Court of Appeal for Ontario

Citation: McKinnon v. McKinnon, 2011 ONCA 668

Date: 2011-10-27

Docket: C52837

Before: Goudge, Armstrong and Rouleau JJ.A.

Between:

Sheila Elizabeth McKinnon

Appellant/Applicant

and

Randall Lawrence McKinnon

Respondent/Respondent

Counsel:

Sheila Elizabeth McKinnon, appearing in person

Randall Lawrence McKinnon, appearing in person

Heard: October 7, 2011

On appeal from the judgment of Justice Heather McGee of the Superior Court of Justice dated September 17, 2010.

ENDORSEMENT

[1] The appellant raises five issues on this appeal.

[2] First she challenges the order for spousal support, saying it was based on errors in the determination of the respondent’s income and in imputing income to her.

[3] In our view, the trial judge did not err in her approach to the respondent’s income particularly in light of the fact that he had recently lost his employment at General Motors and faces a significantly worse economic future. Nor can we say she erred in imputing income to the appellant in order to reflect the Divorce Act encouragement of self-sufficiency. There was an evidentiary basis for that reasoning.

[4] Second, the appellant appeals the restraining order made against her. However, the trial judge heard the evidence and had a full opportunity to form a view about the desirability of such an order. There is no basis to interfere with what is an exercise of discretion by the trial judge.

[5] Third, the appellant says that the trial judge should have ordered that the appellant be the trustee for the respondent’s life insurance policy. We see no error in the trial judge’s decision that the trustee, who will have a legal obligation to the beneficiaries including the appellant, be an adult person with a demonstrated ability to manage finances. There is no basis to doubt the integrity of the trustee.

[6] Fourth, the appellant challenges the award of trial costs against her. Again this is a matter of discretion for the trial judge. She gave her reason for doing so and we have no basis to interfere with it.

[7] Lastly, the appellant says that the trial judge was biased and that she should therefore have a new trial. The appellant focuses on the language used by the trial judge. In our view, the trial judge was not biased but was making the findings she saw necessary to reach her conclusion. That is the role of the trial judge. It is not the role of this court. We cannot retry the case. That said, we are all of the view that in some instances the findings would have been better made in language that was more tempered. The appellant’s reaction is not entirely surprising.

[8] The appeal must be dismissed, but without costs. It is to be hoped that closing this chapter will help the parties move on with their lives after a marriage break-up which has been very sad for all concerned.

“S.T. Goudge J.A.”

“Armstrong J.A.”

“Paul Rouleau J.A.”