Court of Appeal for Ontario

Date: December 17, 2018 Docket: C65767

Justices: Sharpe, Paciocco and Harvison Young JJ.A.

Between

Guy Gionet Applicant (Respondent)

and

Franca Pingue Respondent (Appellant)

Counsel:

• Serena Lein, for the appellant
• Guy Gionet, acting in person via teleconference

Heard: November 23, 2018

On appeal from: The order of Justice Linda M. Walters of the Superior Court of Justice, dated January 9, 2017.

Harvison Young J.A.:

Overview

1Franca Pingue appealed a judgement settling the division of matrimonial property, including a matrimonial home. At the end of her hearing on November 23, 2018, her appeal was denied, with reasons to follow. These are those reasons.

2The appellant Franca Pingue ("Ms. Pingue") and the respondent Guy Gionet ("Mr. Gionet") were married on August 10, 2003 and separated on September 2, 2013. Ms. Pingue worked as a teacher throughout the relationship. Mr. Gionet was employed at the beginning of the marriage but at a later point, he left his employment to devote his full-time efforts to the parties' family enterprise of buying, fixing and selling real estate properties. There is no dispute that Ms. Pingue earned a higher income for most of the marriage. At the heart of her position at trial, and her arguments on appeal to this court, was the view that because she had contributed more to the assets of the marriage, she should be entitled to a greater share than Mr. Gionet.

3The only issue at trial was the equalization of net family property ("NFP") which turned mainly on the value of the matrimonial home and whether it was held beneficially by both parties, or whether Ms. Pingue was the sole owner because she alone was on title as the owner. This was important to the parties because had the home been solely owned by Ms. Pingue, Mr. Gionet would not have been entitled to share in any post-separation date appreciation of the matrimonial home. As was evident from the record at trial, the matrimonial home increased in value significantly between the parties' separation in September, 2013 and the trial in August, 2016.

4While Mr. Gionet was represented at trial, Ms. Pingue was not. After a six day trial, the trial judge found that Mr. Gionet was a beneficial owner of the matrimonial home. She accepted the evidence of Mr. Gionet as to the value of the matrimonial home on the date of trial. In the result, Mr. Gionet was ordered to pay Ms. Pingue an equalization payment of $59,535.98. The trial judge awarded costs against Ms. Pingue in the amount of $50,000.

The Issues on Appeal

5Ms. Pingue submits that the trial judge erred:

1. in finding that Mr. Gionet was a beneficial owner of the matrimonial home;
2. in failing to grant an adjournment requested by Ms. Pingue four days into the trial;
3. in failing to meet her duty to assist Ms. Pingue as a self-represented litigant;
4. in failing to award Ms. Pingue an unequal division of the net family property pursuant to s. 5(6) of the Family Law Act, R.S.O. 1990, c. F.3 (the "Act").

6I find no merit to any of the grounds raised and I would dismiss the appeal for the following reasons.

7At the outset I note that the standard of review is well established: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-9; Hickey v. Hickey, [1999] 2 S.C.R. 518, at paras. 10-11.

Analysis

The Finding that Mr. Gionet Was a Beneficial Owner of the Matrimonial Home

8Ms. Pingue argues that the trial judge misapplied the law in finding that she had failed to rebut the presumption of a resulting trust in favour of Mr. Gionet. While Ms. Pingue concedes that the governing law is "well summarized" in Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, she argues that the trial judge incorrectly applied Korman, because in that case, the husband had transferred his half interest in the matrimonial home to his wife in order to defeat creditors, a fact not present in this case.

9Here, the matrimonial home was purchased solely in Ms. Pingue's name. This fact, and the fact that she contributed a disproportionate share of the mortgage and carrying costs should have been sufficient, according to Ms. Pingue, to demonstrate that the parties intended from the outset that she would be the sole beneficial and legal owner of the matrimonial home. Ms. Pingue acknowledged that the date of separation value of the matrimonial home would be equalized in any event. However, while the post-separation value of the house would accrue entirely to Ms. Pingue in the absence of a resulting trust, it would be shared with Mr. Gionet if he was, as the trial judge held, a beneficial owner.

10I do not agree that the trial judge misapplied Korman. She accurately set out the principles of Korman, and explained their application to the facts of this case.

11She began by correctly stating that the first step towards calculating any equalization payment is the determination of each party's net family property, which includes resolving all questions of title to property including any trust claims advanced (para. 30).

12The trial judge correctly referred to Korman and s. 14 of the Act, which states that:

[t]he rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they are not married…

13The trial judge correctly applied s. 14 and went on to consider whether Ms. Pingue had rebutted the presumption of a resulting trust in favor of Mr. Gionet and that he had gifted his interest in the property to her. The trial judge found, at para. 35, that Ms. Pingue had not rebutted the presumption:

…the historic property dealings between these two parties from the date of marriage is inconsistent with any other conclusion but that they were involved in a joint financial venture. Mr. Gionet testified that they would purchase, fix and then sell properties, hopefully at a profit. Title to the properties was taken in the name of one or both or a company interchangeably. Funds to purchase the properties came from joint sources.

14There was ample evidence at trial to ground this conclusion and I see no basis for intervention by this court.

15At trial, Ms. Pingue argued that she should be entitled to an unequal and larger division of the value of the matrimonial home (as well as the value of all family assets) during the marriage and up to the date of separation because she had earned more and contributed more in the course of the marriage. This position was clearly at the heart of her position at trial and in this appeal.

16As the trial judge quite properly noted in her reasons, at para. 11:

[T]he court does not conduct itself with how parties conduct their affairs while cohabiting. I have not accepted [Ms. Pingue's] attempt to claim a greater portion of family assets based on a higher percentage of contribution by her during the 10-year relationship.

17The trial judge's conclusion on this point is entirely consistent with the purpose of equalization under the Act, as expressed in s. 5(7):

The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). [Emphasis added.]

18The Act thus requires that the net family property of each spouse be shared equally upon marriage breakdown, based on a presumption that the spouses contributed equally during the marriage. This approach to the division of property reflects a clear policy choice on the part of the Ontario legislature: Best v. Best, [1999] 2 S.C.R. 868, at para. 3. In giving effect to the legislature's intent, it is not the role of the court to weigh the actual contributions made by each spouse or to "alleviate every situation that may be viewed as in some ways unfair or inequitable": Ward v. Ward, 2012 ONCA 462, 111 O.R. (3d) 81, at para. 25. Rather, equalization is mandatory, subject only to the exception set out in s. 5(6) of the Act, which I will discuss below, and to the provisions of any applicable and valid domestic contract between the married spouses pursuant to s. 2(10).

The Trial Judge's Refusal to Grant an Adjournment

19Ms. Pingue submits that the trial judge's denial of her request for an adjournment resulted in an unfair trial. She says an adjournment was warranted for the purpose of calling her expert, Mr. Ellwood, to testify as to the current value of the matrimonial home.

20The scope for appellate intervention with respect to a trial judge's denial of an adjournment is limited. The decision to deny an adjournment is discretionary, and will only be interfered with if the trial judge failed to take account of relevant factors and exercised his or her discretion unreasonably, such that the decision is contrary to the interests of justice: Boaden Catering Limited v. Real Food for Real Kids Inc., 2017 ONCA 248, at para. 17.

21There is no reason in this case to interfere with the trial judge's decision to refuse to adjourn the trial. Ms. Pingue had ample notice of the trial dates, and elected to call one expert witness, Mr. Lewis, to testify in the area of chartered accounting. This demonstrates that she was aware of the need to ensure her witnesses were available for trial.

22When asked on the first day of trial if she intended to call Mr. Ellwood as a witness, Ms. Pingue was equivocal:

THE COURT: And you will be calling Mr. Ellwood?

FRANCA PINGUE: I, I did ask. I said should the other party want to cross-examine you, I did ask, I had him sign the, all the forms and so forth early on, and then as of recently because he's been away a lot, I asked him should the other party need to cross-examine you, when and will you be available. So I'm waiting to hear back from him. He's not the easiest man to track down.

23Later that day, she confirmed that she did not intend to call Mr. Ellwood:

THE COURT: So I guess – are you, do you plan on calling him, yes or no?

FRANCA PINGUE: I, I emailed him and I said you may be, you may have to come in as a witness....

THE COURT: This is your case.

FRANCA PINGUE: I know.

THE COURT: Mr. Shapiro is saying it's not up to him.

FRANCA PINGUE: Oh, okay.

THE COURT: He is not going to call him as a witness. It's your case. In your case, do you plan on calling him as a witness?

FRANCA PINGUE: No.

THE COURT: All right. That's fine. Then I'm not going to permit the question. Go ahead.

24On the fourth day of trial Ms. Pingue changed her mind. She sought not only to call Mr. Ellwood, but to obtain a two-week adjournment for this purpose. The trial judge, who had previously advised the parties of the court's unavailability until October 2016, denied the adjournment request but allowed Ms. Pingue to call Mr. Ellwood on one of the remaining days of trial:

THE COURT: That is why I asked is do you have the witness here that you can call, so he can be cross-examined by Mr. Shapiro. I asked you that a few days ago. You are certainly free to call him now, and your case is not completed. You can call him.

A. I know, but he can't be here for two weeks.

THE COURT: I'm sorry. That is your evidence. Somebody – and that is, this is the trial. I am not adjourning the trial for two weeks. You knew when your trial date was. You knew to be prepared for trial. This is not a surprise. You have to be – have your witnesses lined up. You cannot just file the documents.

A. Okay....

25Considering Ms. Pingue's equivocations on calling Mr. Ellwood, the late timing of her adjournment request, and the significant delay an adjournment would cause given the judge's own availability, the trial judge's exercise of her discretion to deny the request was neither unreasonable nor contrary to the interests of justice.

26Moreover, Ms. Pingue was not prejudiced by the refusal of this adjournment request because the trial judge did take the expert's valuation report into consideration. However, she did not accept the value set out in the valuation report because it gave only a 2014 value ($508,000) for the matrimonial home, while Mr. Gionet's expert, Ms. Evans, opined that its value as of July 2016 was $690,000.

27In addition, while Ms. Pingue submits that the trial judge overvalued the matrimonial home, she has adduced no evidence to show that the valuation was wrong or that her expert would have offered a lower value. She could have sought to do so with a motion to adduce fresh evidence on appeal, but she did not. In these circumstances, it would be entirely speculative for us to order a new trial on this issue.

28There is no merit to this ground of appeal.

The Duty to Assist a Self-Represented Litigant

29Ms. Pingue submits that the trial judge erred in failing to provide her the assistance she was owed as a self-represented litigant. Ms. Pingue points to instances where the trial judge limited the scope of Ms. Pingue's examination of opposing witnesses on the basis that the questions were either irrelevant or repetitive. She also cites instances where the trial judge refused to admit documentary evidence that Ms. Pingue wished to file.

30The duty of a trial judge to assist self-represented litigants was canvassed most recently by this court in Dujardin v. Dujardin Estate, 2018 ONCA 597:

it is well-accepted that trial judges have special duties to self-represented litigants, in terms of acquainting them with courtroom procedure and the rules of evidence: Davids v. Davids (1999), 125 O.A.C. 375, at para. 36. However, a trial judge's duty to assist has limits. It does not entail bending the rules of evidence in an attempt to compensate for the lack of representation. The fair trial rights of opposing parties must be respected. As Brown J.A. said in Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 22: "A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented."

31In ensuring that a self-represented litigant has a fair trial, the trial judge must treat the litigant fairly and attempt to accommodate their unfamiliarity with the trial process, in order to permit them to present their case: Davids v. Davids (1999), 125 O.A.C. 375, at para. 36.

32A review of the transcript of proceedings belies Ms. Pingue's submissions on this ground. The trial judge made significant and sustained efforts throughout the course of trial to assist her. The trial judge provided detailed answers to Ms. Pingue's questions, explained various aspects of trial procedure and the rules of evidence, and allowed for brief adjournments to facilitate settlement discussions and document review.

33The trial judge's decision to focus Ms. Pingue's often lengthy examinations was an appropriate exercise of her trial management powers. The trial judge went to great lengths to provide appropriate assistance to Ms. Pingue while ensuring that the trial was also fair to Mr. Gionet and that it was managed as efficiently as possible.

34This ground of appeal is therefore also without merit.

Did the Trial Judge Err in Rejecting Ms. Pingue's Claim for an Unequal Division of the NFP Pursuant to s. 5(6) of the Act?

35Finally, Ms. Pingue argues that the trial judge erred in failing to award her an unequal division of the NFP pursuant to s. 5(6) of the Act. I find no merit in this submission.

36It is clear from the case law interpreting s. 5(6) that the test to be applied in ordering an unequal division of NFP is not "mere unfairness" but "a shock to the conscience": Ward, at para. 36. This is not such a case. Rather, the gravamen of Ms. Pingue's arguments at trial and at this appeal is her view that because she contributed more to the assets acquired in the course of marriage, she should be entitled to more now. As I have explained above, and as the trial judge recognized, this view is antithetical to the scheme of marital partnership in the Act.

Conclusion

37For these reasons, I would dismiss the appeal. Mr. Gionet did not ask for costs and accordingly, there will be no order as to costs.

Released: December 17, 2018

"Harvison Young J.A." "I agree. Robert J. Sharpe J.A." "I agree. David M. Paciocco J.A."