COURT OF APPEAL FOR ONTARIO
RE: BARBARA HANNA (Applicant/Appellant in Appeal) -and- BRENDAN HANNA (Respondent/Respondent in Appeal)
BEFORE: McMURTRY C.J.O., MacPHERSON and ARMSTRONG JJ.A.
COUNSEL: Thomas G. Bastedo, Q.C. for the appellant
Mark P. Shelston for the respondent
HEARD: October 7, 2004
RELEASED ORALLY: October 7, 2004
On appeal from the endorsement of Justice Bernard Joseph Manton of the Superior Court of Justice, sitting without a jury, dated February 27, 2004.
E N D O R S E M E N T
1The motion judge’s order varying amounts owed by the respondent to the appellant under the terms of a separation agreement was based largely on the respondent’s income figures for the years 2000 to 2003 as follows:
2000 $209,880.55
2001 $547,459.07
2002 $531,591.00
2003 $ 48,000.00
2In para. 8 of his endorsement, the motion judge concluded:
There is no doubt that a decrease in income from over $500,000.00 to $48,000.00 per annum is a material change in circumstances. This drop in income was caused by no fault of the Applicant but by the fact that the technology companies in Ottawa experienced a serious economic downturn. No one including the Applicant could anticipate such difficulties at the time that the separation agreement was negotiated and signed and whether it was or [was] not enforceable at the time is of no consequence in this case because paragraph 7 of the separation agreement says that the parties agree that a material change in circumstances may include foreseeable or unforeseeable, foreseen or unforeseen circumstances and that any of these may give rise to an application to vary.
3The figure for 2003 is demonstrably wrong. The financial statements of the respondent’s real estate company demonstrate that the respondent’s income for 2003 was at least $207,000.00.
4In our view, the essential basis for the motion judge’s order is therefore without foundation. While a decline in income from $531,591.00 to $207,000.00 is not insignificant, we are of the view that it does not provide a sufficient basis for a variation of the amounts owing under the separation agreement given that the agreement was signed a few months before the application was made and given the cyclical nature of the real estate market in which the respondent has been very successfully employed for many years.
5The appeal is therefore allowed. The order of Manton J. is set aside. The appellant is entitled to her costs of the appeal fixed at $5,000 including disbursements and Goods and Services Tax. There will be no order as to costs before Manton J.
“Roy McMurtry C.J.O.”
“J.C. MacPherson J.A.”
“Robert P. Armstrong J.A.”