Lalonde v. Lalonde, 2009 ONCA 540

CITATION: Lalonde v. Lalonde, 2009 ONCA 540

DATE: 20090703

DOCKET: C49702

COURT OF APPEAL FOR ONTARIO

MacPherson, Cronk and MacFarland JJ.A.

BETWEEN

Garry Joseph Lalonde

Applicant (Appellant in Appeal)

And

Karen April Lalonde

Respondent (Respondent in Appeal)

Counsel:

Richard Guy, for the appellant

Gary S. Joseph, for the respondent

Heard and released orally: June 25, 2009

On appeal from the judgment of Justice P. C. Hennessy of the Superior Court of Justice dated January 25, 2008 and the costs order of Justice Hennessy dated February 28, 2008.

ENDORSEMENT

[1] The appellant, Garry Joseph Lalonde, appeals the January 25, 2008 judgment of Hennessy J. of the Superior Court of Justice in this matrimonial case, and her subsequent costs award in favour of the respondent, Karen April Lalonde. In particular, he challenges the trial judge’s decision concerning: (i) spousal support; (ii) the validity of the property provisions of the agreement entered into by the parties; (iii) the award of joint custody of the sole child of the marriage, with the primary residence of the child being with the respondent wife; (iv) the trial judge’s failure to grant a divorce to the parties; (v) the trial judge’s award of a one-half interest in the equity in the former matrimonial home in favour of the respondent, without regard to the existing mortgage on the property; and (vi) costs.

[2] The respondent does not resist the appellant’s position on the issues (iv) and (v). We agree that the relief sought by the appellant on these two matters should be granted. In particular, it appears that the trial judge mistakenly forgot to grant an order of divorce although it was sought by both parties and there was no suggestion that the legal grounds for a divorce order had not been satisfied. Accordingly, the requested divorce order is hereby granted. Further, paragraph 6 of the trial judgment is amended to provide that the respondent’s entitlement to one-half of the current appraised value of the former matrimonial home is subject to the prior payment by the parties of the principal and interest owing on the outstanding mortgage on the matrimonial home.

[3] We see no merit to the balance of the appellant’s grounds of appeal for the following reasons.

[4] First, contrary to the appellant’s contention, there was some evidence before the trial judge regarding the respondent’s financial needs and income. The respondent’s Financial Statement was filed at trial. There was also evidence regarding the history of her accommodations and employment and the funds received by her from her boyfriend. In these circumstances, as there was an evidential basis for her to do so, we are satisfied that the trial judge did not err in ordering spousal support.

[5] Second, we do not agree that the trial judge erred by concluding that the appellant had repudiated the property provisions of the agreement entered into between the parties that the appellant sought to enforce. That agreement contemplated that the respondent would be paid her share of the equity in the matrimonial home by one of two stipulated means of financing. From the date of separation to the date of trial, the husband continued to occupy the matrimonial home without taking any steps to pay the respondent any part of her share of the equity in the home. In these circumstances, regardless of the formalities attaching to the execution of the agreement in question, it was open to the trial judge to find that the appellant had repudiated the agreement and to decline to enforce it on that basis.

[6] Third, the trial judge’s decision concerning custody was amply supported by the evidential record, in particular, by the report of the Children’s Lawyer and the other evidence bearing on the best interests of the child of the marriage.

[7] Fourth, in our view, there is no basis for the appellant’s claim of procedural unfairness. The impugned rulings by the trial judge were discretionary decisions well within her jurisdiction.

[8] Finally, we see no error in the trial judge’s costs disposition in favour of the respondent.

[9] The appeal is therefore allowed in part to accord with the reasons set out above. In all other respects, the appeal is dismissed. The respondent is entitled to her costs of the appeal and of the proceedings in the Divisional Court, in the total amount of $3,000, inclusive of disbursements and GST.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“J. MacFarland J.A.”