What are the considerations applied by the courts in determining whether to make an order for occupation rent against a spouse who has failed to pay support?

Ontario, Canada


The following excerpt is from Bauer v. Bauer, 2005 CanLII 19811 (ON SC):

After a review of the case law in Higgins v. Higgins, supra, Quinn J, at page 320, extracted the following considerations applied by the courts in determining whether an order for occupation rent should be made: “(a) the conduct of the non-occupying spouse, including the failure to pay support; (b) the conduct of the occupying spouse, including the failure to pay support; (c) delay in making the claim; (d) the extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home; (e) whether the non-occupying spouse moved for the sale of the home and, if not, why not; (f) whether the occupying spouse paid the mortgage and other carrying charges of the home; (g) whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support; (h) whether the occupying spouse has increased the selling value of the property; (i) ouster is not required, as once was thought in some early decisions.”

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