Wessa v Knight, 2014 ABQB 671

Court of Queen ’ s Bench of Alberta Citation: Wessa v Knight, 2014 ABQB 671 Date: 20141105 Docket: FL03 18974 and FL03 18163 Registry: Edmonton Between: Action No. FL03 18974 Kim Ellen Wessa Petitioner - and - Melvin Lee Knight Respondent And Between: Action No. FL03 18163 Melvin L. Knight Petitioner - and – Kim E. Wessa Kim formerly known as Kim E. Stephenson Respondent Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment.

Memorandum of Decision of the Honourable Associate Chief Justice J.D. Rooke I. Introduction . 3 II. F acts . 3 III. Issues . 4 IV. Analysis . 5 A. Action No. FL03 18974 . 5 1.

Summary Disposition . 6 i. Ms. Wessa’s claims in 18974 . 6 a. Claim 1 . 6 2. Mr. Knight’s application to reduce arrears . 8 B. Action No. FL03 18163 . 11 1. Did Ms. Wessa sell her joint interest to Mr. Knight? . 11 2. Is co-ownership terminated? . 12 3. On what basis should co-ownership be terminated? . 12 What is the value of the Carvel Property . 12 Downpayment and mortgage payments . 13 Presumptions in joint tenancy . 13 Occupation rent 15 C. Result 17 D. Costs . 17 V. Other Comments . 17 I. Introduction [ 1 ] I heard this matter as a Special Chambers application over two days, April 28 and April 29, 2014.

The parties agreed at the outset that, subject to some questions from me, they were prepared to rely on the affidavits, briefs and other materials filed as including everything they wanted to submit. I had the parties sworn in and they provided some oral evidence in response to questions from me. [ 2 ] Mr. Knight brought two applications; one is in Action # FL03 18974 (18974) seeking a reduction of arrears payable to his former common law spouse, Ms. Wessa, and the other was in Action # FL03 18163 (18163), seeking partition of the property they hold as joint tenants, known as the Carvel Property. Ms.

Wessa filed a counter-application in 18974, seeking a number of remedies, including additional child support payments for the period 1989-1996, relief from a settlement and release she entered into in 1998, relief from orders issued in 2003 and 2005 in applications in which she claims she was never served, and s. 7 expenses.

[3] These parties are both self-represented. That may explain why the “affidavits” filed by them were a combination ofevidence, which is the purpose of an affidavit, and opinion and argument. However, opinion and argument are prohibited under r 13.18of the Alberta Rules of Court, Alta Reg 124/2010 and contrary to the directions in Alberta (Human Rights Commission) v Alberta BlueCross Plan (198), 1983 ABCA 207 , 48 AR 192, 4 Admin LR 135 (CA) at para 8. Nevertheless, I have tried to separateevidence from opinion and argument and to come to a just resolution. II.

Facts [4] On the basis of the evidence and material before me, I find the following facts; [5] Mr. Knight was born December […], 1949 and was 64 at the time of hearing, and will turn 65 on December […], 2014. [6] From 1979 to present, Mr. Knight has operated “Brite-Knight Lofts”, a hobby sport racing pigeon activity. It has operatedfrom the Carvel Property since 1981, except for the period September 1997 – April 2004. [7] In or about 1981, the parties (Ms.

Wessa then known by the name of Stephenson) began cohabiting as common law spouses. [8] On […], 1983 Dustin Reed Stephenson-Knight, also known as Dustin Reed Wessa (Dustin) was born to the parties. [9] In June 1985 the parties purchased and began living as common law spouses on a property municipally described as […]Range Road 31, Messo West IV, Parkland County, Alberta, near Carvel, Alberta (the Carvel Property).

The property was purchased for$58,000 with mortgages dated June 24, 1985 registered for $43,000 to Edmonton Firefighters Savings and Credit Union and $12,000 toOdd and Brenda Gunderson. [10] On […], 1986 Karissa Jean Stephenson-Knight, also known as Karissa Jean Wessa, (“Karissa”) was born to the parties [11] The parties separated on July 28, 1986. Since the Order of Judge Jorgenson in 1986, Ms. Wessa has had sole custody of thechildren. The parties therefore cohabited for about five years, and Ms.

Wessa lived in the Carvel Property for just over one year. [12] On January 21, 1997 Justice Andrekson issued a judgment, under the Parentage and Maintenance Act, S.A. 1990, c. P 7,declaring that the lump sum payment ordered for child support (s 3 equivalent) then granted ($50,000 without interest, payable at $200per month commencing January 1, 1997) would be secured by a charge against Mr.

Knight’s interest in the Carvel Property.Maintenance was ordered at $100 per month per child commencing on March 1, 1997 until the end of December 1998, with support at$650 per month per child commencing January 1, 1999, all payable through deductions of amounts paid to Mr. Knight by the Workers’Compensation Board. Mr. Knight appealed that judgment, but abandoned the appeal before a hearing. [13] From September 1997 to April 2004, the Carvel Property was rented to third parties, during a period when Mr.

Knight lived ina common law relationship with Helen Jaggard. [14] On December 14, 1998, Justice Sanderman ordered that the amount of support over $200 per month ($100 per child) bestayed until further order of the Court, with any resulting order to be effective January 1, 1999.

This provision of the order was extendeda number of times. [15] On March 26, 2004, Justice Greckol ordered the obligation to pay child support for Dustin be suspended effectiveimmediately, because he had attained the age of majority. [16] On May 20, 2004, Justice Belzil ordered that child support payments for Karissa be suspended effective June 6, 2004 whenshe turned 18. [17] On March 30, 2005 Justice Read issued an Order, setting arrears in s 3 support at $44,626.86 and setting repayment of $200per month, and cancelled any previously granted stays of enforcement immediately, noting that Mr.

Knight received $26,600 per yearfrom Workers’ Compensation. No ongoing s 3 support was payable, notwithstanding the contents of Ms. Wessa’s affidavit that thechildren were still dependent, because Ms. Wessa had not filed a cross-application. This Order was not appealed by either party. [18] Until August 30, 2005 when they moved out of the family household, I find that Dustin and Karrisa were factually dependentsupon Ms. Wessa. I base this finding on Ms.

Wessa’s evidence that the children were dependent for “at least” five more months afterJustice Read’s Order, although there is some evidence from her that this extended to November 2005. In face of this conflict, and with nospecific evidence to support one sworn statement over the other, I accept the earlier. [19] The Servus Credit Union (successor to Edmonton Firefighters) mortgage was paid off on March 13, 2008, thus the mortgagewas paid off in just under 23 years. Mr.

Knight testified that he paid the second mortgage to the Gundersons, firstly making periodicpayments and then a final, reduced payment to pay it off. [20] Ms. Wessa claimed s 7-like extraordinary expenses for the children (for past periods) for the first time on `November 30,2009. III. Issues [21] The issues in this application are: 1. Should Mr. Knight’s arrears be reduced?

2. Should Ms. Wessa’s claims in her cross-application be granted, in particular: a. The difference between the calculated arrears and the actual judgment granted by Justice Andrekson; b. Relief from a settlement to which she agreed based on alleged misleading information from her lawyer; c. Reversal of an MEP credit to Mr. Knight in an application in which she claims she was not served; d. Relief from an Order suspending child support in 2005; e.

Section 7 expenses incurred while raising the children, who are now adults; and f. A lien on the jointly owned Carvel Property. 3. Did Ms. Wessa sell her joint interest in the Carvel Property? 4. On what basis should co-ownership be terminated? a. What is the value of the Carvel Property? b. Down payment and mortgage payments; c. Presumption in joint tenancy; and d. Occupation rent IV. Analysis A. Action No. FL03 18974 [ 22 ] In Action 18974, filed May 20, 2009, Mr.

Knight sought to reduce the arrears that Justice Read ordered on October 19, 2005 in Action # 9603 18886 (apparently the new action number was set by the Clerk’s office due to the change in legislation and court administration for actions relating to family separation of non-married parents). [ 23 ] On or about November 30, 2009, Ms. Wessa sought “a court review of the entire history of child support payments” (s 3) and “a determination of [Knight’s] obligation to pay a fair share of Extraordinary Expenses (s 7), together with interest” by filing material as a Cross Motion (or Cross Application).

Within this document and in an affidavit of the same date, Ms. Wessa further asserted the following claims: 1. Justice Andrekson calculated child support of $73,200 from January 1989 to December 31, 1996, in his January 21, 1997 Reasons for Decision in Action No. 9603 18886, but he reduced this to a judgment of $50,000. She therefore seeks judgment for $23,200.00, the difference between $73,200.00 and $50,000.00. 2. Her lawyer mislead her when he said he believed that the $12,000 paid to him to satisfy her legal account was all Mr. Knight was able to pay.

She accepted this on the basis that this was all that was recoverable, but that “we later realized he [Knight] was withholding and not disclosing his income from rental of the property nor his lump sum and tax return benefits that were due to him.” As a result, she seeks relief from $55,916.94 “Satisfaction of Judgement” credit to Mr. Knight’s MEP account on October 28, 1998 (see cheque and release, both executed in October 1998 contained in Mr. Knight’s affidavit, filed January 13, 2014, Exhibits T-1, V-1, W-1 and Y-1). 3. Ms. Wessa claimed that she was not served with the application Mr.

Knight brought for a $22,100 credit with MEP in November 2003. He applied on the basis he had overpaid because Dustin and Karissa were no longer children. She stated that because she was not served, she was not present to respond. Moreover, she claimed that this was notwithstanding that Justice Andrekson’s January 21, 1997 Judgement provided for the support to continue beyond majority if, as she deposed, the children were still living with, and dependent on, her and attending school until in or about November 2005. 4.

Relief from Justice Read’s March 30, 2005 Order suspending all further child support, even though the children were then still dependent, and setting the arrears to $44,626.86, payable at $200 per month. Again. Ms. Wessa claimed that she was not served, and only received information from MEP of the hearing, although she did provide an affidavit, but did not attend at the hearing. 5. Ms. Wessa claimed Mr.

Knight has not provided financial information about his income (including income from the Carvel Property and farming operations), other receipts, and financial resources available for child support, while he claimed a disability that was allegedly less than genuine, and for which he received benefits, and that those benefits should have been recognized for child support calculations, but weren’t. 6. Ms. Wessa claimed s 7 extraordinary expenses in raising Dustin and Karissa, over an 18 year period post separation, estimated at $213,068. The 50% claimed would be $106,500 (rounded to the closest $100).

Interest is also claimed at 5%. This is a retroactive claim. 7. Ms. Wessa claimed a lien on the Carvel Property for any resulting judgment, claiming that it has an assessed value of $204,600, and a market value of $180,000. She wants the property sold to pay off any amounts owing to her from his share of the proceeds 1.

Summary Disposition

[ 24 ] I can dispose of some of these claims quite simply: i. Ms. Wessa’s claims in 18974 a. Claim 1 [ 25 ] This court does not sit in appeal of Justice Andrekson, and the limitation period for appeal to the Court of Appeal has long since expired. There was no appeal to the Court of Appeal, which would have been the remedy if Ms. Wessa had wanted to pursue it. Thus, that claim for relief is denied. b. Claim 2: [ 26 ] Mr. Knight cannot be held responsible for Ms. Wessa`s previous lawyer’s alleged breach of contract, or negligence. There is no claim against the lawyer in this action.

Moreover, the compromise was apparently made in October 1998 (on the basis of the dates in the evidence) and the limitation had likely passed by the time that Ms. Wessa filed this claim in November 2009 (11 years later). The date of knowledge of the alleged misrepresentation, which might be the start of the limitation date, was not clear in the evidence. As Mr.

Knight referenced (Knight affidavit filed March 21, 2014, p 14, re “1996 Negotiations, Satisfaction of Judgement), “Wessa made the conscious decision to relinquish a $50,000.00 child maintenance arrears amount and choose to accept an immediate lump sum cash payment”. Moreover, the Court, on all of the evidence, is not able to conclude that there was a misrepresentation on Mr. Knight’s behalf to the lawyer – both his evidence as to the representations, as well as better proof of Mr.

Knight’s situation at that time, would have been necessary in the evidence and is not at a standard upon which relief could be granted. Accordingly, this claim for relief is denied. c. Claim 3 [ 27 ] Absent affidavits of service, I do not accept Mr. Knight’s comments (Knight affidavit filed February 14, 2014, para 5) that Mr. Knight “always sent Mrs. Wessa notification of any pending court proceeding in a timely manner” – indeed, the evidence would appear to be exactly to the opposite effect with respect to, among others, the Orders of Justices Greckol, Belzil and Read. Ms.

Wessa gave evidence that she was not aware of the two former, even after they were granted, until after November 2009 (see para 27), and only became aware of the latter a day or two ahead, sufficient to file an affidavit. In any event, Ms. Wessa sought relief from Justice Read from the termination of benefits by Justices Greckol and Belzil, and Justice Read denied her because she had not filed a cross- application. [ 28 ] If Ms.

Wessa did not become aware of the service failure until 2009, as she alleged, the issue of arrears was before Justice Read in 2005 and that decision set out arrears that took into account that credit. If that calculation was in error, it should have been appealed then. It is now too late. [ 29 ] She also claims $15,600 ($650 x 24) otherwise owing from December 2003 to end of November 2005 for Dustin, while he remained dependent. Delay by itself may not disentitle an applicant from seeking arrears: DBS v SRG, 2005 ABCA 2 at para 121-122 .

Reasons such as insufficient resources, lack of knowledge, rear of reprisal, fear of counter applications, and conflict avoidance are all reasons that may justify delay. However, a payor parent has a protected interest in certainty, at least until the recipient parent gives notice, up to three years in the past, that they are seeking a retroactive change: DBS v SRG , 2006 SCC 37 at para 125 . Here, Ms. Wessa appeared before Justice Read and raised the question in 2005; again it is too late to revisit now. d. Claim 4 [ 30 ] Ms. Wessa’s submissions, made by affidavit, before Justice Read were dismissed.

These submissions raised many of the same concerns raised in Claim 3, and Justice Read denied ongoing child support because Ms. Wessa did not file a cross- application. Justice Read further set the arrears at $44,626.86, payable at $200.00 a month. If Justice Read’s Order was inappropriate, it should have been appealed. This member of the Court does not sit in appeal of any other member of the Court – such matters must go to the Court of Appeal. The limitation to go to the Court of Appeal is 30 days, and while an application could have been made to extend it (even retroactively), that was not done.

More importantly, with a copy of Justice Read’s Order in hand, it was clear that Ms. Wessa could then have mounted an application to provide such a “cross-application”. In fact, a new application for s 7 relief, supported by her already filed (and other) affidavit evidence would likely have been successful, if properly documented, but no such application was made. It was merely abandoned, until raised again in 2009. Thus, as in 3, this claim is dismissed. [ 31 ] There is also another reason; Calver v Calver , 2014 ABCA 63 is authority binding on me.

It holds that the Court has no jurisdiction to grant child support relief (s 3 or s 7) unless “the payor is served with an application: (

i) for retroactive support ( DBS ); or (ii) to disclose income ( Henry )”, while the child or children are still children of the marriage (at paras 28-30). e. Claim 5 [ 32 ] This Court cannot, absent evidence of fraud by a support payor, retroactively review, for correctness, the Orders of other Justices of our Court. That can only be done by the Court of Appeal – although applications could have been made to our Court to vary those Orders (generally for period after the date of the application) based on a change of circumstances.

Thus, as to fraud on the recipient of child support (and the Court) by the payor, there must be evidence to support the allegations, as Mr. Knight suggests Ms. Wessa was specifically advised by Justice Browne when she was Case Management Justice (Knight affidavit filed March 21, 2014, para 13). [ 33 ] In this case, Ms. Wessa claims Mr. Knight misreported his income. Mr. Knight argues (again at para 13) that the Court “received a correct accounting of [Knight’s] true income report as documented by Canada Revenue.” However, if there was fraud or misreported income, Ms.

Wessa has provided no clear evidence of that to the Court, other than bald assertions. Moreover, $1,300 per month child support represents a Guideline income of $90,800, and unless any alleged misreported income gave Mr. Knight more than

that amount of income, there would be no basis to adjust the support. No evidence was provided to show this, and thus this claim isdismissed. f. Claim 6 [34] The reasoning in Calver applies here as well, and this claim is dismissed. g. Claim 7 [35] The claim for a lien on the Carvel Property will be dealt with in conjunction with Mr. Knight’s application for partition. 2. Mr. Knight’s application to reduce arrears [36] Mr. Knight sought to review the Maintenance Enforcement Program’s (MEP) Debtor’s Statement of Account for the period1999-2005 and thereby reduce the arrears ordered by Justice Read in 2005.

He claimed that, based on his income from 1999-2005, he hasoverpaid $21,000.00. He opposed Ms. Wessa’s cross-application. His application, which initiated this proceeding, was filed in January2009 (as explained in, inter alia, Knight affidavit filed March 21, 2014, para 4 and p 12 re “Melvin’s income – Recalculation MEPDSA). He argued that his income tax returns (then recently filed) demonstrated an alleged overpayment of $21,000, and he thus sought arecalculation of the arrears owing. However, it is to be remembered that this $1,300 per month support was: 1.

Initially awarded by the Order of Justice Andrekson in January 1997. Mr. Knight filed an appeal of this Order, but abandoned it inexchange for writing the arrears down at the point in time to $ 0 in exchange for a $12,000 payment to Ms. Wessa (that she used to payher Counsel); 2. no longer payable after March 26, 2004, as to Dustin, as a result of the Order of Justice Greckol of the same date, and, after June 6,2004, as to Karissa, as a result of the Order of Justice Belzil; 3. confirmed by Justice Read in March 2005, at which time she rejected Mr.

Knight’s filed affidavit in support of an applicationsimilar to this one (Knight affidavit to which he obliquely references – Knight affidavit filed March 21, 2014, p 13 para 2). Further thearrears, based on the $1,300 per month was confirmed by her Order, and was based on Justice Andrekson’s Order. Neither Order wasappealed; and 4. ordered almost four years before bringing this recalculation application. The only new evidence Mr.

Knight provides is theassertion in his February 7, 2014 and March 21, 2014 affidavits that when he turns 65, on December 17, 2014, his WCB benefits wouldterminate (see letter from WCB, dated December 12, 2003, Ex. J-2 in Feb. 7, 2014 affidavit), and he would begin receiving CanadaPension (CPP) and Old Age Security (OAS) “which is expected to be a possible $830.00 per month”. He provides no proof or documentsto support this last assertion. [37] Mr.

Knight further claimed (inter alia, Knight affidavit filed March 21, 2014, para 8) that support beyond the age of 18 wasnot permitted under the Parentage and Maintenance Act (since repealed and replaced by the Family Law Act), but that is not correct asthe Court can order support to continue beyond 18 under the Maintenance Order Act, RSA 1980, c M-1, s 2(2) while the child is adependent, as was the case in Justice Andrekson’s decision. See PT v RB, 2004 ABCA 244 at para 40. Indeed, Mr. Knight even alludesto this being the case (Knight affidavit filed March 21, 2014, p 11, in reference #2).

He argued further that any application for supportmust be made under that Act while the child is, in fact, a child, under 18. This is correct. Ms. Wessa did not advance a s 7 claim until thedependent “child” was two months short of 27. Calver v Calver applies in either event 5. [38] Reducing arrears is properly approached as a retroactive variation of a support order. Under s. 77(4) of the Family Law Act,variation of child support order may only be made if the court is satisfied that: (

a) a change of circumstances, including those provided for in the prescribed guidelines, has occurred since the making of the orderor the last variation order made in respect of that order, or (

b) evidence of a substantial nature that was not available at the previous hearing has become available, [39] The Court of Appeal in Haisman v Haisman, (1994) 1994 ABCA 249 , 157 AR 47(CA) said at paras 25-27: I wish to emphasize that the mere accumulation of arrears, without evidence of a past inability to pay, is neither a change under s.17(4) of the Divorce Act, nor a special circumstance. A present inability to pay arrears of child support does not by itself justify a variation order.

It may justify a suspension ofenforcement in relation to the arrears for a limited time, or an order providing for periodic payments on the arrears. However, in theabsence of some special circumstance, a variation order should only be considered where the former spouse has established on a balanceof probabilities that he or she cannot pay and will not in the future be able to pay the arrears.

In short, in the absence of some special circumstance, a judge should not vary or rescind an order for the payment of childsupport so as to reduce or eliminate arrears unless he or she is satisfied on a balance of probabilities that the former spouse orjudgment debtor cannot then pay, and will not at any time in the future be able to pay, the arrears.

(Emphasis added) [ 40 ] The evidence of change of circumstances here is less than compelling, and certainly does not rise to the balance of probabilities. Mr. Knight has provided no clear and objective evidence of what his income will be after his 65 th birthday. Moreover, he knew at the time of Justice Read’s order in 2005 that his WCB benefits would terminate before the arrears were paid, but did not make that evidence available at the time.

Finally, and most important, all those payments were to be for support due in periods before he reached [ 41 ] I note as well, that at the oral hearing, in response to the possibility that a lump sum payment might be ordered to pay out the arrears, Mr. Knight pointed out that there was a possibility that his WCB benefits might continue until he turns 70, as he has filed an appeal. This assertion was not accompanied by any evidence, and in any event is speculative. [ 42 ] Mr.

Knight indirectly notes the parallel problems of both parties (Knight affidavit filed March 21, 2014, p 14, last full para), namely that what is inappropriate for Ms. Wessa (to claim past s 7 expenses) is also true for Mr. Knight (to seek to reduce past arrears in s 3 support payments). Both fail to understand the significance of the law applicable to these claims due to their lack of legal knowledge and legal advice. [ 43 ] There was some reference to Mr. Knight claiming “hardship”.

It is not clear if he uses that term in the context of s 10 of the Child Support Guidelines , which requires a comparison of household incomes, as Ms. Wessa understood it, or merely the common definition of the word. In any event, Mr. Knight clarified (Knight affidavit filed March 21, 2014, paras 4 and 6) that it is “incorrect and untrue” as to the claim for recalculation of his arrears, but true as to Ms.

Wessa’s claim for s 7 support claim, that I have now dismissed. [ 44 ] Therefore, not having appealed Justice Read’s Order, and now providing no new, credible, evidence that was not led before Justice Read in regards to his ability to pay between 1999-2005 or after he turned 65, the issue is res judicata . See for example Danyluk v Ainsworth Technologies In. , 2001 SCC 44 , [2001] 2 SCR 460, at para 18 . The application to reduce arrears is dismissed. The parties agreed that the arrears as at the date of the hearing were about $22,000.00 - $24,000.00.

Payments of $200.00 a month have presumably been paid since that time through MEP, approximately $1,400.00, reducing the arrears to between $20,600.00 and $22,600.00. A current MEP statement would confirm that amount as provided later in these reasons. [ 45 ] In support of his application to reduce or eliminate the arrears, Mr. Knight argued that he would not be able to pay the arrears when his income decreases at age 65. Despite his later assertion that the WCB payments may continue to age 70, I agree with Ms.

Wessa that the arrears should be paid in a lump sum from the equity in the property or from the proceeds of the sale of the property. This will bring finality to this long and protracted litigation, and I so order. B. Action No. FL03 18163 1. Did Ms. Wessa sell her joint interest to Mr. Knight? [ 46 ] In this action, Mr. Knight applied to sever the joint tenancy of the Carvel Property. He submitted that he purchased Ms. Wessa’s interest in the property in 1985: see Knight affidavit filed February 14, 2014, para 10: Mrs.

Wessa does not have any right’s (sic) to the property [Knight] has owned as a sole owner since August 9, 1985 when Mrs. Wessa sold all her rights of ownership and the joint tenancy was dissolved entirely and completely as acknowledged by Mrs. Wessa at the time she endorsed the receipt for purchase contract payment. He makes a similar claim in other places (including Knight affidavit filed March 21, 2014, last para). [ 47 ] Exhibit O to the February 14, 2014 affidavit is a handwritten document purportedly signed by both Mr. Knight, as Purchaser, and Ms. Wessa, as Seller.

The document is dated August 9, 1985 (shortly after purchasing the property) and reads: Purchase Agreement I do hereby sell one partnership of house and land at Blk 1 […] phase 4 Meso West. For the total sum of $1.00 (One dollar). To the purchaser M. L. Knight. Date this 9 th day of August 1985. This is to amend all, mortgage agreements, legal rights, securities, amenities in its entirety to the above stated house and land. [ 48 ] Mr.

Knight provides no explanation for his failure to produce this document until February 2014, saying only that “The Applicant recently recovered a property purchase contract and receipt...” He does not say from where or who it was recovered, nor how it was misplaced or lost. Nor does he explain why, if such a document was executed in 1985, he did not use it immediately, or soon after, to change the title to his sole ownership. [ 49 ] Ms. Wessa denies knowledge of this document and swears that she did not sell her interest in the Carvel Property.

At the hearing she swore under oath that the documents were forgeries. Also at the hearing, Mr. Knight produced what he claimed to be the original document, which was copied and the copy became Exhibit 1. [ 50 ] Ms. Wessa indicated in her January 7, 2014 at p. 5 affidavit that in 1987, through her lawyer, she offered to sell her share of the property to Mr. Knight for $1500.00. Mr. Knight does not deny this offer or the eventual agreement that was reached to accept the offer. However, in his March 19, 2009 affidavit, he agrees that he did not complete this arrangement and did not pay the $1500.00.

His affidavit further notes that Ms. Wessa filed a caveat to enforce the agreement selling her title for the $1500.00. Attached to his affidavit as an exhibit is a copy of the Caveat and the 1987 agreement between Ms. Wessa and Mr. Knight to transfer her title for $15000.00. Mr. Knight deposed that he commenced an action to remove the caveat, and that action “failed for want of prosecution.” In that same affidavit, Mr. Knight swears that he and Ms. Wessa are co-owners as joint tenants of the Carvel Property. His own affidavits are

inconsistent. [ 51 ] At no point in the March 19, 2009 affidavit does Mr. Knight mention the alleged Purchase Agreement. If, as he suggests, there was an agreement to sell Ms. Wessa’s interest to him, why did he not assert that there was no need to purchase the interest for $1500.00 because it had already been sold to him for $1.00. Equally, if he had, in fact, purchased Ms. Wessa’s interests in 1985 or 1987, there was no need for his application to sever the joint tenancy.

It is reasonable to infer that in 1987, only two years after the purported execution of the Purchase Agreement, he would have remembered that Ms. Wessa’s interests had already been transferred to him. [ 52 ] The Court of Appeal has told trial court to be cautious about assessing credibility on the basis “of conflicting affidavits and documents that would support either party's position”, and in the absence of viva voce testimony: see Charles v Young , 2014 ABCA 200 at para 4 and cases cited therein . Here there was some viva voce evidence, but this was not a trial and Mr.

Knight did not give oral evidence on the issue.

Given the nature of the hearing, a chambers application in which the parties were sworn in to answer questions I raised, and was not a trial proper, and the fact that the parties agreed at the outset that their filed material contained all the evidence and submissions they wished to have before the Court, I conclude it would not be safe to rely on this viva voce evidence. [ 53 ] In my opinion, however, the evidence in the affidavits makes it possible for me to draw inferences from the uncontested facts: Hopper v Hopper , 2014 NBCA 16 at para 19 ; de Rooy v Bergstrom , 2010 BCCA 5 at para 50 , and to consider documents that support one side and not the other. [ 54 ] I infer that if such a Purchase Agreement was in effect, Mr.

Knight would have used it to effect a change in title, at least at the time of separation or shortly in 1987 to say that Ms. Wessa’s interest had already been transferred, without the payment of $1500.00, or he would have applied to strike the caveat by asserting the Purchase Agreement, or he would have relied on it in his 2009 affidavit in support of his application. In fact, were it effective, he would not have sworn that he and Ms. Wessa were co-owners as joint tenants. I conclude that Ms. Wessa did not, at any time, transfer her interest in the Carvel Property to Mr. Knight. 2.

Is co-ownership terminated? [ 55 ] Both parties wish the joint tenancy and co-ownership terminated. I so order. 3. On what basis should co-ownership be terminated? i. What is the value of the Carvel Property [ 56 ] Mr. Anderson prepared two appraisals, one in 2011 and another in 2013. The 2011 appraisal concluded the property was valued at $148,000.00; the 2013 appraisal valued the property at $105,000 (or $95,000.00 in a forced sale). Mr. Anderson filed an affidavit explaining why there was a difference between the 2011 and 2013 appraisals.

He noted that while the market had seen moderate growth between 2011 and 2013, the property had deteriorated. In particular he noted the following: 1. The subdivision of Meso West does not adhere to general market trends because the homes are mainly manufactured and the lands are low and swampy; 2. The data available for comparisons were different between 2011 and 2013; in 2011 there were comparable properties close by, while in 2013 they were farther out. He indicated that adjustments were made to take those factors into account; and 3. The property has deteriorated “significantly” since the first appraisal.

There was water staining on the ceilings in several rooms as the result of water infiltration that can lead to rot and black mold. Further, the foundation was cracking and slumping; the interior was in poorer condition; and the exterior structure, particularly the decks were in poor condition, and the septic system smelled as a result of seepage from the waste lines under the house. [ 57 ] The first factor was equally true in 2011 as in 2013, so it does not explain the decrease in value. The second is a neutral factor as Mr.

Anderson explained the differences in comparable properties were adjusted for these factors. Therefore, based on this evidence, the only reasons for the difference in appraisals is the deterioration in the property. I accept the earlier appraised value as Mr. Knight had a duty to preserve the property and didn’t do so, and Ms. Wessa had no ability to do so. I will, therefore, value the property at $148,000.00 for the purpose of severing the joint tenancy and terminating the co-ownership. ii. Down payment and mortgage payments [ 58 ] There was evidence about the down payment of $3000.00, and whether Ms.

Wessa contributed towards it, and about her contributions to the household while she was living there. Mr. Knight, in both his affidavits and in oral evidence, indicated that the down payment came from a refund of $4450.00 he received from a terminated lease. Ms. Wessa noted that she was a party to the lease and that the payment was made to both of them. This is confirmed in Mr. Knights January 13, 2014 affidavit at para 18 and by Exhibit I of that affidavit, “Statement of Receipt and Disbursement of Trust Funds”, which shows “Received from Matheson & Company in trust for Melvin L. Knight and Kim E.

Stephenson on July 19, 1985 -- $4550.00” (emphasis added). [ 59 ] Whether the money for the down payment came from a loan from Ms. Wessa’s parents, as Ms. Wessa alleged in her February 18, 2014 affidavit at page 7 without any corroborating evidence, or from the lease refund, which appears more likely given Exhibit I, it is clear that Ms. Wessa contributed at least equally towards the down payment. [ 60 ] Ms. Wessa also claimed to have contributed funds towards the mortgage payment in the year she lived in the house. She provides no corroboration of this, which is understandable 30 years later. Mr.

Knight says he made all the mortgage payments, but does not expressly deny that Ms. Wessa made contributions. I am inclined to accept Ms. Wessa’s statement. In any event, whether by direct payments or contributions in kind, she contributed towards the household during the year she lived there, including buying furnishings

and other necessary items and caring for the home. iii. Presumptions in joint tenancy [61] There is a presumption that joint tenants hold equal interests, but that presumption is rebuttable by the party seeking anunequal distribution: Edison Estate v Lewis, 2012 NLTD(G) 81 at para 17; and Gonzalez v Soto, 2009 ABQB 454 at paras 31-32.

Ifthere is a great discrepancy between the contributions to the property by the joint owners, the principle of unjust enrichment may beapplied: Aleksich v Konradson (1995), (BC CA), 5 BCLR (3d) 240 (C.A.) at paras 27-29; McDonald v Eckert, 2004BCSC 323 at para 42; see also Mastron v.

Cotton, (ON CA), [1926] 1 DLR 767, 58 OLR 251 (App Div), relied on inKazmierczak v Kazmierczak, 2001 ABQB 610 at para 91 in which the Ontario Supreme Court, Appellate Division said: Where one tenant has paid more than his or her share of encumbrances on the property, that tenant is entitled to an allowance for suchsurplus... [62] In Gonzalez, Justice Veit considered the factors set out in s. 17(2) of the Law of Property Act, RSA 2000, c. L-7 whendetermining whether unequal division is appropriate. That

section reads:

(2) In determining if an accounting, contribution or adjustment should take place or compensation be paid for an unequal division of theland, the Court shall, without limiting itself from considering any matter it considers relevant in making its determination, considerwhether (

a) one co-owner has excluded another co-owner from the land; (

b) an occupying co-owner was tenant, bailiff or agent of another co-owner; (

c) a co-owner has received from third parties more than the co-owner's just share of the rents from the land or profits from thereasonable removal of its natural resources; (

d) a co-owner has committed waste by an unreasonable use of the land; (

e) a co-owner has made improvements or capital payments that have increased the realizable value of the land; (

f) a co-owner should be compensated for non-capital expenses in respect of the land; (

g) an occupying co-owner claiming non-capital expenses in respect of the land should be required to pay a fair occupation rent; (

h) a co-owner has at the time the application is made under this Part rights in the land for which the co-owner would receivecompensation under the Dower Act if an order had been made under that Act dispensing with that co-owner's consent to the dispositionof that land. (Emphasis added) [63] The relevant factors from this list in this case are: a. Exclusion: Ms. Wessa’s evidence was that she left the home because of domestic violence and there was some supportfor that allegation in the record, including a letter from the RCMP and from a doctor who treated her for bruises.

This is sufficient toconstitute exclusion from the property. c. Third party rents: For a period of time, Mr. Knight received rent for the property, which he paid towards the mortgage,upkeep, and taxes. Ms. Wessa did not receive a share of those rents. d. Waste: Based on Mr. Anderson’s report, Mr. Knight has allowed the property to deteriorate, but that factor has beenadjusted for when I set the value of the property at the higher valuation, and therefore I will not double count it; e. Capital payment: Mr. Wessa made the mortgage payments for 22 of the 23 years of the mortgage.

He may also havemade improvements over time and there is some evidence of that on the record. However, he has allowed the property to deteriorate, asindicated in Mr. Anderson’s affidavit. f. and g. Occupation rent and expenses: Mr. Knight as the occupying co-owner claims non-capital expenses, such asinsurance and taxes, but he has paid no occupation rent. I will deal with the question of expenses and occupation rent in the next section. [64] The fact that Ms.

Wessa was excluded from the home and was not paid a share of third party rents weighs against an unequaldivision of the property, but the much larger factor is the fact that although Ms. Wessa contributed to the down payment and the firstyear of mortgage payments (most of which would have been interest that early in the mortgage), Mr. Knight paid off virtually all of thetwo mortgages. On the other hand, there was an increase in value in the property from the date of purchase to date. Had Ms.

Wessareceived the return of the down payment, as agreed to in 1987, she might have been able to invest those funds and earn interest orpurchased another property that also increased in value. [65] In my view, Ms. Wessa would be unjustly enriched if the property were to be divided equally. However, I find that Mr.Knight should not be entitled to the full increase in the value of the property. [66] As a result, I find that Ms. Wessa is not entitled to any share of the original purchase price, most of which Mr. Knight

effectively paid on his own. However, I find that she is entitled to some share of the increase in value of the property. This is not an exact science, but an exercise of what is reasonable in all of the circumstance. I conclude she is entitled to 1/4 of the increase in value of the property. The property was purchased for 58,000.00 and I have valued it now at $148,000.00 for an increase of $90,000.00. One quarter of that is $22,500. iv.

Occupation rent and expenses [ 67 ] Slatter J., as he then was, in Kazmierczak discussed the common law principles of occupation rent, noting (at para 88): At common law, all joint tenants have an equal right to the occupation of the whole of the premises, and neither had the right to exclude the other.

In limited circumstances the Courts would recognize a right to occupation rent in favour of the joint tenant who was out of possession. [ 68 ] Slatter J continued, noting that at common law, occupation rent may be considered where the party in occupation seeks reimbursement for expenses from the non-occupying party. He then went on to note that care must be taken in importing the common law concepts of occupation rent to the family law situation, in which there are “mutual obligations of support” (para 90). [ 69 ] At para 95, having reviewed the relevant jurisprudence, he summarized the relevant principles: (

a) The spouse who is not in possession generally should not be entitled to occupation rent if the other spouse is occupying the premises with the children of the marriage, and is not making a claim for support or a contribution towards the expenses of the house. (

b) Where the spouse in possession does make a claim for contribution towards the expenses of the house, that claim, the cross- claim for occupation rent, and any claim for spousal or child support should be considered together. The occupation rent would be a potential expense item in one party's budget, and a revenue item in the other party's budget . (

c) In many cases it would be simpler just to eliminate the claim for occupation rent from the equation, and deal with child support and spousal support at large. However, given that the Federal Child Support Guidelines now mandate certain levels of support for children, it may be unfair not to include a notional occupation rent in the guideline income and budgets of the parties, at least when considering spousal support. (

d) The spouse in occupation will generally not be entitled in the matrimonial property proceedings for any credit for the mortgage payments and taxes paid by him or her. Those payments should be a part of the support equation. The only possible exception is with respect to the portion of the mortgage payment that actually goes to reduce principal, as notionally one-half of that payment is made on behalf of the non-occupying spouse. See Balzar v. Balzar . However, if the party in occupation has not adequately maintained the property, and has essentially eroded its capital value, a set-off for the excessive wear and tear might be called for. (

e) There will be cases, such as Scott v. Scott , where the family unit can no longer afford to maintain the previous matrimonial home. If one spouse insists in staying in occupation of the house, and is prepared to make the necessary financial sacrifices, then fairness may require that occupation rent be included in the overall equation. (

f) Rarely, if ever, should one spouse be able to bank a claim for occupation rent, and present that claim in capitalized form years later as part of a matrimonial property action. (Emphasis added) [ 70 ] As to (a), Ms. Wessa was solely supporting the two children, and the child support payable by Mr. Knight was always in arrears. Thus this principle resolves in Ms. Wessa’s favour. As to (

b) non-capital expenses, these are offset by occupation rent. Mr. Knight paid all the taxes and insurance; if he sought repayment of those, Ms. Wessa would be entitled to occupation rent for her exclusion from her property. [ 71 ] Here, I find that Mr. Knight’s payment of taxes, mortgages and insurance were roughly equivalent to what he would have had to pay for accommodation, and Ms. Wessa received the benefit of his paying mortgage, taxes and insurance, without having to make contributions. In my view, these are a “wash”. Moreover, in seeking occupation rent many years later, Ms.

Wessa is “banking” a claim, which is unfair as described in (f). Although this offset by Mr. Knight’s “free ride” for the many thousands of dollars of s. 3 support, for the children while adult dependents, and s. 7 support, for their special expenses, over most of their lives, lost by Ms. Wessa’s untimely application. [ 72 ] Factors (c), (d), and (

e) relate to support. Such factors are more specifically relevant when the application is made in the context of a new or recent application to resolve property and support issues. Here, child support was dealt with separately from the property issues a long time ago, and I have refused to award either payment of s. 7 expenses or to change s. 3 support and arrears set by earlier court decisions. [ 73 ] Taking all of these factors into consideration, I find that no occupation rent is payable by Mr. Knight, nor is Ms. Wessa required to re-pay any expenses incurred by Mr. Knight in maintaining the property. C.

Result [ 74 ] The application to terminate co-ownership of the Carvel Property under s. 15 of the Law of Property Act is granted [ 75 ] Mr. Knight may purchase Ms. Wessa’s share of the Carvel Property by paying her i. the arrears as shown on the most current MEP Debtor’s Statement of Account; Ms. Wessa is to immediately obtain that Statement

and file it as an exhibit to her affidavit in this action; ii. $22,500.00 as her share of the Property; iii. any costs owing by him previously ordered ad remaining unpaid, as confirmed in her affidavit to be filed in this action, as discussed below. [ 76 ] As to the mechanism of payment, Mr. Knight is to pay the total amount into Court to the credit of Action #FL03 18163 by certified cheque, after which the Court will issue an Order directing the Land Titles office to transfer the carvel Property to Mr. Knight alone, clear of any caveats filed by Ms. Wessa. [ 77 ] Ms.

Wessa has an insurable interest in the Property to this extent and must immediately, upon receipt of this decision, insure it in her name alone to protect that interest. [ 78 ] If Mr. Knight does not purchase Ms. Wessa’s interest within three months of the date of this Decision accordance with para 76, the Carvel Property will be sold through a tender process, to be set by the Court on application, with a minimum tender price set at the amounts owing to Ms. Wessa, and any extra funds from the sale to Mr. Knight. D.

Costs [ 79 ] As the parties have been unrepresented for much of these proceedings and success has been divided, no costs are payable except as previously ordered and remaining unpaid. To set this amount, Ms. Wessa is to file and serve an affidavit proving these amounts. If the affidavit is not filed within 30 days, the value shall be deemed to be $0. V.

Other Orders and Comments [ 80 ] Before ending these Reasons, I must deal with a number of issues. [ 81 ] Each party has made vitriolic, hurtful and irrelevant comments about the other which add nothing to the proceedings, many of which are incorrect, and others, even if correct, were apparently only done for the irrelevant purpose of attempting to embarrass the other party. In the end, these comments only embarrassed himself or herself. There are many of these, not worthy of repetition, except to make the point. An example includes:

a) Mr. Knight, (Knight affidavit filed February 14, 2014) referenced, at para 3, Ms. Wessa’s alleged infidelity, and at para 6, “Wessa had ... neglected the rights of her children to ensure that the children were considered first and foremost by Ms. Wessa” On this record, there could be nothing further from the truth, as it appears that Ms. Wessa did everything necessary to support her children in the extra expenses for post-secondary and related matters until the fall of 2005, without any help from Mr. Knight – if she erred, it was in not taking applications to continue the s 3 support when Mr.

Knight sought and obtained Orders, on applications with questionable or any service to remove them from support, and her failure to file an application for s 7 support, in each case based on their being dependent. [ 82 ] While the children were, from Justice Andrekson’s Order in January 1997, entitled to support beyond the age of 18, if they were dependent, it was incumbent on Ms. Wessa to make an application and to provide evidence to demonstrate that they were dependent.

That conclusion does not follow automatically, and the general presumption is that they are no longer entitled once they are 18, without evidence and application. She gave that evidence in response to Mr. Knight’s application before Justice Read, in an affidavit sworn March 23, 2005 (to which she made no specific cross-application for s 7 support), in which she deposed: 5. That both children – Dustin, age 22 and Karissa, age 18 still live at home and are supported financially by me.

Both children attend college full time and my financial support includes paying for college, providing vehicles and insurance, paying for medical insurance, providing food, etc. Both children maintain part time jobs to pay for gas and spending money. [ 83 ] Indeed, she went further and asked the Court to order the following: ... 2. That ongoing child support for both Dustin and Karissa be continued as ordered by Justice Andrekson as they are still dependent on me. [ 84 ] However, Justice Read ordered that she would not give effect to this evidence absent a cross-application. Ms.

Wessa made no application (cross or otherwise) then, or afterwards, to obtain such support under s 3 or s 7 – a matter easily handled with clearly anticipated success. She could have, after Justice Read’s Order, made the cross-application which was the reason for Justice Read’s refusal, or initiated a new application to have the Court consider the matter in face of a new application. She did neither. While Justice Read might have had sufficient evidence and a request (in Ms. Wessa’s affidavit) to support continued support, she did not so order. If that was in error, Ms. Wessa could have appealed, but did not.

The only reason for her not doing any of these three options appears to be her lack of knowledge of what to do, being a self-represented party. These are the risks of lack of legal knowledge or legal advice, and the Court cannot provide the latter. [ 85 ] The Court, in the near future, will prepare the Judgment Roll that follows from this Decision. [ 86 ] There has been a continuing minor issue about Ms. Wessa’s personal property which Mr. King agrees he has, but there have been difficulties in effective delivery. Mr.

Knight says he will send the property to her if she sends the shipping costs, but she doesn’t appear to trust him to send the property after she sends the costs. To solve this matter, I direct Mr. Knight to deliver the personal property to Ms. Wessa’s agent (personal or commercial) in the Edmonton area, without any shipping costs payable, within 30 days of her

providing the name and address of the agent to Mr. Knight by email. Heard on the 28 th day of April 2014. Dated at the City of Edmonton, Alberta this 5 th day of November 2014. J.D. Rooke J.C.Q.B.A. Appearances: Kim Wessa – Self-Represented Melvin Knight – Self-Represented