C.S. v. M.S.,

JurisdictionOntario
JudgeGoudge, MacPherson and MacFarland, JJ.A.
Neutral Citation2010 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)
Date11 March 2010
CourtCourt 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.

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29 practice notes
  • Court Of Appeal Summaries (July 12-16)
    • Canada
    • Mondaq Canada
    • July 21, 2021
    ...of Bias, Fresh Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 112, Van de Perre v. Edwards, 2001 SCC 60, C.S. v. M.S., 2010 ONCA 196, A.M. v. C.H., 2019 ONCA 764, Godard v. Godard, 2015 ONCA 568, M.P.M. v. A.L.M., 2021 ONCA 465, R. v. Archer (2005), 203 O.A.C. 56 (C.A.), McGregor......
  • Court Of Appeal Summaries (April 4, 2022 ' April 8, 2022)
    • Canada
    • Mondaq Canada
    • April 11, 2022
    ...1 S.C.R. 759, Goldman v. Kudelya, 2017 ONCA 300, Children's Aid Society of Owen Sound v. R.D. (2003), 178 O.A.C. 69 (C.A.), S. v. M.S., 2010 ONCA 196, Van de Perre v. Edwards, 2001 SCC 60, V.S.J. v. L.J.G. (2004), 5 R.F.L. (6th) 319, (Ont. S.C.), Merkand v. Merkand, 2006 CanLII 3888 (Ont. C......
  • Court Of Appeal Summaries (June 28-30)
    • Canada
    • Mondaq Canada
    • July 2, 2021
    ...Toronto v. M. (C.), [1994] 2 S.C.R. 165, H.E. v. M.M., 2015 ONCA 813, leave to appeal refused, [2016] S.C.C.A. No. 63, C.S. v. M.S., 2010 ONCA 196, Van de Perre v. Edwards, 2001 SCC 60, A.M. v. C.H., 2019 ONCA 764, Leelaratna v. Leelaratna, 2018 ONSC 5983, M.M.B (V.) v. C.M.V., 2017 ONSC 39......
  • Ontario Court Of Appeal Summaries (September 3 – 6 2019)
    • Canada
    • Mondaq Canada
    • September 11, 2019
    ...Joint Custody, Shared Custody, Civil Procedure, Appeals, Stay Pending Appeal, RJR-Macdonald v Canada (AG), [1994] 1 SCR 311, CS v MS, 2010 ONCA 196, Van de Perre v Edwards, 2001 SCC 60 Erland v. Ontario Ltd., 2019 ONCA 689 Keywords: Civil Procedure, Dismissal for Delay, Summary Judgment, Ru......
  • Request a trial to view additional results
26 cases
  • Jordan v. Stewart, 2013 ONSC 5037
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • August 15, 2013
    ...S.C.); Blustein v. Kronby , 2010 ONSC 1718, [2010] O.J. No. 1342; M. (A.C.) v. M. (D.) (2003), 67 O.R. (3d) 181 (C.A.); C.S. v. M.S. , 2010 ONCA 196, 76 R.F.L. (6th) 14; Chadha v. Chadha , 2006 ONCJ 345, 172 A.C.W.S. (3d) 863; Harrington v. Harrington , 2009 ONCA 190, 63 R.F.L. (6th) 274; M......
  • Catholic Children's Aid Society of Hamilton v. V. A, N. E. and M. E., 2022 ONSC 4684
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • August 31, 2022
    ...to enable him to do so. See paras 31, 32. [135]    See also S.(C.) v. S.(M.), 2007 CarswellOnt 1267 at 65, affirmed 2010 ONCA 196, 2010 CarswellOnt 1493 at 5 where the Ontario Court of Appeal confirmed the alienation finding which had been made without expert evidence.  ......
  • Fletcher v. Thomas, [2014] O.T.C. Uned. 79
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • January 6, 2014
    ...with full recovery costs under sub-rule 24(11), not bad faith. The case of S.(C.) v. S.(M.) , [2007] O.J. No. 2164 (Ont. S.C.), affirmed 2010 ONCA 196, addresses the test. I do not find any intent to deceive or to inflict harm here by either party, or any clear examples of the other intenti......
  • A.M. v. C.H., 2019 ONCA 764
    • Canada
    • Court of Appeal (Ontario)
    • September 30, 2019
    ...for the task facing a trial judge in difficult family law cases, especially those involving custody and access issues”: C.S. v. M.S., 2010 ONCA 196, 262 O.A.C. 225, at para. 4. As stated in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. Custody and access decisions are......
  • Request a trial to view additional results
4 firm's commentaries
  • Court Of Appeal Summaries (July 12-16)
    • Canada
    • Mondaq Canada
    • July 21, 2021
    ...of Bias, Fresh Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 112, Van de Perre v. Edwards, 2001 SCC 60, C.S. v. M.S., 2010 ONCA 196, A.M. v. C.H., 2019 ONCA 764, Godard v. Godard, 2015 ONCA 568, M.P.M. v. A.L.M., 2021 ONCA 465, R. v. Archer (2005), 203 O.A.C. 56 (C.A.), McGregor......
  • Court Of Appeal Summaries (April 4, 2022 ' April 8, 2022)
    • Canada
    • Mondaq Canada
    • April 11, 2022
    ...1 S.C.R. 759, Goldman v. Kudelya, 2017 ONCA 300, Children's Aid Society of Owen Sound v. R.D. (2003), 178 O.A.C. 69 (C.A.), S. v. M.S., 2010 ONCA 196, Van de Perre v. Edwards, 2001 SCC 60, V.S.J. v. L.J.G. (2004), 5 R.F.L. (6th) 319, (Ont. S.C.), Merkand v. Merkand, 2006 CanLII 3888 (Ont. C......
  • Court Of Appeal Summaries (June 28-30)
    • Canada
    • Mondaq Canada
    • July 2, 2021
    ...Toronto v. M. (C.), [1994] 2 S.C.R. 165, H.E. v. M.M., 2015 ONCA 813, leave to appeal refused, [2016] S.C.C.A. No. 63, C.S. v. M.S., 2010 ONCA 196, Van de Perre v. Edwards, 2001 SCC 60, A.M. v. C.H., 2019 ONCA 764, Leelaratna v. Leelaratna, 2018 ONSC 5983, M.M.B (V.) v. C.M.V., 2017 ONSC 39......
  • Ontario Court Of Appeal Summaries (September 3 – 6 2019)
    • Canada
    • Mondaq Canada
    • September 11, 2019
    ...Joint Custody, Shared Custody, Civil Procedure, Appeals, Stay Pending Appeal, RJR-Macdonald v Canada (AG), [1994] 1 SCR 311, CS v MS, 2010 ONCA 196, Van de Perre v Edwards, 2001 SCC 60 Erland v. Ontario Ltd., 2019 ONCA 689 Keywords: Civil Procedure, Dismissal for Delay, Summary Judgment, Ru......

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