Timko v. Kozub Estate and Kozub, (1984) 3 O.A.C. 33 (CA)

• Judge: Arnup, Morden and Tarnopolsky, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 30, 1984
• Jurisdiction: Ontario
• Citations: (1984), 3 O.A.C. 33 (CA)

Timko v. Kozub Estate (1984), 3 O.A.C. 33 (CA)

MLB headnote and full text

Timko v. Kozub's Estate and Kozub

Indexed As: Timko v. Kozub Estate and Kozub

Ontario Court of Appeal

Arnup, Morden and Tarnopolsky, JJ.A.

March 30, 1984.

Summary:

A husband and wife separated, but continued to live in separate apartments in the jointly-owned matrimonial home. The wife conveyed her interest in the property to her son. After her death her husband applied to set aside the deed as a disposition of an interest in the matrimonial home without his consent within the meaning of ss. 42, 44, of the Family Law Reform Act, R.S.O. 1980, c. 152.

The Ontario High Court allowed the application and set aside the deed. The son appealed.

The Ontario Court of Appeal dismissed the appeal.

Family Law - Topic 635

Husband and wife - Marital property - Matrimonial home - Disposition of interest in - Consent of spouse required - Family Law Reform Act, R.S.O. 1980, c. 152, s. 42, 44 - A husband and wife owned their matrimonial home in joint tenancy - The wife conveyed her interest in the property to her son without her husband's knowledge or consent - The Ontario Court of Appeal affirmed the setting aside of the deed after her death on the ground that disposition of the wife's interest without her husband's consent violated s. 42 and was voidable - The court stated that s. 42 affects proprietary as well as possessory rights.

Real Property - Topic 3891

Joint estates - Joint tenancies - Severance - Unilateral acts which do not result in severance - Disposition of interest in matrimonial home without spouse's consent - The Ontario Court of Appeal held that under ss. 42, 44 of the Family Law Reform Act, R.S.O. 1980, c. 152, conveyance by a spouse of her joint interest in the marital home without her spouse's consent was voidable.

Cases Noticed:

Re Sammon (1979), 22 O.R.(2d) 721, refd to. [para. 1].

Re Bank of Montreal and Norton, 44 O.R.(2d) 39, refd to. [para. 8].

Re Van Dorp and Van Dorp et al. (1980), 30 O.R.(2d) 623, consd. [para. 8].

Bendix v. Jonas, 27 R.P.R. 163, consd. [para. 9].

Lamanna v. Lamanna et al., 32 R.F.L.(2d) 386; 27 R.P.R. 142, dist. [para. 10].

Statutes Noticed:

Family Law Reform Act, R.S.O. 1980, c. 152, sect. 42, sect. 44 [para. 6].

Counsel:

J.D. Weir, for the appellant, the Executor of the Estate of Stella Timko, deceased, and in his personal capacity;

S. Schnurr, for the respondent, William Timko.

This case was heard on March 2, 1984, at Toronto, Ontario, before Arnup, Morden and Tarnopolsky, JJ.A, of the Ontario Court of Appeal.

On March 30, 1984, Arnup, J.A., orally delivered the following judgment for the Court of Appeal.