COURT FILE NO.: FS-15-400388
DATE: 20151103
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Anna Khan, Applicant
AND:
Riaz Khan, Respondent
BEFORE: C. Horkins J.
COUNSEL:
Belinda Rossi, for the Applicant
Valois Ambrosino, for the Respondent
HEARD at Toronto: October 26 to 27, 2015
ENDORSEMENT
[1] Each party brought a long motion seeking various orders. During the hearing of the motion, most of the issues were settled pursuant to Minutes of Settlement dated October 27, 2015. The parties were unable to resolve the issue of occupation rent. This is the focus of the endorsement.
[2] The parties were married on August 6, 2000 and separated on February 1, 2014. They have one child who is 12 years old. Although there has been an unfortunate degree of conflict, the parties have managed to agree that they will equally share the time with their child.
[3] In August 2014, the applicant (“Ms. Kahn”) left the matrimonial home and moved into rental accommodation. Ms. Khan states that to insulate their child from conflict she vacated the matrimonial home. She says that the respondent’s (“Mr. Khan”) “escalating and violent behaviour” towards her was unbearable and that she was subjected to years of domestic violence. Mr. Khan had a new girlfriend and was “desperate” to get Ms. Khan out of the house. She describes the tension in the home as “toxic”. As a result she decided that it was in the best interests of their child that she and Mr. Khan no longer live under the same roof. Mr. Khan made it clear that he would not leave and so Ms. Khan left.
[4] After Ms. Khan moved out, Mr. Khan’s girlfriend moved into the matrimonial home. Mr. Khan and his girlfriend have continued to live in the matrimonial home since Ms. Khan’s departure. Mr. Khan changed the locks on the matrimonial home without Ms. Khan’s knowledge. Ms. Khan states that he has barred her from entering the matrimonial home and she has not been able to collect all of her belongings. She has had to incur the expense of furnishing rental accommodations.
[5] Mr. Khan denies that he forced Ms. Khan out of the matrimonial home. He states that it was her choice to leave. While he denies the allegations of domestic violence, he does not deny the core of Ms. Khan’s evidence. He does not deny the following in his affidavit evidence:
• that the tension in the home was toxic;
• that it was in their child’s best interests that one parent leave;
• that he refused to leave the matrimonial home;
• that he changed the locks on the door without Ms. Khan’s knowledge; and
• that his girlfriend moved into the matrimonial home with him after Ms. Khan left and they continue to live there.
[6] On the basis of these uncontested facts, I find that Ms. Khan had to leave the matrimonial home. This is a jointly owned home. While Ms. Khan made the decision to leave, it was a decision that was forced on her in the circumstances. Once the locks were changed, Ms. Khan was barred from the matrimonial home. In effect, Mr. Khan gave himself exclusive possession of the matrimonial home without a court order.
[7] After Ms. Khan left the matrimonial home, Mr. Khan did not pay all of the expenses associated with the property. As of October 7, 2015, property taxes and water bills were in arrears of $17,315.41. During the hearing of the motion, Mr. Khan’s counsel stated that his client has now paid the arrears. No proof was provided. If true, it took the motion to force him to pay the arrears.
[8] There is no mortgage on the property but there is a significant joint line of credit registered on title. Mr. Khan did not make all of the required payments on the line of credit. As of October 21 2015, he should have paid a total of $7,171.94 from June 2015 through October. He had paid $4,664.77.
[9] Ms. Khan issued this application on January 28, 2015. Among other things, she asks for an immediate order for partition and sale of the matrimonial home and an order that Mr. Khan pay occupation rent retroactive to September 1, 2014.
[10] Ms. Khan has considerable debt that she urgently must pay. She needs her share of the equity in the matrimonial home to pay her debts. Ms. Khan asked Mr. Khan to list the matrimonial home for sale when they separated. Mr. Khan wants to keep the home so that their daughter can continue to live in the home. While he has said that he wants to purchase Ms. Khan’s interest in the home, he has delayed in carrying this out.
[11] When the occupying spouse has an order for exclusive possession, occupation rent can be ordered pursuant to s. 24 of the Family Law Act, R.S.O. 1990, c. F.3. Where as in this case there is no order for exclusive possession, the court has the power at common law to order occupation rent. Either way, the same factors apply in considering whether to order occupation rent. It is not automatic and should only be awarded when it is reasonable and equitable to do so. It is a tool to achieve justice in the circumstances of the case. The award usually represents half of the rent that could have been earned had neither spouse lived in the house (see Griffiths v. Zambosco 2001 24097 (ON CA), 146 O.A.C. 83 at para. 49; Irrsack v. Irrsack (1978), 1978 2158 (ON SC), 22 O.R. (2d) 245 (Ont. S.C.), affirmed (1979), 1979 1647 (ON CA), 27 O.R. (2d) 478 (C.A.), leave to appeal to S.C.C. refused [1980] 1 S.C.R.; De Acetis v. De Acetis (1991), 1991 12864 (ON SC), 33 R.F.L. (3d) 372 (Ont. Gen. Div.), affirmed (1992), 1992 14018 (ON CA), 39 R.F.L. (3d) 327 (Ont. C.A.); McColl v. McColl (1995), 1995 7343 (ON SC), 13 R.F.L. (4th) 449 (Ont. Gen. Div.); Higgins v. Higgins, 2001 28223 (ON SC), [2001] O.J. No. 3011 (S.C.); J.B. v. D.M., 2014 ONSC 7410).
[12] As the above case law demonstrates, the following factors, if relevant, are generally considered when an occupation rent claim is made:
• the timing of the claim for occupation rent;
• the duration of the occupancy;
• the inability of the non-resident spouse to realize on her equity in the property;
• any reasonable credits to be set off against occupation rent; and
• any other competing claims in the litigation.
[13] Ms. Khan claims occupation rent from Mr. Khan in her notice of application. She has been urging Mr. Khan to agree to the sale of the matrimonial home since the date of separation on February 1, 2014. She asks for occupation rent from the date that she left the matrimonial home, September 1, 2014 forward. She has provided evidence of the fair market value of rent for the house and this is not contested. A report from Jim Parthenis of Lebow Carrington Appraisal dated October 6, 2015 confirms that $3,300 is a “fair rental rate” for the matrimonial home.
[14] The factors in this case favour an award of occupation rent. Ms. Khan made it known from the date of separation forward that she wanted to sell the matrimonial home. She needs her share of the equity to pay her debts and this is known to Mr. Khan. Mr. Khan expressed his wish to buy out Ms. Khans’ share of the equity. Ms. Khan was not opposed to this if she received her fair share of the value.
[15] Ms. Khan was the one who incurred the expense of obtaining an appraisal of the matrimonial home from Jim Parthenis. This was done in June 2015. Mr. Khan has had this report since July 31, 2015. While Mr. Khan now says that he disagreed with this appraisal, he did not obtain his own appraisal. Instead, he secured a letter of opinion from Royal Lepage dated October 14, 2105. This brief three page letter is not an appraisal and suggests that the author did not inspect the matrimonial home, but rather relied on current market information.
[16] Ms. Khan needs her share of the equity to resolve her pressing debt problems. Mr. Khan’s actions have delayed her ability to obtain this equity. At the same time, he has had sole use of the matrimonial home and has not paid all of the related expenses. It was not until the hearing of the motions that Mr. Khan apparently paid the outstanding expenses.
[17] Ms. Khan seeks an order that Mr. Khan pay $1,650 a month for occupation rent. This is 50% of the fair market rent (50% of $3,300). She seeks payment of this occupation rent effective September 1, 2014. Mr. Khan has had exclusive use of the matrimonial home since this date.
[18] Based on the facts of this case, it is fair and equitable to allow this motion and order Mr. Khan to pay occupation rent from September 1, 2014 forward. Through to the end of October 2015, this is a period of 14 months at $1,650 a month for a total of $23,100.
[19] The equitable approach is to order the occupation rent less 50% of the property tax and line of credit payments that Mr. Khan paid from September 1, 2014 forward (see Irrsack v. Irrsack (1978), 1978 2158 (ON SC), 22 O.R. (2d) 245 at para. 15). The exact amount that Mr. Khan paid is not known. He said during the motion that he had paid the outstanding amounts, but proof was unavailable.
[20] In summary, I make the following orders:
Ms. Khan’s motion seeking occupation rent from Mr. Khan is allowed.
Ms. Khan shall receive occupation rent from September 1, 2014 forward.
The monthly occupation rent is fixed at $1,650 for a net total as of October 31, 2015 of $23,100.
Mr. Khan shall pay Ms. Khan occupation rent of $23,100 less 50% of what he has paid for property taxes and the line of credit for the period of September 1, 2014 through October 31, 2105.
No later than November 20 2015, Mr. Khan shall provide Ms. Khan with proof of the taxes and the line of credit payments that he paid for the period of September 1, 2014 through October 31, 2105. Half of this amount shall be deducted from $23,100 to arrive at the final net amount owing for occupation rent. Mr. Khan shall immediately pay Ms. Khan this final net amount.
Mr. Khan shall continue to pay Ms. Khan occupation rent of $1,650 on the 15th day of every month, net 50% of any taxes and line of credit payments that Mr. Khan pays going forward. This shall continue until he completes his purchase of her interest in the matrimonial home per Minutes of Settlement dated October 27, 2015. If pursuant to the Minutes of Settlement Mr. Khan does not purchase Ms. Khan’s interest in the matrimonial home, then he shall continue to pay the net occupation rent for as long as he continues to reside in the matrimonial home unless the parties agree otherwise or the matrimonial home is sold.
If the parties cannot agree on costs, they shall exchange brief written submission and provide them to the court by November 30, 2015.
C. Horkins J.
Date: November 3, 2015