COURT FILE NO.: 573/08
DATE: 20090630
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
jennings, J. WILSON, and BELLAMY jj.
B E T W E E N:
KAREN ROSEMARIE CICCIARELLA
Applicant
(Appellant)
- and -
JOHN CICCIARELLA
Respondent
(Respondent in Appeal)
Glenda D. McLeod for the Applicant
(Appellant)
John Cicciarella in person
HEARD AT TORONTO: March 26, 2009
THE COURT:
Overview
[1] Karen Rosemarie Cicciarella (the “Appellant”) appeals from a judgment of Hambly J. dated November 28, 2007, in which he dealt with the issue of the equalization of the parties’ net family property by ordering that John Cicciarella (the “Respondent”) pay the Appellant an equalization payment of $2,891.00, that the $33, 213.00 being held in trust be divided equally, and that the Appellant pay the Respondent’s costs of $180.00. The Appellant appeals from the order for equalization of net family property and costs.
[2] The Respondent had been represented by counsel throughout the lengthy and acrimonious matrimonial proceedings. Three weeks before trial, he discharged his counsel and, at trial, chose to represent himself. The Appellant, at trial, was represented by two counsel, one of whom was there for the purpose of cross-examining the Respondent.
[3] The Appellant alleges that the trial judge interfered with the trial process in such an unreasonable and unfair manner that he precluded her counsel from calling highly relevant evidence, severely restricted her counsel’s cross-examination of the Respondent, conducted his own improper examination-in-chief of the Respondent, and refused to listen to her counsel’s proper submissions. She further submits that the trial judge failed to consider relevant evidence properly before the court, and improperly considered the contents of the parties’ Settlement Conference Briefs, contrary to the Family Law Rules, O. Reg. 114/99. Finally, the Appellant submits the trial judge failed to provide adequate reasons for his decision.
[4] The Appellant requests that the Respondent be ordered to pay the Appellant an equalization payment in the amount of $26,269.59 along with her costs of the trial and this appeal, on a substantial indemnity basis. In the alternative, she requests an Order setting aside the judgment of the trial judge and directing a new trial, together with the costs of the appeal.
[5] For the reasons outlined below, we conclude that the appeal should be granted, the Order of the trial judge should be set aside, and the matter should be remitted for a trial to be heard by another judge.
Jurisdiction
[6] The appeal in this matter was originally brought before the Court of Appeal but was transferred by Borins J.A. to this court as the amounts in dispute are less than $50,000.00. The Divisional Court has jurisdiction to hear the appeal pursuant to s. 19(1.2) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
Standard of Review
[7] The Supreme Court of Canada addressed the standard of review of an appeal from a judge’s decision in Housen v. Nikolaisen 2002 SCC 33, [2002] 2 S.C.R. 235. On a pure question of law, the appellate court is free to replace the opinion of the trial judge with its own; the standard of review is correctness (para. 8). Factual findings should not be reversed unless it can be established that the trial judge made a palpable and overriding error (para. 10). Questions of mixed fact and law are also subject to this standard, unless it is clear that the trial judge made some error of law or principle that can be identified independent of the judge's application of the law to the facts of the case. In these circumstances, the error of law is extricable from the questions of mixed fact and law in issue and must be separated out and reviewed on a standard of correctness (paras. 36-37).
[8] This appellant also alleges that the conduct of the trial was unfair, thereby engaging principles of natural justice. If the appearance of fairness has been undermined, the decision cannot stand on any standard: See Shoppers Mortgage & Loan Corp. v. Health First Wellington Square Ltd. (1995), 1995 1069 (ON CA), 23 O.R. (3d) 362 (C.A.); [1995] O.J. No. 1268.
Background
Deficiency of Respondent’s Documents
[9] The Respondent represented himself in this appeal. He did not file any materials, apart from a letter that was apparently prepared by his sister. The letter informed the court that he has a reading and writing disability, and therefore could not file materials on his own behalf. In opening remarks at the trial, he said he had a reading disability which meant that “It’ll be a little bit longer – to go through the paperwork.” At trial, and again before us, he offered that his reading ability has improved as a result of all the material he has been required to read for the various court proceedings.
[10] On the trial date, the Respondent arrived with no valuations, no updated Financial Statement and no Net Family Property Statement. Yet, over a year earlier, on September 19, 2006, Glithero J. had ordered him to provide an updated financial statement with notices of assessment and proof of current earnings. He had also ordered the Respondent to provide a Net Family Property Statement, and to comply with outstanding undertakings and refusals. The Respondent did not comply with this Order. His Financial Statement at trial was dated December 23, 2005 and had been prepared during the period when he had counsel. It is not clear from the record before us whether the Respondent responded to his undertakings and refusals.
[11] As well, ten months before the trial, on January 15, 2007, Sills J. had ordered the Respondent to “obtain a valuation of his motor vehicles and tools.” This appears to have been intended to address the value of the tools and vehicles at the date of marriage and the date of separation, an issue of great contention between the parties. The Respondent did not comply with this Order either.
[12] At trial, he showed up with a letter dated April 5, 2007 from Classic & Special Interest Auto Appraisal Service which declared that, without inspecting the vehicles at the relevant point in time, it was not possible to value the vehicles retroactively to establish value at the date of marriage and the date of separation.
[13] At the opening of trial, Appellant’s counsel informed the trial judge that the Respondent had been representing himself as of a few weeks before, that he had arrived with a box “full of stuff” and had not yet determined what he would or would not use at trial. Counsel suggested to the trial judge that she take a short bit of time to go through the box with the Respondent. That suggestion was not accepted by the trial judge.
Information about the parties
[14] The parties were married in 1984 and separated in 1996. They have since divorced and the Appellant has remarried. They have three children: two daughters who are now 24 and 23 years old and a 19-year-old son. The daughters are both in college and live away from home. The son resides with his mother.
[15] At some point, the Appellant moved to Kitchener with the three children. There were issues about payment of child support, and the Appellant sought and obtained an Order for child support. The issue of child support was resolved on consent at trial before any evidence was called.
[16] The Appellant does not seek spousal support.
[17] At separation in 1996, the parties owned a matrimonial home in Scarborough. The Respondent lived in this home until it was sold in 1999. The net proceeds from the sale of the matrimonial home, after paying the mortgage and a loan to the Respondent’s mother, were $32,213.10. These proceeds continue to be held in trust in an interest-bearing account by a former counsel.
[18] During the marriage, the Respondent had been in a car accident and received settlement proceeds of $15,000.00. He also received an inheritance of $15,000.00. The Appellant’s uncontradicted evidence was that the proceeds from the inheritance were used to repay a debt owed to the Respondent’s mother with respect to a loan to purchase the home. The Respondent suggested that a trailer purchased during the marriage was a gift from his parents, but did not have any documents to back up this assertion.
[19] The Respondent had a life insurance policy which increased in value during the marriage by $5,782.00. The Respondent spent these funds after separation.
[20] This is a second marriage for the Respondent. The Appellant alleges that the Respondent had debts at the date of marriage, and that he valued the assets he owned at the date of this marriage as being minimal.
[21] The Respondent is a metal polisher and at the date of trial earned approximately $40,000.00 annually.
Vintage Cars and Tools
[22] The Respondent was a collector of vintage show cars prior to and during the marriage. The primary contested issues in this trial were the value of the Respondent’s cars and tools at the date of marriage, and the date of separation. Neither party had a formal evaluation of the cars and tools in question.
[23] At the date of marriage the respondent had three show cars: a 1969 and a 1977 Camaro, and a 1967 Chevrolet Nova. The value of these cars at the date of the marriage was in serious dispute, as were the improvements made to the show cars during the marriage. At the date of separation, the Respondent owned the same 1969 Camaro, the 1967 Nova, a 1962 Alpine and a 1982 Suburban.
[24] At the date of marriage, the Respondent also owned some tools. The acquisition and value of numerous tools accumulated during the marriage was also disputed. For example, the Appellant testified about a double oversize garage full of tools and equipment acquired during the marriage; the Respondent testified that he had about $500-$600 worth of wrenches and U-bars and metal at the time of marriage, but these were probably worth less at the time of separation.
[25] Because the Respondent did not file the required documentation at trial as required under family law rules 13(1) and 13(12), it is difficult to determine exactly what the Respondent owned at the date of marriage and the date of separation. The trial judge’s extremely brief reasons for judgment do not outline the assets owned at the date of marriage and at separation. The reasons refer to a 1996 Camaro, which was not owned by the Respondent at either the date of marriage or the date of separation. There was no evidence that the Respondent had ever owned a 1996 Camaro, so this reference is likely either a typographical error on the part of the court reporter or the trial judge’s mistaken reference to a 1969 Camaro that the Respondent did own at both the date of the marriage and the separation and which the trial judge acknowledged in his discussion with Appellant’s counsel during counsel’s final submissions.
[26] Before any evidence had been called, the trial judge engaged in a lengthy discussion with counsel for the Appellant and with the Respondent. This discussion covers almost the first 34 pages of the transcript. During that period when the trial judge was questioning the Respondent, it appears the trial judge obtained some information about the worth of the cars by reviewing the contents of the Respondent’s Settlement Conference Brief. This Brief also contained offers to settle between the parties. Before any evidence had been called, the trial judge asked the Respondent to hand up the document he was examining. Appellant’s counsel alerted the judge that this was a Settlement Conference Brief. The judge directed the Respondent to provide it to him anyway:
The Court: Well you apparently have some documents there…
Mr. Cicciarella: Yes.
The Court: …. That your lawyer gave you. Well pass them up.
Ms. Miller: It’s a settlement conference brief sir
The Court: Pass it up anyway.
[27] Apart from the cars and tools, there were no other assets accumulated during the marriage. The Respondent testified that his cars were worth $15,000 at both the date of marriage and the date of separation, and that his tools were worth $600 at the date of marriage and less on separation. Apart from the increased value in his life insurance, which the Respondent acknowledged was subject to division, it was the Respondent’s position that there was nothing else to divide.
[28] The Appellant herself did not have formal valuations of the Respondent’s cars and tools at the date of marriage and at separation, and therefore relied upon collateral documentary evidence supporting her assertions of value. Her evidence was that, after the marriage, the Respondent had invested a significant amount of time and money in the cars and tools. Indeed, she testified that his hobby of restoring and improving the vintage cars became a source of conflict in the marriage because noteworthy sums of money were being used to buy tools, improve existing cars and purchase others, to the detriment of the family.
[29] She relied upon the following indices of increased value:
• A January 4, 1990 valuation of the 1969 Camaro conducted for insurance purposes valuing the vehicle in the amount of $20,000.00;
• Documentation that the Respondent filed with the bank on two occasions in support of a request for a mortgage loan indicating that his cars were worth $58,000.00 in 1989 and in a further application for mortgage loan dated August 17, 1990 showing a value for cars and tools as $50,000.00;
• Numerous receipts of custom car parts and tools purchased during the marriage that the Appellant testified were incorporated into the cars; and
• Photographs of cars and tools.
[30] The Appellant relied upon these receipts in support of her position that during the marriage the Respondent made a significant financial investment in the vehicles he owned at the date of marriage, resulting in a considerable increase in the value of these vehicles by the date of separation.
[31] The Appellant’s evidence was that the Respondent acquired much equipment and many tools throughout the marriage. She supported her evidence with numerous receipts and with photographs, taken a year before separation, of the contents of their double garage. These photographs showed quantities of tools and equipment including seven tool boxes, an engine hoist, drill press, sand blaster and air compressor, among other things.
[32] The Respondent’s position was that many of his tools and equipment were stolen when in the possession of a third party. The Appellant’s counsel was not permitted to fully explore this issue in cross-examination. When counsel tried to explain the intended cross-examination to the judge, the judge said: “This is going absolutely nowhere.” When counsel then tried to direct the judge’s attention to a tab with the document brief, the judge suggested she was being sarcastic with him (page 133 transcript). Ultimately, the trial judge said the numerous car part receipts were irrelevant and would not permit Appellant’s counsel to cross-examine the Respondent on them.
[33] The Appellant, through her Net Family Property Statement, calculated that the Respondent owed her an equalization payment of $27,019.59. In arriving at this calculation, the Appellant used the Respondent’s value of assets owned at the date of marriage as it appeared in his sworn Financial Statement, (which was in conflict with his evidence at the trial) corrected for the error of including a vehicle that was clearly purchased after the marriage. She calculated the value of the tools and cars at the date of separation to be $50,000.00, which was the value used by the Respondent in his mortgage applications to the bank.
[34] The trial judge in very brief reasons accepted the Respondent’s position that the value of the Respondent’s assets at the date of marriage and the date of separation was $15,000.00 and that the only asset to divide was one half the net increase in the value of the life insurance.
Analysis
[35] As our Court of Appeal has recently had occasion to note, “[t]he role of a trial judge is often very demanding owing not only to the inherent nature of the case, but also to the particular conduct of the litigants…a trial judge must exercise restraint and maintain impartiality so as to act within the scope of his or her neutral role”: R. v. Stucky, 2009 ONCA 151, at para. 61. Nonetheless, it remains the trial judge’s duty to ensure a fair trial: R. v. Brouillard, 1985 56 (SCC), [1985] 1 S.C.R. 39, at 44.
[36] The increase in the number of litigants who appear without legal representation can pose special challenges for busy trial judges. Leeway is allowed for a self-represented party, especially as it relates to procedural matters: Manitoba (Director of Child and Family Services) v. A.(J.) (2004), 247 D.L.R. (4th) 490, 2004 MBCA 184 at para. 32:
The extent to which judges should afford an unrepresented litigant additional "leeway" with respect to court procedures and the rules of evidence is an increasingly vexing problem for courts at all levels. It is generally recognized that the court should provide some assistance to an unrepresented litigant, as occurred in Barrett. See as well A.C.M. v. P.F.M., [2003] M.J. No. 386, 2003 MBQB 244. But at the same time this must be done in such a way as not to breach either the appearance or reality of judicial neutrality. See Selmeci v. Canada, [2002] F.C.J. No. 1086, 2002 FCA 293. How to balance the sometimes competing imperatives of helping a litigant who is in need of assistance while maintaining impartiality is a recurring dilemma for both trial and appellate courts. [Emphasis added.]
[37] While judges should afford an unrepresented litigant additional “leeway,” there is a line to be drawn, as our Court of Appeal enunciated in Davids v. Davids (1999), 1999 9289 (ON CA), 125 O.A.C. 375 at para. 36 (C.A.). The judge cannot descend into the arena from the bench and advocate for the self-represented litigant:
Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer's familiarity with procedures and forensic tactics. It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants' unfamiliarity with the process so as to permit them to present their case. In doing so, the trial judge must, of course, respect the rights of the other party. [Emphasis added.]
[38] It is axiomatic that both sides are entitled to a fair trial. As Platana J. noted at para. 18 of Baziuk v. Dunwoody (1997), 13 C.P.C. (4th) 156 (Ont. C.J. (Gen. Div.):
The problem of unrepresented parties, who may not be familiar with law and procedure, is one which is facing courts today with an ever increasing frequency. Courts are mindful of a degree of understanding and appreciation which should appropriately be extended to such parties. However, notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to over ride the rights of a defendant party. [Emphasis added.]
[39] Partly because of the increase in the number of self-represented litigants in Canadian courts to which Platana J. alluded above, in 2006 the Canadian Judicial Council adopted a “Statement of Principles on Self-represented Litigants and Accused Persons.” This Statement of Principles is meant to be advisory in nature. It is not a code of conduct. Its aim is to provide guidance to judges, court administrators, members of the Bar, legal aid organizations and government funding agencies in relation to self-represented persons.
[40] The advisory Statement refers to a number of responsibilities expected of judges, such as the responsibility to promote opportunities for all persons to understand and meaningfully present their case, regardless of representation and to promote access to the justice system for all persons on an equal basis, regardless of representation.
[41] The Principles refer to an expectation that judges will do whatever is possible to provide a fair and impartial process and to prevent an unfair disadvantage to self-represented persons. It goes without saying that in a contested family law case, in preventing an unfair disadvantage to self-represented persons, the judge must also ensure that the legally-represented litigant is not thereby disadvantaged by the judge’s conduct.
[42] With respect to the judge’s responsibility to promote equal access, the Principles also address behaviour in which a judge may wish to engage without offending the requirements of judicial neutrality and impartiality.
When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may:
(a) explain the process;
(b) inquire whether both parties understand the process and procedure;
(c) make referrals to agencies able to assist the litigant in the preparation of the case;
(d) provide information about the law and evidentiary requirements;
(e) modify the traditional order of taking evidence; and
(f) question witnesses.[Principle B.4]
[43] The Principles also address the responsibilities of the participants in the justice system, recognizing that “all participants are accountable for understanding and fulfilling their roles in achieving the goals of equal access to justice, including procedural fairness.” For judges, this translates into, among other things,
A responsibility to inquire whether self-represented persons are aware of their procedural options and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.
In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the courts.
[44] For self-represented persons, this translates into, among other things, an expectation that they will
…familiarize themselves with the relevant legal practices and procedures pertaining to their case.
… prepare their own case.
[45] In conclusion, in a trial where one party is represented by counsel and the other is not, a trial judge must balance the issues of fairness and be mindful of both parties. In doing so, a trial judge should exercise restraint and should maintain impartiality. While a trial judge may wish to exercise some leeway in procedural matters to the self-represented litigant, he or she must never become an advocate for the self-represented litigant. Finally, a trial judge must not allow assistance to a self-represented litigant to result in the represented side’s rights being overridden.
Application of the Facts to the Case Law
[46] In our view, to the detriment of the Appellant, the trial judge did not conduct himself within the above-mentioned accepted legal principles. We are of the view that before a trial begins when there is a self-represented litigant, the trial judge should conduct some preliminary questions to define the issues and to ensure that the matter is ready to proceed. In this case, the Respondent arrived at the court house with a box of documents that opposing counsel had not yet reviewed. This scenario happens with some frequency, and is a red flag that one of the parties may not be ready to proceed or may provide some challenges that need to be addressed.
[47] It is not clear from the transcript whether the trial judge was aware that the Respondent was in breach of two court orders requiring the filing of the usual updated family law forms, fulfillment of undertakings, and most importantly, valuation of the disputed assets.
[48] At the very beginning of the trial, the trial judge set the tone for what was going to happen that day. Counsel for the Appellant informed the trial judge that the Respondent had been represented by counsel but was now self-represented. The trial judge did not explain any of the court process to the Respondent. Perhaps because he was aware that the Respondent had previously been represented by counsel, he assumed that the Respondent would understand the process. However, this time was to be different. This was the trial date. Other than inviting the Respondent to sit down and once telling him he would have his chance to speak, the trial judge did not meaningfully address the Respondent until 19 pages later.
[49] The judge quite properly asked counsel for the Appellant what the case was about. As she started describing it, he asked her a number of questions, which she answered. Then, after only two pages of transcript, the trial judge said “Well, can you tell me a little bit about it so that I do not have to conduct an examination for discovery? What … tell me about the case?” Again, counsel attempted to provide an opening statement. Again, the judge questioned her, and again she answered his questions. One page of the transcript later, the trial judge said again, “Tell me about your case. You know, what are the issues? What is the background? How do you intend to prove it? What witnesses do you intend to call? You know, give me an opening statement.” Despite inviting counsel to provide an opening statement, the trial judge interrupted her submissions throughout, peppering her with questions, which she answered
[50] Having heard what the Appellant was seeking, the trial judge finally addressed the Respondent: “Mr. Cicciarella you are representing yourself, are you”? For the next 15 pages of transcript, the trial judge questioned the Respondent, who, of course, was unsworn at this point. It was during this time that he directed the Respondent to hand him the Settlement Conference Brief to which we referred earlier. The judge appears from the transcript to then question the Respondent on the basis of that confidential Brief. Not once had he yet explained the process that was to be followed. There was no explanation of any trial procedure, and nothing about what would be expected of the Respondent.
[51] After deciding that the child support issue was settled, the judge directed counsel for the Appellant to call her evidence. During counsel’s examination-in-chief of the Appellant, the trial judge participated heavily, but not improperly, although twice he entered two exhibits without counsel having asked that they be entered as exhibits.
[52] When it was the Respondent’s turn to cross-examine the Appellant, he started asking some questions but did not know how to properly formulate his questions. That is not uncommon for a self-represented litigant. The judge then assisted in the questioning; that too is not uncommon. However, the trial judge went further. When, in the course of cross-examination, the Respondent found “another set of papers,” the trial judge told him to “pass it up” so he could “have a look at it.” Counsel for the Appellant asked the judge what the document was: “I'm sorry, sir, can I ask what it is that he’s handed you”? He described it to her and then appears to have given it to her to examine. At this point it became apparent that the document was the Appellant’s case conference brief that had been used in the Ontario Court of Justice in support of a motion for interim custody and support. The following exchange continued:
Ms. Miller: Yes, I’ve seen that affidavit. This is a case conference brief that Mrs. Cicciarella had done with all the documents that are – that are next to it.
The Court: So, pass it back to me?
Ms. Miller: So, pass it up?
The Court: Let us take this affidavit out of here, Mr. Cicciarella.
[53] At this point, the trial judge appears to have removed the Appellant’s affidavit from her case conference brief. He then questioned her on her affidavit that she had sworn back in October 1997 and filed early in the process. After she had answered his questions, he entered her own affidavit as an exhibit during her cross-examination. He conducted almost all of the Respondent’s entire cross-examination of the Appellant, using as he did so, the contents of the Respondent’s Settlement Conference Brief and the Appellant’s case conference brief.
[54] The Appellant called no further evidence. The judge then asked the Respondent if he wished to testify, saying “Some – some evidence you have in…I have some evidence for what the car was worth.” Although the Appellant herself had testified about what the cars were worth, given the disagreement between the Appellant and the Respondent in this area, it appears that the trial judge was referring to the Respondent’s unsworn opening comments at the beginning of the trial as “evidence.”
[55] The Respondent’s 16 page examination-in-chief was conducted entirely by the trial judge. The trial judge has a discretion, or course, to provide assistance, if necessary, but should not assume the role of counsel for the unrepresented party. What is evident from a review of the transcript is that the trial judge took over and conducted the Respondent’s case for him. As is clear from the case law, this is not the appropriate role of the trial judge.
Was the Appellant denied procedural fairness?
[56] The Appellant asserts that the trial judge was not even-handed in his treatment of the parties. She also alleges that the trial judge’s frequent interventions substantially interfered with the trial process. We agree.
[57] The trial judge in essence assumed the role of counsel for the Respondent, allowing him great latitude notwithstanding the Respondent’s failure to file required documents for the trial, and his breach of two court orders.
[58] By way of sharp contrast, the trial judge was short, strict and impatient in his treatment of counsel for the Appellant. Obviously it is not possible to hear the tone in a transcript, but sometimes the tone and atmosphere in the courtroom comes across in a thorough reading of the entire transcript. In our view, the tone does come through here, and it was not in a way that would do justice to one of the most fundamental principles of our case law, most often quoted in Lord Hewart’s judgment in R. v. Sussex Justices; ex parte McCarthy, [1924] 1 K.B. 256, at p. 259: “… [it] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
[59] In this case, a review of the transcript reveals that not only did the trial judge assume the role of advocate for the Respondent, but also he severely limited Appellant counsel’s cross-examination of the Respondent, as well as her submissions at the conclusion of the trial. There were many interruptions; we have selected only a few for illustrative purposes.
[60] For example, Appellant’s counsel was not allowed to ask questions about receipts for car parts as the trial judge said these receipts were not relevant. The Appellant relied on these receipts as evidence of the significant investment in the show cars during the marriage. The Respondent claimed the tools had all been stolen. The trial transcript reads as follows:
The Court: Well, what happened to these car parts?
Mr. Cicciarella: They’re all gone.
The Court: Where are they gone?
Mr. Cicciarella: To the Rod Shop.
The Court: And what happened to them there?
Mr. Cicciarella: He stole them and that’s why I was trying to get that claim.
The Court: Yes.
Ms McLeod: Your Honour we have…
The Court: Yes. So, that is the story on that.
Ms McLeod: …five years worth of receipts…
Mr. Cicciarella: That’s the story when I – I tried to clean my hands on somebody else…
The Court: That is the story on it. And that is the end of the examination on car parts.
Ms McLeod: We have…
The Court: What else do you want to examine him on?
Ms McLeod: Okay. Okay. Can I…may I ask a question about it because these receipts Your Honour range from 1984 to 1989 before the car show, five years of all kinds of different very expensive receipts.
The Court: Yes.
Ms McLeod: And he’s saying that oh it was all for this one experience at the Rod Shop. We actually have the statement of claim at the Rod Shop that shows what was at the Rod Shop. And those parts do not match up to the receipts that we have today Your Honour. And we’re dealing with very expensive wheels and so forth.
The Court: Can you ask a question on it? The answer is no. The questioning on the car parts is over. Now, what is the next thing you want to question him on? [Emphasis added.]
[61] While the trial judge had been permissive in allowing the Respondent to proceed without having filed the necessary materials, the trial judge refused the Appellant’s request to amend the Net Family Property Statement to include the claim for arrears of child support:
The Court: So, what do you want to do with these figures? You want to add, you want to adjust your net family property statement by adding them in? Is that what you want to do?
Ms Miller: Yeah. It would be 1,807 would be added back in.
The court: Yes. Well, it is too late. You have filed a…
Ms Miller: Well, my…
The court: …net family property statement and I am not permitting it to be amended. So, give that document back to Ms. Miller. [Emphasis added.]
[62] Intervention and interruptions by the trial judge were frequent throughout the trial and continued during closing submissions by Appellant’s counsel. Presumably because the trial judge had already decided what his decision was going to be, he made no invitation to the Respondent to provide submissions. Appellant’s counsel was not given adequate opportunity to tie the evidence together and complete submissions with respect to the issues. It appears that instead, the trial judge questioned each attempt by the Appellant to make a submission
The Court: So, the Camaro cancels itself out which leaves you with a Nova, a 100 dollars, 1977 Camaro, 800 dollars, tools, 600 dollars. And you have got no appraisals. And you have only got his evidence. Is that not right?
Ms Miller: Well…
The Court: So, you have got nothing.
Ms Miller: The only – the only other evidence is the loan application. That’s right.
The court: You have got nothing.
Ms Miller: And you’ve told me that you’re not taken for – you’re not taking the loan application. You made that clear…
The court: Yes.
Ms Miller: …that you’re not putting any weight on that. I just don’t want to make…
The court: So, you have got nothing – you have got nothing. No evidence to establish the value of these assets. You have got no appraisals. You have got nothing.
Ms Miller: Well, with respect…
The court: You have got what she says, what he says. Neither of whom have any expertise in the appraisal of vehicles. So, you have got zero. [Emphasis added.]
[63] During submissions, it became evident that the judge missed some of the evidence. This resulted in counsel reminding the trial judge to include the Respondent’s evidence about a Suburban vehicle. The following discussion ensued:
Ms. Miller: I think you have to add to that list sir if you’re working off of his evidence the Suburban, which he had.
The Court: But did he not say he sold that?
Ms. Miller: No. I don’t think so.
The Court: Before he separated?
Ms. Miller: I – I don’t think that was his evidence Your Honour. I may stand corrected.
Mr. Cicciarella: No, Your Honour. That – that truck is all rotted out. And I’ve been keeping it for just in case they need…they want…
The Court: Yes. All right. It was rotted out. Yes. That is his evidence. We have the bill of sale in 1990 for 7,451 dollars. It was rotted out by the time they separated. It is worth nothing.
[64] First, the judge had been wrong with respect to the evidence about the Suburban and it was corrected by the Respondent during Appellant counsel’s submissions. Second, the judge now purported to accept the unsworn submission of the Respondent as evidence. No opportunity, of course, had been provided to counsel for the Appellant to cross-examine on this new “evidence.”
[65] We conclude that the repeated interruptions by the trial judge, and the active role he assumed on behalf of the Respondent gave the appearance that he was assisting the Respondent to the detriment of the Appellant. As in Shoppers Mortgage & Loan, above, at para. 26, one cannot help but feel that Appellant’s counsel may have been unnerved in the presentation of the case and may have been deprived of the opportunity to put the case properly before the court. Indeed, the transcript discloses this.
[66] In Shoppers, the Ontario Court of Appeal repeated what Dubin J.A. had said 13 years earlier in J.M.W. Recycling Inc. v. Canada (Attorney General), (1982), 1982 1947 (ON CA), 35 O.R. (2d) 355 at p. 362 and with which we apply to the facts of this case: “even if a trial judge forms the view early in the proceedings that a party’s case is weak, it is fundamental that every litigant have a fair trial. However well intentioned the trial judge may have been, his conduct in this case deprived the [Appellant] of that fair trial to which [she] was entitled.” As Dubin, J.A. also quoted in J.M.W. Recycling: Justice in full takes time: but often it is time well spent.
[67] The Supreme Court of Canada said in Brouillard, at para. 20: “… everyone agrees that a judge has a right and, where necessary, a duty to ask questions, but also that there are certain definite limits on this right.” Here, in our view, the trial judge went beyond acceptable limits. It may be that the trial judge meant to be impartial. However, as in Brouillard, at para. 14, we feel “obliged to conclude that, by his conduct, the trial judge allowed there to be some doubt on this subject, which only a new trial can erase.” The absence of the appearance of even-handed treatment of the litigants tainted the appearance of fairness and impartiality which is fundamental to every trial.
The Use of Settlement Conference and Case Conference Briefs
[68] As mentioned above, the trial judge used two separate documents that had not been put before him. The first was the Settlement Conference Brief, with attached evidence, prepared by the Respondent for a settlement conference on April 11, 2007: Transcript of Trial, page 29, lines 17-31 and page 30, lines1-14. From this Brief, he pulled two documents and entered them as exhibits.
[69] Next, he directed that the Appellant’s Case Conference Brief, with attached evidence, be handed to him. This was the wife’s Brief that had been prepared on January 15, 2007 and it included the portion that dealt with settlement of the case. That portion of was not deleted as required by the rules. Further, as mentioned earlier, the trial judge took evidence from that Brief, consisting of the Appellant’s affidavit, and entered it as an exhibit.
[70] The relevant portions of the Family Law Rules, O. Reg. 114/99 are as follows:
Rule 17(22.1) – If the court orders that a case conference brief form part of the continuing record, that portion of the brief that deals with settlement of the case shall be deleted.
Rule 17(23) – No brief or evidence prepared or a settlement conference and no statement made at a settlement conference shall be disclosed to any other judge, except in,
(a) an agreement reached at a settlement conference; or
(b) an order.
[71] Courts have found Rule 17(23) to apply even in assessing costs: Entwistle v. MacArthur, 2007 17375 (ON SC), [2007] O.J. No. 1958 (S.C.J.); Bordynuik v. Bordynuik, 2008 39219 (ON SC), [2008] O.J. No. 3049 (S.C.J.); Guy v. Tulloch, [2004] O.J. No. 2198; and Butler v. Butler, [2007] O.J. No. 1898. In Entwistle, Pazaratz J. noted at para. 32:
Combined with subrule 17(24) ("A judge who conducts a settlement conference about an issue shall not hear the issue ..."), it is clear that the insular nature of settlement conference materials and discussions is intended to be impermeable.
[72] The trial judge relied on information from the Settlement Conference Brief in questioning the witnesses and in reaching his conclusion: see Transcript of Trial, p. 58, lines 14-26; p. 59, lines 24-26; page 80, lines 12-29 (which shows that the trial judge appears to have looked through the entire Brief). In addition, the trial judge relied on the Appellant’s Case Conference Brief, handed to him by the Respondent, took the Appellant’s affidavit from the brief, questioned the Appellant on her affidavit and then entered it as an exhibit: see Transcript of Trial, p. 81, lines 14-31; p. 82, lines 1-19; and p. 84, lines 10-12. He also entered an exhibit taken from one of the Briefs: see Transcript, page 98, lines 1-5; page 99, lines 1-6.
[73] We are of the view that it was an error of law for the trial judge to have received and relied on the Settlement Conference Brief and the Case Conference Brief in this manner. While the Respondent was representing himself and some reasonable latitude may be appropriate, the reason the trial judge found himself using these Briefs was because the Respondent himself was in breach of his obligations to file required documents at the opening of the trial. The parties had not reached an agreement at the settlement conference and there was no Order to disclose the briefs to any other judge, nor were the portions of each brief dealing with settlement offers deleted, as required by rule 17(22.1).
[74] Under the circumstances, and combined with the other errors mentioned above, the use of the Settlement Conference Brief was a breach of the Rules and served to further undermine any appearance of fairness
The Duty to Give Sufficient Reasons for Judgment
[75] The Appellant submits that the trial judge failed to provide adequate reasons for his decision.
[76] Consisting of three short paragraphs, the reasons are decidedly brief. Reasons do not need to be lengthy, but these oral reasons, given from the bench following submissions by the Appellant, are conclusory and do not explain how the trial judge reached his decision. In the first paragraph, he dealt with the issue regarding the date of separation; in the second and third, he dealt with equalization. A careful reader of the transcript, though, might be able to glean the trial judge’s reasons from reading the entire transcript and, in particular, the discussion between the judge and Appellant’s counsel during final submissions.
[77] Were this the only issue on appeal, we would have been reluctant to remit the matter for a new trial based exclusively on the inadequacy of the reasons. However, combined with all the other issues we have addressed, we conclude that the brief reasons do not do an adequate job of telling the Appellant why she lost. The reasons do not identify and analyze the contested issues to justify or explain the result, especially in the area of the contested evidence with respect to the value of the main assets, as required in R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, R. v. Walker, [2008] 2 S.C.R. 245, 2008 SCC 34, and R. v. R.E.M., 2008 SCC 51.
Conclusion
[78] We conclude that there were sufficient errors made in the conduct of this trial that require the matter be reheard as, cumulatively, the errors are palpable and overriding, and as there has been a breach of the principles of fairness requiring a new trial. We reach this conclusion with reluctance because we are all too aware that this matter has been before the courts for many years and that it is in the parties’ interests to have this matter resolved. Unfortunately, the problems with the record do not make it possible for us to substitute our decision for that of the trial judge. We recognize that the amounts in dispute are modest but these modest amounts are of obvious importance to the parties.
[79] For the reasons outlined, we conclude that the appeal should be granted, the Order of the trial judge should be set aside, and the matter should be remitted for a trial to be heard by another judge.
[80] The Respondent still has not complied with the outstanding Orders to conduct valuations of his cars and tools and to provide an updated Financial Statement and a Net Family Property statement. It is not clear whether he complied with his undertakings and refusals from his discovery. If he has not done so, the Order of Glithero J. in this regard is still outstanding.
[81] We strongly urge the parties to attend a trial management conference to ensure that the relevant documentation is prepared and that evaluations are available when this matter proceeds to trial.
Costs
[82] The Appellant seeks costs of this appeal in the amount of $17,666.25. That includes costs for the erroneous appearance before the Court of Appeal. Given the grounds of reversal, it seems to us that this is an appropriate case to exercise our discretion and to award no costs of the appeal. Costs of the trial are to be determined by the judge hearing the new trial.
JENNINGS J.
JANET WILSON J.
BELLAMY J.
RELEASED: June 30, 2009
COURT FILE NO.: 573/08
DATE: 20090630
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THE COURT
B E T W E E N:
KAREN ROSEMARIE CICCIARELLA
Applicant
(Appellant)
- and -
JOHN CICCIARELLA
Respondent
(Respondent in Appeal)
REASONS FOR JUDGMENT
Released: June 30, 2009