Should I stay or should I go: Occupation rent and the family home

By Sarah Kennedy
December 12, 2023

It goes without saying that, when couples separate, there are frequently a number of joint assets and joint debts left to untangle. And while it is easy enough to freeze a joint line of credit and split the contents of a joint savings account, addressing the disposition of a jointly-owned home is often not quite as straightforward.

Unsurprisingly, in the wake of the breakdown of their relationship, joint property owners often have little desire to continue their cohabitation. The result of this is frequently that one of the parties vacates the property, leaving the other to remain in the home until it can be transferred or sold.

The difficulty with leaving the family home is that, unlike in the case of a line of credit or a savings account, the delay associated with disposing of the property on a final basis can be significant. Frequently, one partner is hoping to buy out the other’s interest, but they find themselves unable to qualify for financing in the absence of a separation agreement. In many instances, the parties disagree on the terms of a listing agreement – such as when to sell the home, in what state, and for how much – and the sale of the home is held up as a result.

In the meantime, the owner who has vacated the home is left in the undesirable position of having to finance alternate living arrangements while also maintaining mortgage payments, property tax and the other ongoing expenses associated with their ownership interest in the property.

Unpacking occupation rent

The remedy for the temporary loss of a joint owner’s use of the property is a claim for occupation rent. This is discretionary relief – meaning that it is up to the trial judge to assess whether or not the order is appropriate in the specific circumstances of the case – and the factors that a judge will consider when making that decision have long since been outlined by the Court of Appeal for Ontario in the case of Griffiths v Zambosco. Those include: the timing of the claim; the duration of the occupancy, the inability on the non-occupying spouse to realize on their equity; any reasonable set-off costs; and, any other competing claims in the litigation.

Although relief in the form of a claim for occupation rent is certainly nothing new, the reality is that the courts have been historically reluctant to impose those costs on an occupying spouse in the family law context. Traditionally, the courts required some evidence of “ouster”, which refers to the deliberate prevention of access to a titled owner and, until recently, occupation rent was more often claimed as a defence to a claim for contribution to post-separation property expenses than as an “offensive” claim. The result has often been that there is limited recourse for titled owners displaced from their homes as a result of the breakdown of their relationship.

This appears to be changing of late, with the release of Court of Appeal for Ontario’s decision in September 2023 in the matter of Chhom v Green. In Chhom, the wife appealed an order made at trial requiring her to pay to the husband the sum of $31,500 as occupation rent on the basis that there were no exceptional circumstances that would warrant the payment of occupation rent. The Court of Appeal found the lack of such “exceptional circumstances” to be irrelevant to the analysis. In dismissing the wife’s appeal, and Court held that, while a claim for occupation rent did need to be “reasonable”, it did not need to be “exceptional.”

It is clear that a claim for occupation rent should no longer be viewed as somewhat of an empty threat: it is an increasingly significant legal claim to consider in the family law context and it requires that litigants consider how to address the disposition of the home as quickly as possible, lest they later find themselves facing a steep bill for their share of the rental value later on.

Sarah Kennedy is the Head of the Family Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l.

Sarah is certified in advanced family mediation, and has extensive litigation experience, including matters pertaining to custody, access, child and spousal support, equalization, and trust claims.

To contact Sarah Kennedy, click here!


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