DATE: 20060927

DOCKET: C43145

COURT OF APPEAL FOR ONTARIO

RE:

TRACY ARMSTRONG (Plaintiff/Respondent) v. PATRICK JOHN ALLAN ARMSTRONG (Defendant/Appellant)

BEFORE:

DOHERTY, SIMMONS and ROULEAU JJ.A.

COUNSEL:

D. Smith

for the defendant/appellant

David A. Seed

for the plaintiff/respondent

HEARD & ENDORSED:

September 25, 2006

On appeal from the order of Justice B. H. Matheson of the Superior Court of Justice dated February 2, 2005.

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

[1] The appellant’s failure to make the support payments required by the agreement gave the judge jurisdiction to vary the support provisions in the agreement: see s. 334(4) of the Family Law Act. While it is not clear to us how the judge arrived at the conclusion he did, that conclusion is not outside of the realm of possible result given the judge’s broad discretion. We are firmly of the view, in all of the circumstances, particularly given the amounts involved, and the fact that the support obligation has terminated, that further proceedings in respect of support would not be in the interests of justice. We would not disturb this part of the order.

[2] We are persuaded that there is no evidence to support the finding at para. 19 of the reasons to the effect that the appellant failed to make full disclosure of his assets at the time the separation agreement was made. The respondent was aware of the assets and, on the evidence, had as much ability to value these assets as the appellant. The fact that the property division does not comport with the result that may have been achieved by the equalization process, is no ground to set aside that part of the agreement.

[3] Paragraph one of the order of Matheson J. dated February 2, 2005 is set aside; the rest of the order stands.

[4] Given the mixed result, there will be no order as to costs on the appeal.