Jun 22, 2020

COURT OF APPEAL SUMMARIES (June 15 – 19, 2020)

Neufeld v. Neufeld, 2020 ONCA 395 (CanLII)

[MacPherson, Pardu and Huscroft JJ.A.]

Counsel:

Donna Wowk, for the appellant

Bryan Smith, for the respondent

Keywords: Family Law, Equalization of Net Family Property, Valuation Date, Date of Separation, Civil Procedure, Reasonable Apprehension of Bias, R. v. S.(R.D.), [1997] 3 S.C.R. 484

Facts:

This was a 19-day trial to determine when the parties separated for the purposes of determining the valuation date for use in the calculation of the equalization of net family property.

The husband maintained that he and his wife were separated when the wife began sleeping in a separate room in the year 2000 (although they maintained some intimate relations thereafter). The wife maintained that the date of separation was in 2014, when she retained a family lawyer and commenced proceedings.

The date of separation, 2000 or 2014, made a big difference in the equalization calculation. The trial judge found that the date of separation, and therefore the valuation date was in 2014. The husband appealed.

Issues:

1. Did the trial judge fail to sufficiently address the credibility and reliability of the parties and other witnesses?

2. Did the trial judge make palpable and overriding errors with respect to findings or inferences of fact?

3. Was there a reasonable apprehension of bias on the part of the trial judge?

Holding:

Appeal dismissed.

Reasoning:

1. No. The fact that the trial judge did not use the word “credibility” in his lengthy reasons does not mean that he did not clearly assess credibility or make credibility findings.

2. No. The two factual errors cited by the appellant were, at best, minor errors, and were certainly not “overriding” such that the judge’s determination after a 19-day trial should be set aside.

3. No. The allegation of bias was outlandish. The appellant could not point to a single word of the trial judge during the 19 day trial that suggested any party or witness was treated unfairly. Complaints about credibility findings, the failure to refer to certain evidence or a reference to a potential limitation periods were, at most, complaints of legal error, not bias. An allegation of judicial bias should not be made lightly because, by definition, it challenges the integrity of the judge in relation to the core of the judicial function – to preside impartially over the case before the judge: R. v. S.(R.D.), [1997] 3 S.C.R. 484.