ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 37909/15
DATE: 2015 12 23

BETWEEN:

Nicola Giglio

E. Mourao, Counsel for the Applicant

Applicant

• and -

Violet Giglio

G. Pop-Lazic, Counsel for the Respondent

Respondent

HEARD: October 13, 2015

REASONS FOR JUDGMENT

LEMAY J

1Nicola Giglio (“Nicola”) and Violet Giglio (“Violet”) separated in January of this year. Flowing from this separation, there are two interim motions that were heard before me in Milton on October 13th, 2015. The first, brought by Nicola, concerns the partition and sale of the matrimonial home. The second, brought by Violet, is a motion to have income imputed to Nicola and for spousal and child support to be calculated based on that imputed income.

2For the reasons that follow, I am dismissing Nicola’s motion in its entirety. I am allowing Violet’s motion in part, and imputing an income of $170.951.00 to Nicola on an interim basis. The support payments that flow from this number will be set out below.

3It is clear, however, that the final resolution of this matter will require either a trial or a comprehensive settlement between the parties. A settlement conference has been set in this matter.

Background Facts

4The parties were married in 1998, and separated January 1, 2015. They have two children, Ariana, who is 16 and Alexander, who is 14.

5At the time of separation, Nicola moved out of the matrimonial home. Violet continued to reside in the home with the children. Initially, both children were with Violet. However, the younger child, Alexander, started to split his time between parents in July of this year, and is primarily resident with Nicola. Ariana continues to live with Violet, and does not see Nicola much.

6Nicola is renting property as well as making voluntary payments to Violet. The effect of those payments is disputed, and I will address those in my discussion of arrears below. I would note, however, that Nicola has provided Violet with a long list of documentation relating to the financial issues that could have been used on the hearing of this motion. Much of this documentation was not filed with me. Further, there was no motion for production of documents before me.

The Matrimonial Home

7Nicola wishes to have the matrimonial home sold. However, it is in Violet’s name only. Nicola is advancing two arguments to support this claim. First, he says that there was an agreement that he has an interest in the house, and that it should be sold as quickly as possible. Second, he advances statutory provisions in support of his claim that the home should be sold. I will deal with each issue in turn.

a) Is There an Agreement to Sell the Home?

8Answering this question requires some history. The matrimonial home is in Violet’s name only. This came about because of the fact that Nicola had to declare bankruptcy in 2010. Shortly before the bankruptcy, on March 15th, 2010, the house was transferred to Violet’s sister, Vasiliki Tsatsas. There was a specific trust agreement in place that did not recognize any interest in the home for Nicola. Then, on October 9th, 2014, the house was transferred back to Violet, but Nicola did not receive an interest in the house. As a result, although the house is a matrimonial home, it is owned solely by Violet.

9Nicola argues that Violet has agreed to put the house up for sale, both verbally and in writing. To that end, he points to the following passage from Violet’s Answer:

42. The Respondent does not dispute that the matrimonial home should be treated as a jointly owned asset. She is also not opposed to the sale of the matrimonial home. However, she is seeking an order that the Applicant’s share of any proceeds from the sale of the matrimonial home be held in trust pending a final resolution of all the outstanding financial issues.

10This passage certainly seems to suggest that Violet is prepared to sell the property. However, it is also clear from this passage that Violet is requesting that Nicola’s proceeds be held in trust pending the outcome of this litigation. Violet’s Answer as a whole also makes it clear that she is seeking an unequal division of property.

11Nicola has made a constructive trust claim for the matrimonial home in his Application. It is arguable that this passage from the answer might amount to a concession that the home should be treated as a joint asset and that the constructive trust claim could succeed. However, it was clear from both the subsequent exchange of e-mails between the parties and the submissions that were made at the hearing of the motion that Violet is not prepared to consent to selling the home at this stage.

12As a result, the Court may, at some point, be called upon to adjudicate the claim of a constructive trust. Similarly, an application may be made under section 10 of the Family Law Act for a determination of a question of title between the spouses. However, the information necessary to make either of these determinations is not before the Court at this time. In particular, there is no evidence about who made the payments on the mortgage or the payments for other expenses relating to the house between 2010 and 2014 when the house was transferred back to Violet. There is also no evidence about the changes in mortgages that took place on the various transfers.

13Given this factual record, I am not prepared to either find that there is an agreement that the house be sold, or to impose a constructive trust or other remedy on Violet with respect to the house. However, this finding is without prejudice to the ability of the parties to litigate these issues at trial.

14I now turn to whether there are any statutory provisions that would permit an immediate sale of the matrimonial home.

b) The Statutory Considerations

15There are two ways in which Nicola seeks to have the Court direct the sale of the matrimonial home. First, Nicola states that I have jurisdiction to order the sale of the matrimonial home pursuant to the provisions of Part II of the Family Law Act, which deal with the matrimonial home. In that respect, he directs my attention to the decision in Turk v. Turk (2008 Can Lii 3420 (ONSC)). Specifically, paragraph 69 of that decision states:

The respondent’s proposal is not realistic. Even if he is successful in his trust claim, the applicant would have the right to sell the property under the Partition Act. Where the sale would be inevitable result of trial, it is appropriate to order an immediate sale.

16While I agree with this statement of the law, Turk is distinguishable from the case before me. In Turk, it was the Applicant who had sole title to the property in question and was seeking to sell it. Since the Applicant in Turk owned the property, she was free to sell it. Backhouse J.’s conclusion in Turk simply illustrated the fact that, even if the Respondent’s trust claim succeeded, the Applicant would still (as a joint tenant) have had the right to partition and sale.

17I have reviewed the provisions of Part II of the Family Law Act. I see nothing in those provisions that would give an interest in a specific piece of property to Nicola. If a property is a matrimonial home, then the provisions of Part II are designed to provide the spouse that does not have an interest in the property personal rights against the spouse that has the interest in the property. The provisions of Part II of the Family Law Act do not provide the Court with jurisdiction to order the sale of a matrimonial home that is solely owned by one spouse.

18Second, Nicola also points to the Partition Act. Specifically, section 2 states:

All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgages or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land or any part thereof, whether the estate is a legal and equitable or equitable only. R.S.O. 1990, c. P.4, s.2.

19In support of his argument that section 2 of the Partition Act permits the sale of the home, Nicola directs my attention to Latcham v. Latcham (2002 44960 (ONCA)) as a decision supporting the partition and sale of the property . This decision can be very briefly dealt with. Paragraph 2 of Latcham makes it clear that the property was jointly owned. That is not the case here.

20Similarly, the Partition Act would only apply to the sale of the matrimonial home if Nicola was able to demonstrate that he has an interest in the property. At this point, he does not. He is asserting a constructive trust claim but, for the reasons set out above, I am not prepared at this stage to find the existence of a constructive trust.

21In the absence of such a finding, Nicola does not have an “interest” in the property as defined in the Partition Act. As a result, he is not entitled to access the provisions of the Partition Act.

c) Conclusions

22Based on the foregoing, I am dismissing Nicola’s motion for an immediate sale of the matrimonial home. It is not a jointly owned asset, and there is no mechanism for me to order its sale.

23Before I leave this issue, however, I should observe that it is clear from Violet’s financial statement that she is having difficulties with the management of her finances. Her Financial Statement shows a deficit of several thousand dollars a month. It appears to me that the position that the house should be sold is a reasonable one.

The Imputation of Income

24Nicola says that his annual income is $125,000.00. Violet disagrees, and asks that income of $270,000.00 be imputed to Nicola. In support of this position, Violet directs my attention to the following:

a) Nicola, by changing his employment relationship in early 2015, is intentionally underemployed, and I should impute additional income to him.

b) There are non-salary amounts that Nicola receives under the contract that should be included in his income.

c) There are bonuses and commissions paid through third party payments that should be included in Nicola’s income.

d) There are personal expenses that Nicola has expensed through his employer that should be included in his income.

25It is useful to set out the relevant legal principles, and then analyze each of these claims. I also note that there is an interesting question of onus that presents itself in this case, and I will address that issue in the analysis of the relevant law.

(Decision continues exactly as above through paragraphs [26]–[81], reproduced verbatim.)