Court File and Parties

Court File No.: FC-21-484
Date: 2025/02/14
Court: Superior Court of Justice – Family Court – Ontario

Applicant: Sophia Kay Hill
Respondent: Ian James Hill

Before: Owen Rees
Counsel: Alexandra Kirschbaum for the Applicant
No one appearing for the Respondent.

Heard: February 11, 2025
Uncontested Trial

Endorsement

Overview

1This is an uncontested trial. The applicant, Sophia Hill, seeks a divorce, occupation rent, direction to the solicitor holding the net proceeds of the sale of the matrimonial home to disperse the proceeds in accordance with her accounting, and costs on a full indemnity basis.

2I granted a divorce order at the conclusion of the hearing and reserved on the other relief.

Background

3The parties began cohabiting in December of 2014. They were married in Jamaica on July 14, 2018 and were separated on February 13, 2021.

4The parties have no children together. Ms. Hill has three children from a previous marriage that resided with the parties during their relationship.

5The application was issued on March 5, 2021 and the respondent, Ian Hill, filed an answer on October 19, 2021.

The Matrimonial Home

6On October 29, 2021, Ms. Hill brought a motion for the sale of the matrimonial home. Mr. Hill brought a cross-motion for exclusive possession of the matrimonial home. Ms. Hill’s motion was successful, and the matrimonial home was listed and sold. The closing date of the sale was April 26, 2022.

The Applicant’s Motion to Strike the Respondent’s Pleadings

7Ms. Hill served Mr. Hill with a motion to strike his pleadings for failure to provide disclosure. Justice Parfett adjourned the motion to allow Mr. Hill to provide the court with the ordered disclosure and to retain counsel. Justice Parfett also ordered the solicitor holding the net proceeds from the sale of the matrimonial home to pay to Ms. Hill costs from the previous motion, costs from the current appearance and a sum of money related to the transfer of title of a 2018 GMC Sierra. $13,000 was released to Mr. Hill to be used to pay a lawyer for the return of the motion and to assist with compliance with the disclosure orders.

8Ms. Hill agreed to transfer title to the 2018 GMC Sierra Truck to Mr. Hill and to pay off the existing loan out of the amount of money Justice Parfett awarded her. Mr. Hill thus received a loan-free vehicle worth about $48,263, which was to come out of his share of the net proceeds of sale of the matrimonial home.

The Return of the Applicant’s Motion to Strike the Respondent’s Pleadings

9The motion returned before Justice Shelston on March 21, 2023. Mr. Hill sought a further adjournment. He had not filed any materials. Nor had he hired a lawyer. Justice Shelston adjourned the motion for a final time to allow Mr. Hill to file materials.

10The matter returned before Justice Shelston on May 9, 2023. Justice Shelston struck Mr. Hill’s claim for an equalization payment or an unequal division of net family property, and ordered that Ms. Hill could proceed to an uncontested trial.

The Uncontested Trial

11The uncontested trial materials were submitted in 2023. On August 30, 2024, the court released an endorsement directing that the matter was to proceed to a hearing on a regular motions list.

Analysis

Occupation Rent

12Ms. Hill seeks occupation rent from Mr. Hill’s occupation of the matrimonial home following separation.

13In considering whether to award occupation rent, the court must consider the factors set out in Higgins v. Higgins, 19 R.F.L. (5th) 300 (Ont. S.C.). The principal factors applicable to this case are:

a. The conduct of the occupying spouse;
b. The extent to which the non-occupying spouse was prevented from having access to her equity in the home;
c. Whether the non-occupying spouse moved for the sale of the home and, if not, why not; and
d. Whether the occupying spouse paid the mortgage and other carrying charges of the matrimonial home.

14The parties jointly owned the home at 1186 William Mooney Road, Carp, Ontario. Ms. Hill purchased the home in 2010. It was originally listed in her name only when Mr. Hill moved into the home in December 2014.

15At this time, Ms. Hill was also renting the 4,000 square foot shop space on the property for $1,500 per month to an auto repair business and towing company.

16In 2016, Mr. Hill evicted the shop tenants on the property and took over the shop space for his own roofing business at no cost. As a result, Ms. Hill no longer benefitted from the rental income from the shop.

17Ms. Hill was pressured by Mr. Hill to transfer ownership into joint ownership with him. Ms. Hill did this in March 2018 without consideration from Mr. Hill.

18Ms. Hill paid all the carrying costs of the matrimonial home from separation, including while Mr. Hill lived there.

19In addition, Ms. Hill made rental payments on her own residence following separation in the amount of $2,679 per month.

20I find that the combined rent and carrying costs of the matrimonial home totalled $5,279 per month.

21I am satisfied that Ms. Hill took all appropriate measures to deal with this matter expeditiously. The parties’ separation date is February 13, 2021. Ms. Hill had her application issued in March 2021, and sought the sale of the matrimonial home and occupation rent.

22By contrast, Mr. Hill delayed the progress of this matter and flouted court orders. There were several interim orders which compelled Mr. Hill to pay his 50% share of the carrying costs of the home. He did not comply with these orders.

23Mr. Hill also delayed the sale of the matrimonial home. He only consented to the sale on October 29, 2021, after a motion seeking that relief was sought by Ms. Hill. He signed the listing agreement on January 19, 2022, later than the 30-day timeline ordered by the court, and the sale didn’t take place until April 2022.

24In addition, Mr. Hill also refused to pay the utilities for the matrimonial home after Ms. Hill left. Mr. Hill ordered propane on Ms. Hill’s account and refused to pay the bill, so she closed the accounts for heat, hydro and internet in June 2021.

25The Financial Statement Mr. Hill swore on October 19, 2021 stated that his income was $58,638. This did not take into account any pre-tax income from his corporation. I am satisfied that Mr. Hill had the ability to pay the carrying costs of the matrimonial home post-separation.

26By way of motion, Ms. Hill was only able to recoup some of the share of the carrying costs of the home from the proceeds of the home.

27Although Ms. Hill alleges that Mr. Hill made a malicious complaint to the police—which led to charges for which she was ultimately acquitted—I need not make any findings in this regard.

28Rather, in the circumstances, I am satisfied that Mr. Hill should pay occupation rent based on the above factors.

29Based on the appraisals filed, I am satisfied that one half of the rental value of the home is $2,250 per month.

30Mr. Hill shall pay occupation rent from the date of separation to the date of the sale of the matrimonial home, which totals $31,500.

Disbursement of Sale Proceeds

31The net proceeds of the sale of the matrimonial home were $361,908.20. At that time, Mr. Hill’s half of the proceeds were $180,954.10.

32From Mr. Hill’s share, I deduct the following amounts:

a) $13,000, which was released to Mr. Hill, further to the court’s order of November 17, 2022;
b) $10,500 in costs ordered paid to Ms. Hill on October 29, 2021;
c) $1,500 for the insurance on the 2018 GMC Sierra from November 2021 to May 2022;
d) $262.50 for the licence plate renewal;
e) $48,263 ordered be paid from Mr. Hill’s portion of the sale proceeds for the value of the 2018 GMC Sierra Truck Loan;
f) $1,808 and $5,800 in costs awarded to Ms. Hill by Justice Shelston;
g) $9,100 in carrying costs of the matrimonial home pending closing;
h) $31,500 in occupation rent; and
i) $19,000 in costs of the application.

Balance: $40,220.60

33As a result, I direct the solicitor holding the net proceeds of sale pay to Mr. Hill $40,220.60. From this, $5,000 shall be held back pending Mr. Hill’s compliance with Justice Shelston’s order dated May 9, 2023 to return Ms. Hill’s contents from the matrimonial home. If he fails to do so within 30 days of this endorsement, I order that Ms. Hill be paid the $5,000.

34I further direct that the solicitor holding the net proceeds of sale pay to Ms. Hill the balance of the funds held in trust.

Equalization

35Ms. Hill withdraws her claims for equalization of net family property and unequal division of net family property because she does not have enough disclosure required to calculate what either party would owe as a payment. The withdrawals of these claims are without prejudice to Ms. Hill pursuing these claims in future proceedings raising the equalization claim.

Costs

36Under the Family Law Rules, O. Reg. 439/07, s. 1, “proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs”: Beaver v. Hill, 2018 ONCA 840, para. 12. Rule 24(14) sets out the appropriate considerations in fixing the quantum of costs.

37Ms. Hill seeks full indemnity costs in the amount of $29,606, all inclusive. I am not persuaded that this is an appropriate case to award Ms. Hill full indemnity costs. That said, Mr. Hill’s conduct and flouting of court orders is deserving of sanction. His conduct caused hardship to Ms. Hill.

38Accordingly, I find that this is an appropriate case to award costs at a rate of 70% of the costs incurred by Ms. Hill.

39The untimely passing of Ms. Hill’s previous counsel inevitably caused some duplication in work despite the efforts of her successor counsel to minimize this. Mr. Hill should not have to bear the burden of this.

40I also make a reduction for overall reasonableness.

41Therefore, I award Ms. Hill $19,000 in costs.

Disposition

42The application is granted in accordance with these reasons. Ms. Hill shall send my judicial assistant a draft judgment for my review.

Owen Rees