Digest: Poon v Parker, 2018 SKQB 247

DateSeptember 18, 2019

Reported as: 2018 SKQB 247

Docket Number: QBG 2073/18 JCR , QB18241

Court: Court of Queen's Bench

Date: 2019-09-18

Judges:

  • Smith

Subjects:

  • Real Property � Certificate of Pending Litigation
  • Real Property � Homestead Affidavit
  • Real Property � Joint Owners with Right of Survivorship
  • Trusts � Resulting Trusts

Digest: The applicant was the daughter of the deceased. The deceased and the applicant were joint owners with right of survivorship of a condominium. The respondent registered a homestead interest against the condo on April 17, 2013, after the deceased had a stroke. The deceased died in December 2015. The respondent registered a certificate of pending litigation against the title in October 2016. The applicant argued that any entitlement the respondent had to the condo was through the deceased, so it vanished as a result of her death. The respondent argued that the condo was his family home with the deceased since they had been living together as spouses since 2001. He asserted that there was a resulting trust in his favour because the transfer to joint names was without consideration. The applicant argued that the respondent and deceased were not spouses. The respondent applied to consolidate The Family Property Act actions with the condo dispute commenced by the applicant. The applicant requested orders under ss. 107 and 109 of The Land Titles Act, 2000 and The Homesteads Act, 1989, directing the registrar of titles to discharge the homestead interest as well as an order under s. 47 of The Queen�s Bench Act, 1998, vacating the certificate of pending litigation. The condo was purchased in 1993 and transferred to joint tenants in 2007. The deceased told her lawyer that the transfer was for estate planning purposes.
HELD: Unregistered interests, such as claims of resulting trusts, are enforceable between the immediate parties or those claiming through the same. The applicant must claim through the deceased. The respondent argued that the deceased held a resulting trust in his favour. The court concluded that it would be inappropriate to allow the applicant the opportunity to deal with the condo prior to the respondent having his claim adjudicated. The court did not discharge the homestead certificate or the certificate of pending litigation. The court ordered that the applicant�s matter was to be heard at the same time as the respondent�s petition and the evidence called under each matter shall apply to the
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