Reasons for Decision

Court File No.: CV-23-00274
Date: 2025-03-07
Ontario Superior Court of Justice

Between:
Gerry Tyndall, Applicant
and
Patti Hill Noyes, in her capacity as Estate Trustee of the Estate of Gail Patricia Hill, Respondent

Applicant Counsel: Michael Gunsolus
Respondent Counsel: Murray Miskin
Heard: January 23, 2025

Justice Joseph Di Luca

Introduction

[1] The applicant, Gerry Tyndall, is the long-term common law spouse of the deceased, Gail Hill. The respondent, Ms. Patti Hill Noyes, is the daughter of Gail Hill. She acts as Estate Trustee. Gail Hill had three other children, Doug, Cathy, and Jackie. Mr. Tyndall is not the father of Ms. Hill’s children.

[2] The central issue in this application is whether the applicant, Mr. Tyndall, has a life interest in the property where he resided for many years with Gail Hill. [1]

[3] Mr. Tyndall asserts that in accordance with Gail Hill’s Last Will and Testament he has a full life interest or life estate in the home, including the right of exclusive possession and the right to collect rents. While he agrees that he is responsible for minor repairs, upkeep, and the payment of utilities, he asserts that the Estate is responsible for capital repairs and permanent improvements of the home as well as paying property taxes, insurance and any encumbrances.

[4] The respondent agrees that Mr. Tyndall has the right to remain in the home until his death. That said, the respondent asserts that Mr. Tyndall does not have exclusive possession of the residence nor does he have the right to collect rents. Instead, the respondent asserts that Mr. Tyndall has the right to reasonable use of the property, which will be fully maintained by the Estate.

[5] For the reasons that follow, I am satisfied that the applicant has a life interest in the property which includes a right of exclusive possession but is subject to the applicant paying expenses not related to the ownership of the home (taxes, insurance, capital improvements/major repairs).

Background Facts

The Relationship Between Ms. Hill and Mr. Tyndall

[6] Ms. Hill and Mr. Tyndall were in a long-term common law relationship. They resided together for approximately 24 years, which ended with her death on March 16, 2020. While living together, they were in a continuous domestic relationship. Towards the end of her life, Mr. Tyndall was Ms. Hill’s main caregiver. While there is some dispute in the evidence, it appears that at times, Mr. Tyndall shared a bedroom with Ms. Hill and at other times, he would sleep in a bedroom in the basement while Ms. Hill slept upstairs.

[7] Mr. Tyndall, who is now 77 years old, worked as a self-employed carpet installer. He retired in 2012 without a work pension. He has limited financial means and his only source of income is OAS/CPP.

[8] The relationship between Ms. Hill and Mr. Tyndall was governed by a Cohabitation Agreement. According to the terms of this agreement, they agreed to mutually release each other from any and all claims to property and any right to claim against the estate of whomever died first.

The Last Will and Testament

[9] On March 16, 2015, Gail Hill executed a Last Will and Testament using a homemade will kit. This will contained the following bequest in favour of the Applicant:

Gerry Tyndall can remain living in my house until his death. At that time, the house will be sold and divided between my four children. My Estate will pay the taxes. [Emphasis added.]

[10] Another provision of the Will grants the Estate Trustee the power to “properly and efficiently administer my estate”, including power to “sell my property (other than as specifically gifted above) … postpone such sale; invest my property in any type of investment whatsoever … manage, maintain, repair and improve my property … carry on any business … borrow, lend, lease; and be reimbursed and renumerated for undertaking such office.” [Emphasis added.]

[11] In cross-examination, the Applicant agreed that before the will was prepared, he and Ms. Hill had discussions about him continuing to live in the house were she to die first. One point of discussion was whether he could afford to stay in the house. Mr. Tyndall explained that he told Ms. Hill he would “try to work something out.”

The Property

[12] The property at issue is a home located at 634 Christopher Road in Peterborough. The property is a modest bungalow with three bedrooms on the main floor and a bedroom in the basement. The basement is not equipped as a stand-alone unit.

[13] Ms. Hill was the sole registered owner of the property. At the time of her death, there was a mortgage registered against the property with approximately $30,000 owing.

[14] The applicant has resided at the property since approximately 1996, and he has continued to reside there since Ms. Hill’s passing.

[15] Prior to her passing, Ms. Hill was paying for the main expenses relating to the home including mortgage, property taxes, maintenance/repairs, utilities, and cable/phone. Mr. Tyndall would contribute approximately $350 per month for expenses and would split the cost of things needed for the home, such as a lawnmower.

[16] Since Ms. Hill passed away, the property has been transferred into the joint ownership of Ms. Hill’s children, as residual beneficiaries. The property has since been re-financed, with some of the money being put towards maintenance of the property, including a new roof and furnace, and some of the money being released to Ms. Hill’s children.

[17] In the time period following Ms. Hill’s death, Mr. Tyndall has paid approximately $16,050 in rent to the respondent “under protest.” He has also paid approximately $7,020 for utilities and cable.

[18] Carrying costs for the home, apart from the new mortgage, are approximately $883.65 per month. This includes insurance, taxes, water, gas and hydro. Mr. Tyndall is now contributing $250 per month which leaves a shortfall of approximately $633.65, subject to the monthly amount paid by Doug Hill as will be discussed.

Doug Hill

[19] After Ms. Hill died, the respondent’s brother, Doug Hill, moved into the property. Mr. Hill is of limited financial means and supports himself through social assistance. The respondent has been collecting monthly rent of $420 from him.

[20] While there is some dispute in the evidence, it appears that for much of the time, Doug Hill has been staying on the main floor while Mr. Tyndall has been staying in the basement. It appears that this arrangement is related to the fact that Mr. Hill was performing some renovation repairs on the main floor. It also appears that once the repairs were to be done, the plan was that Doug Hill would move to the basement and Mr. Tyndall would move upstairs.

[21] Mr. Tyndall asserts that he initially agreed to let Mr. Hill stay at the residence on a short-term basis on the condition that he could revoke his consent at any time. The respondent disputes this assertion and maintains that there was no discussion of any time limit or right to have Mr. Hill removed.

[22] While he was not residing at the property at the time of Gail Hill’s death, Doug Hill had stayed at the property sporadically over the years. A granddaughter of Ms. Hill also lived at the property for one year.

[23] In May 2021, Mr. Tyndall asked the respondent to take steps to have Doug Hill vacate the property as he was being disruptive. Mr. Hill has a girlfriend who also stays at the property on a regular basis. On several occasions, police have been called to deal with fights between Mr. Hill and his girlfriend.

[24] The respondent has refused to remove Mr. Hill from the property and maintains that the Estate has the right to permit Mr. Hill to live at the property and collect any rent he is paying. The respondent maintains that Mr. Tyndall should be willing to share the house if he chooses to continuing living at the home.

Issues and the Law

[25] I turn next to determining whether Mr. Tyndall has established that he has a “life estate” in the property.

[26] In Ralston v. Ralston, 2016 ONSC 2937, paras. 26-28, Leach J. provides the following summary of a “life estate”:

Normally, the holder of life estate in a property is entitled to occupation of the premises and associated income from the property during his or her life tenancy. However, he or she also normally has offsetting obligations. In particular, a “tenant for life” or “life tenant” normally is bound to pay the taxes, interest on any mortgage debt, and any other annual outgoings for the preservation of the property, although expense for certain repairs to preserve the property may have to be borne by both the life tenant and those entitled to the remainder interest in the property. See, for example: Re McDonald (1919), 46 O.L.R. 358 (C.A.); and Re Jackson (1977), 17 O.R. (2d) 318 (H.C.J.).

However, a life tenant normally is not entitled to be reimbursed for more substantial capital repairs and improvements he or she voluntarily may have undertaken during the life tenancy, or for other costs associated his or her administration of the property.

That long-standing principle of English law was recognized and accepted by the courts of Ontario as settled law more than 130 years ago, and has been recognized and applied by Ontario courts into more modern times.

[27] The holder of a “life estate” or “life tenant” generally has the right to immediate and exclusive possession of a property and is entitled to use it as its owner, subject to some restrictions intended to protect the rights of those entitled to possession at the end of the life estate, see Widdifield on Executors and Trustees, 6th Edition, Appendix WP:264. Rights to use and transfer the property are restricted by the common law doctrine of waste, see British Columbia (Director of Civil Forfeiture) v. Onn, 2009 BCCA 402, paras. 25-30. The life tenant is ordinarily responsible for current expenses and routine maintenance, see Hurst v. Soucoup, 2010 NBQB 216 at para. 22.

[28] By contrast, a “licence” with respect to real property is a privilege to go on premises for a certain purpose, but does not operate to confer on, or vest in, the licensee any title or estate in such property, see Allen v. Allen, 2001 CarswellOnt 4030 (S.C.J.) at para. 20.

[29] I note that the respondent concedes that Mr. Tyndall has a “life interest” though maintains that he does not have the full panoply of rights and entitlements that would typically go along with a “life estate.” In other words, the respondent’s position is that Mr. Tyndall has something more than a mere “licence” but something less than a full “life estate.”

[30] The respondent’s main point of contention is over the applicant’s asserted right of exclusive possession. On this issue, the respondent argues that a right of exclusive possession is not invariably included in a life estate, see Donaldson v. Braybrook, 2020 ONCA 66, and Montemarano v. Montemarano, 2018 ONSC 5217, para. 24.

[31] In terms of legal principles, I note the following oft-cited guiding principles that govern the interpretation of wills, as summarized in Barsoski Estate v. Wesley, 2022 ONCA 399, para. 21:

a. A will must be interpreted to give effect to the intention of the testator;
b. A court must read the entire will, as a whole. The words used in the will should be considered in light of the surrounding circumstances;
c. A court must assume that the testator intended the words in the will to have their ordinary meaning; and,
d. A court may canvass extrinsic evidence to ascertain the testator’s intention.

See also Ross v. Canada Trust Company, 2021 ONCA 161, paras. 36-41.

[32] In relation specifically to the distinction between “life interests” and “licences”, the Court of Appeal in Barsoski, at para. 22, noted that the caselaw is of limited assistance in discerning the dividing line. The Court noted that the limited utility of the caselaw is related to the importance of discerning the specific testator’s own intentions and “the wide range of factors that may be taken into account in discerning those intentions.” In short, the Court endorsed a context-based approach to determining whether a testator subjectively intended to gift a life estate or merely a licence to occupy.

Analysis

[33] I start by examining the words of the will. In this regard, I note that the will specifically directs that Mr. Tyndall can remain living in the residence until his death. Following his death, the house is to be sold and divided equally amongst Ms. Hill’s four children.

[34] The Will makes no reference to anyone else occupying the home during the period of Mr. Tyndall’s life.

[35] While the will does grant the Estate Trustee the power to “lease” property, the will must be read as a whole. It would be absurd to read the will as granting a right to lease the property outright as that would have the practical effect of impeding Mr. Tyndall’s right to live at the home for the duration of his life. Indeed, in submissions counsel for the respondent agreed that the respondent would not be at liberty to rent or lease the property to a family who would occupy the majority of the premise. In counsel’s view, Mr. Tyndall would be entitled to reasonable use of the property even if the respondent were to lease or rent out a portion of the property.

[36] Turning to the broader context, at the time the will was drafted, Mr. Tyndall had been living at the residence with Ms. Hill in a conjugal relationship of lengthy duration. The relationship had been the subject of a cohabitation agreement wherein Mr. Tyndall agreed to not pursue any trust or family law claims against Ms. Hill or her estate.

[37] While Doug Hill may have stayed at the residence during this time frame, it was at best for a matter of a few months over many years. He was not a regular tenant or habitant of the residence. The same applies to Ms. Hill’s granddaughter, though I note she stayed at the home on one instance for approximately one year.

[38] The residence is a single-family dwelling. While there is a bedroom in the basement, the residence only has one kitchen.

[39] There can be no issue that Mr. Tyndall has a life interest in the residence. Indeed, the respondent essentially concedes this point. The more difficult issue is whether this life interest includes a right of exclusive possession.

[40] In my view, it does. This is not a case like Donaldson v. Braybrook where the transferor of a cottage property clearly manifested an intention to permit all her children to continue to enjoy the property while also granting two of her children ownership interests.

[41] In this case, I am satisfied that Ms. Hill did not contemplate Mr. Tyndall having to share the home with anyone. I am not prepared to find that Doug Hill’s very limited time at the residence during the many years that Ms. Hill resided at the property with Mr. Tyndall supports a finding that her subjective intention in crafting her will was to preserve Mr. Hill’s ability to stay at the residence into the future.

[42] As well, there is nothing in the will or in the external circumstances to suggest that Ms. Hill wanted her Estate to be able to rent out or lease portions of the property while Mr. Tyndall continues to reside there. The intention was to continue to provide a home for Mr. Tyndall until his death.

[43] As such, I am satisfied that Mr. Tyndall has the right to reside at the home and has the right of exclusive possession of the home until his death. As an adjunct to this right, he is entitled to any of the rents that have been collected from Doug Hill.

[44] In terms of the remaining issues, I find that Mr. Tyndall is responsible for the day-to-day expenses related to occupying and maintaining the home, such as heat, electricity, cable, telephone, etc. This finding is consistent with the discussion he had with Ms. Hill around the time she wrote the will wherein they discussed his ability to pay expenses. It is also consistent with the wording of the Will, which specifies that the Estate is to pay taxes, but does not specify that any other expense is to be paid by the estate. Mr. Tyndall was properly required to pay such expenses following Ms. Hill’s passing. He was not required to pay “rent.” As a result, an accounting will be required to sort out how the amounts paid are to be allocated and settled.

[45] I also find that the Estate is responsible for any capital improvements to the property. That said, I note that the Estate has been paying for capital improvements since Ms. Hill’s passing.

[46] Lastly, I find that the Estate is responsible for maintaining insurance on the property.

[47] In view of my findings, Mr. Tyndall is entitled to have Mr. Hill vacate the premise. However, to be clear, nothing in these reasons prevents Mr. Tyndall from permitting Mr. Hill to remain in the residence and contribute to the monthly expenses, if that is his ultimate decision. Either way, the choice is his and not that of the Estate Trustee.

[48] Should Mr. Tyndall wish Mr. Hill to vacate the property, he can give notice to Mr. Hill and Mr. Hill will be required to vacate the property within 30 days of notice being provided. If Mr. Hill refuses to vacate the premise, counsel are free to seek an appropriate order before me.

[49] Counsel are directed to address any accounting issues that arise as a result of these reasons. If a further attendance before the court is required, an appearance can be scheduled through the trial coordinator. The appearance should be before me or, if I am not reasonably available, before another justice in the region.

[50] If costs cannot be agreed upon, written submissions no longer than three (3) pages in length excluding appropriate appendices can be filed with the Court via my judicial assistant, Karen.Bunbury@ontario.ca. The applicant’s submission will be served and filed no later than fourteen (14) days after the release of these reasons. The respondent shall have seven (7) days following receipt of the applicant’s submissions.

Justice Joseph Di Luca
Released: March 7, 2025

[1] In the Notice of Application, the applicant also sought the alternative remedy of a payment in an amount equal to the value of the life interest in the property. This relief was not pursued at the hearing of the application.