“Diana seeks an order that Pasquale pay her $26,450 in occupation rent. This represents half of the market rent for the matrimonial home from the date of separation until the date the sale of the home closed. This order is allowed. The reasons follow.
In Non Chhom v. Green, 2023 ONCA 692, at para. 8, the court confirmed that “[w]hile it is settled law in Ontario that an order for occupation rent be reasonable, it need not be exceptional: Griffiths v. Zambosco, (2001) 2001 CanLII 24097 (ON CA), 54 O.R. (3d) 397.”
Occupation rent is “discretionary relief that can be considered to address the equities of a case”: Guziolek v. Guziolek, [2006] O.T.C. 329 (S.C.), at para. 21. The appropriate method of calculating occupation rent is one half of the rent that could have been earned if neither party lived in the property and it had been rented out: Doyle v. De Sousa, 2023 ONSC 3163, at para. 40.
The factors to consider when deciding if occupation rent should be awarded include the following, per Higgins v. Higgins (2001), 2001 CanLII 28223 (ON SC), 19 R.F.L. (5th) 300 (Ont. S.C.), at para. 53:
a. The conduct of the non-occupying spouse, including a failure to pay support;
b. The conduct of the occupying spouse, including a failure to pay support;
c. The extent to which the non-occupying spouse was prevented from having access to his or her property in the home; and
d. Whether the occupying spouse paid the mortgage and other carrying charges of the property.
The facts show that this is a clear case for awarding occupation rent.
Diana left the matrimonial home on July 12, 2022, on the advice of Pasquale’s nurse and because of his erratic behaviour. She intended to leave the home on a temporary basis and return when it was safe for her and the children. However, the following day, Pasquale had Diana charged with assault. Pasquale altered the video of the garage incident to leave the impression that there was no reason for Diana to grab him. As a result of her criminal undertakings, Pasquale and Diana were prohibited from communicating directly, and Diana could not return to the matrimonial home.
In August 2022, Diana’s counsel suggested a nesting arrangement so she and the children could continue to use the home. Pasquale refused. That month the parties agreed through counsel that the house had to be sold. Pasquale said that he wanted it sold “as soon as possible”. Initially Pasquale cooperated. The property was listed for sale and showings of the home started. However, his unreasonable behaviour interfered with the listing and sale of the home.”