COURT OF APPEAL FOR ONTARIO

DATE: 20010216

DOCKET: C31538

RE: MARGIT BARBARA WAMSLEY Petitioner (Respondent) v. WILLIAM BRIAN WAMSLEY Respondent (Appellant)

BEFORE: MORDEN, CHARRON and FELDMAN JJ.A.

COUNSEL: Paul Amey, for the Respondent (Appellant) Paul Osier, for the Petitioner (Respondent)

HEARD: February 14 and 15, 2001

On appeal from the judgment of Mr. Justice Barry H. Matheson dated January 11, 1999.

ENDORSEMENT

Released Orally: February 15, 2001

[1] It is not disputed that in determining the equalization payment, the trial judge did not, in any way, follow the steps provided for in the Family Law Act. The appellant bases his appeal on using what he submits to be the findings of fact in the reasons in a proper analysis and application of the terms of the Act. The difficulty with this approach is that there was serious disagreement before us on what the trial judge’s findings were on certain key questions of fact or questions of mixed fact and law. For example, did the respondent have a constructive trust in the Lakeshore Property?, what was the value of the respondent’s pension?, and whether there was a gift of the Long Point property. We sincerely regret that there must be a new trial.

[2] The appeal is allowed with costs, the judgment is set aside and a new trial is directed. The costs of the first trial are reserved to the new trial judge.

“J.W. Morden J.A.”

“Louise Charron J.A.”

“K. Feldman J.A.”