COURT OF APPEAL FOR ONTARIO

CITATION: Pellew v. Pellew, 2016 ONCA 506

DATE: 20160624

DOCKET: C61685

Sharpe, Lauwers and Miller JJ.A.

BETWEEN

Joseph Pellew

Appellant

and

Myrtle Vernita Pellew

Respondent

Carol Shirtliff-Hinds, for the appellant

Annamaria Perruccio and Jonathan Frustaglio, for the respondent

Heard and released orally: June 22, 2016

On appeal from the judgment of Justice F.L. Myers of the Superior Court of Justice, dated January 26, 2016.

ENDORSEMENT

[1] The appellant moved unsuccessfully to set aside minutes of settlement in a family law proceeding. He appeals that decision on a number of grounds.

(1) Findings of credibility and reliability

[2] The appellant argues that the motion judge erred in making findings of credibility and reliability on the basis of affidavit evidence. We see no merit in this ground of appeal. The appellant did not submit before the motion judge that a trial was necessary. The motion judge was entitled to determine the matter on the basis of the material the appellant had presented and the detailed response from Mr. Moubarak to the appellant’s affidavit. The appellant did not cross-examine Mr. Moubarak nor did he provide any response to his evidence. In our view, the motion judge provided fully adequate reasons for rejecting the appellant’s affidavit evidence.

(2) Bias

[3] We see nothing in the conduct of the motion judge capable of supporting an allegation of reasonable apprehension of bias. The motion judge’s criticism of the appellant and his counsel for having failed to notify the appellant’s former counsel of the allegation of unprofessional conduct and inadequate assistance was warranted and did not signal bias.

(3) Absence of recording

[4] There is no merit to the submission that the appellant was denied natural justice or procedural fairness because there was no recording of the argument of the motion. There is no legal requirement for argument to be transcribed. Both parties were represented and the court was following standard practice in dispensing with a court reporter.

Conclusion

[5] Accordingly the appeal is dismissed with costs to the respondent fixed at $10,000, inclusive of disbursements and taxes.

“Robert J. Sharpe J.A.”

“P. Lauwers J.A.”

“B.W. Miller J.A.”