Court File and Parties
Court File No.: FC1299/18 Date: February 9, 2021 Ontario Superior Court of Justice Family Court
Between: Craig Robert Guy Weese, Applicant Counsel for Applicant: Ashley Healey
And: Ashley Claire Milton, Respondent Counsel for Respondent: No one appearing
Heard: February 5, 2021
Before: Mitrow J.
Introduction
[1] This was an undefended trial. The respondent’s pleadings were struck by an earlier court order.
[2] The issues on the trial were the granting of a divorce, equalization payment and the applicant’s claim for occupation rent.
[3] The evidence as to the merits of the applicant’s claim was contained in affidavits filed by the applicant.
[4] The applicant filed a complete and detailed evidentiary record [1] that contained all the necessary evidence and documents. The applicant did give some brief oral testimony, limited to the evidence necessary to obtain a divorce.
Relevant Background
[5] The parties were married on April 28, 2012 and separated on or about November 5, 2017. There are no children of the marriage.
[6] On separation, the respondent remained in the matrimonial home, which was registered in the sole name of the applicant.
[7] The application was commenced in October 2018. The evidence demonstrates that the applicant had significant difficulty securing the cooperation of the respondent to allow him to sell the matrimonial home. There were numerous court attendances. There were motions brought by the applicant. The respondent frequently came to court without filing documents and asked for adjournments. The respondent was ordered to pay costs at various steps in the proceeding and those costs remain unpaid. The respondent continued to refuse to sign the spousal consent in order to have the matrimonial home sold and it was her refusal that necessitated motions being brought by the applicant.
[8] At times, the respondent would agree to cooperate but then refuse to follow through with signing the requisite documents.
[9] The respondent’s non-cooperation reached a level such that, in early June 2019, the applicant served a motion seeking leave to obtain a writ of possession and to dispense with the respondent’s consent for the listing and sale of the matrimonial home.
[10] Finally, on or about June 26, 2019, the respondent vacated the matrimonial home. She had been in the matrimonial home since the date of separation.
[11] It was the applicant’s evidence that, on vacating the matrimonial home, that the respondent failed to remove her belongings and that she left the matrimonial home “… in a state of disrepair and disarray with garbage and junk strewn throughout the property. The state of the property was horrible.” The applicant’s evidence includes colour photographs that confirm the applicant’s description of the residence.
[12] While the respondent remained in possession of the matrimonial home, the applicant continued to pay a number of expenses for the benefit of the respondent, including ongoing mortgage payments, hydro payments and condominium fees. I am satisfied that the expenses paid by the applicant, for the benefit of the respondent while she remained in the matrimonial home, are accurately summarized in his material and total $20,773.86. [2]
[13] The applicant also incurred various expenses after he took possession of the matrimonial home relating to cleaning and repairing the matrimonial home and having to store the respondent’s possessions in a storage unit.
[14] I am satisfied on the evidence that those additional costs to the applicant total $1,606.77. [3]
Divorce
[15] The certificate of marriage confirms that the parties were married on April 28, 2012 in the City of London. I find that the parties separated on or about November 5, 2017.
[16] A divorce is granted.
Equalization Payment
[17] The evidentiary record contains a net family property statement prepared by the applicant, with satisfactory backup material to verify the calculation of each party’s net family property. [4]
[18] I find that the applicant's net family property statement correctly states each party's net family property. The respondent had nominal assets and no debts, either at date of separation or date of marriage.
[19] I am satisfied on the evidence that the applicant’s net family property is zero and that the respondent’s net family property is $1.17.
[20] On the evidence that the respondent owes an equalization payment of $0.59, which I round to zero.
[21] Even though the equalization payment as calculated is zero, it is understandable why the applicant wanted the court to quantify the equalization payment, rather than simply withdrawing that claim. The applicant wanted to avoid a situation, if the claim was withdrawn, of facing a potential of the respondent returning to court and starting a fresh proceeding for an equalization payment. By having judgment for an equalization payment in the present case, this renders the matter res judicata, which was the applicant’s reasonable objective.
The Applicant’s Claim for Occupation Rent
[22] A court has jurisdiction to order a party to pay occupation rent if it is reasonable and equitable to do so: Griffiths v. Zambosco, 2001 CarswellOnt 1899 (Ont. C.A.), at para. 49.
[23] During the years that the respondent was in possession of the matrimonial home following separation, and until she vacated the matrimonial home (the respondent was in possession from November 2017 to June 2019), the evidence shows that the applicant’s line 150 income was $79,026 in 2017, $49,373 in 2018 and $65,227 in 2019. For each of those three years, the line 150 income did include RRSP income ranging from a low of $273 to a high of $2,708.
[24] The only evidence as to the respondent’s income was her sworn financial statement. The respondent disclosed an income of $732 per month from social assistance.
[25] From the evidentiary record it is apparent, at least prima facie, that the respondent had no assets and was in receipt of social assistance.
[26] In a family law case, where both parties are participating and where a claim for occupation rent is made, then the court is in a position to assess the claim for occupation rent in context of assessing other claims, including a potential claim for spousal support.
[27] In the present case, while the respondent had asserted a claim for spousal support in her answer, that claim was not pursued.
[28] The applicant, in one of his alternative submissions, requested that the money paid by the applicant for the benefit of the respondent be quantified as lump sum spousal support.
[29] There are many unanswered questions regarding the respondent, including why she failed to defend this court case, whether she is capable of working and what her current circumstances might be.
[30] The applicant has a concern that the respondent, at some point, could return to court and seek to pursue a claim for spousal support. Accordingly, one of the motivating factors for the applicant in pursuing occupation rent, is to have that amount quantified and to have judgment against the respondent for that amount, which the applicant could use as a set-off against any future potential claim for spousal support.
[31] Given the evidentiary record, there is no evidence to suggest that the respondent will be in a position to make a payment for occupation rent. The applicant seeks in excess of $30,000 for occupation rent and has provided detailed calculations, including an expert’s report as to the rental value of the matrimonial home.
[32] Occupation rent can be quantified if it is “reasonable and equitable” to do so (see Griffiths, supra). I find in the circumstances that it is not appropriate to engage in a quantification of occupation rent, as the court does not have the “complete picture” regarding the respondent’s circumstances.
[33] The fact that the respondent’s circumstances are unknown, of course, is not the fault of the applicant and he cannot be held accountable for that. However, the applicant can be adequately protected if the payments that he has made are quantified as lump sum spousal support and, secondly, if his claim for occupation rent is dismissed but without prejudice to the applicant’s right to assert a claim for occupation rent in the event that the respondent should, in the future, bring a fresh claim for spousal support. The applicant did propose this order in one of his alternative submissions.
[34] Accordingly, I quantify the lump sum spousal support paid by the applicant to be $22,380.63 ($20,773.86 + $1,606.77), which I round to $22,380.
Conclusion
[35] The order made below is in accordance with these reasons.
[36] The applicant requested an opportunity to make costs submissions and the order below deals with same.
[37] I also add an observation that at times, in undefended trials involving property claims, that there has been an unfortunate tendency for an applicant to fail to submit a fulsome evidentiary record in the belief that, because the case is undefended, that the same level of preparation as for a defended trial is not required. That, of course, is not correct.
[38] In the case at bar, the applicant’s counsel is commended for filing a very thorough and complete evidentiary record to allow the court to make findings of fact and to render a judgment.
[39] If the applicant feels it is necessary, in a final order, to list the outstanding interim costs orders made against the respondent which remain unpaid, then the applicant should address that issue in his costs submissions.
[40] The applicant was unaware as to the respondent’s current address, but did provide the respondent’s email address, which is reflected in the order below.
Order
[41] I make the following final order:
A divorce is granted.
The equalization payment is calculated to be zero and neither party owes the other party an equalization payment.
The payments made by the applicant for the benefit of the respondent are quantified pursuant to the Divorce Act as lump sum spousal support in the amount of $22,380, which has been paid by the applicant to the respondent.
The applicant’s claim for occupation rent is dismissed on a without prejudice basis. Should the respondent claim spousal support at any time in the future, then the applicant shall be at liberty to raise his claim for occupation rent.
A copy of the divorce order shall be served on the respondent by email at cmilton14@hotmail.com and proof of service shall be filed.
Within 21 days, the applicant’s written costs submissions shall be forwarded to the court electronically in the usual manner and a copy shall be forwarded to the trial coordinator. Costs submissions are limited to three typed pages, double-spaced, together with copies of any offers to settle, bill of costs and time dockets.
“Justice Victor Mitrow” Justice Victor Mitrow Released: February 9, 2021
Footnotes
[1] The thorough evidentiary record consisted of Ex. #1 (documents for uncontested hearing), Ex. #2 (supplemental documents for the uncontested hearing) and Ex. #3 (the respondent’s financial statement sworn January 25, 2019, with the original Ex. #3 being found in the continuing record, volume 1, tab 5).
[2] Ex. #2, tab 2
[3] Ex. #2, tab 1
[4] Applicant’s net family property statement found at Ex. #1, tab 3, applicant’s financial statement sworn November 9, 2020, Ex. I.