On January 30th and 31st, 2014, the Alberta Law Conference was held at the Calgary Westin Hotel. The conference was very well attended and included an informative family law session on the Friday morning titled: Hot Topics in Family Law: don’t get burned.
The Family law session, chaired by Gillian Marriot, Q.C., was led by a panel that included Abby Griener, formerly of Vogel LLP. The panel also included the Honourable Justice Andrea Moen whose presentation was on the topic of occupation rent as it applies to family breakdown. Justice Moen discussed the principles that apply to occupation rent and the caution used when applying this remedy. The presentation also included the most relevant cases including: Casey v. Casey, 2013 SKCA 58; Foffano v. Foffano, 1996 CanLII 809;, and Kazmierczak v. Kazmierczak, 2001 ABQB 610.
Justice Moen reiterated that the remedy of occupation rent is discretionary and requires the balancing of relevant factors to determine whether occupational rent is reasonable in the totality of the circumstances of the case. A number of relevant case factors were outlined including: the importance of the date when the non-occupying party demanded occupation rent; and the Court of Appeal’s ruling in Casey that expert evidence was not necessary in cases of occupation rent, as the decision must be based on evidence and inferences that can be drawn from the evidence.
In Casey the Appellant argued that expert evidence was required to prove rent, which the CA did not agree with. Justice Moen also agreed with the CA that reasonable inferences can be made regarding as to what rent ought to have been while the spouse was occupying the home and that experts can be expensive to pursue and beyond an individual’s financial resources.