Court File and Parties

CITATION: McFarlane v. McFarlane, 2007 ONCA 591

DATE: 20070831

DOCKET: C45341

COURT OF APPEAL FOR ONTARIO

FELDMAN, CRONK and LANG JJ.A.

BETWEEN:

HELEN JACQUELINE McFARLANE

Applicant (Respondent in Appeal)

and

STUART GRAHAM McFARLANE

Respondent (Appellant in Appeal)

Counsel:

J. Jeffrey Richey, for the appellant

Lydia Moritz, for the respondent

Catherine Bellinger, for the Children’s Lawyer

Heard and released orally: August 28, 2007

On appeal from the judgment of Justice C. Herold of the Superior Court of Justice dated March 29, 2006.

ENDORSEMENT

[1] The appellant argues that the trial judgment in this matrimonial litigation cannot stand, principally because the trial judge’s conduct during the course of the trial exhibited a reasonable apprehension of bias against the appellant, with the result that trial fairness was compromised. We reject this argument for three main reasons.

[2] First, the trial judge made express credibility findings in favour of the respondent and against the appellant. These findings are supported by the evidence. In particular, the record indicates that, by the time of trial, the appellant had failed to comply with several court orders. Further, the respondent’s evidence on several matters in controversy was supported by the uncontradicted evidence of another witness, Ms. D. Kumar. It was open to the trial judge to make the findings of credibility that he made. We see no error in his weighing of the evidence nor in his assessment of the reliability of the testimony of the parties.

[3] Second, and importantly, we have examined the comments of the trial judge attacked by the appellant. In our view, in the circumstances of this trial and having regard to the demonstrated conduct of the parties as established by the record, these comments fall far short of meeting the test for reasonable apprehension of bias established by the Supreme Court of Canada in R. v. R.D.S., [1997] 3 S.C.R. 484 and related cases. Many of the impugned comments were directed to the respondent wife or her counsel, rather than the appellant or his counsel. Others arose during the testimony of the respondent, in contrast to that of the appellant. While some of the challenged remarks by the trial judge may appear to reflect his frustration and concerns with the appellant’s conduct, neither the trial judge’s statements nor his alleged interruptions during the testimony of the parties support the assertion that he approached this trial with a closed mind or that his management of the trial was unfair or partisan. This was an acrimonious law suit. The evidence of the parties was conflicting and every issue appears to have been vigorously contested. Viewed as a whole, the record and the trial judge’s reasons reveal that he did a commendable job in weighing the evidence, managing the trial and adjudicating on the issues in contention. The fresh evidence tendered by the appellant on appeal does not detract from this conclusion.

[4] Finally, we agree with counsel for the Children’s Lawyer that the custody and access order crafted by the trial judge was grounded in the evidence of the specific needs and best interests of the children of the marriage. We note that this order responded to the appellant’s request that the children be in his custody 50 percent of the time by providing, favourably, that the appellant have access to the children for more than 40 percent of the time. Overall, the trial judge’s disposition of custody to the respondent mother was consistent with the position of the Children’s Lawyer that the respondent should exercise final decision making in the lives of the children.

[5] The appeal is therefore dismissed. The respondent is entitled to her costs of the appeal on a partial indemnity basis, fixed in the amount of $8,500.00, inclusive of disbursements and G.S.T.

“K. Feldman J.A.”

“E.A. Cronk J.A.”

“S.E.Lang J.A.”