Court File and Parties

Court of Appeal for Ontario Date: 20231023 Docket: COA-22-CV-0385

Harvison Young, Thorburn and Favreau JJ.A.

Between:

Estrelia Non Chhom Applicant (Appellant)

And:

Melvin Kirk Green Respondent (Respondent)

Counsel: Akshay Sandhir, for the appellant John V. Grant, for the respondent

Heard: September 19, 2023

On appeal from the orders of Justice James A. Ramsay of the Superior Court of Justice, dated November 2, 2022 and November 17, 2022.

Reasons for Decision

[1] The appellant wife appeals a number of orders made following a half-day trial. The issues were straightforward: spousal support; equalization; and the disposition of the matrimonial home. This was a second marriage, there were no children of the marriage and the parties cohabited for nineteen years. The main assets are the matrimonial home and the husband’s McMaster University pension. Following a half-day trial, the trial judge ordered that the parties be divorced and made a number of orders pertinent to this appeal.

[2] He ordered that the respondent husband pay spousal support at the rate of $4,295.00 per month commencing December 1, 2022, and ending March 31, 2024, his retirement date, and $780 per month thereafter. He also ordered that the husband pay the appellant wife $238,851.17 to equalize their respective net family properties. This amount was comprised largely of the husband’s pension from McMaster University.

[3] The matrimonial home was owned in common, and the appellant wife had enjoyed exclusive possession since the parties’ separation in July 2017. The trial judge ordered that it be sold forthwith, with the proceeds to be paid into court pending further court order or the consent of the parties, and that the appellant continue to have exclusive possession until March 2023.

[4] Finally, the trial judge ordered that the appellant wife pay the respondent husband occupation rent in the amount of $31,500.00.

[5] The appellant raises three arguments on appeal. First, she argues that the trial judge erred in ordering that she pay the respondent occupation rent. Second, she argues that the trial judge erred in failing to assist her in the course of the trial as a self-represented litigant. Third, she submits that the trial judge erred in failing to find that the respondent’s Alberta pension value had increased for equalization purposes.

[6] We would not give effect to any of the appellant’s proposed grounds of appeal.

[7] The relevant factual background may be briefly summarized. The parties (now aged 64 and 68 respectively) commenced a romantic relationship in July 1997 when they both lived in different cities. The respondent obtained a position at McMaster University in Hamilton after which they relocated to Hamilton and moved in together in September 1998. They subsequently married on February 14, 2002. The matrimonial home is held in common. The husband’s pension was valued, and the value is not in dispute. The appellant has been living in the matrimonial home throughout the proceedings. Although she was self-represented at trial, she had approximately four lawyers at various points prior to the trial.

[8] In respect of the first issue, we find that the trial judge made no reversible error in ordering the occupation rent. The appellant argued before this court that the trial judge erred in law because he did not apply the requirement that such an order be exceptional. We disagree. While it is settled law in Ontario that an order for occupation rent be reasonable, it need not be exceptional: Griffiths v. Zambosco, (2001), 54 O.R. (3d) 397. The appellant was unable to refer us to any Ontario authority in support of the argument to the contrary.

[9] In addition, the trial judge’s reasons concerning the occupation rent were adequate. The relevant factors to be considered when occupation rent is in issue in a family law context are: the timing of the claim for occupation rent; the duration of the occupancy; the inability of the non-resident spouse to realize on their equity in the property; any reasonable credits to be set off against occupation rent; and any other competing claims in the litigation: Griffiths v. Zambosco, at para. 49.

[10] While the trial judge did not explicitly explain why he ordered occupation rent and how he arrived at the amount, it is evident from his reasons as a whole that he considered the relevant factors in concluding that an order for occupation rent was reasonable in his view. For example, the trial judge acknowledged that the respondent’s voluntary payments to the appellant of about $4,000 per month from the time of separation until January 1, 2020 did not give rise to a tax deduction for the respondent. The respondent effectively paid about $55,000 more than he should have, and the trial judge was alive to the corresponding, although not equal, tax advantage to the appellant, all while the appellant had exclusive use of the matrimonial home for 63 months. In addition, while the trial judge found that the matrimonial home might have rented for $1,750 per month on a “conservative estimate”, his award of $31,500 represents far less than that amount given the length of the appellant’s occupation of the matrimonial home.

[11] The appellant has not established any basis for interfering with this discretionary finding which was supported by the evidence. The trial judge considered and applied the Griffiths factors, and the amount ordered was based on the record before him.

[12] With respect to the second issue, the trial fairness argument, the appellant submitted that the trial judge had a trial fairness duty to assist her as a self-represented litigant more than he did. The appellant focused on the Statement of Agreed Facts, which was based on the Request to Admit to which she did not reply. The appellant submits that the trial judge should have ensured that she understood the consequences which follow from a failure to respond to a Request to Admit, namely that the lack of a response from the appellant renders the facts set out in the Statement as true and admitted pursuant to r. 22(4) of the Family Law Rules, O. Reg. 114/99.

[13] Again, we do not agree. The Request to Admit sets out r. 22(4) clearly on the form with which the appellant was served. While she asserted that she had problems with focus during the trial, the trial judge specifically found that she “was fully able to concentrate to the extent that she wanted” in the courtroom. This is well supported by the transcript.

[14] More generally, a review of the transcript shows that the trial judge did provide the appellant with assistance during the trial. For example, he asked her questions as she was giving her evidence which ensured that she was covering the issues that were before the court.

[15] Finally, we find no merit to the appellant’s third ground of appeal that the Alberta pension had increased for equalization purposes. The value of the Alberta pension as a capital asset crystallized before the marriage. The respondent was already in receipt of that pension when the parties married. Any increases in the amounts he received did not affect the capitalized value of his pension as at the valuation date.

[16] The appeal is dismissed. Costs of the appeal are payable by the appellant to the respondent in the amount of $10,000.00.

“A. Harvison Young J.A.” “Thorburn J.A.” “L. Favreau J.A.”