Occupational Rent / Equalization Payments: If A Spouse Moves Out of the Family Residence, Does The Remaining Spouse Have to Pay Occupation Rent?

October 2, 2020

After separation, one spouse often moves out of the family residence and incurs rent. The remaining spouse may pay the mortgage, property taxes and maintenance costs. A typical question I am asked is concerning whether the spouse who remains in the family residence has to contribute to the rental costs of the spouse who moved out of the family residence.

In McManus v. McManus 2019 BCSC 123, Mrs. McManus sought compensation for $27,000 concerning 20 months’ rent.

The Honourable Madam Justice Fleming reviewed the case law and factors to be considered such as:

  • The circumstances of the parties

  • Whether children were residing in the family residence

  • Whether the occupying spouse has claimed property costs

  • Whether support has been paid

  • Whether the occupying increased the value of the property

  • The duration of the occupancy

  • Other claims offsetting an award for occupational rent

In paragraph [77] The Honourable Madam Justice Fleming applied the above factors, which are summarized as: that it was not possible for the parties to remain in the family residence; rent would have to be incurred by a party; the rent paid was much more than the property expenses claim; and Mr. McManus’s intention to retain the family residence caused Mrs. McManus to incur additional rent.

The Honourable Madam Justice Fleming stated,

[80]    Therefore, I order Mr. McManus to pay an amount, set out below, to equalize the occupational rent claimed by Mrs. McManus against the property tax and property insurances expenses he paid after separation.”

Mrs. McManus received $11,040 dollars to equalize her occupational rent claim.

If you have questions concerning occupational rent or equalization payments call now to schedule you free 30 minute consultation.


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