DATE: 20030710

DOCKET: C37397

COURT OF APPEAL FOR ONTARIO

RE: JACKIE DUROCHER (Applicant (Respondent in Appeal))

– and – PAUL LAUZON (Respondent (Appellant))

BEFORE: CATZMAN, FELDMAN and GILLESE JJ.A.

COUNSEL: Cheryl A. Hodgkin

For the appellant

Luigi DiPierdomenico

For the respondent

HEARD: July 7, 2003

RELEASED ORALLY: July 7, 2003

On appeal from the judgment of Justice John H. Brockenshire of the Superior Court of Justice dated November 13, 2001.

E N D O R S E M E N T

[1] This is an appeal by Mr. Lauzon from the judgment of Justice Brockenshire where he dealt with several aspects of spousal support and ancillary orders. At the opening of the trial, the appellant’s pleadings were struck for his failure to provide undertaken information to the respondent. He was not allowed to participate in the trial. There is no appeal from that ruling. I am going to deal with the points raised by counsel on behalf of Mr. Lauzon briefly, as follows.

[2] The first point is with respect to the amount of spousal support. We are satisfied that based on the evidence that was presented, the amount of $1,515 that was reached by Justice Brockenshire was not in error and was not an amount that could be successfully challenged in this court or amended by us. That amount was, it is conceded, misstated in paragraph 8 of the judgment and should read $1,515.

[3] With respect to whether Justice Brockenshire had the authority to make an order higher than the $700 a month claimed in the Notice of Application, given that the pleadings were struck out and Mr. Lauzon was not entitled thereafter to participate in the trial. We are satisfied, after reviewing the financial statements of the respondent that had been filed at the commencement of the process as well as the financial statement that was filed at the opening of trial, that it was clear throughout that the deficit that was being experienced by Ms. Durocher was in excess of $1,600 at all times so that the amount of $1,515 was below the amount that Mr. Lauzon always knew was in issue. In the result, we are satisfied that even though no formal amendment was made, Mr. Lauzon was on notice throughout that an amount at least up to $1,600 was in issue in respect of spousal support.

[4] With respect to the issue of not making a time-limited order, we are also satisfied that it was within Justice Brockenshire’s discretion to not make a time-limited order, that he considered all of the evidence that he heard and the appropriate factors, and was well aware of the duration of the relationship and of the fact that spousal support had been paid for three years up until the time of trial. He was therefore entitled to not time-limit the order.

[5] With respect to the issue of any review of the spousal order being deferred for three years, we are also satisfied that that order was within his discretion. Whether the issue of spousal support can be reconsidered by a court on a date earlier than the three years in any circumstances, is a matter between the appellant and his counsel.

[6] With respect to the issue of access, we are satisfied that Justice Brockenshire was entitled to change the final order to allow for access to be made not at the drop off points but at the respondent’s home. He was not functus at the time he signed the order and he was therefore entitled to make that order. We would not disturb it.

[7] With respect to access at holiday times, that is not a matter for this court. It is a matter for the appellant to pursue, if so advised, at the appropriate time if he wishes to seek further access.

[8] On the issue of the medical and related benefits, we are also satisfied that Justice Brockenshire dealt with that matter in an appropriate manner. If, in fact, the benefits are not available to a former common-law spouse by the insurance policy, then the appellant is at liberty to provide that evidence either to the respondent or, if necessary, to a court and the matter will be dealt with in accordance with that evidence.

[9] With respect to the pension, it would appear that although Justice Brockenshire would have had jurisdiction to deal with the pension, he had no evidence upon which to make such an order. We would therefore set aside this aspect of his order which is the second part of paragraph 6 of the judgment, in which there is a reference to pension plan benefits of the respondent. We would set aside that portion of the order.

[10] Finally, we would not interfere with Justice Brockenshire’s discretion with respect to the issue of costs.

[11] Therefore, the appeal is allowed to the extent of the amendment of the order with respect to pension benefits, and correction of the misstated amount of spousal support to $1515. In all other respects, the appeal is dismissed.

[12] After hearing submissions with respect to costs of this appeal, we award costs to the respondent in the amount of $3,000.

Signed: ____ “M.A. Catzman J.A.”

_____ “K. Feldman J.A.”

_____ “E.E. Gillese J.A.”