



COURT OF APPEAL FOR ONTARIO

CITATION: King v. McPherson-King, 2019 ONCA 554

DATE: 20190702

DOCKET: C65820/M50092

Hourigan, Paciocco and Fairburn JJ.A.

BETWEEN

Lindon Jackford King

Appellant

and

Lorna Ann McPherson-King

Respondent

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 Loralyns
    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
    appellants conduct had resulted in unnecessary time and expense to the parties
    and the court.

[6]

On October 26, 2018, this courts registrar dismissed the appellants
    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 Loralyns 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
    respondents 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 Loralyns university expenses, that was a
    factual determination for the motion judge. It is not our role to reconsider
    her finding based on the appellants 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 judges 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.


