COURT FILE NO.: 488/02

DATE: 20030915

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MCRAE, THEN AND FERRIER JJ.

B E T W E E N:

JOHN LEO BURKE

Applicant/Appellant

• and -

LINDA MARIE BURKE

Respondent

Larry A. Silverberg, for the Applicant/ Appellant

J. Ralph A. Turner, for the Respondent

HEARD: September 15, 2003

FERRIER J.: (Orally)

1It is implicit in the reasons of Paisley J. that he did not consider that there had been in the context of spousal support a material change in circumstances. We agree in reference to the period prior to July 2002.

2The agreement reached in November, 1999, leading to the consent judgment was based on income in the hands of the husband in the amount of $53,000.00 per annum, approximately. The child support and spousal support was based on that amount. In fact, the husband’s income for 1999 was $84,774.00. In 2000, his income was $77,000.00 and in 2001, it was $80,000.00. With this income in the hands of the husband, the fact that the wife earned $32,000.00 approximately, in each of the latter two years would not be a material change in circumstances warranting a reduction in spousal support prior to July 1, 2002. After July 1, 2002, however, it appears that the husband continued to be unemployed and receiving benefits while the wife has continued to earn about $32,000.00 per annum.

3The motions judge was not persuaded that the applicant had made reasonable efforts to find alternate employment. In fact, the applicant refused employment at $40,000.00 per annum and sought no other position. He claims a disability yet he worked substantial periods of overtime in effect doubling his income even after his surgery in the year 2000.

4We are of the view that this is a case where the Court ought to impute income to the husband and we do so in the amount of $40,000.00 per annum as of July 1, 2002. Despite this imputation, there has been a material change in circumstances as of that date. Taking into account the income of the wife and the fact that this was a long term traditional marriage, any spousal support order should have the effect that the incomes of the parties are roughly equal. Accordingly, the respondent is entitled to spousal support up to July 1st, 2002, in the original amount of the November 19, 1999 judgment, that is to say $850.00 per month and thereafter commencing July 1, 2002, in the amount of approximately $4,000.00 per annum, rounded to $335.00 per month. The parties shall exchange sworn affidavits every six months commencing December 31, 2003, attesting to the total income received from all sources during the previous six months. Furthermore, they shall exchange by May 31st of each year commencing May, 2004, complete copies of their respective tax returns as filed. Any notices of assessment and re-assessment shall be copied to the other party forthwith.

5As to child support, there was an uncontradicted amount of $4,500.00 in child support payments which ought not to have been made. On the other hand, based on the husband’s income, he ought to have paid significantly higher amounts of child support for 1999, 2000 and 2001.

6In our view, the most appropriate way of dealing with those two factors is to set one off against the other, and accordingly, there will be no repayment of the child support payments.

7As to the $4,000.00 referred to in paragraph 6(iii) of the November, 1999 judgment, that sum was not paid in accordance with the judgment. It is not before us and not open to us to make any order in connection therewith.

8Accordingly, the order of Paisley J. is set aside and this Court’s order substituted therefore.

9The parties will also exchange forthwith full and accurate copies of their tax returns as filed for the tax year 2002, that is the tax returns that were to be filed by April, 2003.

MCRAE J.

10We endorse the record as follows, “This appeal is allowed in part in accordance with the reasons of this Court delivered by Ferrier J. The judgment of the application Judge is therefore set aside. An order will issue in accordance with reasons which will be appended hereto. Since success was divided both here and before Paisley J., there will be no costs to either party.”

MCRAE J.

THEN J.

FERRIER J.

Date of Reasons for Judgment: September 15, 2003

Date of Release: September 17, 2003

COURT FILE NO.: 488/02

DATE: 20030915

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT