Aug 8, 2016

ONTARIO COURT OF APPEAL SUMMARIES (AUGUST 2-5, 2016)

D'Angelo v. Barrett, 2016 ONCA 605 (CanLII)

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

Counsel:

Julian W. Lipkowski, for the appellant

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

Keywords: Endorsement, Family Law, Family Law Act, Custody and Access, Net Family Property, Equalization, Constructive Trust, Standard of Review, Van de Perre v. Edwards, 2001 SCC 60

Facts:

The parties married in 2000 and had two children. They separated in 2011. The application judge ordered that the children’s primary residence be with the respondent wife, with generous access awarded to the appellant husband. The respondent was also ordered to pay the appellant $43,092 in equalization. The appellant challenges the application judge’s decision on custody and equalization. With respect to the custody decision, there was a report from the Office of the Children’s Lawyer (“OCL”) that recommended that the appellant be awarded sole custody. The appellant challenges the decision not to award him a constructive trust over half the matrimonial home. The trial judge did not do so because it was owned by the respondent’s mother, no claim was made against her and she was not a party to the proceeding. In addition, the appellant challenges the trial judge’s ruling on equalization when he allowed the respondent to deduct from her net family property the loans made by the respondent’s mother.

Issues:

  • Did the application judge err in awarding the respondent custody?
  • Did the application judge err in dismissing the appellant’s constructive trust claim against the mother’s 50% interest in the matrimonial home?
  • Did the application judge err in allowing the deduction of the mother’s loans in calculating the equalization payment?

Holding: Appeal dismissed.

Reasoning:

  • 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. 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.
  • The respondent’s mother was listed on title as a 50% owner of the matrimonial home. The appellant brought no claim against the respondent’s 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. It is undisputed that the respondent’s 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 respondent’s mother owned 50% of the home, and that only the 50% owned by the respondent was relevant for equalization purposes.
  • With respect to the loans, the appellant argued that the loans should not have been deducted because they were forgivable. However, at trial, the mother testified that she expected to be repaid and that she made a demand for repayment on September 19, 2012. The trial judge saw her as a credible witness and accepted her evidence. There is, therefore, no basis to interfere with the decision.

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