Court File and Parties
CITATION: Bevan v. Varcoe, 2020 ONSC 6798
DIVISIONAL COURT FILE NO.: 178/20
DATE: 20201105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse and D.L. Corbett JJ.
B E T W E E N:
Melanie Meghan Bevan
Ms. Bevan, self-represented
Respondent (Applicant)
- and -
Christopher Varcoe
John J. Adair, Chris Grisdale, Kristen Normandin and Jared Teitel for the Appellant (Respondent)
Stephen Codas for the Office of the Children’s Lawyer
Heard by videoconference at Toronto: November 3, 2020
REASONS FOR DECISION
The court
[1] In refusing leave to appeal in May 2020, this court directed the case management judge to hear the recusal motion before or in the course of hearing any contested step in the proceedings – but also stated that the case management judge did not err in finding that the recusal motion, in the absence of a contested step, was not urgent.
[2] The case management judge has concluded that the recusal motion is a long motion. Under current protocols the motion cannot be heard during COVID-19.
[3] In June 2020, the OCL brought a contested motion. The case management judge found that he could not hear the contested motion without hearing the recusal motion, and that he could not hear the recusal motion because it is a long motion. In the result he adjourned the OCL motion until such time as the recusal motion is heard. In the interim he offered to act as a case conference judge, an offer he acknowledged that the respondent father was unwilling to accept because of the father’s position that the case management judge had displayed a reasonable apprehension of bias.
[4] The case management judge’s approach puts this family in a state of limbo, or legal paralysis: nothing can be done – urgent or otherwise – until the recusal motion is heard, and the recusal motion cannot be heard during COVID-19 because it is a long motion. The case management judge’s offer of presiding over a case conference to try and settle the contested matter provides no solution to this paralysis. The father is not willing to attend a case conference before the very judge that he is alleging is biased against him. Until his allegations of bias are heard it cannot be said that his position is unreasonable, nor can the court compel him to agree to anything at that case conference. From the children’s perspective, their interests cannot be effectively addressed by the court, a situation that everyone accepts inappropriately leaves them in limbo.
[5] The OCL’s contested motion brought in June 2020 was resolved by the parties with the help of a therapist. However, in September of 2020 issues arose with respect to the eldest child, who is 17, and her desire to be in charge of the time that she spends with her parents. As a result, the OCL advised that it was going to bring another motion that it was seeking to have heard on an urgent basis.
[6] On October 23, 2020 the case management judge issued an endorsement in which he acknowledged the negative effect of delay on the children, but found that he could not hear the OCL’s motion until either the Divisional Court had made its decision in this appeal or until the hearing of the recusal motion.
[7] With respect, this court’s direction that if a contested motion was brought the recusal motion had to be heard was not intended to bring about a state of legal paralysis. The case management judge’s options, when faced with the contested OCL motions were as follows:
(a) Ask the RSJ of his Region to appoint a new case management judge, not because the judge conceded the recusal motion had merit, but because, in the exigencies of the COVID-19 crisis, the recusal motion could not be disposed of in a timely way;
(b) Forthwith hear and decide the recusal motion in a proportionate process designed in the context of the constraints on the justice system during the COVID-19 crisis;
(c) Direct that the OCL motion be heard by another judge, given the case management judge’s inability to hear the recusal motion.
[8] This court must now bring the legal paralysis to an end. We allow the appeal and direct the RSJ of the Central East region to appoint a judge for this case to fulfill the role of case management judge on a temporary basis until the recusal motion is heard and decided. If the case management judge requests it, the appointment could be a permanent one, in which case there may be no need to hear the recusal motion. Otherwise, the parties shall confer with the current case management judge to establish a schedule for hearing the recusal motion.
[9] Order accordingly; there shall be no order for costs.
Sachs J.
Backhouse J.
D.L. Corbett J.
Released: November 5, 2020
CITATION: Bevan v. Varcoe, 2020 ONSC 6798
DIVISIONAL COURT FILE NO.: 178/20
DATE: 20201105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse and D.L. Corbett JJ.
BETWEEN:
Melanie Meghan Bevan
Respondent on Appeal/Applicant
- and –
Christopher Varcoe
Appellant on Appeal / Respondent
REASONS FOR DECISION
D.L. Corbett J.
Released: November 5, 2020