Mihalik v. Mihalik
The trial judge applied the correct legal test, properly considered both subjective and objective evidence, made factual findings supported by the record, and there was no basis for the appellate court to reweigh evidence; therefore the appeal is dismissed and costs are awarded.
Source-derived case information.
- Citation
- 2009 ONCA 110
- Parties
- Appellant: Jarmila Gabriella Mihalik; Respondent: Peter Paul Mihalik
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 6 February 2009
- Procedural Posture
- Civil Appeal / Appeal to Court of Appeal
- Outcome
- Appeal dismissed
- Legal Topics
- Standard of Review, Assessment of Credibility, Objective Vs Subjective Intention, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jarmila Gabriella Mihalik
Appellant
Peter Paul Mihalik
Respondent
Procedural Posture
Civil Appeal / Appeal to Court of Appeal
Legal Issues
- 1 Whether trial judge erred by placing undue emphasis on the parties' subjective intentions rather than objective evidence
- 2 Whether the appellate court should reweigh credibility findings made by the trial judge
- 3 Whether the trial judge correctly applied the test in Moldowich v. Penttinen
Ratio Decidendi
The trial judge applied the correct legal test, properly considered both subjective and objective evidence, made factual findings supported by the record, and there was no basis for the appellate court to reweigh evidence; therefore the appeal is dismissed and costs are awarded.
Court Disposition
Appeal dismissed
Orders
- Costs fixed at $3,500 inclusive of G.S.T. and disbursements
Full Case Text
Judgment text and source record
1 paragraphs
Mihalik v. Mihalik Collection Decisions of the Court of Appeal Date 2009-02-06 Neutral citation 2009 ONCA 110 Docket numbers C47720 Judges Rosenberg, Marc; MacPherson, James C.; Rouleau, Paul S. Subject Civil Decision Content CITATION: Mihalik v. Mihalik, 2009 ONCA 110 DATE: 20090205 DOCKET: C47720 COURT OF APPEAL FOR ONTARIO Rosenberg, MacPherson and Rouleau JJ.A. BETWEEN: Jarmila Gabriella Mihalik Applicant (Appellant in Appeal) and Peter Paul Mihalik Respondent (Respondent in Appeal Rachel Pulis for the appellant Harold Kim Taylor for the respondent Heard and endorsed: February 3, 2009 On appeal from the judgment of Justice John C. Murray of the Superior Court of Justice dated August 22, 2007. APPEAL BOOK ENDORSEMENT [1] The trial judge gave thorough and complete reasons. He applied the correct legal test and fully explained his conclusion. [2] The appellant submits that the trial judge placed undue emphasis on the subjective intentions of the parties and failed to properly weigh the objective evidence presented by the parties. The appellant relies upon the reasons of Wilson J. in MacMillan-Decker v. Decker (2000), 10 R.F.L. (5th) 352 (Ont. S.C.J.). In that case, Wilson J. cautioned against placing undue emphasis on the “stated” subjective intentions of the parties. But the trial judge did not do that in this case. He carefully considered the evidence in applying the test in Moldowich v. Penttinen (1980), 17 R.F.L. (2d) 376 ( Ont. Dist. Ct.). He looked at the evidence not just the parties’ stated subjective intentions. He made findings of fact that are fully supported by the record. He largely rejected the appellant’s testimony and accepted the respondent’s testimony. It is not for this court to reweigh that evidence and come to its own view as to the weight to be attached to the evidence. [3] Accordingly, the appeal is dismissed with costs fixed at $3,500 inclusive of G.S.T. and disbursements.