MacLean Law’s Top Choice Award winning Matrimonial Home Occupation Rent Lawyers help parties deal with the costs and use of the matrimonial home after parties separate. In BC a claim for expenses by the person who remains in the home after separation can be met with a claim by the spouse who left or was “ousted” for rent from the person who used their share of the matrimonial home. In today’s blog our Kelowna family law associate explains this thorny family law issue.
Our skilled team of Matrimonial Home Occupation Rent Lawyers will help you obtain justice. Our savvy Matrimonial Home Occupation Rent Lawyers help clients meet post separation challenges from our 6 offices located in Vancouver, Surrey, Kelowna, Calgary, Fort St John and Richmond BC. You can reach us toll free at 1-877-602-9900. Our firm has been TOP CHOICE AWARDS top rated family law firm in Vancouver for three of the last 4 years.
Matrimonial Home Occupation Rent Lawyers
An issue that separating spouses often deal with relates to the interplay between occupation rent and the payment of expenses associated with the upkeep of the family home when one party (voluntarily or involuntarily) moves out. Is the spouse who left entitled to occupation rent from the other spouse? Is the spouse who left required to pay for the mortgage, taxes, insurance and other expenses of the home in addition to child and spouse support? Hiring one of our skilled Maclean Law Matrimonial Home Occupation Rent lawyers can help you ensure your rights are protected.
The courts have historically awarded occupation rent to co-owners who are ousted from a property as all joint owners are entitled to use and benefit from the property. However, the concept of occupation rent in family law does not necessarily follow the common law of occupation rent as between non-spouses. When spouses separate, a number of remedies crystalize including child and spousal support as well as the right to require one spouse to pay for the expenses associated with a family home. Therefore, the concept of occupation rent between separating spouses involves a number of factors that make it different from the circumstances of non-spouses.
In Ross v. Ross, 2013 BCSC 1716 (B.C. S.C.), the Court adopted the principles summarized in a Saskatchewan case, Casey v. Casey, 2013 SKCA, . Those principles are:
1. Occupational rent is a remedy which may be utilized to obtain justice and equity in appropriate circumstances.
2. The remedy is exceptional and should be used cautiously.
3. The following factors, where relevant, are appropriately considered:
– The conduct of both spouses, including failure to pay support, the circumstances under which the non-occupying spouse left the home, and if and when the non-occupying spouse moved for a sale of the home.
– Where the children are residing and who is supporting them. .
– If and when a demand for occupational rent was made.
– Financial difficulty experienced by the non-occupying spouse caused by being deprived of the equity in the home.
– Who is paying for the expenses associated with the home. This includes who is paying the mortgage and other upkeep expenses (maintenance, insurance, taxes, etc.). If there is no mortgage, occupational rent may be needed to equalize accommodation expenses.
– Whether the occupying spouse has increased or decreased the selling value of the property.
– Any other competing claims in the litigation that may offset an award of occupational rent.
4. The remedy is a discretionary one requiring the balancing of the relevant factors to determine whether occupational rent is reasonable in the totality of the circumstances of the case.
Our Award Winning Matrimonial Home Occupation Rent Lawyers Can Help
It is interesting to note that in other Canadian jurisdictions, the law does not focus upon the question of ouster. Consistent with the approach of other jurisdictions, in Ross, the Court went on to cite, with approval, a Manitoba case, England v. Nguyen, 2013 MBQB 196; where the Court stated :
“To focus on a consideration of “ouster” is to set the development of family law back to the “bad old days” when issues of conduct may have been relevant considerations to our courts. How a person came to be in possession of a jointly owned asset should be a lesser concern to the court. The effect of the period of occupancy should be the focus of the court’s consideration in exercising its discretion in attempting to value a fair result.”
However, in other BC cases such as Oyama v. Oyama, 2009 BCCA 114 (B.C. C.A.) and R. (L.M.) v. R. (J.F.), 2010 BCSC 363 (B.C. S.C.), the courts refused to grant occupation rent absent ouster.
As for the property related expenses, it is generally accepted that when a spouse seeks contribution from the other spouse for expenses such as mortgage payments, taxes, and insurance paid after separation, his or her claim ought to be balanced against the other spouse’s claim for occupation rent. The BC Supreme Court in B. (K.S.) v. B. (B.J.), 2003 CarswellBC 2652 stated:
“As the Defendant has made all mortgage, insurance, maintenance, and property tax payments, he seeks an “adjustment” to allow him to recoup the amounts that he has paid. While the Defendant has not claimed reapportionment and while he describes what he wants as being an “adjustment” of the amount that he will have to pay in order to be the owner of the former matrimonial home free of the interest of the Plaintiff, I find that what he is seeking is reapportionment.
However, I am satisfied that it is also necessary to balance the post-separation expenses incurred by the Defendant with “notional” rent payable by him as he has had exclusive use of the home since separation: Dyndor v. Dyndor, [1994] B.C.J. (Q.L.) No. 2518 (B.C.S.C.).
Call Our Matrimonial Home Occupation Rent Lawyers Now To Protect Yourself
The concept of occupation rent and equalization of property related expenses after separation may get complicated and will be determined on a case by case basis. At MacLean Law, our Matrimonial Home Occupation Rent lawyers will assist you with understanding your rights and responsibilities in relation to the occupation of the family home by your former partner and ensuring that your rights are not prejudiced.
