Court of Appeal for Ontario

Citation: Kincl v. Malkova, 2008 ONCA 524

Date: 20080627

Docket: C44032

Before: BLAIR, JURIANSZ and EPSTEIN JJ.A.

Between:

PAVEL KINCL

Applicant (Appellant)

and

ANDREA MALKOVA

Respondent (Respondent in Appeal)

Counsel:

Jirina Bulger for Andrea Malkova and Elizabeth Keshen (office of the Children’s lawyer)

Stephen Appotive for the Trustee in Bankruptcy

Heard: June 27, 2008

On appeal from the judgment of Justice Douglas Belch of the Superior Court of Justice dated July 15, 2005.

APPEAL BOOK ENDORSEMENT

[1] Mr. Kincl did not attend. Earlier this week, he filed a Notice of Intention to act in person. When contacted by telephone he advised the court – in the presence of counsel for Ms. Malkova, the Children’s Lawyer and for the Trustee in Bankruptcy – that he no longer wishes to be involved in the appeal and cross-appeal. On that basis the appeal proceeded.

[2] On the cross-appeal Ms. Malkova seeks to set aside the trial judge’s orders as to access, property interests, and costs. We would not interfere with the trial judge’s orders respecting the property issues or costs. However, we agree that in the present circumstance a different order respecting access should be put in place.

[3] While we do not say that the trial judge’s order as to access was in error at the time it was made, the fresh evidence – which we admit on the issue of access – establishes that Veronica has not seen her father since November 2005 and that she does not want to have access at the present time. This is confirmed by the Children’s Lawyer. Veronica is almost 14 years of age and her views are entitled to considerable weight; in reality she will do what she wishes in any event and the absence of access over the past almost three years seems to confirm her views in that regard, at least for the present time. We do not think she should be in a continuing position where she may be said to be in breach of a court order.

[4] Accordingly, we allow the appeal with respect to access and substitute an order providing for access as requested by Veronica.

[5] We see no error in law in the trial judge’s decision to grant Mr. Kincl a propriety interest in the business and the house based on principles of resulting trust and partnership. His decision to apply those principles, and the basis on which he did so, are essentially factual matters and we can find no basis for interfering with those findings.

[6] Nor would we interfere with his award of costs. Costs are discretionary. The trial judge was of the view that success was divided and that the conduct of both parties was of equal character. He was entitled to make the order he did.

[7] In the result, the appeal is allowed in part with respect to access as set out above.