



COURT OF APPEAL FOR ONTARIO

CITATION: Gionet v. Pingue, 2018 ONCA 1040

DATE: 20181217

DOCKET: C65767

Sharpe, Paciocco and Harvison Young JJ.A.

BETWEEN

Guy Gionet

Applicant (Respondent)

and

Franca Pingue

Respondent (Appellant)

Serena Lein, for the appellant

Guy Gionet, acting in person via teleconference

Heard: November 23, 2018

On appeal from the order of Justice Linda M. Walters of
    the Superior Court of Justice, dated January 9, 2017.

Harvison Young J.A.:

OVERVIEW

[1]

Franca Pingue appealed a judgement settling the division of matrimonial
    property, including a matrimonial home. At the end of her hearing on November
    23, 2018, her appeal was denied, with reasons to follow. These are those reasons.

[2]

The appellant Franca Pingue (Ms. Pingue) and the respondent Guy Gionet
    (Mr. Gionet) were married on August 10, 2003 and separated on September 2,
    2013. Ms. Pingue worked as a teacher throughout the relationship. Mr. Gionet
    was employed at the beginning of the marriage but at a later point, he left his
    employment to devote his full-time efforts to the parties family enterprise of
    buying, fixing and selling real estate properties. There is no dispute that Ms.
    Pingue earned a higher income for most of the marriage. At the heart of her
    position at trial, and her arguments on appeal to this court, was the view that
    because she had contributed more to the assets of the marriage, she should be
    entitled to a greater share than Mr. Gionet.

[3]

The only issue at trial was the equalization of net family property
    (NFP) which turned mainly on the value of the matrimonial home and whether it
    was held beneficially by both parties, or whether Ms. Pingue was the sole owner
    because she alone was on title as the owner. This was important to the parties
    because had the home been solely owned by Ms. Pingue, Mr. Gionet would not have
    been entitled to share in any post- separation date appreciation of the
    matrimonial home. As was evident from the record at trial, the matrimonial home
    increased in value significantly between the parties separation in September,
    2013 and the trial in August, 2016.

[4]

While Mr. Gionet was represented at trial, Ms. Pingue was not. After a
    six day trial, the trial judge found that Mr. Gionet was a beneficial owner of
    the matrimonial home. She accepted the evidence of Mr. Gionet as to the value
    of the matrimonial home on the date of trial. In the result, Mr. Gionet was
    ordered to pay Ms. Pingue an equalization payment of $59,535.98. The trial
    judge awarded costs against Ms. Pingue in the amount of $50,000.

THE ISSUES ON APPEAL

[5]

Ms. Pingue submits that the trial judge erred:

1.

in finding that Mr. Gionet was a beneficial owner of the matrimonial
    home;

2.

in failing to grant an adjournment requested by Ms. Pingue four days
    into the trial;

3.

in failing to meet her duty to assist Ms. Pingue as a self-represented litigant;

4.

in failing to award Ms. Pingue an unequal division of the net family
    property pursuant to s. 5(6) of the
Family Law Act
, R.S.O. 1990, c. F. 3
    (the Act).

[6]

I find no merit to any of the grounds raised and I would dismiss the
    appeal for the following reasons.

[7]

At the outset I note that the standard of review is well established:
    see
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235 33, at
    paras. 8-9;
Hickey v. Hickey
, [1999] 2 S.C.R. 518, at paras. 10-11.

ANALYSIS

The finding that Mr. Gionet was a beneficial owner of the
    matrimonial home

[8]

Ms. Pingue argues that the trial judge misapplied the law in finding
    that she had failed to rebut the presumption of a resulting trust in favour of Mr.
    Gionet. While Ms. Pingue concedes that the governing law is well summarized
    in
Korman v. Korman
, 2015 ONCA 578, 126 O.R. (3d) 561, she argues that
    the trial judge incorrectly applied
Korman
, because in that case, the
    husband had transferred his half interest in the matrimonial home to his wife
    in order to defeat creditors, a fact not present in this case.

[9]

Here, the matrimonial home was purchased solely in Ms. Pingues name. This
    fact, and the fact that she contributed a disproportionate share of the
    mortgage and carrying costs should have been sufficient, according to Ms.
    Pingue, to demonstrate that the parties intended from the outset that she would
    be the sole beneficial and legal owner of the matrimonial home. Ms. Pingue
    acknowledged that the date of separation value of the matrimonial home would be
    equalized in any event. However, while the post-separation value of the house
    would accrue entirely to Ms. Pingue in the absence of a resulting trust, it
    would be shared with Mr. Gionet if he was, as the trial judge held, a
    beneficial owner.

[10]

I
    do not agree that the trial judge misapplied
Korman
. She accurately
    set out the principles of
Korman
, and explained their application to
    the facts of this case.

[11]

She
    began by correctly stating that the first step towards calculating any
    equalization payment is the determination of each partys net family property,
    which includes resolving all questions of title to property including any trust
    claims advanced (para. 30).

[12]

The
    trial judge correctly referred to
Korman
and s. 14 of the Act,

which
    states that:

[t]he rule of law applying a presumption of a resulting trust
    shall be applied in questions of the ownership of property between spouses, as
    if they are not married

[13]

The
    trial judge correctly applied s. 14 and went on to consider whether Ms. Pingue had
    rebutted the presumption of a resulting trust in favor of Mr. Gionet and that
    he had gifted his interest in the property to her. The trial judge found, at
    para. 35, that Ms. Pingue had not rebutted the presumption:

the historic property dealings between these two parties from
    the date of marriage is inconsistent with any other conclusion but that they
    were involved in a joint financial venture. Mr. Gionet testified that they
    would purchase, fix and then sell properties, hopefully at a profit. Title to
    the properties was taken in the name of one or both or a company
    interchangeably. Funds to purchase the properties came from joint sources.

[14]

There
    was ample evidence at trial to ground this conclusion and I see no basis for
    intervention by this court.

[15]

At
    trial, Ms. Pingue argued that she should be entitled to an unequal and larger division
    of the value of the matrimonial home (as well as the value of all family
    assets) during the marriage and up to the date of separation because she had
    earned more and contributed more in the course of the marriage. This position
    was clearly at the heart of her position at trial and in this appeal.

[16]

As
    the trial judge quite properly noted in her reasons, at para. 11:

[T]he court does not conduct itself with how parties conduct
    their affairs while cohabiting. I have not accepted [Ms. Pingues] attempt to
    claim a greater portion of family assets based on a higher percentage of
    contribution by her during the 10-year relationship.

[17]

The
    trial judges conclusion on this point is entirely consistent with the purpose
    of equalization under the Act, as expressed in s. 5(7):

The purpose of this section 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). [Emphasis added.]

[18]

The
    Act thus requires that the net family property of each spouse be shared equally
    upon marriage breakdown, based on a presumption that the spouses contributed
    equally during the marriage. This approach to the division of property reflects
    a clear policy choice on the part of the Ontario legislature:
Best v. Best
,
    [1999] 2 S.C.R. 868, at para. 3. In giving effect to the legislatures intent,
    it is not the role of the court to weigh the actual contributions made by each
    spouse or to alleviate every situation that may be viewed as in some ways
    unfair or inequitable:
Ward v. Ward,
2012 ONCA 462, 111 O.R. (3d) 81,
    at para. 25. Rather, equalization is mandatory, subject only to the exception
    set out in s. 5(6) of the Act, which I will discuss below, and to the
    provisions of any applicable and valid domestic contract between the married
    spouses pursuant to s. 2(10).

The trial judges refusal to grant an adjournment

[19]

Ms.
    Pingue submits that the trial judges denial of her request for an adjournment
    resulted in an unfair trial. She says an adjournment was warranted for the
    purpose of calling her expert, Mr. Ellwood, to testify as to the current value
    of the matrimonial home.

[20]

The
    scope for appellate intervention with respect to a trial judges denial of an
    adjournment is limited. The decision to deny an adjournment is discretionary,
    and will only be interfered with if the trial judge failed to take account of
    relevant factors and exercised his or her discretion unreasonably, such that
    the decision is contrary to the interests of justice:
Boaden Catering
    Limited v. Real Food for Real Kids Inc.,
2017 ONCA 248, at para. 17.

[21]

There
    is no reason in this case to interfere with the trial judges decision to refuse
    to adjourn the trial. Ms. Pingue had ample notice of the trial dates, and
    elected to call one expert witness, Mr. Lewis, to testify in the area of
    chartered accounting. This demonstrates that she was aware of the need to
    ensure her witnesses were available for trial.

[22]

When
    asked on the first day of trial if she intended to call Mr. Ellwood as a
    witness, Ms. Pingue was equivocal:

THE COURT: And you will be calling Mr. Ellwood?

FRANCA PINGUE: I, I did ask. I said should the other party want
    to cross-examine you, I did ask, I had him sign the, all the forms and so forth
    early on, and then as of recently because hes been away a lot, I asked him
    should the other party need to cross-examine you, when and will you be
    available. So I'm waiting to hear back from him. Hes not the easiest man to
    track down.

[23]

Later
    that day, she confirmed that she did not intend to call Mr. Ellwood:

THE COURT: So I guess  are you, do you plan on calling him,
    yes or no?

FRANCA PINGUE: I, I emailed him and I said you may be, you may have
    to come in as a witness....

THE COURT: This is your case.

FRANCA PINGUE: I know.

THE COURT: Mr. Shapiro is saying its not up to him.

FRANCA PINGUE: Oh, okay.

THE COURT: He is not going to call him as a witness. Its your
    case. In your case, do you plan on calling him as a witness?

FRANCA PINGUE: No.

THE COURT: All right. That's fine. Then I'm not going to permit
    the question. Go ahead.

[24]

On
    the fourth day of trial Ms. Pingue changed her mind. She sought not only to
    call Mr. Ellwood, but to obtain a two-week adjournment for this purpose. The
    trial judge, who had previously advised the parties of the courts
    unavailability until October 2016, denied the adjournment request but allowed Ms.
    Pingue to call Mr. Ellwood on one of the remaining days of trial:

THE COURT: That is why I asked is do you have the witness here
    that you can call, so he can be cross-examined by Mr. Shapiro. I asked you that
    a few days ago. You are certainly free to call him now, and your case is not
    completed. You can call him.

A. I know, but he can't be here for two weeks.

THE COURT: I'm sorry. That is your evidence. Somebody  and
    that is, this is the trial. I am not adjourning the trial for two weeks. You
    knew when your trial date was. You knew to be prepared for trial. This is not a
    surprise. You have to be  have your witnesses lined up. You cannot just file
    the documents.

A. Okay....

[25]

Considering
    Ms. Pingues equivocations on calling Mr. Ellwood, the late timing of her adjournment
    request, and the significant delay an adjournment would cause given the judges
    own availability, the trial judges exercise of her discretion to deny the request
    was neither unreasonable nor contrary to the interests of justice.

[26]

Moreover,
    Ms. Pingue was not prejudiced by the refusal of this adjournment request
    because the trial judge did take the experts valuation report into
    consideration. However, she did not accept the value set out in the valuation
    report because it gave only a 2014 value ($508,000) for the matrimonial home,
    while Mr. Gionets expert, Ms. Evans, opined that its value as of July 2016 was
    $690,000.

[27]

In
    addition, while Ms. Pingue submits that the trial judge overvalued the
    matrimonial home, she has adduced no evidence to show that the valuation was
    wrong or that her expert would have offered a lower value. She could have
    sought to do so with a motion to adduce fresh evidence on appeal, but she did
    not. In these circumstances, it would be entirely speculative for us to order a
    new trial on this issue.

[28]

There
    is no merit to this ground of appeal.

The duty to assist a self-represented litigant

[29]

Ms.
    Pingue submits that the trial judge erred in failing to provide her the
    assistance she was owed as a self-represented litigant. Ms. Pingue points to
    instances where the trial judge limited the scope of Ms. Pingues examination
    of opposing witnesses on the basis that the questions were either irrelevant or
    repetitive. She also cites instances where the trial judge refused to admit
    documentary evidence that Ms. Pingue wished to file.

[30]

The
    duty of a trial judge to assist self-represented litigants was canvassed most
    recently by this court in
Dujardin v. Dujardin Estate
, 2018 ONCA 597:

it is well-accepted that trial judges have special duties to
    self-represented litigants, in terms of acquainting them with courtroom
    procedure and the rules of evidence:
Davids v. Davids
(1999), 125
    O.A.C. 375, at para. 36. However, a trial judge's duty to assist has limits. It
    does not entail bending the rules of evidence in an attempt to compensate for
    the lack of representation. The fair trial rights of opposing parties must be
    respected. As Brown J.A. said in
Sanzone v. Schechter
, 2016 ONCA 566,
    402 D.L.R. (4th) 135, at para. 22: "A defendant is entitled to expect that
    a claim of liability brought against it will be decided by the same rules of
    evidence and substantive law whether the plaintiff is represented by counsel or
    self-represented."

[31]

In
    ensuring that a self-represented litigant has a fair trial, the trial judge
    must treat the litigant fairly and attempt to accommodate their unfamiliarity
    with the trial process, in order to permit them to present their case:
Davids
    v. Davids
(1999), 125 O.A.C. 375, at para. 36.

[32]

A
    review of the transcript of proceedings belies Ms. Pingues submissions on this
    ground. The trial judge made significant and sustained efforts throughout the
    course of trial to assist her. The trial judge provided detailed answers to Ms.
    Pingues questions, explained various aspects of trial procedure and the rules
    of evidence, and allowed for brief adjournments to facilitate settlement
    discussions and document review.

[33]

The
    trial judges decision to focus Ms. Pingues often lengthy examinations was an
    appropriate exercise of her trial management powers. The trial judge went to
    great lengths to provide appropriate assistance to Ms. Pingue while ensuring
    that the trial was also fair to Mr. Gionet and that it was managed as
    efficiently as possible.

[34]

This
    ground of appeal is therefore also without merit.

Did the trial judge err in rejecting Ms. Pingues claim for an
    unequal division of the NFP pursuant to s. 5(6) of the Act?

[35]

Finally,
    Ms. Pingue argues that the trial judge erred in failing to award her an unequal
    division of the NFP pursuant to s. 5(6) of the Act. I find no merit in this
    submission.

[36]

It
    is clear from the case law interpreting s. 5(6) that the test to be applied in
    ordering an unequal division of NFP is not mere unfairness but a shock to
    the conscience:
Ward
, at para. 36
.
    This is not such a case. Rather, the gravamen of Ms. Pingues arguments at
    trial and at this appeal is her view that because she contributed more to the
    assets acquired in the course of marriage, she should be entitled to more now. As
    I have explained above, and as the trial judge recognized, this view is
    antithetical to the scheme of marital partnership in the Act.

CONCLUSION

[37]

For
    these reasons, I would dismiss the appeal. Mr. Gionet did not ask for costs and
    accordingly, there will be no order as to costs.

Released: RJS Dec 17 2018

Harvison Young J.A
I agree. Robert J. Sharpe J.A.
I agree.
David M. Paciocco J.A.



