COURT OF APPEAL FOR ONTARIO

CITATION: Bryce v. Bryce, 2015 ONCA 871

DATE: 20151211

DOCKET: C60793

Sharpe, Cronk and Miller JJ.A.

BETWEEN

Karen Bryce

Applicant (Appellant)

and

Wayne Bryce

Respondent (Respondent)

Karen Bryce, acting in person

Michael J. Polisuk, for the respondent

Heard: December 2, 2015

On appeal from the judgment of Justice S.M. Rogers of the Superior Court of Justice, dated December 23, 2013.

ENDORSEMENT

[1] The appellant appeals from a final order setting out: (1) that the matrimonial home be listed for sale and stipulating the division of the proceeds of sale, (2) a determination of the quantum of child support, retroactive and prospective, (3) a determination of spousal support, retroactive and prospective, and (4) a determination of the allocation of s.7 expenses.

[2] The appellant seeks a new trial, primarily on the basis that: (1) the trial ought to have been adjourned to enable her to obtain better financial disclosure from the respondent, and a more comprehensive valuation of the respondent’s income and businesses, and (2) the trial judge was biased against her. She also objects to several procedural and evidential rulings made at trial, including the decision not to allow the appellant to claim an unequal division of property or relief under the Canada Business Corporations Act, R.S.C. 1985, c. C-44, neither of which had been pleaded by her.

[3] The appellant also appeals on the basis that the substantive result is unconscionable. Essentially, the appellant’s position is that: (1) it is not in the children’s best interests for the matrimonial home to be sold; (2) the spousal support that she receives is inadequate to compensate her for the income earning disadvantage that she continues to face as a result of having been a stay-at-home mother; and (3) the calculation of child support is based on an incorrect assessment of the respondent’s income.

Adjournment

[4] At the outset of trial, the appellant’s adjournment request was dismissed. The matter had already been set down twice for trial, and the trial judge was concerned that the expert evidence would become stale, and that an end to the litigation was necessary “for the sake of the children and their financial viability.”

[5] The decision to grant or refuse an adjournment is a highly discretionary one and entitled to deference. Here, the trial judge took into account the previous adjournments, and was appropriately concerned with preserving the currency of expert evidence. Furthermore, the appellant offered no concrete proposal as to how she would obtain further evidence, and the trial judge had doubts about her financial means to retain another expert.

[6] The trial judge concluded that although the appellant, as a self-represented party, was generally anxious about proceeding, this was not a valid ground for an adjournment.

[7] The trial judge made no error in exercising her discretion to refuse the request for an adjournment. This ground of appeal is dismissed.

Bias

[8] After the trial was concluded but before judgment had been given, the appellant brought a motion before the trial judge asking that the trial judge recuse herself for bias. The appellant states that the grounds for the motion were that the trial judge took part in a prior step in the proceedings: a motion for an interim access order on October 19, 2011. The trial judge dismissed the appellant’s motion that she recuse herself, noting that the trial was concluded, she had not presided over any settlement discussions, and had made no findings of credibility on the motion.

[9] The trial judge was correct not to recuse herself on this basis, and in any event, her order was not appealed. Participation in an earlier step in proceedings of the type at issue here does not in of itself constitute bias.

[10] The appellant also argues that the trial judge exhibited bias through her evidential and procedural rulings, as well as through her general demeanour.

[11] We disagree. A trial judge has the responsibility to run a fair and efficient trial by ensuring that the rules of evidence and the Rules of Civil Procedure are followed. The appellant has not identified any errors with respect to the trial judge’s rulings, let alone any rulings that suggest bias against the appellant. This ground of appeal is dismissed.

Substantive findings

[12] The appellant argues that the trial judge made reviewable errors: (1) with respect to her findings as to the date of separation; (2) in ordering the matrimonial home to be listed for sale and the stipulation of the distribution of proceeds; (3) in the quantum of child and spousal support ordered; and (4) in the apportionment of s.7 expenses.

[13] In each case, the trial judge applied correct legal principles to factual findings that were supported by the evidence before her. The appellant has not identified any reversible errors of fact or of law on the part of the trial judge.

[14] The trial judge made findings, based on the expert valuation evidence before her, that the value of the appellant’s equity in the respondent’s businesses was nil at the separation date. Her findings, both with respect to the date of separation and the valuation of the businesses, were supported by evidence and entitled to deference.

[15] This is not to deny, and the trial judge did not deny, that the sale of the matrimonial home will be a hardship for both the appellant and the children in all the ways that the appellant describes. Nevertheless, as the trial judge held: “the servicing of [the parties’] debt is crippling them. This cannot continue.”

[16] The appellant rightly identifies a technical error in the reasons, with respect to the proportionate sharing of s. 7 expenses. The Order and the reasons both state that the proportionate share shall be 70% for the appellant and 30% for the respondent. This is clearly a transposition error, as the respondent concedes, and ought to have been corrected by motion to the Superior Court of Justice under rule 59.06(1). The proportionate sharing should be reversed, with 70% of the s.7 expenses to be borne by the respondent, and 30% by the appellant and we so order.

Disposition

[17] The appeal is dismissed.

Costs

[18] Should the respondent seek costs of this appeal, we will receive written submissions of no more than two pages in length, exclusive of bill of costs, within seven days of this endorsement. The appellant will have seven days thereafter to deliver any written reply, not more than two pages in length.

“Robert J. Sharpe J.A.”

“E.A. Cronk J.A.”

“B.W. Miller J.A.”