Ontario Superior Court of Justice

Court File No.: CV-24-97921
Date: 2025/04/29

BETWEEN:
Louise Gabrielle Nadeau, Applicant
– and –
2125245 Ontario Inc., Stephanie Anne Aubut (in her personal capacity and in her capacity as Estate Trustee of the Limited Estate of Joseph Jean Paul Aubut), Michelle Leeann Aubut, Mia Kyriazys (a minor), and Aubut Family Trust (2016), Respondents

Appearances:
Miriam Vale Peters, for the Applicant
Margot Pomerleau, for the Respondents

Heard: April 11, 2025

Ruling on Interim Support/Possession

Justice I. Carter

Introduction

[1] Joseph Jean Paul Aubut (“the Deceased”) passed away on June 15, 2024. He left two Wills – a Primary Will and a Limited Property Will, both dated September 28, 2021.

[2] The Applicant, Louise Nadeau, was the Deceased’s common law spouse for the four years preceding his death. She is 71 years old. She is also the Estate Trustee and residual beneficiary under the Deceased’s Primary Will.

[3] The Respondent, Stephanie Anne Aubut, is one of the Deceased’s daughters. She is also the Estate Trustee under the Deceased’s Limited Property Will. The Respondent, Michelle Leeann Aubut, is the Deceased’s other daughter. They are the only beneficiaries under the Limited Property Will, which deals primarily with the shares held by the Deceased in closely-held private corporations.

[4] The Applicant commenced an application for dependant support pursuant to section 64 of the Succession Law Reform Act, RSO 1990, c S.26 (“SLRA”). Within the context of that application, the Respondents have brought a motion to evict the Applicant and sell the Property. In response, the Applicant has brought a cross motion for interim relief, which would permit her to reside at the Property on the same terms that she and the Deceased resided during his lifetime. Alternatively, she is seeking interim support. In addition to this relief, the Applicant has sought an Order directing a stay of the distribution of the assets of the Limited Estate of the Deceased.

[5] Although the primary position of the Respondents is that the Applicant should be evicted and the Property sold, they did not press these arguments in oral submissions. It is of note that the Applicant is seeking a vesting order in the Property as part of the relief sought on the application. To sell the property before her claim has been adjudicated on would defeat her claim before it has been heard on its merits. The jurisprudence supports the proposition that the Property should not be sold until that claim is heard.

[6] In addition, although the Applicant is seeking interim support, the value of the shares in the Limited Will is unknown. The Respondents say there is no value. The Applicant contests that. In any event, absent an order selling the shares (which the Applicant opposes), there would be no source from which a payment of interim support could be made. In other words, there is insufficient evidence to determine how much and from where this order of interim support would come.

[7] As a result, the real question on this motion is whether the Applicant can stay at the Property rent free pending a determination of the Application. In essence, she argues that staying rent free is the equivalent of receiving interim support. The answer to that question lies on a consideration of both the provisions of the SLRA and the equitable remedy of unjust enrichment.

Interim Order for Support

[8] Section 63 of the SLRA provides that a court may order “the possession or use of any specified property by the dependant for life or such period as the court considers appropriate”. Section 64 of the SLRA allows an applicant to move for interim support from the estate of the deceased. The Court has a broad discretion under this section, but the following test is to be used to determine if the claimant is entitled to interim support:

• The person falls within a qualifying relationship set out in section 57 of the SLRA;
• The person is a dependant of the deceased in that the deceased was providing support to them, or was under a legal obligation to provide support to them;
• That the deceased did not make adequate provision for their support in the sense that the applicant is in need of support: Charles v. Junior and Estate, 2018 ONSC 7327, para 27.

[9] The onus is on the applicant to establish some degree of entitlement to, and the need for, interim support. The burden of proof is described variously as making “a good arguable case”; “a prima facie case”, “apparent creditable evidence sufficient to entitle the applicant to support”; “substantial evidence to support a prima facie case”, and the existence of a “triable issue”. The applicant must not be “a frivolous applicant.” On a motion for interim relief, the Court may weigh and assess the evidence, to the extent that it may do so having regard to the nature of the evidence and how it may have been tested as to its veracity: Charles v. Junior and Estate, 2018 ONSC 7327, para 29.

[10] There is agreement between the parties that the first factor is established. In my view, the evidence filed by the Applicant establishes the second. It is the third factor that is vigorously contested.

[11] The parties have taken very different approaches to the issue. The Applicant argues that she has demonstrated that the Primary Estate would not be sufficient to maintain her shelter for the rest of her life. The Respondent, on the other hand, submits that she has more than sufficient income, funds and assets to support herself from her own pension, her own assets and investment holdings, as well as hundreds of thousands in cash and properties she received from the Primary Will of the Deceased, at least until the hearing of this matter in the fall of 2025. The difference is not inconsequential. If the test is “for the rest of her life”, the Applicant has established, at least at this stage, a need for support. If the test is “until the hearing”, she has not. According to the Applicant, the Primary Estate, of which she is sole beneficiary, includes the following assets: two RESPs, four bank accounts (including a TFSA), one GIC and certain properties, including one lot in Quebec and five vacant lots in Maine. Excluding the value of the properties, which cannot yet be sold, she has received over $120,000. This is in addition to her own savings and monthly income from a pension.

[12] At the conclusion of the hearing, I asked the parties for additional written submissions on the issue of “for the rest of her life” versus “until the hearing” when determining need. I have been provided with no decisions that deal directly with the issue. In my view, without deciding what test should be applied in all cases, it would be appropriate in this case to consider need “until the hearing.” I reach this conclusion for three reasons.

[13] First, as a matter of common sense and logic, when considering “need” in the context of an interim order, that “need” should also be interim. The provision is meant to act, in essence, as bridge financing or support, until a final determination can be made. If the person is not in “need” during that period, there is no basis, generally speaking, for an interim order.

[14] Second, the Primary Will is not contested. The Applicant is receiving “support” already, a factor that may not be present in other cases. While it may not be sufficient to last her entire life, it will certainly be sufficient for the next few years.

[15] Third, the hearing has been set for this fall. Even assuming a timeline of several months for a decision to be rendered, a final determination will be made on the application in a brief period of time. As a result, there is less of a need for interim support.

[16] On this latter point, the Applicant argues that having early hearing dates works an injustice on her. She is at a disadvantage in comparison to other litigants who do not have dates set. I disagree. The fact that she has an early application date is to her great advantage. It means that her claim will be adjudicated in a timely and efficient manner. The suggestion otherwise is without merit.

[17] I conclude that the Applicant is not entitled to interim support at this time. Of course, should matters change, such as extensive delays in the hearing dates or a significant reversal of financial fortune, the Applicant would be entitled to renew her motion.

Occupation Rent

[18] When someone occupies a property and by doing so excludes another interested party, occupation rent is an equitable remedy that is available to the court in appropriate circumstances to achieve fairness between the parties.

[19] In Bergmann v. McMahon, 2010 ONSC 993, para 38, Daley J. noted at paragraph 38 that in order to establish a right to occupation rent, it must be demonstrated that:

a. the party in possession of the premises has been enriched,
b. there has been a corresponding deprivation suffered by those entitled to the property,
c. and the absence of a juristic reason for the enrichment.

[20] I begin my analysis by noting that the Property is not an asset of the Deceased nor his Estates, but an asset of an independent corporation, the Respondent 212. The Deceased was a tenant residing at the Property and contributing rent to 212. As a result, this case is different from the ones relied on by both the Applicant and Respondents.

[21] Ultimately, I agree with the position of the Respondents. The Applicant has been unjustly enriched as she has lived in the Property since June 15, 2024, without paying any rent or expenses. 212, the owner of the Property, has been absorbing all the carrying costs of the Property and has been deprived of the opportunity of either selling or renting the Property. There is no juristic reason for the Applicant’s enrichment; she is not impecunious and has enough money to pay occupation rent. It is irrelevant that she had previously been living rent free with the deceased. It does not provide her with an entitlement to keep the same arrangement indefinitely. The Applicant has not rebutted the prima facie case that she has been unjustly enriched.

[22] As a result, I make the following orders:

a. The Applicant pay rent in the amount of $3,000.00 per month, commencing May 1, 2025, to the date of delivery of vacant possession of the Property or such further and other date as ordered by this Honourable Court;
b. The Applicant pay the utilities for the Property commencing May 1, 2025, to the date of delivery of vacant possession of the Property or such further and other date as ordered by this Honourable Court;

[23] In addition, the Respondents seek an order that the Applicant pay rental and utility arrears in the amount of $33,250. I decline to make such an order. Unjust enrichment is an equitable doctrine. It would be unfair to force the Applicant to pay such an amount at this stage when no such rental structure existed. If it had, the Applicant may have made different decisions. The issue of arrears is best dealt with at the hearing of the application.

Other Orders and Costs

[24] I will also order that the Limited Estate be prohibited from disposing any of its assets until final determination of this matter. This proposed order was not seriously contested by the Respondents. In any event, as previously noted, the hearing for the application is just months away. Finally, as success has been divided on this motion, I decline to make any order as to costs.

Released: April 29, 2025

Justice I. Carter