Occupation Rent is Not an Exceptional Remedy in Ontario

In Chhom v. Green, 2023 ONCA 692, the Ontario Court of Appeal recently affirmed that occupation rent is not an exceptional remedy in Ontario.

The parties owned the matrimonial home in common. Ms. Chhom enjoyed exclusive possession of the matrimonial home after separation in July 2017. Mr. Green made voluntary payments to Ms. Chhom of $4,000 per month from separation to January 1, 2020 (approximately two years before trial).

At trial, Ramsay J. ordered, among other things, that the home be sold forthwith, the proceeds paid into Court, and that Ms. Chhorn continue to have exclusive possession until March 2023. He also ordered that Ms. Chhom pay Mr. Green $31,500 in occupation rent while Mr. Green pay Ms. Chhom spousal support and an equalization payment. Ms. Chhom appealed the decision, arguing that the trial judge erred in law by not applying the requirement that an order for occupation rent be “exceptional”.

The Court of Appeal disagreed, citing Griffiths v. Zambosco, 54 O.R. (3d) 397 (ON CA): “While it is settled law in Ontario that an order for occupation rent be reasonable, it need not be exceptional.” In Griffiths, the Court of Appeal found that orders for occupation rent need to be “reasonable and equitable” and based on the following factors: “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.”