



COURT OF APPEAL FOR ONTARIO

CITATION: Finamore v. Finamore, 2017 ONCA 84

DATE: 20170201

DOCKET: C62279

Weiler, Lauwers and Benotto JJ.A.

BETWEEN

Paul Robert Finamore

Applicant (Respondent)

and

Sylvia Catherine Finamore

Appellant (Respondent)

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

[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 Downs
    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 judges 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 respondents 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 respondents debts would result in a lower, not
    higher equalization payment. Second, and most important, the equalization
    payment was eliminated by the respondents 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 appellants 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 respondents 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 judges reasons that he was satisfied that the childs 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.


