Docket: CACV1996 Johnny William Aalbers Appellant (Respondent) - v. -, 2013 SKCA 64

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 64 Date: 2013-06-12 Between: Docket: CACV1996 Johnny William Aalbers Appellant (Respondent) - and - Jacqueline Nicole Aalbers Respondent (Petitioner) Coram: Jackson, Richards and Ottenbreit JJ.A. Counsel: W. Timothy Stodalka for the appellant Jill Drennan for the respondent Appeal: From: 2010 SKQB 172 and 2010 SKQB 318

Heard: February 26, 2013 Disposition: Appeal dismissed in the main Written Reasons: June 12, 2013 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Richards Ottenbreit J.A. [ 1 ] Johnny William Aalbers and Jacqueline Nicole Aalbers separated in 2006 after 19 years of marriage and thereafter undertook a protracted period of litigation concerning parenting, maintenance and property issues in Court of Queen’s Bench.

The trial of these issues eventually took place in April 2010 and resulted in a decision dated May 14, 2010 concerning parenting and a decision dated September 2, 2010 concerning property and maintenance. Mr. Aalbers appeals the decision respecting parenting of the parties’ children, support matters and certain aspects of the property division decision. Both parties sought to adduce fresh evidence in this Court respecting parenting, maintenance and property issues. Both those applications were dismissed. As explained hereafter, the appeal of Mr. Aalbers is dismissed save in respect of one matter. I.

Background and Facts [ 2 ] The complete facts and evidence before the trial judge are set out in detail in the trial decisions found at 2010 SKQB 172 and 2010 SKQB 318 . The evidence germane to the determinations of the trial judge referable to the grounds of appeal will be dealt with as the arguments on appeal are addressed. However, a general overview and some background respecting the children and parenting assessments is in order. [ 3 ] During the marriage the parties lived on a farm in the Manor/Carlyle area near Mr. Aalbers’ parents.

The Aalbers family operated an intermingled grain and hog farming operation. Mr. Aalbers farmed with his brother in an equal partnership called Aalbers Agro through his numbered company 616472 Saskatchewan Ltd. (the “Company”) of which he was the sole director and shareholder. [ 4 ] Ms. Aalbers was a stay at home mother. She took primary care of the children and assisted on the farm in a number of capacities. [ 5 ] The parties have five children, two boys and three girls. At the trial date Armand was 19 and lived with Mr. Aalbers and Adam was 18 and lived at his girlfriend’s home.

The girls are Amanda, who has Down Syndrome and functions at a grade three level and who was 15 years old at the trial date, Alana who was 11 and Angela who was 9. [ 6 ] Following the separation, Ms. Aalbers first obtained an ex parte order and then an interim order giving her sole custody of all the children and interim exclusive possession of the family home. [ 7 ] During the litigation, two custody and access assessments were conducted. The first assessment, dated June 2007, was court ordered and was done by Kelly Karius. At the time of this assessment, the boys were living with Mr.

Aalbers’ in his parents’ home and the girls were living with Ms. Aalbers and visiting their father regularly. The crux of Ms. Karius’ recommendations respecting parenting were: 1. That all five children have primary residency with Johnny in the marital home for the next two years. … 4. That the situation be reevaluated after two years to determine the best parenting arrangement at that time. 5. That generous access be provided to Nicole for the girls. 6. That joint custody of the children be maintained. [ 8 ] The second assessment, again made pursuant to a court order, was prepared by Dr. Timothy Greenough.

After interviewing the parties, the children and others, he produced a detailed 53 page report dated March 2008 and provided two options respecting parenting as follows: Option I: The children remain in the joint custody of Johnny and Nicole with their primary residence being with Johnny. The girls would have access to their mother under a similar

schedule to the one Johnny presently accesses the children. Option II:

The children remain in the joint custody of Johnny and Nicole with Amanda, Alana and Angela’s primary residence with Nicole whileAdam and Armand’s primary residence would be with Johnny. The girls would have access to Johnny under the existing arrangementand the boys would be encouraged to have regular access with their mother. Dr. Greenough concluded: 1. Of these options, the writer supports Option II.

The writer believes that Nicole can be more available to her daughters, hasdemonstrated her willingness to facilitate their access to their father and has recognized that she has to take action to resolve herdifficulties with her sons. 2. It is recommended that the existing access arrangement continue. II. Standard of Review [9] The standard of review with respect to appeals involving custody and child access issues is set forth in the decisions of theSupreme Court of Canada in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 and Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518.

In these cases, the court determined that because of the fact based and discretionary nature of family lawtrials that an appeal court should only intervene when there is a material error, a serious misapprehension of the evidence or an error inlaw. With respect to matters under The Family Property Act, S.S. 1997, c. F-6.3, the standard of review varies depending on the issuesbeing dealt with by the court and can be either palpable and overriding error, correctness or, where there is an exercise of discretion, whether or not the judge abused his or her discretion (Phillips v.

Phillips, 2010 SKCA 117, 324 D.L.R. (4th) 534). III. Analysis [10] Mr. Aalbers advances eight grounds of appeal or arguments with respect to the parenting issues. He has abandoned grounds (g),(

h) and (

j) respecting property and continues to advance 14 grounds of appeal or arguments related to the property and maintenanceissues. In his factum and in oral argument some of the grounds and argument were grouped together. I will do so as well. I will dealwith these in turn. (

A) Parenting Issues (

a) The trial judge erred in determining that it was in the best interests of the children that the primary residence ofthe children should be with the Respondent and the Appellant’s parenting time should be significantly restricted. (

b) The trial judge erred in principle as follows: (

i) by failing to take into proper consideration the past and ongoing misconduct of the Respondent when it was directlyrelevant to her ability to properly care for the parties’ children; (ii) by failing to apply the statutory direction that the court should encourage maximum contact between children and theirparents; (iii) by using a status quo analysis of what is in the best interests of the children rather than the future plans of the respectiveparents for their children; (iv) by failing to consider the Appellant’s relationship with the children; (

v) by failing to properly weigh the evidence and recommendations of Kelly Karius, the court appointed Custody & AccessAssessor; and (vi) such further and other grounds as counsel may advise. (

c) The trial judge made clear factual errors in matters of significance with respect to the custody issue. Further, or in thealternative, the trial judge erred in disregarding material evidence. [11] The trial judge made no order respecting the boys. He determined that the three girls should be in the sole custody of their mother: 105 The court concludes that the best interests of each of the three girls, Amanda, Alana and Angela are served by an order that theyare to be in the sole custody of their mother, the petitioner.

There is only one area over which the court orders that the father will havefull authority—that is the religious upbringing of these girls. They have been raised in the Catholic Church and will be parented by theirfather on Sundays. Therefore, the respondent shall continue to raise the girls in the Catholic faith and the petitioner must respect thisdecision.

When each of Alana and Angela attain the age of 13, each child shall be at liberty to select which faith they wish to embraceand the extent to which they will practice their chosen faith. [12] His reason for this was: 77 I have independently concluded, as did Dr. Greenough, that granting custody or even shared custody of the girls with their fathercarries the serious threat that the respondent would unduly influence the girls in a negative way and thereby seriously jeopardize therelationship with their mother. Ms. Aalbers also presents a similar risk, but much less so, than Mr. Aalbers. I can see Laurie Laffin as

being a moderating force in her home. However, Mr. Aalbers is a clever and controlling individual. On balance this Court will not place the girls at risk of being alienated from their mother. [ 13 ] Accordingly, Mr. Aalbers was given access to the girls three weekends a month and an additional Wednesday to Friday once a month. The trial judge’s parenting order also dealt with the usually contentious access periods such as Mother’s Day, Father’s Day, Easter or Spring Break, Christmas and summer access.

As well, there was an admonition by the trial judge that neither parent should attempt to influence any of the girls on parenting or care issues and that the parties show deference and respect to Alana and Angela’s choices and preferences as they slowly became adults. [ 14 ] In support of his grounds of appeal concerning parenting, Mr. Aalbers proffered the following further arguments:

(1) The trial judge wrongly proceeded on the assumption that the two older boys refused to see their mother because of his influence when, in fact, it was their mother’s misconduct that alienated them.

(2) The trial judge erred in following the recommendations of Dr. Greenough because his assessment was inaccurate and based on poor factual foundations and lies Ms. Aalbers told him about some matters.

(3) Angela has been living with him since December of 2010 and refuses to have any contact with her mother and that the judge ignored the fact that it is in Amanda’s best interests that she reside with him on the farm or alternatively live in the community of Redvers which has a home and a workshop for handicapped adults. [ 15 ] Mr. Aalbers’ first additional argument that the trial judge wrongly assumed that it was Mr.

Aalbers who exerted inappropriate influence on the boys which alienated them from their mother, misses the point that alienating behaviour was only one factor considered by the trial judge respecting Mr. Aalbers’ suitability to parent and did not solely determine that the girls should live with their mother. Moreover, the trial judge recognized that the evidence was that both parents displayed such behaviour. [ 16 ] Much of the challenge by Mr. Aalbers of the parenting decision depended on the admission of fresh evidence of what has transpired with the children since trial which Mr.

Aalbers proffered to the Court. The application to admit this fresh evidence was dismissed. For example, Mr. Aalbers’ last additional argument is dependent on that fresh evidence. In the absence of fresh evidence, Mr. Aalbers’ counsel acknowledged in oral argument that the applicable standard of review made it difficult to assail the determination of the judge with respect to the parenting. [ 17 ] However, apart from Mr. Aalbers’ acknowledgement, the trial judge’s parenting determination bears some comment.

The trial judge, in this case, did a thorough review of the evidence touching on the issues respecting the parenting of Amanda, Alana and Angela. There was no indication that he failed to instruct himself properly on the applicable principles or law. He specifically discussed the role of both custody and access assessors and the substance of their assessments and ultimately found that his own perspectives on custody issues arising from the evidence aligned with the observations of Dr. Greenough. He also explained Ms. Karius’s assessment was time limited and therefore not as useful. He was entitled to rely on Dr.

Greenough’s assessment which was detailed, thorough and balanced. There is no indication that any inaccuracies or inconsistencies in the Dr. Greenough report undercut the trial judge’s analysis. I cannot say that he improperly dealt with the opinions and recommendations of the two custody and access assessors. [ 18 ] Moreover, I do not find that the trial judge used a status quo analysis of what is in the best interests of the children rather than a prospective analysis or otherwise dealt improperly with the evidence about the status quo .

Likewise, there is no indication that he, in any other way, disregarded the principles of maximum contact between children and parents, the father’s relationship with the children and other significant factors. [ 19 ] Looking at the parenting decision as a whole, the trial judge properly considered the best interests of the children given the evidence before him and made no error in that respect. (

b) Property Issues (

d) The trial judge erred in determining that the Aalbers Family Trust had no value and thereby overvalued the Appellant’s interest in 616472 Saskatchewan Ltd. The trial judge further erred in failing to consider the tax applicable on the dissolution of 616472 Saskatchewan Ltd. [ 20 ] Mr. Aalbers contended that because the Aalbers’ Family Trust holds all of the class “A” shares of 616472 Saskatchewan Ltd. and because he and Ms.

Aalbers are but two of seven beneficiaries under the Trust, only two one-sevenths of the value of these shares should be considered to be family property. [ 21 ] Respecting this issue, the trial judge concluded as follows: 35 The respondent’s argument that class “A” shares were never transferred to the trust constitutes a mere oversight, is a fair argument. The respondent never utilized the family trust in the decade which followed its establishment nor until the institution of these legal proceedings. The value of the numbered company as agreed between the parties, $690,000.00, I find to be family property.

The family trust has no value. The class “A” common shares were never transferred to the trust. The trust was never activated at all material times during these proceedings. It never filed an income tax return nor reported income. 36 It is true that the family trust could have been utilized to move farm income into the ultimate hands of its seven designated beneficiaries. There may well have been a potential tax savings. The trust might also have been used for estate planning purposes. However there is no evidence that the family trust was utilized for any of those purposes.

Therefore, the court rejects the respondent’s

suggestion that one of the objects of the family trust was to reduce the family property estate and division of assets as between the petitioner and respondent.

Equity cannot be called in aid of such a proposition as the respondent advances, after the fact. 37 The evidence does not come close to satisfying the court of the existence of the three certainties required of a trust, the certainty of intention, the certainty of subject matter as well as the certainty of the objects which are required to establish a valid trust. … 40 A complete read of the entire text of the said trust deed, while it contemplates the incorporation of a company and ownership of shares as the trustee may consider advisable, is a starting point.

The failure to transfer any shares into the trust coupled with the non- active nature of the trust from its inception until the commencement of these proceedings constitute compelling and deciding factors for the purpose of this family property action. [ 22 ] In the end, the trial judge considered the entirety of the class “A” shares to be family property and valued the Company as agreed at $690,000. [ 23 ] The Trust was settled in 1996 by Mr. Aalbers’ mother. The seven beneficiaries of the Trust were the five Aalbers’ children and Mr. Aalbers and Ms. Aalbers.

The class “A” shares of the Company, which were originally issued to Mr. Aalbers, were to be transferred to the Trust but this did not occur. The corporate registry of the Company and the records at the Saskatchewan Corporations Branch show the class “A” shares owned by the Trust although there is no corporate resolution supporting any transfer in evidence. Mr. Aalbers is the owner of all the class “D” shares of the Company and is the sole director. The Trust has been inactive since 2000. The accountant for the Company testified that it did not make enough money to justify the use of a family trust.

Although the Trust had a bank account and a little bit of money in it, none of the profits or assets of the Company were ever transferred to the Trust prior to separation. The Trust did not file any tax returns until after the separation. Mr. Aalbers has unfettered discretion as sole trustee to determine which beneficiaries get the income and capital of the Trust and how to invest and dispose of the assets of the Trust. [ 24 ] Mr.

Aalbers argues that equity compelled the trial judge to rectify the share certificate of the Company to show the Trust as owner and that it was an overriding error on the part of the trial judge to fail to value the Trust. [ 25 ] I see no bottom-line error in the trial judge’s decision on this issue. In making that point, I would not wish to be taken as necessarily having decided the results of any proceeding involving the Trust in which Mr. Aalbers qua trustee, the Trust and the beneficiaries are parties.

It would have been preferable for the trial judge not to comment on the possible validity of the Trust in the absence of the beneficiaries or their representative as parties to the action. However, that said, I believe the trial judge made no reviewable mistake in concluding, for purposes of these proceedings, that the class “A” shares should be seen as family property. On the record before the court, and taking into account both the purposes and structure of the Trust and the way it has been used (and not used) to date, the trial judge was entitled to deny Mr.

Aalbers’ attempt to use the Trust as a means of dramatically reducing the amount of family property subject to distribution between him and Ms. Aalbers. [ 26 ] Mr. Aalbers also argues that the trial judge failed to consider the notional tax applicable on the value of the Company. The parties filed with the court a formal valuation agreement valuing the Company at $690,000. This agreement listed issues in dispute. A tax reduction to the value of the Company was not one of the disputed issues.

The expert witnesses who valued the Company for each party and could have testified as to tax consequences were not called to testify. On the whole, it is a fair conclusion that the $690,000 value upon which the parties agreed had factored into it any tax consequences or that there was no further tax consequences to be determined. Accordingly, this argument fails. (

e) The trial judge erred in reducing the Appellant’s exemption claim by $11,737. [ 27 ] The trial judge determined that Mr. Aalbers was not able to prove an exemption of $23,474 for hog inventory he owned at the time of marriage. The trial judge concluded: 51 Accordingly, the evidence the respondent relies upon in support of his premarital exemption claim, recited at paragraph 107 of his written argument, does nothing to corroborate or prove his assertion to the numbers and value of hogs, which the petitioner challenges. The weight of evidence does not support a finding in either party’s favour.

Such precision of accounting rarely exists at a family property trial of a marriage of 19 years duration. I will therefore allow one-half of the respondent’s remaining claim for a premarital exemption on account of hog inventory ($23,474.00 ÷ 2 = $11,737.00). [ 28 ] Mr. Aalbers argues that the trial judge failed to recognize that the calculation of the value was initially done as part of a s. 85 rollover when Mr. Aalbers incorporated the Company and that the documents which he tendered to the court evidenced this exemption. [ 29 ] The onus was on Mr. Aalbers to prove the value of the exemption.

The only document which Mr. Aalbers proffered from the time of the rollover relevant to the exemption was a Grading Certificate showing the 1989 price per pound of hogs. Other calculations which were provided by his accountant and tendered as evidence of the exemption were merely more recent restatements of accounting from the date of the rollover to the date of the trial. No original documentation which was created or in existence at the time of the rollover which could verify the number or weight of hogs was proffered by Mr. Aalbers. [ 30 ] Mr.

Aalbers, based on his own evidence, failed to satisfy the trial judge of the full value of this exemption. On all the circumstances it was open to the trial judge to determine that only a portion of the amount claimed was proven as he did. He made no error in this respect. (e.1) The trial judge erred in determining that the value of the Appellant’s one-half interest in Aalbers Agro’s hog inventory was an additional $35,003.43 when the value of the hogs was already included in the value of 616472 Saskatchewan Ltd.

[ 31 ] The trial judge made the following determination respecting this issue: 22 The petitioner claims that the respondent failed to sell the hog breeding stock and inventory at market value. However, in the petitioner’s written argument, at Tab C, is a chart

summary of the property division being proposed by the petitioner. She ascribes a value of $35,003.33 as the respondent’s one-half share of the hogs. Beside that entry is the comment that this number is based upon Exhibit P35 at trial and represents the respondent’s one-half share of the total of $70,006.66, as established by the respondent in the said Exhibit P35. In her closing written argument, the petitioner states, “the petitioner based her consent to the sale upon this estimate of total proceeds of $70,006.66”. Dr.

Clarke indicates in his letter of April 3, 2007, exhibited, that the numbers of hogs “is by no means static and will certainly be different today or any day”. 23 Upon the weight of evidence relating to the dispersal of hogs, and given the petitioner’s apparent consent, the court ascribes a value of $35,033.33 to the respondent’s one-half interest in the hog inventory. … [ 32 ] Mr. Aalbers argues that the trial judge double counted the hog inventory and that the value of the hogs was already in the value of the Company. [ 33 ] After separation, Mr.

Aalbers attempted to wind up his hog operation and to sell the breeding stock. Because of court orders in force preventing him from disposing of property, he asked Ms. Aalbers in the spring of 2007 to consent to the sale of the breeding stock. As part of the negotiations leading up to the consent, Mr. Aalbers informed Ms. Aalbers that the total value of the hogs was $70,006.66. His half was $35,003.33. Ms. Aalbers consented to the sale in April 2008. However, once the hogs were sold Ms. Aalbers’ counsel received a cheque for $2,500.00 representing her half share of the sale of the breeding stock. Ms.

Aalbers at trial argued that her consent to the sale of the hogs was based on the hogs being sold for $70,006.66 and that the sum of $35,003.33 should be added to the value of property and that Mr. Aalbers sold the hogs below market value. [ 34 ] Ms. Aalbers argues that even if the value of these hogs was not $35,000 and the court concluded that the value of the hogs was included in the appraisal value of the Company done by Mr. Schofield, the $35,000 should only be reduced by Mr. Schofield’s value for the hogs ( i.e. $16,000) leaving an additional $19,000 to be added to property value.

There is no merit in this approach. Either the value of the hogs is or is not included in the value of the Company. [ 35 ] The appraisal of the Company done by Mr. Schofield, although dated August 28, 2009, was done as of November 9, 2006 and included a value of approximately $16,000 for hog breeding inventory. There is nothing in the evidence as a whole to indicate that the hog breeding stock sold was of a different kind than the hog inventory of the Company valued by Mr. Schofield. Despite what Mr. Aalbers thought the hogs might bring when sold and despite the expectations of Ms.

Aalbers, the inevitable conclusion is that the breeding hogs were accounted for in the valuation of the Company and the trial judge double counted the hogs. Accordingly, Mr. Aalbers succeeds on this ground of appeal. (

f) The trial judge erred by failing to apply the equitable considerations in ss. 21(3) (

n) and (

o) of The Family Property Act . In particular, he erred by failing to determine the $76,705.9l loan from Helena and John Aalbers to the Appellant and Respondent and secondly, the Respondent’s $10,398.52 liability to Aalbers Agro were legitimate family debts. [ 36 ] Sections 21(3)(

n) and (

o) read as follows: 21(3) For the purposes of subsection (2), the court shall have regard to the following: … (

n) interests of third parties in the family property; (

o) any debts or liabilities of a spouse, including debts paid during the course of the spousal relationship; [ 37 ] Mr. Aalbers argues that the trial judge erred by failing to consider these two debts in the division of property and by not exercising his wide discretion under s. 26(2) of The Family Property Act to fix the value of the debts and reduce the value of family property available for division. [ 38 ] With respect to the first debt, the trial judge made the following determination: 64 It is not for this court to adjudicate upon the claim of Mr. and Mrs. Aalbers Sr.

That matter will proceed to trial and be determined upon its own merits. It follows that the court must disallow the claim of debt owing to Mr. and Mrs. Aalbers Sr. as a family debt in these proceedings. If Mr. and Mrs. Aalbers Sr. succeed upon their action, Q.B. No. 114 of 2007, then the petitioner and respondent will deal with the eventual judgment in due course. At this moment, it is a mere contingent liability, and until proven, it shall remain so. [ 39 ] The evidence was that Mr.

Aalbers Sr. had provided money in the past to the parties with respect to the building of a home, purchase of cars and various other purposes. This totalled $76,705.91. Mr. Aalbers Sr. had commenced an action in 2007 claiming payment of this debt but it had not been adjudicated at the date of trial. [ 40 ] Mr. Aalbers also claimed that Ms. Aalbers owed $10,398.52 to Aalbers Agro for expenses for the farming of farmland that she owned and that this was a family debt. This alleged debt was not included on Mr. Aalbers’ 2007 property statement but was identified as such later during the court proceedings.

As well, there had been no formal accounting for these costs during the marriage. With respect to this debt, the trial judge determined: 66 The respondent is premature and presumptuous in claiming that one-half of the alleged debt owing by the petitioner to the farm

partnership is a liability and therefore should be offset in the family property division. At best, it may be a contingent liability that the petitioner could claim constitutes a family property debt if she is adjudged liable to the partnership. The court cannot allow this claim by the respondent to be subsumed into a family property division at this time and in the unproven circumstances. [ 41 ] Whether to apply the equitable considerations in s. 21(3) (

n) and (

o) is discretionary. In this case where an action had been commenced on the one debt and the circumstances surrounding the second debt were not proven to his satisfaction, the judge could properly, in all the circumstances, conclude that the debts were contingent and refuse to reduce the value of the family property. He made no error in this regard. (

i) The trial judge erred in failing to consider the equitable considerations in s. 21(3) (

m) and (

q) of The Family Property Act . In particular, the trial judge erred in failing to consider the Appellant’s overpayment of child and spousal support from December 2006 in his division of the family property. (

k) The trial judge erred in his fiat of December 15, 2006. In particular, he erred in determining that the Respondent’s Federal Child Support Guideline income was $115,312.75 when the Appellant’s three year average was significantly less than this amount. (

l) Madam Justice Pritchard in her fiat of September 12, 2008 erred in determining that the issue of the Appellant’s income for ongoing child and spousal support purposes should be adjourned to be determined by the trial judge. (

n) The trial judge erred in holding that the Appellant had failed to file evidence of the farming income of his father, John Aalbers, when the Appellant did file the relevant portions of his father’s income tax returns and Agri-Stability Applications. (

o) The trial judge erred in failing to consider the evidence of Garnet Hart of Meyers Norris Penny LLP who was not only the Appellant’s accountant but was also the long-time accountant for Patrick Aalbers, Helena Aalbers and John Aalbers. (

p) The trial judge erred in effectively requiring John and Helena Aalbers to continue to rent their land to Aalbers Agro on a rent-free basis.

He further erred in failing to consider the financial consequences of the Appellant’s interim pre-payment of $300,000 to the Respondent and the additional Family Property Act payment required by his judgment in determining the Appellant’s ongoing income. (p.1) The trial judge further erred in accepting the written report of Bruce Willis when the same was prepared without the expert witness having an opportunity to review the Appellant’s Agri-Stability reports and/or the relevant portions of John Aalbers’ tax returns. [ 42 ] All of the immediately foregoing grounds can be conveniently dealt with together because they concern maintenance or are dependent on the determination of maintenance issues.

The ground following (

p) above was originally part of ground (

m) in Mr. Aalbers’ factum but will be dealt with in this

section of the decision. [ 43 ] In December of 2006, the trial judge, in his capacity as a Chambers judge at the time, determined that Mr. Aalbers’ income for Guideline purposes was $115,312.75 using s. 18 of the Guidelines . He ordered Mr. Aalbers to pay child maintenance of $2,741 per month and a $5,000 lump sum spousal support. He arrived at the income based on Mr. Aalbers’ 2005 personal line 150 income of $19,025.75 and the Company’s 2006 taxable income of $96,285. This maintenance order of 2006 was not appealed. [ 44 ] In 2007, Mr.

Aalbers applied to vary his maintenance payments but the Chambers judge, Madam Justice Pritchard, adjourned the issue of his income for ongoing child and spousal support purposes to the trial, making appropriate adjustments to account for the Aalbers boys’ change of residence. [ 45 ] Mr. Aalbers argues that the 2006 interim order was in error because his income was actually lower. He acknowledges that no adjustment should be made to the child support payments from December 2006 to December 2007, but argues that thereafter he has significantly overpaid maintenance.

He also challenges the determination by the trial judge that his income at trial was the same as in 2006. [ 46 ] Mr. Aalbers claimed his income at trial was $30,000. This was not accepted by the trial judge. The trial judge made some significant findings with respect to the behaviour of Mr. Aalbers respecting his farm, finances and financial disclosure which coloured substantially his determination of Mr. Aalbers’ income. He observed that Mr. Aalbers changed the financial reporting of the Company from an accrual to a cash basis for the year ending July 2007.

Additionally, he observed that the land base of the farm changed. After 2006 all the land leases held by Aalbers Agro were assigned to Mr. Aalbers Sr., and Mr. Aalbers Sr. took back the land he had previously leased to his sons. As well, although Mr. Aalbers and his brother did the physical work on the farm, the owner of the crop from 2006 to trial was Mr. Aalbers Sr. Mr. Aalbers Sr. did not testify and only minimal documentation of his financial affairs regarding the farm was tendered.

In light of this, the trial judge said the following: 91 The conversion of accounting or reporting from an accrual to a cash basis is significant. At one point in the respondent’s testimony he stated that the change in the accounting basis was the doing of Meyers Norris Penny and not upon his instructions. The inference that was left to the court was that it was Mr.

Wormsbecker, the respondent’s counsel, who had made that decision and provided the instructions on the respondent’s behalf. … 99 The conclusion which the court draws from the foregoing evidence is that the respondent chose to avoid seeking financial assistance for Aalbers Agro in the form of operating loans from traditional sources. They did not seek a loan from Farm Credit Corporation or any bank. Instead the respondent, representing the partnership, embarked upon a scheme to bring his ailing father out of

retirement and move the farm income bearing assets under his father’s dominion and control. The respondent chose to have his father become the income earner. All along, the respondent, his brother and the respondent’s sons would continue to do the labour as they had in the past. Despite the picture of an economic nemesis, the Aalbers continued each year to invest extensively in new capital farm assets. Their accountant testified that the Aalbers “liked to have first class equipment”.

Each of the financial statements show significant purchases of new farm equipment. 100 The consequence of this second major change, moving the farm operation under Mr. Aalbers Sr. as the titular head of the family farm empire, when he was aging and so ill as not to be able to testify at trial, is tantamount, in the court’s opinion, to playing a shell game —a comment or observation which I made in open court. No effort was made by Aalbers Agro to obtain conventional operating capital from financial institutions, nor to obtain the same operating capital from Mr. and Mrs. Aalbers Sr. in the form of a loan.

Couple this scenario with the fact that the respondent and his family have urged upon the court to accept that Aalbers Agro was indebted for over $402,000.00 for unpaid rent accruing between 1987 and 2005, and that the respondent wanted his accountants to record a transfer of inventory of like value to his parents in satisfaction of that alleged rental debt—which the accountants refused to do as being improper accounting, and the “web” which I euphemistically refer to, becomes more tangled. [ 47 ] Mr.

Aalbers admitted in cross-examination that a cash basis of financial reporting makes it hard to track CAIS accounts, inventory, prepaid expenses, accounts receivable or accounts payable. This difficulty was largely corroborated by the report and testimony of Mr. Willis, a chartered accountant. Mr. Aalbers’ expert, Mr. Hart, confirmed that Mr. Willis’s analysis and methodology in his report on the issue was correct. The trial judge summarized Mr. Willis’s opinion at para. 103: 103 In his testimony, Mr. Willis opined a number of matters. 1.

The cash basis is not recognized or accepted according to generally acceptable accounting principles. Its primary function is for income tax purposes. Banks require accrual reporting to give the banks a more accurate financial picture of the net worth of the entity, and this is recognized as the generally acceptable method of accounting. … 3. After critiquing Mr. Hart’s letter (Mr. Hart of Meyers Norris Penny, the respondent’s accountant) Mr. Willis summed up stating, “the ultimate result of all of this is to protect the respondent.

The information to specifically prove these conclusions is not available and it seems that was the intent of what was happening with this financial reporting”. Shortly thereafter, Mr. Willis testified, “this is a very convoluted operation and structure. It is not typical. The nature of this complexity is not what I would typically expect to see”. [ 48 ] Mr. Aalbers also admitted to trying to shift Company inventory to his father to reduce the valuation of the Company by his expert, Mr. Schofield.

The judge concluded: 112 All of the foregoing recital of evidence demonstrates, on balance, that the tangled web the respondent has indeed woven succeeded in precluding Mr. Willis, and now the court, from accurately determining the respondent’s income for the purpose of gauging his means and ability to pay support for his three daughters, all of whom remain in the care of their mother. It also precludes a reference to his income for the purpose of assessing if spousal support should be paid. Mr.

Willis could not extrapolate what the respondent’s income might be from the cash reporting basis utilized since these proceedings were commenced, to an accrual reporting basis, as was used by the respondent and the court in assessing interim support in December 2006. 113 The court can accept the respondent’s testimony as to the poor crop and weather conditions which compromised his farm income in 2009. The court does not adopt the respondent’s methods of deception by which his aging and ailing father now gathers in the farm income which was formerly earned by Aalbers Agro.

The respondent’s father did not testify due to his alleged health. The respondent did not tender his father’s tax returns nor financial information. Thus the court was precluded from obtaining the evidence necessary to determine the level of income being generated by the Aalbers’ family farming operation, examined globally, and the respondent’s proportionate share thereof. … 115 The court must seek evidence of legitimate change in the respondent’s income since its December 2006 ruling. The failing hog operation is no longer a liability to the partnership. The same land base exists and is farmed.

The Aalbers continue to purchase new equipment each year. As Mr. Willis opined, “ongoing investment in capital typically indicates an expectation of profitable operations”. On the other hand, the evidence satisfies the court that the respondent has had to draw upon his equity to pay the interim property distribution of $300,000.00. The respondent has also incurred considerable costs in litigating and in paying maintenance. Therefore, what does the totality of the evidence reflect as the respondent’s current income? 116 The respondent’s most recent financial statement is another self-serving document.

The court cannot accept the respondent’s claim of a current income slightly in excess of $30,000.00. The totality of evidence does not convince the court that matters of farming could not revert to Aalbers Agro as they existed immediately prior to the separation of the parties and the commencement of these proceedings. Restructuring of the Aalbers family farm and accounting methods is not a mere coincidence. The respondent has engaged upon a course of action to divert his income to his father—“the pea moves from one shell to another by sleight of hand”.

[ 49 ] In short, the trial judge determined that Mr. Aalbers had rearranged his farming business to move his income producing farm assets to his father and/or portray his own farming business as faltering. This determination was, in large part, based on the trial judge’s view of Mr. Aalbers’ credibility or lack of it. [ 50 ] Mr. Aalbers argues that the trial judge failed to consider the evidence of Mr. Hart, Mr. Aalbers’ long time accountant, and erred in relying on Mr. Willis’s opinions. [ 51 ] It was open to the trial judge to accept all, none or portions of the evidence of Mr. Hart.

Given the substantial evidence that Mr. Aalbers had tried to obfuscate his financial affairs, it is not difficult to see why the trial judge would place little weight on the evidence of Mr. Hart respecting the income of the farm. Mr. Hart’s financial service to Mr. Aalbers would, put at its best, unknowingly be documenting Mr. Aalbers’ obfuscation. While it is true that Mr. Willis did not examine Mr. Aalbers’ Agri-Stability (CAIS) reports, there is no indication that this made his opinion less reliable or that his evidence should not have been accepted by the trial judge. In cross-examination, Mr.

Willis indicated that the CAIS reports are but one factor to consider in a financial analysis and are not prepared according to GAAP (generally accepted accounting principles). This along with the matter of whether or not Mr. Willis had reviewed John Aalbers’ tax returns are issues going to the weight to be given to Mr. Willis’s opinion and are within the purview of the trial judge to determine. [ 52 ] These determinations respecting Mr.

Aalbers’ lack of forthrightness about his income and true current financial picture and his attempts at financial obfuscation drove the trial judge’s conclusion that he was hampered in accurately determining what Mr. Aalbers’ income was for Guideline purposes. He was, on the evidence as a whole, justified in this conclusion. This conclusion is supportable on the evidence and is entitled to deference. [ 53 ] In the end, the trial judge determined that Mr. Aalbers continued to have a Guideline income of $115,000, i.e. no different than in 2006. [ 54 ] The report of Mr. Willis starting at A1611 indicates that Mr.

Aalbers, by one method or another, may have withdrawn from the Company $118,637 for the period ending July 31, 2009 and $115,894 for the period ending July 31, 2008. Given the evidentiary limitations respecting Mr. Aalbers’ true income, the paucity of income reflected in Mr. Aalbers’ tax returns and given the evidence of cash flow to Mr. Aalbers from the Company similar to that in 2006, it was open to the trial judge to determine that Mr. Aalbers’ income was no different than it was in 2006. The imputation of income for Guideline purposes made by the trial judge was therefore appropriate. [ 55 ] Mr.

Aalbers makes the argument the trial judge ignored the issue of the rent-free farmland. The evidence was that after separation, after many years where Mr. Aalbers Sr. did not charge rent, rent was now being charged and a substantial debt to the Company for retroactive rent payments had been created. The trial judge was entitled to view the creation of this debt as part of Mr. Aalbers’ attempt to conceal the true financial picture and place no weight on this. [ 56 ] With respect to the interim payment by Mr.

Aalbers of $300,000 toward the family property settlement, the trial judge took this payment into consideration in his analysis of the financial situation of Mr. Aalbers and did not ignore it. [ 57 ] The impugned adjournment of the variation application in 2008 was within the discretion of the Chambers judge at the time who was likely faced with the same issues as the trial judge in teasing out of the evidence before her Mr. Aalbers’ farm based income.

There is no indication that she wrongly exercised her discretion in adjourning the matter. [ 58 ] In view of the disposition of the maintenance issues, I need not address Mr. Aalbers’ arguments under s. 21(3) (

m) and (

q) of The Family Property Act related to maintenance. [ 59 ] Lastly, respecting retroactive adjustment to Mr. Aalbers’ child and spousal maintenance from 2008 to trial, the trial judge, in my view, was hampered by the same disabilities respecting the determination of income for all the years from 2008 to trial and therefore could not make a determination that maintenance had been overpaid. [ 60 ] Accordingly, I find no error by the trial judge respecting these seven grounds of appeal. (

q) The trial judge erred in failing to impute income to the Respondent as a result of her failure to obtain market rent for the farmland owned by her. (

r) The trial judge erred in failing to determine that the overpayment of spousal support and child support should have thereby reduced the Respondent’s ongoing entitlement to spousal support. (

s) The trial judge erred in failing to terminate the Respondent’s ongoing right to spousal support. [ 61 ] After addressing the objectives of spousal support and reviewing the law, the trial judge stated: 128 The petitioner will have received her share of family property in short order. She can invest the equalization payment prudently and earn interest income. However, at today’s rates of interest, the petitioner might anticipate earning about $6,000.00 of new interest income. With her farm rent this provides her with approximately $8,200.00 income without working.

The court finds no reason why the petitioner could not earn a minimum of $10,000.00 additional income even with the limitations that her children place upon her. With $18,200.00 plus child benefits paid by government, this still would leave the petitioner living a very frugal subsistence. This assumes that all child support is expended on the children’s needs. The court recognizes that there are obvious economic synergies of child support which contribute to the operation of the petitioner’s household.

However, at the end of this analysis, when applying the overarching test of law by considering the means, needs, conditions and other circumstances of the petitioner and respondent, there remains an economic disparity between the two households. That disparity is too detrimental to the petitioner and requires an order of spousal support to reduce the economic disparity and consequent lifestyles and amenities which can be afforded by each household. An award of spousal support based upon these facts is non-compensatory in nature. Its purpose is to address the economic hardship which the petitioner

continues to endure. … 130 The actual income of the respondent is very difficult to gauge if not impossible. The respondent chose to compromise the court’s ability to determine his income. He cannot be taken to complain if his support obligations seem onerous. The Spousal Support Advisory Guidelines: A Draft Proposal by Professor Carol Rogerson and Professor Rollie Thompson (Toronto: University of Toronto, Faculty of Law; and Halifax: Dalhousie Law School, 2005) are only of assistance to the court when the individual net disposable income of each parent is known or is closely proximated.

On the other hand, the petitioner may in the end result be somewhat prejudiced if spousal support as awarded is lower than might otherwise have been the case given a realistic disclosure by the respondent of his potential income. If the spider is caught in its own tangled web, poetic justice, as well as rough justice, has been done. Accordingly, he ordered Mr. Aalbers to pay Ms.

Aalbers $1,500 per month in spousal support. [ 62 ] In view of my analysis of the previous maintenance issues, I need not address the issue of a reduction in spousal support based on an overpayment of past spousal and child support. [ 63 ] Mr. Aalbers also argues that he should not be required to pay ongoing spousal support. He argues that the trial judge erred by only imputing to Ms. Aalbers’ a minimum of $10,000 of income, that Ms.

Aalbers has failed to look for work since the separation and that she failed to obtain market rent for her quarter of land. [ 64 ] The trial judge was aware of the principles and factors germane to an award of spousal maintenance. There was evidence before him upon which he could find that Ms. Aalbers was entitled to maintenance. Moreover, the trial judge gave an explanation of why he only attributed $10,000 income to Ms. Aalbers, i.e. childcare responsibilities. His determination of the farm rental was likewise justified on the evidence. Ms.

Aalbers explained in cross-examination that the rental was based on conversations she had with Weyburn Crop Insurance and low grain prices. I cannot say that the trial judge erred by continuing spousal maintenance. Given Mr. Aalbers’ income, the quantum of maintenance he awarded was justified and appropriate. Accordingly, this ground of appeal fails. (

m) The trial judge erred in failing to advise the Appellant at the start of the trial that the Respondent’s Expert Witness, Bruce Willis, C.A. was his own personal accountant. If the Appellant had been advised of this fact at the start of the trial rather than in the middle of the trial, he would have asked that the trial judge recuse himself. [ 65 ] As a final argument in the factum and oral argument, Mr. Aalbers submitted that a new trial should be ordered on the basis of a reasonable apprehension of bias on the part of the trial judge. In oral submissions, counsel for Mr.

Aalbers indicated that he was not asserting actual bias, but that his client was sufficiently concerned about the outcome of the trial and the findings of credibility against him that he pressed counsel to raise this final argument alleging a reasonable apprehension of bias. [ 66 ] As I am sure counsel is aware, alleging a reasonable apprehension of bias as the last argument of many can be problematic. To give effect to an allegation of a reasonable apprehension of bias, a new trial is the only remedy. Yet, it is clear from the arguments previously canvassed and assessed that Mr.

Aalbers seeks a new trial only if he is unsuccessful with respect to his other arguments. It will be evident to counsel that such an approach to an issue of this significance colours the Court’s response to it. [ 67 ] The claim of an allegation of apprehension of bias arises out of these circumstances. At the start of the trial on Monday, April 5, 2010, the parties filed the résumé and the report of Bruce Willis of KPMG as part of Exhibit P-1. At the end of the court day on April 7, 2010, the following exchange took place: Ms. Drennan: My Lord, just one more thing. I have Mr.

Willis scheduled for tomorrow afternoon. I just thought I’d let the Court know that. … The Court: I know Mr. Willis ... quite well, he’s my own personal accountant, you may as well know that, but -- Mr. Stodalka: Is there any tax questions (sic) you want me to ask him, My Lord, or -- The Court: It has -- it will have absolutely no bearing, I -- I assure both of you. If I had to reject anybody from testifying in my courtroom whom I knew, a good part of the City of Regina would never be able to testify. I’ve lived here for all my life, 68 years now. Mr.

Stodalka: See you at 10:00. (Transcript, pp. 335 and 336) [ 68 ] Counsel asked no clarifying questions of the judge and made no application requesting that he recuse himself, either then or the following day when Mr. Willis was first called. Indeed, when the trial resumed the following day, counsel accepted that Mr. Willis could be qualified to give opinion evidence with respect to explaining and interpreting (

i) financial statements and tax returns; (ii) the financial results/cash flow/income of a company, business or a partnership; and (iii) generally accepted accounting practices. The only concern raised by counsel for Mr. Aalbers was whether Mr. Willis was qualified to give opinion evidence with respect to small hog operations. After both counsel directed several questions to Mr. Willis on this last point, and when counsel for Mr. Aalbers appeared to be satisfied with the responses, the trial judge qualified Mr. Willis to give such evidence (Transcript pp. 565-567). [ 69 ] Now on appeal, Mr.

Aalbers argues that there is a reasonable apprehension of bias because of the trial judge’s relationship with

Mr. Willis, which is said to be reflected in his failure to properly review the evidence of his expert, Mr. Hart, when it contradicted theevidence of Mr. Willis, and by his failure to refer to the farm income tax returns of Mr. Aalbers Sr. from 2007 to 2009. Lastly, Mr.Aalbers argues that he did not waive his right to assert an apprehension of bias. [70] Mr. Aalbers argues that the trial judge should have recused himself at the outset of the trial and at the latest on April 7 when itbecame clear Mr. Willis would be testifying.

He maintains that the trial judge let it be known in the exchanges with counsel, which arequoted above, that he was not going to recuse himself such that it was futile to make an application to have him do so. [71] These submissions are premised on the assumption that the trial judge was required, as a matter of absolute principle or rule of law,to recuse himself because one of the witnesses was his professional advisor. This is a flawed assumption.

As the Canadian JudicialCouncil’s Ethical Principles for Judges make clear, a judge would be justified in deciding to recuse if the judge has a close professionalrelationship with a witness: E.3 A number of texts and commentaries offer guidance to judges on this subject. The Hon. J.O.

Wilson in A Book for Judges, forexample, says a judge’s disqualification would be justified by a pecuniary interest in the outcome; a close family, personal orprofessional relationship with a litigant, counsel or witness; or the judge having expressed views evidencing bias regarding a litigant. [emphasis added] The decision of whether to recuse or not, however, is left to the judge in the first instance and will, in some cases at least, depend on anuanced appreciation of all of the facts: E.15 The better approach is for the judge to make the decision without inviting consent, perhaps in consultation with his or her chiefjustice or other colleague.

If the judge concludes that no reasonable, fair minded and informed person, considering the matter, wouldhave a reasoned suspicion of a lack of impartiality, the matter should proceed before the judge. If the conclusion is the opposite, thejudge should not sit. [emphasis added] [72] A judge, faced with a possible conflict of interest, is advised to make disclosure and invite submissions only if the judge has anydoubt about whether arguable grounds exist for recusal or in cases of necessity: E.16 The judge should make disclosure on the record and invite submissions from the parties in two situations.

The first arises if thejudge has any doubt about whether there are arguable grounds for disqualification. The second is if an unexpected issue arises shortlybefore or during a proceeding. The judge’s request for submissions should emphasize that it is not counsel’s consent that is being soughtbut assistance on the question of whether arguable grounds exist for disqualification and whether, in the circumstances, the doctrine ofnecessity applies. [emphasis added] [73] It should be made clear, however, that this appeal is not about whether the judge may have been justified in recusing himself.

Rather, the question this Court must answer is whether the trial judge’s decision to sit, notwithstanding his professional relationship withone of the witnesses, gives rise to a reasonable apprehension of bias in the context of this case and on the facts of which this Court isaware. As the court in Wewaykum Indian Band v. Canada (No. 2), 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 78 makes clear, thestandard is the same whenever the issue of disqualification is raised.

One of the difficulties in this case, however, is the limited factualrecord on which this Court is asked to assess the question of reasonable apprehension of bias. [74] On numerous occasions, the Supreme Court of Canada has adopted the test for a reasonable apprehension of bias established by deGrandpré J. in dissenting reasons in Committee for Justice and Liberty v. National Energy Board, (SCC), [1978] 1 S.C.R.369 at pp. 394-95. See: R. v. R.D.S., (SCC), [1997] 3 S.C.R. 484 at para. 31; R. v. Valente, (SCC),[1985] 2 S.C.R. 673 at para. 12 and Wewaykum at paras. 60 and 76. See also from this Court R. v.

Dickhoff (1998), (SK CA), 172 Sask. R. 1 (Sask. C.A.) at para. 11. [75] The test is whether an informed person, viewing the matter realistically and practically—and having thought the matter through—would think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly(Committee for Justice and Liberty at p. 394). The grounds for an apprehension of bias must be “substantial” (Committee for Justice andLiberty at p. 395). A real likelihood or probability of bias must be demonstrated; a mere suspicion is not enough (R.D.S. at para. 112).

The Supreme Court of Canada has also consistently rejected the notion that the reasonableness of an apprehension of bias depends on the“very sensitive or scrupulous conscience” (Wewaykum, para. 76). [76] As Cory J. states in R.D.S., one of the reasons why the threshold for a finding of a reasonable apprehension of bias is high is thatthe courts recognize a presumption that judges will carry out their oath of office: 117 Courts have rightly recognized that there is a presumption that judges will carry out their oath of office. See R. v.

Smith &Whiteway Fisheries Ltd. (1994), 1994 NSCA 130 , 133 N.S.R. (2d) 50 (C.A.), and Lin, supra. This is one of the reasons why thethreshold for a successful allegation of perceived judicial bias is high. … [emphasis added] Cory J. went on to indicate in R.D.S. that “cogent evidence” is required to displace the presumption that judges will carry out their oathof office (at para. 117).

In the same decision, L’Heureux-Dubé and McLachlin JJ. (as the latter then was) spoke in terms of the“presumption of impartiality” which requires clear evidence that the judge in question had improperly used his or her perspective in thedecision-making process, before concluding that there exists a reasonable apprehension of bias in the conduct of a judge (at paras. 48-49). [77] When these principles are applied the outcome can vary depending on the context.

As the court stated in Wewaykum, whether anapprehension of bias exists is a “highly fact-specific” inquiry for which there are no shortcuts: 77 … As a result, it cannot be addressed through peremptory rules, and contrary to what was submitted during oral argument, thereare no “textbook” instances. Whether the facts, as established, point to financial or personal interest of the decision-maker; present orpast link with a party, counsel or judge; earlier participation or knowledge of the litigation; or expression of views and activities, they

must be addressed carefully in light of the entire context. There are no shortcuts . [emphasis added] [ 78 ] The nature of Mr. Aalbers’ allegation of a reasonable apprehension of bias is that Mr. Willis has a professional relationship with the trial judge—nothing more nor less than this. However, a professional relationship with the trial judge is not, of itself, wholly determinative of the issue of a reasonable apprehension of bias.

As Professors Philip Bryden and Jula Hughes indicate, “business or professional relationships can sometimes give rise to a reasonable apprehension of bias, but in such situations courts are much more likely to assess carefully whether the nature of the relationship is such as to give rise to real concerns about the decision-maker’s impartiality” (see: Legal Principles Governing the Disqualification of Judges, 2010 , National Judicial Institute, Supreme Court of Newfoundland and Labrador Education Seminar updating a paper originally cited in (2003), 83 Canadian Bar Rev. 556). In this case, Mr.

Willis testified in his professional capacity as an accountant and gave evidence of a technical and expert nature that one might reasonably conclude would be different than that offered to an individual client such as the trial judge. [ 79 ] As I have indicated, and as the Ethical Principles for Judges state, a judge would be justified in recusing himself or herself in the circumstances of this case—in the sense that the judge here would not have been faulted for doing so.

Having said that, and as I have explained above, it does not directly follow that a judge must recuse in the face of a professional relationship with a witness. In such circumstances, as the Ethical Principles provide (at E.12), a judge “should disclose on the record anything which might support a plausible argument in favour of disqualification”.

This is done not for the purposes of seeking submissions or consent to the judge presiding, but for the purpose of allowing counsel to assess his or her position. [ 80 ] In this case, in light of the record, this Court is left in the position of simply not knowing whether the trial judge was noting for the record his relationship with a witness, and his decision not to recuse himself, so as to allow counsel to consider his or her position, in accordance with E.12 of the Ethical Principles or whether the trial judge was in the process of disclosing the information so as to invite submissions in accordance with E.16 of the Ethical Principles (as cited above) because the judge had a doubt as to whether he should sit.

Counsel’s reaction to the trial judge’s disclosure cut short what the trial judge was about to say or do. In this case, as well, counsel, knowing of the issue, chose not to ask anything further of the judge or Mr. Willis on the subject either at the time of its disclosure or the following day as Mr. Willis was about to testify or after Mr.

Willis had been examined and cross-examined on his qualifications. [ 81 ] It is all well and good for counsel to say that he did not want to end a trial after two days of evidence had been called, but that leaves this Court being called upon to order a new trial on a scant evidentiary base—and after many days of trial. This base is simply insufficient to displace the oath of office that binds all judges to decide every case impartially. It is apparent from counsel’s response to the trial judge’s announcement of a professional relationship with Mr.

Willis, and his failure to pursue the matter then or the following day, that counsel was prepared to continue with the trial, relying on the trial judge’s oath of impartiality. [ 82 ] On a reading of the trial judge’s reasons as a whole, together with the evidence before him, I cannot see anything that supports the allegation that the trial judge demonstrated an improper predisposition in favour of Ms. Aalbers with respect to Mr. Aalbers’ financial issues as a result of Mr. Willis testifying on those issues. His rejection of the evidence of Mr. Aalbers’ witnesses with respect to the state of Mr.

Aalbers’ financial affairs, and his preference for the evidence of Mr. Willis, related directly to the nature and substance of the witnesses’ testimony on those issues. It is true that the trial judge made significant and strong findings of credibility against Mr. Aalbers, but this is the function of trial judges and, as the Alberta Court of Appeal recently said in Hill v.

Hill , 2013 ABCA 137 , at para. 38 , there is usually no way for a trial judge to explain an adverse credibility finding which will flatter its subject. [ 83 ] Applying the test for a reasonable apprehension of bias, I cannot conclude that an informed person, viewing this matter realistically and practically—and having thought the matter through—would think that it is more likely than not that the trial judge, whether consciously or unconsciously, would not decide the matters in issue fairly. It is clear that this trial judge adjudicated this matter impartially and with integrity.

In sum, this ground of appeal is rejected. [ 84 ] It should be noted that counsel for Mr. Aalbers argued that his actions did not constitute a waiver of his right to raise a reasonable apprehension of bias. Given the approach that I have taken to this issue, wherein I have not found that a reasonable apprehension of bias exists, I need not go on to consider the question of waiver. IV. Conclusion [ 85 ] The appeal of Mr. Aalbers is dismissed except for ground (e.1) respecting the hog inventory, the value of which will be deducted from the property. In view of Ms.

Aalbers’ substantial success, she shall have her costs based in column 3 for the appeal proper and for any motion in this Court for which costs have not yet been determined. DATED at the City of Regina, in the Province of Saskatchewan, this 12 th day of June, 2013. “Ottenbreit J.A.” Ottenbreit J.A. I concur “Jackson J.A.”

Jackson J.A. I concur “Richards J.A.” Richards J.A.