



COURT OF APPEAL FOR ONTARIO

CITATION: A.M. v. J.M., 2016 ONCA 644

DATE: 20160826

DOCKET: C61560

Feldman, Gillese and Brown JJ.A.

BETWEEN

A.M.

Applicant (Respondent)

and

J.M.

Respondent (Appellant)

Edward Rae, for the appellant

Milena M. Soczka, for the respondent

Heard: March 23, 2016

On appeal from the order of Justice Paul U. Rivard of the
    Superior Court of Justice, dated December 17, 2015, with reasons reported at
    2015 ONSC 7921.

Feldman J.A.


[1]

This is a custody dispute involving the parties two young boys. The
    trial judge found both parents to be very good parents and that custody could
    be awarded to either one in the best interests of the children.

[2]

At the time of the trial, the children had been residing with the father
    and his partner for approximately one year, with access to the mother, pursuant
    to an
ex parte
order that had been confirmed on a full hearing one month
    later. The trial judge concluded that the father had created an unlawful
status
    quo
by failing to make full disclosure on the
ex parte
motion, suggesting
    that had the father made full disclosure, the
ex parte
order would not
    have been granted. All other matters being equal, the trial judge decided that
    the mother should be awarded custody of the children since they had lived with
    her and thrived in her care for most of their young lives.

[3]

On appeal to the Superior Court, the appeal judge held that it was open
    to the trial judge to have found that the father obtained an unlawful
status
    quo
, and that the confirmation of the
ex parte

order at
    the comeback hearing one month later did not cure the problem. He also rejected
    the fathers alternative submission that the trial judge displayed a reasonable
    apprehension of bias by raising the issue of non-disclosure and the lawfulness
    of the
status quo
on his own motion.

[4]

The father now appeals to this court, arguing that the appeal judge
    erred in upholding the trial judges finding that the
ex parte

order
    had created an unlawful
status quo
. In the alternative, he submits
    that the appeal judge erred in failing to find that the trial judge exhibited a
    reasonable apprehension of bias by pursuing that issue on his own motion.

Facts

(1)

The parties relationship

[5]

The parties met in the winter of 2006-2007. They initially lived in
    North Bay, Ontario, where the mothers family lives, but moved to MacTier, where
    the fathers family lives, shortly after. Their first son was born in 2009 and
    their second in 2010. The mother was the primary caregiver of the two boys.

[6]

After the parties separated in October 2011 or January 2012, the mother moved
    back to North Bay with the children. The father had liberal access, except for
    a period of a few weeks in 2012 when he lived and worked in Montreal. He also
    paid child support. However, there was friction between them.

[7]

In March 2013, the mother brought an application for an order granting
    her custody of the two boys. The father opposed the application.

[8]

As a result of a court order made that spring for the purposes of the
    custody hearing, the Office of the Childrens Lawyer (OCL) conducted a
    clinical investigation. At a disclosure meeting in September 2013, the mother was
    very upset to learn that the OCL report recommended that custody be awarded to
    the father. The investigator concluded that joint custody was not in the
    childrens best interests because of the parents inability to communicate, and
    that the father could provide a more stable, predictable and consistent
    environment for them.  The investigator was critical of the mothers sense of
    entitlement to custody, and also noted a history of volatility. That report
    was submitted to the court in early October 2013.

[9]

Matters came to a head days later following the Thanksgiving weekend,
    which the children spent with the father. When the mother could not pick them
    up at the courtordered drop-off time of 11 a.m. on the Monday in North Bay, the
    father made arrangements with the mothers sister, D.M., to meet him and take
    the children at 3:00 p.m. But after D.M. later returned the children to the mother,
    the mother texted D.M. asking her to look after the children. The mother said
    she was not mentally capable of caring for the boys and that she may end up
    hurting them. D.M. had made other plans that night but she arranged for the
    children to be taken by their grandmother.

[10]

Unbeknownst
    to the mother, all her text messages were inadvertently being forwarded to the
    fathers cell phone. When the father saw the text messages between the mother
    and D.M., he became very concerned for the childrens safety and sought the
    assistance and advice of the North Bay Childrens Aid Society.

(2)

The
ex parte

motion

[11]

On
    October 18, 2013, the father brought an
ex parte
motion seeking interim
    custody. He swore an affidavit stating that he had concerns for the childrens
    safety. He appended a number of the text messages exchanged between the mother and
    her sister and also stated that D.M. followed up by promptly ensuring that the
    children were removed from the mothers care.

[12]

The
ex parte
motion

judge, who ultimately became the trial judge,
    granted temporary custody to the father with supervised access to the mother.

(3)

The comeback hearing

[13]

A
    full comeback hearing was held on November 22, 2013. Both parents were present;
    the mother was represented by counsel.  Through counsel, the mother
    acknowledged feeling overwhelmed. She attributed her distress over the
    Thanksgiving weekend to the negative OCL report, which she thought was unfair
    and inaccurate. After hearing fully from both sides, Rodgers J. confirmed the motion
    judges temporary order.

[14]

The
    children continued to reside with their father in MacTier throughout 2014, with
    access to the mother, which eventually became unsupervised access.

(4)

The trial

[15]

On
    November 12, 2014, after a four-day trial in which custody was the primary
    issue, the trial judge awarded custody of the children to the mother. In analyzing
    the best interests factors under s. 24 of the
Childrens Law Reform Act
,
    R.S.O. 1990, c. C.12

(
CLRA
), he concluded that both parties
    were equally capable of providing their children with a stable, loving home in
    which the two boys thrived and were happy.

[16]

Normally,
    if children are successfully residing with one parent at the time of the trial,
    that is a factor a court will weigh in determining the best interests of the
    children:
CLRA
, s. 24(2)(c). However, although the children had been
    residing with the father for a year at the time of the trial, the trial judge declined
    to consider the existing
status quo
as a factor in the fathers favour.
    He found that the father had obtained that
status quo
unlawfully by
    failing to disclose all relevant information on the
ex parte

motion.

[17]

The
    trial judge explained that the father neglected to disclose on the
ex parte

motion that his concern for the childrens well-being when he saw the
    October 2013 text messages between the mother and D.M. was tempered
    drastically by his knowledge, given in evidence at trial, that Aunt D.M. would
    never do anything to put [the children] in jeopardy: p. 56. The trial judge
    also criticized the father for failing to disclose that in the spring of 2013,
    when the mothers mental state had also deteriorated, she had asked the father to
    take the children until she was medically cleared to have them back, and then
    needed a court order to get them back from him. The trial judge concluded, at
    pp. 57-58 of his reasons:

A false
status quo

cannot stand under those
    conditions and forms no part of this analysis. If anything, the only
status
    quo

that could or should be considered by the Court is the one that
    existed from [the] separation date in October 2011 until the fateful
ex
    parte

temporary order of October 18, 2013. That is, the children
    resided with their mother.

[18]

In
    concluding that custody should be granted to the mother, the trial judge
    reiterated that the children were thriving in her care when custody was
    changed on October 18th last and she is capable of providing the same stable
    environment where they have lived for most of their young lives: p. 65.

(5)

The motion for a stay pending appeal

[19]

The
    father moved to stay the trial judges order. Justice Ellies granted the motion
    on November 17, 2014. He determined that the trial judge might have
    misapprehended what had occurred when the father obtained temporary custody. He
    held there was evidence that the father had provided full and fair disclosure
    on the
ex parte

motion, and even if one could say that the
    initial temporary custody should not have been granted on an
ex parte
basis, it was difficult to see how it could be considered to have been obtained
    improperly thereafter, in light of the full comeback hearing.

[20]

As
    a result, the children continued to reside with the father after the trial.

(6)

The first appeal

[21]

The
    father appealed the trial judges order to the Superior Court, arguing that he
    had not obtained the
ex parte
order unlawfully, and that the trial
    judges interventions during the trial gave rise to a reasonable apprehension
    of bias. On December 17, 2015, the appeal was dismissed. The appeal judge held
    that it was reasonable for the trial judge to have concluded that the father
    did not make full disclosure at the
ex parte

hearing, and he
    rejected the submission that the comeback hearing cured any problems with
    disclosure because the
ex parte

order had already established a
    new
status quo
.

[22]

The
    appeal judge also rejected the fathers allegation of reasonable apprehension
    of bias on the part of the trial judge. He noted that there is a strong
    presumption of impartiality and held that the degree of judicial intervention
    at trial was not excessive.

[23]

Since
    the appeal judges order, the children have resided with the mother in North
    Bay.

Issues on appeal

[24]

Before
    this court, the father renews the arguments he made before the appeal judge. 
    He argues that the appeal judge erred by upholding the trial judges finding
    that the father obtained an unlawful
status quo
on the
ex parte

motion, and by rejecting the allegation of reasonable apprehension of bias.

[25]

I
    will address each issue in turn.

Analysis

Issue 1: Did the appeal judge err by upholding the trial
    judges finding that the father obtained an unlawful
status quo
on the
ex parte

motion?

(1)

Ex Parte
Orders

[26]

Rule
    14(12)(c) of the
Family Law Rules
, O. Reg. 114/99,

allows a
    motion to be brought without notice if there is an immediate danger to the
    health or safety of a child or of the party making the motion, and the delay
    involved in serving a notice of motion would probably have serious consequences.
    If an
ex parte
order is made, under rule 14(14) that order must
    contain a requirement that the matter come back to court, if possible before
    the same judge, within 14 days or on a date chosen by the court. And under rule
    14(15), an order made without notice must be served immediately on all parties
    affected, together with all documents used on the motion, unless the court
    orders otherwise.

[27]

These
    rules are consistent with the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194, for other civil matters. An
ex parte
order is intended to be
    used only in exigent situations where the delay required to serve the motion
    would probably have serious consequences, or where the giving of notice by the
    service itself would probably have serious consequences. A judge hearing an
ex
    parte
motion who is not satisfied of the probability of those consequences
    will decide that the motion cannot proceed
ex parte
and order that
    notice be given.

[28]

Where
    a motion is brought without notice, the person bringing the motion must make
    full and fair disclosure of all material facts (rule 39(6) of the
Rules of
    Civil Procedure
), including facts that may not be helpful to that partys
    position. An
ex parte
order that is obtained without full and fair
    disclosure, even if the lack of full disclosure was unintended, is subject to
    being set aside. See for example,
Rinaldi v. Rinaldi
, 2013 ONSC 7368.

[29]

Notice
    and the opportunity to be heard are basic tenets of our justice system.
Ex
    parte
orders are therefore made only in very limited circumstances. The
    requirement for full and frank disclosure is essential to allow a court to
    fairly make a temporary order that will affect the rights of another person in
    an emergency situation where the court has not heard both sides of the story.

[30]

That
    requirement is well-known to lawyers. It applies equally to self-represented
    parties.

(2)

The
ex parte
order of October 18 and the comeback hearing of
    November 22, 2013

[31]

The
    post-Thanksgiving 2013
ex parte
motion that the father brought for temporary
    custody of his children was the third such motion he had initiated over the
    previous six-month period. Neither of the previous two had been successful.
    However, as I have said, by October of that year, the OCL had prepared a report
    recommending that the father be granted sole custody of the children.

[32]

When
    he saw the text messages from the mother indicating that she was distraught and
    worried that she might hurt the children if her sister did not take them and
    look after them that day, the father was concerned for their safety. He sought
    advice from the CAS, and was apparently advised to seek an
ex parte
order, which is what he did.

[33]

The
    following is the content of the affidavit sworn by the father, where he
    highlights the text messages of greatest concern:

1. I am the respondent father in this
    matter and I write this affidavit in support of my urgent motion for the
    interim custody of my two children  and for no improper purpose. I believe the
    contents of this affidavit to be true.

2. I reside in MacTier and I currently
    see the children on alternate weekends plus extra access as arranged.

3. On October 7, 2013 the OCL reported
    to the court and recommended sole custody of the children to myself plus access
    to the mother along with other recommendations.

4. The mother is not handling the OCL
    recommendations well. The last court date was adjourned at the request of the mother.

5. I am very concerned about the
    well-being of the children since I dropped them off to the mothers sister, D.M.,
    on Monday, October 14, 2013. The mother refused to meet me to receive them four
    hours earlier at the scheduled, court-ordered drop-off time of 11:00 AM.

6. Attached and marked as Exhibit A
    is a true copy of text messages, which I believe are texts between the mother
    and her sister primarily.

7. In the paragraphs that follow, I have set out the text
    messages of greatest concern wherein the mother is requesting her sister to
    take the children because if not I may end up hurting them. I am not certain
    of the mothers mental well-being at this point and have grave concerns for the
    children.



the sense of urgency came from messages I received after the
    children were returned to North Bay on October 14, 2013. Serious safety
    concerns arisen.

9. The court ordered drop-off time for me to return our
    children to North Bay is 11:00 AM on Monday mornings. On October 14, 2013, the
    applicant was unprepared to care for [the children] and did not meet at the
    scheduled time to receive the children. She then proceeded to ignore my
    attempts to contact her as well as those of the North Bay Police. Arrangements
    were made with the applicants sister, [D.M.], and she met me to pick up [the
    children] at 3:00 PM in the parking lot of Tammies, a North Bay restaurant.
    After the children were returned to the mother by her sister, [A.M.] refused to
    care for the children that night. [A.M.] indicated that she may harm our
    children if [D.M.] did not come and pick them up right away. Her sister
    acknowledged this and followed up by promptly ensuring that the children were
    removed from the mothers care.

[A.M.]: Im not going to parent them. Im gonna go upstairs in
    my room and shut the door

[D.M.]: Ok [A.M.]

[A.M.]: Come get them or Im calling J.M. [the father] to

[D.M.]: No

[A.M.]: I may end up hurting them

[D.M.]: What the fuck is your problem

[D.M.]: And I understand that if I dont you might hurt them

10. The applicant is mentally unstable and unfit to be caring
    for the children at this time as indicated by herself via text message.

[D.M.]: If you take off skating today instead of taking your
    boys never expect any help from me ever again. Not one cent. Not one hand with
    anything. Nothing

[A.M.]: I cant

[D.M.]: Why?

[A.M.]: Cause I mentally cant

[A.M.]: I dont want to be a fucking parent. Im not mentally
    capable of doing this

[A.M.]: I am pretty fuct up. Everything has caught up with me

[A.M.]: Im going crazy

[D.M.]: U are too volatile. Theres no way I can help you in
    court anymore. You had one last chance that I was giving you so we can fight
    this

[D.M.]: If I had left everything to you yesterday shit would
    be completely fucked up beyond repair with J.M. You just go off and it makes me
    think I would be crazy to back u financially in court. Even if u got custody of
    the boys u are one breakdown away from losing them

11. I called North Bay C.A.S. on the morning of October 15,
    2013 and to the best of my knowledge C.A.S. did not intervene that day. On the
    morning of October 16, 2013, I contacted Bracebridge C.A.S. out of concern as
    it had been indicated that the applicant would again have the children in her
    care beginning that evening. Anna of the Bracebridge C.A.S. recommended that I
    immediately come to court to seek an urgent motion for interim custody.
    [Citations to Exhibit A omitted.]

[34]

As
    noted above, paragraph 9 makes it clear that the children were not with the mother
    any more, as her sister, D.M., to whom the father had delivered the children on
    the Monday, had removed them from her sisters care.

[35]

The
    father also attached to his affidavit an appendix that appears to be an
    electronic print-out of the text messages that had been inadvertently forwarded
    to him, and which includes messages on October 15, the day after the mother said
    she could not parent the boys. One of those messages states: J.M. [the father]
    set me off and so did work. Considering everything Im surprised I did not go
    crazy yet. Id never hurt the boys. Or let anything happening [
sic
]. I
    was beyond pissed off last night.

[36]

On
    its face, this affidavit appears to satisfy the requirement for full and fair
    disclosure. It:

·

described the status of the situation between the parents;

·

described the mothers concern that she was not able to care for
    the children, using her own words by quoting the most significant texts between
    her and her sister;

·

explained that D.M. promptly ensured that the children were
    removed from their mothers care; and

·

included an apparent print out of the texts from the relevant
    days, including the one where the mother says she would never hurt the boys
    and was beyond pissed off the previous night when she warned otherwise.

[37]

As
    I explained above, the
ex parte

order of October 18, 2013 was
    followed by a full comeback hearing before Rodgers J. on November 22, 2013. The
    mother was served with all the materials supporting the
ex parte
order
    and was represented by counsel at the comeback hearing, a transcript of which
    is in the appeal record. The mother did not raise any issue in her materials or
    in oral submissions about the adequacy of the fathers disclosure on the
ex
    parte

motion.

[38]

At
    the comeback hearing, the mother sought an arrangement where she would have
    either weekly or weekend access to the children, but supervised by her sister D.M.
    or by other family. She acknowledged that she had been overwhelmed as a single
    mother but said she intended to address her issues. She also intended to refute
    the report by the OCL in preparation for the custody trial. Justice Rodgers questioned
    the mother extensively about the text messages, including messages proffered by
    the father at the comeback hearing that suggested that she was dealing drugs,
    and asked for her explanation.

[39]

Justice
    Rodgers also heard submissions from the father, who represented himself, and
    questioned him. Both the mothers counsel and the father explained the entire
    sequence of events to the court, including what had taken place between the
ex
    parte
order by Klein J. on October 18 and the return on November 22, as
    there had been a number of court attendances before different judges, including
    Klein J., where access arrangements were adjusted. During that time, D.M. had
    been involved in supervised access to the mother. It was clear that both
    parties trusted D.M.

[40]

Immediately
    following the hearing, Rodgers J. gave his oral reasons for continuing the
    temporary order granting custody of the two boys to the father, and set out
    terms of supervised access for the mother. He based his decision primarily on
    the fact that the mother had indicated in her text message exchange with her
    sister of October 14 that she was overwhelmed by her caregiving role, called on
    her sister to take the children, that she was not capable of parenting them and
    was afraid that she might hurt them.

[41]

Justice
    Rodgers discussed some of the procedural history of the custody dispute,
    including his own involvement in making the first temporary order on April 18,
    2013 (the reasons say October 18 in error) placing the children in the care of
    the mother with access to the father, and that the father had been relentless
    since that date in his attempts to have that order changed.

[42]

By
    the judges count, there had been 16 court attendances, either on notice or
ex
    parte
since the first order, including multiple attempts by the father to
    bring
ex parte
and emergency motions, most of which were denied. The
    judge stated that he was not real sympathetic to [the father] because it
    appears that hes tried everything in his power to get these children away from
    their mother, at least in terms of custody. However, the new evidence from the
    text messages was very, very alarming.

[43]

Justice
    Rodgers did not accept the mothers explanations for the text messages that
    appeared to describe drug trafficking, finding that to be a concern that could
    not be ignored. However his main focus was the mothers own doubts about her ability
    to look after the children safely. I quote his conclusions in full:

I have to deal with where the children live right now as this
    matter is proceeding through the court and I share the concerns that Justice
    Klein had. I have had the opportunity to hear what the parents have to say.
    This is what this hearing is about. An
ex parte
order has been made, [A.M.]
    didnt have the opportunity to participate in that order that significantly
    affected her and her children. This hearing was the opportunity for the Court
    to try and get as much information as possible from both parties in order to
    determine whats in these childrens best interest in the short term. And that
    is why I asked questions of [A.M.] because I found it very troubling that the
    very essence of the material that was placed before Justice Klein prior to
    making the order, the concern about [A.M.] being overwhelmed and the concern
    about her possibly being connected to the drug trade. Theres very little in
    her material that she filed in response that addressees the heart of the issue,
    as I see it. She was more concerned about raising her concerns about the
    quality of the OCL report.

So I have had the opportunity to read all of her material and
    ask her specific questions about the concerns that are raised by the material
    that was before Justice Klein. I have come to the conclusion for the reasons I
    am attempting to express, there should be a temporary order that [J.M.] shall
    continue to have custody of the children. [A.M.] shall have access every
    second weekend. That access will be supervised by [D.M.] or another family
    member designated by [D.M.]. Thats with the intent that [A.M.] is not left
    alone with the children as their primary caregiver. The access, Im not saying
    that the access has to be at [D.M.s] home, Im not saying the access has to be
    at [A.M.s] home. Im saying that the access can occur wherever, as long as
    there is a responsible family member who is present so that [A.M.] is not left
    alone as the caregiver at this time because of my concerns that were raised by
    her own utterances on October 14th in the text messages; her expressions of
    being overwhelmed and of possibly harming the children and her expressions of
    not wanting to parent the children.

(3)

The errors by the trial judge and the appeal judge

[44]

The
    trial judge found that the
status quo
that had been established by the
    October 18, 2013
ex parte

order and confirmed at the November
    22, 2013 comeback hearing was unlawful because the father had failed to make
    full and fair disclosure. In my view, he made two errors in his apprehension of
    the evidence and of the submissions in making this finding.

[45]

First,
    in his reasons for discounting the
status quo
, the trial judge stated:
    The father urges that I maintain [the]
status quo
. The mother claims
    that the fathers failure to disclose all the information that was known to him
    set up an unlawful
status quo
or a
status quo
that was
    obtained without full disclosure: at p. 55 (emphasis added). This statement
    constituted an error of fact by the trial judge. At no time did the mother take
    the position that the father had not made full disclosure on the
ex parte
motion or that he had created an unlawful
status quo
.

[46]

The
    mothers counsel did not question the father regarding his disclosure on the
ex
    parte
motion. The issue was raised only by the trial judge in lengthy
    questioning of the father.

[47]

Second,
    the trial judge erred in finding that the father had not made full disclosure
    because he had not indicated that any concern he had about the mother was
    tempered drastically by his knowledge, given in evidence at trial, that Aunt D.M.
    would never do anything to put [the children] in jeopardy.

[48]

With
    respect, D.M. did not have legal custody of the children. The mother did.
    Although D.M. tried to be available to help her sister, she could not be
    available all the time, nor was it her legal obligation to do so. Nor did the father
    in any way suggest that he did not trust D.M. To the contrary, the affidavit
    disclosed that he had delivered the children to D.M. after his Thanksgiving
    access visit, and D.M. had indeed removed the children from her sisters care,
    and although she could not take them herself that night, her mother did.

[49]

As
    Rodgers J. recognized at the comeback hearing, the mothers self-declared
    inability to parent the children and her fear of harming them was the issue
    that caused the concern and the emergency situation. The
ex parte

motion
    judge was told that the children had been removed from the mother. He therefore
    knew the immediate danger had been addressed. The issue was for the ongoing
    care and well-being of the children.

[50]

The
    trial judge also criticized the father for failing to disclose some of the past
    history of the proceedings. Again, as Rodgers J. recognized, whatever had
    happened in the past was overtaken by the mothers concerns about her kids
    safety with her in October. Those concerns could not be ignored based on what
    had occurred in the past, nor did the trial judge explain how those prior
    events would have been relevant on the
ex parte

motion.

[51]

In
    addition, it is clear from Rodgers J.s reasons that he was fully aware both of
    the entire procedural history, as well of the role played by D.M. and the fact
    that everyone trusted D.M. He understood that the
ex parte
order had
    been made without notice and that the comeback hearing was the time to hear
    both sides of the story. He did so and confirmed the temporary order.

[52]

In
    my view, there was no basis on the record for the trial judge to find material non-disclosure
    by the father at the
ex parte
hearing, and the appeal judge erred in
    holding otherwise. Furthermore, it was an error of law for the appeal judge to discount
    the full comeback hearing held by Rodgers J. and to find, contrary to the
    reasons, that Rodgers J. felt bound to confirm the
ex parte
order.

[53]

As
    a result, the conclusion that the childrens residency
status quo
with
    the father created by those hearings was unlawful cannot stand.

Issue 2: Did the appeal judge err by rejecting the allegation
    of reasonable apprehension of bias?

[54]

The
    father also submits that that the trial judge showed a reasonable apprehension
    of bias in his approach to the non-disclosure issue and his conduct of the
    trial.

[55]

The
    test for reasonable apprehension of bias was recently stated by this court in
Martin
    v. Martin
, 2015 ONCA 596, 127 O.R. (3d) 1, at para. 68: Would a reasonable
    and informed person viewing the matter realistically and practically and having
    thought it through conclude that the judge, consciously or unconsciously would
    not decide fairly. The threshold for finding a reasonable apprehension of bias
    is extremely high. There is a strong presumption in favour of the judges
    impartiality and the question of a reasonable apprehension requires a highly
    fact-specific inquiry:
Martin
, at para. 71.

[56]

In
Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs)
,
    2010 ONCA 47,
265 O.A.C. 247, leave to appeal refused,
    [2010] S.C.C.A. No. 91,
at para. 243, this court cautioned:

[A]
ppellate courts are reluctant to intervene
    on the basis that a trial judge entered the arena and improperly intervened
    in a trial.  There is a strong presumption that judges have conducted
    themselves fairly and impartially.  Isolated expressions of impatience or
    annoyance by a trial judge as a result of frustrations, particularly with
    counsel, do not of themselves create unfairness.  Similarly, a trial
    judges willingness to debate with counsel openly over relevant factual and legal
    issues should not serve as a basis for a reasonable apprehension of bias. 
    In the end, an appellate court should only intervene if satisfied that the
    trial judges interventions, considered in the context of the entire trial,
    created a reasonable apprehension that the trial judge was biased. [Citations
    omitted.]

[57]

The
    father submits that the trial judge demonstrated a reasonable apprehension of
    bias in six ways. The first was by suggesting that the argument regarding
    non-disclosure came from the mother, when in fact it was the trial judges
    concern, expressed in questioning of witnesses, in argument and in his reasons
    for decision. The second and third were in his questioning of D.M. and of the father
    on the non-disclosure issue, which had not been raised by anyone else. The
    trial judge questioned the father for 20 pages of transcript, in a
    cross-examining style. The fourth area was in submissions by the fathers counsel
    where the trial judge interrupted counsel to debate his theory regarding the
    non-disclosure. The fifth area was the trial judges failure to advert to the worrisome
    facts that gave rise to the
ex parte
order. The sixth concern was that
    the trial judge improperly reviewed the continuing record rather than limiting
    himself to the evidence at the trial.

[58]

The
    mother submits that none of these issues went beyond the proper role of a trial
    judge, and that taking the conduct of the trial as a whole, there was no
    appearance of a prejudgment of critical issues or the creation of a reasonable
    apprehension of bias.

[59]

The
    appeal judge considered this issue in the context of the test as set out in
Martin
,
    quoted above. He noted that the trial judge appeared to have been gentler with
    the mother in his questioning than with the father, but on his review of the
    record he could not discern a predisposition to decide the issues in favour of
    the mother. He concluded that there was no reasonable apprehension of bias.

[60]

On
    my reading of the record, it appears that the trial judge, who was also the
ex
    parte
motion judge, became concerned that in hindsight he should not have
    granted the
ex parte
motion and pursued his theory of material
    non-disclosure in his examination of witnesses, and during submissions, then
    referred to it as part of his unlawful
status quo
finding.

[61]

However,
    that concern must be viewed in the context of the entire proceeding, the
    presumption of impartiality, and the findings made by the trial judge that
    favoured the father in the analysis of the best interests of the children.

[62]

Viewing
    the proceeding as a whole, it is clear that the trial judge was focused on
    deciding the custody issue by determining the best interests of the children.
    Applying the strong presumption in favour of impartiality, I would not
    interfere with the conclusion reached by the appeal judge that there was no
    reasonable apprehension of bias.

(4)

Remedy for the error in finding an unlawful
status quo

[63]

The
    father submits that as the trial judge found that the other best interest
    factors favoured each parent equally, it cannot be said that the trial judges
    error in finding that the father created an unlawful
status quo
by
    failing to make full disclosure at the
ex parte
hearing did not
    influence his decision to award custody to the mother.

[64]

The
    best that can be said is that it is not clear whether the trial judge would
    have used the
status quo
as the determining factor to award custody to
    the father. He concluded that the children had thrived when they were with
    their mother, that they had lived with her for most of their lives, and that it
    was in their best interests to be returned to her custody.

[65]

Even
    if the fathers submission has some merit, the issue for this court is what
    remedy, if any, should be ordered in the best interests of the children at this
    point. Since the decision of the appeal judge on December 17, 2015, the
    children have resided with the mother. The
status quo
factor has been
    effectively neutralized as a result of the decision of the appeal judge.

[66]

The
    effect of this decision is that the father has been exonerated of the charge of
    misleading the court on the
ex parte
motion. However, there is no
    basis to change the custody arrangements of the children. They are lucky in
    that they have two loving parents and extended families. It is not in their best
    interests to put the parties to the stress and uncertainty of a new trial.

[67]

The
    father also asked for an amendment to the order regarding his support
    obligation. The trial judge ordered child support to commence following the
    trial in December 2014. As the children remained with the father until December
    2015, I agree that the fathers child support obligation should commence on
    January 1, 2016. The appeal is allowed to that extent.

[68]

I
    want to thank and commend both counsel who provided very helpful written and
    oral submissions. No costs of the appeal were requested as both parties were
    legally aided.

DISPOSITION

[69]

The
    appeal is allowed in part only: para. 5 of the order of Klein J., dated
    November 12, 2014, shall be amended by substituting January 1, 2016, in lieu of
    December 1, 2014, for the date on which the father was to commence payment of
    child support.

Released: August 26, 2016 (K.F.)

K. Feldman J.A.

I agree. E.E. Gillese J.A.

I agree. David Brown J.A.


