NOVA SCOTIA COURT OF APPEAL
Citation: Fraser v. Fraser, 2006 NSCA 119
Date: 20061103
Docket: CA 260562
Registry: Halifax
Between:
Bernard Fraser
Appellant
v.
Jodi Lee (Gargan)(Fraser)Moreland
Respondent
Judge(s): MacDonald, C.J.N.S.; Oland & Hamilton, JJ.A.
Appeal Heard: October 10, 2006, in Halifax, Nova Scotia
Held: Appeal dismissed, as per reasons for judgment of Hamilton, J.A.; MacDonald, C.J.N.S and Oland, J.A. concurring
Counsel: Nash T. Brogan, for the appellant
Jodi Lee Moreland, self-represented respondent,
(via teleconference)
Reasons for judgment:
[1] This appeal concerns the custody of two children, now aged 7 and 5. The appellant, Bernard Fraser, is the biological father of the younger child. He appeals two unpublished decisions of Justice Donald M. Hall. The first decision relating to the divorce was dated November 24, 2004. The order giving effect to it was issued May 11, 2005 and provided that either party could seek a review of custody after June 16, 2005. The father sought such a review in August 2005 and the hearing was held August 22, 2005. The judge’s decision following the review hearing was filed November 23, 2005. In both decisions the judge awarded sole custody of the children to the respondent, Jodi Lee Moreland, the biological mother of both children. Both parties were represented by counsel at trial. On appeal the father was represented by counsel and the mother was assisted by her husband, Robert Moreland.
BACKGROUND
[2] The judge outlined the background of the parties in his decisions. In his first decision he stated:
[3] The essential facts of the case are quite straight forward. On October 7, 1999, a child, Liam Edward Gargan, was born to Jodi Lee Gargan, the petitioner herein, as the result of a brief relationship with another man. Approximately six months later she met the respondent. After a relatively brief courtship they began living together. They eventually acquired a residential property at 588 Weaver Road in Medford, Kings County, which became the matrimonial home. A child, Sean Patrick Gargan was born to them November 11, 2001. The parties married August 17, 2002.
[4] The petitioner was employed as a Master dog groomer. She had her own shop on Aberdeen Street in the Town of Kentville. Her income from this enterprise seems to have been modest but there was little evidence offered as to her income over the years. It is her intention to again open a dog grooming shop to provide herself with an income.
[5] The respondent is employed on a seasonal basis as a fisherman, fishing for lobsters off Cape Breton Island for approximately two months of the year. Although he has other fishing licences, including ground fish, he does not exercise them. His annual income from fishing ranges from approximately $50,000.00 to approximately $30,000.00. In the year 2003 he reported net income of $28,593.00. He apparently does some odd jobs such as carpentry during the other months of the year but apparently does not report this income.
[6] In October, 2003, the petitioner went to Florida to attend a dog groomers' conference. While there she met Robert James Moreland, who had formerly been employed as a business manager of the NASA space agency. In December, 2003, Mr. Moreland and the petitioner met in Halifax, Nova Scotia, and later she spent a long weekend with him at his home in Virginia. There were subsequent visits in January and February. The petitioner and Mr. Moreland acknowledge that they had sexual intercourse on these occasions.
[7] In December of 2003, it was apparent that the marriage was over. Under date of December 30, 2003, the petitioner filed a petition for divorce. The stated ground of divorce was marriage breakdown. It was stated that the parties separated November 20, 2003.
[8] On a number of occasions during the next four months the petitioner made trips to the United States but each time returned to the matrimonial home after short periods of time, but it appears that all usual conjugal relations between the parties had ceased prior to the stated separation date. At some point the petitioner apparently had the intention of re‑moving to the United States with the children with a view to obtaining employment there.
[9] An answer and counter‑petition were filed by the respondent under date of March 24, 2004. It also stated that the parties had separated November 20, 2003.
[10] Following the issuance and service of the divorce petition on the respondent there were a number of court proceedings with respect to custody and care of the children and the deteriorating relationship between the parties. On January 9, 2004, the Nova Scotia Family Court granted an ex parte order awarding interim custody of the children to the respondent. On March 26, 2004, in the Family Court, the Honourable Judge Sparks declined jurisdiction as a result of the ongoing divorce proceeding in this court. On May 27, 2004, an emergency protection order was granted under the Domestic Violence Intervention Act on the application of the petitioner. It provided among other things that the respondent remain away from the petitioner and the matrimonial property. On May 29, 2004, the respondent was charged with sexually assaulting and assaulting the petitioner. On June 2, 2004, the emergency protection order was confirmed by Edwards, J., in Sydney, N.S. and on the same date Warner, J., of this court declined to hear an ex parte application filed by the petitioner respecting interim custody of the children. On June 26, 2004, an order granting interim custody of the children to the respondent was granted by Warner, J., of this court.
[11] The result of the foregoing proceedings is that the respondent has had custody of the children since January 9, 2004 and the petitioner has had relatively little time with them. In fact, she had had virtually no access to them until access was ordered on an interim basis at the conclusion of this hearing. In the meantime the petitioner had made a number of visits to the United States but returned in April of 2004 and resided in the matrimonial home with the children. The respondent was also residing there until May 5, 2004 when he returned to Cape Breton to go fishing.
[12] As noted previously, under date of April 27, 2004, the parties prepared a document entitled an "Amended Petition For Divorce" in which the respondent, Mr. Fraser, was named as the petitioner and the petitioner, Mrs. Fraser, was named as co‑petitioner. The ground of divorce stated in the purported amended petition was that Ms. Fraser had committed adultery since the marriage of the parties which had not been condoned by Mr. Fraser and also that they had been living separate and apart since April 1, 2003. In the document the parties purported to settle all issues between them. The petitioner later renounced the document saying that she signed it under duress and compulsion by the respondent. The respondent also has renounced the agreement contained in the document. This document was filed without the leave of the court as required by Rule 19 of the Civil Procedure Rules and is of questionable validity. The day following the signing of the amended petition the petitioner left for the United States with the children but was stopped at the U.S. border at Houlton, Maine, and was not permitted to enter the United States. She returned to the matrimonial home with the children. As stated, the respondent was residing in the home at the time and remained there until May 5th when he went to Cape Breton.
[13] Sometime later, on May 28th, 2004, the petitioner reported to the RCMP detachment in New Minas that she had found a large quantity of marijuana in the home which she claimed was planted there by the respondent to incriminate her. At the same time she reported to the investigating police officer that she had been raped by the respondent on the evening of April 26th, 2004. Eventually, charges of sexual assault under s. 271 and assault under s. 266 of the Criminal Code were laid against the respondent. The trial on these charges is scheduled for March, 2005.
[14] In May or June of 2004 Mr. Moreland came to Nova Scotia to visit the petitioner. Apparently he decided to remain in Nova Scotia and is residing with the petitioner in the matrimonial home. They plan to marry when in a position to do so. Mr. Moreland is presently the holder of a Masters degree and intends to pursue a PhD. program at St. Mary's University in Halifax, N.S.
[15] Preparatory to this hearing a custody assessment was completed at the request of the court by Dr. Doug [Symons], a psychologist at Acadia University in Wolfville. After completing interviews and so forth Dr. [Symons] completed a thirteen page report which has been filed in this proceeding. He recommended that the petitioner have primary care and custody of the children.
[16] At trial several witnesses called by the respondent testified that the petitioner was a daily user of marijuana and occasionally used cocaine. One witness testified that on one occasion while "doing" cocaine the petitioner breast fed her younger child who was an infant at the time to get him to go to sleep. The petitioner denied ever having used cocaine and admitted to only occasional use of marijuana. She testified that since her relationship with Mr. Moreland began she has not consumed any drugs or alcohol. In his testimony Mr. Moreland confirmed this. The evidence also revealed that the respondent has been convicted of a drinking and driving offences under the Criminal Code on two occasions as a result of which his driver's license has been suspended. Despite this, he continues to drive and has been convicted of driving while his license was suspended. On occasion he is accompanied by the children. He seemed to think there was nothing seriously wrong in him doing so.
[3] In his first decision the judge noted he had concerns respecting both parents in terms of custody:
[23] The major issue to be decided is the custody and care of the children. In this regard I have great concern respecting both parents.
[4] The concern he referred to with respect to the mother was her denial that she used marijuana and cocaine prior to meeting Mr. Moreland. He found as a fact that she had used illegal drugs.
[5] The concerns the judge noted with the father were his two convictions of alcohol related driving offences, his continuing to drive while his licence was suspended with the children in the car, his being content to work only two months each year and to collect employment insurance for the balance of the year, and the outstanding charge against him for sexual assault and assault of the mother.
[6] To the father’s credit the judge noted his supportive family, his good home, his ability to support himself and the children and that the children were fond of him:
[31] On the positive side for the respondent, it appears that he has a very supportive family and has a good home for himself and the children in his native Cape Breton. It also appears that he is in a financial position to meet the financial needs of himself and the children. As well, it appears that the children are fond of him and they get along well with each other.
[7] In favour of the mother the judge noted that Dr. Symons, the psychologist who did the custody assessment, recommended custody go to the mother and the mother’s new relationship with Mr. Moreland:
[32] Insofar as the petitioner is concerned, there are two positive factors that weigh heavily in her favour. First, is the fact that Dr. Symons has recommended quite strongly that custody and primary care of the children should be with the petitioner. Dr. Symons completed an extensive examination and review of the family situation and after observing the conduct of the children with each parent he concluded that it was in their best interests to be under the primary care of their mother, the petitioner. In my opinion, Dr. Symons assessment was done in an objective, thorough and fair manner and his recommendations should be given a great deal of weight.
[33] Secondly, the petitioner has established a new relationship with Mr. Moreland which, to this point, appears to be on a sound footing. The petitioner and Mr. Moreland stated that they plan to marry when in a legal position to do so after this divorce proceeding is finalized. If their relationship continues as at present it will add stability to the petitioner's life. With that and the fact that she has demonstrated a more responsible attitude and life style since the relationship with Mr. Moreland began, it appears that a stable and loving home environment would be provided for the children if placed in her primary care.
[8] After balancing these factors the judge awarded custody to the mother but provided for the possibility of a review after six months because he found: “There are a number of issues with respect to the parties that remain in a state of flux.”
[9] By the time of the review hearing, the circumstances of the parties had changed as noted by the judge in his review decision:
[4] At the time the [first] decision was granted the petitioner and Robert Moreland were residing in what had been the matrimonial home in Canning, Kings Co., Nova Scotia. It was understood that they planned to marry as soon as they were in a legal position to do so and that they would continue to live in Canning with the children while Mr. Moreland pursued a PhD degree at St. Mary's University. He hoped to subsequently obtain a teaching position at Acadia University in Wolfville, N.S. The petitioner and Mr. Moreland did marry but, apparently due to financial constraints, he did not proceed with his plan to attend St. Mary's University. Instead, he applied and was accepted for employment with his former employer, the National Aeronautics and Space Agency (NASA) in Washington, D.C. Confirmation of his employment was received October 19, 2005. At this time the intention of the petitioner and Mr. Moreland is to move with the children to a town in Northern Virginia, near Washington, where they have arranged to rent a home for the family. They have also made arrangements for the children to attend schools and so forth.
. . .
[9] An extremely significant matter that was outstanding at the time of trial was a charge of sexual assault against the respondent, initiated at the behest of the petitioner. The charge came about after she called the police to investigate a large quantity of marijuana which she claimed she found in the matrimonial home. She told the police officer that it was not hers and suggested that it belonged to the respondent. While the police officer was at the home she also informed him that the respondent had raped her. A charge of sexual assault resulted but no charges were laid in connection with the marijuana.
[10] The sexual assault charge was scheduled for hearing in Provincial Court at Kentville, April 16, 2005. The trial was ready to proceed but the complainant, the key prosecution witness, the petitioner, did not appear although she was under subpoena. At the review hearing the petitioner testified that she intended to attend but her baby sitter did not arrive. Apparently the intended baby sitter lived in Halifax and refused to go to Canning, according to the petitioner, because she could not find her denture. The petitioner stated that on the morning of the trial Mr. Moreland left at 6:00 a.m. to pick up the intended baby sitter. She stated that she telephoned the prosecutor's office at 8:00 a.m. and again at 9:00 a.m., when she was told that they couldn't hold up the judge and the case was dismissed.
[10] In his review decision the judge rejected the mother’s explanation as to why she did not attend the father’s trial. He found that her allegations against the father that led to the charge were false and had been “concocted’ in order to gain an advantage at the first custody hearing. He was very critical of her “manipulative nature.” Nevertheless, after referring to the best interests of the children, he again awarded custody of the children to the mother. He did this after noting that the mother was intelligent and articulate, a capable and caring mother according to Dr. Symons’ report, had presented an attractive “plan” for the children, and was in a sound and supportive marriage with Mr. Moreland giving the children the advantage of living in a two parent home. He also noted that the children appeared to be properly cared for while in the mother’s care.
ISSUES
[11] The father argued that the judge erred by misapprehending the evidence, by inappropriately weighing the evidence, by making a decision that was clearly wrong, and by making statements in his decisions that raise a reasonable apprehension of bias.
STANDARD OF REVIEW
[12] The Supreme Court of Canada has made it clear that courts of appeal are to give considerable deference to decisions of trial judges in custody matters. We are not to retry the case and substitute our conclusions from the evidence for those of the trial judge even if none of us may have made the findings of fact he or she did had we tried the case. We are only to intervene if the trial judge made a material error, seriously misapprehended the evidence or made an error of law; Van de Perre v. Edwards, [2001] 2 S.C.R. 1014 :
¶ 11 In reviewing the decisions of trial judges in all cases, including family law cases involving custody, it is important that the appellate court remind itself of the narrow scope of appellate review. L'Heureux‑Dubé J. stated in Hickey v. Hickey, [1999] 2 S.C.R. 518, at paras. 10 and 12:
[Trial judges] must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties and to their children. Because of its fact‑based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed.
. . .
There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently. [Emphasis added]
¶ 12 Hickey involved the appellate review of support orders, but the principles related to appellate review discussed therein are equally applicable to orders concerning child custody. This is where the British Columbia Court of Appeal fell into error. Although Newbury J.A. cited Hickey and discussed the narrow scope of review, at para. 6, she stated:
As L'Heureux‑Dubé J. observed in Hickey, there are strong reasons for this deferential standard in family law cases: most importantly, it promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Still, the interests of the child, being paramount, must prevail over those of the parties and of society in finality, and appellate courts must do more than "rubber‑stamp" trial judgments unless serious errors appear on their face. Otherwise, the possibility for clear injustice exists. As indicated by the passages quoted above, a trial court's ignoring of relevant evidence, or the drawing of incorrect conclusions from the evidence, may also require appellate interference. [Emphasis added.]
This statement seems to imply that Hickey and the basic principles of appellate review are not fully applicable to child custody cases. The approach of the Court of Appeal is wrong. The narrow power of appellate review does not allow an appellate court to delve into all custody cases in the name of the best interests of the child where there is no material error as decided in Hickey. The Court of Appeal is not in a position to determine what it considers to be the correct conclusions from the evidence. This is the role of the trial judge. . . .
(Underlining in original) (Bolding added)
ANALYSIS
[13] An initial concern with respect to this appeal was whether the judge’s first decision had been appealed within the time limits provided by Civil Procedure Rule 62.02(1). That Rule provides that an appeal, other than a tribunal appeal, shall be commenced no later than 30 days from the date of the order for judgment appealed from, or if no order has been made, from the date of the decision. The father’s notice of appeal was filed over seven months after the order giving effect to the judge’s first decision. In the particular circumstances of this appeal, it is not necessary that I resolve this concern. My decision would be the same whether I considered both decisions or only the review decision which was appealed within the time limits provided.
[14] The father’s arguments with respect to the judge’s misapprehension of the evidence and inappropriate weight given to the evidence by the judge for the most part relate to Dr. Symons’ report.
[15] The judge stated the following with respect to Dr. Symons’ report in his first decision:
[32] Insofar as the [mother] is concerned, there are two positive factors that weigh heavily in her favour. First, is the fact that Dr. [Symons] has recommended quite strongly that custody and primary care of the children should be with the [mother]. Dr. [Symons] completed an extensive examination and review of the family situation and after observing the conduct of the children with each parent he concluded that it was in their best interests to be under the primary care of their mother, the petitioner. In my opinion, Dr. [Symons] assessment was done in an objective, thorough and fair manner and his recommendations should be given a great deal of weight.
[16] In his review decision he stated:
[13] Fortunately, there is another side to her character. She is obviously an intelligent and articulate person. According to the report of Dr. [Symons], presented at the original trial, she demonstrates the qualities of a capable and caring mother.
[17] According to the father the judge misapprehended the evidence because he did not understand that Dr. Symons recommended custody be given to the mother at a time when there was no finding that she used illegal drugs prior to meeting Mr. Moreland (which the judge found as a fact in his first decision), and at a time prior to the judge’s finding in his review decision that the mother “concocted” false allegations of sexual assault against the father to gain an advantage at the first trial. He also argued that the judge did not appreciate that at the time of Dr. Symons’ recommendation the mother was planning to continue to live in Nova Scotia (which had changed by the time of the review hearing).
[18] The report of Dr. Symons is clear in setting out the information then before him. He specifically referred to the circumstances now raised by the father as they were at the time he made his recommendation:
. . . In brief, Mr. Fraser alleged that [the mother] is a daily user of marijuana, has used cocaine, neglects the children, and abandoned them when she moved to the United States in December 2003. No evidence came forth in this assessment to support the first three allegations. . . . [The mother] alleged that Mr. Fraser has physically punished the children (e.g., pinches children when angry), has a violent background, has problems with alcohol, and has assaulted and sexually assaulted her. No evidence came forth in this assessment to support the first allegation. Clearly there are problems with alcohol in that Mr. Fraser had DUI charges, and has subsequently been caught driving without a licence. Mr. Fraser reported that he does not get his licence back until February 2006. With respect to the others, there are outstanding charges pending before the courts.
. . . While [the mother] may have one point wanted to relocate to the United States with the boys, she does not want to now.
[19] Dr. Symons also clearly set out in his report the process by which he reached his recommendation. He reviewed documents, met with the parties, observed each parent interacting with the children, received input from persons in the community with knowledge of the family, and administered several tests to each parent relating to the child-parent relationship, personality functioning and co-parental attitudes.
[20] There is nothing in the record to support the father’s argument that the judge did not know the information on which Dr. Symons based his recommendation. It would have been clear to the judge that it was for him and not for Dr. Symons to make findings of fact on disputed allegations and that, depending on his findings, he would have to assess the value of Dr. Symons’ recommendation.
[21] The father has not satisfied me that the judge misapprehended the basis of Dr. Symons’ recommendation.
[22] With respect to the father’s argument that the judge inappropriately weighed the evidence, specifically Dr. Symons’ report, it is important to remember the deference this court is to give to decisions of trial judges with respect to the weight of the evidence in custody matters. This principle was recently confirmed by this Court in Harris v. Mouland, 2006 NSCA 111 at ¶ 23. This Court is not to retry the case and substitute our conclusions for those of the trial judge absent palpable and overriding error in the appreciation of the evidence.
[23] While some of the information referred to in Dr. Symons’ report had changed by the time of the review hearing as pointed out by the father, other things had not. For example, the results of the independent tests performed on the father which Dr. Symons described as follows:
. . . Scores are compared to other parents of children, and the PCRI also has two validity scales, one of which is a social desirability scale to determine whether parents are distorting their responses to portray the parent-child relationship in an unrealistically positive light. Mr. Fraser had a social desirability score which indicates he was being unrealistically positive about his relationship with his children.
. . .
. . . Mr. Fraser scored high on the Denial Subscale [of the BPI] (T-score 64, 90th % ile). This suggests that he tends to lack insight into his own feelings and causes of his own behaviour. In addition, this suggests that he avoids unpleasant, exciting, or violent topics, and is relatively unresponsive emotionally. All other personality scores of Mr. Fraser are in the average range, but this must be interpreted with caution as a high score in Denial calls into question Mr. Fraser’s insight at completing questionnaires validly.
[24] Similarly, his conclusion from his observations of the parties interacting with the children that the mother’s parenting skills were superior to those of the father would likely have remained unchanged:
I believe that I observed very effective parenting from Ms. [Moreland], and the boys obviously have remained very close to their mother despite living apart from her for the majority of the last six months. The boys are also close to their father, and I observed reasonable parenting skills from him, although less effective than Ms. [Moreland]. . . . Daycare staff give the impression that whereas either parent provide acceptable levels of parental care, Ms. [Moreland] provides better care for child needs.
[25] The father has not satisfied me that the judge made a reviewable error in the weight he gave to Dr. Symons’ report and recommendation.
[26] The father also argued the judge erred by giving too much weight to the effect Mr. Moreland’s presence would have on the children. He argued there was too little evidence concerning Mr. Moreland for the judge to rely so heavily on his presence in the mother’s home. He fails to mention however that Mr. Moreland testified and could have been cross-examined further by him as to any additional evidence he thought was relevant. This argument is essentially a request that we retry the case, which is not our function.
[27] The father also argued that statements made in the judge’s decisions and the outcome of the decisions themselves give rise to a reasonable apprehension of bias so that they should be overturned. He argued that a reasonable apprehension of bias arose from judge’s comment on his working two months each year in the lobster fishery without specifically commenting on the fact that the mother ignored her business while she pursued her new relationship with Mr. Moreland, and on Mr. Moreland giving up his job to move to Nova Scotia to be with the mother after he became aware of the criminal charges against the father. The father argued a reasonable apprehension of bias also arose from the judge’s treatment in his first decision of the outstanding criminal charges against the father, and from the judge’s reference to the fact the children would grow up in a two parent family if custody was awarded to the mother.
[28] The test for a reasonable apprehension of bias is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude . . . “Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394. See also R. v. R.D.S., [1997] 3 S.C.R. 484, ¶ 11. The onus of demonstrating a reasonable presumption of bias lies with the person who is alleging its existence, R. v. Bertram [1989] O.J. No. 2123 (H.C.).
[29] The father has not satisfied me that the judge’s reference to him working two months a year and his failure to refer to the mother’s failure to work after she met Mr. Moreland and Mr. Moreland’s quitting his job to be with the mother gives rise to a reasonable apprehension of bias. The judge is not required to refer to each aspect of the evidence in his decisions. The fact he did not specifically mention the work habits of the mother and Mr. Moreland does not indicate he did not take them into account in reaching his decision.
[30] Nor has the father satisfied me that the judge’s reference to the fact the children would have the advantage of living in a two parent home if he granted custody to the mother give rise to a reasonable apprehension of bias. This was a factor the judge was entitled to consider along with all of the other evidence in coming to his decision.
[31] Nor am I satisfied the judge’s treatment of the charges against the father, outstanding at the time of the first hearing but dismissed prior to the review hearing, raised a reasonable apprehension of bias. In his first decision, the judge stated that he found it difficult to place the children with the father who had allegedly raped their mother, but observed that the father denied these allegations. He rightly noted the issue was properly not explored at trial because the outstanding criminal charge had yet to be determined. At the review hearing the judge knew the outcome of that charge. He was very clear in his condemnation of what he found to be the mother’s part in the charge. He stated with respect to the father:
[17] With respect to the respondent, he has been vindicated insofar as the false allegation of sexual assault is concerned. In my opinion it is in the children's best interests that he continue to play an active and significant part in the lives of the children. I am sure that time spent with him will benefit the children.
[32] Thus at the time he awarded custody to the mother at the review hearing, the judge knew there were no longer any criminal charges against the father and could have awarded custody to the father at that time if he felt it was in the best interests of the children to do so.
[33] The father’s argument that the outcome of the decisions themselves raise an apprehension of bias and his argument that the decision is clearly wrong are arguments aimed at convincing us to retry the case because the judge did not find in his favour. That is not our function.
[34] The father has not satisfied me that an informed person, viewing the record realistically and practically, and having thought the matter through, would conclude that a reasonable apprehension of bias arises in this case.
[35] Accordingly, I would dismiss the appeal without costs.
Hamilton, J.A.
Concurred in:
MacDonald, C.J.N.S.
Oland, J.A.