CITATION: Rodriguez v. Koca, 2026 ONSC 4591
COURT FILE NO.: FS-25-00052702-0000
DATE: 20260819
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: FATIMA PAMELA LEMUS RODRIGUEZ, Applicant
AND:
KEREM KOCA, Respondent
BEFORE: Mr. Justice M. D. Faieta
COUNSEL: Ash Mazinani, for the Applicant
Rachel Weitz, for the Respondent
HEARD: August 11, 2026
ENDORSEMENT
[1] The Applicant wife brings a motion for payment of occupation rent and carrying costs of the matrimonial home, a jointly held condominium. The Applicant states that the Respondent husband agreed to make such payments. The Respondent husband brings a cross-motion to strike paragraphs 27 and 28 and Exhibit “F” of the applicant’s supporting affidavit sworn July 3, 2026. The Respondent asks that the Applicant’s motion for occupation rent and carrying costs be dismissed. The Respondent submits that the Applicant does not meet the test for occupation rent nor does she meet the test for being relieved of paying her share of carrying costs.
Background
[2] The parties were married in 2020. There are no children of the marriage. In 2022, they moved into their jointly owned condominium.
[3] On September 11, 2025, the Respondent husband was involved in a motorcycle accident and was hospitalized for six days. He suffered numerous injuries including a spinal fracture and concussion. Upon being released from hospital, the Respondent stayed with his mother, in a bungalow that he jointly owns with her, for a few days.
[4] On September 21, 2025, the Respondent returned to matrimonial home. He states that the Applicant struck him multiple times while he rested in bed and left him unconscious. In a text message, the Applicant denies any such assault but admits that she slapped the Respondent after he made derogatory statements about her family. The Respondent states that he returned to his mother’s home after this incident.
[5] The matrimonial home was vacant from about October 2025 as shortly after the Respondent left, the Applicant wife moved into her parents’ home.
[6] On January 13, 2026, at a Case Conference before a Dispute Resolution Officer, the parties agreed to list the matrimonial home for rent. On January 13, 2026, a Consent Order was issued by Justice Kraft which amongst other things establishes a process for listing the matrimonial home for rent. The Consent Order states, in part, that:
d. If the amount of monthly rent is insufficient to cover the carrying costs of the Matrimonial Home, the Respondent has leave to bring a short motion for post-separation contributions to the carrying costs of the Matrimonial Home, and the Applicant has leave to bring a short motion for occupation rent.
e. If the amount of monthly rent exceeds the carrying costs of the Matrimonial Home, the Parties shall equally share in the profit.
[7] The Respondent states that he moved back into the matrimonial home on March 25, 2026.
[8] On March 27, 2026, the Respondent’s lawyer sent a letter to the Applicant’s lawyer marked “without prejudice” which addressed occupation rent and carrying costs for the matrimonial and other issues between the parties. In respect of occupation rent and carrying costs, the letter states:
As you know, Mr. Koca has resided with his mother since the date of separation (September 21, 2025). The situation in his mother’s home recently changed, and it was no longer suitable for him to continue residing there. He made the decision to return to the matrimonial home, as he had nowhere else to go on short notice.
Mr. Koca recognizes that both parties have an equal right of possession to the matrimonial home, he further acknowledges that the Consent Order requires the parties to jointly work with Tory Akene to list the home for rent and/or sale. Given that he had to make a sudden change in his residence, it is not unfeasible for the partis to proceed with listing the matrimonial home.
Given the disadvantage to Ms. Lemus Rodriguez arising out of Mr. Koca’s return to the matrimonial home, he is willing to pay occupation rent to Ms. Lemus Rodriguez on a temporary and without prejudice basis in the amount of $1,400.00 per month (representing 50% of fair market rent, being $2,800.00 according to Tory Akene) beginning on April 15, 2026, until the parties reach a full and final resolution of the matter.
Further, Mr. Koca is willing to continue to solely [bear] the carrying costs of the matrimonial home on a temporary and without prejudice basis while he resides there. … [Emphasis added]
[9] The Respondent states that both parties “agreed that I would pay her occupation rent in the amount of $1,400 per month, representing 50% of fair market rent, and further that I would solely cover the carrying costs of the matrimonial home during that time on a temporary and without prejudice basis”.
[10] At the beginning of April 2026, the Respondent paid $2,800.00 to the Applicant on account of occupation rent for March and April, 2026. He also paid a further $1,400 in May 2026.
[11] After the letter from the Respondent’s counsel dated March 27, 2026, the parties exchanged the following messages.
[12] On April 2, 2026, the Applicant’s counsel responded:
… If wants to continue to reside in the matrimonial home, Ms. Lemus would agree under the following conditions:
Mr. Koca commence paying the proposed rent of $1,400 per month but commencing March 1, 2026. …
Mr. Koca pays the full carrying costs of the property while he resides there.
The property will be listed for sale in accordance with the Parties’ consent order of Justice Kraft dated January 13, 2026.
Mr. Koca may continue to reside in the matrimonial home until the closing as long as he complies with the terms of this agreement.
Mr. Koca shall keep the property presentable for, and facilitate, showings.
Mr. Koca shall vacate the property 7 days prior to the closing.
[13] On the same day, the Respondent’s counsel replied:
… In light of the above, here is our proposal regarding next steps:
- Mr. Koca will pay occupation rent to Ms. Lemus Rodriguez on a temporary, without prejudice basis, in the amount of $1,400.00 per month, retroactive to March 7, 2026. He will pay her on the 7th day of each month via e-transfer:
a. While residing in the Matrimonial Home, Mr. Koca will cover all carrying costs of the home. …
[14] On April 10, 2016, the Respondent’s counsel wrote:
Mr. Koca wishes to remain in the matrimonial home; however, the terms of the buyout and/or property settlement will be dealt with at a later date. …
We propose the following course of action with respect to the matrimonial home:
- Once the parties have agreed to the appraised value of the matrimonial home, we can negotiate a buyout/settlement of property.
[15] On April 16, 2026, the Respondent’s counsel stated:
… Of course, the listing of the home is now moot, as Mr. Koca has since moved back in. That said, he has paid Ms. Lemus two months’ worth of occupation rent, totalling $2,800, and he will continue to do so on a without prejudice basis until the parties have resolved their property dispute. This is more than she would receive in support, and it is more than she would have gotten in net rental income accordance with the terms of the Consent Order. Ms. Lemus is actually benefitting from the current arrangement.
[16] The Respondent husband states that he moved out of the matrimonial home on May 17, 2026. However, the Respondent’s counsel also states that a mover moved the Respondent’s personal possession out of the matrimonial home on or about June 8, 2026.
[17] On June 11, 2026, at a further Dispute Resolution Conference, the parties agreed to list the matrimonial home for sale. It is now listed for sale.
[18] The Applicant seeks an Order that the Respondent continue to pay occupation rent and carrying costs.
Issue #1: Should paragraphs 27 and 28 of the Applicant’s affidavit and Exhibit “F” be struck?
[19] In Idea Notion Development Inc. v. CTO Boost Inc., 2022 ONCA 14, at para. 8, the Ontario Court of Appeal stated:
Normally, “without prejudice” communications made in the course of settlement discussions are inadmissible. They are, however, admissible if disclosure is necessary to prove “the existence or scope of the settlement”: Union Carbide Inc. v. Bombardier Inc., 2014 SCC 35, at para. 35.
[20] Paragraphs 27 and 28 of the Applicant’s affidavit state:
As stated above, the Respondent has been the sole occupant or in the possession of the Matrimonial Home since September 29, 2025. To the best of my knowledge and belief, and contrary to the assertion made by the Respondent’s counsel on May 25, 2026, that Mr. Koca had moved out, the Respondent continues to reside in the Matrimonial Home, see attached letter dated March 27, 2026 at Exhibit F.
Following the January 13 Order, I provided the Respondent with a list of realtors to list the Matrimonial Home for rent, as required. The Respondent, in lieu of proceeding with a rental, agreed to remain in the Matrimonial Home and undertook to: (a) pay all carrying costs of the Matrimonial Home, including the mortgage, property taxes, and condominium fees; and (b) pay me occupation rent in the amount of $1,400.00 per month.
[21] Aside from the reference to Exhibit “F” there is nothing in paragraphs 27 and 28 that refers to a “without prejudice” communication.
[22] As noted earlier, Exhibit “F” is a “without prejudice” letter from the Respondent’s lawyer to the Applicant’s lawyer. The first page addresses occupation rent and carrying costs. The first four paragraphs of the second page of the letter addresses two issues aside from the issue of the payment of occupation rent and carrying costs. The first page of the letter is admissible as it is being advanced to prove the existence or scope of the settlement on the payment of occupation rent and carrying costs.
[23] Accordingly, the Respondent’s motion is granted in part. I order that the first four paragraphs of the second page of the letter at Exhibit “F” be redacted.
Issue #2: Occupation Rent
[24] The Respondent husband states that he moved out of the matrimonial home on May 17, 2025. He paid $1,400 for March, April and May 2026 to the Applicant.
[25] The Respondent states that he had a mover move his personal belongings out of the matrimonial home on about June 8, 2026. In my view, he continued to occupy the matrimonial home given that his personal belongings remained in the matrimonial home in June 2026.d
[26] Regarding the payment of occupation rent:
a) The March 27 letter stated that the Respondent would pay occupation rent of $1,400 until the parties reach a full and final resolution of the matter.
b) The Applicant’s response dated April 2, 2026 does not simply accept this proposal but rather outlines various conditions including a condition that the Respondent commence paying the proposed rent of $1,400 per month commencing March 1, 2026.
c) This proposal appears to be accepted by the Respondent’s counsel on April 2, 2026 as she responds that the Respondent will pay occupation rent on a temporary, without prejudice basis, in the amount of $1,400.00 per month retroactive to March 7, 2026.
d) On April 16, 2026, the Respondent’s counsel advises that the Respondent will continue to pay occupation rent on a without prejudice basis until the parties have resolved their property dispute. The Respondent did not explain what “property dispute” was being referred to in this message.
[27] Whether occupation rent should be paid by the Respondent on a contractual basis until the matter or dispute is resolved even if he no longer resides in the matrimonial home, as suggested by the Applicant or whether it should only be awarded based on equitable principles (see Jasiobedzki v. Jasiobedzka, 2023 ONCA 482, at para. 15), it is an issue that is typically determined at trial on a full record rather than on a motion: See Ehdego v. Puni, 2025 ONSC 3962, at paras. 118-122.
[28] In the circumstances, I find that it appropriate that the determination of whether occupation rent should be awarded after the Respondent has vacated the matrimonial home in June 2026, should be determined by the trial judge.
Issue #3: Carrying Costs
[29] A temporary order for the payment of carrying costs of a matrimonial home may be made pursuant to s. 24(1)(e) of the Family Law Act which “… permits the court to order a spouse to make payments for repairs, maintenance and liabilities associated with a matrimonial home irrespective of possession”: Petit v. Petit, 2015 ONSC 5184, at para. 14.
[30] The March 27, 2026 letter and the April 2, 2026 email from Respondent’s counsel states that the Respondent would solely bear or cover the carrying costs of the matrimonial home while he resides there. Similar terms were used by the Applicant’s counsel in his email dated April 2, 2026.
[31] The Applicant asserts that the Respondent continues to reside in the matrimonial home but I cannot accept that view on the limited evidence provided.
[32] The Respondent submits that the Applicant should not be relieved of her obligation, as a co-owner, to contribute her 50% share of the carrying costs of the matrimonial home as there is no reliable evidence of a need for financial relief given that she has not updated her the Financial Statement that she made in October 2025. I agree.
[33] Accordingly, the Applicant’s motion is dismissed as requested by the Respondent.
ORDER
[34] Order to go on the following terms:
(1) The Applicant’s motion for a temporary order that occupation rent and carrying costs be paid by the Respondent is dismissed on a without prejudice basis. Such relief may be claimed at trial.
(2) The Respondent’s motion to strike the affidavit sworn on July 3, 2026, is granted in part as the first four paragraphs of the second page of the letter at Exhibit “F” be redacted.
(3) The parties shall serve and file their Bill of Costs by August 31, 2026. The parties shall appear before me by videoconference on September 2, 2026, at 9:00 am, to make costs submissions. No other materials needed be filed. Ten minutes is set aside.
Mr. Justice M. D. Faieta
Date: August 19, 2026