    ought to have better explained why his conclusion on those counts did not
    suggest a similar conclusion on the assault count.

[21]

Nevertheless, it seems evident that the trial judge found that the
    photographs confirmed the complainants allegation that she was assaulted, in
    large part because they were date-stamped  aligning them with her unshaken
    trial testimony that she was assaulted. The defence did not object to their
    provenance.

[22]

It is, of course, open to a trial judge to believe none, some, or all of
    any witness evidence. The appellants argument that the result is logically
    incompatible ignores that principle. The trial judge had a reasonable doubt on
    one set of charges (i.e., firearms), for reasons he articulated, although not
    particularly well. He had concerns with the appellants testimony on these
    counts, and he had serious concerns with Mr. Saids testimony. Therefore, he
    was unable to conclude beyond a reasonable doubt that the appellant was guilty.
    He did not have a reasonable doubt on the assault count because, while he may
    have had concerns with A.B.s credibility, he found there to be evidence,
    namely the photographs, that confirmed her testimony. Considered in that light,
    the apparent inconsistency in the trial judges reasons is explained.

Beaudry / Sinclair

[23]

That being the case, this is not an unreasonable verdict according to the
    principles set out in
R. v. Beaudry
, 2007 SCC 5, [2007] 1 S.C.R. 190,
    and
R. v. Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3; see also
R. v. C.P.,
2021 SCC 19, for more recent guidance. According to that
    line of authority, a court can intervene under s. 686(1)(a)(i) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, where a verdict is unreasonable because it is
    reached illogically or irrationally:
C.P.
, at para. 29,
per
Abella J., citing
Beaudry
, at paras. 96-97,
per
Fish J.
    (dissenting in the result). This may occur where the trial judge makes a
    finding, or draws an inference, essential to the verdict that is unsupported by
    or plainly contradicted by the evidence, or is shown to be demonstrably incompatible
    with evidence that has neither been contradicted by other evidence nor rejected
    by the trial judge:
C.P.
, at para. 29,
per
Abella J.;
Sinclair
,
    at paras. 4, 16, 19-21,
per
Fish J. Under the second type of unreasonable
    verdict, an essential inference that appears compatible with the evidence from
    which it is drawn implodes on contextual scrutiny:
Sinclair
, at para.
    22,
per
Fish J. Both types of unreasonable verdict are exceedingly
    rare:
Sinclair
, at para. 22,
per
Fish J. When determining
    whether the verdict was reasonable, an appellate court cannot interfere with
    the trial judges assessments of credibility unless those assessments cannot be
    supported on any reasonable view of the evidence:
C.P.
, at para. 30,
per
Abella J. It is not this courts role on appeal to substitute our preferred
    findings and credibility assessments for those made and undertaken by the trial
    judge.

[24]

In
Sinclair
, Charron J., in a concurring opinion, writes that:

The
Beaudry
test may apply in exceptional cases where
    the reasoning process of the trial judge is so irrational, or so at odds with
    the evidence, that it vitiates the verdict  even though that verdict is
    available on the evidence as a whole. In these rare cases, an appellate court
    will be justified in concluding that the verdict itself is unreasonable.

[25]

This is not one of those exceptional cases. While the trial judges
    reasoning could have been much better explained, it is not so irrational, or
    so at odds with the evidence as to satisfy the
Beaudry
test. When read
    in the context of the reasons as a whole, one is able to discern what the trial
    judge did and why he did it. He found that the concerns he had with A.B.s
    credibility were overcome by the photographs, which then led to different
    results across the counts. He was entitled to reach that result.

[26]

While there are issues surrounding the taking of the photographs that
    the trial judge perhaps should have addressed, and while his reasons for
    finding a reasonable doubt on the firearm counts could have been more fully
    explained, to give effect to the appellants argument would be to measure these
    reasons against a standard of perfection, which of course we cannot do.

Additional Comments

[27]

I would make these two additional points. First, while an accused person
    is never required to testify, and while no negative inference can be drawn from
    the decision not to, the fact remains that the appellant did not, so there was no
    other evidence advanced for how A.B.s injuries were incurred, other than the
    invitation to speculate that they could have been the result of, as trial
    counsel put it, innocent falls or bumps. On a fair and complete reading of
    the reasons, the trial judge rejected that as a reasonable alternative
    explanation.

[28]

Second, this case illustrates the potential risks associated with
    conflating independent corroboration with confirmatory evidence, which is yet
    another instance where the trial judge might have been a bit clearer. What I
    mean is, while he used the term corroborated when describing the photographs,
    it would have been better, and far more accurate, to refer to them as
    confirmatory or evidence in support. For evidence to be corroborative, it
    must be independent. Here, of course, the photographs were not independent in
    that A.B. herself took them. However, when placed in their proper context, the
    photographs were capable of removing any doubt one might have and of tipping
    the balance in favour of conviction. Again, no issues were raised as to their
    provenance. This was undisputed evidence of injuries, incurred at or near the
    time A.B. said she was assaulted by the appellant, and evidence of property
    damage which was consistent with the events she described.

DISPOSITION

[29]

The verdict was not unreasonable, and the reasons are sufficient. I
    would, therefore, dismiss the conviction appeal.

[30]

As the appellant did not pursue his sentence appeal, I would treat it as
    abandoned.

Released: February 25, 2022 K.M.v.R.

J. George J.A.

I agree. K. van
    Rensburg J.A.

I agree. I.V.B.
    Nordheimer 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. 672.501(1), (2), or (3) of the
Criminal Code
shall continue.  These
    sections of the

Criminal Code
provide:

672.501 (1) Where a
    Review Board holds a hearing referred to in section 672.5 in respect of an
    accused who has been declared not criminally responsible on account of mental
    disorder or unfit to stand trial for an offence referred to in subsection
    486.4(1), the Review Board shall make an order directing that any information
    that could identify a victim, or a witness who is under the age of eighteen
    years, shall not be published in any document or broadcast or transmitted in
    any way.

(2) Where a Review Board
    holds a hearing referred to in section 672.5 in respect of an accused who has
    been declared not criminally responsible on account of mental disorder or unfit
    to stand trial for an offence referred to in section 163.1, a Review Board
    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 section 163.1, shall not be published
    in any document or broadcast or transmitted in any way.

(3) Where a Review Board
    holds a hearing referred to in section 672.5 in respect of an accused who has
    been declared not criminally responsible on account of mental disorder or unfit
    to stand trial for an offence other than the offences referred to in subsection
    (1) or (2), on application of the prosecutor, a victim or a witness, the Review
    Board may make an order directing that any information that could identify the
    victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the Review Board is satisfied that the order is
    necessary for the proper administration of justice.

Subsections 672.501(11)
    and (12) provide:

(11) Every person who
    fails to comply with an order made under any of subsections (1) to (3) is
    guilty of an offence punishable on summary conviction.

(12) For greater
    certainty, an order referred to in subsection (11) also prohibits, 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 or witness whose identity is protected
    by the order.

COURT OF APPEAL FOR ONTARIO

CITATION: K.S. (Re), 2022 ONCA 170

DATE: 20220301

DOCKET: C69397

Fairburn A.C.J.O., Miller and
    George JJ.A.

IN
    THE MATTER OF: K.S.

AN APPEAL UNDER PART XX.1 OF THE
CODE

Erin Dann, for the appellant

Mark Luimes, for the respondent Attorney
    General for Ontario

Julia Lefebvre, for the respondent, Person
    in Charge of North Bay Regional Health Care

Heard: February 18, 2022 by
    video conference

On appeal against the disposition of the
    Ontario Review Board, dated March 15, 2021, with reasons dated April 13, 2021.

REASONS FOR DECISION

[1]

The appellant was found not criminally
    responsible by reason of mental disorder. The index offence involved
    threatening his cousin with a knife. When the police located the appellant, he
    threatened to cut their throats.

[2]

The appellant has been under the jurisdiction of
    the Ontario Review Board (the Board) since November 2011. He is diagnosed
    with schizophrenia, alcohol use disorder (in sustained remission), cannabis use
    disorder, and avoidant personality traits. At his most recent hearing in March
    2021, the Board rejected the appellants position that he is entitled to be
    absolutely discharged. Rather, based on all of the evidence and submissions
    of the parties, which were detailed in its reasons, the Board concluded that the
    appellant continues to represent a significant threat to the safety of the
    public.

[3]

Accordingly, the Board continued the conditional
    discharge imposed in 2020. At the same time, the Board turned its attention to
    what conditions should attach to the disposition to ensure they meet the
    statutory criteria of being necessary and appropriate. In doing so, the Board
    concluded that two conditions that had been imposed in the previous disposition
    could be removed: (a) a condition that the appellant abstain absolutely from the
    non-medical use of alcohol or drugs or any other intoxicant; and (b) a
    condition that the appellant, on his consent, agree to take
    treatment/medication as prescribed by the person in charge.

[4]

The appellant argues that the Boards
    disposition is unreasonable because it lacks evidentiary support. The treating
    psychiatrist opined that if the appellant were to take substances he would
    decompensate, and that the decompensation would lead to a lack of insight and medication
    non-compliance, resulting in a significant threat to the safety of the public.

[5]

The appellant argues that this is an unsupported
    opinion. While the appellant acknowledges that there is evidence to support the
    opinion that he would use substances if absolutely discharged, there is nothing
    in the record to support the opinion that he would then decompensate and stop
    taking medication. Indeed, the appellant argues that the evidentiary record
    points in the opposite direction, including support for the fact that when the appellant
    has used drugs in the past, it has not had this profound decompensating effect.
    The appellant further emphasizes that the Boards reasons suggest it did not
    come to grips with this evidence that is said to undermine the threadbare
    opinion as testified to by the treating psychiatrist.

[6]

Despite the very capable argument, we do not
    agree that the Board was operating in a factual lacuna or that its reasons
    demonstrate a fundamental failure to appreciate the evidence before it. While
    the analysis portion of the Boards reasons could have better explained how it
    arrived at the conclusion that the appellant remains a significant risk to
    public safety, perfection in the Boards reasoning process is not required.
    Read contextually, the Boards reasons demonstrate that it appreciated the
    evidence before it and arrived at a conclusion open to it.

[7]

The expert Board was entitled to and did accept
    the appellants expert treatment teams opinion that he remains a significant
    threat to the safety of the public. That opinion was based upon years of
    experience with the appellant, as documented in the hospital report. Based upon
    all that information, which was before and reviewed by the Board, the treatment
    team and treating psychiatrist came to the opinion that, among other things:

-

If the appellant used substances, it would be highly
    likely to result in a decompensation of his mental state, precipitating an
    increase in the level of risk;

-

That substance use would lead to an acute
    deterioration of [the appellants] mental health which would increase his risk
    significantly and put him at risk of offending to the same or similar degree as
    the index offence given the nature of the symptoms that he presents with when
    hes ill; and

-

Cannabis use could lead to a resurgence of acute
    symptoms of his mental illness, including auditory hallucinations.

[8]

One of the psychiatrist members of the Board
    asked the treating psychiatrist about the level of risk associated with the appellant
    engaging in serious criminal conduct should he resume substance abuse. The treating
    psychiatrist answered as follows:

On balance, I think the steps would be  use
    of substances, decompensation, and then non-adherence with his medication when
    hes very ill and loses more insight. And at that point the likelihood of him
    re-offending to the same degree would be high when he gets to that point. I
    dont think its something that would happen immediately, I think there would
    definitely be a period of decompensation first which would obviously be
    concerning in itself.

[9]

The psychiatrist arrived at that conclusion
    through the application of his expert knowledge to the specific factors operative
    in this case, ones he knew about as the appellants treating psychiatrist.

[10]

In our view, contextually approached, the Boards
    reasons explain why it arrived at the conclusion that the appellant remains a
    significant threat to public safety. This was a conclusion that was available
    on the evidence.

[11]

Despite concluding that the appellant remains a
    significant risk to public safety, as previously noted, the Board quite
    correctly turned its mind to the necessary and appropriate disposition,
    resulting in the removal of two conditions. The removal of the condition
    involving the abstention from alcohol and non-prescribed drugs rested on the
    strength of the appellants assurances not to consume those intoxicants. As the
    Board pointed out, the removal of the condition gave the appellant the
    opportunity to build trust with the hospital and his treatment team. We express
    our sincere hope that this has been achieved in the past year. It is a factor
    that will undoubtedly be taken into account at the next Board hearing.

[12]

The appeal is dismissed.

Fairburn A.C.J.O.

B.W. Miller J.A.

J. George J.A.


MISE EN GARDE

Le président du comité qui
    entend cet appel ordonne que lordonnance suivante soit jointe au dossier :

Lordonnance limitant la
    publication dans cette instance, en vertu des paragraphes 486.4 (1), (2),
    (2.1), (2.2), (3) ou (4) ou en vertu des paragraphes 486.6 (1) ou (2) du
Code
    criminel
, est maintenue. Ces dispositions du
Code criminel
prévoient
    ce qui suit :

486.4(1) Sous réserve du
    paragraphe (2), le juge ou le juge de paix qui préside peut rendre une
    ordonnance interdisant de publier ou de diffuser de quelque façon que ce soit
    tout renseignement qui permettrait détablir lidentité de la victime ou dun témoin
    dans les procédures relatives à :

a) lune des infractions
    suivantes;

(i) une infraction
    prévue aux articles 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 ou 347,

(ii)
une infraction prévue par la présente loi, dans toute version
    antérieure à la date dentrée en vigueur du présent sous-alinéa, dans le cas où
    lacte reproché constituerait une infraction visée au sous-alinéa (i) sil
    était commis à cette date ou par la suite
,

(iii) [Abrogé, 2014, ch.
    25, art. 22(2).]

b)
deux
    infractions ou plus dans le cadre de la même procédure, dont lune est une
    infraction visée à lalinéa
a
).

(2)
Dans les procédures relatives à des infractions visées aux alinéas (1)
a
) ou
b
), le juge ou le juge de paix qui préside est tenu :

a
) daviser dès que possible les témoins âgés de moins de dix-huit
    ans et la victime de leur droit de demander lordonnance;

b
) de rendre lordonnance, si le poursuivant, la victime ou lun de
    ces témoins lui en fait la demande.

(2.1) Sous réserve du
    paragraphe (2.2), le juge ou le juge de paix qui préside peut rendre une
    ordonnance interdisant de publier ou de diffuser de quelque façon que ce soit tout
    renseignement qui permettrait détablir lidentité de la victime âgée de moins
    de dix-huit ans dans les procédures relatives à toute infraction autre que
    celles visées au paragraphe (1).

(2.2) Dans les
    procédures relatives à toute infraction autre que celles visées au paragraphe
    (1), le juge ou le juge de paix qui préside est tenu, si la victime est âgée de
    moins de dix-huit ans :

a
) daviser dans les meilleurs délais la victime de son droit de
    demander lordonnance;

b
) de rendre lordonnance, si le poursuivant ou la victime lui en
    fait la demande.

(3) Dans les
    procédures relatives à une infraction visée à larticle 163.1, le juge ou le
    juge de paix rend une ordonnance interdisant de publier ou de diffuser de
    quelque façon que ce soit tout renseignement qui permettrait détablir
    lidentité dun témoin âgé de moins de dix-huit ans ou dune personne faisant
    lobjet dune représentation, dun écrit ou dun enregistrement qui constitue
    de la pornographie juvénile au sens de cet article.

(4) Les ordonnances rendues
    en vertu du présent article ne sappliquent pas à la communication de
    renseignements dans le cours de ladministration de la justice si la
    communication ne vise pas à renseigner la collectivité.

486.6(1)
Quiconque transgresse une ordonnance rendue conformément aux
    paragraphes 486.4(1), (2) ou (3) ou 486.5(1) ou (2) est coupable dune
    infraction punissable sur déclaration de culpabilité par procédure sommaire.

(2) Il est entendu que
    les ordonnances mentionnées au paragraphe (1) visent également linterdiction,
    dans les procédures pour transgression de ces ordonnances, de diffuser ou de
    publier de quelque façon que ce soit tout renseignement qui permettrait
    détablir lidentité de la victime, du témoin ou de la personne associée au système
    judiciaire que lordonnance vise à protéger.
2005, ch.
    32, art. 15.

COUR DAPPEL DE LONTARIO

RÉFÉRENCE : R. c. S.B.C., 2022 ONCA 171

DATE : 20220301

DOSSIER : C68531

Les juges van Rensburg, Roberts
    et Tzimas
(
ad hoc
)

ENTRE

Sa Majesté la Reine

Intimée

et

S.B.C.

Appelant

Fernando Belton, pour lappelant

Vallery Bayly, pour lintimée

Date de laudience : le 23
    novembre 2021

En appel de
    la condamnation prononcée le 31 mai 2019 par le juge Robert N. Beaudoin de la
    Cour supérieure de justice.

L.B.
    Roberts, j.c.a. :

[1]

Lappelant interjette appel de ses convictions
    qui découlent de leffondrement de ses relations conjugales avec la plaignante.
    Lappelant se présentait au procès sans avocat. À la suite dun procès devant juge
    seul, lappelant a été reconnu coupable des infractions de distribution non
    consensuelle dune image intime (art. 162.1 du
Code criminel du Canada
),
    harcèlement criminel (art. 264), extorsion par libelle (art. 302), et méfait à
    légard de données informatiques (art. 430(5)).

Les faits clés

[2]

Lappelant et la plaignante se sont rencontrés
    en 2012 et en quelques mois, ils étaient mariés. Peu après, la plaignante a
    découvert que lappelant était déjà marié, et quil continuait de résider et
    délever une jeune fille avec sa première épouse. En novembre 2013, la
    plaignante a quitté le milieu domestique. Elle sest officiellement séparée de
    lappelant en 2015. Après leur séparation, la plaignante a continué de gérer
    une garderie sous lagence Andrew Fleck dans le foyer conjugal. La garderie
    était sa seule source de revenus.

[3]

Les faits sous-tendant les condamnations sont
    les suivants. Après leur séparation, pendant plusieurs mois en 2015 et 2016,
    lappelant harcelait la plaignante en lui envoyant des messages menaçants par
    courriel ou par la poste. Dans ses messages, lappelant demandait que la
    plaignante lui remette de largent. Sinon, il enverrait des images intimes de
    la plaignante, porterait plainte contre la plaignante à la commission déthique
    et doctroi des diplômes à lUniversité dOttawa et menacerait sa demande de
    citoyenneté. En outre, dans ces messages, lappelant a menacé le père de la
    plaignante. Il a fini par envoyer des photos intimes de la plaignante quil a
    prises sans autorité à une agente dAndrew Fleck. Il a aussi porté plainte
    contre la plaignante de sorte que la garderie fût temporairement fermée lors
    dune enquête qui a par la suite exonéré la plaignante. En ce qui concerne
    laccusation de méfait, lappelant a modifié la déclaration fiscale de la
    plaignante à son insu de sorte quelle ait dû payer des impôts supplémentaires.

[4]

Lappelant est sommé de comparaître le 12 août
    2016 à légard des chefs daccusation. Il a initialement retenu laide dun
    avocat, mais la congédié après la tenue dune enquête préliminaire. Le 28 mai
    2018, la requête de son avocat pour cesser doccuper dans le dossier de
    lappelant fut accueillie. Dès cette date, le tribunal fit plusieurs mises à
    jour avec lappelant concernant ses efforts dengager un avocat pour son procès.
    Sa demande de transférer son certificat daide juridique na pas été réglée. Le
    15 février 2019, le tribunal a nommé un avocat en vertu de larticle 486.3(2)
    du
Code criminel
pour contre-interroger la plaignante de la part de
    lappelant. Le 25 mars 2019, le tribunal a clarifié lobligation de lappelant
    dêtre présent à son procès et lui a indiqué quil devrait tâcher à préparer
    lui-même ses requêtes préalables au procès. Le 15 avril 2019, le juge du procès
    a rejeté la requête en arrêt des procédures présentée par lappelant.

[5]

Le 13 mai 2019, soit la première journée du
    procès, lappelant, ayant opté pour un procès devant juge seul, sest présenté
    sans avocat. Au commencement du procès, lappelant soulève, pour la première
    fois en trois ans, que la divulgation de la part de la Couronne était
    incomplète. Faute de preuve, le juge du procès nen était pas convaincu, et a
    commencé le procès. Peu après, lappelant a demandé un ajournement du procès
    parce quil prétendait être malade. Le juge du procès a rejeté sa requête en
    labsence de preuve médicale suffisante. Il a ordonné que le procès continue.

[6]

Lors de son témoignage, la plaignante a fourni
    bien des détails qui appuyaient les chefs daccusation contre lappelant, dont
    les messages menaçants reçus de lappelant sous son propre nom ainsi que sous
    un surnom connu, des photos intimes, des plaintes mal fondées contre elle à la
    société Andrew Fleck et des changements portés à sa déclaration fiscale. Elle a
    nié la suggestion, posée lors de son contre-interrogatoire, davoir orchestré
    un complot contre lappelant avec lancienne épouse de lappelant.

[7]

Lappelant a choisi de témoigner. Tout en
    prétendant que la plaignante a orchestré un complot contre lui, il a néanmoins admis
    avoir écrit trois des messages en cause, ainsi que quelques messages à lagence
    Andrew Fleck. Il a également admis avoir pris les photos intimes de la
    plaignante sans autorité, mais a nié les avoir envoyées. Lappelant a admis avoir
    modifié la déclaration fiscale de la plaignante en utilisant à son insu son mot
    de passe pour avoir accès à son compte fiscal, mais a prétendu lavoir fait
    pour révéler le revenu actuel de la plaignante. Ses admissions au procès repétènt
    celles faites lors de sa déclaration à la police qui fut reconnue comme volontaire
    par le juge de première instance.

[8]

Le 31 mai 2019, le juge de première instance a rendu
    ses motifs de vive voix. Il a conclu que les messages en question, y compris
    des photos intimes, furent créés et envoyés par lappelant, et que ceux-ci
    satisfont aux éléments des chefs daccusation. Il a également conclu que
    lappelant a changé la déclaration fiscale de la plaignante. En conséquence, il
    a déclaré lappelant coupable de tous les chefs daccusation.

[9]

Lappelant en a interjeté appel.

Questions en appel

[10]

Lappelant prétend que le juge de première
    instance na pas satisfait à ses obligations de lassister lors du procès.
    Selon lappelant, le juge de première instance a entraîné une erreur judiciaire
    en continuant le procès sans que lappelant soit représenté par un avocat. En
    outre, il a négligé de donner des instructions suffisantes à lappelant au
    cours du procès. Par conséquent, lappelant argumente que ses droits à un
    procès équitable et de présenter une défense pleine et entière furent viciés.

Analyse

(a)

Première question : Est-ce que le juge du
    procès a erré en continuant le procès bien que lappelant se présentât sans
    avocat?

[11]

Lappelant prétend que le juge du procès a erré
    et a causé une injustice en permettant que le procès se déroule sans quil ait
    un avocat. Il était clair quil en avait besoin pour assurer un procès
    équitable.

[12]

Je ne souscris pas à ces arguments. Le juge de
    première instance na ni erré ni causé une injustice. Le procès de lappelant
    était équitable bien que lappelant se représentât seul.

[13]

Lhistorique du dossier ainsi que les actions de
    lappelant remettent en question son désir et sa diligence de retenir un avocat,
    et suggèrent plutôt des efforts à retarder son procès. Il est à noter quaprès
    avoir congédié son ancien avocat, lappelant a eu presque une année pour
    engager un nouvel avocat, mais il ne la pas fait. Jobserve que le traitement
    de sa demande pour transférer le certificat daide juridique reste sans
    explication. En outre, bien que lappelant ait soulevé les questions de
    divulgation et de maladie pour essayer de reporter le procès, lappelant na pas
    demandé au juge de première instance de reporter le procès pour quil puisse
    engager un avocat ni de nommer un avocat pour le représenter.

[14]

Cela dit, labsence dune requête de lappelant nallégit
    pas lobligation du juge de première instance de considérer sil était
    nécessaire de nommer un avocat pour lappelant ou un
amicus curiae
afin
    dassurer léquité ou lapparence déquité du procès :
R. v. Rowbotham
(1988),
    41 C.C.C. (3d) 1 (Ont. C.A.), à la p. 67;
R. v. Phillips
, 2003 CSC 57,
    [2003] 2 R.C.S. 623, confirmant 2003 ABCA 4, 172 C.C.C. (3d) 285, au par. 10;
Ontario
    v. Criminal Lawyers Association of Ontario
, 2013 CSC 43, [2013] 3 R.C.S.
    3, au par. 46;
R. v. A.H.
, 2018 ONCA 677, 366 C.C.C. (3d) 69, au par.
    36. À mon avis, il nétait pas nécessaire en lespèce.

[15]

Le procès nétait pas compliqué. Sa
    détermination reposait sur une analyse des questions factuelles et de crédibilité.
    Les questions factuelles principales à trancher étaient si lappelant était
    lauteur des messages menaçants et sil avait changé des données informatiques
    fiscales de la plaignante. Selon les admissions faites par lappelant, il a
    écrit et envoyé plusieurs des messages en question à la plaignante, et il a
    changé sa déclaration fiscale sans autorité. En ce qui concerne lévaluation de
    la crédibilité, lélément important du procès pour lappelant était le
    contre-interrogatoire de la plaignante et le tribunal a nommé un avocat pour le
    faire à sa place.

[16]

Me Fréchette, nommé par la cour pour
    contre-interroger la plaignante, comparut lors de la première journée du procès,
    et lappelant eut la chance de le consulter. Il est lavocat que lappelant
    voulait engager quand il avait demandé un ajournement presque neuf mois avant
    le procès. En outre, lappelant a consulté Me Fréchette avant le procès. Par exemple,
    lors de son témoignage, lappelant a mentionné une consultation et des
    « va-et-vient » avec Me Fréchette sur des questions à poser à la
    plaignante avant le début du procès. De plus, le juge du procès a accordé des
    pauses au début et au cours du procès à lappelant pour consulter Me Fréchette.
    En effet, lappelant a consulté Me Fréchette lors du contre-interrogatoire de
    la plaignante et celui-ci a posé des questions suggérées par lappelant.

[17]

Dans ces circonstances, je ne peux pas conclure
    que le procès était inéquitable ou avait une apparence diniquité.

(b)

Deuxième question : Est-ce que le juge du
    procès a donné de laide suffisante à lappelant au cours de son procès afin
    que le procès se déroulât dune manière équitable?

[18]

Lappelant constate que dans les circonstances
    inéquitables créées par le juge en refusant de reporter le procès pour quil
    puisse engager un avocat, il incombait au juge dassurer soigneusement que
    lappelant ait de laide suffisante au cours du procès. Selon lappelant, il ne
    sest pas acquitté de son obligation.

[19]

Je naccueille pas cet argument.

[20]

Il est vrai que les juges de première instance
    doivent offrir de laide suffisante aux parties non représentées lors des
    procédures judiciaires. Ces obligations comprennent la responsabilité de
    diriger les personnes non représentées quant aux étapes du procès et aux règles
    de procédure et de preuve, ainsi que de leur permettre de faire des choix
    cruciaux : Conseil canadien de la magistrature,
Énoncé de principes
    concernant les plaideurs et les accusés non représentés par un avocat
, septembre
    2006 (en ligne : https://cjc-ccm.ca/fr/nouvelles/le-conseil-canadien-de-la-magistrature-publie-un-enonce-de-principes-concernant-les)
    cité dans
Pintea c. Johns
, 2017 CSC 23, [2017] 1 R.C.S. 470, au par. 4;
Mazraani c. Industrielle Alliance, Assurance et services financiers inc.
,
    2018 CSC 50, [2018] 3 R.C.S. 261, au par. 39.

[21]

Cela dit, les juges ne sont pas les avocats pour
    les personnes non représentées. Le degré de leurs obligations doffrir dassistance
    est donc circonscrit par ce qui est raisonnable selon les circonstances en
    lespèce. Voir :
R. v. Chemama
, 2016 ONCA 579, 351 O.A.C. 381, au
    par. 14;
R. v. Forrester
, 2019 ONCA 255, 375 C.C.C. (3d) 279, au para
    16. En particulier, les obligations des juges envers les parties non
    représentées doivent co-exister avec leurs obligations dassurer un procès
    efficace et juste:
R. v. Ivall
, 2018 ONCA 1026, 370 C.C.C. (3d) 179,
    au par. 166.

[22]

Cependant, toute négligence quelconque de la
    part des juges du procès de donner de laide suffisante aux personnes sans
    avocat ne constitue pas un motif dappel indépendant derreur judiciaire. La
    question de la suffisance de laide fournie est une question de fait qui dépend
    des circonstances de chaque cause :
R. v. Tran
(2001), 55 O.R.
    (3d) 161 (C.A.), au par. 22. Cest au juge du procès dévaluer comment aider
    laccusé pour assurer que le procès soit équitable. Cela représente lexercice
    du pouvoir discrétionnaire du juge du procès.

[23]

La question en appel est donc si la négligence
    judiciaire en question dassister laccusé non représenté avait indument gêné
    la position de la défense :
R. v. Schell
, 2013 ABCA 4, 293 C.C.C.
    (3d) 400, au par. 2;
R. v. Hazout
(2005), 199 C.C.C. (3d) 474 (Ont. C.A.)
    au par. 37, autorisation de pourvoi refusée, [2005] S.C.C.A. No. 412.

[24]

Je ne vois rien dans la transcription du procès en
    lespèce qui sélève à la négligence de la part du juge de première instance ou
    qui aboutit à un procès inéquitable ou
à
une erreur judiciaire. Le juge aidait lappelant tout au long du
    procès. Le juge lui a expliqué le fardeau de la preuve, le principe de la
    présomption dinnocence, la nature des allégations, des procédures comme le
voir
    dire
pour déterminer le caractère volontaire de sa déclaration à la
    police, et le choix de présenter une preuve ou non, y compris le choix de
    témoigner. Le juge lui a aussi accordé plusieurs pauses et brefs ajournements
    au cours du procès pour quil puisse se préparer, parler avec Me Fréchette, prendre
    des décisions importantes, et organiser sa preuve et ses arguments.

[25]

Je naccueille pas largument de lappelant que
    le juge du procès manque dimpartialité. Le seuil dintervention est très haut.
    Toute impatience démontrée de temps en temps par le juge de première instance
    au cours du procès de lappelant ne latteint pas. La transcription du procès
    démontre que le juge a passé une bonne partie de chaque jour du procès en
    répondant aux questions de lappelant et en lui expliquant le déroulement du
    procès. Certainement, lappelant a participé au procès dune façon très
    engagée. Il na pas hésité à poser des questions probantes au juge et à contester
    ses décisions procédurales au cours du procès. Il sest montré capable de contre-interroger
    des témoins, et de présenter sa preuve et ses arguments dune façon logique et
    complète.

[26]

Le juge de première instance na pas négligé de
    donner de laide suffisante à lappelant. Le procès de lappelant était équitable.
    La preuve présentée par la Couronne et les admissions faites par lappelant
    étaient tellement fortes quun verdict de culpabilité était la seule issue
    probable.

Disposition

[27]

Pour ces motifs, je rejetterais lappel.

Rendu le : 1 mars 2022
    « K.M.v.R. »

« L.B.
    Roberts j.c.a. »

« Je
    souscris.
K. van Rensburg j.c.a. »

« Je
    souscris.
E. Ria Tzimas J. (ad hoc) »