Court File and Parties

Court of Appeal for Ontario Date: 20220117 Docket: C68945

Before: Huscroft, Trotter and Coroza JJ.A.

Between: Kristy Frances Naccarato Applicant (Respondent)

And: Dino Naccarato Respondent (Respondent)

Counsel: Matthew Kersten, for the appellant Sutherland Law R. Avery Zeidman, for the respondent Dino Naccarato Annamaria Perruccio, for the respondent Kristy Frances Naccarato [1]

Heard: January 14, 2022 by video conference

On appeal from the order of Justice Peter A. Douglas of the Superior Court of Justice, dated December 2, 2020, with reasons at 2020 ONSC 7442.

Reasons for Decision

[1] The appellant, a law firm, represented Ms. Kristy Frances Naccarato in family law proceedings against the respondent Mr. Dino Naccarato. Ms. Naccarato promised to pay the appellant’s solicitor fees from her entitlement to funds from the sale of the matrimonial home and she executed an irrevocable Authorization and Direction regarding payment. The home was sold. The proceeds of the sale were held in trust. After trial, the trial judge concluded that a net amount was owed to the respondent Mr. Naccarato, to be paid from Ms. Naccarato’s share of the proceeds of the sale of the home. The trial judge also ordered Ms. Naccarato to pay the respondent Mr. Naccarato $96,230.11 in costs forthwith.

[2] A dispute then arose regarding entitlement to the remaining funds that were being held in trust from the sale of the home. The trial judge succinctly described the nature dispute in the following way:

There can be no dispute that the monies remaining in trust ($96,230.11), are [Ms. Naccarato’s] monies. The issues are to whom these monies should be paid and in [satisfaction] of what obligation. [The appellant claims entitlement to the funds in satisfaction of its unpaid fees owing by [Ms. Naccarato], while [respondent Mr. Naccarato] claims entitlement in satisfaction of his ordered entitlement to costs. Payment out will diminish [Ms. Naccarato’s] obligation to one claimant or the other.

[3] The appellant then moved for a charging order under s. 34 of the Solicitors Act, R.S.O. 1990, c. S.15, and the respondent Mr. Naccarato moved for an order amending the trial judge’s trial and costs orders to reflect that he was entitled to secure the costs awarded to him against the proceeds being held in trust.

[4] The trial judge heard both motions. First, he dismissed the appellant’s motion for a charging order, concluding that the appellant did not meet the test for a charging order as the appellant was not “instrumental” in recovering or preserving property for Ms. Naccarato. Second, the trial judge found that the issue of security for trial costs was before him both at trial and during cost submissions, but that through inadvertence, it was not dealt with. Pursuant to r. 25(19)(c) of the Family Law Rules, O. Reg. 114/99, he amended the trial and costs orders to provide that the balance remaining after payment be retained in trust pending agreement between the parties or order of the court and to provide for the payment of costs to the respondent Mr. Naccarato from the monies in trust.

[5] The appellant raises two issues on appeal.

[6] First, it argues that the trial judge erred in finding that the appellant was not “instrumental” in the preservation/recovery of Ms. Naccarato’s entitlement to the remaining net proceeds of the sale of the former matrimonial home. We disagree.

[7] The trial judge referenced s. 34(1) of the Solicitors Act and identified the correct test. The trial judge concluded that the appellant was not instrumental in recovering or preserving the funds from the sale of the home because there was never an issue regarding ownership of the property; there was no need to recover or preserve the property as it was always registered solely in Ms. Naccarato’s name. The trial judge also found that even if he was wrong on the issue of “instrumentality” he would not have granted the order or lien in the circumstances of the case. A s. 34 order is a discretionary order. We see no error in the trial judge’s exercise of his discretion and would dismiss this ground of appeal.

[8] Second, the appellant contends that the trial judge erred in his application of r. 25(19)(c) of the Family Law Rules because the respondent Mr. Naccarato did not seek such relief before the trial judge in any material or pleadings.

[9] We do not accept the appellant’s submission. Rule 25(19)(c) of the Family Law Rules permits a court to change an order that “needs to be changed to deal with a matter that was before the court but that it did not decide”.

[10] In the present case, the trial judge found that the issue of security for costs was before him during the trial and that through obvious inadvertence he did not rule on the issue. We see no basis to interfere with these findings. Having found that he inadvertently did not deal with the issue that was before the court, the trial judge’s decision to amend pursuant to r. 25(19)(c) was appropriate and consistent with the primary objective of the Family Law Rules which is to enable the court to deal with cases justly. We see no merit to this ground of appeal.

[11] For these reasons, the appeal is dismissed. The respondent Mr. Naccarato is entitled to costs in the amount of $8,500 all inclusive.

“Grant Huscroft J.A.”

“Gary Trotter J.A.”

“S. Coroza J.A.”

[1] Annamaria Perruccio appeared but made no written or oral submissions on behalf of the respondent Kristy Frances Naccarato.