Brophy v. Brophy

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Laskin, Armstrong and Blair, JJ.A.
• Citation: (2004), 180 O.A.C. 389 (CA)
• Date: 04 December 2003

Brophy v. Brophy (2004), 180 O.A.C. 389 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. JA.015

Charles Brophy (appellant) v. Heather Brophy (respondent)

(C39248)

Indexed As: Brophy v. Brophy

Ontario Court of Appeal

Laskin, Armstrong and Blair, JJ.A.

January 8, 2004.

Summary:

A couple separated after 23 years of marriage. At issue, inter alia, were the equalization payment and quantum of spousal support to be paid to the wife.

The Ontario Superior Court, in a decision reported at [2002] O.T.C. Uned. 779, granted a divorce and ordered the husband to make an equalization payment of $113,000. The husband was also ordered to pay $8,000 per month in spousal support and $18,490 in costs, inclusive of disbursements. The husband appealed.

The Ontario Court of Appeal dismissed the appeal.

Family Law - Topic 2427

Maintenance of wives and children - Appeals - Hearing of appeal - Bars - A husband was ordered to pay $8,000 per month spousal support - He appealed and sought a stay pending appeal - A stay was refused - The husband ceased making the payments voluntarily - At the time of the appeal hearing, he was over $50,000 in arrears - The wife moved to dismiss the appeal for non-compliance with the support order - The Ontario Court of Appeal noted that the arrears were not small, the husband had not undertaken or made arrangements to pay them and he had not convinced the court that he was unable to pay them - While these circumstances would ordinarily justify granting the wife's motion, this was unnecessary because the court found no merit in the appeal - See paragraphs 7 to 15.

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance and awards - Awards - Periodic payments - A couple separated after a 23 year marriage - A trial judge found that the ongoing needs of the parties' three grown sons prevented the wife, a teacher, from undertaking any remunerative teaching at that time - She found that the husband's income was $242,000 annually and imputed investment income to the wife of $8,000 to $10,000 annually - She awarded the wife $8,000 support monthly - The husband appealed, arguing, inter alia, that even accepting that his annual income was $242,000, the amount of support was excessive - The Ontario Court of Appeal dismissed the appeal - The amount ordered properly reflected a relatively equal sharing of the decline in the parties' lifestyle - Though generous, the award was not unreasonable - See paragraphs 30 to 33.

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Ability to pay - [See Family Law - Topic 4010 ].

Family Law - Topic 4027

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of income or potential income of claimant - A couple separated after a 23 year marriage - A trial judge found that the ongoing needs of the parties' three grown sons prevented the wife, a teacher, from undertaking any remunerative teaching at that time - She found that the husband earned $242,000 annually and awarded the wife $8,000 support monthly - The Ontario Court of Appeal held that the trial judge did not err in not imputing income to the wife - The needs of the parties' three grown sons were not just stressful, but produced one crisis after another - See paragraphs 21 to 29.

Cases Noticed:

Elensky v. Elenskaya (1993), 50 R.F.L.(3d) 230 (B.C.C.A.), refd to. [para. 11].

Young v. Young (1976), 17 N.S.R.(2d) 375; 19 A.P.R. 375 (C.A.), refd to. [para. 11].

Parkinson v. Parkinson (1973), 3 O.R. 293 (C.A.), refd to. [para. 12].

Ott v. Ott (1982), 39 O.R.(2d) 260 (C.A.), refd to. [para. 14].

Linton v. Linton (1990), 42 O.A.C. 328; 1 O.R.(3d) 1 (C.A.), refd to. [para. 31].

Allaire v. Allaire (2003), 170 O.A.C. 72 (C.A.), refd to. [para. 31].

Andrews v. Andrews (1999), 124 O.A.C. 259; 45 O.R.(3d) 577 (C.A.), refd to. [para. 32].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 32].

Counsel:

Leonard Levencrown, for the appellant;

Philip W. Augustine, for the respondent.

This appeal was heard on December 4, 2003, by Laskin, Armstrong and Blair, JJ.A., of the Ontario Court of Appeal. Laskin, J.A., delivered the following decision for the court on January 8, 2004.