Simcoff v. Simcoff,

• Jurisdiction: Manitoba
• Judge: Scott, C.J.M., Steel and Chartier, JJ.A.
• Neutral Citation: 2009 MBCA 80
• Citation: 2009 MBCA 80,(2009), 245 Man.R.(2d) 7 (CA),[2009] 9 WWR 248,49 ETR (3d) 302,[2009] CarswellMan 357,[2009] MJ No 265 (QL),179 ACWS (3d) 218,245 Man R (2d) 7,82 RPR (4th) 22,(2009), 245 ManR(2d) 7 (CA),245 ManR(2d) 7,[2009] M.J. No 265 (QL),245 Man.R.(2d) 7
• Date: 16 March 2009
• Court: Court of Appeal (Manitoba)

Simcoff v. Simcoff (2009), 245 Man.R.(2d) 7 (CA);

      466 W.A.C. 7

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. JL.023

Eva Rebecca Simcoff (applicant/appellant) v. Samuel James Simcoff (respondent/respondent)

(AI 08-30-07016; 2009 MBCA 80)

Indexed As: Simcoff v. Simcoff

Manitoba Court of Appeal

Scott, C.J.M., Steel and Chartier, JJ.A.

July 16, 2009.

Summary:

In 1992, a mother transferred title of a property from her name alone into the names of herself and her son as joint tenants. Since 2004, the house was rented with the son receiving all rents and assuming responsibility for the property maintenance and upkeep. The mother and son had a falling out in 2007. The mother sought a declaration that she was the sole owner of the property on the basis of resulting trust, and alternatively she requested a partition and sale of the property under the Law of Property Act.

The Manitoba Court of Queen's Bench, in a decision reported [2008] Man.R.(2d) Uned. 77, refused the mother's request for a declaration of resulting trust, holding that the mother intended a gift when she placed the property into joint tenancy. The court also dismissed the application for partition and sale, because it would not be fair in the circumstances. The court also refused the mother's request to sever the joint tenancy. The mother appealed.

The Manitoba Court of Appeal allowed the appeal in part. The court held that the applications judge made no palpable and overriding error in the finding that the mother made a gift to the son. However, the judge erred in the test he applied respecting the partition and sale issue (i.e., the judge applied a fairness test). The court held that when the proper test was applied, this was an appropriate case for an order of partition and sale.

Evidence - Topic 4241

Witnesses - Privilege - Lawyer-client communications - Privilege - General - [See Practice - Topic 3683 ].

Evidence - Topic 4254

Witnesses - Privilege - Lawyer-client communications - Waiver - General - [See Practice - Topic 3683 ].

Gifts - Topic 527

Gifts inter vivos - Presumption against gift - Resulting trust - Rebuttal of presumption - [See Trusts - Topic 1906 ].

Gifts - Topic 578

Gifts inter vivos - Transfer by donor to donee and donor jointly - Intention - [See Trusts - Topic 1906 ].

Practice - Topic 3683

Evidence - Affidavits - Use of - Affidavits by lawyer - Limitations - In 1992, a mother created a joint tenancy with her son in a property - After a falling out in 2007, the mother sought a declaration that she was the sole owner of the property on the basis of resulting trust - The applications judge held that the mother intended a gift when she placed the property in joint tenancy - In reaching that conclusion, the judge relied on an affidavit from the mother's former counsel (i.e., the same lawyer who, in 1992, received instructions to prepare the transfer of land into the joint tenancy) - In the affidavit, the lawyer recounted the advice he gave the mother and the conversation that the two of them had in relation to this transfer and its consequences - The mother appealed, arguing that the applications judge erred in allowing the affidavit into evidence - The Manitoba Court of Appeal held that the former solicitor of the mother should never have made the disclosures set out in his affidavit (i.e., solicitor-client privilege applied and was not waived by the mother either expressly or impliedly) - On the other hand, the solicitor for the son should never have attempted to obtain the affidavit or, having obtained it, made any use of it - In any event, the applications judge erred when he received it into evidence - See paragraphs 13 to 33.

Real Property - Topic 3733

Joint estates - Joint tenancies - Right to partition and sale - In 1992, a mother created a joint tenancy with her son in a property - After a falling out in 2007, the mother sought a partition and sale of the property - An applications judge refused the mother's request because partition and sale would be unfair in the circumstances - The mother appealed - The Manitoba Court of Appeal held that applications judge erred in the test to be applied in an application for partition and sale (i.e., he applied a fairness test) - Rather, the court's discretion to order partition and sale was to be exercised in a judicial manner and was governed by certain well-defined principles - The court stated that prima facie, an applicant was entitled to an order for partition and sale - To defeat such an application, a respondent had to show that the order would be oppressive or vexatious or that the applicant did not come to court with clean hands - In applying a less stringent test of fairness the trial judge erred - The court held that when the proper test was applied, this was an appropriate case for an order of partition and sale - See paragraphs 45 to 56.

Real Property - Topic 3733

Joint estates - Joint tenancies - Right to partition and sale - A mother created a joint tenancy with her son in a property - After a falling out, the mother sought a partition and sale of the property - The applications judge refused the mother's request, stating that "[w]here a gift has effectively been made, and the parties have acted in accordance with the gift, then it is my view that it would not be fair to the donee to order a sale in circumstances where the effect would be to defeat the gift" - On appeal, an argument was made that this somehow created an irrevocable right of survivorship - The Manitoba Court of Appeal, in obiter, discussed the applications judge's comment and the argument based thereon - In this context the court discussed the right to partition and sale and the severance of joint tenancies - See paragraphs 57 to 72.

Trusts - Topic 1901

Resulting trusts - General principles - General (incl. when available) - [See Trusts - Topic 1906 ].

Trusts - Topic 1906

Resulting trusts - General principles - Gifts - In 1992, a mother created a joint tenancy with her son in a property - After a falling out in 2007, the mother sought a declaration that she was the sole owner of the property on the basis of resulting trust - An applications judge rejected the resulting trust argument, holding that the mother intended a gift of an undivided one-half interest in the property when she placed the property into joint tenancy - The mother appealed - The Manitoba Court of Appeal held that despite the transfer of land referring to consideration of $1.00 and other good and valuable consideration, the applications judge correctly treated this as a gratuitous transfer - The presumption of resulting trust would only come into play if there was insufficient evidence to rebut the presumption - The applications judge weighed all the evidence, as well as the explanations offered by the mother as to her reasons for transferring the property into joint names, and found, on a balance of probabilities, that the mother intended to make a gift of a one-half interest in the property to her son - The judge did not err in stating the legal principles and made no palpable and overriding error in his review of the evidence and its application to the law - See paragraphs 34 to 44.

Cases Noticed:

Pecore v. Pecore, [2007] 1 S.C.R. 795; 361 N.R. 1; 224 O.A.C. 330; 2007 SCC 17, refd to. [para. 1].

Bell et al. v. Smith et al., [1968] S.C.R. 664, refd to. [para. 16].

R. v. Jack (B.G.) (1992), 76 Man.R.(2d) 168; 10 W.A.C. 168 (C.A.), refd to. [para. 17].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201; 2001 SCC 14, refd to. [para. 19].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, refd to. [para. 19].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 19].

Blood Tribe Department of Health v. Privacy Commissioner (Can.) et al., [2008] 2 S.C.R. 574; 376 N.R. 327; 2008 SCC 44, refd to. [para. 20].

Maranda v. Leblanc, [2003] 3 S.C.R. 193; 311 N.R. 357; 2003 SCC 67, refd to. [para. 21].

Maranda v. Richer - see Maranda v. Leblanc.

Jones v. Smith, [1999] 1 S.C.R. 455; 236 N.R. 201; 120 B.C.A.C. 161; 196 W.A.C. 161, refd to. [para. 24].

Miller v. Miller, 2002 NFCA 54, refd to. [para. 24].

Albionex (Overseas) Ltd. et al. v. Conagra Ltd. et al. (2007), 223 Man.R.(2d) 294; 2007 MBQB 301, refd to. [para. 25].

Toronto-Dominion Bank v. Leigh Instruments Ltd. (Bankrupt) et al. (1997), 31 O.T.C. 267; 32 O.R.(3d) 575 (Gen. Div.), refd to. [para. 26].

Schwartz Estate v. Kwinter et al. (2009), 459 A.R. 61; 2009 ABQB 128, refd to. [para. 27].

Myron v. Kwinter - see Schwartz Estate v. Kwinter et al.

S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd., [1983] 4 W.W.R. 762 (B.C.S.C.), refd to. [para. 30].

Lloyds Bank Canada v. Canada Life Assurance Co. (1991), 47 C.P.C.(2d) 157 (Ont. Gen. Div.), refd to. [para. 32].

Gendis Inc. v. Richardson Oil & Gas Ltd. (1999), 140 Man.R.(2d) 290 (Q.B.), refd to. [para. 32].

Glenelg Homestead Ltd. v. Wile et al. (2003), 216 N.S.R.(2d) 180; 680 A.P.R. 180; 2003 NSSC 155, affd. (2005), 230 N.S.R.(2d) 289; 729 A.P.R. 289; 2005 NSCA 4, refd to. [para. 35].

McConomy Estate, Re, [2009] O.T.C. Uned. 451; 46 E.T.R.(3d) 259 (Sup. Ct.), refd to. [para. 37].

McConomy-Wood v. McConomy - see McConomy Estate, Re.

F.A.L. v. A.B.B. (1995), 102 Man.R.(2d) 251; 93 W.A.C. 251 (C.A.), refd to. [para. 42].

Shwabiuk v. Shwabiuk (1965), 51 W.W.R.(N.S.) 549 (Man. Q.B.), refd to. [para. 50].

Collins (Keith G.) Ltd. v. McKenzie (2005), 192 Man.R.(2d) 191; 340 W.A.C. 191; 2005 MBCA 35, refd to. [para. 51].

S.L.S. v. J.A.M. (2006), 209 Man.R.(2d) 130; 2006 MBQB 238 (Fam. Div.), refd to. [para. 51].

Saylor et al. v. Brooks, [2007] 1 S.C.R. 838; 360 N.R. 327; 224 O.A.C. 382; 2007 SCC 18, refd to. [para. 52].

Madsen Estate v. Saylor - see Saylor et al. v. Brooks.

Woloshyn v. Woloshyn (1996), 109 Man.R.(2d) 35 (Q.B. Fam. Div.), refd to. [para. 54].

Harmeling v. Harmeling, [1978] 5 W.W.R. 688 (B.C.C.A.), refd to. [para. 55].

Michaud v. Michaud (1980), 29 N.B.R.(2d) 591; 66 A.P.R. 591 (T.D.), refd to. [para. 55].

Reed v. Reed (1985), 40 Sask.R. 289 (Q.B.), refd to. [para. 55].

Hutcheson v. Hutcheson, [1950] 2 D.L.R. 751 (Ont. C.A.), refd to. [para. 58].

Chupryk v. Haykowski (1980), 3 Man.R.(2d) 216 (C.A.), refd to. [para. 59].

Stonehouse v. British Columbia (Attorney General) (1960), 26 D.L.R.(2d) 391 (B.C.C.A.), affd. [1962] S.C.R. 103, refd to. [para. 61].

Horne v. Horne Estate (1987), 21 O.A.C. 313; 39 D.L.R.(4th) 416 (C.A.), refd to. [para. 65].

Horne v. Evans - see Horne v. Horne Estate.

Bank of Montreal v. Bray (1997), 104 O.A.C. 351; 36 O.R.(3d) 99 (C.A.), refd to. [para. 65].

O'Connor Estate v. Lindsay (1987), 51 Man.R.(2d) 65 (Q.B.), refd to. [para. 66].

Rodrigue v. Dufton (1976), 72 D.L.R.(3d) 16 (Ont. H.C.), refd to. [para. 66].

Lam v. Le Estate, [2002] Man.R.(2d) Uned. 10; 25 R.F.L.(5th) 72; 2002 MBQB 31, refd to. [para. 66].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (3rd Ed. 2006) (2008 Looseleaf), vol. 1, para. 14:20.120 [paras. 61, 65].

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), paras. 14.128 to 14.130 [para. 26].

Cheshire, Geoffrey Chevalier, and Burn, E.H., Modern Law of Real Property (14th Ed. 1988), pp. 208, 209 [para. 62].

Di Castri, J. Victor, Registration of Title to Land (1987) (Looseleaf), vol. 1, para. 239 [para. 35].

MacCallum, S., Severance of a Matrimonial Joint Tenancy by a Separated Spouse (1980), 7 Monash U. L. Rev. 17, generally [para. 69].

McClean, A.J., Severance of Joint Tenancies (1979), 57 Can. Bar Rev. 1, pp. 1 [para. 62]; 2 [para. 61]; 30, 31 [para. 66].

Tooher, Joycey, Windfall by Wager or Will? Unilateral Severance of a Joint Tenancy (1998), 24 Monash U. L. Rev. 399, generally [para. 69].

Counsel:

K.J. Muys, for the appellant;

R.N. Kushnier, for the respondent.

This appeal was heard on March 16, 2009, before Scott, C.J.M., Steel and Chartier, JJ.A., of the Manitoba Court of Appeal. Steel, J.A., delivered the following judgment for the court on July 16, 2009.