Court of Appeal for Ontario

Citation: McColeman v. French, 2015 ONCA 890

Date: 2015-12-15

Docket: C60475

Before: Weiler, Pardu and Benotto JJ.A.

Between

Michael Allan McColeman

Applicant (Respondent)

and

Julie Michelle French

Respondent (Appellant)

Counsel:

Julie Michelle French, acting in person

Robert K. Bickle, for the respondent, Michael Allan McColeman

Inga Rinne, for the respondent, the Office of the Children’s Lawyer

Heard: December 9, 2015

On appeal from the order of Justice J.R. Belleghem of the Superior Court of Justice, dated September 3, 2014.

ENDORSEMENT

[1] The parties separated in 2010, after thirteen years of marriage. They have two sons: Christopher will be 18 in two months; Cameron will soon be 15.

[2] Within six months of the separation, the parties were well into litigation. The case management judge requested the involvement of the Office of the Children’s Lawyer (the “OCL”) and the children have been represented since.

[3] The parties went to trial in June 2014. The mother did not testify. She was self-represented at trial and remains so on appeal.

[4] The trial judge made decisions on custody, child and spousal support and equalization. The mother appeals all issues – although in oral submissions, she focused on custody. She also alleges bias on the part of the trial judge.

[5] The respondent cross-appeals alleging that the trial judge erred in reducing the appellant’s child support obligations to reflect her access costs.

Custody

[6] The children have lived at different times with each parent. At the time of trial, the children were living with the respondent.

[7] The trial judge ordered that this status quo continue, granting sole custody to the respondent and access to the appellant, at the discretion of the children. The OCL, appointed to represent the children, supported the decision made by the trial judge.

[8] The appellant alleges incompetence on the part of the professionals involved with the children. She also alleges that the trial judge should have required the children to testify.

[9] We see no reason to interfere with the trial judge’s determination on any of the issues raised by the appellant. The following issues are addressed specifically.

[10] First, the trial judge made no error in the exercise of his discretion. He carefully reviewed the relevant factors in connection with the best interests of the children. He preferred the evidence of the professionals and emphasized the importance of the status quo. He found that the respondent had provided the children with a stable home environment.

[11] The trial judge appropriately considered the parties’ past conduct, the love and affection between the children and the parents, the views and preferences of the children, the parents’ abilities to provide guidance and care, the parents’ plans of care, and the parents’ abilities to act as parents.

[12] Second, the children are now of an age when the appropriateness of an order for custody is questionable. Christopher will be an adult soon. Cameron is well into his teens.

[13] The trial judge did not err in principle in exercising his discretion to obtain the evidence of the children’s views and preferences through the testimony of other witnesses and the representations of the OCL, as opposed to requiring them to testify. The reasons for his choice were articulated in his reasons and took into consideration the wishes of the children.

Financial Matters

[14] We would not give effect to the appellant’s submissions respecting financial matters

[15] The appellant now seeks an equalization payment, despite her calling no evidence at trial and despite her post-separation bankruptcy. Any right of action would have vested in the trustee in bankruptcy.

[16] The trial judge did not award the appellant spousal support because he was satisfied that the parties had achieved self-sufficiency at the time of trial. Her request for retroactive spousal support was dismissed because he had insufficient evidence to determine the issue and we see no reason to interfere with that decision.

[17] To the extent that retroactive child support was appropriate for the appellant, it was offset when the trial judge expunged the appellant’s arrears of child support.

Allegations of Bias

[18] The appellant alleges that the trial judge was biased or appeared to be biased because the respondent’s mother worked in the courthouse where the trial took place. We note that, for the duration of the trial, the mother was moved to another court location.

[19] There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption. The long-standing test is this: what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude: see Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham (2000), 2000 16946 (ON CA), 51 O.R. (3d) 97 (C.A.), at para. 131.

[20] This two-fold objective test is based on reasonableness: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable. The reasonable person must be informed and know the relevant circumstances, including the traditions of integrity and impartiality on which the judicial system is based. A mere suspicion is not enough.

[21] This stringent test for a party alleging apprehension of bias is grounded in the need to preserve the integrity of the judicial system. It also recognizes the need to maintain public confidence in the judicial system. The analysis contemplates a hypothetical observer who is informed of all the facts. It does not depend upon the views or conclusions of the litigant.

[22] The appellant does not meet this test. There is no evidence of bias – actual or reasonably apprehended. On the contrary, the evidence and the reasons disclose a concerted attempt by the trial judge to be scrupulously fair in his dealings with the appellant.

Cross-Appeal

[23] The respondent claims by way of cross-appeal that the trial judge erred in reducing the appellant’s ongoing child support obligations by $350 per month to reflect the costs of her access visits. At the time of trial she lived near Barrie and the children lived in Centre Wellington. No evidence was led with respect to access costs.

[24] We agree that the trial judge erred in making this reduction. Subject to the comments below, we allow the cross-appeal.

[25] There was, however, another mistake with respect to the calculation of child support. It appears to have been a typographical mistake.

[26] The evidence was that the appellant’s income (Respondent on the cross-appeal) was $51,000. The trial judge’s reasons indicate $57,000. This latter amount was the basis upon which he performed the table calculation under the Child Support Guidelines. The table calculation of $855 per month was consequently awarded. However, the table amount on the basis of an income of $51,000 is $765 per month, which is the correct amount.

[27] After removal of the $350 monthly deductions for access costs and after correction of the table amount to reflect the mother’s income at the time of trial, the respondent would be owed an additional $4,680. The retroactive amount arises because this court has changed the order made. It does not arise because the appellant did not meet her existing obligations. This distinction is made in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231. On this basis, we are satisfied that there should be no retroactive adjustment and the appellant is not required to pay this amount.

[28] In addition, we are satisfied, based on all the circumstances, including the fresh evidence that requiring the appellant to make a retroactive payment would operate as a hardship on her. Accordingly, the child support will be $765 per month on a go-forward basis commencing on January 1, 2016.

[29] Finally, we mention the method by which we were advised of the typographical error. Counsel for the respondent brought it to our attention during his submissions on the cross-appeal. But for respondent’s counsel – we would not have appreciated this inadvertent error. Mr. Bickle acted in the best tradition of the bar and as an officer of the court. We commend him and we are grateful.

Disposition

[30] For these reasons, the appeal is dismissed and the cross-appeal is allowed. Accordingly, the order below is amended to provide that the respondent is entitled to child support of $765 per month commencing January 1, 2016.

[31] Costs are payable by the appellant to the respondent in the amount of $10,000, inclusive of disbursements and applicable taxes. There will be no costs to the OCL.

“Karen M. Weiler J.A.”

“G. Pardu J.A.”

“M.L. Benotto J.A.”