Publication Notice

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) 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.

85.— (3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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

Sault Ste. Marie Court File No.: 261/2005 Date: 2013-03-25 Ontario Court of Justice

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C.11

Between:

Children's Aid Society of Algoma Anthony Marrato, for CAS of Algoma

— And —

P.M., P.W., D.W. Eric McCooeye, for P.M. (mother) Murdoch Carter, for P.W. (father)

SALLY MORNINGSTAR, T[…] First Nation Band Representative

Kennedy Lawson & Annalisa Rasaiah, Office of the Children's Lawyer

Heard: March 5, 2013

Before: Justice Nathalie Gregson

Issues

[1] The respondent mother, P.M., brought a notice of motion at Tab 16 of Volume 8 of the Continuing Record seeking an order that I recuse myself from presiding over a trial in her matter on the grounds of perceived bias.

[2] Counsel for the Society, counsel for the Respondent father P.W., counsel for the child Patience and counsel for the children Precious and Santana were not supportive of the mother's motion.

Questions Before the Court

[3] Should I be recused from hearing the trial in this matter?

[4] What is the criteria I should be reviewing to make this determination?

History of My Involvement

[5] The Children's Aid Society brought a motion for summary judgment seeking a finding that the mother's children were children in need of protection and further for a finding/order that the children could not be placed in the care and custody of the mother as the mother was not an appropriate caregiver.

[6] The motion was heard on April 19, 2012 and I released written Reasons on July 25, 2012. Based on the affidavit material for the purposes of the motion for summary judgment, I held the children were indeed in need of protection. I further concluded the children could not be placed in the mother's full-time care and custody. As a result of my decision, only the issue of the mother's access to her children is being determined at trial.

Position of the Mother

[7] Counsel for the mother suggested that I should not hear the trial in this matter as I would have read all of the affidavit material in support of the motion for summary judgement. Some of this material would not be admissible at trial.

[8] This would have included a review of Dr. Hepburn's Parenting Capacity Assessment of the mother and it was more probable than not Dr. Hepburn would not be called to testify at trial.

[9] As such, it was believed that a review of prior court material would cloud my judgment when determining future access issues.

[10] It was also argued that since I had to determine whether the Society had met their onus to request an order in a summary manner and had to review whether the mother had put her best foot forward to claim a genuine issue for trial, I had made findings on the evidence.

[11] Counsel for the mother took issue with the fact that I had clearly come to the conclusion that the mother did not have the capacity to parent and would never be in a position to safely and effectively parent her children (see para. 26 of my written Reasons). Having reached these conclusions and considering the mother was seeking substantial access especially to her daughter Patience, my keeping an open mind on the issue of access for the mother was questioned.

Law

[12] As the Supreme Court of Canada held in S. (R.D.), [1997] 3 S.C.R. 484, the presumption of impartiality on the part of a judge carries considerable weight, and therefore the burden is on the party arguing for disqualification to establish that the circumstances justifying a finding that the judge must be disqualified. Substantial grounds are required to meet the standard of reasonable apprehension of bias: see Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] S.C.J. No. 50.

[13] Where there was no evidence before the motion judge to support the assertion of a conflict of interest or bias, the Ontario Court of Appeal upheld his refusal to recuse himself from hearing the motion in El-Guindi v. Lindar, 2008 ONCA 848. The appellant's claims that the same motion judge heard other prior motions involving the same parties and made some rulings that were adverse to them did not meet the high threshold to establish a judicial conflict or bias.

[14] In Ontario (Director, Family Responsibility Office) v. Samra, 2008 ONCJ 465, 59 R.F.L. (6th) 219 from the Ontario Court of Justice, Justice Katarynych provided an excellent review of the law relating to recusal motions.

[15] The father Mr. Samra requested that Justice Katarynych recuse herself from presiding over a motion for committal regarding a default on child support as she had also presided over the default hearing. Mr. Samra argued that Justice Katarynych had ruled against him at the default hearing on the matter of his credibility and that she was biased against him.

[16] The court dismissed Mr. Samra's motion. It was held that appearing before a judge who had ruled adversely in a previous case on the credibility of the party did not necessarily result in a reasonable apprehension of bias. Something more was required to show a predisposition by the adjudicator with respect to the party's credibility such as to amount to pre-judgment of the result of the second hearing.

[17] Justice Katarynych referred to the decision of the Supreme Court of Canada in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, as enunciating the criteria for determining when an apprehension of bias arises. Her Honour quoted (at paragraph 21):

…the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information.

…the test is "what would an informed person, viewing the matter realistically and practically – and having thought the matter through - conclude. Would he think that it is more likely than not that [the judge], whether consciously or unconsciously, would not decide fairly?"

[18] Justice Katarynych further noted that the authorities made it clear that the belief of the applicant and his counsel that the applicant would not receive a fair hearing before a particular judge is not the standard against which apprehension of bias is measured. The apprehension of bias must be considered objectively through the eyes of a fully informed, reasonable person who is reacting reasonably in the circumstances. Thus, to be successful on a recusal motion, "the evidence in the motion must rise above the imaginary or conjectural sentiments of the applicant and demonstrate real likelihood or probability of bias" (at para. 27). The applicant must show that the judge is so predisposed to a particular result, that he or she is not open to persuasion upon presentation of new evidence or new arguments (at para. 28). Justice Katarynych went on to state (at paras. 29 and 30):

The presumption of impartiality will only be displaced with cogent evidence that something a judge has done gives rise to actual bias or a reasonable apprehension of bias – evidence that would cause a reasonable person who understands the contextual issues and the law governing the case to believe that the particular judge would not entertain the various points of view with an open mind…

[19] Justice Katarynych also agreed with the view expressed by many other judges that judges should not accede too readily to allegations of actual appearance of bias. Otherwise, they may create the impression that they are disqualified in law when they are not. For instance, in R. v. Werner (2005), 2005 C.C.C. (3d) 556 (N.W.T.C.A.), the court stated that it is not in the public's interest to have judges easily disqualified, and a low standard for disqualification would lead to delays because it would encourage tactical motions by litigants seeking another judge when they might anticipate an unfavourable outcome. It would also pose difficulties for small centres where there are fewer judges, thereby making it likely that litigants who frequently appeared in court might appear before the same judge. The mere fact that a judge has previously made an adverse decision in a case involving a party does not create a reasonable apprehension of bias, and the presumption of judicial impartiality prevails in the absence of cogent evidence to the contrary. Judges are granted considerable deference by appellate courts inquiring into an allegation of apprehended bias and the decision to recuse oneself is an exercise of judicial discretion that will not be interfered with unless it is based on an erroneous principle or has resulted in a miscarriage of justice.

Analysis

[20] I disagree with the submissions made by counsel for the mother seeking my recusal. I have not formed an opinion one way or another on the issue of the mother's access.

[21] Counsel for the mother had the onus to provide cogent evidence to show actual bias or a reasonable apprehension of bias (real likelihood or probability).

[22] In my view, no evidence was led to show that I was pre-disposed in pre-judging the matter.

[23] In fact, when I dealt with the motion for summary judgment, I clearly stated the mother's access was an outstanding issue which needed to be determined. At the time of the motion, I was fully aware the mother was having ongoing access to her children and despite my comments about her parenting as a full-time caregiver, I did not vary the mother's access.

[24] Moreover, I clearly stated that the issue of parenting a child as a full-time caregiver was distinct from being an access parent. At paragraph 146 of my written Reasons I noted that having reached this conclusion (the mother not being able to parent full-time) did not mean the mother should not be entitled to ongoing access to any of her children. The type and frequency of the mother's access remained an outstanding issue. It is this issue which will be the subject matter of a future trial.

[25] When I released my written Reasons on the motion for summary judgement I did not suggest the mother should not have ongoing access to her children despite the fact that I concluded she could not care full-time for them. At paragraph 137 for example, I noted that based on the totality of the evidence produced, it was highly unlikely the mother would be able to sustain and manage more than access visits with her daughter. Having such access was far from parenting on a day-in and day-out basis.

[26] Despite the fact that I was privy to the mother's history in these court proceedings which was produced for the motion for summary judgement in my view does not translate to a loss of objectivity to deal with another issue involving the same mother.

[27] If anything, I believe my written Reasons suggested that the capacity to "parent" on a daily basis was quite different from parenting as an "access parent". Findings on the issue of the capacity to parent for custody purposes do not automatically translate to the same conclusions when a parent has access to their child.

[28] I do not believe that a reasonable observer would, more probably than not, believe there is a reasonable apprehension of bias in light of the entirety of the circumstances.

[29] Having considered the comments of counsel for the mother, reviewing my written Reasons and reviewing the case law, I have concluded there is no reasonable apprehension of bias on my part to prevent me from being the trial judge in this matter.

[30] In light of the above, the mother's motion for recusal is dismissed.

Released: March 25, 2013

Justice Nathalie Gregson Ontario Court of Justice