Green v Green, 2022 NSSC 30

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Green v Green, 2022 NSSC 30 Date: 2022-02-01 Docket: SFH No. 1201-071597 Registry: Halifax Between: Kelsey Green Applicant v. Heidi Green Respondent Judge: The Honourable Justice Theresa Forgeron Heard: December 6, 2021 and January 19, 2022, in Halifax, Nova Scotia Written D ecision : February 1, 2022 Counsel: Kelsey Green, Applicant, self-represented Heidi Green, Respondent, self-represented By the Court: Introduction [ 1 ] Kelsey Green and Heidi Green are former spouses and the parents of three children.

I was the judge who heard and decided the parties’ divorce, including the high conflict parenting issues. Mr. Green disagreed with my rulings. His attempts to appeal were unsuccessful. [ 2 ] Mr. Green now seeks my recusal. He does not want me to hear any further reviews, motions, or applications associated with his file. Additionally, he asks that my decisions and orders be vacated, and a new trial ordered. He also wants his family law file transferred from the Family Division to the General Division. [ 3 ] For her part, Ms. Green objects to Mr. Green’s motion.

She states that there is no evidence of either bias or the perception of bias. She does not want their file transferred to the General Division. She says a new trial should not be ordered and that I should not recuse. Issues [ 4 ] In this decision, I will determine the following questions: • Should I recuse? • Should I order a new trial? • Should the file be transferred out of the Family Division? [ 5 ] Before answering these questions, I will provide background information to place the issues in context. Background Information [ 6 ] The parties married in 2004.

They have three children who were born in 2007, 2008, and 2011. Long standing marital issues led to the parties’ separation in July 2018. [ 7 ] In December 2018, Mr. Green commenced divorce proceedings. Parenting issues were contested, especially the cause of the strained relationship between Mr. Green and the children. Each party blamed the other. Mr. Green said that Ms. Green alienated the children. Ms. Green said that the children were estranged from their father because of Mr. Green’s conduct.

[ 8 ] To assist with the resolution of the issues, a parental capacity assessment was undertaken. A lengthy and detailed report was filed. The recommendations flowing from the assessment did not result in settlement. [ 9 ] An in-person divorce trial was therefore held on October 26, 27, 28, and 29 and November 3 and 6, 2020. The parties were represented at the time. In addition to the parties, testimony was received from the assessor, a psychiatrist who had treated Mr. Green, the children’s psychologist, police officers, a counsellor, a coach, and family members.

Other evidence was entered by consent. [ 10 ] At the conclusion of the trial on November 6, 2020, the court, on its own motion, varied the interim parenting order pending the issuance of the divorce decision. I found that an interim variation order was required to de-escalate the situation and to ensure the children’s best interests. Counsel could not agree on the form of the interim variation order. [ 11 ] On December 17, 2020, a court conference was convened via video link.

After hearing submissions, additional directions were provided, and an interim variation order issued. [ 12 ] On February 16, 2021, the divorce decision was released. It is reported at 2021 NSSC 43 . On April 29, 2021, I released the costs decision; it is reported at 2021 NSSC 142 . [ 13 ] Mr. Green vehemently opposed my findings, the interim variation order, the divorce decision, the costs decision, and the CRO. He was unsuccessful in his appeal of the interim decision and in his attempt to appeal the divorce decision.

Two appeal decisions are reported as Green v Green , 2021 NSCA 15 and Green v Green , 2021 NSCA 61 . [ 14 ] In response to what Mr. Green perceived as inappropriate decision-making, he filed a complaint against me with the Canadian Judicial Council. The CJC summarily dismissed Mr. Green’s complaint. [ 15 ] On May 26, 2021, Mr. Green filed an emergency motion.

Associate Chief Justice O’Neil was not satisfied that the evidence justified an emergency hearing and dismissed the emergency motion. [ 16 ] On June 3, 2021, the Associate Chief emailed a letter to child protection authorities at the Department of Community Services. A child protection worker then contacted the Associate Chief’s judicial assistant, who emailed my decisions to DCS. Regrettably, when entering her notes into the DCS running file, the worker, Kathryn Giacomantonio, incorrectly typed that the letter was written by me and that she had spoken with my assistant.

The worker confirmed her errors when she testified during the contested recusal motion. Further, both the court file and the DCS file confirm that the letter was emailed from the Associate Chief’s office, under his signature, and that subsequent communication was with his judicial assistant. [ 17 ] At some point, Mr. Green applied for and received a copy of the DCS running file. This led to two actions. First, on September 13, 2021, Mr. Green named me and my judicial assistant as two of the defendants in a Notice of Action filed with the Supreme Court of Nova Scotia.

Other defendants include the former Minister of Community Services, the executive director, the acting executive directors, and social workers employed by DCS. [ 18 ] Second, on September 13, 2021, Mr. Green filed another complaint against me to the CJC. It too was summarily dismissed. [ 19 ] Further, on September 15, 2021, Mr. Green filed another emergency motion, which in turn was dismissed by Associate Chief Justice O’Neil for the same reason as the previous motion. [ 20 ] The Green matter once again returned before me on September 27, 2021 for two purposes.

First, I was to determine the motion to withdraw filed by Mr. Green’s counsel, Ms. Robson. This motion was granted. Second, I was to hear the review contemplated in the following paragraphs of the divorce decision: [112] It is essential that the parties make good faith efforts when engaging in therapy. The parties, especially the father, have much to accomplish. If the father is not willing to make the necessary changes, there is little likelihood that his relationship with the children will improve. The outcome is within the father’s control. [113] The parenting conflict has raged on for more than two years.

Although therapeutic interventions are both necessary and appropriate, it is not in the children’s best interests to be engaged in therapy indefinitely. Therefore, the parties will have seven months to conclude the therapeutic goals. If they are successful, then a more typical parenting arrangement will follow. The father should note, however, that a typical parenting arrangement does not necessarily mean shared parenting. A typical parenting arrangement often means less than 40% of the children’s time.

The father should focus on the quality and not the quantity of his parenting time. [114] The scheduling office will arrange a thirty minute conference in about seven months. The father and the mother will file, with the court and each other, a report from their therapist, two weeks in advance of the conference outlining the status of the party’s progress. The mother will file a similar report from the children’s therapist.

If the parties complete the therapeutic goals earlier than seven months, then an application can be filed to secure an earlier conference date. [ 21 ] On September 13, 2021, in advance of the September 27 th conference, counsel for Ms. Green filed the required therapeutic reports. On September 16, 2021, Mr. Green’s counsel filed his therapeutic report. I was not provided with a copy of Mr. Green’s therapeutic report until after the September 27 th hearing. Unfortunately, given staff shortages and the volume of documents being filed at the court house, materials are occasionally misfiled.

Documents are less likely to be misfiled when they are filed on time. Mr. Green’s therapeutic report was filed late, as it was due no later than September 13, 2021. [ 22 ] The September 27 th review hearing concluded quickly; the parenting arrangements were not changed. [ 23 ] After September 27, 2021, I became aware that Mr. Green had, in fact, filed a therapeutic report. Therefore, on October 1, 2021, I wrote to the parties and confirmed that the scheduling office would arrange another two-hour review, given that I was now aware of Mr. Green’s therapeutic report.

That review hearing was scheduled for December 6, 2021.

[24] On October 6, 2021, Mr. Green filed a recusal motion. The recusal motion must be determined before the review hearing.Therefore, the December 6, 2021 hearing date was reassigned for the recusal motion. January 31, 2022 was scheduled for the reviewhearing. [25] On November 23, 2021, Mr. Green filed an application for state-funded counsel. This application will be determined after therecusal motion is concluded. [26] In anticipation of the recusal motion hearing, Mr. Green asked to have subpoenas issued, including subpoenas for the AssociateChief Justice and two judicial assistants.

Justice John Keith heard submissions regarding the subpoenas and rendered his decision, asreported in KG v. HG, 2021 NSSC 335. Justice Keith denied Mr. Green’s request to subpoena the Associate Chief Justice and thejudicial assistants, but approved the issuance of subpoenas for two DCS’ employees. [27] On December 6, 2021, the recusal motion began as scheduled. Unfortunately, it was not concluded. Mr. Green asked to adjournafter Ms. Giacomantonio, his first witness, concluded her testimony. Mr. Green did not want to testify until after his second witness, Denise Crowell, was called. Ms.

Crowell was unable to attend the December 6th hearing. She was not properly served and had othercommitments scheduled. Counsel for DCS confirmed that Ms. Crowell would be available to testify at another time. In thecircumstances, I granted the adjournment request. [28] On January 19, 2022, the hearing continued. Mr. Green, Ms. Crowell, and Ms. Green testified. Both parties providedsubmissions. Mr. Green’s written and oral submissions were extensive. I granted him a wide berth to ensure that I fully appreciated hissubmissions and perspective. Analysis [29] Should I recuse? Position of Mr. Green [30] Mr.

Green is adamant that I must recuse because of actual bias, or at least the perception of bias. His arguments can be groupedinto four categories. [31] First, Mr. Green states that my interim, divorce, and costs decisions are incorrect and fundamentally flawed. From hisperspective, I made so many legal, medical, factual, and jurisdictional errors that a reasonable person would have no option other than toconclude that I am biased.

For example, he states that I did not properly address his concerns of coercive and controlling family violence,severe parental alienation, child psychological abuse, abuse by proxy, and Ms. Green’s haunting drive for power and agency over himand his children. He says that I discriminated against him because he is a father, and that his parental rights were removed without dueprocess. He argues that my decisions and conduct offend the Divorce Act, RSC, 1985, c. 3 (2nd Supp); the Parenting and Support Act,2015, c 44; The Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act1982 (U.K.), 1982, c. 11; and various declarations of human rights. [32] Second, Mr. Green states that my interim, divorce, and costs decisions are harming him and the children. Mr. Green states thathe has experienced severe health complications as a consequence of my decisions. He says that his health will not improve unless myparenting decisions are changed. He also alleges that my decisions harmed the children because I prevented the children from attendingtheir IWK appointments, and because I am allowing the emotional harm to continue. [33] Third, Mr.

Green says that I am in a conflict of interest because he has reported me twice to the CJC, and has also sued mepersonally. Further, my alleged contacting of DCS was an attempt to influence their investigation. Mr. Green says that DCS also actedinappropriately. [34] Fourth, Mr. Green says that I did not provide him with the accommodations he sought. In contrast, he says, courtadministration provided him with accommodation by removing an objectionable court officer. In Mr. Green’s view, I should likewise beremoved. Finally, Mr.

Green describes my instruction that he should not be drinking, what appeared to be coffee, during the virtualhearing as a “micro aggression”. [35] In advancing his arguments, Mr. Green also relied on the following authorities: Hazelton Lanes Inc. v 1707590 OntarioLimited, 2014 ONCA 793; Henderson v MacEwan, 2003 NSCA 133; Pearlman v Manitoba Law Society Judicial Committee, (SCC); R v Duggan, 2018 NSPC 79; and Ethical Principles for Judges, a CJC publication. Position of Ms. Green [36] Ms. Green disagrees with Mr. Green’s arguments. She asks that the motion be denied for reasons which include: • Mr.

Green’s dissatisfaction with the court’s decisions do not prove either actual bias or a perception of bias. • If there were errors in the decisions, which is denied, then Mr. Green should have appealed. Mr. Green was unsuccessful in hisattempts to appeal. • There is no medical evidence properly before the court to show that Mr. Green has health problems arising from the decisions. • The court did not deny the children medical attention. The court gave Ms. Green decision making authority. The court did notcancel the IWK appointments made unilaterally by Mr. Green; she did.

Further, she ensured that the children’s health needs were met asnoted in the decision and as confirmed by the outcome of the child protection investigation. • Mr. Green’s complaints were dismissed by the CJC.

• Mr. Green’s lawsuit is based on the incorrect allegation that I sent the letter to DCS when, in fact, the letter was written by the Associate Chief as part of his lawful judicial functions. Further, there is no evidence that the Associate Chief was aware that there was an outstanding investigation commenced from a complaint filed by Mr. Green. • There was no medical evidence to support the need for any accommodations. • There are no grounds for recusal. The Legal Test [ 37 ] The Nova Scotia Court of Appeal reviewed the legal principles governing claims of judicial bias in R v Potter; R v Colpitts , 2020 NSCA 9 , at paras 741-744 . Because the parties are self-represented, I will provide a

summary of these principles, and will attach, as

Schedule A, paras 741-744 of Potter and Colpitts. The

summary of the principles listed by the Court of Appeal include: • There is a strong presumption of judicial impartiality, which is not easily displaced. • There is a heavy burden of proof upon the person making the allegation to present cogent evidence establishing “serious grounds” sufficient to justify a finding that the decision-maker should be disqualified on account of bias. • Assessments of judicial bias are “highly fact-specific”; the context and the particular circumstances are of supreme importance. • The impugned comments or other conduct must be considered in the context of the circumstances, and in light of the whole proceeding. • The test regarding what constitutes a reasonable apprehension of bias is “what would an informed person, viewing the matter realistically and practically, conclude?” • Reasonable apprehension of bias will be made out where that fully informed reasonable person would think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly . • The fully informed reasonable person understands the impossibility of judicial neutrality, but demands judicial impartiality. • The duty to be impartial does not oblige judges to have no sympathies or opinions, but only to ensure that they are receptive to other points of view. • Judges are not expected to be silent observers in the process. • A trial judge is not precluded from voicing concerns about the evidence, or from directing the parties’ attention to the real issues in the case. [ 38 ] In Feeney v Simon , 2020 ABQB 641 , Rooke, ACJ noted that judges should recuse themselves only where necessary: 15 A simple allegation of bias or misconduct is not a basis for judges to remove themselves from a matter: Bizon v Bizon , 2014 ABCA 174 at paras 61-62 .

Canadian Judicial Council, Ethical Principles for Judges (2004) instructs that I ought to recuse myself only where necessary since: "the judge should not withdraw unnecessarily as to do so adds to the burden of his or her colleagues and contributes to delay in the court". [Emphasis added] Decision [ 39 ] I will now examine each of the four grounds advanced by Mr. Green in his recusal motion. Allegations of Legal, Medical, Factual, and Jurisdictional Errors [ 40 ] I dismiss Mr.

Green’s claim that alleged legal, medical, factual, and jurisdictional errors prove either bias or the apprehension of bias for four reasons. First, caselaw confirms that unfavourable results or conclusions, even if repeated, are not in and of themselves, proof of bias . In Feeney v Simon , supra, Rooke, ACJ stated: 19 An unfavourable result or conclusion by a judge in relation to a party is not in itself a basis to conclude there has been bias or prejudice .

As L'Heureux-Dubé and McLachlin JJ (as the latter then was) concluded in R v S (RD) at para 105 (citing Scalia J in Liteky v US , 114 S Ct 1147 (1994) at 1155): ... not every favourable or unfavourable disposition attracts the label of bias or prejudice. For example, it cannot be said that those who condemn Hitler are biased or prejudiced.

This unfavourable disposition is objectively justifiable -- in other words, it is not "wrongful or inappropriate" ... [Citation omitted.] 20 Slatter JA in Alberta Health Services v Wang , 2018 ABCA 104 at para 9 observed that repeated unfavourable results are not evidence of bias, particularly in the context of case management.

That Court has also concluded in difficult and high-conflict litigation, the conduct of proceedings must be evaluated in light of "realities on the ground”: Crawford v Crawford , 2015 ABCA 376 at para 12 . [Emphasis added] [ 41 ] Likewise, in Collins v Canada , 2011 FCA 171 , Mainville, JA wrote:

[11] The simple fact that judges render a judgment which is unfavourable to a party cannot in itself result in a conclusion of bias. Were it otherwise, no judgment could ever be issued. A reasonable apprehension of bias must be shown to exist either in the judgment itself, in the comportment of the judge or by some other means. I have closely reviewed the judgment of April 18, 2011 and I am convinced that there is absolutely no merit to the appellant's contentions.

The reasons for this judgment are considered, balanced and sound, and no bias whatsoever can be found in them. (reformatted, for some reason did not appear in proper quote formatting) [ 42 ] Second, if there were errors, relief is achieved through the appeal process, not by a recusal order. Mr. Green’s appeal attempts were not successful. In Green v Green, supra , Bourgeois, JA stated: [14] I now turn to Mr. Green’s second proposed ground of appeal. In response to my inquiries, Mr. Green explained his assertion that “the Court did not consider all of the evidence” relates partly to the lack of a contempt hearing.

I have already concluded there is no valid concern to be addressed on appeal in that regard. Mr. Green also explained this ground was meant to encompass his view that there was evidence before the trial judge that she should have considered, but did not. [15] Mr. Green did not particularize further. However, from her reasons, it is likely his concern relates to the trial judge’s conclusion regarding the allegation of alienation and her treatment of the evidence Mr. Green presented in relation thereto. It is helpful to set out the trial judge’s reasons for rejecting Mr.

Green’s allegation of alienation: …. [16] Mr. Green has not articulated a clear error. The trial judge’s thorough analysis and strong factual conclusions do not disclose one. Mr. Green has not demonstrated the proposed appeal has merit. [Emphasis added] [ 43 ] Third, a fully informed reasonable person would not conclude that either bias or a reasonable apprehension of bias exists because I decided a high conflict family law case in the manner that I did. My decisions were rendered because I had to resolve the contested issues by applying the law to the trial evidence.

A fully informed reasonable person would conclude that in so doing, I was discharging my judicial obligations and responsibilities. My prior decisions, individually and collectively, are grounded in legal analysis, not bias. [ 44 ] Fourth, a fully informed reasonable person would recognize that I remain receptive to changing Mr. Green’s parenting time, as I confirmed in the following paragraphs of the divorce decision: [112] It is essential that the parties make good faith efforts when engaging in therapy. The parties, especially the father, have much to accomplish.

If the father is not willing to make the necessary changes, there is little likelihood that his relationship with the children will improve. The outcome is within the father’s control. [113] The parenting conflict has raged on for more than two years. Although therapeutic interventions are both necessary and appropriate, it is not in the children’s best interests to be engaged in therapy indefinitely. Therefore, the parties will have seven months to conclude the therapeutic goals. If they are successful, then a more typical parenting arrangement will follow.

The father should note, however, that a typical parenting arrangement does not necessarily mean shared parenting. A typical parenting arrangement often means less than 40% of the children’s time. The father should focus on the quality and not the quantity of his parenting time. Allegations of Decisions Causing Harm [ 45 ] I dismiss Mr. Green’s claim that I must recuse because my interim, divorce, and costs decisions are harming him and the children. There is no proof of any alleged harm, nor of a causative link between this harm and my decisions.

Further, there is no nexus between this allegation and the test for recusal. Allegation of Conflict of Interest [ 46 ] I dismiss the claim that I must recuse because I am in an alleged conflict of interest based on Mr. Green’s complaints to the CJC and his lawsuit against me. I will explain my four reasons for reaching this conclusion. [ 47 ] First, caselaw confirms that filing a complaint against a judge, on its own, will not displace the presumption of judicial impartiality.

In Doncaster v Chignecto-Central Regional School Board, 2013 NSCA 59 , Saunders, JA discussed the dangers of finding otherwise: 13 Obviously the mere filing of a complaint with the Canadian Judicial Council does not pull the trigger for recusal. If that were the case, one could simply file a complaint and “pick off” a judge, one by one until the complainant either found one to his liking (“judge shopping”) or there were no judges left to hear the case.

Such a result is neither the law nor in the public interest. [ 48 ] More recently, in Feeney , supra, Rooke A.C.J. summarized the law as follows: 12 I will first address Mr. Feeney’s instruction that I recuse myself in light of him initiating a CJC complaint against myself. The law is clear in Canada that recusal is not an automatic result when a litigant complains about the conduct of a judge, for example to the Canadian Judicial Council. In Taha v Williams , 2019 PECA 11 at paras 22-23 , Chief Justice Jenkins concluded: “...

A litigant coming before the court cannot create a reasonable apprehension of bias merely by filing a complaint with the Canadian Judicial Council . ...”. Similarly, in Ayers v Miller , 2019 SKCA 2 at paras 34-35 , Justice Jackson identified the critical question for a judge remaining seized of a matter: A complaint to the Canadian Judicial Council cannot result in an automatic and successful recusal application. It is for the judge to

determine, based on a review of all of the relevant evidence, and applying the applicable jurisprudence, whether he or she can continue tojudge impartially notwithstanding the complaint to the Canadian Judicial Council. 13 This is an aspect of a broader principle identified by Côté JA in Boardwalk Reit LLP v Edmonton (City), 2008 ABCA 176at para 72:a litigant may not “... engineer perceived conflicts ...” by taking steps, making allegations, or advancing complaints. [Emphasis added] [49] Second, a fully informed reasonable person would not conclude that either a reasonable apprehension of bias or bias existswhere Mr.

Green’s complaints were summarily dismissed. [50] Third, a fully informed reasonable person would not conclude that either a reasonable apprehension of bias or bias arises fromMr. Green having named me as a defendant in an action based on allegations that have no factual basis. For example, Mr. Green allegesin his pleadings that I wrote a letter to DCS and then had my assistant forward DCS a copy of my two decisions. Mr. Green’s ownwitnesses on this recusal motion confirmed that these statements are incorrect. The Associate Chief Justice, not me, wrote the letter to DCS after he reviewed Mr.

Green’s May 26th emergency motion. It was also the Associate Chief’s assistant who spoke with DCSworker, Ms. Giacomantonio. My assistant did not. [51] Mr. Green also alleges in his action, as he did on this motion, that the court’s communications were meant to interfere with anopen child protection investigation. Mr.

Green has not produced any evidence to suggest that the Associate Chief or anyone else at thecourt was even aware that a child protection investigation was ongoing. [52] Further, and in any event, it is not uncommon for courts to communicate with child protection authorities, as was noted byKeith, J in KG v. HG, supra: [28] However, Mr. G.’s requests to subpoena Associate Chief Justice O’Neil, his assistant (Trish Thompson) and Justice Forgeron’sassistant (Tanya McCarthy) are dismissed for the following reasons: 1. Associate Chief Justice O’Neil was, at all material times, acting in a judicial capacity.

The case law is replete with examples ofjudges relaying information related to child protection to the appropriate agencies. See, for example, S.D.B. v. L.D.B., 2008 NSSC142, para 185; C.C. v. L.B., (NL SC), [1995] N.J. No. 386 (Nfld. S.C. (U.F.C.)), para. 159; Y.M.M. v. D.W.M., 1998ABQB 1049, para. 21; D.P.J. v. Y.P., [2001] O.J. No. 5118 (Ont. Sup. Ct. J.), para. 48; Ryan v. Bellefeuille, [2009] O.J. No. 5637, para.23; R.B. v. J.W., 2012 ONCJ 798, para. 122; M.C. v. N.M., 2014 ONSC 2048, para. 361 ; Ciarlaricllo v. Luele-Ciarlariello, 2014 ONSC5097, para. 218 ; Meade v.

Latouche, 2016 ONCJ 272, para. 86 ; T.E.H. v. G.J.R., 2016 ONCJ 156, para. 489 ; S.R.V.M. v. J.S., 2020ONCJ 573, para. 156 ; M.B. v. D.B., 2020 ONSC 790, para. 147 ; W.S. v. P.I.A., 2021 ONSC 5976, para. 318 ; M.P. v. N.J., 2020 NLPC0120PA00346 (Nfld. Prov. Ct.), para. 65 ; A.R.C. v. K.M.M., 2020 SKQB 340, para. 3 ; I.S. v. J.W., 2021 ONSC 1194, para.189 ; W.H.C. v. W.C.M.C., 2021 ONCJ 308, para. 126; Bond v. Jackson, 2021 SKQB 158, para. 33.

There is nothing in AssociateChief Justice O’Neil’s June 3, 2021 letter to suggest that it was inappropriate or involves actions outside his role as a judge; [Emphasis added] [53] Keith, J also confirmed there is no law which supports the notion that DCS must be kept disconnected from relevant judicialdecisions: [31] The second proposition is more critical to Mr. G.’s request for subpoenas. Mr. G. offers no law for the notion that investigationsby the Department of Community Services must be kept separate and disconnected from relevant judicial decisions.

There is no suchlaw. [32] Justice Forgeron’s decision forms part of the public record. If the Department of Community Services was investigatingmatters connected to the same issues before Justice Forgeron, it is entirely appropriate that the Department be made aware ofJustice Forgeron’s findings. Put slightly differently, Mr. G.’s arguments are premised upon the notion that he might ignore orsubvert the judicial process by initiating an “independent” investigation in which court decisions are excluded or somehowconsidered irrelevant. Again, it is telling that Mr.

G.’s evidence is completely silent on the question of whether, betweenFebruary 16, 2021 – June, 2021, he candidly volunteered Justice Forgeron’s decision to the Department of Community Services(Child Protection). As mentioned above, it is reasonable to infer that Mr. G. decided not to provide Justice Forgeron’s Decision to theDepartment of Community Services, despite its obvious relevance. It is similarly reasonable to infer that Justice Forgeron’s findingscritical of Mr. G. explain his reticence. Mr.

G.’s submission that the investigation should be insulated from an obviously related judicialdecision is without merit. [33] Mr. G. is undoubtedly entitled to fight for his children’s best interests firmly and resolutely. He is equally entitled to disagree withadverse judicial findings. However, Mr. G. still must properly acknowledge the judicial process, respect judicial decisions, andoperate within the bounds of the law.

He is not entitled to expect that relevant, binding judgments are extraneous to “intakeinvestigations” initiated by the Department of Community Services – or that such judgements be ignored or remain secret underthe guise that Department investigations are “independent”. On the contrary, the Department of Community Services would beobliged to recognize and respect relevant court decisions.

To conclude otherwise would undermine the administration of justiceand the legitimacy of judicial findings. [34] Moreover, it could lead to abuse if litigants attempt to avoid the certainty and finality of Court orders by engaginggovernment departments in parallel proceedings with a view to reintroducing old grievances, resurrecting old evidence,relitigating decided issues and/or improperly reserving adverse findings. Indeed, that risk arises here when considering the factthat Mr.

G. helped initiate an investigation by the Department of Community Services almost immediately after the hearingbefore Justice Forgeron ended and her decision was under reserve. He continued that investigation after Justice Forgeronreleased her Decision. All while not making full disclosure around the judicial proceedings to the Department.

[Emphasis added] [ 54 ] I therefore dismiss the claim that I must recuse because Mr. Green filed two complaints with the CJC and named me as a defendant in a legal action. Accommodations [ 55 ] I dismiss the claim that I must recuse because I did not meet all Mr. Green’s accommodation requests. Although no independent medical evidence was adduced, a number of accommodations requested by Mr. Green were nevertheless granted. These are outlined in a letter dated January 14, 2022 and entered as part of an exhibit. [ 56 ] I recognize, however, that I did not allow Mr. Green’s request to record the proceeding.

To protect the integrity of the court, proceedings are only recorded by administration at the Supreme Court. Mr. Green is aware that he can obtain a digital copy of the recording. A fully informed reasonable person would not conclude that either a reasonable apprehension of bias or actual bias exists because Mr. Green was not permitted to record. Similarly, a request not to drink, what appeared to be coffee, during a virtual court proceeding would not give rise to bias or a reasonable apprehension of bias. The same prohibitions against recording and drinking coffee apply to in-person proceedings.

Summary [ 57 ] Mr. Green was afforded great latitude when presenting his recusal motion. He did not meet the heavy burden upon him. Mr. Green did not prove that a fully informed reasonable person would find it more likely than not that I, whether consciously or unconsciously, would not decide issues in his case fairly. After completing a contextual analysis, I dismiss Mr. Green’s recusal motion. [ 58 ] Should I order a new trial? [ 59 ] Mr. Green asks that I order a new trial. Ms. Green objects. [ 60 ] Mr. Green’s request is denied. Appellate courts have the authority to order new trials. I do not.

I do, however, have the jurisdiction to hear review and variation applications. These applications will be scheduled. [ 61 ] Should the file be transferred out of the Family Division? [ 62 ] Mr. Green wants his file transferred to the General Division. Ms. Green objects. [ 63 ] Mr. Green’s request is denied.

Section 32A (1) of the Judicature Act, RSNS 1989, c 240 places family law proceedings within the jurisdiction of the specialized Family Division, where the Green file will remain. Conclusion [ 64 ] Mr. Green asked me to recuse, to order a new trial, and to transfer his file to the General Division. I dismiss each of those requests for the reasons stated. The court will draft the order confirming these decisions. [ 65 ] The scheduling office will be in contact with the parties so that hearing dates can be scheduled for Mr.

Green’s motion to have state funded counsel, the review hearing, and any applications to vary. [ 66 ] If Ms. Green seeks costs, she is to provide written submissions by February 18, 2022. Mr. Green can provide his response by February 28, 2022. Forgeron, J. _________________________________________________________________

SCHEDULE “A” Excepts from R v Potter ; R v Colpitts , 2020 NSCA 9 : [741] This Court canvassed the principles governing a claim of judicial bias, or reasonable apprehension thereof in Nova Scotia (Attorney General) v. MacLean . [521] There, Saunders J.A. wrote: [39] First, as a matter of law, there is a strong presumption of judicial impartiality, which is not easily displaced. Second, there is a heavy burden of proof upon the person making the allegation to present cogent evidence establishing “serious grounds” sufficient to justify a finding that the decision-maker should be disqualified on account of bias.

Third, whether a reasonable apprehension of bias exists is “highly fact-specific”. Such an inquiry is one where the context, and the particular circumstances, are of supreme importance. The allegation can only be addressed carefully in light of the entire context. There are no shortcuts. See Wewaykum Indian Band v. Canada, 2003 SCC 45 .

[40] The “test” regarding what constitutes a reasonable apprehension of bias appears in the oft-quoted dissenting judgment of deGrandpré, J. in Committee for Justice and Liberty v. National Energy Board, (SCC), [1978] 1 S.C.R. 369 at ¶40: ... 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, that test is “what would an informed person, viewing the matter realistically andpractically -- ...conclude? Would he think that it is more likely than not that Mr.

Crowe, whether consciously or unconsciously, wouldnot decide fairly. [41] In relation to what constitutes the “reasonable person”, the qualifications are not limited to just being “reasonable”. The lawrequires a fully informed “reasonable person”. That is: ...a person who approaches the question of whether there exists a reasonable apprehension of bias with a complex and contextualizedunderstanding of the issues in the case. The reasonable person understands the impossibility of judicial neutrality, but demands judicialimpartiality. [R. v.

S.(R.D.)( R.D.S.), (SCC), [1997] 3 S.C.R. 484] [42] In that case, the Supreme Court of Canada explained in detail the requirement for neutrality in decision-making, and how theduty to be impartial did not oblige judges to have no sympathies or opinions at all, but rather to ensure that they were receptive to otherpoints of view. In his reasons, Justice Cory (joined by Justice Iacobucci, said at ¶119: 119 The requirement for neutrality does not require judges to discount the very life experiences that may so well qualify them topreside over disputes.

It has been observed that the duty to be impartial does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no humanbeing who is not the product of every social experience, every process of education, and every human contact with those with whom weshare the planet. Indeed, even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities ofhumanity required of a judge.

Rather, the wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, allthe baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave.

True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free toentertain and act upon different points of view with an open mind. (Canadian Judicial Council, Commentaries on Judicial Conduct (1991), at p. 12.) [43] In that case the issue was whether the trial judge’s remarks concerning credibility when acquitting the accused in a criminal casehad given rise to a reasonable apprehension of bias.

In finding that the Crown had failed to prove bias or a reasonable apprehension ofbias, Justices L’Heureux-Dubé and McLachlin, as part of the majority, concluded at ¶35: True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free toentertain and act upon different points of view with an open mind. [44] Having an opinion will not disqualify a decision-maker from fairly adjudicating a matter; it is the ability to approach one’sconsideration of the issues in dispute with an “open mind” that is required. See as well Arsenault-Cameron v.

Prince EdwardIsland, (SCC), [1999] 3 S.C.R. 851 at ¶3. [742] Assessments of judicial bias are highly fact specific. In Yukon Francophone School Board, Education Area #23 v. Yukon(Attorney General),[522] Abella J. wrote: [26] The inquiry into whether a decision-maker’s conduct creates a reasonable apprehension of bias, as a result, is inherentlycontextual and fact-specific, and there is a correspondingly high burden of proving the claim on the party alleging bias: see Wewaykum,at para. 77; S. (R.D.), at para. 114, per Cory J.

As Cory J. observed in S. (R.D.): … allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates asound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overridingprinciple that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation.

Rather it mustbe considered in the context of the circumstances, and in light of the whole proceeding. [Emphasis in original] [743] The conduct of trial judges is often the subject of scrutiny, including for comments made in the course of trial. However, judgesare not expected to be silent observers in the process. In R. v. Baccari,[523] the Alberta Court of Appeal declined to find the trial judge’sinterjections and challenges to counsel indicative of bias.

We reference: [24] During argument, trial judges are not precluded from commenting on evidence or attempting to focus the argument on issues ofparticular concern to the trial judge. Give and take between a trial judge and counsel may be robust but observations made by a trialjudge during argument are not pronouncements: R. v. Hodson, 2001 ABCA 111, 281 A.R. 76 at paras. 33 and 35. A trial judge is notprecluded from voicing concerns about the evidence. Nor is a trial judge precluded from directing counsel’s attention to the real issues inthe case. Trial judges are not expected to be mute manikins: R. v. W.F.

M. (1995), 1995 ABCA 244 , 169 A.R. 222 (C.A.) atpara. 10. [744] As will be discussed later, Mr. Potter and Mr. Colpitts say the outcomes of pre-trial motions demonstrate the trial judge’s pre-determination of critical issues, including credibility. Again, this calls for a contextual examination of the trial judge’s conclusions. Wenote the comments of the Saskatchewan Court of Appeal in R. v. E.E.D.,[524] where the trial judge’s comments regarding a child

witness’ credibility during a qualification motion was alleged to be an indicator of bias. The court wrote: [13] In his ruling on this matter, the trial judge said the following: Now, I find that [S.] has been very forthright, first of all. I find that she does not understand the nature of an oath or solemn affirmation and, of course, at her young age I understand that because those are big words and a lot of older people don’t understand what they mean. However, I find that she is clearly able to communicate the evidence and that she understands the necessity of telling the truth.

And she has promised to tell the truth. I’m satisfied that she knows the difference between truth and falsehood. I find also that she’s committed to telling the truth. She clearly, in my opinion, is able to communicate the evidence, in fact, I must say I’m very impressed with her as a young girl. She’s very forthright and there’s no doubt in my mind that she is able to communicate the evidence and that she knows it’s important to tell the truth and I’m satisfied that she will tell the truth. Accordingly, I find that [S.] is in

summary able to communicate the evidence and she may testify on promising to tell the truth as she has done. She has promised to tell the truth. (Trial transcript, p. 60, lines 2-23) … [15] It is my respectful view that these words would not give rise to a reasonable apprehension of bias. The findings of the trial judge largely reflect the test he was obliged to apply in order to permit such a young witness to testify: that she understood and appreciated the obligation to tell the truth—that she was committed to telling the truth.

This was the test to be applied, and the trial judge cannot be faulted for applying it. The words, “I’m satisfied that she will tell the truth,” while, if interpreted literally, could constitute a prejudgment of the witness’s testimony, in the context imply nothing more than that the trial judge was satisfied that S.B. was committed to telling the truth. [Emphasis in original]