Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHAMSI NORMOHAMMADI
Applicant
– and –
HOSSEIN KARIMZADEH
Respondent
Counsel:
Yogesh Gautam, for the Applicant
Ila Lateran, for the Respondent
HEARD: February 2, 2023
BEFORE: AKAZAKI, J.
Reasons for Judgment
1The Respondent husband brought a motion to release the sum of $74,651 from the Applicant wife’s share of the net proceeds of the sale of the matrimonial home, in addition to his 50% share. The wife didi not bring her own motion, but in response to the husband’s motion she sought an order releasing $72,900 from the husband’s share of the net proceeds. There was an agreement on the face of the record that the net proceeds are otherwise to be divided on a 50/50 basis.
2The wife sought other remedies in her motion confirmation form, related to personal property. As those additional items went beyond the subject matter of the motion as stated in the Notice of Motion filed by the husband, they were not properly before the court pursuant to subrule 14(9). I will therefore consider the husband’s motion for a portion of the wife’s share. I will also consider the wife’s request for a portion of the husband’s share as a response by way of set-off of the husband’s request, as opposed to a separate request. Having regard to subsection 111(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, there exists the possibility that if the wife’s “response” prevails but the husband’s claim does not, the wife’s defence of set off can lead to the remedy she seeks.
FACTS
3The parties were married in Iran, in 2005. They have one child, age 16. The wife moved out of the home in May 2018. This followed her arrest, having assaulted her husband by cutting his hand with a knife. It was an altercation that arose when the wife announced her desire to leave the father and cease looking after the child. The matrimonial home was sold on February 11, 2022. The equity in the home, after discharge of the mortgage, amounted to $666,693.15, less adjustments, taxes, and fees.
4The wife agreed that she did not contribute to the upkeep of the home since she moved out. She agreed that the husband paid all the carrying costs and expenses. She has lived in a rental apartment, at the rate of $1,550 per month, except for the time she returned to Iran. Between September 2018 and July 2019, she took on employment at Tim Horton’s Coffee House. The salary was insufficient to live, and she has had to borrow from relatives. She returned to Iran for a while, and her trip was extended by the Covid-19 travel restrictions. She returned to Canada in September 2020 and she resumed her employment at the coffee shop. She cannot blame the husband if she has had to resort to serving coffee and doughnuts for a living. The criminal record must have had something to do with her inability to secure more rewarding and remunerative employment.
5In addition to the costs of home ownership, the husband has been the primary caregiver of their child and has not received any child support from the wife. His affidavit contained a calculation of the mortgage, maintenance, property tax, insurance, all divided in half, and child support, in the global amount of $74,651.68, for the period after separation.
6The wife claimed $72,900 against the husband for occupation rent, on the basis that he had the use of the matrimonial home. She stated the monthly cost to rent comparable accommodations was in the range of $2,900 to $3,250. She arrived at the $72,900 figure by dividing $145,800 in half.
ANALYSIS
7Ordinarily, a co-owner who has had use of a property to the exclusion of another, such as in a post-dissolution business partnership dispute, the partner or co-owner must pay market rent to the out-of-possession partner. This may depend on the circumstances of the dispossessed co-owner. If one co-owner forced the other out while staying, the claim for occupation rent is stronger than if the dispossessed co-owner simply abandoned the property and forced the other to look after it. Occupation rent is an equitable remedy, in the absence of the common-law principle that interests and benefits arising from the ownership of land must be memorialized by written instruments. (The usual method of obtaining rent from a tenant is to draw up a lease.) Likewise, it may be unfair to require the co-owner left behind to shoulder the burdens of ownership and then require him to pay rent to the one who abandoned the property. Therefore, despite the commonplace nature of the remedy, it is an equitable remedy designed to address potential unjust enrichment.
8Against the potential claim for occupation rent, the co-owner left behind might have a claim for the expenses of looking after the property. The husband here has made a claim for a total of $23,658.80 for true “costs,” in the form of maintenance, property tax and insurance. The bulk of the husband’s claim here consisted of one half of the mortgage payments, totalling $41,042.88. The husband provided proof of payment of the mortgage instalments, but there was no breakdown of the payments as to cost of repayment of the loan and the cost of interest. Mortgage payments fell into a different category of expense, because each payment reduces the debt secured against the home and therefore increases the net value of the sale proceeds. The cost of carrying the mortgage would be subsumed into that value, because the interest represents the consideration of the mortgage loan contract representing the incremental reduction of the cost of redeeming the mortgage.
9In the family law context, both parties have an equal right to possession of the matrimonial home, under s. 19 of the Family Law Act, R.S.O. 1990, c. F.3. This is the basis by which many cases involve both spouses relying on the right and living separate and apart under one roof. Moreover, a spouse seeking refuge from an abusive marriage might initially leave the home and then apply for exclusive possession, in order to restore her or his position as the caregiver and forcing the other out. There is no occupation rent in such instances, because the use of the home becomes a factor in calculating child and/or spousal support. This is not one of those cases. The wife’s exclusion from the home stemmed from an assault and ensuing restraining order. Her intentional and criminal act was the cause of her exclusion. (The extended time she was away in Iran was a circumstance that had nothing to do with the husband.). It was also the home where the father had to pick up the pieces and look after their child. The fact that it was also the child’s home was relevant to this analysis. As stated below, I believe the father has confused child support as a type of home upkeep expense. However, the principle is that if it was the child’s home, the father was not the sole occupant of it to the exclusion of the mother.
10I appreciate that in many instances, courts have awarded occupation rent, even where the spouse’s ouster was not initiated by the remaining spouse, but the remedy was by no means automatic. The court must consider several factors such as the timing of the claim, the duration of the exclusive occupancy, and the inability of the non-resident spouse to access equity in the property: Foffano v. Foffano, 1996 CanLII 8097 (ON SC), at para 9-12. Here, her exclusion from the home stemmed from a violent act committed by her. It runs against equitable principles, including the clean hands doctrine, to award her occupation rent when that was the cause of her having to live outside the home.
11The husband’s claim for a credit in respect of child support was not appropriate. Child support is a category of relief that belongs principally to the child. It is calculated on a number of factors, principally on the non-custodial parent’s income. If the husband wanted child support, including retroactive amounts, then he should have sought it in the proceeding as child support and not as some credit within the division of the property.
12In Higgins v. Higgins, 2001 CanLII 28223 (ON SC), at para. 31, the court summarized the countervailing principles of occupation rent and the set-off for expenses incurred by the occupying co-owner. In the instant case, I am not persuaded that the husband should have to pay occupation rent for a property that he lived in at the time the wife left the house.
13If the wife incurred rental expenses, it would have been more properly claimed within the calculus of a spousal support claim. Another way of considering the rent is that, together with the mortgage payments there is a rough equivalency in that a portion of the husband’s mortgage payments end up on the wife’s side of the ledger in terms of the sale proceeds. However, I am prepared to accept that the husband’s costs of maintaining the home, exclusive of the mortgage obligation, was part of his de facto enjoyment of exclusive possession. Maintenance, taxes and insurance were incidental to home ownership and occupation but did not form part of the residual capital. While it was not equivalent to the wife’s rental payments since separation to the date of the sale of the home, there seems to be a rough equivalency in the overall scenario that made it fair that he paid for upkeep of the home and she paid for her rent. The result does not necessarily justify itself, but it does play into the overall fairness of it.
14I therefore order that the husband shall receive, out of the wife’s portion of the sale proceeds of the matrimonial home, half of the mortgage payments during the period between separation and sale, resulting in the amount of $41,042.88, plus prejudgment interest and costs of the motion.
15The husband is presumptively entitled to costs. If the parties are unable to settle the costs, the husband shall serve and file his bill of costs and costs submissions of no longer than two pages, within 14 days hereof. The wife will then have 14 days to serve and file her responding costs submissions.
Akazaki, J.
Released: April 6, 2023
COURT FILE NO.: FS-18-2778
DATE: 20230406
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHAMSI NORMOHAMMADI
Applicant
– and –
HOSSEIN KARIMZADEH
Respondent
REASONS FOR JUDGMENT
Akazaki, J.
Released: April 6, 2023