Court of Appeal for Ontario

Date: 2017-06-05 Docket: C62166

Judges: Cronk, Epstein and van Rensburg JJ.A.

Between

Amber Crystal Tiveron Applicant (Respondent)

and

Eric Richard Collins Respondent (Appellant)

Counsel

Eric Richard Collins, in person

Katherine Robinson, for the respondent

Heard

June 1, 2017

On Appeal

On appeal from the order of Justice Janet Wilson of the Superior Court of Justice, dated April 11, 2016.

Reasons for Decision

Introduction

[1] The appellant appeals from the order of J. Wilson J. of the Superior Court of Justice (the "appeal judge"), dated April 11, 2016, dismissing his appeal from the trial judgment of R. Zisman J. of the Ontario Court of Justice, dated October 29, 2014, in this matrimonial case.

[2] The appellant raises four issues. He argues that the trial judge erred by: i) imposing a restraining order on the appellant; ii) prohibiting the appellant from initiating any further court proceedings in this case without leave of the court; iii) granting costs to the respondent in the amount of $52,899.32; and iv) denying the appellant procedural fairness due to judicial bias. In respect of each of these issues, the appellant further argues that the appeal judge erred, and also denied him procedural fairness, by declining to interfere with the trial judge's rulings.

[3] At the conclusion of oral argument, we dismissed the appeal for reasons to follow. These are those reasons.

Discussion

(1) Allegations of Judicial Bias

[4] We deal first with the appellant's allegations of judicial bias, levied against both the trial and the appeal judges. In our view, these allegations are devoid of merit.

[5] The test for demonstration of a reasonable apprehension of bias by a judge is an exacting one. It, together with the strong presumption of judicial impartiality, pose a steep hurdle for litigants who seek to overturn a judicial ruling based on the alleged bias of the judicial decision-maker. See for example, Mwanri v. Mwanri, 2015 ONCA 843; Martin v. Sansom, 2014 ONCA 14, 118 O.R. (3d) 522.

[6] This case falls far short of meeting that high hurdle. The record reveals that the trial judge's interventions, about which the appellant especially complains, viewed cumulatively and objectively, were designed to clarify the evidence and the matters in issue, minimize irrelevancies or the pursuit of peripheral matters, and maintain control of the trial process in a high conflict matrimonial case involving a self-represented litigant. Further, in many instances, the impugned interventions favoured the appellant or were intended to assist him in the conduct of his case.

[7] We therefore agree with the appeal judge's comments, at para. 12, that the trial judge's interventions "were appropriate and did not exhibit bias". We also agree with the appeal judge's observation, at para. 12: "That the trial judge did not accept the version of the facts and arguments suggested by the Appellant is not evidence of bias."

[8] The same may be said of the appeal judge herself. Nothing on this record supports the appellant's claim before this court that the appeal judge was biased against him or that the hearing before her was a "procedurally unfair appeal".

[9] This ground of appeal fails.

(2) Restraining Order

[10] The appellant challenges the restraining order granted by the trial judge on several bases. In our opinion, this ground of appeal also fails.

[11] The trial judge found that the appellant had engaged in a pattern of persistent and continuing abusive behaviour towards the respondent, and that he acted in a threatening manner toward her, both throughout their relationship and after their separation. She also found, at paras. 174 and 177, that the respondent had a reasonable and legitimate fear for her emotional and psychological safety and, given the appellant's lack of insight into the impact of his conduct, it was unlikely that he would be able "to self-regulate either his conduct or method of communicating".

[12] These findings are amply supported by the evidentiary record including, but not limited to, parts of the appellant's own trial testimony and the evidence of his threatening and intimidating emails and text messages to the respondent.

[13] In these circumstances, the trial judge was fully justified in concluding that the considerations relevant to the granting of a restraining order, as discussed in McCall v. Res, 2013 ONCJ 254 and Lawrence v. Bassett, 2015 ONSC 3707, were satisfied in this case. It follows that the appeal judge did not err in upholding this aspect of the trial judge's decision.

(3) Requirement for Leave to Proceed with Further Proceedings

[14] We reach a similar conclusion regarding the trial judge's decision to prohibit the appellant from initiating any further court proceedings without leave of the court.

[15] This case has a lengthy history, involving multiple court attendances, a temporary court order restraining the appellant from bringing any further motions in the matrimonial proceeding without leave of the court, and multiple costs awards against the appellant, many of which remain outstanding in full. These factors, taken together, provide sufficient justification for the trial judge's impugned order.

[16] However, there is more. During his testimony and closing submissions at trial, the appellant described his litigation "tactics" and "strategy" of returning to court to resolve any disputed issue or conflict with the respondent. In the face of the appellant's threat of further court proceedings, with attendant costs consequences, the trial judge concluded, at para. 160:

Based on the prior history of litigation and in order to attempt to control needless further court proceedings, I find that this is a case that should require the father to seek prior court approval before he should be permitted to initiate any further court proceedings.

[17] The appeal judge held, at para. 26, that this discretionary decision was "entirely appropriate based upon the evidence of conflict".

[18] We agree. The order in question was grounded in the evidence, including the appellant's admitted future litigious intentions, and the litigation history between the parties. We see no basis for appellate interference with it.

(4) Costs Award

[19] We also reject the appellant's attack on the trial judge's costs award.

[20] A reviewing court's jurisdiction to interfere with a trial judge's discretionary costs order is limited. Unless the costs order is plainly wrong or tainted by an error in principle, there is no basis to set it aside: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303.

[21] In this case, the trial judge provided clear and detailed reasons for her costs award. She considered the controlling principles and properly applied them to the facts of this case, as she found them. The respondent was successful at trial. Further, the trial judge found that the respondent had acted reasonably throughout the litigation. In contrast, on the trial judge's findings, the appellant had acted unreasonably by making unsupported allegations of bad faith and other misconduct against the respondent and adopting a litigation strategy that was calculated to intimidate the respondent and increase her legal costs.

[22] We note that the trial judge recognized that she was unable to order that the costs of the entire trial be enforced by the Family Responsibility Office, notwithstanding the respondent's success at trial, because support issues were no longer in play after the commencement of the trial. The trial judge was careful to tailor her costs order accordingly.

[23] Finally, the appellant argues that the trial judge erred in her costs analysis by failing to credit him, in some measure, for the costs incurred in respect of the respondent's claim for retroactive child support.

[24] We do not accept this argument. The claim at issue was never pursued by the respondent and was formally abandoned by her approximately six months before trial. There is no evidence before us that the appellant incurred any costs in association with this claim.

[25] For these reasons, we are not persuaded that the trial judge's costs award is plainly wrong or that it is infected by any error in principle.

Disposition

[26] Accordingly, the appeal is dismissed. The respondent is entitled to costs of the appeal, fixed in the total sum of $5,000, inclusive of disbursements and all applicable taxes.

"E.A. Cronk J.A."

"Gloria Epstein J.A."

"K. van Rensburg J.A."