Court File and Parties

CITATION: Pulitano v. Pulitano, 2010 ONCA 64

DATE: 20100126

DOCKET: C49031

COURT OF APPEAL FOR ONTARIO

Moldaver, Cronk and LaForme JJ.A.

BETWEEN:

Ingrid Pulitano

Applicant (Respondent in Appeal)

And

Vincent Pulitano

Respondent (Appellant)

Counsel:

Kimberly Doucett, for the appellant Norman Aitken, for the respondent

Heard and endorsed: January 25, 2010 On appeal from the Divorce Order of Justice M. E. Marshman of the Superior Court of Justice dated May 22, 2008.

APPEAL BOOK ENDORSEMENT

[1] There are two issues on this appeal, both relating to the trial judge’s calculation of the equalization payment owed by the husband to the wife.

[2] With respect to the loan that the husband alleges was a debt owing to his late mother, it was open to the trial judge to find, in effect, that the monies advanced were not a loan. We see no basis to interfere with this finding.

[3] As for the jewellery, pursuant to s. 4(3) of the Family Law Act, the wife bore the onus of establishing the exclusion from the net family property that she claimed, based on the alleged gifts to her from her relatives of the jewellery in question.

[4] Although the parties agreed on the total value of the wife’s jewellery for the purpose of trial, there was no evidence at trial, and none has been presented to us, of the value of the jewellery that the wife said she received from her relatives; or conversely, of the value of the jewellery she admittedly received from her husband. Evidence of the percentage of the jewellery received is not evidence of the value of the jewellery received.

[5] Accordingly, the wife did not discharge her onus under s. 4(3), an onus that, in the circumstances of this case, could easily have been discharged, for example, by her own testimony as to estimated value.

[6] The trial judge therefore erred in including only $4,000 in the wife’s assets. The full amount of $24,240 on account of the jewellery should have been included on the wife’s side of the ledger.

[7] The appeal is therefore allowed, in part, and paragraph 6 of the Divorce Order is varied in accordance with these reasons.

[8] On agreement of the parties, in light of the split decision, there will be no costs of the appeal.