Court File and Parties

Court File No.: 25871/12
Date: 2012-08-02
Superior Court of Justice - Ontario

RE: Bernice Makarchuk, Applicant

AND:
Darwin Makarchuk, Respondent

Before: Justice E. Gareau

Counsel:
D. Kearns, Counsel, for the Applicant
D. Makarchuk – Self-represented

Heard: August 2, 2012

Endorsement

[ 1 ] In this application, the applicant seeks an order for a writ of possession in respect to property described municipally as 44 Frobel Drive, Elliot Lake, Ontario.

[ 2 ] The applicant is the owner of that property by terms of a will dated July 7, 2003 made by Michael Makarchuk. In that will, Joan Bernice Makarchuk is the sole beneficiary of all Mr. Makarchuk’s real and personal property. This includes the subject premises. The respondent currently occupies these premises. The respondent is the son of the applicant and the late Michael Makarchuk. He disputes the applicant’s entitlement to the property on the basis of a separation agreement dated December 19, 2003 between his parents and, in particular, paragraph 8 of the agreement which is the general release on estates by either party subject to gifts from one party to the other.

[ 3 ] The respondent’s position is that this agreement was made subsequent to the will of Michael Makarchuk and therefore the will is invalid, thereby disentitling the applicant to the property in question.

[ 4 ] This issue has been previously adjudicated in this court which upheld the will despite the provisions in section 8 of the separation agreement. That decision was appealed to the Ontario Court of Appeal. That appeal was dismissed and request for leave to appeal to the Supreme Court of Canada was dismissed by that court on a without-costs basis.

[ 5 ] In her application, the applicant is seeking only a remedy to enforce the previous judgment of this court, which was affirmed by the Ontario Court of Appeal.

[ 6 ] Although the respondent takes the position that he is paying the utilities and other consumption expenses related to the occupation of 44 Frobel Drive, Elliot Lake, Ontario, it is acknowledged by the respondent that there is no landlord and tenant relationship between himself and the applicant.

[ 7 ] The respondent may doubt the correctness of the decision of this court who upheld the will of Michael Makarchuk, but this matter has already been decided by the court. The respondent cannot re-argue the same issue that has already been fully argued previously and decided by this court.

[ 8 ] The applicant is seeking a remedy which enforces the order of this court by gaining occupation of property which she is now the sole registered owner of by the terms of the will of the previous sole registered owner, Michael Makarchuk.

[ 9 ] The applicant should receive occupation of the lands at 44 Frobel Drive, Elliot Lake, Ontario which she lawfully owns.

[ 10 ] I am prepared to make the order sought by the applicant, but since the applicant is not presently in the residence and there is no evidence that she requires the premises for her own occupation, I am prepared to allow the respondent some time to vacate.

[ 11 ] Accordingly, an order shall issue in accordance with the claim in paragraph 1(a) of the notice of application dated July 6, 2012, with that order to be effective as of October 1, 2012. That should permit the respondent sufficient time to secure new accommodation.

[ 12 ] The applicant has requested costs of this proceeding and has submitted a bill of costs totalling $2,250.00 for fees, disbursements of $236.00 and H.S.T. on those amounts, for a total of $2,278.50. In the circumstances, the respondent shall pay costs to the applicant fixed at $1,500.00 inclusive of disbursements and H.S.T.

Justice E. Gareau

Date: August 2, 2012