Court File and Parties

Court File No.: FS-23-00105799 Date: 2025-08-01 Ontario Superior Court of Justice

Between:

CAROLINA PETRINI Applicant

J. Waxman for Ms. Petrini

- and -

GARY CAPRARA Respondent

- and -

MICHAEL MARROCCO, ANTONIO MARROCCO & ANTONIETTA MARROCCO

J. Edney for Mr. Caprara B. Romano for the Marroccos

Heard: October 29, 2024 and December 12, 2024

Reasons for Decision

Summary Judgment and Interim Support

L. Shaw J.

Introduction and Overview

[1] There are two motions before the court. The applicant, Ms. Petrini, seeks interim spousal and child support from the respondent, Mr. Caprara. In addition to disputes about entitlement to spousal support and the income earned by both parties, there is a dispute with respect to the extent to which, if at all, any gifts of money from Mr. Caprara's parents and/or expenses they paid prior to and since the date of separation should be imputed as income to Mr. Caprara who allegedly continues to receive those payments.

[2] The second motion is brought by the respondents Michael Marrocco, Antonio Marrocco, and Antonietta Marrocco (the Marroccos). For ease of reference, and to avoid confusion, I will refer to these respondents by their first names. Michael is Mr. Caprara's brother, Antonio is his stepfather, and Antonietta is his mother.

[3] The Marroccos seek summary judgment for possession of the home in which Ms. Petrini currently resides that is legally owned by Michael. The Marroccos argue that Michael holds title in trust to the property for Antonio and Antonietta. Ms. Petrini opposes that motion and seeks an order that the summary judgment motion be dismissed.

[4] There was a large evidentiary record to review for these motions. Ms. Petrini uploaded 1,529 pages to Case Centre and the respondents collectively uploaded 1,162 pages. It was very difficult to write this decision as not all materials were hyperlinked, nor were there complete indexes. There was also a duplicate of some uploaded material. It was a challenge to find documents that I needed to review which underscores the critical importance of written advocacy. Written material must be drafted in a clear and navigable manner with proper hyperlinks.

[5] These reasons will start with a review of the background facts. I will then address the summary judgment motion including a review of the legal framework and relevant evidence followed by my analysis and decision. I will then do the same for the interim support motion. As to be expected, there is some overlap in the evidence that is relevant to both motions.

Background

[6] Ms. Petrini and Mr. Caprara were in a common law relationship that commenced in May 2005. Ms. Petrini says they separated in July 2021 whereas Mr. Caprara says they separated in October 2020. I do not have to resolve that dispute for these motions. Ms. Petrini is 56 years of age and Mr. Caprara is 48. There were two children born during their relationship; M was born August 26, 2004 and will soon be 20, and V was born November 25, 2006 and is 18. M is not in school. She completed high school and now works full time. No child support is sought for her. V attends university away from home. There is a dispute about how much time she spends with each parent when she is not at school. Ms. Petrini seeks summer child support for her. Ms. Petrini has not paid for any of V's costs to attend university. Those expenses are allegedly paid by Mr. Caprara.

[7] Ms. Petrini has another child from a prior relationship who lived with Ms. Petrini and Mr. Caprara until 2019 when she began her post-secondary education. No support is sought for that child who is now 24. Mr. Caprara also has another child from another relationship. His child support for that child ended in 2019.

[8] Since March 2023, Ms. Petrini has worked full-time with Caledon Community Services in the fundraising department earning $47,000 per annum.

[9] Mr. Caprara worked for the family construction business since he was 18 years of age. In 2023 he began working full-time for another employer, as he said the family business ceased operations. He was earning $52,000 with this new employer. When this motion was argued, his evidence was that he was not working as he was injured in a car accident in January 2024.

[10] Early in their relationship, Ms. Petrini and Mr. Caprara lived at a residence located at 17419 Gore Road in Caledon, Ontario (the Gore Road property). Mr. Caprara was the sole registered owner of that property.

[11] A few years later Ms. Petrini and Antonietta purchased vacant land adjacent to the Gore Road property. Ms. Petrini had savings of approximately $80,000 that she contributed for the purchase price. Ms. Petrini alleges that she and Mr. Caprara planned to build a home on that vacant property, but when it was purchased, Antonietta went on title as Mr. Caprara was still engaged in litigation with his prior spouse and did not want to go on title.

[12] The Gore Road property was sold in 2015. Ms. Petrini and Mr. Caprara then moved into another home located at 19275 St. Andrews Rd in Caledon that was legally owned by Michael (the St. Andrews property). Ms. Petrini has continued to live in that home with one or both of the children. This is the property for which the Marroccos seek possession. Mr. Caprara no longer resides at the property.

[13] In 2022, after the parties separated, the vacant lot adjacent to the Gore Road property was sold and Ms. Petrini received 50% of the net proceeds of sale or $377,876. According to her financial statement sworn in October 2024, $265,913 was remaining from the proceeds of sale.

Issue One: Summary Judgment

a) The Legal Framework

[14] There is no dispute about the legal framework for summary judgment motions.

[15] Rule 16 of the Family Law Rules, O Reg 114/99 (the Rules) permits a party to move for summary judgment on all or part of any claim made. Rule 16 is a codification of the summary judgment principles articulated by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; Haier v. Haier, 2024 ONSC 2102, at para. 23.

[16] According to r. 16(6), "If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly." Rule 16(6.1) sets out the special fact-finding powers the Court may use in determining whether there is a genuine issue requiring a trial unless it is in the interest of justice that these powers only be exercised at a trial. If the only genuine issue is a question of law, the court shall decide the issue and make a final order. Those powers include weighing the evidence, evaluating the credibility of a deponent, and drawing any reasonable inference from the evidence.

[17] According to r. 16(4), the party seeking summary judgment must serve an affidavit or other evidence that sets out specific facts showing there is no genuine issue for trial. Rule 16(5) requires the responding party to file an affidavit or other evidence that sets out specific facts that there is a genuine issue for trial. The responding party cannot rest on mere allegations or denials.

[18] At paras. 25-27, the court in Haier adopted the following principles from Hryniak:

a) The focus in a summary judgment motion is not on what further evidence could be led at trial but rather on whether a trial is required.

b) A trial is not required where a summary judgment motion (1) allows the judge to make necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

c) There is a two-step process. The first is to determine whether there is a genuine issue that requires a trial based on the evidence before the court. If there is no genuine issue, summary judgment must be granted. If there appears to be a genuine issue that requires a trial, the judge should then determine if the need for a trial can be avoided by using the enhanced fact-finding power set out in r. 16(6.1).

d) The moving party must establish a prima facie case that there is no genuine issue requiring a trial. The onus then shifts to the responding party who cannot simply rely on allegations in their pleadings. Both parties must put their "best foot forward" and the court may assume that the record contains all the evidence that the parties would present if the matter proceeded to trial.

b) Review of the Evidence and Analysis

[19] Antonio and Antonietta are wealthy. In addition to owning properties and operating a construction business, they won $18.5 million in a lottery in 2007.

[20] When cross-examined on his affidavit, Antonio testified that title to various properties he and Antonietta own, including the St. Andrews property, were registered in Michael's name as Michael was the only one he trusts and that his other two children "are too wild."

[21] Michael's evidence is that while he is the legal registered owner of the St. Andrews property, he holds it in trust for his parents, Antonio and Antonietta. There is no written agreement regarding this arrangement.

[22] The St. Andrews property was initially part of a larger parcel of land owned by 2170327 Ontario Inc. ("217"), a corporation owned by Antonio and Antonietta. 217 severed off a portion of the larger parcel and transferred it to Michael on December 17, 2009.

[23] Antonio's and Antonietta's evidence is that they owned the entire parcel of land from which the St. Andrews property was severed. They paid for the severance process and then paid to construct a home on the property in 2012. It is not in dispute that Ms. Petrini did not pay anything to purchase the land or to construct the home on the St. Andrews property. According to Antonio and Antonietta and Mr. Caprara, Mr. Caprara also did not pay anything for the purchase of the property or the construction of the home. It is not contested that Michael did not contribute to the purchase price of the property or the construction of the home.

[24] According to Antonio, Ms. Petrini and Mr. Caprara did not pay any rent or any of the expenses for the home on the St. Andrews property before they separated. This is not contested by either Ms. Petrini or Mr. Caprara. Since their separation, Ms. Petrini has continued to reside in the home and has not made any payments for rent, insurance, taxes or utilities but she pays for the internet. According to Ms. Petrini, she is now responsible for winter snow removal, summer lawn care, pool maintenance and general indoor and outdoor home repairs.

[25] While no evidence was provided regarding the value of the St. Andrews property, there are photographs that show it is a new and large home located in Caledon. From that I infer that it has significant value.

[26] Mr. Caprara lives in another home owned by his parents. It has a value of $4 million. He does not pay anything for rent, utilities, insurance or taxes for the home.

[27] Ms. Petrini does not dispute that Michael is the registered owner of the St. Andrews property but only became aware of this after she and Mr. Caprara separated. According to Ms. Petrini, before they separated, she and Mr. Caprara considered themselves to be joint owners of the St. Andrews property and treated it as their home. Her position is that Michael holds legal title to the St. Andrews property in trust for her and Mr. Caprara.

[28] Ms. Petrini's evidence is that she, Mr. Caprara and their two children lived at the Gore Road property for approximately 10 years before moving to the St. Andrews property. While living at Gore Road, Mr. Caprara was involved in litigation with his ex-fiancée who was seeking a share of the Gore Road property. That litigation was settled in 2009.

[29] Ms. Petrini argues that the St. Andrews property was not registered in Mr. Caprara's name because of this ongoing litigation and his parents wanted to credit-proof him from his former partner. She also argues that after they began to live at the St. Andrews property, Antonio and Antonietta did not want to transfer the property into Mr. Caprara's name as they did not want Ms. Petrini to have any claim to it.

[30] Ms. Petrini's evidence is that she and Mr. Caprara were solely responsible for all decisions relating to repairs, maintenance, renovations or improvements to the home on the St. Andrews property, including landscaping, and interior design choices. She also alleges that Mr. Caprara paid to install a pool at the St. Andrews property before they separated, but there are no supporting invoices as he paid for that work in cash.

[31] She also says that since they separated, Mr. Caprara continues to treat the St. Andrews property as his own as he has entered the home uninvited on several occasions. On one such occasion, when he forced his way in, she tried to stop him, and he proceeded to break various items.

[32] Ms. Petrini's evidence is that since they separated, Mr. Caprara has assisted with making necessary repairs to the house that are consistent with him having an ownership interest in the property. For example, in 2023, she sought Mr. Caprara's help to service the lawnmower. In January 2024, the basement flooded. Ms. Petrini wrote to Mr. Caprara and Michael about the flood. Mr. Caprara and a co-worker attended to take care of the flood. Michael was not aware of prior floods into the home.

[33] When cross-examined on her affidavit, Ms. Petrini agreed that she did not contribute anything to purchase the St. Andrews property or construct the home or pay any rent, utilities or maintenance expenses.

[34] When cross-examined, Ms. Petrini agreed that she was aware that Antonio and Antonietta won $18.5 million in a lottery and that they purchased a number of properties, including the St. Andrews property. She agreed that she was not involved with the severance application process but Mr. Caprara helped his parents with that process.

[35] Ms. Petrini does not know what Mr. Caprara did with the funds he received when their first home on Gore Rd. was sold. She believes that some of the proceeds of sale of the Gore Road property were used by Mr. Caprara to pay for the construction of the home on the St. Andrews property. She says that the proceeds of sale of the Gore Road property have never been fully accounted for by Mr. Caprara. There was an outstanding mortgage on that property held by Antonietta, that Mr. Caprara said he paid when the property was sold, but she is not satisfied with the evidence produced to date as her request for evidence that Antonietta did not give the money back to Mr. Caprara, was refused.

[36] Mr. Caprara's evidence is that he does not have an interest in the St. Andrews property. All funds for its purchase and construction were from his parents, who have paid all costs for the property.

[37] Mr. Caprara's evidence is that his parents paid all costs associated with severing the land they owned to create the St. Andrews property. It is also his evidence that he believes that his parents always intended that Michael would have the home.

[38] Mr. Caprara denies that any of the funds from the sale of the Gore Road property were used to build the home on the St. Andrews property. According to Mr. Caprara, he purchased the property on Gore Rd in April 2003 and he was the sole registered owner. There was an original mortgage held by the TD bank that was replaced with a mortgage in favour of his mother with respect to funds she advanced to him. When the property was sold in 2015 for $930,000, the funds owing to Antonietta were paid and the mortgage discharged. Mr. Caprara filed as evidence the reporting letter for the sale from his lawyer attaching the mortgage discharge registration and a copy of a cheque for $575,000 made payable to Antonietta.

[39] He also argues that the house on the St. Andrews property was constructed in 2012, three years before the sale of the Gore Rd property in 2015, so he could not have used those funds to help finance the home construction.

[40] Mr. Caprara's evidence is that the net proceeds of sale of approximately $312,000 from the Gore Road property were used to purchase furniture, a car for Ms. Petrini, equipment for maple syrup operations, and equipment for a charcuterie board business Ms. Petrini operated. He also says the funds have been used for day-to-day living expenses.

[41] Mr. Caprara disputes that title to the St. Andrews property was put in Michael's name to protect him, as he was involved in litigation involving his former spouse. According to Mr. Caprara, the litigation with his former spouse was resolved in March/April 2009. He filed a copy of an order dated March 26, 2009, dismissing the action and discharging the CPL that was registered on title to the Gore Road property. The transfer of the St. Andrews property into Michael's name was in December 2009, eight months after the litigation was resolved, so there was no need to protect him from any creditors as Ms. Petrini alleges.

c) Analysis and Decision

[42] I am satisfied that I can make the necessary findings of fact and apply the law to those facts on this summary judgment motion. I do not have to resort to any other fact-finding powers to make the necessary determinations.

[43] It is not in dispute that a common law spouse does not have possessory rights to a matrimonial home as does a married spouse. For possessory rights to a matrimonial home found in s. 19(1) of the Family Law Act, R.S.O. 1990, c. F.3, a spouse is defined as a married spouse and does not include the broader definition of common law spouse that is used for support claims.

[44] In this case the property in dispute is not owned by Mr. Caprara. Even if Ms. Petrini can prove that he has an interest in the St. Andrews property through resulting or constructive trust principles, Ms. Petrini nonetheless does not have any possessory rights to the residence as she is not a married spouse. Therefore, whether some funds from the Gore Road property can be traced into the St. Andrew's property, as she argues, has no bearing on whether Ms. Petrini has any possessory rights to the property.

[45] To be clear, based on the evidentiary record before me, including a copy of the cheque made payable to Antonietta to discharge the mortgage she held on title, there is no evidence on this motion to support Ms. Petrini's suspicion that Antonietta returned the money to Mr. Caprara. I also agree with Mr. Caprara's argument that the timing of the sale of Gore Road, after the home on the St. Andrew's property was constructed, does not support Ms. Petrini's assertion that he used funds from Gore Road to help pay construction costs for the St. Andrews property.

[46] Ms. Petrini argues that there are cases where the courts have granted possessory rights to a non-titled common law spouse. She relies on the decision of Morningstar v. Holley, where the owner moved for possession of the home in which his former common law spouse continued to reside, as he wished to sell the home. In that case, the responding common law spouse was seeking a declaration of a constructive trust interest in the property. She argued that the applicant, her former spouse, was holding legal title in trust for her.

[47] In Morningstar, the court found that the claim for a constructive trust was not frivolous, as the respondent said there was evidence that would show that they contributed to the acquisition of the property and contributed money and effort to maintain the property for 20 years. The motions judge found that, if successful, the trial judge could make a declaration of constructive trust and a remedy might not just be a payment to the responding spouse but an order for an interest in the property.

[48] The motions judge also noted that the responding spouse was seeking retroactive child and spousal support and that at trial, she could argue that the retroactive support owing should be paid to her by way of a transfer of an interest in the property pursuant to s. 34(1)(c) of the Family Law Act. The motions judge found that the responding spouse might be entitled to an interest in the property this way as well.

[49] The court found that it would be unjust to order the sale of the property prior to trial. The court found that the trial of the action was scheduled in seven months and as the moving party sought possession only for the purpose of selling the home, which the court did not order, there was no reason for the respondent to vacate the property and he declined to make that order.

[50] Morningstar is distinguishable for several reasons. First, Ms. Petrini is not seeking an interest in the property. Her evidence is that she plans on moving into her own home and is prepared to move out of the St. Andrews property but needs adequate time and support in order to do so as she cannot afford to move. Accordingly, she is not seeking an interest in the property and thus even if at trial she proves she has an interest in the property, the remedy will be payment of an appropriate sum of money and not an interest in the property.

[51] Second, in Morningstar, the court found that the constructive claim was not frivolous. In this matter, based on the evidentiary record before me, I find that Ms. Petrini's constructive claim in the St. Andrews property has no merit. This is a summary judgment motion where Ms. Petrini is to put her best foot forward. Despite this obligation, she has led no evidence to support her assertion of a constructive trust claim. It is undisputed that Ms. Petrini did not pay anything to buy the land or build the house on the St. Andrews property. Other than a general statement that she has contributed to winter snow removal, pool upkeep and lawn maintenance, in the 1,500 pages of evidence filed, there are no particulars of what if any money or labour she invested in the property to ground her claim for an interest in the property.

[52] On a summary judgment motion, it is not sufficient to say that there will be future evidence. Now is the time for Ms. Petrini to provide evidence or particulars supporting her claim. She has failed to do so. Furthermore, the expenses Ms. Petrini allegedly pays for summer, winter and pool maintenance are arguably her contributions to the property in which she lives rent-free. Payment of those expenses are not improving the value of the property but are expenses Ms. Petrini incurs to live there and do not ground a claim for a constructive interest in the property.

[53] Ms. Petrini argues that the Marroccos have failed to meet their onus to prove there is no genuine issue for trial regarding her possessory rights to the home. I do not agree. The undisputed evidence is that Michael is the legal owner of the property. He seeks possession. Ms. Petrini argues that Antonio and Antonietta have failed to present evidence that they paid to purchase the land and to construct the residence. She also says there is no evidence of the expenses for the home and who pays those expenses.

[54] Whether Antonio and Antonietta have proven or not what they paid for or towards the St. Andrew's property is not relevant as it relates to whether Ms. Petrini has any possessory rights. Michael, the legal owner, seeks vacant possessions. The alleged beneficial owners, Antonio and Antonietta also seek possession.

[55] While Ms. Petrini has advanced a claim for retroactive support, if granted, a remedy cannot be an interest in property that Mr. Caprara does not own. Furthermore, as noted above, Ms. Petrini is not seeking an interest in the property as she plans to eventually move. Her claim for retroactive support, if successful, will be satisfied through the payment of support and not for an interest in the St. Andrews property.

[56] Other than speculation, there is no evidence that Mr. Caprara has an interest in the St. Andrews property.

[57] While Ms. Petrini may not have the ability to purchase a home, she has funds from which she can pay first and last month's rent. Her inability to purchase a home is not a basis to find that she can remain in the home, for which she is paying no expenses.

[58] The Marroccos' motion for summary possession is therefore granted. Ms. Petrini must vacate the St. Andrews property but she is to be given time to find alternate living arrangements. I therefore find that she may remain in the home until November 1, 2025 at which time she is to vacate the property.

Issue Two – Interim Child and Spousal Support

[59] Before addressing entitlement to spousal support, I will address whether income should be imputed to either party.

[60] Ms. Petrini seeks interim spousal support. While she currently works full time and earns $47,000 per annum, her position is that she did not work throughout most of the time she lived with Mr. Caprara. Her evidence is that Mr. Caprara and his parents financially supported them and their family, and she is therefore entitled to interim spousal support. Her evidence is that she was the primary care-parent to the children and looked after the home. She also supported Mr. Caprara who often worked late. Given her age, the sacrifices she made during the marriage and her financial dependence on Mr. Caprara throughout their relationship, she argues that she is entitled to interim spousal support on a compensatory and non-compensatory basis.

[61] Mr. Caprara argues that Ms. Petrini is not entitled to interim spousal support. His evidence is that she worked throughout the relationship as a hairdresser and started another successful business in 2016 before beginning to work full-time in 2023. Furthermore, even if she is entitled to spousal support, given their similar incomes, the quantum is zero.

[62] Ms. Petrini seeks summer child support for V who attends university. Mr. Caprara argues that he has paid for V's university expenses, without any contribution from Ms. Petrini. In addition, his evidence is that V lives with both of them equally when she is not at school and therefore no summer support is owing.

[63] Both parties seek to impute income to the other. Mr. Caprara argues that in addition to her full-time job, Ms. Petrini should also continue to operate the profitable business she started in 2016. He argues that income she earned from that business should be imputed to her. He argues that I should find that Ms. Petrini has an income of $75,000.

[64] Ms. Petrini argues that Mr. Caprara was in receipt of significant sums from his parents before they separated and has continued to receive money and support from them post-separation. Ms. Petrini argues that an amount of income ought to be imputed to him for those cash payments. She also points to his living expenses that were paid prior to and since separation. She argues that based on Mr. Caprara's limited earnings, an inference should be drawn that their lifestyle was funded by Antonio and Antonietta. She seeks to impute an income to Mr. Caprara of $173,000.

[65] Counsel for Ms. Petrini prepared several charts analyzing the flow of funds into and out of Mr. Caprara's bank account and credit card. She seeks to rely on this analysis as evidence of money given to Mr. Caprara by his parents. Counsel for Mr. Caprara argues that those charts are not admissible evidence as they are not simply an aide memoire summarizing information produced but contain an analysis of the underlying supporting documentation that is akin to opinion evidence.

[66] I do not agree that the charts are inadmissible. In my view, they are akin to written submissions. It is an analysis of the underlying data which I can either accept or not. However, the charts and analysis are complicated and difficult to follow, even after counsel provided a written summary of how the chart was prepared and her analytic approach. What can be inferred from those charts is that there was a flow of funds into and out of these accounts that exceeds Mr. Caprara's disclosed income and is some evidence of money given to him by his parents.

[67] Mr. Caprara does not dispute that his parents give him money and he is prepared to impute $20,000 net to his income as a result of those gifts of money.

[68] I will address the information from these charts in more detail when addressing what income to impute to Mr. Caprara.

[69] Before reviewing the evidence in more detail, I will review the legal framework for imputation of income and when gifts may be considered as income.

a) Legal Framework: Imputation of Income

[70] Pursuant to s. 19(1) of the Federal Child Support Guidelines, SOR/97-175 (the "Guidelines"), the court may impute such an income as it considers appropriate in the circumstances.

[71] In Drygala v. Pauli (2002), 61 O.R. (3d) 711 (Ont. C.A.), the Court of Appeal considered imputation of income. At para. 32, it found that in meeting the legal obligation to support their child, a parent must earn what he or she is capable of earning. This principle was affirmed by the Court of Appeal in Lavie v. Lavie, 2018 ONCA 10, where Rouleau J.A. found at para. 24, that in order to find intentional under-employment and impute income, there is no need to find bad faith or a specific intent to evade child support obligations. If a parent is earning less than they could be, the reasons for the underemployment are irrelevant. Rouleau J.A. further underscored the principle in Drygala: to meet the legal obligation to support their child, a parent must earn what they are capable of earning.

[72] An income may be imputed to a support recipient who also has an obligation to support themselves and their children.

[73] While the quantum to be imputed is an exercise of the court's discretion, there must be a rational basis, grounded in the evidence, to do so: Drygala, at para. 44.

[74] These same principles apply when dealing with spousal support.

b) Legal Framework: Gifts as Income

[75] Where a party receives regular gifts from their parent, the court may impute the amount of those gifts as income for support purposes: Korman v. Korman, 2015 ONCA 578.

[76] In Bak v. Dobell, 2007 ONCA 304, the Court of Appeal set out the following factors to consider when determining whether gifts should be included in a person's income for support purposes:

(a) the regularity of the gifts;

(b) the duration of their receipts;

(c) whether the gifts were part of the family's income during cohabitation that entrenched a particular lifestyle;

(d) the circumstances of the gifts that earmarked them as exceptional;

(e) whether the gifts do more than provide a basic standard of living;

(f) the income generated by the gifts in proportion to the payor's entire income;

(g) whether the gifts are paid to support an adult child through a crisis or period of disability;

(h) whether the gifts are likely to continue; and

(i) the true purpose and nature of the gifts.

c) Review of the Evidence and Analysis

i) What is Ms. Petrini's Income?

[77] Ms. Petrini's position is that for the purpose of determining quantum of support, only her current annual full-time employment income of $47,000 is to be considered.

[78] Ms. Petrini has a grade 12 education. Before she met Mr. Caprara, she worked as a hairdresser for ten years. She also worked as a receptionist. When Ms. Petrini met Mr. Caprara, she was working in customer service at a publishing company and was earning $30,000 per year. She also received social assistance as she was not receiving any child support for her daughter. After their first daughter was born in 2005, Ms. Petrini took a maternity leave and then briefly returned to work before their second child was born. She did not return to work after their second child was born.

[79] According to Ms. Petrini, she did not work outside the home following the birth of their second daughter in 2006. She says Mr. Caprara and his mother told her she should quit her job to look after the three children in the home. Her evidence is that she was the primary caregiver for the children and played a supportive role so that Mr. Caprara could give priority to the family business where he worked long hours.

[80] Mr. Caprara disputes Ms. Petrini's claim that she did not work during their relationship. His evidence is that he constructed a hair salon in the basement of the Gore Road property and that she worked as a hairdresser from their home. He attached to his affidavit photographs of a professional hair salon chair, mirror, and wash station that he installed. His position is that this evidence is not relevant to her current income but is relevant to the issue of entitlement to spousal support.

[81] Ms. Petrini's evidence is that she was licensed as a hairstylist prior to their relationship but her license expired. While she thought she might return to that work at some point, she did not. When cross-examined about why Mr. Caprara installed what looked to be a hair salon in their basement, Ms. Petrini's evidence was that she used it to do their daughters' hair. She also cut hair for her family and friends but she did not run a business from the basement and did not earn an income as a hairdresser when they lived together.

[82] Other than the photographs, Mr. Caprara led no other evidence of income earned by Ms. Petrini as a hairdresser or any other particulars of the work he says she did as a hairdresser such as the hours she worked, how often she saw clients, etc.

[83] In the absence of any evidence, other than photographs, I am not prepared to find, on the evidentiary record before me, that Ms. Petrini worked as a hairstylist generating income during their relationship. That may be a finding that can be made at trial with a fulsome evidentiary record.

[84] Mr. Caprara argues income should be imputed to Ms. Petrini from the business she created in 2016 that continued to generate income for her in 2022. I understand that Mr. Caprara's argument is that I should find it reasonable for Ms. Petrini to be expected to work both a full-time job and also continue with part-time work, after hours.

[85] According to Ms. Petrini, in 2016, after not working for 10 years, she started a business known as Simply Piped. It started out as a hobby with a friend. The work involved creating and selling charcuterie boards. When her friend became ill, she continued the business on her own. She did the work out of the garage at the St. Andrews property. According to Ms. Petrini, she was paid primarily by way of e-transfers to her personal TD bank account. She testified that the business did well during Covid but slowed down in 2022 when she started to look for full-time employment.

[86] Some of the earnings were in cash for which there is no record.

[87] There is a dispute about how much money Ms. Petrini earned doing this work. According to her income tax returns, she earned the following from this business:

• 2020: $975
• 2021: $21,504
• 2022: $9,245
• 2023: $0

[88] Her accountant prepared her income tax returns based on the records Ms. Petrini provided.

[89] This work ended when she was hired by her current employer.

[90] Mr. Caprara's evidence is that Ms. Petrini's business was very successful and it was more than a hobby. She had several commercial clients. He attached to his affidavit photographs of various wood products that he said the business produced, in addition to charcuterie boards. He also attached photographs of the workshop in the garage at the St. Andrews property. He argues that Ms. Petrini should continue this work to some degree even though she now has a full-time job.

[91] According to Mr. Caprara, Ms. Petrini has not been forthcoming about the income she earned from this business. She admitted not maintaining proper records of her revenues and expenses, and that not all payments were deposited into her bank account. Based on his review of her bank statements, there were cash deposits of $79,033 between 2020 and 2023 as follows:

• 2020: $15,223
• 2021: $37,624
• 2022: $16,934
• 2023: $1,095

[92] Ms. Petrini's evidence is that some cash deposits into her bank account were from friends who refunded her for things she purchased on their behalf.

[93] Regardless of what income she earned from Simply Piped, on an interim basis, in my view it is not reasonable to find that additional income should be imputed to Ms. Petrini based on the income she earned from this business. A person is not expected to work a full-time job and then do additional work part-time. Had there been evidence that Ms. Petrini worked both jobs prior to separation, thus establishing a pattern of working two jobs, there might be room to argue that it should continue post-separation.

[94] There is no evidence that Ms. Petrini has continued to operate Simply Piped since she began to work full time in March 2023. I do not find it reasonable, therefore, to impute an income to her above what she earns from her full-time employment.

ii) What is Mr. Caprara's Income?

[95] Mr. Caprara has a grade 12 education. When Ms. Petrini met Mr. Caprara, he was working for his stepfather's company, Marrex Construction and Excavating Ltd. His two brothers also worked in the business. He worked part-time in high school and then began to work full-time for the business when he graduated.

[96] According to Mr. Caprara, he has held various roles in the family business that are primarily manual labour work such as a truck driver and machine operator. Ms. Petrini alleges that although Mr. Caprara claims to be a T4 employee, he held himself out to the public and media to be a co-owner of the businesses. Mr. Caprara denies being involved with management. Ms. Petrini relies on comments made by Antonio and Antonietta in a dated newspaper article when they won the lottery and their intentions with the family business. That article is firstly hearsay and second is not persuasive evidence that Mr. Caprara's has or had a managerial role with the company.

[97] According to Mr. Caprara's income tax returns, his earnings have been as follows:

• 2019: $30,000
• 2020: $38,400
• 2021: $35,131
• 2022: $36,000
• 2023: $48,404 (T4 information)

[98] Mr. Caprara's evidence is that Marrex ceased active operations in 2022 and he now works for another company, Richie Brothers Auctioneers Canada Ltd., earning $52,000 per annum. This company leases space on Marrex land. It stores vehicles on the property. A Record of Employment showed that his last day worked for Marrex was on October 20, 2023. This document was prepared by either his stepfather or mother as it is signed "A. Marocco."

[99] When the motion was argued, Mr. Caprara's evidence was that he was not working due to injuries sustained in a motor vehicle accident that occurred in January 2024. His only evidence in his affidavit was one sentence that he could not work due to the accident. There was no supporting evidence filed about his injuries, treatment, or prognosis. When he was cross-examined, his evidence was that he was told that he sustained a concussion and whiplash injuries. He did not file any evidence to corroborate this diagnosis including any kind of medical note or report. When he was cross-examined, he also said he attended therapy twice per week. He did not provide any particulars of what that treatment is.

[100] Mr. Caprara has provided no evidence about why the injuries he allegedly sustained in a car accident prevent him from working other than that his body cannot handle the work. It is also his evidence that he plans to return to work with his current employer.

[101] I am concerned with the lack of supporting documentation or any other evidence about Mr. Caprara's alleged inability to work. I am not prepared to accept his bald assertion that he cannot work. Such a significant change in his employment status requires some degree of corroboration such as medical or other records that are easily available. Furthermore, if he cannot work, he would be entitled to accident benefits such as an income replacement benefits. He provided no evidence of what if any such benefits he is receiving. I therefore do not accept his evidence that he is not working and find that his income, before determining if any other income should be imputed, is $52,000 which he says he was earning before the car accident.

[102] Ms. Petrini argues that Mr. Caprara's parents financially supported her and Mr. Caprara before they separated and they have continued to support Mr. Caprara post-separation. She argues that not only do they provide Mr. Caprara with money, but they also provide him with living accommodations for which he does not pay any expenses.

[103] In support of her assertion of regular financial support, Ms. Petrini relies on the unexplained flow of money into Mr. Caprara's bank account and credit card, beyond his employment income as evidence of the lifestyle they enjoyed before they separated.

[104] Mr. Caprara does not dispute that he receives financial support from his parents but does not agree it is to the extent alleged by Ms. Petrini. He also contests her argument that they lived an affluent lifestyle during their relationship as a result of the financial support from his parents.

[105] It is not contested that Mr. Caprara pays no shelter expenses where he resides as no such expenses are claimed in any of the financial statements he has filed in this proceeding. The dispute, it appears, is on the degree of financial support he receives.

[106] It is also not in dispute that Ms. Petrini and Mr. Caprara did not have to pay any shelter costs when they both lived at the St. Andrews property. They both enjoyed a significant benefit of living in a new and large home rent-free.

[107] According to Ms. Petrini, Mr. Caprara earned a significant portion of his income in cash and she often saw him bring large sums of cash home that was kept in a safe in the house. She said that big-ticket items in the home were paid with cash including the installation of a pool, renovations to the outdoor patio and landscaping. She also had access to cash to pay for day-to-day expenses such as groceries.

[108] According to Ms. Petrini, during their relationship she did not have a joint bank account with Mr. Caprara as his mother would not allow it. She said that Mr. Caprara and Antonietta paid for many of her and the children's expense. She said she had access to cash, bank accounts and credits card for anything she or the children needed that were paid by either Mr. Caprara or his parents.

[109] In addition to earning cash from his work, Ms. Petrini alleges that Mr. Caprara also received large sums of money from his parents throughout their relationship.

[110] With respect to her allegation that they had an affluent lifestyle during their relationship, Ms. Petrini relies on the following evidence:

• They went to the casino three times per year and would have expensive meals and drinks. Their dinner bill could be $2,000 and it was paid by Mr. Caprara's parents or on his credit card that was paid off by parents
• They frequented higher end restaurants such as Chop Steakhouse and Baton Rouge at least once per month that was paid by Mr. Caprara or his parents
• She shopped regularly at high end boutiques and accumulated a collection of designer bags, shoes and clothing
• Mr. Caprara regularly bought jewellery for her – including a diamond necklace in Christmas 2016
• Mr. Caprara owned multiple vehicles including a Jaguar, Harley Davidson Street Glider motorcycle, an antique 1969 GMC truck
• They vacationed frequently as a family – to Florida annually and sometimes more than once. They stayed at the Marroccos' large condo. They also travelled to Las Vegas, Jamaica and Lake Placid to ski.

[111] According to Ms. Petrini, Mr. Caprara continues to live an affluent lifestyle. He lives in a $4 million home in Caledon that his parents own for which he pays no expenses. She said he either owns or has access to multiple cars and takes multiple vacations to places like Florida and Aruba.

[112] He has also purchased a boat worth $40,000 post-separation. In 2022, when V was living with Mr. Caprara, he bought her a horse.

[113] Mr. Caprara denies that he and Ms. Petrini led an extravagant lifestyle during their relationship as a result of the generosity of his parents. He denies buying expensive jewellery for Ms. Petrini or that she owns expensive jewellery or handbags. He notes that in her financial statement, she disclosed that the value of her jewelry and one designer purse total only $7,200 which is not commensurate with the affluent lifestyle as she alleges.

[114] With respect to travelling, Mr. Caprara's evidence is that they travelled once to Las Vegas, once to Jamaica over 10 years ago, and once to Lake Placid for a ski trip. They also travelled to Florida to visit Ms. Petrini's parents.

[115] Mr. Caprara denies expensive meals out at restaurants or the casino. While they did eat at Baton Rouge and Chop Steak House, he does not agree that these are high end restaurants.

[116] Since they separated, he travelled to Aruba with his new partner in 2023 that was paid for by his new partner.

[117] Mr. Caprara acknowledges that he resides in a $4 million home owned by his parents and pays nothing to maintain it. He does not plan to live there on a permanent basis.

[118] Mr. Caprara's evidence is that he pays expenses for his two daughters in the range of $500 to $700 per month for such items as school supplies, concerts, school trips etc.

[119] According to Mr. Caprara, he was also paying the car loan for Ms. Petrini's Nissan Murano in the sum of $745 per month.

[120] Mr. Caprara acknowledges purchasing a 50% interest in a boat since the parties separated but says he borrowed the money from his mother. No loan documentation in connection with that loan was produced for this motion.

[121] Mr. Caprara acknowledges that a horse was purchased for V but his evidence is that V used some of her own money to buy the horse. According to Mr. Caprara, he provides labour to defray the boarding costs for the horse. The plan is to sell the horse.

[122] Mr. Caprara did not provide any particulars of the costs associated with the horse either to purchase it or maintain it.

[123] According to Mr. Caprara, Ms. Petrini collected Ontario Works while they lived together. He only learned of this after they separated. When cross-examined, Ms. Petrini admitted that she continued to collect Ontario Works between 2015 and 2017. Mr. Caprara argues that this flies in the face of Ms. Petrini arguing that they lived a lavish lifestyle if she collected Ontario Works.

[124] Despite claiming to pay for all of V's university expenses, Mr. Caprara's financial situation remains relatively unchanged since the parties separated. A review of the three financial statements he has filed shows that his RRSP savings of approximately $200,000 remains relatively unchanged. There have also been modest changes in his debts. In all three financial statements, his yearly expenses were similar to his yearly income.

[125] None of his financial statements include expenses incurred for V's education.

[126] Ms. Petrini also relies on the flow of money into Mr. Caprara's bank account and credit card in support of her assertion that his parents have continued to give him gifts of money. Charts were prepared summarizing records received from Mr. Caprara's BMO Mastercard statements and bank account.

[127] According to Ms. Petrini's analysis, in 2019, there were deposits to Mr. Caprara's credit cards that totalled $31,118 and deposits to his bank account of $57,512. After taking into account any double accounting, such as deposits into his chequing account that were then transferred to his credit card, there were total deposits of approximately $59,999 into these two accounts in 2019, above his T4 income of $30,000 that year.

[128] Using that same analysis, Ms. Petrini calculates that there were deposits of approximately $64,500 into these two accounts in 2020, when he declared an income of $38,400. The deposits in 2021 total $87,000 when his declared income was $35,131. In 2022, the deposits were $79,800 when his declared income was $36,000. The deposits were $75,400 in 2023 when his declared income was $48,000.

[129] According to Mr. Caprara, some of the payments made to his credit card were actually payments made for his employment income. Mr. Caprara was asked for copies of his pay slips to determine what amount was paid to him and the amount that may have been deposited to his credit card directly. To date, he has only produced two pay slips from Marrex, one for a pay period ending in April 2022 and one in April 2023.

[130] His evidence is that in 2020, he received $16,000 from his parents which included payment of expenses of $5,400 by Marrex and bank payments of $9,000. In 2021, he received $33,000 which included payment of expenses by Marrex in the sum of $17,332, payments at the bank of $600 and payments from his mother of $16,300. In 2022, he received $21,500 in benefits from his family. This included payment of expenses by Marrex of $5,500, bank payments of $13,000 and payments from his mother of $3,000. In 2023, he received $13,800 in benefits from his family. This included payment of expenses by Marrex of $6,000 and payments from his mother of $7,800.

[131] Based on these payments, Mr. Caprara agrees to impute an additional $20,000, net, to him for income from other sources. Using his proposed gross up of 35% for tax purposes on the $20,000, increases that amount to $28,000 that he agrees to impute as income. Based on my finding that he earns $52,000, that increases his total income to $80,000.

[132] Mr. Caprara acknowledges that he receives more financial benefits from his parents as his evidence is that he does not believe that every gift/payment from his family should be considered as income.

[133] Accordingly, Mr. Caprara concedes that based on the factors established by the Court of Appeal in Bak, the payments he receives from his family are gifts that were used to fund his lifestyle and is a source of income to be imputed to him.

[134] Ms. Petrini argues based on a review of the credit card and bank statements, coupled with their lifestyle pre-separation, the amount Ms. Caprara receives from his family is much greater than $20,000 per annum.

[135] Section 16 of the Federal Child Support Guidelines provides that gifts are not to be included in a spouse's presumptive income. There is a distinction, however, between gifts received on an inconsistent basis and a stream of income or benefits used to support a family over a lengthy period of time: Malkov v. Stovichek-Malkov, 2017 ONSC 6822, at para. 57. In the latter circumstances, gifts can be included in a spouse's income under s. 19(1) of the Guidelines. Care should be taken, however, when imputing gifts as income to avoid the effect of transferring a support obligation: Whelan v. O'Connor, 2006 CarswellOnt 2581.

[136] In Malkov, the support payor never paid for housing, utilities, insurance, condo fees of realty taxes. McGee J found that such housing benefits, paid by the support payor's father, were gifts that constituted income. While the value of the benefits was unknown, on the evidence available, McGee imputed an income of $30,000.

[137] Based on Mr. Caprara's concession, an income ought to be imputed to him. The issue is how to calculate the value of the gifts and what income to impute.

[138] While the bank records and credit card statements show a flow of funds into those accounts, it is not clear to me whether those deposits included his pay.

[139] While motions are an imperfect way to resolve issues when there is often, as here, incomplete and conflicting evidence, there must still be an evidentiary basis to ground the finding. In this case, I find that the best evidence to determine the financial benefit Mr. Caprara receives is to use the shelter costs that are provided for him by his family. This is a recurring benefit he receives – both pre and post-separation.

[140] There is no evidence of what Mr. Caprara might have to pay to rent the $4 million home that he lives in. Ms. Petrini's evidence was that based on research she did, a 3-bedroom townhouse costs between $3,500 and $3,700 to rent in Caledon. In my view, $5,000 per month is a reasonable figure to use for the rent to live in a $4 million home. That totals $60,000 per annum, tax free. He also does not pay utilities. An annual amount of $5,000 is reasonable to use, for a total of $65,000. Using Mr. Caprara's proposal of a 35% mark up for taxes, results in a gross amount of approximately $95,000. When added to his employment income of $52,000, Mr. Caprara's total income is $147,000. This is Mr. Caprara's income for the purposes of calculating the quantum of child and spousal support.

[141] Before dealing with entitlement and quantum of support, I will briefly address the argument made by both parties that adverse inferences be made against the other for various non-disclosure issues. For example, Mr. Caprara argues that Ms. Petrini has not been forthcoming about the income she earned from Simply Piped and also refused to answer questions about how much she collected in Ontario Works when they lived together. Ms. Petrini argues that Mr. Caprara initially refused to provide financial disclosure and only did so after she commenced this application. She also argues that he has failed to provide particulars of the financial benefits he has and continues to receive from his parents. She says Mr. Caprara is an experienced litigant who was involved for several years in litigation involving his former spouse and is therefore familiar with means to minimize any financial exposure he might have to Ms. Petrini.

[142] I am not prepared to make any such adverse inferences for this motion. While disclosure may be imperfect, it does not lead me to conclude that the incomplete or non-disclosure is a basis to make adverse findings other than in one area – Mr. Caprara's alleged inability to work due to injuries from a car accident.

[143] There are areas of dispute that are troubling in connection with both parties that leads me to question their respective credibility in certain areas. Those credibility concerns do not, however, rise to the level to lead me to reject their evidence in its totality.

[144] For example, I was troubled by Ms. Petrini's evidence of collecting Ontario Works for a period of time while living at the St. Andrews property with Mr. Caprara, and her refusal to answer how much she received. If her lifestyle was so affluent, as she described, why was she collecting Ontario Works?

[145] I am also troubled by the unexplained flows of money into Mr. Caprara's bank account and credit card statements.

[146] On contested motions, there are often claims of credibility and reliability concerns that can be very difficult to resolve based on conflicting affidavit evidence. My findings, herein, are based upon findings made based on the evidentiary record filed before me without the benefit of observing a party testifying and the evidence being challenged through cross-examinations.

iii) Is Ms. Petrini Entitled to Interim Spousal Support?

[147] There are three grounds for entitlement to spousal support: 1) compensatory; 2) non-compensatory; and 3) contractual: Bracklow v. Bracklow, [1999] 1 S.C.R. 420. Compensatory support aims to address economic disadvantages incurred during the marriage whereas non-compensatory support addresses needs arising from the breakdown of the marriage. A spouse can have both a compensatory and non-compensatory claim for support.

[148] On a motion for interim spousal support, the court does not engage in a detailed or in-depth analysis of the parties' circumstances. It is extremely difficult to do so in the face of often conflicting evidence which requires the sort of credibility and reliability assessments that can only be done at trial on a full evidentiary record. At best, motions for interim support hope to achieve "rough justice at best": Driscoll v. Driscoll, at para. 14.

[149] In Knowles v. Lindstrom, 2015 ONSC 1408 (Ont. S.C.J.), when dealing with a motion for interim support, the court found:

[8] It is well-established that interim support motions are not intended to involve a detailed examination of the merits of the case. Nor is the court required to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. These tasks are for the trial judge. Orders for interim support are based on a triable or prima facie case. An order for interim support is in the nature of a "holding order" for the purpose of maintaining the accustomed lifestyle pending trial, Jarzebinski v. Jarzebinski, 2004 CarswellOnt 4600 (ONSC) at para. 36; Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, 2012 CarswellOnt 14841 (ONSC) at para. 24.

[150] On this motion, I do not have to determine if Ms. Petrini's claim for spousal support is based on a compensatory or non-compensatory model. I am satisfied that based on the length of their relationship, lifestyle they enjoyed during their relationship, the roles they each assumed, and their current incomes and ages, Ms. Petrini has a prima facie case for spousal support. The quantum depends on their respective incomes, as I have found, and then a consideration of child support.

iv) What is the Quantum of Interim Child and Spousal Support?

[151] I will only address the claim for child support for V who attends post-secondary education. There is competing evidence about where she resides when not in school.

[152] Some documents were filed for V's education expenses. For her first year, that was residence and meal plan cost of approximately $15,000. Her tuition was $3,887 for the fall term so I assume it was $7,444 for the year. While no evidence was led, when additional amounts are added for school supplies, travel, etc, it is reasonable to find that costs for post-secondary education costs range between $25,000 and $30,000.

[153] There was also documentation that V qualified for OSAP of $17,360 of which close to $8,000 was a grant.

[154] There was no evidence if V worked or had any savings that she contributed to her education costs.

[155] Mr. Caprara says he has paid for all of V's education costs. This is not shown on his financial statement.

[156] Commencing in September 2025, there is to be a sharing of university expenses based upon my findings herein of the parties' respective incomes. The expenses to be shared must first consider any grant or loan V receives, together with any reasonable contribution from V through her employment income, if she works the summer of 2025.

[157] Commencing in the summer of 2026, when V is done school for the year and Ms. Petrini is no longer living at the St. Andrews property, Mr. Caprara is to pay Ms. Petrini the table amount of child support if V is residing with her. If there is a shared parenting arrangement, then child support shall be paid based on that parenting arrangement in accordance with the Child Support Guidelines.

[158] Mr. Caprara is to commence paying spousal support to Ms. Petrini on November 1, 2025, or sooner if she moves out of the St. Andrews property prior to that date. For clarity, interim spousal support commences the month she vacates the property.

[159] With respect to quantum, the parties will have to file spousal support guideline calculations using the incomes I have found herein and any payment of child support.

[160] The best outcome is if the parties can reach an agreement on the quantum of interim spousal and child support. If an agreement cannot be reached, the parties are to file their support calculations and written submissions, of no more than five pages double spaced, using 12 pt font by September 5, 2025. Once I review the submissions, I may ask the parties to appear before me at a 9 am attendance on zoom if I require further evidence or submissions.

[161] The parties must also address if the quantum of spousal support is in the low, mid, or high range.

[162] All issues of retroactive support are to be addressed at trial.

Costs

[163] The Marroccos are entitled to their costs as they have been successful. They have filed a bill of costs for partial indemnity fees and disbursements of $16,183. Ms. Petrini filed a bill of costs for partial indemnity fees and disbursements of $32,763, which I presume was for both motions.

[164] The costs claimed by the Marroccos is reasonable for a summary judgment motion.

[165] In the absence of any relevant offers to settle, that may have a bearing on costs, Ms. Petrini is to pay to the Marrocco respondents costs of $15,000 all inclusive for this motion. As the respondents also seek damages from Ms. Petrini, the costs payable for this motion are to be paid when the action is resolved either through negotiations or trial.

[166] I will address Ms. Petrini's entitlement to costs on her motion for interim child and spousal support once I have made a finding of quantum upon receipt of the further submissions I have requested.

L. Shaw J.

Released: August 1, 2025