COURT OF APPEAL FOR ONTARIO

CITATION: Mwanri v. Mwanri, 2015 ONCA 843

DATE: 20151204

DOCKET: C60177

Cronk, Lauwers and van Rensburg JJ.A.

BETWEEN

Ernest Josiah Mwanri

Appellant (Respondent)

and

Irene Elias Mwanri

Respondent (Applicant)

Miguna Miguna, as agent for the appellant

Cynthia Mancia, for the respondent

Mark N. Demeda, for the Office of the Childrens Lawyer

Heard: September 3, 2015

On appeal from the order of Justice David Price of the
    Superior Court of Justice, dated February 27, 2015.

Cronk J.A.:

I.        Introduction

[1]

The parties were married in 1996 and separated in 2009. They have two
    children, now 14 and 19 years of age.  By court order dated December 10, 2010,
    the appellant father was granted sole custody and primary residence of the
    parties son, the eldest child.  The son, who is now in University, has lived
    with the father ever since.  By the same court order, the respondent mother was
    granted sole custody and primary residence of the parties daughter, their youngest
    child.  On July 11, 2014, the daughter refused to return to her mothers home after
    a summer access visit with her father.  Since then, she has lived with the father.

[2]

The current custody and access arrangements for the children are not at
    issue on this appeal.  The main issues in contention concern child support for
    the daughter, spousal support, and an unpaid equalization payment owed by the
    father to the mother.

II.       Background in Brief

[3]

On October 23, 2013, following a trial, Seppi J. of the Superior Court
    of Justice granted the parties a divorce.  She also ordered that the father: i)
    make an equalization payment to the mother in the amount of $51,437.50, payable
    in two instalments: $25,718.75 within 31 days from the date of the order and
    the balance by no later than May 31, 2014; ii) pay $1,000 per month in spousal
    support to the mother, commencing January 1, 2012; iii) pay $704 per month in
    child support to the mother for the daughter; and iv) contribute to the
    extraordinary educational expenses of both children on a
pro rata
basis.  By subsequent order dated January 23, 2014, Seppi J. also ordered the
    father to pay $38,000 in costs to the mother (collectively, Justice Seppis Order).

[4]

Several key events occurred after Justice Seppis Order.

[5]

First, once the daughter began to live with him in mid-July 2014, the
    father moved in the Superior Court to change the existing custody, access and
    support arrangements regarding her.  By notice of motion dated July 15, 2014,
    he sought a temporary custody order with respect to the daughter, together with
    specified access rights in favour of the mother; a temporary order terminating
    his existing child support obligation towards the daughter, effective July 11,
    2014; and an order requiring the mother to disclose the details of her
    employment.  He claimed no other relief regarding child or spousal support in
    his notice of motion.

[6]

The following month, in August 2014, the father filed an assignment in
    bankruptcy under the
Bankruptcy and Insolvency Act
, R.S.C. 1985, c.
    B-3, (the
BIA
).  At the time of his bankruptcy filing, his spousal
    and child support payments were current.  However, he had not paid any part of the
    equalization payment or the costs awarded to the mother under Justice Seppis Order.

[7]

For various reasons, the fathers motion was not heard in the fall of
    2014.  On December 5, 2014, the mother brought her own motion in the Superior
    Court, seeking orders for lump sum and continuing periodic spousal support,
    setting a review date for spousal support, and fixing the quantum of child
    support to be paid by her for the daughter at $101 per month based on the
    mothers declared annual income of $15,249.  By the time of the mothers motion,
    the daughter had been residing with her father for almost six months.

[8]

By operation of s. 168.1 of the
BIA
, the father was automatically
    discharged from bankruptcy on May 15, 2015, about two and one-half months after
    the motions judges order.

III.      Motions Judges Decision

[9]

The parties twin motions were heard together by Price J. of the
    Superior Court on February 27, 2015.  There was no dispute regarding temporary
    custody of the daughter.  The motions judge therefore granted continuing temporary
    sole custody of the daughter to the father and made an access order in favour
    of the mother.

[10]

The
    motions judge further directed:

The parenting/access schedule in this Order shall be monitored
    by the Office of the Childrens Lawyer and both of the parents shall cooperate
    with the OCLs counsel and follow his direction as to the interpretation of
    this Order.

The propriety of this direction is at issue on this
    appeal.

[11]

The
    motions judge also made several rulings regarding child and spousal support.
    In particular, the motions judge:

(1)

ordered
    the father to forthwith make a lump sum spousal support payment of $51,437 to
    the mother;

(2)

ordered
    the father to make continuing periodic spousal support payments of $1,000 per
    month to the mother, in accordance with Justice Seppis Order;

(3)

granted a
    charging order, in respect of the lump sum and periodic spousal support to be
    paid to the mother, against one of the fathers bank accounts, two of his
    registered retirement savings plans (R.R.S.P.s), and specified pension assets;

(4)

ordered
    that either party could seek a court review of the fathers periodic spousal
    support obligations after August 31, 2017, on certain conditions;

(5)

terminated
    the fathers child support obligation for the daughter, effective from the date
    of his order; and

(6)

adjourned
    the balance of the issues raised in the parties motions, to be heard by him on
    May 1, 2015.

IV.     Issues

[12]

In
    his factum, the father challenges almost every aspect of the motions judges
    child and spousal support rulings.  As ultimately argued, the issues may be
    framed as follows:

(1)

did the motions judges conduct of the hearing give rise to a reasonable
    apprehension of bias?

(2)

did the motions judge err in his child support ruling:

i)

by failing to terminate the fathers child support obligation for the daughter
    retroactively, from July 11, 2014 onwards, and by failing to account for the
    fathers child support payments to the mother during the eight months prior to
    the hearing, when the daughter was residing with the father; and

ii)

by failing to order that the mother pay child support for and contribute
    to the extraordinary expenses of the daughter?

(3)

did the motions judge err in his spousal support ruling:

i)

by ordering the father to pay lump sum support to the mother in an
    amount equal to the outstanding equalization payment under Justice Seppis
    Order; and

ii)

by directing that the fathers spousal support obligations be subject to
    a charging order over some of the fathers assets?

(4)

did the motions judge err by ordering the parties to follow the
    directions of counsel for the Office of the Childrens Lawyer (the OCL)
    regarding interpretation of the motions judges order?

V.      Discussion

(1)

Reasonable Apprehension of Bias Claim

[13]

The
    father argues that the motions judges conduct of the hearing created a
    reasonable apprehension of bias because the motions judge failed to accord the
    father procedural fairness and fundamental justice.  The father submits that,
    on this basis alone, the motions judges child and spousal support rulings that
    are adverse to the father cannot stand.

[14]

It
    is unnecessary to review the fathers numerous complaints in support of his
    bias claim in detail.  In general, he maintains that the motions judge failed
    to act impartially, instead conducting himself as a partisan advocate for the
    mother; that he failed to afford a fair opportunity to the father to be heard;
    and that he made findings adverse to the father that were not supported by the
    evidence.

[15]

I
    would reject the fathers bias claim.

[16]

As
    the Supreme Court explained in
Wewaykum Indian Band v. Canada
, 2003
    SCC 45, [2003] 2 S.C.R. 259, at para. 60, the test for the demonstration of a
    reasonable apprehension of bias is as follows:

What would an informed person viewing the matter realistically
    and practically  and having thought the matter through  conclude.  Would he
    think that it is more likely than not that [the decision-maker], whether
    consciously or unconsciously, would not decide fairly.

[17]

In
Martin v. Sansome
, 2014 ONCA 14, 118 O.R. (3d) 522, at para. 32, this
    court noted, citing
Wewaykum
, at para. 76: There is a strong
    presumption of judicial impartiality.  The threshold is high for finding an
    apprehension of bias.

[18]

In
Chippewas of Mnjikaning First Nation v. Ontario
, 2010 ONCA 47, 265
    O.A.C. 247, at para. 230, leave to appeal to S.C.C. refused, [2010] S.C.C.A.
    No. 91, this court summarized the framework for reviewing a reasonable
    apprehension of bias claim based on a trial judges interventions at trial:

A determination of whether a trial judges interventions give
    rise to a reasonable apprehension of unfairness is a fact-specific inquiry and
    must be assessed in relation to the facts and circumstances of a particular
    trial.  The test is an objective one.  Thus, the trial record must be assessed
    in its totality and the interventions complained of must be evaluated
    cumulatively rather than as isolated occurrences, from the perspective of a
    reasonable observer throughout the trial.

[19]

I
    have carefully reviewed the transcript of the hearing in this case, with regard,
    especially, to the number and nature of the motions judges interventions and his
    comments throughout to all counsel.  Based on the transcript, there is no doubt
    that the motions judge took an active role in the hearing.  However, the
    transcript reveals nothing that rises to the high level required to meet the
    test for a reasonable apprehension of bias.

[20]

The
    motions judges interventions in this case did not occur solely during the
    fathers counsels submissions.  The motions judge intervened during the oral
    arguments of all counsel, making multiple requests for their assistance
    regarding his concerns about the matters at issue.  As I read his comments, his
    interventions were designed to focus counsels arguments on the central matters
    in dispute, to clarify the parties positions and that of the OCL on the
    issues, and to avoid or minimize submissions on peripheral issues.

[21]

Moreover,
    contrary to the fathers submission, the transcript reveals that, despite his
    sometimes pointed exchanges with the fathers counsel, the motions judge was
    alert and attentive to the fathers arguments.  For example, at one point
    during an exchange with the fathers counsel, he indicated expressly that he
    was very interested in counsels submissions.  At another point, he stated
    that he would try very carefully to understand the fathers submissions.  The
    father was afforded a full opportunity to address the various issues on the
    motions, as well as additional issues raised by the father himself, for the
    first time, during submissions before the motions judge.

[22]

In
    my opinion, the transcript belies the fathers claim that the motions judge had
    a closed mind regarding the fathers arguments and that he failed to act
    impartially.  The fathers disagreement with the motions judges rulings on
    child and spousal support affords no foundation for a reasonable apprehension
    of bias claim.  Similarly, the fact that the motions judge rejected much, but
    not all, of the relief sought by the father does not reflect bias.

(2)

Child Support Issues

(i)

Termination of the Fathers Child Support Obligation

[23]

The
    father argues that the motions judge erred by failing to retroactively
    terminate his child support obligation for the daughter, effective July 11,
    2014, when she began to live with the father.  He further argues that the
    motions judge erred by failing to credit him for his child support payments for
    the daughter during the eight months prior to the date of the hearing.

[24]

I
    would not give effect to these arguments.

[25]

The
    motions judge addressed the fathers requests for a retroactive termination of
    his child support obligation and for a corresponding order requiring the mother
    to pay retroactive child support directly:

There is evidence that [the father] has influenced [the daughter]
    in her decision not to abide by the orders for her residence made by Seppi J.
    and by Van Melle J. on August 11, 2014 both from [the mother] and from the
    interviews the OCL has had with [the daughter].  For this reason and in the
    circumstances which I find amount to a failure to comply fully with the existing
    court orders, if not outright contempt of them, I decline to make any
    retroactive termination of [the fathers] child support obligation, [or] to
    impose a retroactive child support obligation on [the mother].

[26]

The
    father submits that this justification for the denial of retroactive
    termination of his child support obligation is unsupportable because it rests
    on two palpable and overriding factual errors: that the father had influenced the
    daughter in her decision to change her residence; and that the father was in
    contempt of existing court orders.

[27]

I
    disagree.

[28]

First,
    there was evidence before the motions judge of attempts by the father to
    influence or encourage the daughter to live with him, notwithstanding the
    custody arrangements in favour of the mother provided for under various
    pre-July 2014 court orders.

[29]

On
    July 30, 2014, the mother moved for a court order compelling the return of the daughter
    to her care and custody.  In her affidavit of the same date, the mother
    deposed:

7.    My
    daughter has never told me that she wants to live with her father and that she does
    not want to live with me.

8.    The
    [father] is very persuasive and I believe that he has used emotional blackmail
    to persuade our daughter to express that she wants to live with him.  I so
    state as with our older child, the [father] did the same thing.

[30]

The
    mother made similar statements in a second affidavit sworn on August 20, 2014.

[31]

Thus,
    the mothers sworn evidence supported the motions judges finding that the father
    influenced the daughters decision to change her place of residence.

[32]

The
    motions judges reference to the OCLs interviews with the daughter is a
    different matter.  The materials before the motions judge do not appear to have
    included a report or other evidence from the OCL.  To the extent that the
    motions judge treated submissions by the OCLs counsel regarding the outcome of
    OCL interviews with the daughter as evidence of attempts by the father to
    influence the daughter to disobey existing court orders regarding custody, the
    motions judge erred.  Submissions by counsel are not evidence.  They are simply
    submissions and nothing more.

[33]

That
    said, nothing turns on this error.  As I have said, the mothers affidavit
    evidence, described above, anchored the motions judges comments regarding
    efforts by the father to influence the daughter in her decision-making.

[34]

In
    addition, in my view, there can be no serious suggestion that the motions judge
    erred by indicating that the father had failed to comply fully with existing
    court orders.  The mothers uncontradicted evidence was that neither the
    equalization payment nor the costs awarded in her favour under Justice Seppis
    Order had been paid.  The father did not suggest otherwise before the motions
    judge or at the appeal hearing.  That the mother had assigned her right to
    enforce the costs award to Legal Aid Ontario does not alter the fact that the
    costs award had not been paid at the time of the hearing before the motions
    judge.

[35]

Moreover,
    contrary to the fathers assertion before this court, the motions judge did not
    find the father in contempt.  The motions judges reference to outright
    contempt in connection with the fathers conduct was nothing more than a
    description, albeit a strong one, of his concern about the fathers failure to
    honour his obligations under Justice Seppis Order.  His concern was not
    misplaced.

[36]

The
    motions judge provided clear reasons for refusing to grant a retroactive
    termination of the fathers child support obligation and, implicitly, for his associated
    refusal to credit the father for his child support payments for the daughter in
    the eight months preceding the hearing.  No palpable and overriding factual
    error has been demonstrated in respect of these discretionary refusals.
    Accordingly, there is no basis for appellate interference with the motions
    judges rulings on these issues.

(ii)

The Mothers Child Support Obligations

[37]

The
    father submits, first, that the motions judge erred by failing to order that
    the mother pay prospective child support for the daughter and by treating the
    mothers annual income for support purposes as $2,108.  Second, the father
    maintains that the motions judge erred by failing to order that the mother contribute
    to the daughters extraordinary expenses.

[38]

I
    agree with the first submission and disagree with the second.

[39]

Both
    the mothers notice of motion and her counsels submissions before the motions
    judge expressly contemplated that the mother should be paying child support for
    the daughter in the sum of $101 per month, based on an annual income in 2013 of
    $15,249 (including spousal support).  To the extent, therefore, that the motions
    judge assessed the mothers ability to pay child support based on an annual
    income of $2,108 (the mothers income at the time of Justice Seppis Order), the
    motions judge erred.

[40]

The
    motions judges assessment should have proceeded on the basis of the mothers
    admitted annual income, as at the date of the motions, in the sum of $15,249.
    The motions judge erred by failing to order $101.68 per month in child support
    for the daughter, given the mothers concession that she should pay monthly
    child support in that amount in accordance with the
Federal Child Support Guidelines
,
    SOR/97175 (the Guidelines).  The motions judges reasons contain no
    explanation for his failure to impose a prospective child support obligation on
    the mother.

[41]

That
    is not to say, however, that the motions judge erred by refusing to order that
    the mother pay child support for the daughter on a retroactive basis.  He
    declined to impose a retroactive child support obligation on the mother for the
    same reasons that he declined to retroactively terminate the fathers child
    support obligation, outlined above.  This was his call to make.

[42]

In
    the circumstances, I would vary the motions judges order to provide that the
    mother pay child support for the daughter in the amount of $101.68 per month,
    commencing February 27, 2015 (the date of the motions judges order).

[43]

I
    reach a different conclusion regarding the motions judges failure to order that
    the mother contribute to the daughters extraordinary expenses.

[44]

Justice
    Seppis Order directs that both parents contribute
pro rata
to all
    extraordinary expenses of
both
children, incurred for their education,
    on the basis set out in that order.  No subsequent court order appears to have
    altered this direction.  Accordingly, the mother is already obliged to
    contribute, on a
pro rata
basis, to the extraordinary
    education-related expenses of the children.

[45]

Although
    the father did not seek an extraordinary expense order under the Guidelines in
    his July 2014 notice of motion, the motions judges reasons confirm that the matter
    was argued before him.  However, the father has pointed to no evidence of non-education-related
    extraordinary expenses for the daughter led before the motions judge.
    Accordingly, on the record before the motions judge, there was no basis on
    which to order any additional contribution by the mother to extraordinary
    expenses.

[46]

In
    these circumstances, the motions judges refusal to order that the mother
    contribute to any additional, extraordinary expenses for the daughter cannot be
    faulted.  Should such additional expenses arise while the daughter is residing
    with the father, there is nothing to prevent him from moving, on proper
    materials and proper notice, for the appropriate order in the normal course.

(3)

Spousal Support Issues

[47]

The
    father submits that the motions judge erred by ordering that he pay lump sum
    spousal support to the mother and that his lump sum and periodic spousal
    support obligations be subject to a charging order under s. 9(1)(b) of the
Family
    Law Act
, R.S.O. 1990, c. F.3 (the
FLA
).  I will address these
    submissions in turn.

(i)      Lump Sum Spousal Support Award

[48]

The
    father attacks the motions judges lump sum spousal support award on several
    grounds.  First, he argues that the motions judge erred by finding that the
    fathers bankruptcy constituted a material change in circumstances entitling
    the mother to reconsideration of her need for support from the father and the
    appropriate quantum of support, if awarded.

[49]

Second,
    the father contends that the motions judge erred in awarding lump sum spousal
    support to the mother by failing to adhere to the governing principles
    regarding lump sum support enunciated by this court in
Davis v. Crawford
,
    2011 ONCA 294, 106 O.R. (3d) 221 and related authorities.

[50]

Third,
    the father maintains that the lump sum award, in an amount equal to the sum of
    his outstanding equalization obligation, improperly circumvents the
BIA
bankruptcy regime, under which the mothers entitlement to an unpaid
    equalization payment is a provable claim in the fathers bankruptcy.  The
    effect of the motions judges lump sum award, the father says, is to
    impermissibly prioritize the mothers claim for enforcement of the fathers equalization
    debt over the claims of other unsecured creditors in the fathers bankruptcy.

(a)

Preliminary
    Comments

[51]

At
    the outset, I acknowledge that the motions judges spousal support order
    attracts considerable deference from this court.  Absent an error in principle,
    a significant misapprehension of the evidence, or unless the award is clearly
    wrong, this court should not interfere with the motions judges spousal support
    ruling:
Hickey v. Hickey
, [1999] 2 S.C.R. 518, at para. 11;
Crawford
,
    at para. 77.

[52]

The
    effect of the motions judges spousal support ruling was to award lump sum
    spousal support to the mother in the same amount as the equalization payment
    provided for under Justice Seppis Order.  The motions judge also continued,
    without change, the fathers obligation to make periodic spousal support payments
    to the mother.

[53]

The
    issue, therefore, is whether the motions judges award of lump sum spousal
    support accords with the governing principles for lump sum support awards and the
    applicable considerations relating to the fathers pending bankruptcy proceeding.
    For the reasons that follow, I conclude that it does not.  In my view, the
    motions judges lump sum spousal support analysis is tainted by several errors
    in principle.

(b)

Material
    Change in Circumstances

[54]

I
    begin with the motions judges finding of a material change in circumstances.

[55]

Contrary
    to the fathers submission, the motions judge considered circumstances other
    than the fathers bankruptcy in finding a material change in circumstances.  In
    his reasons, he stated:

I find that [the fathers] failure to pay the equalization
    payment ordered by Seppi J. on Oct. 23, 2013, and his bankruptcy on August 14,
    2014, which demonstrates that [the mother] is unlikely to receive this payment,
    amounting to $51,437, fully, if at all, and the change of [the daughters]
    residence and resulting change in child support amount to a material change in
    circumstances in that, if these circumstances had been foreseen by Seppi J.,
    she would likely have concluded that [the mothers] need for spousal support
    was greater.

[56]

I
    see no error in the motions judges finding of a material change in
    circumstances based on the factors described by him.  The factors identified by
    the motions judge, namely, the fathers failure to make the court-ordered
    equalization payment, the fact of his bankruptcy, the change in the daughters residence,
    and the resulting termination of the fathers child support payments to the
    mother, in combination, clearly established a material change in circumstances.
     There can be no doubt, in my view, that these factors, if proven at the time
    of the hearing before Seppi J., would have been directly relevant to her
    determination of spousal support.

[57]

Accordingly,
    based on the evidence before him, the motions judge was entitled to reconsider
    the mothers need for spousal support and to assess whether any change in the
    existing spousal support arrangements was necessary and appropriate in all the
    circumstances.  However, in so doing, the motions judge was obliged to take account
    of all relevant factors regarding such an award.  And it is here, in my view,
    that the motions judge fell into error.  I say this for the following reasons.

(c)

Approach
    on Motion to Change

[58]

At
    the time of the motions, the mother was already receiving periodic spousal
    support payments that were in good standing.  In these circumstances, the
    proper approach to the evaluation of the mothers change motion was to examine,
    first, whether the evidence established a change in the parties circumstances
    warranting an alteration in the existing periodic spousal support arrangements,
    given the mothers needs and the fathers ability to pay.

[59]

This
    analysis involves comparing the parties circumstances at the time of the
    motions with those at the time of Justice Seppis Order.  In other words, once
    it was accepted that a material change in circumstances had been demonstrated,
    the next step in the spousal support analysis was to inquire whether the periodic
    spousal support arrangements set out under Justice Seppis Order were adequate
    in light of the parties changed circumstances.  See for example,
Willick
    v. Willick
, [1994] 3 S.C.R. 670, at p. 688.

[60]

However,
    the reasons indicate that the motions judge essentially commenced, and ended,
    his spousal support analysis by focusing on the merits of a lump sum spousal
    support award, without addressing the adequacy of the existing periodic spousal
    support award under Justice Seppis Order.  Simply put, the motions judge
    failed to address the proper question once he had determined that there had
    been a material change in circumstances.  Further, in awarding lump sum spousal
    support, the motions judge also continued the fathers periodic spousal support
    obligation.  He provided no reasons for doing so.

[61]

The
    motions judges approach supports the conclusion that the underlying purpose of
    his lump sum spousal support award was merely to convert the mothers unpaid
    equalization payment into lump sum spousal support.  This approach was fatally
    flawed.  Addressing the appropriate initial inquiry  the adequacy of the
    existing periodic spousal support award  ensures that all the relevant
    circumstances are taken into account.  These include, for example, the parties
    current assets and income, the implications of the fathers release from
    certain liabilities on his eventual discharge from bankruptcy, his
    post-bankruptcy retention of property exempt from the
BIA
regime (
e.g.
his R.R.S.P.s and pension), and the mothers financial needs.  As a result of
    the motions judges flawed approach to the determination of spousal support,
    this review did not occur in this case.

(d)

Davis
    v. Crawford Considerations

[62]

There
    is a second, significant difficulty with the lump sum spousal support award in
    this case.

[63]

In
Crawford
, this court clarified the principles that govern lump sum
    support awards.  In so doing, the court stressed, at paras. 6365, that the
    payors ability to make a lump sum payment without undermining his or her future
    self-sufficiency is an important consideration in deciding whether to make an
    award of lump sum spousal support, including under s. 33(9) of the
FLA
.
    That section provides, in part, that, [i]n determining the amount and
    duration, if any, of support for a spouse  in relation to need, the court
    shall consider, among other things:

(a)   the
    dependants and respondents current assets and means;

(b)   the
    assets and means that the dependant and respondent are likely to have in the
    future;

(d)   the respondents capacity to provide support.

[64]

The
Crawford
court went on to hold, at para. 66:

Most importantly, a court considering an award of lump sum
    spousal support must weigh the perceived advantages of making a lump sum award
    in the particular case against any presenting disadvantages of making such an
    order.

[65]

In
    this case, the motions judge identified four factors that, in his view,
    warranted a lump sum spousal support award in the mothers favour:

i)

the unlikelihood of the mother receiving the equalization payment to
    which she is entitled under Justice Seppis Order, together with the
    substantial impact on her of non-payment of the equalization award;

ii)

the termination of child support payments to the mother for the
    daughter;

iii)

the
    inequity arising from the potential release of the equalization debt on the
    fathers discharge from bankruptcy; and

iv)

the
    disparity in the parties incomes should the mother not benefit from receipt of
    the equalization payment that represented her share of the parties collective
    net family property.

[66]

The
    motions judge cannot be faulted for taking account of these factors. They were
    relevant considerations on the reassessment of the mothers need for spousal
    support.

[67]

But
    that does not end the matter.
Crawford
holds, at para. 70, that most
    spousal support orders will be in the form of periodic payments.  It is not
    apparent from the motions judges reasons whether he considered the specific
    purposes of lump sum spousal support in the circumstances of this case, the
    fathers ability to make a lump sum payment in light of his bankruptcy,
    financial resources and prospects for self-sufficiency, and if a lump sum
    award, as opposed to an award for increased periodic spousal support, was
    appropriate.  Further, as I read his reasons, the motions judge failed to weigh
    the perceived advantages of a lump sum spousal support award against the
    disadvantages of making such an award on the particular facts of this case.
    His failure to do so is reversible error.

[68]

In
    these significant respects, the motions judges spousal support analysis failed
    to conform to the governing principles for lump sum awards identified in
Crawford
.

(e)

Bankruptcy
    Considerations

[69]

The
    errors described above were compounded in this case by the motions judges
    failure to fully come to grips with the implications of the fathers pending
    bankruptcy.

[70]

The
    mother sought an order from the motions judge converting her unpaid
    equalization payment and costs award into spousal support.  In her affidavit
    sworn on December 5, 2014, she asked for an order providing that payment of her
    outstanding equalization payment and costs award under Justice Seppis Order,
    together with interest, be made as spousal support and to be collected by the
    Family Responsibility Office.  During oral submissions before the motions
    judge, the mothers counsel confirmed her request that the outstanding
    equalization payment be paid to her either as a lump sum amount or as a
    monthly payment.

[71]

This
    request was triggered by the fathers bankruptcy and the fact that, upon
    discharge from bankruptcy, the father would retain various exempt assets, but
    be released from his equalization debt.  The mother asserted in her affidavit
    that: The [father] has declared bankruptcy for the sole purpose of denying me
    my legal rights and in defiance of [Justice Seppis Order].

[72]

However,
    the father was an undischarged bankrupt at the time of the mothers motion and
    the hearing before the motions judge.  As a result, the effect of a lump sum
    spousal support award on the fathers bankruptcy was a critical consideration.

[73]

In
Schreyer v. Schreyer
, 2011 SCC 35, [2011] 2 S.C.R. 605, the Supreme
    Court discussed the interplay between provincial family law statutory schemes
    and federal bankruptcy law in the context of unpaid equalization payments.  On
    bankruptcy, an unpaid equalization payment is swept into the bankruptcy of
    the bankrupt payor spouse.  The equalization claim is a provable claim under the
BIA
, and the bankrupt is released from that claim once discharged.  In
    contrast to an unpaid equalization claim, the bankrupt is not released on
    discharge from either a support claim or a claim for arrears in support:
Schreyer
,
    at para. 20;
Thibodeau v. Thibodeau
, 2011 ONCA 110, 104 O.R. (3d) 161,
    at para. 37.

[74]

The
Schreyer
court also addressed the unfairness that can arise under the
BIA
scheme in family law cases, at paras. 25 and 37:

I do not doubt that an outcome like
    the one in this appeal looks unfair, given that the appellants equalization
    claim was based primarily on the value of an asset  the farm property  which
    was exempt from bankruptcy and therefore not accessible to other creditors.
    None of the policies underlying the
BIA
require that the appellant
    emerge from the marriage with no substantial assets.
Parliament could amend the
BIA
in respect of the effect of a bankrupts discharge
    on equalization claims and exempt assets.  But the absence of such an amendment
    makes the outcome of this case unavoidable.

.

In its current form, therefore, the
BIA
offers limited remedies to spouses in the appellants position.
In this regard, family law may provide them with a
    safer harbour after the bankrupt has been discharged, more particularly through
    spousal support
. The appropriateness of awarding or varying spousal
    support and the quantum of support are matters that fall within the discretion
    of the family court.
If a support order
    were made in a case like this one, the court might well aim to mitigate the
    inequities arising from the bankruptcy, such as the release of the debtor
    spouse from an equalization claim or the retention by the debtor spouse of an
    exempt asset.  Such determinations must be made on a case-by-case basis
.
    [Citations omitted.]

[75]

The
    motions judge recognized that an outstanding equalization payment cannot be
    enforced as a preferred claim in the payor spouses bankruptcy proceeding.  The
    hearing transcript reveals that, on multiple occasions throughout his exchanges
    with counsel, the motions judge stated that he did not propose to make an
    order that [the mothers] equalization payment be enforced in preference to
    other creditors in the bankruptcy.  He noted that any support order must be
    based on need and ability to pay, recognizing that the mothers need for
    support may be greater given her unpaid equalization claim.

[76]

Further,
    the motions judge appreciated that lump sum support awards should not be employed
    by the courts to redistribute assets between separated couples, as held by this
    court in
Crawford
, at para. 52.

[77]

Both
    the
FLA
and the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.)
    afford family law judges a broad discretion to award periodic or lump sum
    spousal support, or to make an award comprising both forms of support.  But
    that discretion does not allow for the redistribution of assets by means of an
    award of spousal support.  As the
Crawford
court emphasized, at para.
    60: a lump sum award should not be made in the guise of support for the
    purpose of redistributing assets.

[78]

The
    mothers change motion was clearly premised on converting her unpaid
    equalization payment into spousal support, in order to avoid the release of the
    fathers equalization debt on his discharge from bankruptcy.  In these
    circumstances, it was incumbent on the motions judge to address fully the
    relevant considerations relating to the fathers bankruptcy.  In my view, with
    respect, he failed to do so.

[79]

More
    particularly, although the motions judge referenced both
Schreyer
and
Crawford
,
    he failed to consider the fathers status as an undischarged bankrupt, the
    effect of a lump sum spousal support award on the fathers ongoing bankruptcy,
    and the implications of the fathers eventual discharge from bankruptcy on the
    parties financial circumstances and assets.

[80]

In
    the present case, these were necessary and pertinent considerations.  Yet, the
    record suggests that, in awarding lump sum spousal support to the mother and regardless
    of the status of the fathers bankruptcy, the motions judge simply converted
    the mothers equalization claim into an entitlement to lump sum spousal
    support, in addition to the periodic spousal support that the father was
    already paying.  This was impermissible.

(f)

Conclusion

[81]

In
    light of the errors described above, I conclude that the motions judges award
    of lump sum spousal support cannot stand.  I would therefore set aside his lump
    sum spousal support award, without prejudice to the mothers right to renew her
    request for a change in spousal support, on a proper record, as she may be
    advised.

(ii)     Charging Order

[82]

The
    motions judge directed that the lump sum and periodic spousal support awarded
    to the mother be subject to a charging order over certain of the fathers
    assets, namely, one of his bank accounts, two of his R.R.S.P.s, and one-half
    of a specific pension asset.

[83]

The
    father challenges this charging order.  He argues that the mother did not seek
    a charging order under s. 9(1)(b) of the
FLA
in her notice of motion
    and did not adduce any evidence or make any arguments in support of such an
    order at the hearing before the motions judge.

[84]

I
    note that it is s. 34(1)(k) of the
FLA
, not s. 9(1)(b), that allows for
    a charging order to enforce spousal support.  The motions judge thus misspoke
    when he referenced the latter section as the source of his authority to impose
    a charging order in respect of spousal support.  That said, nothing turns on
    this issue.  The father does not challenge the motions judges authority under
    the
FLA
to make a charging order.  Rather, he essentially submits that
    he was denied procedural fairness with respect to this aspect of the motions
    judges order.  I disagree.

[85]

It
    is true that the mothers December 5, 2014 notice of motion does not mention a
    charging order.  However, contrary to the fathers submission, the hearing transcript
    confirms that the subject of a possible charging order was raised by the
    motions judge.  The father had full opportunity, through counsel, to address
    the issue.  I am not persuaded, therefore, that hearing fairness was
    compromised in any material way in respect of this issue.

[86]

However,
    since I would set aside the motions judges lump sum spousal support award, it
    follows that the charging order in respect of that award must also fall.
    Furthermore, at the time of the hearing before the motions judge and the appeal
    hearing, the fathers periodic support payments were in good standing.  By
    reason of s. 178(1)(c) of the
BIA
, his liability for those payments was
    not released on his discharge from bankruptcy.  The motions judge provided no
    reasons for the charging order in respect of the fathers periodic spousal
    support payments.  In these circumstances, the justification for such an order is
    not apparent.

[87]

I
    therefore conclude that the charging order must be set aside in its entirety,
    without prejudice to the mothers right to seek such an order under s. 34(1)(k)
    of the
FLA
, on proper motion and supporting materials.  Given this
    conclusion, it is not necessary to determine whether the motions judges charging
    order was overly broad in scope and whether he had the authority to grant a
    charging order over the assets targeted by his order, given the fathers
    assignment in bankruptcy.  Nothing in these reasons should be understood as
    suggesting that the motions judge had jurisdiction to grant a charging order in
    respect of all the assets he identified,
e.g.
the fathers bank
    account.

(4)

OCL Direction

[88]

The
    remaining ground of appeal concerns the motions judges order that the parties
    follow the direction of the OCLs counsel regarding the interpretation of the
    motions judges order.  The father argues that this aspect of the motions
    judges order violated the [fathers] right to counsel of his choice in
    addition to precipitating a conflict of interest since the [OCL] acted for [the
    daughter].

[89]

I
    would reject this argument.  I see nothing objectionable in the motions judges
    impugned direction, the language of which is set out at paragraph 9 of these
    reasons.

[90]

First,
    the direction focuses on the parenting and access schedule fixed by the motions
    judge.  The father does not appeal from the motions judges ruling regarding
    custody and access.

[91]

Second,
    the direction provides that the set parenting and access schedule be monitored
    by the OCL.  This is a common and laudable provision that was clearly intended
    to prevent further, unnecessary litigation between the parties regarding
    custody and access.  This accords with the best interests of the children and
    the interests of the administration of justice.

[92]

Third,
    contrary to the fathers submission, nothing in the direction requires the
    father to seek or follow legal advice from the OCLs lawyer.  The direction
    stipulates that the parties are to co-operate with counsel for the OCL in
    respect of the interim custody and access arrangements ordered by the motions
    judge.  It requires the parties to follow his direction as to the
    interpretation of the motions judges order.  This language simply obliges the
    parties to follow the OCLs direction in the event of any disagreement about
    the terms of the motions judges interim order.  It in no way prevents either
    party from consulting with their own counsel and, if so advised, returning any
    matter of disagreement before the Superior Court for reconsideration or
    clarification.  The parties remain free to retain, consult and instruct counsel
    of their choice on all matters in dispute.

IV.     Disposition

[93]

For
    the reasons given, I would allow the appeal in part, in accordance with these
    reasons.  Specifically, I would vary the motions judges order: i) by providing
    that the mother pay child support of $101.68 per month to the father for the daughter
    commencing February 27, 2015; and ii) by deleting paragraph 11 (the lump sum
    spousal support award) and paragraph 13 (the charging order) of the motions
    judges order, without prejudice to the mothers right to apply anew for the
    relief contemplated by those paragraphs, on a proper record and with proper
    notice.  In all other respects, I would dismiss the appeal.

[94]

As
    success on the appeal has been divided, I would award no costs of the appeal.

Released:

DEC -4 2015                                    E.A.
    Cronk J.A.

EAC                                                I
    agree P. Lauwers J.A.

I
    agree K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: National Fire Adjustment Co., Inc. v. Hanna, 2015
    ONCA 874

DATE: 20151210

DOCKET: C60262

Sharpe, Cronk and Miller JJ.A.

BETWEEN

National Fire Adjustment Co., Inc.

Plaintiff

(Respondent)

and

Shafek
    Hanna, Wanderleida Assuncao,

State
    Farm Fire and Casualty Company,

Rolf
    Piehler and Boghosian & Associates

Professional
    Corporation

Defendants

(
Appellants
)

William C. McDowell and Katie Pentney, for the
    appellants

Duncan M. MacFarlane Q.C., for the respondent

Heard and released orally: December 4, 2015

On appeal from the judgment of Justice Catrina D. Braid
    of the Superior Court of Justice, dated March 6, 2015.

ENDORSEMENT

[1]

This appeal relates to a solicitors undertaking. The appellant
    solicitor had represented a client on a mortgage. The client subsequently
    claimed on an insurance policy as a result of a fire. The client retained the
    respondent as its agent to assist in collecting the insurance proceeds. The
    respondent agreed to do so on the basis that it would recover a percentage of
    the proceeds as its fee. The client accepted those terms and gave a direction
    to its insurer that the proceeds were to be paid to the respondent. Despite
    that direction, proceeds were paid to other parties and in some instances insurance
    cheques were made payable to multiple payees. This gave rise to a problem in
    clearing the cheques. To resolve the problem, the appellant solicitor agreed to
    have the insurance cheques made payable to it in trust.

[2]

The contentious undertaking was given in an email sent by the solicitor
    to a representative of the respondent, the relevant portion of which read as
    follows:

Please make enquiries with [the representative of the
    insurer] as to what documentation he will be able to arrange for the next round
    of State Farm cheques to be made payable to Boghosian & Associates in trust
    in respect of non-building claims

I will provide NFA with a formal undertaking to
    protect your fee.

[3]

The appellants make two submissions:

(i)

that the undertaking related
    only to a single payment made by the insurer at the time the email was sent and
    not to any subsequent payments; and

(ii)

that the undertaking was given by
    the appellant solicitor on behalf of his client and not in his personal
    capacity.

[4]

The motion judge rejected those submissions.

[5]

We do not agree that the motion judge made any palpable and overriding
    error of fact or any error of law in coming to that conclusion.

[6]

In our view, when the email containing the undertaking is read in the
    light of the factual matrix that existed at the time, it was entirely open to
    the motion judge to read it as extending to future payments. As the motion
    judge noted in her reasons, the context of this email and undertaking is
    important. There were issues with clearing the cheques. By having the cheques
    deposited into the appellants trust account, those issues were resolved in a
    manner satisfactory to the respondent. We see no basis upon which this court
    could or should interfere with the central finding of the motion judge, namely:

On a plain and ordinary reading of the undertaking it
    is clear that the meaning and purpose of the undertaking was to protect NFAs
    fees in their entirety.

[7]

We also agree with the motion judges finding that had the appellant solicitor
    wished to limit the undertaking to one payment, it was incumbent upon him to do
    so expressly.

[8]

With respect to the second point, to the extent that there is any
    ambiguity, an undertaking is deemed to be that of the solicitor personally: see
Hudson v. Foster
, 2010 ONSC 3417 and the
Rules of Professional
    Conduct
: 5.16, Commentary [0.1], which states:

Unless clearly qualified, the lawyers undertaking is
    a personal promise and responsibility.

[9]

For these reasons, the appeal is dismissed.

[10]

Costs
    of the appeal to the respondent in the amount of $5211.14, inclusive of
    disbursements and taxes.

Robert J. Sharpe J.A.

E.A. Cronk J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Nine-North Logistics Inc. v. Atkinson, 2015 ONCA
    913

DATE: 20151224

DOCKET: C59912

Simmons, LaForme and Huscroft JJ.A.

BETWEEN

Nine-North Logistics Inc.

Plaintiff

Defendant by
    Counterclaim

(Appellant)

and

Murray Atkinson

Defendant

Plaintiff by
    Counterclaim

(Respondent)

Joseph J. Neal, for the appellant

Ashley H. McInnis, for the respondent

Heard: December 10, 2015

On appeal from the order of Justice G.P. DiTomaso of the
    Superior Court of Justice, dated December 15, 2014.

ENDORSEMENT

[1]

The appellant appeals from the motion judges summary judgment order
    dismissing the appellants claim for breach of a non-competition covenant.

[2]

At its core, the appellants claim is that the respondent was a director
    of Ray Den Holdings Inc. and that Ray Den supplied a refrigerated truck to a
    competitor of the appellants, Romeos Trucking, for free.  The motion judge
    found that AT Ventures was paying rental payments to Ray Den for the
    refrigerated truck.  There was evidence capable of supporting this specific
    finding and this finding permitted the motion judge to reject the appellants
    claim.

[3]

The appeal is therefore dismissed.  Costs of the appeal to the
    respondent fixed in the amount of $15,000 all in on a partial indemnity basis,
    as agreed.

Janet Simmons
    J.A.

H.S. LaForme
    J.A.

Grant Huscroft
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: O'Brien v. Blue Heron Co-operative Homes Inc., 2015
    ONCA 858

DATE: 20151208

DOCKET: C60575

Sharpe, Cronk and Miller JJ.A.

BETWEEN

Stephen OBrien

Applicant (Appellant)

and

Blue Heron Co-operative Homes Inc.

Respondent (Respondent on appeal)

Stephen OBrien, acting in person

Joseph Jebreen, for the respondent

Heard: December 3, 2015

On appeal from the judgment of Justice Douglas Rutherford
    of the Superior Court of Justice, dated May 5, 2015.

By the
    Court:

[1]

The appellant is a member of the respondent Blue Heron Co-operative
    Homes Inc. (Blue Heron), a not-for-profit housing corporation incorporated
    under the
Co-operative Corporations Act
, R.S.O. 1990, c. C.35 (the
CCA
)
    and situated in the City of Ottawa.  The appellant brought an application against
    Blue Heron for: i) an order under s. 146 of the
CCA
appointing an
    inspector to investigate and conduct a forensic audit of Blue Herons business
    and affairs; and ii) an order under s. 178 of the
CCA
compelling Blue
    Heron, its directors, officers and employees to comply with Blue Herons
    by-laws and the
CCA
.  By order of the Superior Court dated May 5,
    2015, the appellants application was dismissed.

[2]

The appellant now appeals to this court.  He argues, principally, that
    the application judge erred:

1)

by
    failing to apply the civil standard of proof to the determination of the matters
    raised by the appellant;

2)

by

ignoring

the

appellants

evidence

and submissions, instead preferring those of the respondent without
    appropriate scrutiny;

3)

by
    misapprehending or ignoring relevant evidence;

4)

by
    misinterpreting ss. 14648 of the
CCA
;

5)

by
    failing to apply or misapplying s. 135 of the
Condominium Act, 1998
, S.O.
    1998, c. 19; and

6)

by
    failing to deliver reasons that accord with
R. v. Sheppard
, 2002 SCC
    26, [2002] S.C.J. No. 30.

[3]

We conclude that this appeal must be dismissed.

A.      Overarching Ground of Appeal

[4]

As argued at the appeal hearing, the appellants main complaint concerns
    an alleged pattern of mismanagement of Blue Heron, over an extensive period of
    time and by successive boards of directors.  The appellant says that this
    mismanagement is reflected, for example, in Blue Herons failure to retain
    election ballots for the requisite time set out in its by-laws; its failure to
    enact by-laws of the type urged by the appellant; its alleged failure to adopt
    proper business practices; and its alleged sanctioning of unauthorized entries
    into members units to investigate fire alarms.

[5]

The evidence before the application judge bearing on these issues
    included the following.  First, similar complaints by the appellant to the
    Financial Services Commission of Ontario (FSCO) had been investigated by that
    agency and it had declined to appoint an inspector to investigate Blue Herons
    affairs.  FSCO also concluded that any by-law infraction or inadequacy by Blue
    Heron had been remedied by corrective measures.

[6]

Second, the City of Ottawa, which acts as Service Manager to Blue Heron
    under the applicable co-operative housing programs in Ottawa, confirmed that
    Blue Heron had met its reporting requirements since it opened in 2006.

[7]

Third, Blue Herons independent third party auditors, in a letter
    accompanying Blue Herons 2013 financial statements, indicated:

Testing during our audit did not reveal any illegal, improper
    or questionable payments or acts, nor any acts committed with the intent to
    deceive, involving either misappropriation of assets or misrepresentation of
    assets or misrepresentation of financial information.

[8]

The application judge considered the appellants complaints in the light
    of this evidence and concluded, on the record before him, that the appellant
    had not met his burden to proffer satisfactory evidence of any specific
    instance of mismanagement or malfeasance by Blue Herons management or of any
    on-going non-compliance by Blue Heron with applicable statutory or by-law requirements.

[9]

The trial judge concluded, at para. 18:

I have reviewed the materials filed and the submissions made
    and have reached the conclusion that there is no sufficient basis to warrant my
    ordering the appointment of an inspector to investigate the affairs and
    management of Blue Heron.  There is nothing to indicate that there is any need
    to further audit the accounts and records of the Co-Op.  Failures to abide by
    clear directions in by-laws or written policy appear to have been addressed and
    corrected by the Co-Op.

[10]

We
    see no error in these conclusions or in the application judges reasoning in
    support of them.  In particular, we note that there are two prerequisites to
    the appointment of an inspector under s. 146 of the
CCA
: i) the
    application for the appointment of an inspector must be brought in good faith;
    and ii) the appointment must be in the interests of the co-operative or the
    holders of its securities.  On the findings of the application judge, which
    were open to him on the record, the second prerequisite was clearly not met in
    this case.

[11]

Similarly,
    the application judge did not err in refusing to make an order under s. 178 of
    the
CCA
, as the appellant failed to establish any specific instance of
    non-compliance with the statute or the by-laws that would justify a court order
    for compliance.

[12]

Accordingly,
    this ground of appeal fails.

B.      Other Grounds of Appeal

[13]

We will comment briefly on the other grounds of appeal raised by the
    appellant.

[14]

First,
    the suggestion of the wrong standard of proof.  The application judge referred
    to the need for substantial evidence of intentional malfeasance or serious
    and continued mismanagement by the directors of a
CCA
co-operative in
    order to ground court intervention in the internal affairs of the
    co-operative.  Contrary to the appellants argument, we do not read these comments
    as importing a standard of proof higher than the applicable civil standard of
    proof on a balance of probabilities.  In our view, the application judges
    impugned remarks simply reflected the need for clear evidence, rather than bald
    assertions, to support the serious allegations, including allegations of
    criminal conduct, levied by the appellant against Blue Herons management.

[15]

Second,
    we do not accept the appellants claims that the application judge
    misapprehended the evidence and ignored or discounted the appellants
    evidence.  The first claim appears to relate to the application judges failure
    to refer to case law provided by the appellant.  This does not constitute a
    misapprehension of the evidence.

[16]

Nor,
    in our opinion, do the reasons support the appellants assertion that the
    application judge applied a higher level of scrutiny to his evidence and
    submissions than that applied to those of the respondent.  We view the
    application judges treatment of the evidence as thorough and even-handed.

[17]

Third,
    the appellants submission that the application judges reasons are deficient
    must be rejected.  The reasons easily meet the standard for sufficiency of
    reasons identified in
Sheppard
and related cases.  They provide a
    clear pathway to the application judges decision and, hence, permit meaningful
    appellate review.  No more is required.

[18]

Finally,
    we see no error in law in the application judges interpretation or application
    of ss. 146 and 178 of the
CCA
.  These were the operative statutory
    provisions at issue before the application judge.  The application judge was
    not obliged to accept the appellants construction of these sections or his
    invocation of other, inapplicable statutory provisions.

C.      Fresh Evidence

[19]

The
    appellant seeks to adduce fresh evidence on appeal that he says is relevant to
    the issues that were before the application judge and that was not available at
    the time of the application hearing.

[20]

We
    disagree.  The proposed fresh evidence relates to issues and relief that formed
    no part of the initial application, in particular, the legality of the appellants
    removal from Blue Herons board of directors on June 22, 2015.  The proposed fresh
    evidence is not relevant to the issues raised in the application and the
    appellant cannot expand the application by attempting to introduce fresh
    evidence.

D.      Disposition

[21]

Accordingly,
    the appellants motion for leave to file fresh evidence on appeal is dismissed,
    as is the appeal.  Blue Heron is entitled to its costs of the appeal, fixed in
    the amount of $1,500, inclusive of disbursements and all applicable taxes.

Released:

RJS                                                 Robert
    J. Sharpe J.A.

DEC -8 2015                                    E.A. Cronk
    J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Polera v. Wade, 2015 ONCA 895

DATE: 20151217

DOCKET: C60247

Weiler, Pardu and Benotto JJ.A.

BETWEEN

Felicity (Felicia) Polera and Brian Pittana

Plaintiffs (Respondents)

and

Dr. Philip Wade
, The Canadian Hearing
    Society, Kelly Duffin, Stephanie Ozorio and Jane and John Doe

Defendants (
Appellant
)

Jasmine T. Akbarali and Zohar Levy, for the appellant

Ron Bohm and Amani Oakley, for the respondent

Heard: December 7, 2015

On appeal from the orders of Justice E.P. Belobaba of the
    Superior Court of Justice, dated February 20, 2015, with reasons reported at
    2015 ONSC 821.

ENDORSEMENT

[1]

The appellant physician seeks to overturn the partial summary judgment ordered
    in a medical malpractice action.

[2]

The underlying action arises from the delayed diagnosis of a brain
    tumour in relation to the respondent, Felicity Polera. Prior to the partial
    summary judgment motions, the appellant admitted that he breached the standard
    of care and that this breach caused Ms. Poleras damages.

[3]

These admissions essentially settled all liability issues in the action
    except for the defence of contributory negligence and a specific list of the
    injuries sustained by Ms. Polera as a result of the appellants breaches of the
    standard of care. On a motion brought by the respondents, partial summary was
    granted disposing of these two remaining liability issues.

[4]

On this appeal, the appellant submits that the motions judge erred on
    both issues. With respect to contributory negligence the appellant submits he
    was denied procedural fairness and that the motions judge reversed the burden
    of proof.  With respect to the second issue, he submits that the motions judge erred
    in listing the specific injuries sustained by Ms. Polera.

[5]

We note that, at the outset of oral argument, the appellant pointed out
    that the respondents factum referred to information not before the motions
    judge and sought to file affidavit evidence in response. The respondent
    objected. The issue was resolved by the parties who agreed to proceed on the
    record as it existed at first instance.

Background

[6]

Ms. Polera, who was 36 years old at the time, attended the Canadian
    Hearing Society (the CHS) in October 2004 because she was experiencing some
    hearing loss in her right ear. She was tested and fitted with a hearing aid,
    and was sent for an MRI. When the MRI results came back, the appellant failed
    to detect Ms. Poleras brain tumour.

[7]

In January 2007, Ms. Polera discovered that she had lost all hearing in
    her right ear. The appellant ordered another MRI, on which he noticed the
    tumour. He arranged for the necessary medical follow-up, which involved two
    days of surgery, leaving Ms. Polera with extensive and serious injuries.

[8]

The appellant admitted that he breached the requisite standard of care
    in failing to detect the growing tumour in the first MRI and in failing to
    follow-up as required. Further, he admitted that these breaches caused Ms.
    Polera to sustain significant injuries and damages.

[9]

The motions judge heard the summary judgment motion in two stages. The
    first motion was heard in August 2014 (not the subject of this appeal) and resulted
    in an order particularizing the appellants breaches of the standard of care. The
    second motion was heard in February 2015 (the subject of this appeal).

[10]

On
    the second motion, the motions judge concluded that there was no genuine issue
    for trial with respect to either the defence of contributory negligence or the
    listing of Ms. Poleras specific injuries. On the evidence before him, he
    dismissed the defence of contributory negligence and particularized Ms.
    Poleras injuries.

Contributory Negligence

[11]

The
    appellant submitted that Ms. Polera contributed to her injuries by missing a
    number of CHS appointments. In particular, he claimed she cancelled an
    emergency appointment with his office, which added six months to the overall
    delay in the tumours diagnosis and removal. This suggestion arose from a note
    in the file of Tommy Choo, the audiologist which said:  will ask ENT for an
    emergency appt.

[12]

Ms.
    Polera said she was never told there was an emergency. The appellant says
    there is a major credibility issue requiring a trial. However, there is no
    evidence that Mr. Choo ever communicated the contents of his note to anyone,
    let alone the respondent.  Mr. Choo was never examined.  The appellant has had
    three years to obtain Mr. Choos evidence and did not do so.

[13]

Further,
    Ms Polera had good reason to cancel her appointment because she was dealing
    with other health issues. Once she learned that she had a brain tumour, she
    never cancelled or missed any appointments.

[14]

The
    motions judge was confident that the necessary findings of fact could be made
    on the evidence, including the parties examination for discovery transcripts.
    There was no need for contributory negligence to go to trial.

[15]

The
    motions judge was satisfied on the evidence that Ms. Polera behaved reasonably
    and did nothing to contribute to her injuries. There was no compelling evidence
    that Ms. Polera was told there was any urgency in scheduling an appointment.
    Accordingly, it was not unreasonable to miss a hearing aid follow-up
    appointment when there was nothing to suggest there was any harm in doing so.

[16]

The
    motions judge concluded that there was no evidence of contributory negligence.

(1)

Procedural Fairness

[17]

The
    appellant alleges that he was denied procedural fairness because he did not know
    that the issue of contributory negligence would be before the motions judge.

[18]

We
    do not agree. The record before the court belies this assertion.

[19]

The
    reasons of the motions judge show that at the first hearing, he dealt with the
    breaches of the standard of care. He then explained that the issue of
    contributory negligence was adjourned to the second hearing. In those reasons,
    the motions judge said (at para. 8):

The second part of the motion about the specific injuries
    sustained and the defence of contributory negligence was adjourned and is now
    before me for adjudication.

[20]

And,
    at para. 19:

It has been the [appellants] long-standing position that any
    order granting summary judgment on the issue of liability should be made
    without prejudice to [his] right to argue contributory negligence at trial.

[21]

Further,
    the factums filed by the appellant on both hearings address contributory
    negligence.

[22]

In
    his factum dated August 15, 2014, the appellant addresses contributory
    negligence by saying (at para. 34):

[The order] should be without prejudice to the [appellants] right
    to argue contributory negligence at trial, given that [Ms. Polera] did not
    attend follow-up appointments, did not seek out medical attention between 2004
    and 2007 and repeatedly cancelled appointments with Dr. Wade in 2007, resulting
    in a delay of 6 months, after the January 30, 2007 audiogram and despite the
    records of the audiologist Tommy Choo stating that he was requesting an
    emergency appointment with Dr. Wade.

[23]

Likewise,
    in his factum dated January 27, 2015, the appellant says this (at para. 12):

[O]n this summary judgment [motion] on the issue of the
liability
    of Dr. Wade
, the Plaintiffs are asking the motion judge to direct the jury
    not to consider any evidence or arguments regarding:

(a)     contributory negligence [Emphasis in original.]

[24]

This
    factum also addressed the facts relied on by the appellant with respect to
    contributory negligence.

[25]

Clearly,
    the appellant was aware that contributory negligence was an issue before the
    motions judge and was not denied procedural fairness.

(2)

Burden of Proof

[26]

The
    appellant submits that the motions judge misplaced the burden of proof. He
    relies on the motions judges comments that he had to put his best foot
    forward (at para. 21).

[27]

The
    appellant submits that the burden rested with the respondent (the moving party
    on the motion) to adduce evidence supporting a lack of contributory negligence
    before the appellant was required to put his best foot forward. Specifically,
    the appellant submits that the respondent should have produced evidence from
    the audiologist at CHS about what she was told regarding the alleged emergency
    appointment.

[28]

The
    appellant submits that the only evidence with respect to contributory
    negligence was Ms. Poleras examination for discovery transcript, filed without
    the mandatory supporting affidavit. He argues that it was unreasonable for the
    motions judge to expect him to prepare motion materials to prove there was a
    genuine issue for trial when the respondents did not file admissible materials
    proving there was no such issue. In other words, there was no burden on the
    appellant to address the contributory negligence issue.

[29]

We
    do not agree.

[30]

First,
    the motions judge was entitled to consider Ms. Poleras impugned discovery
    evidence. Once the appellant relied on her discovery evidence, he opened up its
    use to both parties. As a result, the motions judge was entitled to consider it
    for all issues.

[31]

On
    this point, we agree with the analysis of D.M. Brown J. (as he then was) in
Lawless
    v. Anderson
, 2010 ONSC 2723, 188 A.C.W.S. (3d) 1006, at para. 12, affd on
    other grounds, 2011 ONCA 102, 276 O.A.C. 75:

As a general rule when a party places into evidence answers
    given by an opposite party on her examination for discovery, such evidence is
    available to either party in the same manner as any other evidence.

[32]

Second,
    the onus was not shifted by the motions judge. The motions judge determined
    that there was no genuine issue requiring a trial on the contributory
    negligence issue, at para. 8: I am satisfied that both matters, specific
    injuries and contributory negligence, can be summarily adjudicated. Given the
    uncontradicted evidence of Ms. Polera that she was not told of any urgency, and
    silence by the appellant, the only reasonable conclusion was that the
    respondent was not contributorily negligent.  Resolution of this issue did not
    turn on the onus of proof.

Specific Injuries

[33]

Although
    the appellant submitted that the motions judge should not have listed the
    specific injuries, we see no error in this regard.

[34]

The
    listing of the respondents specific injuries was based on the three expert
    reports filed. There was no cross-examination on these reports.

[35]

There
    was an issue about Ms. Poleras hearing loss. The appellant submitted that the
    issue had been withdrawn from consideration by the respondents. We do not agree
    that is what happened. The respondents were prepared to have a trial on this
    issue, but the motions judge considered the issue and determined that it did
    not require a trial. It was open to him on the record to come to that
    conclusion.

[36]

The
    motions judge took a robust and pragmatic view of the evidence respecting
    causation. Although evidence will still be called by the parties with respect
    to the degree to which a specific injury affects the respondent and hence the quantum
    damages, the listing provided by the motions judge eliminates a time consuming
    component of the trial, as liability is no longer in question.

[37]

Moreover,
    we see no prejudice to the order.

Disposition

[38]

The
    appeal is dismissed with costs payable to the respondents fixed, as agreed, in
    the amount of $15,000, inclusive of disbursements and HST.

Karen
    M. Weiler J.A.

G.
    Pardu J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Anderson, 2015 ONCA 894

DATE: 20151216

DOCKET: C59974

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Trevor Anderson

Appellant

Howard L. Krongold, for the appellant

Andreea Baiasu, for the respondent

Heard and released orally: December 10, 2015

On appeal from the conviction entered Justice Fitzpatrick
    of the Superior Court of Justice, dated July 9, 2014.

ENDORSEMENT

[1]

The appellant appeals conviction only.  There are two grounds of appeal.

Did the Crown prove that the appellant knew that the sale of
    the gun was not authorized?

[2]

In our view, the defence at trial acknowledged that there was only one
    issue  had Mr. Anderson (the appellant) played any role in the transfer of
    the firearm.  The evidence at trial and the submissions at trial focused
    exclusively on that single issue as identified by defence counsel.

[3]

The position at trial can only be taken as a concession that the other
    essential elements of the offence under s. 99, including whether the appellant knew
    that his accomplice did not have the necessary authorization were conceded
    without formal proof.  In light of that concession, the first ground of appeal
    fails.

Was the verdict unreasonable?

[4]

The appellant argues that the verdict, and in particular the finding
    that the appellant aided and abetted in the transfer of the firearm, is
    unreasonable.  Counsel does not suggest that the trial judge misapprehended the
    evidence.  We think the evidence offered ample support for the trial judges conclusion.
    We refer to the trial judges concise summary of the evidence and the
    inferences available from that evidence at para. 22 of his reasons.

[5]

The appeal is dismissed.

Doherty J.A.

S.E. Pepall J.A.

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ansari, 2015 ONCA 891

DATE: 20151215

DOCKET: M45729 (C52883)

Strathy C.J.O., Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Asad Ansari

Applicant

John Norris and Breese Davies, for the applicant

Croft Michaelson, Q.C., for the respondent

Heard: December 4, 2015

An application for an extension of time to file a notice
    of application for leave to appeal the sentence imposed on October 4, 2010 by
    Justice Fletcher Dawson of the Superior Court of Justice, sitting with a jury,
    and an application for an order under s. 684 of the
Criminal Code
.

By the Court:

[1]

Asad Ansari is a Canadian citizen. On June 23, 2010 a jury found him guilty
    of participating in the activities of a terrorist group. On October 4, 2010 the
    trial judge sentenced him to one day in jail to be followed by three years
    probation. In light of the time he had already spent in pre-sentence custody
    and the then prevailing rule of thumb about credit for it, the trial judge
    considered the sentence imposed to be the functional equivalent of a sentence
    of six years and five months. At trial, Crown counsel did not seek any
    additional term of imprisonment beyond the period reflected in the pre-trial
    custody credit.

[2]

Asad Ansari appealed his conviction. He did not seek leave to appeal his
    sentence, the carceral component of which he had served on the day the trial
    judge imposed the sentence.

[3]

On August 19, 2015 this court dismissed Asad Ansaris appeal from
    conviction.

THE APPLICATION

[4]

Asad Ansari (the applicant) now applies for an order extending the
    time within which he can serve and file a notice of application for leave to
    appeal the sentence imposed at trial. He also seeks an order under s. 684 of
    the
Criminal Code of Canada
, R.S.C., 1985, c. C-46, appointing counsel
    to act on his behalf on this application, and on the appeal from sentence if
    the extension of time he requests is granted.

[5]

At the outset of the hearing in this court, the applicant modified the
    relief sought on the application. He pursued his application to extend the time
    within which to serve and file a notice of application for leave to appeal
    sentence, but asked that the application for an order under s. 684 of the
Criminal
    Code
be adjourned
sine die
for hearing before a single judge if
    required.

[6]

At the conclusion of oral argument, the Chief Justice delivered brief
    reasons extending for ten days the time within which Mr. Ansari could serve and
    file his notice of application for leave to appeal sentence. The Chief Justice
    adjourned the s. 684 application
sine die
to be heard by a single
    judge of this court, if required. What follows are the reasons the Chief
    Justice said would be provided to explain the orders made.

THE APPLICATION FOR AN EXTENSION OF TIME

[7]

It is common ground that Asad Ansari did not form the intention to
    appeal the sentence imposed upon him within 30 days of its pronouncement.

The Essential Background

[8]

On June 19, 2014, nearly four years after the applicant was sentenced,
    the
Strengthening Canadian Citizenship Act
, S.C. 2014, c. 22 received
    royal assent. Among other things, the Act amended s. 10 of the
Citizenship
    Act
, R.S.C., 1985, c. C-29, to permit the Minister of Citizenship and
    Immigration to revoke the citizenship of any Canadian citizen convicted of a
    terrorism offence and sentenced to a term of imprisonment of at least five
    years. The legislation came into force on May 28, 2015 and applied to
    convictions entered and sentences imposed both before and after that date.

[9]

In early July, 2015 the applicant received notice under the
Citizenship
    Act
that the Minister may revoke his citizenship as a result of his
    conviction and sentence. The applicant was afforded an opportunity to make
    written submissions to the Minister.

[10]

On
    receipt of the notice, the applicant sought legal advice. He joined a
    constitutional challenge in the Federal Court claiming that parts of the
Citizenship
    Act
, including the Ministers authority to revoke citizenship on the basis
    of a conviction of a terrorism offence, are unconstitutional.

[11]

The
    applicant also instructed counsel to seek an order extending the time within
    which to serve and file a notice of application for leave to appeal the
    sentence imposed upon him.

The Arguments on the Application

[12]

The
    applicant emphasizes the discretionary nature of the decision to grant an
    extension of time. The overarching consideration is whether the interests of
    justice warrant the extension.

[13]

The
    applicant readily acknowledges that he did not form the intention to appeal
    sentence within 30 days of its imposition. The carceral component of the
    sentence ended the day it was imposed. But he took immediate steps to do so
    once notified of the Ministers intention. His response included not only an
    attack on the sentence imposed, but also a challenge to the constitutionality
    of the legislation invoked by the Minister.

[14]

The
    applicant says that the proposed appeal has merit. The collateral consequences
    of a sentence require consideration in imposing a fit sentence, as well as on
    appellate review of the fitness of a sentence imposed at trial. Appellate
    courts have authority to intervene to adjust the sentence, even after its
    completion, if the sentencing judge has failed to consider its collateral
    consequences. It is all the more so when those consequences arise because of a
    statutory amendment that has retrospective effect.

[15]

The
    respondent opposes the extension of time the applicant seeks.

[16]

The
    respondent emphasizes the need for finality in criminal proceedings. Extensions
    of time are exceptional. They require extraordinary circumstances that reveal a
    real concern that an injustice may occur or be perpetuated in the absence of an
    extension.

[17]

A
    consideration and balancing of the relevant factors belies any claim that the
    justice of the case warrants the extension sought. Nothing was overlooked when the
    sentence was imposed that gives any reason to doubt the fitness of that
    sentence. The applicants real complaint is with the retrospective effect of
    the amendment. But that issue will occupy another court at another time, not a
    court asked to review the fitness of sentence.

[18]

In
    addition, the respondent continues, the applicant has failed to demonstrate any
    merit in the proposed appeal. The reduction sought here  to a sentence under
    five years  would distort the sentencing process and result in the imposition
    of an artificial and inappropriate sentence.

The Governing Principles

[19]

Section
    678(2) of the
Criminal Code
authorizes a panel or judge of a court of
    appeal to extend the time within which notice of an application for leave to
    appeal may be given. Rule 7 of the
Criminal Appeal Rules
, SI/93-169, permits
    an extension to be granted before or after the expiration of the 30-day period
    prescribed by r. 4(2). Neither the
Criminal Code
nor the
Criminal
    Appeal Rules
frames a test to be applied or describes any factors to be
    considered in deciding whether the extension should be granted.

[20]

A
    few brief points emerge from the authorities.

[21]

First,
    the authority to grant or refuse an extension of time is discretionary. No
    party is entitled to an extension of time as of right:
R. v. Roberge
,
    2005 SCC 48, [2005] 2 S.C.R. 469, at para.
6;
R. v. Menear
(2002), 162 C.C.C. (3d) 233 (Ont. C.A.), at para.
20.

[22]

Second,
    relevant factors that may be considered when an extension of time is sought
    include, but are not limited to:

i.

whether the applicant formed a
bona fide
intention to seek
    leave to appeal and communicated that intention to the opposite party within
    the time prescribed for filing the applicable notice;

ii.

whether the applicant has accounted for or explained the delay in filing
    the notice; and

iii.

whether the proposed appeal has merit:
Menear
, at para. 20.

[23]

Depending
    on the circumstances of the application, other factors may also influence the
    decision. The length of the delay. Prejudice to the respondent. The diligence
    or inattentiveness of counsel. Whether the applicant has taken the benefit of
    the judgment:
Menear
, at para. 21;
Roberge
, at para. 6. In
    the final analysis, the overarching consideration is whether the applicant has
    demonstrated that the justice of the case requires that the extension of time
    be granted:
Menear
, at para. 21.

[24]

Third,
    the collateral consequences of a sentence are a relevant factor for a
    sentencing court to consider in determining a fit sentence, one that gives
    effect to the fundamental principle of sentencing  that the sentence be
    proportionate to the gravity of the offence and the degree of responsibility of
    the offender:
R. v. Pham
, 2013 SCC 15, [2013] 1 S.C.R. 739, at para.
    11. The relevance of collateral consequences may also flow from the sentencing
    objective of assisting in the rehabilitation of the offender:
Pham
, at
    para. 11.

[25]

Collateral
    consequences of a sentence are any consequences of the impact of the sentence
    on the particular offender. Such consequences may include those associated with
    deportation and immigration status. Variation of a sentence to avoid collateral
    consequences must not be so great, however, that the sentence offends the
    fundamental principle of proportionality:
Pham
, at paras. 11, 18.

[26]

Fourth,
    extensions of time to appeal sentence have been granted where the trial judge was
    unaware of the collateral consequences of the sentence she or he imposed, as
    well as in instances in which the law changed after sentence to include or
    increase collateral consequences:
R. v. Leung
, 2004 ABCA 55, 354 A.R.
    2, at para. 3;
R. v. Bahadur
, 2010 SKCA 103, 359 Sask. R. 260, at para.
    13;
R. v. Truong
, 2007 ABCA 127, 404 A.R. 277, at para. 13.

[27]

Finally,
    extensions of time have been granted on the basis of disproportionate collateral
    consequences after the sentence had been served or where the carceral portion
    of it was about to expire:
Leung
, at para. 6;
R. v. Kanthasamy
,
    2005 BCCA 135, 195 C.C.C. (3d) 182, at para. 10.

The Principles
    Applied

[28]

Several
    factors persuade us that we should extend the time within which the applicant
    can serve and file a notice of application for leave to appeal sentence.

[29]

First,
    the interests of justice favour the extension. To refuse the order, a
    substantial injustice may occur, wrought by legislation not in force or within
    the reasonable contemplation of any of the participants in the trial process,
    but made retrospective by an enactment passed years later.

[30]

Second,
    the failure of the applicant to seek leave to appeal sentence within 30 days of
    its imposition is easily explained. The carceral portion of his sentence
    expired the day sentence was imposed. And an appeal of the length or
    discretionary terms of the probation order would risk dismissal for failure to
    invoke s. 732.2(3) of the
Criminal Code
.

[31]

Third,
    the collateral consequences  loss of Canadian citizenship  are of such
    magnitude as to render it unjust to deprive the applicant of the opportunity to
    seek a variation of the sentence to remove himself from the reach of the
    amendment.

[32]

Fourth,
    when notified by the Minister, the applicant and his counsel acted diligently
    to pursue two avenues to achieve a result that would remove the applicant from
    the class of persons subject to the authority of the Minister to strip a
    citizen of Canadian citizenship. The applicant sought this extension of time in
    order to ask the court to reduce the imputed sentence to less than five years.
    And he challenged the constitutionality of the legislation that provided the
    Minister with the authority to strip Canadians of their citizenship.

[33]

Fifth,
    it cannot be said that the appeal is devoid of merit. The collateral consequences
    of a sentence are a relevant factor for both trial and appellate courts to
    consider in imposing or reviewing the imposition of a sentence to ensure its
    conformity with the principle of proportionality. The variation sought is not
    on its face so far removed from the sentence imposed to be outside the range of
    variation permissible under
Pham
.

[34]

It
    is for these reasons that we granted the applicant an extension of time within
    which to serve and file his notice of application for leave to appeal sentence.

THE s. 684 APPLICATION

[35]

In
    accordance with submissions of counsel, the application under s. 684 of the
Criminal
    Code
is adjourned
sine die
to be reinvigorated if required and
    scheduled for hearing before a single judge in chambers.

CONCLUSION

[36]

For
    these reasons, we granted the application for an extension of time to file a
    notice of application for leave to appeal sentence. The s. 684 application is
    adjourned
sine die
for hearing before a single judge if required.

Released: December 15, 2015 (GS)

G.R.
    Strathy C.J.O.

David
    Watt J.A.

Gloria
    Epstein J.A.