Calgary Matrimonial Home Occupation Rent lawyers handle cases involving expenses related to one spouse’s use of the home. The person remaining in the home has the full use of it but may also be paying all of the expenses related to the use of the Calgary Matrimonial Home. The person outside of the home may be forced to pay rent to live elsewhere while the occupying spouse gets to use their half share of the Calgary family home. In today’s MacLean Law Calgary family lawyers article, Peter Graburn explains the rules.
Calgary Matrimonial Home Occupation Rent 403 444 5503
When couples separate, one of the biggest decisions they have to make (after how to parent their children) is what to do with their family home. Sometimes they can agree to either: sell the home; one spouse will remain in the home (ie. with the children), or; (rarely) share the home with the children (commonly called “nesting”). However, sometimes the couple cannot agree on how to deal with the family home, raising three (3) possible legal options in cases involving Calgary matrimonial home occupation rent and exclusive possession or sale:
- Exclusive Possession – which spouse should remain in the home called “Calgary family home exclusive possession”.
- Partition & Sale – whether the Calgary or Alberta Matrimonial home should be sold, and;
- Occupation Rent – which partner is responsible for paying the home’s expenses (ie. mortgage, utilities, taxes, and insurance, etc.) if only one spouse lives in the home and whether a credit is given for the non-occupying spouse for rent they pay at their new home.
In this article, we look at the last issue: “Occupation Rent”.
What Is Calgary Matrimonial Home Occupation Rent?
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Calgary matrimonial home occupation rent is financial compensation paid by the occupying spouse to the non-occupying spouse to equalize expenses paid by the non-occupying spouse toward the family home, particularly where such expenses are incurred over a long period of time. As the non-occupying spouse may benefit from some of these payments (ie. the principal portion of mortgage payments), Occupation Rent can sometimes be “ball-parked” as one-half (1/2) of the rent a regular tenant would pay on the home if neither spouse lived there.
The legal concept of Calgary matrimonial home occupation rent developed in common-law from the historic principle that co-owners of the (ie. agricultural or commercial) property had the equal right to use and occupy all their property. If one co-owner was improperly removed from the property (called “ouster”) by the other co-owner, the non-occupying co-owner could be compensated for this loss of use and enjoyment of the jointly owned property. (For a great discussion on the issue of “ouster” in Occupation Rent in British Columbia, see the MacLean Law article “Matrimonial Home Occupation Rent Lawyers “
Calgary Family Lawyers Explain The Court Has Discretion
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Accordingly, Calgary matrimonial home occupation rent is a discretionary remedy granted by the Courts in limited circumstances which has been codified in Alberta under Section 17 of the Law of Property Act. However, the awarding of Occupation Rent in family law situations in Alberta is limited, described by the Alberta Court of Queen’s Bench (affirmed by the Alberta Court of Appeal) in the case of Kazmierczak v. Kazmierczak (2001 ACQB 610) as:
“In the family law context,…mutual obligations of support are generally present, and would usually dominate and outweigh the common-law property rights associated with joint tenancy. Occupation rent should only be awarded in the family law context with great caution.”
Generally, the use of Occupation Rent is considered as “a shield and not a sword”, only to be raised by the non-occupying spouse as a response and defence (ie. set-off) to a claim by the occupying spouse for contribution to expenses on the matrimonial home (see S. 17(g) of the Alberta Law of Property Act). At a recent (January 2014) Alberta Law Conference, Alberta Court of Queen’s Bench Justice A. Moen cautioned regarding the use of Occupation Rent in family law matters, noting its discretionary nature and the multitude of factors (including the payment of child and spousal support) to be looked at in determining whether it is reasonable and fair for Occupation Rent to be granted.
Accordingly, when one separated spouse leaves (or is forced to leave) the matrimonial home but continues to pay for some of the expenses of the home, it may be tempting to bring a Court application to try to recoup some of those expenses. Spouses (and sometimes their Calgary family lawyers) automatically assume this will be one-half of those expenses. But this is not always the case. The B.C. Supreme Court recently confirmed that Occupation Rent should be used to achieve “justice and equity in all of the circumstances of the case” and places little or no emphasis on fault or blame for the decision to leave the matrimonial home (see McFarlen v. McFarlen, 2017 BCSC 1737 at para. 50).
Calgary Matrimonial Home Occupation Rent Is Tricky So Call Us At
403 444 5503
Calgary matrimonial home occupation rent is only one of the issues separated couples need to consider regarding the occupation and division of their family home. But it should be approached with caution. Alberta Occupation Rent Lawyers assist their Clients to understand the very discretionary nature of this remedy and to assess the numerous specific factors and principles the Courts will look at in deciding whether to award this remedy. Contact our medium to high net worth Calgary family lawyers today to move forward.
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