



COURT OF APPEAL FOR ONTARIO

CITATION: Cortina v.
    Cortina, 2015 ONCA 750

DATE: 20151106

DOCKET: C59454

Blair, Hourigan and Brown JJ.A.

BETWEEN

Giuseppina Rossi Cortina

Applicant

(Appellant)

and

Pietro Joseph Cortina

Respondent

(Respondent)

Tony Sferruzzi, for the appellant

Deborah Ditchfield, for the respondent

Heard: October 28, 2015

On appeal from the judgment of Justice C. Lafrenière of
    the Superior Court of Justice, dated September 15, 2014.

ENDORSEMENT

[1]

Ms. Cortina appeals from the judgment of Lafrenière J. dated September
    15, 2014 providing, amongst other things, for the custody of the couples
    teen-aged children, the payment of child support and the equalization of property. 
    She submits that the trial judge erred in three respects:

(a) by awarding sole custody of the
    children to the respondent;

(b) by assessing child support based
    on the respondents 2012 income rather than his 2013 income; and

(c) by finding that certain
inter
    vivos
payments and testamentary bequests received by the respondent from
    his mother and his mothers estate were to be excluded from his net family
    property calculation.

[2]

The appellant also seeks to appeal from the trial judges decision
    awarding costs of the trial to the respondent in the amount of $95,498.39.

[3]

With the exception of the variation to the costs order discussed below,
    we do not accept the appellants submissions. They are almost entirely based on
    arguments of fact or at least of mixed fact and law and we see no palpable and
    overriding error (or, indeed, any error) in the trial judges careful and
    thorough review of the evidence (including her clear findings of credibility in
    favour of the respondents testimony and against the appellants), in the
    findings she made and inferences she drew, or in her application of the law to
    those findings.

Custody

[4]

The custody decision is supported on the evidence and properly reflects
    the trial judges finding on the conduct of the appellant as it pertained to
    the children and as it would impact the likelihood of a successful shared
    custody situation.  The trial judge was justified in granting full legal
    custody to the respondent in the circumstances. That said, her order carefully
    provides for shared custody time (alternate weeks living with the appellant and
    the respondent), and seeks to ensure that both parties have a meaningful input
    into the decision-making process regarding the childrens activities and best
    interests.

[5]

The trial judge made no error in this respect.

Child Support

[6]

The child support order was based on the shared custody arrangement and
    reflected the fact that the respondent has the children for more than 40% of
    the time.  There is no fixed formula for such a determination and it is a
    matter of judicial discretion to which deference is owed.

[7]

The trial occurred in October 2013.  In the circumstances, there was no
    error in our view in relying on the respondents established 2012 income of
    $109,000 for purposes of this calculation.  In any event, even if the 2013
    figure of $118,000 is taken, the difference is
de minimus
in the
    overall context of the support issues the trial judge had to determine.

[8]

The parties are required under the order to exchange financial
    information annually, and the award may be varied if there is a substantial
    change in circumstances.

[9]

We would not give effect to this ground of appeal.

Net Family Property/Exclusion of Gifts

[10]

The
    trial judge ordered that funds in the amount of $122,762.00 held in the
    respondents investment account were to be excluded from the calculation of his
    net family property on the basis that those funds represented the compilation
    of certain
inter vivos
payments received by the respondent from his
    mother and a bequest received by him from his mothers estate, together with
    the income earned on those amounts.

[11]

The
    trial judge found that these monies were excluded from the respondents net
    family property under s. 4(2) paragraph 1 of the
Family Law Act
R.S.O.
    1990, c. F.3 because they constituted property acquired by the respondent by
    gift or inheritance from a third person after the date of the marriage.

[12]

There
    is no dispute that the monies were deposited first into a joint account in the
    names of the appellant and the respondent, and then transferred to the
    respondents investment account, where they continued to grow for a period of
    about five years before the separation and valuation date.  There is also no
    dispute that the monies in the respondents investment account (with the
    exception of an inconsequential amount) can be traced back to the
inter
    vivos
payments and the respondents inheritance and the income earned
    thereon.

[13]

The
    appellant submits, however:

(a) that the trial judge erred in
    finding that the respondents mother intended the gifts and the inheritance to
    be to the respondent alone and not to the respondent and the appellant
    together; and,

(b) that the monies, once deposited
    into the joint account, lost their character as gifts and an inheritance, and
    therefore that the investment funds into which they were placed were not
    subject to exclusion from net family property.  She did not argue that by
    depositing the monies into the joint account the respondent had gifted her
    one-half of the monies.

[14]

There
    are at least three responses to these submissions.

[15]

First,
    there was ample evidence to support the finding that the respondents mother
    intended the monies to go to him alone (as well as other amounts to his
    siblings) and not to his spouse (or the siblings spouses).  The will was clear
    that the bequest of $30,000, and the income derived from it, were not to fall
    into community property in the event of a breakdown of the marriage.  The
    respondent and each of his siblings received
inter vivos
amounts from
    their mother by way of cheques that were in their names alone.  There was clear
    evidence from the respondent and his brother  accepted by the trial judge
    where it differed from the testimony of the appellant  that the cheques received
    by the respondent were intended by the mother to be a gift to him only.  While
    the appellant argues it makes no sense that certain smaller
inter vivos
gifts made to the respondent were made to him alone  since they were
    apparently made in consideration of the mother living in their home with the
    appellant and the respondent  it was open to the trial judge to conclude on
    the evidence that these payments fell into the same category as the others.

[16]

It
    was for the trial judge to weigh and assess the evidence.  We see no basis for
    interfering with her findings or the inferences she drew on this issue.

[17]

Secondly,
    the trial judge did not err, in fact or in law, in finding that the monies did
    not lose their character as gifts or an inheritance by virtue of their having
    been deposited first into the parties joint account.

[18]

Section
    14 of the
Family Law Act
,  provides that the fact that property is
    held in the name of spouses as joint tenants is proof,
in the absence of
    evidence to the contrary
, that the spouses are intended to own the
    property as joint tenants (emphasis added).  The trial judge reviewed all of
    the relevant evidence and concluded that the respondent had succeeded in
    establishing that there was evidence to the contrary.  To put it another way, she
    accepted the evidence favouring the finding that the respondent had rebutted
    the presumption that the
inter vivos
gift monies and the inheritance
    monies were intended to be owned jointly by the parties simply because the
    respondent had parked them in the joint account prior to transferring them to
    his wholly-owned investment account more than five years before the breakdown
    of the marriage.

[19]

This
    finding was open to her on the evidence.

[20]

Finally
     although this point was not pressed by the respondent  it seems to us that
    paragraph 5 of s. 4(2) of the
Family Law Act
is an answer to the
    appellants argument as well.  It provides for the exclusion from net family
    property of property, other than a matrimonial home, into which property
    referred to in paragraph 1 (i.e., property acquired by gift or inheritance) can
    be traced.  As pointed out earlier, the appellant concedes that the monies in
    the respondents investment account can be traced to the
inter vivos
gifts and the inheritance, albeit that she argued they were made to her and the
    respondent jointly. However, since the trial judge did not accept this argument
    and we would not disturb her finding on this point, the monies in the
    respondents investment account are traceable to the
inter vivos
gifts
    and the inheritance made to him alone.

Costs

[21]

The
    appellant seeks to overturn the costs award made by the trial judge as well. 
    We grant leave to appeal and would vary the costs order as set out below, for
    the reasons that follow.

[22]

The
    trial judge awarded costs against the appellant in the total amount of
    $95,498.39 inclusive of disbursements and HST.  Roughly $20,000 of that amount
    represented full recovery costs allowed for the period following the delivery
    by the respondent of an offer to settle on August 9, 2013, approximately two
    months before the trial.

[23]

Central
    to the trial judges conclusions in this regard appears to have been her view
    that the August 2013 Offer was open for acceptance until the commencement of
    the trial and therefore that it was an Offer that met the criteria of r. 18(14)
    of the
Family Law Rules
, O. Reg. 114/99 and that gave rise to the
    costs consequences flowing from that rule.

[24]

Respectfully,
    however, the trial judge was mistaken in this view.  The Offer was not open for
    acceptance until the commencement of trial.  It expired three days before the
    commencement of trial.  Accordingly, it did not meet the r. 18(14) criteria.

[25]

While
    it is true that a trial judge is entitled to give consideration to an offer to settle
    that does not comply with the
Family Law Rules
 see r. 18(16)  the
    trial judge did not approach her disposition as to costs from that perspective,
    and we do not know what her determination would have been had she done so.

[26]

The
    respondent sought costs at trial on a partial indemnity basis in the amount of
    approximately $76,000.  In our view, that is a reasonable amount, having regard
    to the length of the trial (8 ½ days), the conduct of the appellant at trial,
    the findings of the trial judge that the hours spent by respondents counsel
    and the rates charged were reasonable, and all of the other factors taken into
    account by the trial judge in reaching her decision (save for the Offer to
    Settle).

[27]

We
    vary the costs order accordingly.

Disposition

[28]

For
    all of the foregoing reasons, the appeal on the merits is dismissed.  Leave to
    appeal costs is granted and the costs award at trial is varied to the sum of $76,000
    inclusive of disbursements and HST.

[29]

Since
    the respondent was substantially successful, he is entitled to the costs of the
    appeal, which we fix in the amount of $17,500 all inclusive.

R.A. Blair J.A.

C.W. Hourigan J.A.

David Brown J.A.


