COURT FILE NO.: FS-23-00000037-0000

DATE: 2024 05 31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Rionne Martelly Applicant

– and –

Odetta Belgrave Respondent

Rick Toor, for the Applicant

No one appearing for the Respondent

HEARD: January 26, March 8, and April 23, 2024

REASONS FOR DECISION

Coats J.

Nature of Application

[1] The matter proceeded before me as an uncontested trial. The Applicant commenced an Application on April 21, 2023. In the Application he claimed the following relief:

1. An Order for the Applicant, Rionne Denroy Martelly, to have interim and final exclusive possession of the home municipally known as 634 Thompson Road South, Milton, ON and its contents.

2. An Order that the Applicant, Rionne Denroy Martelly, shall be entitled to retain possession of the property municipally known as 634 Thompson Road South, Milton, ON forthwith.

3. An Order that the Respondent, Odetta Belgrave, shall vacate the property municipally known as 634 Thompson Road South, Milton, ON forthwith;

4. An Order that the Applicant, Rionne Denroy Martelly, shall be entitled to retain the property municipally known as 634 Thompson Road South, Milton, ON free from any claim by the Respondent, Odetta Belgrave, and that the said Applicant shall be free to deal with or dispose of the said property as they deem fit.

5. An Order for an accounting of all property in which the Respondent, Odetta Belgrave, held an interest at the date of cohabitation and at the date of separation, whether in her sole name, joint names with another person, or registered in the name of another but being held in trust for the said Respondent pursuant to sections 7 and 9 of the Family Law Act and section 122 of the Courts of Justice Act.

6. An Order restraining the Respondent, Odetta Belgrave, from transferring, assigning, pledging, disposing of, depleting or otherwise dealing with her assets pending a final determination of the issues in the withing proceeding, pursuant to sections 12 and 40 of the Family Law Act.

7. An Order restraining the Respondent, Odetta Belgrave, from transferring, disposing of or in any way dealing with any lines of credit, bank accounts or any monies on deposit for her or under her control or the control of any company in which she has an interest without the consent of the Applicant, Rionne Denroy Martelly, and that she preserve all such lines of credit, bank accounts and monies on deposit until further order of this Court.

8. An Order that any claims by the Respondent, Odetta Belgrave, related to, inter alia, division of property; monetary or proprietary remedies for unjust enrichment including claims where there is a joint family venture, claims in trust, including any claims to a constructive or resulting trust; and an equalization payment shall be dismissed.

9. An Order for pre-judgment and post-judgment interest pursuant to sections 128 and 129 of the Courts of Justice Act.

10. An Order for costs on a full recovery basis, plus disbursements and applicable H.S.T.

11. Such further and other relief as counsel may request and the Honourable Court deems just.

[2] The Application was personally served on May 15, 2023. The Respondent has not filed an Answer and has not responded to the proceeding.

Previous Endorsements

[3] The matter first came before Chown J. His endorsement of July 26, 2023 provides:

1. The applicant Rionne Martelly arranged for the respondent Odetta Belgrave to be served with the application. The respondent has not filed an answer as required by the court rules. The applicant now wants to proceed with an uncontested trial.

2. My experience has been that if there is an uncontested trial without additional notice to the respondent, that will likely result in a motion to set aside the judgment, further expense to both parties, and unnecessary use of scare court resources.

3. Applicant’s counsel shall send a copy of this endorsement to the respondent by email and regular mail. I am ordering this because I want the respondent to understand that if the respondent does not take any steps to address this matter, it will likely proceed without any input from the respondent. If that happens, it is very likely that the court will make an order that that has significant legal and financial impact on the respondent. For instance, the applicant is seeking, among other things, an order that the respondent shall vacate the residence on 634 Thompson Road South, Milton, where I understand the respondent lives.

4. The respondent would be well advised to seek assistance from a lawyer, to contact the applicant’s lawyer to see if this matter can be resolved, and/or to otherwise respond to this matter.

5. I am going to hold things up for the applicant by 60 days so that the respondent will have an opportunity, after reading this endorsement, to bring a motion for an order extending the time to file an answer (or to file an answer with the consent of the applicant). After 60 days, the applicant may proceed with an uncontested trial in writing by filing a form 23C affidavit for uncontested trial. However, the materials for the uncontested trial, including the from 23C affidavit, shall be served on the respondent.

6. The applicant seeks costs for this motion in the amount of $635.63. This is fully justified by the evidence.

DISPOSITION

7. This court orders:

8. Applicant’s counsel shall send a copy of this endorsement to the respondent by email and regular mail.

9. After 60 days from today’s date, the applicant may proceed with an uncontested trial in writing by filing a form 23C affidavit for uncontested trial.

10. The materials for the uncontested trial, including the form 23C affidavit, shall be served on the respondent.

11. The respondent shall, within 30 days, pay the applicant $635.63 for the costs of this motion.

[Emphasis in original]

[4] The matter next came before Chang J. His endorsement of December 1, 2023 provides:

1. The applicant brings a motion for leave to proceed with the application on an uncontested basis and for substantive (including final) orders against the respondent.

2. Given the respondent’s clear and continuing failure to participate in the court process, the applicant is granted leave to proceed to an uncontested trial on a date to be scheduled through the Trial Co-ordinator’s Office. In accordance with the July 26, 2023 endorsement of Chown J., the applicant shall serve all materials for the uncontested trial on the respondent.

3. The balance of the relief sought is completely improper for a 14B motion and the motion for that relief is dismissed.

4. There shall be no costs for this motion.

[5] The matter then came before me on January 26, 2024. My endorsement of that date provides:

Uncontested Trial

Applicant’s counsel must upload to CaseLines the Affidavit of Service of the application and the Affidavit of Service of the uncontested trial materials.

I require a factum regarding the Court’s jurisdiction to make the orders requested. Matter adjourned to March 8, 2024 at 10 a.m. for 1 hour before me virtually. Applicant to file a factum and confirmation by March 1, 2024 if intending to proceed or simply a confirmation if not intending to proceed with the application.

[6] The Affidavit for Uncontested Trial and draft Uncontested Order were served by email on the Respondent on March 4, 2024.

[7] Neither the Applicant nor his counsel have heard from the Respondent or counsel on her behalf in response to this Application.

Uncontroverted Facts

[8] The Parties started living together in April of 2013 and separated in October of 2015. They had no children together.

[9] The Applicant purchased a property at 634 Thompson Road South, Milton, Ontario (the “Property”) in 2009. The Respondent moved into the property in 2013.

[10] In or around October of 2015, the Applicant was charged with a crime, unrelated to the Respondent. He was forced to leave the Property. The Respondent has continued to live in the Property since.

[11] The Property was purchased by the Applicant using his own funds. The Respondent did not contribute to the purchase or maintenance of the Property. The Property is owned by the Applicant.

[12] The Applicant paid all carrying costs of the home – mortgage, property taxes, and for all repairs.

[13] From 2017 to July 2020, the Respondent provided to the Applicant $1,900 per month towards the carrying costs. From August 2020 to date the Respondent has provided to the Applicant $1,200 per month.

[14] The Applicant wishes to return to the Property and reside in his home.

[15] The Applicant has asked the Respondent to leave his home, but she has refused.

Issue

[16] The Applicant is seeking an Order that the Respondent vacate the Property and that a writ of possession shall issue. The Applicant is suggesting that the Respondent be given 90 days to vacate the Property. The remainder of the Applicant’s claims as set out in the Application were made in anticipation of the Respondent defending the Application, which she did not and therefore these claims were not argued.

The Law

[17] Section 24 of the Family Law Act does not apply to unmarried spouses. Therefore, an order pursuant to section 24 of the Family Law Act is not an available remedy to the Applicant.

[18] In Anness v. Kovacs, 2012 ONSC 7298, the Court relied on s. 96(1) of the Courts of Justice Act to grant a party recovery of his solely owned residence. Paragraphs 13-26 of Anness provide as follows:

[13] Mr. Arnone has requested that I order a writ of possession. He relies upon Rule 60.03 of the Rules of Civil Procedure and Section 104 of the Courts of Justice Act. He submits that the property is solely in the name of the Applicant. He notes that the evidence is that the Applicant paid the entire purchase price. He relies upon the evidence that until February 12, 2012 the Applicant continued to pay monies to the Respondent which up to that date she deposited into a joint account from which to pay the mortgage and utility payments. The Applicant’s evidence is that he had been making all of the mortgage payments since March of this year.

[14] In my opinion, s. 104 of the Courts of Justice Act does not give me the proper jurisdiction to order Ms. Kovacs to vacate the resident [sic]. That provision applies to personal property, whereas the order sought in his case relates to real property. Instead, I intend to rely on s. 96(1) of the Courts of Justice Act, which gives authority to the court to administer the rules of equity and the common law.

[15] In subsequent submissions in response to my request, Mr. Arnone argued that relief could also be granted on the basis of the tort of Trespass. He cites the decision of Hoilett J. in Calandra v. Parasco, 1998 CarswellOnt 4406, paragraph 13:

“The tort of trespass to land is committed by entry upon, remaining upon or placing or projecting any object upon land in the possession of the plaintiff without lawful justification. To be actionable, the defendant’s act must be voluntary, but it need not be intentional. Trespass may be committed either intentionally or negligently. The interference with the plaintiff’s property must be direct, not indirect or consequential.”

[16] He submits that this case is similar to the fact situation in Lewis v. Oriji, [2009] O.J. No.281, where Justice Blishen in a motion heard an argument for the use of Trespass as the foundation for the removal of a non-owner common law spouse. Justice Blishen declined to order removal on the basis that (a) the Respondent (non-owner) party had lead evidence that supported a claim for constructive trust ownership of the property, and (b) that on the basis of that evidence, which led to credibility concerns, and the interim stage of that proceeding, the court was not in a position to order the non-owner spouse removed. Mr. Arnone submits that Justice Blishen did find appropriate jurisdiction to make the order for removal based on Trespass, and only declined to do so on the basis of the conflicting evidence and the stage of the proceeding. He submits that in this case, there is no conflicting evidence, and the court has heard oral testimony from Mr. Anness as to the terms of the purchase and maintenance of the home. Justice Kershman heard a motion in the same case in July, 2009, and did order the removal of the non-owner spouse on an interim basis, and a Writ of Possession was issued: [2009] O.J. No. 5719.

[17] Mr. Arnone submits that the use of the tort of Trespass does not depend on the stage of the proceeding (whether interim or final). The definition of Trespass includes “remaining upon…land in the possession of the plaintiff without lawful jurisdiction”. He submits that the evidence clearly makes out the tort of Trespass in this case, and that this forms a jurisdictional ability to order Ms. Kovacs’ removal from the home.

[18] Mr. Arnone further relies on Guenette v. Brisebois, 2004 CaswellOnt 4132, where a common law spouse was removed from a home as the non-owner. This was on an interim basis, but it is Mr. Arnone’s submission that nothing in these reasons limits this court to ordering possession only on an interim basis.

[19] It is finally submitted that Ms. Kovacs has no possessory right to remain in the home, and must not be allowed to benefit from her (a) being an unlawful resident in the home and, (b) her refusal to engage in this proceeding.

[20] With respect to the claim for the reimbursement of expenses, Mr. Arnone relies on Hollaway v. Devenish, [2009] O.J. 5008 to claim occupation rent from the Respondent from the time she ceased making the mortgage payments as agreed upon by the parties. He argues that the Respondent initially agreed to vacate the residence in the summer of 2011, and that, despite repeated requests, she had failed to vacate and continues to reside there now.

[21] He further submits that the Applicant is entitled to be reimbursed for any utility expenses which may be outstanding and/or expenses which he incurs for damages as may be discovered in the ninety days following after the point and time when he gains possession of the property.

[22] With respect to costs Mr. Arnone has presented a bill of costs seeking total fees and disbursements in the amount of $3,661.70. With respect to the issue of costs he presented a letter from himself to the Respondent in April 2012 which, although not a formal offer, he asks me to consider in as much as it would have left the Respondent in a much better position than she would be if I am now to order possession to the Applicant.

[23] I find it difficult to make an order of the nature request without having heard from the Respondent. However, the Family Law Rules have not been complied with by her. Accordingly, I must deal with the issues before me considering that she has not responded to any of the claims made by the Applicant particularly those with respect to the possession of the residence.

[24] I acknowledge that trespass was not specifically pleaded in this Application. However, the relief claimed for possession of the Applicant’s own home is clearly sought. In addition, the Application does seek further and other relief, and in equitable terms, has clearly established the grounds for trespass to be present.

[25] I am satisfied on the basis of the evidence that the Applicant is entitled to possession of his solely owned resident. The original request at the hearing was essentially for an order which would have given very short notice for the Respondent to vacate. Mr. Arnone, in response to a question from me, argued that the Respondent has done nothing to show any efforts to vacate since failing to adhere to her agreement to vacate in the summer of 2011.

[26] Mr. Anness’ evidence is that when he left the residence in December 2010 he agreed that Ms. Kovacs could remain in the residence for some time as he considered it to be in the best interest of Layla not to have to move in December. Relying on the same reasoning, I cannot now make an order for possession within such a short period of time as I consider would negatively impact on Layla’s best interest.

[19] In Anness the relief granted as it relates to the property is set out at para. 28 subparagraphs 7 and 8 was as follows:

7. Leave is hereby granted pursuant to Rules 60.03 and 60.10 of the Rules of Civil Procedure for the issuance of a writ of possession of 625 Catherine Street in favour of the Applicant, Leonard Anness, effective February 28, 2013. The Enforcement Office is hereby directed to enforce possession in favour of the Applicant.

8. When the Respondent vacates 625 Catherine Street, she shall be allowed to take her personal effects only from the home, subject to further agreement of the parties.

[20] In Gonzalez v. Trobradovic, 2014 ONSC 2468, the Applicant was granted a writ of possession for her property. The parties were unmarried spouses, with one child. The Applicant had been arrested. When she was released on bail, the Respondent would not vacate the property which the Applicant had owned prior to the relationship. Price J.’s basis for granting the writ of possession is set out at paras. 36-45:

[36] Mr. Trobradovic has no legal interest in the Milton Avenue home, as title to the property is registered solely in Ms. Gonzalez’ name. Mr. Trobradovic cannot acquire an interest in the property through the operation of Part II of the Family Law Act, as he is not Ms. Gonzalez’ “spouse” for the purposes of Part II of the Act.

[37] The court, in the exercise of its discretion, sometimes declines to order the departure of a common law spouse who asserts a constructive trust interest in a property. In Morningstar v. Holley, Henderson J. stated:

Therefore, on a cursory view of the situation, it would appear that the respondent has no legal right to an interest in the property, and therefore, has no right to possession of the property. Prima facie, the applicant should be entitled to evict the respondent at will.

However, in this action, the respondent is making a claim that, if successful, could result in a court granting an interest in the property to the respondent. Specifically, the respondent requests relief by way of a declaration of a constructive trust. That is, the respondent requests a declaration that the applicant is holding legal title to the property as a trustee, in part for the benefit of the respondent.

[38] Henderson J. found that the common law wife’s claim to a constructive trust interest in the property where she resided was not a frivolous one, in that she had deposed that she contributed money and labour toward its maintenance throughout the 20 years in which the parties cohabited. He concluded that if this evidence was accepted at trial, the trial Judge might find that the common law husband had been unjustly enriched, and consequently, might make a declaration of a constructive trust.

[39] Henderson J. rejected the common law husband’s argument that his common law spouse, even if successful, would not acquire an interest in the property, but would only be entitled to a share of the equity in the property, and would be fully protected if the property were sold and the proceeds of the sale were held in trust for the purpose of satisfying any judgment in the respondent’s favour. He held that it would be open to the trial judge to grant the common law wife an actual interest in the property. He stated:

I do not agree with the applicant’s position on that point. If a trial Judge finds that there has been unjust enrichment of the applicant, it is open to the trial Judge to choose an appropriate remedy. The trial Judge may simply choose to order that the applicant pay a sum of money to the respondent, or the trial Judge may grant an interest in the property to the respondent in the form of a constructive trust. See the case of Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980, at para. 21.

[40] In Peter v. Beblow, the Supreme Court restored the judgment of the trial judge who had awarded the common law wife the property which she had expended her labour to improve, as restitution for her contribution over the course of the parties’ 12 year relationship. The court based its decision on its finding that monetary damages would not be sufficient to compensate the common law wife, and that there was a sufficient link between the property and her contribution.

[41] Mr. Trobradovic has failed to substantiate his assertion that, over the course of his fourteen month cohabitation with Ms. Gonzalez, he made a substantial contribution to the acquisition or maintenance of the Milton Avenue home. He nevertheless asserts that the parties treated the home as a jointly owned asset which it was their mutual intention to share equally. He states:

Both Patricia and I treated the home as a jointly owned asset and it was our mutual intention to share equally in the home. Patricia retained and attended at counsel to have a contract prepared reflecting the parties’ intention to share the properties equally. We separated before the draft agreement was executed. Attached hereto and marked as Exhibit “E” are true copies of the two agreements drafted by counsel in relation to the two properties. These agreements were prepared by Patricia’s counsel, Chris Martin, based on her instructions.

[42] Mr. Trobradovic’s assertion must be scrutinized in light of Mr. Martin’s own evidence on this issue. Mr. Martin states, in an affidavit sworn March 27, 2014:

The properties located at 478 King Street West, Suite 1101, Toronto and 1343 Milton Avenue, Mississauga are registered in Patricia Gonzalez’s name alone.

Edin Trobradovic provided me the information contained in the agreements referred to in Exhibit “E” of his affidavit and instructed me to draft agreements for the above mentioned properties on or about February 19, 2014. Edin advised me that Patricia was on vacation in Argentina and did not advise me that they were separated.

Patricia Gonzalez did not instruct or provide me with the information contained in the agreements. The last time I had contact with Patricia was on or about July 2013 regarding a travel letter of consent and a real estate transaction…I was only informed by Patricia on March 26, 2014 that she had separated from a common law relationship with Edin on February 9, 2014. Edin provided me with the information for the agreement after February 9, 2014.

[43] On February 19, 2014, when Mr. Trobradovic instructed Mr. Martin to prepare the draft agreement on which he relies, he must have known that, contrary to what he told Mr. Martin, Ms. Gonzalez was not, in fact, on vacation in Argentina, because he was with her in court the previous day. The Order of Emery J. dated February 18, 2014, recites the fact that both parties and their respective counsel were in court that day, and signed the interim minutes of settlement on which the order was based.

[44] Mr. Trobradovic states that he made significant financial contributions towards the purchase of the Milton Avenue home, and to its renovation and landscaping, but he has not offered any evidence of such financial contributions. While it is not disputed that Mr. Trobradovic has paid $3,000.00 per month toward the mortgage, realty taxes, and home insurance of the home since February 9, 2014, these payments must be regarded, in large part, as the cost of his occupancy of the property, having regard to the fact that he has been in exclusive possession of it since Ms. Gonzalez’ arrest. To the extent that his payments may have exceeded the fair market value of his occupancy, he may claim a credit against the net proceeds of sale. The amount of such contributions would in no way justify granting him title to the property as was done in Peter v. Beblow.

[45] I find, based on the material before me, that Mr. Trobradovic’s claim for a constructive trust interest in the Milton Avenue home does not have sufficient merit to prevent Ms. Gonzalez being restored to her possession of the home. Ms. Gonzalez will therefore be granted a writ of possession, effective May 31, 2013. Mr. Trobradovic shall be required to vacate the property within that period and Ms. Gonzalez shall have exclusive possession of the property effective June 1, 2014, subject to her obtaining the necessary amendment of her bail condition.

[Emphasis in original; footnotes omitted]

[21] Without a meritorious trust claim (para. 45), Price J. found no lawful basis for the Respondent remaining in the home, following the Applicant’s delivery of a notice pursuant to the Trespass to Property Act. Paragraph 6 of Gonzalez states:

[6] I have further concluded that as there is no lawful basis for Mr. Trobradovic remaining in the home, following Ms. Gonzalez’ delivery of a notice pursuant to the Trespass to Property Act, and that Ms. Gonzalez should be restored to possession of it. As Lara is accustomed to the house as her home, and requires continuity and stability during her parents’ transition to separate households, the status quo that prevailed before her parents’ separation should be restored, with the result that Lara will reside primarily with Ms. Gonzalez, subject to liberal access by Mr. Trobradovic.

[Footnote omitted]

[22] The relief granted in Gonzalez as it relates to the property is at para. 91, subparagraphs 1 and 2:

1. A writ of possession shall issue, to take effect May 31, 2014. Mr. Trobradovic shall vacate the premises within that period, and Ms. Gonzalez shall have exclusive possession of the property at 1343 Milton Avenue in Mississauga, Ontario, commencing June 1, 2014, subject to her obtaining the necessary amendment of her bail condition.

2. Mr. Trobradovic’s obligation to contribute to the payment of expenses in relation to the Milton Avenue home shall cease, effective May 31, 2014.

[23] In Morrison v. Barbosa, [2017] O.J. 7271 (Ont. S.C.), Moore J. discussed the availability of a remedy if a tort of trespass had been committed. While Moore J. did not ultimately order any remedy for trespass, the discussion at paras. 24-26 is helpful:

24. I agree with Kiteley J. that there may be cases in which an unmarried, untitled party may be found to have committed the tort of trespass by over-holding in occupation of a property after parties separate and the former partner, the owner of the property, demands vacant possession. Kiteley J. adopted this definition of the tort of trespass is committed by entry upon, remaining upon or placing or projecting any object upon land in the possession of the plaintiff without lawful justification.

25. Ranya asserts that she has at all times occupied the property with lawful justification to do so as she was invited into the home by Chris, she cohabitated with him for several years, she remained in a relationship with him for several more years and she laboured in and contributed financially to their joint family venture relating to the property. She also still cares for the parties’ dog on the property.

26. Upon the record before me, Chris has not made out his assertion that Ranya has committed the tort of trespass; he may do so at trial but not on the basis of the record before me.

[Footnotes omitted]

[24] In Anthony v. Oqunbiyi, 2023 ONSC 861, Shaw J. declined to grant an order that the respondent vacate the property, on the basis of a potential or pending trust claim. The analysis is set out at paras. 20-29:

[20] With that overview, I will turn to the next issue. The applicant seeks an order that the respondent vacate the property as it is registered in his name alone and it is not a matrimonial home. He relies on Anness v. Kovacs, 2012 ONSC 7298 in which the court ordered the non-owner common law spouse to vacate the property. In that decision, the non-owner spouse did not respond to the application and there was no evidence from her.

[21] In Lewis v. Oriji, 2009 CarswellOnt 297, the non-owner common law spouse was living in the property and did not pay any of the expenses. The owner spouse sought an order that the non-owner spouse vacate and relied on the tort of trespass. Justice Blishen did not grant the relief finding that there was “lawful justification” for the non-owner spouse to continue to live in the property on an interim basis.

[22] In a recent decision of Abdulazia v. El Zahabi, 2022 ONSC 2591, Justice MacKinnon reviewed a number of decisions where an owner common-law spouse sought an order that the non-owner spouse vacate the property. A number of those actions included constructive trust claims based on the contributions made by the non-owner spouse to the property. At para. 19, MacKinnon J. noted that it was only in Anness, the case relied on by the applicant, that the unmarried non-owner was ordered to vacate the property. In other cases, the non-owner was not ordered to leave on the basis that meritorious claims from which the right to possession might flow should be adjudicated at trial before eviction is ordered. MacKinnon J. noted that the facts in Anness were distinguishable as there was no claim for a trust ownership interest.

[23] In Abdulazia, the court found that the non-owner spouse failed to present meritorious claims based on unjust enrichment and resulting trust. Nonetheless, the non-owner spouse was not order to vacate finding that the balance of convenience favoured her and the children remaining in the home pending its sale.

[24] In this case, there is conflicting evidence with respect to the financial contributions made by each party to the property. The respondent alleges that she has been paying $580.98 every month for the mortgage on the property since October 2010. There are bank statements attached to her affidavit that show transfers to the applicant and copies of cheques payable to him. She has therefore provided some evidence in support of her claim.

[25] Conversely, the applicant’s position is that the respondent has made no or negligible contributions to the property.

[26] The respondent did not upload her answer to CaseLines. It is my understanding, however, that she did not advance a constructive trust claim but rather a claim for equalization of net family property on the basis that she believed she was married to the applicant. Based on my ruling that she is not a married spouse, she will have to seek leave to amend her pleadings as I presume that she will now seek an interest in the property by way of a constructive claim. The determination of that issue will also be impacted by a finding, at trial, of the date the parties separated.

[27] At this stage, I cannot say that the respondent’s claim is unmeritorious, particularly as she has not yet advanced a claim for an interest in the property based on the principle of constructive trust. I am therefore not prepared to order the respondent to vacate the property on an interim basis as her claim for an interest in the property should be adjudicated at trial.

[28] The respondent must seek leave to amend her pleading by March 1, 2023. Should she fail to seek leave by that date, she must vacate the property by September 1, 2023.

[29] I also decline to order the respondent to vacate the property on the basis of trespass. Based on the evidentiary record before me, there is lawful justification for the respondent to remain in the property. In reaching that decision, I have also considered that the respondent has been living in the property since 2017, if I accept the applicant’s evidence, or since 2010, if I accept the respondent’s evidence. In my view, there has been some acquiescence to the respondent’s presence which seems at odds with a claim she is trespassing, particularly if she has been contributing to some degree to the carrying costs of the property.

Analysis

[25] On the basis of section 96(1) of the Courts of Justice Act and the tort of trespass, a writ of possession shall issue. The Applicant is the owner of the Property. He wishes to return to his Property.

[26] This case is very similar to facts in Anness. Ms. Belgrave has not responded to the action. She has not made any claims in regard to the Property. The parties cohabited for a very short period. She has not defended the Applicant’s claims to a writ of possession and for her to vacate the Property. The Respondent cannot acquire an interest in the Property under the Family Law Act as the parties were never married.

[27] Similar to what is described at para. 24 of Anness, trespass was not specifically plead in this Application. The Applicant did clearly claim possession of the Property and that the Respondent vacate same. She was clearly on notice. The elements of trespass have been established. The Respondent remains on the Property without lawful justification.

[28] As in Gonzalez at para. 44, the Respondent here has contributed to the carrying costs of the Property. She has occupied the Property and been in exclusive possession of it. These contributions do not amount to evidence of the Respondent having an interest in the Property. She has not defended the action or claimed any interest in the Property.

Conclusion/Costs

[29] In conclusion, I grant the following order:

1. A Writ of Possession shall issue regarding the property at 634 Thompson Road South, Milton, Ontario in favour of the Applicant, as against the Respondent, to take effect August 29, 2024. The Respondent shall vacate the Property on or before this date.

2. The Applicant shall have exclusive possession of the Property commencing August 30, 2024.

3. The Respondent’s contributions to the carrying costs of the Property shall cease effective August 29, 2024.

4. When the Respondent vacates the Property she shall be allowed to take only her personal effects.

5. A copy of the order issued and entered pursuant to these Reasons shall forthwith be served upon the Respondent, together with a copy of these Reasons.

6. If the Applicant is claiming costs, he shall submit brief written submissions as to costs (2 pages, double spaced), together with a bill of costs, within 15 days of today.

Coats J.

Released: May 31, 2024