



COURT OF APPEAL FOR ONTARIO

CITATION: Ball Media Corporation v. Imola,
    2021 ONCA 833

DATE: 20211118

DOCKET: C68934

Fairburn A.C.J.O., Roberts J.A.
    and Van Melle J. (
ad hoc
)

BETWEEN

Ball Media Corporation

Plaintiff (Respondent)

and

Paige Imola,
Luigi Imola

and Zachary Imola

Defendants (
Appellant
)

Ray Di Gregorio and Christine Ellis,
    for the appellant

Michael A. Jaeger, for the respondent

Heard and released orally:
    November 12, 2021 by video conference

On appeal from the order of Justice Giulia
    Gambacorta of the Superior Court of Justice, dated November 18, 2020.

REASONS FOR DECISION


[1]

This is an appeal from an order that $136,434.87, held in court, be paid
    to the respondent in partial satisfaction of the summary judgment granted
    against Paige Imola. Luigi Imola is Paige Imolas husband and he is the
    appellant in this proceeding.

[2]

The monies held in court were the net proceeds from the sale of the
    Imola home. The house had been jointly owned by the Imolas until April 29,
    2009, when the appellant transferred his interest to his wife for the admitted
    purpose of insulating the property against a potential claim by the appellants
    former employer. The substance of that claim forms no part of this appeal.

[3]

Over six years after the appellant had transferred the property to his
    wife, the house was sold. By that time, Paige Imolas employer had started an
    action against her for civil fraud, conversion and misappropriation of funds.
    Therefore, the monies from the sale of the home were deposited into court with
    the Imolas consent on April 12, 2016, to the credit of the civil action
    brought by the respondent.

[4]

The underlying facts for the civil claim brought by Paige Imolas
    employer also gave rise to criminal charges. On May 25, 2017, Paige Imola was
    convicted of fraud and possession of stolen property and the appellant was
    acquitted. As part of the criminal sentencing proceeding, the court imposed a
    $500,000 restitution order against Paige Imola in favour of the respondent.

[5]

The respondent then successfully moved for summary judgment against
    Paige Imola. She did not oppose that relief. The respondent also obtained an
    order for the payment of all of the monies held in court from the sale of the
    home. It is that order that forms the subject of this appeal. The appellant
    contends that half of that money is his and, therefore, only 50% should have
    been given to the respondent.

[6]

The appellant maintains that he enjoys a resulting trust over 50% of the
    money held in court. He submits the motion judge erred in her application of
    the resulting trust doctrine. He argues that there was insufficient evidence
    from which to draw the inference that the appellant had gifted the house to
    wife. He also contends that the motion judge erred by proceeding on the
    erroneous premise that the presumption of resulting trust under s. 14 of the
Family Law Act
is only applicable in Family Law
    proceedings. He asks that the order be set aside and that 50% of the monies
    remain in court until the disposition of the respondents action.

[7]

We are not persuaded by these submissions.

[8]

We do not accept the appellants interpretation of the motion judges
    reasons. As we read her reasons, her reference to any rights that the appellant
    may have regarding the net proceeds in Family Law proceedings signified the
    basis on which she factually distinguished this particular case, rather than as
    a statement of legal principle as to when the presumption of resulting trust
    between spouses under s. 14 of the
Family Law Act
may be invoked.

[9]

In any event, the motion judges findings of fact rebut any presumption
    of a resulting trust between the appellant and his wife. The inferences drawn
    by the motion judge were available to her on the record. She clearly considered
    the material issue of the appellants intention in transferring his interest in
    the home to his wife and canvassed the evidence relevant to that issue. Her key
    findings include:

·

that the appellant willingly transferred title to his wife in
    2009 to avoid the possibility of exposure to creditors;

·

that he did not later take any steps to retransfer his interest
    when the danger of exposure had passed;

·

that he did not object to the net proceeds from the sale of the
    home being paid into court; and

·

that he did not raise any claim to the presumption of a resulting
    trust until the respondent sought payment out of the monies held in court.

[10]

These
    findings support the conclusion that the appellants transfer of his interest
    to his wife in their home was intended as a gift and that there was no
    resulting trust.

[11]

We
    see no basis to interfere with the motion judges order.

[12]

Accordingly,
    the appeal is dismissed.

[13]

The
    appellant shall pay to the respondent its costs of the appeal in the agreed
    upon amount of $5,250, inclusive of disbursements and applicable taxes, within
    30 days.

Fairburn
    A.C.J.O

L.B.
    Roberts J.A.

Van
    Melle, J. (ad hoc)


