Court of Appeal for Ontario

Date: 2019-07-02 Docket: C65820/M50092

Judges: Hourigan, Paciocco and Fairburn JJ.A.

Between

Lindon Jackford King Appellant

and

Lorna Ann McPherson-King Respondent

Counsel

Lindon Jackford King, self-represented

Paul Slan, for the respondent

Heard and released orally: June 27, 2019

On appeal from the judgment of Justice Harvison Young of the Superior Court of Justice, dated July 31, 2018.

Reasons for Decision

[1] This appeal arises from motions brought by the parties in their family law proceeding.

[2] The appellant moved for joint custody of one of their children, Lornella, the payment of $42,120.75 from monies held in trust for a "notional" real estate commission and legal fees associated with the sale of the matrimonial home, and reimbursement for utility costs, repairs, and contents removed by the respondent from the matrimonial home.

[3] The respondent moved for an order for sole custody of Lornella, on-going and retroactive child support, reimbursement for their child Loralyn's university expenses, the sharing of s. 7 expenses on a 60:40 basis, the setting of the real estate commission at $5,000, and payment of university expenses for their child Lindon Jr.

[4] The relief claimed by the respondent regarding custody was ordered on consent. The respondent also succeeded in her claims for child support and s. 7 expenses, as well as successfully limiting the amount to be paid for real estate commission to $5,000. The motion judge noted that she lacked jurisdiction over the issues of repairs to the matrimonial home, utility bills, and household contents, as those pertained to equalization. Equalization had been dealt with on a full and final basis per the order of Faieta J. in March 2018.

[5] Costs were awarded to the respondent in the amount of $10,500, on the basis that the respondent was entirely successful on the motions, except for the issue of the real estate legal fees. The motion judge concluded that the appellant's conduct had resulted in unnecessary time and expense to the parties and the court.

[6] On October 26, 2018, this court's registrar dismissed the appellant's appeal for delay. On November 21, 2018, Brown J.A. granted leave to the appellant to perfect his appeal on consent, on terms that required him to pay child support payments.

[7] The respondent moves to quash the appeal for failure to comply with these terms. We decline to make that order, as there is conflicting evidence regarding what payments have been made.

[8] Turning to the grounds of appeal, the appellant submits that the motion judge erred by not granting his claims regarding the non-payment of utility bills, damage to the matrimonial home, contents of the matrimonial home, and reimbursement of Loralyn's university expenses. In addition, he submits that the motion judge erred in awarding costs against him. In the alternative, the appellant asks this court to unlock a retirement pension fund awarded to him from the respondent's pension fund, to assist in meeting his financial obligations.

[9] We cannot give effect to these submissions. The motion judge correctly found that she lacked jurisdiction with respect to the issues of repairs to the matrimonial home, utility bills, and household contents, as those were part of a previous equalization order. In any event, the appellant has failed to provide sufficient evidence in support of those claims.

[10] With respect to the contribution to Loralyn's university expenses, that was a factual determination for the motion judge. It is not our role to reconsider her finding based on the appellant's assurances before us. Although it is clear that the appellant has been a dedicated father to his children and has their best interests at heart, we cannot overturn this factual finding on the record before us.

[11] There are also no grounds for this court to interfere with the motion judge's costs award. The respondent was the more successful party on the motions and costs should follow the result. The costs awarded were entirely reasonable.

[12] With respect to the request to unlock the pension, we decline to consider it. That relief was not sought below, there is no evidence before us about the pension, and the pension administrator is not a party before us.

[13] The appeal is dismissed, save for one issue. The respondent concedes that one half of a mortgage refund is owing to the appellant. An order will go on consent therefore that the respondent shall pay the appellant $103.34. The respondent is entitled to her costs of the appeal, which we fix in the all-inclusive sum of $4,500.

"C.W. Hourigan J.A."

"David M. Paciocco J.A."

"Fairburn J.A."