C.S. v. M.S., (2010) 262 O.A.C. 225 (CA)

• Jurisdiction: Ontario
• Judge: Goudge, MacPherson and MacFarland, JJ.A.
• Neutral Citation: 2010 ONCA 196
• Citation: (2010), 262 O.A.C. 225 (CA),2010 ONCA 196,76 RFL (6th) 14,[2010] OJ No 1064 (QL),262 OAC 225,(2010), 262 OAC 225 (CA),262 O.A.C. 225,[2010] O.J. No 1064 (QL)
• Date: 11 March 2010
• Court: Court of Appeal (Ontario)

C.S. v. M.S. (2010), 262 O.A.C. 225 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. MR.071

C.S. (applicant/respondent) v. M.S. (respondent/appellant)

(C46361; 2010 ONCA 196)

Indexed As: C.S. v. M.S.

Ontario Court of Appeal

Goudge, MacPherson and MacFarland, JJ.A.

March 16, 2010.

Summary:

The Ontario Superior Court, in a decision reported [2007] O.T.C. Uned. B25, granted custody of the divorced parties' youngest child to the mother, with no access to the father. The court also issued a restraining order forbidding the father to make contact with the mother or child. Finally, the court awarded the mother costs on a full recovery basis in the amount of $320,198.85, based in part on a finding of bad faith on the part of the father throughout the "long and acrimonious" litigation. The father appealed.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 1994

Custody and access - Access - Considerations in awarding access - Conduct of parents - The trial judge granted custody of the divorced parties' youngest child to the mother, with no access to the father - The other children lived with the father and were alienated from the mother as a result of "aggressive and persistent" steps from the father - The trial judge concluded that the risk that the youngest child would be exposed to alienation, if the father were given access, would be too great - In addition, the trial judge issued a restraining order forbidding the father to make contact with the mother or child - The Ontario Court of Appeal upheld the decision absent evidential error - In addition, the restraining order was a logical and necessary corollary to the no access order - See paragraphs 1 to 8.

Family Law - Topic 2032

Custody and access - Supplementary orders - Non-molestation, restraining orders, etc. - [See Family Law - Topic 1994].

Family Law - Topic 2189

Custody and access - Practice - Costs (incl. suit money or interim costs) - The trial judge granted custody of the divorced parties' youngest child to the mother, with no access to the father - The trial judge concluded that the risk that the youngest child would be exposed to alienation, if the father were given access, would be too great - The trial judge awarded the mother costs on a full recovery basis in the amount of $320,198.85, based in part on a finding of bad faith on the part of the father throughout the "long and acrimonious" litigation - The Ontario Court of Appeal upheld the costs award - The father's conduct of the litigation over several years and the simple reality of an 18-day trial led inevitably to huge lawyers' fees on both sides - The mother won at trial and was, therefore, entitled to costs - See paragraphs 9 to 12.

Cases Noticed:

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161, consd. [para. 4].

Counsel:

George Callahan, for the appellant;

Sheilagh O'Connell, for the respondent.

This appeal was heard on March 11, 2010, by Goudge, MacPherson and MacFarland, JJ.A., of the Ontario Court of Appeal. The Court of Appeal delivered the following decision on March 16, 2010.