Court of Appeal for Ontario

Citation: Mihalik v. Mihalik, 2009 ONCA 110

Date: 2009-02-05

Docket: C47720

Before: Rosenberg, MacPherson and Rouleau JJ.A.

Between:

Jarmila Gabriella Mihalik

Applicant (Appellant in Appeal)

and

Peter Paul Mihalik

Respondent (Respondent in Appeal)

Counsel:

Rachel Pulis for the appellant

Harold Kim Taylor for the respondent

Heard and endorsed: February 3, 2009

On appeal from the judgment of Justice John C. Murray of the Superior Court of Justice dated August 22, 2007.

APPEAL BOOK ENDORSEMENT

[1] The trial judge gave thorough and complete reasons. He applied the correct legal test and fully explained his conclusion.

[2] The appellant submits that the trial judge placed undue emphasis on the subjective intentions of the parties and failed to properly weigh the objective evidence presented by the parties. The appellant relies upon the reasons of Wilson J. in MacMillan-Decker v. Decker (2000), 10 R.F.L. (5th) 352 (Ont. S.C.J.). In that case, Wilson J. cautioned against placing undue emphasis on the “stated” subjective intentions of the parties. But the trial judge did not do that in this case. He carefully considered the evidence in applying the test in Moldowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.). He looked at the evidence not just the parties’ stated subjective intentions. He made findings of fact that are fully supported by the record. He largely rejected the appellant’s testimony and accepted the respondent’s testimony. It is not for this court to reweigh that evidence and come to its own view as to the weight to be attached to the evidence.

[3] Accordingly, the appeal is dismissed with costs fixed at $3,500 inclusive of G.S.T. and disbursements.