



COURT OF APPEAL FOR ONTARIO

CITATION: D'Angelo v. Barrett, 2016 ONCA 605

DATE: 20160802

DOCKET: C59705

Hoy A.C.J.O., Brown and Huscroft JJ.A.

BETWEEN

Donatella DAngelo

Applicant

(Respondent in appeal)

and

Christopher Wayne Barrett

Respondent

(Appellant in appeal)

APPLICATION UNDER Parts I, II and
    III of the
Family Law Act

Julian W. Lipkowski, for the appellant

Gary S. Joseph and Meghann P. Melito, for the respondent

Heard: July 18, 2016

On appeal from the judgment of Justice E. Ria Tzimas of
    the Superior Court of Justice, dated November 5, 2014.

ENDORSEMENT

[1]

The parties married in 2000 and had two children. They separated in
    2011.

[2]

Following a nine-day trial, the application judge ordered that the
    childrens primary residence will be with the respondent, with generous access
    awarded to the appellant; that s. 7 expenses are to be shared between the
    appellant and the respondent on a 65-35% basis; and that the respondent pay the
    appellant $43,092 in equalization. The application judge determined that the
    appellant could not advance a constructive trust claim against the respondents
    mother in respect of her interest in the matrimonial home because the appellant
    ought to have commenced a separate claim against her.

[3]

The appellant challenges the application judges decision on custody and
    equalization.

Custody and access

[4]

The application judge found that the best interests of the children were
    in remaining at the matrimonial home, where they have a stable environment. She
    found, further, that the respondent is a fit parent and is able to provide the
    children with the guidance, education, and the necessaries of life. She
    rejected the appellants narrative that the respondent was missing in action
    and was unable to make decisions for their children.

[5]

The appellant argues that the application judge wrongly disregarded the
    report of an investigator from the Office of the Childrens Lawyer (OCL), who
    recommended that the appellant be awarded sole custody with access to the
    respondent.

[6]

We disagree.

[7]

The decisions of trial judges on custody and access are entitled to a
    high degree of deference. An appellate court is not to overturn a custody order
    in the absence of a material error, a serious misapprehension of the evidence,
    or an error in law:
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2
    S.C.R. 1014.

[8]

It was for the application judge to determine the best interests of the
    children, and the report of the investigator of the OCL was simply evidence in
    this regard. The application judge was under no obligation to accept the report
    or the recommendations of the investigator, either in whole or in part.

[9]

The application judge gave extensive reasons for rejecting the
    investigators recommendation, running for several pages in her decision. The
    application judge considered the fact that the investigator wrote her report
    approximately 15 months prior to the conclusion of the trial in this case. As
    it was not updated, it did not reflect counselling and parenting sessions that
    the respondent had undertaken. Nor did it reflect the respondents willingness
    to consider joint parenting or a joint custody agreement. Further, the application
    judge found that the investigator was biased against the respondent.

[10]

There was ample evidence supporting the respondents parenting,
    including evidence from three independent counsellors and social workers. The application
    judge gave detailed and careful consideration to all of the evidence in
    reaching her decision. Significantly, she found that the appellant was
    determined to take whatever liberties he could with the truth to obtain sole
    custody of his daughters.

[11]

The appellant has not demonstrated that the application judge made any error
    in this case. There is no basis for this court to interfere with her decision
    on custody.

Equalization

The matrimonial home

[12]

The application judge found that the respondents mother lent
    approximately $70,000 to the respondent to enable the purchase of a home in
    Maple in 1999 and that the mothers name was listed on title as a 50% owner of
    the home. The appellant moved into the Maple home in 2000 and it was sold in
    2002. The proceeds of the sale went towards the purchase of a new matrimonial
    home in Brampton, and again the respondents mother was listed on title as a
    50% owner.

[13]

Although the appellant did not claim a constructive trust in his Answer with
    respect to the mothers interest in the matrimonial home in Brampton, he
    advanced a constructive trust claim at trial. The application judge accepted
    the respondents submission that the court did not have jurisdiction to make
    any ruling regarding the mothers interest in the matrimonial home because the
    appellant had not made a claim against her; she was thus not a party to the
    proceedings. The application judge stated that the mothers testimony at trial
    was not the equivalent of being a party to a proceeding and defending a claim.

[14]

As a result, the application judge concluded there was no need to review
    the evidence concerning the mothers loans to the respondent. In calculating
    the respondents net family property for equalization purposes, the application
    judge included only 50% of the value of the Brampton matrimonial home.

[15]

The appellant submitted that the application judge erred by not
    determining his constructive trust claim against the mother. However, the
    thrust of his argument was that the respondents mother was merely a lender,
    although possibly a secured lender, and that her registration on title is not
    relevant in determining the value of the respondents share of the matrimonial
    home.

[16]

The argument, in short, is that a court can find that the respondent
    owns the matrimonial home for the limited purpose of equalization without
    affecting her mothers title and, as a result, it does not matter that the
    respondents mother was not added as a party to the action. The appellant
    submits that the respondent should have been listed as the 100% owner of the
    Brampton home and the $70,000 advanced by the mother as a loan should be
    deducted from the value of the home before equalization.

[17]

We disagree.

[18]

As to the constructive trust submission, the appellant brought no claim
    against the respondents mother. She was not a party to the proceedings against
    the respondent and no order affecting her 50% ownership interest in the home could
    be made. The application judge correctly concluded that testifying at trial was
    not the same as being a party to a proceeding and defending a claim.

[19]

As to the equalization claim, as this court stated in
Korman v.
    Korman
,
2015 ONCA 578, 126 O.R. (3d) 561,
at
    para. 25, 
property entitlements must be
    determined before they can be equalized: see also
Martin v. Sansome
,
    2014 ONCA 14, 118 O.R. (3d) 522, at para. 47, citing
Rawluk v. Rawluk
,
    [1990] 1 S.C.R. 70. It is undisputed that the respondents mother contributed
    towards the purchase of the home and is listed on the title as a joint owner. The
    appellant did not bring a claim to challenge her property entitlement. Therefore,
    the application judge did not err in finding that the respondents mother owned
    50% of the home, and that only the 50% owned by the respondent was relevant for
    equalization purposes.

Various loans

[20]

The trial judge held that the respondents mother made various additional
    loans to the respondent totalling $52,326.46. As a result, the trial judge
    deducted this amount from the value of the respondents net family property.

[21]

The appellant argues that this money should not be deducted because the
    loans were forgivable.

[22]

Again, we disagree.

[23]

Although the application judge could have provided a better explanation
    for deducting the value of the loans from the respondents net family property,
    her reasons for doing so are implicit in the record and there is a rational
    basis underlying the determination. The loans were evidenced by promissory
    notes signed by the respondent, her mother, and a witness. The mother made a
    demand for repayment on September 19, 2012. Further, the mother, whom the
    application judge commended for her honest demeanour, testified that she
    expected to be repaid, even though this had not yet occurred.

[24]

There is no basis to interfere with the application judges decision.

Disposition

[25]

The appeal is dismissed.

[26]

The respondent is entitled to costs of the appeal, fixed by agreement of
    the parties at $10,000, inclusive of taxes and disbursements.


Alexandra Hoy A.C.J.O.


David
    Brown J.A.

Grant
    Huscroft J.A.


