Chelen v. Chelen, 2011 ABQB 117

Court of Queen ’ s Bench of Alberta Citation: Chelen v. Chelen, 2011 ABQB 117 Date: 20110225 Docket: 1103 01663 Registry: Edmonton Between: Thomas Chelen Applicant - and - Douglas Michael Chelen Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This application arises out of a transfer of land in the City of Edmonton of a Residence (“Property”) owned previously by the Applicant with his wife.

Following the death of his wife, the Applicant had the Property transferred to both himself and his son, the Respondent, as joint tenants. The Property was transferred on February 18, 2003. [ 2 ] The Land Titles Certificate for the Property indicates that the transfer was for “Nominal” consideration, and the Applicant now deposes that he never received any payment either in money or services from his Respondent son, in exchange for the transfer of the title of the Property to both their names.

[3] The Applicant deposes that the Property was transferred to both himself and his Respondent son for the purposes ofconvenience and estate planning. The Applicant intended that after his death, the Property would be held in trust by the Respondent sonand sold. The proceeds of the sale would be paid out equally to his two sons, the Respondent and another son. This intention is alsoevidenced on page two of the Applicant’s Will dated October 14, 2008. [4] The Applicant now seeks to transfer the Property of the title back to himself solely so that he can sell the Property.

TheRespondent son apparently refuses to answer the Applicant’s telephone calls or to speak with him according to the Applicant’s Affidavitsince this matter was first broached with the Respondent by the Applicant through his solicitor in mid June 2010. [5] The Applicant is now 86½ years of age, and very concerned about his health. He wishes to move to a smaller home, and putup the Property for sale in the Spring of 2011. [6] The value of the Property at the time of transfer in 2003 was approximately $150,000, and the value although not specifiedcurrently of the Property would probably be around at least $400,000.

Conclusion [7] The Respondent did not appear in this matter, and appears to be unresponsive to the various correspondence from theApplicant’s solicitor since June 15, 2010 when the Applicant’s lawyer first broached the subject of the transfer back to the father withthe Respondent son.

On January 21, 2011 Originating documents were attempted to be served personally on the Respondent who lives inCalgary, but no answer was received at his address despite repeat knocking on the main entrance door of the residence. [8] Further attempts to serve the Respondent by email were also recently attempted on the Respondent’s email address, obtainedfrom the Respondent’s son. Neither the email correspondence or the original June 15, 2010 correspondence via regular mail were everreturned.

On February 10, 2011 the Originating documents of this application were sent by registered mail to the Respondent, but thosedocuments were returned on February 16, 2011 marked “Refused”. [9] Notwithstanding the Respondent’s non-appearance in Court when this matter was heard, I am satisfied by the number ofattempted service attempts that the Respondent is aware of these proceedings and has simply chosen not to respond or appear. [10] As for the application itself, the Supreme Court of Canada in two recent decisions Pecore v. Pecore, 2007 SCC 17 ,[2007] 1 S.C.R. 795 and Madsen Estate v.

Saylor, 2007 SCC 18 , [2007] 1 S.C.R. 838 has held that the law presumes aresulting trust when a gratuitous transfer is made between a parent and an adult child, rather than an outright gift of the beneficial interestin the home. There are circumstances in which that presumption can be rebutted such as pursuant to some agreement that the Respondentson would care for his parents during the parents’ remaining years. The presumption of a resulting trust can also be rebutted if theRespondent son could prove that his parents intended to transfer the equity in the house outright to him prior to their death.

TheRespondent son would bear the onus on this issue. [11] Based on the evidence before me, it is clear that the transfer between the parents and the adult child was a gratuitous transfermade for no consideration more or less contemporaneous with the provisions of the Last Will and Testament of the elderly father. Thispresumption of a resulting trust accords with the social reality in this case that the child is holding the Property in trust for the agingparent, to facilitate the efficient management of that parent’s affairs.

The presumption that accords with the social reality is thepresumption of the resulting trust: Reid v. Reid Estate, 2010 ONSC 2320 (Sup. Ct. of Justice). [12] As such I grant a declaration that the father is entitled to be the sole registered owner of the Property, and I direct that theRegistrar of the Land Titles Office for the Northern Alberta Registration District give effect to that declaration.

Heard on the 23 rd day of February, 2011. Dated at the City of Edmonton, Alberta this 24 th day of February, 2011. Donald Lee J.C.Q.B.A. Appearances: Kathleen Kenny Chatwin LLP for the Applicant Douglas Michael Chelan Did Not Appear