Offices in Ottawa and Perth
(613) 722-1500

CONTACT US (613) 722-1500

Occupation Rent

Occupation Rent

By:

Mann Lawyers

Posted June 11, 2018

After separation, if one spouse remains living in a jointly owned property or matrimonial home for some period of time, while the other spouse pays rent elsewhere, should the occupying spouse pay some amount of money in rent to the one who has decamped?

The right to occupation rent may be grounded in section 24(c) of the Family Law Act for married spouses where the spouse remaining in the home has a court order for exclusive possession, or on the basis of the common law and the discretion of the court. The mere fact that one spouse remained in the property after separation does not guarantee success on this type of claim.

Facts and factors matter in occupation rent claims. The courts will look to the conduct of both spouses (including any failure to pay support), the duration of sole occupancy, the ability (or inability) of the non-occupying spouse to access his or her equity in the property, competing claims in the litigation, and amounts that the occupying spouse has paid towards the mortgage or other costs of the house.

The court will also look to factors such as whether the occupying spouse failed to keep the property in good condition (thus potentially reducing the value of the property between separation and sale), and whether the non-occupying spouse was required to leave because of domestic violence charges.

Overall the court must examine whether it is reasonable and equitable to order occupation rent, given all the facts of a given case. It is the job of the non-occupying spouse to convince a court that occupation rent should be ordered.

The case law in this area confirms that even if occupation rent is ordered, the quantum may be far less than 50% of fair market rent for a variety of reasons, including the separation itself taking the occupying spouse by surprise (see: Erb v. Erb, [2003] O.J. No. 1527, at paragraphs 71 – 78).

Whatever stage of a separation one is at, this issue should be given due consideration, ideally within the wider context of the shared responsibility for ongoing expenses from the date of separation until a final settlement or trial.

This blog post was written by Jenny Johnston, a member of our Family Law team.  She can be reached at 613-566-2081 or at jenny.johnston@mannlawyers.com.

More Resources

Blog |
Real Estate
By: 
A tax sale is a sale process used by a municipality, in order to recover property tax arrears that have remained outstanding for at least[...]
Blog |
Wills, Trusts and Estates
By: 

Posted March 21, 2024

If someone wishes to make a Will or appoint a Power of Attorney, they must have the requisite capacity. The determination as to whether someone[...]
Blog |
Business Law
By: 

Posted March 13, 2024

A not-for-profit corporation incorporated pursuant to the Not-for-Profit Corporations Act (Ontario) (”ONCA”) is required to maintain certain records regarding the corporation, its members, directors and[...]
Blog |
Business Law
By: 

Posted March 5, 2024

With India having touched down on the surface of the moon last year, an impressive achievement by all accounts, we are reminded of the dozens[...]
Blog |
Family Law
By: 
Co-parenting with your ex-partner can be challenging. It involves constant coordination and communication about various aspects of your children’s lives. Whether it is about schedules,[...]
Blog |
Wills, Trusts and Estates
By: 
Over time, individuals could acquire assets in different jurisdictions that are governed by different legal systems. Similar to the consideration of double wills in distinguishing[...]

Subscribe to Our Newsletter

"*" indicates required fields

Name*
Consent*
This field is for validation purposes and should be left unchanged.