



COURT OF APPEAL FOR ONTARIO

CITATION: McMurter v. McMurter, 2020 ONCA
    772

DATE: 20201207

DOCKET: C66465

Feldman,
    Simmons and Harvison Young JJ.A.

BETWEEN

Kelly
    Ann McMurter

Applicant
    (Respondent)

and

James
    Robert Gordon McMurter

Respondent
    (Appellant)

Kelly Ann McMurter, acting in person

Andrew Rogerson, for the appellant

Heard: in writing

On appeal from the order of Justice Helen MacLeod-Beliveau of the Superior
    Court of Justice, dated December 28, 2018, with reasons reported at 2018 ONSC
    7604.

Simmons J.A.:

Introduction

[1]

The appellant, former husband, appeals from an
    order dated December 28, 2018 in which the motion judge dismissed the
    appellants motion requesting that she recuse herself from continuing to
    preside in this proceeding based on a reasonable apprehension of bias.

[2]

In the same order, the motion judge dismissed as
    moot a motion by the respondent, former wife, seeking to prevent the appellant
    from selling one of four properties (the Bells Side Road property) over
    which the wife had an order for security for future spousal support (the
    security order). As of the date of the motion, the appellant no longer had a
    buyer for the property.

[3]

The motion judge also dismissed the respondents
    motion requesting that the appellant transfer to her the four properties to
    which the security order applied and the appellants motion to remove the
    security order from all four properties. The motion judge had previously dealt
    with those issues in a decision released on May 7, 2018 and no new material had
    been filed.

[4]

The motion judge made the security order
    following the trial of a 2016 change motion brought by the appellant in which
    he sought to terminate spousal support payable to the respondent. Among other
    things, in her 2016 change motion order, the motion judge dismissed the
    appellants request to terminate spousal support; granted the respondents
    request for the security order under the
Divorce Act
, R.S.C. 1985, c. 3,
    (2nd Supp.); and seized herself of issues arising from the change motion order.

[5]

The main issue on appeal is whether the motion
    judge erred in failing to conclude that various adverse findings she made
    concerning the appellant in her reasons for the 2016 change motion order gave rise
    to a reasonable apprehension of bias. Among other things, in her reasons for
    the 2016 change motion order, the motion judge concluded that the appellant
    failed to make full disclosure, that certain disclosure he did provide was
    deliberately misleading and that certain values he put forward were
    deliberately false.

[6]

In the event the appeal is allowed, the
    appellant seeks an order for a new hearing of the underlying motions.

[7]

For the reasons that follow, I would dismiss the
    appeal.

Background

(i)

The parties

[8]

The parties were married in 1977, separated in
    2007 and divorced in 2010. Both are Indigenous. At the time of the 2010 divorce,
    the appellant consented to an order requiring that he pay $2,500 per month to
    the respondent on account of spousal support.

(ii)

The 2016 change motion

[9]

The motion judge presided over the 15-day trial
    of the 2016 change motion brought by the appellant seeking to terminate spousal
    support payable to the respondent. In her capacity as trial judge, the motion
    judge dismissed the appellant's request and granted the respondent's request
    for security for future spousal support. Although she noted that the parties
    had entered into a marriage contract in 2005 under which they had agreed to be
    separate as to property, she made the order for security under ss. 15.2 and
    17(3) the
Divorce Act
. In particular, the motion judge ordered that
    the appellant provide security for spousal support over four specified properties,
    including the Bells Side Road property. She observed, however, that the order
    was subject to the
Indian Act
[1]
,
    which requires approval of the relevant band and the Minister of Indian Affairs
    and Northern Development.
[2]
She found that the bases for the security order included the appellant's past
    history of refusing to pay support when he had the ability to do so and lying
    to the court about his income. Further, she stipulated that, subject to
    emergencies, she "remain[ed] seized of all of the issues that arise out of
    this Judgmentand any issues that may arise as a result".

(iii)

The appellants appeal of the 2016 change motion
    order

[10]

The appellant appealed the 2016 change motion
    order. However, his appeal was ultimately dismissed for delay. In his notice of
    appeal, the appellant raised, among other things, the 2005 Separation
    Agreement (which I take to refer to the 2005 marriage contract), but he did
    not raise any issue of bias or reasonable apprehension of bias.

(iv)

The motion judges May 7, 2018 decision
[3]

[11]

On May 7, 2018, the motion judge issued reasons
    relating addressing motions brought by the parties relating to the security
    order (the security order motions), which the motion judge heard in March and
    April 2018. The respondent brought an initial motion on March 13, 2018 because
    she learned that the appellant was attempting to sell the Bells Side Road property.
    The respondent requested an order preventing the sale of that property and also
    asked that all four properties subject to the security order be transferred to
    her as lump sum spousal support. The appellant made an oral motion requesting
    that the security order be removed and discharged. The security order motions
    were adjourned to April 23, 2018 for argument and the motion judge ultimately
    reserved her decision.

[12]

In her May 7, 2018 reasons concerning the
    security order motions, the motion judge reviewed certain outstanding issues
    relating to the security order arising from the approvals required under the
Indian
    Act
. However, she observed that, under the terms of the 2016 change motion
    order, the appellant was required to seek a court order for approval of the
    sale of any of the four properties in advance of any such sale. The motion
    judge concluded that adequate security for future spousal support would remain
    if the appellant were permitted to proceed with the proposed sale of the Bells
    Side Road property. But because the appellant had not complied with certain
    costs orders, she adjourned the matter to July 9, 2018, indicating she would
    sign an approval order on that date provided that the costs orders were paid by
    June 29, 2018 and that the appellant was not then in default under the spousal support
    order.
[4]
In this regard, the motion judge accepted the respondents submission that the
    appellant should not be entitled to relief from the court in the face of the
    outstanding costs orders
[5]
or support payments.

[13]

The motion judge denied the appellant's request
    to terminate the security order in relation to the remaining three properties. She
    found a continued and ongoing need for security for [the respondents] future
    spousal support, taking into consideration the full litigation history of this
    matter.

(v)

The July 9, 2018 hearing
[6]

[14]

As of July 9, 2018, the appellant had not made
    the payments required under the May 7, 2018 order. However, he requested an
    adjournment to make additional submissions based on additional materials,
    including the transcripts of the April 23, 2018 hearing. As she found no
    prejudice to the respondent, the motion judge granted an adjournment to October
    11, 2018 and set out a timetable for filing further materials.

(vi)

The recusal motion

[15]

Prior to delivery of the recusal motion, the
    appellant was self-represented. On August 14, 2018, newly appointed counsel for
    the appellant brought a motion returnable October 11, 2018, requesting that the
    motion judge recuse herself from continuing as the Case Management Judge
    herein.

(vii)

The October 11, 2018 motions and the motion
    judges December 28, 2018 reasons

[16]

In her December 28, 2018 reasons, the motion
    judge indicated there were four motions before her at the October 2018 hearing:
    i) the appellants motion that she recuse herself; ii) the respondents
    cross-motion to dismiss the recusal motion; iii) the respondents motion to
    prevent the sale of the Bells Side Road property and for the transfer of the
    four properties subject to the security order to her; and iv) the appellants
    motion requesting that the security order be discharged from the four
    properties. Counsel for the appellant requested that the recusal motion proceed
    first. If the recusal motion was not granted, counsel requested an adjournment
    to make written submissions on the underlying motions.

[17]

At the outset of the October 11, 2018 hearing,
    the motion judge required that the recusal motion be amended to delete all
    references to her being the Case Management Judge. She was not a case management
    judge, but rather had seized herself of issues arising from the 2016 change
    motion order. The formal order arising from the motion judges December 28,
    2018 reasons reflects this amendment.

[18]

Apart from dismissing the recusal motion, none
    of the relief requested in the October 11, 2018 motions was granted. In her
    December 28, 2018 reasons, the motion judge found no air of reality to the
    claim of reasonable apprehension of bias.  Further, as the motions regarding
    the security order had been fully argued and no additional material had been
    filed other than transcripts of the April 23, 2018 and July 9, 2018 hearings
[7]
, she declined appellants
    counsels request for an adjournment to permit written submissions. The
    respondents motion to prevent the sale of the Bells Side Road property had
    become moot as the appellant had advised he no longer had a buyer for the
    property. Moreover, there was no evidentiary basis to support an order
    transferring the four properties to the respondent. The respondents motion was
    therefore dismissed. Similarly, there was no evidentiary basis to support
    removal of the security order on the four properties subject to security. If
    the appellant wished to sell any of the properties, he was required to serve a
    motion requesting approval to do so as required under the 2016 change motion order.

[19]

Concerning the bias issue, the motion judge noted
    that the appellants affidavit contained a significant amount of material
    attempting to relitigate issues determined at trial, namely whether the 2005 marriage
    contract determining ownership issues between the parties precluded the order
    for security for spousal support over the appellants properties. She observed
    that the marriage contract had nothing to do with the outstanding issues
    relating to security for spousal support, which was ordered under the
Divorce
    Act
. In addition, the motion judge concluded that the recusal motion was
    motivated by [the appellants] disagreement with [her] decision of May 7, 2018,
    effectively enforcing the terms of her 2016 judgment. She noted that no issue
    of bias had been raised on the appellants unsuccessful appeal of the 2016
    judgment or otherwise until delivery of the recusal motion in August 2018. The
    appellant did not appeal the May 2018 decision. The motion judge stated:

A recusal motion is not the appropriate forum
    to challenge findings made at trial about the security ordered for [the
    respondents] future spousal support payments over two years ago.

[20]

The motion judge also noted that, as described
    in her reasons on the 2016 change motion
[8]
,
    the parties had been litigating since 2010 and numerous judges had been
    involved. She said she seized herself of matters arising out of the 2016 change
    motion order in the interests of justice to ensure that the order was
    implemented and to provide due process to both parties.

(viii)

The appellants position on appeal

[21]

On appeal, the appellant seeks an order setting
    aside the December 28, 2018 order and directing that the motion judge be
    disqualified from acting in any continuing proceedings between the parties. He
    also requests that a new hearing be ordered.

[22]

The appellant submits that two main factors
    would lead a right-thinking person cognizant of all relevant information to
    draw an inference of bias on the part of the motion judge:

·

the trial judges adverse credibility findings
    against the appellant in her reasons for the 2016 change motion order, which
    the appellant describes as, among other things, disparaging and vituperative
    and unnecessary to a fair resolution of the issues between the parties; and

·

the motion judges actions in seizing herself of
    ongoing issues relating to the security order, which the motion judge ought to
    have realized ran counter to the 2005 Separation Agreement between the
    parties.

[23]

In his appeal factum, the appellant lists
    multiple findings in the trial judges 2016 change order reasons that he says
    give rise to a reasonable apprehension of bias. Those examples include the
    following:

·

the appellants financial statements were
    false, inadequate and incomplete and intended to mislead the court: at para.
    54;

·

the documentation the appellant produced was
    inadequate, incomplete and misleading in material ways: at para. 55;

·

the appellants financial statements were
    consistently and deliberately false as to what his personal annual income
    actually is: at para. 86;

·

the appellant had defied court orders, had undisclosed
    cash dealings and his financial statements were untruthful and blatantly false:
    at para. 92;

·

the appellants values were manifestly and
    deliberately false: at para. 96;

·

the appellants business records were
    unbelievable, unreliable and dubious and  motivated by this litigation: at para.
    124; and

·

the appellant dealt in cash, in a deliberate
    attempt to minimize and hide his income in an effort to terminate spousal
    support: at para. 125.

[24]

In his appeal factum, the appellant also advances
    the position that the 2005 Separation Agreement made the parties separate as
    to property. He asserts his properties became subject to judicial freezing
    for the benefit of the respondent so that the appellant could not deal with
    them without a court order. Given that the motion judge seized herself of
    issues in relation to the secured properties, the agreement was therefore
    compromised as to [the appellants] ownership to the benefit of the respondent
    and the prejudice to the appellant.

Analysis

[25]

I see no basis on which to interfere with the motion
    judges decision not to recuse herself from hearing further proceedings between
    the parties relating to this matter.

[26]

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:
R. v. S.
    (R.D.)
, [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193, at para. 31.

[27]

Here, as a starting point  and contrary to the
    appellant's submissions  the motion judge's 2016 change motion findings were neither
    unnecessary nor abusive. They were factual findings made following the change
    motion trial that were necessary to the proper adjudication of the issues in
    that proceeding, namely: determining the appellants income to assess whether
    there had been a material change in circumstances and determining whether an
    order for security for future spousal support should be made. Significantly,
    the findings stand unchallenged in the ongoing proceedings between the parties.
    Although the appellant attempted to challenge some of the specific findings by
    way of appeal, he did not pursue his appeal and ultimately it was dismissed for
    delay.

[28]

Equally significant is the fact the appellant
    did not raise an allegation of bias in his notice of appeal of the 2016 change
    motion order; nor did he raise the issue of bias on the initial argument of the
    security order motions. In my view, the motion judges finding that the
    motivation for the recusal motion was the appellants disagreement with her May
    7, 2018 order is supported by the record.

[29]

In any event, I am not satisfied that the motion
    judges adverse credibility findings in her 2016 change motion reasons,
    standing alone, compromised her impartiality in relation to the issues before
    her on the 2018 security order motions. The main issue was whether the
    remaining security would be sufficient if the appellant was permitted to
    dispose of the Bells Side Road property. Prior to the recusal motion, the
    motion judge had already determined that the remaining security would be
    sufficient.

[30]

Although the appellant also requested that the
    security order be lifted in relation to all four properties, the only basis for
    that request appears to be his contention that the properties could not be made
    the subject of a security order because of the parties 2005 marriage contract.
    Even assuming that is a tenable argument, it should have been advanced by way
    of appeal of the 2016 change order  as it appears the appellant attempted to
    do in his 2016 notice of appeal. No reasonable apprehension of bias arises from
    the fact that the motion judge was being asked to enforce a valid order.

[31]

Finally, I observe that, particularly in family
    law proceedings, where, as here, parties may appear in court repeatedly,
    judicial continuity is recognized as promoting both efficiency and fairness.

[32]

For example, in
D.G. v. A.F.
, 2015 ONCA
    290, 333 O.A.C. 5, this court rejected the appellants assertion that the
    motion judge erred in seizing herself of ongoing issues. At para. 13, this
    court noted that exercising inherent jurisdiction to seize herself of a case
    was the best means of ensuring that cases are dealt with justly. Further, at
    para. 15, this court 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.

[33]

Here, the motion judges knowledge of the
    history of the matter not only saved judicial resources, it contributed to her
    ability to determine the appropriate outcome at both the March, April, and October
    2018 hearings. She understood the basis for the security order and how it was
    calculated. Although adverse credibility findings may conceivably give rise to
    a reasonable apprehension of bias in the specific circumstances of a particular
    case, I am satisfied that the motion judges 2016 change motion findings
    created no such apprehension in relation to the 2018 security order motions. As
    the motion judge observed, a recusal motion was not the appropriate forum in
    which to litigate the propriety of the 2016 security order.

Result

[34]

I would dismiss the appeal from the motion
    judges order declining to recuse herself and deny the request for a new
    hearing  with the result that the motion judges additional orders would stand.

[35]

I would order that the respondent deliver costs
    submissions within seven days from the release of these reasons, that the appellant
    respond within seven days of receipt of the appellants submissions and that the
    submissions of each party be limited to a maximum of two pages.

Released: K.F. December 7, 2020

Janet
    Simmons J.A.

I
    agree. K. Feldman J.A.

I
    agree. Harvison Young J.A.





[1]
R.S.C., 1985, c. I-5.



[2]
In 2011, the Department of Indian Affairs and Northern Development
    was renamed Aboriginal Affairs and Northern Development; in 2015, it became
    Indigenous and Northern Affairs
and, subsequently in 2017,
    Crown-Indigenous Relations and Northern Affairs.



[3]
The appeal record does not include a formal order arising from the
    May 7, 2018 reasons. It is therefore not clear from the record whether such an
    order exists.



[4]
In her May 7, 2018 reasons, the motion judge noted that, in September
    2017, the appellant was incarcerated under an Ontario Court of Justice support
    enforcement order. He was released after four days in jail following payment of
    approximately $170,000 in support arrears, however, certain costs orders
    remained outstanding. In the months following his release, the appellant had
    been paying the monthly support order.



[5]
As of the date of the motions, $10,350 was owing to the Director of
    the Family Responsibility Office on account of costs orders and enforcement
    fees and $6,265 was owing to the respondent.



[6]
The appeal record does not contain any documents or reasons
    relating to this attendance. However, as noted in the motion judges December
    28, 2018 reasons, the July 13, 2018 reasons relating to this hearing are reported
    at 2018 ONSC 4278.



[7]

In her reasons, the motion judge noted that the transcripts
    were completed in August 2018. Although they had not been filed in accordance
    with the July 9, 2018 timetable, she permitted appellants counsel to file them
    at the October 11, 2018 hearing.



[8]
In her reasons on the change motion, the motion judge noted that
    the respondent commenced an application for divorce and corollary relief in
    February 2008, and that the proceedings became lengthy, drawn out and
    acrimonious. She detailed several motions and conferences in which the parties
    were involved. In her factum, the respondent claims that the parties have been
    in court over 40 times in 12 years.


