



COURT OF APPEAL FOR ONTARIO

CITATION: Vetro v. Vetro, 2013 ONCA 303

DATE: 20130507

DOCKET: C56023 and C56580

Weiler, Gillese and Hoy JJ.A.

BETWEEN

Dominic Vito Vetro

Applicant (Appellant)

and

Gabrielle Vetro

Respondent (Respondent)

J. Kelvin Ford, for the appellant

Gabrielle Vetro, acting in person

Heard: May 6, 2013

On appeal from the order of Justice Douglas K. Gray of
    the Superior Court of Justice, dated August 23, 2012 and the order of Justice
    Meredith Donohue of the Superior Court of Justice, dated November 19, 2012.

By the
    Court:

[1]

The appellant is in substantial compliance with the conditions of the
    order of MacPherson J.A.  Consequently, the court heard these two appeals, one
    following the other. At the conclusion of the appellants oral argument we
    dismissed the appeal with reasons to follow.  These are those reasons.

The appeal from the order of Gray J. striking the appellants
    pleadings

[2]

The appellant submits that the motion judge erred in not creating any
    roadmap by which the appellant could reinstate his pleadings after striking
    them.  The appellant further submits that in striking his pleadings the motion
    judge was obliged to give him an opportunity to correct or explain his default
    and that he did not do so.

[3]

We disagree. The motion judge began by correctly stating the governing
    legal principle, namely that striking a pleading is a serious matter, and
    should only be done in unusual cases:
Marcoccia v. Marcoccia
(2009),
    60 R.F.L. (6th) (Ont. C.A.), at para.3

[4]

The appellant had been given prior opportunities to correct and explain
    his default and the motion judge made findings of fact to the effect that he
    had not done so.  Gray J. found that the orders for interim support were made
    on the appellants own evidence, that he went into default almost immediately
    and that any compliance since then had been minimal and only on the eve of
    scheduled trials or motions. We note, as well, that the motion judge was not
    satisfied the appellant had yet made full disclosure despite the existence of a
    long standing disclosure order and attempts at enforcing it. The motion judge
    found that the appellants assertion of his financial situation and level of income
    varied according to what suited his interest at any particular point in time.

[5]

In addition, the appellant took money from the childrens R.E.S.P. for
    his own purposes and although he agreed to repay the money he had only repaid
    $2,000 of the $5,500 he took. Irrespective of the issues of disclosure, the
    motion judge struck the pleadings on the basis of the appellants
    non-compliance with prior court orders and, having regard to the history and
    circumstances of the case, he was entitled to do so without giving the
    appellant any further opportunity to correct or explain his defaults.

[6]

In these circumstances we see no error in the motion judges exercise of
    discretion to strike the pleadings.  He correctly articulated the law and made
    findings of fact to support his application of it.

[7]

We wish to add that the reasons of Donohue J. indicate that, prior to
    trial, the appellant brought an unsuccessful motion before Murray J. to
    reinstate his pleadings.  This fact was not set out in the appellants factum, nor
    were any of the relevant documents, including a copy of the order dismissing
    the motion, in the appellants appeal book. In the absence of a record of the
    proceedings before Murray J. and his order, it is not clear that we had the
    jurisdiction to deal with the appeal from the order of Gray J.  Nonetheless, on
    the assumption that it was within our jurisdiction, we considered the appeal of
    Gray J.s order and, as indicated, dismiss it.

The appeal from the order of Donohue J.

[8]

The essential aspects of the appellants appeal from the order of
    Donohue J. involve: 1) the amount of income imputed to the appellant and
    respondent for support purposes; and 2) the vesting of title to the matrimonial
    home in the respondent.

Income imputed for support purposes

[9]

The trial judge made findings of fact for which there was ample evidence
    in the trial record.  We are not satisfied that she made any error in the
    amount of income that she imputed to the appellant. She imputed to him the
    amount of income he had been able to earn during a substantial period of the
    marriage. Although the appellant complains that the trial judge did not take
    into consideration his financial position, it is clear that she considered such
    financial disclosure as the appellant saw fit to make, including his bank
    statements, his tax returns and his deposition under questioning in November
    11, 2010. Notwithstanding counsels submissions respecting the variations in
    the appellants income, the figure the trial judge imputed was a figure that
    was in keeping with a long history of the appellants income and his capacity
    to earn income.

[10]

The
    issues of support are tied to the imputed income and we need say nothing more
    about those.

Vesting of title to the matrimonial home

[11]

The
    appellant contests the valuation put on the matrimonial home by the trial judge
    and submits she should have used a valuation of $3 million. The appellant
    further submits that the respondent did not seek a vesting order and that there
    was no basis for the trial judge to make the order and no jurisdiction to do
    so.

[12]

We
    disagree. The appellants own evidence showed valuations of the matrimonial
    home ranging from $1.5 million, to $1.85 million, to $3 million all as of
    November 7, 2008, the date of separation. In addition, there was evidence that
    the house needed work to be done to it.

[13]

In
    making her calculation vesting the husbands one-half interest in the
    matrimonial home in partial satisfaction of the appellants arrears and lump
    sum support obligations, the trial judge used the current appraisal of the home
    obtained by the wife in the amount of $1.65 million. This figure is supportable
    on the evidence and we would not interfere with it.

[14]

As
    to the vesting order, the respondent asked the trial judge to make such an
    order given the appellants history of non-payment and the trial judge was
    entitled to do so. Finally, the decision of this court in
Lynch v. Segal
(2006),
    82 O.R. (3d) 641, supports her jurisdiction to do so.

[15]

Accordingly,
    this appeal is also dismissed.

Costs

[16]

The
    respondent, who is self-represented, seeks costs of the appeals.  Having regard
    to the disbursements she incurred, and the submissions made, we hereby fix
    costs of the appeals in the amount of $2,500 inclusive of all applicable taxes,
    payable forthwith.

Released: May 7, 2013                                                    K.M.
    Weiler J.A.

KMW                                                                          E.E.
    Gillese J.A.

Alexandra
    Hoy J.A.


