COURT OF APPEAL FOR ONTARIO

DATE: 20000225

DOCKET: C29839

RE: MARGARET VICKY DAVIGNON (Petitioner/Respondent)

v. RODOLPHE ERNEST DAVIGNON (Respondent/Appellant)

BEFORE: FINLAYSON, LABROSSE and GOUDGE JJ.A.

COUNSEL: James B. Barnes,
for the appellant

Leonard Levencrown,
for the respondent

HEARD: February 23, 2000

On appeal from the decision of Mr. Justice Kenneth C. Binks dated

April 24, 1998

E N D O R S E M E N T

[1] At the conclusion of the trial, the trial judge delivered

reasons for judgment in which he failed to make findings on any

of the issues in dispute and specifically failed to give reasons

for his award of support. This is most unsatisfactory and

normally would result in this court ordering a new trial.

However, such a result would impose an unnecessary hardship on

the limited resources of the parties. While reluctant to do do,

we are prepared to resolve this unfortunate situation on the

record before us.

[2] At the time of the trial in April 1998, the husband and the

wife were 51 and 50 years of age, respectively. There are no

dependent children. All issues between the parties were resolved

in May 1995 except for spousal support. From the time of

separation in September 1993, the husband was paying, on consent,

$3,250 per month in spousal support. This amount was reduced, on

motion, to $2,500 from August 1995 to the time of trial. These

proceedings to settle finally on the quantum of support were

initiated by the husband who sought a reduction in the

outstanding interim award. We note that in her evidence, the wife

stated that she was not in court to get more than the $30,000 per

year ($2,500 per month) she was receiving in support payments at

the time of the trial.

[3] The wife suffers from health problems that include

fibromyalgia and depression. She did not work during the

marriage (from 1967) and has only worked sporadically since the

separation. It is implicit in the trial judge's reasons that he

concluded that she could not be gainfully employed. She resides

in the former matrimonial home in which she has equity of

approximately $90,000.

[4] At the time of separation, both parties had assets in excess

of $300,000. At the time of trial, the husband had assets of

approximately the same amount while the wife claimed that her

capital had decreased to $114,000 because of legal fees and

living expenses.

[5] At the time of trial, the husband claimed that his annual

income was $66,558 which comprised a basic salary of $46,800 from

a business of which he is the sole shareholder, $13,258 in

interest from the sale of his previous business and a further

$6,500 from interest in a leasing company and a property

interest.

[6] The wife took the position that the husband's annual income

was over $185,000. The wife's estimate included the salary of

$36,528 paid by the business controlled by the husband to his

present wife and $75,727 ($6,310.40 per month) received by the

husband from the sale of his former business.

[7] In our view, the positions of both parties are unrealistic.

The husband's salary should not include his present wife's

salary. There is no evidence to suggest that the amount is not

reasonable or fully earned by her. The previous business was

accounted for in the earlier division of family assets and the

wife cannot claim the proceeds of its sale. On the other hand,

the husband's claimed annual income of $66,558 should be

increased. He controls his draws within the economic

restrictions of maintaining a viable business. He lives in a

residence owned by his present wife and he shares expenses with

her. He probably receives considerable benefits from business

expenses charged to his business. An imputed annual salary of

approximately $80,000 would be reasonable.

[8] In our view, the proper amount of spousal support in the

circumstances of this case is $2,500 per month.

[9] The fresh evidence does not affect our decision in any

material way.

[10] The appeal is allowed and the award of spousal support is

reduced to $2,500 per month.

[11] As stated by the wife, the court proceedings were not being

pressed at her instance. In these circumstances, we see no valid

reason why she should not get her costs of the trial and her

costs of this appeal, which are fixed at $3,500.

(signed) "G. D. Finlayson J.A."

(signed) "J. M. Labrosse J.A."

(signed) "S. T. Goudge J.A."