The Oxford Dictionary defines ouster as: ejection from a property, especially wrongful ejection. In the context of family law, it means that one person has been tossed out of the family home forcing them to live elsewhere. In these situations, the person having been tossed, often wants to collect money from the ‘tosser’, and this is called occupational rent. The case law has been relatively consistent about what is required in order to make a claim for occupational rent, and we would typically tell our clients that they had to prove they had been ‘forcibly ejected’ in order to support a claim for occupational rent.
In McFarlen v. McFarlen, 2017 BCSC 1737, a recent decision of Mr. Justice Jenkins released September 28, 2017 the finding of the court was that it was not necessary to prove that a party had been ousted in order to succeed with a claim for occupational rent. The McFarlen’s were married for only two years but had lived together for 15 years prior to their apparently ill-fated nuptials. They were both 53 at separation and did not have children together. The central issue in the case was the claim by Mrs. McFarlen that her husband should pay occupational rent, because he had lived in the former family home since the date of separation, up to and including the eventual sale. The issue was, had she been outsted, and more particularly, if she had , did she have to prove it in order to make her claim?
Mr. Justice Jenkins reviewed the oft cited case of Ross v. Ross, 2013 BCSC 1716 which clearly lays out the principles applied in cases where claims for occupational rent were made. At paragraph 47 of Ross:
“From the jurisprudence the following principles may be drawn regarding the awarding of occupational rent on a matrimonial home:
1. Occupational rent is a remedy which may be utilized to obtain justice and equity in appropriate circumstances.
2. The remedy is exceptional and should be used cautiously.
3. The following factors, where relevant, are appropriately considered:
· The conduct of both spouses, including failure to pay support, the circumstances under which the non-occupying spouse left the home, and if and when the non-occupying spouse moved for a sale of the home (Peltier at paras. 16-17; Wilgosh at paras. 99 and 109; Good, at para.90)
· Where the children are residing and who is supporting them (Good at para. 90; Peltier at paras. 16--17; Wilgosh at para.108).
· If and when a demand for occupational rent was made (Wilgosh at paras. 100 and 106; Good at para.90, and Peltier at para.16)
· Financial difficulty experienced by the non-occupying spouse caused by being deprived of the equity in the home (Peltier, at paras. 16-17; Wilgosh at para. 106)
· Who is paying for the expenses associated with the home. This includes who is paying the mortgage and other upkeep expenses (maintenance, insurance, taxes, etc.). ….
· Whether the occupying spouse has increased or decreased the selling value of the property (Peltier at paras. 16-17)
· Any other competing claims in the litigation that may offset an award of occupational rent (Wilgosh at para. 108; Good at para. 92).
4. The remedy is a discretionary one requiring the balancing of the relevant factors to determine whether occupational rent is reasonable in the totality of the circumstances of the case.
And continuing at paragraphs 48 through 50, Justice Verhoeven wrote:
“ A similar list of considerations is set out in Higgins v. Higgins (2001), 19 R.F.L. (5th) 300, at para. 53 (S.C.J.), and is regularly applied in Ontario. Higgins expressly states that ouster is not required. Similar approaches are applied in Alberta, Manitoba, Nova Scotia and New Brunswick: Braglin v. Braglin, 2002 ABQB 816, at para. 3; England v. Nguyen, 2013 MBQB 196, at paras. 74-77; Carmichael v. Carmichael, 2005 NSSC 318, at paras. 49-64; Cripps v. Cripps, 2007 NBQB 2, at paras. 52-57.
 Concepts of occupational rent derived from general property law may be inconsistent with modern family law. In England at para. 74, Johnston J. observed:
To focus on a consideration of "ouster" is to set the development of family law back to the "bad old days" when issues of conduct may have been relevant considerations to our courts. How a person came to be in possession of a jointly owned asset should be a lesser concern to the court. The effect of the period of occupancy should be the focus of the court's consideration in exercising its discretion in attempting to value a fair result.
 On the approach used by the other jurisdictions, as I interpret it, the overriding question is whether occupational rent, as a discretionary remedy to be used cautiously, should be utilized in order to achieve justice and equity in all of the circumstances of the case. This approach appropriately places little if any emphasis on the question of fault or blame for the decision of one spouse or the other to leave the matrimonial residence.
In support of the proposition that ouster is not required in order to prove a claim for occupation rent, Mr. Justice Jenkins cited a line of cases including Shen v. Tong, 2013 BCCA 519; Piderman v. Piderman, 2015 BCSC 475; Hodel v. Adams, 2016 BCAC 910. The Honourable Judge also reviewed a line of cases where the BC Supreme Court had recently found that ouster was in fact a condition precedent to a claim for occupational rent. At paragraph 20 he concludes that a party is no longer required to prove ouster in order to support a claim for occupational rent:
" So, is “ouster” a condition precedent to a claim for occupational rent? The authorities suggest that this remains an open question. Based on my interpretation of the law in this province, I accept that “ouster” is no longer a pre-condition to a claim for occupational rent measured by the cost of alternative accommodation. The statements by Verhoeven J. which have been adopted by McEwan J. in Piderman as well as the statement by Willcock J. in L.M.R v. J.F.R., 187 A.C.W.S. (3d) 775, support this interpretation. My reasoning is reflective of the opinions expressed by Verhoeven J. and McEwan J. in Ross, Piderman and C.M.L.S.- that the proper way to approach a claim for occupational rent is as a discretionary tool to achieve fairness. Such a conclusion is consistent with family law legislation including the Divorce Act, (R.S.C., 1985, c. 3 (2nd Supp.)) and the FLA which are not premised upon “fault based” principles. If I have correctly interpreted the law in British Columbia, then a review of the claim can proceed on the basis of equity. If “ouster” is required, this issue would have to proceed to trial to determine whether or not there has been an ouster."
In this writer’s opinion, the courts will still look at ouster in examining the fairness and equity principles, but it is no longer a condition precedent to these types of applications.