Schriver v. Schriver, (1985) 65 N.B.R.(2d) 255 (FD)

• Judge: Ayles, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: February 14, 1985
• Jurisdiction: New Brunswick
• Citations: (1985), 65 N.B.R.(2d) 255 (FD)

Schriver v. Schriver (1985), 65 N.B.R.(2d) 255 (FD);

    65 R.N.-B.(2e) 255; 167 A.P.R. 255

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Schriver v. Schriver

(FDW/197/84)

Indexed As: Schriver v. Schriver

Répertorié: Schriver v. Schriver

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Woodstock

Ayles, J.

September 11, 1985.

Summary:

Résumé:

During a period of estrangement from his wife a husband conveyed the marital home to his wife. He subsequently applied to set aside the deed.

The New Brunswick Court of Queen's Bench, Family Division, dismissed the application and held that the wife rebutted the presumption of resulting trust.

Family Law - Topic 664

Husband and wife - Marital property - Transfers by husband to wife - Presumption of resulting trust - Rebuttal - During a period of estrangement a husband conveyed the marital home to his wife - For the next 1.5 years the husband lived in the home about 20% of the time, but in various ways affirmed his intention to divest himself of any interest in the home - After the conveyance the wife maintained the property and made all the mortgage payments - The New Brunswick Court of Queen's Bench, Family Division, dismissed the husband's application to set aside the deed and held that the wife rebutted the presumption of resulting trust in favour of the husband.

Cases Noticed:

Re O'Donnell and Nicholson, 48 O.L.R. 187; 54 D.L.R. 701, consd. [para. 21].

Goodfriend v. Goodriend, [1972] S.C.R. 640; 6 R.F.L. 60, appld. [para. 28].

Dyer v. Dyer (1788), 2 Cox Eq. Cas. 92; 30 E.R. 42, appld. [para. 29].

Forbes v. Forbes (1979), 8 R.F.L.(2d) 312, appld. [para. 32].

Van De Mark v. Walton, 34 O.R.(2d) 654, consd. [para. 36].

Sweetin v. Sweetin and Cousins (1984), 39 R.F.L.(2d) 458 (B.C.C.A.), dist. [para. 40].

Doroshenko v. Doroshenko (1979), 9 R.F.L.(2d) 61 (Ont. C.C.), dist. [para. 40].

Farmer v. Farmer and Baker (1979), 10 R.F.L.(2d) 243 (B.C.S.C.), dist. [para. 40].

Statutes Noticed:

Marital Property Act, R.S.N.B. 1980, c. M-1.1, sect. 15(1) [para. 27]; sect. 19(1)(a) [para. 20].

Property Act, R.S.N.B. 1973, c. P-19, sect. 23(2) [para. 22].

Counsel:

Sherron J.L. Hughes, for the applicant;

Robert D. MacElwain, for the respondent.

This case was heard on February 14, 1985, at Woodstock, N.B., before Ayles, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Woodstock, who delivered the following judgment on September 11, 1985: