CITATION: Van Wieren v. Bush, 2015 ONSC 4104
COURT FILE NO.: FS-483-14
DATE: 2015-06-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Brendan Van Wieren
Appellant/Applicant
Barry T. Paquette, for the Appellant/Applicant
- and –
Catherine Bush
Respondent
Anna L. Towlson , for the Respondent
HEARD: May 15, 2015 and June 18, 2015
THE HONOURABLE MR. JUSTICE G.A. CAMPBELL
REASONS ON APPEAL
1. Trial
[1] The trial hearing of this proceeding occurred in the Ontario Court of Justice before Hardman, Prov. J., over eight days between January 27, 2014 and March 6, 2014. Justice Hardman released her 26 page written decision on June 16, 2014. Her written costs decision was released on October 9, 2014.
2. The Appeal of the Trial
[2] The Applicant appealed the trial decision raising several grounds which form the basis for overturning the judgment, namely that:
(a) the trial judge conducted the trial in such a manner as to give rise to a reasonable apprehension of bias against the Appellant;
(b) the trial judge failed to consider the best interests of the child; and
(c) the order was contrary to the evidence and the weight of the evidence.
[3] The Appellant asks that the Order of June 16, 2014 be set aside and an order be granted reinstating custody of the child Sienna to him, with access to the Respondent. Alternatively, he seeks a new trial.
3. The Appeal of the Costs Award
[4] The Appellant also asks that the costs of the trial ordered payable by him on October 9, 2014 be set aside and that he be granted his costs for this Appeal. In the alternative, he asks that the costs ordered on October 9, 2014 “be eliminated or substantially reduced”.
[5] On the other hand, the Respondent seeks to have the Appeal dismissed with costs to her.
4. Standard of Review on Appeals
[6] It has long been established that findings of fact are not to be reversed unless there has been a “palpable and overriding” error: see Stein v. Kathy K (The Ship) (1976), 1975 CanLII 146 (SCC), 2 S.C.R. 802, and Housen v. Nikolaisen (2002), S.C.C. 33 and that there should be no intervention by an appeal court in determinations and findings of fact unless the reasons demonstrate a manifest error, a significant misapprehension of the evidence, or that evidence has been ignored or erroneous conclusions have been drawn: see Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 29 O.R. (3d) 417 (C.A.).
[7] As well, an appeal court should also offer deference to the trial judge, especially in family law cases: see C. (G.C.) v. New Brunswick (Minister of Health and Community Services) (1998), 1 S.C.R. 1073; New Brunswick (Minister of Health and Community Services v. L.(M.) (1998), 1998 CanLII 800 (SCC), 2 S.C.R. 534; and Hickey v. Hickey (1999), 1999 CanLII 691 (SCC), 2 S.C.R. 518.
[8] It has also more recently been reiterated that an appeal court may only intervene in the decision of the trial judge if (s)he erred in law or made a material error in the appreciation of the facts. If the trial judge did not consider the relevant factors or evidence, this may indicate that she did not properly weigh all of the factors. If this is the case, the appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirected herself with respect to relevant evidence. An omission is only a “material error” if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected her conclusion: see Van de Pene v. Edwards (2001), 2001 SCC 60, 2 S.C.R. 1014 at paras. 13-15.
[9] It is not the function of the Appeal court to retry the case. If there is some evidence upon which the trial judge could have reached her factual conclusions, the appeal court will not intervene: see MacKereth (Henderson) v. Henderson 2012 ONSC 5054 at para. 14.
5. The Grounds
A. Reasonsable Apprension of Bias
[10] This is the main ground upon which the Appeal is based. Despite the other (corollary) sub-headings listed as grounds to appeal, given the extensive and very thorough Reasons for Judgment released by the trial judge, which address (adequately in my view) the “best interests of the child” argument and the Reasons for her findings and her decision to restrict the extent and nature of access (i.e. the Applicant must be present for transportation to/from and during), those two grounds are ill founded and the appeal will succeed or fail on this first and primary ground.
[11] There appears to be a surprisingly robust body of case law relating to “reasonable apprehension of bias”, much of which counsel for the Appellant has made available and which I have read and considered.
[12] In Mr. Paquette’s Factum, he lists most of these recent cases, as follows:
- It has long been determined that courts should be held to the highest standards of impartiality. The fundamental principle of judicial impartiality has been called “the key to our judicial process” and “the cardinal rule of judicial conduct.” The effectiveness of the judicial system depends on the public confidence in the judiciary in adjudicating in law without bias or prejudice. The perception of impartiality is just as important as the reality. The trial judge’s conduct of a trial cannot create an appearance of unfairness.
R. v. S. (R.D.), [1973] 3 S.C.R. 484, at para. 93 (“R. v. S. (R.D.)”).
Wewaykum Indian Bank v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at paras. 57, 59 (“Wewyakum”).
- The presumption of judicial impartiality may be rebutted by evidence of a reasonable apprehension of bias. The classic test for reasonable apprehension of bias is that set out by Grandpré J. in Committee for Justice & Liberty v. Canada (National Energy Board):
[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information … [T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the judge], whether consciously or unconsciously, would not decide fairly.” [my emphasis added]
Committee for Justice & Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394.
- This test for bias has been consistently endorsed by the Supreme Court of Canada. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. The question is whether a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to a reasonable apprehension of bias. This inquiry will depend entirely on the facts of the case.
R. v. S. (R.D.), supra, at paras. 111, 114
Wewaykum Indian Bank v. Canada, supra, at para. 77.
- Fairness must be assessed in the context of the trial as a whole. The assessment requires a careful and thorough examination of the proceeding and the conduct of the entire trial to determine the cumulative effect of any transgressions or improprieties. [my emphasis added]
Sorger v. Bank of Nova Scotia (1998), 1998 CanLII 3715 (ON CA), 160 D.L.R. (4th) 66 (Ont. C.A.), at paras. 11, 16, 32 (“Sorger”).
- In our adversarial system, counsel have the right to submit their case to the trial court as they see fit and in accordance with well-established rules of evidence. Although a trial judge may question witnesses for the purpose of clarification of the evidence, there is a limit to the permissible intervention. The trial judge has no right to intervene to the point of taking over the examination or cross-examination of witnesses and thus take the case away from counsel and into his or her own hands. Questioning by the trial judge amounting to cross-examination of a witness is likely to be prejudicial to the party whose witnesses are being so examined and is prejudicial to a fair trial. [my emphasis added]
Majcenic v. Natale, 1967 CanLII 267 (ON CA), [1968] 1 O.R. 189 (Ont. C.A.), at paras. 44, 45 (“Majcenic”).
- In Majcenic, the Ontario Court of Appeal limited the parameters of judicial questioning as follows:
There is a limit however to the intervention and when the intervention is of such a nature that it impels one to conclude that the trial Judge is directing examination or cross-examination in such a manner as to constitute possible injustice to either party, then such intervention becomes interference and is improper. When a Judge intervenes in the examination or cross-examination of witnesses, to such an extent that he projects himself into the arena, he of necessity, adopts a position which is inimical to the interests of one or other of the litigants. His action, whether conscious or unconscious, no matter how well intentioned or motivated, creates an atmosphere which violates the principle that “justice not only be done, but appear to be done”. Intervention amounting to interference in the conduct of a trial destroys the image of judicial impartiality and deprives the Court of jurisdiction. The right to intervene is one of degree and there cannot be a precise line of demarcation but if it can be fairly said that it amounted to the usurpation of the function of counsel it is not permissible. [Emphasis added]
Ibid., at paras. 44-47
- Prejudgment of issues, prejudgment of credibility, undue and one-sided interventions with counsel or in the examination of witnesses are all relevant factors to an analysis of perceived bias.
Sorger, supra, at para. 10.
- Cross-examination of a witness by the trial judge is sufficient on its own to warrant appellate intervention and an order for a new trial. Where the effect of the trial judge’s intervention destroys the image of impartiality that the court must maintain, the result is loss of jurisdiction.
Henderson v. Henderson, [2012] W.D.F.L. 5529 (Ont. S.C.J.), at paras. 33,40.
- In Sorger, the Ontario Court of Appeal found reasonable apprehension of bias in the conduct of the trial judge who, on a number of occasions intervened in the examination and cross-examination of the appellant with comments of an adverse and limiting nature. None of the interventions were sought or prompted by the respondent’s counsel. The evidence demonstrated that the trial judge had negatively prejudged the appellant’s case. The cumulative effect of all of the factors led to a reasonable apprehension of bias. [my emphasis added]
Sorger, supra, at paras. 21, 32.
- In Catholic Children’s Aid Society of Toronto v. C. (L.), the Ontario Court of Appeal found that the extent of the trial judge’s interventions, their overbearing weight against only one party’s witnesses, and the aggressive manner in which they were pursued, was problematic. These lengthy interventions were not simple clarifications of the evidence that counsel had already put before the court. The trial judge also cut off counsel during cross-examination. The Court of Appeal held that, upon a review of the entire transcript, the trial judge had intervened to an improper degree and in doing so unacceptably sacrificed the right to a fair trial. A new trial was ordered.
Catholic Children’s Aid Society of Toronto v. C.(L.) (2002), 117 A.C.W.S. (3d) 929 (Ont. S.C.J.).
- In Lennox v. Arbor Memorial Services Inc., the conduct of the trial judge that was held to be improper included redirecting lines of questioning which counsel sought to pursue; engaging in extensive cross-examination of two of Arbor’s witnesses and challenging their credibility; and seeking more than an explanation of evidence brought out by counsel by questioning two witnesses extensively on matters that counsel had not raised. The Court of Appeal held that “the trial judge’s interventions not only exceeded the acceptable limited; they were entirely directed at assisting the respondents.” [my emphasis added]
Lennox v. Arbor Memorial Services Inc. (2001), 2001 CanLII 4868 (ON CA), 56 O.R. (3d) 795 (Ont. C.A.), at 800.
- Osterbauer v. Ash Temple Ltd. is a case where the trial judge made a number of interventions which gave the impression that he had prejudged the case before the plaintiff had finished giving his testimony, and had improperly curtailed the defendant’s (appellant’s) cross-examination of witnesses on relevant issues that went to the core of the litigation. The appellant was effectively prevented from fully canvassing some of the issues because of the trial judge’s repeated characterization of the matter as irrelevant. The Ontario Court of Appeal was satisfied that, having regard to the cumulative effect of the trial judge’s interventions, the test for reasonable apprehension of bias was met. [my emphasis added]
Osterbauer v. Ash Temple Ltd. (2003), 2003 CanLII 6614 (ON CA), 63 O.R. (3d) 697 (Ont. C.A.), at paras. 15-17.
- In R. v. Hossu, the Ontario Court of Appeal based its conclusion of bias in large part on the basis that the trial judge made open and improper favourable and negative comments about a number of witnesses, showed “serious favoritism” toward the complainant, and harshly treated the accused. Both the number and quality of the judge’s comments about all of the witnesses raised serious concern about whether the accused received a fair trial by an impartial judge. [my emphasis added]
R. v. Hossu, 2002 CanLII 45013 (ON CA), 162 O.A.C. 143, at paras. 15, 26, 31, 38.
- Also problematic is a judge’s questioning of a witness in a manner which conveys the impression that the judge believes one of the parties, or is placing his authority on one party’s side, or that clearly reflects his doubt and scepticism. Where one of the parties raises some potentially relevant matters which are not addressed by the judge in the course of his interventions, it is reasonable to conclude that the interventions were not intended to obtain helpful evidence from that party or clarify his position. [my emphasis added]
Ghavim v. Jamali, 2014 BCCA 21, 2014 B.C.C.A. 21, at paras. 38-39.
- In R. v. Pompeo, the British Columbia Court of Appeal set aside a criminal conviction and ordered a new trial on the basis that the trial judge refused to hear potentially important and admissible evidence, and his active participation went beyond the proper role of a trial judge. He engaged in numerous lengthy questioning of witnesses in the nature of cross-examination and sought to influence the tendering of evidence.
[my emphasis added]
R. v. Pompeo, 2014 BCCA 317, 2014 B.C.C.A. 317, at paras. 68-82.
[13] I distinguish the C.F.S.A. case of Catholic C.A.S. of Toronto and the two criminal cases of Hossu and Pompeo since the principles regarding proceedings within those legislated laws are and must be different, given the nature and wording of that Act and Code. For example see CAS of Regional Municipality of Waterloo v. R.C. 2009 ONCA 840 (active participation of trial judge in child protection case does not necessarily indicate bias) and s.49 of the Act.
“The court may, on its own initiative, summon a person to attend before it, testify and produce any document or thing, and may enforce obedience to the summons as if it had been made in a proceeding under the Family Law Reform Act.”
[14] I also distinguish the Sorger, Lennox and Ghavim cases, based upon the nature and extent of this trial judge’s involvement in this case as opposed to the very different manner of the trial judges’ involvement in those other three cases. Having read the entire transcript of this eight day trial and noting not only the number of involvements and interruptions but also the nature of and motivation for those interruptions, I discern a clear difference between this case and those cases cited by the Appellant.
[15] Alternatively, the Respondent relied on only two cases. In MacKereth (Henderson) v. Henderson (2012), ONSC 5054, Heeney J. considered Majcenic v. Natale, supra. At pages 8 to 10 of his decision he made the following observations:
[37] There is no question that a trial judge has the right to question witnesses, for the purpose of clarifying evidence. However, it is not an unbridled right. The Ontario Court of Appeal, in Majcenic v. Natale, 1967 CanLII 267 (ON CA), [1968] 1 O.R. 189 (C.A.), defined the parameters of permissible judicial questioning in the following terms:
When a judge intervenes in the examination or cross-examination of witnesses, to such an extent that he projects himself into the arena, he of necessity adopts a position which is inimical to the interests of one or other of the litigants. His action, whether conscious or unconscious, no matter how well intentioned or motivated, creates an atmosphere which violates the principle that “justice not only be done, but appear to be done”. Intervention amounting to interference in the conduct of a trial destroys the image of judicial impartiality and deprives the Court of jurisdiction. The right to intervene is one of degree and there cannot be a precise line of demarcation but if it can be fairly said that it amounted to the usurpation of the function of counsel it is no permissible.
[38] I am satisfied that the trial judge did project himself into the arena, however well intentioned he undoubtedly was. The clear objective of the series of questions posed to Dana Lawrence, many of which amounted to cross-examination, was to undermine her evidence, and the theory upon which the CAS approached the case. The position which the trial judge thereby adopted was clearly inimical to the interests of the mother, since Ms. Lawrence was a key witness in her case. In so doing, the trial judge usurped the function of counsel for the father, since this is a line of questioning that properly could have been pursued by him, but was not.
[39] This intervention escalates in significance when one reads the reasons given for the trial judge’s decision. In his reasons, he rejected the evidence of Dana Lawrence. He concluded that the father’s controlling behaviour was not the cause of the stress and dysfunction that was observed in the mother’s household, but rather it could be traced to her underlying emotion and psychological problems dating back years before the separation. In so doing, the trial judge effectively adopted the very theory of the case that he had championed in his questioning of this witness. [my emphasis added]
[40] The effect of all of this was to destroy the image of impartiality that the court must maintain, which results in a loss of jurisdiction.
[41] Furthermore, at the conclusion of the trial judge’s questions Mr. Skuce rose to pose questions arising out of the trial judge’s questions. He was met with the following response, at pg. 407 of the transcript:
I’m not going to permit a single question out of those. Those are questions that I would have expected off the top from both counsel and I needed this. If I am to write a decision here, I needed this information. I didn’t get it from counsel, so I got it on my own, but I’m not going to permit anymore questions to be asked. Next witness.
[42] Neither party cited any authority regarding the duty of a trial judge to permit questions to be asked by counsel arising out of questions posed by the court, but that is probably because the proposition is self-evident. It is counsel’s role and right to elicit evidence from the witnesses, and if further lines of enquiry become apparent as a result of questions posed by the court, counsel should be afforded an opportunity to pursue them. That is all the more important in a case such as this, where the trial judge embarked upon an area of questioning that was not previously canvassed by counsel. Procedural fairness demands that both counsel be given a reasonable opportunity to make enquiries of their own in the new area opened up by the trial judge. In denying counsel for the mother his right to further question this witness, there was a denial of procedural fairness, which also deprives the court of jurisdiction.
[my emphasis added]
[44] … However, questioning a witness is a dynamic process where counsel has no control over what the witness will say. An appellant is simply unable to demonstrate to an appellate court what testimony a witness may have been able to offer had further questioning been permitted.
[16] Unlike in Henderson, in this case counsel has not alleged, nor has he provided any support for a finding that Hardman, Prov. J., “effectively adopted the very theory of the case that (s)he had championed in his (her) questioning of this witness”. [My emphasis] There was no “championing” of any theory, nor did Hardman, Prov. J. prevent counsel from re-questioning any witness after her own, admittedly lengthy, questioning over 23 pages and 25 pages of two of the Appellant’s witnesses (himself and his mother). I find that the circumstances of this and the Henderson cases are very different and quite distinguishable.
[17] Ms. Towlson also relies upon the relatively recent decision of the Ontario Court of Appeal in Martin v. Sansome (2014) ONCA 14, wherein paras. 24 to 39 wherein Hoy, J.A. defines “bias” Although very critical of the trial judge for his “impatience”, “annoyance”, “inappropriate questions”, “ill-advised language” and obvious “reaction to the distressing evidence that he heard”, she found that “in most cases, they (the judge’s interventions/interruptions) were motivated by an effort to focus the evidence on the matters in issue, clarify evidence and move a difficult trial along”.
[18] I find that Hardman, Prov. J. was similarly motivated.
[19] Hoy, J.A. also identified at para. 37 the following:
While judges are expected to conduct the proceedings before them in a courteous and civil manner, and I cannot condone the trial judge’s expressions of impatience and annoyance, “[i]solated expressions of impatience or annoyance by a trial judge as a result of frustrations … do not of themselves create unfairness”: Chippewas of Mnjikaning First Nation v. Chiefs of Ontario 2010 ONCA 47.
[20] In this case, a very few comments by the trial judge, in isolation, might infer that she was critical of and did not favour the Applicant. (e.g. her correction of him referring to his then- girlfriend as a “female” and her flip/sarcastic comment about the picture of Sienna’s alleged dog bite not being placed in the family picture album). But within the context of the entire trial and her very active involvement in her quest for all of the evidence she needed, I am not satisfied that a “reasonable person” would have this impression or conclude that she was “predisposed to decide the issues before (her) in favour of the respondent”. Para 39 of Martin v. Sansome
[21] Further, in Martin, Hoy J.A. set out the parameters within which an appellate court will examine an allegation of bias by a trial judge at paragraphs 31-34, as follows:
[31] Bias is a predisposition to decide an issue or cause in a certain way that does not leave the judicial mind open and impartial: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 58. The burden of establishing bias is on the party arguing that it exists. The test, found in Wewaykum, at para. 60, is long established:
[W]hat would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude[?] Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly[?]
[32] There is a strong presumption of judicial impartiality. The threshold is high for finding an apprehension of bias: Wewaykum, at par. 76.
[33] In Chippewas of Mnkikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, 265 O.A.C. 247, leave to appeal to S.C.C. refused, 33613 (July 18, 2010), at para. 230, this court provided additional guidance:
A determination of whether a trial judge’s interventions give rise to a reasonable apprehension of unfairness is a fact-specific inquiry and must be assessed in relation to the facts and circumstances of a particular trial. The test is an objective one. Thus, the trial record must be assessed in its totality and the interventions complained of must be evaluated cumulatively rather than as isolated occurrences, from the perspective of a reasonable observer throughout the trial.
[34] And again at para. 233:
The reasons a trial judge may properly intervene include the need to focus the evidence on the matters in issue, to clarify evidence, to avoid irrelevant or repetitive evidence, to dispense with proof of obvious or agreed matters and to ensure that the way a witness is answering or not answering questions does not unduly hamper the progress of the trial.
[my emphasis added]
[22] To support his client’s complaint, Mr. Paquette has highlighted seventeen examples of the trial judge engaging in “aggressive” questioning the Applicant and his parents; arguing that these examples amounted to cross-examination (aggressive questioning) “with comments which gave rise to a reasonable apprehension of bias” by his client. I would re-frame those passages as persistent and focussed rather than aggressive.
[23] Of course, counsel knows that the test of bias is whether an objective “informed person viewing the matter realistically and practically” would find the trial judge’s conduct biased. The test is not whether one of the participating parties, having “lost” his case thought that the trial judge “just didn’t get it” and was predisposed against him throughout the hearing/inquiry.
[24] Like counsel presenting cases at trial, judges develop their own “style” of presiding over those trials. Some judges fit the traditional role-model as passive-receivers of whatever evidence counsel decide is relevant and necessary to present to prove their case and to achieve the result that their client seeks. This passive, receiver-of-evidence role is mandated in criminal proceedings where the onus of proof is very, very different than in civil trials. The obligation of the Crown is to prove its case beyond doubt. If the Crown neglects to provide sufficient evidence to achieve a conviction, trial judges are strongly discouraged from questioning witnesses at all on a quest to “seek the truth”, by independently launching any inquiry into areas not introduced by counsel.
[25] Other family-law trial-judge styles are much more a pro-active role, casting themselves in the role as a seeker of all the evidence that (s)he believes is needed in order to make fully informed decisions (as is encouraged and expected in C.F.S.A. proceedings).
[26] These second type of trial judges are very engaged gatekeepers of the fact-finding process, wherein they perceive themselves as responsible for husbanding scarce judicial resources and a full participant in Rule 2 (5) “Duty to Manage Cases” responsibility not only at the pre-trial stage of proceedings but at the trial-hearing stage of a case as well. Indeed, some of these engaged, pro-active, triers-of-fact conduct themselves more like the chair of an inquiry, rather than as a traditional, passive, follower of however counsel decide to conduct the proceeding and whatever evidence counsel decide is sufficient.
[27] I can easily understand the negative reaction of a traditionally-trained advocate when confronted by a pro-active, controlling and demanding trial judge who assumes the role of “conductor of the hearing”; one who (as Rule 2(5) mandates), expects to actively manage the trial by “setting timetables or otherwise controlling the progress of the case … (trial)”. While Rule 2(5) is clearly intended to address pre-trial steps/events, trial judges who, when not presiding at trial, are, on a daily basis, case management judges, focussing on moving a case along to its earliest, least costly and expeditious resolution. Such engaged judges can easily inject themselves, (as happened in this case) from the outset of a trial into the role as “co-ordinator of the inquiry”, directing counsel regarding what issues and what evidence (s)he thinks necessary or allowable and whether and when counsel will give an opening statement. These activist judges now commonly insert themselves into every aspect of a trial, despite what some of the older case law suggests that “There is a limit to the permissible intervention” (Majencic 1968). I suggest that over the last fifty years the “precise line of demarcation” of the “right to intervene” has shifted significantly away from non-intervention to one of much more intervention. I find that generally, as in this trial, there has been a significant paradigm-shift in the judicial trial role over that period.
[28] As has recently been observed by the Supreme Court of Canada (albeit in a Summary Judgment context) in Hryniuk v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, “Access to Civil Justice” requires “A Necessary Culture Shift”: see paras. 23-33 as follows:
A. Access to Civil Justice: A Necessary Culture Shift
[23] This appeal concerns the values and choices underlying our civil justice system, and the ability of ordinary Canadians to access that justice. Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised.
[24] However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. The full trial has become largely illusory because, except where government funding is available, ordinary Canadians cannot afford to access the adjudication of civil disputes. The cost and delay associated with the traditional process means that, … the trial process denies ordinary people the opportunity to have adjudication …
[25] Prompt judicial resolution of legal disputes allows individuals to get on with their lives. But, when court costs and delays become too great, people look for alternatives or simply give up on justice. Sometimes, they choose to represent themselves, often creating further problems due to their lack of familiarity with the law.
[26] In some circles, private arbitration is increasingly seen as an alternative to a slow judicial process. But private arbitration is not the solution since, without an accessible public forum for the adjudication of disputes, the rule of law is threatened and the development of common law undermined.
[27] There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and need to be re-adjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.
[28] This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible – proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.
[29] There is, of course, always some tension between accessibility and the truth-seeking function but, much as one would not expect a jury trial over a contested parking ticket, the procedures used to adjudicate civil disputes must fit the nature of the claim. If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result.
[30] …
[31] …
[32] This culture shift requires judges to actively manage the legal process in line with the principle of proportionality. While summary judgment motions can save time and resources, like most pre-trial procedures, they can also slow down the proceedings if used inappropriately. While judges can and should play a role in controlling such risks, counsel must, in accordance with the traditions of their profession, act in a way that facilitates rather than frustrates access to justice. Lawyers should consider their client’s limited means and the nature of their case and fashion proportionate means to achieve a fair and just result.
[33] A complex claim may involve an extensive record and a significant commitment of time and expense. However, proportionality is inevitably comparative; even slow and expensive procedures can be proportionate when they are the fastest and most efficient alternative. The question is whether the added expense and delay of fact finding at trial is necessary to a fair process and just adjudication.
[my emphasis added]
[29] Family Law Rules are changing every year. Summary Judgment Motions are now encouraged in order to expedite the early resolution of lengthy disputes. It would appear to me that the “culture” of the traditional and historic style of trials, with passive judges, allowing counsel unfettered control of how much time & resources family law trials will consume, appears to be “shifting”. Case management and trial judges are being encouraged by the Rules to take charge of the process in order to conserve resources and to “triage” complex cases of high conflict. That new approach appears now to have also moved into the trial phase of family law conflict. It would appear that more and more family law judges have become impatient with the glacial speed of some counsel (and especially with self-represented litigants) who decided that the trial is the venue within which to examine each and every aspect of their own/their client’s pre-trial life. Those trial judges are much more likely to show their “impatience” and “annoyance” by using “ill-advised language” and, at time, asking “inappropriate questions”. See Martin (supra).
[30] That behaviour, though regrettable and discouraged, does not in and of itself establish bias or partiality. It is but a bi-product of an overwhelmed system that is under-resourced and buried under a never-ending volume of cases awaiting attention.
[31] It appears that the traditional trial culture has shifted somewhat to react to those demands.
[32] It is clear to me, having read the entire transcript of this trial, and examining each and every comment, interjection, interruption, question, direction and ruling made that this particular trial judge is well and truly ensconced in the pro-activist “inquisitor” role of gatekeeper and controller of evidence tendered, sought and allowed. She is at times blunt, direct, persistent, plain-spoken and on a few occasions unduly abrupt. However, I find that what she is not, is biased or pre-disposed to her ultimate decision, just because, with counsel’s help, she ferreted-out the evidence that she knew that she needed to make an informed decision.
[33] The trial judge interrupted and frequently took over from counsel. For the most part, the transcript established that the judge sought clarification of ambiguous answers or oblique obfuscations. The manner in which the Applicant offered some of his evidence clearly demanded and invited a closer examination by the trier-of-fact. (e.g. his “draining” of the joint bank account and his distress as how to the Respondent was spending small amounts of money for groceries and diapers). She took great pains to decipher his “position” why he did not pay any child support and to plumb the depths of his complete lack of awareness of the cost of necessaries for an infant. The judge was entitled to get a clear understanding of his motivations and intentions regarding his daughter, especially when he evaded giving direct or clear answers.
[34] As a result of the trial judge’s persistent questioning of the Applicant and his mother, a picture formed of an irresponsible, petulant “father” (e.g. his regular conflicts with his parents and his leaving the house to “cool down”; his dating a “female” for 10 months while continuing to sleep in the same bed as and have sex with the Respondent; his reporting the Respondent to the police as “missing” just because he couldn’t get her by phone at her uncle’s; his unwillingness to accept the C.A.S. letter regarding B.B.’s not posing any threat to Sienna; his unwillingness to “facilitate” reasonable access to the child by the Respondent are but a few of many examples of why, as his and his mother’s evidence unfolded, the trial judge, by her extensive questioning, tried to understand the reason or motivation for actions taken by the Van Wieren’s that could justify an order in their favour.
[35] The mere volume of interruptions and interventions does not in and of itself establish a reasonable apprehension of bias, despite the now antiquated view as expressed in Majcenic (1968).
[36] Based upon the transcripts of all of the evidence garnered by way of the skill and experience of counsel and the (very) active involvement of this trial judge, I am entirely convinced that despite an over-abundance of participation in this inquiry by Hardman, Prov. J., her Reasons for Judgment address each and every issue raised then (and upon Appeal) and respond to the criteria set out in s.24(2) of the C.L.R.A.
[37] I accept Mr. Paquette’s premise that the huge number of questions and involvement by the trial judge is for him, inordinate and that based upon the decision in Majcenic his client is of the view that the “cumulative effect” of the trial judge’s interventions left him, Mr. Van Wieren, with the impression that the judge placed her authority on the Respondent’s side. (“ganging up” / “double teaming”).
[38] However I find that an impartial, right-minded person would, on the merits, arrive at the same conclusion and decision as did Hardman, Prov. J. I find that she was indeed not predisposed nor “biased” against him.
[39] It was his own and his parents’ decisions, evasions and evidence that led the trial judge to her conclusion and decision. I find that it was not a prejudice against him, nor a partiality for the Respondent that resulted in the final judgment. I also find that the manner in which she conducted the trial hearing (inquiry) was not any more weighted in the Respondent’s favour than it was against his. The argument that the trial judge interrupted/interfered with the Appellant and his witnesses and not with those of the Respondent and her witnesses (including Mr. McMorran) is entirely refuted by the detailed chart appended to these Reasons as ‘Appendix A’.
[40] In this case, the evidence supports the decision and there is more than ample evidence upon which the trial judge could and did make her judgment.
[41] As I should, I defer to the trial judge’s observations and findings and rule that there are no palpable nor overriding errors; no manifest errors; no misapprehension of evidence; nor has the trial judge ignored evidence, nor drawn erroneous conclusions from the evidence. Her Reasons for Judgment are fulsome and explanatory. Her rejection of the Applicant’s status quo argument and her imposition of the term that he be present during transportation to/from and at access is clearly intended (and explained) to cause the Applicant to meet his obligations as a father and become more engaged as a parent. (rather than continue to allow his parents to take the role as “the other parent”) By way of those terms of her order the trial judge tried to rectify that role reversal, as, on this evidence she is entitled to do. I defer to her wisdom in that regard.
[42] In closing, in order that counsel and the parties have a context by which they may understand the extent and balance of the trial judge’s involvement in the trial hearing, I have attached an Appendix, listing the frequency and totals of all comments, questions, directions, findings, interruptions and interchanges with counsel and the witnesses by the trial judge. As I have already observed, the trial judge treated both litigants and their witnesses similarly.
[43] According the Appeal is dismissed and the order of the trial judge is confirmed.
[44] The Respondent shall have her costs of this part of the Appeal.
6. The Appeal of the Costs Award
[45] At the end of submissions, counsel and I agreed that I would first render my decision on the appeal of the Judgment. Once they have received this decision, I was to accept any further written submission(s) from counsel regarding the Appeal of the October 9, 2014 Costs Order.
[46] I will accept any further submissions in that regard within 10 days of the release of this decision. I have Mr. Paquette’s Factum of January 29, 2015 and his Costs Appeal Book and Costs Brief of Authorities, which he may augment if he so chooses.
[47] I have nothing regarding the Costs Appeal from Ms. Towlson.
G.A. Campbell J.
Released: June 25, 2015
Van Wieren v. Bush
Appendix A
Interruptions, Clarifications and Direction by The Court
During Mr. Paquette’s questioning
During Ms. Towlson’s questioning
General comments (no witnesses)
Total # of times The Court spoke
Jan 27, 2014
203
333
Brendan Van Wieren
Exam-in-Chief
130
January 28, 2014
38
451
Brendan Van Wieren
Exam-in-chief
42
Cross-exam
370
January 29, 2014
29
629
Brendan Van Wieren
Cross-exam
269
Re-exam
224
Re-exam
15
Re-exam
24
Karen Van Wieren
Exam-in-chief
68
January 30, 2014
93
499
John McMorran
Exam-in-chief
294
Cross-exam
100
Karen Van Wieren
Exam-in-chief
1
Cross-exam
11
March 3, 2014
26
676
Karen Van Wieren
Cross-exam
288
Re-exam
226
Kenneth Van Wieren
Exam-in-chief
10
Cross-exam
126
March 4, 2014
11
304
Kenneth Van Wieren
Cross-exam
19
Re-exam
156
Re-exam
13
Catherine Bush
Exam-in-chief
105
March 5, 2014
7
514
Catherine Bush
Exam-in-chief
3
Cross-exam
83
Re-exam
389
Terrie Pawis
Exam-in-chief
8
Cross-exam
18
Re-exam
6
March 6, 2014
31
172
Bo Broughton
Exam-in-chief
39
Cross-exam
74
Re-exam
28
Total during Mr. Paquette’s questioning
Total during Ms. Towlson’s Questioning
Total Times The Court speaks
1156
1983
3578
Total during Applicant’s Case
Total during Respondent’s Case
1992
1147
CITATION: Van Wieren v. Bush, 2015 ONSC 4104
COURT FILE NO.: FS-483-14
DATE: 2015-06-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Brendan Van Wieren
Appellant/Applicant
- and –
Catherine Bush
Respondent
REASONS FOR JUDGMENT
G.A. Campbell J.
Released: June 25, 2015
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