Evicting a Sister

Written by Saul Benary

Losing a parent is never an easy experience. Settling their estate and dealing with family conflict can make it harder. The lesson from Qayutinnuaq v Qayutinnuaq part 1 and part 2, 2021 cases from the Court of Appeal of Alberta, is to communicate and make each agreement clearly, even if the agreement is with your own sister.

Melanie and Shelly Qayutinnuaq were the daughters of Susan Qayutinnuaq. After Susan passed away in 2017, Shelly became the executor and personal representative of Susan’s estate. Shelly agreed to let Melanie and her family stay in Susan’s old house, located in a hamlet over an hour north of Grande Prairie, Alberta, in exchange for doing some repairs and renovations.

The trouble started when the sisters disagreed on rent payments. Shelly believed Melanie was supposed to pay rent in addition to working on the house. Melanie disagreed, thinking the repairs and renovations were supposed to be done instead of paying rent. Whatever the truth of it was, by October 2020, Shelly wanted Melanie out and began to take steps to evict her. Shelly conditionally sold the house with closing on July 6, 2021, and got an order on June 17, 2021, for Melanie to vacate the house by June 30, 2021.

Melanie hurried to appeal the order the following week but could not get a hearing until July 14, 2021. She then also applied for an interim stay of the order to take effect until that date. Meanwhile, Shelly had to amend the sale of the house to close instead on July 23, 2021.

The Supreme Court of Canada set the test for determining how courts grant stays in 1994 in RJR-MacDonald Inc v Canada (AG). A person applying for a stay must convince the court:

  • There is an arguable issue to be determined on appeal,
  • The applicant will suffer irreparable harm if the stay is not granted, and
  • The balance of convenience favours granting the stay.

In her interim and regular stay applications, Melanie argued: the dispute amounted to an arguable issue, she and her family would suffer irreparable harm if they were evicted, and the balance of convenience (between the estate being resolved quicker and Melanie’s family possibly becoming unhoused) favoured granting her the stay. Further, she alleged Shelly was intentionally selling their mother’s house at undervalue to someone Shelly had an existing relationship with. Shelly argued on behalf of the estate that the lower court made no mistake in making its order. The house was the estate’s only asset of value, and it needed to be sold to settle the estate.

The Court of Appeal first looked at the written arguments for the sisters when considering the interim stay application—there was no time for oral arguments. Melanie had shown an arguable issue to be determined but that threshold was low. The balance of convenience favoured granting a stay but only until the regular stay application was heard. Melanie did not show she would suffer irreparable harm. However, because the process was so rushed, and there was no time to gather additional evidence, the Court granted the interim stay notwithstanding that the Supreme Court’s test had not been fully met.

The Court’s opinion did not change after getting more evidence at the hearing two weeks later. The case was clear. Dealing with the estate’s assets was important and selling houses in that area was difficult. Being evicted was not irreparable harm because it could be compensated with damages if the Court later found it was wrong. Besides, Melanie had known she would need to move her family out for 9 months at that point. The price Shelly was selling the house for was irrelevant to this issue and would anyway be reviewed at the appropriate time later.

The Court lifted the stay, ordered Melanie out by July 21, 2021, and deducted the cost of the applications from her share of the estate.