COURT OF APPEAL FOR ONTARIO

CITATION: D'Angelo v. Barrett, 2016 ONCA 605

DATE: 20160802

DOCKET: C59705

Hoy A.C.J.O., Brown and Huscroft JJ.A.

BETWEEN

Donatella D’Angelo

Applicant

(Respondent in appeal)

and

Christopher Wayne Barrett

Respondent

(Appellant in appeal)

APPLICATION UNDER Parts I, II and III of the Family Law Act

Julian W. Lipkowski, for the appellant

Gary S. Joseph and Meghann P. Melito, for the respondent

Heard: July 18, 2016

On appeal from the judgment of Justice E. Ria Tzimas of the Superior Court of Justice, dated November 5, 2014.

ENDORSEMENT

[1] The parties married in 2000 and had two children. They separated in 2011.

[2] Following a nine-day trial, the application judge ordered that the children’s primary residence will be with the respondent, with generous access awarded to the appellant; that s. 7 expenses are to be shared between the appellant and the respondent on a 65-35% basis; and that the respondent pay the appellant $43,092 in equalization. The application judge determined that the appellant could not advance a constructive trust claim against the respondent’s mother in respect of her interest in the matrimonial home because the appellant ought to have commenced a separate claim against her.

[3] The appellant challenges the application judge’s decision on custody and equalization.

Custody and access

[4] The application judge found that the best interests of the children were in remaining at the matrimonial home, where they have a stable environment. She found, further, that the respondent is a fit parent and is able to provide the children with the guidance, education, and the necessaries of life. She rejected the appellant’s narrative that the respondent was “missing in action” and was unable to make decisions for their children.

[5] The appellant argues that the application judge wrongly disregarded the report of an investigator from the Office of the Children’s Lawyer (“OCL”), who recommended that the appellant be awarded sole custody with access to the respondent.

[6] We disagree.

[7] The decisions of trial judges on custody and access are entitled to a high degree of deference. An appellate court is not to overturn a custody order in the absence of a material error, a serious misapprehension of the evidence, or an error in law: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014.

[8] It was for the application judge to determine the best interests of the children, and the report of the investigator of the OCL was simply evidence in this regard. The application judge was under no obligation to accept the report or the recommendations of the investigator, either in whole or in part.

[9] The application judge gave extensive reasons for rejecting the investigator’s recommendation, running for several pages in her decision. The application judge considered the fact that the investigator wrote her report approximately 15 months prior to the conclusion of the trial in this case. As it was not updated, it did not reflect counselling and parenting sessions that the respondent had undertaken. Nor did it reflect the respondent’s willingness to consider joint parenting or a joint custody agreement. Further, the application judge found that the investigator was biased against the respondent.

[10] There was ample evidence supporting the respondent’s parenting, including evidence from three independent counsellors and social workers. The application judge gave detailed and careful consideration to all of the evidence in reaching her decision. Significantly, she found that the appellant “was determined to take whatever liberties he could with the truth to obtain sole custody of his daughters.”

[11] The appellant has not demonstrated that the application judge made any error in this case. There is no basis for this court to interfere with her decision on custody.

Equalization

The matrimonial home

[12] The application judge found that the respondent’s mother lent approximately $70,000 to the respondent to enable the purchase of a home in Maple in 1999 and that the mother’s name was listed on title as a 50% owner of the home. The appellant moved into the Maple home in 2000 and it was sold in 2002. The proceeds of the sale went towards the purchase of a new matrimonial home in Brampton, and again the respondent’s mother was listed on title as a 50% owner.

[13] Although the appellant did not claim a constructive trust in his Answer with respect to the mother’s interest in the matrimonial home in Brampton, he advanced a constructive trust claim at trial. The application judge accepted the respondent’s submission that the court did not have jurisdiction to make any ruling regarding the mother’s interest in the matrimonial home because the appellant had not made a claim against her; she was thus not a party to the proceedings. The application judge stated that the mother’s testimony at trial was not the equivalent of being a party to a proceeding and defending a claim.

[14] As a result, the application judge concluded there was no need to review the evidence concerning the mother’s loans to the respondent. In calculating the respondent’s net family property for equalization purposes, the application judge included only 50% of the value of the Brampton matrimonial home.

[15] The appellant submitted that the application judge erred by not determining his constructive trust claim against the mother. However, the thrust of his argument was that the respondent’s mother was merely a lender, although possibly a secured lender, and that her registration on title is not relevant in determining the value of the respondent’s share of the matrimonial home.

[16] The argument, in short, is that a court can find that the respondent owns the matrimonial home for the limited purpose of equalization without affecting her mother’s title and, as a result, it does not matter that the respondent’s mother was not added as a party to the action. The appellant submits that the respondent should have been listed as the 100% owner of the Brampton home and the $70,000 advanced by the mother as a loan should be deducted from the value of the home before equalization.

[17] We disagree.

[18] As to the constructive trust submission, the appellant brought no claim against the respondent’s mother. She was not a party to the proceedings against the respondent and no order affecting her 50% ownership interest in the home could be made. The application judge correctly concluded that testifying at trial was not the same as being a party to a proceeding and defending a claim.

[19] As to the equalization claim, as this court stated in Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, at para. 25, “property entitlements must be determined before they can be equalized”: see also Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, at para. 47, citing Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70. It is undisputed that the respondent’s mother contributed towards the purchase of the home and is listed on the title as a joint owner. The appellant did not bring a claim to challenge her property entitlement. Therefore, the application judge did not err in finding that the respondent’s mother owned 50% of the home, and that only the 50% owned by the respondent was relevant for equalization purposes.

Various loans

[20] The trial judge held that the respondent’s mother made various additional loans to the respondent totalling $52,326.46. As a result, the trial judge deducted this amount from the value of the respondent’s net family property.

[21] The appellant argues that this money should not be deducted because the loans were forgivable.

[22] Again, we disagree.

[23] Although the application judge could have provided a better explanation for deducting the value of the loans from the respondent’s net family property, her reasons for doing so are implicit in the record and there is a rational basis underlying the determination. The loans were evidenced by promissory notes signed by the respondent, her mother, and a witness. The mother made a demand for repayment on September 19, 2012. Further, the mother, whom the application judge commended for her honest demeanour, testified that she expected to be repaid, even though this had not yet occurred.

[24] There is no basis to interfere with the application judge’s decision.

Disposition

[25] The appeal is dismissed.

[26] The respondent is entitled to costs of the appeal, fixed by agreement of the parties at $10,000, inclusive of taxes and disbursements.

“Alexandra Hoy A.C.J.O.”

“David Brown J.A.”

“Grant Huscroft J.A.”