By Kayleigh Pink, Associate Research Lawyer,
Lam Family Law*
It has been a little over one year since the Court of Appeal for Ontario (“ONCA”) released its decision in Non Chhom v. Green, 2023 ONCA 692 (CanLII), confirming that an order for occupation rent need not be “exceptional”. This article discusses how Ontario courts have treated occupation rent claims in subsequent decisions.
What is Occupation Rent?
Where there is an order for exclusive possession of the matrimonial home, the court may award the non-occupying spouse occupation rent pursuant to s. 24(1)(c) of the Family Law Act, RSO 1990, c F.3 (note that the term “occupation rent” is not used in the legislation).
Where there is no order for exclusive possession, the court “has the power at common law to order occupation rent.”: Khan v Khan, 2015 ONSC 6780 (CanLII), at para 11, citing s. 24 of the Family Law Act.
An award for occupation rent “usually represents half of the rent that could have been earned had neither spouse lived in the house”: Khan v Khan, 2015 ONSC 6780 (CanLII), at para 11. Followed in, e.g., Doyle v De Sousa, 2023 ONSC 3163 (CanLII), at para 40.
In Non Chhom v. Green, 2023 ONCA 692 (CanLII), the ONCA stated: “While it is settled law in Ontario that an order for occupation rent be reasonable, it need not be exceptional”: para 8.
Factors to Consider
The relevant factors to be considered when occupation rent is at issue in a family law context are (Non Chhom v. Green, 2023 ONCA 692 (CanLII), at para 9):
- the timing of the claim for occupation rent;
- the duration of the occupancy;
- the inability of the non-resident spouse to realize on their equity in the property;
- any reasonable credits to be set off against occupation rent; and
- any other competing claims in the litigation.
In several recent decisions, the Ontario Superior Court of Justice has additionally considered the following factors:
- 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; and
i. ouster is not required, as once was thought in some early decisions.
See, e.g., Ginese v. Fadel, 2024 ONSC 3011 (CanLII), at para 26 & Delongte v. Delongte, 2024 ONSC 3454 (CanLII), at para 244, both citing Higgins v. Higgins, 2001 CanLII 28223 (ON SC), at para 53.
Occupation Rent Claims in Ontario After Non Chhom v. Green
Occupation Rent Ordered
In the following cases, the court awarded occupation rent and cited Non Chhom v. Green for the principle that occupation rent need not be “exceptional”.
1. Cirota v. Cirota, 2024 ONSC 4117 (CanLII)
The mother left the matrimonial home with the three children due to the father’s threatening and erratic behaviour. After initially residing with the maternal grandparents, the mother found rental accommodation close to the children’s school. In addition to paying rent for herself and the children, the mother also paid for the mortgage, taxes, and utilities for the matrimonial home. Although living in the matrimonial home alone, the father only paid child support in the amount of $6,210, which was court-ordered. The father also denied the mother’s request to use the home under a nesting agreement and demanded that she not enter the home, even while he was out of the country. Further, while the parties initially agreed to sell the home, the father withdrew his consent, causing unnecessary delay and forcing the mother to bring a motion to proceed with the sale: paras 2, 4, 26-27, 178, 188-189, & 195.
The mother now sought an order that the father pay her $26,450 in occupation rent, representing half of the market rent for the matrimonial home from the date of separation until the date the sale of the home closed. This amount was supported by a Market Rent Analysis. Justice Horkins found that this was “a clear case for awarding occupation rent” and ordered the father to pay occupation rent from his share of the net sale proceeds, which remained in trust pursuant to a consent order: paras 182, 186, 196, & 198.
2. Ginese v. Fadel, 2024 ONSC 3011 (CanLII)
The father had exclusive possession of the matrimonial home, per a consent order, from January 2020 to February 2021. Justice Audet found that the mother was entitled to occupation rent for these months. In coming to this conclusion, the court noted that the mother did not have access to her significant equity in the jointly-owned home for this period and was required to reside elsewhere; the mother had not delayed in seeking the sale of the home, whereas the father resisted the sale for more than a year; and the mother was being ordered to pay any outstanding child support owing for these months: paras 22 & 27-30.
The mother submitted two undated rental offerings for family homes similar to the parties’ family home in the same neighbourhood. One could be rented for $3,450 monthly, and the other for $4,000 monthly. The father relied on a Comparative Market Analysis by the parties’ real estate agent, but the analysis was based on 2019 rental prices. The real estate agent opined that pre-pandemic, the parties could have obtained $2,600 per month. However, most of the mother’s occupation rent claim was for months post-pandemic. Justice Audet seemed to use a middle-number, finding that the parties could have rented their matrimonial home for $3,000 during the relevant months: paras 23-24 & 29.
3. Delongte v. Delongte, 2024 ONSC 3454 (CanLII)
Following separation, the father moved out of the matrimonial home while the mother and children continued to reside in the home. Following the father’s motion to compel the sale of the home, opposed by the mother, Justice Shaw ordered the house be listed no later than July 2, 2020. The house was not listed until August 2020 and it sold in March 2021: paras 245 & 251.
Justice Byrne found that the father was entitled to occupation rent from April 1, 2018 (the month following separation), to December 1, 2019 (the date of Justice Shaw’s Order), plus one month (to account for the mother’s delay in listing the home): para 256.
The father had gathered information about comparable rental rates himself. These properties, however, were located far from the matrimonial home. The mother, on the other hand, provided four comparable rental rates in the same area as the matrimonial home, from 2018, 2020, and 2021. Justice Byrne used the mid-range of the three properties leased in 2018 and 2020, which was approximately $3,000 per month, to calculate occupation rent: paras 254-256.
The father had access to half of his equity in the matrimonial home prior to the sale because he had removed money from the home equity line of credit and, per court order, was allowed to use this equity subject to him being responsible for any accumulated interest. As such, Justice Byrne reduced the total occupation rent by 50%: paras 246 & 256.
Occupation Rent Not Ordered
In the following cases, the court declined to award occupation rent where the moving party failed to establish their entitlement and/or failed to produce evidence regarding their loss. These cases illustrate that while occupation rent need not be “exceptional”, it must still be reasonable, supported by evidence, and it is not an automatic right.
1. Albaz v. Rihawi, 2024 ONSC 812 (CanLII)
The parties separated in either April or December of 2017. The parties and their four children continued to reside together in the matrimonial home until November 2018, when the father was arrested for assaulting the mother. The mother and children continued to reside in the home thereafter: para 8.
Justice Agarwal declined to award occupation rent to the father. First, the father did not make a claim for occupation rent in his answer. Second, there was no evidence that the father moved for an order for either exclusive possession of the home or a partition and sale. Finally, and “[m]ost importantly”, the husband had not been paying support during the occupancy and he had made no financial contribution to the mortgage or property expenses: para 213.
Justice Agarwal also noted that since the father did not lead any admissible evidence about the rent, even if the court were inclined to order occupation rent, the father had failed to meet his burden of proving his loss: para 212.
2. Skrak v. Skrak, 2024 ONSC 1574 (CanLII)
The wife remained in the matrimonial home after separation. The husband was barred from attending at the home due to criminal charges. The husband sought occupation rent of $2,000 per month from November 1, 2019 (the month following the date of separation), until the home was sold (ordered at trial): paras 15 & 93.
The husband did not provide evidence regarding what the house could have been rented for and Justice Agarwal refused the husband’s suggestion to take judicial notice of the rental rate. The court further confirmed that the party seeking an order for occupation rent has the burden of establishing the rent that could have been earned if the occupying spouse was not living in the house. Accordingly, Justice Agarwal found that the husband had not proved his claim and opined that he “should’ve adduced opinion evidence on rental rates”: paras 95-96.
3. Surridge v Ross, 2024 ONCA 314 (CanLII)
In this brief decision, the ONCA upheld a motion judge’s decision to refuse the appellant’s claim for occupation rent, including because she “provided no evidence of market rental rates”: paras 6 & 14.
Note that Non Chhom v. Green was not cited in this decision.
4. O.K. v. M.H., 2024 ONSC 1612 (CanLII)
The mother and two children continued to live in the matrimonial home post-separation. It appears the father left the home immediately following separation due to criminal charges. Nevertheless, he continued to pay for the maintenance of the home: para 10.
Justice McGee declined to grant the father’s request for occupation rent, primarily in the face of the parties’ agreement that the mother would pay the father a post-separation adjustment largely related to household expenses. The post-separation adjustment “more than offsets any benefit that Ms. H [the mother] enjoyed as the occupying spouse, independent of the use enjoyed by the children.” Further, Justice McGee noted that while occupation rent is “no longer restricted to exceptional cases… there is no automatic right to occupational rent.”: paras 4, 114, 116, & 119.
Takeaways and Practical Tips
- Occupation rent is not an exceptional remedy;
- Occupation rent is not an automatic right;
- The party claiming occupation rent has the burden of proof;
- To prove entitlement to occupation rent, the moving party should provide evidence responding to the five factors confirmed at para 9 of Non Chhom v. Green and, if applicable, the additional factors set out at para 53 of Higgins v. Higgins; and
- The moving party should produce evidence, preferably expert opinion evidence, regarding market rental rates of comparable properties to prove their loss.
*with thanks to Maria Golarz for her suggestions and edits.
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