COURT OF APPEAL FOR ONTARIO
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
1At 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.
2At 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.
3The 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.
4At 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.
5At 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.
6The 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.
7In 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.
8In our view, the proper amount of spousal support in the
circumstances of this case is $2,500 per month.
9The fresh evidence does not affect our decision in any
material way.
10The appeal is allowed and the award of spousal support is
reduced to $2,500 per month.
11As 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."