CITATION: The Estate of Sean Craddock et al. v. Daviau, 2026 ONSC 4881

COURT FILE NO.: CV-25-98520; CV-25-101242

DATE: 2026/08/26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Estate of Sean Craddock et al., Applicant/Respondent

-and-

Jacob Ariel Daviau, Respondent/Applicant

BEFORE: Justice K.A. Jensen

COUNSEL: Jeremy Rubenstein and Gabrielle Parsons, Counsel, for the Applicant/Respondent

No Counsel, for the Respondent/Applicant

HEARD: July 8 and July 17, 2026

ENDORSEMENT

I. ​Overview

[1] These applications arise from the administration of the Estate of Sean Craddock and concern the property municipally known as 13 Malcolm Place, Ottawa, Ontario (the "Property"). The Property forms part of the residue of the Estate and is its principal asset. The applications engage the Estate Trustee's authority to administer and sell that asset and Jacob Daviau’s claim that the sale should not proceed at this time.

[2] In Application CV-25-00098520-0000, the Estate Trustee seeks vacant possession of the Property, occupation rent, reimbursement of carrying costs incurred after August 1, 2024, leave to issue a writ of possession, and costs.

[3] In Application CV-25-00101242-0000, Jacob seeks, among other relief, an order preventing the sale of the Property pending the determination of other litigation involving the Estate, a certificate of pending litigation, various orders respecting the administration of the Estate, and relief recognizing what he says is an entitlement to remain in or acquire an interest in the Property.

[4] The applications were heard together because they arise out of the same factual circumstances, concern the same property, and involve overlapping issues relating to the administration of the Estate.

[5] For the reasons that follow, the Estate's application is granted substantially on the terms set out below. Jacob's application is dismissed. The Estate Trustee has established his authority to sell the Property and to obtain vacant possession. Jacob has not established a legal basis to prevent the sale, to obtain a certificate of pending litigation, or to obtain any proprietary interest in the Property.

II. ​Background

[6] Sean Craddock died on September 25, 2022. He was survived by his biological son, Jacob Daviau, and by his stepsons, Scott Craddock and Joshua Daviau. Francis Trent William Craddock, Sean's younger brother, was named as Estate Trustee in Sean's Will dated September 9, 2022. A Certificate of Appointment of Estate Trustee with a Will was issued to him on May 10, 2023.

[7] At the time of his death, Sean owned the property municipally known as 13 Malcolm Place, Ottawa, Ontario (the "Property"), which had been his principal residence and was the largest asset of the Estate. The Will did not specifically devise the Property to any beneficiary, nor did it grant any beneficiary a life interest or right of occupation in the Property. Instead, the residue of the Estate was divided among Sean's three children in accordance with the terms of the Will.

[8] Scott Craddock resided at the Property continuously from approximately 2007 until August 1, 2024. Jacob Daviau resided at the Property for relatively brief periods in approximately 2010 and again in 2012, before moving elsewhere for approximately a decade. After 2012, Jacob did not reside at the Property until after Sean's death in September 2022.

[9] Following Sean's death, Trent Craddock permitted Jacob to move into the Property on a temporary basis while he commenced the administration of the Estate. At that time, Scott Craddock continued to reside at the Property as well. Although Jacob states in his affidavit that he resided at 13 Malcolm Place, Ottawa, under various arrangements for approximately seven years, including during Sean's terminal illness and after his passing on September 25, 2022, I find that Jacob only lived at the Property on a full-time basis after Sean’s death.

[10] In January 2023, litigation was commenced against the Estate by Debbie Craddock. Among other relief, she later advanced a dependant support claim against the Estate. The parties agree that this litigation remains unresolved.

[11] Following discussions concerning the administration of the Estate and the possible sale of the Property, an agreement was reached in the Spring of 2024 among the Estate Trustee and the beneficiaries. Under that agreement, the beneficiaries were given a final opportunity to purchase the Property at fair market value. Failing that, the Property would be listed for sale, and the occupants were required to vacate by August 1, 2024. The agreement also provided for interim distributions to the beneficiaries. Debbie Craddock subsequently consented to the proposed arrangement.

[12] On June 28, 2024, the Estate's solicitor circulated an appraisal of the Property to the beneficiaries for the purposes of any proposed purchase. None of the beneficiaries submitted an offer to purchase the Property by the August 1, 2024 deadline.

[13] Scott Craddock vacated the Property on or before August 1, 2024, in accordance with the agreement. Jacob Daviau did not. He accepted the interim distribution provided under the agreement but remained in possession of the Property and continues to reside there.

[14] As a result, the Estate has been unable to proceed with the sale of the Property. The Estate Trustee maintains that the Property must be sold both to complete the administration of the Estate and to provide liquidity for the Estate. Jacob Daviau opposes the sale and seeks orders permitting him to remain in possession and ultimately acquire the Property.

III. ​Preliminary Issues

A. The Proposed Inspection Report

[15] During closing submissions, Jacob sought leave to file a home inspection report concerning the condition of the Property and its impact on value and rental value.

[16] The request was made after the evidentiary portion of the hearing had concluded and the matter was effectively at the end of the hearing. Counsel for the Estate objected to the filing of the report.

[17] Jacob acknowledged that the report had been obtained in late May 2026 as part of his efforts to purchase the Property. The proposed report was not included in Jacob's application materials, responding materials, or supplementary materials. Nor was it attached to an affidavit or otherwise placed before the court in a manner that would have permitted the Estate to test its contents through cross-examination.

[18] The issues to which the report was said to relate were not new. The value and condition of the Property had been live issues throughout the litigation. The Estate had relied on appraisal evidence concerning the Property's value and had sought occupation rent from the commencement of its application. Jacob had long been aware that the Estate was seeking occupation rent and that the value and condition of the Property could therefore be relevant considerations.

[19] I was not persuaded by Jacob's explanation that he did not appreciate earlier that the report might be required. The report had been in his possession well before the hearing and he had ample opportunity to place it before the court in accordance with the Rules and the schedules previously established for the exchange of evidence.

[20] In the circumstances, I declined to reopen the evidentiary record. The issue was not the potential relevance of the report. Rather, the issue was its lateness. Admitting the report at that stage would have been procedurally unfair to the Estate, which had conducted the hearing on the basis of the existing evidentiary record and had not been afforded any meaningful opportunity to respond to or test the proposed evidence. It would also have undermined the orderly and efficient conduct of the proceeding. Accordingly, the inspection report was not admitted into evidence, and I have not considered it in determining the issues before me.

B. Alleged Trustee Removal Proceeding

[21] During his submissions, Jacob referred to a separate proceeding in which, according to him, Trent Craddock had sought to be removed or discharged as Estate Trustee. No materials from any such proceeding were filed in evidence before me. Counsel for the Estate advised that she was not counsel in that matter and had no instructions concerning it. Jacob further confirmed that he was not seeking the removal of the Estate Trustee in these applications.

[22] In the absence of admissible evidence and given that no relief concerning the removal of the Estate Trustee was sought before me, I have not considered those allegations in determining the issues raised by these applications. My decision is based solely on the evidentiary record properly before the court.

C. Allegations Regarding Debbie Craddock

[23] A significant portion of Jacob's submissions focused on allegations concerning Debbie Ross/Craddock. He asserted that she had exerted improper influence over the Estate Trustee, had attempted to interfere with his efforts to purchase the Property, and had otherwise acted improperly toward him. He expressly stated that he was not asking the court to make findings of criminal liability against Ms. Craddock but submitted that her conduct was relevant to the administration of the Estate and the decision to sell the Property.

[24] The allegations concerning Ms. Ross/Craddock were not properly before me for determination. She was not a party to these applications, and the alleged conduct was not the subject of admissible evidence capable of adjudication in this proceeding. To the extent that such allegations were advanced, I have not relied on them in determining the issues before me. The issues before the court concern the Estate Trustee's authority to administer and sell the Property and Jacob's asserted entitlement to remain in possession of it.

IV. ​Jacob’s Application

A. Does Jacob Have an Interest in the Property?

[25] Jacob's application is premised on the proposition that he possesses sufficient legal or equitable interest in 13 Malcolm Place to justify continued occupation of the Property and to prevent the Estate Trustee from proceeding with its sale. I am unable to accept that proposition.

[26] The starting point is Sean Craddock's Will. The Will does not devise the Property to Jacob. Nor does it confer upon him a life interest, right of occupation, trust interest or any other proprietary interest in the Property. Rather, the Property forms part of the residue of the Estate. Jacob's interest arises solely from his status as a residual beneficiary.

[27] Jacob acknowledges that he is not challenging the validity of the Will and does not seek a declaration that the Will created a formal life interest in his favour. Instead, he relies heavily upon evidence that Sean allegedly expressed wishes that the Property remain in the family and that Jacob and his daughter, Brooke-Lynne, maintain a connection to it. He submits that those wishes, together with the surrounding circumstances, support equitable relief preventing the sale of the Property.

[28] I do not accept that those alleged statements are capable of creating a legal interest in the Property. The fundamental purpose of the law of wills is to give effect to the testamentary intentions expressed by the testator in the Will itself. In Robinson Estate v. Robinson, 2011 ONCA 493, the Court of Appeal confirmed that "the court must determine the testator's intention from the words used in the will, and not from direct extrinsic evidence of intent" (at para. 23). The Court further explained that evidence from beneficiaries and third parties concerning what a testator allegedly intended is generally inadmissible because admitting such evidence would create uncertainty and increase estate litigation (at para. 27).

[29] Even accepting, for the sake of argument, that Sean expressed a desire that the Property remain connected to Jacob and Brooke-Lynne, those statements cannot alter the legal effect of the Will. Sean's testamentary intentions must be determined from the Will he executed, not from subsequent evidence of conversations attributed to him. The Will contains no provision granting Jacob a right to occupy the Property and no provision requiring that it remain within the family.

[30] Jacob further submits that the Will does not require the immediate sale of the Property and that the Estate Trustee possesses broad discretion regarding the timing and manner of administration. I accept that submission. The Will does not mandate an immediate sale. However, that does not advance Jacob's claim to an interest in the Property. The issue before the court is not whether the Trustee must sell the Property immediately. The issue is whether Jacob possesses a legal entitlement capable of preventing the Estate Trustee from exercising the authority conferred upon him by the Will and by statute. The existence of discretion in the Estate Trustee does not create a corresponding proprietary right in favour of a beneficiary.

[31] The statutory framework is inconsistent with Jacob's position. Pursuant to s. 2(1) of the Estates Administration Act, RSO 1990, c E.2, upon Sean's death the Property devolved to and became vested in the Estate Trustee as trustee for those beneficially entitled to the Estate. Section 16 of the Estates Administration Act grants the Estate Trustee the power to dispose of and otherwise deal with that property. These powers are reinforced by s. 17 of the Trustee Act, RSO 1990, c T.23, and by the express power of sale contained in Sean's Will.

[32] As Charney J. observed in Kenney v. Martin, 2024 ONSC 4598, at paras. 21-22, estate property vests in the Estate Trustee, who possesses the authority to take steps to sell the property. A beneficiary's interest is ordinarily an interest in the Estate and its residue, not a right to possess or control a specific estate asset pending administration. The administration and disposition of estate assets fall within the authority of the Estate Trustee.

[33] Jacob repeatedly emphasizes that he is not asserting ownership of the Property. Rather, he seeks preservation-oriented relief and maintenance of the status quo. That concession is significant. The absence of a claim to ownership, a life interest, a trust interest, or other recognized proprietary entitlement reinforces the conclusion that Jacob has not established a legal interest in the Property itself. At most, he asserts an interest in how the Estate should be administered and how the Estate Trustee ought to exercise his discretionary powers.

[34] The decision in Filippelli Estate, 2017 ONSC 4923, is directly applicable. There, a beneficiary remained in occupation of estate property following the deceased's death and argued that he should be permitted to continue residing there. Spies J. rejected that position, holding that:

The fact that she did not provide in her Will that Mr. Filippelli be permitted to remain in Goldsboro for any period of time is a complete answer to his defence on this application. (para. 12)

[35] The same reasoning applies here. Sean's Will contains no provision granting Jacob a right to remain at 13 Malcolm Place. Had Sean intended to grant Jacob a life interest, a right of occupation, or any other proprietary entitlement, he could have done so. He did not.

[36] I accept that Jacob relies on evidence concerning his autism diagnosis, Brooke-Lynne's diagnosis, their attachment to the Property, his contributions to the Property, and the hardship that relocation may cause. I further accept that those considerations are relevant to the equitable relief he seeks and to the balance of convenience analysis addressed later in these reasons. However, they do not create a proprietary interest in the Property where none exists under the Will or at law. Ongoing litigation, hardship, disability, family attachment, or a beneficiary's desire to remain in a property do not, without more, displace the Estate Trustee's authority to administer and realize estate assets.

[37] To the extent Jacob relies on Sean's alleged pre-death statements concerning the Property remaining in the family or Jacob and Brooke-Lynne continuing to reside there, I am not satisfied that those statements created any enforceable proprietary interest in the Property. No claim for constructive trust, proprietary estoppel, or any other equitable proprietary remedy was pleaded or established on the record before me. Those alleged statements therefore do not alter the legal effect of the Will or the Estate Trustee's authority to administer and sell the Property.

[38] Accordingly, I find that Jacob has not established:

a) a testamentary gift of the Property;

b) a life interest in the Property;

c) a trust interest in the Property;

d) an express right of occupation granted by the Will;

e) any other proprietary entitlement in the Property.

[39] Jacob's status as a residual beneficiary gives him an economic interest in the Estate. It does not confer a possessory right to a particular estate asset, nor does it entitle him to prevent the Estate Trustee from exercising the statutory and testamentary powers of administration and sale vested in him.

[40] I therefore conclude that Jacob has no legal basis to remain in possession of the Property indefinitely and no legal interest in the Property capable of restraining its sale by the Estate Trustee.

B. Estate Trustee’s Discretion

[41] Jacob submits that, even if he has no proprietary interest in the Property, the court should intervene in the Estate Trustee's decision to sell it. He relies upon the principle that an estate trustee's discretion is subject to curial control and submits that Trent Craddock failed to exercise his discretion fairly and proportionately in the circumstances.

[42] I agree that the discretion of an estate trustee is not unfettered. An estate trustee is a fiduciary and must administer an estate in good faith, fairly as between beneficiaries, and in accordance with the terms of the will and the governing legislation. As the Ontario Court of Appeal explained in Fox v. Fox Estate, 1996 CanLII 779 (ON CA), 28 O.R. (3d) 496, (ONCA); application for leave to appeal dismissed: S.C.C. File No. 25314. S.C.C. Bulletin, 1996, p. 2157, courts are generally reluctant to interfere with the exercise of a trustee's discretion. However, judicial intervention is available where a trustee acts outside the authority conferred by the will, takes into account considerations that should not have been considered, fails to take into account relevant considerations, or otherwise exercises discretion improperly. The focus of the inquiry is the propriety of the trustee's decision-making process rather than whether the court would have made a different decision.

[43] The Court of Appeal further emphasized in Fox that:

Trustees must act in good faith and be fair as between beneficiaries in the exercise of their powers.

[44] In Fox, the Court of Appeal intervened because the trustee treated estate assets as if they were her own, failed to consider the terms of the will, and exercised her discretion for an improper purpose. The present case bears no resemblance to those circumstances. Trent Craddock did not treat the Property as his own. Rather, he sought to administer the Estate, obtained an appraisal, provided the beneficiaries with an opportunity to purchase the Property, entered into the June 2024 agreement, and ultimately determined that the Property should be sold in order to advance the administration of the Estate.

[45] Jacob argues that Trent Craddock should have deferred the sale of the Property, permitted his continued occupation, accommodated Sean's alleged wishes that the Property remain in the family, and pursued other alternatives to an open-market sale. He also points to his autism diagnosis, Brooke-Lynne's diagnosis, the unresolved litigation involving Debbie Craddock, and his efforts to purchase the Property as factors that ought to have led the Estate Trustee to exercise his discretion differently.

[46] I do not accept that those submissions establish a basis for judicial intervention.

[47] The evidence demonstrates that Trent Craddock did not proceed immediately to sale following Sean's death. He permitted Jacob to remain at the Property for an extended period. He gave the beneficiaries the opportunity to purchase the Property before it was listed for sale. He obtained an appraisal of the Property. He negotiated and implemented the June 2024 agreement, which contemplated a beneficiary purchase process before any open-market sale. He delayed pursuing vacant possession even after the August 1, 2024 deadline had passed.

[48] The evidence further establishes that the Estate Trustee ultimately concluded that the Property should be sold in order to advance the administration of the Estate, realize its principal asset, provide liquidity to the Estate, and permit distribution in accordance with the Will. Those are proper considerations for an estate trustee administering an estate.

[49] Unlike the circumstances in Fox, there is no evidence that Trent Craddock acted in bad faith, for an improper purpose, out of personal animus, or on the basis of irrelevant considerations with respect to the sale of the Property. Nor is there evidence that he treated Estate property as though it were his own or failed to appreciate his obligations as Estate Trustee. To the contrary, the evidence demonstrates a sustained effort to administer the Estate, accommodate the beneficiaries, and ultimately carry out the authority conferred upon him by the Will and by statute.

[50] I accept that Jacob disagrees with the Estate Trustee's decision and believes that a different course would have been fairer. However, in Fox the Court of Appeal did not authorize the court to substitute its own view for that of the Estate Trustee merely because another decision could reasonably have been made. The question is whether the Trustee exercised his discretion improperly. On the record before me, I am satisfied that he did not.

[51] Accordingly, I see no basis for judicial intervention in the Estate Trustee's exercise of discretion under the principles articulated in Fox v. Fox Estate.

C. Injunctive Relief

[52] Jacob seeks an order restraining the Estate Trustee from listing, marketing, or selling the Property pending the resolution of other litigation affecting the Estate and pending further consideration of his proposed purchase of the Property. The applicable test is set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC) , [1994] 1 S.C.R. 311. To obtain interlocutory injunctive relief, an applicant must establish: (a) a serious issue to be tried; (b) irreparable harm if the injunction is refused; and (c) that the balance of convenience favours granting the injunction.

Serious Issue to be Tried

[53] For the reasons set out above, I have concluded that Jacob has not established any legal or proprietary interest in the Property, nor is curial intervention warranted. He has not established a testamentary gift, life interest, trust interest, right of occupation, or other proprietary entitlement capable of preventing the Estate Trustee from administering or selling the Property.

[54] Even assuming there is a serious issue concerning aspects of the administration of the Estate, Jacob has not established a serious issue respecting any legal entitlement to remain in the Property or to restrain its sale. The ongoing litigation involving Debbie Craddock, and Jacob's disagreements with decisions made by the Estate Trustee, do not create an interest in land and do not, on the record before me, provide a legal basis for preventing the Estate Trustee from exercising the powers conferred upon him by the Will and by statute.

Irreparable Harm

[55] I accept that the sale of the Property would cause hardship to Jacob. The Property was Sean Craddock's long-time home. Jacob has lived there since shortly after Sean's death and has expressed a strong sentimental attachment to it. I also accept that relocation would be disruptive and that the sale of the Property would eliminate the possibility that Jacob might one day acquire it from the Estate.

[56] However, the harm identified by Jacob arises from the loss of continued occupation of a property in which he has no legal interest. His interest as a residual beneficiary is a financial interest in the Estate, not a proprietary interest in the Property itself. Any financial entitlement he may ultimately establish can be protected through the proceeds of sale and his share of the Estate. As was recognized in Kenney v. Martin, claims relating to the administration of an estate may continue after the sale of estate property, with the proceeds remaining available pending resolution of those claims.

Balance of Convenience

[57] The balance of convenience strongly favours the Estate.

[58] The evidence establishes that the Property has not been sold because Jacob remains in possession. The Estate has incurred continuing carrying costs, the administration of the Estate has been delayed, and the Estate Trustee has been unable to realize the Estate's principal asset. There is also evidence of diminishing liquidity within the Estate and ongoing expenses associated with its administration and litigation. The Estate's ability to complete its administration has therefore been materially impeded.

[59] By contrast, refusing the requested injunction will not prevent Jacob from continuing to advance any claims he may have against the Estate. Those claims can be pursued regardless of whether the Property is sold. What he seeks is not the preservation of a legal interest in land, but the preservation of his continued occupancy of Estate property notwithstanding the Estate Trustee's decision to sell it. In the circumstances, the prejudice to the Estate from continued delay outweighs the prejudice to Jacob from the refusal of injunctive relief.

Conclusion Regarding Injunctive Relief

[60] Jacob has not satisfied the test for interlocutory injunctive relief. His request for an order restraining the Estate Trustee from marketing or selling the Property is therefore dismissed.

D. Certificate of Pending Litigation (CPL)

[61] A certificate of pending litigation is intended to protect a claimed interest in land pending adjudication. The court does not determine at this stage whether the claimant will ultimately succeed. Rather, the question is whether the claim discloses a triable issue respecting an interest in land. Once that threshold is established, the party seeking to discharge the CPL bears the burden of demonstrating that no such triable issue exists: Perruzza v. Spatone, 2010 ONSC 841, at para. 20; 990 Bloor Street West v. Amado, 2026 ONSC 2874, at para. 3.

[62] Jacob's complaints relate to the administration of the Estate, his disagreement with the Estate Trustee's decision to sell the Property, and his desire to remain in or ultimately acquire the Property. For the reasons already given, I am not satisfied that the Estate Trustee's decision is one that attracts curial intervention under Fox v. Fox Estate.

[63] Even accepting those allegations at their highest, they do not disclose a triable issue respecting an interest in land. At most, they raise disputes concerning the administration of the Estate and the exercise of the Estate Trustee's powers. Those disputes can be adjudicated without restricting the Estate Trustee's ability to deal with the Property and do not support the registration of a CPL.

[64] In any event, to the extent Jacob's materials could be said to raise a triable issue respecting an interest in land, I am satisfied that the Estate has demonstrated that no such triable issue exists. The record establishes that Jacob's interest is that of a residual beneficiary and not that of a person holding a proprietary interest in 13 Malcolm Place.

[65] Accordingly, there is no basis for the issuance of a certificate of pending litigation.

E. Other Relief Sought

[66] In addition to injunctive relief and a certificate of pending litigation, Jacob seeks a variety of orders, including orders vesting him with an ownership interest in the Property, appointing him as a joint tenant or co-trustee, directing the manner in which the Estate is administered, preserving personal property located at the residence, and requiring the Estate to provide funds for legal expenses and RESP-related adjustments.

[67] I decline to grant any of that relief.

[68] As discussed above, Jacob has not established any proprietary interest in the Property. He has not established a testamentary gift, life interest, trust interest, or any other legal or equitable entitlement that would justify vesting title in him, making him a joint owner of the Property, or appointing him as a co-trustee of the Estate. Estate property is vested in the Estate Trustee pursuant to ss. 2 and 16 of the Estates Administration Act, and the administration of the Estate remains the responsibility of the Estate Trustee, subject to the court's supervisory jurisdiction.

[69] Nor am I satisfied that there is any basis upon which the court should remove the authority conferred upon the Estate Trustee by the Will and governing legislation. For the reasons already discussed, I am not satisfied that Trent Craddock has acted in bad faith, for an improper purpose with regard to the potential sale of the Property, or in a manner that would justify judicial intervention under the principles discussed in Fox v. Fox Estate.

[70] With respect to Jacob's request for funding for RESP-related relief, no discernible legal basis for such order was established on this application. That claim is not properly before the court on the evidentiary record that was filed and would, if available at all, require a different factual and legal foundation than that advanced in these proceedings.

[71] To the extent Jacob seeks further directions concerning the administration of the Estate, I am likewise not persuaded that any such directions are necessary. The Estate Trustee is already empowered to administer the Estate in accordance with the Will, the Estates Administration Act, and the Trustee Act. The record does not disclose any basis for the court to assume a supervisory role beyond that already exercised in determining the issues raised by these applications.

[72] Accordingly, all remaining relief sought by Jacob is dismissed.

Conclusion Regarding Jacob’s Application

[73] For all of these reasons, Application CV-25-101242 is dismissed in its entirety. I am not satisfied that the court should grant any of the relief sought by Jacob.

V. ​The Estate’s Application

A. The Trustee’s Authority to Sell

[74] The Estate Trustee seeks authority to proceed with the sale of 13 Malcolm Place as part of the administration of the Estate. In my view, that authority is both clear and well established on the record before the court.

[75] As discussed above, the Property forms part of the residue of the Estate. It was not specifically devised to Jacob or to any other beneficiary. Pursuant to s. 2(1) of the Estates Administration Act, the Property vested in the Estate Trustee upon Sean Craddock's death for the benefit of those entitled to the Estate. Section 16 of the Estates Administration Act further authorizes the Estate Trustee to dispose of and otherwise deal with estate property in the course of administration. Those powers are reinforced by s. 17 of the Trustee Act and by the broad powers expressly conferred upon the Estate Trustee by Sean's Will.

[76] The Will grants the Estate Trustee an express power to sell estate assets, including real property, and further grants him discretion regarding the timing and manner of realizing those assets. The fact that the Will does not require an immediate sale does not mean that the Estate Trustee lacks authority to sell. Rather, it means that the decision falls within the Estate Trustee's discretion, subject to his fiduciary obligations and the court's supervisory jurisdiction. For the reasons already discussed, I am satisfied that Trent Craddock exercised that discretion properly.

[77] Jacob submits that Filippelli Estate and Kenney v. Martin are distinguishable because the present case involves disability-related evidence, a contemplated beneficiary purchase process, unresolved litigation affecting the Estate, valuation disputes, and what he characterizes as “preservation issues” concerning the Property. I accept that the facts are not identical. However, those differences do not undermine the principles established by those decisions.

[78] In Filippelli Estate, the court rejected the argument that a beneficiary could continue occupying estate property where the will conferred no right to remain there, holding that the absence of such a provision in the will was a "complete answer" to the beneficiary's position. The decision confirms that estate trustees must be permitted to administer and realize estate assets notwithstanding hardship or personal circumstances advanced by an occupying beneficiary.

[79] Similarly, in Kenney v. Martin, the respondent had lived in the property for his entire life, argued that there was no urgency to sell, and had commenced a dependant support proceeding. Nevertheless, the court held that the property vested in the estate trustee and that the trustee was entitled to take steps to sell it for the purpose of administering the estate. The court further held that any ongoing claims could be protected through the sale proceeds pending their resolution.

[80] I recognize that Kenney resulted in a delayed possession date and that the court described the outcome as a compromise. However, the principle applied in Kenney remains directly relevant. Ongoing litigation, hardship, and a beneficiary's desire to remain in a property do not, without more, displace the estate trustee's authority to administer and realize estate assets.

[81] Nor do I accept Jacob's submission that the existence of a proposed beneficiary purchase process somehow limits the Estate Trustee's authority to proceed with a sale. The evidence establishes that beneficiaries were given an opportunity to purchase the Property, that an appraisal was obtained for that purpose, and that no purchase was completed. The fact that the Estate Trustee attempted to facilitate a beneficiary purchase before proceeding to a sale supports, rather than undermines, the reasonableness of his conduct.

[82] I have also considered the evidence concerning Jacob's personal circumstances, his autism diagnosis, Brooke-Lynne's diagnosis, their attachment to the Property, and Sean's alleged wishes concerning the Property. Those considerations are relevant to the court's assessment of the relief sought. However, they do not alter the Estate Trustee's legal authority to administer the Estate in accordance with the Will and applicable legislation.

[83] Accordingly, I find that the Estate Trustee has the authority to realize the Estate's assets, including the Property. The proposed sale is consistent with the proper administration of the Estate and with the powers conferred upon the Estate Trustee by statute and by the Will. As I have already found, Jacob has no entitlement to remain in the Property indefinitely or to prevent its sale.

B. Vacant Possession

[84] The Estate seeks vacant possession of the Property in order to complete the administration of the Estate and proceed with its sale.

[85] The evidence establishes that, following discussions among the beneficiaries and the Estate Trustee, an agreement was reached in the spring of 2024 pursuant to which the beneficiaries would be provided with a final opportunity to purchase the Property before it was exposed to the open market. The agreement further contemplated that the Property would be vacated by August 1, 2024, if no purchase was completed. Scott Craddock complied with that agreement and vacated the Property. Jacob did not. He remained in possession after August 1, 2024, and continues to occupy the Property.

[86] I find that, as of the summer of 2024, the parties understood that the Estate intended to proceed with a sale of the Property if no beneficiary purchase materialized. That is precisely what the Estate Trustee attempted to do. However, because Jacob remained in possession, the Property has not been sold and the administration of the Estate has been delayed. The Estate Trustee has therefore been unable to realize the Estate's principal asset and proceed with distribution in accordance with the Will. In addition, the Estate is experiencing a rapidly approaching liquidity problem.

[87] I have considered Jacob's submission that he is not a conventional "overholding beneficiary." He emphasizes his historical connection to the Property, the fact that he was permitted to remain there following Sean's death, the contemplated beneficiary purchase process, the unresolved litigation affecting the Estate, his personal circumstances, and the contributions he says he has made toward maintaining the Property. I accept that the factual circumstances here are not identical to those considered in Filippelli Estate or Kenney v. Martin. I further accept that Jacob did not enter the Property as a trespasser and that his occupation initially occurred with the Estate Trustee's consent.

[88] However, those circumstances do not alter the essential fact that Jacob agreed to vacate the Property by August 1, 2024, if a purchase was not completed and that he did not do so. Nor do they alter the Estate Trustee's authority to administer and realize Estate assets. The issues relied upon by Jacob have all been considered elsewhere in these reasons. None provides a legal basis for continued occupation of Estate property.

[89] While the court is sympathetic to the personal circumstances raised by Jacob, those circumstances do not create a legal entitlement to continued occupation of Estate property. As Filippelli Estate and Kenney v. Martin demonstrate, an estate trustee's authority to administer and realize estate assets is not displaced simply because a beneficiary wishes to remain in possession of the property or because doing so would avoid hardship.

[90] In all of the circumstances, I am satisfied that vacant possession is necessary to permit the Estate Trustee to carry out his duties and complete the administration of the Estate. The Estate's request for vacant possession is therefore granted.

[91] While I have concluded that the Estate Trustee is entitled to vacant possession, I am not persuaded that possession should be delivered within the 30-day period requested by the Estate. Jacob has resided at the Property for an extended period, there is evidence that his daughter maintains a connection to the residence, and the record indicates that additional occupants may presently reside there. Relocation will therefore require a reasonable period of time.

[92] At the same time, I cannot ignore that Jacob agreed to vacate the Property by August 1, 2024 if a beneficiary purchase was not completed. No purchase was completed, yet he has remained in occupation for almost two years beyond that agreed date. His continued occupation has delayed the sale of the Property and contributed to the Estate's increasingly precarious financial position by preventing the realization of its principal asset while carrying costs continue to accumulate.

[93] Balancing those considerations, I conclude that 60 days provides a reasonable opportunity for Jacob to make alternative living arrangements while also recognizing the Estate Trustee's obligation to proceed with the administration of the Estate without further unnecessary delay. Accordingly, vacant possession shall be delivered within 60 days of the date of this order.

C. Occupation Rent

Entitlement

[94] The Estate seeks occupation rent for the period commencing August 1, 2024.

[95] Occupation rent is an equitable remedy. It is often described as being akin to a claim for unjust enrichment where one party has had the exclusive use and benefit of property while others with an interest in that property have been deprived of its use or value. In Filippelli Estate, Spies J. adopted the reasoning in Bergmann v. McMahon, 2010 ONSC 993, at paras. 37-39, that occupation rent is grounded in equitable principles and may be awarded where an occupying beneficiary has enjoyed the use of estate property to the detriment of the estate and other beneficiaries. The court therefore ordered occupation rent for the entire period during which the beneficiary remained in possession following the deceased's death.

[96] Similarly in Officer v Estate of Officer, 2024 ONSC 6029, at paragraphs 29-31, the court recognized the availability of occupation rent where one person continues to occupy estate property without compensating the estate. The same principles were recognized in Broos v. Broos, 2009 CanLII 68463 (Ont. S.C.), at paras. 5 and 15, where a beneficiary who continued to occupy estate property without compensating the estate was found to have benefited to the detriment of the estate and other beneficiaries.

[97] Having considered all of the circumstances, I am satisfied that an award of occupation rent is appropriate in this case.

[98] First, Jacob remained in possession of the Property after August 1, 2024, notwithstanding the agreement reached among the beneficiaries and the Estate Trustee. As discussed above, that agreement contemplated either the completion of a beneficiary purchase or the marketing and sale of the Property. Neither occurred because Jacob continued to occupy the Property.

[99] Second, Jacob received the full benefit of occupying the Property without paying rent. During that same period, the Estate was deprived of the opportunity to sell the Property and realize its value for the benefit of all beneficiaries.

[100] Third, the Estate's plans for administration were materially delayed as a result of the continued occupation. The Property is the Estate's principal asset. The inability to proceed with a sale has impeded the administration of the Estate and delayed distributions to the beneficiaries.

[101] Fourth, the period of occupation has been lengthy. By the time of the hearing, Jacob had remained in possession for approximately twenty months following the agreed vacancy date without paying rent to the Estate.

[102] I have considered Jacob's submission that occupation rent should be refused because his occupation occurred within the context of ongoing family negotiations, a contemplated purchase process, unresolved litigation, disability-related circumstances, and his efforts to preserve and maintain the Property. I accept that these considerations distinguish this case from some conventional occupation-rent cases and are relevant to the exercise of the court's discretion.

[103] However, they do not outweigh the factors favouring an award. Regardless of the circumstances surrounding Jacob's occupation, he continued to receive the benefit of residing in the Property while the Estate was unable to deal with its principal asset as intended. Moreover, any efforts by Jacob to maintain, monitor, heat, ventilate, or secure the Property are more appropriately considered in relation to the Estate's claim for carrying costs than as a complete answer to a claim for occupation rent.

[104] I also do not accept the submission that the June 2024 agreement should be disregarded merely because it arose in a difficult family context. While Jacob did not obtain independent legal advice, the agreement remains important evidence that all parties understood that the Estate intended to proceed with a sale if a beneficiary purchase was not completed. The agreement is not the sole basis for the occupation-rent claim, but it is relevant context when assessing the equities.

[105] In all of the circumstances, I am satisfied that it is reasonable and equitable to award occupation rent.

Amount

[106] The Estate relies upon the evidence of Anna Turner, an experienced real estate professional in the Ottawa market, who opined that the fair market rental value of the Property is $2,900 per month.

[107] I accept Ms. Turner's evidence.

[108] No competing expert evidence concerning market rental value was filed. The inspection report upon which Jacob sought to rely was not admitted into evidence for the reasons already discussed. Further, correspondence between Ms. Turner and counsel for the Estate obtained during the hearing clarified that Ms. Turner’s rental valuation did not include utilities.

[109] Jacob challenged the valuation indirectly by asserting that certain aspects of the Property were in poor condition and that the Property could not command the rent suggested by Ms. Turner. However, there is no admissible expert evidence before me supporting an alternative rental value, and I am left only with Ms. Turner's uncontradicted opinion.

[110] Accordingly, I fix fair occupation rent at $2,900 per month.

[111] The total amount owing shall be calculated from August 1, 2024 to the date vacant possession is delivered.

D. Carrying Costs

[112] The Estate also seeks reimbursement of carrying costs incurred after August 1, 2024.

The Revised Calculations

[113] A significant portion of the dispute originally concerned the accuracy of the Estate's calculations. Jacob asserted that some invoices included prior balances, duplicate charges, late-payment fees, reminder notices, interest charges, and other amounts that should not properly be attributed to him.

[114] Following the first day of the hearing, the Estate filed revised calculations addressing those concerns. The revised calculations expressly removed various late-payment charges and interest charges and corrected a number of accounting concerns identified by Jacob. The revised evidence also prorated certain charges to ensure that only the period following August 1, 2024, was included.

[115] Most significantly, when asked whether the revised calculations addressed the concerns he had raised, Jacob responded: "I do believe so, Your Honour."

[116] I take that response as an acknowledgement that the Estate substantially resolved the issues relating to duplication, prior balances, late fees, penalties, and calculation methodology. I therefore accept the revised calculations as accurately reflecting the underlying expenses incurred by the Estate.

Entitlement

[117] The remaining dispute is not principally about arithmetic. It concerns whether the expenses claimed by the Estate should properly be borne by Jacob.

[118] The Estate submits that all of the claimed expenses flowed from Jacob's continued occupation of the Property. Its position is that, had Jacob vacated the Property on August 1, 2024 as contemplated, the Property would have been listed for sale, sold, and the Estate would not have continued incurring the costs associated with holding it.

[119] Jacob submits that many of the expenses are ordinary costs of ownership rather than costs caused by his occupation. He argues that expenses such as property taxes and insurance would have been incurred by the Estate regardless of whether he remained in possession.

[120] I accept that Jacob's continued occupation materially delayed the Estate's ability to market and sell the Property. The evidence establishes that the Estate intended to proceed with a sale after August 1, 2024, if no beneficiary purchase was completed, that Scott Craddock vacated the Property in accordance with that plan, and that Jacob did not. As a result, the sale process was delayed, and the administration of the Estate was impeded.

[121] However, I do not accept that every expense incurred after August 1, 2024 should automatically be characterized as a loss caused by Jacob's occupation.

[122] In my view, a distinction must be drawn between expenses arising directly from the continued use and occupation of the Property and expenses that are more accurately characterized as ordinary incidents of ownership.

[123] The utility-related expenses fall into the former category. The revised calculations include substantial charges for hydro, gas, water, and related services. Those charges were incurred because the Property continued to be occupied and used. The water invoices in particular reflect significant consumption well beyond what would ordinarily be associated with a vacant property. These expenses are directly attributable to the continued occupation of the Property and are properly recoverable.

[124] Property taxes stand on a different footing. Taxes are an incident of ownership. They would have been payable whether the Property was occupied, vacant, or listed for sale. In any event, Estate counsel expressly conceded that if occupation rent and carrying costs were both awarded, property taxes would be borne by the Estate.

[125] I reach a similar conclusion with respect to insurance. Insurance protects the Estate's ownership interest in the Property and benefits all beneficiaries. Although the Estate argues that insurance would not have continued indefinitely had the Property been sold as intended, the evidence does not establish with any certainty when a sale would have occurred even if vacant possession had been delivered on August 1, 2024. The Estate would inevitably have incurred some insurance costs while preparing, marketing, and closing any sale. In these circumstances, I regard insurance as more accurately characterized as a cost of ownership than a cost directly caused by Jacob's continued occupation. In the exercise of my discretion, I decline to include insurance in the carrying-cost award.

Amount

[126] I therefore allow the following utility-related carrying costs:

Expense

Amount

Hydro Ottawa

$4,795.37

Water

$1,855.32

Enbridge

$1,384.00

Enercare

$240.63

Total

$8,275.32

[127] The following items are not recoverable:

Expense

Amount

Property Taxes

Not claimed, following the Estate's concession

Insurance

$2,032.56 disallowed

[128] Accordingly, the Estate is awarded carrying costs in the amount of $8,275.32, representing the utility and occupancy-related expenses incurred following August 1, 2024.

VI. ​Writ of Possession

[129] The Estate Trustee also seeks leave to issue a writ of possession.

[130] I am not satisfied on the present record that the requirements of Rule 60.10(2) of the Rules of Civil Procedure have been met. The evidence before me indicates that persons other than Jacob may currently be residing at the Property. There is no evidence establishing that all persons in actual possession of the Property received sufficient notice of these proceedings to permit them to seek relief. In these circumstances, it would be premature to grant leave to issue a writ of possession at this time. See: Fisgard Capital II Corp. v. Montgomery, 2022 ONSC 978.

[131] If vacant possession is not delivered in accordance with this order, the Estate Trustee may bring a further motion for leave to issue a writ of possession, supported by evidence addressing the requirements of Rule 60.10.

VII. ​Costs

[132] The Estate seeks its costs of these proceedings. Jacob submits that the court should take into account the broader estate context, including Sean Craddock's wishes, the family circumstances, and the ongoing litigation affecting the Estate.

[133] In estate litigation, the court must first determine whether public policy considerations are engaged. If they are, it may be appropriate to order that some or all of the parties' reasonable costs be borne by the estate. If they are not, the court applies the ordinary costs principles under s. 131 of the Courts of Justice Act and r. 57.01 of the Rules of Civil Procedure, pursuant to which costs generally follow the event: McGrath v. Joy, 2022 ONCA 119, at paras. 92, 94-95.

[134] I am not satisfied that the public policy considerations that sometimes justify estate-funded costs are engaged in this case.

[135] This litigation did not arise because of any ambiguity in Sean Craddock's Will, uncertainty respecting his testamentary intentions, or a need to determine the validity of the Will. The Will clearly provided that the Property formed part of the residue of the Estate and did not grant Jacob a right of occupation, life interest, or other proprietary entitlement. While Jacob relied upon evidence that Sean expressed a wish that he and Brooke-Lynne remain connected to the Property, those alleged statements were not reflected in the Will and did not create uncertainty requiring judicial interpretation.

[136] Nor is this a case in which the conduct of the deceased caused the litigation in the sense contemplated by the authorities dealing with estate-funded costs. The issues before the court arose primarily from Jacob's disagreement with the Estate Trustee's decision to proceed with a sale of the Property and his refusal to vacate after August 1, 2024. These proceedings were adversarial disputes between living parties concerning the administration of the Estate rather than proceedings brought for the benefit of the Estate as a whole.

[137] Accordingly, I conclude that the ordinary costs principles apply.

[138] The Estate does not seek, and this is not a case that would justify substantial indemnity costs. Such awards are reserved for exceptional circumstances involving conduct worthy of sanction or other features taking the case outside the ordinary course. While the litigation was vigorously contested and the parties strongly disagreed on a number of issues, I am not satisfied that Jacob acted in bad faith, abused the court's process, or engaged in conduct warranting elevated cost consequences. He advanced his position genuinely and relied upon what he believed were Sean's wishes concerning the Property. Although I have rejected those arguments, their rejection does not make their assertion improper. In the circumstances, costs should be assessed on the ordinary partial indemnity scale. See Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p. 134, and Davies v. Clarington (Municipality), 2009 ONCA 722, at paras. 28, 29 and 40.

[139] The Estate was substantially successful on both applications. It obtained vacant possession of the Property, dismissal of Jacob's application, dismissal of the requests for injunctive relief and a certificate of pending litigation, and recovery of occupation rent and a substantial portion of the carrying costs sought.

[140] I also take into account that Jacob was self-represented and that some of the concerns he raised regarding the Estate's original carrying-cost calculations proved legitimate. Those concerns resulted in revised calculations and concessions by the Estate. While those matters do not alter the overall result, they are relevant to the quantum of costs.

[141] The Estate filed a Bill of Costs claiming fees, HST and disbursements totaling $19,714.68 on a partial indemnity basis.

[142] Having regard to the factors set out in r. 57.01, including the result achieved, the complexity and importance of the issues, the conduct of the parties, the reasonableness of the time expended, and the fact that the Estate did not succeed on every aspect of its monetary claims, I conclude that the Estate is entitled to its costs on a partial indemnity basis.

[143] I fix the Estate's costs, inclusive of disbursements and HST, in the amount of $16,000, payable by Jacob.

[144] This amount fairly reflects the Estate's substantial success while taking into account the revisions ultimately required to portions of its monetary claims and the legitimate issues raised by Jacob concerning the original carrying-cost calculations.

Justice K.A. Jensen

Date: August 26, 2026

CITATION: The Estate of Sean Craddock v. Daviau, 2026 ONSC 4881

COURT FILE NO.: CV-25-98520; CV-25-101242

DATE: 2026/08/26

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: The Estate of Sean Craddock et al., Applicant/Respondent

-and-

Jacob Ariel Daviau, Respondent/Applicant

COUNSEL: Jeremy Rubenstein and Gabrielle Parsons, Counsel, for the Applicant/Respondent

No Counsel, for the Respondent/Applicant

ENDORSEMENT

Justice K.A. Jensen

Released: August 26, 2026