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Can A Misbehaving Spouse Get Occupation Rent? Maybe.

Right Facing Red For Rent Real Estate Sign in Front of Beautiful House.

Can A Misbehaving Spouse Get Occupation Rent? Maybe.

As we wrote in an article back a few years ago in Ontario the concept of “occupation rent” arises in family law in situations where spouses who co-own a matrimonial home have decided to separate, and one of them physically moves out.

When it comes time to untangle their financial affairs leading up to or part of a divorce, the remaining (i.e. still-occupying) spouse may at the court’s discretion be obliged by law to pay and amount for “rent” to the other spouse starting on the separation date, and based on fair market value rent. This is by no means an automatic right in every case (and indeed, it is considered by courts to be an “exceptional remedy”). However, once established this rent obligation can theoretically continue as long as the occupying spouse remains living on the premises, pending sale of the property and a splitting of proceeds as part of the equalization.

In deciding whether to pay occupation rent, the court must take numerous established factors into account. One of them (from among more than a half-dozen) is the conduct of the non-occupying spouse.

This has been the focal point of several recent cases:

• In a decision we wrote about a few weeks ago, Malik v. Malik, the husband claimed occupation rent from the wife even though he had acted very badly: He had taken the equity out of the family home, had absconded the jurisdiction, and had made no voluntary child support payments at all, even though he could financially afford to. In disallowing his claim, the court said: “A non-occupying spouse ought never receive occupational rent for a period in which he or she has deliberately avoided the payment of child support.”

• Likewise, in Wimalaratnam v. Wimalaratnam, the husband’s claim for occupational rent was even more tenuous: not only did he fail to meet his support obligations to his wife and children, and stopped paying his share of the mortgage and other home expenses, but he was actually excluded from the home as a result of his own criminal conduct. He had been forcibly removed from the home after being charged with several criminal offences, and was later found guilty of one of them. This being the case, the husband was the author of his own misfortune in terms of being excluded from the home; in the circumstances it was not appropriate to award him occupation rent.

• Similarly in Wawzonek v. Page, the husband claimed occupation rent from the wife in connection with the jointly-owned home that she and the children continued to live in after the couple separated. The court refused to grant the request, pointing out that the husband had been removed from the home after being criminally charged by police after a physical altercation. He was largely, if not solely responsible for being ordered to stay away from the home, so he was not entitled to occupation rent in the circumstances.

Trying to predict whether occupation rent will be awarded can be a slippery exercise; as with so many legal determinations, the outcome will always depend on the specific facts.

For the full text of the decisions, see:

Malik v. Malik, 2015 ONSC 2218

Wimalaratnam v. Wimalaratnam, 2010 ONSC 4491

Wawzonek v. Page, 2015 ONSC 4374

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.