COURT OF APPEAL FOR ONTARIO

DATE: 2005-10-12

DOCKET: C42620

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

[1] The 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

[2] The 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.

[3] These 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

[4] The 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.

[5] The 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

[6] Accordingly, 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.”