SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 961/14
DATE: 20150120
RE: JENNIFER KINGDON, Applicant
AND:
BORIS KRAMER, Respondent
BEFORE: Trimble J.
COUNSEL: Gargi Chopra, Counsel for the Applicant
Boris Kramer, Respondent, Self-Represented
Stuart Law, Counsel for Jacob Kingdon
HEARD: January 14, 2015
ENDORSEMENT
[1] On January 14, 2015 the parties appeared before me pursuant to Edwards J.’s Endorsement of December 17, 2014. Three motions were before Edwards J.
a. The Applicant Wife moved for an order setting a date to hear those issues I did not hear on September 24th; ordering the Respondent Husband to attend his ‘parenting issues’, participate in counselling with Jacob, and assist the Wife in accessing counselling with Jacob once a week; appointing a reintegration counsellor; ordering the Husband to take Jacob to all his medical appointments; and ordering the Husband to not remove Jacob from the jurisdiction and to surrender Jacob’s passport and Nexus card.
b. The Husband moved for an order terminating spousal support retroactive to January 1, 2014, terminating child support retroactive to May 22nd, an ordering repayment of overpayment; ordering that the Wife pay child support to the Husband; ordering that Jacob’s ODSP be paid to the Husband or a third party on Jacob’s behalf; and ordering that the Wife pay her 50 per cent of Jacob’s pro-tem solicitor’s (Stuart Law) legal bill as I ordered on September 26th.
c. The Wife brought a cross motion for an order assessing Mr. Law’s accounts.
[2] Justice Edwards ordered on December 17th that on January 14th, the issue of appointing a reintegration counselor should proceed. He said that the matter had to go to trial and set a Trial Management Conference date of April 8, 2015.
[3] In preparing for the January 14th motion, I reviewed the record. I was already familiar with it, having been involved in it since September 23rd. There were a number of issues that required attention, in my view. In addition to the reintegration counsellor issue, as indicated in my handwritten endorsement of January 14th, I thought I should assess Mr. Law’s accounts. Mr. Law asked that I address outstanding costs reserved to me. The Wife asked that I also address the issue of Jacob missing medical appointments.
[4] The argument over what I should hear became heated. The Wife insisted that the only matter that was before the Court on January 14th was the appointment of the reintegration counsellor, notwithstanding that she had asked me to address Jacob’s missed medical appointments. As the matter was clearly bogging down procedurally (more of this later) I asked for submissions as to why I should not manage the case.
[5] Jacob and the Husband agreed. The Wife opposed, submitting that there was a reasonable apprehension that I was biased and, for that reason, I could not case manage the case. She submitted that because of unspecified comments I made in a teleconference (for procedural purposes, and hence, not with the benefit of a record), comments I made in open Court, and the fact that I offered in one teleconference to recuse myself if that was the Wife’s requirement, left the Wife with the “perception of bias” on my part, and left her and her client with the view that I had “palpable negativity to counsel [for the Applicant] and the Applicant”. She said that this was not the ‘best recipe’ for the further conduct of the application.
[6] Notwithstanding her position that there was the perception that I am biased, the Wife wanted me to decide the issue of reintegration counselling. I advised her that since she raised the issues of the reasonable apprehension that I am biased, I could not decide any issue until I had considered whether there was a reasonable apprehension that I was biased. She indicated that she was not bringing a motion for recusal, but would not abandon the apprehension of bias as her grounds for opposing my suggestion that I case manage this action. I advised her that if she considered that there was a reasonable apprehension of bias for one purpose, then it is for all purposes. The only remedy available once a judge is alleged to be biased or that there is a real apprehension that s/he is biased is recusal.
THE ISSUES:
[7] There are two issues in this motion:
a. Whether I should recuse myself from this file because there is a reasonable apprehension that I am biased. In other words, would a reasonable and right-minded person, applying him or herself to the question, having all the necessary information, and having thought the matter through, reasonably conclude that, consciously or unconsciously, I could not decide the matter fairly or impartially?
b. Whether I should appoint myself as Case Management Judge on this file, and hear all interlocutory proceedings?
DISPOSITION:
[8] I dismiss the recusal motion. The Wife has not met the high test required of her. I appoint myself as Case Management Judge on this file.
REASONABLE APPREHENSION OF BIAS:
1) The Test:
[9] The issue of the reasonable apprehension of bias of a judge has been dealt with most authoritatively in Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259. In addition, the issue is extensively reviewed in Rourk v. City of Toronto, 2012 ONSC 2563 (Div. Ct.); R. v. R.D.S., 1997 324 (SCC), [1997] 3 S.C.R. 484; Ontario (Commissioner, Provincial Police) v. MacDonald, 2009 ONCA 805 805; Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369; Marchand v. Public General Hospital Society of Chatham, (2000) 2000 16946 (ON CA), 51 O.R. (3d) 97 (C.A.); Bailey v. Barbour, 2014 ONSC 3698, Bailey v. Barbour, 2012 ONCA 325; and Benedict v. Ontario, (2000) 2000 16884 (ON CA), 51 O.R. (3d) 147 (C.A.).
[10] From these cases, I discern the following applicable principles:
a. One of the foundational principles of our judicial system is that judges are impartial, and decide cases with an open mind, without bias or prejudice. Public confidence in our legal system is roofed in this presumption.
b. The applicable test is: What would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through, conclude? Would he or she think it more likely than not that the judge, whether consciously or unconsciously, would not decide fairly?
c. The test is objective and includes that the reasonable, right-minded person would know about the context surrounding the Judge’s impugned behaviour including the length and difficulty of the proceedings. In other words, the analysis is contextual and fact specific.
d. Any request made of a judge to recuse him/herself on the grounds of possible bias, by its nature, brings into question, not only the behaviour of the judge (in essence, the allegation is that s/he violated his/her judicial oath), but the impartiality of the process.
e. There is a strong presumption of judicial impartiality which is key to the judicial process. It carries “considerable weight”. Therefore, the allegation of perception of bias must be based on serious grounds.
f. In order to overcome the strong presumption of judicial integrity, the test, or threshold that the proffering party must meet is a high one.
g. The quality of the evidence necessary to prove a reasonable apprehension of bias must be high. The reasonable apprehension of bias is not a surrogate for unavailable evidence, or a device to establish the likelihood of unconscious bias.
h. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her function impartially, in a particular case.
i. A Judge must determine all issues of fact and law before him/her. In addition, he must conduct the Court’s processes in an efficient, effective and fair manner.
j. This is even more important in family matters where the primary objective under Family Law Rule 2(2) requires the Court to deal with matters “justly”. “Justly”, is defined in Rule 2(3). Unlike in regular litigation, the Family Law Rules provide the Court with great latitude in how to adjudicate fairly. Unrequested orders may be made [see Titova v. Titov, 2012 ONCA 864]. The Legislature intended that Judges should treat family matters differently in order to obtain fair, expeditious and cost effective resolution, requiring that the Judge keep in mind the apportionment of scarce resources over all cases. Judges are required to give an individual case the attention it deserves, relative to other cases [see Children’s Aid Society of Toronto v. B.S., [2002] O.J. No. 1434 (Ont. C.J.].
k. Stern words from, or impatience on anger on behalf of the Judge is not enough to establish bias.
2) The Result:
[11] In this case, I find that an informed, reasonable, and right-minded person, viewing the matter realistically and practically, and having thought the matter through, would not conclude that I, whether consciously or unconsciously, could not decide the matter fairly.
[12] The Wife has failed to meet the high threshold required. She founds her argument of reasonable apprehension of bias on unspecified statements I made in a teleconference, and unspecified statements I made in the January 14th hearing. She does not provide specificity as to these statements. She has failed to establish that the statements and bias is “serious” as required by the cases.
[13] In any event, her motion cannot be founded in statements made in the teleconferences referred to. I will deal with these further, below. For present purposes, however, these teleconferences, as agreed to by the parties, were to be procedural only, held to make sure that the parties were taking the steps set out in, and necessary to give effect to, my order of September 26th. There were to be no substantive orders made. Therefore, the discussions as agreed to by all parties, were by way of teleconference, and not in open Court. All parties knew that there was to be no record running.
CASE MANAGEMENT:
1) The Procedural Facts:
[14] MOTION TO CHANGE: This case has a long, complex history. Justice Scott, by Order dated January 12, 2002 and June 3, 2003, awarded custody of Jacob, then eight years old, to the Applicant Wife, with liberal access to the Husband. The Husband was to pay child and spousal support.
[15] Jacob, now 19, is a challenged young man, having been born with physical and profound mental disabilities. His medical records submitted to the Court show that he required two heart transplants, conducted when he was very young. Because of this, he requires regular medical supervision.
[16] Intellectually, some assessors have assessed him as having a mild intellectual disability, and others, a more serious disability. His functioning is consistent with defects in that part of his brain that processes and synthesizes incoming visual and sensory-based details, as well as executive function. He functions well below his expected age levels across most intellectual domains including general intelligence, math, literacy, processing speed, auditory working memory, visual-perception skills, manual dexterity and aspects of daily living. He is described as having the mentality of an eight year old child.
[17] In addition to his mental and intellectual limitations, Jacob has fought depression, and from time to time has had suicidal ideation, although not acted upon.
[18] By Motion to Change dated February 19, 2014, the Husband seeks to alter the support quantum ordered in 2012. He does not seek to change custody. He does ask for relief whereby access should continue as ordered, but that the son be free to determine where he lives and during what time periods, and that he be free to travel.
[19] MOTIONS ON SEPTEMBER 23, 2014: The following motions were before the Court on September 23rd:
Husband’s motion dated May 12, 2014 to amend the Motion to Change to include a request for an order that Jacob (having turned 18 on January 11, 2014) is an adult and free of any restrictions imposed on him, that Jacob can retain and instruct counsel in this matter, and Jacob be assessed as to his capacity to retain and instruct counsel. There is a request to enjoin the mother from doing all sorts of things in respect of Jacob.
Wife’s motion dated May 30, 2014 for order that the Husband return the child to her, suspending his access rights, and enjoining him from contacting anyone about the son without the Wife’s written consent. She also seeks costs personally against Mr. Law, the lawyer the Husband retained to act for Jacob, and that Mr Law disgorge all correspondence between the Husband and Mr. Law.
Wife’s motion dated July 21, 2014 for an order that the Husband be enjoined from removing Jacob from the jurisdiction.
Wife’s motion dated July 8, 2014 for contempt on the grounds that the Husband violated the orders of Justice Scott by not returning the son after an access period ending May 26, 2014, and an order that the Husband take counselling by a professional named by the Wife and that he have no contact with Jacob that would “negatively impact his relationship with the Applicant”. Again, she asks for costs against Mr. Law, personally.
[20] After the Motion to Change was brought, two things happened. First, in May, 2014, Jacob, after turning 18, became angry with his mother, and wanted to live with his father. He moved in with his father shortly thereafter. Second, Jacob wanted to obtain his driver’s licence. The Husband facilitated his obtaining his G1 or beginner’s licence.
[21] It is important to note that, aside from Justice Scott’s custody order, there is no order for guardianship, for Jacob, notwithstanding his limitations.
[22] On June 4th, on consent, an assessment was agreed to with regard to Jacob’s ability to make the decision to live alone. By order of Coats J., the cost of the assessment was shared between the parents, subject to later reapportionment.
[23] Elizabeth Milojovic, the Capacity Assessor selected by the parties, provided the capacity assessment. She advised that Jacob could only live independently in the community with significant supports. However, because of his “significant intellectual disability … he is … unable to appreciate that he requires assistance with skill development and requires various supports…” In her opinion he is not capable of making decisions related to his place of residence (see her report, July 3, 2014, Cont. Rec., tab 16a).
[24] After the Husband assisted Jacob in obtaining his G1 licence, Ms Milojovic was asked to provide an assessment as to whether Jacob had the capacity to hold a driver’s licence and to drive a car. In her opinion (supported by Jacob’s Neurologist, Dr. Gold), Jacob did not have the higher function and speed of processing necessary to be capable of driving a car (see her report, July 14, 2014, Cont. Rec., tab 16b).
[25] The threshold issue that I had to address on September 23rd was whether Jacob had capacity to retain and instruct a lawyer.
[26] At the beginning of that hearing, all counsel agreed that all parties should be absent from the Court to spare Jacob any anxiety that might arise from his hearing what might be said at the motion, and from being excluded from the hearing when his parents were not.
[27] At the beginning of the September 23rd hearing, the Wife raised the objection to Jacob’s having counsel at the hearing as the motions were all between the spouses. The objection was abandoned after counsel met to discuss the issue. I expressed my concern that since there was no order for guardianship, and since the assessor had raised doubts about of Jacob’s capacity to retain and instruct counsel, I had a question as to the fact that Jacob may not have capacity to retain and instruct a lawyer, but that he had to be represented.
[28] On September 26th, on consent, I ordered (inter alia) that Ms Milojovic conduct an assessment of whether Jacob had capacity to retain and instruct a lawyer. If she decided that Jacob did not, I ordered that Mr. Law should contact the Public Guardian and Trustee (“PGT”) to consider whether under section 55 of the Substitute Decisions Act, it would consent to be the guardian of and counsel for Jacob, pending further order of the Court.
[29] As customary in orders in family matters in Milton, on consent, I ordered the parties to convene a conference call with me at 9:00 a.m., on a day six weeks hence. The call was to be procedural only, to report on compliance with this order; namely whether Ms Milojovic’s assessment is completed and the PGT has spoken. The PGT is to be invited to participate in that call either in person, or by way of a written status report.
[30] The motion on September 23rd was hard fought. Positions on the merits of the motion were hard-held, hard-argued, and counsel represented their clients aggressively, especially the Wife. The most aggressively held position was the Husband’s that Jacob needs little supervision, and can drive a car and live in the community, and the Wife’s that he could not. The Wife advanced the equally hard-held and hard-fought view that Mr. Law, the lawyer the Husband retained to speak for and represent Jacob, should not be present because Jacob was not a party. This issue was set aside, without prejudice, for the moment.
[31] Part of my concern on September 23rd with respect to Jacob’s capacity and representation was that Jacob was 18. It was arguable that Scott J.’s custody order no longer applied. There is a presumption of capacity in s. 2 of the Substitute Decisions Act, 1992, S.O. 1992; namely, that a person has full capacity once s/he reaches 18 years of age. All counsel agreed that if Jacob is found, ultimately, to be incompetent to retain and instruct a lawyer then he will likely be held to be a child of the marriage under s. 2(1) of the Divorce Act, and hence, subject to the Court’s jurisdiction over children of the marriage. Further, Ms Milojovic’s opinions to that point in time gave me great concern that the presumption in s. 2 of the Substitute Decisions Act may not be valid in this case.
[32] TELECONFERENCE NOVEMBER 14, 2014: The first teleconference after September 26th occurred on November 14th, shortly after the assessor delivered her report finding that Jacob did not have the capacity to retain and instruct counsel. Mr. Law reported that since the report was only one day old he would send it immediately to the PGT.
[33] TELECONFERENCE DECEMBER 10, 2014: The PGT participated. As reflected in my endorsement, the PGT advised that it had no authority to act under s. 55 of the Substitute Decision Act. However, it would review any request for the appointment of a guardian under s. 3 and would review any treatment plans. Once the request was made concerning an order for guardianship, the Court could order that the PGT be appointed as counsel for Jacob.
[34] As reflected in my endorsement, while trying to timetable further steps, the Wife renewed her objection to Mr. Law’s participation on behalf of Jacob, and her objection to the informal process that all parties had agreed to use, to date. I held that I could no longer continue to use informal teleconferences to try to shepherd the procedural steps necessary to determine guardianship of and representation for Jacob so that the merits of the Motion to Change and the motions brought by the parties could be heard fairly and economically on their merits. I ordered that the informal process was at an end, and that all further Court involvement would have to be through motions, properly served. I also noted that the Wife’s objections to the informal process to shepherd the matter along, procedurally, ought to have been raised long before December 10th. Her objection, at that time, made the two teleconferences a waste of time. I said that I would consider this in costs, at the appropriate time.
[35] It is against this factual background that the most recent motions were brought.
2) Decision on Case Management
[36] I order that I am appointed Case Management Judge in respect of this file. In that capacity, I will hear all interlocutory steps in this dispute, including all motions and conferences. As Case Management Judge, I cannot hear the trial of the matter.
[37] I make this order since, as I advised the parties on January 14th, the matter has bogged down, procedurally. Since the Motion to Change was brought on February 19, 2014, there have been seven motions brought. Those motions have resulted in eight attendances before the Court and one before a Dispute Resolution Officer. There have been two adjournments, and two teleconferences. The Husband’s Motion to Change was brought eleven months ago and the first motion, nine months ago. Yet, with all of this activity, with all of the fees and disbursements accompanying this activity, nothing has been resolved on the merits. Rather, the parties have squabbled over almost every aspect of this case, including Jacob’s guardianship and representation before this Court. The Wife has raised, repeatedly, her objection to Jacob having counsel on these motions, especially counsel appointed by the Husband, notwithstanding Mr. Law’s confirmation to the Court that he neither reports to nor takes instruction from the Husband, and notwithstanding that the Wife has participated in the attempt to find counsel for Jacob, pro tem, until the motion on the subject can be dealt with on its merits. The primary objective of Family Law Rule 2(2) seems to have been lost.
[38] The parties’ disagreement over representation for Jacob is unbelievable. Jacob has clear and documented limitations. The parties’ jointly retained assessor has said that Jacob lacks capacity to make decisions for himself in three key areas. It is clear that the disagreement between the parents affects their ability to listen to and hear Jacob’s voice. It is clear that the disagreement between the parents affects their ability to consider his interests in this matter unclouded by the dispute between them. My concern was so great on January 14th that I invited them to read and consider Murray J.’s comments in Jackson v. Jackson (2008) 2008 3222 (ON SC), 50 R.F.L. (6th) 149 (Ont. S.C.J.). As I advised counsel on January 14th, I feared that there were parallels between their case and Jackson. Someone viewing this matter objectively might conclude that the parents in this case favoured the fight more that the outcome of the litigation.
[39] What is my jurisdiction to make myself Case Management Judge in this matter? There are two sources. First, Jacob and the Husband consented to my appointing myself as Case Management Judge. I have dismissed, above, the Wife’s only objection to my being appointed as Case Management Judge. She never objected to the concept of case managing this action, only that I might be the Case Management Judge.
[40] Second, I find that I have jurisdiction to do so.
[41] Under the current Practice Direction, in order to appoint a Case Mangement Judge in any action, the parties must make a request of the Regional Senior Judge to have one appointed under Rule 37.15 of the Rules of Civil Procedure. No one has sought such an appointment.
[42] Before his elevation to the Court of Appeal, Justice David Brown held in Abrams v. Abrams, 2010 ONSC 2703, [2010] O.J. 1928, ONSC 2703 (S.C.J.) that there is jurisdiction in the Court to appoint a Case Management Judge. While that case is an estates case, the logic applies to a family case.
[43] Brown J. says that the lack of jurisdiction under Rule 77 of the Rules of Civil Procedure (and by implication the Family Law Rules), is no impediment to appointing a Case Management Judge. He says, quoting himself in Re Hallman, 2009 51192 at para. 48:
…[T]he lack of availability of Rule 77-style case management has not impeded the ability of judges sitting on the Estates List from implementing more formal ways of managing cases that appear on the List, either at the request of counsel or at the initiative of the judges. This makes sense. On-going judicial intervention is necessary in some cases to ensure that justice is done. Some parties seek such intervention, and the courts should be ready to respond to reasonable requests to ensure proper access to justice. So, too, intractable cases often require judicial management to prevent abuses of the system of justice and fairness to both parties.
[44] The power of the Court to appoint a Case Management Judge is part of its broad inherent jurisdiction to control its own process and proceedings [see Abram, paras. 26 to 34]. This power co-exists with legislation and specific rules of practice. The inherent jurisdiction of the Court gives way only in the face of clear, unambiguous statutory or regulatory language that the Court cannot manage its process in a specified manner [see Abram, para 45].
[45] Some Rules specifically permit Case Management. Under the new Rule 20, Case Management is mandated insofar as the Court may set the procedure for the further conduct of an action where the Summary Judgment motion fails. Rule 42 of the Family Law Rules mandates Case Management in areas where the Superior Court has a family division. In pre-trial conferences, case management is mandated, to make sure the case is ready for trial.
[46] In the family context, there is no clear, unambiguous statutory or regulator language that displaces the Court’s inherent jurisdiction to manage its process by invoking some measure of Case Management as may be required in a specific case. Indeed, the Family Law Rules contemplate some level of Case Management in specific cases. Rule 2(5), for example, explicitly mandates Case Management: “The Court shall promote the primary objective by active management of cases, which includes…” those items listed in FLR 2(3). The language in FLR 2(2) makes the list of items in FLR 2(3) non-exhaustive.
[47] Under Rule 2(4), the parties and counsel are “…required to help the Court promote the primary objective.” This, of course, does not mean that the parties must agree to case management; rather, they must consider it as an appropriate tool the Court has and can use in the appropriate situation.
[48] Further, the Family Law Rules, unlike the Rules of Civil Procedure, are replete with other instances wherein the Court is empowered to do more than simply do what the parties ask. For example, FLR 1(6) allows the Court to apply conditions and make directions as appropriate, such as teleconferences to ensure that procedural orders are being carried out. Case conferences are required before any motion or other Court process may be invoked. FLA 17(8) provides broad powers to make Case Management-like orders in a case, trial management or settlement conference.
[49] As indicated above, in my view, this case has gone off the rails, procedurally. The cost to the parties of the steps in this matter to date must be horrendous. For all of that activity and cost, the matter has not moved, substantively. The cost is disproportionate to any result obtained to date. The time and expense to other litigants seeking access to the Milton court, one of the busiest courthouses in the Province, must be equally disproportionate to the results obtained (if any) to date, in this matter.
ORDER AND DIRECTIONS:
[50] As indicated above, I dismiss the Wife’s motion to recuse myself because of a reasonable apprehension of bias. In addition, for the reasons stated above, I appoint myself Case Management Judge to this file, to hear all pre-trial interlocutory matters. In this capacity I make the following directions:
a. On January 23, 2015, at 9:00 a.m., in a one hour appointment, we will address the issue of reintegration therapy and Jacob’s medical appointments. Counsel will come to that appointment with a list of issues that remain to be addressed so that a timetable can be made to address those issues in advance of the Trial Management Conference set for April 8th.
b. With respect to the Trial Management Conference for April 8th, since I am scheduled to be on a fixed date trial, I am prepared to entertain submissions at some other scheduled meeting as to whether I should hear that conference or whether it should be heard by someone else.
c. I will assess Mr. Law’s fees based on written submissions. Aside from material currently contained in the record, the parties may make written submissions not exceeding five single spaced pages concerning the fees and disbursements Mr. Law charged. These submissions may be filed not later than the appointment of January 23rd.
d. With respect to who, if anyone, should pay the costs of the two teleconferences of November 14th and December 10th, 2014, and in what amount, I will make that decision based on written submissions not to exceed three pages, received by me not later than January 23, 2015.
e. With respect to who, if anyone, should pay the costs of the attendance of January 14, 2015, and in what amount, I will make that decision based on written submissions not to exceed three pages, received by me not later than January 23, 2015.
f. In the interim, neither parent may remove Jacob from the Province of Ontario unless by order of the Court or with the consent of both parents. The parent proposing the travel must provide to the other an itinerary and daily contact information before seeking consent. The parent who has Jacob’s Nexus card and passport, currently, shall deliver them to Mr. Law within 24 hours of release of these Reasons. Mr. Law will maintain them in his file until further order of the Court, or as may be required by consented-to travel. If either parent uses the Nexus card or passport for Jacob’s travel, the passport and/or Nexus card will be returned to Mr. Law’s office by 9:00 a.m., on the first business day following return from the approved travel.
Trimble J.
Date: January 20, 2015