DATE: 20040503

DOCKET: C39497

COURT OF APPEAL FOR ONTARIO

RE:

TERRANCE DAVID SLADDEN (Applicant (Respondent in Appeal)) – and – KAREN JEANETTE SLADDEN (Respondent (Appellant))

BEFORE:

GOUDGE, SIMMONS AND JURIANSZ JJ.A.

COUNSEL:

Malte Von Anrep, Q.C.

for the appellant

Roselyn Zisman

for the respondent

HEARD:

April 26, 2004

RELEASED ORALLY:

April 26, 2004

On appeal from the judgment of Justice J.W. Scott of the Superior Court of Justice dated January 15, 2003.

E N D O R S E M E N T

[1] Counsel for the appellant raises one basic issue on this appeal. He challenges the finding by the motions judge that the sale of the respondent’s interest in the business was not “bogus”, but an arm’s length transaction with a price that took into account the respondent’s lack of productivity in the business for a considerable period of time. He fairly acknowledges that this is a finding of fact. It is therefore necessary that it constitute palpable and overriding error.

[2] In our view, he cannot meet that high standard. There was ample evidence from Mr. Pettinella to support the finding. The motions judge demonstrated in her reasons that she was alive to and considered the evidence of the history of the company, the respondent’s role in it and the respondent’s conduct in relation to his legal obligations. She concluded that the sale was not bogus, but an arm’s length transaction. It is not our role to retry that conclusion of fact. Absent palpable and overriding error it must stand.

[3] Given this finding it was entirely open to the motions judge to impute income to the respondent for 2002 in the amount she did.

[4] As to the retroactivity of her order, counsel for the respondent fairly concedes that there is no reason to depart from the usual earliest commencement date of such an order, namely the date of the application to vary. We would therefore alter the order below to that effect.

[5] Apart from this amendment the appeal is dismissed.

[6] Given the respondent’s pattern of conduct and his significant arrears in payments, this is not a case for costs.

“S.T. Goudge J.A.”

“Janet Simmons J.A.”

“R. Juriansz J.A.”

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