Superior Court of Justice - Ontario
COURT FILE NO.: CV-24-00723153-00ES
DATE: 2024-11-15
RE: IONIE AGATHA OFFICER, Applicant
AND:
THE ESTATE OF CHARLES HERBERT OFFICER; SELAH OFFICER, a minor, by his Litigation Guardian, THE CHILDREN’S LAWYER; ALICE SNADEN; JACOB YANOWSKI; CANESUGAR FILMWORKS INC.; CANESUGAR MEDIAWORKS LTD.; MARTIN HOUSER; HARRIS SCHAEFFER LLP; A. ROSEN; and ROSEN SACK LLP, Respondents
BEFORE: M. D. Faieta J.
COUNSEL: Miguna Miguna, for the Applicant Matthew Urback, for the Respondent Alice Snaden
HEARD: October 30, 2024
ENDORSEMENT
faieta J.
[1] On December 1, 2023, Charles Herbert Officer (“the deceased”) died at the age of 48 without a will. The deceased was survived by his three-year-old son who is the sole beneficiary of his estate. The respondent, Alice Snaden (“the respondent”) is the child’s mother. The applicant, Ionie Agatha Officer (“the applicant”) is the deceased’s 85-year-old mother.
[2] The respondent brings this motion for: (a) an order that the applicant, and any other person, deliver vacant possession of the property in Toronto which I will refer to as the “Condo”; (b) an order that a writ of possession be issued to the respondent; (c) an order that the applicant leave all personal property belonging to respondent when she provides vacant possession; and (d) an order that the applicant pay to the respondent an amount to be determined attributable to occupation rent owed by the applicant for her occupation of the Condo.
[3] The respondent submits that the applicant has no right of occupancy in the Condo, whereas the applicant submits that she had a verbal agreement with the deceased that would permit her to live, rent-free, in the Condo for the rest of her life.
BACKGROUND
[4] The respondent and the deceased commenced a romantic relationship in May 2017.
[5] At the time of his death, the deceased and the respondent owned two properties. In May 2015, the deceased purchased the Condo with the proceeds of sale of a home that he owned prior to this purchase. The respondent states that she and the deceased lived in the Condo from 2018 until 2021. Their son was born in May 2021.
[6] In 2021, the deceased and the respondent jointly purchased another property in Toronto which I will refer to as the “House”. The deceased provided most of the down payment for the House and the balance of the purchase was financed by a mortgage that used both the deceased’s and the respondent’s credit.
[7] In November 2021, the deceased transferred the Condo into his name and the respondent’s name so that he would be able to refinance and could qualify for a new mortgage.
[8] In December 2021, the applicant moved into the Condo. She states that the deceased told her that she could live in the Condo for the rest of her life rent-free. The applicant states that the deceased told her that she had to pay for hydro. The applicant estimates that she spends about $200 per month on hydro, cable TV, and telephone costs.
[9] The respondent states that the deceased asked for her permission before the applicant moved into the Condo. The respondent did not object to the applicant residing in the Condo but she did not agree that the applicant could live there, rent free, for the rest of her life. The respondent states that it was unclear what the deceased expected financially from his mother. The respondent states that she recalls having a conversation in February 2022 or March 2022 with the deceased about asking the applicant to pay rent because of the financial strain that the deceased was feeling.
[10] The deceased and the respondent separated in about September 2022 after a relationship of about five years. The applicant denies that the deceased and the respondent resided together or that they were common law spouses. The deceased and the respondent did not enter into an agreement related to child or spousal support before the deceased died. The respondent does not intend to make a claim as a dependant under the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”) against the deceased’s estate as any amount that she collects would correspondingly decrease her son’s inheritance from the deceased’s estate.
[11] On the day that the deceased died, the mortgage on the House was renewed at $9,700 per month. The respondent could not afford to carry this mortgage. On January 30, 2024, the respondent sold the House. The respondent received net proceeds of sale of $108,151.93.
[12] Upon the deceased’s death, the respondent became the sole owner of the Condo by right of survivorship. The Condo is encumbered by a mortgage in the amount of $429,629.63. The respondent cannot afford the monthly mortgage payment of $2,635.28 nor the monthly maintenance fee of $599.26. The respondent also pays the utilities and other carrying costs. The applicant pays her own electricity bill.
[13] The respondent states that prior to the deceased’s death, the applicant told the respondent that “she does not want to be a burden and she can go live with her sister-in-law in Brampton, her cousins in Atlanta, or her friend in Toronto who rents a room and has already offered to have her stay. She also has three adult daughters, all of whom she could conceivably call upon”.
[14] On March 18, 2024, the respondent offered to meet with the applicant to work out a resolution. The letter states:
Dear Ms. Officer, While I never imagined nor wanted to ever have to write this letter, the time has come where we need to discuss the process of selling the condo. I am able to continue financially supporting you until July, at which point we will need to have a plan for where you are going to live next. I am writing to you today, directly, with the hope that we can sit down together and speak about our vision for the future. It has been expressed to me through various sources that you wish to meet with myself and a lawyer. I would be happy to accommodate that request however there isn’t a lawyer working with me on matters to do with the property. While the lawyer Matthew Urback did send you a letter early this year, that was regarding Charles’s estate and what the law governs in a situation likes ours when there is no will. The property is separate from the estate entirely and therefor there is no lawyer to be involved in our conversation about next steps. In an effort to find a resolution that is in all of our best interests I would like to offer to pay for a family mediator to be present in our conversation, but only with your blessing. Once we decide on a time that works best, I can book one of the meeting rooms at the condo so that we are not invading your personal and private space. If you wish to have other parties present I am comfortable with whomever you wish to involve. Could you please let me know by Friday March 22nd the times in which you would be available for a conversation? You can call or text me directly at [omitted telephone number] or have someone else do so on your behalf. If you are interested and comfortable in having a professional family mediator present please also let me know and I will make the necessary arrangements. Yours, Alice Snaden
[15] The applicant did not respond to this letter.
[16] The respondent sent three more letters to the applicant, including the fourth letter dated June 9, 2024:
Dear Ms. Ionie Officer, This letter serves as a formal reminder of the notice to vacate the property at [omitted]. As outlined in the letter sent to you on April 28th 2024, I am no longer able to continue financially supporting you living in the condo. As stated in the letter I can continue up until July 1st 2024. I kindly request that you vacate the premises no later than this date. Please feel free to reach out to me at [omitted telephone number] or [omitted email address] if you would like or need any assistance moving your belongings. Additionally, as mentioned in the previous letter, please provide a forwarding address for future communications and for your mail to be sent to you. Please don’t hesitate to contact me if you have any questions or need further clarification. Thank you in advance for your cooperation and adherence to this notice.
[17] The respondent also tried to contact the applicant several times by telephone. None of the respondent’s calls were returned.
[18] On June 17, 2024, the applicant issued a Notice of Application for, amongst other things, dependant’s relief under the Succession Law Reform Act, R.S.O. 1990, c. S.26, an order restraining the respondent from evicting her from the Condo and an order restraining the respondent from selling the Condo. The applicant asserts that: (1) the deceased told the applicant shortly before his death that he wanted to remove the respondent’s name from title to the Condo; (2) the applicant contributed $22,000 towards the purchase of the Condo (although the applicant states that such funds were provided in cash and has produced no evidence of such payment); (3) the respondent did not contribute towards the purchase of the Condo nor did she ever make any payments towards the mortgage, property tax or utilities; (4) the respondent has never lived in the Condo; (5) the applicant is an elderly woman with a physical disability and uses a walker; (5) the applicant would be homeless if she were evicted from the Condo; and (6) she receives $2,098 per month as old age pension and that amount is not enough for her to rent and support herself in Toronto.
[19] In her affidavit sworn June 20, 2024, the applicant states:
I am 85 years old and I live on a $2,098.00 fixed pension. I do not have any other income, or financial support from any source. My income is not enough for me to rent a room in a retirement home, nor is it enough for me to rent a decent market rent apartment in the City of Toronto.
Prior to his death, Charles provided me with moral and financial support, namely he gave me love, affection, care and free accommodation at his [Condo] from 2021.
On several occasions prior to his death, Charles told me that he wanted to have me live in the property free of charge until I pass on. He also mentioned to me that he had instructed his lawyers to prepare transfer documents which would remove the respondent, Alice Snaden’s name from the property because Charles had only added her name to it when she was his girlfriend and he thought that they would get married. …
From the date Charles passed on until he was buried, neither Ms. Snaden nor members of her family spoke with me, expressed sympathy, or condolences to me. Ms. Snaden refused to speak with me even at Charles’ funeral.
However, in March, 2024, Ms. Snaden delivered a letter to me by registered mail, stating that she wanted to sell the property where I live because she could not “continue financially supporting” me until July 2024. Although she offered to pay for a family mediator to facilitate a meeting between us, she never delivered on that promise.
The truth is that Ms. Snaden has never supported me morally or financially. Although the property bears her name as a joint tenant, she made no contributions towards its purchase and made no payments towards its maintenance, property tax or utilities. To my knowledge, she only visited the property when Charles was alive but ailing at the hospital in March 2023, in order to bring the child Selah Officer to see me. Since that time, Ms. Snaden has refused to bring Selah to see me and I have not had access to the child since then. …
Without communicating to me by telephone, or visiting me at the property, Ms. Snaden delivered a second eviction notice to me by letter dated April 28, 2024. She also repeated the false allegation that she had been taking care of me financially. …
I am a 85-year old elderly lady with physical disability since I was 55. I use a walker to move around. I have no alternative place to live and would be homeless if Ms. Snaden carries out her threats on July 1, 2024. [Emphasis added]
[20] In her supplementary affidavit sworn July 29, 2024, the applicant states:
As a dependent of Charles whom he had given free accommodation at the condominium, I believe that I should not be compelled to pay rent to Ms. Snaden for any period of time.
[21] The applicant was cross-examined on her affidavits. She acknowledged that she had nothing in writing, whether a letter or an email, from the deceased to confirm that he promised that she could live in the Condo, rent-free, for the rest of her life.
POSITION OF THE PARTIES
[22] The respondent submits that the applicant’s evidence that the deceased wanted her to live in the Condo, free of charge, until she died is inadmissible pursuant to section 13 of the Evidence Act, R.S.O. 1990, c. E.23 because it has not been corroborated. The respondent submits that the applicant is trespassing by continuing to occupy the Condo and that a writ of possession should be granted. The respondent claims occupation rent from December 1, 2023.
[23] The applicant submits that she was never asked for rent and that there was no tenancy agreement. She submits that the deceased wanted to take care of his elderly mother and wanted her to live in the Condo for free for the rest of her life. The applicant submits that it is not fair and just to order her to deliver vacant possession of the Condo to the respondent. The applicant submits that she is a “dependant” within the meaning of the SLRA and that the court may make an order under s. 63(1) of the SLRA for her support as appropriate. However, I accept the respondent’s submission that the dependant relief provisions of the SLRA have no application given that the Condo passed by right of survivorship to the respondent and does not form part of the deceased’s estate. The applicant further submits that it is not fair and just for her to pay rent to the respondent for the period since December 1, 2023.
ISSUE #1: IS THERE AN ENFORCEABLE AGREEMENT THAT PERMITS THE APPLICANT TO LIVE IN THE CONDO, RENT FREE, FOR THE REST OF HER LIFE?
[24] The respondent relies on section 13 of the Evidence Act, R.S.O. 1990, c. E.23 which states:
In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.
[25] The Condo is not an asset of the Estate and thus s. 13 of the Evidence Act has no application given that judgment is sought against the respondent, not the Estate: Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854, at para. 64.
[26] The applicant’s evidence that the deceased promised that she could reside in the Condo for the rest of her life is hearsay evidence. In R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15, McLachlin, C.J.C, stated that the admissibility of hearsay evidence should be considered within the following framework:
(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.
(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.
(c) In "rare cases", evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.
(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.
[27] There is no exception to the hearsay rule that is applicable in these circumstances. In considering whether this hearsay evidence should be admitted on a principled basis, I find that necessity is established given that the deceased has passed and that threshold reliability is established given that the applicant’s evidence was given under oath and cross-examined on. However, I find that this hearsay evidence should not be admitted as it is not reliable given that the applicant has an obvious motive to lie. Further, while the evidence shows that the respondent was aware that the deceased had permitted the applicant to reside in the Condo without requiring the payment of rent, there is nothing to corroborate the applicant’s assertion that the deceased had agreed to permit the applicant to reside in the Condo, rent free, for the rest of her life. The Condo was subject to a substantial mortgage and the deceased was not a wealthy person. He could not afford to make any such long-term promise. If it had been the deceased’s intention to provide the applicant with essentially a life interest in the Condo, I expect that he would have also told the respondent and/or reflected such promise in writing.
[28] The fact that the deceased permitted the applicant in the Condo rent-free does not create a legal entitlement for the applicant to occupy the Condo indefinitely or at all. Even if the deceased made the alleged promise, it is not legally enforceable as there was no consideration given for it. The respondent, as the sole owner of the Condo, is entitled to possession of her property subject to the applicant being afforded sufficient time to find alternate accommodations.
ISSUE #2: IS THE RESPONDENT ENTITLED TO OCCUPATION RENT?
[29] Whether occupation rent is owed when a person occupies a property without a lease was addressed by Karakatsanis J., as she then was, in Dagarsho Holdings Ltd. v. Bluestone, 2004 11271 (ON SC), [2004] O.J. No. 2654 (Ont. S.C.), at para. 26:
Occupation rent is an equitable remedy. The often-cited general principle of occupation rent is that "if a person is in occupation without a lease, although the relationship of landlord and tenant will not exist, the law will imply a contract for payment to the landlord or a reasonable amount for the use and occupation of his land": Young v. Bank of Nova Scotia (1915), 1915 531 (ON CA), 34 O.L.R. 176, 23 D.L.R. 854 (Ont. C.A.). The principle is based upon the presumption that the parties have agreed to reasonable compensation. That presumption can be rebutted by evidence that the parties intended that the occupation be without compensation. Occupation rent is also an appropriate measure of damages for trespass and unjust enrichment. [Emphasis added.]
[30] The respondent did not ask the applicant to pay rent immediately after the deceased died. However, she did notify her that she could no longer afford to financially support her after July 1, 2024. Up to that point, I find that both the applicant and the respondent intended that the applicant’s occupation be without compensation. Thereafter, the respondent did not continue to share that intention. I find that it is just for the applicant to pay occupation rent from July 1, 2024 to date.
[31] The respondent notes that she has continued to be required to pay a mortgage of $2,635.85 per month plus condo fees of $599.26 during this period. The respondent seeks compensation for the rental income that she would have received for the Condo during the period following the deceased’s death. A letter from a real estate agent dated July 22, 2024, which should have been in the form of an affidavit, states that the Condo had a market rental value of $2,150-$2,250 on November 1, 2021, and a market rental value of $2,550-$2,650 on December 1, 2023. These figures were not contested by the applicant. The court must use the best available evidence: Dyal v. Dyal, 2023 ONSC 4322, at para. 71. To account for the uncertainties of the range of rental values as of July 1, 2024, and the cursory nature of the appraisal letter provided, I find that the occupation rent for the period since July 1, 2024 shall be $2,200 per month.
DECISION
[32] The motion is granted. Order to go as follows: 1) the applicant shall deliver vacant possession of the Condo by February 28, 2025; 2) a writ of possession shall be issued on the above terms; 3) the applicant shall pay occupation rent in the amount of $2,200 per month from July 1, 2024 until the day that she vacates the Condo; and, 4) the applicant shall leave all personal property not belonging to her when she vacates the Condo.
[33] The respondent shall deliver her costs submissions by November 22, 2024. The applicant shall deliver her responding costs submissions by November 29, 2024. The respondent may deliver reply costs submissions by December 6, 2024. Each submission shall be no more than three pages in length exclusive of a bill of costs and any offers to settle that were made.
M.D. FAIETA J.
RELEASED: November 15, 2024