Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michael Evans and Olympia Trust Company, Plaintiffs
AND:
Kenneth Dunlop and Beth Dunlop, Defendants
BEFORE: Mew J.
COUNSEL: Alexis Dipasquale-Qaqish, for the plaintiffs
Kenneth Dunlop and Beth Dunlop, defendants (litigants in person)
HEARD: 15 April 2026, at Kingston
ENDORSEMENT
1The defendants seek to stay the enforcement of a writ of possession which the plaintiffs obtained on 30 January 2026.
2On 15 April 2026, for brief oral reasons given, with written reasons to follow, I adjourned the defendants' motion for a stay until 29 April 2026 but ordered a temporary stay in the meantime until further order of the court.
3These are my written reasons.
4The plaintiffs provided a mortgage to the defendants over 776 Grouse Crescent, Kingston. The mortgage matured on 17 September 2025. No payments have been received from the defendants since that date.
5On 14 October 2025 the defendants were provided a notice of sale. The principal balance owing was stated to be $189,000. However, with accrued interest, administrative fees, costs and other contractual entitlements, the total claimed as due as at 15 October 2025 is $205,481.25.
6After the defendants failed to respond to the notice of sale, this proceeding was commenced by statement of claim on 24 November 2025. Again, the defendants did not respond. They were, accordingly, noted in default, and on 8 January 2026 default judgment was obtained for a total of $212,101.68 plus costs to be assessed.
7On 30 January 2026, Justice Tranmer ordered the registrar to issue a writ of possession for the subject lands. His order provided that the writ of possession was not to be enforced before 1 April 2026.
8On 18 February 2026, the plaintiffs’ lawyer wrote to the defendants enclosing a copy of the order for a writ of possession. The covering letter informed the defendants that the plaintiffs intended to proceed with enforcement without further notice, but invited them to make contact so that appropriate arrangements could be made for them to vacate the premises and turn over the keys to the sheriff. The letter concluded by inviting the defendants or their lawyer to contact the plaintiffs’ lawyer to discuss any questions they may have.
9On 7 April 2026, the sheriff attended the property at 776 Grouse Crescent and posted notice of its intention to enforce the eviction on 16 April 2026.
10Up to that point, there had been no response by the defendants to any of the notices or communications that had been sent to them concerning their indebtedness to the plaintiffs and enforcement of the mortgage.
11On 8 April 2026, the defendants wrote to the plaintiffs’ lawyer requesting a stay of enforcement. They said that alternative funding which they had been hoping for had not materialised, and that they were in the process of preparing their house for sale. A short stay would allow them the necessary time to complete that process and move forward in a more stable financial position.
12The defendants contacted the trial co-ordinator at Kingston and requested an urgent hearing date for a motion requesting a stay of enforcement of the writ of possession.
13The defendants filed a bare bones affidavit in support of their motion, stating that they were in the process of selling their residential property, that they were working with a realtor for the purpose of preparing and listing the property for sale, and that they were making a good faith request for a temporary stay of proceedings to allow sufficient time to complete the sale of the property.
14The plaintiffs opposed the motion. In the absence of any concerns over the provision of notice or any of the procedural steps that had been taken to date and, in particular, in the absence of any communications from the defendants until the eleventh hour, they say there is no basis upon which the court should exercise its discretion to grant a stay. Mr. Evans explains that as a private individual who invests in mortgages in order to help fund his retirement, he is concerned that there is a serious risk that any further delay in enforcement may result in a loss to his investment and retirement. This is particularly so given the current, as he describes it, “tumultuous and unpredictable time” that the real estate market is going through.
15The defendants obtained an appraisal of the property in December 2025 for $425,000. This is well in excess of the outstanding mortgage obligation, even factoring in accumulating interest and other charges. They ask for the opportunity to have control over the sale process as their interests are to not only satisfy their obligations to the plaintiffs but, also, to maximise their net recovery from the sale of their house.
16I would note that the mortgage provides for an interest rate of 14%.
17With the benefit of hindsight, the defendants acknowledge that they should have been open in their communications with the plaintiffs. Mr. Dunlop lost his job last year. He subsequently lost the use of his vehicle. This not only placed a great deal of strain on the defendants’ income, it also affected their marriage and, indeed, they separated for a while. They were overwhelmed by their financial circumstances and did not disagree with my characterisation that, rather than address those challenges head on, they had put their heads in the sand.
18It would have been preferable if the defendants had come to court with an actual listing agreement for the property. Mr. Dunlop’s evidence is that the property is 90% cleared. It has been the defendants’ home for many years, and the process of clearing it has taken some time.
19Under the circumstances, I decided to adjourn the defendants’ motion for two weeks. A temporary stay of execution will remain in place until further order of the court. In the meantime, for there to be any possibility of the court extending that stay, the defendants will have to adduce evidence of an actual listing agreement and of any sales activity that has occurred. An affidavit from Mr. Beckwith which addresses the sales process and the market value of the property would be helpful.
20The plaintiffs seek their costs of responding to the defendants’ motion and attending court for the hearing of the motion. Given that this motion was brought on the eve of enforcement and that the plaintiffs have an uncontested legal and contractual right to sell the property, I am satisfied that costs should be fixed at a substantial indemnity rate. Those costs amount to $6,599.20 and are payable within 30 days.
21The motion is adjourned until 29 April 2026 at 3:30 p.m. The defendants should attend in person. However, given that the plaintiffs and their lawyers are based in the greater Toronto area, the plaintiffs and their counsel may participate remotely.
Mew J.
Date: 23 April 2026