CITATION: Nogueira v. Nogueira, 2021 ONSC 7564
HAMILTON COURT FILE NO.: DC-21-96
DATE: 20211209
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Emery and Mew JJ.
B E T W E E N:
ANTONIO MOCO NOGUEIRA
M. Kelly, for the Appellant
(Appellant)
- and -
ISRRAELITA DE SOUZA NOGUEIRA
M. Milczarczyk, for the Respondent
(Respondent)
HEARD at Hamilton by video
Conference: October 28, 2021
REASONS FOR DECISION
D.L. Corbett J. (Orally):
[1] This is an appeal from the final order of Krawchenko, J. dated June 22, 2021, ordering the sale of a property pursuant to the Partition Act. There are two issues raised in the appeal:
whether the motion judge erred in ordering partition and sale after finding a triable issue respecting the trust claim. See Ames v. Bond, 1992 CanLII 14045 (ON CA), 39 RFL (3rd) 375 (ON CA); and,
whether the motion judge erred in failing to find that the Respondent’s conduct is “malicious, vexatious or oppressive”. See Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 OR (3d) 436 (ON CA); Latcham v. Latcham (2002), 2002 CanLII 44960 (ON CA), 27 RFL (5th) 358 (ON CA).
[2] During oral argument, Appellant’s counsel fairly conceded that it was open to the trial judge to conclude on the record, as the motion judge did, that the Appellant had not established the Respondent’s conduct is “malicious, vexatious or oppressive”. This concession was appropriate. The Respondent wishes to be removed from the mortgage on the property. The proceedings have already been protracted, and the Respondent wishes to untangle her financial affairs from the Appellant’s financial affairs. These are reasonable positions to take, and this disposes of the second argument.
[3] In respect to the first argument, there is considerable jurisprudence on sale of property under the Partition Act during the course of family law proceedings. The Appellant acknowledges that factors set out in Dhaliwal v. Dhaliwal (2020) ONSC 3971 (ON SC), summarize applicable principles, including, but not limited to the principle in Ames v. Bond. The motion judge stated and applied these principles. Thus, there is no error in principle.
[4] In our view, the appeal turns on the motion judge’s finding that the Appellant has not established prejudice arising from a sale of the property under the Partition Act. There will be some inconvenience and transactional costs involved for the Appellant, but nothing that could arise to “prejudice” within the meaning of the Dhaliwal test. Accordingly, we see no error in the application of the law to the facts, and no palpable and overriding error of fact by the motion judge.
[5] Therefore, the appeal is dismissed with costs of $4,500 inclusive, payable by the Appellant to the Respondent within 30 days.
“D.L. Corbett J.”
I agree: “Emery J.”
I agree: “Mew J.”
CITATION: Nogueira v. Nogueira, 2021 ONSC 7564
HAMILTON COURT FILE NO.: DC-21-96
DATE: 20211209
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ANTONIO MOCO NOGUEIRA
Appellant
- and –
ISRRAELITA DE SOUZA NOGUEIRA
Respondent
REASONS FOR DECISION
D. L. Corbett J.
Released Orally: October 28, 2021
Released in Writing: December 9, 2021