December 9, 2020

This blog was written by Tyler Lin, Student-At-Law

As all litigators know, there are two sides to every story. In the world of estate litigation, it is not uncommon for one side to view themselves as an invited guest entitled to remain in the family home while the other side views them as a squatter. A common example of this situation is when an adult child returns to the family home to care for an elderly parent, rent-free. When the parent dies, the estate trustee is tasked with selling the family home as part of the administration of the estate. However, the adult child (who may have been living in the family home for several years at that point) refuses to leave. As set out in the cases below, the most effective option may be to seek a court order for vacant possession of the house.

In Filippelli Estate, Ida passed away in 2016. In her will, she appointed two of her three children, Carlo and Rosetta, as co-estate trustees. She gifted ownership of her house (her only asset of value) to Carlo and Rosetta, along with 90% of the residue of the estate. She left the remaining 10% of the residue to her son, Roberto. Complications arose when Roberto, who had moved in with Ida in the year leading up to her death, refused to leave the house despite numerous requests by the estate trustees and their counsel. The estate trustees then brought an application for a court order to remove him.

Roberto argued that because he had made monetary contributions to the household, he was actually Ida’s tenant. Roberto then argued that the obligations and protections of the Residential Tenancies Act, 2006, SO 2006, c 17 (“RTA”) applied.

The application judge did not accept this argument. Justice Spies held that monetary contributions are not necessarily the equivalent of rent. Rather, it is natural for two people living together to share the costs of living. In addition, Justice Spies found that it would be against public policy to set a precedent to allow all occupants of a house (regardless of whether or not they were tenants) to obtain the protections under the RTA and override testamentary intentions. Accordingly, Justice Spies ordered Roberto to vacate the property within 30 days, failing which he would be forcibly removed by Toronto Police.

Ravnaski v Zolis dealt with a situation where the adult child paid his mother regular rent. In that case, Sacha lived with his mother, Kristina, in her condominium after she was widowed. Sacha paid his mother regular rent of $500/ month. Following Kristina’s death, she named her daughter, Mimi, as sole estate trustee and beneficiary of her estate. Sacha contested the validity of the will and brought an application for dependant support.

The parties agreed to arbitrate the dispute rather than pursuing the matter in court. However, when the arbitrator ordered Sacha to vacate the condominium within 90 days, Sacha brought an application to set aside the arbitration award and to continue occupying the property rent-free.

The judge hearing the application upheld the arbitrator’s decision and ordered Sacha to vacate the property within 90 days. Justice Davies held that the RTA does not apply to a situation where the home owner and occupant shared a bathroom or kitchen facility. Further, even if the RTA did govern the present situation, the rental agreement was between Sacha and his mother. After her death, the estate trustee declined to enter into a new rental contract with Sacha. Therefore, Justice Davies held that Sacha’s last $500 rent payment legally entitled him to stay for the remainder of that month, but not a day after.

The many disruptions caused by COVID-19 have not changed the court’s view on a party’s right to occupy a property without a legal entitlement to do so. In Lima v. Ventura Estate, Maria had two adult daughters and one adult son, Antonio. All three were appointed as co-estate trustees in Maria’s will. In the years leading up to her death, Antonio and his family lived with Maria to help with her care as she had dementia. During that time, Antonio did not pay rent, utilities, taxes, or maintenance. Following her death, Maria’s will directed the estate trustees to immediately list the house for sale. After initially refusing to leave, Antonio eventually agreed to list the house for sale in April 2020, which was confirmed by court order. However, after the COVID-19 pandemic hit, Antonio brought a motion to extend the deadline to list the house for sale.

The motion judge refused to grant the extension. Antonio argued that COVID-19 prevented him from listing the house for sale. Justice Emery did not accept this argument, finding instead that while the pandemic has slowed down the economy, many things, including the sale of a house, could still move forward on a virtual basis.

When deciding whether to move forward with an application for the vacant possession of a home, the estate trustee will be judged on the reasonableness of the request. In situations where communication has broken down between the estate trustee and the occupant, a court order, while costly, may be the only way forward. An estate trustee owes a duty to all beneficiaries to move forward with the estate administration and cannot prefer the interests of the occupant of the house, even if they are also beneficiaries of the estate.