Both parties must make arrangements for their new living situations upon a divorce. In some cases, one ex-spouse may remain in the matrimonial home. They may or may not be paying for expenses related to the home. It may be possible in some circumstances for the spouse who moved out to claim occupation rent in situations where the other party remains living in the matrimonial home. However, this is highly specific to the facts of the matter, and a court would order this on a discretionary basis. 

In this post, we will discuss occupation rent in divorce cases and examine when it may be possible for a party to make this claim when the other party remains living in the matrimonial home, as it depends significantly on the case’s specific circumstances. This post will provide key factors for when occupation rent may be available. 

What is occupation rent?

Occupation rent is a legal concept that recognizes that joint tenants of property both share the right to occupy the property. Neither party can exclude the other from using the property. In some cases where a party ended up excluding the other from occupying the property, the court was able to order the occupying party to pay occupation rent as a remedy for the other party who could no longer use the property. 

When is occupation rent available in a divorce?

Parties of a divorce may jointly own the matrimonial home and may have questions on whether or not it is required for the party remaining in the home to pay rent to the other party. 

The court has noted, however, that occupation rent should only be ordered in exceptional circumstances. This is because there is the concept of support in the family law context, unlike in other forms of joint tenancy. In the family law context, parties are obligated to provide support to each other, which can be a consideration in determining whether or not the court should order occupation rent. 

Generally, the court will consider the following principles to determine if occupation rent should be ordered:

  1. If the party living in the home requests for the other party to contribute to the home’s maintenance and repairs, the party living in the home must submit an allowance for the use and occupation of the property.
  1. Suppose the party living in the home has made improvements or repairs that increased the property’s value. In that case, the other party will not benefit from the increased value without submitting an allowance for those improvements and repairs.
  1. If one of the parties had paid a more significant share of the property’s encumbrances, that party is entitled to an allowance for the additional costs paid.

Occupation rent factors in the family law context

Occupation rent in the family law context involves specific factors to be considered, as set out below.

Children residing in the home

The court will consider whether or not the children also remain living in the matrimonial home, as the non-occupying party also has obligations to support the children. The non-occupying party is generally not entitled to occupation rent while the other spouse is living in the matrimonial home with the children of the marriage, and the occupying spouse is not claiming support or payments towards expenses related to the home. 

Other claims, including support claims 

Where there is a claim by the occupying party for a contribution from the other party towards expenses related to the home, the court is also to consider:

  1. The cross-claim for occupation rent by the non-occupying party, if applicable; and 
  2. Any claim for spousal or child support

Occupation rent may play a role in guideline income

When considering support, the court will consider how ordering occupation rent would affect the guideline income and the parties’ budgets. 

No credit for paying mortgage or taxes 

Generally, the occupying party is not entitled to any credit for mortgage payments or taxes they have paid unless a mortgage payment reduces the principal amount.

Also, suppose the occupying party’s actions had reduced the property value (i.e. they did not properly maintain the house). In that case, a court may consider a set-off to account for situations with excessive property damage. 

Whether parties can still afford the home

Suppose the parties cannot afford to maintain the matrimonial home, but the occupying party wants to remain living in the home and is willing to bear this financial burden. In that case, the court may consider if occupation rent should be ordered. 

Occupation rent as a claim for capital

Generally, a party’s claim for occupation rent over a long period of time would not be grounds to provide them with more capital in the action.

Case example: Court decides not to award occupational rent to husband

The recent case, D.C. v. S.D., 2023 ABKB 243, illustrates how the court treats occupation rent cautiously. 

In the D.C. case, the parties were married for three years. They had two children. The wife remained in the matrimonial home with the children after the separation. 

The court recognized that after separation, the husband had made most of the payments to ensure the wife could remain in the home. In particular, he made arrangements for the house to be insured and paid the utilities and remaining mortgage payments. The court found that he also overpaid spousal support, although he had also underpaid child support during this time. 

The court also recognized that it was reasonable for the children to stay in the matrimonial home, which provided them with the necessary stability. 

The husband managed to find accommodation with his relatives, and the court recognized that he had sacrificed some comfort and convenience. Also, after the property was sold, the wife could find accommodation with relatives, and it was unclear why this could not have been arranged earlier. 

However, the court decided not to award occupational rent to the husband, despite considering the payments he made for the expenses related to the home. The court highlighted that it was beneficial for the children to remain home. 

Key takeaways 

Even if a party has paid for the expenses of the matrimonial home post-separation, despite the other spouse remaining in the home, it may not entitle them to occupation rent. The court will make a discretionary decision, with attention to whether or not the children benefited from remaining in the home. 

Mincher Koeman Family Lawyers Can Assist with Property Division and Matrimonial Home Disputes

Sometimes, a spouse may remain in the matrimonial home, complicating matters. While it is possible to claim occupation rent from the spouse living in the home, it is highly discretionary and a rare remedy, even if the non-occupying spouse has paid many expenses to maintain the home, including mortgage payments. As these matters primarily depend on the case’s unique circumstances, you should speak with one of our family lawyers at Mincher Koeman, who are experienced in assisting parties in property division and support issues involving the matrimonial home. Our Calgary family law lawyers are dedicated to finding the best resolution for you after your divorce.

To book a consultation, please get in touch with us online or by phone at 403-910-3000.

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