Occupation Rent: Exclusive Possession Continued

In my last blog post I discussed the concept of exclusive possession and how a spouse may be able to claim such a remedy.

S. 24(1)(b) of the Family Law Act (“FLA”) provides for the remedy of exclusive possession that applies to MARRIED SPOUSES. This section provides that:

Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;

Once this order for exclusive possession has been granted by the court, the party who is not residing at the home may then be able to receive an order for Occupation rent.  See s. 24(1)(c):

(c)[The Court may] direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;

Now this is interesting.  If a married spouse is granted exclusive possession of the home, they may then be required to pay occupation rent to the other spouse!

The order of events is important here.  First there has to be the Order granting exclusive possession to one spouse, THEN there can be an Order requiring that person with possession to pay occupation rent to the other spouse.[1]

 

Factors for determining occupation rent

Occupation rent is what is known as an equitable remedy.  In order to determine if someone should be entitled to receiving occupation rent, the courts will want to evaluate if there is a justifiable reason to provide this remedy.  The court will do this by looking at some factors as discussed by Osborne A.C.J.O. in Griffiths v. Zambusco, 2001 CanLII 24097, 54 O.R.(3d) 397 (C.A.) at para 49.  Keep in mind that these factors can vary from case to case:

  • The timing of the claim for occupation rent;
  • The duration of the occupancy;
  • The inability of the non-resident spouse to realize on her equity in the property;
  • Any reasonable credits to be set off against occupation rent;
  • Any other competing claims in the litigation.

Justice Quinn in Higgins v. Higgins, at para 53 provides us with an even more detailed list for evaluation:

From the cases I have reviewed, I note the following may be relevant considerations when determining the appropriateness of an order for occupation rent:

(a)  the conduct of the non-occupying spouse, including the failure to pay support;

(b)  the conduct of the occupying spouse, including the failure to pay support;

(c)  delay in making the claim;

(d)  the extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home;

(e)  whether the non-occupying spouse moved for the sale of the home and, if not, why not;

(f)  whether the occupying spouse paid the mortgage and other carrying charges of the home;

(g)  whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support;

(h)  whether the occupying spouse has increased the selling value of the property;

(i) ouster is not required, as once was thought in some early decisions.

 

Common law Spouses

In my exclusive possession blog post linked above, I discussed how Common Law spouses do not have the same protections that Married spouses do under the Family Law Act.  This same principal is true regarding occupation rent.

Common law spouses must rely on the common law in order to claim exclusive possession or occupation rent.  As stated above, married spouses first need an Order for exclusive possession before the other spouse can claim occupation rent.

There is no need to demonstrate co-tenancy for an ex-married spouse to claim exclusive possession or occupation rent; however, a common law spouse is required to demonstrate [co-tenancy][2]; i.e., that they are an owner of the property, OR that they have an equitable interest in the property.[3]

What this means is that the common law spouse has to show they have an ownership interest in the property, or that they put some value towards the property that would entitle them to an ownership interest.  Without this, the common law spouse is unlikely to have a claim for exclusive possession or occupation rent.

Also, in order to claim occupation rent, a common law spouse must show there was Ouster.  This principal essentially means that a spouse has to be ejected from the property to claim occupation rent.  See the following definition from Crawford v. Crawford, [1953] O.W.N. 781 as follows (at 784):

… In the case of joint tenants or tenants in common the claim [for occupation rent] is founded on ouster or ejectment, for they stand in no contractual or landlord-and-tenant relationship to each other …. The right to recover for use and occupation is by way of damages, upon the case for ejectment and trespass. I hold that in the case of joint tenants the right to recover for use and occupation is on the same basis.

 

How do we calculate occupation rent?

The general approach taken by courts is to begin by assessing the appraised rental value for the property at the time that an individual has exclusive possession of the property.[4]  The courts will then consider the responsibility of the parties towards the upkeep of the home,[5] which can include, taxes, utilitites and other carrying costs of the home.

This demonstrates that the occupation rent payable by one spouse to another can vary depending on the home, mortgage, and upkeep costs of the home itself.  This will have to be assessed on a case by case basis.

 

Occupation Rent Awarded

Rogers v. Rogers, 2018 ONSC 2381

  • couple married for seven years with two children
  • children remained in matrimonial home with mother after separation
  • children would live with father three days a week
  • mother was contributing to taxes and routine maintenance only
  • property value could attract rent of about $3-4 thousand
  • divide by two and taking into account father’s responsibility for half of upkeek, court order mother to pay father $1000 a month

Hollaway v. Devenish, 2009 CanLII 64833, [2009] O.J. No. 5008 (S.C.J.)

  • home purchased as joint tenants during common-law relationship
  • she moved from home while he continued to occupy
  • she agreed that he was entitled to reimbursement for expenses of home, but not utility expenses tenant would pay
  • generally as common law, have to show there was ouster
  • however, exception to that rule where requirement for ouster not needed for common law couple, where party who remains in possession claims for a reimbursement of expenses
  • person remaining in home not allowed to claim reimbursement for expenses, but then not pay occupation rent

 

Occupation Rent Denied

Busko v. Israel, 2018 ONSC 5842,

  • wife claimed occupation rent
  • however, no claim for exclusive possession was made, nor was there an order for it
  • wife voluntarily left home, title to home solely in name of husband
  • no constructive trust or resulting trust claimed by wife
  • no occupation rent awarded

Ombac v. George, 2015 ONSC 1938,

  • common law wife awarded 50% beneficial interest in home,
  • common law husband lived in home since separation
  • wife left home voluntarily, had a key to the residence, and didn’t seek occupation rent until 7 years after leaving the home
  • she was also violent towards the husband and made no financial contribution to the residence after leaving
  • no occupation rent awarded

 

Information provided is for legal information purposes only and is not to be construed as legal advice.

[1] Higgins v. Higgins, 2001 CanLII 28223, 19 R.F.L.(5th) 300 (Ont.S.C.J.); Wimalaratnam v. Wimalartnam, 2010 ONSC 4491; Chowdhury v. Chowdhury, 2010 ONSC 781.

[2] Jones v. Jones, 2000 CanLII 22524, 8 R.F.L.(5th) 107 (Ont.S.C.J.); Cerenzia v. Cerenzia, 2015 ONSC 7305 (at para. 79).

[3] Ricciuto v. Lecuyer, 2011 ONSC 6070 (Div.Ct.).

[4] Khan v. Khan, 2015 ONSC 6780, 2015 CarswellOnt 16622

[5] Rogers v. Rogers, 2018 ONSC 2381