Marchese v. Marchese, 2017 ONSC 6815

CITATION: Marchese v. Marchese, 2017 ONSC 6815

COURT FILE NO.: FS-13-00386181

DATE: 20171115

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANGELA MARCHESE

Applicant

– and –

GIULIANO MARCHESE

Respondent

Angela Marchese, on her own behalf

Elaine Forbes McCallum, for the Respondent

HEARD: September 18-22, 2017

M. D. FAIETA j.

REASONS FOR DECISION

INTRODUCTION

[1] The parties, Angela Marchese (“Angela”) and Giuliano Marchese (“Giuliano”) separated after eighteen years of marriage on July 7, 2012. Angela and Giuliano have three children: Nadia, age 22, and Sandra, age 19 and Laura, age 16 (not their real names). The children live with Angela. At this point, given her age, Laura is the only “child of the marriage” within the meaning of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”). At trial, the evidence primarily revolved around the calculation of each party’s “net family property” and whether the matrimonial home should be sold.

[2] For the reasons described below I have found, amongst other things, that: (1) the matrimonial home shall be listed for sale; and, (2) counsel for Giuliano shall deliver to the court an updated net family property statement that adopts my findings below regarding the values of various items. Upon receipt and consideration of that updated statement, I shall make a further order.

BACKGROUND

[3] Angela and Giuliano were married on June 25, 1994 in Toronto, Ontario.

[4] Angela worked as a supply teacher with the Toronto Catholic District School Board until Laura was born. She has been a homemaker since that time.

[5] Giuliano is an electrician. He worked 13 years for Nortown Electric until 2015. During this time, he also operated a business, Better Electric. By all accounts, including Angela, Giuliano worked very hard. Giuliano last worked in March, 2016 and has been unemployed since his employer downsized.

[6] Dr. Margaret Bennett has been Giuliano’s family physician since 1996. She testified that Giuliano has numerous ailments including degenerative disc disease throughout his lumbar spine, Gitelman’s syndrome (which is a genetic kidney disorder), high blood pressure and gout. For these conditions, Giuliano is prescribed a variety of drugs including anti-inflammatory and pain relieving drugs. In about 2011, Giuliano had surgery to repair a disc in his spine that was causing pain to shoot down his leg.

[7] For the last 18 months, again experienced shooting pain down his leg. Dr. Bennett testified that a MRI revealed that fragments from the 2011 surgery might be the cause of this latest pain. She has referred Giuliano to a neurosurgeon which may lead to further surgery to correct this condition.

[8] It is Dr. Bennett’s opinion that Giuliano’s degenerative disc disease will worsen and that even with surgery he will continue to have back pain. It is Dr. Bennett’s view that Giuliano has significant limitations – he cannot work with his arms above his head; he cannot stand for more than 10-15 minutes, he cannot climb a ladder or carry more than 5 or 10 pounds.

[9] Giuliano states that he began drinking alcohol excessively in about 2002. He states that he had “never touched” alcohol before that time and his consumption soon became “out of control”. Angela testified that Giuliano assaulted her on several occasions between 2007 and 2012 which culminated with Giuilano’s arrest at the matrimonial home on July 7, 2012. On July 25, 2012, Giuliano was convicted of two counts of assault with a weapon, threatening death and failing to comply with his own recognizance. He was imprisoned for 30 days. He was also ordered for a period of three years to, amongst other things, keep the peace and be of good behavior, be under the supervision of a probation officer, not possess or apply for any gun permits, not carry or possess weapons and seek and attend counselling and rehabilitative programs for anger management, alcohol abuse and PARS (Partner Assault Response Service) as directed, not to associate, contact or communicate with his daughters or be within 100 metres of any place where they live, work or happen to be known to him except through a Family Court order, not to attend the matrimonial home, not to reside in a residence where firearms are present.

[10] Angela testified that Giuliano tried to break into the matrimonial home on May 2, 2013 while her daughter was at home. He was charged with two counts of failing to comply with the conditions of probation. He was released on a recognizance of bail in the amount of $40,000.00 with his sister, Maria Pellegrino, as his surety. Giuliano testified that these charges were dismissed on May 7, 2014 for lack of evidence. In 2016, he commenced an action for malicious prosecution against Angela and her parents. That action remains outstanding.

[11] In May 2016, Angela retained Edward Franco, a private investigator, to conduct surveillance in order to determine whether Giuliano was stalking Angela and to determine whether he was employed. Over about a 23-day period, Mr. Franco testified that he found no evidence of stalking or harassment. On four days, his staff observed that Giuliano had entered the employee entrance at Sunnybrook Hospital for an unknown length of time. His staff not observe Giuliano inside the hospital. Mr. Franco charged Angela about $10,000 for his services and has been paid about one-half of that amount. Giuliano testified that he has a friend who owns a data communications company that manages the data communication room at Sunnybrook Hospital. Giuliano testified that he was interested in learning about this type of work because it has some similarities to being an electrician yet is less physically demanding. Giuliano states that he decided not to pursue this line of work because he would have to return to college to obtain a certificate in this field in order to work at an institution such as Sunnybrook Hospital.

[12] Currently, and at the time of separation, the parties jointly own the matrimonial home and a rental property (the “Bentworth property”). At the time of separation, Giuliano owned a one-half interest in a second rental property (the “Dufferin property”) with his brother. About one month after the date of separation, Giuliano transferred his interest in the second rental property to his sister.

[13] Angela has lived in the matrimonial home with her three daughters since the date of separation. She also collected the rent for the Bentworth Property. Giuliano lived in an apartment and, since March 2017, has lived in the basement unit of Bentworth property and collected the rent for the main floor apartment.

[14] This litigation has an unnecessarily long history and the following includes only a few of the orders that have been issued:

• July 12, 2013 – amongst other things, on consent and without prejudice to the position of either party the Respondent shall pay child support of $1,529 per month based on his current income of $79,955 per year;

• August 21, 2013 - December 8, 2015 – amongst other things, the Matrimonial Home shall be vested in Angela’s name;

• April 14, 2014 – amongst other things, the parties consent to an order that they will forthwith list for sale the Bentworth Property;

• January 6, 2015 – title to the matrimonial home vested in Angela in order to permit her to refinance the matrimonial home up to $500,000 subject to: (1) Giuliano retaining the right at trial to continue to assert a claim for equalization of net family property and including his interest as a joint owner of the matrimonial home; (2) Giuliano has the right to ask the trial judge for an order for sale of the matrimonial home as if he remained a joint owner; (3) Angela obtaining sufficient refinancing to pay all liens or other encumbrances related to Giuliano particularly any lien or encumbrance registered by the Director of Family Responsibility;

• February 9, 2016 – Angela shall deliver a draft payout statement in respect of the refinancing of the Matrimonial Home arranged through Mega Mortgage Inc; all execution writs against Angela shall be paid from the mortgage proceeds; as well 12 months of future mortgage payments ($40,300), outstanding property taxes ($9,675.84), future property taxes ($3.200);

• July 8. 2016 – the arrears of spousal and child support on the books of the FRO as of June 23, 2016 are reduced to $16,092.00; child support for the three children shall be reduced to $1,127 per month effective July 1, 2016; spousal support shall be reduced to $669 per month effective July 1, 2016; Angela shall provide an accounting of rents for the Bentworth Property by September 15, 2016; Angela shall file her income tax returns by September 12, 2016;

• December 23, 2016 – the arrears of spousal and child support and costs as of December 12, 2016 on the books of the FRO shall be $23,863.47 without prejudice to the parties right to request adjustments based on the parties’ income;

• February 7, 2017 – spousal support is suspended as of January 31, 2017 without prejudice to any adjustments at trial; child support is not suspended however there shall be no enforcement by the FRO pending further order of this court; Angela shall provide the completion mortgage application that she made in 2015 to Home Trust; copies of all bank accounts and credit card statements in her name from June 2014 to present; Angela shall pay costs of $1,000; and

• March 17, 2017 – effective March 17, 2017, Giuliano has the right to take exclusive possession of the Bentworth Property, to occupy one of the units, to make all decisions with respect to tenants, repairs, etc.

[15] At trial, the parties agreed that the following relief be granted:

(1) A divorce;

(2) No spousal support for Angela after September 30, 2017;

(3) No child support for Nadia and Sandra after September 30, 2017;

(4) Child support be paid for Laura in accordance with the Child Support Guidelines based on Giuliano’s income;

(5) Giuliano shall maintain a policy of life insurance in the amount of $50,000 for so long as he is obliged to pay child support and shall designate Angela as the irrevocable beneficiary of such policy. Further: (1) Angela shall be entitled to confirm that the insurance policy is in force and that she is the irrevocable beneficiary directly with the insurer; and (2) Giuliano shall direct any such insurer to give notice to Angela in the event that such policy may lapse or be terminated for any reason and that any payments made by Angela to keep such policy in force shall immediately be reimbursed by Giuliano to Angela and be a charge on his estate or be deemed support payments and enforced as such; and

(6) Any unpaid child support and child expenses shall be a first charge against Giuliano’s estate.

[16] The following issues were addressed at the hearing:

(1) Should the matrimonial home be sold?

(2) The equalization of net family property

(3) Should the amount of child and spousal support be retroactively varied?

ISSUE #1 – SHOULD THE MATRIMONIAL HOME BE SOLD?

[17] Giuliano asks this court to order the sale of the matrimonial home. Angela opposes this request and asks that ownership of the matrimonial home transferred to her and that ownership of the Bentworth property be transferred to Giuliano. Angela’s request misconceives the scheme of the FLA in that it does not provide for the distribution of assets in specie.

[18] The determination of whether a matrimonial home should be ordered to be sold is governed by the Partitions Act, R.S.O. 1990, c. P.4 and the principles articulated by the Ontario Divisional Court in Kaphalakos v. Dayal, 2016 ONSC 3559, at paras. 16-17:

(a) a joint tenant has a prima facie right to an order for the partition or sale of lands held with another joint tenant;

(b) a court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made;

(c) the party opposing the sale must show malicious, vexatious or oppressive conduct to avoid the order; and

(d) the malicious, vexatious or oppressive conduct must relate to the partition and sale issue itself and not to the general conduct of the person bringing the motion.

[19] Angela submits that the matrimonial home should not be sold because its location is convenient for her children and because it affords sufficient space for them to live with her once they marry. Giuliano asks for the matrimonial home to be sold for two reasons: (1) to unlock the equity in that home; (2) they cannot afford to maintain the mortgage of about $490,000 and other operating costs of the matrimonial home as neither party is employed nor has the means to cover those costs. There is no evidence of malicious, vexatious or oppressive conduct on Giuliano’s part in requesting that the matrimonial home be sold, nor is any such conduct alleged by Angela.

[20] Accordingly, I order as follows: a) the matrimonial home shall be listed for sale by December 15, 2017 with a real estate agent acceptable to both parties, at a listing price recommended by the listing agent, with a closing date no later than March 15, 2018; b) each spouse shall submit to the other spouse the names of two acceptable real estate agents for this purpose by November 24, 2017; c) if the parties are unable to agree on a listing agent, counsel may contact my office to schedule an attendance with a view to resolve the disagreement prior to December 8, 2017; d) the spouses shall fully co-operate with the recommendations of the listing agent in the sale of the matrimonial home; e) if the matrimonial home is not sold by February 28, 2018, the parties may return to the court for further directions if required. Any of the above terms for the sale of the matrimonial home may be varied with the consent of both spouses.

ISSUE #2: EQUALIZATION OF NET FAMILY PROPERTY

[21] Spouses are entitled to an equalization of their net family property upon separation under section 5 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”). This entitlement was explained by M.L. Benotto, J.A. in Virc v. Blair, 2017 ONCA 394, at para. 14, as follows:

On separation, spouses are entitled to share equally in the increase in value of their respective property from the date of marriage to the date of separation. For that reason, each spouse has an obligation to value his or her property as of the date of marriage and the date of separation. The difference between the two values is the party's net family property. The spouse with the higher net family property pays the spouse with the lower net family property an equalization payment representing one-half of the difference between their net family property values.

[22] While the FLA provides little guidance on what is the measure of the “value” of property, typically, the value of a property is its “… highest price expressed in terms of money or monies worth obtainable in an open and unrestricted market between informed and prudent parties acting at arm's length and under no compulsion to transact.”: see Montague v. Montague [1996] O.J. No. 2485, para. 4 (Ontario Court of Appeal).

[23] Additional principles related to the valuation of property under the FLA were described by Gordon J. in Conway v. Conway 2005 CanLII 14136 (ON SC), [2005] O.J. No. 1698, at paras. 13-15:

In an action such as this, the parties are required to serve and file a financial statement pursuant to sections 8 and 41, Family Law Act. Rule 13(6), Family Law Rules, directs the parties to "make full and frank disclosure". This pertains to income, expenses, assets and debts and liabilities. Income and expenses are to be accurately described. Similarly, assets and debts and liabilities must be authentic and properly valued. If required, as here, all supporting documents must be disclosed.

The onus is on the party asserting a value for an asset under his or her control, to provide credible evidence in support: see, for example, Menage v. Hedges (1987), 1987 CanLII 5234 (ON SC), 8 R.F.L. (3d) 225 (U.F.C.). A party must provide a realistic value and, if such cannot be readily ascertained, an independent valuation must be obtained: see, for example, Pennock v. Pennock (2000), 2000 CanLII 22555 (ON SC), 4 R.F.L. (5th) 293 (S.C.J.); Dearing v. Dearing (1991), 1991 CanLII 12812 (ON SC), 37 R.F.L. (3d) 102 (Gen. Div.); and Katz v. Katz (1989), 1989 CanLII 8837 (ON SC), 21 R.F.L. (3d) 167 (U.F.C.). Failure to provide such credible evidence may, therefore, result in the court assigning a value less advantageous to that party.

Similarly, failure to present relevant evidence, in support of a position advanced by a party, may result in an adverse inference. This, for example, pertains to disclosure not made or a necessary witness not called to testify: see, for example, Levesque v. Comeau 1970 CanLII 4 (SCC), [1970] S.C.R. 1010 (S.C.C.). In addition, the best evidence rule requires the production of documents which are relevant to an issue, not simply a reference to it in oral testimony.

[24] Finally, if spouses cannot agree on the division of jointly held assets, then it is appropriate to sell that asset and divide its net proceeds equally: Sheikh v. Sheikh 2005 CanLII 14151 (ON SC), [2005] O.J. No. 1712, paras. 122-125.

[25] The onus is on the party seeking to impute income to establish an evidentiary basis that the other party is intentionally under-employed or unemployed (Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28).

Dufferin Property

[26] Giuliano owned a one-half interest in the Dufferin Property on the date of the marriage and at the date of separation.

[27] Giuliano purchased a one-half interest in the Dufferin Property from his brother Vito Marchese in 1989 for the sum of $130,000.00. There were two residential rental units in the house on the main floor and the second floor. In 1994, Giuliano and Vito spent about $59,000 to underpin this semi-detached house in order to increase its ceiling height and convert the basement into a residential rental unit. Giuliano sold his interest in the Dufferin Property to his sister, Pina, for $175,000.00 after he was arrested in July 2012 in order to retain and pay for a criminal lawyer. He states he did not have any other source of funds to pay his criminal lawyer’s fees of about $130,000.00.

[28] Vito Marchese is an auto body repairman who, for many years, has worked out of the garage in the backyard of the Dufferin Property. He testified that he drew $60,000 on a line of credit to pay for renovations on the main floor and that Giuliano drew $60,000 on another line of credit to pay for renovations to the basement. Both lines of credit were with the CIBC bank. Vito stated that the Dufferin Property, despite these renovations, still requires massive renovations. After Giuliano separated from Angela, Vito wished to acquire Giuliano’s interest in the Dufferin Property but had neither the funds nor the ability to obtain a mortgage based on his own earnings. He arranged for his sister Giuseppina Marchese to acquire Giuliano’s interest for $175,000.00 which would cover his original purchase price and the costs incurred by Giuliano to that time. This sale occurred on September 7, 2012. Giuseppina is a school teacher and owns other property. Given her better credit, Giuseppina arranged for a mortgage from the Royal Bank of Canada to finance the purchase from Giuliano. She testified that, about one month later, on October 17, 2012, she sold her interest to Vito when she decided that she no longer wished to own the Dufferin Property given the costly repairs that it requires. Vito states that although the stated value of the charge on title is $490,000.00, there is only about $160,000 owed on the mortgage held by RBC which he pays at a rate of about $500 per month.

[29] Angela submits that the value of the Dufferin Property is $400,000.00 as of the date of separation. Angela did not submit any appraisal evidence to support her position.

[30] Given the limited evidence, I find that Giuliano’s interest in the Dufferin Property had a value of $105,000 as of the date of the marriage. I also find that Giuliano’s interest in the Dufferin Property had a value of $175,000.00 as of the date of separation given that it was purchased for that amount about one month later by his sister. The sale price is greater than the appraised value relied upon by Giuliano. I doubt that he would have asked for, and that his sister would have paid an inflated price for his interest in the Dufferin Property.

[31] Giuliano submits that the legal fees of $853.20 that he incurred to transfer the Dufferin Property to his sister as well as the capital gains tax that he paid ($3,032.41) should be deducted from the above amount.

Bentworth Property

[32] Angela and Giuliano jointly own the Bentworth Property. The parties obtained a joint valuation. They agree that their interest in the Bentworth Property was $287,500.00 at the date of marriage and that their interest had a value of $415,000.00 at the date of separation.

[33] Angela sought that ownership of the Bentworth Property be transferred to Giuliano and that ownership of the Matrimonial Home being transferred to her. Given that I have granted Giuliano’s request that the Matrimonial Home be sold, and given that Giuliano also seeks the sale of the Bentworth Property, I also order that the Bentworth Property be sold for the same reasons and on the same terms as the Matrimonial Home.

[34] Angela managed the Bentworth Property until March 2017. She has not provided a full accounting of the income and expenses for that property.

Certain Home Contents

[35] Giuliano was arrested and removed from the matrimonial home on July 7, 2012 by the Toronto Police Service. He did not return to the matrimonial home. Angela kept the contents of the home. She admits that she sold the following items without notice to Giuliano or his consent.

a) Antique dining room table and six chairs: Sold for $1,500.00. Giuliano states that these items had a value of $12,000;

b) Antique china cabinet with angels. Sold for $1,000.00. Giuliano states that these items had a value of $12,000;

c) Antique china cabinet regular: $1,000;

d) Noritake Fine China. Sold for $500. Giuliano states that it had a value of $7,500;

e) All crystal. Sold for $300. Giuliano states that it had a value of $15,000;

f) Ariens snow blower: Sold for $200. Giuliano states that it had a value of $1,500;

g) Nella Cutlery slicer and knives: Sold for $140. Giuliano states that it had a value of $750;

h) Weber BBQ. Sold for $300. Giuliano states that it had a value of $1,300; and

i) Adirondack chairs. Sold for $80. Giuliano states that they had a value of $300.

[36] In addition to the above list, Giuliano claims the value of two kitchen sets ($3,400), an oil painting ($1,500), and Italian display tower ($3,500), an outdoor bench ($250), engagement gifts of cutlery sets ($1,800). He places a value of $100,000.00 on all household items as of the date of separation as his evidence is that he paid that amount for the furniture. His evidence is that the dining room table was purchased for $20,000.00.

[37] Angela places a value of $8,000.00 as of the date of separation. Angela has not provided a list of the furniture in the matrimonial home at the time of separation nor a list of the furniture that she sold with supporting documentation in relation to any sales.

[38] Angela’s actions make the proper valuation of the furniture impossible at this point. Given that these assets were under her control, and some remain under her control, I find that Angela has failed to discharge the onus of proving the value of the furniture. I place a value of $20,000.00 on the contents of the home, other than as described below, at the date of separation.

Wife’s Jewelry

[39] Angela states that she sold all her jewelry, together with Giuliano’s jewelry, by weight to a family friend.

[40] Angela submits that the value of her jewelry as of the date of separation is $1,250.00. She has not provided a list of such jewelry nor any appraisals of that jewelry. Earlier in this proceeding Angela submitted a list which states that “all accumulated gold sold for $2,000” to Tony Lombardi. No receipt was provided.

[41] Giuliano places a value of $20,000.00 on his wife’s jewelry. He recalls that he paid $4,700.00 for her engagement ring. On their honeymoon, he purchased a pearl necklace and bracelet at a cost of $4,000.00. He has no appraisal evidence. However, he relies on the purchase price of that jewelry. He states that he paid $4,000 for jewelry that he purchased for Angela on their honeymoon.

[42] I find that the value of Angela’s jewelry at the date of separation was $10,000.00.

Husband’s Jewelry

[43] Angela admits that she sold Giuliano’s jewelry without notice or permission.

[44] Giuliano recalls that after his arrest he left behind a Longine’s watch (which he values at $2,500), an engagement ring with a diamond ($3,000), an 18 carat gold necklace given to him by his godmother for his baptism ($3,000) and a gold necklace with another gold religious medallion ($3,000), a wedding band ($750) and a gold cross ($1,250). In direct examination, he estimated that his jewelry had a value of $20,000.00. There is no appraisal evidence to support this valuation other than Giuliano’s assurance that he “knows jewelry”. Similarly, Angela has no evidence regarding the value of Giuliano’s jewelry, other than she sold his jewelry, by weight, along with the remainder of the family’s jewelry for $20,000.00. Angela places a value of $1,250.00 on Giuliano’s jewelry. While I rely on the items on the list provided by Giuliano, I find that in the absence of any appraisal evidence, that his jewelry had a value of $10,000 at the date of separation.

Silver Bars and Coins

[45] Earlier in this proceeding Angela delivered a list which states that “all accumulated silver sold for $12,000”.

[46] Giuliano states that he purchased silver in the form of bars and coins during their marriage. Angela testified that they owned a total of 865 ounces of silver. Angela states that they spent $40,000.00 during the marriage to purchase these bars and coins. At trial, Giuliano states that they spent $53,000 to purchase this silver and admitted that these items were jointly owned with Angela. In her Financial Statement, Angela submits that the silver bars and coins had a value of $23,917.26 as of the date of separation. In his Financial Statement, Giuliano submits that the silver bars and coins had a value of $23,224.00 as of the date of separation. I accept the approximate mid-way point between the two valuations – namely, that the silver had a value of $23,571.00 at the date of separation.

2005 Dodge Caravan

[47] Giuliano states that he purchased a “fully loaded”, used 2005 Dodge Caravan in 2006. Sole ownership of this automobile was transferred to Angela after their separation.

[48] He states that it had a value of $8,500.00 on the date of separation. Angela states that she guesses that it had a value of $2,500.00 on the date of separation. Neither party has provided any appraisal evidence. I select the mid-point of $5,500.00 as the value of this vehicle on the date of separation.

2010 Dodge Ram

[49] Giuliano owned a 2010 Dodge Ram on the date of separation. He purchased this truck on August 6, 2010 for $44,575.00 plus tax (see Exhibit 21). Giuliano submits that it had a value of $13,079.17 on the date of separation (July 7, 2012). He relies upon a Used Vehicle Information Package, dated June 27, 2013, which states that this truck had a wholesale value of $17,775.00 and a retail value of $19,975.00 for the purpose of the calculation of retail sales tax. He also relies on an invoice from Downsview Chrysler, dated September 7, 2013, which estimates that the cost of repairing this truck for damages related to a collision was $4,695.83. There is no evidence that this collision occurred before the date of separation.

[50] Angela submits that this truck had a value of $45,000 on the date of separation.

[51] Given the limited appraisal evidence I find that the truck had a value of $19,975.00 at the date of separation.

1969 Pontiac GTO Judge Coupe

[52] Giuliano owns a 1969 GTO Judge Coupe. It was purchased by Giuliano during the marriage. This automobile remains in the garage of the matrimonial home. Giuliano commissioned, and relies upon, an appraisal dated September 2, 2013 prepared by Ron Wilson of RJ Vintage Garage. Mr. Wilson appraised the fair market value of this automobile to be $17,000.00 as of August 29, 2013. He stated that its fair market value as of July 7, 2012 would be “very similar”.

[53] Angela submits that this automobile has a value of $25,000.00. No appraisal, insurance or other documentary evidence was provided to support this figure.

[54] I find that the GTO Judge Coupe had a value of $17,000.00 on the date of separation.

1969 Pontiac GTO Convertible

[55] Giuliano also owns a 1969 GTO Convertible. It was purchased by Giuliano on August 6, 2009 for $30,000.00. This automobile remains in the garage of the matrimonial home. Giuliano commissioned, and relies upon, an appraisal dated September 2, 2013 prepared by Ron Wilson of RJ Vintage Garage. Mr. Wilson appraised the fair market value of this automobile to be $15,000.00 as of August 29, 2013. He stated that its fair market value as of July 7, 2012 would be “very similar”.

[56] Angela submits that this automobile has a value of $30,000.00. No appraisal evidence was provided to support this figure. However, I note that a letter dated April 19, 2012 from Lant Insurance Brokers shows that Giuliano insured this automobile for $30,000.00.

[57] I find that the GTO Convertible had a value of $30,000.00 given that Giuliano insured the automobile for that amount a few months before the date of separation.

Coca-Cola Vending Machine

[58] Giuliano states that he acquired a 1953 Coca-Cola vending machine when he was a teenager from his employer as payment for his work over the course of one summer. He states that the machine appeared to be in great condition but it was not functional as it required certain refrigeration repairs. He estimates that it would have a value of $14,000.00 if it was functional. In its condition, Giuliano places estimates its value at $4,500.00. Angela places a value of $2,500.00. Neither party provided any appraisal evidence or other evidence of its value.

[59] Angela testified that she sold the vending machine, and various old bottles of Coca-Cola, for $1,800.00 after the date of separation. Given that she sold Giuliano’s property without notice or consent, she should have at least obtained an appraisal of its value prior to its sale. Given the circumstances, I accept Giuliano’s evidence that the Coca-Cola vending machine had a value of $4,500.00 on the date of separation.

Tools

[60] Giuliano claims that he had tools stored at the matrimonial home that have now vanished. Angela states that she moved the tools to a shed in their backyard and that Giuliano retrieved the tools. Giuliano denies this assertion. I accept Giuliano’s evidence that he did not retrieve his tools. On the other hand, there are few details regarding the tools that have vanished. He places a value of $20,000 to $30,000.00 on these tools. Angela does not offer a valuation. I place a value of $3,000.00 on these tools at the date of separation.

Joint Account

[61] Angela admits that she removed all funds from the joint bank account that she held with Giuliano after his arrest on the date of separation. I accept Giuliano’s evidence that the amounts of $6,361.21 and $6,078.42 in each of his two bank accounts were removed by Angela following their separation while he was incarcerated.

ISSUE #3: SHOULD THE AMOUNT OF SPOUSAL AND CHILD SUPPORT BE RETROACTIVELY VARIED?

[62] By Order dated February 7, 2017 Justice Harvison-Young ordered that spousal support was suspended as of January 31, 2017. At trial, Angela acknowledged that she was not seeking spousal support. Justice Harvison-Young did not suspend the payment of child support but permit arrears to accrue.

[63] Giuliano submits that: (1) he earned $45,000 in 2016 and thus there was an over-accrual of child support in the amount of $3,024 in 2016; (2) given that he only received $750 per month in social assistance during 2016, child support should have ended December 31, 2016 and as a result the amount of child support arrears should be reduced by $10,143 from the FRO’s account. I accept both of the submissions and direct the child support arrears as shown on the FRO’s account be reduced by $13,167.00.

[64] With respect to his obligation to pay child support to Laura, Giuliano shall provide to Angela for the next five years: (1) a copy of his Notice of Assessment forthwith upon receipt as long as Laura is a “child of the marriage”; (2) an update on his health status every three months for the next two years and then on a semi-annual basis for the following three years.

CONCLUSIONS

[65] For the reasons given, I have made the orders described above.

[66] I direct that counsel for the Respondent prepare and deliver to the Angela and to the court a further Net Family Property Statement applying the values that I have determined along with a draft Order. Upon receipt, I will then issue an Order directing payment in respect net family property.

[67] I encourage the parties to resolve the issue of costs failing which each party may deliver costs submissions within two weeks of today’s date and reply cost submissions within three weeks. Costs submissions shall be a maximum of three pages exclusive of any settlement offers that were made.

Mr. Justice M. D. Faieta

Released: November 15, 2017

CITATION: Marchese v. Marchese, 2017 ONSC 6815

COURT FILE NO.: FS-13-00386181

DATE: 20171115

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANGELA MARCHESE

Applicant

– and –

GIULIANO MARCHESE

Respondent

REASONS FOR DECISION

Mr. Justice M. D. Faieta

Released: November 15, 2017