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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 12-22-2021, 10:11 PM
arbortrail22 arbortrail22 is offline
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Default Motion to Remove a Judge from a Case

Other side requested the judge in our urgent motion and subsequent urgent motion recuse themselves for procedural issues going forward into the next hearing. What are the reasons and how would a judge step out of the case? The other side has lost the past 2 motion hearings…

Last edited by arbortrail22; 12-22-2021 at 10:11 PM. Reason: Words
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Old 12-23-2021, 11:28 AM
Kinso Kinso is offline
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From: Fontaine v. Canada (Attorney General), 2018 ONSC 4182 (CanLII)


Quote:
[9] Bias is a condition or state of mind that sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case. Judicial bias is a leaning, inclination, bent, or predisposition towards one side or another for a particular result, and it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction.[3]

[10] The test for a reasonable apprehension of bias was set out by Justice de Grandpré in his dissenting judgment in Committee for Justice and Liberty v. National Energy Board,[4] and the test was approved and adopted by the Supreme Court of Canada in R. v. Valente[5] and in R. v. S.(R.D.).[6] 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 consciously or unconsciously would not decide the matter fairly. In R. v. S.(R.D.),[7] Justice Cory stated: “Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair.”

[11] The determination of whether there is a reasonable apprehension of bias is an objective, fact-specific inquiry in relation to the facts and circumstances of a particular matter.[8] The test for a reasonable apprehension of bias has two elements of objectivity: (1) the measure is that of the reasonable and informed person; and (2) his or her apprehension of bias must be reasonable.[9] The record must be assessed in its totality from the perspective of a reasonable observer who attended the whole hearing.[10] In determining whether a judge’s presumption of impartiality has been displaced, his or her individual comments or conduct during the hearing of a matter should not be considered in isolation but within the context of the entire proceedings.[11]

[12] The information of this hypothetical observer would include knowledge of the traditions of integrity and impartiality of the judiciary.[12] A judge swears an oath that he or she will be impartial, and there is a strong presumption that judges honour their oaths and do dispense justice without bias.[13] An allegation of bias or a reasonable apprehension of bias is a very serious allegation that calls into question the personal integrity of the judge and the integrity of the entire administration of justice.[14] The grounds for an apprehension of bias must be substantial,[15] but each case must be evaluated in its own particular circumstances and in light of the whole proceeding.[16] The party alleging bias has the onus of proving it, and the threshold of proof is a high one.[17]
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Old 12-27-2021, 04:36 PM
arbortrail22 arbortrail22 is offline
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Thank you for this Kinso- we used in our response. Any feedback on how often this tactic is used and how often it’s successful ? I’ve done some searching on Canlli
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Old 12-27-2021, 04:41 PM
Kinso Kinso is offline
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Very very rarely. It usually just paints the seeker as difficult and unreasonable. I would only advance this in the most unusual of situations.
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