COURT OF APPEAL FOR ONTARIO

CITATION: Gilmore v. Gilmore, 2014 ONCA 916

DATE: 20141222

DOCKET: C57161

Hoy A.C.J.O., Simmons and Tulloch JJ.A.

BETWEEN

Leslie Gilmore

Applicant

(Respondent in Appeal)

and

David Gilmore

Respondent

(Appellant in Appeal)

Christos Vitsentzatos, for the appellant

Jennifer Howard, for the respondent

Heard and released orally: December 18, 2014

On appeal from the judgment of Justice D.M. Korpan of the Superior Court of Justice, Family Branch, dated May 7, 2013.

ENDORSEMENT

[1] The appellant appeals from a 2013 order awarding lump sum and periodic spousal support to the respondent. The appellant submits that the trial judge erred in failing to impute income to the respondent and further erred in failing to take account of the disposition by the respondent of her business. We do not accept these submissions.

[2] At paragraphs 44 and 45 of her reasons, the trial judge stated the following:

Ms. Gilmore is now age 51. She never held a full time job during the 19 ½ year marriage. Her work experience involved physical tasks which she can no longer do. She has a high school education and no special skills or training. Of her earnings provided to the court the most she earned was $13,532 in 2004 which included her WSIB pension in an unspecified amount. In her last year of operating Busy Bee in 2008 her income from Busy Bee was $7,277.25.

I believe Ms. Gilmore’s evidence and accept the reports of her physicians that she is ill and in pain. I find that Ms. Gilmore is not intentionally unemployed and I am not prepared to impute income to her in the circumstances.

[3] These are findings of fact. They were open to the trial judge on the record before her. The appellant has failed to establish palpable and overriding error. The trial judge’s award of support involved an exercise of discretion. The standard of review is that set out in Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518. Absent an error in principle, a significant misapprehension of the evidence or unless the award is clearly wrong, an appellate court must not interfere. The appellant has not established any such error.

[4] The appeal is dismissed. Costs are fixed at $1,500 inclusive of disbursements and all applicable taxes, payable to the respondent at the rate of $100 per month.

“Alexandra Hoy A.C.J.O.”

“Janet Simmons J.A.”

“M. Tulloch J.A.”