COURT OF APPEAL FOR ONTARIO

CITATION: Vetro v. Vetro, 2013 ONCA 303

DATE: 20130507

DOCKET: C56023 and C56580

Weiler, Gillese and Hoy JJ.A.

BETWEEN

Dominic Vito Vetro

Applicant (Appellant)

and

Gabrielle Vetro

Respondent (Respondent)

J. Kelvin Ford, for the appellant

Gabrielle Vetro, acting in person

Heard: May 6, 2013

On appeal from the order of Justice Douglas K. Gray of the Superior Court of Justice, dated August 23, 2012 and the order of Justice Meredith Donohue of the Superior Court of Justice, dated November 19, 2012.

By the Court:

[1] The appellant is in substantial compliance with the conditions of the order of MacPherson J.A. Consequently, the court heard these two appeals, one following the other. At the conclusion of the appellant’s oral argument we dismissed the appeal with reasons to follow. These are those reasons.

The appeal from the order of Gray J. striking the appellant’s pleadings

[2] The appellant submits that the motion judge erred in not creating any roadmap by which the appellant could reinstate his pleadings after striking them. The appellant further submits that in striking his pleadings the motion judge was obliged to give him an opportunity to correct or explain his default and that he did not do so.

[3] We disagree. The motion judge began by correctly stating the governing legal principle, namely that striking a pleading is a serious matter, and should only be done in unusual cases: Marcoccia v. Marcoccia (2009), 60 R.F.L. (6th) (Ont. C.A.), at para.3

[4] The appellant had been given prior opportunities to correct and explain his default and the motion judge made findings of fact to the effect that he had not done so. Gray J. found that the orders for interim support were made on the appellant’s own evidence, that he went into default almost immediately and that any compliance since then had been minimal and only on the eve of scheduled trials or motions. We note, as well, that the motion judge was not satisfied the appellant had yet made full disclosure despite the existence of a long standing disclosure order and attempts at enforcing it. The motion judge found that the appellant’s assertion of his financial situation and level of income varied according to what suited his interest at any particular point in time.

[5] In addition, the appellant took money from the children’s R.E.S.P. for his own purposes and although he agreed to repay the money he had only repaid $2,000 of the $5,500 he took. Irrespective of the issues of disclosure, the motion judge struck the pleadings on the basis of the appellant’s non-compliance with prior court orders and, having regard to the history and circumstances of the case, he was entitled to do so without giving the appellant any further opportunity to correct or explain his defaults.

[6] In these circumstances we see no error in the motion judge’s exercise of discretion to strike the pleadings. He correctly articulated the law and made findings of fact to support his application of it.

[7] We wish to add that the reasons of Donohue J. indicate that, prior to trial, the appellant brought an unsuccessful motion before Murray J. to reinstate his pleadings. This fact was not set out in the appellant’s factum, nor were any of the relevant documents, including a copy of the order dismissing the motion, in the appellant’s appeal book. In the absence of a record of the proceedings before Murray J. and his order, it is not clear that we had the jurisdiction to deal with the appeal from the order of Gray J. Nonetheless, on the assumption that it was within our jurisdiction, we considered the appeal of Gray J.’s order and, as indicated, dismiss it.

The appeal from the order of Donohue J.

[8] The essential aspects of the appellant’s appeal from the order of Donohue J. involve: 1) the amount of income imputed to the appellant and respondent for support purposes; and 2) the vesting of title to the matrimonial home in the respondent.

Income imputed for support purposes

[9] The trial judge made findings of fact for which there was ample evidence in the trial record. We are not satisfied that she made any error in the amount of income that she imputed to the appellant. She imputed to him the amount of income he had been able to earn during a substantial period of the marriage. Although the appellant complains that the trial judge did not take into consideration his financial position, it is clear that she considered such financial disclosure as the appellant saw fit to make, including his bank statements, his tax returns and his deposition under questioning in November 11, 2010. Notwithstanding counsel’s submissions respecting the variations in the appellant’s income, the figure the trial judge imputed was a figure that was in keeping with a long history of the appellant’s income and his capacity to earn income.

[10] The issues of support are tied to the imputed income and we need say nothing more about those.

Vesting of title to the matrimonial home

[11] The appellant contests the valuation put on the matrimonial home by the trial judge and submits she should have used a valuation of $3 million. The appellant further submits that the respondent did not seek a vesting order and that there was no basis for the trial judge to make the order and no jurisdiction to do so.

[12] We disagree. The appellant’s own evidence showed valuations of the matrimonial home ranging from $1.5 million, to $1.85 million, to $3 million all as of November 7, 2008, the date of separation. In addition, there was evidence that the house needed work to be done to it.

[13] In making her calculation vesting the husband’s one-half interest in the matrimonial home in partial satisfaction of the appellant’s arrears and lump sum support obligations, the trial judge used the current appraisal of the home obtained by the wife in the amount of $1.65 million. This figure is supportable on the evidence and we would not interfere with it.

[14] As to the vesting order, the respondent asked the trial judge to make such an order given the appellant’s history of non-payment and the trial judge was entitled to do so. Finally, the decision of this court in Lynch v. Segal (2006), 2006 CanLII 42240 (ON CA), 82 O.R. (3d) 641, supports her jurisdiction to do so.

[15] Accordingly, this appeal is also dismissed.

Costs

[16] The respondent, who is self-represented, seeks costs of the appeals. Having regard to the disbursements she incurred, and the submissions made, we hereby fix costs of the appeals in the amount of $2,500 inclusive of all applicable taxes, payable forthwith.

Released: May 7, 2013

“K.M. Weiler J.A.”

“KMW” “E.E. Gillese J.A.”

“Alexandra Hoy J.A.”