G (JD) v G (SL), 2017 MBCA 117

Citation: G (JD) v G (SL), 2017 MBCA 117 Date: 20171206 Dockets: AF16-30-08599; AF16-30-08649 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Alan D. MacInnes Mr. Justice Christopher J. Mainella BETWEEN : ) G. R. Champagne J. D. G. ) for the Appellant ) (Petitioner) Respondent ) J. A. Schofield ) for the Respondent - and - ) ) Appeal heard: S. L.

G. ) September 18, 2017 ) (Respondent) Appellant ) Judgment delivered: ) December 6, 2017 NOTICE OF RESTRICTION ON PUBLICATION: No one may disclose any information likely to identify any person involved in the proceedings as a party or witness (see section 75(2) of The Child and Family Services Act , CCSM c C80). On appeal from 2016 MBQB 71 ; and 2016 MBQB 83 MAINELLA JA Introduction and Issues [ 1 ] The respondent appeals orders made after a lengthy family law trial relating to custody and access for the parties’ two children, spousal support, contempt and costs.

She also moves to introduce fresh evidence. [ 2 ] The parties’ divorce proceedings can be described as a devastating and destructive war which has unfortunately consumed the lives of them and their children and has caused the expenditure of tremendous and limited resources of police, child welfare agencies and the courts. In her comprehensive reasons for judgment, the judge laid the fault for this carnage squarely and unequivocally at the feet of the respondent. [ 3 ] The issues before this Court can be summarized as follows.

First, whether the judge erred in refusing to admit into evidence, under the principled exception to the hearsay rule, video-recorded statements of the children to police regarding alleged sexual abuse by the petitioner. Second, the reasonableness of the judge’s custody order in favour of the petitioner based, in part, on her finding of parental alienation by the respondent. Third, the calculation of the petitioner’s spousal support obligation based, in part, on the imputation of income to the respondent.

Fourth, the reasonableness of the judge’s findings of contempt against the respondent and the resulting penalty of the payment of costs of $5,000 to the petitioner and imprisonment for 45 days to be suspended for a period of three years from the pronouncement of the order provided that the respondent complies with all terms of that order and all other orders made in these proceedings.

Fifth, the appropriateness of the judge’s order of elevated costs of $95,000 against the respondent to be satisfied, in part, by offsetting a portion of the petitioner’s monthly spousal support obligation. [ 4 ] As I will explain, the panel dismissed the fresh evidence motion of the respondent at the appeal hearing. For the reasons that follow, I would dismiss the appeal, save in respect of the timing of the setoff of costs against spousal support.

Background to the Parties’ Marriage and Divorce Proceedings [ 5 ] The parties met in 2004, had their daughter (MRG) in 2005, married in 2005, had their son (JDG) in 2007 and separated in 2013. The petitioner, age 51, is a lawyer. The respondent, age 45, has been sporadically employed since 2011. During her career, she has operated various businesses and has been a real estate agent. [ 6 ] In February 2014, an interim order for shared custody of the children was made, as well as a prevention order as to contact between the parties.

Under the prevention order, neither party could follow the other “from place to place”. [ 7 ] During the trial, the judge heard evidence that the petitioner was followed by unknown persons on several occasions after the prevention order was made. A former friend of the respondent testified to turning over to police text messages between her and the respondent.

In the text messages, filed as an exhibit, the respondent admits that she has hired individuals to follow the petitioner. [ 8 ] Soon after the initial interim custody order was made, the petitioner was arrested and charged with domestic assault in relation to a confrontation in a grocery store parking lot with the respondent. Child welfare officials opened an investigation and the petitioner’s access to his children was suspended temporarily.

The domestic assault charge was ultimately stayed by the Crown. [ 9 ] In March of 2014, an interim order of child support and spousal support was made requiring the petitioner to pay the respondent spousal support of $2,800 per month and child support of $1,947 per month. [ 10 ] In May of 2014, MRG made disclosures to child welfare officials of a “secret game” that involved fondling and sexual touching between her and the petitioner. This alleged sexual abuse occurred before the parties’ separation and post-separation during the petitioner’s access to the child.

The petitioner’s access to the children was immediately suspended and the matter was referred to police. The petitioner was arrested and released without formal charge pending an investigation. During their investigation, police took video- recorded statements from MRG in June and August 2014. A video-recorded statement was also taken from JDG in August 2014. JDG did not disclose any sexual abuse, but he did tell police that the petitioner struck him with a wooden spoon. [ 11 ] The respondent was interviewed by child welfare officials during their investigation of the suspected abuse.

She described the petitioner as having a problem with alcohol and being mentally, physically and emotionally abusive to her and the children. She raised a concern that the petitioner may have sexually abused MRG as early as when the child was two years old. One of the accusations the respondent made was that, before the petitioner became a lawyer, he worked in a daycare. She said that he was fired from that daycare for inappropriate behaviour with children.

The petitioner vehemently denied all of the allegations that the respondent made against him. [ 12 ] No charges were laid by police against the petitioner for the alleged fondling and sexual touching.

Child welfare officials concluded that the allegation of sexual abuse by MRG was “inconclusive” and that, although “there is not enough evidence to substantiate abuse, there remains a suspicion that abuse has occurred.” Child welfare officials also noted that the situation regarding the children needed to be monitored as there was a concern that they “may be caught in the middle of their parents’ marital discord”, as the petitioner had alleged that the respondent was attempting to alienate the children from him. [ 13 ] Verna Sullivan, a social worker and experienced family assessor, was retained by the parties to conduct a family assessment for the purpose of making recommendations as to access between the petitioner and JDG.

Because the sexual abuse investigation regarding MRG was not completed, Ms Sullivan did not make recommendations as to access regarding MRG. [ 14 ] In her October 2014 report, Ms Sullivan recommended that JDG, and also possibly MRG, be referred for play therapy with a child psychologist and that JDG be reunited with the petitioner.

Ms Sullivan’s conclusion in her report, and later in her testimony at trial, was that there was no reason to suspend access between the petitioner and JDG; she observed no indications of the petitioner sexually abusing MRG; and that, during the assessment process, the respondent had attempted to be “manipulative” with her and had not been “entirely truthful”. [ 15 ] One of the examples of dishonesty testified to by Ms Sullivan arose from her inquiries into the respondent’s claim that the petitioner had been fired from a daycare before he became a lawyer for alleged inappropriate behaviour with children.

Ms Sullivan contacted the daycare in question and learned that the respondent’s allegation was totally false. In fact, the head of the daycare called the petitioner an “excellent employee” and said that there was no suggestion of him having any sexually inappropriate behaviour towards any children. [ 16 ] Approximately two weeks after Ms Sullivan’s report was released in October 2014, MRG made another disclosure to child welfare officials of alleged inappropriate sexual behaviour by the petitioner. The matter was again referred to police who took video-recorded statements from both children in November 2014.

In her statement, MRG said that the petitioner had shown her and JDG pictures of naked people and that he took pictures of her when she was naked coming out of the shower and also lying on the bed with him. She claimed he also took pictures of JDG when he was naked.

MRG said the petitioner used a black camera to take the pictures and kept them on a silver computer. [ 17 ] In his November 2014 statement, JDG told police that the petitioner kept pictures or videos of naked people “doing silly things” on a silver computer which he made the children watch under threat of violence. [ 18 ] In February 2015, the petitioner was again arrested by police. His residence and electronic devices were searched by police. No evidence to substantiate the allegations of MRG and JDG was found; no charges were laid by police.

The investigating officer testified that there were “credibility issues” in the case that did not warrant the petitioner being charged. Subsequently, police began an investigation of the respondent for public mischief based on her coaching the children to make up allegations against the petitioner. No charges were laid due to insufficient evidence to meet the criminal standard of proof. A senior officer with the Child Abuse Unit later advised in correspondence that the parents “were involved in an embattled custody dispute and the allegations formed

ammunition for this battle.” [19] In May 2015, Ronda Grusko, a social worker and experienced Family Conciliation counsellor, was appointed by theCourt to prepare a family assessment report to assist the judge hearing the custody trial as to the best interests of the children and theappropriate custody and access regime for MRG and JDG. [20] In her November 2015 report, Ms Grusko recommended a reversal of primary-care responsibilities to the petitioner withsupervised access only for the respondent.

In her report, Ms Grusko stated: There is no evidence that the children need to be protected from the [petitioner], and mounting evidence that [MRG] and [JDG] havebeen subjected to parental discord and extreme emotional distress within the family unit. There has been considerable emotional damagedone to these children since the parental separation in August 2013. The behaviour of the children reflects that they have been seriouslynegatively impacted by the conduct of the [respondent].

The primary influence on [MRG] and [JDG] has been the [respondent], and shehas exposed them to emotional manipulation and abuse. [21] During her testimony, Ms Grusko advised the Court that MRG’s traumatic behaviour during the separation of herparents appeared to her to be more consistent with parental alienation than with sexual abuse. [22] During the family assessment process, the respondent made an allegation that Ms Grusko had assaulted MRG. Therespondent claimed that MRG was taken by force into a room by Ms Grusko causing bruising to a previously broken arm.

During thestruggle with MRG, the respondent alleged that MRG’s injured arm was “twisted”. The respondent called this an incident of “childabuse and torture.” Ms Grusko denied that any sort of inappropriate physical contact between her and MRG occurred. She testified thatMRG was in the care of several individuals during the assessment process, none of whom witnessed such abuse. The respondent’sallegation was investigated by child welfare officials and determined to be unsubstantiated. [23] In December 2015, a variation order reversing custody of the children in favour of the petitioner was made.

In order tofacilitate the change of custody, the respondent was ordered by the Court to “forthwith” vacate her residence for the period of December10, 2015 to December 27, 2015. [24] Over the period of December 14-16, 2015, a private investigator hired by the petitioner’s lawyer attended to therespondent’s residence to see whether she had vacated it as required by the court order. The private investigator observed what shebelieved to be parents dropping off children for daycare purposes.

On the afternoon of December 16, 2015, the private investigatorattended to the door of the residence to inquire whether daycare services were being provided under the pretext that she and her husbandwere looking for a daycare. She had a conversation with the respondent who advised that the service was $35 per day and that thebusiness was called “Twelve Little Monkeys”.

The respondent took her through the residence and the private investigator observed thatapproximately a dozen children were being cared for. [25] Despite the variation order reversing custody, various difficulties arose which prevented the children’s reunificationwith the petitioner. The children threatened suicide. The respondent’s father refused to co-operate in assisting with the transition.

MRGmade a new allegation in a letter to the Court that the neighbour designated by the Court to assist in the transition of the children to thepetitioner was a “pervert” who had been shown naked pictures of MRG and JDG by the petitioner. MRG also made fresh allegations ofsexual abuse against the petitioner.

The allegations were investigated by police and child welfare officials and determined to beunsubstantiated. [26] Due to concerns raised about the emotional abuse the respondent may be inflicting on the children, child welfareofficials apprehended MRG and JDG in January 2016 pursuant to The Child and Family Services Act, CCSM c C80. [27] During the course of the trial, child welfare officials discovered that, after the children were apprehended, therespondent somehow managed to smuggle two mobile phones into the foster home so that MRG and JDG could secretly communicatewith her.

When confronted about the clandestine communications, the respondent initially lied that it had been occurring. She thenchanged course and alleged that MRG had told her that staff workers in the foster home had been drunk and fighting. She advised thatMRG will “freak out” when she learns her phone is gone. She also said she would sue the child welfare official for looking at thephones.

Hearsay Issues The Judge’s Decision [28] At trial, the respondent sought to admit the five video-recorded statements by the children to police (three by MRG—June, August and November 2014; two by JDG—August and November 2014) regarding potential child sexual abuse by the petitionerbefore and after the parties’ separation.

Because the respondent was relying on the truth of the children’s statements to police to assisther position on custody, the hearsay evidence was presumptively inadmissible; she bore the onus to establish the “indicia oftrustworthiness sufficient to displace the general exclusionary rule” (R v Blackman, 2008 SCC 37 at para 38).

A voir dire was held todetermine whether the requirements of the principled exception to the hearsay rule, necessity and reliability, had been satisfied (see R vKhelawon, 2006 SCC 57). [29] The judge concluded that there was necessity for the admission of the video-recorded statements because of thesignificant evidence presented to her that the children, particularly MRG, would suffer trauma if required to testify about the allegedabuse. On appeal, no objection is taken to the judge’s conclusions on necessity.

This is not a case where the children did not testifysimply due to “fear or disinclination” (R v F (WJ), (SCC), [1999] 3 SCR 569 at para 44). Rather, it is self-evident fromreviewing the record that requiring the children to testify about the alleged child sexual abuse would have exposed them to traumatranscending “mere discomfort” (see R v Rockey, (SCC), [1996] 3 SCR 829 at para 28; and F (WJ) at para 40).

[30] The respondent does take issue with the judge’s refusal to admit the video-recorded statements into evidence for theirtruth because of her concerns as to threshold reliability. The judge was not satisfied that there was a circumstantial guarantee oftrustworthiness due to the circumstances in the case giving rise to the possibility of the children being coached or manipulated by therespondent into making the statements.

In her decision, she stated: So [to] summarize the statements made by these children who were brought in to the police by their mother in the midst of highlyconflictual divorce proceedings where custody and care and control are the main issue, the timing of the allegations, [is] highly suspect. Professionals themselves were investigating the mother for public mischief and for coaching of the children. She’s under policeinvestigation. The professionals themselves, the trained professionals, all the social workers concluded the statements were not reliable.

And even the professional police officer who works in the child abuse unit where it is their business to prosecute sexual offenders, eventhat detective, who took the statements, did not find the statement to [be] reliable. These are text book examples of a situation where a principled approach to the hearsay rule demands the opposite conclusion. Thecircumstances here are so unreliable as to not meet even a threshold criteria of admissibility.

Fresh Evidence Motion [31] The fresh evidence the respondent sought to admit on the appeal consisted of expert opinions from two clinical socialworkers on the issue of the reliability of the children’s video-recorded statements.

According to the affidavits of the clinical socialworkers, they reviewed the children’s statements to police and are of the opinion that they were not “coached” by the respondent intomaking the allegations against the petitioner. [32] The respondent argued that the fresh evidence casts doubt on the judge’s ruling that the video-recorded statements didnot meet the requirements of threshold reliability.

She also submits that the fresh evidence should be admitted because it is in the bestinterests of the children that any custodial determination take into consideration the real threat that she says exists to them from thepetitioner (see sections 16(8) to 16(9) of the Divorce Act, RSC 1985, c 3 (2nd Supp)). [33] At the hearing of the appeal, the motion was dismissed with reasons to follow.

These are those reasons. [34] The law as to admission of fresh evidence on appeal of a family law order regarding what is in the bests interests of achild was stated as follows in Child and Family Services of Western Manitoba v PH and TB, 2017 MBCA 41 (at para 5): Admission of fresh evidence on an appeal is a discretionary matter (see section 26(3) of The Court of Appeal Act, CCSM c C240).

Receipt of such evidence is governed by the criteria set out in Palmer et al v The Queen, (SCC), [1980] 1 SCR 759, butwith some flexibility to ensure that important evidence as to what is in the best interests of the child is considered (see Winnipeg Childand Family Services v F (JM), 2000 MBCA 145 at paras 20-25).

See also Catholic Children’s Aid Society of Metropolitan Toronto v M (C), (SCC), [1994] 2 SCR 165 at 188-89; andFriesen v Cascisa, 2007 MBCA 12 at para 4. [35] In Palmer v The Queen, (SCC), [1980] 1 SCR 759, McIntyre J stated that the relevant criteria for anappellate court to consider in exercising its discretion regarding whether to admit fresh evidence on an appeal was as follows (at p 775):

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v The Queen, [ (SCC), [1964]SCR 484].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [36] Implicit in the consideration of the Palmer criteria is that the fresh evidence in question is admissible; if the law ofevidence would not otherwise permit the introduction of the evidence at trial, it cannot be admitted on appeal by way of a motion forfresh evidence. In R v O’Brien, (SCC), [1978] 1 SCR 591, Dickson J (as he then was) stated (at p 602):

Section 610 of the Criminal Code lends no assistance to [the] respondent’s case. It is a prerequisite that any evidence sought to beadduced under the discretion granted by that

section be admissible evidence. The

section manifestly does not authorize a Court ofAppeal to dispense with the law of hearsay evidence. If that were so we would have the anomalous situation in which counsel could seekto adduce on appeal that which the common law prohibits at trial. The

section is not operative until the threshold for admissibility asdefined by common law and statute is crossed. That threshold has not been crossed in the instant case.

See also R v Dunbar, Pollard, Leiding and Kravit, 2003 BCCA 667 at para 37; Children’s Aid Society of Toronto v VL, 2012 ONCA 890at para 22; Armoyan v Armoyan, 2013 NSCA 99 at para 131; R v Roussin (B), 2014 MBCA 24 at paras 17-18; and HE v MM, 2015ONCA 813 at para 72. [37] The starting point at common law is the exclusionary rule against the admissibility of expert opinion evidence unless itmeets the four threshold requirements of admissibility as discussed in R v Mohan, (SCC), [1994] 2 SCR 9 at 20.

Aswell, the benefits of the evidence to the trial process must justify the risk to that process being distorted unfairly by its admission (seeWhite Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 at paras 14-24). [38] Expert opinion evidence tendered simply to bolster the credibility of a witness does not meet the Mohan thresholdadmissibility requirements because conclusions about the credibility of a witness are for the trier of fact, not an expert (see R v Pearce(ML), 2014 MBCA 70 at paras 75-76).

There is nothing in the affidavits of the two social workers (who do not appear to have everinterviewed the children and based their opinions solely on watching the video recordings) that goes to human behaviour orpsychological factors that would bear on the credibility of the children that is beyond the ordinary experience of a trier of fact (see R v R(D), (SCC), [1996] 2 SCR 291 at paras 37-40; and Catholic Children’s Aid Society of Toronto v B(T), 2010 ONCJ 6 atparas 11-19).

In my view, the proposed expert opinion evidence of the two clinical social workers amounts to nothing more than “oath-helping” (R v Burns, (SCC), [1994] 1 SCR 656 at 667-68). Given the inadmissibility of the proposed expert evidence,it would not be in the interests of justice to admit it on the appeal. [39] Before addressing the merits of the appeal on the judge’s hearsay ruling, it would be remiss of me not to comment onthe unsatisfactory nature of the respondent’s materials on her fresh evidence motion.

While a generous and flexible view must be takento the application of the due diligence criteria set out in Palmer in matters regarding children, that does not mean that a party can simplyignore putting forward at trial available evidence which he or she believes goes to what is in the best interests of a child. In hersupporting affidavit on the motion for fresh evidence, the respondent provided no explanation as to why the evidence of the two clinicalsocial workers was not available at the trial when it easily could have been in the circumstances.

Absent a miscarriage of justice, which Ihave not been convinced occurred here, the principles of certainty and finality in litigation do not allow for a party to attempt to resurrecthis or her case from an unfavourable ruling by proffering evidence that could have been readily available at trial through a motion forfresh evidence on an appeal. Such a tactic is impermissible (see Public School Boards’ Assn of Alberta v Alberta (Attorney General),2000 SCC 2 at para 13).

Admissibility of the Children’s Video-Recorded Statements to Police Introduction [40] The potential untrustworthiness of hearsay evidence, because it cannot be tested by contemporaneous cross-examination witnessed by the trier of fact, is the principle justification for the hearsay rule (see Khelawon at para 40; and R v Baldree,2013 SCC 35 at paras 30-32).

At its core, the hearsay rule and a careful application of the exceptions to it promote accurate truth finding. [41] The relationship between the hearsay rule and family law has been an uneasy one (see D A Rollie Thompson, “AreThere Any Rules of Evidence in Family Law?” (2004) 21 Can Fam LQ 245).

In Manitoba, this Court has allowed for the receipt ofhearsay evidence in child protection hearings under The Child and Family Services Act even if the evidence does not meet therequirements of a categorical exception or the principled exception to the hearsay rule (see Winnipeg Child & Family Services v L (L), (MB CA), 1994 CarswellMan 132 (CA); for a contrary approach in child protection proceedings, see B (J) (Re), (NL CA), [1998] 163 DLR (4th) 438 at paras 110-117 (NLCA)).

Additionally, hearsay evidence that is attributed toan identified source and believed to be true by the deponent can be relied on for motions (see r 39.01(4) of the Manitoba, Court ofQueen’s Bench Rules, Man Reg 553/88) (the QB Rules). [42] The hearsay issue in this case related to the determination of permanent custody and access of MRG and JDG under theDivorce Act in the face of serious allegations of child sexual abuse.

Unlike a child protection hearing under The Child and FamilyServices Act, which is a more informal and quasi-inquisitorial proceeding (see Manitoba (Director of Child and Family Services) v HHand CG, 2017 MBCA 33 at paras 80-81), or an interim order of custody and access, a permanent determination of custody and accessunder the Divorce Act or The Family Maintenance Act, CCSM c F20, in order to ensure procedural fairness, must be made based on theconventional adversarial process (see Leblue v Leblue, 1997 CarswellAlta 1026 at para 6 (CA); and Circelli v Circelli, 1999 CarswellOnt1467 at para 7 (CA)). [43] The parties and the judge proceeded on the basis that accurate fact-finding was necessary for a fair determination of thepermanent custody and access regime that was in the best interests of the children.

They agreed that the admissibility of the seriousallegations of child sexual abuse made by the children to police against the petitioner could only be properly addressed by a strictapplication of the hearsay rule and the principled exception to it.

In my view, this was the correct path to follow (see M (LE) v M (PE),1996 CarswellAlta 253 at para 4 (CA), leave to appeal to SCC refused [1996] SCCA No 237). [44] In terms of procedure, the admissibility of hearsay evidence of child sexual abuse, in the context of permanent custodyand access determinations, requires the holding of a voir dire, where the party seeking to rely on the hearsay evidence must demonstrateon the balance of probabilities that the requirements of a categorical exception or the principled exception to the hearsay rule are met.

Identifying the context of the proceeding, here involving a permanent determination of custody and access, is important to a trial judge’sapplication of the principled exception to the hearsay rule to the given circumstances.

Also important to bear in mind is that the conceptsof “necessity” and “reliability” are not separate thresholds but, rather, work together and should be considered with a degree of flexibilityto the relevant circumstances and the particular hearsay danger arising before the Court (see Fawley et al v Moslenko, 2017 MBCA 47 atpara 99). [45] What is of overriding importance in such cases is that judges hearing a trial of custody and access fulfil their gatekeeperrole and resist the temptation to take a shortcut and admit child sexual abuse hearsay for the purposes of its truth, without proper scrutiny

of its admissibility under common-law rules, on the premise that it can be dealt with as a question of weight at a later date in proceedings. Such an abdication of a trial judge’s gatekeeper role, in a determination of permanent custody and access, is an error in principle.

Standard of Review [46] If a trial judge’s decision on the admissibility of hearsay evidence is informed by the correct legal principles, it isentitled to deference on appeal absent demonstration of palpable and overriding error (see Blackman at para 36; R v Korski (CT), 2009MBCA 37 at para 36; R v Woodard, 2009 MBCA 42 at para 45; and R v Youvarajah, 2013 SCC 41 at para 31). Alleged Errors of the Judge [47] The respondent argues that the judge’s determination as to the admissibility of the children’s video-recorded statementsto police was flawed for two reasons.

She says the judge erred in principle by not watching the videos during the voir dire. She alsosubmits that the record cannot reasonably support the judge’s finding, on the issue of threshold reliability, that the children may havebeen coached by the respondent to make up the claims against the petitioner. Analysis Failure to Watch the Video-Recorded Statements [48] The conduct of a voir dire on the admissibility of hearsay evidence is a matter of a trial judge’s discretion.

As long asthe procedure followed allows for “a full canvassing of the relevant issues”, there is no mandatory requirement regarding what evidencemust be called and considered (R v Ranger (2003), (ON CA), 178 CCC (3d) 375 at para 185 (Ont CA)). A trialjudge can conduct the voir dire on the basis of viva voce or real evidence, transcripts of previous proceedings, counsel’s statements ofproposed evidence or a combination of the foregoing.

While the contents of a hearsay statement can be used to determine its reliability toestablish what was said, the contents cannot be assumed to be true (see R v Czibulka (2004), (ON CA), 189 CCC(3d) 199 at paras 30-31 (Ont CA), leave to appeal to SCC refused 2005 CarswellOnt 2041). [49] In R v Bradshaw, 2017 SCC 35, the Supreme Court of Canada explained that a party seeking to rely on hearsayevidence can prove threshold reliability either by establishing “that (1) there are adequate substitutes for testing truth and accuracy(procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy(substantive reliability)” (at para 27). [50] This was a case about substantive reliability.

The statements could not meet the requirements of procedural reliability(see Bradshaw at para 28). The video-recorded statements in question were not taken under oath and the children were not available forcross-examination given the emotional trauma they would suffer. [51] The judge was faced with an objection from the petitioner that viewing the video-recorded statements would serve nopurpose related to deciding the question of substantive reliability in the circumstances. The judge agreed.

She stated “[t]here’s nothingthe video can add” to the record before her. [52] In my view, the record before the judge was more than satisfactory for a full canvassing of the relevant issues relatingto threshold reliability. The children’s demeanour in giving the video-recorded statements was not particularly relevant as there wereseveral professional witnesses the judge heard from who were able to testify to the children’s demeanour when discussing the childsexual abuse allegations, as well as their overall behaviour, intelligence and personality.

The judge also heard viva voce evidence as tothe nature of the children’s disclosures of alleged sexual abuse at different times to different professionals. The respondent failed toarticulate any reason why it was necessary, in the circumstances, for the judge to watch the videos, in light of the significant recordbefore her, in order to make a determination on substantive reliability. I have not been persuaded that the judge erred in principle in herexercise of discretion as to how to conduct the hearsay voir dire.

Reasonableness of Judge’s Finding on Threshold Reliability [53] In Bradshaw, Karakatsanis J explained that, when a party seeks to admit a hearsay statement because it is inherentlytrustworthy and, thus, substantively reliable, the inquiry for a trial judge is “whether the circumstances, and any corroborative evidence,provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy” (at para40). [54] The approach a trial judge is to take on the substantive reliability inquiry was summarized this way in Bradshaw (atpara 57): 1.

Identify the material aspects of the hearsay statement that are tendered for their truth. 2. Identify the specific hearsay dangers raised by those aspects of [the] statement in the particular circumstances of the case. 3. Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement. 4.

Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternativeexplanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of,the material aspects of the statement. [55] In her reasons, the judge correctly determined that the hearsay evidence was presumptively inadmissible and therespondent bore the onus of proof. She also differentiated between the concepts of threshold reliability and ultimate reliability, and thather task on the voir dire was to decide only the former.

One of the cases that the judge quoted in her analysis was R v Khan, (SCC), [1990] 2 SCR 531, where McLachlin J (as she then was) set out a non-exhaustive list of relevant factors for

ascertaining the reliability of a hearsay statement by a child declarant as follows (at p 547): (

i) timing; (ii) demeanour; (iii) the personality of the child; (iv) the intelligence and understanding of the child; and (

v) the absence of any reason to expect fabrication in the statement. See also David M Paciocco & Lee Stuesser, The Law of Evidence, 7th ed (Toronto: Irwin Law, 2015) at 136. [56] The hearsay danger identified by the judge was that serious allegations that were material to the determination ofpermanent custody of and access to the children were not going to be tested by cross-examination if the hearsay evidence was admitted.

She explained the alternative explanation for the children’s statements to police this way: All of the cases talk about threshold reliability requiring that the court find that the children were not coached or manipulated intomaking the statements so that there’s a clear threshold that there was no motive to lie, that they were made under circumstances thatwould give those circumstantial guarantees of trustworthiness.

See R v JFM, [2013] MJ No 5 at para 93 (QB). [57] When the record is carefully considered, there are several features of the case that favoured the admissibility of thevideo-recorded statements that were considered by the judge in her reasons. There was no issue of the accuracy of the hearsay evidenceas the children’s statements to police were video-recorded. In this case, there was also more than just the fact that the statements werevideo-recorded (see Khelawon at para 106).

The statements were taken by a highly trained child abuse investigator who followed thecorrect interview protocols: the statements were taken in a safe location and under appropriate conditions; the investigator explained andmade sure the children understood the difference between lies and the truth before taking each statement; and the investigator did notelicit answers by leading questions. [58] There was no forensic or medical evidence to corroborate the trustworthiness of the children’s allegations of sexualabuse.

In my view, this was a neutral factor in the circumstances of this case, given the nature of the alleged sexual abuse, and the judgeappropriately did not rest her decision on this point. [59] While a trial judge can rely on confirmatory evidence that goes to “the truthfulness or accuracy of the material aspectsof the hearsay statement” (Bradshaw at para 45; see also Khan at pp 534, 548; and R v P(J) (1992), (QC CA), 74CCC (3d) 276 at 281 (Qc CA), aff’d (SCC), [1993] 1 SCR 469), the absence of confirmatory evidence is not a reason,by itself, for there necessarily to be a concern about threshold reliability in the situation of an allegation of child sexual abuse.

Childsexual abuse is often committed in a private setting and the nature of the alleged inappropriate touching or conduct, as is the case here,may not result in physical or other confirmatory evidence (see FH v McDougall, 2008 SCC 53 at para 80). The law does not assume thata child’s evidence is inherently unreliable and must automatically be treated with suspicion unless independently confirmed (see R v W(R), (SCC), [1992] 2 SCR 122 at 132; and FH at para 81). Equally, the law does not accept the idea that “children don’tlie” about sexual abuse (Miazga v Kvello Estate, 2009 SCC 51 at para 17).

At the end of the day, the significance of the presence orabsence of confirmatory evidence will depend on the particular circumstances (see W (

R) at pp 132-33). [60] What is of paramount importance here is that the record reasonably supported the alternative explanation for thechildren’s disclosures, being that they were coached by the respondent as part of her parental alienation efforts. As Major J explained inhis discussion of the principle of reliability in R (D), “statements will be inadmissible where the hearsay evidence is equally consistentwith other hypotheses” (at p 310). [61] The respondent is correct in her submission that there was no direct evidence of coaching by her.

Also accurate is thefact that the police were not satisfied there was sufficient evidence to charge her criminally with public mischief over her allegedmanipulation of the children against the petitioner. The alternative explanation to the truth of the children’s allegations, that they werecoached by the respondent to make up the allegations, required an inference to be drawn.

In my view, the record reasonably supporteddrawing such an inference on the relevant standard, the balance of probabilities. [62] All of the professional witnesses, who had considerable contact with children, observed no indicia of sexual abuse intheir behaviour. As previously stated, Ms Grusko came to the conclusion, from her extensive interaction with the children and theparties, that the respondent was exposing the children to “emotional manipulation and abuse”. The timing of the disclosures by thechildren also was relevant to the judge’s finding of coaching.

All of the disclosures occurred well after the alleged abuse and coincidedneatly with determinations of custody and access in the parties’ divorce proceedings. Each time a ruling was made in court as to thepetitioner having either access or custody, an allegation of sexually inappropriate behaviour followed.

While there are similaritiesbetween the statements of the two children as to the nature of the alleged sexual abuse, that fact does not assist in establishing reliabilitybecause, as the trial judge found, there was significant evidence in this case of improper influence by the respondent (see R v U (FJ), (SCC), [1995] 3 SCR 764 at para 40). [63] The possibility of fabrication of the children’s statements due to improper influence by the respondent is well supportedby her behaviour during divorce proceedings. She was dishonest with authorities about the conduct of the petitioner.

She also attemptedto manipulate Ms Sullivan in her assessment process by contacting witnesses with a bias against the petitioner to come forward as badcharacter witnesses to speak to Ms Sullivan. The information provided was irrelevant to the petitioner’s current parenting abilities; this

deliberate effort at sabotage was clearly intended as an attempt to cast him in a negative light. The respondent was also prepared to go so far as to make false allegations against the independent court-appointed family assessor, Ms Grusko. It is abundantly clear from the record that the respondent has a deep animus towards the petitioner and does not want him to have any contact with the children.

Taken as a whole, in my view, the record allowed for the judge to draw the inference that the respondent coached the children to make up allegations against the petitioner as part of her campaign of parental alienation. [ 64 ] As Bradshaw explains , establishing substantive reliability of a hearsay statement in the face of an alternative explanation is not a simple matter. The fact that the declarants in this case are children does not lower the requirements for admissibility of hearsay allegations of child sexual abuse under the principled exception to the hearsay rule ( see Khan at p 548).

Ultimately, the hearsay statement must be so reliable that contemporaneous cross-examination of the declarant would add little to the trial process ( see Bradshaw at para 40 ). [ 65 ] In my view, the judge took the required “functional approach” in deciding the question of threshold reliability by looking at the dangers of the proposed hearsay evidence and seeing if the circumstances relied upon by the respondent adequately addressed the risk of admitting the hearsay evidence ( Khelawon at para 93 ).

The concerns as to threshold reliability that the judge articulated in her reasons were based on the application of the correct principles, have an evidentiary basis and are therefore entitled to deference on appeal. Custody and Access [ 66 ] Resolving allegations of alleged sexual abuse against children in the context of domestic proceedings is one of the most difficult problems in family law (see Nicholas Bala & John Schuman, “Allegations of Sexual Abuse When Parents Have Separated” (1999), 17 Can Fam LQ 191).

Over the course of the 18-day trial, the judge heard significant evidence as to the circumstances of the children, the parties, the allegations of child sexual abuse, and what custody and access regime was in the best interests of MRG and JDG.

The judge gave thorough reasons for her findings of credibility of the witnesses, her determination that the respondent was engaging in a destructive course of parental alienation against the petitioner, and what custody and access arrangement was in the best interests of MRG and JDG. [ 67 ] In my view, the judge’s findings that the children’s best interests required an order of primary care and control to the petitioner with supervised access to the respondent were reasonably open to her on the record.

I have not been persuaded that the judge made a material error, seriously misapprehended the evidence or erred in law to allow this Court to overturn the custody order that was made (see Van de Perre v Edwards , 2001 SCC 60 at para 15 ; and Delichte v Rogers , 2011 MBCA 50 at para 18 ). Spousal Support [ 68 ] The background to the appeal of the spousal support order is as follows. The yearly income of the petitioner based on income tax records at the time of trial was $179,752.66. The judge imputed yearly income of $30,000 on a go-forward basis to the respondent for the purposes of calculating spousal support.

The pleadings state that the parties cohabitated for eight years. The respondent’s argument that the length of cohabitation was actually nine years is without merit as she failed to prove that fact. With reference to the Spousal Support Advisory Guidelines (the SSAG), the judge ordered that the petitioner pay the respondent spousal support of $1,600 per month to be reduced to $1,200 per month when the children are returned to him from foster care.

The judge set a review date for spousal support of August 5, 2018 (five years after the separation). [ 69 ] The respondent submits that the judge erred in imputing income to her and that the amount of spousal support ordered is inadequate based on the compensatory and non-compensatory aspects of her entitlement.

I have not been persuaded that there is a reason to disturb the spousal support order given the “considerable deference” that is owed to it on appeal ( see Horch v Horch , 2017 MBCA 97 at para 50 ). [ 70 ] In the exercise of her discretion to impute income to the respondent, the judge looked at: the respondent’s desire to not look for a job until the family litigation is over; the past earnings of the respondent according to her income tax records; the period she was out of the workforce during the marriage (four years); her lack of childcare responsibilities going forward; her skills, employment history and career options; her operation of two different part-time businesses since the separation; and the fact she had received almost three years of generous spousal support to transition to economic self-sufficiency.

The judge’s finding that the respondent “does not need to [be] retrain[ed] to become employable” (at para 25) is reasonably supported by the record. She is a healthy mature woman with considerable business acumen.

In my view, the judge’s decision to impute income to the respondent on a go-forward basis and the quantum imputed had an evidentiary basis on the record and was reasonable given the respondent’s personal circumstances ( see Linn v Frank , 2014 SKCA 87 at paras 91-96 ). [ 71 ] In terms of the quantum of spousal support ordered, the judge turned her mind to the relevant factors and objectives set out in sections 15.2(4) and 15.2(6) of the Divorce Act in light of the circumstances of the parties’ marriage and separation.

She used the correct formulas under the SSAG to determine spousal support for the period when the petitioner would be without custody of the children while they were in foster care and for the period when they would be in his custody.

In her view, it was not proportionate to set a termination date for spousal support because of the uncertainties in the case as to the respondent becoming economically self-sufficient and when the children will be returned to the petitioner from foster care. [ 72 ] When the SSAG are considered, the amount and duration of spousal support ordered here does not signal possible unreasonableness ( see Aquila v Aquila , 2016 MBCA 33 at para 90 ). The amount ordered is in the middle of the respective ranges under the SSAG, depending on whether the petitioner has custody of the children.

The respondent’s argument that, if spousal support is primarily on a compensatory basis, a judge should always order the high end of the SSAG range, is unpersuasive; each case turns on the exercise of discretion in the circumstances in light of the factors and objectives set out in the Divorce Act ( see Aquila at para 44 ). For the length of their period of cohabitation, the SSAG suggest spousal support of between four and eight years. By the time of the review date in 2018, the respondent will have received approximately five years of spousal support.

When the judge’s reasons are viewed in light of the record and the parties’ submissions, I am satisfied that she made the required “qualitative assessment as to equitable sharing of the

economic consequences of the marriage and its breakdown, as well as the means and needs of the parties” ( Aquila at para 49 ). Contempt [ 73 ] A finding of civil contempt requires proof beyond a reasonable doubt of an intentional act or omission that is in breach of a clear and unequivocal court order of which the alleged contemnor had knowledge ( see Carey v Laiken , 2015 SCC 17 at paras 32-36 ). A court’s contempt power is a matter of discretion to be used sparingly and only as a last resort to address matters that are not trifling.

As my colleague, Hamilton JA, explained in Campbell v Campbell , 2011 MBCA 61 , the power of contempt should be exercised with “restraint and caution” (at para 32); particularly in the context of family law disputes.

If a judge’s contempt decision as to either liability or penalty is informed by the correct principles, it is entitled to a high degree of deference on appeal (see 1984 Enterprises Inc v Strider Resources Ltd et al , 2013 MBCA 100 at para 27 ; and Fresno Pacific University Foundation v Grabski et al , 2015 MBCA 70 at paras 11- 12 ). [ 74 ] The judge’s finding that the respondent was in contempt of two orders during divorce proceedings by having the petitioner followed from place to place and by failing to vacate her residence to facilitate the transition of custody is well supported by the record.

The respondent’s argument that she has been treated unfairly because she was held in contempt, but the petitioner was not despite his lawyer hiring a private investigator to watch her residence, is an invitation to this Court to revisit the judge’s exercise of discretion. There are two problems with that submission. [ 75 ] First, the petitioner was not in contempt of any court order on the record. The court order stated his obligation was to not follow the respondent from “place to place”.

The evidence of the private investigator was that she was hired by counsel only to watch the respondent’s residence to ensure she vacated it in accordance with the variation order reversing custody of the children. She did not follow the respondent from her residence to another location. [ 76 ] Second, while persistent or spiteful conduct is not required for a finding of contempt, where it does exist, it will be difficult for a contemnor to argue on appeal that the judge’s exercise of his or her contempt discretion resulted in an injustice.

When the judge’s contempt findings are looked at in the context of the divorce proceedings as a whole, it is clear on the record that the respondent’s contemptuous conduct was serious and was part of a deliberate ongoing strategy to attempt to ensure that the petitioner never had contact with the children despite what professionals and the Court determined was in the children’s best interests.

I see no basis to set aside the judge’s findings of contempt. [ 77 ] I also have not been persuaded that the penalties imposed were arrived at by an error in principle or are harsh and excessive for a first-time contemnor such as the respondent. The judge found the nature of the respondent’s contempt to be “at the serious end of the spectrum” (at para 52). I agree. In particular, her intransigence on vacating her residence to facilitate the transition of custody caused emotional trauma to the children.

The ultimate consequence of her scorched-earth stratagem was that the children had to be apprehended from the respondent by child welfare officials for their protection. The respondent expressed no regret for her actions and the damage they have caused, and will continue to cause, to her children. [ 78 ] The order against a contemnor to pay costs to the other party and/or be imprisoned are sanctions available to a judge by virtue of QB r 60.10(5).

The $5,000 order of costs and the suspended period of imprisonment of 45 days, provided the respondent obeys all terms of all orders made in these proceedings, were proportional in the circumstances to the seriousness of the contempt and the respondent’s overall conduct when viewed in the context of the entire divorce proceedings. Costs Order and Setoff of Spousal Support [ 79 ] In addition to the costs related to the finding of contempt, the judge ordered elevated tariff costs of $25,000 in favour of the petitioner for a total costs order rounded down to $95,000.

Based on the principle of proportionality, now codified in QB r 70.02.1(2), the judge decided that a just and proportionate result in this case would be to set off all of the costs payable by the respondent against the spousal support payable by the petitioner at the rate of $800 per month. The judge ordered that the setoff was to begin approximately one month after the date her judgment was delivered. [ 80 ] The standard of review as to an order of costs was summarized this way in Horch (at para 146 ): “An order as to costs will not be lightly interfered with on appeal.

It can only be set aside if it was arrived at by an error in principle or it is plainly wrong”. [ 81 ] In her reasons, the judge considered the relevant principles as to costs set out in QB r 57.01(1). She rejected the petitioner’s request for solicitor-client costs because of the limited means of the respondent although such an order was available on the record. The lengthy trial was preceded by 14 case management conferences because of the failure of the respondent to take a realistic approach to her case.

The respondent rejected the petitioner’s reasonable offer of shared care and control of the children which was open to her until her behaviour became so detrimental to the children that child welfare officials stepped in to apprehend them. Also, her conduct at the trial was unreasonable; at times, the decorum of the trial broke down because of her behaviour. She constantly interrupted witnesses and the judge despite being represented by counsel and being warned repeatedly not to do so. At times, she refused to attend court during the trial without explanation.

She instructed her counsel to proceed by trial by ambush: agreements were made and then abandoned on a whim; her witness list was a living and ever-changing document. [ 82 ] It is entirely appropriate for judges to exercise their discretion as to costs against a party who unnecessarily adds to the complexity and length of proceedings ( see Horch at para 150 ).

In my view, the judge’s order as to elevated costs is entitled to deference in this case. [ 83 ] I also see no error by the judge deciding it was proportional in the circumstances to set off the petitioner’s spousal support obligation against the respondent’s costs obligation.

The concern I have is to the reasonableness of an immediate setoff in a situation where a party has not yet had a reasonable opportunity to take steps towards economic self-sufficiency. [ 84 ] I agree with the petitioner that a setoff of a spousal support obligation against the obligation of the other spouse to pay costs is a tool available to judges to ensure proportionality ( see Bourque v Bourque , 2004 NBCA 60 at para 21 ; Serra v Serra , 2009

ONCA 395 at para 14 ; Jamieson v Loureiro , 2010 BCCA 52 at para 62 ; and Letourneau v Letourneau , 2014 ABCA 156 at para 15 ). [ 85 ] The difficulty here is that an immediate setoff of costs against spousal support would (until the children are returned to petitioner) leave the respondent with only $800 per month to live off and become economically self-sufficient.

It is well accepted from the record that the setoff order will not satisfy in full the $100,000 debt for costs that the respondent owes the petitioner; what will satisfy that debt is the respondent becoming economically self-sufficient as quickly as possible. Failure to provide any transition period for a party who is of limited financial means or has no regular employment is an error in principle and defeats one of the objectives of a spousal support order under the Divorce Act , promoting economic self-sufficiency within a reasonable period of time (see section 15(6) (d)).

The current situation simply does not give the respondent enough income to move on financially with her life which is in the interests of the parties, their children and society. [ 86 ] Accordingly, I would vary the judge’s order so that there will be no setoff of the petitioner’s spousal support obligation (either $1,600 or $1,200 depending on whether he has custody of the children) by $800 per month against the respondent’s costs obligation for a period of six months beginning the 1st of the month following the release of this decision, to provide for a reasonable transition period given the circumstances of the respondent.

Disposition [ 87 ] Subject to the adjustment of the judge’s setoff order of costs against the petitioner’s spousal support obligation in accordance with my reasons, I would dismiss the respondent’s appeal with costs in favour of the petitioner on a Tariff C basis. JA I agree: JA I agree: JA