Important Directives Regarding Publication Bans

WARNING

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

An order restricting publication in this proceeding under ss. 486.4 or 486.6 of the Criminal Code shall continue. These sections of the Criminal Code provide:

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

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

(a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

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

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

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

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

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

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

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

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

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

WARNING

Section 87(8) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 may apply:

Prohibition re identifying child

87(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

Court of Appeal for Ontario

DATE: 20240503 DOCKET: COA-24-OM-0104

Roberts J.A. (Motions Judge)

BETWEEN

J.J.W. Applicant (Respondent/Responding Party)

and

K.F. Respondent (Appellant/Moving Party)

Counsel: K.F., acting in person Paul Riley, for the respondent/responding party

Heard: April 19, 2024

Endorsement

1K.F. seeks an extension of time to file her notice of appeal with respect to the January 25, 2024 order of the trial judge. The extension is opposed by J.J.W.

2These reasons explain why I dismiss K.F.’s motion for an extension of time.

A. Background

(1) The Parties’ Acrimonious Relationship

3The proposed appeal arises out of highly contentious family law proceedings. The parties married on August 17, 2013, their child was born in October 2017, and the parties separated in January 2019. From almost the beginning, it appears their relationship was marred by acrimonious disputes. In 2019, K.F. accused J.J.W. of assaulting her and uttering a death threat. Subsequently, in 2021, K.F.’s mother reported an allegation to the Children’s Aid Society (“CAS”) that J.J.W. had sexually abused their son. J.J.W. was criminally charged with uttering a death threat in January 2019 and with sexual assault. He was tried, and acquitted, of the charges in two separate trials. [1]

(2) Family Law Trial and Decision

4The issues at the ten-day trial of the family law dispute centered on parenting the parties’ now six-year-old son, and child and spousal support. Much of K.F.’s testimony at trial focused on the issues that she raised of coercive control, domestic violence, and sexual assault. As a result, essentially the same allegations of violence and sexual assault that led to criminal charges against J.J.W. figured prominently in the trial judge’s parenting determinations, as well as his credibility findings concerning the testimony given by the parties and other witnesses.

5In general, the trial judge found J.J.W. to be a highly credible and reliable witness, and he was not satisfied with the truthfulness and reliability of K.F.’s evidence.

6The trial judge meticulously analyzed the allegations of domestic violence, coercive control, and sexual assault. He found that both parties had engaged in verbal abuse and physical violence but “they were minor and isolated incidents”. He also concluded there was insufficient evidence to support a finding that J.J.W. exerted a pattern of coercive control over K.F.

7With respect to the alleged sexual assault against the parties’ son, he found that it was more likely than not that K.F. had influenced their son’s narrative to the police, which resulted in a criminal prosecution of J.J.W. The trial judge ultimately rejected K.F.’s evidence, finding that she or her family intentionally or unintentionally coached the parties’ son to believe that innocent play by the father was sexual in nature, which contributed to the child’s alienation from J.J.W. He concluded on a balance of probabilities that the alleged sexual touching did not occur.

8With respect to the CAS worker whose actions were criticized by Hogan J. in J.J.W.’s second criminal trial [2], the trial judge came to the same conclusion and ordered that the CAS not interfere with the reunification process between J.J.W. and their son. The trial judge found that the CAS worker who was involved in the case was influenced by K.F. and those who advocated on her behalf, and he questioned her objectivity and the objectivity of the police officer who interviewed the parties’ son.

9The trial judge found that there was parental alienation in this case, though he declined to find that it was done with malice. In addition to K.F.’s alienating actions described above in paras. 6 and 7, he found that K.F. had engaged in various other alienation strategies, which included badmouthing J.J.W., creating the impression that he is dangerous, and demonstrating that she does not believe that their child needs to have a relationship with J.J.W. The trial judge also made several findings with respect to K.F.’s conduct during the litigation, including that she took unreasonable positions, that she did not provide corroborating evidence, despite the possibility of doing so, and that some of her testimony was not plausible, inconsistent with records, or misleading.

10The trial judge ordered that the parties’ son continue reunification therapy and also ordered the CAS not to interfere with the reunification process. He provided a parenting schedule that would culminate in equal parenting time by July 1, 2024.

11The trial judge found that K.F. was intentionally underemployed and imputed income to her. He determined that spousal support should cease on July 1, 2024. He rejected her claim for retroactive child support because J.J.W.’s income had not risen significantly, it would cause undue hardship to him, and it was beyond his means. He also declined to make a retroactive adjustment to spousal support.

(3) The Appeal

12On February 26, 2024, K.F.’s former counsel served a notice of appeal on her behalf within the prescribed deadline for appealing under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). In her notice of appeal, she challenges the trial judge’s order on spousal and child support and parenting issues. As part of her grounds of appeal, she alleges that the trial judge erred in law “by not applying the appropriate standard of proof to evidence of family violence and coercive control to which the Appellant testified at trial.”

13K.F. sent her notice of appeal and affidavit of service to the court office on March 5, 2024. However, on March 15, 2024, K.F.’s notice of appeal was rejected by this court’s intake office because it was on the wrong form – Form 38 under the Family Law Rules, O. Reg. 114/99 rather than Form 61A under the Rules – and she also needed to file a certificate of evidence. She replicated the contents of the original notice of appeal onto a Form 61A, and on March 20, 2024, she served J.J.W. and asked for his consent to its filing. On March 21, 2024, consent was refused. On March 22, 2024, court staff wrote to J.J.W.’s counsel explaining that the document should have been accepted as it was largely compliant with the rules and asked J.J.W. to reconsider consenting to the extension. J.J.W. did not change his position. As a result, K.F. brought this motion for an extension of time to file her notice of appeal.

B. Analysis

(1) Governing Principles

14The court’s discretion to extend time deadlines under r. 3.02 of the Rules is broad. The overarching consideration is whether the justice of the case warrants granting the extension. In a family law case affecting children’s interests, such as this one, the justice of the case is reflected in the best interests of the children: Denomme v. McArthur, 2013 ONCA 694, 36 R.F.L. (7th) 273, at para. 7; D.G. v. A.F., 2014 ONCA 436, at paras. 16, 33-34; Teitler v. Dale, 2021 ONCA 577, at para. 7; and Leybourne v. Powell, 2023 ONCA 421, at para. 7.

15The well-established criteria informing the exercise of that discretion are: whether the moving party formed the requisite intention to appeal within the deadline for appealing prescribed by the rules; the length of and explanation for the delay; any prejudice to the responding party and/or, as in this case, the parties’ child; and the merits of the proposed appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15; D.G., at paras. 16, 33-34; Teitler, at para. 7; and Leybourne, at paras. 4, 7.

16Even where the moving party meets the other criteria, the lack of merit of the proposed appeal may be determinative: Enbridge, at para. 16; Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, at para. 21. In assessing the merits of an appeal, the court does not determine the appeal but considers whether the appeal has so little merit that the appellant should be deprived of the important right of appeal: Duca Community Credit Union Limited v. Giovannoli (2001), 142 O.A.C. 146 (C.A.), at para. 14.

(2) Principles Applied

17Given her counsel’s filing of the notice of appeal within the prescribed deadline, I am satisfied that K.F. had the requisite timely intention to appeal the trial judgment. Moreover, there is an adequate explanation for the delay as K.F. promptly attempted to rectify the issue identified with the form of her notice of appeal. The delay is minimal and flows from the court office’s rejection of the notice of appeal that was filed on time.

18However, K.F.’s motion falters on the consideration of the factors of the lack of merit of her proposed appeal and of the significant prejudice to the parties’ son and to J.J.W. As I will explain, I conclude that her proposed appeal appears frivolous and vexatious, and the prejudice is substantial.

19Generally, a frivolous appeal is one devoid of merit and with little prospect of success; a vexatious appeal includes one that is brought to annoy or harass, is conducted in a vexatious manner, or is pursued in bad faith or for an oblique purpose: Lavallee v. Isak, 2022 ONCA 290, at paras. 19, 25. That appears to be the case here.

20In my view, this appeal has virtually no chance of success. With respect to the financial issues she raises, K.F.’s proposed grounds of appeal challenge the trial judge’s findings of fact and credibility without indicating any error in principle or palpable or overriding error that would justify appellate intervention. Specifically, she takes issue with the trial judge’s imputation of income to her, his termination of spousal support on July 1, 2024, and the rejection of her claim to retroactive child support. The trial judge’s decision on those issues is anchored in the evidence that he reviewed and was entitled to accept and reflects the correct application and balancing of the relevant principles. Given the high degree of deference to a trial judge’s findings of fact and credibility, it is difficult to see the merit in the appeal with respect to the financial issues. Further, K.F.’s proposed grounds of appeal rely on new evidence that she could have provided at trial and would therefore likely not be admitted on appeal.

21K.F.’s draft notice of appeal also seeks to overturn the trial judge’s decision on parenting issues, specifically challenging the parenting schedule that has been put into place (including the equal parenting time to which she had previously agreed), and the prohibition of the CAS’s interference in the ongoing reunification process. This, too, was based on the trial judge’s review of the factual circumstances of the case and his adverse credibility assessment of the CAS worker involved that was open to him to make. K.F. argues that the evidence on violence and coercive control was not weighed properly in the context of assessing the child’s best interests. In my view, K.F.’s grounds of appeal, which amount to re-litigating the same or similar allegations, and her refusal to accept past final determinations of these issues, are hallmarks of vexatious and abusive conduct.

22K.F.’s continued insistence on the allegations of violence and coercive control that previous courts have now firmly rejected supports J.J.W.’s submission that the appeal is vexatious because it appears to be brought for an ulterior and improper purpose, namely, to separate him from their son. There is no basis for disturbing the trial judge’s findings. There is no reasonable purpose in K.F. pursuing her allegations other than to derail the reunification process and the shared parenting plan.

23In cases involving children, any prejudice to the child must be considered because it informs the court’s consideration of the justice of the case: see e.g., D.G., at paras. 16, 33-34; Teitler, at para. 27; and Leybourne, at para. 7.

24Here, the prejudice to the parties’ son and J.J.W. is palpable.

25Importantly, the reunification process is underway, and the parties are working towards an equal parenting schedule. Although there was a suggestion that K.F. was not initially cooperating with the reunification process, there are no issues at present. The proposed appeal will interfere with that important process. The repetition of the same allegations will simply inflame the situation. So long as the litigation continues, even on the financial issues, it will cause conflict that will likely spill over into the parties’ relationships with their son. Their son has been embroiled in conflict for most of his young life. He is entitled to stability and finality and to re-establish a healthy and normal relationship with J.J.W. Like K.F., J.J.W. is entitled to a healthy and normal relationship with their son.

26Moreover, given the lack of merit of the proposed grounds of appeal, if the appeal proceeds, J.J.W. will incur further legal costs without the hope of recovering them from K.F.: Teitler, at para. 28. J.J.W. has already expended considerable amounts of money related to these and the criminal proceedings and cannot afford to continue to incur these costs.

C. Disposition

27For these reasons, the justice of the case, particularly considering the child’s best interests, does not call for an extension to be granted. Accordingly, the motion for an extension is dismissed.

28J.J.W. is not seeking any costs. I therefore order that there be no costs of this motion.

“L.B. Roberts J.A.”

Footnotes

1The Crown withdrew two charges of assault and uttering threats from alleged incidents in 2018. The remaining charge of uttering a death threat in January 2019 proceeded to trial. As earlier indicated, J.J.W. was acquitted of this charge.

2I do not have the transcript from the first criminal trial.