In the tumult of a divorce, or a dispute between joint tenants of a residential property, one may be able to force the ouster of the other and gain exclusive occupation of the residence, forcing the other to acquire alternative residential premises, and seeking compensation for the benefit to the ousting party of not having to do so.
As stated in the Saskatchewan case of Vilcu v Grams:
“This kind of claim is founded upon the notion that an equal division would be inequitable because one spouse has had the benefit of occupation while the other has had, of necessity, to pay for alternate accommodation.
"It is the sort of claim that will succeed if the claiming spouse has been denied possession or forced to vacate the matrimonial home, or if the spouse in possession is seeking to offset, in the distribution of its value, expenditures made to maintain the property since the time of separation.”
Often brandished with bravado by lawyers representing the ousted party, it is rarely well-received by the Courts as the party with exclusive possession often has the care of the children.
In Spicer v. Spicer, the British Columbia Court of Appeal stated that:
“(T)he plaintiff was not evicted or driven from the home and in the ordinary law a joint tenant could not claim occupation rent from the other unless it was shown that he or she had been ousted.
"There may be circumstances under the (BC) Family Relations Act where one would take into account the occupation by one joint tenant of the family home. One example comes to mind, and that is where that occupant is claiming credit against the proceeds of sale for mortgage payments or maintenance expenses.”
But, in Bernard v Bernard:
“The starting point for the first is the general rule that there is no right to charge an occupying owner with an occupation rent ... (A)n occupying owner will not be charged for his occupation unless he claims an allowance for his expenses.
“A well recognized exception to that rule (that there is no right to charge an occupying owner with occupation rent) is that in a partition action, where the occupying owner claims for expenses, such as mortgage interest, taxes, insurance, repairs, and improvements, he must submit to be charged with occupation rent . . . The election to claim for expenses and to be liable for rent rests with the occupying owner.”
As former chief justice McEachern of the British Columbia Court of Appeal said in Pidluberg v. Maslasz:
“I only wish to add that while I would not preclude the trial court from considering the question of occupation rent, I have considerable misgivings about the application of that somewhat ancient conveyancing concept in cases where persons acquire property out of marriage and who live together on the property and one of them leaves for personal reasons leaving the other to continue living in the former co-habitation home. Parties who mix personal relations with business arrangements should not expect the court automatically to charge occupational rent to the person continuing to live in her or his own home.”
In Dacyshyn v. Semeniuk, Justice Humphries succinctly stated the state of the law as to occupational rent as follows:
“I do not read Bernard as requiring payment of occupation rent just because expenses are claimed. However, where expenses are claimed, it opens the door for a claim to occupation rent.
“I note the comments of McEachern in Pidluberg which ... support the proposition that claims for occupation rent should be approached with caution.”
Research and Further Reading: