Siwak v. Siwak, 2016 MBQB 61

• Judge: Dunlop, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: March 17, 2016
• Jurisdiction: Manitoba
• Citations: 2016 MBQB 61;(2016), 327 Man.R.(2d) 91 (QBFD)

Siwak v. Siwak (2016), 327 Man.R.(2d) 91 (QBFD)

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. MR.030

William Mike Charles Siwak (petitioner) v. Dianne Lynne Siwak (respondent)

William Mike Charles Siwak (petitioner) v. The Estate of Dianne Lynne Siwak (respondent)

(FD 11-01-98045; 2016 MBQB 61)

Indexed As: Siwak v. Siwak

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Dunlop, J.

March 17, 2016.

Summary:

Mr. Siwak and Mrs. Siwak were married and held title to their marital home as joint tenants. They separated and were in the process of dividing their marital assets when Mrs. Siwak died. At the time of her death, legal title to the home remained as a joint tenancy. Mr. Siwak filed a survivorship request application with the Winnipeg Land Titles Office to be named sole owner of the property as a surviving joint tenant. Mrs. Siwak's daughter, as executor of her mother's estate, filed a caveat claiming a beneficial interest under a trust in relation to the marital home and claimed that the joint tenancy had been severed prior to her mother's death. Mr. Pauls was subsequently appointed as the Administrator with Will Annexed of the estate of Mrs. Siwak and it was ordered that the proceeding continue with the estate of Mrs. Siwak as respondent. The issues for determination were: a) Whether there was a course of dealing between the parties prior to the death of Mrs. Siwak that could be said to have severed the joint tenancy; b) The date of cohabitation of the parties.

The Manitoba Court of Queen's Bench, Family Division, found that Mr. and Mrs. Siwak intended to mutually treat their interest in the property as constituting a tenancy in common. Mrs. Siwak was entitled to an undivided one-half interest in the property. The court concluded that the parties commenced their cohabitation in or around March 1995.

Family Law - Topic 632

Husband and wife - Marital property - Matrimonial home - Joint ownership - [See Real Property - Topic 3886 ].

Real Property - Topic 3886

Joint estates - Severance of joint tenancies - Mutual acts which result in severance - Mr. Siwak and Mrs. Siwak were married and held title to their marital home as joint tenants - They separated and were in the process of dividing their marital assets when Mrs. Siwak died - At the time of her death, legal title to the home remained as a joint tenancy - Mr. Siwak filed a survivorship request application with the Winnipeg Land Titles Office to be named sole owner of the property as a surviving joint tenant - At issue was whether there was a course of dealing between the parties prior to the death of Mrs. Siwak that could be said to have severed the joint tenancy - The Manitoba Court of Queen's Bench, Family Division, found that "Mr. Siwak's assertion of a right of survivorship, whereby he would acquire exclusive ownership of the property, is entirely inconsistent with each co-owner's mutual intention as revealed by their conduct. Such conduct leads to no other conclusion other than that it was their intention after separation to divide their interests in the property and hold their interests in common rather than jointly" - See paragraphs 23 to 56.

Counsel:

Michael Capozzi, for the petitioner;

R. Grenville Waugh, for the respondent, Estate of Dianne Lynne Siwak.

This matter was heard before Dunlop, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on March 17, 2016.