Court of Appeal for Ontario

Date: 2017-12-18 Docket: C62429 Judges: MacPherson, Pepall and Paciocco JJ.A.

Parties

Between

Karen Fogel Applicant (Respondent)

and

Giovanni Chiriatti Respondent (Appellant)

Counsel

Anthony Di Battista, for the appellant Grant Gold, for the respondent

Heard: December 13, 2017

Background

On appeal from the judgment of Justice Nancy L. Backhouse of the Superior Court of Justice, dated June 16, 2016, with reasons reported at 2016 ONSC 3986, and the costs order, dated September 28, 2016.

Reasons for Decision

Overview

1The appellant, Giovanni Chiriatti, appeals from the June 16, 2016 judgment of Backhouse J. granting the respondent, Karen Fogel, sole custody of the parties' son. He also appeals from the trial judge's matrimonial home valuation, division of the notional proceeds of sale, and treatment of the parties' chattels. Lastly, he seeks leave to appeal the $125,000 costs award made in favour of the respondent.

2The parties cohabited for 14 years and separated in May 2014. They have one child, a son, born July 5, 2007. At the time of trial, the respondent was 36 years of age, the appellant was 53, and their son was nine.

3On appeal, the appellant raises seven issues.

Issue 1: Custody Award

4First, the appellant challenges the award of custody in favour of the respondent, saying that the trial judge failed to consider relevant evidence, considered irrelevant evidence, and misapplied the best interests of the child test. He submits that the trial judge inappropriately found that he was opposed to a psychoeducational assessment for their son in circumstances where he had received little prior notice of the scheduled assessment, simply wished to canvas different options, and was given an inadequate opportunity to provide an informed consent for the assessment. In a similar vein, he submits that the trial judge's finding relating to their son's tooth extraction focussed on the wrong issue. He also submits that the trial judge erroneously determined that both the psychoeducational assessment and the tooth extraction were necessary, rather than determining what parenting arrangement would be in the son's best interests. Additionally, the appellant challenges the trial judge's rejection of his proposal for a "week about" access arrangement, which he argues was inconsistent with the trial judge's finding that he was an important part of his son's life. He complains that the trial judge also failed to consider that the stability in the respondent's living arrangements was attributable to him, because he had consented to the respondent having exclusive possession of the home.

5We do not accept these submissions.

6The trial judge found the appellant to be lacking in any credibility and, in contrast, accepted the evidence of the respondent. This determination was open to the trial judge to make. Fundamentally, the appellant failed to put his son's best interests ahead of his own. The trial judge did not make a determination on the necessity of either a psychoeducational assessment or a tooth extraction. Rather, she used the appellant's refusal to agree as evidence that he put his conflict with the appellant ahead of the needs of his son. She relied not only on the evidence of the respondent, but on that of two independent witnesses as well. She found that the respondent is the better parent and better suited to make decisions for the child. The finding that the appellant is an important part of his son's life and his consent to exclusive possession did not preclude the granting of custody to the appellant. The trial judge properly applied the best interests of the child test and concluded that those interests were best met by a custodial order in favour of the respondent.

7This was not an appropriate case for joint custody. The respondent provided a stable environment and had been the primary parent both before and after separation. Significantly, the parties acknowledged that they could not communicate on substantive issues relating to their son. The trial judge's reasons were well supported by the facts, and her decision is discretionary in nature and entitled to deference: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13. We see no reason to interfere with the judgment as it relates to custody and access.

Issue 2: Matrimonial Home Valuation

8Second, the appellant submits that the trial judge erred in her valuation of the matrimonial home.

9We reject this submission. The trial judge considered the evidence of the two real property valuation experts put forward by the parties and preferred the opinion of the respondent's expert over that of the appellant. The trial judge did not substitute her opinion for that of the experts. Rather, she weighed the evidence about the value of the home with the expert evidence regarding a comparable property and the impact of a swimming pool. She accepted the opinion of value proffered by the respondent's expert, which she was entitled to do. In any event, the upward adjustment she made favoured the appellant's position.

Issue 3: Adjustment for $100,000 Payment

10Third, the appellant submits that the trial judge improperly permitted the respondent an adjustment resulting from the respondent's $100,000 payment towards the property. He argues that the consent order of Wilson J. dated May 16, 2016 finalized the apportionment of the respective shares of the home and the $100,000 was credited to the respondent at paragraph 3(a) of the consent order. In oral argument, he conceded that the adjustment could have been made by Wilson J. but not by the trial judge; by that time, it was too late.

11Paragraph 3(a) of Justice Wilson's May 16, 2016 order provided that the respondent was to receive $100,000, being the prepayment of the mortgage paid by the respondent out of funds she received from an inheritance, from the average of the two appraised values of the property as at May 30, 2014. The mortgage, line of credit, and notional real estate commission of four percent were also to be deducted from the average of the appraised values. Justice Wilson then provided that the balance was to be notionally divided between the parties, however, they each would be entitled to seek further adjustment from the other's respective notional share of the proceeds subject to proper documentary proof. At trial, the respondent called expert evidence on an additional adjustment of $40,951. The trial judge accepted this expert evidence and ordered the adjustment. Based on the language of Wilson J.'s order, further adjustments were permissible. We would not give effect to this ground of appeal.

Issue 4: Security for Child Support and Section 7 Expenses

12Fourth, the appellant takes issue with the trial judge's order that an amount reflecting ten years of child support and s. 7 expenses under the Federal Child Support Guidelines, S.O.R./97-175 be secured to the respondent as a fund from the appellant's share of the notional house proceeds. The appellant submits that the trial judge failed to give proper reasons, awarded security in spite of the fact that the appellant's support payments were up to date prior to trial, and that he had contributed $8,000 to his son's private school fees. She also failed to consider the appellant's evidence at trial that he would pay support. He complains that he is unable to benefit from any present value or any future increase in value of the $211,560 that is secured by the order.

13We would not give effect to this ground of appeal. The appellant had paid no child support since separating from the respondent in May 2014 other than some private school and camp fees. He also stopped paying support contrary to the terms of an order to which he had consented after only three months, and failed to pay outstanding private school fees and s. 7 expenses despite being ordered to do so. It was only when the parties attended a court conference immediately before the trial that he made a payment on account of child support arrears and outstanding school fees. The evidence of non-compliance supported the trial judge's conclusion that there was no likelihood that the appellant would pay child support or s. 7 expenses in the future, and that security in the form of a fund was required. Given that the order was for security (as opposed to a lump sum payment), the appellant's remaining arguments have no merit. We would not give effect to this ground of appeal.

Issue 5: Calculation Error in Child Support Arrears

14Fifth, the appellant submits, and the respondent accepts, that the trial judge made a $15,156 calculation error relating to child support arrears. The error was only noticed by the parties on January 17, 2017, when the motion for security for costs for the appeal was brought. Paragraph 8 of the judgment shall be amended by deleting the sum of $33,731 and substituting the sum of $18,575 ($33,731 less $15,156 = $18,575). This is based on the number of months between the date of separation and the date of judgment being 25 months rather than the 37 months calculated by the trial judge, which provided the respondent with an extra 12 months or $15,156 of arrears of support.

Issue 6: Division of Chattels

15Sixth, the appellant submits that the trial judge erred in neglecting to address the division of chattels despite being requested to do so. He maintains that he made a claim for division of chattels in his pleadings.

16We would not give effect to this ground of appeal. The trial judge considered the four financial statements filed by the appellant. The appellant's itemization of chattels was only included in one of the four financial statements. The trial judge found that there was little documentation to support who had paid for the items claimed by the appellant, what had been paid, or current values. On the basis of the evidence before her, it was open to the trial judge to disallow this claim.

Issue 7: Costs Award

17Lastly, we see no reason to interfere with the trial judge's discretionary costs award. She properly considered the relevant factors set out in the Family Law Rules, O. Reg. 114/99. Although the respondent sought full indemnity costs of approximately $237,000, the trial judge reduced the claim to $125,000. She was entitled to do so, and her costs award is owed considerable deference: McNaughton Automotive Ltd. v. Co-operators General Insurance Co., 2008 ONCA 597, O.R. (3d) 365, at para. 27.

Disposition

18For these reasons, the appeal is dismissed, except that paragraph 8 of the June 16, 2016 judgment is to be amended to replace the sum of $33,731 with the sum of $18,575.

19The appellant shall pay the respondent her costs of the appeal fixed in the amount of $20,000 inclusive of disbursements and applicable tax, on a partial indemnity scale.