DATE: 20040607

DOCKET: C39078

COURT OF APPEAL FOR ONTARIO

RE:

SANDRA JOAN JARDINE (Applicant (Respondent in appeal) – and – ROBERT FRANCIS JARDINE (Respondent (Appellant))

BEFORE:

MOLDAVER, GILLESE and BLAIR JJ.A.

COUNSEL:

Diane J. LaRocque

for the appellant

Suzanne L. Hillier

for the respondent

HEARD & ENDORSED:

June 3, 2004

On appeal from the order of Justice Selia S. Seppi of the Superior Court of Justice dated October 10, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] We would not admit the fresh evidence tendered by the appellant. It is not fresh because it could have been brought to the attention of the trial judge before she rendered her decision. Further, we do not believe that it would have impacted materially on the ultimate result because it is at best ambiguous. Accordingly, we would also not admit the fresh evidence tendered by the respondent.

[2] In respect of the resulting trust/gift ground of appeal, in our view, the issue is fact driven. The trial judge found as a fact that the respondent had met her onus of establishing that the appellant had made an unconditional gift of a one-half interest in all of the parties’ joint bank accounts and investment funds. The trial judge gave clear and cogent reasons for coming to that conclusion. She found that the respondent’s evidence on the subject was amply confirmed by other credible and reliable evidence. We see no basis for interfering with her finding.

[3] With respect to the amount of spousal support, we are satisfied that the trial judge applied the correct legal principles and on the evidence before her, it was open to her to fix the amount as she did given the needs and means of the parties.

[4] The appellant argued that the trial judge erred in calculating the amounts of the gift by taking a balance, from one of the U.S. bank accounts, as at a date later than the date of separation. We disagree. Having found that a gift was made of a one-half interest in the joint bank account, the gift continued so long as the joint account existed. The trial judge took the balance as of that date.

[5] Accordingly, the appeal is dismissed. Costs to the respondent on a partial indemnity basis fixed at $18,000 inclusive of GST and disbursements.