BARRIE COURT FILE NO.: CV-17-746 DATE: 20181212 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

GEOFFREY CAIRNS and CHRISTINE CAIRNS Plaintiffs – and – KAREN LOUISE O’NEIL and JACOB O’NEIL Defendants

Counsel: C. Baker, for the Plaintiffs Karen Louise O’Neil and Jacob O’Neil, Defendants, Self-Represented

HEARD: November 21, 22, 23, 2018

REASONS FOR DECISION

MULLIGAN J.:

[1] The plaintiffs in this action, Geoffrey Cairns (Geoffrey) and Christine Cairns (Christine) are spouses of one another. The defendant, Karen Louise O’Neil (Karen) is their daughter. The defendant, Jacob O’Neil (Jacob), is the spouse of Karen. For several years, Karen and her spouse have been occupying a residence at 35 Goodwin Drive, Barrie (PIN 58737-3037 (LT)). The registered owners are the plaintiffs, Geoffrey and Christine, who reside elsewhere.

[2] The issues for determination following the trial of this matter are whether or not the plaintiffs are entitled to possession of the property, a Writ of Possession, as well as judgment for the repayment of certain loans claimed to have been made to Karen, and arrears of rent from Karen and Jacob, accumulated during periods of non-payment of rent. The defendants allege that the property was held by the plaintiffs in trust for Karen, and that the plaintiffs have been unjustly enriched by work done on the house by Jacob over the years. Karen denies that there were any loans, and by counterclaim seeks a finding that there was a breach of contract, a declaration that she is the owner, and the issuance of a CPL order against the property.

[3] All parties gave evidence at trial. In addition, the plaintiffs called their son, Paul Cairns, to give evidence.

History of the Proceedings

[4] In May of 2017, the plaintiffs commenced an Application and a Statement of Claim against the defendants after what they submit was a permanent breakdown of the relationship with their daughter, Karen. The defendants filed a Statement of Defence and Counterclaim. In August of 2018, the plaintiffs brought a motion seeking that the defendants vacate the property, and related relief. On October 29, 2018, the matter came before Justice Bird, who directed that the matter be placed on the civil sittings for a two-day trial on the issues outstanding, including whether or not the defendants could establish a constructive trust. The parties were instructed as to what must be filed before the trial date. The plaintiffs were required to detail their carrying costs, together with the monies received from the defendants over the years. The defendants were also required to provide any documentary evidence to support their defence or counterclaim.

[5] With respect to the subject property, the following facts are not in dispute:

(i) The plaintiffs purchased the property at 35 Goodwin Drive from their son, Paul Cairns, for $207,500 on October 1, 2009;

(ii) The plaintiffs arranged a first mortgage on the subject property for $100,000 for a five-year term;

(iii) The plaintiffs paid the balance of the purchase price plus land transfer and legal fees, totaling $111,341.97;

(iv) Karen occupied the premises with her two young children, shortly after closing. Prior to moving into 35 Goodwin, she had been residing with the plaintiffs, her parents, with her two children;

(v) About two weeks after she moved into 35 Goodwin, her spouse, Jacob O’Neil, moved in and resumed cohabitation with her;

(vi) Karen began paying rent at the rate of $700 per month. It was not disputed that this represented the plaintiffs’ carrying costs when principal, interest, taxes and insurance were calculated;

(vii) Several years later, the monthly amount paid by Karen was increased to $730, representing the plaintiffs’ increased carrying costs;

(viii) Jacob did certain work on the property by way of renovations, upgrades or improvements.

The Plaintiffs’ Evidence

Geoffrey Cairns

[6] Mr. Cairns is a retired Ontario Hydro employee. He and his wife, Christine, have two children, their daughter, Karen O’Neil, and their son, Paul Cairns. In 2009, their son Paul was living at the subject property. It is not disputed that he purchased it three years earlier as a new home. 35 Goodwin Drive is a 967 square-foot, two-storey townhouse with two bedrooms and a bathroom on the second floor, with a kitchen and living area on the first floor. There was no bathroom on the main floor. The basement was unfinished, but had been framed by the builder for the potential of future renovations.

[7] Paul’s evidence was that he wished to sell the house and move to a larger, detached dwelling. An agreement was reached between Paul and his parents that they would purchase the house from him, thus saving him real estate commissions in connection with the sale. The transfer was subsequently completed for $207,500.

[8] Paul gave evidence confirming the details of this transfer and testified that the house was in pristine condition when he turned it over to his parents. At that point, it was three years old and he had been living there by himself.

[9] At the time of the transfer, Karen was living at the residence of the plaintiffs, with her two children. She had had some struggles from time to time, and the plaintiffs agreed to give her occupancy of this dwelling, which they considered an investment. An agreement was reached that $700 per month would be paid, representing their carrying costs. The amount arrived at reflected their mortgage cost, the taxes and the insurance, but no return on their $111,000 investment.

[10] The mortgage came up for renewal in 2014 five years after the plaintiffs’ purchase. Karen and her spouse were still occupying the house. The parties discussed Karen purchasing the house for $150,000, provided that she could come up with the financing costs. She was unable to do so and the rent arrangement continued until this application was brought in 2017.

[11] Geoffrey Cairns gave evidence as to improvements made to the house by Jacob. Mr. Cairns acknowledged that he had taken out a permit himself for the creation of a two-piece washroom on the main floor. A permit was issued by the City of Barrie. The necessary electrical, framing and drywall work was done by Jacob, and the permit was signed off.

[12] Mr. Cairns also gave evidence about renovations to the basement. He was aware that the basement had been roughed in by the builder and framing was in place. His evidence was that he purchased the drywall for a little over $1,000, and carpeting for a little under $1,000, with labour done by Jacob.

[13] Mr. Cairns also gave evidence about his knowledge that work had been done on the main floor. Jacob removed carpet and installed hardwood flooring, did renovations to the kitchen and to lighting. His evidence was that this work was not needed and he did not authorize it. He also gave evidence that there was work done in the garage, which provides no benefit to the house; work which he testified may have to be removed in part. He also gave evidence about work in the backyard, including a pond which he did not authorize, and other works which he testified would have to be removed. Mr. Cairns testified that prior to trial, he requested an opportunity to look at the house, but was denied access to the property by the defendants. He has not been at the house for several years.

[14] In cross-examination, he acknowledged that Jacob had done the construction work in the bathroom, the basement and other areas of the house. He was not aware of any building permits that may have been issued for changes to plumbing or electrical work, other than those related to the two-piece washroom on the main floor.

Christine Cairns

[15] Christine Cairns is retired, having worked for the CIBC in various capacities, including as a bank manager. Her evidence confirmed that the original mortgage with the CIBC was $100,000, but it now stands at about $78,494. A portion of principal has been paid down every month by reason of monthly amortized mortgage payments. Her evidence was that she has paid all taxes over the years, as well as insurance on the subject property. Her evidence was that her daughter, Karen, paid all the utility bills, but from time to time, she got reminders from the City of Barrie Water Department because water bills were late or not paid. Her evidence was that she and her husband gave their daughter a break on rent because market rent would have been much higher than the $700.

Rent Received

[16] Ms. Cairns gave evidence that the total amount of rent received over the period in question was $43,400. In support of this figure, Ms. Cairns prepared a spreadsheet supporting this total, together with monthly bank statements from CIBC showing transfers into her account from time to time from Karen O’Neil by e-transfer. There is no dispute that payments were made continually from the period of first occupancy in November of 2009 to October of 2011. As part of her evidence, for example, the bank account statement for November of 2011 recorded an e-transfer of $730 on November 25 from Karen. Every monthly statement thereafter showed whether or not there were any e-transfers from Karen. As a further example, there was an e-transfer on January 24, 2012 of $1,510, but the statement for December of 2011 showed $0. Thereafter, a series of payments were recorded, sometimes $730, sometimes $500, and in some months, $0. There were no subsequent payments above $730, and no e-transfers signaling a catch-up on months where zero was paid. She testified that all payments from Karen were by e-transfer and none by cash.

[17] Ms. Cairns’ evidence, as set out in Exhibit 26, indicated that for the period in question, the amount of rent that should have been received was $78,120. The amount actually received was $43,400, leaving a balance owing of rent of $34,720.

[18] I pause to note that Karen disagrees with this figure. She acknowledged that she does owe rent of $4,380 for a period before this action was commenced, but submits that she paid other amounts from time to time to her mother by cash, which have not been credited to her.

Loans

[19] The plaintiffs claim that their daughter owes $25,350.03 for loans made to her. Ms. Cairns provided a spreadsheet showing monies advanced to Karen from the period 2014 to the end of 2016. Each entry was supported by a banking document. For example, there is an entry dated August 11, 2014 for daycare arrears for $2,000. The supporting bank statement for August 2014 shows an e-transfer to Karen for $2,000, with Ms. Cairns handwritten note “daycare arrears”. The entries cover a number of categories, including car repairs, bills and living expenses, Karen’s Visa payment, groceries and utility bills. For example, there is an entry on July 29, 2016 for utility bills of $850. The corresponding bank statement indicates an e-transfer to Karen on July 29 with a handwritten note “utility bills”.

[20] Ms. Cairns gave evidence that it was never an intention that these advances to their daughter would be gifts, that they were always considered to be loans. In support of this, she made reference to an e-mail sent to Karen on November 5, 2012, which stated in part “Anyway, re the dollars you owe, it is a little over $11,000, but I chatted with dad, and he says that if you give us $9,000, we will call it done and settled and close the books.” It is not disputed that the $9,000 was paid by Jacob to the Cairns as suggested by Karen’s e-mail of November 5, which stated “Jake will be receiving a cheque soon. We want to know what the balance that we owe you is, so that we can pay you completely and then we are at zero for all debts…”

[21] Christine Cairns kept another e-mail from Karen dated September 4, 2014, where Karen requested:

I have to give [my lawyer] a $1,200 retainer to attend by next week. I have $750 to give him, but was wondering if I could burden you yet once again, for the difference, which of course, would be added to my increasing debt to you both, which you will get returned with interest.

The Defendants’ Evidence

Karen O’Neil

[22] Karen O’Neil gave evidence that she took occupancy of the property on the basis that she could afford, and did pay, $700 per month. She acknowledged that she was not on title to the property and was not asked to co-sign any loan documents. Her husband moved in with her and her two sons a few weeks after she moved into the Goodwin Drive property. She acknowledged that the rent of $700, and then $730, was a good deal for her family. She also acknowledged that her brother vacated the house earlier than he initially planned, completing the transfer to his parents so that she could take occupancy of the house and move out of her parents’ home with her sons. She acknowledged that there was no written trust agreement between the parties, nor any e-mails about any oral agreements. She denied that she missed any monthly payments, and she denied that her payment history was terrible. Her evidence was that she paid the difference in cash from time to time, but she had no receipts or records with respect to cash payments to her mother. She provided bank statements showing withdrawals from her bank for various amounts from time to time, but no evidence that those payments were paid direct to her mother.

[23] Her two sons no longer reside with her at 35 Goodwin Drive, Barrie. Karen and Jacob are the sole occupants.

[24] She acknowledges that she owes some arrears of rent: $4,380, but not the figure claimed by her mother. She kept no running record of amounts received from her mother or any amounts she paid to her mother.

[25] Her evidence was that the amounts advanced to her were treated as gifts, suggesting that ninety percent of what she received was gifts, and ten percent were loans. She indicated that there were no due dates with respect to any amounts loaned to her. She did not dispute that $9,000 was paid to her parents to cover off and settle earlier loans.

Jacob O’Neil

[26] Jacob O’Neil is the spouse of Karen O’Neil. He gave evidence as to renovations and improvements he did on the house from time to time. He thought of the house as an investment for Karen from her parents. He was aware that the money for the house purchase was from the plaintiffs. When he was doing work on the house he thought he was doing it for his spouse Karen.

[27] During the period in question he was off on WSIB and so had time to conduct renovations on the house. His evidence was that he did extensive renovations on the home. In support of the defence and Counterclaim and as requested by the endorsement of Justice Bird he filed as Exhibit 29 a spreadsheet and accompanying documents of 200 unnumbered pages. In preparation for trial he prepared a detailed statement of work done and expenses with respect to renovations and improvements to the home which he submits represents a value of $92,890.55 for work done in the following areas:

a. Livingroom b. Dining Room; c. Kitchen; d. Main floor hallway; e. Main floor bathroom; f. Main floor entrance; g. Construction of basement; h. Construction of the backyard; i. Construction of the garage; j. Blown in insulation in attic; k. Construction of front yard landscaping;

In addition, Jacob provided a series of photographs of the work in progress in some of these areas.

[28] It is clear from his summary that the bulk of this amount is based on a suggested hourly rate of $25 per hour based on the hours he spent in each area. However Jacob does claim some costs for materials purchased or disposal of refuse. No receipts were provided.

[29] Jacob’s evidence was that he did this work by and large using his own skill and ability, however, he further gave evidence that he may have had assistance from friends when he called in favours. With respect to his evidence I note the following as lacking:

a. There are no receipts for any of the suggested disbursements; b. There were no invoices from subcontractors or for disposal expenses; c. There is no independent estimate as to the value of this work.

[30] Clearly Mr. Cairns knew of some of the work. He approved of and obtained a building permit for the main floor two-piece bathroom and he purchased the drywall to be used for the basement renovation. Mr. O’Neil’s evidence was that some of the work done by the original builder was “criminal” and he had to be repaired. But there is no evidence that he called to the Cairns attention any such issues. There was no report to the City of Barrie building department and the owners, the Cairns, had no opportunity to raise the issue with the builder with respect to building code violations, if any or under the provisions of the Ontario New Home Warranty Program, if applicable.

Analysis

[31] Counsel for the plaintiff provided a casebook of authorities to assist the court with respect to the legal principles that ought to be applied in this case. The claim of the plaintiffs and the Counterclaim of the defendants raises the following questions:

1. Were the Cairns holding the property in trust for their daughter Karen?
2. Were the funds advanced from the Cairns to their daughter gifts or loans? If they were loans, what is the amount owing?
3. Does Karen owe rent for missed payments? And if so, what is the amount?
4. Are Karen and Jacob entitled to an unjust enrichment award for work done and improvements to the property? If so, what is the amount?

[32] The Supreme Court of Canada dealt with the issue of gifts versus loans to independent adult children in Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795. As Rothstein J. stated a para. 27, “The presumption of resulting trust is the general rule for gratuitous transfers.”

[33] In Mroz v. Mroz, 2015 ONCA 171 Gillese J.A. speaking for the Ontario Court of Appeal summarized the principles from Pecore and other cases as follows:

A resulting trust arises when title to a property is in one party’s name but that party, because he or she is a fiduciary or gave no value to the property, is under an obligation to return it to the original title owner. When a parent gratuitously transfers property to his or her adult child, the law presumes that the child holds the property on resulting trust for the parent. The burden of rebutting the presumption on the child. In determining whether the presumption has been rebutted, the trial judge must begin his or her inquiry with the presumption and then weigh all the evidence in an attempt to ascertain, on a balance of probabilities, the parent transferor’s actual intention at the time of the transfer.

[34] In McNamee v. McNamee, 2011 ONCA 533 the Ontario Court of Appeal summarized the law of gifts at para. 24:

The essential ingredients of a legally valid gift are not in dispute. There must be (1) an intention to make a gift on the part of the donor, without consideration or expectation of remuneration, (2) an acceptance of the gift by the done, and (3) a sufficient act of delivery or transfer of the property to complete the transaction.

[35] In Colangelo v. Amore, 2010 ONSC 5657 D.M. Brown J. as he then was, reviewed an issue as to whether or not money advanced from a man to his then girlfriend was a gift or a loan. Justice Brown provided the following helpful principles that emerged from the caselaw:

• Where one person transfers money to another in circumstances where the payor is not indebted to the payee or where no presumption of advancement arises, once the transfer is proved the burden then falls on the recipient of the money to show that it was not repayable. Para. 56.
• An inter vivos gift consists of a voluntary transfer of property from the true possessor to another with the full intention on the part of both donor and donee that the thing shall not be returned to the donor, but shall be retained by the donee as his or her own. Para. 57
• Three requirements are necessary to establish a valid gift inter vivos, (i) an intention to donate; (ii) a sufficient act of delivery; (iii) an acceptance of the gift. Para. 57
• If it is proven that the payment of money was made, the burden is on the recipient of the money to show that both parties knew and intended that the money not be repaid. Para. 59.
• The onus of proof to establish a valid gift rests on the donee. Para. 60
• The standard proof which the recipient of a thing must meet to establish that a transfer of the thing was an inter vivos gift is the general standard of proof on the balance of probabilities applicable to civil cases. Para. 62.

[36] The Supreme Court of Canada dealt with unjust enrichment in Kerr v. Baranow, 2011 SCC 10, 2011 1 S.C.R. 269. As the court noted at para. 36,

The first and second steps in the unjust enrichment analysis concern first, whether the defendant has been enriched by the plaintiff and second, whether the plaintiff has suffered a corresponding deprivation.”

The court continued at paras. 38 and 39:

[38] For the first requirement — enrichment — the plaintiff must show that he or she gave something to the defendant which the defendant received and retained.

[39] Turning to the second element — a corresponding deprivation — the plaintiff’s loss is material only if the defendant has gained a benefit or been enriched.

[37] The third element of an unjust enrichment claim, as the court noted, is that the benefit and corresponding detriment must have occurred without a juristic reason.

[38] The court noted that the test for juristic reason is flexible and the relevant factors to consider will depend on the situation before court. As the court stated at para. 44:

Thus, at the juristic reason stage of the analysis, if the case falls outside the existing categories, the court may take into account the legitimate expectations of the parties and moral and policy-based arguments about whether particular enrichments are unjust.

[39] The court then concluded that as to remedy the plaintiff maybe entitled to a monetary or proprietary award, noting at para. 47:

The first remedy to consider is always a monetary award. In most cases, it will be sufficient to remedy the unjust enrichment.

[40] The Supreme Court of Canada recently reviewed the law of unjust enrichment and the potential for constructive trusts in Moore v. Sweet, 2018 SCC 52. Recall that in this case the O’Neils are plaintiffs by Counterclaim and the Cairns are defendants by Counterclaim.

[41] The court gave the following overarching definition of unjust enrichment at para. 35:

Broadly speaking, the doctrine of unjust enrichment applies when a defendant receives a benefit from a plaintiff in circumstances where it would be “against all conscience” for him or her to retain that benefit. …“At the heart of the doctrine of unjust enrichment . . . lies the notion of restoration of a benefit which justice does not permit one to retain.”

[42] As to the appropriate remedy if unjust enrichment is found the court noted at para. 89:

The remedy for unjust enrichment is restitutionary in nature and can take one of two forms: personal or proprietary. A personal remedy is essentially a debt or a monetary obligation — i.e. an order to pay damages — that may be enforced by the plaintiff against the defendant.

In certain cases, however, a plaintiff may be awarded a remedy of a proprietary nature — that is, an entitlement “to enforce rights against a particular piece of property”. The most pervasive and important proprietary remedy for unjust enrichment is the constructive trust…

[43] The court noted that a constructive trust is not available in all circumstances unless a personal remedy would be inadequate. As the court stated at para. 91:

And even where the court finds that a constructive trust would be an appropriate remedy it will be imposed only to the extent of the plaintiff’s proportionate contribution (direct or indirect), to the acquisition, preservation, maintenance or improvement of the property.

Application of the Principles

1. Do the Cairns hold the property in trust for their daughter Karen?

[44] Based on the evidence that I have considered I am satisfied that they do not hold the property in trust for their daughter. The following points assist me in making that determination:

• There was no written agreement that the Cairns would hold the property in trust for their daughter.
• Karen played no part in the purchase of the property. She was not registered on title. She did not sign or guaranty the mortgage. She contributed no funds for the purchase price.
• Karen paid monthly rent equivalent to the Cairns’ carrying costs and below market value.
• The parties attempted to negotiate a sale to Karen in 2014 when the mortgage came up for renewal. That transfer would only have taken place if Karen could have arranged appropriate mortgage financing. She could not.
• I am further satisfied on the balance of probabilities that there was no oral agreement that they were holding the property in trust for Karen.

2. Rent Payments

[45] It is clear that the parties entered into a rent agreement requiring Karen to pay monthly rent. The evidence suggests that she did so faithfully for the first few years then began missing payments. Mrs. Cairns kept meticulous records of all funds transferred to her by Karen by e-transfer. I accept her evidence that she received no cash payments from Karen at any time on account of rent payments. Records that Karen kept showing withdrawals from her account from time to time gave no indication as to where those case withdrawals went to. Karen kept no records. On at least one occasion she made a larger e-transfer a month following a month when she made no payment.

[46] I am therefore satisfied that the defendants owe the plaintiffs the sum of $34,720 for unpaid rent.

3. Loans or Gifts

[47] I am satisfied that the advances from the Cairns to Karen were loans and not gifts. Mrs. Cairns kept meticulous records supported by bank statements for all of the months in question. Karen kept no such records. A history of lending between the parties was documented in evidence when Karen’s spouse paid $9,000 to Mr. and Mrs. Cairns to settle loans that had accumulated prior to the current claim. In addition, Karen sent an email on at least one occasion requesting further funds and asked that it be added to her increasing debt. I am satisfied that these amounts were loans. Karen’s evidence is that they were gifts does not satisfy me on a balance of probabilities. I therefore find that Karen owes the plaintiff the sum of $25,300 for loans unpaid.

4. Unjust Enrichment

[48] The plaintiffs by Counterclaim suggest that improvements done on the property by them have unjustly enriched the plaintiffs by over $90,000. Because I am satisfied that the legal and equitable title of the property remain in the name of Mr. and Mrs. Cairns the issue of unjust enrichment must be considered in this case.

[49] Mr. Cairns acknowledged authorizing the work for the main floor two-piece washroom. He also purchased drywall for the basement renovation and knew or ought to have known that these two renovations or improvements would add value to the property.

[50] At the same time these improvements assisted Karen and her spouse. They occupied a small two-storey townhouse with only one bathroom on the second floor. They had two young children. The addition of the two-piece washroom on the main floor benefited them during their period of occupancy while the children were living with them. In addition the renovation of the basement provided them with additional bedrooms for their children. They have had exclusive possession of the house since 2009.

[51] But the necessity for much of the other work done by Mr. O’Neil was not apparent. Certainly the work that he did improved the home for their own use but it is not clear that they were ever authorized or discussed by Mr. Cairns. In fact Mr. Cairns suggests that at least some of the work will have to be deconstructed to make the house saleable. Mr. O’Neil called no independent evidence as to the cost of these improvements or that they added any value to the property in terms of unjust enrichment. He had no time dockets or receipts and clearly made up a summary of work years after the work was completed. However I am satisfied that at least some of the work done was done with the full approval of Mr. Cairns and added value to the property.

[52] Absent any appraisals, contractor’s estimates or proper receipts from Mr. O’Neil, it is left to the court to determine a fair and equitable amount to be attributed to this work. I am satisfied that an award of $30,000 is a fair and just allowance for the work done by Mr. O’Neil. I am satisfied that a pecuniary award, dealt with by set off, is the appropriate remedy in this case.

Set-Off

[53] I am satisfied that the principles of set-off apply here and the sum of $30,000 which I find owing from the Cairns to O’Neil should be set-off against the amounts I have found owing from the O’Neils to Mr. Cairns. I calculate these amounts as follows:

Unpaid rent owing to plaintiffs $34,720 Unpaid loans owing to plaintiffs $25,300 Total owing to plaintiffs by defendants $60,020 Minus the defendants improvements $30,000 to the property Net owing to plaintiffs $30,020

Vacant Possession

[54] The plaintiffs as registered owners are entitled an order for vacant possession of the property. At trial the defendants undertook to continue to pay rent until the decision of this court.

[55] I am satisfied that the defendants ought to have a reasonable period of time to vacate the property. Prior to the commencement of litigation Mr. Cairns wrote to his daughter on January 14, 2017 stating in part:

We would like you to sort out an alternate living arrangement as we will need to sell the house. We would expect that you will leave the house in reasonable shape. Despite your email content we do not expect you to immediately vacate the house. We do expect that the house will be vacated by end of April 2017. This provides you and Jake time to find alternate living accommodation.

[56] I am satisfied that in all the circumstances the defendants be afforded the opportunity to stay in the house for a further three months from the date of this judgment. The defendants are expected to continue to pay rent and utilities.

Inspection of the Property

[57] I am satisfied that it would benefit both parties if the property were inspected now by an independent individual such as real estate appraiser. This will benefit both parties. The defendants will benefit because it will prevent allegations later that they took steps to destroy or devalue the property after judgment. The plaintiffs will benefit because they will have a baseline as to the condition of the house immediately following this judgment. The plaintiffs are required to give reasonable notice and the name of the independent party that will conduct such an inspection at the expense of the plaintiffs. The inspection to be conducted during daylight hours within 14 days of this judgment.

[58] The plaintiffs have leave to move ex parte for a writ of possession upon evidence that the defendants have not vacated the property in accordance with this judgment.

Conclusion

[59] For these reasons I grant judgment to the plaintiffs in the amount of $30,020 against the defendants. The plaintiffs are also granted vacant possession of 35 Goodwin Drive, Barrie, effective 90 days from the date of this judgment.

Costs

[60] The plaintiffs have achieved substantial success with respect to their claim. The parties are encouraged to settle the issue of costs. If no agreement is reached I will receive written submissions from the plaintiffs within 30 days of the release of this judgment. Such submissions shall not exceed five pages together with a Bill of Costs. The defendants will then have a further period of 10 days to respond with submissions not exceeding five pages.

MULLIGAN J.

Released: December 12, 2018