



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Koningen, 2019 ONCA 391

DATE: 20190513

DOCKET: C56707

Feldman, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Karen Koningen

Appellant

Travis Hughes, for the appellant

Sean Horgan, for the respondent

Heard: May 3, 2019

On appeal from the conviction imposed on November 29,
    2012 by Justice Gregory A. Pockele of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from a conviction for fraud exceeding $5000,
    contrary to s. 380(1)(a) of the
Criminal Code
, arising out of
    misrepresentations related to receipt of social benefits from the Ontario Works
    program.

[2]

A benefits recipient has a continuing obligation to report any changes
    in income, assets, or living circumstances immediately. The significance of a
    benefits recipient failing to fulfil this obligation is that Ontario Works is
    thereby deprived of the information it needs to assess continued entitlement to
    benefits.

[3]

The appellant initially qualified for benefits in October 2007 while
    living in rented accommodation on South Street in London, Ontario with her two
    children. When the appellant first qualified for Ontario Works benefits, she
    was assessed as a sole-support parent of two children, with no income. She
    provided requisite details of her living arrangements and rent. She signed and
    initialed documents explaining her obligation to advise of any change to her
    status. There is no dispute that the appellants initial statements to Ontario
    Works about her living circumstances were accurate when they were made. The
    main issue at trial was whether there were significant changes in the
    appellants living circumstances that she failed to report.

[4]

In July 2008, the appellant moved with her children to a rented home on
    Paperbirch Crescent in London. She notified Ontario Works as required, and
    submitted a copy of her Tenancy Agreement signed in June 2008. The Tenancy
    Agreement indicated that she was renting the upper portion of the residence for
    $700 per month. She requested payment for first and last months rent. Lisa
    Dalla Costa, a case worker for the City of London, called the person identified
    in the Tenancy Agreement as the landlord  James Weedmark  to verify the
    information provided. She had already determined that he was not the owner of
    the property. He advised her that he was in fact renting the residence and
    lived in the basement with his children. The only concern Ms. Dalla Costa had
    at that time was that an Ontario Works recipient is not entitled to
    reimbursement for last months rent in advance when subletting, and she advised
    the appellant of that. There was no concern at that time that there had been
    any changes to the appellants benefit unit  the appellant and her two
    children.

[5]

In September 2009, the appellant moved again, to an address on
    Sunningdale Road. This time she did not advise Ontario Works, which continued
    her benefits on the basis of the rent payable under the June 2008 Tenancy
    Agreement from the Paperbirch residence.

[6]

In December 2009, Ontario Works received an anonymous complaint that the
    appellant had undisclosed income and had moved without informing Ontario Works.
    Ontario Works began an investigation and placed a hold on the appellants
    benefit payments.

[7]

Ontario Works was not able to substantiate the claim of undisclosed
    income. However, when the Ontario Works eligibility review officer, Barbara
    Bourne, contacted the registered owner of the Paperbirch residence, she was informed
    that the appellant had moved to a residence on Sunningdale Road with Mr.
    Weedmark, who was characterized by the owner as the appellants spouse. A
    subsequent conversation with the landlord at Sunningdale revealed that the
    Sunningdale landlord also understood the appellant and Mr. Weedmark to be
    living as spouses.

[8]

At that point, Ontario Works had two concerns: (1) the appellant had not
    disclosed a change in residence (including the quantum of rent payable at the
    new residence), and (2) the appellants benefit unit had potentially changed
    such that she was no longer a sole-support parent. Both of these changes could
    potentially impact her entitlement to receive benefits, or at least the quantum
    of that entitlement. Based on information from the owner of the Paperbirch
    residence that the house had been rented out as a single dwelling, and
    information from the owners of both Paperbirch and Sunningdale that they
    understood the appellant and Mr. Weedmark to be spouses, Ontario Works
    suspected that the appellant and Mr. Weedmark had been living with their
    respective children as a single family unit. It concluded that the June 2008
    Tenancy Agreement that indicated that the appellant was renting accommodation
    from Mr. Weedmark and living upstairs with her two children and no one else,
    was a deception.

[9]

From the perspective of Ontario Works, the significance of the apparent
    deception was that it was prevented from making inquiries about Mr. Weedmarks
    income to determine whether the appellant now had more resources at her
    disposal than previously. It was possible that Mr. Weedmark had little or no
    income, and that cohabitation would not impact on the appellants benefits. But
    Ontario Works was prevented from determining the true state of affairs, and
    whether the appellants benefit entitlement should be reduced.

[10]

In
    January 2010, Ontario Works mailed the appellant a notice requiring her to
    attend a meeting to address their concerns. She did not attend. Ontario Works
    rescheduled the meeting for February. Again, she did not attend. She was sent a
    notice of overpayment of approximately $14,000 comprising of the funds she had
    been paid under Ontario Works since July 2008. The notice also explained how to
    appeal that determination. She did not appeal, and her file was closed on the
    basis of her failure to make any contact with Ontario Works.

[11]

The
    appellant did not testify at trial, but a video statement made to police was
    tendered. That exhibit has been lost. On agreement of the parties, a summary of
    her statement was provided on appeal. The summary indicates she knew that she
    was obligated to advise Ontario Works of any changes in her circumstances. She
    advised that the monthly rent she actually paid to Mr. Weedmark at Paperbirch
    had been variable and was sometimes less than $700. (She did not state whether
    the monthly rent of $700 was nevertheless owed by her to Mr. Weedmark, whether
    she had in fact paid him or not.) She stated that her rent increased after
    moving to Sunningdale. She denied that she and Mr. Weedmark were spouses at
    Paperbirch, but acknowledged they became engaged on December 31, 2009, some
    four months after moving to Sunningdale. She maintained that she did not have
    any spousal relationship with Mr. Weedmark prior to the suspension of her
    benefits at the end of December.

[12]

She
    stated that in January 2010, she was advised by the Paperbirch owner that
    Ontario Works had called about her. At that point, she stated, she contacted
    Ontario Works through Ms. Bourne, and provided her with information, including
    particulars of the Sunningdale lease.

[13]

The
    trial judge did not find the appellant credible. He rejected her evidence that
    she contacted Ms. Bourne in January 2010. Nevertheless, he was not prepared to
    find that the appellant and Mr. Weedmark had been living as spouses at any
    relevant time. The trial judge held that this question was immaterial to
    whether the appellant had deceived Ontario Works as to changes to her living
    circumstances that she had an obligation to disclose.

[14]

No
    evidence was tendered that could enable the court to determine whether the loss
    was less than the full amount received from July 2008 forward. That is, there
    were no calculations from Ontario Works to determine what the appellants
    entitlement (if any) would have been had she been cohabitating with Mr.
    Weedmark at Paperbirch or Sunningdale or both. Calculations could not be done
    because there was no evidence at trial of Mr. Weedmarks income.

[15]

The
    trial judge entered a conviction for fraud over $5,000. At sentencing, the
    trial judge acknowledged that had the appellant undergone a reassessment with
    Ontario Works, it might have turned out that she would have been eligible for
    some amount of benefits even if she had been cohabitating with Mr. Weedmark.
    But she did not seek a reassessment, and the trial judge concluded that her
    lack of cooperation should not be rewarded.

Analysis

[16]

The
    trial judge committed two errors that necessitate allowing the appeal. First,
    the trial judge failed to make a clear finding as to whether the appellant was
    co-habitating with Mr. Weedmark. Second, the trial judge misapprehended the
    evidence with respect to the June 2008 tenancy agreement, which may have
    impacted his assessment of the appellants credibility.

(1)

Co-habitation

[17]

The
    trial judge was correct in stating that the question of whether the appellant
    and Mr. Weedmark were spouses was not dispositive. The salient issue is whether
    the appellant was in a shared living arrangement with Mr. Weedmark, whether as
    spouse or otherwise, at Paperbirch or Sunningdale or both, prior to January
    2010. The trial judge did not make a clear finding on this question. The
    appellant insisted that the information in the June 2008 Tenancy Agreement was
    accurate, and that she lived separately from Mr. Weedmark at Paperbirch. The
    trial judge made no findings as to what the living arrangements were at
    Paperbirch. In fact, the only evidence at trial that was contrary to the
    appellants position was the landlords testimony that the Paperbirch residence
    was configured as a single family dwelling and he believed it was used as such.
    Although the trial judge found that the appellant and Mr. Weedmark were
    sharing a residence at Paperbirch, this finding is ambiguous between
    co-habitation (which would have to be disclosed to Ontario Works) and subletting
    a portion of the residence (which is what was disclosed to Ontario Works). In
    the absence of an express finding that there was co-habitation, it was not open
    to the trial judge to draw the inference that the June 2008 Tenancy Agreement
    did not represent the actual state of affairs, or that the appellant intended
    thereby to deceive Ontario Works.

(2)

Misapprehension of evidence

[18]

Furthermore,
    the trial judge misapprehended the evidence in finding that the appellant was a
    party to the lease between the owner of the Paperbirch residence and Mr.
    Weedmark. Although the appellant is listed in the lease under the category of
    tenants/occupants/children, together with her children, she is not a
    signatory to the lease. Mr. Weedmark is the only signatory to that lease. This
    misapprehension appears to have contributed to the trial judges conclusion
    that the June 2008 Tenancy Agreement was not
bona fide
, which in turn
    was stated as a reason not to accept the appellants evidence that she had
    advised Ontario Works of her move to Sunningdale.

[19]

With
    respect to Sunningdale, although the trial judge stated that he accepted the
    appellants statement that she was co-residing with Mr. Weedmark, it appears
    from the record before us that the appellant did not concede that they had
    co-habitated prior to January 2010. She did concede that she and Mr. Weedmark
    co-habitated at Sunningdale
after
January 2010, which is the period
    after her benefits were suspended. There was therefore no admission of
    co-habitation (as opposed to occupying different parts of the same residence)
    prior to that time, and the trial judge misapprehended this evidence in coming
    to this finding.

[20]

This
    misapprehension of the evidence figures prominently in the verdict as it lies
    at the core of the trial judges reasons for why he rejected the appellants
    credibility. This trial largely turned on that credibility assessment.
    Accordingly, it played a central part in the trial judges reasoning process
    resulting in the conviction appealed from:
R. v. Morrissey
, (1995) 22
    O.R. (3d) 514,

at para. 93 (C.A.).

DISPOSITION

[21]

The appeal is allowed, the conviction set aside, and a
    new trial is ordered.

K. Feldman J.A.

B.W. Miller J.A.

Fairburn J.A.


