Mocchi v. Mocchi

2009 BCSC 435 Mocchi v. Mocchi

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Mocchi v. Mocchi, 2009 BCSC 435 Date: 20090331 Docket: E070774 Registry: Vancouver Between: Manlio Lauro Mocchi Plaintiff And Hiroko Mocchi Defendant - and - Docket: S078592 Registry: Vancouver Between: Ryoko Sakamoto Plaintiff And Manlio Lauro Mocchi, Hiroko Mocchi, and Maximilliam Mocchi Defendants Before: The Honourable Mr. Justice R.R. Holmes Reasons for Judgment Counsel for Manlio Lauro Mocchi: Paul Daltrop Counsel for Hiroko Mocchi: Mary E.B. Wood Counsel for Ryoko Sakamoto: Garth E. Edwards Date and Place of Trial/Hearing: November 3-7, 14, 2008 Vancouver, B.C.

INTRODUCTION [1] This proceeding encompasses the trial of the matrimonial proceeding [E070774], and a corollary loan and trust action [S078592] which were ordered by Master Scarth on February 25, 2008 to be heard at the same time. The parties to these actions are related. Hiroko Mocchi and Ryoko Sakamoto are sisters; Manlio Lauro Mocchi and Hiroko Mocchi are husband and wife, and Maximillian Mocchi is their son. I am advised by counsel that no relief is sought against Maximillian Mocchi and consequently none is granted. The loan and trust action commenced by Ms. Sakamoto relates to the determination of the family assets and liabilities of Mr. and Mrs. Mocchi in the matrimonial action. [2] Mr. Mocchi seeks a divorce and division of assets on the basis that he and Mrs. Mocchi have lived separate and apart longer than one year. Mrs. Mocchi seeks a reapportionment of the family assets on the basis of s. 65(1) of the Family Relations Act and also seeks spousal maintenance. [3] Ms. Sakamoto seeks an order that Mrs. Mocchi holds a duplex residential property at 9820 Garden City Road, Richmond, B.C. in trust for her; and an order for transfer of the title to her. Ms. Sakamoto also seeks judgment against the Mocchis for debt of $494,300 plus interest, and for an order that the approximate $420,000 GIC investment in Mrs. Mocchi's name is held by her in trust for Ms. Sakamoto, and that it be transferred to her together with court-ordered interest. [4] Mrs. Mocchi confirms and concedes Ms. Sakamoto's claims as to trust holding and of debt. Mr. Mocchi denies the claims of trust and of debt claimed against him, and he raises a limitation defence pursuant to the Limitation Act of British Columbia.

HISTORY [5] Manlio Mocchi is 63 and was born in Italy. His wife, Hiroko Mocchi is 62 and was born in Japan. The parties met in Vancouver and were married October 21, 1975. They have two sons, Maximillian age 32, and Dukas age 30, with neither remaining a child of the marriage pursuant to the Divorce Act. [6] Mr. and Mrs. Mocchi commenced to live separate and apart January 30, 2006 and there was a matrimonial action prior to the present one commenced by Mr. Mocchi on that date [E060313, Vancouver Registry]. The parties attempted a reconciliation and the action was discontinued by way of a Consent Dismissal December 14, 2006. The present proceeding was commenced March 7, 2007. [7] Mr. Mocchi has a varied and extensive background of school, training, and employment in the hospitality industry beginning in Italy in his teen age years when he attended language and restaurant schools, as well as working. He later worked and continued to train in various skills, including that of a waiter, hotel worker, caterer, and chauffeur while living in many European countries including Italy, France, Germany, Brussels, and England. [8] Mr. Mocchi immigrated to Canada in September 1973 and was employed in several "high end" restaurants in Vancouver and Edmonton as a waiter, and in the hotel banquet trade as an assistant manager and manager. [9] Mrs. Mocchi was born and educated in Japan. She

attended High School and a year and a half of University, following which she worked eight years in a bank. She left the bank in 1973 to take a special one year program at a government Business School while being paid salary and tuition. [10] When Mrs. Mocchi finished the program in 1974, she came to Vancouver, studied English, and worked part time as a book keeper for a Japanese restaurant. [11] Following their marriage, the Mocchis lived in a small bachelor apartment. After their son Maximillian was born, Mrs. Mocchi traveled with Maximillian to Japan to visit her family and to try to obtain money from them to finance a down payment on a house. [12] On her return the Mocchis bought a home in North Vancouver for approximately $52,750. The down payment of $18,000 came from Ms. Mocchi's parents, and an additional $12,000 given by her family was spent on repairs and furnishings. The balance of the purchase was financed by a mortgage of $35,000. [13] The parties moved to Edmonton from April 1978 to February 1979 and they rented out their house. When they returned from Edmonton in February 1997, they rented accommodation and sold their house for $67,000, which, after repayment of the mortgage, left about $30,000. [14] Mr. Mocchi then moved the family to Italy in 1980, where he continued to work in the restaurant and hotel business, mainly as an owner and operator. The money used

for investment in these business ventures came from the proceeds of the sale of the North Vancouver home and some monies that he borrowed, at interest, from his family in Italy. [15] Mrs. Mocchi was not happy about moving to Italy, and it was a difficult time for her as she spoke no Italian which restricted her ability to communicate with family or to develop friends. She worked long hours in the hotels her husband purchased, including attending to the reception desk, cleaning, cooking meals for family and staff. She was paid no salary and testified that although the hotels were originally bought in joint names, her husband had them changed to his own. [16] Mr. Mocchi had serious back surgery in 1984, but he bought and operated a small hotel in 1985, which he continued to operate until 1987 when he sold it and moved the family back to Vancouver. Mrs. Mocchi, while in Italy, became quite ill and had her gall bladder removed. Her weight when she was ill dropped to just 84 pounds. [17] After returning to Vancouver, Mr. Mocchi worked for several "high end" restaurants for short periods of time, eventually however he remained working at one for approximately five years. The Mocchis rented accommodation for five years after their return to Vancouver in 1987 until in 1992 they purchased one-half of a duplex at 9840 Garden City Road in Richmond B.C. They paid $175,000, with $135,000 of

the purchase price provided from an inheritance from Mr. Mocchi's parents, and the $40,000 balance financed by mortgage. [18] Mr. Mocchi had further health problems and surgery in November 1996, and thereafter found full-time work as a waiter too heavy, and he was reduced to part-time work at Paesano's, an Italian restaurant in Richmond. [19] Mr. Mocchi's ability to earn income was severely diminished, support of his family became a significant concern as he had no viable employment prospect, he had no income for several months, and the family savings were depleted. Mr. and Mrs. Mocchi had serious discussions at the time as something had to be done. Mrs. Mocchi suggested operating a restaurant, as that was something they had done in Italy. [20] Mrs. Mocchi's evidence is that her husband said that for them to acquire a restaurant, they would require about $150,000, and that $200,000 would be very good. He said a bank would not lend them a penny as it would be too risky. He said he would not even approach a bank for a loan, as he did not wish to get laughed at. Mrs. Mocchi decided to approach the subject of obtaining a loan with her sister Ms. Sakamoto. [21] Mrs. Mocchi said from the beginning she told her husband that she would borrow money from her sister Ryoko Sakamoto, and that she wanted to put the title to their home in Ms. Sakamoto's name as security. She said that at

first he opposed the change in title, but he later agreed, and it was done. [22] Mr. Mocchi's evidence is that that all he knew was that his wife told him the money she obtained came from her family. He was not aware of how the money came to her, and said that he was not involved. He denies she told him it was a loan, or was being borrowed. [23] Originally Ms. Mocchi asked her sister for a loan in Japanese yen equivalent to about $286,000. The original discussions were by telephone, but Mrs. Mocchi later sent Ms. Sakamoto a letter dated April 15, 1997, with a State of Title Certificate enclosed. The letter appears to suggest Ms. Sakamoto was buying their house. I accept that was reference to the house being used as security for a loan rather than a sales transaction. [24] Mrs. Mocchi said she told her husband of the terms of the loan from her sister were: - Mrs. Sakamoto would have title to their house - Mrs. Mocchi would do the book keeping and manage the loaned money - they would repay the loan as they were able to do so, - they would pay interest at the lowest rate available in Canada. [25] Ms. Sakamoto advanced funds in respect of the agreement made with Mrs. Mocchi totalling $286,050, received by four separate wire transfers in May 1997 which totalled $208,100, and the balance in two transfers in October 1997. [26] All funds received by Ms. Mocchi were paid into her

Toronto Dominion Canada Trust Account 550552, which she refers to as her sister's account, and which she reserved exclusively for holding her sister's monies. [27] Monies drawn down from the account for the restaurant or other use by the parties was first transferred to their joint account and then disbursed as required. When the Mocchis were able to start repayment of the loan monies, Mrs. Mocchi started to transfer funds into the TD Canada Trust account. The payments accumulated, and the account proceeds from time to time were used to purchase a GIC investment which was then rolled over periodically at interest. The GIC as of the trial date totalled $420,000. [28] Mr. Mocchi for his part researched the market and arranged to purchase an existing restaurant, arranged and supervised needed renovation and upgrade, and incorporated a company to own the business. The Mocchis continue to successfully operate this restaurant business since acquiring it in 1997. In addition, some of the monies were used to purchase a new car and top pay off their mortgage. [29] Mr. Mocchi has worked very hard in the business; typically his hours are 10:30 in the morning until midnight, seven days a week. He manages the front end and kitchen and supervises fifteen full and part time employees. [30] Mrs. Mocchi has essentially done all the accounting, payroll and taxes, since the restaurant

opened. [31] Mr. Mocchi is not happy running the restaurant and wants to sell as soon as possible. He would like to retire at 65. [32] Ms. Sakamoto is 66 years of age, has worked since she was 15, and just prior to recently retiring she had worked for the past 35 years as an executive secretary. Ms. Sakamoto lived very frugally saving most of her salary and using the money made from working overtime for her leisure spending. [33] Ms. Sakamoto has severe asthma and breathing problems that required her hospitalization three times last year. [34] Ms. Sakamoto and Mrs. Mocchi's father died in 1981 and their mother who lived with and was cared for by Ms. Sakamoto died last year at age 95. Ms. Sakamoto testified that her sister approached her wanting to borrow money so the Mocchi's could buy a restaurant business. They discussed the matter by telephone. [35] Their mother warned Ms. Sakamoto against giving a loan and Ms. Sakamoto was aware her other siblings would not consider it. Ms. Sakamoto however felt she could allow her sister to borrow some of the money she had set aside for retirement until she needed it. The loan however was with conditions: - Mrs. Mocchi must do the bookkeeping and manage the loaned money; - interest at the lowest bank rate would be paid; - Mrs. Mocchi would open and keep a separate account to accumulate payments and interest on Ms. Sakamoto's loan, - title

of the Mocchi home would be placed in Mrs. Mocchi's name, - the loan would be repaid when the business was doing well, - the loan had no specified time limit other than needing it for use in her retirement years. [36] The monies loaned were a large part of the monies Ms. Sakamoto set aside for her retirement. In Japan living in a retirement home is very expensive. Ms. Sakamoto never asked her sister to send repayment monies back to Japan as there was a very low interest rate payable in Japan. She trusted her sister and she was content Mrs. Mocchi keep her account and that the accumulated repayment monies remain in Canada. [37] Ms. Sakamoto intended living six months of the year in Vancouver and six months in Japan after her retirement, and had even spoken to her sister about buying a residence here and requesting she let her know of anything of interest coming on the market. Mrs. Mocchi looked forward to the companionship of her sister living nearby. [38] In May 1998 the other half of the Mocchi's duplex in Richmond became available for purchase and Mrs. Mocchi notified Ms. Sakamoto who said she wished to buy it and requested Mrs. Mocchi act for her to get it. Ms. Sakamoto said she was willing to pay up to 20,000,000 yen and by four bank transfers in July 1998, she sent Ms. Mocchi $208,250 when converted from yen. She directed that any excess over purchase could be added to the

prior loan funds and used for the restaurant business. [39] It was originally intended Ms. Sakamoto would come to Vancouver to complete the purchase but she was not able to leave her mother in Japan and she asked Ms. Mocchi to complete the transaction on her behalf. Mrs. Mocchi completed the purchase on behalf of her sister, which she did at a purchase price of $198,500, with title in her name on the suggestion of the lawyer or notary acting in the conveyance. [40] Mr. Mocchi agrees there was no mention this purchase of the duplex was to be a gift to his wife. His wife told him that Ms. Sakamoto would leave the duplex to their sons when she died, which was a clear indication that Ms. Sakamoto was the owner of the property. He also recalls that there was a belief that the purchase by Ms. Sakamoto might make it easier for immigration purposes for her to stay for extended periods in Canada, as she intended in the future. The evidence does not suggest that any of the Mocchi family believed Mrs. Mocchi was the owner of the new duplex unit or that it was a gift to her. [41] After the purchase of the duplex Mrs. Mocchi arranged to rent the duplex to a tenant, and later to the Mocchis' own restaurant company for an office and storage of liquor. The arrangement from inception was that the rental income, less reasonable expenses would be held for Ms. Sakamoto by Mrs. Mocchi. Although the

accounting by Mrs. Mocchi in respect of net rental income from the duplex is not precise, I accept her accounting of net rental income from 1998 to 2007 at $51,208.29 as reasonably accurate. Mrs. Mocchi declared the rental income on her own income tax return and hence may have incurred a tax liability on the monies which it appears was not charged to Ms. Sakamoto. [42] The net rental monies have in fact been deposited to the same TD Canada Trust Account 550552 that was used for all other monies held by Mrs. Mocchi belonging to her sister Ms. Sakamoto, which therefore consciously kept segregated from all other monies. STATUS OF $286,000 RECEIVED BY MRS. MOCCHI IN 1997 [43] There is an issue whether the $286,000 transferred by Ms. Sakamoto to her sister Mrs. Mocchi in a series of wire transfers deposited to Mrs. Mocchi's TD Canada Trust account in May 1997. The funds were used to purchase the restaurant, pay operating costs and start up expense, as well as debts and living expenses of the Mocchis, pending profitability of the new restaurant business. Mr. Mocchi denies the monies were a loan, or that any family debt was created or exists. [44] There is also a question that if the advances are a loan the amount of interest, if any, that is to be paid on that loan. [45] I accept the evidence of Mrs. Mocchi and Ms. Sakamoto that the monies advanced was a loan to Mr. and Mrs. Mocchi

to permit them to acquire a restaurant business. The loan was solicited by Mrs. Mocchi and it was intended to provide funds for the Mocchis to start a restaurant business, fund its operation for an extended period until profitable, and to provide for the Mocchi's living expenses until the business was established. [46] The loan was arranged between Mrs. Mocchi and Ms. Sakamoto in telephone conversations, and was essentially not documented but for the letter of April 15, 1997, which in translation appears to offer the Mocchi's house as security for the advances, and was accompanied by a State of Title Certificate. A gift, of course, would not involve the taking of security. Mrs. Mocchi and Ms. Sakamoto are also agreed that the loan was with conditions: - Mrs. Mocchi would do the bookkeeping for the restaurant and manage the loan monies; - a separate account would be maintained for Ms. Sakamoto's monies; - title to the Mocchi's house would be transferred to Mrs. Mocchi; - the loan would bear interest at the lowest bank rate; - the monies would be repaid when the Mocchi's were able. [47] I am also persuaded that Ms. Sakamoto would not even have contemplated making a gift of the magnitude of the advances in issue here. She is a single lady of retirement age who has worked since age 15, frugally saving for her old age. Her health is poor and the advances represent a substantial

portion of her need for retirement funds. [48] Mr. Mocchi however denies he was aware the monies used to purchase the restaurant and cover the start up, operating costs and provide living expenses for the Mocchis were made by loan from Ms. Sakamoto. The evidence however does not support that he had any reason to believe the monies were a gift to his wife. Mr. Mocchi had no direct dealing with Ms. Sakamoto, but I am satisfied he was aware the monies from Ms. Sakamoto were on the basis of a loan and he was content to leave all arrangements regarding that loan, it's receipt, terms, administration, and repayment to his wife. He of course was unable to deal directly with Ms. Sakamoto as they neither spoke, nor read the other's language. I do not accept in the circumstances that there is an air of reality to Mr. Mocchi's evidence that in the midst of a serious financial crisis he and the family faced, all he knew about money being provided to purchase a restaurant and finance the family was that his wife simply asked him how much they needed to open their own restaurant and then advised him it would come from her family. [49] I prefer the evidence of Mrs. Mocchi as to the matters leading to the loan over that of Mr. Mocchi, and find his explanation of ignorance surrounding the loan monies to be disingenuous. [50] In the spring of 1997 he was in desperate financial straits. He was

without work, savings, or credit viability. He had a mortgage to pay, health issues, a family to provide for, and a wife without marketable labour skills. He told his wife a bank would not lend a cent to finance a restaurant, yet he professes to have had no interest or curiosity on what basis his wife could raise $200,000. I accept Mrs. Mocchi's evidence that she told him of the terms of the loan but, as she testified, he "didn't listen". Mr. Mocchi empowered his wife to procure and administer a loan to enable them to have their own restaurant and, at best, chose to remain wilfully blind of the loan obligation incurred. [51] Mr. Mocchi was aware the monies received were not inheritance monies as his wife's father had died years before and her aged mother lived with Ms. Sakamoto who cared for her. He was unaware of any circumstances to suggest Ms. Sakamoto would be so wealthy as to make such a large gift or have any reason to make him a gift. [52] The loan conditions of which the Mr. Mocchi denies knowledge were in fact all met: - Mrs. Mocchi did all the bookkeeping for the restaurant; - she maintained a separate bank account for her sister's monies and she advanced them to the Mr. Mocchi through transfers to their joint account on which Mr. Mocchi could write checks; - funds were later withdrawn from the restaurant business and accumulated in the separate account reserved for

Ms. Sakamoto's money when the business could support repayment; - title to the Mocchis' property was transferred to Mrs. Mocchi. [53] I do have some concern as to the agreement regarding payment of interest on the monies to be loaned. The evidence suggests the interest was more at the insistence of Mrs. Mocchi and therefore somewhat unilateral in origin. No interest rate was specified and any of the varying descriptions regarding the interest in the evidence is indefinite and vague. [54] I find no evidence that Mrs. Mocchi was using or recording any interest rate base to apply to the borrowed monies that she was administering on behalf of her sister. [55] In the circumstances, however, Ms. Sakamoto, in my view, will recover some interest over all on her loan if she is entitled to a transfer of the GIC that is a trust property issue here as the GIC contains all the interest money earned on the repayment monies kept in the TD Canada Trust account 550552 and converted into the GIC interest-bearing investment. [56] Mrs. Mocchi commenced repayment of loan funds in 2001 when the restaurant was generating a profit and the Mocchis were financially able to begin repaying the loan. The company financial statements indicate the profitability of the business and the increasing return to the Mocchis of income and repayment of shareholder loan accounts starting in 2001 after the initial

three years of restaurant operation. [57] Mrs. Mocchi considered she held this account in trust for her sister and all her actions were consistent with that trust. The GIC in issue therefore represents the TD Canada Trust account used to accumulate repayment monies which funds were impressed with an actual trust in favour of Ms. Sakamoto. It would also meet the criteria of a resulting trust arising in the absence of evidence of an actual trust. [58] As earlier referenced, this trust represented by the GIC, in part, is composed of compound interest earned on loan repayment funds. [Sidhu v. Dhillon, 2003 BCSC 857, paras. 30-32; Reddin v. Mills, [1995] B.C.J. No. 352 (S.C.), paras. 119-121, 124, 128-129]

LIMITATION DEFENCE [59] Mr. Mocchi relies upon a limitation defence to the action of Ms. Sakamoto. [60] Section 3(5) of the Limitation Act bars an action for debt after six years from the date the right arose. Section 3(3) bars an action for recovery of trust property after ten years. The present action was commenced December 18, 2007. [61] The loan payment monies here were being placed into a separate account maintained in trust for Ms. Sakamoto and became "trust property". The present action therefore is well within the limits of Section 3(3) of the Limitation Act. [62] An alternate view of the accumulating repayment monies deposited into the separate account is the Mocchis would pay the loan in its entirety "when they could" and that the funds necessary to repay the total indebtedness were not accumulated until less than six years prior to this action being commenced. [63] I also accept that Ms. Sakamoto did not discover that there was by problem regarding the repayment of her loan until after Mr. Mocchi commenced of the first divorce action in January 2006 when he denied the debt. [Berry v. Page (1989), 38 B.C.L.R. (2d) 244 (C.A.); Wilkosz v. Amato (1999), 96 OT.C. 342 (S.C.)] [64] I do not find a Limitation Act defence proven, and the action of Ms. Sakamoto is within time for bringing action in either debt or trust. IS THE DUPLEX AT 9820 GARDEN CITY ROAD, RICHMOND B.C.

HELD IN TRUST? [65] I find the purchase of the duplex clearly intended that the property was that of Ms. Sakamoto, and that Mrs. Mocchi holds that property for her as trustee. [66] The money for purchase was supplied entirely by Ms. Sakamoto. Mrs. Mocchi was expressly requested to act on her sister's behalf to complete the purchase when it was not possible for her to travel to Vancouver being constrained to remain in Japan to work and to care for her elderly mother. [67] I accept entirely that reference in the documentation of wire transfers referring to "gift" or "living expenses" were caused by language difficulty and misunderstanding of bank workers giving advice. [68] There is no evidence that any part of the property was intended by Ms. Sakamoto as a gift to Mrs. Mocchi. The evidence supports the view that everyone in the family, including Mr. Mocchi, considered the duplex belonged to Ms. Sakamoto. Mr. Mocchi recalls being told that Ms. Sakamoto had said the property would go to the Mocchis' two sons when she died, and that obviously required her to be the owner. [69] Mrs. Mocchi has acted as a trustee in respect of the net proceeds of the rental income which she paid into the same TD Canada Trust account used by her as the trust account for her sister's other loan repayment monies and became co-mingled with the other loan repayment trust funds all ultimately invested and

rolled over in a GIC at interest. [70] Mrs. Mocchi was paid nothing to act as trustee, didn't contribute any money to the property purchase or maintenance, although she did declare the rental income on her tax return so there was no outstanding tax liability. The Mocchis' company paid rent for office space and to store liquor on the property. I do not find the limited use that Mr. Mocchi made of a room in the otherwise unoccupied duplex so he could maintain that the parties were living separate and apart, or the use the use of a bedroom by Maximillian, give rise to any derogation of ownership of the property by Ms. Sakamoto. [71] The title to the duplex in issue is held by Mrs. Mocchi in trust for Ms. Sakamoto by way of actual trust, and could in the circumstances also he qualified as an implied, resulting or constructive trust. [Tran v. Aujla, 2007 BCSC 801; Carter v. Carter Estate, 2001 BCSC 1436] [72] There will be an order for the immediate transfer of the title to the duplex property from Mrs. Mocchi to Ms. Sakamoto. STATUS OF RENTAL INCOME FROM THE DUPLEX AND THE FUNDS PROVIDED IN EXCESS OF THE PURCHASE PRICE [73] I accept the evidence of Mrs. Mocchi and Ms. Sakamoto that the funds provided in excess of the purchase price of the duplex were authorized by Ms. Sakamoto to be added to the original 1997 restaurant purchase loan and need not be returned to Japan. [74] In like

manner Mrs. Mocchi was requested to administer rental income and expenses of the duplex unit purchased by Ms. Sakamoto and to retain those monies on her behalf. TD Canada Trust account 550552 and GIC investment was therefore used to accumulate not only the loan repayment but also the net rental income monies. Mrs. Mocchi's calculation of the rental income net of expenses was $51,299 [Ex. 12]. I do not accept the argument of counsel for Ms. Sakamoto that rental income should have been higher. Mrs. Mocchi acted appropriately in her administration of the trust property and had reason not to continue with renting it for residential purposes. [75] The monies relating to the duplex purchase, held by Mrs. Mocchi as trustee, belong to Ms. Sakamoto, and she is entitled to judgment for the excess purchase funds, the net rental income, and to the interest accrued on those monies while held in the TD Canada Trust account or GIC investment. [76] The GIC which comprises the accumulated total of all monies owed to Ms. Sakamoto by Mr. and Mrs. Mocchi, and the monies administered by Mr. and Mrs. Mocchi relating to the duplex, will be transferred to Ms. Sakamoto or, alternatively, redeemed and the proceeds paid over to her. I am satisfied that all monies owned to Ms. Sakamoto are included in the GIC accumulation and that all interest earned by the GIC investment belongs to Ms. Sakamoto. [77] The

transfer of the property and GIC to Ms. Sakamoto will constitute a full ad complete release of Mr. and Mrs. Mocchi for all loan monies, interest, and trust obligations. ACTION E070774 [78] The parties have lived separate and apart in excess of one year and there is no prospect for reconciliation. There will be an order nisi for divorce. [79] The family assets for division and their approximate values as at the trial date triggering event are: Matrimonial Home, 9840 Garden City Road, Richmond B.C. $381,000 2007 Mercedes C230 $30,000 Amarcord Restaurant shares $235,000 Cash in Amarcord for pre-sale distribution $157,000 Gun Collection $10,000 Ocean View Burial Plot $20,465 Mr. Mocchi's HSBC Chequing Account $11,862 Mr. Mocchi's HSBC Savings Account $29,454 Mrs. Mocchi's Coast Capital Chequing Account $3,197 Mrs. Mocchi's Coast Capital Savings Account $54,958 Mr. Mocchi's RRSP $30,409 Mrs. Mocchi's RRSP $8,500 Mr. Mocchi's Italian Pension Mr. Mocchi's CPP [80] I have found in Action E070774 that the property at 9820 Garden City Road, Richmond B.C. is held in trust by Mrs. Mocchi for her sister Ms. Sakamoto. It cannot be a family asset as it was always held in trust and never owned by one of the spouses. In any event it was never " ordinarily used for a family purpose " and is not within the definition of a family asset. I also found the GIC in issue with an approximate value of

$420,000 and any balance from the TD Canada Trust account 550552 are held by Mrs. Mocchi in trust for Ms. Sakamoto and are not family assets but constitute a trust fund incorporating a family debt for monies loaned to the Mocchis by Ms. Sakamoto, together with net rental income resulting from Mrs. Mocchi's trust administration of Ms. Sakamoto's duplex at 9840 Garden City Road. [81] Mrs. Mocchi raises an issue as to re-apportionment of family assets. I have found that neither the funds in the GIC or the TD Canada Trust account, nor the duplex property at 9820 Garden City Road, are family assets. In these circumstances, I do not consider it necessary to re-apportion family assets. Both Mr. and Mrs. Mocchi have benefited over the course of the marriage from some gifts or inheritance monies from their parents or family. The family assets will therefore be subject to an equal distribution between the parties. [82] In the event that either the GIC in issue, or the ownership of the duplex at 9820 Garden City Road, or both, were to be considered family assets, Mrs. Mocchi would, in my view, on the evidence be entitled to a substantial re-apportionment pursuant to Section 65 (1) (d), (e) and (f) of the Family Relations Act to compensate for the unfairness that an equal division of those assets would create for Mrs. Mocchi becoming entirely responsible to Ms. Sakamoto for repayment of

the restaurant business and ancillary loan monies made by Ms. Sakamoto to the use and benefit of both Mr. and Mrs. Mocchi. [S.(M.) v. S.(W.), 2008 SCC 35, paras. 6-12] [83] The matrimonial home should be sold and the net proceeds divided equally. The sale of Amarcord and the restaurant business has already been ordered. The business should be listed for sale, with joint conduct of sale to the parties, and further application to the court if required. Prior to sale, the cash funds of $157,000 removed from the company should be distributed equally to the parties. [84] The bank accounts of the parties should be equalized by payment from the greater to the lesser to achieve an equal division. Money belonging to the sons in either Mr. or Mrs. Mocchi's account shall be paid to them before division. The RRSPs of the parties are to be equalized by use of a tax free roll over under the Income Tax Act and any pension of a party divided pursuant to Part 6 of the Family Relations Act. [85] The Mercedes vehicle and the gun collection either can be valued by agreement between the parties and divided accordingly, or the subject of further application with appropriate appraisal evidence. [86] Household contents will be divided by agreement or if necessary by further application.

SPOUSAL SUPPORT [87] Mrs. Mocchi is 62 and has not worked in paid employment outside the home since she was married at age 27. She has not contributed to CPP, nor is she entitled to a pension from Italy where the Mocchis lived for eight years. Her sole source of income has been from services to the family restaurant business. [88] Mr. Mocchi wants the restaurant sold and monies divided. He has an existing order for the sale of the restaurant but has not acted upon it. When the business is sold Mrs. Mocchi will lose dividend income, salary, and the benefit of some business presently expensed items. It is a substantial amount and will be a dramatic change to her life. [89] Mrs. Mocchi moved several times during the marriage to accommodate Mr. Mocchi's career and business aspirations. Mrs. Mocchi during the time spent in Italy worked in several of Mr. Mocchi's businesses without salary or pension accumulation. She also was the primary care giver to their two children and the household manager. [90] Mrs. Mocchi could not speak Italian and her English has also suffered from her interruption from living in Canada and working in an English-speaking environment. Her education and training in Japan in business and accounting suffers from her having been so long removed from the workforce and impeded by her lack of work experience and imperfect language skills. Her language skill level,

age, and lack of work experience make it very doubtful that she will ever be remuneratively employed at other than a nominal income. [91] Mrs. Mocchi is also seriously hearing impaired and has a continuing health problem related to her stomach and prior gall bladder surgery. [92] Mr. Mocchi is a very good restaurateur. He has a wealth of experience, skill and training in the hospitality industry. He has been successful in his present restaurant business although he feels over-worked and would like a slower pace. [93] Mr. Mocchi is quite capable of obtaining employment at a managerial level in the hospitality trade. He may earn less than presently in operating his own business but I would gauge his earning ability to be in the $40,000 to $50,000 range. In contrast Mrs. Mocchi, with effort, is likely to be only capable of few hundred dollars a month. [94] I take cognizance of the Supreme Court of Canada directive in Moge v. Moge, [1992] 3 S.C.R. 813, that all four of the objectives of Section 15.2(6) of the Divorce Act are to be considered in respect of spousal support. The Mocchis' marriage has been al long and traditional one. Mrs. Mocchi is entitled to a standard of living equal to what Mr. Mocchi can achieve with his significant post divorce earning ability. [95] I have had reference to the Spousal Support Advisory Guidelines as assisted by counsel. I am of the view that

spousal support is not immediately necessary as the equality of income from the restaurant business presently provides for them equally and adequately. That however will cease upon sale of the business and with serious impact to Mrs. Mocchi. [96] I award spousal maintenance to Mrs. Mocchi at $1 per month commencing February 1, 2009 which will increase to $1,500 per month commencing the first day of the month following upon the closing of the sale of the restaurant and monthly thereafter. [97] All counsel advised of a necessity to address costs following judgment. "R.R. Holmes, J." The Honourable Mr. Justice R.R. Holmes