VanDenBussche v. VanDenBussche Trust, 2009 MBQB 308

• Judge: Cummings, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: December 02, 2009
• Jurisdiction: Manitoba
• Citations: 2009 MBQB 308;(2009), 247 Man.R.(2d) 174 (QB)

VanDenBussche v. VanDenBussche Trust (2009), 247 Man.R.(2d) 174 (QB)

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. DE.028

Craig VanDenBussche (applicant) v. Trustees of the Craig VanDenBussche Trust, Monique Adams and Noella Jacques (respondents)

(CI 09-11-00191; 2009 MBQB 308)

Indexed As: VanDenBussche v. VanDenBussche Trust

Manitoba Court of Queen's Bench

Morden Centre

Cummings, J.

December 2, 2009.

Summary:

The applicant was diagnosed with leukemia. He and his family had to move to Winnipeg for a period of time for treatment. The applicant's community created a fund to meet some of the family's expenses. Approximately $30,000 was raised. An account was opened and the funds were deposited at the local Caisse. The respondents (the main force behind the fundraising) were the signing authorities on the account. A portion of the account went to meet the expenses. The applicant and his wife separated after the move to Winnipeg. After the applicant returned home, the respondents notified him that the fund was no longer required and they intended to divide the funds between the applicant and his wife. The applicant objected to the disbursement of the balance of the account in that manner. Shortly thereafter, the applicant was notified of a deposit to his account from the respondents' account. The applicant requested that the respondents provide him with an accounting, but they refused to do so. The issues before the court were: i) was a trust created; ii) were the respondents the trustees; iii) if the respondents were trustees, were they in breach of their duties under the trust; and iv) should the respondents provide an accounting to the applicant.

The Manitoba Court of Queen's Bench declared that a trust had been created and that the respondents were the trustees of the trust. The court declined to make any order on the third issue at this point in the proceedings. The court ordered that the respondents provide an accounting to the applicant.

Trusts - Topic 345

Creation of trust - Requirements of - Certainty of subject matter of trust - [See Trusts - Topic 372 ].

Trusts - Topic 354

Creation of trust - Intention - Certainty of intention - [See Trusts - Topic 372 ].

Trusts - Topic 372

Creation of trust - Purpose or object - Certainty of objects - The applicant was diagnosed with leukemia - He and his family had to move to Winnipeg for a period of time for treatment - The applicant's community created a fund to meet some of the family's expenses - Approximately $30,000 was raised - An account was opened and the funds were deposited at the local Caisse - The respondents (the main force behind the fundraising) were the signing authorities on the account - A portion of the account went to meet the expenses - The applicant and his wife separated after moving to Winnipeg - After the applicant returned home, the respondents notified him that the fund was no longer required and they intended to divide the funds between the applicant and his wife - The applicant objected to the disbursement of the balance of the account in that manner - Shortly thereafter, the applicant was notified of a deposit to his account from the respondents' account - The applicant requested that the respondents provide him with an accounting - They refused to do so - The Manitoba Court of Queen's Bench held that a trust was created - The respondents' actions created a legal imperative in the minds of donors as to how their donations would be dealt with - The trust property was clearly defined as the deposits made to the Caisse account - The objects of the trust were also certain: the funds were to be used for the benefit of the applicant and his family during his treatments in Winnipeg - The fact that no specific provision was made in the event of a separation of the applicant and his wife, and no consideration was given to what might happen to any balance of funds after the applicant completed his treatments in Winnipeg, did not lead to a failure on the third certainty.

Cases Noticed:

Tucker Estate, Re, [1994] 2 W.W.R. 1; 92 Man.R.(2d) 41; 61 W.A.C. 41 (C.A.), refd to. [para. 11].

Authors and Works Noticed:

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), generally [para. 8]; c. 5:1 [para. 10].

Counsel:

Avaline J. Widmer, for the applicant;

Ryan P. Johnson, for the respondents.

This matter was heard before Cummings, J., of the Manitoba Court of Queen's Bench, Morden Centre, who delivered the following judgment on December 2, 2009.