COURT FILE NO.: FS-09-65736-00
DATE: 2019 05 07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROSE FRATIANNI
J. Skapinker, Counsel for the Applicant
APPLICANT
- and -
PETER D’AMBROSIO
M. Giesinger and J. Bennett, Counsel for the Respondent
RESPONDENT
HEARD: November 19-23, 2018
REASONS FOR DECISION
LEMAY J
[1] The parties were married on May 22nd, 2004, and separated on March 1st, 2008. The parties have not yet been divorced. The marriage certificate was filed at the conclusion of trial. As a result, the parties are entitled to a divorce, effective thirty-one (31) days after the issuance of these reasons.
[2] There is one child of the marriage, Matteo, who is currently twelve years old. Matteo currently lives with Ms. Frattiani and spends Wednesday nights and every weekend with his father. While the parties have agreed to joint custody, issues remain over where Matteo’s primary residence should be and, as a result, who should pay child support.
[3] There are also financial issues outstanding between the parties, including spousal support and the division of net family property. A large part of these issues stem from Mr. D’Ambrosio’s claims that Ms. Fratianni deceived him about her financial circumstances when they got married, and used his savings to fund her business and her lifestyle. As a result, Mr. D’Ambrosio is seeking an unequal division of Net Family Property as well as repayment of sums that he says were loans to Ms. Fratianni.
[4] This proceeding was commenced in April of 2009 and finally proceeded to trial before me in November of 2018, almost ten years later. Given this lengthy delay, and for reasons set out below, I granted an Order ending spousal support effective December 1st, 2018 at the conclusion of trial. This Order was not opposed. I advised the parties that I would address the question of retroactivity for spousal support in my reasons.
Background Facts
a) The Parties
[5] The Applicant, Rose Fratianni, is 57 years old, and the Respondent, Peter D’Ambrosio is 60 years old. At the time that the parties met, Ms. Fratianni owned and operated a business under the name Merle Norman. The business name was Custom Beauty Studio Inc. This business was located in Sherway Gardens, and had been since 1996.
[6] Ms. Fratianni had two children, Natalie and Elissa, from a previous marriage. At the time of trial, these children were 32 and 31 years old respectively. Natalie is qualified as a dental hygienist, and Elissa works as the owner of Glo Spa Inc., where Ms. Fratianni also currently works. During the marriage, Natalie and Elissa lived in the home with Ms. Fratianni and Mr. D’Ambrosio.
[7] Mr. D’Ambrosio has completed some post-secondary education. This has been focused on the area of accounting. In particular, Mr. D’Ambrosio testified that he had completed most of the course work to become a Chartered General Accountant. He was employed with the Government of Ontario for 33 years until his retirement last year.
[8] The parties dated for a number of years before they got married in 2004. It is clear from the evidence that this was an on-again off-again relationship. No arguments regarding cohabitation were made by the Applicant for the time periods prior to the marriage.
[9] At the time of the marriage, the parties decided to live in the house that Ms. Fratianni owned, which is municipally known as Unit 95, 455 Apache Court (“the matrimonial home”). When the marriage ended, both Ms. Fratianni and Mr. D’Ambrosio were on title to the house. How this came to be is in dispute between the parties, and I will return to it below.
[10] The parties lived together in the matrimonial home for a period of just over a year and a half after separation. Then, Ms. Fratianni was granted exclusive possession of the matrimonial home, where she continued to reside until that property was sold on January 15th, 2010. The proceeds from the matrimonial home have been held in trust since the time it was sold.
[11] Currently, Ms. Fratianni lives in a rented townhouse with her younger daughter, Elissa. This is the same daughter that owns the Glo Spa business. Ms. Fratianni works part-time for Glo Spa doing facials.
[12] Mr. D’Ambrosio currently lives in his mother’s house in Woodbridge. He retired from his position with the Government of Ontario sometime in 2017. No details surrounding this retirement were provided to the Court, other than the fact that it was voluntary.
b) The Spa Businesses
[13] One of the main issues in this case is that, at the time of marriage, Ms. Fratianni owned a business with the name Custom Beauty Studios Inc. It operated in the Sherway Gardens Mall under the name Merle Norman. In the fall of 2008, this business stopped operating in the Sherway Gardens Mall. Ms. Fratianni states that she closed the business. Mr. D’Ambrosio states that this business moved rather than closing. I will refer to this business as the “Merle Norman” business.
[14] In support of his position that the business moved, Mr. D’Ambrosio points to the fact that there is a new business named Glo Spa Inc. This business began operation in the fall of 2008, and its first directors were Natalie and Elissa, who were then 22 and 21 respectively.
[15] At the outset of the litigation, no records for the Glo Spa business were obtained by Mr. D’Ambrosio. An Order was issued in 2009 by Mossip J. That order reads, in part, as follows:
a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, the Applicant and persons or corporations with whom the corporation does not deal at arms length;
documentation to substantiate all income directly or indirectly received by way of cash, received, salaries, wage dividends, draws, draws on expense accounts, management fees, benefits paid to or on behalf of the Applicant for her business, namely Glo Spa;
copies of all bank statements, line of credit statements, deposit books and cancelled cheques for the Applicant and Glo Spa and Merle Norman Cosmetics from 2004 to present.
[16] It is clear that this Order was not fully complied with by Ms. Fratianni or her counsel, although some documentation was provided to Mr. D’Ambrosio. It is also clear that Mr. D’Ambrosio made continuing efforts to require Ms. Fratianni to comply with this Order in the time between when it was made and the trial. I will return to this issue in more detail in resolving the question of Ms. Fratianni’s income
[17] In her evidence, Ms. Fratianni alleged that she only made between $14,000.00 and $17,000.00 per annum between 2009 and the time of the trial. Her evidence was that she worked part-time for the Glo Spa business, and that it was her daughter’s business. Mr. D’Ambrosio disputes this claim, and alleges that income should be imputed to Ms. Fratianni in the sum of $120,000.00.
[18] I will return to the question of imputed income as it is one of the key issues in this case.
c) Procedural History
[19] It has been almost ten years since this application was commenced. The parties separated on March 1st, 2008 after an argument over finances. The parties remained in the matrimonial home, living separate and apart for almost a year and a half.
[20] This Application was commenced by Ms. Fratianni on April 16th, 2009, and Mr. D’Ambrosio filed his Answer on July 24th, 2009. As noted above, Mossip J. made an order in July of 2009 respecting disclosure. This was a consent Order.
[21] In August of 2009, Dunn J. made an Order requiring that Mr. D’Ambrosio pay $800.00 in interim child support. On September 18th, 2009, Belleghen J. provided Ms. Fratianni with significant relief on an interim basis, as follows:
a) Interim spousal support in the sum of $850.00 per month.
b) Exclusive possession of the matrimonial home, pending its sale.
c) Primary residence of the child would be with Ms. Fratianni.
d) Child support of $650.00 per month payable to Ms. Fratianni.
[22] In addition, Belleghen J. dismissed Mr. D’Ambrosio’s motion to add Ms. Fratianni’s children to this action. Mr. D’Ambrosio was asserting that Natalie owed him money as a result of loans that were allegedly made to Ms. Fratianni. In respect of Elissa, it is not clear to me what claims Mr. D’Ambrosio was advancing against her.
[23] Belleghen J. also provided access to Mr. D’Ambrosio. That access was ultimately clarified by the parties in minutes of settlement dated November 24th, 2009. Mr. D’Ambrosio was provided with access every weekend from Friday at noon until Sunday at 10:00 pm. Further, Mr. D’Ambrosio was provided with access every Wednesday evening from 7 pm to 10 pm.
[24] There were arrangements to allow Ms. Fratianni to have one weekend in four if she provided notice. If Ms. Fratianni exercised this option, then Mr. D’Ambrosio was entitled to make-up time with Matteo. These arrangements have remained in place since 2009.
[25] The next proceeding was a March 15th, 2012 motion. In that motion, issues of disclosure, contempt and other financial issues were raised. The Court determined that the matter was not susceptible of disposition in a motion, and said that the relief sought must be the subject of a trial.
[26] Trial Management Conference Briefs were filed by the parties in the summer and early fall of 2013. It is not clear to me that a TMC was held prior to 2015. In any event, the next significant step was a contempt motion brought by Mr. D’Ambrosio against Ms. Fratianni in early 2014.
[27] In that motion, Mr. D’Ambrosio asked for a finding of contempt against Ms. Fratianni because of, inter alia, a failure to provide disclosure and misrepresentations made in her financial statements. This motion was heard by Emery J. on March 19th, 2014, and a decision was released on April 29th, 2014.
[28] Emery J. dismissed the contempt motion. In respect of disclosure, Emery J. stated:
[15] Ms. Fratianni has filed affidavit evidence of her significant efforts to comply with Justice Mossip’s order made on July 28, 2009. She has provided cheques from the account for her business for the years 2004 and 2008. I cannot tell from the language used to compile the disclosure list of documents required from Ms. Fratianni if these cheques are sufficient to directly or indirectly answer the disclosure of information the order requires from her. Ms. Fratianni has deposed that she has produced the documents described in her affidavit filed in response to the motion. I do not find that Ms. Fratianni has wilfully or deliberately disobeyed the terms of that order beyond a reasonable doubt.
[16] The order made by Justice Snowie on July 3, 2011 did not require additional disclosure from either Mr. D’Ambrosio or Ms. Fratianni. That order was derived from Justice Mossip’s order and required the parties to advise each other as to the perceived deficiencies of disclosure made to date. It is unclear from the motion materials whether Mr. D’Ambrosio actually provided a list of the perceived deficiencies in the disclosure made by Ms. Fratianni up to that time pursuant to Justice Snowie’s order. This appears to me to be a condition for the further enforcement of that order. Therefore, I do not consider the nature of the order made by Justice Snowie to have the substance or clarity required a basis for a contempt finding.
[29] It should also be noted that, in the proceedings before Emery J., Mr. D’Ambrosio, who was self-represented, sought to have his obligation to pay spousal support ended. Emery J. denied this request on the basis that Mr. D’Ambrosio had not sought this relief in his notice of motion.
[30] On September 11th, 2014, Mr. D’Ambrosio served and filed a motion returnable in October of 2014. This motion addressed disclosure, as well as a formal request to have spousal support terminated. The motion was heard by Baltman J. and dismissed on October 23rd, 2014. In her reasons, Baltman J. stated:
Mr. Skapinker argues convincingly that this really requires a trial of an issue, and therefore should get a trial date.
I also told him [Mr. D’Ambrosio] that if he truly believes there is outstanding disclosure he should send an itemized list to Mr. Skapinker. Should items be improperly refused the trial judge may, in his/her discretion, draw an adverse inference.
[31] A trial management conference was ultimately held before Price J. on June 17th, 2015. At that time, Price J. provided a number of directions with respect to the management of this matter. Key among those directives were the following:
a) Ms. Fratianni was to provide a valuation of the Merle Norman Cosmetics business as of the date of marriage and the date of separation.
b) The parties had leave to bring motions for disclosure.
c) In the event that there were documents that had been ordered to be produced that had not been received, then the intended recipient could request a further copy. All documents provided after the TMC, including documents that were re-requested, were to be served by way of a secure electronic tracking system. The parties were required to enroll in such a tracking system by June 27th, 2015.
d) The matter was set for trial in the January 2016 Blitz.
[32] The trial has been adjourned on several occasions, starting with the January, 2016 dates. The history of adjournments is as follows:
a) On September 30th, 2015, Van Melle J. adjourned the trial from the January 2016 Blitz Sittings to the May, 2016 Blitz sittings. It is not clear from the evidence as to why this adjournment was required.
b) On March 21, 2016, Andre J. adjourned the trial from the May 2016 sittings to the January 2017 Blitz sittings.
c) On September 29th, 2016, Donohue J. adjourned this matter from the January 2017 Blitz sittings to the May 2017 Blitz sittings. It is clear from the record that Mr. D’Ambrosio’s father was dying of cancer in this time period and that he unfortunately passed away in January of 2017.
d) The death of Mr. D’Ambrosio’s father in January of 2017 resulted in a further adjournment of the proceedings to the January 2018 Blitz sittings.
e) On September 14th, 2017, Andre J. adjourned the trial to the May 2018 blitz. This adjournment was on consent, and was at the request of Mr. D’Ambrosio.
f) On March 16th, 2018, Sproat J. adjourned the trial to a “week of” trial the week of November 19th, 2018. It was made clear to the parties that this was a 4 day trial, and counsel were confident that the case would not take longer. Had the trial been longer than four days, it would have been scheduled in the January 2019 blitz.
[33] All of the adjournments except for the first two in this list were at the request of Mr. D’Ambrosio. It is not clear to me from the record as to who requested the first two adjournments.
[34] In late July of 2018, Mr. D’Ambrosio brought a motion seeking disclosure from third parties, termination of interim spousal support and an Order granting him the right to amend his answer to include claims against third parties. All motions were dismissed by Trimble J. on August 1, 2018.
d) The Trial Proceedings
[35] Then, there was the trial before me. At the outset of trial, on the afternoon of Monday November 19th, 2018, I asked counsel whether they could complete this trial in the four days that it had been scheduled for. I also told counsel that, in a four day trial, the final day (Friday) would be reserved for oral argument. Both counsel stated that they could complete this case within the time limits. Had they not been able to do this, the trial would have been adjourned to the January 2019 civil/family blitz list.
[36] At the outset of the trial, Mr. D’Ambrosio’s counsel stated that they wished to call Elissa as a witness. I expressed concern that the children, even adult children, of a relationship should not be called as witnesses. However, that was before I discovered that Elissa Fratianni was not Mr. D’Ambrosio’s child, and was the registered owner of Glo Spa.
[37] Ultimately, on the Wednesday afternoon of the trial, Mr. D’Ambrosio’s counsel advised me that they were not going to call Elissa as a witness because of time constraints and because I had expressed concerns about her as a witness. I explained to counsel that I no longer had a concern about calling Elissa as a witness given the claims as I now understood them to be. I also advised counsel that we had specifically discussed the time for this trial at the outset, and that counsel had decided that they could finish the trial in the time allotted. I did offer to counsel that evidence could be heard Friday November 23rd, and closing arguments could be made December 24th, 2018.
[38] Counsel for Mr. D’Ambrosio ultimately chose not to call Elissa to the witness stand. The evidence was completed on the afternoon of the 22nd, and closing arguments were completed on November 23rd. Both parties filed written arguments and supplemented them with oral submissions.
Credibility and Documentation
a) Credibility
[39] In this case, the only two witnesses who testified were Ms. Fratianni and Mr. D’Ambrosio. They provided differing testimony on a number of events, particularly relating to the management of the family finances while they were married. As a result, credibility is an issue in this case and I should provide some brief comments on it.
[40] I did not find either Ms. Fratianni or Mr. D’Ambrosio to be completely credible or reliable as witnesses for two reasons. First, the testimony in this case was offered nearly a decade after the marriage ended. As a result, the memories of both witnesses would have faded. In these circumstances, looking to the contemporaneous documentation where it is available is the best way to determine what happened.
[41] Second, the testimony offered by both parties tended to favour their positions rather than outlining what had actually happened. An example for each of them will suffice to illustrate the problems.
[42] In Mr. D’Ambrosio’s case, he has significant qualifications in the financial field, having done most of the coursework to become a CGA and having worked in the financial area with the Ontario Government. As a result, it was difficult to accept Mr. D’Ambrosio’s evidence that he was completely surprised by the parties’ financial situation in 2008. There was a tendency on Mr. D’Ambrosio’s part to recollect evidence in a way that supported his case.
[43] In Ms. Fratianni’s case, she was cross-examined about a consulting business that she owned, and had established in 2004. At first, she testified that she did not know about this business, even though $6,500.00 was claimed on her tax return as automotive expenses for this business. Then, two or three questions later, she acknowledged that there might have been revenue for this business. On the financial issues in particular, Ms. Fratianni’s evidence was vague and inconsistent. Ms. Fratianni also had a tendency to recollect evidence in a way that supported her case.
[44] The evidence of both parties needs to be approached with considerable caution in this case.
b) Documentation
[45] Voluminous documentation was filed by the parties. With the exception of a few documents created by Mr. D’Ambrosio, the parties agreed that all of this documentation was admitted for the truth of its contents. Mr. D’Ambrosio testified about all of the documents that he had created. As a result, I have considered all of this documentation in reaching my decision.
[46] There were also claims by both parties that the other party had failed to abide by its documentary disclosure obligations. Mr. D’Ambrosio argues that Ms. Fratianni failed to produce significant records from both the Merle Norman business and from the Glo Spa business.
[47] I am of the view that Ms. Fratianni failed to properly and fully disclose the records from the Glo Spa business. I will address my reasons for that conclusion, as well as what flows from it, in the section on the parties income, below.
[48] Ms. Fratianni argues that Mr. D’Ambrosio did not disclose the information from his retirement last year. She argues, as a result, that I should conclude that his retirement was voluntary and that income should be imputed to Mr. D’Ambrosio at his pre-retirement salary. I also conclude that this information should have been disclosed and was not. I will address my reasons for that conclusion, as well as what flows from it, in the section on the parties income, below.
[49] As a result, I have generally looked to the documentation to resolve any conflicts in the evidence of the parties. Where I have accepted the evidence of a party, I have set out my reasons for doing so. Where it has been necessary, or appropriate, to draw inferences from the documentation, or from the failure to disclose documentation, I have done so.
[50] I should briefly address an issue in terms of the exhibits that were filed. A package of documents relating to a Small Claims Court action between Natalie and Mr. D’Ambrosio was referenced in the submissions of the parties. Excerpts from the decision were mentioned. As a result, I requested that the parties provide me with a more complete record, which they did after the trial. This record must be marked as an Exhibit, and I will convene court next Monday, May 13th, 2019, in order to do so. Any party who opposes the marking of the package of materials attached to Mr. Bennett’s December 7th, 2018 e-mail is welcome to attend. If neither party opposes the marking of this material as an exhibit, then neither party need attend.
Issues
[51] The claims between the parties raise the following issues:
a) Should Matteo have his primary residence with Mr. D’Ambrosio in Vaughan?
b) What are the incomes of each of the parties?
c) In what quantum should child support be paid? By whom should it be paid?
d) Should an unequal distribution of Net Family Property be ordered?
e) Should there be any repayment of spousal support arrears?
f) Should any other remedies be given to Mr. D’Ambrosio relating to Ms. Fratianni’s business?
[52] I will deal with each issue in turn.
Issue #1- Primary Residence of Matteo
a) Matteo’s Current Circumstances
[53] In spite of the bitterness and acrimony that exists in this case, the parties are able to co-parent Matteo, and they agree that an Order for joint custody should be made. There is no reason not to order joint custody in this case, and an Order will issue accordingly.
[54] Matteo is twelve years old, and in grade 7. He has an Individual Education Plan (“IEP”) covering all subject areas. Under that IEP, which was filed as an exhibit, he has modified expectations in terms of the curriculum he is expected to master. In essence, Matteo is functioning at a Grade 5 level at this point even though he is in Grade 7. Matteo has a learning disability.
[55] Currently, Matteo has primary residence with Ms. Frattiani, who lives in Mississauga. He attends at a school in the district where Ms. Frattiani lives and spends Wednesday nights and every weekend with Mr. D’Ambrosio. I was not made aware of any other therapies that Matteo currently participates in. However, I was advised that the parties are currently discussing tutoring.
b) Mr. D’Ambrosio’s Proposed Arrangements for Matteo
[56] Mr. D’Ambrosio proposes that, since he is retired, Matteo should live primarily with him in Vaughan. For this school year, Mr. D’Ambrosio would drive Matteo back and forth from his house in Vaughan to his school in Mississauga. The only evidence that I have of the length of this drive comes from Mr. D’Ambrosio, who says it takes 20 to 30 minutes.
[57] Then, for the next school year, when Matteo is in Grade 8, Mr. D’Ambrosio would transfer him to a school in Vaughan. Matteo would then complete high school in Vaughan.
[58] Mr. D’Ambrosio would continue to bring Matteo to his current doctor in Mississauga. As well, Mr. D’Ambrosio testified that Matteo has friends that live on Mr. D’Ambrosio’s street in Vaughan. He specifically identified a Nicholas and a Juanbuca.
[59] Mr. D’Ambrosio states that these arrangements would be in Matteo’s best interests for a number of reasons. First, Mr. D’Ambrosio is prepared to proactively help Matteo with his educational development, while Mr. D’Ambrosio says that Ms. Fratianni is not proactive in helping Matteo.
[60] Second, Mr. D’Ambrosio states that Ms. Fratianni is negligent as a parent, and provided examples. I will return to these examples below.
[61] Third, Mr. D’Ambrosio states that he is Matteo’s “best friend” and that Matteo needs a male influence in his life. In addition, Mr. D’Ambrosio states that he plays sports with Matteo, and that team sports are good for his development, especially given his learning disability.
[62] Finally, Mr. D’Ambrosio testified that Matteo has expressed a desire to come and live with Mr. D’Ambrosio, and that Matteo needs a male influence in his life.
[63] Ms. Fratianni opposes any change to the current access regime, and argues that the current arrangements are in Matteo’s best interests.
c) Conclusion on Residency
[64] I conclude that Matteo should continue to have his primary residency with Ms. Fratianni in Mississauga, and that the current arrangements in terms of shared parenting should continue. I reach that conclusion on the basis that these arrangements are in his best interests, and that Mr. D’Ambrosio’s proposal is not in Matteo’s best interests. I will now set out the reasons for this conclusion.
[65] I start by noting that one of Mr. D’Ambrosio’s arguments for changing custody is that the original interim Order of Belleghen J. was obtained under false pretenses. That Order was obtained, in part, because Ms. Fratianni swore an Affidavit in which she alleged that Mr. D’Ambrosio had, at least indirectly, hit her.
[66] There does not appear to be any basis on the record before me to conclude that there was a physical assault while the parties lived separate and apart in the matrimonial home. In that regard, I note that Mr. D’Ambrosio filed police records that seem to contradict the statements in Ms. Fratianni’s Affidavit.
[67] However, in my view, it is not necessary to resolve this dispute. The question I have to determine is not whether Ms. Fratianni misled the Court on this point. I have to determine what is in Matteo’s best interests based on his current needs and his current circumstances. I now turn to that question.
[68] I have three significant concerns with the schedule that Mr. D’Ambrosio proposes. First, it would require a substantial amount of driving for Matteo for the remainder of this school year. Matteo would spend around 5 hours in the car every week. Commuting this length of time to and from Grade 7 by car is not a standard event, or in a child’s best interests. This time is better spent learning, doing homework, playing with friends or exercising.
[69] Second, the proposed change will be disruptive in both the short term and the long term. Matteo has a routine, teachers and a school support team that know him. This travelling will make it more difficult for Matteo to work with his teachers in the short term. In the long term, it would mean that Matteo would transfer to a new school that did not have a history with him. This would mean that Matteo would not receive the support he needs as quickly, as his new teachers and new school would have to take time to learn about him. This is clearly not in his best interests.
[70] Third, while I appreciate that Matteo may have a couple of friends in his father’s neigbourhood, he also will have friends and classmates that he is familiar with at his current school. If he changes schools, he will lose his connections with those children.
[71] Finally, I am concerned by Mr. D’Ambrosio’s testimony that Matteo has expressed to his father that he wants to come and live with him. The problem with this testimony is that it suggests that Mr. D’Ambrosio has spoken with Matteo about the living arrangements, which is something that parents should not do. In any event, however, this evidence is of little value as it is not particularly reliable. It is hearsay relayed by a witness who has an interest in the outcome of the case.
[72] There were also two other arguments that were made by Mr. D’Ambrosio that should be addressed. First, Mr. D’Ambrosio advised that there were concerns with Ms. Fratianni’s parenting skills. Second, Mr. D’Ambrosio referred to himself as Matteo’s “best friend”, and stated that Matteo would be better off with Mr. D’Ambrosio because he would play soccer with him, and would provide Matteo with more physical activity.
[73] Mr. D’Ambrosio referred to Ms. Fratianni’s parenting as “negligent” on a number of occasions. In support of this assertion, he pointed to three different areas that were of concern to him, as follows:
a) Ms. Fratianni’s medical care of Matteo, both in terms of his chronic conditions, and in terms of two specific incidents.
b) The condition of the matrimonial home after Mr. D’Ambrosio moved out of it.
c) The fact that Ms. Fratianni was driving Matteo around without a carseat, and was not providing him with proper shoes.
[74] I start with the medical examples. Mr. D’Ambrosio provided testimony about an incident where Ms. Fratianni thought that Matteo had a bruise, and he actually had a broken collar bone. It was Mr. D’Ambrosio who brought him to the hospital. Then, there was a similar incident when Mr. D’Ambrosio took Matteo to emergency, and was advised that he had pneumonia and his blood oxygen level was very low. Finally, Matteo had a chronic constipation condition when he was younger that created medical issues.
[75] I can appreciate Mr. D’Ambrosio’s concerns about these incidents. However, they all took place before Mr. D’Ambrosio moved out of the matrimonial home nine years ago. In addition, I had no evidence of either any ongoing medical concerns for Matteo, or any evidence that his current medical conditions were not being appropriately managed by both of his parents. In the absence of any contemporaneous issues, this is not a factor that causes me to have concerns about Ms. Fratianni’s current parenting skills.
[76] Then, there is the state of Ms. Fratianni’s house. I was advised that the Children’s Aid Society (“CAS”) was contacted, back in 2009, about Mr. D’Ambrosio’s concerns with the state of the house. In particular, his concern was with cat urine and feces throughout the house. These problems were significant enough that, when the house was put up for sale, the carpet cleaning company stated:
• Carpet was saturated with pet urine
• I advised the customer that there would be damage to underpadding & floor boards, caused by urine.
• Smell will not come out even with cleaning.
• Carpets should be replaced.
• Customer understanding but wants to go through with cleaning.
[77] However, I was not given any documentation to substantiate that the CAS had any concerns with the state of the house. In addition, this was nearly ten years ago, and there was no evidence of any issues with the state of Ms. Fratianni’s current residence.
[78] Finally, there is Mr. D’Ambrosio’s concern that Ms. Fratianni was driving Matteo around without a car seat, and did not give him proper shoes. Again, these are historical examples that do not speak to Ms. Fratianni’s current ability to parent Matteo.
[79] Mr. D’Ambrosio has known about all three of these issues for the last nine years. There has never been an interim motion to vary the child custody or access arrangements in that time period. When Mr. D’Ambrosio was asked why not, he advised that he was self-represented for much of that time period. However, in this time period, Mr. D’Ambrosio was able to bring a motion claiming that Ms. Fratianni was in contempt of her disclosure obligations. Mr. D’Ambrosio, therefore, has some familiarity with the Court system and should have been able to bring a motion to vary the custody and access arrangements. As a result, I do not consider these issues to be sufficiently serious or sufficiently recent to persuade me that Ms. Fratianni is not able to parent Matteo.
[80] This brings me to Mr. D’Ambrosio’s final issue, which is that he is better suited to care for Matteo because he is Matteo’s “best friend”, and is more proactive in attending to Matteo’s needs. I am not sure that it is in a child’s best interests to have a parent consider the child a “best friend”. Parents are responsible for disciplining and mentoring their children. This is difficult to do if you are the child’s “best friend”.
[81] I will also briefly deal with Mr. D’Ambrosio’s alternate submission that access should be week about. Given that Mr. D’Ambrosio lives in Woodbridge, and Matteo is continuing to go to school in Mississauga, this type of arrangement would raise many of the same concerns I have described above. In particular, Matteo would still be spending an hour a day in a car every second week. In my view, this is not in his best interests. Maintaining his current routine is in Matteo’s best interests.
[82] In the end, Matteo’s current schedule and living arrangements meet his needs and Mr. D’Ambrosio’s proposed changes would not be in Matteo’s best interests. As a result, I am of the view that the current arrangements for Matteo are in his best interests and there will be a final Order confirming those arrangements.
Issue #2- The Parties’ Income
[83] It is necessary to address the income of each party, and whether income should be imputed to each party. For Ms. Fratianni, it is necessary to determine her income in order to evaluate her claim for spousal support, and whether any retroactive spousal support should be paid back. For Mr. D’Ambrosio, it is necessary to assess whether he retired voluntarily and, if so, whether his income should be deemed to be his pre-retirement income. In each case, I have to address the question of whether income should be imputed.
[84] In determining whether to impute income, I am mindful of section 19 of the Federal Child Support Guidelines, which state:
19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(b) the spouse is exempt from paying federal or provincial income tax;
(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;
(e) the spouses’ property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(g) the spouse unreasonably deducts expenses from income;
(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust
(2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.
[85] In terms of spousal support, similar principles apply. As a result, I will consider whether income should be imputed in both cases.
a) Ms. Fratianni’s Income
The Disclosure Issues
[86] In the procedural history section, above, I have set out some details about the Orders that were made respecting disclosure in this case. In his written brief, counsel for Ms. Fratianni argues:
- Each party has complained that the other failed to make full financial disclosure. The Respondent has made this a feature item in his case. I respectfully point out to the Court that since Matteo’s birth the Applicant has worked as an aesthetician running a small business. It is conceded that her record keeping was wanting & that she was unable to product everything the Respondent sought or what was ordered. It is submitted that her evidence be accepted that she produced everything she was able to. Her business was not a complicated business and as the Respondent testified, the Applicant kept records in a book. She gave the Respondent all of her financial figures for him to input into spread-sheets which he then emailed to the accountant. He claims to have an accounting education and as such had full knowledge throughout the marriage of the Applicant’s finances.
[87] I reject this argument. In my view, Ms. Fratianni has not provided all of the disclosure that is necessary in this case, and has not made her best efforts to do so. I will now set out my reasons for reaching this conclusion. I note that I was provided with an exhaustive analysis of the disclosure by Mr. D’Ambrosio. I do not intend to review the entirety of the disclosure, or all of the gaps in it in my reasons.
[88] The biggest hole, however, is the documentation relating to Glo Spa. It must be remembered that these documents were ordered to be produced on consent by Mossip J. in 2009 and yet very little relating to Glo Spa was produced at trial.
[89] In particular, there should have been some documentation that Ms. Fratianni had immediate access to when this Order was made that was not produced, as follows:
a) The Loan agreements with the Business Development Bank of Canada (“BDC”). Ms. Fratianni co-signed loan agreements for Glo Spa for loans totaling $85,000.00. These loans were taken out around the time that the consent Order was made by Mossip J. It defies logic to accept that Ms. Fratianni did not receive a copy of a loan agreement that imposed obligations on her.
b) Similarly, Ms. Fratianni co-signed the lease agreement. Again, this would have been prior to the time that the Order of Mossip J. was made. Again, it defies logic to accept that Ms. Fratianni did not receive a copy of a lease agreement that she co-signed. This agreement would presumably have imposed obligations on Ms. Fratianni.
[90] I received no good explanation for why these documents were not produced.
[91] Further, what was produced at trial indicated that Ms. Fratianni had a considerably larger role in the business than she claimed. First, as I have noted, Ms. Fratianni co-signed both the lease and the loans. Second, there were a series of cheques from 2011 that Ms. Fratianni signed on behalf of the business. I had no good explanation as to why Ms. Fratianni was signing cheques for the business when she was simply a part-time employee in her daughters business.
[92] In addition to these documents, there are some other considerable gaps in Ms. Fratianni’s documentary evidence. First, and foremost, there were no pay stubs from Glo Spa. If Ms. Fratianni was an employee, I would have expected to see pay stubs for the work that she was performing. Their absence suggests that she was a beneficial owner of the business, or at least had a beneficial interest in the income from the business. I am not prepared to decide which it is, as it is not necessary to do so (income can be imputed either way), and Glo Spa is not a party to this litigation, so I should not be making orders about who owns its shares.
[93] I do note that, in her income tax returns, Ms. Fratianni shows a T4-A from Glo Spa for the years 2015 and 2016. In both years, the T4-A shows a gross income of $4,000.00. In 2017, Ms. Fratianni had a T4-A slip for $5,400.00. Her income tax return does not identify the issuer of that slip. I will return to this evidence in the next section.
[94] Second, there were no recent bank statements from Ms. Fratianni. Production obligations are ongoing obligations, and Ms. Fratianni does not seem to have fulfilled her obligations.
[95] This brings me to the argument that the obligation was on Mr. D’Ambrosio to pursue any disclosure issues. This argument flows from two Orders in particular, being the Order of Snowie J. dated June 3rd, 2011 and the Order of Baltman J. dated October 23rd, 2014. Both Orders clearly indicate that further requests are required if there are gaps in the disclosure.
[96] However, a review of the correspondence filed at trial indicates that Mr. D’Ambrosio followed up and sought additional documentary disclosure. I do not intend to review all of the correspondence, but a couple of examples will suffice:
a) In March of 2012, Mr. D’Ambrosio provided a letter to Mr. Skapinker, who has been Ms. Fratianni’s counsel throughout this proceeding asking for additional disclosure. Mr. Fratianni followed that up with a further letter in April of 2012 asking for disclosure of the Glo Spa loan records.
b) On February 3rd, 2015, Mr. D’Ambrosio provided a detailed letter to Mr. Skapinker. This letter clearly indicates that it is being sent in response to the endorsement of Baltman J., and lists a series of deficiencies in the disclosure that had been provided by Ms. Fratianni and her counsel.
[97] The correspondence demonstrates that efforts are being made by Mr. D’Ambrosio to obtain disclosure throughout these proceedings.
[98] In addition, counsel for Ms. Fratianni pointed to a CD of disclosure that had been provided to Mr. D’Ambrosio towards the end of 2011. Mr. D’Ambrosio responded to this disclosure by way of a written letter. He noted that the records were scattered, and his letter specifically listed the documents that were on the disc. None of them relate to the loans for Glo Spa, and the documentation is described by Mr. D’Ambrosio as incomplete as far back as 2012. Given all of these problems, I am not prepared to put much weight on this CD as demonstrating that Ms. Fratianni has complied with her disclosure obligations.
[99] Finally, after the order of Baltman J. in October of 2014, the parties attended at a Trial Management Conference with Price J. At that TMC, Price J. Ordered the parties to participate in an electronic document exchange.
[100] Ms. Fratianni, and her counsel, never complied with the Order of Price J. Mr. D’Ambrosio, who was self-represented at points, wrote to Mr. Skapinker in July of 2018. Their exchange was as follows:
Peter D’Ambrosio on July 18, 2016 at 4:11 PM
Despite what is or is not available, could you confirm whether you registered with a secure electronic Tracking System.
Joel Skapinker on July 18, 2016 at 4:13 PM
I don’t know what that is.
Peter D’Ambrosio on July 18, 2016 at 4:28 PM
As you indicate you don’t know what a secure electronic Tracking System such as yoursix.ca is, it follows that you did not register. Is this an accurate conclusion?
Joel Skapinker on July 18, 2016 at 4:31 PM
Correct. I am too old for that technology.
[101] It is clear that Mr. Skapinker made a deliberate decision to ignore the disclosure Order of Price J. The explanation that is offered for ignoring this Order is not sufficient, particularly when there had been issues between the parties about whether certain documents had been produced. The purpose behind the Order of Price J. was to ensure that the production obligations were properly complied with, and that everyone was aware of what had actually been disclosed.
[102] Even during the time periods when adjournments were being sought, Mr. D’Ambrosio did not stop with his efforts to obtain disclosure from Ms. Fratianni. In June of 2016, Mr. D’Ambrosio served a Request to Admit. This document asked Ms. D’Ambrosio to acknowledge, inter alia, that she had failed to comply with the Order of Mossip J. to disclose documents relating to Glo Spa and particularly the loan documents. The response to the Request to Admit is that Glo Spa was not Ms. Fratianni’s business.
[103] There are two problems with this response. First, Ms. Fratianni had already consented to an Order requiring her to produce documents from Glo Spa. By failing to produce these documents, she was in breach of that Order. Second, Ms. Fratianni had already produced some documents from Glo Spa which demonstrated that she had control of the documents from the business.
[104] Given the foregoing, I conclude that Ms. Fratianni has intentionally ignored the disclosure Orders made by this Court. As the Court of Appeal has noted on more than one occasion, the disclosure of financial information is the most basic obligation in family law proceedings (see, for example, Roberts v. Roberts 2015 ONCA 450 (at paras. 11 and 12 and Mullin v. Sherlock 2018 ONCA 1063 (at para. 32)).
[105] In this case, Ms. Fratianni has deliberately failed to comply with those obligations, particularly with respect to documentation relating to Glo Spa. As a result, I am of the view that I should draw an adverse inference in relation to the documentation being produced from Glo Spa. I will return to the consequences of that inference in the next section.
The Analysis of the Evidence
[106] The question I must determine is what is Ms. Fratianni’s income? I start with Ms. Fratianni’s tax returns, many of which were filed as exhibits in this action. They disclose that Ms. Fratianni’s line 150 income is as follows:
| Year | Income |
|---|---|
| 2004 | $0.00 |
| 2005 | $3,033 |
| 2006 | $33,454.00 |
| 2007 | $47.775.00 |
| 2008 | $3,708.53 |
| 2009 | $5,825.00 |
| 2010 | $11,960.00 |
| 2011 | $9,960.00 |
| 2012 | $12,490.00 |
| 2013 | $11,396.00 |
| 2014 | $11,621.00 |
| 2015 | $14,006.00 |
| 2016 | $13,960.00 |
| 2017 | N/A |
[107] However, that is not the end of the story. Mr. D’Ambrosio asks the Court to reach a number of conclusions. First, that Ms. Fratianni paid significant personal expenses out of her business prior to and during the marriage. Second, that Ms. Fratianni continues to be the owner of Glo Spa, which is simply a continuation of her Merle Norman business. Third, that Ms. Fratianni continues to receive significant additional income from Glo Spa that is not being declared on her tax return. Finally, Mr. D’Ambrosio claims that the closing of the Merle Norman business and the opening of the Glo Spa business was a fraudulent conveyance.
[108] Ms. Fratianni rejects these assertions, and says that I should find that she is not the beneficial owner of Glo Spa. Further, she claims that no income should be imputed to her for this business because it is her daughter’s business.
[109] In my view, additional income should be imputed to Ms. Fratianni. I have concluded that Ms. Fratianni has a significant interest in the Glo Spa business, and is not merely an employee of that business. I have reached that conclusion for a number of reasons.
[110] First, as I noted in the disclosure section, Ms. Fratianni was obligated to produce documentation from Glo Spa. She consented to do so. However, over a ten year period, Ms. Fratianni did not produce the required documentation relating to this business. As I have noted, it is appropriate to draw an adverse inference from this failure to disclose documentation. Indeed,. in her order of October 23rd, 2014, Baltman J. stated that an adverse inference could be dawn if requested items were improperly refused.
[111] The inference that I draw is that the disclosure of more complete documentation from Glo Spa would have demonstrated both that Ms. Fratianni had a significant interest in the income from Glo Spa and that she earned significantly more income than she reported from this business. However, this is not the only, or even the most important, reason for imputing income to Ms. Fratianni. I note, again, that I am expressly not finding that Ms. Fratianni had (or has) an ownership interest in Glo Spa. I am simply finding that she was entitled, one way or another, and received more income from Glo than she has declared.
[112] This brings me to the second reason why income should be imputed to Ms. Fratianni, being the circumstances of Glo Spa coming into existence. In particular, between 2008 and 2010, Glo Spa received loans totaling $85,000.00 from the Business Development Bank of Canada (“BDC”). Ms. Fratianni acknowledged in her evidence that Elissa could not have gotten those loans without Ms. Fratianni guaranteeing them. This suggests that Ms. Fratianni was involved in the business in a larger way than as a mere part-time employee.
[113] The BDC loan documents were never produced, in spite of requests for them. Mr. Skapinker argues that this is because the documents were only in the possession of Glo Spa and that Glo Spa is a separate legal entity. I disagree for three reasons. First, Ms. Fratianni acknowledges signing the loan document. It is unlikely that she did not receive a copy of a binding commitment that she signed. Second, even if Ms. Fratianni did not have a copy of the loan documentation, she would have been made aware of its terms, including when it was to be repaid. Finally, Ms. Fratianni agreed to produce documentation relating to the Glo Spa business. These loan agreements are the first things that should have been produced.
[114] In addition, there are contemporaneous documents that suggest that Glo Spa was the continuation of Ms. Fratianni’s Merle Norman business. In particular:
a) There was an advertisement from Glo Spa dated from 2010 that stated that Glo Spa “has been in business in the Etobicoke area (formally [sic] located in Sherway Gardens as Merle Norman) for over 20 years.” When asked about this advertisement, Ms. Fratianni testified that Elissa had created Glo Spa and not her. I reject this evidence, and find that it was more likely that Ms. Fratianni and Elissa were attempting to realize on the goodwill from Merle Norman by trying to bring in the same customers. In that regard, I specifically reject Ms. Fratianni’s evidence that the Merle Norman business had to close because there was no longer a lease in Sherway Gardens. The business would have had goodwill, and the evidence is clear that Glo Spa was using this goodwill to market its services.
b) There are Facebook and other media postings that support the same conclusion as is in the advertisement that I was provided with, namely that Glo Spa was a continuation of the Merle Norman business.
c) Glo Spa is identified by Ms. Fratianni on her 2009 Financial Statement as her business. In addition, a September 15th, 2009 letter provided by the accountant for the business, Mr. Marshall Sone, states that Custom Beauty Studio Inc. carries on business as both Merle Norman and Glo Spa.
[115] Third, there is the fact that Ms. Fratianni was working with Elissa in this business. It must be remembered that Elissa would have been 22 years old when this business was established, and had no experience in managing a business that I was made aware of. As a result, it is likely that Ms. Fratianni assisted her with the management of the business, as well as with the facials.
[116] Fourth, there are Ms. Fratianni’s Financial Statements. They also support the conclusion that Ms. Fratianni is earning significantly more money from Glo Spa than has been disclosed on her income tax return. Her most recent Financial Statement is dated October 10th, 2018, and shows that she is only earning $800.00 per month in gross wages. This suggests that, at minimum wage, Ms. Fratianni is only working 57 hours a month. If she is earning $20.00 per hour in the spa business it means that she is working less than ten hours every week. I find this unlikely, given that she works every Wednesday, Friday and Saturday.
[117] It must also be remembered that the income on this financial statement bears no resemblance to the income from employment that Ms. Fratianni reported on her income tax returns for 2014 to 2017 (see paragraph 106, above). This inconsistency also suggests that Ms. Fratianni’s sworn Financial Statements do not reflect Ms. Fratianni’s actual financial circumstances.
[118] There are other problems with Ms. Fratianni’s most recent Financial Statement. In particular, her total monthly income is $2,833.00 including the Canada Child Tax Benefit and the child and spousal support that she is receiving. However, her expenses are $3,639.00 per month, which leaves a shortfall of just over $800.00 per month. In addition, the Financial Statement includes $60.00 for entertainment and recreation and nothing for food. When food is considered, Ms. Fratianni has a shortfall of more than $1000.00 per month in her living expenses.
[119] However, when I look at the debt section of Ms. Fratianni’s Financial Statement, it is clear that her net debts have not increased since separation. Indeed, when I exclude the mortgage on the matrimonial home, and Ms. Fratianni’s legal fees, her debts have actually gone down by $15,000.00 since the date of separation. Ms. Fratianni’s Financial Statement that was sworn less than six weeks before the trial took place is inconsistent with the income she reports earning.
[120] In addition, Ms. Fratianni swore a financial statement on April 13th, 2009. This statement showed that she was earning only $1,100.00 per month in income. She did not have any support when this Financial Statement was sworn. However, her expenses were $3,090.00 per month. It is also worth noting that this financial statement listed an interest in Glo Spa as one of her assets, although it claimed the value of the interest as only $10,000.00 on the date of marriage.
[121] Both of these financial statements show that Ms. Fratianni is spending significantly more money than she is claiming she earns. However, it is clear from these financial statements that Ms. Fratianni did not go into debt even as she allegedly had this significant shortfall in her income. When asked about this discrepancy, Ms. Fratianni stated that her daughters help her.
[122] In this regard, I note that I heard no significant evidence about where Natalie works, and received not a single piece of evidence to show that Natalie made any contributions towards Ms. Fratianni’s expenses. In my view, this was simply an explanation that Ms. Fratianni offered when she could not adequately explain a significant discrepancy in her evidence. I reject Ms. Fratianni’s evidence that Natalie helps her with the costs of managing her own household.
[123] Elissa, on the other hand, lives with Ms. Fratianni, and will likely make contributions to the household. However, Ms. Fratianni also testified that Glo Spa did not make significant amounts of money. As a result, if that were true, it is difficult to see how Elissa could pay for her own expenses, as well as helping Ms. Fratianni make up a significant shortfall in her budget.
[124] This leads to a further point. In the materials that were filed was a September 15th, 2009 letter from Mr. Marshall Sone. I understood that he was the accountant that prepared Ms. Fratianni’s tax returns. In that letter, Mr. Sone states that the sales at Glo were significantly reduced, and that it was estimated that it would take at least a year for the business to develop to the point where the principals could even begin to draw a minimal salary.
[125] There are three problems with this letter, as follows:
a) The underlying business records that would have supported these conclusions were not entered into evidence.
b) Mr. Sone did not testify in person, so there was no opportunity to cross-examine him about his conclusions.
c) The conclusion that Glo Spa did not generate any income is not supported by the underlying evidence that I have set out above.
[126] This brings me to Ms. Fratianni’s argument that she could not earn more than she declared on her income tax return because she had to work part-time to be home for Matteo at the end of the school day. The parties agree that it is too far for Matteo to walk to and from school, but they did not provide me with any evidence as to how far away from Ms. Fratianni’s home the school actually was. The parties also did not provide me with any other evidence as to why it was necessary to be home for Matteo after school, even though he is now twelve years old and in Grade 7.
[127] I reject this argument for three reasons. First, the Financial Statements do not support this evidence. Second, I was not given any reason that Ms. Fratianni had to be home with Matteo after school other than he needed a ride. As a result, Ms. Fratianni could have worked at the spa in the evenings after picking Matteo up.
[128] Third, there are enough hours in the day when Ms. Fratianni is working that she could work full time. She is able to work every Wednesday and Friday afternoons until Glo Spa closes as well as every Saturday because Matteo is with Mr. D’Ambrosio during those times. This is twenty-four (24) hours of work. Then, Ms. Fratianni testified that she could work four hours during a weekday, even if she was required to pick Matteo up. That is an additional twelve (12) hours for the other three weekdays. This is almost a full-time work week.
[129] Finally, there is the Line 150 income. In Ms. Fratianni’s case, I am not prepared to accept those numbers as her income for three reasons, as follows:
a) In 2004, Ms. Fratianni showed no line 150 income in 2004. However, the statements for 2004 from Merle Norman showed that the business paid a dividend of $30,000.00 in that year. This indicates that Ms. Fratianni’s Line 150 income is disconnected from her actual income.
b) Ms. Fratianni’s income from employment for the last three years (2015-2017) has been less than $5,500.00 every year. However, even Ms. Fratianni’s own testimony shows that she is able to work in the spa for at least 20 hours a week. This total income would have Ms. Fratianni earning $5.29 per hour over a 52 week year. If she is an employee, then she must be paid minimum wage.
c) If Ms. Fratianni’s actual income is only $5,500.00, then she is intentionally underemployed. Given that Ms. Fratianni has considerable experience in the beauty industry, as well as considerable experience running her own business, she should be able to earn considerably more than minimum wage for her work.
[130] In the result, I am prepared to conclude that Ms. Fratianni earns considerably more than the amount that she shows as her Line 150 income. However, as noted at paragraphs 92 and 111, I am not making any findings about the nature of Ms. Fratianni’s interest in the income from Glo. The question is how much more?
[131] Mr. D’Ambrosio argues that I should impute income of $120,000.00 to Ms. Fratianni. I reject this assertion for three reasons. First, an analysis of the financial statements for the Merle Norman business for the years that I have (2003, 2004, 2007 and 2008) shows that it never made that much money.
[132] Second, I do not see any evidence in any of the materials before me to impute an income as high as suggested by Mr. D’Ambrosio. In particular, there was no evidence that Ms. Fratianni was able to earn this amount of money from the spa business either before or during the marriage. Similarly, there was no evidence as to the rates for Ms. Fratianni’s services from which I could infer such a high income.
[133] Third, there is the income that Ms. Fratianni earned from her Merle Norman business. In the best year that we have records for (2003), this business earned approximately $40,000.00. In both 2007 and 2008, the business earned approximately $30,000.00.
[134] However, this number needs to be approached with caution. It is clear that, when the Merle Norman business was operating, Ms. Fratianni had personal expenses, such as vehicle expenses, that she ran through the business. As section 19 of the Child Support Guidelines notes, this is a specific factor that can be considered in imputing income.
[135] As a result, I am of the view that income should be imputed to Ms. Fratianni in the amount of $45,000.00. I reach this conclusion for the following reasons:
a) A gross income of $45,000.00 plus the support amounts that Ms. Fratianni has received is consistent with an amount that would allow Ms. Fratianni to maintain the expenses she has claimed, plus groceries, while paying her debt down slowly. In short, it reflects the realities on her financial statement.
b) When the business expenses are considered from the Merle Norman statements, it is clear that a reasonable income was being earned. The statements I have suggest that $45,000.00 is a reasonable amount of money to impute when the personal expenses are added back in.
c) Ms. Fratianni is working, or able to work, more than thirty (30) hours at Glo Spa in each week. Even at minimum wage, this is in excess of $22,000.00 in income. It is unlikely that Ms. Fratianni is earning minimum wage, although I was not provided with a pay stub from Glo Spa.
d) The records that I was provided with from Glo Spa are incomplete, and are less than the records that I believe were disclosed. I am of the view that this lack of completeness is because both sides know that their claims about the income from this business are inaccurate. The answer lies somewhere in the middle.
e) Although not nearly as significant as the other points, I note that I was provided with one snapshot of a series of cheques written on the Glo Spa account running from March 15th, 2019 to May 19th, 2019, an approximately two month period. The cheques are not sequentially numbered. From this omission, I find that it is likely that not all of the cheques were included. Even the cheques that were disclosed over this time period, however, show business expenses of approximately $17,000.00 for a two month period. This annualizes to more than $100,000.00 in expenses. When the Merle Norman business financial statements are considered, it starts to look like the two businesses have a similar expense structure which makes it reasonable to infer that the income is the same as well.
[136] I should now deal with the time periods when Ms. Fratianni would have been able to earn this income. Matteo was born June 12th, 2006. As a result, he would have been less than two years old when the parties separated. It is, therefore, reasonable to assume that he would have required additional care from the time of separation until the time he went to full-time school in Grade 1. At that point, the obligations to care for him during the day would have been less and, as I have noted, by this point there is no reason why Ms. Fratianni cannot work full time.
[137] However, assuming that Ms. Fratianni bore the entire burden of caring for Matteo from the date of separation is not correct for two reasons. First, during the time that the parties lived in the house together, Mr. D’Ambrosio actually took care of Matteo when Ms. Fratianni was working. Second, even after Mr. D’Ambrosio moved out of the house, he had Matteo every weekend starting on Friday afternoon. This allowed Ms. Fratianni to continue working.
[138] Indeed, to that point, the Merle Norman business was able to turn a profit in both 2007 and 2008, the first two years after Matteo was born. This fact alone refutes any assertion that Ms. Fratianni makes that she was unable to earn income when Matteo was young.
[139] However, some deduction from the $45,000.00 that I have imputed to Ms. Fratianni is appropriate for the period between the date of separation and when Matteo started in Grade 1. As a result, for the years from 2008 to 2012, I impute income to Ms. Fratianni in the sum of $35,000.00. This number is based on the actual amount her business earned in 2008, along with all of the other points that I have set out above. Starting on January 1, 2013, I impute income to Ms. Fratianni in the sum of $45,000.00 per year.
b) Mr. D’Ambrosio’s Income
[140] Mr. D’Ambrosio argues that his income should be his pension income, effective the day that he retired from the Ontario Government. Ms. Fratianni argues that Mr. D’Ambrosio’s decision to retire was voluntary and that, as a result, he is underemployed. She asks me to impute Mr. D’Ambrosio’s pre-retirement income to him.
[141] In support of her position, Ms. Fratianni relies on the decision Drygala v. Pauli ((2002) ONCA, 61 O.R. (3d) 711 (C.A.)). In that case, the Court of Appeal stated that there is a duty to seek employment where a parent is healthy. Similarly, in Skramrud v. Skramrud (2007 ONSC), the Court found that someone who had retired voluntarily for non-medical reasons was underemployed, and income should be imputed to that person.
[142] In my view, a party who is healthy but who chooses to retire early is underemployed within the meaning of the case-law. In those circumstances, the appropriate remedy is to have the Court impute income to Mr. D’Ambrosio in the amount of his pre-retirement income. In this case, Mr. D’Ambrosio testified that he earned between $65,000.00 and $70,000.00 prior to retirement.
[143] I was not provided with any of the documentation relating to Mr. D’Ambrosio’s retirement package. Mr. D’Ambrosio had an obligation to provide this documentation to Ms. Fratianni and his failure to do so is concerning to the Court. However, Mr. D’Ambrosio did acknowledge that he accepted a lump sum payment to retire early, and that part of the reason he retired early was to maintain his retiree benefits.
[144] Mr. D’Ambrosio also argues that he had decided to retire so that he could prepare to assume responsibility for parenting Matteo on a full-time basis. Just as I determined that this was not a reason for Ms. Fratianni to be employed less than full-time, I am also of the view that caring for Matteo is not a justification for Mr. D’Ambrosio to be employed less than full-time.
[145] As a result, I am of the view that Mr. D’Ambrosio retired voluntarily and that he is currently underemployed. It is, therefore, appropriate to impute income to Mr. D’Ambrosio at his pre-retirement level of $65,000.00 to $70,000.00.
[146] The question is how long should this income be imputed to Mr. D’Ambrosio. In my view, it is not reasonable to assume that Mr. D’Ambrosio will work indefinitely. Indeed, even with a child with special needs, it is not unreasonable to expect that Mr. D’Ambrosio would retire at some point, even if he remains fully healthy.
[147] In argument, I asked counsel for Ms. Fratianni what should be done with this issue. He suggested that I could either make an Order that support would change at age 65, or I could direct that Mr. D’Ambrosio could come back to Court.
[148] In this case, the former approach is better. I reach that conclusion for two reasons. First, this is the first time that a final Order is being issued. As a result, it is open to me to set out what is reasonably foreseeable. In my view, it is reasonable to assume that Mr. D’Ambrosio would have retired at age 65 had he not decided to retire early.
[149] There is a difference between early retirement and a decision to retire at the normal retirement age for an occupation. I see nothing in the law that obliges a party to work until they die or their health is gone, even if they are separated and have children that they are required to support. A party retiring at the normal retirement age for their work is a reasonably foreseeable event when parties are negotiating over the terms of a separation agreement.
[150] In this case, there is no mandatory retirement age for Mr. D’Ambrosio’s occupation. However, Mr. Skapinker’s acknowledgement that I could make an Order reducing Mr. D’Ambrosio’s income to his pension income at age 65 acknowledges that, in these circumstances, 65 is a normal retirement age. Therefore, it is reasonable to conclude that Mr. D’Ambrosio would likely have retired at age 65, and that his income should be adjusted accordingly.
[151] In addition, I am concerned about the course that this litigation has taken. I have some concerns with the number of adjournments that Mr. D’Ambrosio requested. However, in terms of whether I should make an Order now or require the parties to come back to Court, I am more concerned about the manner in which Ms. Fratianni has handled disclosure. The process for disclosure was replete with both delays and failures to comply with Court Orders. My concern with allowing for a return to Court in this case is that it will inevitably be locked in delays, which will require Mr. D’Ambrosio to continue paying support at the higher amount.
[152] As a result, I impute $68,000.00 per annum to Mr. D’Ambrosio. This is approximately the mid-point between $65,000.00 and $70,000.00, and is the amount that was used by Belleghen J. to set the interim support amount. This amount will be adjusted to his actual income on the date that he turns 65. In the meantime, Mr. D’Ambrosio is still required to provide his Notice of Assessment for a particular year to Ms. Fratianni by June 30th of the following year. This obligation exists until Matteo is no longer a child of the marriage.
[153] Given that I have not adjusted Mr. D’Ambrosio’s income since the time that the initial Orders were made, there are no issues of retroactive child support in either direction.
Issue #3- Who Should Pay Child Support? In What Amount?
[154] The answer to this issue flows from my disposition of the first two questions. I have determined that the current access schedule will remain in place. As a result, Matteo will continue to spend more than sixty percent of his time with Ms. Fratianni. She is, therefore, entitled to continue receiving child support.
[155] The interim Order for child support was in the amount of $630.00 per month. It is based on Mr. D’Ambrosio’s income of $68,000.00. Nothing has changed, so the final support amount is $634.00. This amount is payable starting May 1st, 2019.
[156] Mr. D’Ambrosio’s may have the child support amount adjusted downwards to his actual income when he turns 65. However, if Mr. D’Ambrosio obtains further employment, the support will be adjusted to the Table amount effective July 1st in the year following any employment income that Mr. D’Ambrosio receives.
[157] To ensure that Mr. D’Ambrosio is providing the proper amount of support, he is to provide his Notices of Assessment to Ms. Fratianni for each calendar year by June 30th in the following calendar year.
Issue #4- Should an Unequal Distribution of Net Family Property be Ordered?
[158] Mr. D’Ambrosio relies on the provisions of the Family Law Act in relation to his request for an unequal distribution of Net Family Property. In addition, he argues that the monies that were provided to Ms. Fratianni’s business were loans, rather than gifts and should be repaid. Finally, Mr. D’Ambrosio relies on the principles of unjust enrichment in support of his claim.
[159] In Halliwell v. Halliwell (2017 ONCA 349), the Court of Appeal outlined how Courts should approach an analysis of any inequities that arise from the breakdown of the marriage. In that case, Gillese J.A. stated (at paragraphs 67 to 71):
[67] In Martin, the trial judge concluded that the farm business was a joint family venture and awarded the wife a constructive trust interest in it. This court set aside the trial judge’s determination and replaced it with a calculation of the wife’s entitlement under the equalization provisions of the FLA.
[68] At para. 63 of Martin, Joy A.C.J.O, writing for the court, explains that s.5(7) of the FLA makes it clear that the express purpose of the FLA equalization provisions is to address the unjust enrichment that would otherwise arise on marriage breakdown.
[69] She then refers to para. 66 of McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, in which this court stated that, “in the vast majority of cases, any unjust enrichment that arises as the result of a marriage will be fully addressed through the operation of the equalization provisions under the [FLA]”.
[70] At para. 66 of Martin, Joy A.C.J.O. concludes,
if unjust enrichment as the result of a marriage has been found, and it has been determined that monetary damages can suffice, the aggrieved party’s entitlement under the equalization provisions of the FLA should first be calculated.
[71] For these reasons, it was an error for the trial judge to begin his analysis by considering the possible existence of a joint family venture. For married couples, application of the FLA equalization provisions is the starting point for addressing inequities arising from marriage breakdown.
[160] In essence, Mr. D’Ambrosio is alleging that he has suffered from financial inequities as a result of the breakdown of this marriage. In order to determine whether I should accept that submission, I will first determine what each party’s Net Family Property was at the beginning and the end of the marriage. In answering this question, I will determine whether the sums advanced to Ms. Fratianni’s business were loans, or should be characterized in some other way.
[161] Once I have established the NFP calculations, I will then look at the question of whether an unequal distribution should be ordered under the Family Law Act. Then, I will consider whether there is any residual basis to find unjust enrichment or some other remedy.
a) The Calculation of NFP
NFP At the Start of Marriage
[162] In order to determine whether there should be an unequal division of property, the first question is what each party brought into the marriage. Mr. D’Ambrosio provided me with detailed documentation that demonstrated the value of his assets as of the date of marriage. Those values were not challenged in any meaningful way by Ms. Fratianni’s counsel, and I accept them.
[163] I should note one fact about Mr. D’Ambrosio’s evidence. His pension is a very significant asset. However, no pension valuation was provided in the materials, which is a significant concern. One should have been provided. That being said, it is clear that Mr. D’Ambrosio was prepared to concede that his pension had increased in value during the course of the marriage. As a result, in order to ensure that I captured some value for the increase (which benefits Ms. Fratianni), I am prepared to accept the values on Mr. D’Ambrosio’s Financial Statement.
[164] Ms. Fratianni provided me with a Financial Statement sworn in 2009 that showed she had significant debts at the time of the marriage, and a negative NFP of $205,330.00. This Financial Statement contains a significant error. While it properly does not count the matrimonial home as an asset, it does count the mortgage on the matrimonial home as a liability.
[165] This error is a significant part of the claim that Mr. D’Ambrosio makes that Ms. Fratianni misled him about her financial circumstances when they got married. It is, however, an error and Ms. Fratianni’s financial situation was much better than this Financial Statement would indicate.
[166] On that point, I note that Mr. D’Ambrosio takes issue with the fact that Ms. Fratianni represented herself as a successful businessperson when they got married and that I should order an unequal division of NFP as a result. Given that I have concluded that she earned in excess of $40,000.00 from this business, which was a going concern when the marriage took place, this argument is not supportable.
[167] I also note that Mr. D’Ambrosio was concerned about payments that Ms. Fratianni was making on account of her mother’s mortgage around the time that the parties got married. On reviewing the record, it is not clear to me what the concern was, as this would have led to a depletion of NFP before the marriage. I also do not consider these payments as a reason for an unequal distribution of NFP.
[168] A second Financial Statement was sworn in October of 2018, and this statement properly shows the Matrimonial Home as being excluded on both the asset and liability side of the ledger. Given that the matrimonial home does not factor into the calculation of the NFP (as both sides are entitled to half of it) and given that it was ultimately sold in 2010 for $316,000.00, I am prepared to accept the values of the home as they are recorded by Ms. Fratianni.
[169] This brings me to the value of the other debts and assets that Ms. Fratianni has recorded on her NFP statement. Again, the values of the assets as of the date of marriage were, with the exception of Ms. Fratianni’s business, not challenged. I also accept those numbers.
[170] The only number that is open to significant challenge is the value of Ms. Fratianni’s business, both at the date of marriage and at the date of valuation. At the date of marriage, in both financial statements Ms. Fratianni records the value of her business (the Merle Norman business) as being $20,000.00 on the date of marriage and $10,000.00 on the valuation date.
[171] There are two problems with the value as of the date of marriage. First, I was not provided with a factual basis for the number. Second, the financial statement from February 29th, 2004 shows that the business actually had a deficit of $22,000.00. I acknowledge that the business has a value as a going concern, and that the value on the balance sheet is not necessarily the value that the business would get as a going concern because of its ability to generate income.
[172] In the circumstances, I am prepared to accept the value of the business as of the date of marriage as $20,000.00. This number accounts for both the deficit that existed at the time of the marriage and the earning power of the business. The remaining assets on Ms. Fratianni’s statement were uncontroversial, and I have included them in the Net Family Property calculation.
[173] I must also address the debts of each party. With respect to Ms. Fratianni’s debts as of the date of marriage, there is a Citibank and a Scotiabank credit card listed on her Financial Statement. However, I did not see any documentation in the materials that were filed with me relating to either of these accounts, and it is not clear that the Respondent accepted the existence of these debts. As a result, I am not prepared to include them in the Net Family Property calculation at either the date of marriage or the date of separation.
[174] With respect to Mr. D’Ambrosio’s debts, I note that including debts in his pre-marital property calculations is a detriment to him. As a result, I am prepared to accept the values for debts as of the date of marriage in Mr. D’Ambrosio’s financial statement.
[175] Based on this information, I have completed the calculations of each party’s NFP as of the date of marriage.
NFP As Of Valuation Date
[176] In calculating the NFP’s for the parties as of valuation date, there are three overarching issues that have to be determined:
a) Was the money that flowed to Ms. Fratianni’s businesses during the course of the marriage a gift or a loan? Resolving this question will also permit me to resolve the issue of whether the parties had a unique marital arrangement in this case.
b) What value should be put on Ms. Fratianni’s business as of the date of separation?
c) Whether Mr. D’Ambrosio is responsible for both of the mortgages that were put on the property?
The Money Flowing to the Businesses
[177] If the money that flowed to the business was a gift, then it will not appear as either a debt or a credit on either party’s NFP statement. If the money that flowed to Ms. Fratianni’s business was a loan, then it would appear on her NFP as a debt and on Mr. D’Ambrosio’s NFP as an asset. This has an effect both on whether Ms. Fratianni owes debts to Mr. D’Ambrosio and the calculation of NFP.
[178] The question of how to characterize these debts is based on the larger question of how to characterize the parties’ financial arrangements. Mr. D’Ambrosio argues that the parties had a “unique financial arrangement” within the marriage. He argues that he and Ms. Fratianni were each responsible for their own expenses
[179] There are two legal issues that need to be determined. First, there is the characterization of joint accounts. As noted in section 14(b) of the Family Law Act, “money on deposit in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants.”
[180] This presumption may be rebutted by the spouse who seeks to have the monies excluded from Net Family Property, or who otherwise claims that there was a different arrangement. However, it is up to Mr. D’Ambrosio in this case to demonstrate that the monies in joint accounts were not intended to be jointly owned and used (on this point, see McLean v. Dahl 2017 ONSC 1288 at para. 90).
[181] In the case before me, there were no written documents to support that money deposited into the joint account was not to be used jointly. In addition, the parties had both a joint bank account and joint credit cards. There was clearly some integration of income and expenses, and a clear intention to share at least some expense jointly. As a result, I am of the view that Mr. D’Ambrosio’s ex post facto explanation that the parties had completely separate finances is not supported by the facts.
[182] On this point, I note that Mr. D’Ambrosio relied on the Small Claims Court decision of Gillis D.J., in which the Deputy Judge found that the parties did have separate finances. I am not bound by this finding, and I am not prepared to apply it as the action was stayed as against Ms. Fratianni when this finding was made, and the Deputy Judge did not have the advantage of the complete financial record that was before me.
[183] The second legal issue is the question of whether these amounts are a gift or a loan. In Barber v. Magee 2015 ONSC 8054, Fitzpatrick J. set out a list of the factors to assess in determining whether the advancement of a sum of money is a gift or a loan. He stated (at paragraph 42):
[42] The courts in British Columbia have been helpful in suggesting factors to look to when determining a resulting trust claim. The British Columbia Supreme Court recently reviewed the caselaw in Byrne v. Byrne, 2015 BCSC 318, 57 R.F.L. (7th) 215. The Court in Byrne referenced the factors adopted by their Court of Appeal that ought to be reviewed when determining whether a gift or loan was intended: see Kuo v. Chu, 2009 BCCA 405, 180 A.C.W.S (2d) 903, citing Locke v. Locke, 2000 BCSC 1300, [2000] B.C.J. No. 1850. Those factors are as follows:
a. Whether there were any contemporaneous documents evidencing a loan;
b. Whether the manner for repayment is specified;
c. Whether there is security held for the loan;
d. Whether there are advances to one child and not others or advances on equal amounts to various children;
e. Where there has been any demand for payment before the separation of the parties;
f. Whether there has been any partial repayment; and,
g. Whether there was an expectation or likelihood of repayment.
[184] In considering the evidence in this case, I note that there were no contemporaneous documents evidencing a loan, there was no repayment plan or agreement, there was no security held for the loan, and there had been no demand for payment before the parties separation. The only evidence that supports Mr. D’Ambrosio’s position that the amounts transferred to the business were loans were a series of cheques that returned money to Mr. D’Ambrosio directly.
[185] In my view, given the other factor that weigh against these amounts being loans, the partial repayment of monies is insufficient to establish a loan. In particular, I would note that there was no evidence of a demand for repayment until this litigation started, more than a year after separation. If these amounts were truly loans, then I would have expected to see such a demand very shortly after separation.
[186] Therefore, I conclude that all of the amounts were either gifts of paid for the family unit. There were no loans made regarding these amounts and there is no unique marital arrangement in this case.
The Value of Ms. Fratianni’s Business
[187] In both of her Financial Statements, Ms. Fratianni values her business at $10,000.00 on the valuation date. It is interesting to note that the name of the business in the 2009 Financial Statement is Glo Spa, and in the 2018 Financial Statement it is Merle Norman.
[188] In any event, this valuation is clearly incorrect. I have the advantage of having the financial statements (unaudited) for Merle Norman as of February 29th, 2008, which is the day before separation. Even those statements show that the business has retained earnings of nearly $60,000.00. This number is not just goodwill. A large portion of it is the inventory that remained in the business.
[189] A valuation of the business was ordered by Price J. on June 17th, 2015. This valuation was due by August 31st, 2015, and was to cover the value at both the date of marriage and the date of separation. It was never provided, although a letter from Ms. Fratianni’s accountant, Mr. Marshall Sone, was provided. This letter says that, as of 2009, there was no value in the business because there was no potential for the business because the lease had expired, the rent was increasing, and the company was in deficit by $80,000.00. Mr. Sone was not called as a witness, however.
[190] The explanation for not providing the business valuation was that there was no value in the business because the rent was increasing and the business had to be shut down. In essence, the explanation is a repeat of the letter from Mr. Sone.
[191] In my view, this explanation is not sufficient for three reasons:
a) I have, as set out elsewhere, significant concerns with Ms. Fratianni’s failure to disclose documents and comply with Court orders in this case. This is another example of that failure.
b) The claim that the business is worth nothing is belied by the contents of the financial statement. There is obviously some value in this business as of March 1, 2008, as I have discussed above at paragraph 184.
c) The business has continued to operate as Glo Spa, and the marketing clearly refers to the business as a continuing operation.
[192] I am left, then, with trying to value the business as a going concern on the date of separation with very limited evidence. I am of the view that I should start with the same approach to valuing it then as I used on the date of marriage. Ms. Fratianni claimed her business was worth $20,000.00 when the book value of the business was negative. I accept that the business has an extra value to it associated with its’ ability to generate revenue. The extra value of the business over and above the value as disclosed by the financial statement at the time of marriage was $42,000.00. This extra value is a good starting point for considering the value of the business as of the date of separation.
[193] However, I must also take into account the fact that the business had to move in the fall of 2008 because of the expiry of the lease. In my view, the contingencies associated with this move would likely result in non-recoverable expenses equivalent to the extra value in the business. I am of the view that I should take these expenses into account in valuing the business as they were known expenses as of the date of separation. Given that the business had to be moved, its’ value as a going concern would be less.
[194] This approach has the advantage of consistently valuing the asset of the business, recognizing that it has a value beyond simply the assets in the business, and being based in both the evidence and the views of Ms. Fratianni, at least at the time of marriage. It also adjusts for the fact that the business did have to be moved as a result of the lease issues.
[195] As a result, the value of the business on Ms. Fratianni’s NFP statement as of the date of separation shall be $60,000.00.
The Debts on the Matrimonial Home
[196] In 2006, a second mortgage was added to the matrimonial home. Mr. D’Ambrosio argues that, although this mortgage was in the name of both parties, he should not be responsible for it. I reject that argument for the following reasons.
[197] First, the background facts show that the refinancing of the home was undertaken to provide some funds for Natalie to go to Dental College. At the time that this refinancing was undertaken, Mr. D’Ambrosio was not on title to the matrimonial home. However, he had spousal rights and likely would have been required to provide his approval to the mortgage (see sections 20 and 21 of the Family Law Act).
[198] The evidence discloses that Ms. Fratianni was advised that she should obtain payment from Mr. D’Ambrosio for surrendering half her interest in the matrimonial home to him. However, Ms. Fratianni chose to provide Mr. D’Ambrosio with a 50% interest in the matrimonial home with no payment. In other words, Mr. D’Ambrosio obtained half of the property in exchange for his agreement permit the mortgage to be registered against it.
[199] For me to conclude that Mr. D’Ambrosio obtained half the home for this consideration and avoided responsibility for a portion of the debt would be unrealistic. Even without assigning responsibility for the entirety of the second mortgage to Ms. Fratianni, this is still a transaction that significantly advantages Mr. D’Ambrosio.
[200] In addition, I note that there was no written documentation to support Mr. D’Ambrosio’s claim that Ms. Fratianni agreed to assume the entire liability for the second mortgage. This is a significant omission, given that there was considerable paperwork filed in relation to the transfer of ownership and the second mortgage. If this agreement had actually existed, then it would have been reduced to writing at the same time that the rest of the paperwork relating to the mortgage was completed.
[201] This brings me to Mr. D’Ambrosio’s claim that this second mortgage was part of a larger “financial restructuring” in 2006. Having reviewed the evidence, I do not see any basis to conclude that there was anything more to the events of 2006 than a decision to take out a second mortgage in order to fund a child’s education.
[202] In particular, I am of the view that Ms. Fratianni did not accept responsibility for any of Mr. D’Ambrosio’s debts as of 2016, including the BMO Mosaic Mastercard that was in Mr. D’Ambrosio’s name. It must be remembered that Mr. D’Ambrosio had already obtained 50% of the matrimonial home without paying any money. It is unlikely that Ms. Fratianni was prepared to assume sole responsibility for other debts in addition to giving up half her house.
[203] In any event, even if Ms. Fratianni used the Mosaic Mastercard for her business expenses, there is no written documentation to establish that these amounts (which were debts payable to BMO and incurred in Mr. D’Ambrosio’s name) were to be repaid by Ms. Fratianni.
[204] As a result, I conclude that the debts associated with the matrimonial home are to be shared equally.
The Remainder of the NFP At Valuation Date
[205] Other than the points noted above, the parties have generally correctly stated the value of their assets on their Financial Statements and in their NFP calculations. In addition, the parties are for the most part ad idem on the value of these assets. Accordingly, I have generally accepted their numbers in populating my NFP calculation, which is set out as Schedule “A”.
[206] The debts are more complicated. As noted above at paragraphs 179 and 180, joint assets are jointly owned. I am of the view that the same principles should apply to joint debts. In addition, for the reasons set out above, I reject Mr. D’Ambrosio’s assertion that the second mortgage on the home was solely Ms. Fratianni’s responsibility. This means that my calculations are substantially different than Mr. D’Ambrosio’s.
[207] In terms of Ms. Fratianni’s Financial Statement and NFP calculation, I note the following points:
a) She appears to have included a debt payable to a Josie Valvano as a debt on valuation date. However, the documentation filed shows that the promissory note for this amount was only signed in July of 2008, which was after the date of separation. I am not prepared to provide Ms. Fratianni any credit for this debt.
b) Ms. Fratianni has listed a Citibank and a Scotiabank Visa card in her Financial Statement, and has claimed that there are amounts owing on these credit cards as of the Valuation Date. I did not have any documentation relating to these debts, so I have not permitted them to be included.
[208] In terms of Mr. D’Ambrosio, as I have noted above, there is no basis for concluding that any of the joint debts, or any of the debts in Mr. D’Ambrosio’s name are solely the responsibility of Ms. Fratianni.
[209] Based on the foregoing, the NFP calculations require Ms. Fratianni to pay Mr. D’Ambrosio the sum of $28,512.07 as an equalization payment. This brings me to the question of whether an unequal distribution is necessary in this case.
b) Is an Unequal Distribution Necessary
[210] The circumstances in which a Court will order an unequal distribution of Net Family Property are set out in section 5(6) of the FLA, which states:
Variation of share
(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,
(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;
(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;
(d) a spouse’s intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (33) is disproportionately large in relation to a period of cohabitation that is less than five years;
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O 1990, c. F.3, s. 5(6).
[211] Mr. D’Ambrosio argues that an unequal distribution is necessary for the following reasons:
a) Ms. Fratianni misrepresented her income when she came into the marriage, claiming a negative NFP of over $200,000.00. I reject this argument, as it is factually incorrect for the reasons set out abovel
b) Ms. Fratianni engaged in wasteful spending and accumulated debt during the course of the marriage.
c) Ms. Fratianni recklessly depleted Mr. D’Ambrosio’s savings over the course of a very short marriage
[212] In support of his position that he was left in a very precarious financial position as a result of the marriage, Mr. D’Ambrosio alleges that he owes his mother and his father’s estate more than $200,000.00, and that these amounts stem in large part from the requirement to pay unjustified spousal support.
[213] There are four problems with Mr. D’Ambrosio’s argument that his current debts are related to the marriage and the payment of unjustified spousal support:
a) If the spousal support was unjustified, then that can be addressed by way of a repayment order.
b) There is no evidence in the record before me, other than Mr. D’Ambrosio’s testimony, that he owes his parents these amounts. Given the voluminous documentation provided by Mr. D’Ambrosio, I draw an adverse inference from the failure to produce any loan documents, and conclude that these loans were not actually made.
c) The spousal support that Mr. D’Ambrosio was required to pay from 2008 to 2018 was less than half of this alleged $200,000.00 debt.
d) According to his September 6th, 2018 Financial Statement, as of the date of separation, Mr. D’Ambrosio only owed his parents $10,000.00. The debts to his parents cannot be related to the marriage, as even if they existed, they were accumulated after separation.
[214] In short, neither this alleged loan nor the payment of unjustified spousal support are grounds for Mr. D’Ambrosio’s claim that he should be entitled to an unequal division of Net Family Property.
[215] This brings me back to Mr. D’Ambrosio’s arguments as set out at paragraph 206 b and c. In essence, Mr. D’Ambrosio is arguing that Ms. Fratianni recklessly depleted the savings that he had accumulated before the marriage and should be liable for that depletion by way of an unequal payment of NFP.
[216] In terms of the reckless accumulation of debt, I would note that any increase in debt during the course of the marriage appears to be related to either the business or to sending Natalie to school. Spending money on a child’s education is generally not a reckless activity. Similarly, investing money in a business owned by one spouse that has produced reasonable amounts of income for more than a decade is also not a reckless expenditure.
[217] This brings me to the issue of expenditures during the marriage. Mr. D’Ambrosio pointed to the expensive engagement ring that he purchased for Ms. Fratianni as an example of wasteful spending. The amount spent on the ring was significant, being in excess of $10,000.00. However, the decision to spend money on that ring was ultimately Mr. D’Ambrosio’s and should not be addressed by an unequal distribution of NFP.
[218] Then, there were vacations that the couple took during the course of their marriage. Again, both parties went on the vacation together. Ms. Fratianni described Mr. D’Ambrosio as “generous” to her and her daughters. Again, while these expenditures may be “generous”, they do not amount to grounds for an unequal distribution of NFP.
[219] Finally, it must be remembered that Mr. D’Ambrosio’s NFP dropped by less than $20,000.00 from the date of marriage to the date of separation. He will be receiving an equalization payment that will more than compensate for any of these losses.
[220] In the result, I conclude that an unequal division of NFP is not appropriate in this case. To summarize, the reasons for my conclusion are as follows:
a) Any losses as a result of the overpayment of spousal support can be recouped through the repayment of that spousal support, which I am ordering for reasons explained elsewhere in this decision.
b) The losses flowing from the money that went to the business were based on joint decisions, and both parties should bear responsibility for what happened during the marriage.
c) The money that Mr. D’Ambrosio “lost” paying for a wedding, an expensive engagement ring, and other items including vacations for Ms. Fratianni and her children are costs that one party will often absorb out of love and affection. Again, both parties should bear responsibility for what happened during the marriage.
d) Mr. D’Ambrosio has received partial compensation for the losses because he was added to the title of the matrimonial home and is entitled to his portion of the net proceeds from the sale of the matrimonial home.
e) Mr. D’Ambrosio is receiving an equalization payment that will more than compensate him for any losses during the course of the marriage.
[221] In the result, I conclude that Mr. D’Ambrosio should be paid an equalization payment of $28,512.07 by Ms. Fratianni. This amount is to be satisfied at first instance from the monies being held in trust on account of the sale of the matrimonial home.
[222] This brings me to the issue of the adjustments to the amounts held in trust for the matrimonial home. At the time of the sale, a judgment against Ms. Fratianni on account of the debt owing to Josie Valvano had to be paid out of the proceeds of the sale. As I have noted above, this amount was not a debt owing to Ms. Fratianni as of the date of marriage.
[223] Accordingly, this debt needs to be accounted for in the payment of monies out of trust. I understand that $58,887.25 is currently being held in trust. Each party would normally be entitled to half that amount. However, Ms. Fratianni has already received $10,535.75 out of the proceeds of sale. That means that, if the debt to Ms. Valvano had not been paid out of the proceeds of the sale, there would have been $69,423.00 to be shared equally. This would have produced two equal shares of $34,711.50.
[224] Ms. Fratianni is therefore entitled to $24,175.75 out of the proceeds of the matrimonial home. This amount is to be credited against her equalization payment. Therefore, all of the money held in trust on account of the matrimonial home is to be released to Mr. D’Ambrosio forthwith, and Ms. Fratianni owes a net amount of $4,336.32 on account of equalization which is to be paid within thirty (30) days of today’s date.
Issue #5- What is the Amount of Spousal Support That Should be Paid? Should There be a Repayment of Spousal Support Arrears?
a) Entitlement
[225] A party can obtain entitlement to spousal support through an agreement, or through the compensatory basis or the needs basis. Neither party alleges an agreement, so the only two issues remaining are compensatory or needs basis.
[226] I start with the compensatory basis. The rationale behind compensatory orders of spousal support was explained in Moge v. Moge (1992 SCC). Compensatory support orders are made to compensate for the sacrifices that one spouse made during the relationship that either negatively affected the spouse claiming support or provided an advantage to the spouse from whom support is claimed.
[227] In this case, there is no basis for a compensatory claim of spousal support for the following reasons:
a) Ms. Fratianni came into the marriage with a business that provided her with steady income. When she left the marriage, she continued to have this business, and continued to earn income from it.
b) The marriage took place later in life, and the parties had established careers that they continued with after the marriage was over.
c) Neither party provided any testimony about specific sacrifices that Ms. Fratianni made. Indeed, on the evidence, it was clear that Mr. D’Ambrosio was an involved parent, and took on a significant portion of the burdens of raising Matteo both before and after separation.
[228] This brings me to the needs basis for spousal support. In Gray v. Gray (2014 ONCA 659) the Court of Appeal explained the needs model of support as follows (paragraph 27):
[229] One of the objectives of the Divorce Act is to relieve economic hardship. Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership. As stated by this court in Marinangeli v. Marinangeli (2003), ONCA, 66 O.R. (3d) 40 at para. 74, in determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, in light of her income and reasonable expenses.
[230] In terms of Ms. Fratianni’s ability to support herself, I conclude that she would have had some difficulties supporting herself and juggling her share of the responsibilities for Matteo until the point when he started Grade 1. I also reach the same conclusion about her ability to maintain the standard of living that she was accustomed to at the time of separation.
[231] My reasons for reaching this conclusion are the same as my reasons for concluding that Ms. Fratianni should only have income of $35,000.00 imputed to her for the time period before Matteo started Grade 1. In essence, Ms. Fratianni would have had to be at home with Matteo more when he was not in full-day school. Therefore, her ability to generate income for herself would have been less, and she would require some transitional support.
[232] In the result, Ms. Fratianni has an entitlement to spousal support. In this regard, I also note that the NFP calculation does not significantly affect the calculation of spousal support, as the parties had only a modest amount of property to equalize, and it was Ms. Fratianni who is required to make a payment on account of equalization.
b) Calculation
[233] The calculation of spousal support requires me to use the numbers that I have determined for Ms. Fratianni’s income, as well as Mr. D’Ambrosio’s income, and the child support amount.
[234] Neither party provided me with calculations for Spousal Support. This is not a surprising omission, as both parties had very different positions on Ms. Fratianni’s income from what I had concluded the income should be.
[235] With the version of the DivorceMATE software available to me, I was only able to do calculations back to the 2010 calendar year. Based on the parties respective incomes as I found them in 2010, the range for spousal support is from $0 to $476, with a mid-point of $171. The duration is for a period of between two and fourteen years.
[236] However, the parties’ income changes in late 2013. It is at that point that I have found that Ms. Fratianni’s imputed income increases to $45,000.00 per year. In 2013, then, the range for spousal support is $0 at both the low and mid-points, with a high end amount of $172.00 per month. The duration is for a period of between two and 11 years of separation.
[237] I start with the appropriate time period for support in this case. In my view, support should end a year after Matteo started Grade 1, so at the end of 2013.
[238] This period of support would have provided Ms. Fratianni with an opportunity to ensure that she could arrange her schedule to work in the Spa business. In that regard, I note two points. First, Ms. Fratianni has, as I have found, has either been underemployed or has actually earned significant income from Glo Spa. Either way, however, she should have been able to be financially independent by the end of 2013. Second, Ms. Fratianni had significant assistance from Mr. D’Ambrosio in caring for Matteo, which should have made it easier for her to earn more income.
[239] In addition, this period of support is almost six years, from March 1, 2008 to December 31, 2013. It is in the middle of the range of support produced by the DivorceMate calculations. This buttresses the duration of support that the facts in this case have led me to.
[240] This brings me to the quantum of support. In assessing the quantum of support, I am mindful of the fact that Belleghen J. ordered interim spousal support in the amount of $850.00 per month starting in September of 2009. The parties lived under the same roof, but separate and apart, for the period from March of 2008 to September of 2009. No support was paid during that period, but expenses were shared.
[241] In my view, the appropriate quantum of support is $250.00 per month, payable from the date of separation to the end of December, 2012. From January 1, 2013 to the end of December, 2013 the support amount should be reduced to $170.00 per month. These are amounts that are between the mid and upper level of support.
[242] I have determined that this is an appropriate amount to pay in spousal support by considering that this is both transitional needs based spousal support, and that even with the payment of child support, there was still a difference in the income between the parties.
[243] This brings me to the calculation of what is owing versus what was actually paid. I have set these amounts out in a chart attached as Schedule “B” to these reasons. The total overpayment of spousal support in this case is $67,860.00. The question is whether any of the retroactivity should be repaid by Ms. Fratianni.
c) Retroactivity
[244] The parties agreed that the Spousal Support should stop as of December 1, 2018. I made an Order, on consent, to that effect at the conclusion of the trial. In January, I received correspondence from the parties respecting this Order. Mr. Geisinger wrote requesting that I provide a written ruling on this point, as FRO was engaged in enforcement procedures. Mr. Skapinker took the position that this Order should only be issued if Mr. D’Ambrosio brought the arrears of child support (which had allegedly accumulated since November 23rd, 2018) up to date.
[245] I did not address this correspondence, as I did not have sufficient materials before me and I was hopeful that a full decision would be forthcoming shortly. However, I did receive a 14B motion on this matter, seeking an Order confirming the discussion. I signed that Order, as it was an Order that had been made in Court, on consent, and I could see no reason why it should not have been issued as a matter of course.
[246] As a result, spousal support ceases on consent from the date of the conclusion of trial. Retroactivity however remains a significant issue.
[247] Ms. Fratianni argues that I should not order her to repay any retroactive support amounts. She advances the following arguments in support of her position:
a) She is still, on her view of the case, entitled to receive spousal support.
b) The interim order did not have a termination date, and the Divorce Act defines an interim Order as an order “pending determination of the application.”
c) The SSAG’s are a useful tool, but are not binding on the Court.
d) There are tax implications to the retroactive reversal of spousal support.
[248] I start by rejecting Ms. Fratianni’s assertion that she is still entitled to receive spousal support at this point in the proceedings. It has been more than eleven years since the parties separated. In most circumstances where one party or the other did not make a significant career sacrifice for the relationship, the obligation to pay support from a marriage of less than four years duration would have long since ceased.
[249] Further, on the facts of this case, it is clear that Ms. Fratianni was not entitled to support in either the quantum she received it, or for the time period that she received it. She has either been intentionally underemployed for most of the last ten years, or she has been hiding income in a company that is, on paper, owned by her daughter. As can be seen from the reasons at paragraph 130, above, I have concluded that it is the latter, and that Ms. Fratianni has been hiding income. I note again, however, that this conclusion is only as between these two parties. Neither Glo Spa nor Elissa Fratianni are parties to this action and my findings are in no way binding on them.
[250] This brings me to Ms. Fratianni’s argument that the interim award is an award pending the final decision. As I understand this argument, Ms. Fratianni argues that the interim award remains in place until such time as the final decision is made. There are several problems with this argument, as follows:
a) No case law was advanced to support this argument, and I am not aware of any case-law that supports this argument.
b) The Courts regularly adjust the interim support amount up and down at a final trial. See, for example, Elgner v. Elgner ((2011) ONCA 483, 105 O.R. (3d) 721).
c) Allowing an unconscionably high (or low) interim award to stand during the entire period prior to the final decision being rendered would work an injustice on one of the parties.
[251] This brings me to the events in this case. On three separate occasions, Mr. D’Ambrosio attempted to have the spousal support payments terminated. In particular, in October of 2014 he appeared before Baltman J. and asked for spousal support to end. At that motion, Ms. Fratianni’s counsel argued that the matter should be left to a trial, and Baltman J. found that argument to be convincing.
[252] I do not have the advantage of knowing what submissions were made to Baltman J. on the 2014 motion. On the basis of Ms. Fratianni’s income tax returns alone, continued spousal support might very well have been appropriate in the fall of 2014. Certainly, a busy motions judge could easily, and reasonably, be persuaded to leave the matter to trial on the basis of the information from the tax returns and the fact that Ms. Fratianni had a young child. Matteo would have been in Grade 3 when this motion was heard. I also note that the record before Baltman J. would likely have been incomplete, as Ms. Fratianni’s most current Financial Statement would have been from 2009.
[253] However, a trial has now been conducted. Based on my findings of fact, Ms. Fratianni’s assertion that she had no income is not supportable. As a result, Ms. Fratianni is not, and never was, entitled to the spousal support amounts that she was paid by way of interim orders. This alone is grounds to require Ms. Fratianni to repay the entire overpayment.
[254] However, Ms. Fratianni’s conduct must be considered. A party that has ignored their disclosure obligations, hidden income and collected more in support than they were entitled to should not be able to then claim that the correction in the support awards should not be retroactive. Allowing Ms. Fratianni to avoid the retroactive repayment of spousal support in this case would only encourage other parties who either want to underpay spousal support, or to claim excess spousal support to ignore their disclosure obligations.
[255] I should also briefly mention Mr. D’Ambrosio’s conduct. He sought a number of adjournments to this trial, which resulted in a final decision being postponed for a considerable period of time. This is of some concern to the Court, as it would have been reasonable to assume in the fall of 2014 that this matter would have proceeded to trial sometime within the next year or fifteen months. This is not a reason for denying Mr. D’Ambrosio a retroactive adjustment. This is particularly true because he had put Ms. Fratianni on notice that he was seeking the cancellation of spousal support. However, in my view, it is grounds to deny him the right to recover interest.
[256] This brings me to Ms. Fratianni’s third argument, that the SSAG’s are a “useful tool which is not binding on the Court”. In support of this argument, Ms. Fratianni’s counsel points to the BC Court of Appeal decision in Yemchuk v. Yemchuk (2005 BCCA 406), in which this concept is discussed (see paragraphs 62 and following).
[257] However, this argument does not consider two key facts. First, when Yemchuk was decided, the SSAG’s were in draft form. They have since been published. Second, in Gray v. Gray (2014 ONCA 659), the Ontario Court of Appeal discussed the role that the SSAG’s are to play in a Court’s consideration. While they are useful guidelines, and not binding, a Court must explain any deviation from the SSAG’s, and such deviation must be founded in the evidence.
[258] There is no evidence in this case to support a deviation from the SSAG’s in calculating either the quantum or the duration of support. This argument also does not support Ms. Fratianni’s position that retroactivity should not be awarded.
[259] This brings me to the tax consequences associated with the repayment of spousal support. The fact that there are tax consequences to the repayment of spousal support overpayments is not grounds for denying a repayment. It may be grounds for reducing the repayment obligation. If the parties cannot resolve this issue on their own, they may make written submissions to me of no more than three (3) double-spaced pages, exclusive of case-law within fourteen (14) calendar days of the release of these reasons. Reply submissions will then be due seven (7) calendar days thereafter, and are not to exceed one (1) single-spaced page. No extensions to these timelines are permitted, even on consent, without my leave. If no submissions are received, I will assume that the parties have agreed on this issue.
[260] For the foregoing reasons, I conclude that Ms. Fratianni is required to repay all of the overpayments of spousal support less only amounts that are ordered or agreed upon to account for tax liability adjustments. This produces a repayment obligation of $67,860.00, less any amounts that are deducted either on consent or based on the parties submissions.
Issue #6- Should Any Other Remedies be Ordered?
[261] In his draft Order, Mr. D’Ambrosio seeks the following additional remedies:
a) Orders for Ms. Fratianni to satisfy the debts from this judgment through an Order against the Glo Spa business.
b) An Order requiring Ms. Fratianni to sell the Glo Spa business.
c) An Order prohibiting Ms. Fratianni from engaging in any business operation, directly or indirectly intended to defeat a judgment of the Court.
[262] As I have noted above, the findings that I have made regarding Ms. Fratianni’s income from Glo Spa apply as between the parties to this action. I have found that Ms. Fratianni was entitled to additional income from Glo Spa that she has hidden over the course of the last ten years. As noted throughout these reasons I have made no findings as to how this income has been hidden.
[263] Ms. Fratianni’s liability does not necessarily attach to Glo Spa. Neither Elissa nor Glo Spa are parties to this action, and remedies cannot be ordered against them without the opportunity to be heard.
[264] In any event, the Court’s responsibility in this case is to make Orders respecting the parties’ incomes and Net Family Property. Enforcement proceedings, and how those orders are to be satisfied are a separate matter. I decline to make any of these Orders.
Section 7 Expenses
[265] I had very limited evidence and submissions on Section 7 expenses. As a result, I am not making any retroactive Orders respecting section 7 expenses.
[266] Going forward, however, section 7 expenses shall be shared on the basis of the parties imputed incomes. This produces a split of 60% to be paid by Mr. D’Ambrosio and 40% to be paid by Ms. Fratianni.
Conclusion and Costs
[267] For the foregoing reasons, I order as follows:
a) The parties are divorced thirty-one (31) days after the release of these reasons.
b) Court will be convened at 10:00 am on May 13th, 2019 for the purpose of marking Exhibit 19 as an exhibit, unless a party attends and opposes marking the items as an exhibit.
c) The parties are to have joint custody of the child, Matteo, on a final basis.
d) The access schedule currently in place is to continue, again on a final basis.
e) Matteo shall have his primary residence with Ms. Fratianni.
f) Ms. Fratianni’s income is imputed at $35,000.00 per annum between the date of separation and December 31st, 2012.
g) Ms. Fratianni ‘s income is imputed at $45,000.00 per annum from January 1st, 2013 and ongoing.
h) Mr. D’Ambrosio’s income is imputed at $68,000.00 until he turns 65.
i) Mr. D’Ambrosio will pay child support in the amount of $634.00 per month commencing June 1, 2019 until he turns 65.
j) Mr. D’Ambrosio’s income is to be reduced to his actual Line 150 Income as of the date he turns 65, and his child support payments are to be adjusted accordingly.
k) Mr. D’Ambrosio is to provide his notice of Assessment for each calendar year, starting with the 2018 calendar year, by June 30th of the following year.
l) Ms. Fratianni owes Mr. D’Ambrosio the sum of $28,512.07 on account of equalization.
m) The equalization payment described in paragraph k is to be satisfied in part by the monies being held in trust by Markowitz and Knowles on account of the sale of the matrimonial home. Those monies are to be released forthwith to Mr. D’Ambrosio.
n) The balance of the equalization payment, being the sum of $$4,336.32 is to be paid by Ms. Fratianni to Mr. D’Ambrosio within thirty (30) days of the release of these reasons.
o) Retroactive spousal support overpayment adjustments are to be paid by Ms. Fratianni to Mr. D’Ambrosio in the amount of $67,800.00 less any deductions to account for income tax consequences of the repayment.
p) If the parties cannot agree on the amount, if any, of the deductions from the retroactive spousal support overpayment adjustments, then written submissions of no more than three (3) double spaced pages are to be filed within fourteen (14) days of the release of these reasons. Reply submissions of not more than one (1) single-spaced page are due within seven (7) days thereafter.
q) Section 7 expenses are to be split with Mr. D’Ambrosio paying 60 percent of those expenses and Ms. Fratianni paying 40% of those expenses.
[268] If there are any arithmetical issues in either Schedule “A” or Schedule “B”, the parties are entitled to make written submissions of no more than two (2) pages in length within fourteen (14) calendar days of the release of these reasons. To be clear, these submissions are not an opportunity to challenge my methodology for arriving at the calculation of NFP or support. They are only for the purpose of identifying any arithmetical errors. I will then review those submissions and determine whether any reply submissions are required. No reply submissions are required or permitted until requested by me.
[269] Then, there is the subject of costs. The parties are encouraged to agree on the costs of this action. If they are unable to agree, then each party may make costs submissions of no more than three (3) single-spaced pages, exclusive of offers to settle, bills of costs and case-law within fourteen (14) days of the release of these reasons.
[270] Each party may file a reply to the other’s cost submissions of no more than two (2) single-spaced pages exclusive of case-law within seven (7) days thereafter.
[271] If the costs submissions are not received in the times set out above, then I will presume that the issue of costs has been resolved. The parties are not entitled to extend the timelines for submitting costs, even on consent, without my leave.
LEMAY J
Released: May 7, 2019
FRATIANNI v. D’AMBROSIO
SCHEDULE “A” NET FAMILY PROPERTY CALCULATION
Fratianni v. D’Ambrosio
- Value of Assets Owned on Valuation Date
a) Land
| Property | Applicant’s NFP | Respondent’s NFP |
|---|---|---|
| Matrimonial Home | $150,000.00 | $150,000.00 |
b) General Household Items and Vehicles
| Item | Applicant’s NFP | Respondent’s NFP |
|---|---|---|
| Household Furniture/Goods | $5000.00 | $0 |
| Car-Firebird | $2000.00 | |
| Car- Corvette | $19,000.00 | |
| Car- Grand Prix | $8,500.00 | |
| Jewelry, art, electronics, etc. | $1,000.00 |
c) Bank Accounts and Savings, Securities and Pension
| Item | Applicant’s NFP | Respondent’s NFP |
|---|---|---|
| Bank Accounts | $1,400 | |
| Bank Accounts and Pension | $214,706.58 |
d) Business Interests
| Item | Applicant’s NFP | Respondent’s NFP |
|---|---|---|
| Merle Norman/Glo Spa | $60,000.00 | |
| Total of all Assets as of Valuation date | $218,400.00 | $393,206.58 |
Debts as of Valuation Date
| Item | Applicant’s NFP | Respondent’s NFP |
|---|---|---|
| Mortgage | $114,330.56 | $114.330.56 |
| Scotia- Joint Line of Credit | $6,137.95 | $6,137.95 |
| CIBC Platinum Card **0010 | $12,409.75 | |
| TD Emerald Visa | $5,027.19 | |
| Sears Card | $15,270.42 | |
| MNBA | $18,904.33 | |
| ING Line of Credit | $18,885.13 | |
| TD Bank Line of Credit | $2,715.98 | |
| TD Bank Credit Cards | $8,032.16 | |
| RBC Visa | $800.00 | |
| Sub-Total | $153,175.87 | $169,806.11 |
Deductions as of Date of Marriage
This is the assets as of the date of marriage less the liabilities as of the date of marriage. The Matrimonial home is not included in the calculation as it was not sold during the course of the marriage.
Assets
| Item | Applicant’s NFP | Respondent’s NFP |
|---|---|---|
| Household furniture | $10,000.00 | |
| Auto- Firebird | $5,000.00 | |
| Auto- 1997 Corvette | $33,750.00 | |
| Jewelry | $1,000.00 | |
| Bank Accounts/Investments | $2,200.00 | $152,355.53 |
| Pension | $181,106.00 | |
| Business- Merle Norman | $20,000.00 | |
| Sub-Total | $37,200.00 | $368,211.53 |
Liabilities
| Item | Applicant’s NFP | Respondent’s NFP |
|---|---|---|
| Scotiabank Line of Credit | $10,000.00 | |
| TD Visa | $4,000.00 | |
| Sears Mastercard | $5,000.00 | |
| CIBC Visa | $10,000.00 | |
| MBNA Credit Card | $16,232.33 | |
| CIBC Credit Line | $20,710.81 | |
| CIBC Loan | $50,000.00 | |
| CIBC Credit Cards | $4,911.82 | |
| ING Line of Credit | $16,565.30 | |
| BMO Mosaic Card | $17,474.41 | |
| Subtotal | $29,000.00 | $125,894.67 |
Calculation of NFP
Applicant NFP as of date of separation -$65,224.13 Deductions as of Marriage (net)- $8,200.00 Total NFP- $57,024.13
Respondent NFP as of date of separation- $223,400.47 Deductions as of Marriage (net)- $242,316.86 Total NFP ($18,916.39) By operation of section 4(5) of the Family Law Act, Mr. D’Ambrosio’s Net Family Property is deemed to be $0
Equalization Payment
½ the difference between the NFP’s ($57,024.13/2)=$28,512.07
The amount that Ms. Fratianni pays to Mr. D’Ambrosio is $28,512.07.
Schedule “B”
| Year | Actually Paid | Amount Owing | (Owing) Retro |
|---|---|---|---|
| 2008 | $0 | 9 x $250/month =$2,250.00 | ($2,250.00) |
| 2009 | 3 x $850/month= $2,550.00 | 12 x $250.00/month= $3,000.00 | ($450.00) |
| 2010 | 12 x $850/month = $10,200.00 | 12 x $250/month= $3,000.00 | ($7,200.00) |
| 2011 | 12 x $850/month = $10,200.00 | 12 x $250/month= $3,000.00 | ($7,200.00) |
| 2012 | 12 x $850/month = $10,200.00 | 12 x $250/month= $3,000.00 | ($7,200.00) |
| 2013 | 12 x $850/month= $10, 200.00 | 12 x $170/month= $2,040.00 | ($8,160.00) |
| 2014 | 12 x $850/month= $10, 200.00 | $0 | ($10,200.00) |
| 2015 2016 2017 |
12 x $850/month = $10,200.00 | $0 | ($10,200.00) |
| 2018 | 11 x $850/month= $9,350.00 | $0 | ($9,350.00) |
COURT FILE NO.: FS-09-65736-00
DATE: 2019 05 07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROSE FRATIANNI
Applicant
- and -
PETER D’AMBROSIO
Respondent
REASONS FOR JUDGMENT
LEMAY J
Released: May 7, 2019