MacDonald v. Barto, (2015) 316 Man.R.(2d) 69 (QBFD)

• Judge: Hatch, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: February 27, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 316 Man.R.(2d) 69 (QBFD);2015 MBQB 33

MacDonald v. Barto (2015), 316 Man.R.(2d) 69 (QBFD)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MR.016

Jean MacDonald and Daryle MacDonald (applicants) v. Rita Ellen Barto (respondent)

(FD 13-01-06330; 2015 MBQB 33)

Indexed As: MacDonald v. Barto

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Hatch, J.

February 27, 2015.

Summary:

In 2003, Daryle MacDonald needed accommodation. His mother Jean bought a house and arranged to take title in her name as to a life estate with Daryle having the remainder interest. Daryle and Barto, his common law spouse, moved into the house in 2003. Daryle made payments to Jean toward the sum that she had paid for the house. Daryle and Barto's relationship ended in February 2008 and Barto moved out. In March 2008, Barto registered a homestead notice against the property. Daryle fell into arrears and vacated the home. The house was in extreme disrepair. Jean spent funds to restore it. Daryle signed a transfer in Jean's favour. Jean sought to register it and have the homestead notice vacated. Jean and Daryle applied under s. 10(1.1) of the Homesteads Act to terminate Barto's homestead rights or under s. 10(1) for an order dispensing with Barto's consent to the disposition by Daryle of his interest in the property to Jean.

The Manitoba Court of Queen's Bench, Family Division, allowed the application under s. 10(1) for an order dispensing with Barto's consent to the disposition by Daryle of his interest in the property to Jean. The request for an order under s. 10(1.1) was dismissed. The homestead notice was vacated.

Real Property - Topic 65

General principles - Definitions - Owner defined - [See Real Property - Topic 2143 ].

Real Property - Topic 2143

Dower rights - Homestead legislation - Homestead defined - In 2003, Daryle MacDonald needed accommodation - His mother Jean bought a house and arranged to take title in her name as to a life estate with Daryle having the remainder interest - Daryle and Barto, his common law spouse, moved into the house in 2003 - Daryle made payments to Jean toward the sum that she had paid for the house - Daryle and Barto's relationship ended in February 2008 and Barto moved out - In March 2008, Barto registered a homestead notice against the property - Daryle fell into arrears and vacated the home - The house was in extreme disrepair - Jean spent funds to restore it - Daryle signed a transfer in Jean's favour - Jean sought to register it and have the homestead notice vacated - At issue was whether Daryle was an "owner" of the property withing the meaning of the Homesteads Act such that Barto had homestead rights - The Manitoba Court of Queen's Bench, Family Division, found that Daryle was an owner of the property by virtue of his remainder interest, being an estate in fee simple - He became an owner immediately on title being issued, granting him a remainder interest - The definition of homestead in the Act included a remainder interest - The property was homestead property, given that Daryle and Barto lived in it as their residence in a conjugal relationship for over three years, with Daryle as the owner - Barto had homestead rights - See paragraphs 19 to 40.

Real Property - Topic 2147

Dower rights - Homestead legislation - Veto right of non-owner spouse - [See Sale of Land - Topic 1122 ].

Real Property - Topic 2148

Dower rights - Homestead legislation - Termination of rights of spouse - In 2003, Daryle MacDonald needed accommodation - His mother Jean bought a house and arranged to take title in her name as to a life estate with Daryle having the remainder interest - Daryle and Barto, his common law spouse, moved into the house in 2003 - Daryle made payment to Jean toward the sum that she had paid for the house - Daryle and Barto's relationship ended in February 2008 and Barto moved out - In March 2008, Barto registered a homestead notice against the property - Daryle fell into arrears and vacated the home - The house was in extreme disrepair - Jean spent funds to restore it - Daryle signed a transfer in Jean's favour - Jean sought to register it and have the homestead notice vacated - Jean and Daryle applied to terminate Barto's homestead rights under s. 10(1.1) of the Homesteads Act - The Manitoba Court of Queen's Bench, Family Division, dismissed the application - Daryle and Barto had lived separate and apart for over three years and Barto had homestead rights, as required under ss. 10(1.1)(b) and 10(1.1)(c) - However, there was no evidence as to whether or not Daryle and Barto had registered or dissolved their common law relationship under the Vital Statistics Act - It was a prerequisite that the common law relationship not be registered for s. 10(1.1) to be triggered - See paragraphs 41 to 46.

Sale of Land - Topic 1122

The contract - Parties - Husband and wife - Consent of spouse - Homestead legislation - In 2003, Daryle MacDonald needed accommodation - His mother Jean bought a house and arranged to take title in her name as to a life estate with Daryle having the remainder interest - Daryle and Barto, his common law spouse, moved into the house in 2003 - Daryle made payment to Jean toward the sum that she had paid for the house - Daryle and Barto's relationship ended in February 2008 and Barto moved out - In March 2008, Barto registered a homestead notice against the property - Daryle fell into arrears and vacated the home - The house was in extreme disrepair - Jean spent funds to restore it - Daryle signed a transfer in Jean's favour - Jean sought to register it and have the homestead notice vacated - Jean and Daryle applied under s. 10(1) of the Homesteads Act for an order dispensing with Barto's consent to the disposition by Daryle of his interest in the property to Jean - The Manitoba Court of Queen's Bench, Family Division, allowed the application - It was fair and reasonable to grant the order sought - Jean had purchased the property with her own funds - Barto had never made any payments toward it and had made no claim under the Family Property Act - As Barto had not contributed to the property, which had been left in a state of disrepair, and had shown no interest in pursuing her property rights, the court declined to order that Barto be compensated for the loss of her homestead rights - The homestead notice was to be vacated - See paragraphs 47 to 69.

Cases Noticed:

Chartier (Bankrupt), Re (2013), 291 Man.R.(2d) 298; 570 W.A.C. 298; 2013 MBCA 41, refd to. [para. 22].

Chartier v. MNP Ltd. - see Chartier (Bankrupt), Re.

Chupryk v. Haykowski (1980), 3 Man.R.(2d) 216; 110 D.L.R.(3d) 108 (C.A.), refd to. [para. 24].

Perry v. Perry (1918), 40 D.L.R. 628, refd to. [para. 24].

Brereton, Re, [1945] 3 W.W.R. 24 (Man. Co. Ct.), refd to. [para. 26].

Blowers Estate, Re; Menrad v. Blowers et al. (1982), 16 Man.R.(2d) 288; 137 D.L.R.(3d) 309 (Q.B.), refd to. [para. 29].

Stuartburn (Rural Municipality) v. Kiansky (2001), 155 Man.R.(2d) 35; 2001 MBQB 94, refd to. [para. 32].

Prout v. Prout (1959), 18 D.L.R.(2d) 244 (Man. C.A.), refd to. [para. 51].

Daly v. Daly (1980), 4 Man.R.(2d) 63; 114 D.L.R.(3d) 435 (C.A.), refd to. [para. 58].

Monchamp v. Monchamp, [1953] 2 D.L.R. 246 (Man. C.A.), refd to. [para. 58].

Collins (Keith G.) Ltd. v. Coutu (2011), 268 Man.R.(2d) 130; 520 W.A.C. 130; 2011 MBCA 52, refd to. [para. 61].

Counsel:

Wayne C. Rose, for the applicants;

No appearance for the respondent.

This application was heard by Hatch, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on February 27, 2015.