Zhang Et Al. v. Zhang: Writs Of Possession and ‘Estate Property’
Pei Zhang and Linda Zhang (the “Applicants”) are the children and named estate trustees of the Estate of Yong Xiang Song, who passed away on October 21, 2024 (the “Deceased” or “Estate”). The within application was commenced for, inter alia, an order for leave to issue a writ of possession on the grounds that the subject property (the “Property”) was owned soley by the Deceased and forms part of her Estate.[1]
Ya Ping Zhang (the “Respondent”), who was the Deceased’s husband but was separated from the Deceased for many years, continued to live at the Property. The Respondent argues the Property is a matrimonial home that he financially contributed to and thus has a beneficial interest and right to continue living there.[2]
The Property
On or about May 30, 2012, the Property was purchased by the Deceased with her sole name added to title. It is argued by the Applicants that the Deceased contributed the entire downpayment and paid off the mortgage to the Property.[3] The Applicants, the Respondent and the Deceased resided at the Property until 2013, when Pei moved out for university and until 2016 when the Deceased moved out to begin a new job in Alberta.[4]
By 2019, the mortgage was paid off, and in 2022, Linda moved out of the Property to attend university.[5] The Respondent continued to reside at the Property.
Following the Deceased’s death, the Applicants requested the Respondent to vacate the Property on the basis that the Deceased was the sole legal and beneficial owner and thus the Property formed part of her Estate.[6] The Respondent refused.
The Evidence
The Applicant’s argued that the property was soley owned by the Deceased, the evidence they relied on included:
- The Deceased contributed the entire downpayment of approximately $93,000[7]
- The Parcel Register lists the Deceased as the sole owner.[8]
- The Respondent executed two title transfer documents relating to the property (1) “Spousal Consent to Electronic Registration and Charge” and (2) an “Acknowledgement and Direction” – the Applicants rely on these documents as evidence that the Deceased was not holding the property in trust for anyone else.[9]
- The Deceased paid for the mortgage and utilities of the Property.[10]
- Text messages from the Deceased to the Respondent which the Applicants say support the proposition that the Deceased purchased the Property alone.[11]
- In December 2022, despite the Respondent being the only one to reside in the Property since September that year, began to partially pay for utilities such as gas, hydro, water, telephone/internet bills and car insurance.[12]
- While the Deceased was hospitalized with cancer treatment, she told the Applicants that she wanted to transfer title of the Property directly to them – but was unable to leave the hospital due to treatment. The Respondent was allegedly supportive of the Deceased’s intentions to transfer title at this time.[13]
The Respondent’s evidence of contribution included the following:
- The Respondent contributed a $67,000 downpayment to the purchase price of the Property but the bank did not allow him to be added to title because he did not have a job.[14] The Respondent was unable to provide a bank statement corroborating that $67,000 was transferred to the Deceased for the purpose of a downpayment – but did provide a handwritten note dated April 11, 2012 allegedly written by the Deceased and signed by the Deceased and Respondent which read:[15]
Ya ping Zhang paid down payment $70,000 when he purchased the Property located at 7459 Monastery Drive […], when the selling price is higher than the price now, Ya Ping Zhang get $70,000, Yong Xiang Song get the rest, if the selling price is low than the price now, Ya ping Zhang share the half loss.
If buying the house in GTA, Ya Ping Zhang pay for the house, Ya ping Zhang keep the house, if bankrupted, there is nothing to do with Yong Xiang Song.
Yong Xiang Song
Ya Ping Zhang
2012.4.11
The handwritten note was produced after the Respondent’s cross-examination which he translated to English – though noting it was a ‘rough’ translation at best.[16]
- The Respondent argues that he contributed to household expenses of the Property by providing bank statements, credit card bills and e-transfers.[17]
- The Respondent did not consider himself and the Deceased as legally separated after the Deceased moved to Alberta. After her move, the Respondent paid for the water, gas and hydro bills for the Property otherwise they would have been shut off.[18]
The Writ of Possession
Section 60.10 of the Rules of Civil Procedure provides:
60.10 (1) A writ of possession (Form 60C) may be issued only with leave of the court, obtained on motion without notice or at the time an order entitling a party to possession is made.
(2) The court may grant leave to issue a writ of possession only where it is satisfied that all persons in actual possession of any part of the land have received sufficient notice of the proceeding in which the order was obtained to have enabled them to apply to the court for relief.
The Court stated that “only a party who has a right to exclusive possession to the property at issue is entitled to be granted leave to issue a writ of possession”.[19]
On the facts, it was yet to be determined whether the Applicants have the right to exclusive possession of the Property. Therefore, the Court held that it had no authority to grant leave to issue a writ of possession. [20]
The Court found that since the Deceased and the Respondent were still legally married at the time of her death and considering the Respondent’s matrimonial home claims, that an application under the Family Law Act (the “FLA”) ought to be made to determine who has possessory rights to the Property.[21] As such, an application for exclusive possession by either the estate trustees or surviving spouse should have been filed with the court seeking such relief.[22]
Additionally, while section 26(2) of the FLA provides that an untitled spouse who is in possession of the matrimonial home may continue to occupy it rent free for 60 days after the death of the other spouse – the court in Luyks v Luyks, 1998 CanLII 14824 (ON SC), 158 D.L.R. (4th) 188 (Ont.Ct.(Gen.Div.)), at paras. 22-23 held:[23]
22 There is nothing in the Family Law Act that says that the spouse’s right to continue in the matrimonial home terminates upon death.
23 Section 26(2) of the Family Law Act refers to the obligation to pay rent, nothing more.
Presumably, while the rent-free period had expired in this case, the Respondent may have a right to continue to occupy the Property.
Occupation Rent
The Court held that until the ownership and possession issues are determined that it was unable to decide whether the Respondent ought to pay occupation rent, as the possession determination would affect whether such rent should be paid and at what quantum.[24]
Decision and Takeaways
This case serves as a reminder that exclusive possession is the foremost issue to be decided when seeking an order for leave to issue a writ of possession over a property. Further, where a matrimonial home is concerned, various provisions under the FLA must be considered.
—
[1] Zhang et al. v. Zhang, 2026 ONSC 1353 (CanLII) at para 1.
[2] ibid at para 2.
[3] ibid at para 4.
[4] ibid at paras 6-7.
[5] ibid at paras 8-9.
[6] ibid at para 13.
[7] ibid at para 19.
[8] ibid.
[9] ibid at para 19.
[10] ibid at para 20.
[11] ibid at para 23.
[12] Ibid at para 24.
[13] ibid at para 25.
[14] ibid at para 26.
[15] ibid at para 27.
[16] ibid at para 28.
[17] ibid at para 29.
[18] ibid at para 34.
[19] ibid at para 42.
[20] ibid at para 43.
[21] ibid at para 44.
[22]ibid at para 45.
[23] ibid at para 52.
[24] ibid at para 56.
Written by: Jessica Homer
Posted on: March 18, 2026
Categories: Commentary, WEL Newsletter
Pei Zhang and Linda Zhang (the “Applicants”) are the children and named estate trustees of the Estate of Yong Xiang Song, who passed away on October 21, 2024 (the “Deceased” or “Estate”). The within application was commenced for, inter alia, an order for leave to issue a writ of possession on the grounds that the subject property (the “Property”) was owned soley by the Deceased and forms part of her Estate.[1]
Ya Ping Zhang (the “Respondent”), who was the Deceased’s husband but was separated from the Deceased for many years, continued to live at the Property. The Respondent argues the Property is a matrimonial home that he financially contributed to and thus has a beneficial interest and right to continue living there.[2]
The Property
On or about May 30, 2012, the Property was purchased by the Deceased with her sole name added to title. It is argued by the Applicants that the Deceased contributed the entire downpayment and paid off the mortgage to the Property.[3] The Applicants, the Respondent and the Deceased resided at the Property until 2013, when Pei moved out for university and until 2016 when the Deceased moved out to begin a new job in Alberta.[4]
By 2019, the mortgage was paid off, and in 2022, Linda moved out of the Property to attend university.[5] The Respondent continued to reside at the Property.
Following the Deceased’s death, the Applicants requested the Respondent to vacate the Property on the basis that the Deceased was the sole legal and beneficial owner and thus the Property formed part of her Estate.[6] The Respondent refused.
The Evidence
The Applicant’s argued that the property was soley owned by the Deceased, the evidence they relied on included:
The Respondent’s evidence of contribution included the following:
Ya ping Zhang paid down payment $70,000 when he purchased the Property located at 7459 Monastery Drive […], when the selling price is higher than the price now, Ya Ping Zhang get $70,000, Yong Xiang Song get the rest, if the selling price is low than the price now, Ya ping Zhang share the half loss.
If buying the house in GTA, Ya Ping Zhang pay for the house, Ya ping Zhang keep the house, if bankrupted, there is nothing to do with Yong Xiang Song.
Yong Xiang Song
Ya Ping Zhang
2012.4.11
The handwritten note was produced after the Respondent’s cross-examination which he translated to English – though noting it was a ‘rough’ translation at best.[16]
The Writ of Possession
Section 60.10 of the Rules of Civil Procedure provides:
60.10 (1) A writ of possession (Form 60C) may be issued only with leave of the court, obtained on motion without notice or at the time an order entitling a party to possession is made.
(2) The court may grant leave to issue a writ of possession only where it is satisfied that all persons in actual possession of any part of the land have received sufficient notice of the proceeding in which the order was obtained to have enabled them to apply to the court for relief.
The Court stated that “only a party who has a right to exclusive possession to the property at issue is entitled to be granted leave to issue a writ of possession”.[19]
On the facts, it was yet to be determined whether the Applicants have the right to exclusive possession of the Property. Therefore, the Court held that it had no authority to grant leave to issue a writ of possession. [20]
The Court found that since the Deceased and the Respondent were still legally married at the time of her death and considering the Respondent’s matrimonial home claims, that an application under the Family Law Act (the “FLA”) ought to be made to determine who has possessory rights to the Property.[21] As such, an application for exclusive possession by either the estate trustees or surviving spouse should have been filed with the court seeking such relief.[22]
Additionally, while section 26(2) of the FLA provides that an untitled spouse who is in possession of the matrimonial home may continue to occupy it rent free for 60 days after the death of the other spouse – the court in Luyks v Luyks, 1998 CanLII 14824 (ON SC), 158 D.L.R. (4th) 188 (Ont.Ct.(Gen.Div.)), at paras. 22-23 held:[23]
22 There is nothing in the Family Law Act that says that the spouse’s right to continue in the matrimonial home terminates upon death.
23 Section 26(2) of the Family Law Act refers to the obligation to pay rent, nothing more.
Presumably, while the rent-free period had expired in this case, the Respondent may have a right to continue to occupy the Property.
Occupation Rent
The Court held that until the ownership and possession issues are determined that it was unable to decide whether the Respondent ought to pay occupation rent, as the possession determination would affect whether such rent should be paid and at what quantum.[24]
Decision and Takeaways
This case serves as a reminder that exclusive possession is the foremost issue to be decided when seeking an order for leave to issue a writ of possession over a property. Further, where a matrimonial home is concerned, various provisions under the FLA must be considered.
—
[1] Zhang et al. v. Zhang, 2026 ONSC 1353 (CanLII) at para 1.
[2] ibid at para 2.
[3] ibid at para 4.
[4] ibid at paras 6-7.
[5] ibid at paras 8-9.
[6] ibid at para 13.
[7] ibid at para 19.
[8] ibid.
[9] ibid at para 19.
[10] ibid at para 20.
[11] ibid at para 23.
[12] Ibid at para 24.
[13] ibid at para 25.
[14] ibid at para 26.
[15] ibid at para 27.
[16] ibid at para 28.
[17] ibid at para 29.
[18] ibid at para 34.
[19] ibid at para 42.
[20] ibid at para 43.
[21] ibid at para 44.
[22]ibid at para 45.
[23] ibid at para 52.
[24] ibid at para 56.
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