DATE: 20060721

DOCKET: C44907

COURT OF APPEAL FOR ONTARIO

RE:

BRIDGET JONES (Applicant/Appellant) – and WAYNE JONES (Respondent)

BEFORE:

GILLESE, LANG and MACFARLAND JJ.A.

COUNSEL:

John J. Winter

for the appellant

J. David Harris-Lowe

for the respondent

HEARD & RELEASED ORALLY:

July 18, 2006

On appeal from the judgment of Justice Thomas M. Wood of the Superior Court of Appeal dated January 23, 2006.

E N D O R S E M E N T

[1] The appellant and respondent were married. When they separated, they entered into a separation agreement. Each had the benefit of legal counsel. In para. 4 of the Separation Agreement, the respondent husband agreed to buy the wife’s interest in the matrimonial home for $225,000. He paid her $100,000 but went bankrupt before paying her the balance of $125,000.

[2] By order dated January 23, 2006[^1], Wood J. recognized that the appellant was entitled to the funds but refused to characterize them as spousal support. In his view, para. 4 of the Separation Agreement “clearly” characterized the payment as a payment for the appellant’s interest in the home. In our view, he was correct. The fact that the Separation Agreement dealt with property and support issues does not mean that all money owed under its terms are for spousal support. The debt obligations related directly to the matrimonial home and the wording of the Separation Agreement clearly states that.

[3] The parties are agreed that the issue decided by the motion judge was the proper characterization of the $125,000.00 payment. We understand counsel for the husband to concede that the variation motion brought by the wife was not decided on its merits. We do not understand the wife to be precluded from bringing such a motion on proper materials.

[4] Accordingly, the appeal is dismissed. No costs to either party.

“E. E. Gillese J.A.”

“S. E. Lang J.A.:

“J. MacFarland J.A.”

[^1]: The Notice of Appeal states that it is an appeal from a judgment of Justice Wood dated January 23, 2006. However, the Judgment of Wood J. that is filed as part of the record is dated January 17, 2006. While the motion was heard on January 17, 2006, the reasons for decision are dated January 23, 2006. Therefore, it is assumed that the date of the Judgment is incorrect and should be January 23, 2006.