Court of Appeal for Ontario

Citation: Slaughter v. Slaughter, 2013 ONCA 432 Date: 2013-06-21 Docket: C56652

Before: MacPherson, Juriansz and Epstein JJ.A.

Between

Laurie E. Slaughter Applicant (Appellant on Appeal)

and

Roderick William Slaughter, Corinne Slaughter, Colette Dee Ouellet and Roderick Slaughter Respondent (Respondent in Appeal)

Counsel: Douglas Menzies for the appellant Wade Smith for the respondent Roderick William Slaughter

Heard and released orally: June 20, 2013

On appeal from the order of Justice Robert L. Maranger of the Superior Court of Justice, dated January 15, 2013.

Endorsement

[1] The parties separated on March 22, 2012 after 21 years of marriage and 24 years of cohabitation. The respondent husband has Parkinson’s disease. The appellant wife characterizes the separation as an orchestrated intervention by the husband’s children from a previous marriage.

[2] The wife brought an application for spousal support, exclusive possession of the matrimonial home, and other relief. She named the husband’s children as respondents to her application.

[3] The wife brought a motion for orders for disclosure of the husband’s medical records, the cross-examination of the husband on his affidavit, the appointment of a case management judge, and an independent expert assessment with respect to his mental competency.

[4] The motion judge dismissed the wife’s motion and granted the husband’s cross-motion to dismiss the application against the children, validate findings made under the Substitute Decisions Act that he is competent and capable of separating, and for the partition and sale of the matrimonial home.

[5] The wife on appeal seeks to reargue the issues decided by the motion judge without recognizing the standard of review in family law matters as stated in Juvatopolos v. Juvatopolos, 2005 CanLII 35677 (ON CA), [2005] O.J. No. 4181 and Hickey v Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518.

[6] The decision of the judge below is entitled to deference on appeal and the standard of review is designed to promote finality in family law litigation and to recognize the importance of the motion judge’s appreciation of the facts. It is only where the judge’s decision exceeds a generous ambit within which reasonable disagreement is possible and is plainly wrong that an appellate court is entitled to interfere.

[7] In our view, the wife has not met the stringent standard of review in this case.

[8] It seems to us the pivotal issue in this case is the motion judge’s finding that the husband is competent. The motion judge's finding that the husband is competent cannot be questioned. The motion judge relied on two separate assessments conducted by professionals qualified as capacity assessors under the Substitute Decisions Act and the representations of counsel that he was taking instructions from the husband and not the children. He considered the expert opinion tendered by the wife. He weighed the conflicting opinions. It is not our function to reweigh them. It was within the motion judge’s discretion to determine the question without permitting the wife to cross examine the husband.

[9] The finding the husband is competent drives the result of the other issues.

[10] That finding necessitated the dismissal of the wife's requests that she be advised of all future care decisions respecting the husband and for an order under the Substitute Decisions Act respecting the care and management of his affairs.

[11] The motion judge found that there was no compelling reason to suggest that the Family Law Act rights of the wife would be in any way prejudiced by the immediate listing and sale of the matrimonial home. No compelling reason was advanced on appeal.

[12] The husband’s children are not proper respondents to the wife’s family law application. The application against them was properly dismissed.

[13] Absent an error of principle this court does not review costs decisions below.

[14] The appeal is dismissed.

[15] Costs of the appeal awarded to the husband on partial indemnity basis fixed at $8000.00 inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“R.G. Juriansz J.A.”

“Gloria Epstein J.A.”