



COURT OF APPEAL FOR ONTARIO

CITATION:
Naccarato
    v. Naccarato, 2022 ONCA 35

DATE: 20220117

DOCKET: C68945

Huscroft, Trotter and Coroza
    JJ.A.

BETWEEN

Kristy Frances Naccarato

Applicant (Respondent)

and

Dino Naccarato

Respondent (Respondent)

Matthew Kersten, for the appellant

Sutherland Law

R. Avery Zeidman, for the respondent Dino
    Naccarato

Annamaria Perruccio, for the respondent
    Kristy Frances Naccarato
[1]

Heard: January 14, 2022 by
    video conference

On appeal from the order of Justice Peter
    A. Douglas of the Superior Court of Justice, dated December 2, 2020, with
    reasons at 2020 ONSC 7442.

REASONS FOR DECISION

[1]

The appellant, a law firm, represented Ms. Kristy
    Frances Naccarato in family law proceedings against the respondent
Mr.
Dino Naccarato. Ms. Naccarato promised
    to pay the appellants solicitor fees from her entitlement to funds from the
    sale of the matrimonial home and she executed an irrevocable Authorization and
    Direction regarding payment. The home was sold. The proceeds of the sale were
    held in trust. After trial, the trial judge concluded that a net amount was
    owed to the respondent Mr. Naccarato, to be paid from Ms. Naccaratos share of
    the proceeds of the sale of the home. The trial judge also ordered Ms.
    Naccarato to pay the respondent Mr. Naccarato $96,230.11 in costs forthwith.

[2]

A dispute then arose regarding entitlement to
    the remaining funds that were being held in trust from the sale of the home. The
    trial judge succinctly described the nature dispute in the following way:

There can be no dispute that the monies
    remaining in trust ($96,230.11), are [Ms. Naccaratos] monies. The issues are
    to whom these monies should be paid and in [satisfaction] of what obligation. [The
    appellant claims entitlement to the funds in satisfaction of its unpaid fees
    owing by [Ms. Naccarato], while [respondent Mr. Naccarato] claims
    entitlement in satisfaction of his ordered entitlement to costs. Payment out
    will diminish [Ms. Naccaratos] obligation to one claimant or the other.

[3]

The appellant then moved for a charging order under s. 34 of the
Solicitors Act
, R.S.O. 1990, c. S.15, and the
    respondent Mr. Naccarato moved for an order amending the trial judges trial
    and costs orders to reflect that he was entitled to secure the costs awarded to
    him against the proceeds being held in trust.

[4]

The trial judge heard both motions. First, he dismissed the appellants
    motion for a charging order, concluding that the appellant did not meet the
    test for a charging order as the appellant was not instrumental in recovering
    or preserving property for Ms. Naccarato. Second, the trial judge found that
    the issue of security for trial costs was before him both at trial and during
    cost submissions, but that through inadvertence, it was not dealt with.
    Pursuant to r. 25(19)(c) of the
Family Law Rules
,
    O. Reg. 114/99, he amended the trial and costs orders to provide that the
    balance remaining after payment be retained in trust pending agreement between
    the parties or order of the court and to provide for the payment of costs to the
    respondent Mr. Naccarato from the monies in trust.

[5]

The appellant raises two issues on appeal.

[6]

First, it argues that the trial judge erred in finding that the
    appellant was not instrumental in the preservation/recovery of Ms.
    Naccaratos entitlement to the remaining net proceeds of the sale of the former
    matrimonial home. We disagree.

[7]

The trial judge referenced s. 34(1) of the
Solicitors
    Act
and identified the correct test. The trial
    judge concluded that the appellant was not instrumental in recovering or
    preserving the funds from the sale of the home because there was never an issue
    regarding ownership of the property; there was no need to recover or preserve
    the property as it was always registered solely in Ms. Naccaratos name. The
    trial judge also found that even if he was wrong on the issue of
    instrumentality he would not have granted the order or lien in the
    circumstances of the case. A s. 34 order is a discretionary order. We see no
    error in the trial judges exercise of his discretion and would dismiss this
    ground of appeal.

[8]

Second, the appellant contends that the trial
    judge erred in his application of r. 25(19)(c) of the
Family Law Rules
because the respondent Mr. Naccarato did not seek such relief before the trial
    judge in any material or pleadings.

[9]

We do not accept the appellants submission.
Rule
    25(19)(c) of the
Family Law Rules

permits a court to change an order that needs to be changed
    to deal with a matter that was before the court but that it did not decide
.

[10]

In
    the present case, the trial judge found that the issue of security for costs
    was before him during the trial and that through obvious inadvertence he did
    not rule on the issue. We see no basis to interfere with these findings. Having
    found that he inadvertently did not deal with the issue that was before the
    court, the trial judges decision to amend pursuant to r. 25(19)(c) was
    appropriate and consistent with the primary objective of the
Family Law Rules
which is to enable the court to deal
    with cases justly. We see no merit to this ground of appeal.

[11]

For
    these reasons, the appeal is dismissed. The respondent Mr. Naccarato is
    entitled to costs in the amount of $8,500 all inclusive.

Grant Huscroft J.A.

Gary Trotter J.A.

S. Coroza J.A.





[1]
Annamaria Perruccio appeared but made no written or oral submissions
    on behalf of the respondent Kristy Frances Naccarato.


