Pellew v. Pellew
Because the appellant did not seek a trial, did not cross-examine or respond to the respondent's affidavit evidence, the motion judge was entitled to determine credibility on the affidavit record; there was no reasonable apprehension of bias in the judge's criticism of the appellant and counsel; and the absence of a...
Source-derived case information.
- Citation
- 2016 ONCA 506
- Parties
- Appellant: Joseph Pellew; Respondent: Myrtle Vernita Pellew
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 24 June 2016
- Procedural Posture
- Family Law Motion to Set Aside Minutes of Settlement (civil Family Proceeding) / Appeal From Motion Judge Decision
- Outcome
- Appeal dismissed
- Legal Topics
- Minutes of Settlement, Credibility Findings, Reasonable Apprehension of Bias, Procedural Fairness, Court Reporting, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joseph Pellew
Appellant
Myrtle Vernita Pellew
Respondent
Procedural Posture
Family Law Motion to Set Aside Minutes of Settlement (civil Family Proceeding) / Appeal From Motion Judge Decision
Legal Issues
- 1 Whether the motion judge erred in making findings of credibility and reliability on the basis of affidavit evidence
- 2 Whether the motion judge's conduct gave rise to a reasonable apprehension of bias
- 3 Whether absence of a recording of oral argument denied the appellant natural justice or procedural fairness
Ratio Decidendi
Because the appellant did not seek a trial, did not cross-examine or respond to the respondent's affidavit evidence, the motion judge was entitled to determine credibility on the affidavit record; there was no reasonable apprehension of bias in the judge's criticism of the appellant and counsel; and the absence of a transcript did not breach natural justice, the appeal is dismissed.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed with costs to the respondent fixed at $10,000 inclusive of disbursements and taxes.
Full Case Text
Judgment text and source record
1 paragraphs
Pellew v. Pellew Collection Decisions of the Court of Appeal Date 2016-06-24 Neutral citation 2016 ONCA 506 Docket numbers C61685 Judges Sharpe, Robert J.; Lauwers, Peter D.; Miller, Bradley Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Pellew v. Pellew, 2016 ONCA 506 DATE: 20160624 DOCKET: C61685 Sharpe, Lauwers and Miller JJ.A. BETWEEN Joseph Pellew Appellant and Myrtle Vernita Pellew Respondent Carol Shirtliff-Hinds, for the appellant Annamaria Perruccio and Jonathan Frustaglio, for the respondent Heard and released orally: June 22, 2016 On appeal from the judgment of Justice F.L. Myers of the Superior Court of Justice, dated January 26, 2016. ENDORSEMENT [1] The appellant moved unsuccessfully to set aside minutes of settlement in a family law proceeding. He appeals that decision on a number of grounds. (1) Findings of credibility and reliability [2] The appellant argues that the motion judge erred in making findings of credibility and reliability on the basis of affidavit evidence. We see no merit in this ground of appeal. The appellant did not submit before the motion judge that a trial was necessary. The motion judge was entitled to determine the matter on the basis of the material the appellant had presented and the detailed response from Mr. Moubarak to the appellant’s affidavit. The appellant did not cross-examine Mr. Moubarak nor did he provide any response to his evidence. In our view, the motion judge provided fully adequate reasons for rejecting the appellant’s affidavit evidence. (2) Bias [3] We see nothing in the conduct of the motion judge capable of supporting an allegation of reasonable apprehension of bias. The motion judge’s criticism of the appellant and his counsel for having failed to notify the appellant’s former counsel of the allegation of unprofessional conduct and inadequate assistance was warranted and did not signal bias. (3) Absence of recording [4] There is no merit to the submission that the appellant was denied natural justice or procedural fairness because there was no recording of the argument of the motion. There is no legal requirement for argument to be transcribed. Both parties were represented and the court was following standard practice in dispensing with a court reporter. Conclusion [5] Accordingly the appeal is dismissed with costs to the respondent fixed at $10,000, inclusive of disbursements and taxes. “Robert J. Sharpe J.A.” “P. Lauwers J.A.” “B.W. Miller J.A.”