COURT OF APPEAL FOR ONTARIO
RE:
TOM ARVANITIS (Applicant/Appellant) –and– KAREN ROSE CALLACOTT (Respondent)
BEFORE:
McMURTRY C.J.O., WEILER and ARMSTRONG JJ.A.
COUNSEL:
Winston G. Mattis and Fiona A. Docherty, for the appellant
Eva Iacobelli, for the respondent
Geoffrey Baker and Cindy Crandall, for Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services, respondent by virtue of an assignment
HEARD:
March 19 and 20, 2002
RELEASED ORALLY:
March 20, 2002
On appeal from the judgment of Justice Silia S. Seppi dated May 3, 2001.
E N D O R S E M E N T
1In our opinion, Seppi J. erred in stating that the medical reports filed by the appellant did not support his contention that he was unable to work. The medical reports filed indicated that the appellant was unable to work full-time. In light of this information, it was not open to Seppi J. to reject the medical evidence entirely.
2In view of the diametrically-opposed positions of the appellant and respondent as to the extent of the appellant’s ability to work, she ought to have exercised her discretion pursuant to Rule 69.24.1(2) to order the trial of an issue and it was an error in principle for her not to do so.
3Accordingly, we would allow the appeal, set aside the order of Seppi J. and order the trial of an issue with respect to the application to vary support.
4Costs of this appeal are in the discretion of the trial judge.
5The money, held by the appellant’s solicitor in trust as security for the costs of this appeal pursuant to his solicitor’s undertaking, are to continue to be held in trust by him as security for costs of the trial or, alternatively, paid into court to await the outcome of the proceedings.
Signed: “R.R. McMurtry C.J.O.”
“K.M. Weiler J.A.”
“Robt. P. Armstrong J.A.”