Court of Appeal for Ontario
Date: 2019-02-15 Docket: C64743
Judges: Sharpe, Juriansz and Roberts JJ.A.
Between
Angela Marchese Applicant (Appellant)
and
Giuliano Marchese Respondent (Respondent in Appeal)
Counsel
Angela Marchese, in person
Sidney Klotz and Jennifer Klotz, for the respondent
Heard and released orally: January 16, 2019
On appeal from the judgment of Justice M. Faieta of the Superior Court of Justice, dated November 15, 2017.
Reasons for Decision
[1] The main issue on this appeal is the judicially ordered sale of the parties' matrimonial home.
[2] The appellant submits that the trial judge erred in ordering the sale because he did not consider the best interests of the parties' children (aged 22, 19 and 16 at the time of trial), who have resided with the appellant in the matrimonial home since the date of the 2012 separation.
[3] We do not accept this submission.
[4] In ordering the sale, the trial judge properly considered and applied the relevant criteria noted in para. 18 of his reasons, and the best interests of the children.
[5] As the trial judge correctly stated, the respondent had a prima facie right to an order for the partition and sale of the matrimonial home. As a result, the trial judge was required to order the sale unless the appellant demonstrated that such an order should not be made and showed there was malicious, vexatious or oppressive conduct on the part of the respondent in relation to the sale itself. The trial judge found that the appellant did not allege there was any such conduct nor did she put forward any other legal basis to preclude the sale of the matrimonial home.
[6] The appellant and her three daughters have had the benefit of living in the house for six years. The trial judge found that the parties, both of whom are unemployed, do not have the independent means to carry the costs of the home.
[7] The appellant also raised a number of issues in her notice of appeal regarding valuation of assets. The trial judge's reasons on these issues are supported by the evidence and entitled to deference on appeal. We see no basis to interfere with them.
[8] Accordingly, the appeal is dismissed.
Costs
[9] The respondent was successful on this appeal and is entitled to his partial indemnity costs. In assessing costs, we look at the amount that is fair, reasonable and proportionate in the circumstances of this case.
[10] While the appeal had little merit, responding to this matter did not require two counsel for the respondent. Nor is the appellant required to pay the time necessary for respondent's new counsel to become familiar with the file. We also note that the appellant was successful on the stay and dismissal motions. As a result the respondent is not entitled to costs of those motions.
[11] For these reasons, we fix the respondent's costs of this appeal in the amount of $10,000, inclusive of disbursements and all applicable taxes.
Order
[12] As the date for listing and sale of the properties have passed, the order will be amended as follows. We replace what is in paragraph 1 with the following: "The matrimonial home at 3 Highland Hill, Toronto and the real property at 37 Bentwood Avenue, Toronto shall both be listed for sale by February 15, 2019 with a real estate agent acceptable to both parties at a listing price recommended by the listing agent, with a closing date not later than June 30, 2019 and the net proceeds after sale after payment of encumbrances and costs shall be paid into court and paid out of court upon agreement of the parties or as ordered by the Superior Court."
[13] In paragraph 2, we substitute the following for what is now in paragraph 2: "All outstanding costs orders including the costs of this appeal and equalization payments shall be satisfied from the proceeds of the sale."
[14] In paragraph 3(a), we substitute the date of February 1, 2019, as the date by which the parties are to submit the names of their two real estate agents acceptable to them.
[15] In paragraph 3(b) we substitute the date of February 5, 2019. In paragraph 3(d), we substitute the date of June 30, 2019.
Robert Sharpe J.A. R.G. Juriansz J.A. L.B. Roberts J.A.
