Howe v. Demedeiros, 2012 ONSC 4775
DIVISIONAL COURT FILE NO.: 319/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, NORDHEIMER AND CONWAY JJ.
BETWEEN:
SHELDON CORDELL HOWE Applicant (Respondent)
– and –
LINA MARIA DEMEDEIROS Respondent (Appellant)
COUNSEL:
Sheila L. Bruce, for the Applicant (Respondent)
Gene C. Colman and Christopher H. Bird, for the Respondent (Appellant)
HEARD at Toronto: August 20, 2012
ORAL REASONS FOR JUDGMENT
CONWAY J. (ORALLY)
1The appellant mother appeals the final order of McGee J. dated June 14, 2011 awarding the respondent father retroactive child support, ongoing child support and s.7 special expenses.
Procedural Fairness
2The mother raises three issues of procedural fairness:
(a) that the trial judge should have recused herself as the trial judge because of a conflict of interest;
(b) that the mother should have been permitted to amend her Answer to add Ms. Howe as a party; and,
(c) that the trial judge should have adjourned the trial in the absence of counsel and to allow the parties to respond to the amended Answer.
3We would not give effect to any of these grounds of appeal.
4The mother submits that there was a conflict of interest on the part of the trial judge because the father’s spouse, Ms. Howe, had been employed at the law firm in which the trial judge was a partner prior to her appointment. The mother provided no evidence as to when Ms. Howe was employed, what her role at the firm was, whether she worked with the trial judge or how large the firm was.
5While the mother characterizes this as a conflict of interest issue, we consider the issue to be one of reasonable apprehension of bias. A conflict of interest is significant only if it gives rise to a reasonable apprehension of bias.
6The test for reasonable apprehension of bias is what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly? The grounds for the apprehension must be substantial: Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394. The apprehension must rest on serious grounds, in light of the strong presumption of judicial impartiality: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 76. The party making the allegation of reasonable apprehension of bias has to provide the court with a record of what it relies on in support of the allegation: R. v. Fell, 2009 ONCA 551, [2009] O.J. No. 2828 (C.A.), at para. 9.
7The trial judge recognized that she might be in a position of conflict if Ms. Howe had been a party to the litigation. Once the motion to add Ms. Howe as a party was dismissed (by a different judge) and Ms. Howe was to be a witness at trial, the trial judge did not consider herself to have a conflict.
8The issues at trial were the parties’ income and quantum of child support payable by the mother to the father. Apart from the fact that Ms. Howe worked for the law firm, the mother has provided no evidence to support her allegation of reasonable apprehension of bias. At trial, she asked no questions of Ms. Howe to draw out further information on the relationship and raised no concerns to the trial judge. Given the nature of the issues at trial, the lack of evidence regarding Ms. Howe’s employment at the firm and the presumption of judicial impartiality, there is no basis to support this allegation.
9There was no procedural unfairness in the decision not to permit the mother to add Ms. Howe as a party. It would not have reduced the mother’s child support obligations or interfered with her disclosure rights. The mother suffered no prejudice from the refused amendment. The claim against Ms. Howe on an in loco parentis basis was bound to fail as Ms. Howe was a custodial parent at all relevant times.
10We would not interfere with the decision not to adjourn the trial to permit counsel to be present. The mother was unrepresented. While counsel had assisted the mother, there was no evidence that he had been retained and in any event there was no evidence as to his availability for any future trial date.
11We would therefore not order a new trial.
Child Support
12The trial judge ordered the mother to pay retroactive support commencing October 1, 1994, the date that the child ceased living with the mother. The father’s application was brought in March 2008. The father acknowledges that the period of retroactive support is excessive and consents to an order reducing retroactive support to three years prior to the date of the application. We agree that such an order is appropriate and in keeping with the principles articulated by Bastarache J. in S.(D.B.) v. G.(S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231, 270 D.L.R. (4th) 297. We set aside the award of $48,984 and award retroactive support for the period March 27, 2005 to March 27, 2008.
13The father further acknowledges that there were errors in the application of the Federal Child Support Guidelines and consents to an amendment of the child support order as set out in Schedule “C” to the mother’s factum and an order that the arrears are $49,532.
Disposition
14The appeal is dismissed, save and except for the retroactive child support, which is reduced to three years preceding the date of the application and for the agreed upon recalculations of child support.
SWINTON J.
15I have endorsed the Appeal Book as follows, “For oral reasons delivered today, this appeal is dismissed, save and except for the reduction of retroactive child support to three years preceding the Notice of Application and the agreed upon recalculations of child support. This is not a case for substantial indemnity costs. Costs to the respondent on appeal for the appeal fixed at $10,000.00 inclusive of disbursements and HST.”
CONWAY J.
SWINTON J.
NORDHEIMER J.
Date of Reasons for Judgment: August 20, 2012
Date of Release: August 23, 2012
CITATION: Howe v. Demedeiros, 2012 ONSC 4775
DIVISIONAL COURT FILE NO.: 319/12
DATE: 20120820
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, NORDHEIMER AND CONWAY JJ.
BETWEEN:
SHELDON CORDELL HOWE Applicant (Respondent)
– and –
LINA MARIA DEMEDEIROS Respondent (Appellant)
ORAL REASONS FOR JUDGMENT
CONWAY J.
Date of Reasons for Judgment: August 20, 2012
Date of Release: August 23, 2012