Court File and Parties

CITATION: Laurignano v. Laurignano, 2009 ONCA 241

DATE: 20090318

DOCKET: C48815

COURT OF APPEAL FOR ONTARIO

Simmons, Armstrong and Juriansz JJ.A.

BETWEEN:

Susan Laurignano

Applicant (Respondent)

and

George Laurignano

Respondent (Appellant)

COUNSEL:

D. Singer, for George Laurignano

Susan Laurignano not present

Heard and released orally: March 6, 2009

On appeal from the order of Justice J. Lemon of the Superior Court of Justice dated April 15, 2008.

ENDORSEMENT

[1] On December 2, 2008, this appeal was adjourned to a date to be fixed. Counsel for the appellant confirms that today's date was set in consultation with the respondent who is not present today. Counsel for the appellant also confirms that he has not heard from any counsel on behalf of the respondent in relation to this appeal.

[2] The order under appeal is an order for sale of the matrimonial home. Although the appellant refers in his factum to the order as an interlocutory order, because the order finally disposes of the issue of whether the matrimonial home should be sold, it is a final order and this court has jurisdiction to hear this appeal.

[3] We are not aware of any statutory provision or precedent that would support the motion judge's order delegating the court's authority to approve the sale price at which the matrimonial home should be listed and to accept an offer on the appellant's behalf. That order should not have been made. Similarly, absent the agreement of both parties, the motion judge's orders granting rights of first refusal should not have been made. See Martin v. Martin (1992), 1992 CanLII 7402 (ON CA), 8 O.R. (3d) 41 (C.A.).

[4] In this court, the appellant does not object to an order for sale of the matrimonial home on terms to be agreed on by the parties or fixed by the court provided he is permitted to submit an offer to purchase.

[5] Accordingly, the appeal is allowed, the motion judge's order concerning sale of the matrimonial home is set aside and in its place is substituted an order that the matrimonial home be sold on terms and conditions to be agreed upon by the parties or, absent agreement, fixed by the court. Both parties shall have the right to submit offer(s) to purchase the matrimonial home.

[6] As we have set aside a part of the order made by the motion judge, the motion judge's costs order is set aside, and in its place is substituted an order for costs to the wife on a partial indemnity basis fixed in the amount of $1,000 inclusive of disbursements and G.S.T. Costs of the appeal are to the appellant fixed at $2,000 inclusive of disbursements and G.S.T.

"Janet Simmons J.A."

"Robert P. Armstrong J.A."

"Russell G. Juriansz J.A."