



COURT OF APPEAL FOR ONTARIO

CITATION: Bryce v. Bryce, 2015 ONCA 871

DATE: 20151211

DOCKET: C60793

Sharpe, Cronk and Miller JJ.A.

BETWEEN

Karen Bryce

Applicant (Appellant)

and

Wayne Bryce

Respondent (Respondent)

Karen Bryce, acting in person

Michael J. Polisuk, for the respondent

Heard: December 2, 2015

On appeal from the judgment of Justice S.M. Rogers of the
    Superior Court of Justice, dated December 23, 2013.

ENDORSEMENT

[1]

The appellant appeals from a final order setting out: (1) that the
    matrimonial home be listed for sale and stipulating the division of the
    proceeds of sale, (2) a determination of the quantum of child support,
    retroactive and prospective, (3) a determination of spousal support,
    retroactive and prospective, and (4) a determination of the allocation of s.7
    expenses.

[2]

The appellant seeks a new trial, primarily on the basis that: (1) the
    trial ought to have been adjourned to enable her to obtain better financial
    disclosure from the respondent, and a more comprehensive valuation of the
    respondents income and businesses, and (2) the trial judge was biased against
    her. She also objects to several procedural and evidential rulings made at
    trial, including the decision not to allow the appellant to claim an unequal
    division of property or relief under the
Canada Business Corporations Act
,
    R.S.C. 1985, c. C-44, neither of which had been pleaded by her.

[3]

The appellant also appeals on the basis that the substantive result is
    unconscionable. Essentially, the appellants position is that: (1) it is not in
    the childrens best interests for the matrimonial home to be sold; (2) the
    spousal support that she receives is inadequate to compensate her for the
    income earning disadvantage that she continues to face as a result of having
    been a stay-at-home mother; and (3) the calculation of child support is based
    on an incorrect assessment of the respondents income.

Adjournment

[4]

At the outset of trial, the appellants adjournment request was
    dismissed. The matter had already been set down twice for trial, and the trial
    judge was concerned that the expert evidence would become stale, and that an
    end to the litigation was necessary for the sake of the children and their
    financial viability.

[5]

The decision to grant or refuse an adjournment is a highly discretionary
    one and entitled to deference. Here, the trial judge took into account the
    previous adjournments, and was appropriately concerned with preserving the
    currency of expert evidence. Furthermore, the appellant offered no concrete
    proposal as to how she would obtain further evidence, and the trial judge had
    doubts about her financial means to retain another expert.

[6]

The trial judge concluded that although the appellant, as a self-represented
    party, was generally anxious about proceeding, this was not a valid ground for
    an adjournment.

[7]

The trial judge made no error in exercising her discretion to refuse the
    request for an adjournment. This ground of appeal is dismissed.

Bias

[8]

After the trial was concluded but before judgment had been given, the
    appellant brought a motion before the trial judge asking that the trial judge
    recuse herself for bias. The appellant states that the grounds for the motion
    were that the trial judge took part in a prior step in the proceedings: a
    motion for an interim access order on October 19, 2011. The trial judge
    dismissed the appellants motion that she recuse herself, noting that the trial
    was concluded, she had not presided over any settlement discussions, and had
    made no findings of credibility on the motion.

[9]

The trial judge was correct not to recuse herself on this basis, and in
    any event, her order was not appealed. Participation in an earlier step in
    proceedings of the type at issue here does not in of itself constitute bias.

[10]

The
    appellant also argues that the trial judge exhibited bias through her
    evidential and procedural rulings, as well as through her general demeanour.

[11]

We
    disagree. A trial judge has the responsibility to run a fair and efficient
    trial by ensuring that the rules of evidence and the
Rules of Civil
    Procedure
are followed. The appellant has not identified any errors with
    respect to the trial judges rulings, let alone any rulings that suggest bias
    against the appellant. This ground of appeal is dismissed.

Substantive findings

[12]

The
    appellant argues that the trial judge made reviewable errors: (1) with respect
    to her findings as to the date of separation; (2) in ordering the matrimonial
    home to be listed for sale and the stipulation of the distribution of proceeds;
    (3) in the quantum of child and spousal support ordered; and (4) in the
    apportionment of s.7 expenses.

[13]

In
    each case, the trial judge applied correct legal principles to factual findings
    that were supported by the evidence before her. The appellant has not
    identified any reversible errors of fact or of law on the part of the trial
    judge.

[14]

The
    trial judge made findings, based on the expert valuation evidence before her,
    that the value of the appellants equity in the respondents businesses was nil
    at the separation date. Her findings, both with respect to the date of
    separation and the valuation of the businesses, were supported by evidence and
    entitled to deference.

[15]

This
    is not to deny, and the trial judge did not deny, that the sale of the
    matrimonial home will be a hardship for both the appellant and the children in
    all the ways that the appellant describes. Nevertheless, as the trial judge
    held: the servicing of [the parties] debt is crippling them. This cannot continue.

[16]

The
    appellant rightly identifies a technical error in the reasons, with respect to
    the proportionate sharing of s. 7 expenses. The Order and the reasons both
    state that the proportionate share shall be 70% for the appellant and 30% for
    the respondent. This is clearly a transposition error, as the respondent
    concedes, and ought to have been corrected by motion to the Superior Court of
    Justice under rule 59.06(1). The proportionate sharing should be reversed, with
    70% of the s.7 expenses to be borne by the respondent, and 30% by the appellant
    and we so order.

Disposition

[17]

The
    appeal is dismissed.

Costs

[18]

Should
    the respondent seek costs of this appeal, we will receive written submissions
    of no more than two pages in length, exclusive of bill of costs, within seven
    days of this endorsement. The appellant will have seven days thereafter to
    deliver any written reply, not more than two pages in length.

Robert J. Sharpe J.A.

E.A.
    Cronk J.A.

B.W.
    Miller J.A.


