Maimets v. Williams et al., (1997) 101 O.A.C. 151 (CA)

• Judge: Houlden, Finlayson and Weiler, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 23, 1997
• Jurisdiction: Ontario
• Citations: (1997), 101 O.A.C. 151 (CA)

Maimets v. Williams (1997), 101 O.A.C. 151 (CA)

MLB headnote and full text

Temp. Cite: [1997] O.A.C. TBEd. JN.035

Ilo-Katryn Maimets (appellant/applicant) v. Elroy Williams and Eileen Williams (respondents)

Elroy Williams and Eileen Williams (plaintiffs) v. Oscar Mullerbeck (defendant)

(C24150)

Indexed As: Maimets v. Williams et al.

Ontario Court of Appeal

Houlden, Finlayson and Weiler, JJ.A.

June 23, 1997.

Summary:

Mullerbeck settled a lawsuit by the Williamses and secured payment with a collateral mortgage on the matrimonial home owned jointly by him and his wife, Maimets. On May 29, 1995, the Williamses obtained judgment in terms of the minutes of settle­ment. On the same day Mullerbeck com­mitted suicide. Shortly thereafter, Maimets learned of the action against Mullerbeck, the settlement and the proposed mortgage on the matrimonial home. On June 6, 1995, the Williamses registered the settlement on title. On June 15, 1995, the Williamses deposited a writ of seizure and sale with the sheriff. The Williamses obtained permission to proceed against the Mullerbeck estate. Maimets applied for, inter alia, a declaration that she was the sole owner of the property and that the Williamses had no right to seize and sell it. The Williamses moved for an order directing the sheriff to proceed with the seizure and sale.

The Ontario Court (General Division) determined that the mortgage executed by Mullerbeck had the effect of severing the joint tenancy and the writ of seizure and sale attached to the property. The court directed the sheriff to proceed with the sale of Mullerbeck's interest in the property. Maimets appealed.

The Ontario Court of Appeal allowed the appeal, granted a declaration that Maimets was the sole owner of the property and expunged the registration of the deposit in respect thereof under the Execution Act.

Execution - Topic 747

General rules - Exemptions - Jointly owned property - The Ontario Court of Appeal stated that "the death of one joint tenant even after delivery to but before execution by the sheriff of a writ of exe­cution vests the property in the survivor free from the claim of the execution credi­tor" - See paragraph 8.

Execution - Topic 747

General rules - Exemptions - Jointly owned property - Mullerbeck settled the Williamses' lawsuit and secured payment with a mortgage to be executed by him and his wife, Maimets, on their jointly owned matrimonial home - The Williamses obtained judgment in terms of the settle­ment - Mullerbeck committed suicide - Shortly thereafter, Maimets learned of the action against Mullerbeck - The Williamses subsequently registered the settlement on title and obtained a writ of seizure and sale (the writ) directed against Mullerbeck - The trial judge held that the mortgage severed the joint tenancy and the writ attached to Mullerbeck's interest - The Ontario Court of Appeal allowed Maimets' appeal - The mortgage was ineffective where Maimets had not executed it - Maimets was the owner free and clear of the Williamses' claim - Alter­natively, execution of the mortgage by Mullerbeck alone could not sever the tenancy given s. 21(1) of the Family Law Act.

Execution - Topic 1053

Writ of execution - Issue, filing and de­livery - Effect of delivery to sheriff - [See first Execution - Topic 747 ].

Family Law - Topic 632

Husband and wife - Marital property - Matrimonial home - Joint ownership - [See second Execution - Topic 747 ].

Family Law - Topic 635

Husband and wife - Marital property - Matrimonial home - Disposition of - Con­sent of spouse - [See second Execu­tion - Topic 747 ].

Cases Noticed:

Power v. Grace, [1932] O.R. 357 (C.A.), refd to. [para. 8].

Timko v. Kozub Estate and Kozub (1984), 3 O.A.C. 33; 45 O.R.(2d) 558 (C.A.), refd to. [para. 9].

Statutes Noticed:

Family Law Act, R.S.O. 1990, c. F-3, sect. 21(1) [para. 9].

Counsel:

Indrek Uukkivi, for the appellant;

Vusumzi M.N. Msi, for the respondents.

This appeal was heard on June 13, 1997, before Houlden, Finlayson and Weiler, JJ.A., of the Ontario Court of Appeal.

The following judgment was delivered by the court and released on June 23, 1997.