



COURT OF APPEAL FOR ONTARIO

CITATION: Marchese v. Marchese, 2019 ONCA 116

DATE: 20190215

DOCKET: C64743

Sharpe, Juriansz and Roberts JJ.A.

BETWEEN

Angela Marchese

Applicant

(Appellant)

and

Giuliano Marchese

Respondent

(Respondent in Appeal)

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 judges 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.

[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 respondents 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 respondents costs
    of this appeal in the amount of $10,000, inclusive of disbursements and all
    applicable taxes.

[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.


