Court of Appeal for Ontario

Date: 20211118 Docket: C68934

Before: Fairburn A.C.J.O., Roberts J.A. and Van Melle J. (ad hoc)

Between:

Ball Media Corporation Plaintiff (Respondent)

And:

Paige Imola, Luigi Imola and Zachary Imola Defendants (Appellant)

Counsel: Ray Di Gregorio and Christine Ellis, for the appellant Michael A. Jaeger, for the respondent

Heard and released orally: November 12, 2021 by video conference

On appeal from the order of Justice Giulia Gambacorta of the Superior Court of Justice, dated November 18, 2020.

Reasons for Decision

[1] This is an appeal from an order that $136,434.87, held in court, be paid to the respondent in partial satisfaction of the summary judgment granted against Paige Imola. Luigi Imola is Paige Imola’s husband and he is the appellant in this proceeding.

[2] The monies held in court were the net proceeds from the sale of the Imola home. The house had been jointly owned by the Imolas until April 29, 2009, when the appellant transferred his interest to his wife for the admitted purpose of insulating the property against a potential claim by the appellant’s former employer. The substance of that claim forms no part of this appeal.

[3] Over six years after the appellant had transferred the property to his wife, the house was sold. By that time, Paige Imola’s employer had started an action against her for civil fraud, conversion and misappropriation of funds. Therefore, the monies from the sale of the home were deposited into court with the Imolas’ consent on April 12, 2016, to the credit of the civil action brought by the respondent.

[4] The underlying facts for the civil claim brought by Paige Imola’s employer also gave rise to criminal charges. On May 25, 2017, Paige Imola was convicted of fraud and possession of stolen property and the appellant was acquitted. As part of the criminal sentencing proceeding, the court imposed a $500,000 restitution order against Paige Imola in favour of the respondent.

[5] The respondent then successfully moved for summary judgment against Paige Imola. She did not oppose that relief. The respondent also obtained an order for the payment of all of the monies held in court from the sale of the home. It is that order that forms the subject of this appeal. The appellant contends that half of that money is his and, therefore, only 50% should have been given to the respondent.

[6] The appellant maintains that he enjoys a resulting trust over 50% of the money held in court. He submits the motion judge erred in her application of the resulting trust doctrine. He argues that there was insufficient evidence from which to draw the inference that the appellant had gifted the house to wife. He also contends that the motion judge erred by proceeding on the erroneous premise that the presumption of resulting trust under s. 14 of the Family Law Act is only applicable in Family Law proceedings. He asks that the order be set aside and that 50% of the monies remain in court until the disposition of the respondent’s action.

[7] We are not persuaded by these submissions.

[8] We do not accept the appellant’s interpretation of the motion judge’s reasons. As we read her reasons, her reference to any rights that the appellant may have regarding the net proceeds in Family Law proceedings signified the basis on which she factually distinguished this particular case, rather than as a statement of legal principle as to when the presumption of resulting trust between spouses under s. 14 of the Family Law Act may be invoked.

[9] In any event, the motion judge’s findings of fact rebut any presumption of a resulting trust between the appellant and his wife. The inferences drawn by the motion judge were available to her on the record. She clearly considered the material issue of the appellant’s intention in transferring his interest in the home to his wife and canvassed the evidence relevant to that issue. Her key findings include:

• that the appellant willingly transferred title to his wife in 2009 to avoid the possibility of exposure to creditors;
• that he did not later take any steps to retransfer his interest when the danger of exposure had passed;
• that he did not object to the net proceeds from the sale of the home being paid into court; and
• that he did not raise any claim to the presumption of a resulting trust until the respondent sought payment out of the monies held in court.

[10] These findings support the conclusion that the appellant’s transfer of his interest to his wife in their home was intended as a gift and that there was no resulting trust.

[11] We see no basis to interfere with the motion judge’s order.

[12] Accordingly, the appeal is dismissed.

[13] The appellant shall pay to the respondent its costs of the appeal in the agreed upon amount of $5,250, inclusive of disbursements and applicable taxes, within 30 days.

“Fairburn A.C.J.O” “L.B. Roberts J.A.” “Van Melle, J. (ad hoc)”