COURT OF APPEAL FOR ONTARIO
RE:
KIMBERLEY SUE MacGREGOR (Applicant/Respondent) –and–MARK DEWEY STONE (Respondent/Appellant)
BEFORE:
LASKIN, CRONK and ARMSTRONG JJ.A.
COUNSEL:
Diane E. Klukach
for the appellant
J. Leigh Daboll
for the respondent
HEARD & RELEASED ORALLY:
October 4, 2005
On appeal from the judgment of J.R. Henderson J. of the Superior Court of Justice, dated October 14, 2004 and November 23, 2004.
E N D O R S E M E N T
1The appellant challenges two aspects of the trial judge’s judgment: first, the trial judge’s orders concerning decision-making for the medical treatment and care of the child of marriage; and second, the trial judge’s costs award in favour of the respondent.
1. Decision-Making Concerning Medical Treatment and Care
2The trial judge ordered that the parties were to have joint responsibility for making major decisions about the health of the child of the marriage, including decisions regarding her medical treatment and care. He also ordered that the parties were to follow the advice of the primary care medical doctor of the child of the marriage concerning all medical treatment and investigation into the child’s gastrointestinal problems. Further, he ordered that either party could use naturopathic services or remedies for the purpose of dealing with the medical conditions of the child of the marriage, provided that these were used in conjunction with the services of her medical doctors and that the medical doctors were made aware of the naturopathic services.
3These orders were open to the trial judge on the record before him in the best interests of the child of marriage. We are not persuaded that they are tainted by any overriding or palpable error.
2. Costs Award
4The central issues at trial concerned the primary place of residence of the child of the marriage and decision-making regarding her on-going medical treatment and care. On both of these matters, the trial disposition favoured the respondent. Under the Family Law Rules, therefore, the respondent was presumptively entitled to her costs.
5The trial judge awarded the respondent her costs for trial preparation and counsel fees at trial in the amount of $50,000 plus disbursements and Goods and Services Tax. In our view, the trial judge made no error in principle in awarding these costs to the respondent. Nor is the award plainly wrong. Accordingly, it is not open to this court to interfere with this discretionary costs award.
3. Disposition
6Accordingly, the appeal is dismissed. The respondent is entitled to her costs of the appeal, fixed in the amount of $7,500, inclusive of disbursements and Goods and Services Tax.
“John Laskin J.A.”
“E.A. Cronk J.A.”
“Robert P. Armstrong J.A.”