BACKGROUND:
The Applicant and Respondent were married in 2020. The parties jointly owned a condominium that they occupied as their matrimonial home beginning in 2022. Following their separation in September 2025, the condominium was vacant for a period of time. The Respondent subsequently moved back into the home in March 2026.
In January 2026, the parties obtained a Consent Order providing for the matrimonial home to be listed for rent. The Order permitted the Respondent to bring a motion for post-separation contributions to the carrying costs if the rental income was insufficient to cover those costs, and permitted the Applicant to bring a motion for occupation rent.
After the Respondent returned to the home, his counsel proposed that he pay the Applicant $1,400 per month in occupation rent, representing 50% of the fair market rent, and that he solely pay the carrying costs while residing in the home. The parties exchanged further correspondence regarding these payments. The Respondent made payments of $1,400 per month for March, April and May 2026.
The Applicant subsequently brought a motion seeking an order that the Respondent continue paying occupation rent and carrying costs. The Respondent opposed the motion and brought a cross-motion seeking to strike portions of the Applicant’s affidavit that relied on a “without prejudice” communication.
ANALYSIS AND THE LAW
Without Prejudice Communications
The Court considered whether the Applicant could rely on correspondence marked “without prejudice.” Generally, communications made during settlement discussions are inadmissible. However, an exception applies where the communication is necessary to establish the existence or scope of a settlement.
The Court found that the portion of the letter dealing with occupation rent and carrying costs was admissible because it was relevant to determining whether an agreement had been reached regarding those payments. The remaining portions of the letter were ordered to be redacted.
Occupation Rent
The Court considered whether the Respondent was required to continue paying occupation rent after he vacated the matrimonial home.
The Court noted that there was an issue as to whether the parties had reached a contractual agreement requiring the Respondent to pay occupation rent until their property dispute was resolved, or whether occupation rent should instead be determined according to equitable principles. Relying on Jasiobedzki v. Jasiobedzka, 2023 ONCA 482, and Ehdego v. Puni, 2025 ONSC 3962, the Court held that this issue was generally better determined at trial on a complete evidentiary record.
Accordingly, the Court left the issue of occupation rent following the Respondent’s departure from the matrimonial home for the trial judge.
Carrying Costs
The Court confirmed that, pursuant to s. 24(1)(e) of the Family Law Act, a court may make a temporary order requiring a spouse to pay expenses associated with the matrimonial home, including repairs, maintenance and other liabilities, regardless of which spouse is in possession.
Although the parties’ lawyers had exchanged correspondence indicating that the Respondent would pay the carrying costs while residing in the home, the Court found that there was insufficient evidence to establish that the Applicant should be relieved of her obligation, as a co-owner, to contribute her 50% share of those costs. In particular, the Applicant had not updated her Financial Statement since October 2025, leaving the Court without reliable evidence of her need for financial relief.
CONCLUSION
The Court dismissed the Applicant’s motion for a temporary order requiring the Respondent to pay occupation rent and carrying costs, without prejudice to either party advancing those claims at trial. The Court found that the issue of occupation rent after the Respondent vacated the home should be determined by the trial judge on a full evidentiary record.
Attention Legal Counsel: Professional Mediation Services
When your clients have reached an impasse in settlement discussions, Andrew Feldstein offers third-party mediation services specifically designed for cases where both parties have independent legal representation.
Why lawyers refer cases to Andrew:
- 30+ years family law litigation experience providing courtroom-informed reality testing
- Expertise in complex financial matters including business valuations and professional corporations
- Efficient, structured process that respects counsel’s time and maintains client relationships
- Flexible scheduling including virtual mediation and travel to counsel offices
Cases we handle: Negotiation stalemates, complex asset division, support calculation disputes, parenting arrangements, multi-jurisdictional matters, and post-separation modifications.
Refer your next mediation: Call Andrew directly at 905-415-1635 ext. 255 or email info@separation.ca. Virtual and in-person sessions available throughout the GTA.
Need Help Moving a Family Law Matter Forward?
Whether you are a lawyer seeking an experienced mediator or you are representing yourself and need legal advice, our family law team can help you understand the options and identify a practical next step.
How We Help
Mediation, negotiation, litigation, complex financial disputes, support, property division, and parenting matters. Virtual and in-person appointments are available throughout the GTA.