2023 ONSC 3610, 2023 ONSC 3610

CITATION : Sparkman v. Sparkman, 2023 ONSC 3610 DIVISIONAL COURT FILE NO.: 23/089 DATE: 20230612 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: ANGELA SPARKMAN , Respondent/Respondent in Appeal AND: BRADLEY SPARKMAN , Moving Party/Appellant BEFORE: Sachs, Sutherland and Schabas JJ. COUNSEL: John W.

Bruggeman , for the Respondent/Respondent in Appeal Eliezer Karp and Ian Literovich , for the Moving Party/Appellant HEARD: June 12, 2023 ENDORSEMENT SCHABAS J. (orally): [ 1 ] The appellant appeals from an order of Justice Brownstone dated January 4, 2023, directing the partition and sale of the parties’ matrimonial home. This followed argument on November 15, 2022. [ 2 ] As a preliminary matter, the appellant moves to file fresh evidence.

That evidence consists of, first, a letter from a real estate agent dated January 12, 2023, addressing the difficulty of the appellant finding alternative accommodation if the matrimonial home is to be sold, and second, medical evidence relating to the appellant as a result of injuries he sustained in 2018 which, it is submitted, bears on the impact, and hardship, on him if he is required to move. [ 3 ] The motion for new evidence is dismissed. New evidence on an appeal is admissible if it meets the four criteria set out in Barendregt v.

Grebliunas , 2022 SCC 22 : i. the evidence could not, by the exercise of due diligence, have been obtained for the trial, or the motion as the case may be; ii. the evidence is relevant in that it bears upon a decisive or potentially decisive issue; iii. the evidence is credible in the sense that it is reasonably capable of belief; and iv. the evidence is such that, if believed, it could have affected the result at trial or on the motion. [ 4 ] In this case, the evidence fails the first branch of the test as it could have been obtained through due diligence in advance of the hearing before the motion judge.

To the extent that the appellant’s stress is caused by the order under appeal, that is something that ought to have been anticipated. [ 5 ] Further, and in any event, none of the evidence provides a basis to conclude that the motion judge committed any palpable and overriding error in her application of the facts to the law. [ 6 ] Turning to the merits of the appeal, the appellant submits that the motion judge made two errors. He argues that the motion judge erred in determining that an order for partition and sale would not prejudice a substantive right of the appellant.

Second, the appellant argues that the motion judge erred in finding that the motion was not frivolous and vexatious. [ 7 ] Both of these grounds involve findings of fact and are reviewable on a standard of deference which requires this court to conclude that the motion judge made palpable and overriding errors. [ 8 ] In our view, the motion judge made no such errors. [ 9 ] On the first issue, the motion judge referred to the legal test to be applied, addressed the jurisprudence and considered the evidence, including the slow pace of the matrimonial proceedings, in concluding that partition and sale was appropriate and would not interfere with any substantive rights of the appellant.

The other complicated disputes between the parties that are the subject of other litigation are not relevant to the issue in this case. The respondent is a tenant in common and has a right to ask for partition and sale. Money is going to be paid into court. We see no error, let alone a palpable and overriding error, by the motion judge in reaching the conclusion that the test for partition and sale is met.

[ 10 ] We also see no basis to find any error, let alone a palpable and overriding error, in the motion judge’s finding that the respondent’s motion was not frivolous or vexatious. The motion judge considered the history of the proceeding, the respondent’s request to sell the house since 2019, and the fact that neither party stood to gain financially at this stage as the proceeds would be paid into court.

Again, the respondent is entitled to request sale as a tenant in common and we see no error in the motion judge’s conclusion that the application was not oppressive, malicious or vexatious. [ 11 ] The appellant has requested, in the alternative, that he be allowed to remain in the home until the property has been sold. This is not an appropriate request to make to an appellate court. [ 12 ] The appeal is dismissed. [ 13 ] The respondent has not met the threshold for actual or substantial indemnity costs. She shall have her costs on a partial indemnity basis fixed at $15,187.20. Schabas J. Sachs J. Sutherland J.

Released: June 12, 2023