Occupational Rent (Matrimonial/Main Home) in a Family Context

The Court of Appeal in Griffiths v. Zambosco (2001), 2001 CanLII 24097 (ON CA), provided guidance on the issue of whether or not occupational rent has to be paid in the event of a separation and one of the parties continues to occupy the main/matrimonial home. The court said: 

“While it is settled law in Ontario that an order for occupation rent be reasonable, it need not be exceptional.

The relevant factors to be considered when occupation rent is in issue in a family law context are: the timing of the claim for occupation rent; the duration of the occupancy; the inability of the non-resident spouse to realize on their equity in the property; any reasonable credits to be set off against occupation rent; and any other competing claims in the litigation.”

These are generally the factors that lower quotes apply when faced with a claim for occupational rent. For example, the Superior Court recently sought to apply the above principles in Mason v. Thompson, 2025 ONSC 5306 (CanLII), <https://canlii.ca/t/kfkhb>

The court noted that the applicant did not bring an application for exclusive possession of the matrimonial home until February of 2023.  Other than stating that she asked him to leave, and he refused, there is little evidence with respect to the efforts made by the Applicant to evict the Respondent, and the positions of the parties with respect to the home, prior to February of 2023. 

Given that this was the matrimonial home, the court was not prepared to grant the Applicant’s request for occupation rent for the entire 7-month period at $31,500. Instead, the court applied the factors given by the Court of Appeal stated that the Applicant is entitled to some occupation rent. But the court ordered occupation rent in the amount of $19,800, which represents 6 months of rent at $3,300 per month.

Referring to the damages that the husband had caused to the home, the Court indicated that the applicant was also entitled to compensation for the damages. 

Analysis:

It is not straightforward to apply the factors set out by the Court of Appeal in the 2001 case when an applicant seeks occupational rent. Not only must the factors be applied clearly, but what is important is that the application itself needs to be done on time. Negotiation or discussions, but not going to court and starting an application, could be a reason why the court may not be open to ordering a larger occupational rent amount. This is what happened above.

At Shankar Law Office, we will help and guide you not only on the factors but also on the timing of your application, so you can submit it

early and on time.

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