Court of Appeal for Ontario

Citation: Nicoll v. Killin, 2008 ONCA 457

Date: 20080610

Docket: C45927

Before: MOLDAVER, SIMMONS and ROULEAU JJ.A.

Between:

DOREEN HEPBURN NICOLL

Applicant (Respondent)

And

EDWARD GEORGE KILLIN

Respondent (Appellant)

Counsel:

Laura E. Oliver for the appellant

D. Smith for the respondent

Heard and released orally: June 3, 2008

On appeal from the judgment and costs ruling of Justice Kenneth A. Langdon of the Superior Court of Justice dated August 2, 2006 and November 15, 2006, respectively.

ENDORSEMENT

[1] The appellant appeals from the judgment of Langdon J. dated August 2, 2006 ordering that the respondent mother have custody of the five children of the marriage. In addition, the trial judge ordered that payment of the equalization payment by the respondent to the appellant be delayed until July 1, 2010. In a costs ruling dated November 15, 2006, the trial judge ordered that the appellant pay to the respondent costs of the trial on a substantial indemnity basis in the amount of $203,032.50. The appellant appeals from each of these aspects of the trial judge’s orders.

1. The appeal of the custody order

[2] Prior to the trial judge’s order, the children had been living with their father in the matrimonial home under a temporary order made on December 14, 2004 that the father be the primary caregiver for the children. The appellant claims that, in effectively reversing the temporary order, the trial judge made the following errors:

i) he failed to consider the stability the children experienced while in their father’s care and the fact that the children were doing well;

ii) he failed to consider the impact of changing the custodial regime and severely limiting the contact between the children and their father;

iii) he focused unduly on the reasons for the status quo rather than the status quo itself;

iv) he failed to consider the stated wishes of the children;

v) he failed to give due consideration to the reasons of the assessor; and

vi) he gave undue weight to his finding that the appellant is a “schemer”.

In essence, the appellant contends that because of the foregoing errors the trial judge failed to properly consider the best interests of the children.

[3] We do not accept the appellant’s submissions. While it may be that the trial judge’s characterization of the father as a schemer was somewhat overstated and unnecessary, read as a whole, in our view, the trial judge’s reasons reflect a focus on the children’s best interests and the conclusion that those interests would best be served by placing them in their mother’s custody for several reasons.

[4] First, under the father’s proposal the children would be in the care of a nanny for twelve hours per day on weekdays whereas that would not be the case under the mother’s proposal.

[5] Second, the trial judge was satisfied that the father had tried to undermine the mother’s role in the children’s lives during the period the temporary order was in place and he was not satisfied that the mother would engage in similar conduct in the future.

[6] Third, although he was conscious of the difficulties the mother had experienced in the period immediately prior to, and for a period following, the separation, the trial judge was satisfied the mother had demonstrated superlative qualities as a mother previously and that her difficulties had been largely resolved.

[7] Fourth, having regard to the counselling and treatment the oldest child had received during the temporary order the trial judge believed that the child’s issues with the mother were capable of resolution.

[8] Fifth, the trial judge was satisfied that certain key aspects of the assessor’s report had been undermined by the evidence at trial. In particular, medical evidence at trial demonstrated that the mother did not have a mood disorder. Moreover, the trial judge was satisfied that the mother’s rage at the father was matched by the father’s rage at the mother and that the mother’s anger had abated. Finally, the trial judge was satisfied that the wishes of the younger children had been influenced by the older children.

[9] Absent an error in law or a material error in appreciation of the facts, the decision of a trial judge in matters of custody and access is entitled to great deference on appeal. On this issue, the trial judge gave detailed reasons following a nineteen-day trial. In our view, his essential findings were available on the evidence as was his conclusion that the children’s best interests would be served by placing them in the care of their mother. Accordingly, we would not give effect to this ground of appeal.

2. The appeal from the order delaying payment of the equalization payment

[10] We see no merit in this ground of appeal. The payment was set off against the costs order. In these circumstances, the timing of the payment is essentially irrelevant.

3. The appeal from the costs order

[11] As with a custody order, a trial judge’s decision on costs attracts significant deference. In this case, it is apparent that the trial judge was well aware of all of the factors impacting on the costs award. In our view, the appellant has not identified any error that would justify interfering with the trial judge’s decision.

4. Disposition

[12] The appeal is therefore dismissed. Costs to the respondent including the costs relating to the two earlier motions fixed at $14,500.00 inclusive of GST and disbursements. The costs order will be secured against the appellant’s interest in the matrimonial home.

“M. J. Moldaver J.A.”

“Janet Simmons J.A.”

“Paul Rouleau J.A.”