Court File and Parties
COURT FILE NO.: 32/07
DATE: 20080314
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, FERRIER AND SACHS JJ.
B E T W E E N:
MARIE SANDRA CAROLE GOYETTE Applicant/Respondent
- and -
RUSSELL SHANE PARKHILL Respondent/Appellant
Dani Z. Frodis, for the Applicant/ Respondent
Thomas J. MacLennan, for the Respondent/ Appellant
HEARD at Toronto: March 14, 2008
Oral Reasons for Judgment
FERRIER J.: (Orally)
[1] In reference to the argument that a trial of an issue should have been directed pursuant to Rule 15(13) of the Family Law Rules, we note the following:
[2] Neither side sought to cross-examine the other on the affidavit material filed. The appellant had counsel before Perell J. There is no evidence before us that the learned motions judge was asked to direct a trial of an issue.
[3] The learned judge below obviously had a discretion under Rule 15(13) as to whether or not a trial of an issue should be directed.
[4] We are entitled to and we do assume that the learned judge was alive to the law and chose not to exercise the discretion that he had under that rule.
[5] In reference to the general merits of the appeal, the Supreme Court of Canada has often emphasized that Appeal Courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence or unless the award is clearly wrong. The rationale for this rule is that the determination of support involves a judge in significant factual issues requiring the exercise of judicial discretion. Therefore, unless the decision is so clearly wrong as to amount to an justice, the discretionary Order of the trial judge will not be altered. (See Hickey v. Hickey, [1999] 2 S.C.R. 518 (S.C.C.)).
[6] The appeal is dismissed.
CARNWATH J.
[7] In exercising our discretion in the award of costs, we have had regard to Rule 49(10) and applied the discretion in the rule that says where an offer is made, the judgment obtained is as favourable or more favourable then regard can be given to the imposition of substantial indemnity costs and we choose to do that in this case. However, we reject the submission that we should in this instance exercise our discretion in favour of a full indemnity.
[8] We also have taken into account the application of the principles in Boucher v. Chartered Accountants and once again recall to the mind of counsel that awarding costs is not simply a matter of taking an hourly rate, applying the number of hours and arriving at a just result. In the exercise of our discretion, the Costs Endorsement reads as follows: “Costs to the respondent on a substantial indemnity basis fixed at $10,000 inclusive of fees, disbursements and applicable GST, payable 30 days.”
FERRIER J.
CARNWATH J.
SACHS J.
Date of Reasons for Judgment: March 14, 2008
Date of Release: March 20, 2008
COURT FILE NO.: 32/07
DATE: 20080314
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, FERRIER AND SACHS JJ.
B E T W E E N:
MARIE SANDRA CAROLE GOYETTE Applicant/Respondent
- and -
RUSSELL SHANE PARKHILL Respondent/Appellant
ORAL REASONS FOR JUDGMENT
CARNWATH J.
Date of Reasons for Judgment: March 14, 2008
Date of Release: March 20, 2008