COURT OF APPEAL FOR ONTARIO
MacPherson, Pardu and Huscroft JJ.A.
BETWEEN
Janet Lee Neufeld
Applicant (Respondent)
and
Wilmer Jack Neufeld
Respondent (Appellant)
Donna Wowk, for the appellant
Bryan Smith, for the respondent
Heard: In writing
On appeal from the judgment of Justice R.A. Lococo of the Superior Court of Justice, dated February 27, 2019, with reasons reported at 2019 ONSC 1277.
REASONS FOR DECISION
1The appellant Wilmer Neufeld (“Wilmer” or “the appellant”) and the respondent Janet Neufeld (“Janet” or “the respondent”) were married on June 12, 1993. It was the second marriage for Wilmer and the first for Janet.
2Wilmer had two daughters from his first marriage, Sarah and Ashley. They lived with their mother and had regular access visits with Wilmer.
3Janet and Wilmer had two children together: William (“Billy”), born in 1995, and Bridgette, born in 1996.
4Throughout their marriage, Janet and Wilmer lived in a dwelling on McNab Road in Niagara-on-the-Lake. Wilmer was a substantial and successful farmer. Wilmer and Janet together were shareholders of Neufeld Farms. Janet did not work outside the home after Billy was born in 1995.
5In November 2014, Janet brought an application for divorce and ancillary relief that included the division of property and spousal support. A divorce decree was granted, effective in April 2016.
6In order to calculate the amount required for equalization of net family property, it is necessary to determine the valuation date, the date on which the parties separated with no reasonable prospect of resuming cohabitation. There is a huge difference between the parties on this issue. Wilmer says that the separation occurred around June 2000 when Janet moved into separate quarters (an apartment-style unit attached to the main house) where she has lived ever since. Janet’s position is that the separation occurred on about July 2014, four months before she commenced the divorce application.
7In the divorce proceedings, a case conference judge ordered the trial of an issue to determine the date of separation on a final basis. During the summer of 2018, Lococo J. presided over this trial which lasted 19 days. After an extensive review of the evidence and many relevant case authorities, the trial judge concluded:
[76] I have also concluded that Janet has established that the parties separated in July 2014, as she contended. Janet considered the triggering event to be her confrontation with Wilmer on July 20, 2014, following his angry reprimand of Brigitte for turning off his alarm clock. In my view, the real significance of those events was that Janet resulting decision [sic] to retain a lawyer to commence divorce proceedings, which she did after returning to the McNab residence a few days later. I consider the fact that she retained a lawyer for this purpose to be an objective indication of her intention to live separate and apart from Wilmer. I therefore find that the parties’ date of separation was July 31, 2014.
I am also satisfied on the evidence that there was no reasonable prospect of reconciliation between the parties as of that time.
8The appellant appeals from the trial judge’s decision on three grounds.
9First, the appellant contends that the trial judge failed to sufficiently address the credibility and reliability of the parties and other witnesses. In particular, the appellant contends that the trial judge “does not analyze the credibility of Janet’s evidence … the word ‘credibility’ cannot be found in the 78-paragraph Trial Reasons … he makes no comment on Janet’s credibility or reliability – overall or on a particular matter. There is simply no description or analysis of the quality of her evidence or why he might prefer her evidence where it conflicts with other evidence, despite Janet giving evidence over the course of 7 days.” [Appellant’s factum, at para. 52, emphasis in original.]
10We do not accept this submission. Throughout his reasons, the trial judge undertook a credibility analysis on the evidence of all the witnesses relating to contested issues. Although the trial judge did not use the specific words ‘credible’ or ‘credibility’, it is obvious who he found credible and reliable both on specific issues and overall.
11To take but one example on credibility, the trial judge gave clear reasons for believing Janet, not Wilmer, on the important issue of when sexual relations between the parties ceased:
[75] … (a) While Janet and Wilmer did not share a bedroom in the one-story section of the house, I accept Janet’s evidence that prior to 2000, she slept apart from Wilmer in one of the other bedrooms in the main house, starting at some point after the children’s birth. I also accept her testimony that the parties continued to have sexual relations, both before and after 2000, even though they occupied separate bedrooms. While Wilmer’s testimony on the latter point was somewhat of a moving target, he conceded that the parties continued to have sexual relations (albeit infrequently) after Janet began sleeping in the one-story section. He also testified that intimate relations ceased a few years later, but he was unable to state when with any degree of certainty.
12To take but one example on reliability, the trial judge was, in a permissible way, cautious about accepting the evidence of the parties’ children (age 23 and 24 when they testified:
[21] … Billy and Bridgette appeared to me, however, to be honest and generally objective in their testimony. That being said, while they were young adults when they testified, their evidence to a significant extent related to events that occurred when they were young children or related to matters which occurred in private between Janet and Wilmer. As a result, I generally found their testimony of only limited assistance in determining the ultimate issue of the parties’ separation date.
13Second, the appellant submits that the trial judge made palpable and overriding errors with respect to findings or inferences of fact, such that his judgment cannot stand. The appellant points to only two examples, in a 19-day trial, of this category of error.
14The appellant says that the trial judge stated correctly that Janet drew a pre-tax annual salary of $40,000 from Neufeld Farms but then said, incorrectly, that “the evidence did not indicate any difference in these arrangements before and after 2000”: at para. 24. In fact, says the appellant, Wilmer gave uncontradicted evidence that he reduced Janet’s salary by $500 per month after she moved into the separate apartment in 2000.
15This is hardly a palpable error. The essential point is that Janet received a salary from Wilmer throughout their marriage. The trial judge recorded this. The fact that he did not state that there was evidence (from Wilmer) that the salary changed in a minor way at some point in the marriage is not an error. Even if it were an error, it is far removed from being ‘overriding’; at best, it would be minor, bordering on inconsequential.
16The appellant says that the trial judge erred when he stated that “there was no direct evidence (other than Wilmer’s testimony) that Janet knew about his other relationships.”: at para. 75(k). The appellant submits that this is incorrect because there was a reference in the notes from Janet’s doctor about an affair and Billy and Bridgette testified that their mother would talk to them about their father’s unfaithfulness.
17Again, it is difficult to see how this could be an overriding (i.e., it affects the result) error in a 19-day trial. This is especially so given Janet’s testimony that she suspected that her husband had extramarital affairs during their marriage.
18Third, the appellant asserts that the trial judge erred by treating the parties so unevenly that it gives rise to a reasonable apprehension of bias.
19We emphatically reject this ground of appeal. It is, in a word, outlandish. The appellant does not point to a single word the trial judge said during a 19-day trial that would suggest that he treated any of the parties or witnesses unfairly. Moreover, the matters to which the appellant does point – his treatment of the evidence of Janet and Wilmer, his failure to refer to certain evidence of the witnesses and in documents, and his reference to a potential limitation period – are, at most, potential grounds of appeal anchored in legal error, not bias. An allegation of judicial bias should not be made lightly because, by definition, it challenges the integrity of the judge in relation to the core of the judicial function – to preside impartially over the case before the judge: see R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at paras. 31-32.
20The appeal is dismissed with costs. If the parties cannot agree on costs, the respondent must submit her costs submissions within 21 days of the release of this judgment and the appellant must submit his costs submissions within 21 days thereafter. Submissions by each party cannot exceed five pages.
“J.C. MacPherson J.A.”
“G. Pardu J.A.”
“Grant Huscroft J.A.”
