Reasons for Decision on Summary Conviction Appeal

Court File No.: CR-24-11402786-AP, CR-24-114-2786-AP2
Date: 2025/05/14
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Brandie Spagnolo, Appellant

Appearances:
S. Azimi, for the Crown
Appellant, Self-Represented

Heard: April 25, 2025

Parfett J.

Introduction

[1] The Appellant, Ms. Brandie Spagnolo, was convicted after trial of two counts of disobeying a court order contrary to s. 127(1) of the Criminal Code, and two counts of breach of a probation order contrary to s. 733.1 of the Code. She was acquitted of criminal harassment. Ms. Spagnolo appeals from her conviction with respect to the two counts of disobeying a court order.

Background

[2] Ms. Spagnolo was a party to a child protection application filed by the Children’s Aid Society of Ottawa in May 2018. In March 2019, the Superior Court of Justice issued a restraining order as follows:

An order restraining the Respondent Mother, from attending within 500 metres of the matrimonial home, the Respondent Father’s place of work, the Children’s school, or any location the Respondent Mother knows, ought to know, or otherwise comes to know that the Respondent Father or the Children may be, except in accordance with any court order regarding access. This order shall remain in effect until a new restraining order is terminated or issued. [2]

[3] Ms. Spagnolo tried to appeal this order but the clerk at the family law counter refused to accept her documents, advising her that she needed to appeal to the Divisional Court. She did not do so.

Evidence at Trial

[4] The Appellant conceded that on December 25, 2023, and April 7, 2024, she attended at the matrimonial home to visit her children.

[5] The crux of the Appellant’s case at trial, and in this Court, was that the court order was invalid as the court itself was an illegal court. She asserts that the Children’s Aid Society failed to start its protection application in the correct court and everything that flowed from that error was necessarily invalid.

Trial Decision

[6] The trial judge provided an oral decision in this matter. She stated that Ms. Spagnolo admitted attending the matrimonial home on the relevant dates but argued that the Family Court order was invalid.

[7] With respect to the issue of the validity of the court order, the trial judge noted:

The case started as an application for child protection, Exhibit 4 makes that clear. The application was started in the Superior Court of Justice. It even seems that it was given a court file number that refers to the Family Court. It proceeded with temporary orders by judges sitting in Family Court. It culminated to this final order by Justice Linhares De Souza on March 1, 2019. [3]

[8] The trial judge went on to state that the collateral attack rule was applicable in this case and that pursuant to that rule, the Family Court order was valid. [4] She then found Ms. Spagnolo guilty of the two counts of disobeying a court order.

Issues on Appeal

[9] The Appellant raises one issue on this appeal. She asserts – as she did at trial – that the Family Court Order was invalid because the court was an illegal court and that the Trial Judge committed an error of law in finding the order valid.

Standard of Review

[10] Where an error of law is raised, the standard of review is correctness. [5]

Analysis

[11] The Appellant pointed out that s. 25(1) of the Interpretation Act states, [6]

Where an enactment provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence, then, in any judicial proceedings, the document is admissible in evidence and the fact is deemed to be established in the absence of any evidence to the contrary.

[12] She argued that this section applied to the Family Court order and that she provided ‘evidence to the contrary’ that should have been taken into consideration by the trial judge.

[13] Ms. Spagnolo also pointed to the decision of R. v. Proudlock, where the Supreme Court of Canada stated,

If the prima facie case is made up by the proof of facts from which guilt may be inferred by presumption of fact, the law is clear on the authorities that, because the case in the end must be proved beyond a reasonable doubt, it is not necessary for the accused to establish his innocence, but only to raise a reasonable doubt. This he may do by giving evidence of an explanation that may reasonably be true, and it will be sufficient unless he is disbelieved by the trier of fact, in which case his testimony is no evidence. [7]

[14] The Appellant reiterated that her testimony ought to have been accepted by the trial judge and therefore, should have raised a reasonable doubt in relation to the validity of the Family Court order.

[15] The Appellant’s testimony at trial can be summarized as follows:

• The initial protection application document indicated that it was issued in the Superior Court of Justice (SCJ); [8]
• The Child, Youth and Family Services Act, 2017 (CYFSA) [9] states that the Superior Court of Justice is an appeal court; [10]
• The protection application should have been issued in the Superior Court of Justice, Family Court; [11]
• Consequently, the restraining order was not issued by the correct court and is void ab initio.

[16] It is this evidence that the Appellant argues was the ‘evidence to the contrary’ that the trial judge should have accepted. While the trial judge never explicitly rejected the Appellant’s evidence, the fact that she did so is implicit in the conclusion that she reached in relation to the validity of the restraining order. Therefore, in accordance with the principle set out in Proudlock, the trial judge found that the Appellant’s evidence was not capable of raising a reasonable doubt.

[17] In addition to the testimony of the Appellant, other evidence was filed or admitted.

[18] The trial took place over two days. On the first day, Ms. Spagnolo was represented by counsel. Crown and Defence counsel admitted the following in relation to the CYFSA jurisdiction:

• Where there is a Unified Family Court, as there is in Ottawa, the Superior Court of Justice has jurisdiction over CYFSA matters. All judges of the SCJ can sit on family matters. Any appeal of such matters is to the Divisional Court, which is made up of SCJ judges. [12]

[19] The court documents filed by the Appellant at trial all state that they were issued in the Superior Court of Justice. [13] The only exception is the restraining order, which says specifically that it was issued in the Superior Court of Justice, Family Court. [14] It is on this basis that the Appellant argues the proceedings pursuant to the CYFSA all occurred in the wrong court.

[20] However, as noted by the trial judge, all the documents relating to the child protection proceeding have the same file number that starts with the initials ‘FC’ indicating that the file was issued in the Family Court. [15]

[21] The fact that the child protection documents omit to mention ‘family court’ in the title does not in any way vitiate the jurisdiction of the court. That notation is not essential to establishing the jurisdiction of the court. Any Superior Court of Justice judge dealing with a family court file is sitting as a judge of the Family Court. As has been stated innumerable times by the Supreme Court of Canada, form cannot trump substance. In this matter, the substance of the proceedings in the protection application occurred in the Family Court of the Superior Court of Justice. [16]

[22] As noted in the Courts of Justice Act, [17] all Superior Court of Justice judges can sit as family judges. In s. 2 of the CYFSA, it is noted that the Family Court of the Superior Court of Justice is a ‘court’ for the purposes of that Act. In the circumstances, the only conclusion that the trial judge could have reached was that the restraining order had been issued by the correct court.

[23] Crown counsel argues that once the trial judge had concluded that the Superior Court of Justice had the jurisdiction to issue the restraining order, the collateral attack rule prohibited the Appellant from arguing the validity of the order. [18] In the absence of an appellate ruling overturning the order, the order remained valid. I agree.

Conclusion

[24] The appeal is dismissed.

Parfett J.
Released: May 14, 2025

Endnotes

[1] R.S.C. 1985, c. C-46, as amended.
[2] Exhibit #2 at trial. Names, dates of birth and other identifying information have been redacted in compliance with ss. 87(8) and (9) of the Child, Youth and Family Services Act, 2017.
[3] Transcript, September 3, 2024, at p. 71.
[4] Transcript, September 3, 2024, at pp. 71-72.
[5] Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.
[6] R.S.C. 1985, c. I-21.
[7] R. v. Proudlock, [1979] 1 S.C.R. 525 at p. 551.
[8] Exhibit #4.
[9] S.O. 2017, c. 14, Sched. 1.
[10] S. 215(3.1).
[11] Transcript, May 27, 2024, at p. 14.
[12] Transcript, May 27, 2024, at p. 19. See also Courts of Justice Act, ss. 19(1)(a.1) and 21(2)(3).
[13] Exhibits #4, 5, 7, 8 and 9.
[14] Exhibit #2.
[15] Exhibits #2, 4, 7, 8 and 9.
[16] See R. v. Olson, [1989] 1 S.C.R. 296; R. v. Sciascia, 2017 SCC 57, [2017] 2 S.C.R. 539.
[17] R.S.O. 1990, c. C.43, as amended.
[18] R. v. Litchfield, [1994] 4 S.C.R. 333.