Cormier Estate v. Bourque, 2001 NBCA 4

• Judge: Rice, Turnbull and Larlee, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: March 15, 2000
• Jurisdiction: New Brunswick
• Citations: 2001 NBCA 4;(2001), 233 N.B.R.(2d) 92 (CA)

Cormier Estate v. Bourque (2001), 233 N.B.R.(2d) 92 (CA);

    233 R.N.-B.(2e) 92; 601 A.P.R. 92

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2001] N.B.R.(2d) TBEd. JA.041

Jean-Albert Cormier and Benoit Doucet, Administrators of the Estate of Paul Edouard Cormier (plaintiffs/appellants) v. Annette Bourque (defendant/respondent)

(248/98/CA; 2001 NBCA 4)

Indexed As: Cormier Estate v. Bourque

New Brunswick Court of Appeal

Rice, Turnbull and Larlee, JJ.A.

January 22, 2001.

Summary:

In 1992, Cormier and Bourque pur­chased a house as joint tenants. They exe­cuted two domestic contracts in 1993. Cor­mier died in 1994. Bourque claimed a right of survi­vor­ship. Cormier's estate claimed that the joint tenancy was severed by the execu­tion of the domestic contracts.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at [1998] N.B.R. Uned. 136, held that the domestic contracts had been discharged and, therefore, the joint tenancy was not severed. The estate appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Executors and Administrators - Topic 5700

Actions by and against representatives - Evidence - Claim against estate - Cor­robo­ration requirement - The defend­ant claimed survivorship with respect to a property held in joint tenancy with the deceased - The deceased's estate claimed that the joint tenancy had been severed by the execution of domestic contracts - The trial judge held that the defendant was entitled to the prop­erty - The estate claimed that the trial judge erred by ad­mitting parol testimony from the defendant as to what the deceased had told her with­out requiring cor­roboration - The New Brunswick Court of Appeal stated that "Corroboration is not conditional to the re­ception of such evi­dence. While corrob­oration will assist greatly a trial judge in his decision to admit such evidence, she or he may allow such testimony once sat­isfied that the deceased voluntarily and plainly made the statements." - See para­graphs 26 and 27.

Family Law - Topic 3300

Separation agreements, domestic contracts and marriage contracts - Termination of - Re­sumption of cohabitation - Cormier and Bourque purchased a house as joint tenants - On November 3, 1993, they executed two domestic contracts which provided, inter alia, that Bourque would transfer her inter­est in the house for $25,000 from Cormier - Cormier gave Bourque $15,000 upon execution of the contracts - No further payments were made under the contracts - Cormier and Bourque attempted to recon­cile - Cormier died on April 12, 1994 - Cormier's estate claimed that the joint tenancy was severed by the contracts' execution - The trial judge held that the domestic contracts were dis­charged by mutual intent, by attempts at reconciliation, by breach by both parties and by sufficient supervening circum­stances - Therefore, the joint tenancy was not severed - The New Brunswick Court of Appeal affirmed the decision.

Real Property - Topic 3887

Joint estates - Severance of joint tenancies - Mutual acts which do not result in sev­erance - [See Family Law - Topic 3300 ].

Cases Noticed:

Power v. Grace, [1932] 2 D.L.R. 793 (Ont. C.A.), refd to. [para. 19].

Burgess v. Rawnsley, [1975] 3 All E.R. 142, refd to. [para. 19].

Steeves v. Steeves, [1997] N.B.R.(2d) (Supp.) No. 124 (T.D.), refd to. [para. 19].

Knowlton v. Bartlett (1984), 60 N.B.R.(2d) 271; 157 A.P.R. 271 (T.D.), refd to. [para. 19].

Public Trustee v. Sommers (Somers) (1978), 5 R.F.L.(2d) 393 (B.C.S.C.), refd to. [para. 19].

Williams v. Hensman (1861), 1 John & H. 546; 70 E.R. 862, refd to. [para. 20].

Fletcher v. Manitoba Public Insurance Co., [1990] 3 S.C.R. 191; 116 N.R. 1; 71 Man.R.(2d) 81; 44 O.A.C. 81, refd to. [para. 25].

Clarke v. Edinburgh and District Tram­ways Company Limited, [1919] S.C. 35 (H.L.), refd to. [para. 25].

Ship Hontestroom v. Ship Sagaporack, [1927] A.C. 37 (H.L.), refd to. [para. 25].

Lewis v. Todd et al., [1980] 2 S.C.R. 694; 34 N.R. 1, refd to. [para. 25].

Kileel Developments Ltd. v. Menzies Estate (1984), 58 N.B.R.(2d) 218; 151 A.P.R. 218 (T.D.), refd to. [para. 27].

Paul v. Myles (1930), 2 M.P.R. 20 (N.B.C.A.), refd to. [para. 27].

Authors and Works Noticed:

Anger and Honsberger, Law of Real Prop­erty (2nd Ed. 1985), generally [para. 19].

Counsel:

C. Scott Ellsworth, for the appellants;

G. Robert Basque, for the respondent.

This appeal was heard on March 15, 2000, by Rice, Turnbull and Larlee, JJ.A., of the New Brunswick Court of Appeal. On Jan­uary 22, 2001, Rice, J.A., delivered the following decision for the Court of Appeal.