Davison v. Davison Estate, (2009) 251 Man.R.(2d) 1 (CA)

• Judge: Hamilton, Freedman and Chartier, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 25, 2009
• Jurisdiction: Manitoba
• Citations: (2009), 251 Man.R.(2d) 1 (CA);2009 MBCA 100

Davison v. Davison Estate (2009), 251 Man.R.(2d) 1 (CA);

      478 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. OC.002

Shelley Lynn Davison (applicant/respondent) v. The Estate of Raymond Davison, Deceased (respondent/appellant)

(AI 09-30-07159; 2009 MBCA 100)

Indexed As: Davison v. Davison Estate

Manitoba Court of Appeal

Hamilton, Freedman and Chartier, JJ.A.

September 25, 2009.

Summary:

The applicant sought direction as to whether the joint ownership of the marital home of the deceased and the applicant had been severed.

The Manitoba Court of Queen's Bench held that there was no severance. The respondent appealed.

The Manitoba Court of Appeal dismissed the appeal.

Real Property - Topic 3891

Joint estates - Severance of joint tenancies - Unilateral acts which do not result in severance - The deceased and the applicant separated - The applicant petitioned for divorce - She sought partition or sale of the jointly owned marital home - The deceased contested that - Subsequent correspondence between the parties' counsel dealt with issues that did not include the marital home - After the deceased passed away, the applicant sought direction as to whether the joint ownership of the marital home had been severed - The application judge held that there was no severance - There were only the parties' pleadings and no subsequent negotiations about the marital home - The applicant's request for partition or sale in her petition was insufficient to establish either intention or mutuality - The Manitoba Court of Appeal upheld the decision - See paragraphs 1 to 7.

Cases Noticed:

Stonehouse v. British Columbia (Attorney General), [1962] S.C.R. 103, refd to. [para. 3].

Williams v. Hensman (1861), 1 John & H. 546; 30 L.J. Ch. 878, refd to. [para. 3].

Lam v. Le Estate, [2002] Man.R.(2d) Uned. 10; 25 R.F.L.(5th) 72; 2002 MBQB 31, refd to. [para. 4].

O'Connor Estate v. Lindsay (1987), 51 Man.R.(2d) 65 (Q.B.), consd. [para. 4].

Simcoff v. Simcoff (2009), 245 Man.R.(2d) 7; 466 W.A.C. 7; 2009 MBCA 80, consd. [para. 4].

Counsel:

D.D. Cullen, for the appellant;

D.M. Foerster, for the respondent.

This appeal was heard on September 25, 2009, by Hamilton, Freedman and Chartier, JJ.A., of the Manitoba Court of Appeal. The following decision of the Court of Appeal was delivered orally by Hamilton, J.A., on September 25, 2009.