SUPERIOR COURT OF JUSTICE
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Abraham Vanden Broeke,
Edward R. Van Voort, for the Applicant
Applicant
- and -
Janet Vanden Broeke,
No one attending for the Respondent
Respondent
HEARD: January 30, 2015,
at Thunder Bay, Ontario
Regional Senior Justice D. C. Shaw
Reasons For Judgment
1By order dated July 10, 2014, Justice Fitzpatrick ordered that the pleadings of the respondent, Janet Vanden Broeke, be struck in their entirety, other than her claim for divorce. The applicant, Abraham Vanden Broeke, was granted leave to proceed to an uncontested hearing, on affidavit evidence alone, without further notice to the respondent. These are the reasons for judgment on that hearing.
2In her pleadings, Ms. Vanden Broeke claimed a divorce and exclusive possession of the matrimonial home and its contents. She made no claim for equalization of net family property or for support. Mr. Vanden Broeke claimed equalization of net family property, exclusive possession of the matrimonial home, sale of the matrimonial home and occupation rent.
3The parties were married on August 8, 1980. They separated on September 29, 2012. They have two children who were independent adults as of the date of separation.
4Ms. Vanden Broeke has worked at Thunder Bay Regional Hospital for the past 11 years, in the patient billing department. Mr. Vanden Broeke is employed at Bombardier Transportation.
5Mr. Vanden Broeke owned the matrimonial home prior to marriage. Tittle remained in his name alone. On separation, Ms. Vanden Broeke remained in the home.
6After separation, Mr. Vanden Broeke paid all the expenses related to the home – mortgage, taxes and utilities. For the period September 29, 2012 to August 2014, when Ms. Vanden Broeke was evicted from the home pursuant to the July 10, 2014 order of Fitzpatrick J., Mr. Vanden Broeke paid $32,090.82 for those expenses. These expenses are verified by receipts, filed at the hearing with Mr. Vanden Broeke’s affidavit.
7On February 14, 2014, Ms. Vanden Broeke was ordered to provide income tax returns. She was also ordered to value her pension and to pay costs of $250.00. On March 20, 2014, an order was made that the home be listed for sale. On April 17, 2014, Mr. Vanden Broeke was granted exclusive possession of the home and was awarded costs of $1,500.00. On June 13, 2014, Ms. Vanden Broeke failed to attend a case conference and was ordered to pay costs of $250.00. On July 10, 2014, Fitzpatrick J. ordered a writ of possession in favour of Mr. Vanden Broeke regarding the home. Costs of $1,500.00 were awarded against Ms. Vanden Broeke. An Enforcement Officer had to attend the home to evict Ms. Vanden Broeke. Ms. Vanden Broeke did not comply with the orders for financial disclosure. She has paid none of the cost orders, which total $3,500.00.
8In my view, Mr. Vanden Broeke’s claim for occupation rent is well founded. Ms. Vanden Broeke refused to allow the sale of the home, which was in Mr. Vanden Broeke’s name alone. Mr. Vanden Broeke had to pay the expenses of the home, with no contribution from Ms. Vanden Broeke while she resided in the home. The adult children were no longer living in the home. There was no basis for Ms. Vanden Broeke’s initial claim for exclusive possession and she did not, in fact, actively pursue her claim for exclusive possession. She simply refused to move out of the home in the face of orders requiring her to do so.
9Mr. Vanden Broeke requests an order that there be no equalization payment by either party. In return, he is prepared not to seek an order for occupation rent and to abandon his entitlement to costs.
10I accept Mr. Vanden Broeke’s submission that:
he is entitled to occupation rent for more than $32,000.00;
he is entitled to outstanding costs of $3,500.00;
he is entitled to costs of the application, including costs of preparation for and attendance on the summary trial and costs of the divorce;
Ms. Vanden Broeke, herself, made no claim for equalization;
Ms. Vanden Broeke refused to value her pension, which was information necessary to determine the value of her net family property;
Ms. Vanden Broeke failed to comply with any court order made against her.
11An order shall therefore go that the parties’ net family property shall be deemed to have been equalized and that neither party shall make an equalization payment to the other.
12I make an order that Mr. Vanden Broeke’s application be amended to claim a divorce. Ms. Vanden Broeke claimed a divorce in her answer/claim, which was the only part of her pleadings not struck out by Fitzpatrick J. on July 10, 2014. An order shall go that Mr. Vanden Broeke and Ms. Vanden Broeke are divorced and that the divorce shall be effective in 31 days.
13There shall be no order as to costs.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: February 4, 2015
CITATION: Vanden Broeke v. Vanden Broeke, 2015 ONSC 805
COURT FILE NO.: FS-13-0393
DATE: 2015-02-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Abraham Vanden Broeke,
Applicant
- and -
Janet Vanden Broeke,
Respondent
REASONS FOR JUDGMENT ON
UNCONTESTED TRIAL
Shaw R.S.J.
Released: February 4, 2015
/mls