DATE: 20041112

DOCKET: C42090

COURT OF APPEAL FOR ONTARIO

RE:

JOHANNE JEANINE STARR (Applicant/Respondent) – and – RICKY STANLEY STARR (Respondent/Appellant)

BEFORE:

CATZMAN, LASKIN and BLAIR JJ.A.

COUNSEL:

Enio Zeppieri and Avril Hasselfield

for the (respondent/appellant)

Victoria Starr

for the (applicant/respondent)

HEARD & RELEASED ORALLY:

November 9, 2004

On appeal from the judgment of Justice M.J. Hatton dated June 7, 2004.

E N D O R S E M E N T

[1] The appellant seeks to set aside a “confirmation” order made by Justice Hatton pursuant to Section 19 of the Divorce Act. The order fixed the amount of child support payable under an earlier divorce judgment between the parties and also confirmed arrears of spousal support.

[2] The appellant argues that Hatton J. failed to consider his motion to rescind the arrears in the context to the confirmation proceeding. Even if the motion judge was erroneously of the view that the appellant was not seeking to terminate and rescind any arrears, however, she nonetheless reviewed the evidence and made findings of fact in relation to the same factors that would apply on such a motion. Her findings are all supported on the record and justify her imputation of income and her decision to confirm child support based on that imputed income, retroactively.

[3] The question of spousal support arrears is separate. Even if the motion judge erred in holding that Mr. Starr offered no valid reason in law why the provisional order should not be confirmed, we are not satisfied that the facts alleged in the circumstances of this case (not having been proved and being the subject of a separate proceeding) are sufficiently egregious to support the rescission of spousal arrears.

[4] The appeal is therefore dismissed with costs fixed in the amount of $10,000, including GST and disbursements.

“M.A. Catzman J.A.”

“John Laskin J.A.”

“R.A. Blair J.A.”