Court of Appeal for Ontario

Date: 2017-02-01 Docket: C62279

Judges: Weiler, Lauwers and Benotto JJ.A.

Between

Paul Robert Finamore Applicant (Respondent)

and

Sylvia Catherine Finamore Appellant (Respondent)

Counsel

Sylvia Finamore, in person

No one appearing for the respondent

Heard

January 24, 2017

On Appeal

From the judgment of Justice J.R. Belleghem of the Superior Court of Justice, dated June 4, 2014.

Endorsement

Background

[1] Mrs. Finamore appeals the terms of a final judgment in a divorce application.

[2] The parties separated in 2009 after 31 years of marriage. They have a son and a daughter who has Down's syndrome and remains a child of the marriage living with the appellant. During the marriage, the parties mortgaged the matrimonial home to purchase a business which they operated until 2012 when it went bankrupt.

[3] The appellant seeks to change the trial judge's award with respect to the equalization payment and her spousal and child support. She also asks this court to order the respondent to provide health and dental insurance for her and the daughter.

Equalization Payment

[4] The trial judge determined that the appellant was owed an equalization payment of $90,218.31. After the trial, the respondent declared personal bankruptcy. The appellant successfully moved before the trial judge to vary the final order to provide that the respondent's two RRSPs, having a total value of $161,699.10, be vested in the appellant.

[5] She now seeks a recalculation of the equalization payment primarily on the basis that certain debts should not have been treated as joint but rather attributed only to the respondent. There are two impediments to this assertion. First, any increase in the respondent's debts would result in a lower, not higher equalization payment. Second, and most important, the equalization payment was eliminated by the respondent's bankruptcy.

Spousal Support

[6] The appellant submits that the trial judge erred in imputing an income of $12,500 to her for purposes of spousal support. In making this determination, the trial judge took into account the appellant's 25 years working at a bank, her bookkeeping experience, and her testimony that her health was good and that she would like to return to work. He considered that her obligations to her daughter did not occupy all of her time as the daughter had a job at Shoppers Drug Mart. The trial judge concluded:

Absent any other evidence to guide me in this regard, I find that she is able to work, and ought to be imputed an income on a part-time basis of exactly one half of the $25,000 amount which [the respondent] argues I should impute to her.

[7] We see no error in this analysis.

Child Support

[8] The trial judge ordered child support based on the respondent's income of $70,000. The appellant advised us that the respondent has a different job now, but his income is roughly the same. She, however, is concerned about the future for her daughter, in particular, that her health might deteriorate.

[9] In the unfortunate event that her daughter develops health issues, the proper procedure would be a motion to change the child support amount at that time.

[10] The appellant also argues that the trial judge failed to award retroactive child support for the period December 2009 to December 2012, prior to the interim support award. During that time, she submits that the respondent missed payments. However, the trial judge found that, until the interim order, the parties were effectively sharing income by drawing money from the company. In addition, the respondent was paying her $300 per week. It is clear from the trial judge's reasons that he was satisfied that the child's needs were being adequately covered during the period before the interim order and a retroactive adjustment was not necessary.

Health and Dental Coverage

[11] There was no evidence before the trial judge that the respondent had health and dental insurance so he had no basis to make the order. Likewise, there is no evidence before this court that his current job provides the health and dental insurance so we are unable to make the order requested. Should circumstances change, the proper procedure here would also be a motion to change.

Disposition

[12] For these reasons, the appeal is dismissed.

K.M. Weiler J.A.

P. Lauwers J.A.

M.L. Benotto J.A.