WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Court of Appeal for Ontario

Date: 2018-12-13

Docket: C65275

Judges: Juriansz, Brown and Roberts JJ.A.

Parties

Between

W.M.A.M.W. Respondent

and

L.J.W. Appellant

Counsel

L.J.W., acting in person

Mathew Hilbing, for the respondent

Heard: December 6, 2018

On appeal from the judgment of Justice D. Roger Timms of the Superior Court of Justice (Family Court), dated March 28, 2018.

Reasons for Decision

[1] The appellant appeals from the final order that determined issues of property and child and spousal support in these family law proceedings.

[2] The appellant submits that the motion judge made the following reversible errors: 1) he had no jurisdiction to make an order for summary judgment when there was a request for divorce in the application; 2) he should not have fixed her interest in the matrimonial home but ordered its sale; 3) he failed to fairly divide the contents of the matrimonial home; 4) he made numerous mathematical errors in the calculation of net family property; and 5) the manner in which he conducted the motion for summary judgment and the errors he made demonstrated judicial bias.

[3] We are not persuaded by these submissions.

[4] First, the appellant misconstrues the meaning of subrules 16(2) and (3) of the Family Law Rules, O. Reg. 114/99. Subrule 16(3) provides exceptions to subrule 16(2)'s restriction that a motion for summary judgment may be made in any case that does not include a divorce claim, namely, where the divorce is uncontested or, relevant to this case, the divorce claim may be split from the rest of the case under subrule 12(6).

[5] That is what occurred here. As requested by the respondent in his notice of motion for summary judgment, on the first day of hearing, the motion judge severed the divorce claim from the rest of the corollary claims for division of property and support.

[6] The appellant submits that the provisions of subrule 12(6) were not met because reasonable arrangements had not been made for the support of the children of the marriage. There is no merit to this submission. The uncontroverted evidence before the motion judge was that since 2012, the respondent has had sole custody and care of the children and has been providing all financial support without contribution by the appellant. This arrangement was confirmed by the final order of Hughes J., dated October 30, 2013, made in the child protection proceedings, that resolved all issues of custody and access and required that the appellant's access be supervised at all times.

[7] Second, the motion judge made no error in fixing the value of the matrimonial home and in not ordering its sale, in accordance with the only expert appraisals that were produced. We note that the motion judge did not use the current appraised values of the home for the purpose of establishing the equalization payment. The amount ascribed to each party's interest in the matrimonial home was immaterial to the final equalization payment owing. Since the parties are joint owners of the home, the same half-value is attributed to each of them such that the difference in their net family properties is unaffected.

[8] It was also open to the motion judge to accept the respondent's submission that it would be in the best interests of the children to remain in the matrimonial home and to make an order that would permit this.

[9] Third, the appellant has not persuaded us that the motion judge made any error in the division of the contents of the matrimonial home. There is no evidence in the record to support the appellant's contention that she only received the return of her personal items. Rather, in the June 19, 2018 reasons, the motion judge appears to say the opposite: after noting that the appellant renewed her request for some personal "and other items" from the former matrimonial home, he asked the appellant to make a list of items that she would like to have, which she did, and the respondent "generously agreed" to give the appellant everything on her list.

[10] Fourth, with respect to the mathematical errors, as the respondent noted in his factum, he had agreed with the appellant's position months before the appeal was heard and returned a motion before the motion judge to correct them. This was the appropriate and responsible way to deal with these errors and this matter is therefore moot.

[11] Finally, we reject the appellant's unsubstantiated allegations of judicial bias. She has not met the high onus to rebut the presumption of judicial impartiality. The record shows that the motion judge treated her at all times with courtesy and respect. It is an often repeated adage that the fact the appellant is dissatisfied with the motion judge's decision does not equate with judicial bias.

[12] Accordingly, the appeal is dismissed.

[13] The respondent is entitled to his costs on a full indemnity basis in the amount of $24,711.33. We order them payable from the appellant's remaining interest in the matrimonial home, if any remains after all other orders of payments from the appellant to the respondent have been deducted. If there is no remaining value to her interest, the costs shall be deducted from the spousal support otherwise payable by the respondent. The appeal was devoid of merit. The motion judge's mathematical errors were appropriately resolved in a subsequent motion properly brought before him and did not have to be revisited on appeal. The respondent should not have to bear the financial burden of responding to it.

"R.G. Juriansz J.A."

"David Brown J.A."

"L.B. Roberts J.A."