COURT OF APPEAL FOR ONTARIO

CITATION: A.M. v. J.M., 2016 ONCA 644

DATE: 20160826

DOCKET: C61560

Feldman, Gillese and Brown JJ.A.

BETWEEN

A.M.

Applicant (Respondent)

and

J.M.

Respondent (Appellant)

Edward Rae, for the appellant

Milena M. Soczka, for the respondent

Heard: March 23, 2016

On appeal from the order of Justice Paul U. Rivard of the Superior Court of Justice, dated December 17, 2015, with reasons reported at 2015 ONSC 7921.

Feldman J.A.

[1] This is a custody dispute involving the parties’ two young boys. The trial judge found both parents to be very good parents and that custody could be awarded to either one in the best interests of the children.

[2] At the time of the trial, the children had been residing with the father and his partner for approximately one year, with access to the mother, pursuant to an ex parte order that had been confirmed on a full hearing one month later. The trial judge concluded that the father had created an unlawful status quo by failing to make full disclosure on the ex parte motion, suggesting that had the father made full disclosure, the ex parte order would not have been granted. All other matters being equal, the trial judge decided that the mother should be awarded custody of the children since they had lived with her and thrived in her care for most of their young lives.

[3] On appeal to the Superior Court, the appeal judge held that it was open to the trial judge to have found that the father obtained an unlawful status quo, and that the confirmation of the ex parte order at the comeback hearing one month later did not cure the problem. He also rejected the father’s alternative submission that the trial judge displayed a reasonable apprehension of bias by raising the issue of non-disclosure and the lawfulness of the status quo on his own motion.

[4] The father now appeals to this court, arguing that the appeal judge erred in upholding the trial judge’s finding that the ex parte order had created an unlawful status quo. In the alternative, he submits that the appeal judge erred in failing to find that the trial judge exhibited a reasonable apprehension of bias by pursuing that issue on his own motion.

Facts

(1) The parties’ relationship

[5] The parties met in the winter of 2006-2007. They initially lived in North Bay, Ontario, where the mother’s family lives, but moved to MacTier, where the father’s family lives, shortly after. Their first son was born in 2009 and their second in 2010. The mother was the primary caregiver of the two boys.

[6] After the parties separated in October 2011 or January 2012, the mother moved back to North Bay with the children. The father had liberal access, except for a period of a few weeks in 2012 when he lived and worked in Montreal. He also paid child support. However, there was friction between them.

[7] In March 2013, the mother brought an application for an order granting her custody of the two boys. The father opposed the application.

[8] As a result of a court order made that spring for the purposes of the custody hearing, the Office of the Children’s Lawyer (“OCL”) conducted a clinical investigation. At a disclosure meeting in September 2013, the mother was very upset to learn that the OCL report recommended that custody be awarded to the father. The investigator concluded that joint custody was not in the children’s best interests because of the parents’ inability to communicate, and that the father could provide a more stable, predictable and consistent environment for them. The investigator was critical of the mother’s sense of “entitlement” to custody, and also noted a history of “volatility”. That report was submitted to the court in early October 2013.

[9] Matters came to a head days later following the Thanksgiving weekend, which the children spent with the father. When the mother could not pick them up at the court–ordered drop-off time of 11 a.m. on the Monday in North Bay, the father made arrangements with the mother’s sister, D.M., to meet him and take the children at 3:00 p.m. But after D.M. later returned the children to the mother, the mother texted D.M. asking her to look after the children. The mother said she was “not mentally capable” of caring for the boys and that she “may end up hurting them”. D.M. had made other plans that night but she arranged for the children to be taken by their grandmother.

[10] Unbeknownst to the mother, all her text messages were inadvertently being forwarded to the father’s cell phone. When the father saw the text messages between the mother and D.M., he became very concerned for the children’s safety and sought the assistance and advice of the North Bay Children’s Aid Society.

(2) The ex parte motion

[11] On October 18, 2013, the father brought an ex parte motion seeking interim custody. He swore an affidavit stating that he had concerns for the children’s safety. He appended a number of the text messages exchanged between the mother and her sister and also stated that D.M. “followed up by promptly ensuring that the children were removed from the mother’s care.”

[12] The ex parte motion judge, who ultimately became the trial judge, granted temporary custody to the father with supervised access to the mother.

(3) The comeback hearing

[13] A full comeback hearing was held on November 22, 2013. Both parents were present; the mother was represented by counsel. Through counsel, the mother acknowledged feeling overwhelmed. She attributed her distress over the Thanksgiving weekend to the negative OCL report, which she thought was unfair and inaccurate. After hearing fully from both sides, Rodgers J. confirmed the motion judge’s temporary order.

[14] The children continued to reside with their father in MacTier throughout 2014, with access to the mother, which eventually became unsupervised access.

(4) The trial

[15] On November 12, 2014, after a four-day trial in which custody was the primary issue, the trial judge awarded custody of the children to the mother. In analyzing the “best interests” factors under s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), he concluded that both parties were equally capable of providing their children with a stable, loving home in which the two boys thrived and were happy.

[16] Normally, if children are successfully residing with one parent at the time of the trial, that is a factor a court will weigh in determining the best interests of the children: CLRA, s. 24(2)(c). However, although the children had been residing with the father for a year at the time of the trial, the trial judge declined to consider the existing status quo as a factor in the father’s favour. He found that the father had obtained that status quo unlawfully by failing to disclose all relevant information on the ex parte motion.

[17] The trial judge explained that the father neglected to disclose on the ex parte motion that his concern for the children’s well-being when he saw the October 2013 text messages between the mother and D.M. was “tempered drastically by his knowledge, given in evidence at trial, that Aunt D.M. would never do anything to put [the children] in jeopardy”: p. 56. The trial judge also criticized the father for failing to disclose that in the spring of 2013, when the mother’s mental state had also deteriorated, she had asked the father to take the children until she was medically cleared to have them back, and then needed a court order to get them back from him. The trial judge concluded, at pp. 57-58 of his reasons:

A false status quo cannot stand under those conditions and forms no part of this analysis. If anything, the only status quo that could or should be considered by the Court is the one that existed from [the] separation date in October 2011 until the fateful ex parte temporary order of October 18, 2013. That is, the children resided with their mother.

[18] In concluding that custody should be granted to the mother, the trial judge reiterated that the children were “thriving in her care when custody was changed on October 18th last and she is capable of providing the same stable environment where they have lived for most of their young lives”: p. 65.

(5) The motion for a stay pending appeal

[19] The father moved to stay the trial judge’s order. Justice Ellies granted the motion on November 17, 2014. He determined that the trial judge might have misapprehended what had occurred when the father obtained temporary custody. He held there was evidence that the father had provided full and fair disclosure on the ex parte motion, and even if one could say that the initial temporary custody should not have been granted on an ex parte basis, it was difficult to see how it could be considered to have been obtained improperly thereafter, in light of the full comeback hearing.

[20] As a result, the children continued to reside with the father after the trial.

(6) The first appeal

[21] The father appealed the trial judge’s order to the Superior Court, arguing that he had not obtained the ex parte order unlawfully, and that the trial judge’s interventions during the trial gave rise to a reasonable apprehension of bias. On December 17, 2015, the appeal was dismissed. The appeal judge held that it was reasonable for the trial judge to have concluded that the father did not make full disclosure at the ex parte hearing, and he rejected the submission that the comeback hearing cured any problems with disclosure because the ex parte order had already established a new status quo.

[22] The appeal judge also rejected the father’s allegation of reasonable apprehension of bias on the part of the trial judge. He noted that there is a strong presumption of impartiality and held that the degree of judicial intervention at trial was not excessive.

[23] Since the appeal judge’s order, the children have resided with the mother in North Bay.

Issues on appeal

[24] Before this court, the father renews the arguments he made before the appeal judge. He argues that the appeal judge erred by upholding the trial judge’s finding that the father obtained an unlawful status quo on the ex parte motion, and by rejecting the allegation of reasonable apprehension of bias.

[25] I will address each issue in turn.

Analysis

Issue 1: Did the appeal judge err by upholding the trial judge’s finding that the father obtained an unlawful status quo on the ex parte motion?

(1) Ex Parte Orders

[26] Rule 14(12)(c) of the Family Law Rules, O. Reg. 114/99, allows a motion to be brought without notice if “there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences.” If an ex parte order is made, under rule 14(14) that order must contain a requirement that the matter come back to court, if possible before the same judge, within 14 days or on a date chosen by the court. And under rule 14(15), an order made without notice must be served immediately on all parties affected, together with all documents used on the motion, unless the court orders otherwise.

[27] These rules are consistent with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for other civil matters. An ex parte order is intended to be used only in exigent situations where the delay required to serve the motion would probably have serious consequences, or where the giving of notice by the service itself would probably have serious consequences. A judge hearing an ex parte motion who is not satisfied of the probability of those consequences will decide that the motion cannot proceed ex parte and order that notice be given.

[28] Where a motion is brought without notice, the person bringing the motion must make full and fair disclosure of all material facts (rule 39(6) of the Rules of Civil Procedure), including facts that may not be helpful to that party’s position. An ex parte order that is obtained without full and fair disclosure, even if the lack of full disclosure was unintended, is subject to being set aside. See for example, Rinaldi v. Rinaldi, 2013 ONSC 7368.

[29] Notice and the opportunity to be heard are basic tenets of our justice system. Ex parte orders are therefore made only in very limited circumstances. The requirement for full and frank disclosure is essential to allow a court to fairly make a temporary order that will affect the rights of another person in an emergency situation where the court has not heard both sides of the story.

[30] That requirement is well-known to lawyers. It applies equally to self-represented parties.

(2) The ex parte order of October 18 and the comeback hearing of November 22, 2013

[31] The post-Thanksgiving 2013 ex parte motion that the father brought for temporary custody of his children was the third such motion he had initiated over the previous six-month period. Neither of the previous two had been successful. However, as I have said, by October of that year, the OCL had prepared a report recommending that the father be granted sole custody of the children.

[32] When he saw the text messages from the mother indicating that she was distraught and worried that she might hurt the children if her sister did not take them and look after them that day, the father was concerned for their safety. He sought advice from the CAS, and was apparently advised to seek an ex parte order, which is what he did.

[33] The following is the content of the affidavit sworn by the father, where he highlights the text messages “of greatest concern”:

1. I am the respondent father in this matter and I write this affidavit in support of my urgent motion for the interim custody of my two children … and for no improper purpose. I believe the contents of this affidavit to be true.

2. I reside in MacTier and I currently see the children on alternate weekends plus extra access as arranged.

3. On October 7, 2013 the OCL reported to the court and recommended sole custody of the children to myself plus access to the mother along with other recommendations.

4. The mother is not handling the OCL recommendations well. The last court date was adjourned at the request of the mother.

5. I am very concerned about the well-being of the children since I dropped them off to the mother’s sister, D.M., on Monday, October 14, 2013. The mother refused to meet me to receive them four hours earlier at the scheduled, court-ordered drop-off time of 11:00 AM.

6. Attached and marked as Exhibit “A” is a true copy of text messages, which I believe are texts between the mother and her sister primarily.

7. In the paragraphs that follow, I have set out the text messages of greatest concern wherein the mother is requesting her sister to take the children because if not “I may end up hurting them.” I am not certain of the mother’s mental well-being at this point and have grave concerns for the children.

…the sense of urgency came from messages I received after the children were returned to North Bay on October 14, 2013. Serious safety concerns arisen.

9. The court ordered drop-off time for me to return our children to North Bay is 11:00 AM on Monday mornings. On October 14, 2013, the applicant was unprepared to care for [the children] and did not meet at the scheduled time to receive the children. She then proceeded to ignore my attempts to contact her as well as those of the North Bay Police. Arrangements were made with the applicant’s sister, D.M., and she met me to pick up [the children] at 3:00 PM in the parking lot of Tammie’s, a North Bay restaurant. After the children were returned to the mother by her sister, [A.M.] refused to care for the children that night. [A.M.] indicated that she may harm our children if D.M. did not come and pick them up right away. Her sister acknowledged this and followed up by promptly ensuring that the children were removed from the mother’s care.

[A.M.]: “I’m not going to parent them. I’m gonna go upstairs in my room and shut the door”

D.M.: “Ok [A.M.]”

[A.M.]: “Come get them or I’m calling J.M. [the father] to”

[A.M.]: “I may end up hurting them”

D.M.: “What the fuck is your problem”

D.M.: “And I understand that if I don’t you might hurt them”

10. The applicant is mentally unstable and unfit to be caring for the children at this time as indicated by herself via text message.

D.M.: “If you take off skating today instead of taking your boys never expect any help from me ever again. Not one cent. Not one hand with anything. Nothing”

[A.M.]: “I can’t”

[A.M.]: “Cause I mentally can’t”

[A.M.]: “I don’t want to be a fucking parent. I’m not mentally capable of doing this”

[A.M.]: “I am pretty fuct up. Everything has caught up with me”

[A.M.]: “I’m going crazy”

D.M.: “U are too volatile. There’s no way I can help you in court anymore. You had one last chance that I was giving you so we can fight this”

D.M.: “If I had left everything to you yesterday shit would be completely fucked up beyond repair with J.M. You just go off and it makes me think I would be crazy to back u financially in court. Even if u got custody of the boys u are one breakdown away from losing them”

11. I called North Bay C.A.S. on the morning of October 15, 2013 and to the best of my knowledge C.A.S. did not intervene that day. On the morning of October 16, 2013, I contacted Bracebridge C.A.S. out of concern as it had been indicated that the applicant would again have the children in her care beginning that evening. Anna of the Bracebridge C.A.S. recommended that I immediately come to court to seek an urgent motion for interim custody. [Citations to Exhibit “A” omitted.]

[34] As noted above, paragraph 9 makes it clear that the children were not with the mother any more, as her sister, D.M., to whom the father had delivered the children on the Monday, had “removed them” from her sister’s care.

[35] The father also attached to his affidavit an appendix that appears to be an electronic print-out of the text messages that had been inadvertently forwarded to him, and which includes messages on October 15, the day after the mother said she could not parent the boys. One of those messages states: “J.M. [the father] set me off and so did work. Considering everything I’m surprised I did not go crazy yet. I’d never hurt the boys. Or let anything happening [sic]. I was beyond pissed off last night.”

[36] On its face, this affidavit appears to satisfy the requirement for full and fair disclosure. It:

• described the status of the situation between the parents;

• described the mother’s concern that she was not able to care for the children, using her own words by quoting the most significant texts between her and her sister;

• explained that D.M. “promptly” ensured that the children were removed from their mother’s care; and

• included an apparent print out of the texts from the relevant days, including the one where the mother says she would “never” hurt the boys and was “beyond pissed off” the previous night when she warned otherwise.

[37] As I explained above, the ex parte order of October 18, 2013 was followed by a full comeback hearing before Rodgers J. on November 22, 2013. The mother was served with all the materials supporting the ex parte order and was represented by counsel at the comeback hearing, a transcript of which is in the appeal record. The mother did not raise any issue in her materials or in oral submissions about the adequacy of the father’s disclosure on the ex parte motion.

[38] At the comeback hearing, the mother sought an arrangement where she would have either weekly or weekend access to the children, but supervised by her sister D.M. or by other family. She acknowledged that she had been overwhelmed as a single mother but said she intended to address her issues. She also intended to refute the report by the OCL in preparation for the custody trial. Justice Rodgers questioned the mother extensively about the text messages, including messages proffered by the father at the comeback hearing that suggested that she was dealing drugs, and asked for her explanation.

[39] Justice Rodgers also heard submissions from the father, who represented himself, and questioned him. Both the mother’s counsel and the father explained the entire sequence of events to the court, including what had taken place between the ex parte order by Klein J. on October 18 and the return on November 22, as there had been a number of court attendances before different judges, including Klein J., where access arrangements were adjusted. During that time, D.M. had been involved in supervised access to the mother. It was clear that both parties trusted D.M.

[40] Immediately following the hearing, Rodgers J. gave his oral reasons for continuing the temporary order granting custody of the two boys to the father, and set out terms of supervised access for the mother. He based his decision primarily on the fact that the mother had indicated in her text message exchange with her sister of October 14 that she was overwhelmed by her caregiving role, called on her sister to take the children, that she was not capable of parenting them and was afraid that she might hurt them.

[41] Justice Rodgers discussed some of the procedural history of the custody dispute, including his own involvement in making the first temporary order on April 18, 2013 (the reasons say October 18 in error) placing the children in the care of the mother with access to the father, and that the father had been “relentless” since that date in his attempts to have that order changed.

[42] By the judge’s count, there had been 16 court attendances, either on notice or ex parte since the first order, including multiple attempts by the father to bring ex parte and emergency motions, most of which were denied. The judge stated that he was “not real sympathetic to [the father] because it appears that he’s tried everything in his power to get these children away from their mother, at least in terms of custody”. However, the new evidence from the text messages was “very, very alarming”.

[43] Justice Rodgers did not accept the mother’s explanations for the text messages that appeared to describe drug trafficking, finding that to be a concern that could not be ignored. However his main focus was the mother’s own doubts about her ability to look after the children safely. I quote his conclusions in full:

I have to deal with where the children live right now as this matter is proceeding through the court and I share the concerns that Justice Klein had. I have had the opportunity to hear what the parents have to say. This is what this hearing is about. An ex parte order has been made, [A.M.] didn’t have the opportunity to participate in that order that significantly affected her and her children. This hearing was the opportunity for the Court to try and get as much information as possible from both parties in order to determine what’s in these children’s best interest in the short term. And that is why I asked questions of [A.M.] because I found it very troubling that the very essence of the material that was placed before Justice Klein prior to making the order, the concern about [A.M.] being overwhelmed and the concern about her possibly being connected to the drug trade. There’s very little in her material that she filed in response that addressees the heart of the issue, as I see it. She was more concerned about raising her concerns about the quality of the OCL report.

So I have had the opportunity to read all of her material and ask her specific questions about the concerns that are raised by the material that was before Justice Klein. I have come to the conclusion for the reasons I am attempting to express, there should be a temporary order that [J.M.] shall continue to have custody of the children…. [A.M.] shall have access every second weekend. That access will be supervised by D.M. or another family member designated by D.M.. That’s with the intent that [A.M.] is not left alone with the children as their primary caregiver. The access, I’m not saying that the access has to be at [D.M.’s] home, I’m not saying the access has to be at [A.M.’s] home. I’m saying that the access can occur wherever, as long as there is a responsible family member who is present so that [A.M.] is not left alone as the caregiver at this time because of my concerns that were raised by her own utterances on October 14th in the text messages; her expressions of being overwhelmed and of possibly harming the children and her expressions of not wanting to parent the children.

(3) The errors by the trial judge and the appeal judge

[44] The trial judge found that the status quo that had been established by the October 18, 2013 ex parte order and confirmed at the November 22, 2013 comeback hearing was unlawful because the father had failed to make full and fair disclosure. In my view, he made two errors in his apprehension of the evidence and of the submissions in making this finding.

[45] First, in his reasons for discounting the status quo, the trial judge stated: “The father urges that I maintain [the] status quo. The mother claims that the father’s failure to disclose all the information that was known to him set up an unlawful status quo or a status quo that was obtained without full disclosure”: at p. 55 (emphasis added). This statement constituted an error of fact by the trial judge. At no time did the mother take the position that the father had not made full disclosure on the ex parte motion or that he had created an unlawful status quo.

[46] The mother’s counsel did not question the father regarding his disclosure on the ex parte motion. The issue was raised only by the trial judge in lengthy questioning of the father.

[47] Second, the trial judge erred in finding that the father had not made full disclosure because he had not indicated that any concern he had about the mother “was tempered drastically by his knowledge, given in evidence at trial, that Aunt D.M. would never do anything to put [the children] in jeopardy.”

[48] With respect, D.M. did not have legal custody of the children. The mother did. Although D.M. tried to be available to help her sister, she could not be available all the time, nor was it her legal obligation to do so. Nor did the father in any way suggest that he did not trust D.M. To the contrary, the affidavit disclosed that he had delivered the children to D.M. after his Thanksgiving access visit, and D.M. had indeed removed the children from her sister’s care, and although she could not take them herself that night, her mother did.

[49] As Rodgers J. recognized at the comeback hearing, the mother’s self-declared inability to parent the children and her fear of harming them was the issue that caused the concern and the emergency situation. The ex parte motion judge was told that the children had been removed from the mother. He therefore knew the immediate danger had been addressed. The issue was for the ongoing care and well-being of the children.

[50] The trial judge also criticized the father for failing to disclose some of the past history of the proceedings. Again, as Rodgers J. recognized, whatever had happened in the past was overtaken by the mother’s concerns about her kids’ safety with her in October. Those concerns could not be ignored based on what had occurred in the past, nor did the trial judge explain how those prior events would have been relevant on the ex parte motion.

[51] In addition, it is clear from Rodgers J.’s reasons that he was fully aware both of the entire procedural history, as well of the role played by D.M. and the fact that everyone trusted D.M. He understood that the ex parte order had been made without notice and that the comeback hearing was the time to hear both sides of the story. He did so and confirmed the temporary order.

[52] In my view, there was no basis on the record for the trial judge to find material non-disclosure by the father at the ex parte hearing, and the appeal judge erred in holding otherwise. Furthermore, it was an error of law for the appeal judge to discount the full comeback hearing held by Rodgers J. and to find, contrary to the reasons, that Rodgers J. felt bound to confirm the ex parte order.

[53] As a result, the conclusion that the children’s residency status quo with the father created by those hearings was unlawful cannot stand.

Issue 2: Did the appeal judge err by rejecting the allegation of reasonable apprehension of bias?

[54] The father also submits that that the trial judge showed a reasonable apprehension of bias in his approach to the non-disclosure issue and his conduct of the trial.

[55] The test for reasonable apprehension of bias was recently stated by this court in Martin v. Martin, 2015 ONCA 596, 127 O.R. (3d) 1, at para. 68: “Would a reasonable and informed person viewing the matter realistically and practically and having thought it through conclude that the judge, consciously or unconsciously would not decide fairly”. The threshold for finding a reasonable apprehension of bias is extremely high. There is a strong presumption in favour of the judge’s impartiality and the question of a reasonable apprehension requires a highly fact-specific inquiry: Martin, at para. 71.

[56] In Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, 265 O.A.C. 247, leave to appeal refused, [2010] S.C.C.A. No. 91, at para. 243, this court cautioned:

[A]ppellate courts are reluctant to intervene on the basis that a trial judge “entered the arena” and improperly intervened in a trial. There is a strong presumption that judges have conducted themselves fairly and impartially. Isolated expressions of impatience or annoyance by a trial judge as a result of frustrations, particularly with counsel, do not of themselves create unfairness. Similarly, a trial judge’s willingness to debate with counsel openly over relevant factual and legal issues should not serve as a basis for a reasonable apprehension of bias. In the end, an appellate court should only intervene if satisfied that the trial judge’s interventions, considered in the context of the entire trial, created a reasonable apprehension that the trial judge was biased. [Citations omitted.]

[57] The father submits that the trial judge demonstrated a reasonable apprehension of bias in six ways. The first was by suggesting that the argument regarding non-disclosure came from the mother, when in fact it was the trial judge’s concern, expressed in questioning of witnesses, in argument and in his reasons for decision. The second and third were in his questioning of D.M. and of the father on the non-disclosure issue, which had not been raised by anyone else. The trial judge questioned the father for 20 pages of transcript, in a cross-examining style. The fourth area was in submissions by the father’s counsel where the trial judge interrupted counsel to debate his theory regarding the non-disclosure. The fifth area was the trial judge’s failure to advert to the worrisome facts that gave rise to the ex parte order. The sixth concern was that the trial judge improperly reviewed the continuing record rather than limiting himself to the evidence at the trial.

[58] The mother submits that none of these issues went beyond the proper role of a trial judge, and that taking the conduct of the trial as a whole, there was no appearance of a prejudgment of critical issues or the creation of a reasonable apprehension of bias.

[59] The appeal judge considered this issue in the context of the test as set out in Martin, quoted above. He noted that the trial judge appeared to have been gentler with the mother in his questioning than with the father, but on his review of the record he could not discern a predisposition to decide the issues in favour of the mother. He concluded that there was no reasonable apprehension of bias.

[60] On my reading of the record, it appears that the trial judge, who was also the ex parte motion judge, became concerned that in hindsight he should not have granted the ex parte motion and pursued his theory of material non-disclosure in his examination of witnesses, and during submissions, then referred to it as part of his unlawful status quo finding.

[61] However, that concern must be viewed in the context of the entire proceeding, the presumption of impartiality, and the findings made by the trial judge that favoured the father in the analysis of the best interests of the children.

[62] Viewing the proceeding as a whole, it is clear that the trial judge was focused on deciding the custody issue by determining the best interests of the children. Applying the strong presumption in favour of impartiality, I would not interfere with the conclusion reached by the appeal judge that there was no reasonable apprehension of bias.

(4) Remedy for the error in finding an unlawful status quo

[63] The father submits that as the trial judge found that the other best interest factors favoured each parent equally, it cannot be said that the trial judge’s error in finding that the father created an unlawful status quo by failing to make full disclosure at the ex parte hearing did not influence his decision to award custody to the mother.

[64] The best that can be said is that it is not clear whether the trial judge would have used the status quo as the determining factor to award custody to the father. He concluded that the children had thrived when they were with their mother, that they had lived with her for most of their lives, and that it was in their best interests to be returned to her custody.

[65] Even if the father’s submission has some merit, the issue for this court is what remedy, if any, should be ordered in the best interests of the children at this point. Since the decision of the appeal judge on December 17, 2015, the children have resided with the mother. The status quo factor has been effectively neutralized as a result of the decision of the appeal judge.

[66] The effect of this decision is that the father has been exonerated of the charge of misleading the court on the ex parte motion. However, there is no basis to change the custody arrangements of the children. They are lucky in that they have two loving parents and extended families. It is not in their best interests to put the parties to the stress and uncertainty of a new trial.

[67] The father also asked for an amendment to the order regarding his support obligation. The trial judge ordered child support to commence following the trial in December 2014. As the children remained with the father until December 2015, I agree that the father’s child support obligation should commence on January 1, 2016. The appeal is allowed to that extent.

[68] I want to thank and commend both counsel who provided very helpful written and oral submissions. No costs of the appeal were requested as both parties were legally aided.

DISPOSITION

[69] The appeal is allowed in part only: para. 5 of the order of Klein J., dated November 12, 2014, shall be amended by substituting January 1, 2016, in lieu of December 1, 2014, for the date on which the father was to commence payment of child support.

Released: August 26, 2016 (“K.F.”)

“K. Feldman J.A.”

“I agree. E.E. Gillese J.A.”

“I agree. David Brown J.A.”