COURT OF APPEAL FOR ONTARIO

DATE: 20050222

DOCKET: C41755

RE:

ADRIAN VACCARO (Plaintiff (Appellant)) – and – KATHY VACCARO (Defendant (Respondent))

BEFORE:

FELDMAN, CRONK and LAFORME JJ.A.

COUNSEL:

K.K. Beyer

for the appellant

D. L. Ditchfield

for the respondent

HEARD & ENDORSED:

February 18, 2005

On appeal from the judgment of Justice Jane Milanetti of the Superior Court of Justice dated April 1, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant had the onus to prove that the claimed debts were debt at the time of separation. The appellant contends that because the trial judge made no specific finding that the amounts were gifts, by default, they must have been loans.

[2] We do not accept this submission. The trial judge specifically found that the appellant had not met the onus of proving that the amounts were outstanding debts at the time of separation. The trial judge found that the $70,000 mortgage was satisfied when it was discharged which was before separation. With respect to the other amounts, in our view, the reasons make it clear that the trial judge either was not satisfied that they were advanced, or if they were, they were not loans.

[3] The trial judge having made no overriding error, the appeal is dismissed with costs to the respondent fixed at $8,500 plus disbursements and G.S.T.