COURT FILE NO.: 168/03

DATE: 20041129

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, MATLOW AND GROUND JJ.

B E T W E E N:

KENNETH MASON

Applicant (Appellant)

• and -

LAUREN BLATT

Respondent (Respondent)

Lawrence S. Crackower, Q.C., for the Applicant/Appellant

Sam Laufer, for the Respondent (Respondent)

HEARD: November 29, 2004

LANE J.: (Orally)

1On this appeal the appellant seeks to raise issues of an unequal division of the asset of the matrimonial home and of his request for spousal support unlimited as to time. There are other matters, but those are the ones that speak particularly to the jurisdiction of the Court.

2Under s.19(1) of the Courts of Justice Act, an appeal lies to this Court in four instances. The first is a final order of a judge in the Superior Court of Justice for:

(i) a single payment of not more than $25,000.00;

(ii) for periodic payments that amount to not more than $25,000.00.

3It will be observed that the appeal is from an order for less than those amounts. In this case, Mr. Justice Jarvis ordered an equalization payment from the appellant to the respondent of $8,555.38. The Court also ordered the respondent to pay $4,000.00 in retroactive spousal support and $6,000 in spousal support in six monthly instalments, as the respondent had paid more than $4,000.00 retroactively; she obtained a credit. Adding these sums together, one reaches a figure significantly below $25,000.00. In the case of Osovetsky v. Osovetsky, O.J. No. 2368, this Court decided that the single payment and the periodic payments ordered by the Judge below should be added together for the purposes of determining the Court’s jurisdiction to hear the appeal.

4In McGrath v. Woodrow, 52 O.R. (3d) 732, the Court of Appeal stated that the privotal aspect in determining this Court’s jurisdiction, is the net payment ordered by the Court. In our case, the net payment ordered by the Court is well below $25,000.00. We observe that a far larger sum is actually at issue in the appeal. The appellant seeks some $35,000.00 in retroactive support and he disputes the calculation of his net family property and so it is clear that something in the order of $95,000.00 is at issue. However, in McGrath, the Court of Appeal stated categorically that the payment ordered by the trial court, rather than the amount at issue in the appeal, determines the jurisdiction of the appellate court. Accordingly, we are satisfied that we have jurisdiction to hear this appeal and we will now proceed to do so.

5The record has been endorsed as follows: “For reasons dictated in Court, the Court is of the opinion that jurisdiction to hear this appeal is established.”

6On the merits we see no merit in the appeal from the disposition of the family property issues. There was evidence from the wife that she had some $20,000.00 in savings at marriage and the trial judge was entitled to accept that even without bank records as confirmation. There was evidence as to the sums paid to both the husband and the wife by his parents on which the trial judge could reasonably conclude, as he did, that they were intended to benefit both recipients.

7As to support, it was urged on us that the trial judge had failed to apply the principles of Bracklow; we do not agree. The trial judge recognized “that the law supported the obligation of support although not necessarily in perpetuity.” He found the husband’s behaviour to be extreme and that an order for long-term support would do the husband a disservice. He noted that the support ordered on an interim basis had not led to any effort at rehabilitation as the husband had done nothing but continue his inappropriate behaviour, including misleading his treating professionals.

8It is clear that the trial judge considered the evidence as to the husband’s disability. He considered that the husband did suffer from some form of depression, but that his inability to support himself was due to his persistent abuse of prescription drugs obtained by falsifying his medical history. The trial judge observed that the husband had failed to make any serious effort to rehabilitate himself. There is ample evidence in this record to support those findings. While the husband has lost the support of his wife due to the marriage breakdown, the trial judge directed his mind to this fact and to the considerations set out in Bracklow. He concluded that limited support was appropriate and we cannot say that he was clearly wrong in so finding. The appeal is dismissed.

9Costs to the respondent fixed at $5,000, inclusive of disbursements and GST.

LANE J.

MATLOW J.

GROUND J.

Date of Reasons for Judgment: November 29, 2004

Date of Release: December 17, 2004

COURT FILE NO.: 168/03

DATE: 20041129

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT