DATE: 20050519

DOCKET: C42581

COURT OF APPEAL FOR ONTARIO

RE:

ROSS MICHAEL FORSYTH TAYLOR (Appellant (Applicant/Husband))– and – ANEELA HAMID TAYLOR (Respondent (Respondent/Wife))

BEFORE:

CRONK, GILLESE and ARMSTRONG JJ.A.

COUNSEL:

Allen M. Cooper

for the appellant

Aneela Taylor

in person

HEARD & RELEASED ORALLY:

May 17, 2005

On appeal from the order of Justice H. J. Keenan of the Superior Court of Justice issued and entered on November 5, 2004.

E N D O R S E M E N T

[1] The appellant appeals the order of the motions judge, issued and entered on November 5, 2004, on several grounds. Of the grounds of appeal raised by the appellant, in our view it is necessary to address only the following.

[2] First, the appellant argues that the motions judge erred by considering a lengthy brief of documents, including an unsworn and unsigned affidavit from the respondent that was accompanied by various exhibits, without providing the appellant with a meaningful opportunity to review those materials. The motions judge appears to have understood that the appellant had received a copy of the brief in sufficient time to permit a full review of it prior to argument of the motion. However, the transcript of the proceedings before the motions judge reveals that he was mistaken in this regard and that the appellant, in fact, did not receive a copy of the respondent’s materials until shortly before he was required to address them in argument. Despite the fact that the appellant twice told the motions judge that he wished to proceed on the day of the motion and the fact that the motions judge’s willingness to accede to that request is commendable, we are troubled that argument of the motion proceeded without the appellant having an adequate opportunity to review the respondent’s materials.

[3] Second, in relation to the merits of the matters in issue before the motions judge, the formal order of the motions judge references both prospective child support and arrears of child support. In contrast, the reasons of the motions judge emphasize spousal support as “the sole surviving issue” between the parties. They also refer to arrears of child support in the sum of $44,925.

[4] It is unclear from the motions judge’s reasons which parts of his support awards relate to child support as opposed to spousal support. Similarly, the basis for such awards is unclear on the record before us. Moreover, because the respondent has never filed a financial statement, to the extent that the motions judge awarded spousal support this award was not based on any analysis of the respondent’s actual financial circumstances and needs.

[5] In all these circumstances, the order of the motions judge cannot stand.

[6] For the reasons given, the appeal is allowed and the matter is remitted back to another judge of the Superior Court of Justice for rehearing. This is not a case for an award of the costs of the appeal.

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“Robert P. Armstrong J.A.”