CITATION: McGoey v. McGoey, 2007 ONCA 193
DATE: 20070321
DOCKET: C45969
COURT OF APPEAL FOR ONTARIO
RE:
MICHAEL THOMAS JOSEPH McGOEY (Petitioner/Appellant) – and - MICHELLE THERESA McGOEY (Respondent/Respondent by Appeal)
BEFORE:
LANG, MacFARLAND and LaFORME JJ.A.
COUNSEL:
Michael Thomas Joseph McGoey
in person
Michelle Theresa McGoey
in person
HEARD & ENDORSED:
March 19, 2007
On appeal from the order of Justice Nancy Backhouse of the Superior Court of Justice dated August 16, 2006.
A P P E A L B O O K E N D O R S E M E N T
[1] In our view, the trial judge misapprehended the evidence on the essential point of whether there had been a material change in circumstances in these respects.
[2] First, the trial judge found there was no satisfactory explanation for the appellant’s understatement of his income at the 2003 trial. However, there was an explanation on the material before the motion judge, that the appellant had no knowledge about his one-time $80,000 bonus because it arose out of a post-trial settlement of a proceeding. The trial judge did not address that issue in her reasons.
[3] Second, the motion judge did not address whether any increase in the appellant’s income would in itself provide a foundation for the ordered increase in spousal support. This was necessary because the 2003 trial reasons took into account at least some prospective increase in that income.
[4] Third, the motion judge’s reasons do not address whether any increase in the appellant’s income would affect the quantum of spousal support, given the 2003 trial judge’s conclusions about the respondent’s ability to earn income. As well, the step down order was itself premised on the pre-existing $3,000 interlocutory order, and not upon the appellant’s trial level of income.
[5] Although we find no error in the other dispositions made by the motion judge, in our view, paras. 8 and 9 of the order dealing with spousal support must be set aside and that issue remitted for a new hearing.
[6] There will be no order as to costs.