Docket: CACV2154 Rhonda Louise Casey Appellant (Respondent) - v. -, 2013 SKCA 58

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 58 Date: 2013-05-31 Between: Docket: CACV2154 Rhonda Louise Casey Appellant (Respondent) - and - Michael LeJames Hamilton Casey Respondent (Petitioner) Coram: Klebuc C.J.S., Lane and Jackson JJ.A. Counsel: Tara Chornoby for the appellant Deborah Giles for the respondent

Appeal: From: 2011 SKQB 276 Heard: September 13, 2012 Disposition: Appeal dismissed in the main Written Reasons: May 31, 2013 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Chief Justice Klebuc The Honourable Madam Justice Jackson Lane J.A. [ 1 ] This is an appeal of an order dividing family property following a divorce. This order included a requirement the appellant pay occupational rent on the family home.

The appellant challenges a number of issues that can be divided into two categories: the valuation of family property and the awarding of occupational rent. [ 2 ] Under the first category, the appellant challenges the trial judge’s valuation of the family home for the purposes of division; his calculation of the value of household goods in the parties’ respective possessions; and his deduction of the margin balance from an investment account. The appellant also claims the trial judge erred in failing to include an investment in the amount of $14,686.74 in the division of the family property.

The respondent concedes this latter error. [ 3 ] Under the second category, the appellant contends the trial judge erred in ordering her to pay occupational rent. She says he failed in his application of the factors to be considered in deciding whether occupational rent should be paid. Further, the trial judge ought not to have relied on the evidence of the respondent and his lay witness (who was not an expert on real estate) to determine the quantum of rent and instead expert evidence was required to be called. [ 4 ] For the reasons herein I dispose of the appeal as follows.

The appeal of the valuation of the family home is dismissed. Regarding the investment accounts, the conceded error of failing to include the registered investment valued at $14,686.74 and the margin balance of $9,641.38, which should not have been deducted by the trial judge, should both be added back into the value of the total investments. The appeal regarding occupational rent is allowed in part. The order for determination of the quantum of occupational rent is upheld, but the commencement date is changed to May 3, 2010.

In the circumstances of this case, and in the context of the relevant factors which are later set out, we see this date as appropriate as this is the date when the demand for occupational rent was first made. [ 5 ] The valuation of the family’s household goods is remitted to the trial court for reconsideration. However, given the amount of money involved (in our view only $4,000 separates the position of the two parties) the parties are strongly urged to come to an agreement rather than spending more money on legal fees and costs.

As will be expanded on below, the parties chose to proceed in a very informal manner and they must live with their decision not to tender relevant evidence. Given the parties agreed upon informal approach, the recalculation is to be based on the evidence tendered below. I. VALUATION OF FAMILY PROPERTY [ 6 ] The facts are more completely set out in the decision of the trial judge ( 2011 SKQB 276 ), but for this first category of issues I will provide a brief

summary. This appeal is the end result of a volatile and tumultuous marriage punctuated by frequent periods of separation caused by the appellant evicting the respondent from the family home when she was drinking or the respondent leaving the home to avoid confrontation. On separation he would usually go to his mother’s house, sometimes for days, and would return when the appellant let him. During some of the time the respondent would take with him the older sons, who in 2008 were 20 and 17 years of age. The parties shared parenting time with the younger son who was then 12 years of age.

It was during one of the earlier separations in 2007 that the respondent won a fully furnished $730,000 dream home. On his return to the then matrimonial home, the respondent put the lottery prize home in both parties’ names. Their original home was sold and the parties resided in the dream home.

Since their last separation, in 2008, the appellant has kept possession of the home and the respondent has had to find other accommodation usually with some or all of the children. [ 7 ] Unfortunately the trial proceeded in an informal manner which led to the trial judge making some valuations, in the interests of reducing the parties’ costs, without any evidentiary base. [ 8 ] The trial judge himself noted the difficulties and prefaced his analysis as follows: [ 9 ] I make one further comment at this point. Much of the evidence the parties presented as to the value of family property was hearsay.

Both testified as to that which others had told them items were worth or filed documents containing valuations without calling the person who penned them. Neither counsel objected. When queried, both responded that I ought to consider the hearsay evidence as admissible and make my own determination as to the weight I would accord it. That is certainly not a satisfactory way in which to deal with the valuation of family property. It leaves me guessing at values, often with little guidance. I do, however, understand the reason for counsel’s approach.

Trials are expensive and calling expert witnesses to opine on the values of items of relatively small worth would turn

a short trial into a long one. I will do the best I can on the evidence presented, but I do not place much weight on the hearsay evidence tendered (see: Moncton Chrysler Dodge

(1990) Ltd. (Re) , 2003 NBCA 73 , 265 N.B.R. (2d) 196; Annie Richard v. Her Majesty the Queen , 2006 D.T.C. 2568 ). [9] A review of the transcript indicates how this situation came to be. The matter was set for a three day trial commencing June 6, 2011. The parties had resolved the custody, access and child support issues and were close to an agreement on the other issues, but this emerging consensus fell apart. Counsel for the respondent was not prepared to adjourn the trial but raised the possibility of converting the morning session into a pretrial in the interests of trying to settle the matter.

This led, of course, to the issue of whether the designated trial judge should chair the pretrial conference with counsel for the appellant taking the position it was prejudicial to have the pretrial judge act as the trial judge. [ 10 ] Counsel for the appellant also indicated she was not prepared to deal with the property issues at that time. The matter was adjourned for further discussion about the possibility of settlement. Upon reconvening, counsel for the appellant changed her position and was agreeable to the trial judge conducting a pretrial.

The trial was then adjourned over until June 7, 2011 in the afternoon at which time the trial commenced. I must note at this point that nothing in this decision should be taken as approving of the practice of the trial judge acting as the pretrial judge (see L.N v. S.M , 2007 ABCA 258 , 284 D.L.R. (4 th ) 1, for an example where a concern about such a practice is expressed).

However, as this issue was not raised before us by counsel I have not addressed the practice here. [ 11 ] Although there is no record before the Court, it is clear the parties consented to an informal procedure which was acquiesced to by the trial judge (who had served as the pretrial judge). Unfortunately it has led to reviewable errors and the necessity of remitting an issue back to the Court of Queen’s Bench.

While I have sympathy for the trial judge, this case serves as a cautionary tale that in cases such as these, where emotions can run high, what may seem reasonable at the outset may not be found to be so in the hindsight of an unsuccessful litigant. [ 12 ] The appellant, as stated above, challenges several of the findings regarding valuation of various pieces of family property and I will deal with these in the order they were argued. [ 13 ] The trial judge valued the family home at $710,000, this being the value at which the respondent was prepared to pay for the purpose of buying the appellant out.

The home had been appraised at $730,000 some considerable time before and had been on the market at that price for some time. Only one offer had been received in the interim and that was for considerably less than the appraised value. The appellant refused to lower the price and the listing was not renewed. The trial judge found the appraisal was high suggesting if it had been the fair market value the house would have sold by the time of trial. [ 14 ] The appellant argues the house ought to be sold and the proceeds divided equally.

Failing a sale she contends the respondent could have the house at the appraised value of $730,000. [ 15 ] In this case, the trial judge’s valuation is supported by the evidence and is upheld. It is clear the appellant wishes to have the matter reviewed to take advantage of a likely increase in value, given the Saskatoon market, since the date of trial. However, she has demonstrated no error and therefore is unsuccessful on this ground. [ 16 ] The trial judge valued the household goods at $10,070, noting most of the household contents were won along with the lottery home and were still in the home.

Each party presented a list of household goods and attached values to them. He found the appellant valued them at $3,000 and the respondent valued them at $8,595. The trial judge said: [20] I cannot divine which of the two values, if either, is accurate. All I have is the unsubstantiated assertions of the parties. With nothing else, I will simply choose the highest bid - $8595. As Michael took household goods worth $1,475 when he left the family home, the total value of household goods is $10,070. [ 17 ] Before us, neither of the parties was able to tell us where the figure of $3,000 came from.

They surmise it was the difference in value of the two lists the parties submitted. The appellant testified each of the parties had over $20,000 of household goods and what was left over was $3,000 to be taken into account. The trial judge misconstrued the evidence and his valuation cannot be sustained. The matter must be remitted for proper valuation. [ 18 ] However, I urge the parties to come to an agreement regarding the valuation of the household goods as, based on my calculations, their dispute is only over $4,000 (not the $3,000 discussed at the appeal).

Both parties have represented in their appeal book the appellant has more of the household goods than the respondent. The appellant says she has goods worth $3,120 more than the respondent. The respondent says the appellant has goods worth $7,120 more than the respondent. Their dispute is over $4,000. If this issue must be determined at trial, that $4,000 will likely quickly be eaten up by legal fees and costs.

Assuming my calculations are correct, the parties ought to resolve this matter so they will receive at least some benefit from the disputed $4,000. [ 19 ] The trial judge, on the basis of conflicting material, found there was a margin balance in one of the respondent’s investment accounts in the amount of $9,641.38 and deducted that amount from the value of the investments. The materials presented were, in the words of the trial judge, “amateurish-looking” documents consisting of faxed letters of the same date from the investment house, one of which referenced the margin balance and one of which did not.

He relied on a portfolio analysis attached to the respondent’s property statement to conclude there, indeed, was a margin balance. However, there was no evidence the margin balance existed at the date of the petition and the trial judge erred by deducting the amount of the margin balance.

Thus, the $9,641.38 margin balance should be added back to the value of the investments. [ 20 ] It must be noted in this regard that evidence to support the respondent’s claim, assuming the claim to be valid, should have been easily obtainable and indicates the need, even in an informal process, of requiring an adequate evidentiary foundation.

The respondent failed to present any evidence the account existed at the relevant time and his claim should have been dismissed. [ 21 ] As stated at the outset, the parties agreed the trial judge failed to consider as family property a registered investment valued at $14,686.74 (after tax). This amount should be added back in to the total value of the investments.

II. OCCUPATIONAL RENT [22] I turn now to the issue of occupational rent. Here it is necessary to expand on the facts. As stated earlier, the parties had atumultuous marriage “punctuated by not infrequent periods of separation” (para. 1 of judgment below). The appellant would drive therespondent from the family home when she was drinking and he would sleep at his mother’s home. The trial judge found that eventhough they were often separated, the respondent would be at the family home for much of the time both prior to and after a separation in2007.

Their final separation was in November of 2008. [23] Their final separation was triggered when the respondent was removed from the family home by the police after the appellantmade false allegations that he assaulted her. The trial judge found the respondent did not leave the home voluntarily. [24] He recounted the incident as follows: [59] First, Michael testified that he was forced out of the family home without warning and in startling fashion. On the morning of theseparation, Rhonda was upset that the house was dirty so Michael and the children began cleaning.

Michael was vacuuming the frontfoyer when Rhonda came up to him and said she would get him out of the house. She went upstairs and came back down a little whilelater with a scratch on her neck. She called the police and said that Michael had hit her. The police arrived, arrested Michael, charged himwith assault and removed him from the house. He was released from jail later that day on the condition that he not be within 200 metresof Rhonda. [60] Michael’s criminal trial was about a year later. He and the children testified and he was acquitted.

There was no evidence as towhether Rhonda testified or, if she did, what she said on the stand. [61] At no time in this proceeding did Rhonda dispute Michael’s version of that which transpired. As such, I can only conclude thatRhonda gave a false statement to the police. This was a very effective way to have the family home all to herself: make a false allegationof assault and have Michael charged with a criminal offence so that he would have to stay away. Neat trick.

A model of efficiency. [62] I have recited the circumstances leading to Michael’s departure only to support my finding that Michael did not leave the homevoluntarily. Rhonda’s dreadful behaviour does not impact on my decision. [25] The respondent eventually found a one-bedroom apartment and at the time of the trial was living in a three-bedroom apartmentwith two of their sons. The appellant remained in their luxury home. The trial judge concluded: [65] Michael has lived much more poorly than Rhonda since the separation. It did not have to be that way. It should not have beenthat way.

Michael had told Rhonda that he wanted the family home to be rented out. Rhonda refused to leave. She should have. Bothparties could have lived reasonably if rent money was added to their resources. Rather, Rhonda chose to live in luxury while Michaellived in cramped quarters with two and sometimes three of their sons. [26] The trial judge ordered the appellant pay occupational rent (minus expenses) and deducted that amount from the amount therespondent was required to pay to equalize the family assets. A. POSITIONS OF THE PARTIES 1.

The Appellant [27] The appellant’s position has two components: firstly, the award of occupational rent, and secondly, the need for expert evidence todetermine the amount of rent to be paid. She concedes in argument there was evidence of valuation but says it was not strong enough. [28] The appellant argues the trial judge failed to properly consider the factors that should be considered when deciding if occupationalrent should be paid as set out in Good v. Good, (SK KB), [1998] 9 W.W.R. 517 (Sask. Q.B.).

These factors are setout in paragraph 90 of that judgment as follows: • If leaving the matrimonial home was a unilateral act on the part of the spouse advancing the claim, occupational rent is notappropriate; Partington v. Partington (1982), (SK KB), 18 Sask. R. 172 (Sask. Q.B.). • Has the spouse who left the matrimonial home raised a concern or claim arising out of the continued occupation of thematrimonial home by the other spouse; Zado v. Zado (1996), (SK KB), 143 Sask. R. 251 (Sask. Q.B.) and Ryhorski v.Ryhorski, (SK KB), [1998] 2 W.W.R. 343 (Sask.

Q.B.). • Occupational rent may be appropriate if the spouse in possession is seeking to offset, in the distribution of matrimonialproperty, expenditures made to maintain the property since the time of separation; Vilcu v. Grams (1997), (SK KB),

154 Sask. R. 207 (Sask. Q.B.). • Where there was no mortgage payment to be made by the party in possession occupational rent may be granted on thebasis of equalizing the parties accommodation expenditures during the period of separation; Sarvajc v. Turner (1996), (SK KB), 140 Sask. R. 101 (Sask. Q.B.). • A claim for occupational rent may be offset by the expenses of one party caring for children or maintaining expensesassociated with the matrimonial home; Vokey v. Vokey (1995), (NL SC), 14 R.F.L. (4th) 422 (Nfld.

C.A.). [29] Despite the fact the respondent was removed from the house because of the assault charge, the appellant says he left voluntarily. She rests her position on the fact that during previous separations the respondent lived with his mother and only sporadically stayed atthe family home.

According to the appellant, these facts must lead to the conclusion that the respondent left the home voluntarily andthe trial judge erred in finding otherwise. [30] The appellant then says the respondent did not raise a concern about exclusive occupation of the home until later in theproceedings and that the respondent was only making interest payments on a line of credit registered against the home title. [31] Further, there was a competing claim for adjustment to compensation because the appellant sought retroactive spousal support and,considering the last factor, she said she has been solely responsible for property taxes, utilities, maintenance and house insurance sincethe separation. [32] Thus, the fact the respondent left the home voluntarily, did not raise a concern about exclusive occupation until late in theproceedings, the fact the appellant made an offsetting claim for retroactive spousal support, and was solely responsible for propertytaxes, utilities, maintenance and house insurance should have led to a refusal to order occupational rent if the trial judge had properlyapplied the factors set out in Good. [33] Finally, the appellant argues the trial judge ought not to have determined the amount of the rent without expert evidence.According to her, the Court of Queen’s Bench has consistently ruled an expert is required in order for a claim for occupational rent tosucceed.

The appellant relies on this passage from Foffano v. Foffano (1996), (ON SC), 24 R.F.L. (4th) 398 (Ont. Ct.J. (Gen. Div. Fam. Ct.)) cited in Wilgosh v. Wilgosh, (SK KB), [1998] 9 W.W.R. 396 (Sask. Q.B.) at para. 107: It should also be noted, having regard to the judgment of Hill J. in McColl v. McColl (supra) that claims for occupation rent are quiteexpensive to pursue, requiring expert evidence as to possible rental rates for the property in question and the usual time-intensive takingof accounts respecting expenses and improvements.

Most clients in family law litigation would find the prosecution and defence of suchclaims beyond their financial resources. (emphasis added) The appellant does, however, refer to another authority where occupational rent was ordered without the testimony of an expert, i.e. Poffv. Poff, 2000 SKQB 115, 192 Sask. R. 20. [34] The appellant does not challenge the quantum of the occupational rent but the actual awarding of occupational rent and the fact thetrial judge did not demand expert evidence. 2.

The Respondent [35] The respondent argues the trial judge carefully considered and applied the factors set out in Peltier v. Peltier, 2007 SKQB 264, 298Sask. R. 161 at para. 16, pertaining to occupational rent. No error has been demonstrated. The trial judge’s finding the respondent leftthe home involuntarily is a finding of fact supported by the evidence. [36] The respondent argues there is no authority requiring expert evidence for a claim for occupational rent to succeed.

The commentfrom Foffano cited in Wilgosh referred to by the appellant is obiter which simply describes the practice; it is not stating expert evidenceis required. B. THE JUDGMENT BELOW [37] The trial judge, relying on Peltier, said: [57] Sandomirsky J. conducted a thorough review of the authorities that have considered occupational rent in Peltier v. Peltier, 2007SKQB 264, 298 Sask. R. 161 (para. 16): [16] In the more recent decision of Carmichael v. Carmichael, 2005 NSSC 318 … Quinn J. … held that the common law remedy wasmore expansive than the statutory right.

Quinn J. lists the factors which should be considered by a court in respect of this discretionaryremedy at paras. 53 and 54: [53] From the cases I have reviewed, I note that the following may be relevant considerations when determining the appropriateness ofan order for occupation rent:

(

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, childsupport; (

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. [54] Put briefly, it seems to me that the courts are attempting to balance the equities when dealing with a claim for occupation rent. Thus,occupation rent is merely a tool used to achieve justice in the circumstances of each case. [38] While setting out the factors, the trial judge did not provide a detailed analysis of them (and this is not to be taken to mean adetailed analysis is required as the trial judge need only consider the relevant factors). He found the respondent did not leave the homevoluntarily.

He set out the circumstances of the respondent’s living conditions and concluded the respondent lived much more poorlythan the appellant since the separation. He found the respondent had told the appellant he wanted the family home to be rented out, butshe refused. The trial judge said had she agreed to rent out the home both parties could have lived reasonably if the resulting rent moneywas added to their resources. He concluded the appellant “chose to live in luxury while [the respondent] lived in cramped quarters withtwo and sometimes three of their sons” (para. 65).

Based on the foregoing, he ruled occupational rent was an appropriate remedy. [39] In order to calculate the amount of occupational rent payable the trial judge referred to the testimony of the respondent and therespondent’s witness, a neighbor, who testified as to the amount he received for renting his home. The trial judge discounted thetestimony of them both on this issue and, quoting Sandomirsky J. in Peltier, the trial judge said he would “simply apply some commonsense or ‘rough and ready justice’ in the absence of better evidence”.

He found the family home would have brought in $2,500 permonth after income tax considerations for the period of 29 months between January 1, 2009 and May 30, 2011. He then proceeded todeduct expenses for which the parties would have been responsible during that period and assessed the occupational rent to be paid bythe appellant at $17,250. He then deducted this amount from the appellant’s equalization payment. C. analysis of the issue of occupational rent [40] There is little Saskatchewan appellate authority on the issue of occupational rent. The issue was before this Court in Ell v.

Ell(1995), (SK CA), 131 Sask. R. 228 (C.A.) but the Court neither approved nor disapproved of the decision of the trialjudge who invoked the notion of occupational rent to effect an unequal distribution. In Phillips v. Phillips, 2010 SKCA 117, 324 D.L.R. (4th) 534, the issue of the lower court’s decision on occupational rent was appealed but the Court briefly said at para. 41: As to the final issue, the trial judge did not err by dismissing the appellant’s claim for occupation rent. [41] Numerous Queen’s Bench decisions have accepted that occupational rent may be appropriate in certain circumstances.

Severaldecisions follow the decisions of McIntyre J. in Wilgosh and Good. Both authorities refer to the above noted factors to be considered onthe application of occupational rent. The factors listed at para. 28 of this judgment seemingly have proven to be acceptable and workableguidelines. [42] In both of those decisions, McIntyre J. states the court has jurisdiction to grant occupational rent in a matrimonial dispute where itwould be equitable and reasonable to do so but that awarding occupational rent should be limited to “exceptional cases”.

The reason forsuch limitation was articulated by Steinberg J. in Foffano at para. 22: 22 The point to be made is that the routine application of the law on occupation rent to joint tenants or tenants in common who aremarried and are disputing over the matrimonial home will often run into conflict with the more flexible provisions of the Family Law Actdesigned to protect children and dependent spouses.

If, as the present law seems to be, no ouster need be proved for a joint tenant not inpossession of the matrimonial home to claim occupational rent, that opens the door to such claims solely to counter legitimate claims forspousal and child support, and equalization of net family properties. That was alluded to by Hill J. in McColl v. McColl (supra) at p. 456.It makes little sense, in the vast majority of cases, that a non-dependent spouse or parent should be entitled to occupation rent simplybecause he or she left the matrimonial home and allowed his or her dependent spouse and children to occupy it.

The right to occupationrent arose from the equitable remedy granted to a co-tenant not in possession to obtain an accounting from the tenant in possession, andat least one court considered that the use of the property in the affairs of "the whole family" did not give rise to the payment ofoccupation rent. [emphasis added] [43] As stated, the trial judge below relied on the decision of Peltier where Sandomirsky J. reviewed several of the authorities which allagree occupational rent is a remedy in appropriate circumstances, but is one to be used sparingly. For example, he referred toKazmierczak v.

Kazmierczak, 2001 ABQB 610, [2001] 10 W.W.R. 139, aff’d 2003 ABCA 227, [2004] 1 W.W.R. 598, wherein Slatter J.

stated the remedy should be ordered with caution. [44] In the case before him, Sandomirsky J. also considered the decisions of Higgins v. Higgins (2001), (ON SC), 19 R.F.L. (5th) 300 (Ont. Sup. Ct.) and Kazmierczak for the relevant factors to be considered when awarding occupational rent. Thesecases look to various considerations which may be relevant on an application to award occupational rent. They are essentially the sameas those articulated in Wilgosh. All are considerations which the trial judge should direct his or her mind to, assuming they are materialto the case to be decided.

The only difference in substance between the factors in Peltier and those in Wilgosh and Good is whether“ouster”, that is a spouse leaving unilaterally, is a bar to the awarding of occupational rent. [45] In Good, McIntyre J., citing Partington v. Partington (1982), (SK KB), 18 Sask. R. 172 (Q.B. (Fam. Div.)),said at para. 90: If leaving the matrimonial home was a unilateral act on the part of the spouse advancing the claim, occupational rent is not appropriate. [46] In Peltier at para. 16, Sandomirsky J. cited Carmichael v.

Carmichael, 2005 NSSC 318, 238 N.S.R. (2d) 195 which in turnfollowed Higgins wherein Quinn J. held that “ouster is not required, as once was thought in some early decisions”. [47] I am of the view that while the conduct of the parties is one of the facts to be taken into account, a spouse leaving unilaterallyshould not be a bar to the awarding of occupational rent.

To have such a bar to an award of an equitable remedy could in somecircumstances prohibit a trial judge from attaining the ultimate objective of obtaining justice and equity in the particular circumstances ofthe case. [48] From the jurisprudence the following principles may be drawn regarding the awarding of occupational rent on a matrimonialhome: 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 thehome, 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.). If there is no mortgage, occupational rent may be needed to equalize accommodation expenses(Good at para. 90; Peltier at paras. 16-17; Wilgosh at paras. 105-106 and 108). • 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 reasonablein the totality of the circumstances of the case. [49] The jurisprudence does not always make clear the legal authority for awarding occupational rent: equity, statute or common law. However, it is clear occupational rent is a discretionary award to be ordered when it is equitable and just in the circumstances.

Should itbe, at some point, necessary to determine the exact legal authority for the award, this is best left to another day when the Court will havethe benefit of submissions from counsel on the matter. [50] Turning now to the facts of this case, the appellant argues all of the factors must be considered and the trial judge failed to do so.

In my view, the trial judge was aware of the relevant factors and considered those relevant to the case before him. [51] The trial judge found the respondent did not leave the home voluntarily and, while not taking the appellant’s conduct into account,found the appellant’s false allegation of assault was “a very effective way to have the family home all to herself” (para. 61). He thenreviewed the facts of how the respondent and two of the boys were required to move in with his mother, and then eventually were able tofind apartments.

He found the respondent lived much more poorly than the appellant since the separation and that it did not have to bethat way. He found the appellant should have agreed to the respondent’s suggestion the family home be rented out but she refused toleave. If she had agreed the trial judge found both parties could have lived reasonably with the rent money added to their resources. Hecame to the conclusion the appellant chose to live in luxury while the respondent lived in cramped quarters with two and sometimes threeof their sons.

The trial judge found an award of occupational rent to be appropriate to “balance the equities” and to achieve “justice inthe circumstances” (para. 66). [52] I am satisfied in the circumstances an award of occupational rent was appropriate and agree with the reasoning of the trial judge. The respondent was forced to leave the home and find modest accommodations for himself and his children while the appellant lived in

the luxury home. The respondent was forced to find accommodation suitable for himself and his children while the appellant lived in the luxury home with accommodation far in excess of her needs. Further, the marital home could have been rented out but for the appellant’s intransigence. Renting would have allowed the parties to both live reasonably. [ 53 ] However, I do take issue with the period for which occupational rent was awarded. The trial judge awarded occupational rent starting on January 1, 2009.

As stated above, one factor that must be considered in awarding occupational rent is when the demand for occupational rent was first made. In this case, it seems the demand was first made during a pretrial conference on May 3, 2010. Thus, in the circumstances, occupational rent should only be assessed starting from this date.

Rhonda owes occupational rent for the 13 months from May 3, 2010 to May 30, 2011 and all expenses subtracted from the occupational rent discussed by the trial judge at para. 69 of his decision should be prorated accordingly. [ 54 ] Now turning to the issue of the quantum of occupational rent to be assessed the trial judge again relied on Peltier . Having no expert evidence before him he decided he would “simply apply some common sense or ‘rough and ready justice’ in the absence of better evidence” and set an amount.

The appellant takes issue with the amount on the basis there was no expert evidence tendered to prove rental rates. [ 55 ] I do not agree an expert is required. I see no Saskatchewan authorities which have “consistently ruled that an expert is required in order for a claim for occupational rent to succeed” (para. 52 of the appellant’s factum). It may be preferable, but is not required.

As stated earlier, the appellant herself refers to Poff , where occupational rent was ordered without the testimony of an expert. [ 56 ] The appellant conceded in argument there was evidence and in the circumstances of this case I see no basis on which this Court can intervene with regard to the quantum of occupational rent ordered to be paid by the appellant. The trial judge did the best on the material he had before him. [ 57 ] The appeal is therefore dismissed. III.

Conclusion [ 58 ] The appellant was unsuccessful on the major issues on appeal, that is the value of the matrimonial home and the awarding of occupational rent (albeit with success at reducing the amount of time occupational rent is owed), thus it is appropriate the respondent have his costs in the usual manner. The order below will be amended to adjust for the overlooked investment in the amount of $14,686.74 and to have the margin balance of $9,641.38 added back to the value of the investments. The matter of the household goods is remitted back to the trial judge.

The time occupational rent was ordered for is shortened to May 3, 2010, to May 30, 2011, but otherwise is upheld. The trial judge’s order that the appellant pay the respondent $2,000 per month from June 1, 2011, until the date she moves out of the house and that the respondent begins paying property taxes on the house starting on June 1, 2011, stands. DATED at the City of Regina, in the Province of Saskatchewan, this 31 st day of May, 2013. “Lane J.A.” Lane J.A. I concur “Klebuc C.J.S.” Klebuc C.J.S. I concur “Jackson J.A.” Jackson J.A.