In divorce or separation cases, the issue of "occupation rent" frequently comes up between the parties. This means that if the spouses own a matrimonial home and one of them leaves, the spouse who continues to live in the matrimonial home may have to pay occupation rent to the spouse who moved out. The relocating spouse most often raises this claim as a defense to the other party's claims for contribution to the expenses to the house. The purpose of occupation rent is to compensate the non-residing spouse for losing the jointly owned property's use and enjoyment. Neither co-owner of the property may legally exclude the other from the use and enjoyment of the property.                              

 Before an order for occupation rent is granted, the Courts will consider several factors, including any delay in making a claim, the length of the occupancy, the inability of the moving spouse to access his or her equity in the property, any failure by the non-occupying spouse in paying child or spousal support, whether the non-occupying spouse has asked to sell the house or paid the mortgage, whether any children involved reside with the occupying spouse, and whether the occupying spouse has made improvements to the property increasing its selling value. Occupation rent is extremely financially important because it involves a home, one of the most valuable assets in a marriage or relationship, so Courts place a great deal of importance on ensuring that the value is distributed equitably. 

In addition, judges have a great deal of power in setting the amount of occupation rent. Typically, the occupation rent award is half of the fair market rental value of the house. Still, Courts may occasionally make awards without any specific evidence of the property's rental value. If the occupying party has a tenant, a claim for occupation rent will likely succeed, and the amount of the rent will be a percentage of the rental funds received from the third-party tenant.        
In the Province of Alberta, Section 17 of the Law of Property Act governs occupation rent. Under this law, occupation rent may only be used as a "shield" and not a "sword," meaning that if the party in possession of the home claims a contribution to expenses, then the non-occupying party has the right to claim occupation rent in a response or defense to the expense claim. If you are currently going through a separation or a divorce or you would like to a second opinion regarding your matter, I am available to assist you. Contact Onosen Mike-Ifeta at 587-566-6525 or email at onosen@archlawoffice.ca.

Also, parties may not back claim for occupation rent for years and claim a capitalization rent, and parties must outline the occupation rent claim in their court documents. If the occupying spouse does not claim a reimbursement of expenses, then the claim for occupation rent is unlikely to succeed.                                    
Occupation rent is considered a discretionary remedy, so a claimant must have "clean hands" when bringing a claim. This means that if a party has behaved in an illegal or unethical manner by not following Court procedures or Court orders, or if their conduct has been otherwise bad, then their claim for occupation rent is likely to fail. 
 In addition, many courts are reluctant to consider occupation rent in family law cases and prefer to apply spousal support to compensate the parties appropriately. 
A claim for occupation rent will most likely fail if the possessing party with children does not claim child support or a contribution to matrimonial home expenses, such as the mortgage, insurance, or taxes.                         

   Occupation rent is one tool that the Province of Alberta uses to maintain an appropriate compensation between the parties in a divorce or separation. It is used to prevent one party from having an unfair economic advantage over the other by retaining the former family home and its value. However, Courts have options besides occupational rent, including child and spousal support orders, so occupational rent is a less familiar and less frequently used tool in family Courts in Alberta and throughout Canada. 
However, occupational rent is significant due to the importance of equity and fairness principles underpinning family law in Alberta and elsewhere. Occupational rent is essential for preventing one party from monopolizing a vital asset in the marriage or relationship. As such, it is a necessary focus for family law Courts and lawyers alike.