The Truth about Occupation Rent

If I get kicked out of the family home, can I claim rent against my spouse who stays? – the truth about occupation rent

You won’t find occupation rent in the Family Law Act (FLA). Its roots go far back in the common law (i.e., case law or judge-made law), where an ousted tenant could claim rent against the remaining tenant due to the remaining tenant’s enjoyment of the ousted tenant’s property.

Occupation rent is not a stand-alone claim in family law cases. While it’s a box that can be ticked on a Notice of Family Claim, the decision on whether to award it is very-much at the discretion of the trial judge, with a view to achieving overall fairness between the parties. Actual ousting is not a requirement in family law cases. The goal is fairness, not fault-finding.

The family home is often the largest asset to be divided between separating spouses. Frequently, one spouse stays in the family home while the other moves elsewhere. The moving spouse often has to pay rent or buy a new home. Sometimes, the spouse who stays has to pay the mortgage and other property expenses without contribution from the absent spouse. How can the equity in the family home be fairly divided in such circumstances?

There are a number of different scenarios under which the leaving spouse can claim occupation rent against the spouse who stays in the family home. In deciding on whether to make an award of occupation rent, judges will consider a number of factors including:

• the circumstances under which the non-occupying spouse left the home (were they compelled to leave, or did they leave voluntarily?)
• are there minor children living in the family home with the occupying spouse?
• is the non-occupying spouse paying child and/or spousal support to the occupying spouse?
• did the occupying spouse ask the non-occupying spouse to contribute to the mortgage, property taxes or house insurance, and if so, when was that ask made?
• has the occupying spouse increased or decreased the value of the property beyond market forces?
• what is the length of time the non-occupying spouse has been out of the family home and have they experienced financial difficulty by being deprived of the equity in the family home?

are there any other competing claims in the family case that may offset an award of occupational rent?

The BC Supreme Court recently considered the issue of occupation rent in Eide v Gourlie, 2025 BCSC 1633. In this case, the claimant husband had been forced to leave the family home due to subsequently unproven allegations of family violence by the respondent wife.
Up to separation, the parties had contributed equally to the mortgage and other property expenses. After the husband left, the wife stopped contributing to the mortgage and the husband alone paid it. He also had to pay $1,600 per month in rent for inferior accommodation. Justice Harvey awarded the husband occupational rent, finding the equities favoured it given that the husband had (1) been ousted from the residence as a result of unproven claims of family violence; (2) from an early date, he had sought to have the wife pay the whole of the mortgage for the house she was occupying; and (3) had early on sought the sale of the property to realize upon its equity, which was his only significant asset (paragraph 99).
It was important that the husband had asked the wife to pay the mortgage for the home she was occupying and had made a timely attempt to sell the property. Justice Harvey was also swayed by the fact that the wife had been able to contribute to her RRSP after the husband left whereas the husband had been unable to save anything because he had to pay the mortgage in order to preserve the equity in the family home.
The court reached a different decision in Dignard v Dignard, 2024 BCSC 104, where the respondent husband claimed occupation rent against the claimant wife who stayed in the family home after he moved out. The court found that the husband had left the family home voluntarily and the wife paid all the house expenses thereafter. Further, the husband failed to provide evidence of rent he paid after leaving the family home (paragraph 100).

The starting point in division of family property is section 81 of the FLA, which states:

• (a) spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and
• (b) on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.

The effect of section 81 is that there is no presumption that an unequal contribution to the mortgage or other house expenses entitles the spouse who paid those expenses to anything more than the spouse who did not pay.

A claim for occupation rent is essentially a claim to an unequal division of family property. This can be achieved under section 95 of the FLA. Section 95 (1)(a) allows the Supreme Court to order an unequal division of family property or family debt (or both) if it would be “significantly unfair” to order equal division. Subsection 95 (2) lists some factors the court may consider:

• (a) the duration of the relationship between the spouses;
• (b) the terms of any agreement between the spouses, other than an agreement described in section 93 (1) [setting aside agreements respecting property division];
• (c) a spouse’s contribution to the career or career potential of the other spouse;
• (d) whether family debt was incurred in the normal course of the relationship between the spouses;
• (e) if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt;
• (f) whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends;
• (g) the fact that a spouse, other than a spouse acting in good faith,
  • (i) substantially reduced the value of family property, or
  • (ii) disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse’s interest in the property or family property to be defeated or adversely affected;
• (h) a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order;
• (i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness [section 3 allows the court to consider the extent to which spousal support objectives have been met].

Case law shows that subsection (f) is a compelling factor in a claim for occupation rent. If the occupying spouse pays all house expenses after the other spouse leaves, they may be viewed to have increased the value of the property beyond market trends, thereby weakening a claim by the leaving spouse for occupation rent.

The family law team at Lindsay Kenney LLP have significant experience navigating the division of family property and utilizing tools to help you achieve the best result for your case. Contact a lawyer in our Family Law Group today for assistance with your questions about occupation rent or any other family law matter.

This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.