Occupational Rent and Eviction Ordered for Stubborn Son

Can Adult Children Continue Living in Parents Home?

It is not uncommon that an adult child may still live in their parent’s home. In circumstances where that parents die, it can become uncertain as to whether that adult child can continue residing at that property. In the following case, the deceased’s son refused to vacate the property or make any payments to the Estate during the ten months he continued to reside there after his mother’s death. The court found that there was no juristic reason for the son to have benefited to the detriment of the other beneficiaries. As a result, the court not only ordered him to vacate the property, but also to pay $20,000 to the Estate for unpaid rent.

Re Filippelli Estate, 2017 ONSC 4923

In this case, the deceased’s Estate only consisted of her residential property and personal belongings. Her son, Roberto Filippelli, had been residing in his mother’s home for 10 months after her death and refused to vacate the property or make any payments to the Estate, despite repeated requests to do so. Mr. Filippelli took the position that he was his mother’s tenant and had previously paid his mother rent, therefore the Estate Trustees could not ask for an order evicting him from the property without complying with the Residential Tenancies Act, 2006, SC 2006, c 17.

Landlord/Tenant Relationship

The court did not find sufficient evidence to support Mr. Filippelli’s position and he fell short of satisfying the court that there was a landlord/tenant relationship between him and his mother or the Estate. Instead, it was determined that the relationship between him and his mother was more likely consistent with a mother and son sharing the cost of living expenses. This finding was also supported by the fact that when his mother amended her Will, she was aware of her son’s financial circumstances and living arrangements. Furthermore, even if Mr. Filippelli went on social assistance after the amendment to the Will, his mother would have been aware of this change before her death. “The fact that she did not provide in her Will that Mr. Filippelli be permitted to remain at Goldsboro for any period of time is a complete answer to his defence on this application” (at para 12).


Although Mr. Filippelli expressed that he would suffer a hardship if he were forced to vacate the property, the court determined that the provisions of his mother’s Will were “clear and binding” (at para 16). He’d had ten months of possession of the property beyond the date of his mother’s death, which forced the Estate Trustees to pay ongoing expenses to maintain the property. Furthermore, the delay in obtaining vacant possession of the property may mean that it will not be sold for a much as it could have been during that ten-month period when there had been record home sales and record high prices.

[15] For these reasons the Applicants are entitled to an order that Mr. Filippelli provide vacant possession of the Goldsboro property and that if he does not vacate voluntarily that the Toronto Police Service be authorized to forcibly remove him from the property. In my view, given it has already been ten months since Ida died, Mr. Filippelli should be required to vacate Goldsboro by September 15, 2017. [30 days from the date of judgment]

[20] I agree with the views of Justice Daley in Bergmann v. McMahon, 2010 ONSC 993, at paras. 37-39, that occupation rent is akin to a claim for unjust enrichment. Mr. Filippelli was clearly enriched by being able to occupy Goldsboro and the Applicants were deprived of both the occupancy of and the use of the property as well as rental income that could have been generated from it. There was no juristic reason for the enrichment received by Mr. Filippelli. I note that Daley J. at para. 7 also found that the property taxes represented a liability to the estate.

 [21] Furthermore, as stated by Justice Low in Broos v. Broos, 2009 CanLII 68463 (Ont. S.C.) (at paras. 5 and 15), in a similar fact situation, where she found there was no justification for the respondent’s continued occupation of the estate property, she ordered that he vacate the property within 30 days. She found that by not paying compensation to the estate the respondent had denied the estate the 

opportunity to realize rental income and that he had benefited to the detriment of the beneficiaries. It does not appear that Low J. was asked to order occupation rent.

Occupational Rent

The Applicants (the Estate Trustees) also requested an order for compensation from Mr. Filippelli for the net rent owed from the date his mother passed away, until the date he would be ordered to vacate the property. In support of their application, they provided a comparative market analysis from a real estate broker to assist the court in determining an average rental price for the subject property, with the tenant being responsible to pay all utilities and maintenance for the property.

[22] In the circumstances, as we are talking about rent going back to October 2016, I order that the occupation rent payable be $2,000 per month for a total of $20,000 for the period October 2016 to September 2017 inclusive. I also order that Mr. Filippelli pay the pest control services cost in the amount of $282.50 as clearly that was required because of the way in which he was maintaining (or I should say not maintaining) the property. The report from the City states that Goldsboro was not being kept free of rodents on the main floor cupboards and in the laundry room in the basement. This corroborates the evidence of the Applicants that Mr. Filippelli is not keeping the property clean.

Estate Litigation Lawyer Angela Price-Stephens

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