CITATION: Galeano v. Dubail, 2007 ONCA 5

DATE: 20070102

DOCKET: C45419

COURT OF APPEAL FOR ONTARIO

RE:

GIUSEPPE GALEANO (Respondent/Appellant in Appeal) – and – VALERIE DUBAIL (Applicant/Respondent in Appeal)

BEFORE:

SHARPE, BLAIR and MACFARLAND JJ.A.

COUNSEL:

Michael Freeman

for the appellant

Valerie Dubail

in person

HEARD & ENDORSED:

December 21, 2006

On appeal from the draft order of Justice S.E. Greer of the Superior Court of Justice dated April 11, 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 order for retroactive spousal support must be set aside for the following reasons.

[2] First, we are satisfied that the issue was not properly raised before the motion judge. It is not referred to in the very detailed notice of motion or in anything else in the record before us.

[3] Second, the reasons of the motions judge fail to consider significant relevant factors as required by Marinangeli, 2003 CanLII 27673 (ON CA), 66 O.R. (3d) 40 (C.A.).

[4] Third, there are palpable and overriding errors in relation to the parties incomes, in particular, in the admitted change in the appellant’s income as of April 1, 2005 and the documentary evidence verifying that change.

[5] Accordingly, the appeal is allowed and the order for retroactive spousal support is set aside. In the circumstances, the appropriate remedy is to remit the issue of retroactive spousal support to the trial judge.

[6] Costs to the appellant fixed at $10,000 payable out of the respondent’s share of the moneys now held in court.