OSHAWA COURT FILE NO.: FC-19-887-00

DATE: December 11, 2024

AMENDED: December 16, 2024

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

TIFFANY MELISSA EDEY

Applicant

– and –

ANTONIO BECCATI

Respondent

5034389 ONTARIO INC.

Audrey Lee

SELF-REPRESENTED

Respondent

SUSANNA BECCATI

SELF-REPRESENTED (ANTONIO BECCATI)

SELF-REPRESENTED

Respondent

HEARD: May 24, 27, 28, 29, 30, and 31, June 3, 4, 5, and 6, 2024

L. E. FRYER, J

Amended Reasons for Judgment

I. INTRODUCTION

[1] Tiffany Edey and Antonio Beccati had a relatively brief and turbulent relationship.

[2] The parties started cohabiting on August 16, 2016. They married on August 19, 2017, and separated on October 30, 2018.

[3] They have one child: Angelica Natalina Edey, born April 8, 2019.

[4] The parties settled the parenting issues mid-way through the trial. Tiffany has sole decision-making authority and primary care of Angelica. Antonio now has regular parenting time after not seeing Angelica for several months.

[5] The trial was primarily about the financial issues, particularly the circumstances surrounding the acquisition and subsequent sale of the parties’ matrimonial home at 1700 Lake Ridge Road in Uxbridge (“the Lake Ridge home”) which has emotional and symbolic value to both parties.

[6] The parties purchased the Lake Ridge home in Tiffany’s name alone just prior to marriage. Tiffany contributed the majority of the down payment. Her income as a public school teacher was essential in qualifying for the large mortgage. Antonio is self-employed as a contractor. He has a history of earning a significant income but declaring very little. As Tiffany later learned, he also has a history of failing to pay his various creditors.

[7] When the parties separated, Tiffany sought to list the Lake Ridge home for sale. Antonio was resistant. On March 8, 2020, Tiffany finally obtained an order directing the house to be sold. The Lake Ridge home sold on June 13, 2020. It was later revealed that the purchaser was Antonio. He had purchased it surreptitiously through a “straw purchaser”. Antonio took title through his solely owned corporation, the Respondent, 5034389 Ontario Inc. (“503”).

[8] Antonio later transferred the property to his sister, the Respondent, Susanna Beccati.

[9] Tiffany asserts that Antonio was financially abusive to her throughout their relationship. His deception regarding the sale/purchase of the matrimonial home was the final affront. Tiffany asks the court to set aside all of the transactions relating to the Lake Ridge home as fraudulent conveyances and to vest title to the home in her sole name. She has also advanced a claim for damages for the tort of conspiracy in relation to these transactions.

[10] Tiffany would owe Antonio an equalization payment and she is requesting an unequal division of property.

[11] Tiffany is seeking to impute an income to Antonio for the purpose of paying child and spousal support.

[12] Antonio advanced few financial claims other than for reimbursement of payments that he made toward the Lake Ridge home.

II. ANALYSIS

1. Background

[13] The parties met through an online dating app in 2014.

[14] Antonio was married before and has two children from his prior marriage.

[15] Tiffany and Antonio got engaged in August 2015 and immediately started hunting for their dream home. Tiffany located the Lake Ridge home and they both decided that this was the one for them. They put in an offer to purchase for $1.1 million. Antonio provided a cheque for the deposit of $30,000 and reassured Tiffany that they would be able to qualify for a mortgage with his income. Tiffany put her townhouse up for sale and it sold within a week.

[16] Tiffany used the full sale proceeds from her townhouse, $343,217, toward the down payment of the Lake Ridge home. At the last minute, the mortgage lender told them they needed to come up with additional funds despite having earlier provided a mortgage commitment. Tiffany later found out that this was because Antonio’s $30,000 deposit cheque had bounced, which would be a sign of things to come. Antonio advised that he had $97,000 in his bank account earmarked to pay income tax and he provided these additional funds to satisfy the lender’s criteria.

[17] Tiffany’s evidence was that the home was put in her sole name as she had paid the majority of the down payment and because of Antonio’s business and his creditors. Antonio was to make the mortgage payments and he was expected to match her contribution within the year.

[18] The parties started living together in their new home around August 16, 2016, and they married on August 19, 2017. Their relationship was rocky from the start.

[19] The parties separated on October 30, 2018, before Angelica’s birth, although they continued to live separate and apart in the home for a period of time.

[20] Tiffany had a very difficult pregnancy and required emergency medical intervention for the delivery. Angelica was transferred to the Hospital for Sick Children in Toronto where she stayed for two weeks. Her doctors were not sure if she had suffered brain damage. Thankfully, this turned out not to be the case, but this experience had a lasting, traumatic impact on Tiffany in particular.

[21] After Angelica was released from hospital, Tiffany and the baby went to stay with her parents. Tiffany still wanted to move back to the Lake Ridge home, but Antonio deterred her from returning, saying that he was working on some renovations. Eventually, Tiffany and Angelica returned on June 10, 2019. The parties continued to live there, albeit separate and apart.

[22] Antonio had been inconsistent in contributing to the household expenses prior to separation. His contributions to the household expenses became even smaller and less regular post-separation. Tiffany, who was on maternity leave, relied on her savings, personal lines of credit and loans from her parents to make the payments.

[23] Antonio resisted selling the Lake Ridge home even though it appeared that neither of them could afford to carry it.

[24] Tiffany commenced this Application on June 3, 2019.

[25] When Antonio purportedly agreed to list the house for sale, Tiffany moved out with Angelica on September 17, 2019. In his Answer, Antonio agreed that the matrimonial home should be sold. However, he continued to frustrate Tiffany’s efforts to move forward with this.

[26] On March 2, 2020, on a contested motion brought by Tiffany, Leef J. ordered that the matrimonial home would be sold with a listing date of no later than April 1, 2020. Antonio was granted exclusive possession of the home and was to pay the carrying costs on the home. Leef J. also ordered that upon the closing each party should receive $97,000 from the net proceeds with the balance held in trust.

[27] The parties had discussed the possibility of Antonio purchasing the home from Tiffany, but they were not able to reach an agreement. Antonio continued to delay the listing of the home, contrary to Leef J.’s order. He also deliberately failed to maintain the home in proper condition for showings.

[28] Ultimately, the home was sold to 503. Antonio is the sole shareholder and a director of this corporation. The details of that transaction will be discussed further in the analysis of Tiffany’s fraudulent conveyance claim below.

[29] On January 4, 2021, 503 transferred the Lake Ridge home to Susanna Beccati, in trust for no consideration. Antonio did not reveal that this transfer had taken place. In fact, he swore more than one Financial Statement after the transfer in which he showed that he was still the legal owner of the property. When Tiffany discovered that Antonio had made this further transfer, she brought a motion on June 5, 2023, and obtained an order for a certificate of pending litigation: see Edey v. Beccati, 2023 ONSC 3447 per Finlayson J.

[30] During the courtship, Antonio had presented as generous and appeared to be financially healthy. However, after the parties started to live together, Tiffany was required to assume responsibility for many of the household expenses. Antonio used Tiffany’s credit cards and most, if not all, of the family’s bills were put into Tiffany’s name. Antonio was inconsistent with his contributions to the household finances. Many of Tiffany’s accounts went to collections around or after separation. Tiffany did not learn about this until later as the bills were still being sent to the matrimonial home and she had moved out. The Canada Revenue Agency contacted Tiffany regarding unpaid taxes because Antonio had claimed that he was renting the matrimonial home from her.

[31] Antonio was ordered to pay temporary child support and to contribute to the cost of daycare for Angelica. At the time of trial, he was in arrears of child support in excess of $14,000 and had unpaid costs.

2. Credibility Findings

[32] In McBennett v. Danis, 2021 ONSC 3610, 57 R.F.L. (8th) 1, at paras. 40-41, Chappel J. set out an excellent summary of the law with respect to credibility and the factors for the court to consider:

1. Were there inconsistencies in the witness’ evidence at trial, or between what the witness stated at trial and what they said on other occasions, whether under oath or not? Inconsistencies on minor matters of detail are normal and generally do not affect the credibility of the witness, but where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth (R. v. G.(M.); R. v. D.A.).

2. Was there a logical flow to the evidence?

3. Were there inconsistencies between the witness’ testimony and the documentary evidence?

4. Were there inconsistencies between the witness’ evidence and that of other credible witnesses?

5. Is there other independent evidence that confirms or contradicts the witness' testimony?

6. Did the witness have an interest in the outcome, or were they personally connected to either party?

7. Did the witness have a motive to deceive?

8. Did the witness have the opportunity and ability to observe the factual matters about which they testified?

9. Did they have a sufficient power of recollection to provide the court with an accurate account?

10. Were there any external suggestions made at any time that may have altered the witness’ memory?

11. Did the evidence appear to be inherently improbable and implausible? In this regard, the question to consider is whether the testimony is in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?” (Faryna, at para. 10).

12. Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?

13. Where appropriate, was the witness capable of making concessions not favourable to their position, or were they self-serving?

14. Consideration may also be given to the demeanor of the witness, including their sincerity and use of language. However, this should be done with caution. As the Ontario Court of Appeal emphasized in R. v. Norman, at para. 55, an assessment of credibility based on demeanour alone is insufficient where there are many significant inconsistencies in a witness’ evidence (see also R. v. Mah at paragraphs 70-75). The courts have also cautioned against preferring the testimony of the better actor in court, and conversely, misinterpreting an honest witness' poor presentation as deceptive (R. v. Jeng, at paras. 53-54).

(a) Tiffany

[33] Tiffany described a series of traumatic events that she has experienced over the last few years. The most significant of which was the circumstances surrounding her pregnancy and delivery of Angelica. It is not necessary to recite this evidence in detail, but it was evident that Tiffany continues to be emotionally impacted by these events.

[34] Tiffany often presented as frustrated, angry and upset, in some respects with good reason. At times I found her evidence exaggerated, particularly in relation to the parenting issues, which ultimately settled mid-trial. On key points, however, I found her forthright, and her oral testimony was typically supported by the documentary evidence.

(b) Antonio

[35] In certain limited aspects of his evidence, Antonio was forthright and prepared to admit some of his shortcomings, particularly in relation to the parenting issues. However, when it came to the financial issues, I found Antonio to be evasive and his evidence unreliable.

[36] Antonio failed to produce significant documentary disclosure, contrary to specific orders and undertakings. Antonio’s oral evidence was problematic, and he was unable to back up many of his claims with supporting documentary evidence.

[37] Antonio sought to present himself as a simple man who worked hard in his contracting business and left the details to the hired professionals. When presented with inconsistencies in his financial evidence, Antonio frequently blamed others, including his accountant(s), his several lawyers and others. I do not accept Antonio’s self-portrayal. I find that he was well able to marshal his resources for things that were important to him, such as purchasing and retaining the Lake Ridge home or keeping his motorcycle loan in good standing.

[38] There were numerous contradictions in Antonio’s evidence. The following are just a few examples:

• In his Response to Request to Admit, Antonio denied that 503 was incorporated for the sole purpose of purchasing the Lake Ridge home and stated that it was for a potential fencing or general contracting business. At trial, he acknowledged that its sole purpose was for the purchase of the property.

• In his Response to Request to Admit he stated that he kept the pool in good condition during the listing of the home for sale. Photos of the pool show green algae and the parties’ real estate agent made several requests for Antonio to clean up the pool for showings.

• Antonio swore three different Financial Statements (June 29, 2021, July 29, 2021, and May 31, 2024) after he transferred title to the Lake Ridge home to his sister in which he is still shown as the legal sole owner of the property. Antonio blamed his lawyers for failing to properly reflect the change in title. Initially, Antonio said that he could not remember if he talked to his lawyers about the transfer. Later, in cross-examination, he confirmed that he had discussed it with his family lawyer, because he was looking for a mortgage and he got a referral to a mortgage broker from his family lawyer. He then said that “it was discussed but it was never confirmed that I had to disclose”. Incredibly, he claimed to be “very upset” when realized he should have disclosed as he was told by his lawyers not to.

• Antonio claimed that he was not sure if he had ever had license plate renewal denied due to unpaid 407 ETR charges. He then produced evidence of a claim against him by 407 ETR and a writ that had been filed against the Lake Ridge home.

• Antonio purported to have no idea about a claim with the style of cause Liv v. Beccati but later stated that he had a court date in that matter in November.

[39] Overall, I frequently found Antonio’s evidence less than credible and generally unreliable.

(c) Luigi Beccati

[40] Luigi Beccati is Antonio’s brother. Luigi’s evidence was that he assisted Antonio with the initial purchase of the Lake Ridge home and that he continues to provide him with financial assistance.

[41] Luigi was unable to remember where he got the money for the initial purchase of the Lake Ridge home. He could not recall if he paid $20,000 or $25,000. He claimed that maybe someday he would like to be repaid. However, Antonio and Susanna Beccati both said that he was already repaid.

[42] Luigi professed not to know how much money he had provided Antonio. He could not remember why his parents’ home, in which he had an interest, was transferred to his sister.

[43] I found Luigi’s evidence on key points evasive and lacking in credibility.

(d) Susanna Beccati

[44] Susanna Beccati was party to the litigation. However, she never participated in any of the intervening court events. She did not file an Answer and was noted in default on the first day of trial.

[45] Susanna Beccati, who is currently the primary borrower for mortgages in excess of $800,000, professed not to remember what her income was in 2023. She advised that she typically earns about $50,000 per year as a travel agent. She did not know the renewal date for the mortgage or the interest rate of the Lake Ridge home mortgages.

[46] Susanna Beccati also claimed not to know why she came to be the sole owner of her parents’ home previously owned by her father and brother, Luigi Beccati.

[47] Susanna Beccati frequently responded that she did not remember or could not recall. I found Susanna Beccati’s evidence similarly evasive and unreliable.

(e) Nadine Lubin

[48] Nadine Lubin is Antonio’s current partner. She is also a public-school teacher. Nadine Lubin lives with Antonio in the Lake Ridge home.

[49] I found Nadine Lubin to be somewhat more direct and forthright in her evidence. However, when it came to discussing Antonio’s mortgage payments, Nadine Lubin followed the same script as Antonio’s other witnesses: she had no idea how much money she had contributed to the mortgage; she and the others were all pitching in because that was what family did, etc. On the point of Antonio’s mortgage payments, she was less credible.

3. Antonio’s Trust Claim

[50] Antonio pleaded that he was entitled to a one-half interest in the matrimonial home and that Tiffany was holding 50% of the property in trust for him. He did not specify the remedy he was seeking (i.e., constructive or resulting trust). Antonio did not specify this as relief being sought either in his trial opening statement or in closing submissions.

[51] In the case of married parties, trust claims must be resolved before the equalization payment is calculated: McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401.

[52] The three-part test for the equitable claim for unjust enrichment was set out in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 38 – 40. Simply put, the party advancing the equitable claim bears the burden of demonstrating that: 1. The defendant was enriched; 2. The plaintiff was correspondingly deprived; and 3. There was no juristic reason for the enrichment. See also Moore v. Sweet, 2018 SCC 52, [2018] 3 S.C.R. 303, at para. 43.

[53] It is not disputed that Antonio contributed $97,000 toward the down payment of the Lake Ridge home. However, Antonio did not specifically claim that this payment formed the basis for an equitable interest in the property nor did he lead the court through the foundation for the claim or the nature of the remedy.

[54] Antonio has not discharged that burden and his trust claim is dismissed.

4. Equalization of Net Family Property

[55] Tiffany’s position is that she owes Antonio an equalization payment of $208,533.12.

[56] Tiffany produced a Net Family Property Statement dated November 21, 2023, and she produced documentary back-up. The Net Family Property Statement contains numerous “TBD” items on Antonio’s side due to his failure to provide disclosure.

[57] Antonio stated in oral evidence that he disagreed with Tiffany’s Net Family Property Statement but could not say why and produced little or no disclosure to refute her figures.

[58] Antonio produced a Net Family Property Statement dated May 11, 2023, prepared with the assistance of a lawyer. He then produced another Net Family Property Statement dated June 2, 2024, mid-way through the trial. Both were improperly prepared. The first omits any reference to the Lake Ridge home and the associated mortgages. The second shows Antonio as the sole owner of the Lake Ridge home on date of separation. There are numerous TBD or N/A items on Antonio’s side of the balance sheet in both versions.

[59] I have commented below on some of the more significant discrepancies in the position of each party.

[60] Tiffany put the value of the matrimonial home, which was solely owned by her on date of separation, at $1,170,000 on her NFP statement. This is the appraised value that parties agreed to accept per the order of Hughes J. dated August 18, 2023. The parties separated 1.5 years prior to the date of sale. Even if parties had not otherwise agreed to these values, I would accept the appraisal report as the best evidence of value as of date of separation.

[61] Antonio had a significant debt to Canada Revenue Agency on the date of marriage and, it appears on the date of separation although the exact amounts due were not clear. He did not include those debts in his Net Family Property Statement and neither did Tiffany. To the extent that this debt increased over the course of the marriage, it was Antonio’s obligation to assert the claim for a deduction. I have therefore not included this in the determination of the equalization payment.

[62] Antonio did not allow a deduction for disposition costs on Tiffany’s registered funds (pension and RRSP) on date of separation (he put “N/A”). I have accepted Tiffany’s stated deduction.

[63] In general, I have drawn an adverse inference from Antonio’s failure to produce financial disclosure in support of the value of his businesses on the date of separation as well as his date of marriage debts. It is possible that had proper disclosure been produced as ordered or undertaken during questioning, there would be a significant difference in the equalization payment in Tiffany’s favour.

[64] I accept Tiffany’s calculation of the equalization payment, which is that she owes Antonio an equalization payment of $208,533.12.

5. Tiffany’s Unequal Division Claim

[65] Tiffany is asking the court to find that there should be an unequal division of net family property and that her equalization payment be reduced to zero.

[66] Antonio did not make specific submissions with respect to this claim. However, he agreed that he had no legal claim to the balance of the sale proceeds of the matrimonial home being held in trust, having already received $97,000.

[67] Section 5(6) of the Family Law Act, R.S.O. 1990, C. F.3 (“FLA”) states that:

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 (3) 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.

[68] The circumstances relied upon by the claimant must fit into one of the enumerated grounds to support a finding of unconscionability: LeVan v. LeVan (2008), 90 O.R. (3d) (C.A.), at para. 40.

[69] It is not enough for the court to identify that one of the enumerated grounds is present. Rather, the court must determine that the ultimate result would be unconscionable. In Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, the Ontario Court of Appeal held that:

... the threshold of “unconscionability” under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court”: para. 47.

See also Ward v. Ward, 2012 ONCA 462, 111 O.R. (3d) 81 (C.A.)

[70] The purpose of the equalization of net family property provisions of the FLA is to

…recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6): s. 5(7).

[71] Section 5(7) of the FLA is not a stand-alone ground for the unequal division claim, but it informs the analysis: Brett v. Brett, (1999), 1999 CanLII 3711 (ON CA), 46 R.F.L. (4th) 433 at paras. 32-34.

[72] The parties cohabited from August 16, 2016, to October 30, 2018: 26 months. Angelica was born after the parties had already separated. In this case, the obvious ground that would apply for an unequal division is s. 5(6)(e) of the FLA.

[73] Section 5(6)(h) of the FLA also has some application here in terms of the acquisition and maintenance of the Lake Ridge home. Tiffany entered the relationship with significant assets and a secure job. The only reason these parties were able to acquire their dream home was due to the large down payment provided by Tiffany and her secure income as a teacher. Antonio represented to Tiffany that he ran a successful contracting business and that with his income, they could carry the large mortgage. He agreed to match her contribution within the year and to carry the mortgage. The reality quickly turned out to be very different. While I find that Antonio may have made some payments, Tiffany was frequently required to make up the shortfall and the couple’s other living expenses.

[74] Tiffany’s Net Family Property Statement was properly prepared and does not include a date of marriage deduction for the value of the matrimonial home on the date of marriage: see definition of “net family property” at s. 4(1) of the FLA. The application of the statutory scheme is not in and of itself grounds to consider an unequal division: Ward supra, Linov v. Williams, 2007 CarswellOnt 1463 (Ont. S.C.), at para. 36. However, most of the equalization payment due to Antonio can be attributed to the fact that Tiffany is not entitled to deduct the equity value of the home on date of marriage. If Antonio was given a corresponding deduction for his contribution to the down payment, it would not change the ultimate equalization calculation as his net family property would be negative and thus deemed to be zero: s. 4(5) of the FLA.

[75] Courts have found that equalizing the parties’ net family properties produces an unconscionable result where one party has brought a matrimonial home into a short marriage: See Rivers-Eshkibok v. Eshkibok, 2002 CarswellOnt 3920 (Ont. S.C.), aff’d 2003 CarswellOnt 2290 (C.A.), Stergiopoulos v. Van Biehler, 2014 ONSC 6391, 52 R.F.L. (7th) 470, and Kucera v. Kucera, (2005), 2005 CanLII 12854 (ON SC), 16 R.F.L. (6th) 250 (Ont. S.C.).

[76] I find that, in this case, it would be unconscionable and shocking to the conscience of the court for Antonio to receive the full equalization payment without recognizing the parties’ grossly disproportionate contributions to the acquisition and maintenance of the matrimonial home as well as Tiffany’s disproportionate assumption of the household finances having regard to the short duration of the relationship.

[77] In determining to what extent the equalization payment payable by Tiffany should be reduced, I considered various approaches. I looked at a percentage application of the duration of the parties’ relationship over the five-year threshold which is an approach that the Court of Appeal has noted can be helpful in some cases: Gomez v. McHale, 2016 ONCA 318, 79 R.F.L. (7th) 305, Booth v. Bilek, 2021 ONCA 128, 52 R.F.L. (8th) 251. I have also considered what the equalization payment would look like if Tiffany and Antonio were both given date of marriage deductions relative to their contributions to the matrimonial home per the authorities referred to above.

[78] I find that it is fair, reasonable, and equitable in all these circumstances for Tiffany to pay 20% of the equalization payment, which I have rounded down to $40,000.

[79] Antonio was already paid $97,000 from the net sale proceeds belonging to Tiffany. Therefore, he was overpaid $57,000 and that sum is due to Tiffany.

6. Support

[80] Tiffany is claiming child and spousal support pursuant to ss. 15.1 and 15.2 of the Divorce Act, RSC 1985, c 3 (2nd Supp) (“Divorce Act”) based on an imputed income to Antonio.

(a) Imputation of Income to Antonio

[81] Tiffany is seeking to impute an income of $175,000 to Antonio.

[82] Antonio has been a contractor since 1997. He works through his corporation AB Solar Systems Inc. (“AB Solar”). He has at least one other, possibly related corporation called Beccati Contracting Inc. that he claimed had not been in operation since April 2016 and had “government debt of $102,000”.

[83] Antonio also had an interest in a business called Woodwork Studio Inc.

[84] Antonio acknowledged that he worked long hours. Around the time Tiffany became pregnant with Angelica, Antonio was doing solar panel installations for the Toronto District School Board with an engineering firm. He complained that the firm was always “stretching him out for payment” and Antonio thought he might have lost a quarter of a million dollars in relation to that project. Antonio also did work for Tim Horton’s and Harvey’s restaurants throughout Ontario and was away travelling for work for much of Tiffany’s pregnancy.

[85] Antonio conceded that his income per his Notices of Assessment did not accurately reflect his income for the payment of support but stated that his income should be imputed at not more than $65,000. In his Amended Amended Answer/Claim dated July 24, 2023, Antonio admitted that his income from AB Solar was between $70,000 and $80,000 per year.

[86] Antonio also stated that his income is now “way less” but he provided no reasonable, credible explanation for why that might be.

[87] Tiffany is relying on two grounds to support imputation of income. The first ground is pursuant to s. 18(1) of the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”), which permits the court to adjust income where a spouse earns income through a corporation and where the court is of the opinion that the amount of personal income declared does not fairly reflect the money available to that spouse from the corporation. The second is under s. 19(1)(f) of the Guidelines which states that the court may impute an income as it considers appropriate in certain circumstances including when a “spouse has failed to provide income information when under a legal obligation to do so.”

[88] The onus is on Tiffany to establish the evidentiary foundation for the imputation requested: Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730, at para. 63. However, the onus may be discharged when there is a failure to make financial disclosure: Graham v. Bruto, 2008 ONCA 260.

[89] The self-employed or those who have irregular income and expenses have a positive obligation to put forward not only adequate but comprehensive records of income and expenses meaning a package from which the recipient can draw conclusions and the amount of child support can be established: Meade v. Meade (2002) 2002 CanLII 2806 (ON SC), 31 R.F.L. (5th) 88 (Ont. S.C.) at para. 81. Antonio did not do that.

[90] Antonio failed to produce financial disclosure regarding his income including the following:

i. Personal income tax returns for 2021-2023.

ii. Corporate income tax returns for his businesses.

iii. Proof of invoices to customers.

iv. Financial statements for Beccati Contracting Inc.

v. Financial statements for Woodwork Studio Inc. In oral evidence Antonio said he had a 33% interest in this business. In his Financial Statement sworn July 15, 2019, he said that he had a 50% interest.

vi. Bank account and credit card statements for his businesses for the period after February 2020.

[91] This disclosure was either previously ordered by the court, or Antonio undertook to produce it during questioning, or both. The disclosure is all basic and essential to permit the court to determine Antonio’s income.

[92] The disclosure that Antonio did produce regarding his income was confusing and unhelpful.

[93] Antonio provided his Financial Statements for AB Solar for 2016-2022 which were prepared by a CPA. He led little additional evidence to assist the court in understanding his true income.

[94] The gross revenue of AB Solar taken from the financial statements that were produced is as follows:

2016: $628,120

2017: $358,663

2018: $299,504

2019: $483,351

2020: $193,500

2021: $525,577

2022: $333,350

[95] Tiffany summarized the deposits made to Antonio’s bank accounts and he agreed with her math, but Antonio was unable to explain why the gross revenue of his business was less than the deposits.

[96] In Antonio’s personal income tax returns that were produced, he declares income from self-employment even though he purportedly earns his income through his corporations. In one set of business financial statements, he was paid dividends of $194,000 in 2017 and in 2018 he was paid dividends of $155,000. Antonio did not deny receiving the dividends but could not explain why revised financial statements prepared for the same years did not refer to these dividends.

[97] Antonio’s stated wages from AB Solar (not reflected in his personal income tax returns) were modest and typically less than $30,000 per year. However, he had large expenses for sub-contractors each year, typically in excess of $100,000. Antonio did not explain who he was hiring, for what purpose or if they were at arm’s length. When Antonio was explaining the nature of his business expenses, he stated that “most of the expenses are materials, fuel, truck payments and if I hire sub-contractors” [emphasis added].

[98] AB Solar consistently owed funds to a “related company”; as of December 31, 2022, the sum of $49,300. Antonio advised that the only other related company was Beccati Contracting Inc., which had been inactive since 2015.

[99] Antonio claimed the mortgage payments that he was making on the matrimonial home as a business expense. Tiffany received a notice from the Canada Revenue Agency dated February 5, 2020, advising that AB Solar Systems Inc. had transferred cash in the amount of $28,000 to her on account of rent.

[100]Antonio failed to produce proper financial disclosure to support his position on his income. The disclosure that he did produce was inconsistent and unreliable and therefore not credible: Iacobelli v. Iacobelli, 2020 ONSC 3625.

[101]As noted above, Antonio sought to portray himself as a simple contractor with poor record keeping. He also frequently blamed others, including his accountant and his lawyers, for any errors or omissions. I do not accept this portrayal. Rather, I find that Antonio is a capable businessman who has been able to generate significant earnings through his contracting business even through the COVID-19 pandemic. Furthermore, he has demonstrated that he is well able to look after his personal interests. He arranged to purchase the Lake Ridge home with Tiffany and then to purchase it from Tiffany using a straw purchaser. Later, he transferred title to the property to his sister in a bid to judgment-proof himself. Since purchasing the property from Tiffany, he has maintained the mortgage payments, even as his child support has been consistently in arrears.

[102]I find that Antonio’s failure to produce certain disclosure was deliberate and designed to obfuscate the true picture of his income. I have therefore had to look to other indicators to reach an accurate determination of imputed income for support.

[103]My analysis is focussed on s. 19 (1) rather than s. 18 (1) of the Guidelines as I did not have the evidence required to properly determine income under the latter provision.

[104]Tiffany argues that the court should look at Antonio’s budget and gross it up for taxes to determine his imputed income. I have considered this and a number of other factors to determine the proper income to impute.

[105]Antonio is obligated to pay child support to his ex-wife based on his income of $105,000 from their separation agreement signed in 2013. There was no evidence that this obligation had been varied. In his affidavit for divorce sworn May 21, 2015, he states that his income is still $105,000 for the purpose of child support.

[106]In his Financial Statement sworn July 15, 2019, prepared by a lawyer, Antonio swore that his income from employment was $84,000. His income for the prior year was listed as “Unknown”. His annual expenses that year were $124,946.52, not including utilities that were noted as being paid by Tiffany. Despite this significant disparity between income and expenses, Antonio’s only debts were a small Mastercard balance ($500) and his motorcycle loan. Antonio did not offer an explanation as to how he was making ends meet.

[107]Antonio’s 2020 income tax return shows his prior year’s (2019) income as $25,000. However, his 2019 Notice of Assessment issued July 2, 2021, shows Line 150 income of $84,850.

[108]In his Financial Statement sworn July 29, 2021, also prepared by a lawyer, Antonio stated that his annual income from self-employment was $40,490 plus taxable benefits of $25,493 for a total income of $65,983. His budget had increased to $132,061 Antonio now had a mortgage loan of $784,070. Other than that, he shows a small car loan, his motorcycle loan and a small balance due for his 2020 income taxes.

[109]Antonio swore a further Financial Statement on May 11, 2023, again prepared by a lawyer. He stated his income was identical to the year prior: $40,490 plus $32,312 in taxable benefits from the corporation. His expenses were considerably reduced at $45,891. Antonio now asserted that Nadine Lubin was paying $2,500 toward the monthly mortgage payment of $7,242 and he was making no contribution.

[110]In all of his sworn Financial Statements, Antonio makes no reference to his significant income tax liabilities that pre-dated the marriage.

[111]Having regard to all of the evidence, I do not accept that the Lake Ridge home mortgage is being primarily paid by someone other than Antonio. I do accept that very recently, Nadine Lubin may have been making a significant contribution to this expense but that is more likely than not in support of Antonio’s narrative that he does not have the income to sustain it.

[112]Luigi Beccati and Susanna Beccati were unable to tell the court how much they had contributed toward the mortgage or where the funds came from. As noted above, their evidence on this topic was scripted and evasive.

[113]Antonio claimed to be borrowing money from family, but he had no idea how much the “loans” might have been and there was no loan documentation as “they were family”.

[114] I find it more likely than not that Antonio has continued to make the majority of the mortgage payments.

[115]If I am wrong and it turns out that the payments are being made on Antonio’s behalf by Luigi and/or Susanna Beccati and, as they deposed, they do not require re-payment, this can still be considered by the court as a source of income as they help Antonio establish a lifestyle and pay liabilities in excess of his means: Bak v. Dobell, 2007 ONCA 304, 86 O.R. (3d) 196, at para. 62; Korman v. Korman, 2015 ONCA 578, 63 R.F.L. (7th) 1, at para. 64; Malkov v. Stovichek-Malkov, 2017 ONSC 6822, at para. 69; and Peerenboom v. Peerenboom, 2018 ONSC 7562, at para. 70.

[116]The amount to be imputed under the Guidelines must be supported by the evidence and consistent with the objective of establishing “fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution”: Korman, at para. 51, citing Bak and Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.).

[117]To summarize the foregoing:

a. Antonio has consistently earned a significant income through his contracting business.

b. Antonio received dividends in 2017 of $194,000 and in 2018 of $155,000.

c. Antonio pays child support to his ex-wife based on an income of $105,000.

d. According to his Financial Statement sworn July 15, 2019, Antonio’s income was $84,000 in 2019. In addition, according to this same sworn document, Antonio had various expenses that were paid through his business (gas, car insurance, lease payments, 407 tolls, motorcycle loan) totaling an additional $35,787 annually. As these additional expenses are not declared, they need to be grossed up. On this basis, the total income for 2019 would be $145,762.

e. According to his Financial Statement sworn June 29, 2021, Antonio’s income for 2020 was $40,490 which is the same as his declared Line 150 income on his Notice of Assessment. However, he swore that his 2021 current income was also $40,490 but with the addition of $25,493 in benefits presumably paid by the corporation. When the undeclared expenses are grossed up, Antonio’s total income would be $74,026. I note that this was the first year of the global COVID-19 pandemic and Antonio’s stated gross revenue dropped relative to other years.

f. Antonio stated in his Amended Amended Answer dated July 24, 2023, that he estimated that his income was between $70,000 and $80,000 per year.

g. At trial, Antonio proposed to pay support based on an income of $65,000.

h. Since he acquired the former matrimonial home, Antonio’s mortgage payments have been between $6,000 and $8,000 per month or between $72,000 and $96,000 annually being paid from after-tax income. Antonio would need to generate an income of at least $136,000 just to pay the current mortgage payments. There was no evidence that the mortgages for the Lake Ridge home were not in good standing.

[118]I find that based on the evidence, Antonio shall be imputed with an income as follows for the purpose of calculating his support obligations:

2019: $145,762

2020: $80,000

2021: $130,000

2022: $130,000

2023: $130,000

(b) Child Support – Retroactive & Ongoing

[119]Tiffany is seeking child support retroactive to the date of separation pursuant to s. 15.1 of the Divorce Act.

[120]Tiffany is presumptively entitled to support commencing from the date of the Application which was June 3, 2019. This is not a retroactive support claim: MacKinnon v. MacKinnon (2005), 2005 CanLII 13191 (ON CA), 75 O.R. (3d) 175 (C.A.), at paras. 17-29.

[121]Tiffany is claiming retroactive support from the date of Angelica’s birth two months earlier which is appropriate having regard to the principles outlined in Colucci v. Colucci, 2021 SCC 24, [2021] 2 S.C.R. 3; and Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763.

[122]The monthly Table support payable based on my findings of Antonio’s income is as follows:

2019: $1,268

2020: $745

2021: $1,146

2022: $1,146

2023: $1,146

[123]Antonio was ordered by Hughes J. to pay temporary child support in the amount of $750 per month commencing October 1, 2020. He was later ordered by Hughes J. to contribute the sum of $580 per month per month toward Angelica’s day care expenses on a temporary basis commencing October 1, 2021. Antonio shall receive credit for any payments made through the Family Responsibility Office to date pursuant to these temporary orders.

(i) Special and Extraordinary Expenses

[124]Tiffany is advancing a claim for a variety of special and extraordinary expenses for Angelica on a retroactive and ongoing basis.

[125]Section 7 of the Guidelines provides in part as follows:

7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

(a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

Definition of “extraordinary expenses”

(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

[126] Tiffany’s annual income for the purpose of calculating the parties’ proportionate share and assessing the necessity and reasonableness of the expenses is as follows:

2019: $65,721 (employment plus EI minus union dues)

2020: $76,527 (employment plus EI minus union dues)

2021: $106,362 (employment minus union dues)

2022: $107,791 (employment minus union dues)

2023: $106,457 (employment minus union dues)

a. Childcare and Private school – retroactive and ongoing

[127]Tiffany is seeking a contribution to daycare expenses for Angelica. Tiffany is also seeking a contribution to the cost of private school.

[128]Angelica attended daycare at the Town Centre Montessori school.

[129]In September 2023, Angelica started school at the local public school. Tiffany learned that Nadine Lubin’s sister-in-law (the wife of Nadine’s brother) worked at the school, and she greeted Angelica on the first day. Tiffany was upset and spoke with the Vice-Principal because she felt that this was a “conflict of interest”. Ultimately Tiffany removed Angelica from that school and enrolled her in Milliken Mills Public School. However, Angelica started to misbehave by refusing to stay in class and leaving the school. Tiffany felt that the school was negligent in its supervision of Angelica and removed her from this school.

[130]Tiffany then enrolled Angelica in the Town Centre Montessori private school. Tiffany’s evidence was that Angelica is thriving at Town Centre Montessori and that the environment provided more stimulation for her. The cost of tuition at the Montessori school is $1,545 per month.

[131]Antonio acknowledged that he must contribute to the daycare expense, but he is opposed to paying for private school.

[132]Daycare is a special expense. However, in order to qualify for sharing under s. 7 of the Guidelines, the claimant must demonstrate that private school is an extraordinary expense per the definition in s. 7(1.1)(b) of the Guidelines.

[133]There was no evidence that the parties had discussed private school as an option for Angelica prior to separation nor that Antonio had been consulted in a meaningful way prior to Angelica being enrolled. I do not find that the Montessori program was needed to address any special need or talent on the part of Angelica. Lastly, I find that it is not reasonable to require Antonio to contribute to this expense on top of his Table child support obligation given the overall means of the parties.

[134]Tiffany incurred the following qualifying daycare expenses:

2021: $5,000 paid ($4,030 deducted per Notice of Assessment) – after tax amount to be shared: $944

2022: $11,365 ($8,000 deducted per Notice of Assessment) – after tax amount to be shared: $5,962

2023: $13,160 ($8,000 deducted per Notice of Assessment) – after tax amount to be shared: $6,413

Total after-tax daycare: $13,319 expense incurred.

[135]Tiffany also incurred an expense for summer camp for Angelica. I find that this is akin to daycare as Tiffany picks up teaching work during the summer.

[136]The summer camp fees are as follows:

2022: $1,270

2023: $2,590

Total summer camp fees: $3,860

b. Activity Expenses

[137]Tiffany is claiming a variety of activity expenses for Angelica including swimming lessons and gymnastics.

[138]The activities that Angelica (now age 5) is engaged in are the usual activities for children her age. There was no evidence that these activities were extraordinary having regard to the factors under s. 7(1.1)(b) of the Guidelines.

[139]Antonio had at one time agreed to pay 50% of Angelica’s swimming lessons but that was at a time when his Table child support was fixed at a lower amount that I have ordered. The Table support is appropriate to cover the expense of these activities and this claim is dismissed.

c. Cord Blood Storage Expenses

[140] Tiffany is seeking a contribution the storage fees for Angelica’s cord blood and tissue. The cost is $235 annually with an initial fee of $1,700 which Tiffany has paid thus far.

[141]Tiffany’s evidence was that she wanted Angelica’s cells stored in case she ever had a disease. There was no suggestion that Angelica was at high risk or that the cord blood storage was recommended by her doctors due, for example, to some of the health challenges she experienced shortly after birth. Antonio acknowledged that he contributes to this expense for his other two children per an agreement with their mother.

[142]I am unable to find that this expense qualifies as a special and extraordinary expense. See: Umeya v. Tebit, 2014 ONSC 4887; and M.A. v. N.M., 2021 ONSC 5468, for similar findings.

d. Summary of Calculations

[143]For the years in which Tiffany is claiming a contribution to special and extraordinary expenses for Angelica, namely 2021 to 2023 inclusive, Antonio’s percentage share is 55% for each year.

[144] The qualifying special and extraordinary expenses (daycare and summer camp) total $17,179 of which Antonio shall reimburse Tiffany 55% or $9,448.45.

[145]I have little or no confidence that Antonio will make his contribution to Tiffany’s daycare expenses on an ad hoc basis in the future. Therefore, I am fixing an amount to be paid monthly toward daycare and summer camps. These amounts shall be reconciled annually based on amounts actually incurred.

(c) Spousal Support

[146] Tiffany is seeking lump sum spousal support in the amount of $40,000. Antonio is seeking to have the claim dismissed.

[147]Spousal support is governed in this case by s. 15.2 of the Divorce Act.

[148]Tiffany’s claim is centered on the period after separation when her income was reduced due to complications of her pregnancy starting in February 2019 and later while she was on maternity leave and caring for Angelica. The parties were living separate and apart in the home from February to April 2019 when Angelica was born and then for a further three months from June to September 2019 when Tiffany and Angelica moved out of the home permanently.

[149]In 2019, Tiffany’s income was as follows: $65,721 (employment income plus EI minus union dues). In 2020 she earned: $76,527 (employment income plus EI minus union dues).

[150]Tiffany has an entitlement to spousal support on a compensatory basis, due to her role as Angelica’s primary caregiver, and on a needs basis relative to the two years when she was earning less due to her pregnancy and maternity leave.

[151]The range of appropriate spousal support is determined by the Spousal Support Advisory Guidelines (“SSAG").

[152]In 2019, the range of support (low/mid/high) is $395/$894/$1,372 based on my findings with respect to Antonio’s income and after taking into consideration child support payable. After 2019, there is no SSAG support payable as Tiffany resumed her full-time teaching salary and I decline to consider an award of support outside the SSAG range.

[153]I find it appropriate for Antonio to pay spousal support in the high range for the period from February 1, 2019, to December 31, 2019. During those months Tiffany was off work and struggling with a very difficult pregnancy with little support from Antonio. After Angelica’s difficult birth, Tiffany was Angelica’s primary caregiver. During this time, Tiffany was responsible for most, if not all, of the bills associated with the matrimonial home including the mortgage payments of $4,818 per month. Tiffany relied on her savings, her, line of credit, and money that she borrowed from her family to make ends meet. Tiffany was suffering from financial hardship during this time.

[154]Antonio did make e-transfer payments to Tiffany in 2019. He is claiming reimbursement for those payments, and I have addressed that claim below as well as Tiffany’s countervailing occupation rent claim. I have considered these payments in the assessment of Tiffany’s retroactive spousal support claim and find that she is still entitled to spousal support for this period.

[155]The after-tax cost of support to Antonio is $948 per month and close to Tiffany’s after-tax benefit ($953). Antonio shall pay 11 months of support x $948 = $10,428 as a lump sum on an after tax basis.

7. Security

[156]Tiffany is seeking an order that Antonio maintain a life insurance policy with a face value of at least $250,000 as security for his child support obligations.

[157]Antonio has an existing life insurance policy with a face value of $1 million. He has designated his girlfriend, Nadine Lubin, and Angelica as beneficiaries with Ms. Lubin as trustee for Angelica. Antonio was not sure how much of the policy proceeds would be paid to Nadine or Angelica and he has never produced a copy of this policy.

[158]Antonio shall be required to designate Tiffany outright as to $250,000 of that policy as security for his child support obligations in the event of his death.

8. Other

[159]Tiffany purchased furniture for the matrimonial home from Ashley Home Store for $10,304.41 of which $8,636.78 was financed with Fairstone Financial. Tiffany is looking for Antonio to pay her $15,000 on account of this furniture which she asserts he retained.

[160]When Tiffany moved out of the home, she hired movers with a truck to take her belongings. This was a bone of contention between the parties as Antonio was not advised in advance. Tiffany was not clear in her evidence about which of the Ashley Home Store furniture remained in Antonio’s possession nor why her claim exceeded the original value of the furniture. There was insufficient evidence to support this claim and it is dismissed.

[161]Tiffany has also advanced a claim for $1,695 being Antonio’s share of the appraisal for 1700 Lake Ridge Road per the consent order of Hughes J. dated August 18, 2023. The initial fee was paid from the proceeds of sale of the home and was to be shared. As I have found that all the sale proceeds belong to Tiffany, Antonio must reimburse her for his share.

9. Fraudulent Conveyance

[162] Tiffany asks the court to set aside the transfer of title of the matrimonial home from her to 503 as a fraudulent conveyance. She asserts that Antonio artificially suppressed the sale price for the property through his deception and double dealing. She relies on the opinion of value of her appraiser who put the value of the property on August 20, 2020, at $1,370,000. [^1]

[163]Tiffany also requests, in the alternative, to set aside the subsequent transfer from 503 to Susanna Beccati.

[164]Fraudulent conveyances legislation provides a mechanism through which certain conveyances made by a debtor may be rendered void as against creditors. In Ontario, the legislation is the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29 (“FCA”).

[165]The FCA comes into play when a debtor conveys away or transfers real or personal property to others with an intent to delay, defeat or defraud creditors or others. It is remedial legislation that was enacted to prevent fraud. As such, it must be given a fair, broad, and liberal interpretation: see Indcondo Building Corp. v. Sloan, 2014 ONSC 4018, 121 OR (3d) 160, at para. 49, aff’d 2015 ONCA 752; Stevens v. Hutchens, 2022 ONCA 771, 3 C.B.R. (7th) 312, at para. 18.

[166]The relevant provisions of the FCA read as follows:

Where conveyances void as against creditors

2. Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns. R.S.O. 1990, c. F.29, s. 2.

Where s. 2 does not apply

3. Section 2 does not apply to an estate or interest in real property or personal property conveyed upon good consideration and in good faith to a person not having at the time of the conveyance to the person notice or knowledge of the intent set forth in that section. R.S.O. 1990, c. F.29, s. 3.

Where s. 2 applies

4. Section 2 applies to every conveyance executed with the intent set forth in that section despite the fact that it was executed upon a valuable consideration and with the intention, as between the parties to it, of actually transferring to and for the benefit of the transferee the interest expressed to be thereby transferred, unless it is protected under section 3 by reason of good faith and want of notice or knowledge on the part of the purchaser. R.S.O. 1990, c. F.29, s. 4

[167]A creditor bears the burden of establishing the following elements to succeed on a claim of fraudulent conveyance:

(a) a "conveyance" of property;

(b) an "intent" to defeat; and

(c) a "creditor or other" towards whom that intent is directed.

See: Indcondo, at para. 44.

[168]The intent to defeat creditors can be inferred from one or more of the traditional badges of fraud. Myers J. held as follows in Purcaru v. Seliverstova et al., 2015 ONSC 6679, 69 RFL (7th) 388, aff’d 2016 ONCA 610, at para. 11:

It is very difficult for an applicant to prove a person’s hidden intention to defraud creditors. Therefore, the law provides that the court can infer the existence of a transferor’s fraudulent intention to defeat or delay creditors where there are recognized “badges of fraud” associated with a transaction. The badges of fraud are facts or fact patterns that courts have held to be indicative of fraudulent transactions. Facts such as: secrecy, transfer of property when an action or execution is pending, transfer of property to non-arm’s-length parties, transfers made with undue haste, and transfers for a conspicuously insufficient price, are all recognized examples of badges of fraud. There are others such as the breach of family law orders requiring a party to preserve his or her assets pending a trial. If the court draws the inference of fraudulent intent due to the existence of badges of fraud, then an evidentiary burden will fall to the respondents to explain their conduct to try to rebut the inference of fraudulent intent. Of course the ultimate persuasive burden remains on the applicant throughout. A & B. Landscaping & Interlocking Ltd. V. Bradsil Ltd., 1993 CarswellOnt 664 (Ont. Gen. Div.) at para 69. Business Development Bank of Canada v. Samarsky, 2012 ONSC 3002 (Ont. S.C.J.) at para 15. Conte Estate v. Alessandro, [2002] O.J. No. 5080 (Ont. S.C.J.) at para 21 and 22.

[169]The Court of Appeal in Purcaru v. Seliverstova, 2016 ONCA 610, 80 RFL (7th) 28 [Purcaru ONCA], in upholding Myers J.’s decision, stated at para. 5:

If a challenger raises evidence of one or more 'badges of fraud' that can give rise to an inference of an intent to defraud, the evidential burden then falls on those defending the transaction to adduce evidence showing the absence of fraudulent intent (Fancy, Re(1984), 1984 CanLII 2031 (ON SC), 46 O.R. (2d) 153 (Ont. Bktcy.)), Nuove Ceramiche Ricchetti S.p.A. v. Mastrogiovanni, [1988] O.J. No. 2569 (Ont. H.C.), pp. 4, 5).

[170]Fraudulent intent is to be assessed at the time of the impugned transactions: Purcaru ONCA, at para. 9.

(a) Antonio’s Purchase of the Home from Tiffany

[171]Tiffany’s claim rests on her assertion that she received less than market value for the Lake Ridge home as Antonio failed to keep the property in marketable condition and artificially skewed the bidding process. She is also seeking damages for the tort of conspiracy which will be discussed further below.

[172]Antonio had exclusive possession of the Lake Ridge home per the order of Leef J. dated March 2, 2020.

[173]The parties’ real estate agent, Murtaza Ahmad gave evidence at the trial. Mr. Ahmad has been in real estate for 22 years. I found him to be balanced in his presentation and forthright in his evidence. Mr. Ahmad made a series of recommendations for work that needed to be done on the property to ready the property for sale including making some minor fixes inside and maintaining the home in clean and tidy condition. He viewed it as “imperative” that the pool and surrounding area be showcased although later qualified it “would not necessarily justify a huge increase in value”.

[174]Antonio promised to tidy up the home to make sure it was clean for showings but refused to make any of the recommended small repairs to the interior of the home or to fix any of the pool equipment. The listing photos taken by Mr. Ahmad show clothing strewn on the bed, dirty dishes in the sink, burn marks on the lawn and algae in the pool.

[175]Mr. Ahmad had predicted that the parties would receive between $1,075,000 and $1,150,000 for the property. Tiffany hoped to get $1,350,000 for the home. However, she acknowledged that she was “desperate to get rid of the property”.

[176]Mr. Ahmad showed the Lake Ridge home to approximately 30 people and was happy with the interest despite Antonio refusing some requests to show the property. However, on June 12, 2020, offer night, no offers were received.

[177]Following this official offer night, three different offers were received.

[178]On June 12, 2020, a real estate agent made a firm offer of $989,000 on her personal behalf and agreed to waive her commission estimated at $28,000. Tiffany responded to Mr. Ahmad saying that was “great news” and that she looked forward to signing the necessary documents. Antonio refused the offer.

[179]The same real estate agent made a further offer for $1,040,000 but she wanted her commission, and the offer was conditional on inspection and financing.

[180]A fresh offer came in from a family on June 13, 2020, at 9:19 p.m. for $1,140,000 with no conditions.

[181]Then a third offer was received from Matthew Christopher Mahoney for $1,148,000 with a financing condition and a provision that the contract could be assigned.

[182]A series of counteroffers were made by the family and by Mr. Mahoney over the course of the night. The family offered $1,160,000 and Mr. Mahoney countered with $1,165,000. As an aside, I do not accept the evidence of either Antonio or Mr. Mahoney, who is also Antonio’s friend, that they were not sharing information about the incoming bids that evening.

[183]Mr. Ahmad recommended that Tiffany and Antonio accept the offer from the family even though it was less than the Mahoney offer as there were no conditions. It appeared that the couple were prepared to match the higher offer, but then Mr. Mahoney’s real estate agent phoned and said that his client was preparing to offer a significantly higher bid of $1,200,000. Mr. Ahmad stated, “that was the number we were all really thrilled with”.

[184]Thus, the parties agreed to sell the matrimonial home ostensibly to Matthew Mahoney for $1,200,000 by agreement of purchase and sale signed June 14, 2020.

[185]Tiffany acknowledged that the parties had to accept the highest bid for the property. She implied that they should have accepted the offer from the family even though it was lower than Antonio’s bid but then admitted that she was not prepared to take an offer that was lower. She ultimately stated: “I just wanted to get rid of this house and go our separate ways”.

[186]The evidence does not support Tiffany’s claim that Antonio paid less than market value. Although the appraiser put the value of the property higher ($1,370,000)[^1], Mr. Ahmad was “thrilled” to get $1,200,000 for the property following a bidding process involving at least two other arm’s length parties. Mr. Ahmad was not happy with the condition of the property, but was unable to say how much more, if anything the parties might have received had his recommendations been followed.

[187]Pursuant to the contract of purchase and sale from Tiffany to Matthew Mahoney, title to the property was assigned to 503.

[188]At this point, neither Tiffany nor Mr. Ahmad had any idea that the real purchaser of the property was Antonio. Antonio kept up the ruse for some time. For example, Antonio had included a requirement that the septic tank be pumped out as a condition of purchase and Mr. Ahmad followed up on this “requirement” with Antonio prior to the closing.

[189]The fact that Antonio was the real purchaser did not come to light until just prior to the closing when Antonio’s real estate lawyer for the purchase mentioned that Antonio would be running some documents over. Tiffany and her lawyer were surprised, to say the least.

[190]Antonio’s brother, Luigi Beccati, provided the $25,000 down payment for the purchase. Luigi Beccati was ultimately repaid for this sum.

[191]The balance of the purchase price was provided through mortgage financing. A mortgage for approximately $400,000 was registered against Antonio’s parents’ home (title to which was held by his sister, Susanna Beccati) and a mortgage for approximately $800,000 was registered against the Lake Ridge home. The borrowers on the mortgage document were listed as 503 and Susanna Beccati. Antonio is listed as a guarantor. The lender later required that Antonio also sign as director of the corporation. The combined mortgage, dated August 12, 2020, was for interest only of $5,593 per month.

[192]Tiffany qualifies as a creditor for the purposes of the analysis as she had claims for child and spousal support that could be asserted against Antonio at the time of the impugned conveyance: Stone v. Stone (2001), 2001 CanLII 24110 (ON CA), 55 OR (3d) 491 (C.A.); Beynon v. Beynon (2001), 2001 CanLII 28147 (ON SC), 21 R.F.L. (5th) 255 (S.C.J.), and Iacobelli. However, the other two branches of the test are not satisfied, namely that there was a “conveyance” of property and an “intent” to defeat (Indcondo, at para. 44).

[193]Firstly, Antonio did not have a legal or beneficial interest in the property at the time of the original sale. The Lake Ridge home was owned solely by Tiffany. Antonio had advanced a trust claim against the home yet to be adjudicated. His spousal consent was required pursuant to s. 21(1)(a) of the FLA but that did not grant him an interest in the home. See: Devry Smith Frank LLP v. Chopra, 2018 ONSC 1303, aff’d 2019 ONCA 78.

[194]Secondly, Antonio’s intention in granting spousal consent (and arguably withholding it for the sale to third parties) was clearly to acquire the property for himself. He believed, with some foundation, that Tiffany would not consider any offer put forward by him. I do not find that Antonio’s intention at that time was to defeat Tiffany as a creditor.

(b) Antonio’s Transfer of the Lake Ridge Home to Susanna Beccati

[195]Antonio was, at the time of the purchase from Tiffany, and has continued to be, the operating mind of 503. He completely controls the numbered company for his own benefit. There are no other shareholders or interested parties of 503. Antonio and 503 are one and the same. Antonio represented the corporation throughout these proceedings. In these circumstances, it is appropriate to pierce the corporate veil. See Lynch v. Segal (2006), 2006 CanLII 42240 (ON CA), 82 O.R. (3d) 641 (C.A.), at paras. 35-37.

[196]I find that Antonio acquired beneficial ownership of the Lake Ridge property upon the purchase from Tiffany and retained beneficial ownership until the impugned transfer to Susanna Beccati, discussed below.

[197]On January 4, 2021, 503 (Antonio) transferred the Lake Ridge home to Susanna Beccati, in trust.

[198]Tiffany remained a creditor of Antonio, as noted above.

[199] A number of badges of fraud were present at the time of this second transaction that support a finding that Antonio’s intention was fraudulent, and that the transaction was designed to defeat Tiffany’s claims.

[200]The transfer was made during the litigation and shortly after a conference before Hughes J. on December 9, 2020, when Hughes J. queried how Antonio could maintain the mortgage on the Lake Ridge home when allegedly he was only earning $25,000 per year.

[201]The transfer was made to Antonio’s sister – a non-arm’s length party.

[202]Antonio did not explain why this transfer was necessary other than for a fraudulent purpose.

[203]The transfer documents show that on January 4, 2021, 503 transferred the Lake Ridge home to Susanna Beccati Antonio for no consideration with the notation: “beneficial owner to trustee further information to be provided”.

[204]Antonio did not dispute that Susanna Beccati holds the property in trust for him, but again, he provided no explanation as to why a trust was needed, other than to defeat Tiffany’s claims.

[205]Susanna Beccati stated that there was no separate trust agreement. She also stated that she did not believe she has made “any investment” in the Lake Ridge home. Susanna Beccati further confirmed that Luigi Beccati does not have an interest in the property. Nadine Lubin stated that she has no interest in the Lake Ridge home and that Susanna Beccati is the “trustee of Lake Ridge”. This leaves Antonio as the sole beneficial owner.

[206]Antonio sought to keep the transaction a secret. He did not advise Tiffany of the transfer of title. In fact, he filed a financial statement sworn on July 29, 2021, that showed that he was still the legal owner of the property. Antonio blamed his lawyer for this misrepresentation. Antonio stated that his lawyer was aware of the title transfer (the lawyer had referred him to a mortgage broker for re-financing) but told him that he did not need to disclose the title transfer. In submissions, Antonio had the temerity to suggest that he thought he should have advised Tiffany and the court of the transfer but was talked out of this by his lawyer.

[207] Another way of looking at this is that Antonio’s July 29, 2021, financial statement supports the proposition that, despite the change in title, he continued to retain his original beneficial interest.

[208]Antonio did not adduce evidence that there was any fresh consideration for the transaction. The transfer document states that the total consideration for the transfer is $0. The original mortgages were re-financed when the property was transferred, and a new mortgage with RBC was taken out, again registered against the Lake Ridge home and Antonio’s parents’ home owned by Susanna Beccati.

[209]Susanna Beccati was now the sole borrower under the mortgages. Susanna Beccati works from home as a travel agent arranging seniors’ tours, but her primary role is to care for her parents. She estimates her income is approximately $50,000 per year.

[210]Antonio and all his witnesses essentially confirmed that the mortgages remain Antonio’s primary obligation rather than Susanna’s. Antonio continues to list the full mortgage liability on his sworn financial statements. Antonio acknowledged in his response to Request to Admit that he pays both mortgages, that he makes partial contributions by giving money to his sister and, in addition, his girlfriend Nadine Lubin contributes $2,500 per month. Ms. Lubin’s contribution had increased by the time of trial, but I find this is more likely than not to support Antonio’s trial position rather than a long-term proposition.

[211]There was no evidence that money paid by Antonio to Susanna Beccati is in the form of rent.

[212]None of Luigi Beccati, Susanna Beccati or Nadine Lubin could (or would) advise the court as to how much money they had each paid toward the mortgage, if any or when they might be re-paid. Their language was remarkably scripted and consistent…”I don’t know”, “we are family and we support each other”, “that’s what family does”, “I help where I can”…. All were deliberately evasive, and I found their evidence unreliable and lacking in credibility.

[213]Nadine Lubin described herself as independent and financially careful. She continues to maintain her own home that she rents out. For this reason, I had great difficulty accepting that she is giving Susanna Beccati cash for the mortgage, that she cannot keep track of how much and she has no idea how much she has paid.

[214]What was clear is that Antonio and his family members were working hard to obfuscate the fact that Antonio is paying the majority if not all of the mortgage due to the adverse inference to be drawn with respect to his income for support among other things.

[215]Antonio continues to live in the Lake Ridge property with Nadine Lubin. In his evidence he spoke of how he sees the Lake Ridge home as his legacy for his children.

[216]In Conte v. Pettle, 2023 ONSC 3881, 54 R.P.R. (6th) 135, rev’d on other grounds, 2024 ONCA 733, another fraudulent conveyance case in the family law context, Charney J. held as follows at para. 83:

The question is not whether the debtor retains some equitable interest in the property, but whether the debtor made the conveyance “with intent to defeat, hinder, delay or defraud creditors”. Such an intent might be accomplished with a resulting trust, where the debtor retains some interest in the property, or by a gift, where the debtor retains no interest whatsoever. Indeed, where the gift is made to a spouse, the debtor may continue to enjoy all the benefits of the property even if he retains no exigible interest in it. Either way, if the conveyance is made with fraudulent intent, the conveyance would be void as against creditors: Cambone, at para. 176.

[217]I find that Antonio has at all times remained the beneficial owner of the Lake Ridge home. The transfer of the Lake Ridge home from 503 to Susanna Beccati was a fraudulent conveyance solely designed to frustrate Tiffany’s claims as a creditor and this second transfer is therefore void as against Tiffany.

10. Damages for the Tort of Conspiracy

[218]Tiffany advanced a claim for damages in the amount of $100,000 for the tort of conspiracy again in relation to Antonio’s purchase of the matrimonial home from her.

[219]The required elements of the tort of conspiracy were set out in Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd, 1983 CanLII 23 (SCC), [1983] 1 SCR 452, at paras. 33-34:

…the law of torts does recognize a claim against [two or more defendants who has caused injury to the plaintiff] in combination as the tort of conspiracy if:

(1) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants' conduct is to cause injury to the plaintiff; or

(2) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result.

[220]The necessary elements of the tort were re-stated in Mraiche Investment Corporation v. McLennan Ross LLP, 2012 ABCA 95, 524 A.R. 151, as follows at para. 40:

1. an agreement between two or more persons;

2. concerted action taken pursuant to the agreement;

3. (i) if the action is lawful, there must be evidence that the conspirators intended to cause damage to the plaintiff;

(ii) if the action is unlawful, there must at least be evidence that the conspirators knew or ought to have known that their action would injure the plaintiff (i.e., constructive intent);

4. actual damage suffered by the plaintiff.

[221]In Agribrands Purina Canada Inc v. Kasamekas, 2011 ONCA 460, 106 O.R. (3d) 427, the Ontario Court of Appeal explains at para. 28:

There is no basis for finding an individual liable for unlawful conduct conspiracy if his or her conduct is lawful, or alternatively, if he or she is the only one of those acting in concert to act unlawfully. The tort is designed to catch unlawful conduct done in concert, not to turn lawful conduct into tortious conduct.

[222] The tort of conspiracy is available in the family law context: Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 587.

[223]Tiffany’s claim for damages for the tort of conspiracy in relation to Antonio’s purchase of the matrimonial home cannot succeed. It is clear that Antonio and Matthew Mahoney were acting in concert or by agreement to purchase the Lake Ridge property surreptitiously for Antonio, but the balance of the elements of the tort are not made out. Antonio’s purchase of the Lake Ridge home through Matthew Mahoney was not unlawful. Furthermore, I do not find that Antonio’s predominant purpose in acquiring the property was to harm Tiffany. It was not disputed that he had wanted the property for himself all along nor was it disputed that Tiffany would be unlikely to sell it to him privately or even in the open market. Lastly, even if I found that there was tortious conduct, I am unable to find that Tiffany suffered damages. Antonio was the highest bidder in an open market sale of the property. I find that this is the best evidence of the value of the property at that time.

[224]Tiffany’s claim for damages for the tort of conspiracy is dismissed.

11. Vesting Order

[225] Tiffany sought an order vesting title to the Lake Ridge Property in her name. This claim appeared to be ancillary to her request to set aside Antonio’s original purchase of the home as a fraudulent conveyance, something I have declined to grant. However, to the extent that it may have been advanced as a freestanding claim, I have addressed it below.

[226]The court’s authority to grant a vesting order derives from s. 100 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, which states: “[a] court may by order vest in any person an interest in real or personal property that the court has authority to order be disposed of, encumbered or conveyed.”

[227]In Lynch, the Ontario Court of Appeal held at para. 31 that:

The rationale for the vesting power, therefore, is to permit the court to direct the parties to deal with property in accordance with the judgment of the court. The jurisdiction is quite elastic.

[228]The onus is on the party seeking the vesting order to establish that it is appropriate: Lynch, at para. 32.

[229]The FLA at s. 9(1)(d)(i) provides that a vesting order can be granted to secure an equalization payment. In this case, Tiffany is the payor of the equalization payment although I have found that Antonio received too much money from the net sale proceeds and that he must repay Tiffany the sum of $57,000.

[230]The FLA also provides that support obligations can be secured though a vesting order: s. 34(1)(c). However, Tiffany’s claims for support are brought under the Divorce Act. In Trick v. Trick (2006), 2006 CanLII 22926 (ON CA), 83 O.R. (3d) 55 (C.A.), leave to appeal refused, [2006] S.C.C.A. No 388, Lang J.A. for the Court of Appeal stated in the context of a claim for a vesting order over a pension, at para. 16:

In my view, s. 100 of the CJA does not provide stand-alone jurisdiction to grant the relief claimed. Section 100 only provides a mechanism to vest title to a property in respect of which there is a separate, valid claim to ownership. Although the motion judge relied on the FLA as conferring such a valid claim, the support order was made under the DA and not under the FLA. Further, the Family Law Rules, O. Reg. 114/99 (FLR), which provide the procedure for the enforcement of DA support orders, do not list vesting orders as an available enforcement mechanism. The DA, however, does give a court jurisdiction to secure a spousal support order. In that sense, it may be construed as providing the CJA s. 100 authority to “encumber” an asset….

The Court of Appeal set aside the vesting order over the husband’s pension as being contrary to the Pension Benefits Act, R.S.O. 1990, c. P.8.

[231]In Cunningham v. Montgomery, 2010 ONSC 1817, 85 R.F.L. (6th) 415, Coats J. opined that in Trick, the Court of Appeal had “left open the possibility” that the power to secure a support order under the Divorce Act may be construed as providing the authority for a vesting order under s. 100 of the CJA: at para. 4.

[232] In Lynch, the Court held at paras. 32-33:

I do not think any useful purpose is served by attempting to categorize the types of circumstances in which a vesting order may issue in family law proceedings. The court has a broad discretion, and whether such an order will or will not be granted will depend upon the circumstances of the particular case. I agree with the appellants that the onus is on the person seeking such an order to establish that it is appropriate. As a vesting order — in the family law context, at least — is in the nature of an enforcement order, the court will need to be satisfied (as the trial judge was here) that the previous conduct of the person obliged to pay, and his or her reasonably anticipated future behaviour, indicate that the payment order will not likely be complied with in the absence of more intrusive provisions: see Kennedy v. Sinclair(2001), 2001 CanLII 28208 (ON SC), 18 R.F.L. (5th) 91 (Ont. S.C.J.), affirmed (2003), 2003 CanLII 57393 (ON CA), 42 R.F.L. (5th) 46 (Ont. C.A.). Thus, the spouse seeking the vesting order will have already established a payment liability on the part of the other spouse and the amount of that liability, and will need to persuade the court that the vesting order is necessary to ensure compliance with the obligation.

In addition, the court should be satisfied that there is some reasonable relationship between the value of the asset to be transferred and the amount of the targeted spouse’s liability and, of course, that the interests of any competing execution creditors or encumbrancers with exigible claims against the specific property in question are not an impediment to the granting of a vesting order. However, I would not go so far as to say — as argued by the appellants — that the onus to satisfy the court on these matters is at all times on the person seeking the order. I shall return to these issues later in these reasons.

See also Nikfar v. Nikfar, 2022 ONSC 1252, 70 R.F.L. (8th) 146.

[233]I have no difficulty finding that Antonio will not voluntarily pay the sums ordered in this judgment including his ongoing support obligations. At the time of trial, he was in arrears of child support and had unpaid costs orders. By contrast, his mortgages and his motorcycle loan were in good standing. Antonio has a long history of failing to pay creditors. He owes significant sums to the Canada Revenue Agency and others. He is being sued by the 407 ETR for unpaid tolls and by at least one other party in relation to the sale of an excavator. There was no evidence that these claims by third parties had crystallized and were exigible.

[234]Antonio has a payment obligation to Tiffany. He owes her lump sum spousal support ($10,428), retroactive child support, and the sum of $57,000 representing the excess sale proceeds or overpayment of the equalization payment that he received pursuant to the interim order of Leef J. However, Antonio’s greatest liability to Tiffany is likely his prospective child support obligation, the present value of which has not been quantified. Tiffany discussed the possibility of seeking lump sum child support but did not formally advance the claim.

[235]The value of the Lake Ridge property on the date of the appraisal, September 27, 2023, was $1,890,000 and the registered mortgages currently total approximately $1,400,000 leaving roughly $500,000 in equity.

[236]I have declined to set aside Antonio’s purchase of the Lake Ridge property from Tiffany. While Tiffany has certain monetary judgments against Antonio (not including costs which are yet to be determined), the quantum of her claims that might be enforced through a vesting order does not (yet) reasonably relate to the equity in the property. For these reasons, I decline to exercise my discretion to grant a vesting order at this time.

12. Charging Order

[237] A more appropriate form of security having regard to Tiffany’s claims might be a charging order.

[238]The Court of Appeal in McMaster-Pereira v. Pereira, 2021 ONCA 547, confirmed that pursuant to s. 15.1(4) of the Divorce Act and s. 12 of the Guidelines, the court has broad discretion to impose charging orders in appropriate cases. See also Favero v. Favero, 2013 ONSC 4216, aff’d 2015 ONSC 1264 (Div. Ct.).

[239]In McMaster-Pereira, the trial judge noted that the father had significant undeclared income and based on his previous conduct, the trial judge had concerns as to whether he could be trusted to fulfill his child support obligations. The Court of Appeal saw no error in the trial judge’s determination that a charging order was appropriate: McMaster-Pereira, at para. 37.

[240]This type of security interest was not pleaded by Tiffany, which is not fatal to the claim: McMaster-Pereira, at paras. 34-35. However, Tiffany did not seek this relief in her draft orders put forward at the commencement of trial or the conclusion of trial. In my view, a charging order could be viewed as a less intrusive form of security than the vesting order Tiffany did request, but I prefer to give both parties the opportunity to make brief written submissions with respect to whether this form of security should be granted and whether this order could be made in the face of enforcement by the Family Responsibility Office.

13. Antonio’s Claim for Carrying Costs of the Matrimonial Home & Tiffany’s Claim for Occupation Rent.

[241]Antonio has advanced a claim for payments he made to Tiffany, all of which he seeks to attribute toward the carrying costs on the matrimonial home for the period after separation. I note that in his Amended Amended Answer he was only seeking 50% of the payments made.

[242]Tiffany argues that Antonio was obliged to pay the mortgage as part of their agreed upon financial arrangements during the marriage and that this agreement alone precludes him from advancing the claim. Alternatively, any payments made after she moved out were offset by her claim for occupation rent as Antonio had de facto exclusive possession and frustrated the timely listing and sale of the property.

[243]The issue of occupation rent was addressed by the Ontario Court of Appeal in two recent cases of Jasiobedzki v. Jasiobedzka, 2023 ONCA 482, 92 R.F.L. (8th) 253; and Non Chhom v. Green, 2023 ONCA 692, 97 R.F.L. (8th) 83. The court outlined the following principles:

• Occupation rent is a tool for balancing competing equities: Jasiobedzki, at para. 15.

• An order for occupation rent needs to be reasonable but need not be exceptional: Chhom, at para. 8, citing Griffiths v. Zambosco (2001), 2001 CanLII 24097 (ON CA), 54 O.R. (3d) 397 (C.A.).

• The relevant considerations are: the timing of the claim, the duration of the occupancy, the inability of the non-resident spouse to realize on their equity, any reasonable credits to be set off against occupation rent and any other competing claims in the litigation: Chhom, at para. 9, citing Griffiths.

[244]Tiffany requested occupation rent in her Application issued on June 3, 2019.

[245]Antonio resided in the Lake Ridge home which was solely legally and beneficially owned by Tiffany throughout. Antonio had de facto exclusive possession from April 2019 to June 2019 and from September 2019 to March 2, 2020. On March 2, 2020, Leef J. granted him temporary exclusive possession pending sale. Leef J. also ordered him to pay the carrying costs on the property.

[246]From November 2018 to September 2019, Antonio paid $44,500 in e-transfers to Tiffany or an average of $4,450 per month.

[247]From December 30, 2019, to June 30, 2020, Antonio paid a total of $40,290 to Tiffany in e-transfers of which $20,350 was paid after March 8, 2020, when Leef J. ordered Antonio to pay all of the household carrying costs.

[248]The majority if not all of the household bills were in Tiffany’s name and many of Antonio’s personal expenses were under Tiffany’s name such as Antonio’s 407 ETR account. The monthly mortgage payments during this period, according to Tiffany’s Financial Statement sworn May 17, 2019, were $4,818.61 per month, property taxes were $611.51 per month and household utilities totaled $1,602.33 per month. In addition, Tiffany was paying $1,420.53 in car lease payments.

[249]The subject line on some of Antonio’s e-transfers to Tiffany was “bills and expenses”. When asked about his contributions to the home during this period, Antonio was unable to say anything other than that he “paid the mortgage when he could”.

[250]I am unable to determine what portion of Antonio’s e-transfers related to mortgage payments or other household carrying costs versus reimbursement to Tiffany for Antonio’s personal expenses.

[251]Tiffany was pressing for the sale of the home from shortly after the parties separated. Antonio resisted the sale of the home particularly after Tiffany moved out in September 2019. Tiffany was forced to bring the motion before Leef J. in March 2020 for the sale of the home. As I have already found, even after that order was made, Antonio frustrated the sale.

[252]Antonio had the benefit of residing in the home owned solely by Tiffany throughout up to his surreptitious purchase in July 2020. He had de facto and then court-ordered exclusive possession for significant periods of time. The average of the amounts paid by him do not even cover the mortgage, let alone the other carrying costs of the home and any of his personal expenses that were in Tiffany’s name.

[253]I am unable to determine from Antonio’s evidence what of the payments he made might be attributable to the mortgage or other carrying costs as opposed to his personal expenses. Even if I assumed that the payments were solely toward the mortgage, I would find that these amounts would be offset by occupation rent, both for the period when Tiffany was also residing in the home and for the periods when Antonio had exclusive possession.

[254]Antonio’s claim for reimbursement of payments made to Tiffany is dismissed. Tiffany did not seek occupation rent as a free-standing claim. She only sought occupation rent to offset any claim made by Antonio.

III. ORDER

[1] The Respondent, Antonio Beccati’s trust claim is dismissed.

[2] The net sale proceeds of the matrimonial home currently being held in trust shall be released forthwith to the Applicant.

[3] The Applicant owes the Respondent a reduced equalization payment of $40,000. The Respondent, Antonio Beccati shall pay to the Applicant the sum of $57,000 being the overpayment from the $97,000 disbursed to him from the Applicant’s house sale proceeds less the equalization payment of $40,000 due to him.

[4] The Respondent Antonio Beccati shall pay Table child support for the child of the marriage, Angelica Natalina Edey, born April 8, 2019, as follows:

Commencing April 8, 2019, based on an imputed income of $145,762, the Table amount of $1,268 per month.

Commencing January 1, 2020, based on an imputed income of $80,000, the Table amount of $745 per month.

Commencing January 1, 2021, based on an imputed income of $130,000, the Table amount of $1,146 per month.

[5] The qualifying special and extraordinary expenses (daycare and summer camp) total $17,179 for the period from 2021 to 2023 inclusive of which the Respondent, Antonio Beccati shall reimburse the Applicant 55% or $9,448.45.

[6] Commencing January 1, 2024, the Respondent, Antonio Beccati shall pay the sum of $408 per month as his contribution to the estimated cost of daycare (net of tax deductions) and summer camp fees. Commencing June 1, 2025, and annually thereafter, the parties shall reconcile the amounts paid against the amounts actually incurred. If there is an under-payment, the Respondent, Antonio Beccati shall forthwith make the payment to the Applicant. If there is an over-payment, the Applicant shall forthwith reimburse the Respondent, Antonio Beccati subject to any other amounts that may be due to her.

[7] Credit shall be given for any payments made by the Respondent, Antonio Beccati through the Family Responsibility Office regardless of how they are characterized (i.e., Table support or daycare payments) to the obligations set out in paragraphs 4, 5 and 6 above.

[8] The parties shall contribute to any other special and extraordinary expenses for the child proportionate to income. Neither party shall unreasonably withhold consent. Currently the Respondent, Antonio Beccati’s proportionate share is 55% (based on an imputed income of $130,000) and the Applicant’s proportionate share is 45% (based on her 2023 income).

[9] The Respondent, Antonio Beccati, shall pay lump sum spousal support of $10,428 to the Applicant.

[10] As long as the Respondent, Antonio Beccati is obligated to pay child support to the Applicant, he shall maintain a life insurance policy of at least $250,000, and:

a) keep the policy in force;

b) not borrow against the policy and will ensure that the policy remains unencumbered; and

c) irrevocably designate and maintain the Applicant, Tiffany Melissa Edey, as the beneficiary of the proceeds of the policy;

as security for the Respondent's child support obligations outstanding as at the date of the Respondent's death.

[11] If the life insurance policy or the full amount of a policy is not in force on the Respondent Antonio Beccati’s death:

a) he authorizes a lien and first charge against his estate for the full amount of the policy proceeds; and

b) all of the beneficiary’s rights and remedies against the Respondent's estate are preserved.

[12] The Respondent, Antonio Beccati shall forthwith provide a copy of the policy to the Applicant along with proof that the Applicant, Tiffany Melissa Edey, is the irrevocable beneficiary of the policy.

[13] The Respondent, Antonio Beccati shall pay the sum of $1,695 to the Applicant being his 50% share of the appraisal report for 1700 Lake Ridge Road.

[14] The Applicant’s claim for repayment of the Fairstone furniture loan is dismissed.

[15] The Applicant’s claim for damages for the tort of conspiracy is dismissed.

[16] The Applicant’s claim for an order vesting title in the Lake Ridge property in her name is dismissed without prejudice to her seeking this relief in the future.

[17] The transfer of title of 1700 Lake Ridge Road, Uxbridge, Ontario from the Respondent, 5034389 Ontario Inc. to the Respondent, Susanna Beccati or Susanna Beccati, in trust is void as against the Applicant.

[18] The Respondent, Antonio Beccati is declared to be the sole beneficial owner of all assets of the Respondent, 5034389 Ontario Inc. including the property municipally known as 1700 Lake Ridge Road, Uxbridge, Ontario and the Applicant is at liberty to enforce any and all obligations of the Respondent, Antonio Beccati as against the assets of 5034389 Ontario Inc. including 1700 Lake Ridge Road, Uxbridge, Ontario.

[19] The Respondent’s claim for reimbursement of payments made to the Applicant on account of carrying costs on the home is dismissed.

[20] The certificate of pending litigation registered against 1700 Lake Ridge Road, Uxbridge, Ontario shall remain in place pending the court’s adjudication of the issue of costs and any charging order.

[21] The Applicant shall file written submissions with respect to whether a charging order should be granted and with respect to costs by no later than January 10, 2025. The Respondent, Antonio Beccati shall file written submissions with respect to whether a charging order should be granted and with respect to costs by no later than January 17, 2025. The Applicant shall file her reply submissions by no later than January 24, 2025.

Justice L. E. Fryer

Released: December 11, 2024

Amended December 16, 2024 to include the citation per Finlayson J at the end of paragraph 29.

[^1]: Tiffany obtained an appraisal of the property on various dates from Rick Van Andel. The parties consented to accept these values per the order of Hughes J. dated August 18, 2023.