Promptly seek legal advice on making occupation rent claim

By Paul Russell, Contributor

When a marriage breaks down and one spouse leaves the family home, that person should seek legal advice on whether they are entitled to a claim for occupation rent, says Toronto family lawyer Jennifer Daudlin.

“When it comes to separation, letting sleeping dogs lie could seriously impact your ability to recover that which you’re entitled to,” says Daudlin, founder and principal of Daudlin Law.

Occupation rent is generally meant to compensate the spouse who is forced out of the jointly-owned home, she tells

“It is most commonly ordered in cases where one party is forced to leave the home, but it can also be sought in cases where one spouse voluntarily moves away,” Daudlin says.

“It is a discretionary remedy the court can order in exceptional circumstances,” she says, citing a 2017 Ontario Superior Court of Justice case where a woman left the matrimonial home seven years earlier when the couple separated.

Court documents state she did not like the dwelling and believed its unfinished condition contributed to her depression.

The husband continued to live there and pay household expenses and the mortgage, with neither spouse making an effort to finalize the property-equalization process, even though an equalization at that time would have resulted in a payment of less than $10,000 either way, depending on how the debts were characterized, the judgment states.

“Seven years after the fact, the parties are making claims of each other that neither initially contemplated,” wrote Justice Meredith J. Donohue. “Their memories have faded, the documents are sparse and the delay results in prejudice. Some balancing must be done.”

According to court documents, the husband wanted the wife to pay for half of the home’s $28,444 maintenance and improvement costs incurred in those seven years, with the wife countering with a claim for occupation rent against the husband, asserting he owed her $1,800 per month during the seven years, totalling about $78,000.

Both claims were rejected, court documents state, with the judge ruling that the husband was ineligible to make a claim against the wife for home maintenance and improvements because he did that work for himself as an “occupier” of the home.

“When she dealt with the request for occupation rent, the judge decided it was not appropriate in these circumstances, partly due to the fact that the wife waited too long to claim it,” says Daudlin, who was not involved in the matter and comments generally.

In the judgment, Donohue listed seven factors that have to be considered when deciding if occupation rent should be paid. They include how long the parties lived in the home together, whether the person who moved out sought to have the property sold or tried to access its equity, the conduct of the parties in terms of paying support, and whether the person who remained in the home increased its value.

“Perhaps things would have turned out differently if the wife in this case made her claim for occupation rent earlier,” Daudlin says. “There is an expectation that parties to a litigation will behave reasonably — that includes making their claims in a timely fashion.”

She notes that many people might not be aware that occupation rent is a claim available to them when they separate.

“If you own or partially own your property, are forced from it, or you are separated and would like to remain in your home but feel you have no choice but to leave, you should not delay talking to a lawyer about occupation rent,” Daudlin says.

In determining what the occupation rent would be, she says courts look at what a third party would have paid for a room or apartment in the home, with that amount divided in half.

“It’s definitely a reasonable claim to make in certain situations, but you should not wait to make it,” Daudlin says.

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