DATE: 20010319

DOCKET: C34217

COURT OF APPEAL FOR ONTARIO

RE: FILIBERTO PALOMBI (Appellant) v. ANTONIETTA BERTINA PALOMBI, 1324057 ONTARIO INC. and “A TOUCH OF ITALY” (Respondents)

BEFORE: FINLAYSON, MACPHERSON and SIMMONS JJ.A.

COUNSEL: John W. Chidley-Hill

for the appellant

D. Smith

for the respondents

HEARD: March 14, 2001

On appeal from the judgment of Justice Victor Paisley dated April 10, 2000.

E N D O R S E M E N T

Released Orally: March 14, 2001

[1] The appellant, Filiberto Palombi, appeals from the judgment of Paisley J. dated April 10, 2000 wherein he ordered the appellant to pay spousal and child support, to make an equalization payment and to transfer certain property to the respondent, Antonietta Palombi, to give effect to the equalization payment.

[2] The appellant advances several grounds of appeal. He claims that the trial judge erred by not concluding that the business “A Touch of Italy” was a partnership involving both spouses. We disagree. The trial judge’s conclusion on this issue was a factual finding well-supported by the evidence before him.

[3] The appellant asserts that the trial judge erred by not concluding that the respondent embezzled money from the family business. We disagree. At trial, the appellant led no evidence of any funds being withdrawn by the respondent, other than those drawn on the joint line of credit following separation. These withdrawals were entirely appropriate, especially since the appellant paid nothing by way of child and spousal support for several years.

[4] The appellant contends that his acquittal on an assault charge should have led the trial judge to conclude that his wife had committed the tort of malicious prosecution. We disagree. There was simply no evidence before the trial judge to support a conclusion that the prosecution of the appellant for assault involved malice on the part of anyone. Moreover, it is elementary law that the fact of acquittal cannot be equated, in the absence of evidence, with the conclusion that the prosecution was undertaken maliciously.

[5] The appellant submits that the trial judge erred by not finding that the respondent’s conduct amounted to a gross repudiation of the marriage disentitling her to any relief under the Family Law Act. We disagree. There is nothing in the respondent’s conduct over the years to suggest, even remotely, that such a conclusion would be appropriate.

[6] The appeal is dismissed with costs, save that the respondent whose factum was not filed until today shall have no costs for the preparation of the factum.

“G. D. Finlayson J.A.”

“J. C. MacPherson J.A.”

“J. M. Simmons J.A.”