Dec 27, 2018

BLANEY’S APPEALS: ONTARIO COURT OF APPEAL SUMMARIES (DECEMBER 17 – 21, 2018)

Gionet v. Pingue, 2018 ONCA 1040 (CanLII)

[Sharpe, Paciocco and Harvison Young JJ.A.]

COUNSEL:

S. Lein, for the appellant

G. G., acting in person via teleconference

Keywords: Family Law, Property, Presumption of Resulting Trust, Equalization of Net Family Property, Unequal Division of Property, Civil Procedure, Trials, Adjournments, Self-Represented Litigants, Family Law Act, R.S.O. 1990, c. F. 3, s. 5(6), Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, Best v. Best, [1999] 2 S.C.R. 868, Boaden Catering Limited v. Real Food for Real Kids Inc., 2017 ONCA 248, Dujardin v. Dujardin Estate, 2018 ONCA 597, Davids v. Davids (1999), 125 O.A.C. 375

FACTS:

The respondent and appellant were married on August 10, 2003, and separated on September 2, 2013. The appellant eared a higher income for most of the marriage.

The only issue at trial was the equalization of net family property (“NFP”) which turned mainly on the value of the matrimonial home and whether it was held beneficially by both parties, or whether the appellant was the sole owner because she alone was on title as the owner. The trial judge found that the respondent was a beneficial owner of the matrimonial home, and thus ordered the respondent to pay the appellant an equalization payment of $59,535.98.

The appellant appealed that decision on four grounds.

ISSUES:

(1) Did the trial judge err in finding that the respondent was a beneficial owner of the matrimonial home?

(2) Did the trial judge err in failing to grant an adjournment requested by the appellant four days into the trial?

(3) Did the trial judge err in failing to meet her duty to assist the appellant as a self-represented litigant?

(4) Did the trial judge err in failing to award the appellant an unequal division of the net family property pursuant to s. 5(6) of the Family Law Act, R.S.O. 1990, c. F. 3 (the “Act”)?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. Both the Act and leading Canadian jurisprudence state that when there are questions of ownership of property between spouses, the decision maker must apply a presumption of a resulting trust. To that end, the appellant did not rebut this presumption. Moreover, the fact that the appellant earned a higher income during the course of the marriage does not warrant an unequal division of the matrimonial property upon marriage breakdown. It was the legislature’s intent to assume equal contribution during the course of the marriage, and the trial judge gave effect to that intent.

(2) No. The decision to deny an adjournment is discretionary and will only be interfered with if the trial judge failed to take account relevant factors and exercised his or her discretion unreasonably, such that the discretion is contrary to the interests of justice.

There was no reason to interfere with the trial judge’s decision to refuse to adjourn the trial. The appellant had ample notice of the trial dates, and elected to call on expert witness. This demonstrated that she was aware of the need to ensure her witnesses were available for trial.

(3) No. In ensuring that a self-represented litigant has a fair trial, the trial judge must treat the litigant fairly and attempt to accommodate their unfamiliarity with the trial process, in order to permit them to present their case. To that end, the trial judge made significant and sustained efforts throughout the course of the trial to assist the appellant. The trial judge also provided detailed answers to the appellant’s questions, explained various aspects of trial procedure and the rules of evidence, and allowed for brief adjournments to facilitate settlement discussions and document review.

(4) No. The case law surrounding the interpretation of s. 5(5) of the Actstates that the test to be applied in ordering an unequal division of NFP is not “mere unfairness” but a “shock to the conscience”. That was not the case in this situation. The appellant’s argument that, because she contributed more to the asset acquired in the course of the marriage, she should be entitled to more upon the marriage breakdown, is antithetical to the scheme of marital partnership in the Act.

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