“An excellent summary of the factors to consider in the context of claims for occupation rent can be found in Casey v. Casey, 2013 SKCA 58 (CanLII), [2013] S.J. No. 308 (CA) at para. 48:
48 From the jurisprudence the following principles may be drawn regarding the awarding of occupational rent on a matrimonial home:
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 (Peltier at paras. 16-17; Wilgosh at paras. 99 and 109; Good at para. 90).
* Where the children are residing and who is supporting them (Good at para. 90; Peltier at paras. 16-17; Wilgosh at para. 108).
* If and when a demand for occupational rent was made (Wilgosh at paras. 100 and 106, Good at para. 90, and Peltier at para. 16).
* Financial difficulty experienced by the non-occupying spouse caused by being deprived of the equity in the home (Peltier at paras. 16-17; Wilgosh at para. 106).
* 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 (Good at para. 90; Peltier at paras. 16-17; Wilgosh at paras. 105-106 and 108).
* Whether the occupying spouse has increased or decreased the selling value of the property (Peltier at paras. 16-17).
* Any other competing claims in the litigation that may offset an award of occupational rent (Wilgosh at para. 108; Good at para. 92).
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.
In Griffiths v. Zambosco, 2001 CanLII 24097 (ON CA), [2001] O.J. No. 2096 (CA), the Court noted at para. 49:
49 Since Griffiths and Sloan owned the matrimonial home jointly, and since Griffiths occupied it for over six years after he and Sloan separated, the trial judge clearly had jurisdiction to order Griffiths to pay occupation rent if it was reasonable and equitable to do so. See Irrsack v. Irrsack (1979), 1979 CanLII 1647 (ON CA), 27 O.R. (2d) 478 (C.A.). The relevant factors to be considered when occupation rent is in issue will vary from case to case. However, in a family law context some factors are consistently taken into account. They include:
* The timing of the claim for occupation rent;
* The duration of the occupancy;
* The inability of the non-resident spouse to realize on her equity in the property;
* Any reasonable credits to be set off against occupation rent;
* Any other competing claims in the litigation.”