DATE: 20031120

DOCKET: C39355

COURT OF APPEAL FOR ONTARIO

RE: DAVID JOHN PALMER (Applicant/Respondent) and BARBARA MARGARET PALMER (Respondent/Appellant)

BEFORE: FELDMAN, GILLESE and ARMSTRONG JJ.A

COUNSEL: Josef Neubauer for the appellant No one for the respondent

HEARD: November 12, 2003

RELEASED ORALLY: November 12, 2003

On appeal from the order of Justice John E. Sheppard of the Superior Court of Justice dated December 12, 2002.

E N D O R S E M E N T

[1] We are satisfied on the evidence before us that, in coming to his determination as to quantum of spousal support, the trial judge relied on erroneous figures contained in Exhibit 6, a Support Mate calculation that had been prepared by the appellant’s counsel and was entered on consent of both parties. The error overstated the appellant’s income from employment. Her actual employment income is $10,026 per year whereas the trial judge relied on an income figure of $16,500 per year. In our view, this error is patent on the face of the record and should be rectified with the result that spousal support based on Exhibit 4L, scenario 2, in the amount of $400 a month is ordered.

[2] In making this order, we adhere to the trial judge’s apparent desire to equalize the parties’ net disposable income. We are unable to accede to the appellant’s request to depart from an equalization approach to net disposable income because there is an inadequate evidentiary basis on which to so proceed and the appellant has clearly indicated that he does not seek the remedy of a new trial.

[3] In the circumstances, there is no order as to costs.

“K. Feldman J.A.”

“E.E. Gillese J.A.”

“R.P. Armstrong J.A.”