Matrimonial Home and Occupation Rent

October 14, 2011

Disclaimer: The information contained in this article is general in nature and does not constitute legal advice. You should contact Jeff Li or a family law lawyer if you are concerned about your family law issues.

When couples get married, a set of rules with respect to property are imposed on them. A spouse may ask the court for exclusive possession of the matrimonial home. If granted, a spouse will be “kicked out” of the home, even if he or she owned the home prior to the marriage. The law, however, does provide a potential remedy to compensate the interest of the title owner of the home: occupation rent.

Under section 24(1)(c) of the Family Law Act, the court may direct the spouse who is granted exclusive possession to make periodic payments to the other spouse. Such payments are referred to as occupation rent.

Note that occupation rents under section 24(1)(c) of the Family Law Act is only available if the court had issued an order for exclusive possession. If a spouse voluntarily vacates the matrimonial home, this remedy is not available. In such a situation, however, the title owner may still claim occupation rent under section 122 of the Courts of Justice Act.

Whether occupation rent will be ordered is governed by case law. In Griffiths v. Zambosco, the Ontario Court of Appeal list several factors to consider in ordering occupation rent, including:

(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 approximately the same time of Griffiths, Justice Quinn of the Ontario Superior Court of Justice also reviewed the case law and outlined its own list of relevant factors in Higgins v. Higgins:

(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.

Although people (including Justice Quinn in Higgins) may have different opinions, occupation rent is usually granted in exceptional cases. Case law continues that occupation rent is not routinely ordered.

While a spouse may initiate an application for occupation rent, it may also be in response to a claim for contributions towards costs and expenses in maintaining the matrimonial home. Likewise, an application for occupation rent may also be countered by a claim for costs of maintaining the matrimonial home by the occupying spouse.

 

Copyright: Jeff Jiehui Li

 

Related blogs:

Special “Properties” of the Matrimonial Home

Dividing Family Property in Ontario

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