COURT FILE NO.: FC1068/22 DATE: November 22, 2023 CORRECTED: December 13, 2023
SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: Lubna Aldahleh, Applicant AND: Zakaria Abdelrahman Mohammad Zayed, Respondent
BEFORE: SAH J.
APPEARANCES: The parties Abeer Abosharia and Bayly Guslits, for the Respondent Rasim (Sam) Misheal, for the Office of the Children’s Lawyer D. Abraham and I. Tamari, Arabic interpreters
HEARD: November 17, 2023 – in hybrid mode
CORRECTED DECISION: The text of the original decision was corrected on December 13, 2023 and the description of the correction is appended [i].
Overview
[1] On the first day of trial, the applicant moved, orally, for an order that I be recused as trial judge. Leave was granted for the motion to be heard as required in the trial schedule endorsement form. The parties were provided time to file affidavit evidence.
[2] The respondent opposes the motion, seeking its dismissal.
[3] The Office of the Children’s Lawyer (“OCL”) takes no position on the recusal motion.
[4] After hearing the motion and considering submissions made and materials filed, I dismissed the applicant's motion, with the written reasons to follow. These are the written reasons.
Litigation History and My Involvement with this Case
[5] I rely on paras. 1 to 7 of my decision in Aldahleh v. Zayed, 2023 ONSC 5920, wherein I reviewed the litigation history of this file up to mid-October.
[6] In addition to the history set out in those paragraphs, the following details speak to my involvement in this case.
[7] Wherever possible, the hearing of the case shall be by the judge who attends the first meeting. See Rule 37.2(8) of the Family Law Rules, O Reg 114/99 (“FLR”) (emphasis added).
[8] In this case, Tobin J. was initially assigned to hear the trial. However, it was not possible for him to hear the trial in November due to a scheduling conflict.
[9] The trial was assigned to me by trial coordination.
[10] Motions to adjourn trial are, when possible and based on a judge’s availability, heard by the judge hearing the trial.
[11] Tobin J. set the motion to adjourn for October 17, 2023. A trial management conference was first set for October 19, 2023.
[12] The motion to adjourn was argued on October 17, 2023. I required time to consider the evidence and submissions before rendering a decision.
[13] I asked the parties to return on October 19, 2023 for my decision on the adjournment request, as court time was already booked off for this matter.
[14] I disposed of all issues brought before the court in the applicant’s notice of motion, which included ten heads of relief. See paras. 46-52, Aldahleh v. Zayed, 2023 ONSC 5920.
[15] I also adjourned the trial management conference to October 24, 2023, when the court had more time to hear the matter and also to provide time for the applicant to raise an issue pled in her motion, on which no evidence was led. See para. 52, Aldahleh v. Zayed, 2023 ONSC 5920.
[16] A four-hour trial management conference took place on October 24, 2023.
[17] The next time the parties appeared in court was November 14, 2023, the first day of trial, at which time the applicant brought this motion for my recusal and the OCL brought a motion for the appointment of amicus (see Aldahleh v. Zayed, 2023 ONSC 6540).
[18] I have also been involved with this file in my capacity as Local Administrative Justice for the London Family Court Branch. In this capacity, I have exercised certain administrative and operational functions further particularized below.
Legal Principles Considered
[19] It is appropriate for a judge to recuse himself or herself where there is a reasonable apprehension of bias. In Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, 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.
[20] Recusal cases are, by necessity, very fact specific. See McMurter v. McMurter, 2018 ONSC 7604, at para. 33.
[21] Judges are presumed to be impartial and the test for apprehension of bias establishes a high threshold. It requires that any apprehension of bias be a reasonable one, held by reasonable and right-minded persons. It asks “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 decision-maker], whether consciously or unconsciously, would not decide fairly.” See R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 31; McMurter v. McMurter, 2020 ONCA 772, at para. 26; Yukon Francophone School Board. Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21.
[22] The test contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias must also be reasonable in the circumstances of the case: R. v. S. (R.D.), at para. 111.
[23] A reasonable person is one who has knowledge of all the relevant circumstances, including knowledge of the judicial process and the nature of judging. See Smith v. Duca Financial Services Credit Union Ltd., 2016 ONSC 6289, at para. 18; Rogerson v. Havergal, 2020 ONSC 2164, at para. 31.
[24] In Wewaykum, at paras. 60 and 77, the Supreme Court of Canada held that a judge may be recused where there is a reasonable apprehension of bias or actual bias. Bias, in this context, is evidenced by a predisposition to decide a matter in a certain way that does not leave the judicial mind open and impartial. See Wewaykum, at para. 58.
[25] There is a strong presumption that a judge will carry out their oath of office by conducting themselves impartially. The onus on the moving party must establish that the judge suffers from “a condition or state of mind which sways judgment and renders the judicial officer unable to exercise his or her functions impartially in a particular case.” See R. v. S. (R.D.), at para. 106. The moving party must demonstrate that the judge has conducted himself or herself in a way that raises a perceived or real apprehension of bias. See Stephenson v. Corporation of the Town of Gravenhurst, 2012 ONSC 5368, at para. 11.
[26] 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.), at para. 111; Ontario Provincial Police Commissioner v. MacDonald, 2009 ONCA 805, 255 O.A.C. 376, at para. 42.
[27] 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. See McMurter (2018), at para. 35; CAS v. J.J., C.M. and Six Nations of the Grand River, 2021 ONSC 1654, at para. 24.
[28] Allegations or suspicions alone are insufficient. The facts must be addressed carefully in light of the entire context. There are no shortcuts. See Wewaykum, at para. 77.
[29] Specifically in the context of family law proceedings, where parties may appear in court repeatedly, judicial continuity is recognized as promoting both efficiency and fairness. See McMurter (2020), at para. 31. For example, in D.G. v. A.F., 2015 ONCA 290, 333 O.A.C. 5, the Ontario Court of Appeal rejected the appellant’s assertion that the motion judge erred in seizing herself of ongoing issues. They noted that exercising inherent jurisdiction to seize herself of a case was the best means of ensuring that cases are dealt with justly. Further, they stated that “the frequent resort to the court in high conflict cases would otherwise rapidly consume too many resources as judge after judge is forced to learn the details of an ever-burgeoning file.”
Issue
[30] The issue to be determined is as follows:
- Has the applicant met her onus of establishing that an informed person, viewing the matter realistically and practically, and having thought the matter through, think it is more likely than not that I, whether unconsciously or consciously, would not decide the matter fairly?
Evidence and Analysis
[31] In her material, the applicant alleged that I took control of her file for personal reasons and claims that I showed bias on October 17, 19, and 24, 2023.
[32] The applicant claims I interfered with her file by transferring the case to myself suddenly before the trial, after she filed crucial evidence regarding fraud and other issues in her case. She questions how the file was transferred to me, not the case management judge (Tobin J.) originally set to hear the trial when it was first scheduled in the summer.
[33] She claims I continued the file as trial judge after refusing her adjournment request, despite knowing that Tobin J. allowed her to amend her application with a new theory.
[34] In his October 3, 2023 endorsement, Tobin J. granted the applicant leave to amend her application by October 18, 2023. In the same endorsement, Tobin J. stated that the applicant was advised that the motion to adjourn had to be brought before the trial judge.
[35] The applicant maintains this case is not an international child abduction case and claims there is evidence to support same. She claims I insisted to go ahead with the trial “without justice”.
[36] Despite maintaining this is not an international child abduction case, the applicant, in her notice of motion, requests an order relying on Rule 37.2(8).
[37] The applicant seeks to “pause the process to investigate and review all documents, and to figure out the fraud in the documents”. She claims she discovered “many issues and fraud by all lawyers in this case”.
[38] The applicant requests to “dismiss the trial based on the false process of the “urgent motion”, which was NOT considered as an urgent motion, and Kuwait is NOT involved on the Convention Hague Countries”.
[39] The applicant deposes that the court will ignore her evidence, and she demands returning the file to her “previous wise judge “Justice Berry [sic] Tobin”.
[40] The applicant requests the involvement of the Ministry of Immigration, Refugees and Citizenship Canada and the Human Rights Commission.
[41] She relies on an official complaint against me to the Canadian Judicial Council for my “injustice, bias, racism, conflict with [sic] interest, and violent [sic] the Applicant Mother by using [my] authority”.
[42] The applicant claims to have filed a complaint against the lawyers involved in this case and the courthouse staff, requesting that she and the children be protected from “injustice and racism”.
[43] She requests that this matter be heard at the Supreme Court of Canada, with jury, to “determine this matter under the justice umbrella”.
[44] She deposes that she filed a complaint to the Prime Minister of Canada on November 10, 2023, and the Ministry of the Attorney General.
[45] She believes I will increase my “oppression against [her] of unfair trial to harm [the] children, and to return them to Kuwait faster than what I had planned so far”.
[46] She claims courthouse staff suggested I heard about the case and wanted to help to protect the children.
[47] She alleges that I:
- gave orders to courthouse staff to refuse her filing of material which exceeded regulatory page limits. She questions my role in the file, claiming she is confused about why I gave orders regarding filings.
- used my authority as a judge to “oppress” and control the process, instead of promoting justice and fairness.
- ignored her reasons for requesting an adjournment of the trial and ignored the fraud on the part of the other party.
- am biased in favour of the other party, who has two lawyers, because I granted the respondent more time than her to file his documents.
- continue to refuse and ignore all documents without any reason.
- will “determine all issues under my authority”.
- put up barriers to control the testimony of experts and other parties.
- gave orders to courthouse staff to prevent her from filing documents in a proper manner since August 2023.
- ordered the removal of all attached legal orders from Kuwait, which she wanted to include in her form 35.1 affidavit.
[48] The applicant’s complaint to the Canadian Judicial Council is not relevant to the analysis.
[49] The applicant’s complaints to the Prime Minister and the Ministry of the Attorney General, and her requested involvement of the Human Rights Commission and the Ministry of Immigration, Refugees and Citizenship Canada, are not relevant to the analysis.
[50] Likewise, her allegations of fraud by all lawyers involved in this case are not relevant to this analysis.
[51] The evidence presented is not sufficient to give rise to a reasonable apprehension of bias, from an objective perspective, for the following reasons.
[52] The applicant led no admissible evidence to corroborate her allegations that I am biased, racist, have a conflict of interest, or acted violently.
[53] After this trial was adjourned from July to November 2023, trial coordination assigned me as trial judge based on judicial availability.
[54] It has been acknowledged that, particularly in family law proceedings, judicial continuity is recognized as promoting both efficiency and fairness.
[55] I was tasked with hearing the motion to adjourn the trial. I considered all relevant evidence presented and reviewed same in my decision. The decision was not appealed.
[56] The fact that the applicant disagrees with my decision is not sufficient to give rise to a reasonable apprehension of bias, from an objective perspective.
[57] In my decision, I addressed all requested heads of relief raised by the applicant, including issues for which evidence was not tendered, and invited her to return to court to have those issues determined on their merits. The applicant did not.
[58] Subrule 2(4) of the FLR requires the court to apply the rules in a way that promotes their primary objective, to deal with cases justly.
[59] Subrule 2(5) requires the court to promote the primary objectives by active case management. This subrule sets out that the court can set timetables or otherwise control the progress of a case.
[60] Subrule 1(7.2) provides that, for the purpose of promoting the primary objectives of the FLR, the court may make orders, giving such directions or imposing such conditions respecting procedural matters as are just, including orders which:
- limit the number of affidavits that a party may file;
- limit the length of affidavits that a party may file;
- limit the number of witnesses;
- identify the issues to be decided at a particular hearing;
- order a trial management conference be conducted; and
- order that a trial may be limited to a specified number of days and apportion those days between the parties.
[61] Family judges are explicitly provided with the jurisdiction to make procedural orders that promote and encourage case management.
[62] In the interest of judicial continuity, I scheduled the trial management conference before myself.
[63] At the trial management conference, when the parties could not agree on the issues for trial, the issues were set by the court.
[64] The applicant requested time to file an entirely new trial affidavit (alleging the one her previous counsel prepared when the trial was up in July was inaccurate).
[65] She was granted an opportunity to do so. The trial was scheduled to start three weeks after the trial management conference and, accordingly, tight timelines were set for both parties.
[66] Based on the issues to be determined, the court determined that the applicant’s affidavit should be filed in advance, allowing the respondent to review the evidence she proposed to tender on the issues in dispute, following which his evidence was required to be filed.
[67] Time limits were set for cross-examination on each of the witnesses’ affidavits.
[68] Timelines were set for each party to upload their proposed exhibits to CaseLines.
[69] The parties were not denied the ability to upload any documents they deemed relevant to CaseLines.
[70] In my capacity as Local Administrative Justice, I was contacted by Court Services Division when the applicant attempted to file a document that was approximately 1,000 pages long.
[71] The applicant’s form 35.1 and 35.1A affidavits contained several lengthy attachments. The documents were voluminous.
[72] Attached to the applicant’s affidavit in support of this motion are several emails she sent to the court services manager. None of his emails to her are included.
[73] These emails confirm that I requested a hard copy of the documents she wanted to file. Her email confirms that these documents were requested by Monday, the day before I was scheduled to hear the applicant’s motion for an adjournment of the trial.
[74] Her own evidence supports that the court did not deny her the opportunity to submit whatever paperwork she deemed necessary, relevant, and important to the issues before the court. The court requested those documents before the scheduled motion to ensure that it had a full evidentiary record.
[75] A review of the trial scheduling endorsement form confirms that the court ordered, and therefore permitted, the applicant to forthwith serve and file her forms 35.1 and 35.1A with no attachments. To address the lengthy attachments, the court requested they be uploaded to CaseLines and placed into a specific “bundle”, with each document to be saved individually.
[76] The applicant was not denied an opportunity to upload whatever document she saw to be relevant or necessary for a fair trial.
[77] The applicant has not presented any evidence to support a finding that I have a predisposition to decide this matter a certain way or that I am partial.
[78] A reasonable person understanding the judicial process, the nature of judging, and a judge’s jurisdiction as set out in the FLR, would not find that I acted contrary to the FLR, or in a manner which suggest an impairment of my impartiality.
[79] The applicant cannot engage in judge shopping. She cannot request that one judge, and not another, hear her case. Requests of this nature are an abuse of process and brings the administration of justice into disrepute.
[80] The applicant has not identified or presented any cogent or compelling evidence or grounds for a reasonably informed person, knowledgeable of all relevant facts, viewing this matter realistically and practically, to conclude that the manner in which I conducted myself on October 17, 19, and 24, 2023, raises a reasonable apprehension of bias or lack of objectivity towards her and the issues subject to this litigation.
[81] The presumption that I am impartial and objective has not been rebutted by the applicant’s submissions, which are speculative assertions.
Disposition
[82] The issue of my recusal may be moot now that the trial is set for December and there is no guarantee that I will be assigned to the trial.
[83] Nevertheless, I find the applicant has failed to meet the high onus upon her, and her motion for my recusal shall be dismissed.
Costs
[84] If the respondent seeks costs, submissions of no more than 3 pages, double-spaced using 12-point font, may be submitted on or before December 8, 2023.
[85] The applicant's response to the cost submissions, not exceeding 3 pages, double-spaced using 12-point font, may be submitted on or before December 15, 2023.
[86] If cost submissions are not received in accordance with the timelines set above, it will be presumed that costs have been settled, a party is not seeking costs, or a party chose not to file material.
[87] The parties shall file cost submissions through the JSO (portal) or to london.courthouse@ontario.ca.
”Justice K. Sah” The Honourable Madam Justice K. Sah Released: November 22, 2023
Correction Notice
[i] CORRECTION NOTICE
- page 1, title of proceedings – the applicant’s name was changed from “Lubna Yousef Abdel Rahmen Aldahleh” to “Lubna Aldahleh”
- page 1, counsel’s name – “Bayley Guslits” was corrected to read “Bayly Guslits”
- paras. 5, 14 and 15 – the period following the parties’ names in the case citation referring to an earlier decision was removed so that it now reads “Aldahleh v. Zayed, 2023 ONSC 5920”