) ) ROBERT COSENTINO ) ) ) ) Sam Cosentino , for the Applicant, Robert Cosentino, v. for himself and the, 2017 ONSC 5723

CITATION : Cosentino v. Cosentino, 2017 ONSC 5723 DIVISIONAL COURT FILE NO.: 00000340/15 DATE: 20170926 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MARROCCO A.C.J.S.C., SWINTON and DiTOMASO JJ.

BETWEEN: ) ) ROBERT COSENTINO ) ) ) ) Sam Cosentino , for the Applicant, Robert Cosentino, and for himself and the Respondents Mary Lekkas, Domenic Cosentino and Peter Cosentino ) ) Applicant (Respondent in Appeal) ) ) ) – and – ) ) CESARE CHRISTOPHER COSENTINO , GIUSEPPE COSENTINO, EDDA COSENTINO, 547907 ONTARIO LIMITED , SAM COSENTINO and MARIA COSENTINO ) ) ) ) ) Oscar Strawczynski , for the Respondents (Appellants in Appeal) Cesare Christopher Cosentino and 547907 Ontario Limited. ) ) Respondents (Appellants) ) ) ) HEARD at Toronto: September 26, 2017 SWINTON J. (Orally) fresh evidence [ 1 ] The motion for fresh evidence is denied.

The evidence was available prior to the hearing of the Application had the parties supporting the sale used reasonable diligence. the appeal [ 2 ] The appeal is dismissed. The application judge made a discretionary decision whether to order partition or sale. The appellants have not identified any error of law nor any palpable and overriding error of fact by the application judge.

There was no impropriety in relying on Sam Cosentino’s evidence, as he was under oath and the appellants’ counsel had an opportunity to object and to cross-examine with respect to the planning issues. [ 3 ] Given the number of parties holding ownership interests, the nature of the parcel of land and the appellants’ failure to provide any evidence on the feasibility of partition (despite an earlier adjournment of the application to allow them to explore this issue), the application judge reasonably concluded that an order for sale was appropriate. There is no basis for appellate intervention.

MARROCCO A.C.J.S.C. [ 4 ] I have endorsed the back of the Appeal Book and Compendium as follows: “Motion for fresh evidence refused. Appeal dismissed for oral reasons given today. No costs.”

___________________________ SWINTON J. I agree ___________________________ MARROCCO A.C.J.S.C. J. I agree ___________________________ DiTOMASO J. Date of Reasons for Judgment: September 26, 2017 Date of Release: September 27, 2017 CITATION : Cosentino v. Cosentino, 2017 ONSC 5723 DIVISIONAL COURT FILE NO.: 00000340/15 DATE: 20170926 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MARROCCO A.C.J.S.C., SWINTON and DiTOMASO JJ. BETWEEN:

ROBERT COSENTINO Applicant (Respondent in Appeal) – and – CESARE CHRISTOPHER COSENTINO , GIUSEPPE COSENTINO, EDDA COSENTINO, 547907 ONTARIO LIMITED , SAM COSENTINO and MARIA COSENTINO Respondents (Appellants) ORAL REASONS FOR JUDGMENT SWINTON J. Date of Reasons for Judgment: September 26, 2017 Date of Release: September 27, 2017