Court File and Parties

CITATION: Szabo v. Szabo-Jukes, 2024 ONSC 5433 DIVISIONAL COURT FILE NO.: DC-23-2360 (Oshawa) DATE: 2024-10-01

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: SANDOR SZABO, Applicant AND: TAMMEY SZABO-JUKES, Respondent

BEFORE: D.L. Corbett, McGee and Cullin, JJ.

COUNSEL: Z. Virji, for the Applicant M. Tweyman, for the Respondent

HEARD at Oshawa: September 20, 2023

Endorsement

McGee J. (Orally)

[1] This is a judicial appeal from the January 16, 2023 order of the Honourable Justice Leibovich, ordering the sale of a property pursuant to s. 2 and 3 of the Partition Act.

[2] The parties are former common-law spouses who married in June 1998 and separated on July 1st, 2016. While they were married, they jointly purchased 75 Wakeford Road, Little Britain, Ontario. Shortly after separation, Ms. Szabo-Jukes moved out of the home. Mr. Szabo has continued to reside in the home. The parties have no children.

[3] On December 15, 2021, Ms. Szabo-Jukes was granted leave to bring a motion for the partition and sale of 75 Wakeford Road. The motion was not heard until a full year later, no doubt as it involved Covid delays, until December 13, 2022.

[4] Mr. Szabo had never brought a motion for exclusive possession, nor would he be entitled to that relief.

[5] In a carefully reasoned decision, Justice Leibovich allowed the motion for partition and sale and additionally ordered a payment of spousal support from former husband to former wife. The payment of spousal support is not in dispute in this appeal.

[6] Justice Leibovich further ordered that the proceeds of sale be held in trust by real estate counsel, who was to be engaged on consent by both parties, but for an initial disbursement of $50,000 to each party. If the parties could not agree on a realtor, the matter was to be returned to the Court, specifically Justice Leibovich, for further direction.

[7] There are two issues raised in this appeal. First, did Justice Leibovich err in law by ordering interim partition and sale of the matrimonial home prior to the final determination for this claim to be adjudicated at trial. And second, did Justice Leibovich err in law in finding that there was no malicious, vexatious or oppressive conduct on the part of the respondent in seeking the sale of home.

[8] Section 7 of the Partition Act grants this Court jurisdiction to hear this appeal. The standard of review for a judicial or statutory appeal is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235. On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law with respect to the application of the correct legal principles to the evidence, such as the case at bar, the standard of review is palpable and overriding error.

[9] This standard of review was recently confirmed in Scanga v. Scanga, 2023 ONSC 3592, as the standard of a review on an order for the partition and sale of a home.

[10] In respect of the first issue raised on this appeal, there is considerable jurisprudence on the sale of property under the Partition Act during the course of family law proceedings. Justice Leibovich cites the principles for a request for partition and sale of the matrimonial home as set out by the Ontario Superior Court of Justice in Sanvictores v. Sanvictores, 2022 ONSC 2673. In Sanvictores the Court established that the Court must compel the partition and sale of a jointly held property, unless there is malicious, vexatious or oppressive conduct on the part of the moving party. Based on these principles, the request for partition was granted. In our view, the motions judge correctly cited and applied these principles.

[11] The appellant has not established prejudice arising from sale of the property under the Partition Act. He acknowledges that he is able to bid on the sale of the property and that any adjustments arising from his continued post-separation occupation of the jointly owned home can be addressed in the partition and sale of property. These adjustments may include his payment of occupational rent to Ms. Szabo-Jukes, for his use of her equity over these past seven years. This delay over the last seven-year period has benefitted the appellant. There may be some inconvenient and transactional costs involved for him, but nothing that would arise to prejudice within the meaning of the law. Moreover, the motions judge put his mind to these principles when he wrote at paragraph 10 of his decision that Mr. Szabo could still bid on the home and later in the reasons, that the sale proceeds, but for $50,000 payable to each party upon closing, would remain available to discharge any remaining claims in the litigation.

[12] The motions judge correctly identified that the real hardship would be experienced by Ms. Szabo-Jukes were the home not sold, as she has been actively deprived of her equity in the asset, and that deprivation has now carried on for over seven years.

[13] Accordingly, we see no error in the application of the law to the facts and no palpable or overriding error of fact by the motion judge. The sale process directed by the motions judge must now proceed without further delay. Any further delay is a concern for this panel. If a listing agreement is not in place on or before October the 6th, 2023, the parties are to obtain an urgent case conference date or an urgent motion date on the first available date before the Superior Court of Justice to adjudicate any unresolved incidents of sale.

[14] This appeal is accordingly dismissed with costs of $2,500, inclusive of HST, payable by the applicant to the respondent within 30 days.

“McGee J.”

I agree: “D. L. Corbett J.”

I agree: “Cullin J.”

Released Orally: September 20, 2023

Written Endorsement Released: October 1, 2024