T.L.L.L. v. J.J.L., 2012 MBCA 51

Citation: T.L.L.L. v. J.J.L., 2012 MBCA 51 Date: 20120518 Docket: AF 12-30-07716 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Madam Justice Freda M. Steel Mr. Justice Martin H.

Freedman B E T W E E N: L. (T.L.L.) ) T.L.L.L. ) on her ownbehalf (Petitioner) Appellant ) ) J.J.L. ) on his own behalf- and - ) ) Appeal heard and ) Decision pronounced:L. (J.J.) ) May 16, 2012 ) (Respondent) Respondent ) Written reasons: ) May 18, 2012 SCOTT C.J.M. 1 This is another episode in the ongoing battle over custody and access with respect to the three children of the marriage. 2 In June 2009, Justice Everett of the Court of Queen’s Bench, Family Division, decided a variation application after twoweeks of trial, wherein she varied joint custody to sole custody in favour of the respondent, with supervised access to the appellant.

Inaddition, she seized herself with respect to any future applications, as is the norm in the Family Division. 3 An appeal of this decision and the orders that followed upon it was thereafter made to this court, and dismissed in January2011. 4 In due course the appellant applied for a variation of the June 2009 order; in that context, she first requested that Everett J.recuse herself, alleging bias. On September 19, 2011, Everett J. declined to do so.

On November 18, 2011, she commenced to hear theappellant’s variation application and decided that, before she could deal with the matter, she needed further information. Consequently,she made an interim order setting out a number of conditions to be fulfilled by the parties, primarily by the appellant. 5 Both of these matters have now been appealed to this court. At the conclusion of the appellant’s argument, the appeal wasdismissed, with brief reasons to follow. These are our reasons. 6 The test for bias is well known. As stated in Wewaykum Indian Band v.

Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 (atparas. 59-60): ... “[I]mpartiality is the fundamental qualification of a judge and the core attribute of the judiciary” (Canadian Judicial Council, EthicalPrinciples for Judges (1998), at p. 30). It is the key to our judicial process, and must be presumed. As was noted by L’Heureux-Dubé J.and McLachlin J. (as she then was) in S. (R.D.), [ (SCC), [1997] 3 S.C.R. 484], at para. 32, the presumption ofimpartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority

depends upon that presumption. Thus, while the requirement of judicial impartiality is a stringent one, the burden is on the party arguingfor disqualification to establish that the circumstances justify a finding that the judge must be disqualified. In Canadian law, one standard has now emerged as the criterion for disqualification. The criterion, as expressed by de Grandpré J. inCommittee for Justice and Liberty v.

National Energy Board, [ (SCC), [1978] 1 S.C.R. 369], at p. 394, is the reasonableapprehension of bias: … the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the questionand obtaining thereon the required information. In the words of the Court of Appeal, that test is “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 likelythan not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” 7 We are all in agreement that there is simply no evidence to support this argument, any more than when the issue of trialfairness was raised before this court on the appeal from the June 2009 decision. 8 With respect to the conditions set forth in the November 18, 2011 order, this is a matter entirely within the discretion ofthe motions judge, who has extensive and ongoing experience with these parties.

There is no basis for appellate intervention unless therehas been an error in principle, a misapprehension of the facts or a clear injustice, none of which are present in the case at bar. 9 The appellant argued before us that she does not have the financial wherewithal to comply with some of the conditions setforth in the November 18 order. We were told during argument that this issue was not raised at the time the order was made, and that theparties will be back in front of Everett J. in a few weeks.

That is the time when this issue should be raised and addressed. 10 In the result, the appeal is dismissed with costs. ___________________________ C.J.M. I agree: _____________________________ J.A. I agree: _____________________________ J.A.