One party typically claims ‘Occupation Rent’ from the party still living in the residence, and the other party claims monies for the upkeep of the home including payment of mortgage and tax payments. If a spouse voluntarily vacates the Matrimonial Home an Order can be made under the Family Law Act, R.S.O. 1990, CHAPTER F.3 (“FLA”) for exclusive possession and occupiers rent pursuant to s. 24(1)( c) of the FLA. Furthermore, a title owner may still claim occupation rent under section 122 of the Courts of Justice Act, R.S.O. 1990, CHAPTER C.43 (“CJA”)– irrespective of an Order pursuant to s.24(1)( c) of the FLA.
Under the Family Law Act s. 24(1)( C), the statute indicates:
“24. (1) 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; (c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse”
Section 122 (2) of the Courts of Justice Act, also indicates that an action could be brought against a joint-tenant for accounting regarding the unequal share of property.
The Ontario Court of Appeal (ONCA) discussed ‘Occupation Rent’ and set a list of principles which the Court will take into account. Each case is fact specific. There is case law that indicates a spouse no longer living in the Matrimonial Home can claim ‘Occupation Rent’ from the spouse living in the Home. The surrounding circumstances may come into play, including the efforts and actions of the spouse living in the Home.
The leading case on “Occupation Rent” of the Matrimonial home is the 2001 Ontario Court of Appeal decision Griffiths v Zambosco et al, Griffiths v Zambosco et al, 54 OR (3d) 397,  OJ No. 2096 ONCA (“Griffiths”). In this case, the Court outlined the factors that should be taken into account for ‘occupiers rent’, as follows:
“(1) The timing of the claim for occupation rent; (2) The duration of the occupancy; (3) The inability of the non-resident spouse to realize on his/her equity in the property; (4) Any reasonable credits to be set off against occupation rent; and (5) Any other competing claims in litigation.”
In Griffiths, the ONCA indicated that the occupier Husband lived in the Matrimonial Home for 6 years after the matrimonial separation. Nonetheless, the total gross ‘occupiers rent’ was set off by other actions the occupier took while living in the home. In particular paying off the wife’s judgement creditors –in amounts exceeding $140,000. The Court in Griffiths indicated that the Occupation Rent “credits”, will be taken into account upon the sale of the Matrimonial Home.
Many Ontario Court cases suggest that ‘Occupiers Rent’ creates a fairness, which is the thrust of the Family Law Act. Often, ‘Occupation Rent’ owed is set off by any obligations (mortgage, tax, and insurance payments) paid by the occupier. All of these circumstances were that of joint tenants. In circumstances where the parties were not joint tenants it was assumed a constructive trust had occurred.
The totality of the circumstances including equity and sensibility are at issue when ‘Occupation Rent’ comes into play. The Court will consider a variety of factors when making the decision. Irrespective of the possible ‘matrimonial’ credit card debt, the Court will take into account money owed for occupiers rent and half the amount of carrying costs paid for the matrimonial home (i.e. mortgage, insurance, taxes). If the evidence shows that there was a strong attempt early on to sell the matrimonial home, and the other party has not made any payments for upkeep or maintenance, the law favours person who left the home.
In Erb v Erb,  OJ No. 1527, 2003 CanLII2112, the Ontario Superior Court of Justice addressed ‘Carrying Costs on Matrimonial Home and ‘Occupation Rent’. In Erb v Erb, the Plaintiff was ordered to pay ‘Occupation Rent’ which was set off by the Defendant’s upkeep (i.e. half of the mortgage, taxes and insurances). The Plaintiff claimed expenses totalling approximately 19,473$, prior to the date of sale. This represented half the amount of total expenses (mortgage, insurance and taxes) paid.
Furthermore, the Court commented on ‘Occupiers Rent’, as follows at para 73:
“73 In evaluating the claim for occupation rent, the jurisprudence establishes that a court has jurisdiction to grant occupation rent where it would be equitable and reasonable to do so. The court should look to a number of factors, including when the claim was first raised, the duration of the occupancy…”
In Erb v Erb, the Court accepted the Defendant’s proposition that ‘Occupation Rent’ should be applicable in the circumstances. However, the Court found that the matrimonial upheaval and circumstances came as a surprise to the Plaintiff, and the Court found that it was appropriate to generate a ‘grace period’ for the ‘Occupation Rent’. In this case a grace period of ten months at half the market value (1000$) was deemed appropriate, this was followed by 6 months of ‘Occupation Rent’ at the market value (2000$). Thus, ‘Occupiers Rent’ and obligations for carrying costs of the Matrimonial Home (i.e. mortgage payments, taxes, insurance) was set off between the two parties.
In Higgins v Higgins  OJ No. 3011,  OTC 576 (``Higgins``), the Ontario Court of Justice addressed Occupiers Rent. In Higgins, the husband remained the occupier of the house and expended monies for the upkeep of the home, property taxes, and mortgage payments. The husband indicated that the wife was unfairly enriched and asked to be reimbursed for half his expenditures. The Court surveyed numerous cases for ‘Occupiers Rent’, and created the following list of factors that should be considered:
“(1) The conduct of the non-occupying spouse, including the failure to pay support; (2) The conduct of the occupying spouse, including the failure to pay support; (3) Delay in making the claim; (4) The extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home; (5) Whether the non-occupying spouse moved for the sale of the home and, if not, why not; (6) Whether the occupying spouse paid the mortgage and other carrying charges of the home; (7) Whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support; (8) Whether the occupying spouse has increased the selling value of the property; (9) Ouster is not required.”
The Court in Higgins, indicated that it is important to do the arithmetic and create the proper off set amounts for mortgage payments, expenses, and rent owed. In this case the Court balanced out ‘Occupation Rent’ owed to the wife, and a reimbursement for half of all expenses paid by the husband.
In 2014, the Ontario Superior Court in Meza v Lavie  OJ No 1907, 2014 ONSC 2247., found that the “carrying costs” of the Matrimonial Home were to be paid by the Respondent to the Applicant. The Applicant (Husband) had been making payments and taking responsibility for the Matrimonial Home. The Husband provided evidence that he made payments for the mortgage and property taxes for the Matrimonial Home, from the date of separation until its sale. Thus, the Court ordered post-separation adjustments to be paid from the wife to the husband. In this case, ‘Occupiers Rent’ was not ordered by the Court. The husband did not provide any evidence for the ‘fair market’ value rental rates for the Matrimonial Home. As well, the husband did not take steps for the sale of the Matrimonial Home until 6 months after the date of separation and approximately 3 months after he left the matrimonial home. Thus, in this instance ‘Occupiers Rent’ was not appropriate because of the time between separation and the attempts made to sell the matrimonial home.
The Matrimonial Home is an important component of most divorces and separations. Thus, it is important to hire family law lawyers that can evaluate your case, and make the most of your specific scenario.
For assistance in evaluating your family law matters, please contact Jonathan Solomon (Extension 203) or Sabrina Herscovitch (Extension 204) of our office at 613-722-1313.
Menzies Lawyers is a multi-service Ottawa based litigation firm which can assist with a broad range of civil litigation and family law matters. This blog article by Jonathan Solomon is for informational purposes only and does not constitute legal advice.