COURT FILE NO.: FS-08-0046-02 DATE: 2018 December 28

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KELLY ANN McMURTER Applicant – and – JAMES ROBERT GORDON McMURTER Respondent

Self-represented Ian McLean, Counsel for the Respondent

HEARD at Belleville: October 11, 2018

MacLeod-Beliveau J.

REASONS FOR DECISION ON RECUSAL MOTION AND POST-TRIAL SECURITY ISSUES FOR FUTURE SPOUSAL SUPPORT

[1] There are four outstanding motions before the court: (1) Mr. McMurter’s motion for my recusal; (2) Mrs. McMurter’s cross-motion that Mr. McMurter’s recusal motion be dismissed; (3) Mrs. McMurter’s motion to prevent the sale by Mr. McMurter of the Bell’s Side Road property and for the transfer of all four secured properties in Schedule F to Mrs. McMurter; and (4) Mr. McMurter’s motion for removal of security as against all four secured properties in Schedule F. At the conclusion of the argument of these motions, the decisions were reserved. I advised the parties that my Reasons for Decision in these matters would be delayed because of other criminal decisions that had to be written first and my sitting schedule.

[2] In relation to the recusal motions, the respondent Mr. McMurter brings a motion dated August 14, 2018 returnable October 11, 2018, for me to recuse myself, after the trial of this matter, of being further involved in this matter. Mrs. McMurter brings a cross-motion dated October 1, 2018 for Mr. McMurter’s recusal motion to be dismissed.

[3] The sole outstanding post-trial issue in this case, of which I am seized, is in relation to the security ordered over the four properties in Schedule F for future spousal support payments. Three of the four properties are owned solely by Mr. McMurter. The fourth property is the business property and is owned jointly by Mr. McMurter and Mrs. McMurter. The security was ordered to secure Mrs. McMurter’s future spousal support payments for reasons as stated in the Reasons for Judgment at trial released July 15, 2016 and reported at McMurter v. McMurter, 2016 ONSC 1225. The Judgment has been issued. Mr. McMurter has recently appointed counsel, Mr. McLean, to file material and argue the recusal motion. Mrs. McMurter remains self-represented.

[4] In relation to the post trial security motions, the October 11, 2018 date was the return date of the motions about the issue of the sale of the Bells’ Side Road property, the removal or not of some or all of the security on the four secured properties, and whether or not Mr. McMurter had complied with certain terms as previously ordered on May 7, 2018, to allow one of the properties that he solely owns to be sold, namely the Bell’s Side Road property, over the objections of Mrs. McMurter, if certain payments and conditions were made and met by him.

[5] These security motions were fully argued by the parties on April 23, 2018. My decision on the security motions was made on May 7, 2018 and certain payments and conditions were made in relation to the security on the Bell’s Side Road property. The motions were adjourned to July 9, 2018 to determine whether or not Mr. McMurter had complied with the terms and conditions of the May 7, 2018 order made. On the return of the motion July 9, 2018, Mr. McMurter requested a further adjournment to make additional submissions based on the transcripts of the April 23, 2018 and the July 9, 2013 hearings which he had ordered. The adjournment was granted on terms as set out in my Reasons for Decision of July 13, 2018 and order made. The matter was adjourned and returnable October 11, 2018.

The Issues:

[6] Do my findings of credibility in my Reasons for Judgment of July 15, 2016 raise a reasonable apprehension of bias sufficient to warrant my recusal of the post-trial issues of security for Mrs. McMurter’s future spousal support? If not, what orders, if any, should be made at this time in relation to the security ordered on one, any or all of the four secured properties in Schedule F?

Result:

[7] (1) Mr. McMurter’s motion for my recusal is dismissed. (2) Mrs. McMurter’s cross-motion for the dismissal of the recusal motion is allowed. (3) Mrs. McMurter’s motion to prevent the sale of the Bell’s Side Road property is dismissed as being moot. Mrs. McMurter’s request for the transfer of all four secured properties in Schedule F to Mrs. McMurter is dismissed. (4) Mr. McMurter’s motion for removal of security as against all four secured properties in Schedule F is dismissed. Costs in relation to these four motions are reserved for written submissions from the parties on or before January 31, 2019 after which date I shall determine the issue of costs on these four motions.

Background Facts and Analysis:

[8] The history of the motions to prevent the sale of the Bell’s Side Road property and for the removal of the security over any of the four properties in Schedule F are material to the timing of the motion for recusal and need to be reviewed. A motion dated March 5, 2018 was originally brought by Mrs. McMurter returnable on March 13, 2018, to prevent Mr. McMurter from selling the Bell’s Side Road property and to transfer all four secured properties to her. She had become aware that Mr. McMurter was actively trying to sell, or had sold, the Bell’s Side Road property as in Schedule F to the final order of July 15, 2016 which is attached, over which she had security for her future spousal support, contrary to the Judgment of July 15, 2016.

[9] The Reasons for Judgment at para 260, and para 23 of the issued Judgment provides as follows:

23. THIS COURT ORDERS that MacLeod-Beliveau, J. shall remain seized of all issues that arise out of this judgment, unless I direct otherwise. Genuine emergencies may proceed before any Justice of the Superior Court of Justice if I am unavailable.

[10] The July 15, 2016 Reasons for Judgment review the reasons for ordering security for Mrs. McMurter’s future spousal support at paras 198 to 238. The Judgment issued provides under the heading “Security for Spousal Support” a number of terms in paras 5, 6, 7, 8, and 9 to secure Mrs. McMurter’s future spousal support payments. None of the terms of the final Judgment concerning the providing of security have been complied with by Mr. McMurter.

[11] The final Judgment provides in paragraph 10:

10. THIS COURT ORDERS THAT James Robert Gordon McMurter, if his support payments are not in default, may seek an order discharging the security, in whole or in part, varying the security, or postponing the security, on such terms as the court considers just, by way of a motion on notice to Mrs. McMurter.

[12] The final Judgment provides a “Prohibition Order” in relation to the four secured properties in Schedule F at paragraph 11:

11. THIS COURT ORDERS THAT James Robert Gordon McMurter or his respective agents, servants, and persons acting under his instructions, are prohibited from disposing of, transferring, encumbering, or in any way dealing with any interest he has or may have in the Certificates of Possession for his properties as listed in Schedule F to this order, pending further order of the court. Any such transactions shall be void as against Kelly Ann McMurter.

[13] Mr. McMurter did not bring any formal notice of motion about this matter in advance or otherwise, but rather entered into an agreement of purchase and sale to sell the Bell’s Side Road property which is solely in his name, contrary to the court order of July 15, 2016. When Mrs. McMurter heard about the potential sale, she brought her motion to prevent it returnable on March 13, 2018.

[14] Mrs. McMurter’s motion to prevent the sale was adjourned to April 23, 2018 to be argued and for both parties to file submissions. I allowed Mr. McMurter’s oral request that all security for future spousal support be removed to be considered as an oral motion that day, as both parties at that time were self-represented, in the interests of getting this outstanding issue heard. The issue of security for Mrs. McMurter’s future spousal support over the four properties in Schedule F either owned solely by Mr. McMurter or jointly with Mrs. McMurter are the only matters outstanding from the trial Judgment, and were left to be considered by the court as circumstances arose by way of a notice of motion to be brought by Mr. McMurter if he wished to deal with any of the four secured properties after the date of the Judgment.

[15] Mrs. McMurter filed a Notice of Right or Interest in Land for registration by the Indian Lands Registrar against the four secured properties in Schedule F, which is valid for three years, from July 15, 2016, the date of the final judgment until July 15, 2019. While not determinative of any substantive rights as between the parties, it is one factor that the Minister of Crown-Indigenous Relations and Northern Affairs Canada considers in the exercise of ministerial discretion as to whether or not to approve and permit a sale of a Certificate of Possession of territorial lands.

[16] The security motions, as I will refer to them, were fully argued on April 23, 2018. My Reasons for Decision were released May 7, 2018 and reported at McMurter v. McMurter, 2018 ONSC 2626. An order was made that Mr. McMurter had until June 29, 2018 to pay all outstanding arrears owing to the Director of the Family Responsibility Office, which were approximately $10,350.00, to pay the outstanding costs owing to Mrs. McMurter as ordered by the Ontario Court of Appeal totalling $6,265.00, and to be current with his monthly spousal support payment of $2,500.00 per month. Mr McMurter’s ongoing spousal support payments were current. If Mr. McMurter made these payments of approximately $16,615.00, I held that I would sign an order removing the court ordered security over the Bell’s Side Road property set out in Schedule F, and permit Mr. McMurter to sell his Certificate of Possession for that property, subject to the discretion of the Minister, as is required for all sales of aboriginal lands on the Tyendinaga Mohawk Territory.

[17] In the May 7, 2018 order, I further ordered that Mrs. McMurter was entitled to obtain on a without notice basis, a court order to register a further Notice of Right or Interest in Land for registration against the secured properties in Schedule F as may be amended by the court, prior to the expiry of the current Notice on July 15, 2019, and every three years thereafter as long as she is entitled to spousal support from Mr. McMurter. The Notice registered on title by the Indian Lands Registrar is currently the only form of security for Mrs. McMurter’s future spousal support that has had the effect of ensuring compliance with the final Judgment of July 15, 2016 and ensuring that both parties to this litigation have the opportunity to present their positions to the court and for the court to make an appropriate order about the four secured properties. A copy of any reasons for decision and any subsequent order made is forwarded to the Minister and the Indian Lands Registrar.

[18] My order of May 7, 2018 allowing the sale of the Bell’s Side Road property provided that certain payments were made by Mr. McMurter by June 29, 2018, was made over the strong objections of Mrs. McMurter who wanted all four properties transferred to her outright, failing which, Mrs. McMurter wanted Mr. McMurter to be prevented from selling any of the four secured properties. In my reasons for decision of May 7, 2018, I disagreed with both Mr. McMurter and Mrs. McMurter’s positions on the security motions.

[19] I ordered that security be continued on the remaining three properties pending further order of the court. The matter was adjourned to July 9, 2018 to determine if the payments had been made by Mr. McMurter, and if so, for the order to be signed by me to remove the security on the Bell’s Side Road property. If the payments had not been made by Mr. McMurter, the security would remain on all four properties as previously ordered. Costs were reserved to July 9, 2018. As of July 9, 2018, Mr. McMurter had failed to make the necessary payments as required by the May 7, 2018 order. As a result, the security remains on all four properties as in Schedule F attached to the Judgment and attached to these Reasons for Decisions on the motions before the court.

[20] On the return of the motions on July 9, 2018, Mr. McMurter then sought a further adjournment of the motions concerning the security issues. In my Reasons for Decision for the adjournment released July 13, 2018 and reported at McMurter v. McMurter, 2018 ONSC 4278, I granted the adjournment to October 11, 2018 on terms and made an order setting a timetable for the delivery of documents as between the parties who then continued to be self-represented. Mr. McMurter wanted to obtain transcripts of the April 23, 2018 hearing and the July 9, 2018 hearing and to file additional materials based on those transcripts on the security motions. I ordered that the transcripts were to be served and filed by September 21, 2018, together with Mr. McMurter’s materials. Mrs. McMurter had until October 5, 2018 to file her responding materials. Mr. McMurter had until October 9, 2018 to file his reply materials if any. Mr. McMurter failed to file the transcripts or his materials as required by that order, which then prevented Mrs. McMurter from filing any additional materials in response.

[21] On August 14, 2018, Mr. McLean, new counsel for Mr. McMurter, filed the notice of motion for my recusal. All of these motions were then returnable before the court on October 11, 2018.

[22] At the hearing on October 11, 2018, Mr. McLean, advised the court that he, in fact, had the transcripts of the hearings on April 23, 2018 and July 9, 2018 in his possession, and that he was prepared to file them which he then did. On review of the certified transcripts, I note that they were both signed as being completed by the court reporter on August 7, 2018. Mr. McLean brought the recusal motion on behalf of Mr. McMurter dated August 14, 2018 and added it to the motions about the security issues to be heard that day. No mention of anything in the two transcripts of April 23, 2018 and July 9, 2018 was made in the materials filed on the recusal motion. Rather, the matters raised were in relation to my findings of credibility in respect of Mr. McMurter made in my written Reasons for Judgment at trial released July 15, 2016. No additional materials whatsoever were filed by Mr. McMurter on the security motions, who remains in default of the May 7, 2018 order.

[23] Counsel for Mr. McMurter asked that I hear the motion for recusal first and then deal with the motions about security afterwards which made sense, and is how we proceeded on October 11, 2018. Counsel for Mr. McMurter asked that if the recusal motion was not granted, that I further adjourn the security motions and allow him on behalf of Mr. McMurter to make additional written submissions on the security motions.

[24] The recusal motion sought the following relief which I quote:

1. It is requested that Madam Justice MacLeod-Beliveau respectfully recuse herself from continuing as the Case Management Judge herein;
2. The respondent has a reasonable apprehension of bias that the Honourable Madam Justice MacLeod-Beliveau cannot be impartial as Case Management Judge going forward based upon derogatory comments on the record as to the character and integrity of the respondent.
3. Section 71 c of the Courts of Justice Act.

[25] At the beginning of the hearing, I advised Mr. McLean, that there was a problem with his relief sought on the recusal motion, as I was not the “Case Management Judge” in this matter, but rather the trial judge, dealing with the remaining and outstanding issue of the trial in relation to security for future spousal support which had been ordered and whether or not that security should be changed as provided for in the Judgment. The parties eventually agreed to an amendment of the relief sought in the Notice of Motion by deleting the words “Case Management” in para 1, and by deleting “Case Management” in para 2, and adding the word “the”, so that the matter could be argued that day.

[26] Mr. McMurter’s affidavit filed in support of the motion for recusal contains a significant amount of material in an attempt to re-argue the issues that were determined at trial. Central to Mr. McMurter’s materials filed, is the marriage contract which dealt with ownership of certain property as between the parties, which Mr. McMurter submits is determinative of the security issues in these motions. The issue of ownership of property is separate and distinct from the security issues arising from the July 15, 2016 Judgment providing for security over property owned by Mr. McMurter. The security was ordered in this case under the Divorce Act to secure future spousal support payments to Mrs. McMurter as provided for in the Reasons for Judgment. There has never been an issue that Mr.Murter is the sole owner of three of the Certificates of Possession and a joint owner of the fourth Certificate of Possession for the four secured properties in Schedule F. The marriage contract of May 26, 2005 has nothing to do with the outstanding issues of security for Mrs. McMurter’s future spousal support payments in this case made pursuant to the Divorce Act.

[27] The essence of Mr. McMurter’s concerns on the recusal motion relate to my findings about his credibility on the financial matters and his lack of financial disclosure at trial as to his actual income for spousal support purposes where he sought at trial to terminate his spousal support payment of $2,500 per month to Mrs. McMurter.

[28] Mr. McMurter’s beliefs of a reasonable apprehension of bias on my part must be read in the context of my 73 page, 265 paragraph decision in this matter as a whole. In Mr. McMurter’s affidavit, Mr. McMurter’s beliefs about my credibility findings of him are contained in certain excerpted portions of ten paragraphs of the Reasons for Judgment dated July 15, 2016, namely in paragraphs 54, 55, 86, 92, 96, 122, 125, 128, 186, and 188. Those paragraphs must also be read as a whole and in the context of the Judgment. There is no issue that I made findings that Mr. McMurter’s financial disclosure at trial was lacking, inadequate, false, misleading and incomplete which was based on the evidence which I accepted at the trial as being credible.

[29] Mr. McMurter states in his supporting affidavit for the recusal motion sworn August 14, 2018 at paragraphs 15 and 16 that:

15. It is my belief that the cumulative effect of these statements blatantly challenging my credibility and integrity when I in fact had made every effort to present to the Court a full financial position that I did not believe was even necessary pursuant to the acknowledgement of the Agreement from 2005 as being valid as confirmed by both Justice Scott and Justice MacLeod-Beliveau.

16. By seizing herself with ongoing involvement in this matter, in light of the aspersions negatively cast upon my character, I state that I have a reasonable apprehension of bias and Justice MacLeod-Beliveau would be incapable of fulfilling the duty of the court to render justice impartially on the issues placed before the Court.

[30] The “Agreement from 2005” being referred to is the marriage contract between the parties of May 26, 2005 entered into and signed by the parties while they were still cohabitating, which dealt with property rights and not spousal support, for the purposes of protection from creditors on land owned by the parties off the Territory. The marriage contract had been determined to be valid by Mr. Justice R. Scott in a prior proceeding. I referenced the marriage contract in paras 17 to 19 of my Reasons for Judgment of July 15, 2016.

[31] Mrs. McMurter, in her supporting affidavit on the cross-motion sworn October 1, 2018 for dismissal of the recusal motion, states that Mr. McMurter has never before raised the issue of reasonable apprehension of bias on my part or was concerned about me being seized of any issues that arise from the Reasons for Judgment. His appeal of the Judgment of July 15, 2016 was unsuccessful on other grounds. The issue of reasonable apprehension of bias was first raised in 2018 after Mr. McMurter tried to sell the Bell’s Side Road property, one of the four secured properties, when he realized that he needed court approval to sell some or all of the four secured properties because of my Judgment in this case of July 15, 2016. Mr. McMurter considers three of the secured properties to be his sole property, which they are. The fourth secured property is the jointly held business property. Mr. McMurter objects in particular to the fact that the three secured properties owned by him alone are secured for his future spousal support obligations to Mrs. McMurter and are subject to the court’s review, direction, and orders as provided for in the Judgment of July 15, 2016. Any sale of the fourth jointly held property would require both Mr. McMurter’s and Mrs. McMurter’s consent and signature. A severance of the joint tenancy is specifically not permitted by the current Indian Lands Registry System.

[32] It is appropriate for a judge to recuse himself or herself where there is a reasonable apprehension of bias. The test for reasonable apprehension of bias is what would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude. I have carefully considered all the material and case law filed by both parties on the recusal issue. Many of the cases referenced are clearly distinguishable from the facts of this case and are inapplicable. Recusal cases are by necessity very fact-specific.

[33] In Roberts v. R., indexed and cited as Wewaykum Indian Band v. Canada, 2003 SCC 45 at para 58, the Supreme Court of Canada defined bias or prejudice as:

… a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case.

[34] In Taylor Ventures Ltd. (Trustee of) v. Taylor, 2005 BCCA 350 at para 7, the British Columbia Court of Appeal noted that counsel for the respondent in Wewaykum Indian Band v. Canada had correctly identified the principles governing reasonable apprehension of bias and quoted the following principles:

(i) a judge's impartiality is presumed; (ii) a party arguing for disqualification must establish that the circumstances justify a finding that the judge must be disqualified; (iii) the criterion of disqualification is the reasonable apprehension of bias; (iii) the question is what would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through, conclude; (iv) the test for disqualification is not satisfied unless it is proved that the informed, reasonable and right-minded person would think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly; (v) the test requires demonstration of serious grounds on which to base the apprehension; (vi) each case must be examined contextually and the inquiry is fact-specific.

[35] The threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. An allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. This is a serious step that should not be undertaken lightly.

[36] The reasonable person is also vested with knowledge and understanding of the judicial process and the nature of judging. When considering whether a judge’s presumption of impartiality has been displaced, it is necessary to consider the actions or comments of the judge in the context of the totality of the circumstances of the case. Comments or conduct must not be considered in isolation (see R. v. S. (R.D.), [1997] 3 S.C.R. 484).

[37] In some instances, judges will have made prior findings regarding the credibility of a party or a witness, and that same party or witness may appear before that same judge on another occasion. However, this does not necessarily raise a reasonable apprehension of bias. The fact that a trial judge has previously ruled adversely on the credibility of a party or witness does not necessarily result in a reasonable apprehension of bias. Something more is required showing a predisposition by the judge with respect to that party or witness’ credibility, such as to amount to a pre-judgment of the result of future hearings (see R. v. Novak, [1995] B.C.J. No.1127 (C.A.) at para 7).

[38] When confronted with a claim of bias, Doherty J.A., has provided some instruction on how such matters are best dealt with in Beard Winter LLP v. Shedhdar, 2016 ONCA 493 at para 10:

[10] It is important that justice be administered impartially. A judge must give careful consideration to any claim that he should disqualify himself on account of bias or a reasonable apprehension of bias. In my view, a judge is best advised to remove himself if there is any air of reality to a bias claim. That said, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands. Litigants are not entitled to pick their judge. They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges. To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic.

[39] It is helpful to consider the Court’s decision in Smith v. Duca Financial Services, 2016 ONSC 6289. Justice Kristjanson summarized and outlined the factors that should be considered in applying the test for reasonable apprehension of bias at para 18:

In applying the test, attention must be paid to the following: (1) The test has two objective elements. The person considering the alleged bias must be reasonable, and the apprehension of bias itself must be reasonable in the circumstances of the case (R. v. S. (R.D.), at para. 111). (2) The reasonable person "must be an informed person, with knowledge of all the relevant circumstances, including 'the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold.'" (R. v. S. (R.D.), para. 111). The reasonable person is "vested with knowledge and understanding of the judicial process and the nature of judging." (Ontario Provincial Police Commissioner v. MacDonald, 2009 ONCA 805 (Ont. C.A.), at para 42). (3) The apprehension of bias must rest on substantial and serious grounds, in light of the strong presumption of judicial impartiality. Wewaykum Indian Band v. Canada (Roberts v. R., 2003 SCC 45, [2003] 2 S.C.R. 259 (S.C.C.), at para. 76). The threshold is high. The burden of proof rests on the party alleging that the conduct of a judicial officer raises a reasonable apprehension of bias, on the basis of "cogent evidence." (R. v. S. (R.D.), at paras. 114 and 117). Allegations alone, or suspicions, are insufficient. The inquiry is "highly fact-specific" and the context and particular circumstances are of "supreme importance." The facts "must be addressed carefully in light of the entire context. There are no shortcuts." (Wewaykum, at para. 77) A careful examination of the facts must reveal a "real likelihood" or "probability" of bias. (Authorson (Litigation Guardian of) v. Canada (Attorney General) (2002), 32 C.P.C. (5th) 357 (Ont. Div. Ct.), at para. 6). (4) If the evidence shows that there is a reasonable apprehension of bias, then a judge ought to be disqualified. (Authorson, at para. 4). (5) However, if it does not, then a judge ought not to be disqualified (nor shrink from his judicial obligations). It would be inappropriate for a party to bring a disqualification motion if the essential purpose of that step were to be a form of reverse "judge shopping" because of a subjective dissatisfaction either with the judge drawn or with previous decisions or directions of that judge. (Authorson, at para. 4).

[40] The credibility findings in the McMurter v. McMurter trial decision of July 15, 2016, including those in relation to Mr. McMurter, were based on the evidence heard at the trial. Reasons were given for the findings of credibility. In particular, I referenced Mr. McMurter’s chronic refusal to pay spousal support, the coinciding of his limited spousal support payments with occasions where he wanted something from the Court, his incomplete and unsatisfactory financial disclosure, and his lack of reasonable explanation for the significant increase in the use of cash in his business, in rejecting the evidence of Mr. McMurter. The evidence was weighed and findings were made based on the facts in all the circumstances of the case. Reasons were provided for those findings.

[41] A recusal motion is not the appropriate forum to challenge findings made at trial about the security ordered for Mrs. McMurter’s future spousal support payments over two years ago. The trial decision was made on July 15, 2016. Mr. McMurter’s appeal was unsuccessful. No allegation of reasonable apprehension of bias on my part was ever raised by Mr. McMurter as a ground of appeal or otherwise until the August 14, 2018 notice of motion for recusal. I find the recusal motion was motivated by Mr. McMurter’s disagreement with my decision of May 7, 2018, which was not appealed, which enforced the terms of the July 15, 2016 final Judgment.

[42] Mr. McMurter and Mrs. McMurter have been separated since August 25, 2007. They have been litigating since February 14, 2010. The litigation history and the number of judges that have been involved in this case are reviewed in my Reasons for Judgment of July 15, 2016. Seizing myself of matters arising out of the Judgment of that date was done in the interests of justice to ensure the Judgment was implemented, and to provide due process to both Mr. McMurter and Mrs. McMurter in relation to the post-judgment issues of the four secured properties on territorial lands in the context of the Divorce Act. This high conflict case is extremely complex and difficult. A reasoned and proper method of dealing with the security issues and the four secured properties as between Mr. McMurter and Mrs. McMurter has been provided for in the Judgment of July 15, 2016.

[43] I find that there are no grounds upon which my recusal is warranted in this case. There is no reasonable apprehension of bias on my part toward either Mr. McMurter or Mrs. McMurter. To recuse myself would, I find, do the administration of justice a disservice by yielding to an unreasonable and unsubstantiated recusal demand of Mr. McMurter, brought over two years after the findings were made on July 15, 2016, and after three additional motion hearings on March 13, 2018, April 23, 2018, and July 9, 2018 were heard resulting in the decisions of May 7, 2018 and July 13, 2018. There is no air of reality to Mr. McMurter’s allegations of a reasonable apprehension of bias. It is not appropriate for me to recuse myself and I decline to do so. As a result, Mr. McMurter’s motion for me to recuse myself is dismissed. Mrs. McMurter’s motion for the recusal motion to be dismissed is allowed.

[44] In relation to the motions about the secured properties, I decline to grant a further adjournment for written submissions from Mr. McMurter. These motions have been fully argued. No additional materials were filed as requested by Mr. McMurter based on the transcripts of April 23, 2018 or July 9, 2018 which was the main purpose of the further adjournment granted to Mr. McMurter on July 13, 2018.

[45] The issue, I find, has also now become moot. Mr. McMurter advised the court previously that he no longer has a buyer for the Bell’s Side Road property. Mrs. McMurter’s motion is therefore no longer necessary to prevent that sale. There is also no evidentiary basis to transfer all four secured property to Mrs. McMurter at this time. Mrs. McMurter’s motion is dismissed.

[46] Mr. McMurter’s motion for removal of all security on the four properties in Schedule F as ordered on July 15, 2016 is dismissed. There is no evidentiary basis before me that could be the foundation of any such order. Should Mr. McMurter wish to sell any of the four secured properties in Schedule F in the future, he must serve Mrs. McMurter and file the appropriate formal Notice of Motion in advance as provided for in the Judgment of July 15, 2016 for the court’s consideration, decision and potential order.

[47] If I am unavailable to hear future motions in this case in relation to the four secured properties in Schedule F due to my sitting schedule, the Judgment of July 15, 2016 provides in any event that the matter can be heard by another judge of the Superior Court of Justice.

[48] Therefore, as of this date, all the terms of the final Judgment of July 15, 2016 continue to be and remain in full force and effect, including the continued security over the four properties as in Schedule F. A copy of this decision and order issued as of December 28, 2018 shall be forwarded to the Minister and to the Indian Lands Registrar.

Costs:

[49] Costs are reserved. The parties shall make written submissions on costs for the recusal motion on or before January 31, 2019 after which date, I shall determine the issue of costs on the recusal motion.

[50] The parties shall, in addition, make written submissions on costs for the security motions on or before January 31, 2019 after which date, I shall determine the issue of costs on the security motions.

Madam Justice Helen MacLeod-Beliveau

Released: December 28, 2018

SCHEDULE F to the Final Order of July 15, 2016, remains in full force and effect as at December 28, 2018

Mr. McMurter’s Certificates of Possession for Security for Mrs. McMurter’s Future Spousal Support:

1. 202 Church Lane: Legal Description: Lot 33J-13-2 Concession A CLSR 95360. Parcel Type: Surface. Pin: 402525427. Registration Number: 6057403 – purchased in 2011 for $64,000.00, instrument date 2011/05/26 to James Robert Gordon McMurter – Certificate of Possession 403014464. Value $81,974 less current loan of $23,300 for $58,674.
2. 68 Sadie’s Lane: Legal Description: Lot 21B-2 Concession A RSO 331. Parcel Type: Surface. Pin: 402003333. Registration Number 6055682 – ½ interest purchased in 2008 for $12,500.00, instrument date 2008/02/25 as a joint tenant with Ronald Gregg Powless. Mr. McMurter bought out Mr. Powless for an additional $12,500.00 and became sole owner in 2011, instrument date 2011/02/15 to James Robert Gordon McMurter – Certificate of Possession 403013607. Value $122,734.
3. Bell’s Side Road: Legal Description: Lot 36C-2 Concession A RSO 892. Parcel Type: Surface. Pin: 402006770. Registration Number: 354713 - purchased 2008 for $6,000.00, instrument date 2008/01/04 to James Robert Gordon McMurter – Certificate of Possession 159775. Market Value in 2015 is $200,000.00.
4. 283 Hwy #49, Business Property: Legal Description: Lot 30B – 1 – 1 Concession A RSO 4362R. Pin: 402009559. Value of ½ interest as a joint tenant $150,000 (for a total Value of $300,000).

Total Value of Properties to be Secured: $531,408 Total Security Ordered: $400,000