COURT FILE AND PARTIES
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Pei Zhang and Linda Zhang, personally, and in their capacities as the Estate Trustees of the Estate of Yong Xiang Song, deceased, Applicants
-and-
Ya Ping Zhang, Respondent
BEFORE: MacNeil J.
COUNSEL:
James Dunphy and Yana Fox – Lawyers for the Applicants
Ya Ping Zhang – Self-represented Respondent
HEARD: December 5, 2025
REASONS FOR DECISION
1The Applicants are the children of the late Yong Xiang Song (“Ms. Song”) and the Respondent, Ya Ping Zhang. They were named as the estate trustees for Ms. Song in her Last Will and Testament. This application was commenced to obtain, among other relief, an order for leave to issue a writ of possession regarding the premises known municipally as 7459 Monastery Drive (“the Property”) on the basis that it was solely owned by Ms. Song and now forms part of her estate.
2The Respondent currently lives at the Property. He was married to Ms. Song at the time of her death, although it appears that the parties had been separated for many years. He opposes the application and asserts that the Property is a matrimonial home to which he financially contributed, that he has a beneficial ownership interest in the Property, and that he has a right to live there.
3The parties filed supporting affidavits. Only the Respondent was cross-examined on his affidavit, and a transcript of that cross-examination was filed.
BACKGROUND
4The Property was purchased by Ms. Song on May 30, 2012. She is the only person named on title registered to the Property. It is the Applicants’ evidence that Ms. Song bought the Property alone, she provided the entire down payment for its purchase, and she paid off its mortgage.
5The whole family began living in the Property once it was purchased.
6The Applicant, Pei Zhang, moved out of the Property in 2013 to attend university.
7Ms. Song moved out of the Property in 2016 when she took a new job in Edmonton, Alberta. When Ms. Song left, the Respondent and the Applicant, Linda Zhang, remained living together in the home.
8On February 22, 2019, the Property’s mortgage was fully paid off.
9The Applicant, Linda Zhang, moved out of the Property in 2022 to attend university.
10Ms. Song was diagnosed with stage 4 cancer in March 2023. On or about October 4, 2024, Ms. Song was hospitalized due to her illness.
11On October 8, 2024, Ms. Song executed her Last Will and Testament. In addition to appointing the Applicants as the estate trustees, it named them as equal beneficiaries of the entirety of her estate (“the Estate”).
12Sadly, Ms. Song passed away on October 21, 2024.
13On January 24, 2025, the Applicants’ lawyer wrote to the Respondent asserting that Ms. Song was the sole legal and beneficial owner of the Property and that it had passed to the Applicants under the Will. The letter demanded that the Respondent vacate the Property and gave him permission to stay until March 31, 2025 if he confirmed by January 30, 2025 that he would vacate.
14On January 28, 2025, the Respondent telephoned the Applicants’ lawyer and asserted that he is entitled to half of the Property and stated that he has no intention of moving out.
15The Applicants wish to sell the Property. However, the Respondent refuses to vacate the home. As a result, the Applicants have brought this application for the following:
(a) an order for leave to issue a writ of possession regarding the Property;
(b) an order that the Respondent pay occupation rent to the Estate from the date of Ms. Song’s death to the hearing of the application;
(c) an order that the Respondent pay damages to the Estate in the amount of $50,000.00, or as further particularized, arising from physical damage caused by him to the Property; and,
(d) an order directing the Respondent to remove all of his personal belongings and vacate the Property.
EVIDENCE OF THE WITNESSES
16Below, I summarize only the evidence of the parties that I find is relevant to determining this application, and not all of the evidence that was filed.
The Applicants’ Evidence
17It is the Applicants’ evidence that the Property was solely purchased by their mother, Ms. Song, and that she did not want to own property with the Respondent who was her estranged husband. She often told them, and the Respondent, that she wanted a divorce. Ms. Song had previously filed for divorce in China, but she did not ultimately complete the process because the Respondent appeared in court crying and promising to change, so she agreed to give him another chance.
18Their mother was the breadwinner for the family and worked tirelessly to support everyone. The Respondent was mostly unemployed and made no real effort to support his family. He seemed content to remain at home and engage in leisure activities.
19Ms. Song paid the entire down payment of approximately $93,000.00 to buy the Property. The parcel register for the Property lists Ms. Song as the sole owner. On April 26, 2012, the Respondent executed two documents respecting the transfer of title to the Property to Ms. Song. The first was a “Spousal Consent to Electronic Registration of Charge” on title. The second was an “Acknowledgement and Direction (Transfer/Charge)” which the Applicants submit indicates that the Respondent consented to Ms. Song’s declaration that she was not holding the Property in trust for any other person.
20Shortly after buying the Property, Ms. Song, the Respondent and the Applicants all moved into the home. Ms. Song paid for the mortgage, all of the utilities, and the Respondent’s car insurance. Ms. Song believed that, when the Respondent did work occasionally as an engineering contractor, he concealed his income from her.
21In 2016, Ms. Song relocated to Edmonton, Alberta, for a new job. She continued to support her children.
22On February 22, 2019, Ms. Song fully paid off the mortgage on the Property.
23The Applicants filed various texts sent from Ms. Song to the Respondent that they submit supports a finding that Ms. Song bought and paid for the Property alone and that the Respondent did not have any legal or ownership interest in it.
24Since September 2022, the Respondent has been the only resident at the Property. He only started partially paying for gas, hydro, water, phone, internet bills, and car insurance around December 2023.
25It is the Applicants’ evidence that, while Ms. Song was hospitalized with cancer, and in the presence of the Respondent, she told them that she wanted to transfer title to the Property to the Applicants. The Respondent was supportive of Ms. Song’s intentions and did not assert that he was an owner of the Property or that his consent to her proposal was required. Due to Ms. Song’s medical appointments and cancer treatments, she was unable to leave the hospital to arrange for the legal transfer of title of the Property to the Applicants, however.
The Respondent’s Evidence
26It is the Respondent’s evidence that he paid a $67,000.00 down payment towards the purchase of the Property. He attests that when he and Ms. Song were buying the Property in 2012, they went to the bank, CIBC, to pay the deposit. However, because he did not have a job, the “CIBC officers” did not allow him to go on title and he could not pay the deposit directly. As a result, he transferred $67,000.00 from his chequing account to Ms. Song’s chequing account. He attests that Ms. Song “paid more than $93000.00 as the deposit” on the Property.
27There was no bank statement or receipt tendered as evidence showing the Respondent’s purported transfer of $67,000.00 to Ms. Song; the Respondent advised that he could not find one. The only document produced by the Respondent was a copy of a handwritten note, written in Chinese, dated April 11, 2012, along with a translation of same. He attests that it is a “confirmation letter” for his down payment and that it was handwritten by Ms. Song herself. The note is purportedly signed by both Ms. Song and the Respondent. The translation reads:
Ya ping Zhang paid down payment $70,000 when he purchased the Property located at 7459 Monastery Drive […], when the selling price is higher than the price now, Ya Ping Zhang get $70,000, Yong Xiang Song get the rest, if the selling price is low than the price now, Ya ping Zhang share the half loss.
If buying the house in GTA, Ya Ping Zhang pay for the house, Ya ping Zhang keep the house, if bankrupted, there is nothing to do with Yong Xiang Song.
Yong Xiang Song
Ya Ping Zhang
2012.4.11
28At the hearing, the Respondent advised the Court that he had prepared the English translation of the “confirmation letter”; that it is a “rough” translation; and that he is not sure of the translation’s accuracy. Counsel for the Applicants objected to the admission of this handwritten note because it was produced after the Respondent’s cross-examination, and it does not meet the applicable evidentiary requirements.
29It is the Respondent’s evidence that, after purchasing the Property, he and Ms. Song paid the house expenses together. He also states that he replaced the roof shingles several times because of a windstorm; he bought a new furnace; and, in January 2025, he had the kitchen faucet replaced. The Respondent filed certain bank account statements, credit card bills, and email transfers that he submits show payments he made toward the family expenses, including the Property. He also attests that he did the maintenance of the Property, including the grass cutting, snow clearing, and housecleaning.
30The Respondent states that, because Ms. Song was the owner of the Property, all the bills were in her name, including the car insurance.
31The Respondent raises concerns about the veracity of Ms. Song’s Will, but no formal objection to the Will, or application challenging the Will, has been filed. The Respondent’s evidence is that he did not agree to the Property going to the Applicants while he was still alive. Rather, he agreed that he and the children could own the Property together, without selling it before he dies; the children would have a half interest in the Property and he would have the other half.
32The Respondent states that, contrary to the Applicants’ allegations, he never refused to work, that he was employed over the years, and that he did his best to help support his family. The Respondent denies that he ever abused Ms. Song, as alleged.
33On his cross-examination, the Respondent acknowledged that Ms. Song had filed for a divorce in China, but stated that “[t]he officers solved it” and they did not end up going to court for a hearing.
34On his cross-examination, the Respondent did not agree with the Applicants’ lawyer that he and Ms. Song were legally separated after she moved to Edmonton in 2016, stating: “… sometimes we were together, sometimes not together”. His evidence was that, after Ms. Song moved away in 2016, he had to pay the water, gas and hydro bills for the Property because otherwise they would be cut off and these were his responsibility because it was his home.
ISSUES
35The following issues are raised in this application:
(a) Should the Applicants be granted leave to issue a writ of possession regarding the Property?
(b) Should the Respondent pay occupation rent to the Estate from the date of Ms. Song’s death to the application hearing date?
(c) Should the Respondent pay damages to the Estate for physical damage to the Property?
(d) Should vacant possession of the Property be ordered?
POSITION OF THE APPLICANTS
36It is the position of the Applicants that Ms. Song left the Property to them in her Will. The Respondent does not own the Property and has no interest in the Property. He has no legal or equitable claim to the Property. The condition of the Property has deteriorated significantly due to the Respondent’s neglect.
37A writ of possession is required to obtain vacant possession of the Property.
38The Applicants wish to sell the Property. It was their mother’s wish that the Property pass to them. The Property was their mother’s legacy to them. They cannot rely on their father to follow their mother’s wishes.
POSITION OF THE RESPONDENT
39It is the position of the Respondent that the Property is his and Ms. Song’s matrimonial home; they bought it together; he contributed a $67,000.00 deposit towards its purchase; they paid its expenses together; he took on more responsibility for maintaining the Property than Ms. Song once she moved to Edmonton in 2016; and he has paid the expenses of the home since Ms. Song’s death.
40The Respondent submits that he has a priority to possess the Property and, as the spouse of Ms. Song, the law gives him the right to live in the Property.
ANALYSIS
(a) Should the Applicants be granted leave to issue a writ of possession regarding the Property?
41The Applicants seek an order granting them leave to issue a writ of possession regarding the Property.
42Only a party who has a right of exclusive possession to the property at issue is entitled to be granted leave to issue a writ of possession. Section 60.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 applies to the granting of such writs. It reads:
60.10 (1) A writ of possession (Form 60C) may be issued only with leave of the court, obtained on motion without notice or at the time an order entitling a party to possession is made.
(2) The court may grant leave to issue a writ of possession only where it is satisfied that all persons in actual possession of any part of the land have received sufficient notice of the proceeding in which the order was obtained to have enabled them to apply to the court for relief.
43Here, there has not yet been any court determination or order made that the Applicants are entitled to exclusive possession of the Property. Accordingly, this court has no authority to grant leave to issue a writ of possession regarding same. The Applicants have not formally requested an order or judgment for exclusive possession of the Property in the Notice of Application.
44Given that the Respondent and Ms. Song were still legally married at the time of her death and given that the Respondent claims that the Property is a “matrimonial home”, in my view, the provisions of the Family Law Act, R.S.O. 1990, c. F.3 (“the FLA”) apply in the circumstances of this case, and an application needs to be made under that legislation respecting who has the right to possession of the Property.
45When a spouse dies, the estate trustee steps in as the legal representative of the deceased. However, the surviving spouse, if residing in the matrimonial home, often has significant rights under family law legislation to stay in the home, even if it is left to a child or other beneficiary in the will of the deceased spouse. Exclusive possession of a matrimonial home is not granted automatically and requires a court order. An estate trustee or a surviving spouse seeking exclusive possession must file an application with the court seeking that relief. The court must then make a determination on the application based on the evidence that is filed by the parties.
46Section 10(1) of the FLA provides for the determination of questions of title between spouses. Section 10(2) states that an application based on subsection (1) may be made by or continued against the estate of a deceased spouse.
47Pursuant to s. 14(a) of the Act, the presumption of resulting trust applies in all disputes concerning property ownership between spouses, unless they hold the property as joint tenants in which case there is a rebuttable presumption in favour of joint tenancy.
48Section 28(1) of the FLA states that “Part II – Matrimonial Home” of the Act applies to matrimonial homes that are situated in Ontario. A “matrimonial home” is described in s. 18(1) of the Act as follows:
18 (1) Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.
49Pursuant to s. 19(1) of the FLA, both spouses have an equal right to possession of the matrimonial home. Thus, each spouse, regardless of title, has a possessory right to the matrimonial home. However, s. 19(2) provides that, where title is in the name of one spouse alone, the other spouse’s right of possession is personal as against the titled spouse and ends when they cease to be spouses, unless a separation agreement or court order specifies otherwise.
50Section 21 of the Act deals with the disposition and encumbrance of a matrimonial home,
51Section 24 of the FLA provides for the granting of orders, on application, respecting possession of a matrimonial home regardless of titled ownership.
52There is also a limited right of possession following the death of the other spouse set out in s. 26(2) of the FLA. That section provides that an untitled spouse in possession of a matrimonial home may continue to occupy the home rent free for sixty (60) days after the other spouse dies. While the Applicants rely on s. 26(2) of the FLA in support of their argument that the Respondent’s 60-day entitlement period has passed and he no longer has any right to reside in the Property, I do not read s. 26(2) in that manner. Rather, it seems to me that it is only the Respondent’s right to reside in the Property rent free that has expired. As the court held in Luyks v. Luyks, 1998 14824 (ON SC), 158 D.L.R. (4th) 188 (Ont.Ct.(Gen.Div.)), at paras. 22-23:
22 There is nothing in the Family Law Act that says that the spouse’s right to continue in the matrimonial home terminates upon death.
23 Section 26(2) of the Family Law Act refers to the obligation to pay rent, nothing more.
53Since no court order has been made granting exclusive possession of the Property to the Applicants, this court is unable to grant leave for the issuance of a writ of possession as sought.
(b) Should the Respondent pay occupation rent to the Estate from the date of Ms. Song’s death to the application hearing date?
54The Applicants seek an order that the Respondent pay occupation rent to the Estate from the date of their mother’s death to the date this application was heard.
55Occupation rent refers to compensation by an individual who has exclusive use of a property paid to another, who has a right of possession, for loss of access or use of the property. It is generally ordered on the basis of fairness and to assist in an equitable division of assets.
56A court cannot determine the occupation rent issue until a decision has been made in relation to ownership and/or possession of the Property. If the Respondent is found to have an equitable or beneficial interest in the Property or a right of possession, then that may affect whether he is ordered to pay occupation rent to the Estate and, if so ordered, in what quantum. A determination regarding occupation rent is often made in the same proceeding as possession of a matrimonial home.
57Accordingly, I dismiss the Applicants’ claim for occupation rent made in this application.
(c) Should the Respondent pay damages to the Estate for physical damage to the Property?
58I dismiss the Applicants’ claim for damages made in this application, since there has not yet been any court order made on ownership and/or possession of the Property.
(d) Should vacant possession of the Property be ordered?
59I dismiss the Applicants’ claim for vacant possession made in this application, since there has not yet been any court order made on ownership and/or possession of the Property.
DISPOSITION
60For all these reasons, the application is dismissed.
61Strictly as an aside, it is noted that the Property was purchased for the price of $221,500.00. The principal amount of the mortgage obtained by Ms. Song from CIBC to purchase the Property was $62,569.00. Given the mortgage value of $62,569.00, the evidence of the Applicants and the Respondent that Ms. Song contributed approximately $93,000.00 as a deposit, and if the Respondent’s evidence was accepted (which is not being determined by me) that he contributed $67,000.00 as a deposit, these three amounts total $222,569.00, a sum that approximates the purchase price of the Property.
COSTS
62I would urge the parties to agree on costs. If they are unable to do so, then costs submissions may be made as follows and submitted to the Sopinka Judicial Assistants to my attention:
(a) By March 19th, 2026, the Respondent shall serve and file his written costs submissions, not to exceed three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers; and
(b) The Applicants shall serve and file their responding costs submissions of no more than three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers, by April 2nd, 2026; and
(c) The Respondent’s reply submissions, if any, are to be served and filed by April 9th, 2026 and are not to exceed two pages.
(d) If no submissions are received by April 9th, 2026, the parties will be deemed to have resolved the issue of the costs and costs will not be determined by me.
63If the parties are able to settle the question of costs or if a party does not intend to deliver submissions, the parties/counsel are requested to advise the court accordingly.
MacNEIL J.
Released: March 5, 2026