A recent Ontario Superior Court of Justice decision has addressed the complex financial and evidentiary issues that arise when separated spouses dispute housing expenses and occupation rent following marital breakdown. In the case of Rodriguez v. Koca1, Justice M. D. Faieta dismissed a wife’s interim motion seeking continuous occupation rent and carrying costs from her former husband after he moved out of their jointly owned condominium, leaving the final determination of those claims to a future trial judge.
The dispute involves Fatima Pamela Lemus Rodriguez and Kerem Koca, who married in 2020 and have no children together. Two years after their marriage, in 2022, the couple moved into a jointly owned condominium that served as their matrimonial home.
The relationship experienced a significant turning point on September 11, 2025, when Mr. Koca was involved in a severe motorcycle accident. He was hospitalized for six days, sustaining serious injuries that included a spinal fracture and a concussion. Following his discharge from the hospital, Mr. Koca stayed for several days with his mother in a bungalow they jointly own.
On September 21, 2025, Mr. Koca returned to the matrimonial home. According to Mr. Koca, Ms. Lemus Rodriguez struck him repeatedly while he was resting in bed, rendering him unconscious. Ms. Lemus Rodriguez denied that specific assault in a text message, but she acknowledged slapping him after he made derogatory remarks regarding her family. Following the incident, Mr. Koca left the condominium and returned to his mother’s home.
Shortly after Mr. Koca left in September 2025, Ms. Lemus Rodriguez also departed the matrimonial home to live with her parents. Consequently, the condominium sat completely vacant starting around October 2025.
The parties turned to the court process to address the vacant property. On January 13, 2026, during a case conference before a Dispute Resolution Officer, the spouses agreed to list the matrimonial home for rent. On the same date, Justice Kraft issued a formal consent order that established a specific process for renting the property. The consent order provided that if the collected monthly rent failed to cover the carrying costs of the home, Mr. Koca would have leave to bring a short motion for post-separation contributions toward those costs, while Ms. Lemus Rodriguez would have leave to bring a short motion seeking occupation rent. Furthermore, the order specified that if the monthly rental income exceeded the property’s carrying costs, the spouses would split the profit equally.
The rental plan did not proceed as anticipated. On March 25, 2026, Mr. Koca moved back into the condominium. Two days later, on March 27, 2026, counsel for Mr. Koca sent a letter marked “without prejudice” to counsel for Ms. Lemus Rodriguez. The letter explained that the situation at his mother’s house had changed, making it no longer suitable for him to remain there, and that he had returned to the condominium because he had nowhere else to stay on short notice.
In that letter, Mr. Koca recognized that both parties shared an equal right to possess the condominium and acknowledged the terms of Justice Kraft’s consent order. Given his return, the letter noted that proceeding with a third-party rental had become unfeasible. To address the situation, Mr. Koca offered to pay occupation rent of $1,400 per month on a temporary and without prejudice basis beginning April 15, 2026, which represented half of the $2,800 estimated fair market monthly rent. In addition, Mr. Koca offered to solely bear all carrying costs of the home on a temporary and without prejudice basis while he resided there.
In early April 2026, Mr. Koca paid Ms. Lemus Rodriguez $2,800 to cover occupation rent for March and April 2026, followed by another $1,400 payment in May 2026.
A series of written exchanges between the lawyers followed the March 27 letter. On April 2, 2026, counsel for Ms. Lemus Rodriguez responded that she would agree to Mr. Koca residing in the home under specific conditions, including that the monthly $1,400 payments commence retroactively to March 1, 2026, that he pay the full carrying costs while living there, that the home be listed for sale under the terms of the January consent order, that he facilitate property showings, and that he vacate seven days prior to closing.
On the same day, counsel for Mr. Koca replied with a revised proposal, agreeing to pay $1,400 monthly on a temporary, without prejudice basis retroactive to March 7, 2026, via electronic transfer, and confirming that he would cover all carrying costs while living in the home. On April 10, 2026, Mr. Koca’s counsel reiterated his desire to stay in the home while property settlement or buyout terms were negotiated following an appraisal. On April 16, 2026, his counsel communicated that the rental listing was moot and confirmed that Mr. Koca had paid two months of occupation rent and would continue to pay without prejudice until the property dispute concluded.
Mr. Koca stated that he moved out of the matrimonial home on May 17, 2026. His counsel noted that a moving company cleared his remaining personal belongings from the residence on or about June 8, 2026. On June 11, 2026, at another Dispute Resolution Conference, the parties agreed to list the condominium for sale, and the property was subsequently placed on the market.
Ms. Lemus Rodriguez then brought a motion seeking an order compelling Mr. Koca to continue paying occupation rent and solely cover the carrying costs. In response, Mr. Koca brought a cross-motion to strike paragraphs 27 and 28 along with Exhibit “F” from Ms. Lemus Rodriguez’s supporting affidavit, arguing that they improperly disclosed privileged settlement communications. Mr. Koca sought the complete dismissal of her motion, asserting that she failed to meet the legal test for occupation rent and had not justified why she should be exempt from contributing to the carrying costs.
Justice Faieta first addressed the cross-motion concerning the admissibility of the “without prejudice” communications. The court noted the general legal principle that settlement discussions are protected by privilege and inadmissible, but highlighted the recognized exception that allows such records when necessary to prove the existence or scope of a settlement.
Justice Faieta found that paragraphs 27 and 28 of the affidavit did not reference privileged discussions on their face, other than referring to Exhibit “F,” which was the March 27 letter from Mr. Koca’s lawyer. The court determined that the first page of the letter dealt directly with occupation rent and carrying costs and was properly admissible to establish the scope and existence of the agreement between the parties. However, because the first four paragraphs of the second page discussed separate collateral issues, Justice Faieta granted Mr. Koca’s motion in part and ordered those specific four paragraphs redacted.
Turning to the substantive issue of occupation rent, Justice Faieta assessed the timeline of Mr. Koca’s occupancy. While Mr. Koca asserted he moved out on May 17, 2026, the court concluded that he remained in legal occupation until June 8, 2026, because his personal belongings remained inside the home until that date. Mr. Koca had already paid occupation rent for the months of March, April, and May 2026.
Justice Faieta observed that the parties presented differing views on whether occupation rent should continue after June 2026. Ms. Lemus Rodriguez argued that Mr. Koca had a continuing contractual obligation to pay until all property disputes were finalized, whereas Mr. Koca argued that occupation rent must be evaluated strictly under equitable principles. Justice Faieta cited established Ontario case law establishing that occupation rent claims are typically matters that require a full evidentiary record at trial rather than an interim motion. Consequently, the court ruled that the question of whether occupation rent should be awarded after Mr. Koca vacated the property in June 2026 must be left for the trial judge to decide.
Finally, Justice Faieta evaluated the claim for ongoing carrying costs. Section 24(1)(e) of Ontario’s Family Law Act grants the court authority to make interim orders regarding property expenses, liabilities, and maintenance regardless of which spouse is in possession. However, the correspondence between the parties established that Mr. Koca had only agreed to assume the sole carrying costs during the period he was actually residing in the home.
Justice Faieta rejected the assertion that Mr. Koca continued to live in the home past June 2026, noting a lack of evidence to support that claim. The court accepted Mr. Koca’s submission that Ms. Lemus Rodriguez, as a joint owner, remained responsible for her 50 percent share of the property’s carrying costs. Justice Faieta emphasized that Ms. Lemus Rodriguez had not updated the financial statement she originally sworn in October 2025, leaving the court without reliable, current evidence demonstrating a financial need that would warrant relieving her of those joint ownership obligations.
As a result, Justice Faieta dismissed Ms. Lemus Rodriguez’s motion for interim occupation rent and carrying costs on a without prejudice basis, leaving both claims open to be pursued at trial. The court directed the parties to file their bills of costs by August 31, 2026, and scheduled a brief videoconference appearance for September 2, 2026, to hear oral cost submissions.
Read about other family law cases here.
