Harris v. Harris/Lehto, 2008 ONCA 743
CITATION: Harris v. Harris/Lehto, 2008 ONCA 743
DATE: 20081029
DOCKET: C45593
COURT OF APPEAL FOR ONTARIO
MacPherson, Cronk and Rouleau JJ.A.
BETWEEN
Walter Harris
Appellant
and
Shauna Harris/Lehto
Respondent
Walter Harris, acting in person
K. Kavassalis, for the respondent Office of the Children’s Lawyer
H. Florentis, for the respondent Shauna Harris/Lehto
Heard & released orally: October 24, 2008
On appeal from the judgment of Justice Gauthier of the Superior Court of Justice, dated March 13, 2006, and reported at 2006 CanLII 9141 (ON S.C.).
ENDORSEMENT
[1] In this appeal, the appellant father seeks to set aside the trial judgment, which awarded, among other relief, sole custody of the children to the respondent mother, and further awarded the respondent mother child support in the amount of $300 per month, based on an imputed annual income to the appellant of $20,000. The appellant also seeks various additional relief, which includes costs and an order for a new trial.
[2] The principal grounds of appeal are that:
the fairness of the trial was undermined by procedural defects both before and during the trial; and
the trial judge had a conflict of interest and was biased against the appellant.
Fairness
[3] The appellant argues that he could not receive a fair trial in Sudbury, for the following reasons: he had been before the court roughly 40 times on this matter before commencing the trial; he had reported three Sudbury lawyers to the Law Society; no lawyer in Sudbury was willing to represent him; and, he had only recently been approved for legal aid and had not yet had the opportunity to retain a lawyer. The appellant further argues that he was rushed to trial despite being overwhelmed by stress, having received the trial record only 15 minutes before trial, and not having been provided with either a witness list or an opportunity to discover the named witnesses prior to trial.
[4] We would not give effect to this ground of appeal. This proceeding was commenced in 2002 and, as reflected by the great many court appearances, was quite difficult. The appellant had ample opportunity to retain a lawyer, and nothing in the record suggests that the court in Sudbury would not give the appellant a fair hearing. Further, it is apparent that, at the outset of trial, the appellant was well aware of the case he had to meet, albeit without representation by a lawyer. The trial record, although only served the day before trial, contained only documents that were already in the appellant’s possession. In any event, while the trial commenced on October 17, 2005, it was adjourned on several occasions due to the appellant’s unavailability or illness, and to allow for settlement discussions. As a result, the trial was not completed before March 7, 2006. Over those 4½ months, the appellant had sufficient time to retain a lawyer and to respond to the documents and information that he alleged were only disclosed to him on the eve of trial.
Allegation of bias
[5] The appellant argues that the trial judge had a conflict of interest and was biased against the appellant, which undermined the fairness of the trial or, at the very least, the appearance thereof. We do not agree. From our review of the record, there was no conflict of interest, nor was there an appearance of unfairness or partiality on the part of the trial judge, let alone a bias, against the appellant. The trial judge’s interventions and overall management of the trial demonstrated patience throughout and a genuine concern to reach the correct result for the parties, as well as for their children, and did not constitute misconduct nor disclose any bias or partiality. The defendant was in no way deprived of a fair hearing.
[6] For these reasons, the appeal is dismissed with costs to the respondent Shauna Harris/Lehto in the amount of $4,000, inclusive of GST and disbursements.
“J.C. MacPherson J.A.”
“E.A. Cronk J.A.”
“Paul Rouleau J.A.”