



COURT OF APPEAL FOR ONTARIO

CITATION: Fogel v. Chiriatti, 2017 ONCA 1000

DATE: 20171218

DOCKET: C62429

MacPherson, Pepall and Paciocco JJ.A.

BETWEEN

Karen Fogel

Applicant (Respondent)

and

Giovanni Chiriatti

Respondent (Appellant)

Anthony Di Battista, for the appellant

Grant Gold, for the respondent

Heard: December 13, 2017

On appeal from the judgment of Justice Nancy L. Backhouse
    of the Superior Court of Justice, dated June 16, 2016, with reasons reported at
    2016 ONSC 3986, and the costs order, dated September 28, 2016.

REASONS
    FOR DECISION

[1]

The appellant, Giovanni Chiriatti, appeals from the June 16, 2016
    judgment of Backhouse J. granting the respondent, Karen Fogel, sole custody of
    the parties son.  He also appeals from the trial judges matrimonial home valuation,
    division of the notional proceeds of sale, and treatment of the parties
    chattels.  Lastly, he seeks leave to appeal the $125,000 costs award made in favour
    of the respondent.

[2]

The parties cohabited for 14 years and separated in May 2014.  They have
    one child, a son, born July 5, 2007. At the time of trial, the respondent was 36
    years of age, the appellant was 53, and their son was nine.

[3]

On appeal, the appellant raises seven issues.

[4]

First, the appellant challenges the award of custody in favour of the
    respondent, saying that the trial judge failed to consider relevant evidence,
    considered irrelevant evidence, and misapplied the best interests of the child
    test.  He submits that the trial judge inappropriately found that he was
    opposed to a psychoeducational assessment for their son in circumstances where
    he had received little prior notice of the scheduled assessment, simply wished
    to canvas different options, and was given an inadequate opportunity to provide
    an informed consent for the assessment.  In a similar vein, he submits that the
    trial judges finding relating to their sons tooth extraction focussed on the
    wrong issue.  He also submits that the trial judge erroneously determined that
    both the psychoeducational assessment and the tooth extraction were necessary,
    rather than determining what parenting arrangement would be in the sons best
    interests.  Additionally, the appellant challenges the trial judges rejection
    of his proposal for a week about access arrangement, which he argues was
    inconsistent with the trial judges finding that he was an important part of
    his sons life.  He complains that the trial judge also failed to consider that
    the stability in the respondents living arrangements was attributable to him,
    because he had consented to the respondent having exclusive possession of the
    home.

[5]

We do not accept these submissions.

[6]

The trial judge found the appellant to be lacking in any credibility and,
    in contrast, accepted the evidence of the respondent.  This determination was
    open to the trial judge to make.  Fundamentally, the appellant failed to put
    his sons best interests ahead of his own.  The trial judge did not make a
    determination on the necessity of either a psychoeducational assessment or a
    tooth extraction.  Rather, she used the appellants refusal to agree as
    evidence that he put his conflict with the appellant ahead of the needs of his
    son.  She relied not only on the evidence of the respondent, but on that of two
    independent witnesses as well.  She found that the respondent is the better
    parent and better suited to make decisions for the child.  The finding that the
    appellant is an important part of his sons life and his consent to exclusive
    possession did not preclude the granting of custody to the appellant.  The
    trial judge properly applied the best interests of the child test and concluded
    that those interests were best met by a custodial order in favour of the
    respondent.

[7]

This was not an appropriate case for joint custody.  The respondent
    provided a stable environment and had been the primary parent both before and
    after separation.  Significantly, the parties acknowledged that they could not
    communicate on substantive issues relating to their son.  The trial judges reasons
    were well supported by the facts, and her decision is discretionary in nature
    and entitled to deference:
Van de Perre v. Edwards
, 2001 SCC 60, [2001]
    2 S.C.R. 1014, at para. 13.  We see no reason to interfere with the judgment as
    it relates to custody and access.

[8]

Second, the appellant submits that the trial judge erred in her
    valuation of the matrimonial home.

[9]

We reject this submission.  The trial judge considered the evidence of
    the two real property valuation experts put forward by the parties and
    preferred the opinion of the respondents expert over that of the appellant. 
    The trial judge did not substitute her opinion for that of the experts. 
    Rather, she weighed the evidence about the value of the home with the expert
    evidence regarding a comparable property and the impact of a swimming pool. 
    She accepted the opinion of value proffered by the respondents expert, which
    she was entitled to do.  In any event, the upward adjustment she made favoured
    the appellants position.

[10]

Third, the appellant submits that the trial judge improperly permitted
    the respondent an adjustment resulting from the respondents $100,000 payment
    towards the property.  He argues that the consent order of Wilson J. dated May
    16, 2016 finalized the apportionment of the respective shares of the home and
    the $100,000 was credited to the respondent at paragraph 3(a) of the consent
    order.  In oral argument, he conceded that the adjustment could have been made
    by Wilson J. but not by the trial judge; by that time, it was too late.

[11]

Paragraph 3(a) of Justice Wilsons May 16, 2016 order provided that the
    respondent was to receive $100,000, being the prepayment of the mortgage paid
    by the respondent out of funds she received from an inheritance, from the
    average of the two appraised values of the property as at May 30, 2014.  The
    mortgage, line of credit, and notional real estate commission of four percent
    were also to be deducted from the average of the appraised values.  Justice
    Wilson then provided that the balance was to be notionally divided between the
    parties, however, they each would be entitled to seek further adjustment from
    the others respective notional share of the proceeds subject to proper documentary
    proof.  At trial, the respondent called expert evidence on an additional
    adjustment of $40,951.  The trial judge accepted this expert evidence and
    ordered the adjustment.  Based on the language of Wilson J.s order, further
    adjustments were permissible. We would not give effect to this ground of
    appeal.

[12]

Fourth, the appellant takes issue with the trial judges order that an
    amount reflecting ten years of child support and s. 7 expenses under the
Federal
    Child Support Guidelines
, S.O.R./97-175 be secured to the respondent as a
    fund from the appellants share of the notional house proceeds.  The appellant
    submits that the trial judge failed to give proper reasons, awarded security in
    spite of the fact that the appellants support payments were up to date prior
    to trial, and that he had contributed $8,000 to his sons private school fees. 
    She also failed to consider the appellants evidence at trial that he would pay
    support.  He complains that he is unable to benefit from any present value or
    any future increase in value of the $211,560 that is secured by the order.

[13]

We would not give effect to this ground of appeal.  The appellant had
    paid no child support since separating from the respondent in May 2014 other
    than some private school and camp fees.  He also stopped paying support
    contrary to the terms of an order to which he had consented after only three
    months, and failed to pay outstanding private school fees and s. 7 expenses
    despite being ordered to do so.  It was only when the parties attended a court
    conference immediately before the trial that he made a payment on account of
    child support arrears and outstanding school fees. The evidence of
    non-compliance supported the trial judges conclusion that there was no
    likelihood that the appellant would pay child support or s. 7 expenses in the
    future, and that security in the form of a fund was required.  Given that the
    order was for security (as opposed to a lump sum payment), the appellants
    remaining arguments have no merit. We would not give effect to this ground of
    appeal.

[14]

Fifth, the appellant submits, and the respondent accepts, that the trial
    judge made a $15,156 calculation error relating to child support arrears.  The
    error was only noticed by the parties on January 17, 2017, when the motion for
    security for costs for the appeal was brought.  Paragraph 8 of the judgment shall
    be amended by deleting the sum of $33,731 and substituting the sum of $18,575
    ($33,731 less $15,156 = $18,575).  This is based on the number of months
    between the date of separation and the date of judgment being 25 months rather
    than the 37 months calculated by the trial judge, which provided the respondent
    with an extra 12 months or $15,156 of arrears of support.

[15]

Sixth, the appellant submits that the trial judge erred in neglecting to
    address the division of chattels despite being requested to do so.  He
    maintains that he made a claim for division of chattels in his pleadings.

[16]

We would not give effect to this ground of appeal.  The trial judge
    considered the four financial statements filed by the appellant.  The
    appellants itemization of chattels was only included in one of the four
    financial statements.  The trial judge found that there was little
    documentation to support who had paid for the items claimed by the appellant, what
    had been paid, or current values.  On the basis of the evidence before her, it
    was open to the trial judge to disallow this claim.

[17]

Lastly, we see no reason to interfere with the trial judges discretionary
    costs award.  She properly considered the relevant factors set out in the
Family
    Law Rules
, O. Reg. 114/99.  Although the respondent sought full indemnity
    costs of approximately $237,000, the trial judge reduced the claim to $125,000. 
    She was entitled to do so, and her costs award is owed considerable deference:
McNaughton
    Automotive Ltd. v. Co-operators General Insurance Co
., 2008 ONCA 597, O.R.
    (3d) 365, at para. 27.

[18]

For these reasons, the appeal is dismissed, except that paragraph 8 of
    the June 16, 2016 judgment is to be amended to replace the sum of $33,731 with
    the sum of $18,575.

[19]

The appellant shall pay the respondent her costs of the appeal fixed in
    the amount of $20,000 inclusive of disbursements and applicable tax, on a
    partial indemnity scale.

J.A. MacPherson J.A.

S.E. Pepall J.A.

David M. Paciocco J.A.


