Court File and Parties

Court File No.: Toronto D31342/19 Date: December 15, 2020 Ontario Court of Justice

Between: Cletus Oppong Wiafe Applicant

— AND —

Giffy Afoakwa-Yeboah Respondent

Before: Justice Roselyn Zisman

Heard on: November 12 and December 8, 2020

Reasons for Judgment released on: December 15, 2020

Counsel:

• Glenda Perry, for the Applicant
• Gabriella Deokaran, for the Respondent

Decision on Motion

Zisman, J.:

Introduction and Background

[1] This is a motion by the Respondent (mother) that I recuse myself from hearing any further matters in this case due to a reasonable apprehension of bias.

[2] It is necessary to review the background and legal proceedings in this matter in order to understand the context in which this motion is brought.

[3] The Applicant (father) filed an Application on October 18, 2019 with a first appearance on December 18, 2019 for relief including an order that the child be returned to Ontario and to prevent the mother from removing the child from Ontario without his prior written consent. Justice Melanie Sager was assigned as the case management judge.

[4] The parties separated on February 22, 2019 and the father alleged that since the separation the mother had refused to let him see the child or interfered with his relationship with the child.

[5] According to the father, in April 2019, the mother asked him to sign a consent for her to obtain a passport for the child so she could travel to Ghana to visit her sick mother. The father reluctantly agreed to a 3-week trip from May 7 to June 2, 2019.

[6] After the mother arrived in Ghana, according to the father, she changed the dates on the consent and kept the child in Ghana for 5 months. In her Answer, the mother does not dispute that she kept the child in Ghana without the father's consent. Despite contacting the police and trying to convince the mother to return, the father was unsuccessful.

[7] The mother then advised him that she would be returning on October 12th. The mother contacted the father on October 12th to confirm that she had arrived in Canada. When the father asked when he could see the child, the mother advised that she was in Edmonton, Alberta and would not tell him when she was returning to Ontario.

[8] Prior to taking the child to Ghana, the mother had asked the father if he would consent to her moving to Edmonton and he refused.

[9] It is against this background that the father commenced his Application.

[10] The father also filed an urgent motion without notice. He deposed that he believed that the mother was still in the Toronto area and living with a friend but was planning to move to Edmonton.

[11] On October 18, 2019, Justice Sager made an order without notice to the mother that neither party remove the child from Ontario without further court order.

[12] On October 24, 2019 the urgent motion returned to court. The mother did not attend but sent a friend. Justice Sager made a further order that the mother keep the father and his counsel advised of her current address and phone number. The matter was adjourned preemptory to the mother who was warned that if she did not attend the next court hearing an order may be made against her.

[13] On November 8th, the mother and her counsel attended court. The mother had apparently returned to Toronto on November 5th. On consent, a temporary order was made that neither party remove the child from the Greater Toronto Area, without the prior written consent of the other party or further court order.

[14] The order further provided that on a temporary without prejudice basis the father would exercise 3 visits at the Woodbine Mall in the presence of the mother. Thereafter there were a further 3 visits with only the first half being in the mother's presence and thereafter every Saturday, Tuesday and every Thursday for 3 hours with exchanges at the Woodbine Mall.

[15] The mother was granted an extension to serve and file her Answer and 35.1 affidavit to December 9, 2019. The proceeding was adjourned to January 2, 2020. On consent it was again adjourned to March 9, 2020.

[16] On February 25, 2020 the father's counsel was removed as solicitor of record. A further order was made again extending the time for the mother to serve and file her Answer.

[17] Due to Covid-19 the proceedings were suspended. The case was finally before Justice Sager for a case conference on August 19, 2020. The endorsement states that until COVID-19 the access was going well but was then interrupted and that in June 2020 the mother obtained subsidized housing in London Ontario and that her counsel offered the father access at a nearby mall in London.

[18] The father sought and was granted leave to bring a motion on September 29th for the return of the child to the Greater Toronto Area. A timetable was set for the filing of motion materials. The father was to serve his motion materials by September 9th, the mother by September 23rd, any reply by September 25th and both parties were to file with the court all materials by September 25th. The endorsement did not specify a page limit to the affidavits but stated that if materials were less than 20 pages they could be emailed to the court but if they were any longer they were to be delivered by courier or a process server.

[19] Ms Deokaran, who had recently been retained by the mother, filed a 14B motion on September 28th requesting an adjournment of the September 29th motion and that a new timetable be set. She requested an order that her time to serve her responding materials be extended to September 28th and that the timetable then be changed for the serving of the father's reply and a new date be set for the motion.

[20] The parties were before Justice Sager on September 29th and she addressed the mother's 14B motion request. The endorsement states that the father opposed the mother's request for an adjournment and he asked that if the adjournment be granted that the child be placed in his care for the period of the adjournment.

[21] The mother was granted an adjournment and a new motion date was set for October 7th. The mother's time to serve her responding affidavit was extended to September 30th and she was required to file her responding affidavit with the court by October 1st. Any reply by the father was to be served and filed by October 5th. Both counsel were permitted to serve and file by email if the affidavits did not exceed 20 pages otherwise a hard copy was to be filed with the court. Both counsel were given leave to file a Factum of Statement of Fact and Law, if desired. Further, the father's counsel was permitted to file with the court the mother's Answer and Claim and her 35.1 affidavit that had been served by the mother's former counsel on father's counsel but had not been filed with the court.

[22] The endorsement further stated that, "The mother shall be prepared to provide the court with her current address should she be ordered to do so at the next court date."

[23] On October 1st mother's counsel filed a 14B requesting a release of the transcript of the "motion hearing" before Justice Sager on September 29th as, "our client intends to review the same [transcript] to potentially address the issue of reasonable apprehension of bias and/or an appeal." The supporting affidavit states that the transcript was urgently required as the father's counsel was demanding that the mother's address be released and that failing service of a motion in which an order was made for the release of the mother's address it would not be provided.

[24] On October 5th Justice Sager dealt with the mother's 14B and endorsed that, "Due to the importance of the issues raised by the father in his motion and the mother's allegations of potential apprehension of bias, the motion scheduled on October 7, 2020 at 3:00 p.m. will proceed before another judge."

[25] On October 7th, the day of the motion both counsel filed a confirmation with the court and the mother's counsel also filed a 14B.

[26] Counsel for the mother requested an adjournment to a date in November on the basis that Ms Deokaran was new counsel and the mother's former counsel did not provide her with a copy of the file until September 24th at 4:30 p.m. and she was then unable to file her responding materials in accordance with the timetable.

[27] Further, mother's counsel determined that a cross-motion should be filed by the mother. In addition, mother's counsel alleged that she had to deal with some bad faith actions by father's counsel and illness that also prevented her from serving and filing her documents in accordance with the timetable. Mother's counsel also alleged that the father's counsel was using her Law Society of Ontario decision, that was under appeal, to attack her character and she wished an adjournment and opportunity to respond. Mother's counsel indicated that in support of her request for a motion she relied on her Notice of Motion dated October 5th, 14B motion dated October 1st, and the affidavit of Kirandeep Kaur dated October 1st, 2020.

[28] Counsel for the father in her Confirmation stated that she was not consenting to the late service or filings or a further adjournment and sought the Orders requested in the father's Notice of Motion namely, an order that the child be returned to the City of Toronto or Peel Region, that the child be placed in the primary care of the father or shared care and for police enforcement. An order was also requested for the mother to immediately provide her current address. The Confirmation stated that the father would be relying on his Notice of Motion and supporting affidavit dated September 9, 2020, affidavit sworn October 18, 2019, his Application and 35.1 parenting affidavit sworn October 18, 2020, the mother's Answer and Claim and 35.1 parenting affidavit sworn January 29, 2020 and all prior endorsements and orders. The father had also filed his Notice of Motion originally returnable September 29, 2020 and his supporting affidavit sworn September 9, 2020.

[29] On the afternoon of October 7th the motion was heard by telephone conference. The mother was not on the telephone. Counsel for the father opposed the adjournment request but submitted that if the adjournment was granted the child should be placed in the care of the father pending the return of the motion.

[30] After hearing submissions, I granted the adjournment but ordered that the child be placed in the care of the father pending the return of the motion that was to be heard on November 12th. An order was also made for police enforcement.

[31] The endorsement states that the father's counsel requested a further telephone conference be set to discuss a transition of the child to the father's care. However, the mother's counsel indicated she was not prepared to discuss this as she would be filing an appeal. Mother's counsel also refused to reveal her client's whereabouts. The mother's counsel further refused to discuss a timetable for the filing of the mother's responding materials as she intended to obtain a stay of my order.

[32] In these circumstances, an order was made for police enforcement of the order, as requested by the father. An order was also made dispensing with the consent of the mother's counsel to the approval of the order in view of the urgency of the matter and the mother's counsel would require the order for her appeal. A written version of the endorsement was emailed to counsel.

[33] On October 8th, father's counsel sent an email to the court clerk that was forwarded to the judicial secretary that stated that there was an error in the last sentence of paragraph 61 of the October 7th endorsement and asked what protocol should be followed to bring this to my attention.

[34] Father's counsel's email was brought to my attention and in view of the fact that this was an innocuous typographical error, the endorsement was corrected and the amended endorsement sent to both counsel. The sentence initially read, "Further cousin for the Respondent will require this order to proceed with her appeal." It was amended to read, "Further, counsel for the Respondent will require this order to proceed with her appeal."

[35] On Friday October 9th father's counsel submitted a 14B motion that had been served that day on the mother's counsel by email at 2:45 p.m. requesting that the mother or her counsel complete a CPIC form with the mother's address and that the mother provide her current address in accordance with the court order of October 24, 2019. No reply was received by the court from the mother's counsel.

[36] Therefore, on Friday October 16th, I endorsed that as the mother had already been ordered to provide her address and had declined to do so, I did not see that another order to again require her to comply with a court order would be successful. Further, I stated that I did not have the jurisdiction to order the mother's counsel to reveal her client's address as this would breach solicitor client privilege although she was requested to do so voluntarily.

[37] Upon issuance of the October 7th order, the court staff prepared a CPIC form, as is always done when an order is made for police assistance to enforce a court order. The form provided all the known details and stated that the mother's address and current whereabouts were unknown.

[38] On my own motion and to ensure compliance with my order of October 7th, pursuant to Family Law Rules 1(7.2)(o) I ordered that the mother and the child appear before the court on October 21, 2020 at 9:00 a.m. I indicated that if the mother did not attend a warrant for her arrest may be issued.

[39] On October 20th, a 14B motion was filed by mother's counsel with a supporting affidavit from Ms Kaur, her law clerk, indicating that counsel was not available on October 21st as she has an appeal in the Divisional Court. She further deposed that her office was served with the father's 14B motion on September 9th and she therefore had until the end of the day on September 16th to file her response. She submitted that this was therefore a "clear denial of procedural fairness." Further, in view of COVID-19 she was not prepared to attend in person for any court attendance. It was also deposed that, "Justice Zisman ordered a bench warrant for the Respondent's arrest at the unilaterally selected court date of October 21st at 9:00 a.m." She further deposed that there was no jurisdiction to order a bench warrant on a 14B motion.

[40] On October 21st, the father and his counsel were on the phone having been advised by court staff that in view of the mother and her counsel not attending court they could simply call in.

[41] A lengthy endorsement was issued that reviewed the history of the matter. The endorsement stated that the mother was ordered to attend court as a means of the court requiring the mother to comply with the outstanding order to reveal her address and to ensure that the child was placed in the father's care in accordance with the order of October 7th.

[42] On behalf of the mother, mother's counsel's law clerk had attached a letter from the Four Corners Health Centre in Mississauga dated October 19th that the mother had reported that she had developed a fever on October 14th and was required to self-isolate for 10 days.

[43] My endorsement stated that counsel for the mother could have requested that her client attend by telephone conference or could have simply revealed her client's address. Counsel for the father advised the court that the mother had participated by zoom on the motion to stay my order that was heard in the Superior Court of Justice on October 19th.

[44] The matter was adjourned to October 30th at 9:30 a.m. for the mother to attend in person with the child in accordance with my order of October 16th. However, the endorsement stated that if the mother or her counsel could not attend in person for medical reasons then by the end of the day counsel was to advise the court if she wished to attend by telephone conference or by zoom.

[45] After the hearing, the judicial secretary for the Superior Court of Justice emailed me a copy of the decision of Justice Nakonechny dated that day that dismissed the mother's motion to stay my order of October 7th, 2020. An order was made for the mother to have access to the child for 5 hours each weekend in Mississauga commencing October 31st on dates and times to be agreed upon between the parties.

[46] On October 22nd, mother's counsel sent an email to the trial coordinator advising that she was not available on the return date of October 30th. I sent an endorsement advising that the proper process if counsel and her client were unable to attend on the court date in person, by zoom or telephone was to submit a 14B motion to explain why she cannot attend, why counsel cannot obtain an agent to attend and to provide alternate dates and times as close to or before the date selected by the court.

[47] On October 29th, a 14B motion was submitted by mother's counsel requesting that the motion scheduled for October 30th be adjourned to November 12th and that the court respond to the motion on or before October 30th. In support of the motion was an affidavit of the mother that was not signed electronically or commissioned virtually. The mother states that due to her requirement to self-isolate, she could not sign her affidavit. The mother also states that she has been advised of most of the statements in the affidavit however, she believes them to be true and accurate. A further note from Four Corners Heath Centre is attached dated October 27, 2020 stating that the mother reported a fever on October 27th and she should self-isolate for 10 days.

[48] In response to this 14B motion filed on behalf of the mother, the endorsement clarified that the October 30th date was set for the purpose of the mother complying with the court order to reveal her address and whether or not the mother is quarantined she could participate in a telephone conference. Further, I endorsed if counsel wishes to bring a motion for me to recuse myself then that could be argued on November 12th or if an earlier date was requested, then the trial coordinator needed to be contacted.

[49] The court staff emailed both counsel a copy of my endorsement and requested an acknowledgement of receipt. Mother's counsel did not send an acknowledgement although there was no indication that the email had not been delivered and received. Out of an abundance of caution, the court staff sent the endorsement by fax to mother's counsel at 5:01 p.m. However, the confirmation sheet indicated it had not been delivered although it was faxed to the address on mother's counsel's correspondence and pleadings.

[50] On October 30th at 9:30 a.m. neither the mother nor her counsel participated in the telephone conference call. An "urgent" affidavit was emailed to the court prior to 9:30 a.m. from the mother, although again not signed or commissioned and without any affidavit of service or proof of service. The affidavit states that mother's counsel is not available as she had a matter in Divisional Court before Justice Corbett, the name of the case is not indicated. The affidavit states that as I had exceeded my jurisdiction that I should not preside over any other matter until the recusal motion was heard. The mother further states that there is a motion before the court to protect her address and as such the court could not unilaterally schedule a court date prior to the hearing of that motion.

[51] During the telephone conference on October 30th father's counsel advised the court that mother's counsel had not served any responding materials or her Cross-Motion that was due to be served by October 26th.

[52] My endorsement states that the substantive motion was scheduled to proceed on November 12th and counsel should not assume it would not proceed. Counsel for the mother was ordered to attach proof of service with respect to any further Notice of Motions, 14B motions or affidavits that she filed with the court. Leave was also granted to father's counsel to bring any further motions and if any motion required personal service on the mother then service could be by email addressed to her counsel as it was clear personal service would be impossible.

[53] On November 10th at 4:49 p.m. the court received a 14B motion from the mother's counsel for leave to abridge the time for service and filing of the mother's affidavit in support of her motion dated October 8, 2020.

[54] At the commencement of the recusal motion on November 12th, mother's counsel sought to rely on the mother's affidavit dated October 8th [the affidavit is actually dated October 9th but was commissioned on November 9th although the exhibits were commissioned on October 9th, 2020]. Mother's counsel also sought to rely on the 14B motion and affidavit filed with the court on November 10th at 4:49 p.m. and as November 11th was a Statutory holiday, it was not brought to my attention until November 12th.

[55] For the purposes of the recusal motion, father's counsel agreed that the mother could rely on her affidavits of October 8th and November 10th and all endorsements and orders made by me.

[56] Counsel for the mother objected to me relying on the decision of Justice Nakonechny dated October 20th on the basis that it was not a document listed on her Notice of Motion.

[57] However, as mother's counsel made submissions with respect to the merits of the decision I have also relied on that decision and subsequent decisions of the Ontario Court of Appeal and Divisional Court.

[58] The recusal motion was commenced on November 12th and mother's counsel made arguments for about two hours. As mother's counsel's submissions were not completed, the motion was adjourned to November 26th. Mother's counsel indicated that she required a further hour and father's counsel indicated she only required 10 minutes.

[59] Both counsel were required to serve and file a list of any cases they intended to rely upon with citations and paragraph references. The father's counsel filed a Statement of Law that referenced the cases she relied upon. The mother's counsel served a list of 22 cases she was relying upon. She subsequently served a further list of 3 cases.

[60] As it was agreed that until the recusal motion was completed and a decision rendered, I could not hear any further issues related to this case, I ordered that both counsel were prohibited from filing any further 14B motions.

[61] Further, I advised mother's counsel that I would not assign another judge to hear any further motions as I needed to ensure that if this matter proceeded to trial that there would be judges available to preside, as the mother's counsel had already indicated that she was contemplating bringing a motion to also recuse the case management judge, Justice Sager.

[62] Unfortunately, due to a personal matter I could not hear the continuation of the recusal motion on November 26th and the motion continued and concluded on December 8th, 2020. My decision was reserved.

Applicable Legal Principles

[63] The applicable legal principles on a motion for a judge to recuse herself are well-established and not disputed by either counsel.

[64] The Ontario Court of Appeal in the decision of R. v. Ibrahim succinctly summarized the legal principles with respect to the test for a finding of a reasonable apprehension of bias as follows:

[83] The test for establishing a reasonable apprehension of bias is well known – would a reasonable person, properly informed and viewing the matter realistically and practically conclude that the decision-maker could decide the case fairly: Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting); Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21.

[84] In Canadian law, judges are presumed to be impartial. As this court said in R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18: "There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption." See also Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59; R. v. S.(R.D.), [1997] 3 S.C.R. 484, at para. 117, per Cory J.; R. v. Ruthowsky, 2018 ONCA 552, at para. 21.

[85] When assessing whether the actions of a trial judge display a reasonable apprehension of bias, the conduct of the trial judge must be viewed in context. In R. v. Stewart (1991), 62 C.C.C. (3d) 289 (Ont. C.A.), Doherty J.A. said, at p. 320: "It is a question of degree. At some point, incidents which, considered in isolation, may be excused as regrettable and of no consequence, combine to create an overall appearance which is incompatible with our standards of fairness." See also R. v. Hungwe, 2018 ONCA 456, 142 O.R. (3d) 22, at para. 44; R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at paras. 50, 63; R. v. Stucky, 2009 ONCA 151, 240 C.C.C. (3d) 141, at para. 72; and R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500, at paras. 96-97.

[65] Further, as stated in the case of A.P. v. L.P., by Justice J.T. Akbarali, "A court must not accede too readily to allegations of actual, or appearance of, bias."

[66] The court went on to adopt the following principle in the case of Ontario (Director, Family Responsibility Office) v. Samra:

Although it is important that justice be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to the applicant's suggestions, encourage parties to believe that, by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

[67] As stated in the case of Wewaykum Indian Band, any inquiry into reasonable apprehension of bias is highly fact-specific and cannot be addressed through peremptory rules:

Whether the facts, as established, point to financial or personal interest in the decision-maker; present or past link with a party, counsel or judge; earlier participation or knowledge of the litigation; or expression of views and activities, they must be addressed carefully in light of the entire context. There are no shortcuts.

Application of Legal Principles to the Facts in This Case

[68] I will now address the specific instances alleged by mother's counsel that require that I recuse myself.

All Materials for the October 7th Attendance Were Reviewed Despite the Mother Only Requesting an Adjournment

[69] It is submitted on behalf of the mother that as she was requesting an adjournment that I should have only read her motion and affidavit in support of the adjournment.

[70] The father's counsel was not consenting to the adjournment request as his motion had been before the court since September 29th, 2019, but if the adjournment was granted he was requesting an order that the child be placed in his care. The father's Confirmation outlined that the court should read all the pleadings and his affidavits.

[71] Counsel were informed at the outset that I had reviewed the entire court file.

[72] As is my usual practice, I read all of the documents that both counsel requested be read. In order to fairly adjudicate on the adjournment request it was prudent to review the file. Further, whether the motion was adjourned I was assigned to adjudicate on the substantive motion so that I would have been required to review the materials at some point. As a result, I made notes on the facts and chronology of the proceedings.

[73] I find that a reasonable person, properly informed and viewing the matter realistically and practically, would not conclude that as a result of reading the documents that I could not act fairly or that I was not impartial or had prejudged the case.

Findings of Fact Against the Mother

[74] It is submitted that I made findings of fact against the mother that showed I was biased and had prejudged the case in favour of the father.

[75] In my endorsement of October 7th I did make the following findings:

1. The mother is currently in breach of 3 court orders.

2. The order of October 18, 2019 prohibited her from removing the child from Ontario. She moved the child to Edmonton although it is not clear when she did this.

3. The order of October 24, 2019 required that she keep the father advised of her current address and phone number. She has not done this even as of today she has not revealed her address and apparently has instructed her counsel not to reveal her address.

4. The November 8, 2019 consent order required that she not remove the child from the GTA, that the father have parenting time with the child on Saturdays, Tuesdays and Thursdays with the exchanges at the Woodbine Mall. She breached both of these terms.

[76] As indicated in my decision of October 7th, these findings were based on undisputed facts, the court record and admissions of the mother made in her Answer and Claim. The mother has provided explanations for these breaches that will need to be adjudicated upon when the substantive motion is heard.

[77] I find that a reasonable person properly informed and viewing the matter realistically and practically would not conclude based on these findings that I could not decide this case fairly.

Discussion

Denial of Procedural Fairness

[78] It is submitted that the mother was denied procedural fairness as she was led to believe that once her adjournment was granted that she would have an opportunity to put her evidence before the court. It is submitted that the mother did not have notice of the issues and further that the court order transferring the child to the father was made without any consideration of the best interests of the child.

[79] The mother was on notice that the father objected to the adjournment and that if the adjournment was granted, he was requesting an order that the child be placed in his care pending the adjournment.

[80] I find that just because an order is made that is unfavourable to the mother, this is not a basis for finding that there is a reasonable apprehension of bias.

[81] As stated by Justice Charney in the case of Courtney v. Sambray:

Judges are frequently requested to make interlocutory decisions in the course of a case. They may decide issues of admissibility of evidence or interlocutory motions. These decisions may raise issues of witness credibility, or require the court to comment on the conduct of a party. If such a decision is not in a party's favour, it does not mean that the judge has pre-determined the merits of the case or has any bias against the unsuccessful party. Otherwise judges making interlocutory decisions would routinely be recused from hearing the rest of the case.

[82] Justice Katarynych made similar comments in the case of Ontario (Director, Family Responsibility Office) v. Samra where she stated:

the mere fact that one judge has issued a number of orders against a party does not justify a conclusion that the judge has taken an obvious dislike to that litigant and is hence not impartial… Such prior contact is not a factor in determining an appearance of bias, unless real bias can be shown.

[83] I find that the reasoning in the Sambray and Samra cases to be applicable to the issues raised by mother's counsel as a basis for me to recuse myself. The submissions with respect to the denial of natural justice in essence are a criticism of the merits of my decision of October 7th.

[84] The mother has an opportunity to appeal that decision and it is my understanding that the appeal is still outstanding.

[85] Counsel for the mother brought a motion to stay my decision that was dismissed by Justice Nakonechny. She further took steps to appeal the decision of Justice Nakonechny to the Ontario Court of Appeal and the Divisional Court. By order of Justice Corbett dated November 30, 2020 the mother's appeal was dismissed as frivolous, vexatious and an abuse of process.

[86] Accordingly, I find that the fact that I made an order unfavourable to the mother on October 7th does not support a finding that I cannot impartially and fairly adjudicate further issues in this case. Nor does my decision raise a reasonable apprehension of bias.

Denial of Natural Justice and Procedural Unfairness Due to a Change in the Decision of October 7th

[87] It is submitted that the mother was denied natural justice and procedural fairness due to a change made without notice to the mother's counsel in the decision of October 7th.

[88] Father's counsel sent an email to the judicial secretary seeking directions as to how to advise the court that there was a typographical error in the typed decision of my October 7th decision. Although it would have been better practice if a copy of that email had been copied to the mother's counsel, nevertheless mother's counsel received a copy of the original decision and the next day a copy of the amended decision with the change underlined. As indicated, the word "cousin" was changed to "counsel."

[89] To suggest that something underhanded occurred or that as a result of the correction of this typographical error the mother was denied natural justice or that this resulted in a denial of procedural fairness does not merit any further legal analysis.

[90] I find that no reasonable observer looking at this matter realistically and practically would conclude that I could not fairly adjudicate this case due to this typographical correction.

Subsequent Orders Made by the Court

[91] It is submitted that the court had no jurisdiction to make orders on its own motion subsequent to the decision made on October 7th. It is submitted that as a result these orders showed very clearly that I was aligned with the father and showed a "malicious intention to try and have my [the mother] arrested" by issuing a bench warrant and by stating that I had made a complaint against counsel to the law society.

[92] I am mindful that the mother had filed an appeal of my decision that has not been adjudicated. As the mother may be relying on these subsequent orders in support of her appeal, I am mindful that I should not now attempt to justify or explain my orders. I therefore rely only on my endorsement and the transcript of the hearing.

[93] However, the counsel for the mother did correct her assertion that I had issued a bench warrant for her client and agreed that the endorsement stated that the court only stated that if the mother did not appear as ordered a "warrant for her arrest may be issued."

[94] Also, mother's counsel agreed that the court did not order her to reveal the mother's address, as requested by the father's counsel, as requiring her to do so would be a breach of solicitor client privilege.

[95] With respect to the allegation that I threatened to report the mother to the law society as indicated in the transcript I advised the mother that the issue of her duty to reveal her client's address could not be ordered by the court but was an issue between her and the law society.

[96] As stated in my endorsement of October 16th, in order to ensure compliance with the order of October 7th and pursuant to Family Law Rules 1(7.2)(o) I was ordering the mother and child to attend court. Subsequent endorsements all state that they were made to require compliance with outstanding orders.

[97] I find that a reasonable observer properly informed and viewing the proceeding realistically and practically would conclude that a court had the ability to take steps to ensure that a litigant complied with a court order, subject to the right of a litigant to appeal that order. I find that this submission does not support a finding of a reasonable apprehension of bias.

Order Prohibiting Counsel from Filing Any Further 14B Motions

[98] It is submitted that there was a denial of fundamental justice as the mother was precluded from filing any further 14B motions after the commencement of the recusal motion on November 12th.

[99] As this order was made against both counsel in an attempt by the court to control its own process, I find it was an even-handed order that did not favour one party over the other party. Further, both counsel agreed that I should not hear any further matters until the recusal motion was completed.

[100] I do not find that this order supports a finding of reasonable apprehension of bias.

Zoom Hearing on December 8th

[101] The resumption of the recusal motion proceeded by Zoom. Counsel for the mother had difficulty connecting and after several attempts by the court clerk and the trial coordinators to rectify the problem, mother's counsel was asked to connect by audio. The mother did not join the call either by telephone or zoom. The father and his counsel Ms Perry were connected by video and audio. Ms Baumal, counsel for the father in the appeal proceedings was also connected by video and audio but only observed the proceedings and did not participate.

[102] Mother's counsel made submissions about the unfairness of this process as she could not see me and my reactions whereas the father's counsel could. She was asked to proceed with her submissions by audio. Mother's counsel after the hearing sent a lengthy "submission" accusing the court staff of blocking her from the call.

[103] In order to respond to this allegation by counsel for the mother, it would be necessary to involve court staff in providing their version of what occurred. I do not find that this submission requires the court staff to respond and become involved in the litigation.

[104] I do not find that the technical difficulties that ensued deprived the mother of procedural fairness. The bulk of the submissions simply related to the legal principles and the father's counsel had a short response of about 10 minutes.

[105] I do not find that this submission supports a finding of a reasonable apprehension of bias.

Conclusion

[106] I find that the mother has not met the high burden on her to provide cogent evidence in support of her allegation of bias or apprehension of bias.

[107] The mother's motion that I recuse myself is dismissed.

[108] As the successful party, the Applicant is presumed to be entitled to costs. If counsel cannot resolve the issues of costs, counsel for the Applicant shall submit written costs submissions not to exceed 3 pages with a Bill of Costs and any Offer to Settle attached within 30 days. Counsel for the Respondent shall submit her written response not to exceed 3 pages with any Offer to Settle and a Bill of Costs, if desired, within 30 days of receipt of the Applicant's costs submissions. All submissions to be filed by email with the trial co-ordinator.

[109] I am aware that the court has reserved costs on prior attendances and that both counsel have requested costs personally against the other counsel. The issue of these costs should be dealt with after a decision is released with respect to the substantive motion that is scheduled to be heard on December 30, 2020.

Released: December 15, 2020

Signed: Justice Roselyn Zisman