



COURT OF APPEAL FOR ONTARIO

CITATION: Neufeld v. Neufeld, 2020 ONCA 395

DATE: 20200619

DOCKET: C66749

MacPherson, Pardu and Huscroft JJ.A.

BETWEEN

Janet Lee Neufeld

Applicant (Respondent)

and

Wilmer Jack Neufeld

Respondent (Appellant)

Donna Wowk, for the appellant

Bryan Smith, for the respondent

Heard: In writing

On appeal from the
    judgment of Justice R.A. Lococo of the Superior Court of Justice, dated February
    27, 2019, with reasons reported at 2019 ONSC 1277.

REASONS FOR DECISION

[1]

The appellant Wilmer Neufeld (Wilmer or the appellant) and the
    respondent Janet Neufeld (Janet or the respondent) were married on June 12,
    1993. It was the second marriage for Wilmer and the first for Janet.

[2]

Wilmer had two daughters from his first marriage, Sarah and Ashley. They
    lived with their mother and had regular access visits with Wilmer.

[3]

Janet and Wilmer had two children together: William (Billy), born in
    1995, and Bridgette, born in 1996.

[4]

Throughout their marriage, Janet and Wilmer lived in a dwelling on McNab
    Road in Niagara-on-the-Lake. Wilmer was a substantial and successful farmer.
    Wilmer and Janet together were shareholders of Neufeld Farms. Janet did not
    work outside the home after Billy was born in 1995.

[5]

In November 2014, Janet brought an application for divorce and ancillary
    relief that included the division of property and spousal support. A divorce
    decree was granted, effective in April 2016.

[6]

In order to calculate the amount required for equalization of net family
    property, it is necessary to determine the valuation date, the date on which
    the parties separated with no reasonable prospect of resuming cohabitation.
    There is a huge difference between the parties on this issue. Wilmer says that
    the separation occurred around June 2000 when Janet moved into separate
    quarters (an apartment-style unit attached to the main house) where she has
    lived ever since. Janets position is that the separation occurred on about
    July 2014, four months before she commenced the divorce application.

[7]

In the divorce proceedings, a case conference judge ordered the trial of
    an issue to determine the date of separation on a final basis. During the
    summer of 2018, Lococo J. presided over this trial which lasted 19 days. After
    an extensive review of the evidence and many relevant case authorities, the
    trial judge concluded:

[76] I have also concluded that Janet has established that the
    parties separated in July 2014, as she contended. Janet considered the
    triggering event to be her confrontation with Wilmer on July 20, 2014,
    following his angry reprimand of Brigitte for turning off his alarm clock. In
    my view, the real significance of those events was that Janet resulting
    decision [
sic
] to retain a lawyer to commence divorce proceedings,
    which she did after returning to the McNab residence a few days later. I
    consider the fact that she retained a lawyer for this purpose to be an
    objective indication of her intention to live separate and apart from Wilmer. I
    therefore find that the parties date of separation was July 31, 2014.



I am also satisfied on the evidence that there was no
    reasonable prospect of reconciliation between the parties as of that time.

[8]

The appellant appeals from the trial judges decision on three grounds.

[9]

First, the appellant contends that the trial judge failed to
    sufficiently address the credibility and reliability of the parties and other
    witnesses. In particular, the appellant contends that the trial judge does not
    analyze the credibility of Janets evidence  the word credibility cannot be
    found in the 78-paragraph Trial Reasons  he makes
no comment
on
    Janets credibility or reliability  overall or on a particular matter. There
    is simply no description or analysis of the quality of her evidence or why he might
    prefer her evidence where it conflicts with other evidence, despite Janet
    giving evidence over the course of 7 days. [Appellants factum, at para. 52,
    emphasis in original.]

[10]

We
    do not accept this submission. Throughout his reasons, the trial judge undertook
    a credibility analysis on the evidence of all the witnesses relating to
    contested issues. Although the trial judge did not use the specific words
    credible or credibility, it is obvious who he found credible and reliable
    both on specific issues and overall.

[11]

To
    take but one example on credibility, the trial judge gave clear reasons for
    believing Janet, not Wilmer, on the important issue of when sexual relations
    between the parties ceased:

[75]  (a) While Janet and Wilmer did not share a bedroom in
    the one-story section of the house, I accept Janets evidence that prior to
    2000, she slept apart from Wilmer in one of the other bedrooms in the main
    house, starting at some point after the childrens birth. I also accept her
    testimony that the parties continued to have sexual relations, both before and
    after 2000, even though they occupied separate bedrooms. While Wilmers
    testimony on the latter point was somewhat of a moving target, he conceded that
    the parties continued to have sexual relations (albeit infrequently) after
    Janet began sleeping in the one-story section. He also testified that intimate
    relations ceased a few years later, but he was unable to state when with any
    degree of certainty.

[12]

To
    take but one example on reliability, the trial judge was, in a permissible way,
    cautious about accepting the evidence of the parties children (age 23 and 24
    when they testified:

[21]
Billy and Bridgette
    appeared to me, however, to be honest and generally objective in their
    testimony. That being said, while they were young adults when they testified,
    their evidence to a significant extent related to events that occurred when
    they were young children or related to matters which occurred in private
    between Janet and Wilmer. As a result, I generally found their testimony of
    only limited assistance in determining the ultimate issue of the parties
    separation date.

[13]

Second,
    the appellant submits that the trial judge made palpable and overriding errors
    with respect to findings or inferences of fact, such that his judgment cannot
    stand. The appellant points to only two examples, in a 19-day trial, of this
    category of error.

[14]

The
    appellant says that the trial judge stated correctly that Janet drew a pre-tax
    annual salary of $40,000 from Neufeld Farms but then said, incorrectly, that
    the evidence did not indicate any difference in these arrangements before and
    after 2000: at para. 24. In fact, says the appellant, Wilmer gave
    uncontradicted evidence that he reduced Janets salary by $500 per month after
    she moved into the separate apartment in 2000.

[15]

This
    is hardly a palpable error. The essential point is that Janet received a salary
    from Wilmer throughout their marriage. The trial judge recorded this. The fact
    that he did not state that there was evidence (from Wilmer) that the salary changed
    in a minor way at some point in the marriage is not an error. Even if it were
    an error, it is far removed from being overriding; at best, it would be
    minor, bordering on inconsequential.

[16]

The
    appellant says that the trial judge erred when he stated that there was no
    direct evidence (other than Wilmers testimony) that Janet knew about his other
    relationships.: at para. 75(k). The appellant submits that this is incorrect
    because there was a reference in the notes from Janets doctor about an affair
    and Billy and Bridgette testified that their mother would talk to them about
    their fathers unfaithfulness.

[17]

Again,
    it is difficult to see how this could be an overriding (i.e., it affects the
    result) error in a 19-day trial. This is especially so given Janets testimony
    that she suspected that her husband had extramarital affairs during their
    marriage.

[18]

Third,
    the appellant asserts that the trial judge erred by treating the parties so
    unevenly that it gives rise to a reasonable apprehension of bias.

[19]

We
    emphatically reject this ground of appeal. It is, in a word, outlandish. The
    appellant does not point to a single word the trial judge said during a 19-day
    trial that would suggest that he treated any of the parties or witnesses
    unfairly. Moreover, the matters to which the appellant does point  his
    treatment of the evidence of Janet and Wilmer, his failure to refer to certain
    evidence of the witnesses and in documents, and his reference to a potential
    limitation period  are, at most, potential grounds of appeal anchored in legal
    error, not bias. An allegation of judicial bias should not be made lightly
    because, by definition, it challenges the integrity of the judge in relation to
    the core of the judicial function  to preside impartially over the case before
    the judge: see
R. v. S.(R.D.)
, [1997] 3 S.C.R. 484, at paras. 31-32.

[20]

The
    appeal is dismissed with costs. If the parties cannot agree on costs, the
    respondent must submit her costs submissions within 21 days of the release of
    this judgment and the appellant must submit his costs submissions within 21
    days thereafter. Submissions by each party cannot exceed five pages.

J.C. MacPherson J.A.

G. Pardu J.A.

Grant Huscroft J.A.


