While high-conflict family law trials are not the norm, they continue to overwhelm the justice system in numbers that seem to be escalating. JP v. KS 2025 BCCA 112 is such a case.
The litigation began in September 2018 when the police were called by the parties’ 6-year-old daughter, who together with her brother, witnessed their father violently assault their mother. JP was arrested and removed from the home, while KS was admitted to hospital, an event that resulted in civil, criminal, and family law proceedings. The Ministry of Family and Child Services was also involved with the family.
The criminal trial for assault concluded in November 2020 with a guilty plea and an absolute discharge. After 4 adjournment applications were brought by JP, the civil trial commenced peremptory on JP in April 2021, where KS sought damages, resulting in a pecuniary damages award to her of $100,000 and non-pecuniary damages of $695,000. This was not the first time KS had been assaulted by her husband and his appeal of the award was dismissed.
The usual protection orders and supervised access orders followed the assault with the court noting that by the time of JP’s appeal of the trial decision, the parties had appeared in the BC Supreme Court 115 times on 107 separate days, on 18 applications brought by JP and 7 applications brought by KS.
After their 40-day trial, which had been set for 14 days, there were several additional Supreme Court appearances and 7 appearances in Court of Appeal chambers. JP was represented for only 15 days of the trial, as his lawyer was granted leave to remove himself as counsel for unspecified “ethical reasons”. JP identified his “forced” self-representation as further evidence of an unfair trial.
Trial orders included an order that KS could relocate the children to her home country of Germany, and orders for child and spousal support and division of property. The court also ordered that JP was barred from bringing any further proceedings without leave of the court for 5 years, and Madam Justice McNaughton declared herself seized for 2 years.
The focus of JP’s multiple grounds of appeal was the allegation that a reasonable apprehension of bias arose from McNaughton J’s case management oversight and her trial conduct. KS argued that the appeal should be dismissed, as JP’s overall litigation conduct, pre- trial, trial, and post-trial amounted to an egregious abuse of process. The court agreed that his conduct was deserving of rebuke and held that he used the litigation “as a tool in his ongoing coercive and controlling behavior against KS” and deprived KS and the children of their share of the value of family assets.”
Each of the parties sought to introduce new or fresh evidence on appeal with limited success. JP sought to have 4 affidavits admitted which contained transcripts of chambers hearings, evidence the trial judge had already ruled inadmissible, and correspondence between himself and opposing counsel post-trial.
KS wished to have evidence admitted illustrating JP’s breach of various court orders and the Rules of Court. Although opposed by JP, this evidence was admitted.
Citing Barendregt v. Grebliunas 2022 SCC 22 for the proposition that appeals are not to be used as a vehicle for varying a parenting order, the court referred to this excerpt:
“Litigants must not be permitted to game the system in this way: an appeal is not an opportunity to avoid the evidentiary burden in a variation proceeding; nor is it an opportunity to seek a fresh determination, after remedying gaps in a trial strategy with the assistance of the trial judge’s “preliminary” reasons. Such a tactical approach in family cases will often be at the expense of the children.”
With the exception of JP’s affidavit that contained copies of transcripts from chambers hearings, the balance of his affidavits was not admitted, with the court saying that the sole purpose of the inadmissible affidavits was to relitigate the trial, causing further uncertainty, and financial and emotional strain on the children and their mother.
The court then reviewed the long-standing legal test for a claim of reasonable apprehension of bias and highlighted the question to be answered: whether an informed person, viewing the matter realistically and practically, would think it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly. Yukon Francophone School Board v. Yukon (Attorney General) 2015 SCC 25 at para. 20.
Responding to KS’s position that a finding on the merits was unnecessary as JP’s conduct was an abuse of process and his appeal should be dismissed on that basis alone, the appeal court agreed with her characterization of his behavior but determined that they would consider the merits.
JP’s factum identified this example of bias:
“… It appeared [that] the trial judge pre-determined the outcome of the trial, and at trial tailored the evidence with excessive one-sided interventions to reverse-engineer her desired outcome, creating an unfair trial and resulting most significantly in the relocation and “misstated evidence, and misdirected or misinformed”.
He also noted that on the first occasion the parties appeared before Justice McNaughton she revealed her alleged bias, by saying “she was familiar with the parties and the civil reasons” and later she asked to be appointed as the case management judge and trial judge. The latter statement was false as the Chief Justice made the appointment when the parties requested that Justice McNaughton ask for the appointment of a case manager, but she did not request that she be appointed.
The appeal court determined that none of the examples or allegations of bias met the legal test for reasonable apprehension of bias. JP asserted additional errors made by the trial judge which were also dismissed as they concerned findings of fact with no demonstration of reversible error.
While trials with warring spouses who are represented by counsel are difficult, they pale in comparison to battling with an unreasonable in-person litigant, where emotions reach fever pitch and costs to the represented spouse escalate out of proportion to the issues to be resolved.
**This article was first published in LAW360, a publication of LexisNexis Canada