



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. Gilmores 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 judges award of support involved an exercise of
    discretion.  The standard of review is that set out in
Hickey v. Hickey
,
    [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.


