Appeal Court Says Two Counsel Unnecessary to Defend Meritless Appeal

In Marchese v. Marchese 2019 ONCA 116 the appellant wife brought an appeal from an order that the family home be sold. She argued that the court failed to consider the best interests of the children who were ages 22, 19, and 16 at the time of the trial order.

Mrs. Marchese had lived with the children in the home for a period of six years since the date of separation, however, the Appeal Court found that she had not advanced any legal basis for the Court to reverse the order. The Court noted that in the absence of demonstrating malicious, vexatious, or oppressive conduct on her husband’s part, related to the sale, there were no grounds for her appeal. Further, both parties were unemployed and unable to manage the costs of maintaining the property. The appeal was dismissed.

However, the matter of costs to the successful husband was not straight forward, as the Court commented that it was unreasonable that he be represented by two lawyers, given the lack of merit in the appeal. The Court also remarked that the cost to bring the husband’s new lawyer up to speed was something that ought not to be paid for by his wife.

Finally, in awarding the husband $10,000 all in, the Court considered that the wife had succeeded on her stay motion and successfully defended a motion for dismissal. The husband could have a “Cadillac” defence, but not at the expense of his wife.

Lawdiva aka Georgialee Lang

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