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CUSTODY AND ACCESS - Practice and procedure

Tuesday, August 15, 2017 @ 8:45 AM  


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Appeal by the mother from an interim order varying the parties’ parenting arrangement and granting the father primary care. The Chambers judge had presided at two pretrial conferences with the parties regarding the parenting issues. Prior to the hearing, the appellant made an application to have the Chambers judge recuse himself as a result of his having presided at the two pretrial conferences. The Chambers judge refused to recuse himself, ultimately concluding that the application for recusal was essentially questioning the court’s integrity and impartiality and an attempt to secure what might be perceived as a more sympathetic judicial ear.

HELD: Appeal allowed. The Chambers judge should have recused himself. He erred in applying the test for actual bias as opposed to that for reasonable apprehension of bias. The appellant’s perception that, in light of the candid disclosures she made to the Chambers judge at the pretrial, the judge would not be able to decide the application in a fair and impartial way on the evidence presented in open court, was justified. Any reasonably informed person viewing the matter realistically and practically would also come to this conclusion. Regardless of the concerns related directly to the question of a reasonable apprehension of bias, the ongoing effectiveness and integrity of the pretrial system depended on the parties to litigation being able to speak freely and frankly in the pretrial conference and to being able to do so without fear that their remarks might come back to haunt them in subsequent proceedings. Confidence in this kind of confidentiality would only be possible if litigants understood that the pretrial judge would not preside at the trial or at a contested application involving the same subject matter as the pretrial.

Babich v. Babich, [2017] S.J. No. 259, Saskatchewan Court of Appeal, R.G. Richards C.J.S., M.J. Herauf and J.A. Ryan-Froslie JJ.A., June 20, 2017. Digest No. TLD-August142017005