COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Martin, 2022 ONCA 157

DATE: 20220218

DOCKET: C69776

Fairburn A.C.J.O., Miller and George JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Malcolm Martin

Appellant

Marianne Salih and Jeffery Couse, for the appellant

Stephanie A. Lewis, for the respondent

Heard: In writing

On appeal from the sentence imposed by Justice Kofi N. Barnes
    of the Superior Court of Justice on June 30, 2021, with reasons reported at 2021
    ONSC 4711.

REASONS FOR DECISION

[1]

The appellant and a co-accused were alleged to have committed a serious
    aggravated assault. After a preliminary inquiry, the co-accused pleaded guilty
    and received a 13-month custodial term. The appellant continued to trial. The
    appellant was convicted after a three-day, judge-alone trial in the Superior
    Court of Justice. He was then sentenced to a 21-month custodial term, which reflected
    a three month reduction from an otherwise fit sentence to account for what the
    sentencing judge described as onerous bail conditions.

[2]

This is an appeal from sentence predicated on a single issue: did the sentencing
    judge err in his application of the parity principle?

[3]

As described by the sentencing judge, in an entirely unprovoked attack,
    the appellant and his co-accused beat a defenceless man outside of a bar. That
    attack included sucker punching the victim and stomping on him with their feet.
    The victim suffered serious injuries, including a fractured orbital bone and
    bleeding to the brain. Not only was he hospitalized for four days, but his
    injuries were long lasting, with serious professional and personal implications.

[4]

At the sentencing proceeding, the court was informed through oral
    submissions that the appellants co-accused, who apparently has a criminal
    record, the content of which is unknown, received a 13-month sentence. The
    co-accuseds guilty plea was entered after the preliminary inquiry.

[5]

The appellant argues that the sentencing judge erred by failing to give
    effect to the parity principle when imposing the sentence. While the appellant
    acknowledges that the sentencing judge properly adverted to and described the
    parity principle, he contends that, on the face of the sentences imposed and
    the purported gulf between them, there is a clear misapplication of that
    principle. Given their almost identical roles in the crime, the appellant
    maintains that his sentence should not have been almost twice that of his
    co-accused, particularly since his co-accused has a criminal record and he does
    not. Therefore, he asks this court to set aside his sentence and impose a
    sentence of 15-months in duration. We decline to do so.

[6]

The sentencing judges reasons are lengthy. Those reasons demonstrate a
    good grasp of the parity principle. They also demonstrate that the sentencing
    judge was aware of the sentence imposed on the co-accused and alert to its
    relevance in the context of his sentencing decision. The sentencing judges
    reasons also demonstrate that he understood that the fact that the appellant
    chose to have a trial, as was his right, could not be used as an aggravating
    factor on sentence. The sentencing judge made clear that the absence of a
    guilty plea simply meant that the appellant did not have access to an otherwise
    mitigating factor that his co-accused could lay claim to.

[7]

Accordingly, the issue on this appeal comes down to whether the sentence
    imposed, when compared with that of the co-accused, offends the principle of
    parity. It does not.

[8]

The parity principle required the sentencing judge to consider both the
    sentence imposed upon the co-accused, as well as sentences imposed on others in
    like circumstances. He also had to take into account all other sentencing
    factors operative in this case, including the predominant sentencing principles
    of denunciation and deterrence.

[9]

In our view, after engaging in a lengthy discussion of all the operative
    sentencing principles, the sentencing judge reached a conclusion that he was
    entitled to arrive upon:

This attack was unprovoked, violent and vicious. The victim
    continues to suffer from his injuries. [The appellants] excellent prospects
    for rehabilitation and crime free record while on bail is not discounted;
    however, the paramount sentencing principle in this case is denunciation and
    deterrence.

Upon considering all of the circumstances of [the appellant]
    and the offence, which of necessity includes the aggravating and mitigating
    factors in this case,
including the sentence received by
    his co principal after a guilty plea
, I conclude that the appropriate sentence
    is one of two years in the penitentiary. Had the sentence qualified for
    consideration as a conditional sentence, such an order would have been
    inconsistent with the principles of denunciation and deterrence.

[The appellant] shall receive credit of three months for a
    lengthy crime-free and emotionally onerous time spent on bail. In effect, he
    shall serve an additional sentence of 21 months in custody. [Emphasis added.]

[10]

It
    was open to the sentencing judge to reach this conclusion. We see no error in
    principle and the sentence is not demonstrably unfit. Deference is operative.

[11]

Leave
    to appeal sentence is granted, but the appeal is dismissed.

Fairburn A.C.J.O.

B.W. Miller J.A.

J. George J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Carvalho v. Amorim, 2022 ONCA 158

DATE: 20220218

DOCKET: C69476

Trotter, Coroza and Favreau JJ.A.

BETWEEN

Daniel Carvalho

Applicant (Respondent)

and

Maria Amorim
and
The Labourers Pension
    Fund of Central and Eastern Canada

Respondents (
Appellant
/
Respondent
)

Patrick Di Monte, for the appellant

Eli Smolarcik, for the respondent Daniel Carvalho

Demetrios Yiokaris, for the respondent The
    Labourers Pension Fund of Central and Eastern Canada

Heard: February 14, 2022 by video conference

On appeal from the judgment of Justice William S. Chalmers
    of the Superior Court of Justice, dated April 16, 2021.

REASONS FOR DECISION

[1]

After hearing submissions on behalf of the appellant, Maria Amorim, we
    advised the parties that the appeal would be dismissed with reasons to follow.
    These are our reasons.

[2]

Ms. Amorim appeals a judgment declaring that she does not meet the
    eligibility requirements of a spouse under s. 44 of the
Pension Benefits
    Act
, R.S.O. 1990, c. P.8. The application judge based his decision on a
    finding that Ms. Amorim and the respondent, Daniel Carvalho, were living separate
    and apart at the time Mr. Carvalho started receiving disability benefits from
    the respondent, The Labourers Pension Fund of Central and Eastern Canada (the
    Pension Fund).
[1]
The effect of this finding is that Ms. Amorim is not entitled to survivor pension
    benefits and that Mr. Carvalho is entitled to life-only benefits, which are
    paid out at a higher rate than joint and survivor benefits.

[3]

We see no error in the application judges decision.

[4]

Mr. Carvalho and Ms. Amorim married in 1980. At the time, they were both
    residents of Portugal. They had one child together. Mr. Carvalho moved to
    Canada in 1985. Ms. Amorim joined Mr. Carvalho in Canada in 1990, but she
    returned to Portugal two months later. Mr. Carvalho traveled to Portugal from
    time to time, but he worked and lived in Canada while Ms. Amorim lived in
    Portugal. The couple commenced divorce proceedings in Portugal during 2007-2008,
    and they were formally divorced on July 14, 2009.

[5]

In August 2002, Mr. Carvalho applied to the Pension Fund for a
    disability pension. At the time, he advised the Pension Fund that he was
    legally married, but provided a waiver allegedly signed by Ms. Amorim waiving
    her right to a spousal survivor pension.

[6]

In 2008, at the time of the divorce proceedings, Ms. Amorim appointed
    her brother, Leonel Amorim, as her attorney for property in Canada. Mr. Amorim contacted
    the Pension Fund to enquire about whether Mr. Carvalho had applied for a
    pension. In the context of those communications, Mr. Amorim advised the Pension
    Fund that Ms. Amorim had never signed a spousal waiver. The Pension Fund
    subsequently reduced Mr. Carvalhos monthly payments to the joint and survivor
    benefit rate and notified him that he would be required to repay the
    overpayment unless he could prove that Ms. Amorim signed the waiver or that he
    and Ms. Amorim were living separate and apart when his pension began.

[7]

Mr. Carvalho brought an application to the Superior Court. The two
    issues to be decided on the application were 1) whether Mr. Carvalho and Ms.
    Amorim had been living separate and apart at the time Mr. Carvalho started
    receiving his pension and, alternatively, 2) whether Ms. Amorim signed the
    spousal waiver.

[8]

On the first issue, the application judge found, based on the evidence
    before him, that Mr. Carvalho and Ms. Amorim were living separate and apart at
    the time Mr. Carvalho started receiving pension benefits. On the second issue,
    the application judge found that Ms. Amorim did not sign the waiver. Nevertheless,
    given his finding that Mr. Carvalho and Ms. Amorim were living separate and
    apart at the relevant time, the application judge made declarations that Ms.
    Amorim did not meet the eligibility requirements of a spouse under the
Pension
    Benefits Act
and that Mr. Carvalho was entitled to pension benefits on a
    life-only basis. On the issue of costs, the application judge found that this
    was an appropriate case for an order of no costs, given that Mr. Carvalho
    misrepresented to the Pension Fund that Ms. Amorim had signed the spousal
    waiver.

[9]

In seeking to appeal the application judges decision, Ms. Amorim argues
    that the application judge erred in finding that she and Mr. Carvalho were
    living separate and apart in 2002.

[10]

On
    appeal, errors of law are to be reviewed on a standard of correctness. Factual
    findings and issues of mixed fact and law are owed deference and are only to be
    overturned if the application judge made a palpable and overring error:
Housen
    v. Nikolaisen
, 2002 SCC 33, at paras. 8, 10.

[11]

As
    conceded by Ms. Amorim, the application judge started with the correct legal
    test. Section 44(1) of the
Pension Benefits Act
provides that every
    pension paid to a member who has a spouse is to be paid out on a joint and
    survivor pension basis unless, pursuant to s. 44(4)(b), the member and his or
    her spouse are living separate and apart on the date that the first pension
    payment is due.
[2]
In determining whether Mr. Carvalho and Ms. Amorim were living separate and apart
    at the relevant time, the application judge turned to the case law under s. 8
    of the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.). He described the following
    indicia, derived from
Greaves v. Greaves
(2004), 4 R.F.L. (6th) 1
    (Ont. S.C.), at para. 34, as relevant to his determination of whether the
    parties were living separate and apart:

a.

Physical
    separation, however, this is not the deciding factor as spouses may remain
    together for economic reasons;

b.

A withdrawal by
    one or both spouses from the matrimonial obligation with the intent of
    destroying the matrimonial consortium or of repudiating the marital
    relationship;

c.

the absence of
    sexual relations however this is not a conclusive factor;

d.

discussions of
    family problems and communications between the spouses;

e.

presence or
    absence of joint social activities; and

f.

the true
    intent of a spouse as opposed to a spouses stated intent.

[12]

The
    application judge went on to review the evidence from both parties about their
    living arrangements at the relevant time. Ultimately, he summarized his factual
    findings as follows:

I conclude that at the time Mr. Carvalho first began receiving
    his disability pension he and Ms. Amorim were living separate and apart. They
    were physically separated. From 1990, Mr. Carvalho lived in Canada and Ms.
    Amorim lived in Portugal. After 1990, Ms. Amorim did not travel to Toronto.
    There is also no evidence that they participated in each others lives in any
    meaningful way.

I acknowledge that parties can be in a marital relationship
    even if they live in separate locations:
Greaves v. Greaves
, at para.
    34. It is my view, however, that there must be evidence of a common purpose,
    involvement in each others lives, and communication either in-person or by
    letters, texts, e-mails or phone. Here, there is no evidence of any sustained
    or significant interaction between the parties at the time Mr. Carvalho began
    receiving the disability pension in August 2002.

[13]

We
    see no reviewable errors in the application judges findings of fact. They are
    supported by the record and, as set out above, his factual findings are
    entitled to deference.

[14]

Ms.
    Amorim takes issue with some of the application judges factual findings. For
    example, she argues that he did not consider the contradictions in Mr. Carvalhos
    evidence regarding when the parties stopped having sexual relations. However,
    it is evident from the application judges conclusions that he based his
    decision on the overall circumstances of the relationship between the parties. He
    considered the fact that the parties had not lived in the same location for
    many years and that they had little regular ongoing contact. This
    uncontradicted evidence supported his conclusion that the parties did not
    participate in each others lives in any meaningful way.

[15]

Ms.
    Amorim also argues that there was no change in the parties relationship from
    the mid-1990s to 2007-2008, when Mr. Carvalho initiated divorce proceedings,
    thereby suggesting that they were not living separate and apart in 2002.
    However, the issue for the application judge was not whether there had been any
    change in the relationship prior to 2002, but whether the parties were living
    separate and apart at that time.

[16]

The
    list of indicia for determining whether parties are living separate and apart
    is not formulaic and no individual factor is determinative. In this case, the
    application judge considered the totality of the evidence. He was aware that
    there were contradictions between the parties evidence. However, looking at
    all the circumstances, he found that they were living separate and apart in
    2002. His conclusion is entitled to deference and is supported by the record.

[17]

The
    appeal is therefore dismissed.

[18]

Despite
    being unsuccessful on the appeal, Ms. Amorim asks that no costs be awarded
    against her. She argues that she did not choose to become involved in the
    litigation and that the only reason this matter went to court was because of
    Mr. Carvalhos misrepresentation that she signed a spousal waiver. While the
    application judges decision to award no costs was justified given Mr.
    Carvalhos conduct, the same rationale does not apply to the costs of the appeal.
    It was Ms. Amorim who chose to pursue the appeal. Therefore, in our view,
    there is no reason for the court to depart from the usual principle that the
    unsuccessful party is to pay costs to the successful party.

[19]

Ms.
    Amorim is to pay costs of $7,500.00, all inclusive, to Mr. Carvalho. No costs
    are awarded to or against the Pension Fund.

Gary Trotter J.A.

S.
    Coroza J.A.

L.
    Favreau J.A.

[1]

The Pension Fund took no position on the merits of the appeal.

[2]

The
Pension
    Benefits Act
has since been amended and the living
    separate and apart exception to the definition of spouse is now found in s.
    44(1.1).


COURT OF APPEAL FOR ONTARIO

CITATION: Corvello v. Colucci, 2022 ONCA 159

DATE: 20220218

DOCKET: C68475

Strathy C.J.O., Roberts and Sossin JJ.A.

BETWEEN

Tony Corvello and Gino Colucci

Plaintiffs (Respondents)

and

Arthur Colucci

Defendant (Appellant)

Bradley Phillips, for the appellant

Fredrick R. Schumann, for the respondents

Heard: February 15, 2022 by videoconference

On appeal from
    the judgment of Justice Tracey Nieckarz of the Superior Court of Justice, dated
    June 11, 2020, with reasons reported at 2020 ONSC 3679.

REASONS FOR DECISION

[1]

The appellant, Arthur Colucci, appeals the judgment granting the motion
    brought by the respondents, Tony Corvello and Gino Colucci, for a declaration
    that the appellant holds a land use permit in trust for himself and the
    respondents as beneficial owners.

[2]

At the conclusion of the appellants submissions, we dismissed the
    appeal with reasons to follow. These are those reasons.

[3]

Arthur and Gino Colucci are brothers. Tony Corvello is Arthurs
    brother-in-law. At issue is the ownership of a land use permit which was obtained
    from the Ontario government in 1974 (the permit). The permit allows the
    holders to build on and use the property for recreational purposes. The permit does
    not confer any rights of ownership over the land or any interest in the land to
    which it applies.

[4]

Since obtaining the permit, the parties and their families had
    harmoniously enjoyed the use of a recreational property on Lac Seul in the
    District of Kenora, Ontario (the property). As the trial judge noted, the
    parties described the property as a place where their families gathered to
    build, work, relax and enjoy each others company. Sadly, these happier
    times came to an end in 2016 when Arthur took the position that the permit
    belonged to him alone and he locked out the respondents and their families from
    the property. Litigation ensued.

[5]

After a meticulous review of the evidence from the three-day trial of
    this matter, the trial judge determined that Arthur held the permit in trust
    for himself and the respondents as beneficial owners. She declined to award the
    general damages sought by the respondents.

[6]

Arthur raises the following single issue on appeal: Did the trial judge
    err in law and in fact in determining that an undocumented trust agreement
    existed when the alleged settlor provided an alternate explanation as to what
    his intention was?

[7]

It is well established that the creation of a valid trust requires
    three essential characteristics or three certainties: certainty of intention
    to create a trust; certainty of subject matter; and certainty of objects:
Byers
    v. Foley
(1993), 16 O.R. (3d) 641 (Gen. Div.), at para. 13, citing D.M.W.
    Waters,
Law of Trusts in Canada
, 2nd ed. (Toronto: Carswell, 1984), at
    p. 107.

[8]

Arthur does not dispute that there was certainty of subject
    matter and object, but he submits that there was no certainty of intention to
    create a trust. He bases his submission on the argument that, in the absence of
    documentation evidencing a trust agreement among the parties and the fact that
    the permit was in his name alone, his evidence that he never intended to create
    a trust and that he alone owned the permit should have been given primary
    consideration and accepted by the trial judge. He argues that the trial judges
    analysis was flawed because she determined Arthurs intention as settlor of the
    trust through the lens of the other parties intentions and therefore
    misapprehended the evidence supporting Arthurs intention not to create a
    trust.

[9]

We do not agree.

[10]

It
    was open to the trial judge to accept some, all, or none of any witnesss
    evidence. Certainly, she was not obliged to accept all or any of Arthurs
    evidence. Nor was the absence of a formal trust agreement or the fact that the
    permit was in Arthurs name alone determinative. Rather, to ascertain certainty
    of intention in the absence of a written trust agreement, the trial judge was
    required to look at the surrounding circumstances and the evidence as to what
    the parties intended, as to what was actually agreed, and as to how the parties
    conducted themselves:
Byers
, at para. 15. She was also required to
    make findings based on her assessment of the credibility and reliability of the
    evidence presented at trial. Findings open to the judge based on the
    evidentiary record and credibility findings attract deference from this court:
Chechui
    v. Nieman
, 2017 ONCA 669, 136 O.R. (3d) 705, at para. 33.

[11]

We
    disagree that the focus of the trial judges inquiry should have been on
    Arthurs subjective intentions. Rather, she was required to apply an objective
    standard to ascertain the certainty of intention not just from Arthurs own
    acts, but also from the acts of the other parties:
Ontario (Training,
    Colleges and Universities) v. Two Feathers Forest Products LP
, 2013 ONCA
    598, 368 D.L.R. (4th) 714, at para. 24. Nor did she misapprehend the evidence.
    The trial judge was not limited to considering Arthurs denials, but was
    entitled to consider the evidence as a whole from which she could infer Arthurs
    intention and the common intention of the parties to hold the permit in trust
    for himself and the respondents:
Byers
, at para. 26.

[12]

This
    is precisely what the trial judge did. The only three witnesses at trial were
    Arthur, Gino and Tony. The trial judge reviewed the evidence of each at some
    length. She gave detailed reasons for her acceptance of Gino and Tonys evidence
    and her conclusion that from the beginning it was intended that they were
    partners in and co-owners of the [permit]. She made comprehensive findings
    based on a thorough review of all the evidence. The evidence supported her
    conclusion that Arthur held the permit in trust for himself and the respondents
    as beneficial owners. Deference is owed to her findings of fact.

[13]

The
    trial judges findings support the existence of a trust. She found that the
    permit was in Arthurs name because the government at the time of issuance
    would not permit it to be put into more than one name. She also found that Arthur,
    Gino and Tony had all contributed to the property, that all costs of the
    property were shared three ways, and the three of them discussed and agreed on
    any improvements to the property. Once it was permitted by the government to do
    so, they agreed to put the permit in their three names and Arthur wrote to the
    government asking for this change. All three referred to themselves as owners
    of the property, are named insureds on the insurance for the property, and had
    use of the property without asking Arthur for permission. Until 2016, Arthur
    never asserted ownership of the property to the exclusion of Tony and Gino.

[14]

All
    the trial judges findings were open to her. Her findings support her
    conclusion that Arthur held the permit in trust for himself, Tony and Gino. Arthur
    has not persuaded us that the trial judge made any error in her findings and
    analysis. We see no basis to intervene.

DISPOSITION

[15]

For
    these reasons, we dismissed the appeal.

[16]

The
    respondents are entitled to their costs from the appellant in the agreed upon amount
    of $6,000, inclusive of disbursements and applicable taxes.

G.R. Strathy C.J.O.

L.B. Roberts J.A.

L. Sossin J.A.