COURT ORDERS APPLICANT TO VACATE CONDO AND PAY OCCUPATION RENT AFTER DISPUTED CLAIM OF RENT-FREE PROMISE

In December 2023, Charles Herbert Officer passed away at age 48 without a will, leaving behind his three-year-old son (the sole beneficiary) and his 85-year-old mother, Ionie Agatha Officer. Alice Snaden, the child’s mother and the respondent, filed a motion against the applicant (Ionie) seeking to evict her from the condo in Toronto, where she had been living since December 2021. The respondent claimed that the applicant had no right to stay, while the applicant asserted that Charles had verbally promised her that she could live rent-free in the condo for life.

The deceased had purchased the condo in 2015 and, after moving out in 2021, transferred ownership to both himself and Alice for refinancing purposes. In 2021, Ionie moved in, claiming that Charles had allowed her to live rent-free, though the respondent disagreed with this and stated the deceased had considered asking Ionie to pay rent. Following Charles’ death, Alice became the condo’s sole owner and was unable to afford the mortgage, requesting that Ionie vacate.

The applicant claimed dependency and sought legal relief, arguing that she had contributed financially to the condo’s purchase and that she would have been homeless if evicted, due to her limited income from an old age pension. Alice made repeated requests for Ionie to leave, offering mediation, but the applicant did not respond or agree to the conditions. The applicant’s claim included that Charles had intended to remove Alice’s name from the condo title before his death. There was no written evidence to confirm the applicant’s claims about the deceased’s promises.

Position of the Parties:

The respondent argued that the applicant’s claim about the deceased’s promise for her to live in the condo rent-free was inadmissible under section 13 of the Evidence Act because it was not supported by corroborating evidence. The respondent asserted that the applicant was trespassing by staying in the condo and requested a writ of possession, along with occupation rent from December 1, 2023.

The applicant countered by stating that she was never asked for rent and that there was no formal tenancy agreement. She claimed that the deceased intended to care for her and promised she could live in the condo rent-free for life. The applicant argued that it would have been unfair and unjust to require her to vacate the condo. She also claimed to be a “dependant” under the Succession Law Reform Act (SLRA), seeking support through the provisions of section 63(1) of the SLRA. However, the court agreed with the respondent’s argument that the SLRA’s dependant relief provisions did not apply, as the condo passed to the respondent by right of survivorship and was not part of the deceased’s estate. The applicant further contended that it would have been unfair to require her to pay rent to the respondent since December 1.

Court Decision:

The respondent argued that the applicant’s claim regarding the deceased’s promise for her to live in the condo rent-free was inadmissible under section 13 of the Evidence Act because it lacked corroboration. This section prevents a party from obtaining a verdict or judgment based solely on their own evidence in matters involving a deceased person, unless corroborated by other evidence.

However, the court concluded that section 13 did not apply in this case, as the condo was not part of the deceased’s estate. The case was not about the estate, but rather about a dispute between the applicant and the respondent, the sole owner of the condo. Therefore, the court determined that section 13 of the Evidence Act was irrelevant here.

The applicant’s testimony about the deceased’s promise was considered hearsay. The court applied the principles from R. v. Mapara, which require hearsay to be either admissible under a traditional exception or to meet certain reliability and necessity criteria.

While the court recognized that the necessity of the evidence was established (since the deceased had passed), it found the evidence unreliable because the applicant had a potential motive to lie. Additionally, there was no corroborating evidence to support the applicant’s claim. The fact that the deceased allowed the applicant to stay rent-free did not prove the alleged long-term promise. The court expected such an important promise to have been documented or communicated to the respondent. The applicant’s claim lacked sufficient credibility and evidence, so the court did not admit it.

Even assuming the deceased had made a promise, the court found that it did not create a legal entitlement for the applicant to stay in the condo indefinitely. There was no formal agreement or consideration (i.e., something of value given in return), which is necessary for such a promise to be legally enforceable.

The court emphasized that the respondent, as the sole owner of the condo, was entitled to take possession of the property. However, it granted the applicant time (until February 28, 2025) to vacate the condo, recognizing her need to find alternative accommodation.

The court considered whether the applicant owed occupation rent for staying in the condo without a lease. It referenced the case of Dagarsho Holdings Ltd. v. Bluestone, which outlines that occupation rent is an equitable remedy. Rent can be implied in situations where a person occupies property without a lease, unless there is evidence that the parties intended for the occupation to be without compensation.

The court concluded that up until July 1, 2024, both the applicant and respondent likely intended the applicant’s occupation to be rent-free. However, after that date, the respondent made it clear that she could no longer afford to support the applicant, meaning the presumption of rent-free occupation no longer applied.

The court determined that the applicant should pay occupation rent of $2,200 per month starting July 1, 2024, based on the market rental value of the condo, and awarded compensation for the respondent’s mortgage payments and condo fees.

Conclusion:

The applicant was ordered to vacate the condo by February 28, 2025.

The applicant was required to pay occupation rent at $2,200 per month from July 1, 2024, until she vacated the condo.

The court also ordered that the applicant leave behind any personal property that did not belong to her.

CASE: Officer v. The Estate of Charles Herbert Officer, 2024 ONSC 6029