COURT FILE NO.: 604/14 DATE: 2017/01/09
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Guy Gionet Applicant
- and -
Franca Pingue Respondent
COUNSEL: David Shapiro, for the Applicant Self-represented, for the Respondent
HEARD: August 8, 9, 10, 11, 12 and 15, 2016.
The Honourable Justice L. M. Walters
REASONS FOR JUDGMENT
Overview
[1] At the conclusion of oral evidence on August 15, 2016, the parties were to provide their written submissions regarding the issues to be determined by the court.
[2] I confirm that I received the applicant’s written submissions on August 22, 2016. Closing submissions of Ms. Pingue were received on September 12, 2016. Later, on September 13th, additional pages were submitted along with a request to reopen the case. Again, on September 19th an amended net family property statement of the respondent was filed with the court. Lastly, on September 19th I received the applicant’s reply to the submissions of the respondent.
[3] At the outset, I must state that I found the respondent’s written submissions very confusing and repetitive. The respondent attempted to introduce evidence in her submissions that was not presented at trial. When this happened, I have not relied on this fresh evidence. Further, at times the respondent appeared to resile from concessions or agreements she made during the trial. When this occurred, I have relied on the trial proceedings.
[4] The court denies any request by the respondent to delay this matter in order to permit new evidence to be introduced.
Background Facts
[5] The parties were married on the 10th of August, 2003 and separated on the 2nd of September, 2013.
[6] The applicant is currently 44 years of age; born on December 13, 1972.
[7] The respondent is currently 45 years of age; born on September 16, 1971.
[8] There are no children of the relationship.
[9] Throughout the relationship, the respondent was employed as a teacher with the Niagara Catholic District School Board. She went on sick leave in October 2011 and then was on a leave of absence from January 2014.
[10] At the time of the marriage, the applicant was employed full-time at Securicor. In later years the applicant left his employment, he says with the encouragement of the respondent, to devote his full-time efforts to the parties’ family enterprise of buying, fixing, and selling real estate properties. The respondent denies that she wanted the applicant to quit his job and says she was surprised when she found out.
[11] The respondent testified at length regarding the difference between what each party contributed to the marriage. There is no question that throughout the marriage the respondent was the party with the higher income. However, the court does not concern itself with how parties conduct their affairs while cohabiting. I have not accepted the respondent’s attempt to claim a greater portion of family assets based on a higher percentage of contribution by her during the 10-year relationship.
[12] Section 5 of the Family Law Act makes it clear that unless an equalization would be “unconscionable”, the spouse with the lesser net family property as calculated in section 4, is entitled to one-half the difference. Although the respondent has suggested that it would be unfair for the applicant to receive this equalization because he did not contribute as much as her, she has not led any evidence to suggest that such a division would be unconscionable. For example, there is no allegation that the applicant failed to disclose debts or liabilities on the date of marriage, that he incurred debts recklessly, or in bad faith, or that he recklessly or intentionally depleted any of his net family property.
[13] At the outset, I wish to deal with the issue of credibility. Each of the parties testified at length. Much of their evidence is at odds.
[14] For the most part, I found Mr. Gionet to be credible. Much of what he testified to could be supported or corroborated by some other evidence.
[15] I have greater difficulty with the evidence of Ms. Pingue. Firstly, I found her evidence very rambling and unfocused. At times she was unable to answer simple, straightforward questions. Matters she agreed to at one point would be challenged later in her testimony, or in her final submissions to the court.
[16] In fairness, it may very well be that Ms. Pingue was just confused, however, that confusion resulted in a chaotic presentation of her evidence and her cross-examination of witnesses during the course of the trial.
[17] Ms. Pingue’s failure to comply with the trial scheduling endorsement of Justice Scott meant that materials were produced at the last minute and Ms. Pingue attempted to introduce evidence which had not been disclosed despite several years of litigation.
[18] In the end, where there is a conflict between the evidence of the applicant and the respondent, I have preferred the evidence of the applicant.
[19] I now turn to the issues to be determined.
Issues to be Determined
[20] At trial the parties identified the following three issues to be determined:
(i) the granting of a divorce; (ii) the calculation of the equalization of net family properties; and (iii) an accounting of rents collected and post-separation expenses.
[21] Originally, the respondent also sought an order compelling the applicant to purchase his portion of her teacher’s pension, but that claim was abandoned by the respondent at the commencement of trial. In her submissions, she appears to have revived this issue, however, I have relied on her position at trial.
[22] Necessarily in determining any equalization payment, the court is obliged to determine and value the ownership interest of several properties.
[23] The applicant claims a resulting trust with respect to the matrimonial home located at 2772 Red Maple Avenue, Jordan, Ontario. Title to that property is in the name of the respondent alone. The respondent resists this claim and argues that the home was always meant to be her property alone and that the applicant gifted any interest in that home to her.
[24] The respondent claims a constructive trust in the properties located at 3905 Cody Trail, Vineland, Ontario and 8905 McGarry Drive, Niagara Falls, Ontario. Title to both of these properties was in the name of the applicant alone.
[25] The applicant conceded at the outset of trial that because of her contribution of money and effort, the respondent was entitled to a constructive trust in these two properties, and accordingly she is entitled to any increase in value in these properties, even after the date of separation.
[26] With respect to the third issue, the respondent made a significant number of payments, after the date of separation, for the benefit of both parties. She asks that she be reimbursed for these post-separation expenses. The position of the applicant is that the respondent alone received all the rental payments from the Niagara Falls property and also rented portions of the matrimonial home, and these rents more than offset any expenses incurred by her.
[27] I have no intention of summarizing in detail the evidence heard at trial. Instead, when I deal with each issue, I will refer to the evidence I accept in making my determination. I will deal with each issue in the same order as set out above.
(i) The granting of a divorce.
[28] The parties have been separated since September 2, 2013. They have not reconciled. I am satisfied that a divorce judgment should issue.
(ii) Equalization of net family properties.
[29] Before any equalization payment can be calculated, the court must determine each party’s net family property. This includes resolving all questions of title to property including any trust claims advanced. The constructive trust claimed by the wife is acknowledged by the husband, and accordingly the respondent wife is deemed a beneficial owner of both the Niagara Falls and the Cody Trail property despite title being held only in the name of the applicant. This means that the respondent will share in any increase in value in these properties after the date of separation. This finding also answers any claim the respondent might have about tracing funds into properties acquired by the applicant after the date of separation.
[30] The applicant claims a resulting trust with respect to the matrimonial home. This claim is disputed by the respondent. It was Ms. Pingue’s evidence that the matrimonial home was in her name because it was always intended as her home. Mr. Gionet was not to have any interest in it. Mr. Gionet was interested in purchasing and selling properties and did not want to maintain a property on a long-term basis. She required the security of a permanent residence. She and she alone was responsible for paying all carrying costs associated with the home and the applicant would be unjustly enriched if he received any benefit in the increased value of the home since separation.
[31] The law of resulting trust as it relates to married parties is well summarized in the Ontario Court of Appeal decision of Korman v. Korman, 2015 ONCA 578. There, title to the matrimonial home was placed solely in the wife’s name. The reason for so doing, according to the wife, was to shield the home from potential claims by creditors. The husband disputed this and explained that he did it to make the wife happy. He never intended to gift his interest in the home to his wife.
[32] In overturning the trial judge’s decision that the husband gifted his interest in the home to his wife, the court stated the following at paragraphs 25 and 26:
[25] For married spouses, the Family Law Act provides a comprehensive scheme for resolving financial issues following marriage breakdown. Section 10(1) of the Act authorizes a court to determine questions of title between spouses. This includes considering whether legal title actually reflects beneficial ownership. As indicated by this court in Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, at para. 47, citing Rawluk v. Rawluk, [1990] 1 S.C.R. 70, “[b]efore property can be equalized under the [Act], a court must first determine the “net family property” of each spouse. This exercise requires first that all questions of title be settled.” In other words, property entitlements must be determined before they can be equalized.
[26] Section 14 of the Act affirms the presumption of a resulting trust in determining questions of ownership between spouses in the context of gratuitous property transfers. Where the presumption is invoked, the party resisting the imposition of a resulting trust is required to disprove the presumption that his or her spouse is the beneficial owner of an interest in the disputed property.
[33] In Korman, the court found that the wife failed to meet the burden on her to show that the transfer was a voluntary and irrevocable gratuitous gift by the husband.
[34] In my view, the facts of this case, as I find them, do not support the wife’s contention that Mr. Gionet gifted his interest in the property to her.
[35] Firstly, the historic property dealings between these two parties from the date of marriage is inconsistent with any other conclusion but that they were involved in a joint financial venture. Mr. Gionet testified that they would purchase, fix and then sell properties, hopefully at a profit. Title to the properties was taken in the name of one or both or a company interchangeably. Funds to purchase the various properties came from joint sources. Mr. Gionet further testified that the parties worked on the construction or improvement of the properties together. They each had different skill sets and applied them to improving the respective properties. Although Ms. Pingue attempted to downplay or minimize the work that Mr. Gionet did, she more or less agreed that they both worked or contributed to the building of the respective properties. Clearly, it was her evidence that she was doing the most. She had the contacts with her family. She had the finances, and she worked very hard. She often criticized the quality of the work Mr. Gionet did, but did acknowledge he made some contribution to the acquisition, maintenance, improvement and selling of the properties. Again, it was her evidence that she wanted him to do more because she felt overburdened and was hoping that he would take greater responsibility. But, in my view, this does not take away from the joint venture nature of this family enterprise.
[36] Further, there is no evidence that I accept that the matrimonial home was to be treated any differently than any prior matrimonial home that the parties cohabited in, or other properties that they purchased strictly for investment. That this property in Jordan might be kept long-term, does not change the intention of the parties when it was purchased.
[37] According to Mr. Gionet, the $120,000.00 down payment came from the proceeds of sale of previously purchased properties including approximately $80,000.00 which came from PG-13, a company in the name of Mr. Gionet. Ms. Pingue was unable to tell the court where the money came from. She believes the applicant wrote the cheque. She did not challenge Mr. Gionet’s assertions at trial, however, in her submissions she questions that any payment came from PG-13, without any evidence led at trial. It was conceded by Mr. Gionet that when title to the matrimonial home was placed in Ms. Pingue’s name, there was never any discussion that she was to hold the property in a resulting trust for him. Candidly, he testified that until the parties separated there was never any such discussion about legal trusts. Instead, it was always his understanding and intention that the parties were working together to purchase and sell properties for a profit for their mutual benefit.
[38] At no time did he intend to gift any interest in the matrimonial home to the respondent either directly or indirectly.
[39] The uncontested evidence from both parties was that the Cody Trail property was purchased in the name of the applicant and it was purchased with funds derived from a line of credit on the matrimonial home. This is inconsistent with Ms. Pingue’s evidence that the matrimonial home was to be hers alone.
[40] In the end, I prefer the evidence of Mr. Gionet in this regard. I find that the respondent has not discharged the onus on her to disprove the presumption that Mr. Gionet is a beneficial owner in the matrimonial home.
[41] Having determined title to these three properties, I must now deal with the value to be placed on these properties.
[42] The McGarry Drive property sold for $375,000.00. In my view, this is the appropriate value to be included on the net family property statement.
[43] Mr. Gionet testified that when he regained possession of the property, he was required to carry out various repairs and maintenance. He estimated his cost of material and labour to be $8,000.00 to $10,000.00. Unfortunately, the applicant's only evidence to substantiate these amounts is a running list of invoices set out in Exhibit 58. Those invoices total, $2,877.26. The actual invoices were not produced and there is no way for the court to determine that these invoices relate to the McGarry property. I am not prepared to permit these deductions.
[44] Cody Trail was sold for $540,000.00. Again, Mr. Gionet testified that he sodded the property, erected a fence, purchased appliances and painted the home. He suggests that he put $30,000.00 to $40,000.00 in improvements to the property. Again, however, he provided the court with no bills, invoices or receipts showing purchases he made. In Exhibit 58 he did provide the same type of running balance, with no way to identify that the invoices relate to this property. Ms. Pingue, in her closing submissions, did acknowledge that Mr. Gionet spent approximately $14,000.00 for materials to complete Cody Trail. The difficulty for the court is that no evidence was led to show that the sale price for Cody Trail was or was not impacted by the $14,000.00, which appears to be agreed was spent on the property. I am not prepared to permit these deductions.
[45] I now turn to the matrimonial home. The respondent filed as Exhibit 4 an appraisal by Mr. Elwood dated March 14, 2014 which valued the matrimonial home at $508,000.00. He did not provide an opinion for the current value of the home.
[46] Despite advising the respondent that if she wished to rely on this expert’s report she would need to call Mr. Elwood, she did not.
[47] The court did hear from Ms. Colleen Evans, whose appraisals were filed as Exhibit 2 and 3 at trial. At July 10, 2016, Ms. Evans opined that the value of the matrimonial home was $690,000.00.
[48] Ms. Evans further testified about the deficiencies she saw in Mr. Elwood’s appraisal, which she considered much too low in value.
[49] Ms. Evans gave her evidence in a very professional and straightforward manner. She was not shaken on cross-examination. She is a very experienced appraiser and her critique of Mr. Elwood’s value was very persuasive. I accept her evidence.
[50] As I have determined that Mr. Gionet, along with Ms. Pingue, is a beneficial owner of the property, it is appropriate that the value of the matrimonial home be the current value, not that at date of separation in any event. Accordingly, I fix the value of the matrimonial home to be included on the net family property statements in the amount of $690,000.00.
[51] In order to complete the equalization calculation, the court must affix values for all other property owned by the parties on the date of separation. In comparing the parties’ respective net family property statements, I note that there are several items which have been agreed to. I will not deal with those matters. At trial, a draft net family property statement prepared by Mr. Gionet was filed as Exhibit 10. Certain items were highlighted in yellow and both Mr. Shapiro, on behalf of Mr. Gionet, and Ms. Pingue agreed to these highlighted values. It was agreed that neither party was required to provide further proof to the court regarding those highlighted values.
[52] I will go through in order those items where there is a discrepancy in value and make a determination with respect to each.
Household Goods
[53] Neither party has provided a comprehensive list of general furniture, household contents, nor is there any evidence or opinions of value with respect to the contents. The court cannot, and will not, ascribe a value without sufficient evidence to support the value. I am not even able to order a sale of the contents as I do not have a specific list of the items, nor any evidence as to whether or not they still exist. Accordingly, I am not including household goods or furniture in the net family property statements.
Vehicles
[54] 2005 BMW 330 CI. At the date of separation, this vehicle was in the name of the applicant. Mr. Gionet did not transfer title to the respondent until the spring of 2014. Mr. Gionet testified that despite the title being in his name, this was the respondent's motor vehicle and driven by her. Ms. Pingue testified that she was driving this motor vehicle prior to separation and it was involved in an accident. At the time of separation, the car was actually still at the garage as she had failed to pay a repair bill for work done on the car.
[55] Exhibit 32 is a copy of the lien details placed on the car, showing an outstanding balance owing to Performance Collision in the amount of $1,180.62. The debtor is listed as Franca Pingue. Exhibit 32 also includes a payment receipt dated August 9, 2016, wherein the respondent paid $2,694.82 to repay this debt. This evidence supports Mr. Gionet's evidence that despite the title, the respondent was the beneficial owner of the vehicle.
[56] In terms of the value, Mr. Gionet, at Exhibit 11, provided a Canadian black book average value for this motor vehicle and has suggested $14,000.00 is a reasonable value for the car. This value does not take into account that the car had been in a collision, or that it was subject to an outstanding repair lien. Ms. Pingue, in her net family property statement filed with the court at trial, listed that BMW as having a value of $12,000.00. Later, during the course of the trial, she produced as Exhibit 33 an Auto Trader listing for a 2004 BMW showing a value of $11,800.00. That vehicle is a year older than the vehicle in question. However, given the undisputed evidence of the collision and the lien, I am satisfied that the $11,800 is a more realistic value for this car.
[57] 2002 Dodge Dakota. The evidence of Ms. Pingue is that she sold the vehicle and each party received $300.00. Mr. Gionet confirms he received this money. That is the amount that I accept as the value of the vehicle.
[58] 2002 Jeep. The parties do not agree on the value of this Jeep. However, there does not appear to be any dispute that the Jeep was in fact a gift to Mr. Gionet, and any value will be excluded pursuant to s. 4(2) of the Family Law Act. Whatever the value, it will not affect any equalization payment. I will list the value of the Jeep at $3,500.00 and the same $3,500.00 will be excluded.
Jewellery, Art, Clothing and Gifts
[59] Once again, neither party has provided me with any documentation or evidence to support the values they suggest for these items. I do not have an exact list of items, nor evidence that they still exist at date of trial. Accordingly, I am not including any jewellery, art or clothing in the net family property statements.
[60] Ms. Pingue has included an item for building equipment on the net family property statement filed at Exhibit 34. I heard no evidence with respect to this equipment or its value, and I will not include it on the net family property statement.
[61] Ms. Pingue has included a gift she says she received from her uncle in the amount of $40,000.00. Ms. Pingue gave evidence during her testimony regarding the business opportunity her uncle provided her with respect to the purchase of the Nicholas Street property. She suggested that the price that she and Mr. Pingue paid for the property was less than its fair market value and that her uncle gifted solely to her the difference in that price. Firstly, there is no evidence whatsoever that the purchase price was anything but fair market value. Second, the Nicholas Street property ultimately was placed in the name of Mr. Gionet alone, and so it is difficult to understand how, even if there was a gift, it was anything but a gift to both of them. Ms. Pingue did not take the opportunity of having her uncle testify, who would have been able to confirm these matters for the court. An adverse inference is drawn because of the respondent’s failure to call this witness. I am not satisfied that there was any gift involved in the purchase of the Nicholas Street property, and accordingly this item is not allowed on the net family property statement.
Bank Accounts, Savings, Securities and Pensions
[62] Except for a few minor discrepancies, the parties seem to have agreed on values for these items. If an asset is jointly owned, any discrepancy will not impact the equalization calculation and so I have not dealt with it. I have used the numbers in the applicant's NFP, as they are more favourable to the respondent, as exact numbers appear to be used. Specifically, the respondent has included a $25.00 membership, the applicant has not. The applicant has valued the respondent's savings with President’s Choice Financial in an amount slightly less than that set out by the respondent.
[63] The respondent also included the bank account of PG-13 on her NFP. The evidence the court heard is that PG-13 Construction and Design was a company incorporated by Mr. Gionet in 2007. The respondent is not a shareholder or officer of that company. The parties have agreed on the value of that company at $29,890.92 and that value would necessarily include any bank accounts or other assets of the corporation.
[64] At trial, it was also conceded by both parties that Mr. Gionet received an HST rebate in the amount of $16,294.45, although this amount was not included on Ms. Pingue's NFP.
Debts and Liabilities
[65] The largest area of dispute involves the notional taxes on the applicant's RSP and RPP and the applicant's teacher’s pension.
[66] On consent, the report of Mr. Jocsak was filed as Exhibit 38. In that report, Mr. Jocsak calculated Ms. Pingue's tax liability at the rate of 21.6%, or $51,395.18, based on the lowest marginal rate of tax applicable. That tax rate was accepted by the applicant. Mr. Jocsak did speculate on certain higher calculations, which would be based on Ms. Pingue having $20,000.00 to $40,000.00 in rental income. Mr. Jocsak was not called as a witness. Ms. Pingue led no evidence about her probable future income. Without such a foundation, the court is not in a position to speculate as to what the respondent's future income would be in order to attract a higher marginal rate of tax. Exhibit 26, which contains copies of the respondent’s 2013, 2014 and 2015 income tax returns, discloses net rental income of $2,529.67, $688.89 and $11,436.00 respectively, nowhere near the $40,000.00 that would attract a 30.6% tax rate, as claimed by Ms. Pingue.
[67] The court also has no evidence regarding Mr. Gionet's potential future income. The applicant has accepted the same 21.6% used by Mr. Jocsak. Without any evidence to the contrary, it is reasonable that the court apply the same rate of tax to both the applicant's RSP and RPP and the respondent's teacher's pension, namely 21.6%.
[68] At trial, there also appeared to be some disagreement regarding the applicant’s President’s Choice Financial credit card balance at date of separation, along with the respondent’s Canadian Tire credit card. After hearing from both parties, and reviewing the exhibits filed, it appears that the parties agree that at separation Mr. Gionet paid $14,409.00 to the respondent's Canadian Tire credit card from his President’s Choice Financial credit card, and that Ms. Pingue had a balance of $18,299.00 on that Canadian Tire credit card on the date of separation. Early in the course of the trial, when Exhibit 10 was filed, the parties had more or less agreed to these numbers. For some reason, the court still heard substantial evidence from both parties regarding these numbers. I am content that the appropriate numbers to be included on the net family property statements are $14,409.00 and $18,299.00 respectively.
[69] Mr. Gionet also disputes the $5,052.82 that the respondent claims was outstanding on her Walmart credit card. The reason is that the letter from Walmart referenced a completely different number, and the statement showed an address in Niagara-on-the-Lake instead of the matrimonial home in Jordan. Further, the respondent has a brother named Fernando and these could just as easily be his charges. Ms. Pingue testified that the charges were hers and that she received a new credit card from Walmart, which is why there is a different account number on the Walmart correspondence (Exhibit 49). She also testified that she continued to use her parents’ address for certain matters. She filed a change of address with the Province of Ontario regarding her driver’s licence showing that she only changed her mailing address for that document in 2016.
[70] In her earliest financial statements filed with court, this debt is listed, however, it is in the amount of $1,475.91, not $5,052.82. Even Exhibit 34, her financial statement filed at trial, lists this debt at $1,475.91.
[71] Exhibit 49 has many items blacked out. The covering letter refers to an account ending with 9458. The statements refer to an account ending in 7626 and 7311. It was incumbent upon the respondent to clarify these matters. Her explanation, without something further, is not sufficient. She has not even provided verification of the $1,475.91 claimed in her earlier documents. I am not prepared to accept this debt.
[72] Although the respondent's costs of disposition with respect to the McGarry and Cody Trail properties do not coincide with the applicant’s, the parties at trial agreed on the numbers. I have accepted those numbers set out by Mr. Gionet, as they are supported by the reporting letters filed as exhibits. Interestingly, the respondent's numbers in her NFP were higher than the applicant's, which, if accepted, would be to her detriment.
[73] At trial, when Exhibit 10 was filed, the parties agreed on the RSP loan owed by the applicant at the date of separation, however, in her submissions, the respondent seems to question this amount. I rely on the admissions of the parties at trial.
[74] According to Mr. Anderson, if $80,000.00 was advanced from PG-13 to purchase the matrimonial home, then Mr. Gionet had to repay these monies to his corporation within 12 months. Unfortunately, Mr. Anderson could not confirm the payment of this $80,000.00 from PG-13. If these monies were advanced, and not repaid, then the funds become taxable in the hands of the shareholder. If Mr. Gionet reports this $80,000.00 income, using 2015 tax rates, Mr. Anderson testified that he would incur a $17,426.00 tax liability plus applicable interest and penalties.
[75] These monies were advanced when the matrimonial home was purchased in February 2011. Presumably the monies should have been repaid to PG-13 by 2012. Mr. Gionet offered no evidence that he in fact has reported this income to Revenue Canada in either 2012, 2013, 2014, or 2015.
[76] Mr. Anderson stated that if there is an audit, this tax liability would crystalize. There has been no such audit to date.
[77] There is no doubt this is a potential contingent tax liability. However, Mr. Gionet’s conduct to date gives the court pause as to whether or not this income will ever be declared. Unless there is an audit, this may never come to light. There is also no confirmation that the cheque came directly from PG-13.
[78] As well, if in fact the monies were repaid to PG-13, then this asset of $80,000.00 owed to PG-13 would undoubtedly factor into the value of this corporation.
[79] In these circumstances, I am of the view that this potential liability should be reduced to reflect these contingencies. I will permit the debt at 50% of its value, namely $8,713.00.
[80] The applicant also claims the potential tax liability he will incur if he claims the rent collected by the respondent at McGarry Drive. As he was the titled owner of this property, the income is his to declare. In fact, the rental income was not declared by either the applicant or the respondent.
[81] Mr. Anderson testified that if Mr. Gionet declared the net rent in 2014, this would result in a tax bill of $4,276.00 for 2014.
[82] Mr. Gionet has not provided any evidence that he has or intends to declare this rental income.
[83] As a result of this judgment, the court has determined that both the applicant and respondent are beneficial owners of this property. Whether or not this would impact any decision of Canada Revenue Agency is unknown.
[84] In the end, I am of the view that this claim is too speculative, and accordingly I do not allow this deduction.
[85] Lastly, Mr. Anderson testified that the sale of McGarry Drive could attract capital gain resulting in a tax liability of $1,404.00 to Mr. Gionet. I have no evidence this gain was claimed by the applicant in 2015, or any evidence from him that he plans to claim this amount. In my view, because of these contingencies, I am prepared to permit the claim at a reduced rate of 50% or $702.00.
Property Debts and Liabilities on Date of Marriage
[86] 1061 Vansickle Road was purchased by the applicant prior to the date of marriage. It was sold shortly after marriage, as evidenced by Exhibit 16. After taking into account the mortgage, the costs of disposition, and the homeowner loan, Mr. Gionet has calculated his equity at $33,084.42. The equity appears to have been agreed upon at trial, however, in her submissions, the respondent now questions the amount of the equity. The respondent's NFP acknowledges the asset, less a debt, and in fact, her numbers reflects a value higher than that claimed by the applicant. I am satisfied that the applicant’s equity is as calculated by him.
[87] The applicant has claimed an RRSP with the Investors Group with a net value of $776.93. The respondent acknowledges the existence of an RRSP, however, her number is significantly higher.
[88] The applicant has conceded that the respondent had monies in the TD Canada Trust account in the amount of $16,123.40 as set out in Exhibit 29.
[89] With respect to the respondent's accrued disability benefits with Manulife, Exhibit 39 sets out that the total accrued benefit to and including August 31, 2004 was $20,095.43. The date of marriage was August 10, 2003 and, accordingly, the respondent had accrued 104 days of this total benefit. The calculations done by Mr. Shapiro, and not challenged by Ms. Pingue, are that the pre-marriage portion of this benefit is $4,757.00.
[90] Ms. Pingue has provided the court with Exhibit 41, a statement showing a contribution to her Manulife RSP in the amount of $500.00 prior to the date of marriage. At January 1, 2005, $1,382.02 existed in this RSP, and accordingly I accept the $500.00 was in existence at the date of marriage.
Excluded Property
[91] The parties agree that the Jeep was a gift from the applicant's parents and the value of $3,500.00 is excluded.
[92] Now that I have determined the appropriate values to be included in the parties respective net family property statements, I reproduce below a new statement reflecting my findings of fact.
Table 1: Value of Assets Owned on Valuation Date
| Nature & Type of Ownership | Address of Property | Applicant | Respondent |
|---|---|---|---|
| Both beneficial owners | 8905 McGarry, Niagara Falls, Ontario, sale price $375,000.00, received by applicant | $375,000.00 | |
| Both beneficial owners | 3905 Cody Trail, Vineland, Ontario, sale price $540,000.00, received by applicant | $540,000.00 | |
| Both beneficial owners | 2772 Red Maple Ave., Jordan, Ontario, in possession of respondent | $690,000.00 | |
| Total value of land | $915,000.00 | $690,000.00 |
General Household Items and Vehicles
| Item | Description | Applicant | Respondent |
|---|---|---|---|
| Household goods | Not included for reasons given | $0.00 | $0.00 |
| Vehicles | 2005 BMW 330 CI | $11,800.00 | |
| 2002 Dodge Dakota | $300.00 | $300.00 | |
| 2002 Jeep | $3,500.00 | ||
| Jewellery, art, clothing | Not included for reasons given | $0.00 | $0.00 |
| Total value of household items and vehicles | $3,800.00 | $12,100.00 |
Bank Accounts and Savings, Securities and Pensions
| Category | Institution & Account Number | Applicant | Respondent |
|---|---|---|---|
| Savings | President’s Choice Financial 0075954644 | $581.19 | $3.32 |
| TFSA | President’s Choice Financial 0060517406 | $17,107.25 | $9,582.45 |
| Pension Plan | Catholic Teachers – Niagara School Board (estimated as of September 2013) | $237,940.64 | |
| Joint account | Meridian Credit Union 5895253 | $3,938.12 | $581.19 |
| RSP | Investors Group 972633 | ||
| RPP | Manulife Financial 10000271 | ||
| Total value of accounts and savings | $21,626.56 | $248,107.60 |
Business Interests
| Name of Firm/Company | Interest | Applicant | Respondent |
|---|---|---|---|
| PG-13 Construction and Design Ltd. | $29,890.92 | ||
| Total value of business interests | $29,890.92 |
Money Owed to You
| Details | Applicant | Respondent |
|---|---|---|
| HST rebate | $16,294.45 | |
| Total of money owed to you | $16,294.45 | |
| Total 1: Value of all property owned on the valuation date | $986,611.93 | $950,207.60 |
Table 2: Value of Debts and Liabilities on Valuation Date
| Category | Details | Applicant | Respondent |
|---|---|---|---|
| Mortgage on matrimonial home | Meridian Credit Union | $432,705.16 | |
| Credit card | MBNA | $11,998.79 | |
| TD credit line | Paid on Respondent’s Canadian Tire credit card | $14,409.00 | |
| Credit card | Canadian Tire | $18,299.00 | |
| Property tax | 2772 Red Maple Avenue | $1,099.64 | |
| Notional tax | Estimated income tax on teacher’s pension plan at 21.6% | $51,395.18 | |
| Mortgage | Meridian Credit Union on 8905 McGarry Drive | $297,629.14 | |
| Credit card | MBNA Mastercard | $11,849.50 | |
| Credit card | Home Depot | $12,613.24 | |
| Credit Card | President’s Choice Financial | $14,630.89 | |
| Costs of disposition | Real estate commission and legal fees on McGarry Drive | $22,167.57 | |
| Costs of disposition | Real estate commission and legal fees on 3905 Cody Trail | $22,334.07 | |
| Taxes | Notional tax on RSP & RPP @ 21.6% | $4,545.80 | |
| Credit card | Rona | $1,478.99 | |
| RSP loan | From Investors RRSPs | $5,776.00 | |
| Income tax – potential tax liability | 8905 McGarry Drive | $9,415.00 | |
| Total 2: Debts and Liabilities | $416,849.20 | $515,497.77 |
Table 3: Net Value on Date of Marriage of Property
| Category and Details | Applicant | Respondent |
|---|---|---|
| Assets | ||
| 1061 Vansickle Road - $134,500.00 less estimated mortgage of $75,000.00, costs of disposition $7,199.58 and RSP home owner loan $19,216.00 | $33,084.42 | |
| Assets – RRSP Investors Group ($990.98 less notional tax at 21.6%) | $776.93 | |
| TD Canada Trust chequing accounts | $16,123.40 | |
| Pre-existing disability claim Manulife | $4,757.00 | |
| RSP | $500.00 | |
| Total 3: Net Value of Property Owned on Date of Marriage | $33,861.35 | $21,380.40 |
Table 4: Value of Property Excluded under subs. 4(2) of the “Family Law Act”
| Item | Applicant | Respondent |
|---|---|---|
| Gift – Jeep | $3,500.00 | |
| Total 4: Value of Excluded Property | $3,500.00 | $0.00 |
Total 2: Debts and Other Liabilities Applicant: $416,849.20 Respondent: $515,497.77
Total 3: Value of Property Owned on Date of Marriage Applicant: $33,861.35 Respondent: $21,380.40
Total 4: Value of Excluded Property Applicant: $3,500.00 Respondent: $0.00
Total 5: (Total 2 + Total 3 + Total 4) Applicant: $454,210.55 Respondent: $536,878.17
Total 1: Value of Property Owned on Valuation Date Applicant: $986,611.93 Respondent: $950,207.60
Total 5: Applicant: $454,210.55 Respondent: $536,878.17
Total 6: Net Family Property (Subtract: Total 1 minus Total 5) Applicant: $532,401.38 Respondent: $413,329.43
EQUALIZATION PAYMENTS Applicant Pays to Respondent ($119,071.95 ÷ 2): $59,535.98
[93] I now turn to the final issue.
[94] The respondent argues that she made significant payments post-separation for which she has received no credit. Tied in with these post-separation expenses is an accounting regarding rents Ms. Pingue received from both the McGarry and Red Maple property.
[95] I will deal first with the rents. In his evidence, the applicant is adamant that he never received any rental income from the McGarry property subsequent to the separation of the parties.
[96] The respondent in her sworn affidavit filed with the court dated August 7, 2015 acknowledged that she collected the rent from the McGarry property from the date of separation until the date Mr. Gionet regained possession of the McGarry Drive property.
[97] When the respondent gave her evidence at trial, she suggested that in fact she was not correct and that the applicant received rent after the initial months of separation. It is interesting that this same information was not provided to the respondent’s expert, Mr. Lewis, when she instructed him regarding the preparation of his report.
[98] On the totality of the evidence before me, I am satisfied on a balance of probabilities that it was the respondent who received all rent on the McGarry Drive property from the date of separation until Mr. Gionet regained possession.
[99] To assist the court in determining what the total rents were, the court has the benefit of two experts. Ms. Pingue called Mr. Jeffrey Lewis and his report was filed as Exhibit 25 at trial. Mr. Gionet retained Mr. John Anderson and his report was filed at Exhibit 54.
[100] To summarize, Mr. Lewis, based on the information provided to him by Ms. Pingue, calculated that $44,610.00 was collected in rental income by the respondent. Mr. Anderson accepts Mr. Lewis’s figure but concludes that the amount is likely higher and could in fact be as high as $52,050.00. Part of the discrepancy is that although there are deposits into the respondent’s bank account corresponding to a tenant, Mr. Rizzo, in the amount of $2,500.00 a month, the evidence of the respondent was that the tenant was only paying $2,200.00 a month and that the tenant was given a $300.00 a month credit toward cleaning.
[101] Mr. Anderson was unable to verify this $300.00 cleaning credit from the respondent’s documents. Mr. Lewis did not comment on this issue.
[102] Mr. Shapiro argues that just this difference of $300.00 a month for the 15-month period of the lease would result in rents being increased by $4,500.00, or a total of $49,110.00.
[103] As there is no source document to substantiate the evidence of Ms. Pingue regarding any credit, I find that the rent for this tenant was $2,500.00 a month for 15 months. Accordingly, the total rents collected by Ms. Pingue shall be fixed at $49,110.00.
[104] Applied against these credits or rents Ms. Pingue received are the various expenses she paid for the benefit of herself and Mr. Gionet. The difficulty in determining exactly what these expenses were, is the unorganized fashion in which Ms. Pingue presented her documentation and evidence to Mr. Lewis and the court. As Mr. Anderson opined in his report filed at Exhibit 54, “the file as presented is confusing at best and not presented in a format which is entirely useful to the users.”
[105] Also of concern is the fact that Ms. Pingue did not comply with the order of the court and file any report in a timely fashion. Mr. Lewis’s report was in fact not prepared and filed until July 16, 2016.
[106] In any event, I find that both experts made all reasonable attempts to get the full information before the court regarding Ms. Pingue’s expenses. To summarize, Mr. Lewis, using Ms. Pingue’s documentation, alleges that Ms. Pingue is entitled to some $85,808.15 from Mr. Gionet after taking into account the $44,610.00 he found she received in rental payments. Of this $85,000.00, Mr. Lewis was unable to verify $29,222.05 which came from Ms. Pingue’s President’s Choice bank account. Other payments not from the President’s Choice bank account, which he found to be $54,934.79, could only be verified in the amount of $23,728.43.
[107] Ms. Pingue claimed additional notional charges of $20,052.25, which Mr. Lewis advised, because of their nature, could not be verified. Those items included things like tenant placement fees, lost revenue charges, management fees, opportunity costs and interest.
[108] On cross-examination, Mr. Lewis also acknowledged that some of the claims had already been included in the net family property statements, and accordingly could be excluded from his calculations. For example, the $18,299.00 allowed as a debt owing to Canadian Tire Mastercard is included on the respondent’s net family property statement.
[109] Mr. Lewis was also not aware that there were two cards attached to the President’s Choice Mastercard statement. Mr. Anderson in his report concluded that the respondent had charged more than $18,000.00 to the applicant’s account. This number was never included in Mr. Lewis’s report.
[110] Without any of these adjustments or corrections, Mr. Lewis, in his cross-examination, acknowledged that the only items that he was able to verify totalled some $49,400.00 and that amount would be offset by the $44,610.00 he found in rental revenue.
[111] Mr. Anderson, in reviewing Mr. Lewis’s report, concluded that if the rental incomes were increased, and other credits allowed, for example, the $18,600.00 to the applicant’s President’s Choice Mastercard, the end result would be that the rent in fact exceeded the verified expenses paid by Ms. Pingue.
[112] Like Mr. Lewis, he completely discounted the more than $20,000.00 Ms. Pingue claimed for notional expenses. He explained that he saw no evidence of any agreement for the payment of these expenses and that they should not be allowed.
[113] After reviewing the evidence of each of Mr. Lewis and Mr. Anderson, I cannot accept the evidence of Ms. Pingue with respect to all of the expenses she claimed. It would appear that whatever expenses were in fact paid by Ms. Pingue, they are more than offset by the rent that she received.
[114] Accordingly, the respondent’s claim for post-separation expenses is dismissed as is the applicant’s claim for any rent due from Ms. Pingue to him.
[115] Judgment to go as follows:
(1) Divorce judgment to issue; (2) Applicant to pay an equalization payment to the respondent in the amount of $59,535.98. (3) Applicant’s claim for an accounting of rents is dismissed; (4) Respondent’s claim for post-separation expenses is dismissed; (5) After the issue of costs has been determined and the equalization payment is made, the balance of the funds currently held in the trust account of Lui DeLisio shall be released to the applicant. (6) If the parties are unable to agree on the issue of costs they may provide me with written submissions within 30 days of today’s date; submissions not to exceed five pages in length. Parties are to provide the court with any written offers to settle.
Walters J.
Released: January 9, 2017
COURT FILE NO.: 14/604 DATE: 2017/01/09 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Guy Gionet Applicant - and - Franca Pingue Respondent REASONS FOR JUDGMENT Walters J. Released: January 9, 2017