Ontario Superior Court of Justice

Court File No.: CV-24-0401-00
Date: 2025-02-18

Between

Home Equity Mortgage Corporation
Applicant
Counsel: R. Brosseau

-and-

Dwayne Driver, the Estate Trustee of Barbara Aube
Respondent
No-one appearing, for the Defendant

Heard: February 13, 2025
Judge: W.D. Newton

Reasons for Order

Background

[1] This is a motion for an order dispensing with service of the statement of claim and this motion upon the deceased’s estate.

[2] The deceased, Barbara Rose Aube, had a mortgage with the plaintiff. Ms. Aube died on October 14, 2023. She had a will naming executors and beneficiaries. The amounts due under the mortgage are payable 180 days after the death of the borrower. No payments have been made and the lender is owed more than $150,000.

Efforts to Locate Estate Representatives

[3] I am satisfied that the plaintiff has made extensive efforts to ascertain the representatives of Ms. Aube’s estate including:

a. contacting counsel who prepared the will;
b. corresponding directly with the named executors, both of whom have renounced;
c. corresponding with the children and beneficiaries of Ms. Aube; and
d. conducting province-wide probate and Ontario Gazette searches, which all produced a nil result.

[4] The main residual beneficiary under the will is not able financially, at present, to apply to be executor.

Legal Authority

[5] Rules 16.04(1) and 37.07(2) provide that a court may dispense with service of a statement of claim and motion record in circumstances that render service impractical. Rule 10.02 provides that the court may order that a proceeding may continue in the absence of a person representing the estate of the deceased person. See also Akhaven v. Taheri, 2023 ONSC 4847.

Order

[6] As there is no person coming forward to represent the Estate, the order sought is appropriate.

[7] The draft Order at CaseCenter A 174 shall issue with the following additional paragraph:

Surplus proceeds, if any, to be paid into Court on notice to the beneficiaries under the will.

[8] Costs fixed at $8,943.47.

“Original signed by”
W.D. Newton

Released: February 18, 2025