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by Daniel Gloade on September 21, 2015

The Family Law Act, RSO 1990, c F.3 section 24 (1e) empowers a judge to order for a party to pay the expenses arising from occupying the matrimonial home (mortgage, repairs etc) regardless as to the home’s ownership or the identity of the party occupying it.

The general rule is that the party occupying the matrimonial home must pay the monthly expenses.   Major repairs is split evenly between the parties because both parties benefit from the increase in the home’s equity.

The Honourable Justice McGee proposed a framework when considering whether occupation rent should be granted.  The decision is called Petit v Petit, 2015 ONSC 5184 (CanLII).  You can find it here.

The Honourable Justice McGee believes that a judge should consider the following:

  1. What is the time frame for the continued joint occupation?
  2. Who will enjoy the capital benefits of the post separation expenses? Specifically, how is title held, is there a trust claim, or a claim for variation of share equally in the possessory benefits?
  3. Do both parties share equally in the possessory benefits?
  4. Is it appropriate to relieve a spouse who benefits wholly or in part from a post separation increase in, or the maintenance of capital; or possessory benefits, from the payment of part or all of the expenses?

In the case before her, both parties occupied the same matrimonial home.  Neither party had fixed plans to leave the home nor really wanted to sell the matrimonial home.

Mortgage payments increases the home’s equity.  As joint owners, both parties equally benefitted from these payments.  As joint occupiers, both parties benefited equally from occupying the home.

Justice McGee ordered the parties to pay all of the monthly expenses based on a ratio between the Mother’s and Father’s income.  She did this because the Father now earned far less than the Mother.

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