James Dunphy

Estate trustees brought an application seeking leave to issue a writ of possession of a property forming part of the deceased’s estate, vacant possession, occupation rent, and damages against the surviving spouse who remained in the home.

The respondent asserted that the property was a matrimonial home and that he had a beneficial interest and possessory rights.

The court held that a writ of possession cannot issue without a prior order granting exclusive possession.

Because the parties were still spouses at the time of death and the property may constitute a matrimonial home, issues of title and possession must be determined under the Family Law Act before such remedies can be granted.

The court therefore dismissed the application, including the claims for occupation rent, damages, and vacant possession.

The moving party, claiming to be the common-law spouse of the deceased, sought the appointment of an Estate Trustee During Litigation (ETDL), arguing the current estate trustee was in a conflict of interest by opposing her claims.

The estate trustee brought a cross-motion to evict the moving party from the deceased's property and to sell it, citing the estate's financial deficit and required repairs.

The court dismissed the motion for an ETDL, finding the estate trustee's opposition to a creditor's claim did not require a neutral trustee.

The court granted the cross-motion, ordering the moving party to vacate the property and authorizing its sale, noting the moving party had suitable alternative accommodation and her claims against the estate would not be prejudiced.