Court File and Parties

COURT FILE NO.: CV-21-312 DATE: 2021-03-10 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Angela Brain – Applicant AND: Rebecca Brain and Kahn Phady - Respondents

COUNSEL: Timothy J. McGurrin, Counsel for the Applicant Benjamin E. Jefferies - Counsel for the Respondents

BEFORE: The Honourable Mr. Justice James W. Sloan

HEARD: March 10, 2021

Endorsement

[1] The main facts of this case are not in dispute.

[2] For approximately the last four years the parties have been residing in a residential house. It was initially owned by the now deceased husband of the applicant who was also the father of the female respondent.

[3] Essentially the unwritten rules of the house, are that the respondents and their two children aged 4 and 6 essentially have exclusive use of the upstairs and the applicant has exclusive use of one bedroom. The remainder of the house is used by everyone.

[4] When the respondents moved in on approximately May 14, 2017, the idea was that they would assist with caring for the applicant’s husband and also with maintenance of the property. In addition, they would pay $500 a month in rent.

[5] Unfortunately, the applicant’s husband passed away approximately one week after the respondents moved into the house.

[6] The respondents allege that all parties agreed on an occupancy agreement in October 2016 when the applicant’s husband was alive.

[7] The agreement, drafted by the female respondent who has some legal training, was never signed by the applicant’s husband. In addition, the applicant’s husband made a new Will in January 2017 in which he bequeathed the subject property to the applicant.

[8] It appears that at one point in time the applicant’s husband owned three different dwellings and the respondents allege that they were occupying one of the dwellings on a rent to own basis. They further allege that they gave up their rent to own agreement with the applicant’s husband, when they moved into the subject property.

[9] In the pleadings, the respondents allege they did this based on a promise/understanding that they would have the right to occupy the subject property until the death of the applicant and her deceased husband.

[10] No matter which party is believed, it is apparent that the relationship between the parties has substantially broken down. In fact, the children of the applicant’s deceased husband, including Rebecca Brain commenced a lawsuit against the applicant on or about October 28, 2020, claiming in general that the applicant holds the subject property in trust for them.

[11] As one would expect, this action did not help the relationship.

[12] The applicant who is 77 years of age alleges that she is now afraid to live in her own home because of the treatment she receives at the hands of the female respondent, including yelling and pushing. She is currently living with friends.

[13] All parties agree that the Residential Tenancies Act, 2006, S.O. 2006, c. 17 does not apply to the facts of this case and that if any tenancy legislation applies it would be the Commercial Tenancies Act, R.S.O. 1990, c. L.7.

The Applicant’s Position

[14] The respondents are living in the home under a familial arrangement and must leave the home whenever the occupancy is terminated by the applicant. The courts have ruled that familial arrangements do not amount to a tenancy at law and that family arrangements negate any intention to create a tenancy.

[15] She relies in part on the 2009 case of McKinnon v. McKinnon, 2010 ONCA 170 where the court stated at paragraphs 35 and 56:

35 In my view, Hubert’s position is correct, both for the reason he offers and for the more basic reason that a finding of tenancy necessarily entails a right to exclusive position. Dixon J. put the matters succinctly in Ocean Harvesters at pp. 686-87:

While exclusive possession may not always give rise to a tenancy … I think it beyond question that a tenancy cannot be created in the absence of exclusive possession. Exclusive possession by the tenant is essential to the demise and the statute … will not operate the bar the owner unless the owner is out of possession.

56 A special category of cases of which I speak has been identified in a number of English authorities …

In all cases where an occupier has been held to be a licensee there had been something in the circumstances, such as a family arrangement, an act of friendship or generosity, or such like to negative any intention to create a tenancy.

[16] She also relies on the case of Divitcos v. ComCorp Life Insurance Co. 1997 CarswellOnt 547 at para. 71 which states:

71 By contrast, what we have in this case is a family home where the owner parents have living with them two adult children who have agreed to make some sort of contribution to the expenses of the household and who, by family arrangement and mutual convenience, use or occupy designated parts of the house, but in an arrangement considerably more flexible and informal than the one sought to be portrayed.

[17] In this case: (a) it was never the applicant’s intention to create a tenancy and always her intention that she could have exclusive possession if she wished; (b) the arrangement for the respondents to move into the home was discussed at a family meeting when the applicant’s husband was present; (c) the plan was for the respondents to support the applicant’s husband who was a paraplegic and required significant care, and also for them to assist with caretaking of the property; (d) the alleged cohabitation agreement reads more like a discussion from a family meeting than a lease and it does not contain any of the essential terms needed to create a legal tenancy; and (e) the respondent’s permission to occupy the home was revoked by a notice to quit on two occasions being February 9 and February 25, 2021.

[18] In the alternative, the applicant argues that if it is not a familial arrangement and/or revocable license, at best it would be a tenancy for a term of less than three years from the date the respondents moved in in April 2017. This is because the Statute of Frauds, R.S.O. 1990, c. S.19 requires that any lease must be in writing if the term is longer than three years.

[19] This would therefore be a case where the respondent’s occupation is either a month-to-month tenancy or tenancy at will and the tenancy has been terminated.

The Respondents’ Position

[20] The agreement between the parties was reduced to writing, however, was not signed by the deceased before he died in May 2017.

[21] Notwithstanding the agreement was never signed, its existence is evidenced by part performance because the deceased paid the sum of $20,000 to the respondents on May 5, 2017. (However, the agreement states that the $20,000 is to compensate the respondents for money they actually expended on Kirkcroft while they resided there.)

[22] The respondents submit that in consideration of their various undertakings to the applicant and her deceased husband, they would have the right to occupy the property until the death of the applicant and the deceased.

[23] The respondents allege that in the summer of 2020, the applicant began a new romantic relationship and hinted that she may sell the property. In response, Rebecca and her siblings started the court action described above. This court action was served on January 18, 2021.

[24] It was shortly after January 18, 2021 that the applicant, through her counsel, demanded the respondents vacate the property.

[25] From a legal point of view the respondents submit they have a valid and subsisting tenancy under the Commercial Tenancies Act, R.S.O. 1990, c. L.7.

Findings

[26] On the facts of this case I have no difficulty finding that the arrangement between the parties was what has been referred to as a familial arrangement and not a tenancy.

[27] Therefore, the respondents’ occupancy of the applicant’s home shall be terminated Sunday, April 11, 2021 at 12:00 noon.

[28] If the property is not vacated by April 11, 2021 at 12:00 noon, the Hamilton Police Service or other proper authority shall remove the respondents from the subject property.

[29] The respondents shall only remove from the subject property chattels that legally belong to them.

[30] Although it may not be necessary, the applicant shall have exclusive possession of the subject property and a writ of possession shall be issued if necessary and enforced by the Sheriff of the City of Hamilton.

[31] The respondents, of course, have the right to continue with their lawsuit concerning the equity in the property or any other damages that they feel they have suffered by moving into the applicant’s home. They have registered a certificate of pending litigation, so that whatever rights they may have are protected until that lawsuit is dealt with.

[32] If the parties are unable to agree on costs, Mr. McGurrin shall forward his brief submissions on costs to me by March 16, 2021. Mr. Jefferies shall forward his brief response to me by March 23, 2021. Mr. McGurrin shall then forward his reply, if any, to me by March 26, 2021. Cost submissions may be sent to my attention by email, care of Kitchener.SCJJA@ontario.ca. Cost submissions, excluding bills of costs, shall be limited to 5 pages using spacing of 1.5 and 12 pitch font.

James W. Sloan Released: March 10, 2021