Reasons for Decision

Introduction

NEWMARKET COURT FILE NO.: FC-19-59358
DATE: 2025-05-05
ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:
Frances DiBlasi (c/o Litigation Guardian Antonella DiBlasi), Applicant
– and –
Gaetano (a.k.a. Guy) DiBlasi, Respondent

Andrew Feldstein, Nick Slinko and Kyla Johnson, Counsel for the Applicant
Shalaka Gujar and Gagan Sekhon, Counsel for the Respondent

HEARD: May 22, 23, 24, 27, 28, 29, 2024, with written closing submissions and additional submissions on April 23, 2025.

reasons for decision
D.A. Jarvis

Issues for Trial

[1] The issues for trial involve the following:

(a) Determination of the valuation date. The applicant wife (“the wife”) claims that the date is somewhere between August 30, 2013, and June 1, 2015, whereas the respondent husband (“the husband”) claims that the date is August 3, 1999.

(b) If the wife’s equalization claim is statute barred, should the court exercise its discretion to extend the time for her to advance her property claims?

(c) Determination of the parties’ net family properties.

(d) Determination of spousal support.

Appointment of Litigation Guardian

[2] On July 25, 2022, Kaufman J. appointed Antonella DiBlasi (“Antonella”), one of the parties’ daughters, to act as Litigation Guardian for her mother. Until mid-to-late 2020 the wife had been able to participate in these proceedings and instruct counsel. A January 2021 capacity assessment concluded that the wife’s declining health was such that she no longer had the requisite capacity.

Evidence at Trial

[3] The evidence at trial was a hybrid of affidavit and supplementary viva voce testimony and cross-examination, all time limited. Witnesses for the wife included Antonella, her sister Vita DiBlasi (“Vita”), brothers Vito DiBlasi (“Vito”) and Giuseppe DiBlasi (“Joe”) and granddaughter Celina DiBlasi (“Celine”). [1] Witnesses for the husband (including him) were Helen Nalayog, David Thompson and Terry Colley. Expert reports containing opinions appraising the value of various properties were entered as evidence in lieu of the experts testifying, on consent. Realty values were agreed. [2] A Statement of Agreed Facts (“SAF”) dated October 17, 2023, was filed (Exhibit 1).

The Agreement

[4] Superficially pivotal to the trial issues is a document signed by the parties, their adult children, a spouse of one of their sons and two of their daughters’ (now former) spouses. The document is dated February 18, 2005, and is entitled “AGREEMENT AND LAST WILL” (the “Agreement”). The parties say that this document is binding on them and enforceable but disagree about how it should be interpreted and its financial impact.

[5] The Agreement consists of the following recital and terms:

THE UNDERSIGNED DO HEREY (sic) FULLY UNDERSTAND AND AGREE AS FOLLOWS:

1. That all properties listed on Schedule ‘A’ (attached herewith) are the only subjects of this Agreement.
2. That in spite of the fact that all properties’ (listed on Schedule ‘A’), ownerships or deeds are registered under different names or numbered corporations, the real owners are, and will remain Gaetano and Franca Di Blasi, also known as Guy and Frances Di Blasi, as long as they live, (vitae natural durante).
3. That following the death of Gaetano and Franca Di Blasi, also known as Guy and Frances Di Blasi, all the residue of their Estate will be given and divided into equal shares to their four children, Vita, Antonella, Vito and Giuseppe, to keep or sell for cash as they should see fit.

This mutual, full, final Agreement and Last Will is executed by all of the undersigned, in the presence of each other,

[6] Schedule A reads as follows:

• Lands, House, Commercial Building, Bungalow, and Mortgage Receivables, etc.
  1. 22 Buttermill Ave. (Bakery) $650,000.00 Mortgage.
  2. 13900 Leslie, Aurora (House on 5 Acres) Rented.
  3. 1360 Bloomington Road, Aurora (Bungalow on 48 Acres). Rented.
  4. 1769 Danforth Avenue, Toronto (Commercial Building) Rented.
  5. 13950 Leslie Street, Aurora (56 Acres Land).
  6. 13825 Leslie Street, Aurora (50 Acres Land). [3]
  7. 82 Acres Land, Georgina Township (With 6 Lots Under Approval).
  8. 5 Acres Land, Port Perry, Lake Scugog (1/2 Interest with Salvatore Petralito).
  9. 6 Lots, Laval, Quebec (1/3 Interest with Giuseppe Calamia and Peter Mendolia).
  10. 18 Ing Court, Aurora (Lot 12 on 9.8 Acres Land).

Positions of the Parties

[7] The wife’s position is that the valuation date (which she calls the “separation date” in her pleadings and submissions, as does the husband) is somewhere between August 30, 2013, and June 1, 2015, because it was during this timeframe that the parties separated with no reasonable prospect of their reconciliation. [4] She contends that the 2005 document created a trust (she described it as a “Trust Agreement”) whose terms the husband breached by dealing with the properties listed in the Agreement’s Schedule A to her financial prejudice. [5] She seeks an Order amending the post-Agreement title registers to reflect the parties’ equal ownership of Schedule A properties owned directly or indirectly by the husband at the time of trial and a net payment to her of $1,511,569.51 relating to those properties sold by the husband after the Agreement was signed and whose proceeds the husband retained to his exclusive benefit.

[8] The husband’s position is that the parties separated on August 3, 1999. Consequently, the wife’s property and support claims are statute barred. The wife cannot satisfy the factors for extending time. The Agreement represented a settlement of the parties’ financial affairs, an equalization of their net family properties, and that all transactions that occurred after were done with the wife’s knowledge and consent as part of a division of the DiBlasi family estate. Nothing is owed the wife. The court should order her to transfer to him some vacant land owned by her (27 acres in Georgina Township) in exchange for a promissory note that he assigned to her when the parties settled their financial issues. Otherwise, the wife’s claims should be dismissed.

Background Facts and Relevant Procedural Events

[9] These are some of the background facts and relevant procedural events arising from the evidence:

(a) The parties were married on April 16, 1984. When the trial started, the wife was 79 years of age, and the husband was 86 years of age.

(b) The parties have four children. When the trial started, Joe was 59 years of age, Vita was 57 years of age, Antonella was 55 years of age and Vito was 45 years of age. Celine is Joe’s daughter.

(c) The wife was a homemaker. She never worked outside of the family home after the parties married.

(d) The husband was a commercial and residential developer with most of his interests centred in southern Ontario and a few in Quebec. During the marriage he bought, developed and sold realty that was registered in the parties’ names, the names of the parties’ children (and sometimes their partners), himself and third parties. Title to many of the properties bought and developed by the husband were registered in the names of numbered companies nominally owned by Vita, Antonella and Vito but which the husband operated. Minute Books and corporate registers were never maintained or, if they were, they were never tendered as evidence or otherwise referenced in any party’s testimony.

(e) In 1993, the parties acquired 13900 Leslie Street, Aurora and occupied it as their matrimonial home. Title was registered in their names as joint owners. The husband maintained an office there.

(f) The husband has alleged, and the wife denies, that the parties separated on or about August 3, 1999, when the wife left the matrimonial home. It was on that date that the husband bought 8 Glenside Drive, Vaughan (“Glenside Drive”) for $330,990. Title was registered in Vito’s name; he was twenty years old and a student.

(g) The wife and the parties’ children claim, and the husband denies, that the spousal parties lived with Vito at the Glenside Drive property, although the husband did not live there exclusively because (according to the wife and the parties’ children) he continued to maintain a residence at the former matrimonial home where he maintained his office. Some of the furniture from the matrimonial home was transported to this property.

(h) In June 2000, the wife became seriously ill and was hospitalized. She was in a coma for over six weeks. The husband was attentive to her needs, regularly attended the hospital and arranged for and fully paid for the wife’s care until she recovered.

(i) In 2003, the property on which the matrimonial home was situated was divided, creating a separate lot municipally described as 1360 Bloomington Sideroad, Aurora (“the Bloomington Sideroad property”) that the husband registered in Vito’s name.

(j) On February 18, 2005, the husband presented a document to the DiBlasi family members at a meeting at Vita’s home. This is the Agreement; it had apparently been drafted by a lawyer (since deceased) who had acted for the husband and family members in their real estate affairs for many years. [6] The husband’s evidence is that the family “was very strongly united and in order to save the family estate from being confiscated by all creditors due to the subdivision loss of $3,074,141.32, we came up with the following wonderful idea…” which the husband then described. [7]

(k) Beginning in April 2005, several properties listed in the Agreement were sold or their titles transferred into the husband’s name or the names of companies he owned.

(l) The matrimonial home was sold in 2006, after which the husband moved next door to the Bloomington Sideroad property registered in Vito’s name. The parties dispute that the husband also continued to live at the Glenside Drive property where, according to the wife and the children, he kept clothes, personal effects and slept overnight.

(m) The husband’s evidence is that he began a common law relationship with Helen Nalayog at some point after they met in late December 2007. A son was born on August 27, 2009. The wife and parties’ children dispute the husband’s evidence that they knew before June 2015 about this relationship and that a child had been born. The husband acknowledged that he had never shared this information with the wife and their children but that they should have known anyway. The wife and children only learned about Ms. Nalayog and that the husband had a child with her when Vita attended a local church and saw a donative plaque mentioning the names of her father and his son.

(n) Neither the wife nor any of the parties’ children has ever met Ms. Nalayog or the child born of her relationship with the husband.

(o) The husband told the court that he “never told anybody that I was separated…Never do anything like that.”

(p) During an Easter 2013 celebration at Vita’s home, the husband wanted to have the Agreement amended with respect to the ownership of 1360 Bloomington Road (then owned by Vito) being transferred to his caregiver. There was an argument. The children refused, after which Vita said that the relationship between him and the children began to deteriorate. The wife’s evidence is that while she was present at the gathering and aware of an argument, she was not made aware of its specifics. The husband said that the children “kicked him out.”

(q) The Glenside Drive property was sold by Vito on August 3, 2013, for $855,000. He kept the net sale proceeds of $297,089.

(r) Around the time that the Glenside property was sold, Vita and Antonella met with their father to discuss their mother’s living arrangements. The meeting did not go well. The wife moved to live with Antonella.

(s) Shortly after Glenside was sold, a property owned by Vito and companies nominally owned by Vito and by his sisters was transferred by the husband into his name or the names of companies he controlled. The husband signed the transfer documents and did so without speaking to the children beforehand. These properties were the Bloomington Sideroad property (transferred August 30, 2013), 13950 Leslie Street, Aurora (transferred September 10, 2013) and vacant land (5 acres) on Ridge Road, Kawartha Lakes (transferred November 22, 2013). The husband retained the net sale proceeds.

(t) The wife issued this Application on August 30, 2019. Among other relief, she sought an Order extending the time to make an equalization claim. Her pleading was amended on September 9, 2023, to include beneficial interest claims in most of the properties listed in the Agreement and a request that several properties subsequently transferred by the husband into his name alone be sold and that the proceeds of those which had been sold be traced. The Application was amended again on May 30, 2023, to claim a beneficial interest in all the Agreement properties, an equal share in their sale proceeds including, but not limited to, any appreciation in value of the properties whether already sold or still owned by the husband.

(u) The husband claims that the parties separated in August 1999.

[The remainder of the judgment continues as in the original, with subheaders for each logical section as above, and all content verbatim, formatted for clarity and readability.]

Endnotes

[1] Thirty affidavits were filed; their affiants all testified except for Celine whom the parties agreed did not need to be called as a viva voce witness. Her affidavit (Exhibit 63) was admitted on consent.

[2] The relevance of the realty appraisals at trial was superseded after the court advised the parties about its determination of the valuation date.

[3] There is some confusion whether the address is 13850 or 13825 Leslie St. The latter address will be used.

[4] Whether this is an intentional or inadvertent turn of phrase is unclear as s. 4(1) of the Family Law Act, R.S.O. 1990, c. F.3 (see para. 24 below) refers to “…no reasonable prospect that [the spouses] will resume cohabitation.” The husband uses the same turn of phrase.

[5] The court will refer to the document as the “Agreement” in these reasons for convenience of reference purposes only.

[6] The lawyer had acted on the purchase of several properties on Glenside Drive for three of the parties’ four children. Vito owned 8 Glenside Drive until 2013; Antonella owned 16 Glenside Drive; and Vita owned 21 Glenside Drive.

[7] Exhibit 70. Affidavit of Gaetano (a.k.a. Guy) Di Blasi sworn on April 16, 2021, Schedule A, para. 12.

For the full reasons, see the official decision.