



COURT OF APPEAL FOR ONTARIO

CITATION: Tiveron v. Collins, 2017 ONCA 462

DATE: 20170605

DOCKET: C62166

Cronk, Epstein and van Rensburg JJ.A.

BETWEEN

Amber Crystal Tiveron

Applicant

(Respondent)

and

Eric Richard Collins

Respondent

(Appellant)

Eric Richard Collins, in person

Katherine Robinson, for the respondent

Heard: June 1, 2017

On appeal from the order of Justice Janet Wilson of the
    Superior Court of Justice, dated April 11, 2016.

REASONS FOR DECISION

Introduction

[1]

The appellant appeals from the order of J. Wilson J. of the Superior
    Court of Justice (the appeal judge), dated April 11, 2016, dismissing his
    appeal from the trial judgment of R. Zisman J. of the Ontario Court of Justice,
    dated October 29, 2014, in this matrimonial case.

[2]

The appellant raises four issues.  He argues that the trial judge erred
    by: i) imposing a restraining order on the appellant; ii) prohibiting the
    appellant from initiating any further court proceedings in this case without
    leave of the court; iii) granting costs to the respondent in the amount of
    $52,899.32; and iv) denying the appellant procedural fairness due to judicial
    bias.  In respect of each of these issues, the appellant further argues that
    the appeal judge erred, and also denied him procedural fairness, by declining
    to interfere with the trial judges rulings.

[3]

At the conclusion of oral argument, we dismissed the appeal for reasons
    to follow.  These are those reasons.

Discussion

(1)

Allegations of Judicial Bias

[4]

We deal first with the appellants allegations of judicial bias, levied
    against both the trial and the appeal judges.  In our view, these allegations
    are devoid of merit.

[5]

The test for demonstration of a reasonable apprehension of bias by a judge
    is an exacting one.  It, together with the strong presumption of judicial
    impartiality, pose a steep hurdle for litigants who seek to overturn a judicial
    ruling based on the alleged bias of the judicial decision-maker.  See for
    example,
Mwanri v. Mwanri
, 2015 ONCA 843;
Martin v. Sansom
,
    2014 ONCA 14, 118 O.R. (3d) 522.

[6]

This case falls far short of meeting that high hurdle.  The record reveals
    that the trial judges interventions, about which the appellant especially
    complains, viewed cumulatively and objectively, were designed to clarify the
    evidence and the matters in issue, minimize irrelevancies or the pursuit of
    peripheral matters, and maintain control of the trial process in a high
    conflict matrimonial case involving a self-represented litigant.  Further, in
    many instances, the impugned interventions favoured the appellant or were
    intended to assist him in the conduct of his case.

[7]

We therefore agree with the appeal judges comments, at para. 12, that
    the trial judges interventions were appropriate and did not exhibit bias. 
    We also agree with the appeal judges observation, at para. 12: That the trial
    judge did not accept the version of the facts and arguments suggested by the
    Appellant is not evidence of bias.

[8]

The same may be said of the appeal judge herself.  Nothing on this
    record supports the appellants claim before this court that the appeal judge
    was biased against him or that the hearing before her was a procedurally
    unfair appeal.

[9]

This ground of appeal fails.

(2)

Restraining Order

[10]

The
    appellant challenges the restraining order granted by the trial judge on
    several bases.  In our opinion, this ground of appeal also fails.

[11]

The
    trial judge found that the appellant had engaged in a pattern of persistent and
    continuing abusive behaviour towards the respondent, and that he acted in a threatening
    manner toward her, both throughout their relationship and after their
    separation.  She also found, at paras. 174 and 177, that the respondent had a
    reasonable and legitimate fear for her emotional and psychological safety and, given
    the appellants lack of insight into the impact of his conduct, it was unlikely
    that he would be able to self-regulate either his conduct or method of
    communicating.

[12]

These
    findings are amply supported by the evidentiary record including, but not
    limited to, parts of the appellants own trial testimony and the evidence of
    his threatening and intimidating emails and text messages to the respondent.

[13]

In
    these circumstances, the trial judge was fully justified in concluding that the
    considerations relevant to the granting of a restraining order, as discussed in
McCall v. Res
, 2013 ONCJ 254 and
Lawrence v. Bassett
, 2015
    ONSC 3707, were satisfied in this case.  It follows that the appeal judge did
    not err in upholding this aspect of the trial judges decision.

(3)

Requirement for Leave to Proceed with Further Proceedings

[14]

We
    reach a similar conclusion regarding the trial judges decision to prohibit the
    appellant from initiating any further court proceedings without leave of the
    court.

[15]

This
    case has a lengthy history, involving multiple court attendances, a temporary
    court order restraining the appellant from bringing any further motions in the
    matrimonial proceeding without leave of the court, and multiple costs awards
    against the appellant, many of which remain outstanding in full.  These factors,
    taken together, provide sufficient justification for the trial judges impugned
    order.

[16]

However,
    there is more.  During his testimony and closing submissions at trial, the
    appellant described his litigation tactics and strategy of returning to
    court to resolve any disputed issue or conflict with the respondent.  In the
    face of the appellants threat of further court proceedings, with attendant
    costs consequences, the trial judge concluded, at para. 160:

Based on the prior history of litigation and in order to
    attempt to control needless further court proceedings, I find that this is a
    case that should require the father to seek prior court approval before he
    should be permitted to initiate any further court proceedings.

[17]

The
    appeal judge held, at para. 26, that this discretionary decision was entirely
    appropriate based upon the evidence of conflict.

[18]

We
    agree.  The order in question was grounded in the evidence, including the
    appellants admitted future litigious intentions, and the litigation history
    between the parties.  We see no basis for appellate interference with it.

(4)

Costs Award

[19]

We
    also reject the appellants attack on the trial judges costs award.

[20]

A
    reviewing courts jurisdiction to interfere with a trial judges discretionary
    costs order is limited.  Unless the costs order is plainly wrong or tainted by
    an error in principle, there is no basis to set it aside:
Hamilton v. Open
    Window Bakery Ltd.
, [2004] 1 S.C.R. 303.

[21]

In
    this case, the trial judge provided clear and detailed reasons for her costs
    award.  She considered the controlling principles and properly applied them to
    the facts of this case, as she found them.  The respondent was successful at
    trial.  Further, the trial judge found that the respondent had acted reasonably
    throughout the litigation.  In contrast, on the trial judges findings, the
    appellant had acted unreasonably by making unsupported allegations of bad faith
    and other misconduct against the respondent and adopting a litigation strategy
    that was calculated to intimidate the respondent and increase her legal costs.

[22]

We
    note that the trial judge recognized that she was unable to order that the
    costs of the entire trial be enforced by the Family Responsibility Office,
    notwithstanding the respondents success at trial, because support issues were
    no longer in play after the commencement of the trial.  The trial judge was
    careful to tailor her costs order accordingly.

[23]

Finally,
    the appellant argues that the trial judge erred in her costs analysis by
    failing to credit him, in some measure, for the costs incurred in respect of
    the respondents claim for retroactive child support.

[24]

We
    do not accept this argument.  The claim at issue was never pursued by the
    respondent and was formally abandoned by her approximately six months before
    trial.  There is no evidence before us that the appellant incurred any costs in
    association with this claim.

[25]

For
    these reasons, we are not persuaded that the trial judges costs award is
    plainly wrong or that it is infected by any error in principle.

Disposition

[26]

Accordingly, the appeal is dismissed.  The respondent is entitled to
    costs of the appeal, fixed in the total sum of $5,000, inclusive of
    disbursements and all applicable taxes.

E.A. Cronk J.A.

Gloria Epstein
    J.A.

K. van Rensburg J.A.


