“J.B. seeks leave to intervene as an added party on the appeal. The mother opposes the motion. A motion of this kind is highly unusual in a custody dispute. Typically, if the child is to be heard, an application would be made for the appointment of the Children’s Lawyer to represent the child. That was not done here, and we can only presume that the reason was tactical.

A motion for leave to intervene as an added party is governed by rule 13.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:

13.01(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

J.B. satisfies all three elements of rule 13.01(1), any one of which would be sufficient. He obviously has an interest in the subject matter of the proceeding: his custody. He may be adversely affected by the judgment of the trial judge or of this court in the sense that he may object to the terms of his custody and may not obey one or more of those terms. Finally, the questions of fact and law in the proceeding are common to his parents and to him.

However, even if one or more of the elements of rule 13.01(1) is made out, the court still has discretion to refuse to make the intervention order. Ordinarily, in a custody case we would think an order permitting a child who is the subject of the dispute to be added as a party would rarely be made.

But this is not an ordinary case. In our view, granting the intervention motion is justified for two reasons. First, J.B. is [page 800] now 16 years of age. Even accepting the expert evidence at trial that he has the emotional maturity of a 13 year old, he is an intelligent young man and has reached the age where his voice is entitled to be heard by this court. Moreover, the trial judge’s order has the potential to dramatically change J.B.’s life. In the light of that potential, he ought to be able to participate in the proceeding that will determine with whom and under what terms he lives, independently of either the alienating or alienated parent.

Second, the trial judge’s order raises important and difficult issues. We think it would benefit the panel to hear J.B.’s perspective on these issues through the submissions of his own counsel. We therefore grant the motion to intervene, but on terms, which we discuss below.”

S.G.B. v. S.J.L.,2010 ONCA 578 (CanLII) at 12-17

“This court has addressed the issue of non-compliance with family law judgments pending appeal in the cases of Brophy v. Brophy (2004), 45 R.F.L. (5th) 56 (C.A.); Dickie v. Dickie (2006), 78 O.R. (3d) 1 (C.A.), rev’d 2007 SCC 15, [2007] 1 S.C.R. 346 approving dissenting reasons of Laskin J.A. on this point; and Murphy v. Murphy, 2015 ONCA 69, 56 R.F.L. (7th) 257.

Most recently in Murphy, the court refused to hear the submissions of the responding party who was in default.  In Brophyin 2004, the court discussed the alternatives when faced with this situation. One is to dismiss the appeal, another to adjourn pending compliance with the trial order. Although the court in that case then determined that it did not matter because there was no merit to the appeal, in our view, it is no longer the best practice to proceed in that way.

In our view, where an appellant wishes to be relieved of his or her trial ordered obligations pending appeal, the proper approach is to bring a stay motion where the circumstances can be brought before the court. If that is not done, then although the court may still hear the appeal in circumstances the court feels require that approach, the court will normally not hear the appeal until the trial order has been complied with.”

A.A. v. Z.G.,2016 ONCA 660 at 2-4

“In my view, to award one parent the exclusive custody of a child is to clothe that parent, for whatever period he or she is awarded the custody, with full parental control over, and ultimate parental responsibility for, the care, upbringing and education of the child, generally to the exclusion of the right of the other parent to interfere in the decisions that are made in exercising that control or in carrying out that responsibility. The foregoing, of course, does not address the matter of the respective obligations of the custodial parent and the other parent to contribute to the support of the child, nor the right, if any, of the other parent to access to the child.

By contrast, to award to both parents the joint custody of a child on the basis already described is to clothe both parents with equal parental control over, and equal ultimate parental responsibility for, the care, upbringing and education of the child, but to name one of the parents as the parent with whom the child shall ordinarily reside under that parent’s immediate direction and guidance (whether indefinitely or as otherwise stipulated), with the other parent to enjoy such access to the child as does not unreasonably impede the ability of the first to assume his or her immediate direction and guidance of the child, nor unreasonably interfere with the right of the first parent to live his or her own life separate from the other.

If the foregoing can be said to be a reasonably accurate formulation of what is involved in this kind of joint custody, it seems obvious that it is indeed an arrangement that requires maturity on the part of each parent:

(a) in accepting that the other is a person with whom he or she can share, on an equal basis, the control over and responsibility for the child which together they, as parents, must assume in making the many important decisions that must be made with respect to the child’s care, upbringing and education (including of course the child’s religious upbringing);

(b) in accepting that the child must physically reside with one or the other of them (in the words of Weatherston, J.A., in McCahill v. Robertson (1974), 17 R.F.L. 23, quoted in Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), 23 O.R. (2d) 391 at p. 396, 95 D.L.R. (3d) 529 at p. 534, 8 R.F.L. (2d) 236, to which reference has already been made: ”A child must know where its home is and to whom it must look for guidance and admonition …”), and

(c) in accepting that generous access by the other parent is an essential part of the arrangement and must be assured by some sort of agreement that can operate in such a way that it will not ultimately reduce to ruins the whole arrangement.

Above all, it requires a willingness by both parents to work together to ensure the success of the arrangement. Such a willingness must be sincere and genuine; by its very nature it is not something that can be imposed by a Court on two persons, one or both of whom may be unwilling or reluctant to accept it in all its implications. Like marriage itself if it is to succeed, it is an arrangement that has to be worked out by two persons who are determined, of their own will and in good faith, to make it work.”

Kruger v. Kruger, 1979 CanLII 1663 (ON CA) per Thorson J.A.

“The test for bias is well-settled: would a reasonable and informed person viewing the matter realistically and practically and having thought it through, conclude that the judge, consciously or unconsciously would not decide fairly? The test is easily stated. The difficulty arises in its application.

…

The threshold for finding a reasonable apprehension of bias is extremely high: See Lloyd v. Bush, 2012 ONCA 349 at para. 23. There is a strong presumption in favour of the impartiality of the trier of fact and the question of reasonable apprehension requires a highly fact-specific inquiry.

Again in Lloydas this court noted at para. 27:

In Chippewas, the court warned at para. 243 that “[i]solated expressions of impatience or annoyance by a judge as a result of frustrations … do not of themselves create unfairness.”:

Clayson-Martin v. Martin, 2015 ONCA 596 at paras 68, 71 & 72

“In dismissing the motion, the motion judge correctly applied the proposition from this court in Berry v. Berry, 2011 ONCA 705 (CanLII), 285 O.A.C. 366 that the “superordinate consideration” in a mobility case is the best interests of the child, determined from a child-centred perspective (para. 10). Accordingly, in assessing the mother’s reasons for moving, the motion judge correctly held that the only reasons relevant to the analysis were those that related to her ability to meet the needs of her son.

A motion judge’s decision not to allow a relocation is discretionary and it is not the place of this Court to engage in a rebalancing of the factors identified in Berry. However, as explained below, the motion judge made an error in principle by not characterizing the mother as the primary caregiver of the child, which led to the further error that her reasons for moving were not entitled to the serious consideration required by Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.

…

The Supreme Court of Canada held in Goertz, at para. 48, that where assessing a motion to relocate:

…the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability.

The motion judge held that in circumstances of joint and shared custody, there is no primary caregiver, and therefore neither parent’s interests can have greater weight than the other’s.

We do not agree that the legal status of joint and shared custody forecloses the possibility that one parent can be, for the purposes of a mobility motion, the primary caregiver. On the record before us, it is evident that although the parties have joint and shared custody, the mother is nevertheless the primary caregiver.”

Porter v. Bryan, 2017 ONCA 677 (CanLII) at 10, 11, 14, 15 and 16