What is the test for an occupational rent claim?
British Columbia, Canada
The following excerpt is from Wakefield v Owen, 2018 BCSC 1160 (CanLII):
McFarlen v. McFarlen, 2017 BCSC 1737 reviews the principles governing occupational rent claims in British Columbia. Occupational rent is an exceptional discretionary remedy that may be used to achieve justice and fairness in appropriate circumstances. Relevant factors include: • the conduct of both spouses, including failure to pay support, the circumstances under which the non-occupying spouse left the home, and if and when the non-occupying spouse moved for a sale of the home; • where the children are residing and who is supporting them; • if and when a demand for occupational rent was made; • financial difficulty experienced by the non-occupying spouse caused by being deprived of the equity in the home; • who is paying for the expenses associated with the home. This includes who is paying the mortgage and the other upkeep expenses (maintenance, insurance, taxes, etc.); • whether the occupying spouse has increased or decreased the selling value of the property; • any other competing claims in the litigation that may offset an award of occupational rent. (McFarlen at para. 13, quoting Ross v. Ross, 2013 BCSC 1716, at para. 47, citations omitted)
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