DATE: 20040927

DOCKET: C40130

COURT OF APPEAL FOR ONTARIO

RE:

KIMBERLY MARIE ELLIOTT (Petitioner (Appellant)) – and – KIM DUANE ELLIOTT (Respondent)

BEFORE:

SIMMONS AND CRONK JJ.A. and THEN J. (ad hoc)

COUNSEL:

Luigi DiPierdomenico

for the appellant

No one appearing

for the respondent

HEARD & ENDORSED:

September 24, 2004

On appeal from the judgment of Justice Edward Ducharme of the Superior Court of Justice dated May 9, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] There was uncontradicted evidence at trial that the respondent, who had been noted in default, had a potentially valuable asset in the form of a pension. In these circumstances, we consider that the trial judge erred in failing to direct the reference that was requested, at which the appellant may be able to lead evidence concerning the respondent’s assets and liabilities at separation and upon marriage, request that an adverse inference be drawn and lead evidence from the OMERS Pension Administrator.

[2] On the issue of spousal support the appellant concedes that the trial judge’s award was within the range, albeit at the low end. However, absent meeting the test in Hickey v. Hickey, [1999] 2 S.C.R. 518, we see no basis to interfere with the spousal support award.

[3] We accept the appellant’s submission that the trial judge overlooked evidence that would have justified an order requiring that the respondent contribute to the children’s extracurricular activities in proportion to his income at a level of $100.00/month.

[4] On the issue of the respondent’s claim for damages for negligent or intentional infliction of nervous shock, while there was some evidence of emotional, physical and psychological abuse, on the record before us, we are not satisfied that the appellant established the necessary causal link between this abuse and the appellant’s condition to make out the cause of action.

[5] Accordingly, we would allow the appeal in part and add the following two provisions to the trial judge’s order.

i) an order directing a reference to determine whether an order equalizing the parties’ net family properties should be made, and if so, the terms of that order; and

ii) an order requiring the respondent to pay the appellant the sum of $100.00 per month on account of his share of the children’s special expenses.

[6] We make no order as to costs.