2017 ONSC 4923 (CanLII), http://canlii.ca/t/h5j17
Several difficult issues can arise when an adult child returns home to live with an older adult parent. One common dispute that can arise after the death of that parent is when the adult child refuses to leave the parent’s house. Recently, the Ontario Superior Court of Justice looked at this issue when estate trustees sought an order for vacant possession in Filipelli Estate 2017 ONSC 4923.
The Occupying Son
An adult son was living with his elderly mother when she passed away. She had two other children who were her estate trustees. The home was the main asset of the mother’s estate and her Will provided that upon her death the home be transferred into equal shares to the estate trustees; not to the occupying son. Further, her Will provided that 90% of the residue of her estate be transferred to the estate trustees in equal shares, with the occupying son being entitled to the remaining 10% residue. The estate trustees explained that the mother’s decision regarding the disposition of her assets was based on the fact that the occupying son had already received the proceeds of the sale of another property the mother owned while she was alive. At the time of the hearing the son had no money left and there was virtually no cash left in the estate.
Despite the provisions of the Will and requests by the estate trustees to vacate, the son remained in possession of the property. He paid no rent, nor conducted any other upkeep or maintenance on the house. It was falling into disrepair.
Tenant under the Residential Tenancies Act?
The estate trustees sought an order requiring the son to vacate the property. The son argued he was a tenant and that the estate trustees could not evict him without complying with the Residential Tenancies Act, 2006, SO 2006 c 17 (“RTA“). However, the only evidence that he was a tenant was his own uncorroborated evidence that he was a tenant and his mother was his landlord. There was no evidence of an oral or written tenancy agreement.
Justice Spies did not agree with the son’s argument and found that it would be a “dangerous precedent” if a son or daughter could simply assert that they were a tenant and that their deceased parent was the landlord and thereby thwart a testator’s intentions in a case like this, and require the Estate Trustee to take proceedings under the RTA.
Justice Spies found that the estate trustees were entitled to an order that the son provide vacant possession of the property and that if he does not vacate voluntarily that the Toronto Police Service be authorized to forcibly remove him from the property. As he already had ten months to find a new home, Justice Spies gave him 30 days to vacate the property:
Although I appreciate that [the son] alleges he will suffer a hardship as a result of this order, the provisions of his mother’s Will are clear and binding. He has had ten months of possession of the property beyond her date of death. In that time, as [the estate trustee’s counsel] submitted, there have been record home sales and record high prices and the market appears to now have softened. The [estate trustees] did not provide evidence of this point but this general information is not considered controversial and is well known in the public domain. This means that the delay in obtaining vacant possession to [the property] may mean that the [estate trustees] will not be able to sell the property for as much as they could have this past spring. In any event they have been forced to pay ongoing expenses such as property taxes and insurance to maintain the property.
Not a Tenant but Occupation Rent Owing
Although the son was not a tenant pursuant to the RTA, the estate trustees sought occupation rent for the 10 months that their brother occupied their mother’s house, as well as the cost of pest control services, reimbursement of property taxes and insurance paid by the estate trustees.
Justice Spies held that occupation rent is “akin to a claim in unjust enrichment”. The brother was clearly enriched by being able to occupy the house and the estate trustees were deprived of both occupancy and the use of the property as well as rental income that could have been generated from it. There was no juristic reason for the enrichment.
The Court ordered $20,000.00 in occupation rent but denied the property taxes and insurance as that would “normally be payable by the landlord if rent were being paid”.
Unfortunately a lot of money and time was probably spent by the estate and estate trustees before this dispute was resolved by the Court. Perhaps some pre-emptive planning before the mother’s death may have helped to deal with when and how the adult son would vacate the property. On the other hand, sometimes parties to these types of disputes will refuse to leave no matter what and obtaining a potentially expensive court order is an estate trustee’s only option.