Anufriev v Kuznetsov, 2017 ABQB 159

Court of Queen’s Bench of Alberta Citation: Anufriev v Kuznetsov, 2017 ABQB 159 Date: 20170306 Docket: 4814 004451 Registry: St. Paul Between: Stefan Anufriev Plaintiff - and - Alexandra Kuznetsov Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.C. Read _______________________________________________________ Background : [ 1 ] The Plaintiff and Defendant were married for 34 years before separating in October, 2014. They divorced on May 16, 2016.

There is one remaining dependent child of their marriage, their 17 year old son, who has lived with his mother since the separation. [ 2 ] The parties are members of the Old Believers community near Plamondon, Alberta, but their history has not always been in Alberta. They married in Brazil and lived for at least part of their marriage in both Brazil and Bolivia. They are currently resident in Alberta but neither is a citizen of Canada. Ms. Kuznetsov is legally in Canada, on some basis, although she apparently has some restrictions on her ability to work. Mr. Anufriev’s status is more problematic.

He believes he is subject to deportation and says he cannot work in Canada right now. He said he was actually deported previously and had to return to South America while Ms. Kuznetsov and their son remained here. He says he is currently permitted to remain in Canada only to deal with this trial.

[ 3 ] Notwithstanding their immigration status, the parties were divorced in Canada and have property in Canada which is the subject of a matrimonial property Statement of Claim, commenced by Mr. Anufriev in March 2015. Ms. Kuznetsov counterclaimed in this action. [ 4 ] The main asset in issue is 1.4 acres of land (“the Land”) located at 68258 Campsite Road in Lac la Biche County. The Land is located slightly north of the Hamlet of Plamondon and has situated on it a double-wide manufactured home (“the Home”) with an unfinished addition attached to it.

The manufactured home is on concrete footings and has been attached to utilities. [ 5 ] The parties have agreed that the appraised value of the Land, with the manufactured home sitting on it, is $190,000. The parties have further agreed that the appraised value of the Home itself as a chattel is $48,000. Written appraisals of both were made exhibits by agreement. [ 6 ] Mr. Anufriev applied in chambers for an order that the Land and the Home be listed for sale together and that after sale, the net sale proceeds be held in trust pending agreement.

On May 16, 2016, Yungwirth, J of this Court ordered (“the Yungwirth Order”) the action to

summary trial for three days. Michalyshyn, J heard a case conference as contemplated in the Yungwirth Order and made a further order (“the Michalyshyn Order”) which specified that the only issues to be determined at this hearing were those arising from the sale of the Land and the Home and the division of matrimonial property. [ 7 ] It was a term of the Yungwirth Order that the evidence in chief of the Plaintiff, the Defendant and their witnesses was to be provided by affidavits filed but that the witnesses would be subject to conventional cross-examination at trial. [ 8 ] Mr.

Anufriev seeks immediate sale of the Land and the Home and equal division of the net sale proceeds. He seeks no exemptions. Ms. Kuznetsov opposes immediate sale of the Land and the Home. She argues that the Home is owned by the parties’ son and thus is not matrimonial property and not available for distribution. Additionally, she claims that a total of $51,000 was gifted to her alone and is exempt and that this amount or a larger amount of $70,000, being the value of the Land when it was purchased by her, is exempt from distribution as matrimonial property.

She suggests that the husband’s share is therefore $45,500. She further suggests that Mr. Anufriev owes her $5000 in spousal and child support which should be subtracted from his share. In her view, the remaining $40,000 could be set off against continuing spousal support of $1000 per month, for the next 3.5 years. Issues: [ 9 ] The issues for resolution are therefore these: 1. Is the couple’s son the true owner of the Home? 2. Does Ms. Kuznetsov have an exemption in the Land and, if so, what is the value of this exemption? 3. What is the distributable value of the matrimonial property? 4.

Should the Home and the Land be sold? 5. If not, how is the Plaintiff’s interest in the matrimonial property to be paid? Evidence: [ 10 ] The Plaintiff’s evidence was that when the family moved to the Plamondon, they had nowhere to live. He said that an acquaintance, Karl Chaschin, contacted one Jarett Gauthier on the parties’ behalf about the availability of a double-wide mobile home that Mr. Gauthier was prepared to give away to someone who would remove it. He said Mr. Chaschin arranged with Mr. Gauthier to take possession of and move the mobile home for the benefit of the parties.

The Plaintiff’s evidence was that the Land was gifted to the parties by Elana Martushev and her husband Konstatin Martushev, both of whom are also members of the Old Believers community, and the Land was a ‘welcome’ gift to the parties when they came to Canada. [ 11 ] Ms. Kuznetsov, the Defendant, is the registered owner of the Land. The certificate of title shows the land was transferred to Alexandra Kuznetsov on April 18, 2013, at a value of $70,000. The consideration for this transfer is shown as $1.00. The certificate of title was attached to Mr. Anufriev’s affidavit. [ 12 ] Mr.

Anufriev says he is not certain why the Land was transferred into the name of Ms. Kuznetsov alone but speculates it was because he was working out of Canada at the time and it was easier to put the Land into the name of Ms. Kuznetsov. He says also that perhaps the Martushevs thought that it would be sufficient to put the Land into the name of Ms. Kuznetsov alone because as the parties were then a married couple, it would be equally available to both of them. [ 13 ] Neither Elana nor Konstatin Martushev gave evidence. [ 14 ] From the dates of various documents attached to Mr.

Anufriev’s affidavit, specifically the certificate of title which documents the transfer of the Land and various invoices such as that for transporting the Home, it appears that the mobile home was moved to the Land well before the Land was transferred into Ms. Kuznetsov’s name. [ 15 ] Mr. Anufriev’s evidence is that he did much of the work necessary to affix the Home to the Land and to comply with the building and zoning requirements of Lac la Biche County. His evidence was that he had much experience in construction and he was the one that constructed the footings and built a deck.

He also said that he transferred money to Ms. Kuznetsov to pay their living expenses when he was working in Brazil. In support of this evidence, he attached a number of wire transfers, totalling $13,587 US made by him to Ms. Kuznetsov over the time period between July 2007 until January 2009. [ 16 ] Additionally, Mr. Anufriev said that his employer, Joe Martushev of Martushev Logging Limited, aided the parties financially

in making improvements to the Home. Mr. Anufriev exhibited a letter which he said was signed by Joe Martushev and by Mr. Anufriev. This letter details amounts paid by Mr. Martushev, totalling $64,250. The letter indicates these amounts were paid on behalf of Mr. Anufriev and Ms. Kuznetsov. Mr. Martushev did not give evidence. [ 17 ] Invoices are attached to Mr. Anufriev’s affidavit together with the Martushev letter. Some of the invoices show items sold to or services provided to “Stephan Unefrev”, “Sepan Anurev” or “Stefan Unefrev”. I infer that all of these are meant to refer to the Plaintiff.

Three are invoices issued to “Stefan Anufriev”; one is an invoice issued to “Kuznetsov, Alexandra”. Clearly, these invoices refer to the parties. A number also appear to reference the Land, either by using a lot number or the address. Others, however, are issued to other names: “Elan Martrushev and Rosy Trofimov”, “Martushev Logging Ltd. or “Karl Chaschin”. [ 18 ] Karl Chaschin swore an affidavit and appeared for cross examination. His evidence was that Mr. Anufriev hired him to move the Home from Plamondon to the Land and the agreement respecting this was with the Plaintiff. He said Mr.

Anufriev paid him in full for this work in cash and then requested a quote for the supply and installation of a culvert and building of an approach into the Land, as well as to supply and install a septic system and to construct a water well. Mr. Chaschin said that he moved equipment in and did this work on the Land. He also said he supplied and installed a septic tank and did all of the trenching for the Home and for the power supply. His evidence was that Mr. Anufriev paid for all of these improvements with the exception of the bill for the septic tank which remains unpaid. He said that Ms.

Kuznetsov was never around when he did this work and he never received any funds from her. [ 19 ] Additionally, he said he aided Mr. Anufriev with the other finishing, loaning him a diesel generator and some power hand tools but that Mr. Anufriev did most of that work himself. He said further that, to his knowledge, no money was donated from anyone else to do this work. He also said that, to his knowledge, the Land was donated to the parties from Konstantin and Elena Martushev. He gave no evidence about the source of his knowledge. [ 20 ] His affidavit also indicated that he had visited Ms.

Kuznetsov in October, 2016 in order to retrieve some of the equipment and tools he had loaned to Mr. Anufriev, including the generator and said that while he was there, Ms. Kuznetsov asked him to change the invoices, presumably those attached to Mr. Anufriev’s affidavit in connection with the work done on the property, to make it appear that she had paid them. Mr. Chaschin said he refused. He was extensively cross-examined on this conversation. His evidence did not change. [ 21 ] Mr.

Chaschin said nothing in his affidavit about any discussion he had with the previous owner of the Home before it was moved and was not asked about this in cross-examination. [ 22 ] Ms. Kuznetsov’s evidence in her affidavit was that the Home belongs to the parties’ son Agafonik Anufriev (“Nik”), and was “a gift to my son from the Old Believer community”. Her evidence was that the Plaintiff had never lived in this Home.

In response to the Plaintiff’s evidence about the circumstances under which the manufactured home was obtained, she said Mark Gauthier gave the Home to her son and that Jarett Gauthier had nothing to do with it. She attached to her affidavit a printed form bill of sale which she identified as being “signed by Mark Gauthier and not signed by Jarett Gauthier”. The bill of sale exhibited names Voyageur Electric (Mark Gauthier) as the seller of a Neonex Double Wide Trailer. The named buyer is Agafonik Anufriev.

Under the printed form heading “this vehicle was sold for the sum of...” there is written “the Buyer must remove the trailer from Voyageur property at his cost”. There is a signature over the heading “signature of the Seller” but it is illegible. The name Agafonik Anufriev is printed over the heading “signature of Buyer”. The bill of sale is dated May 13, 2009. [ 23 ] Ms. Kuznetsov’s evidence in cross-examination with respect to this bill of sale was a bit difficult to follow. [ 24 ] She was asked if she went to see Jarett Gauthier in 2015 to ask him to complete a bill of sale.

Her reply was that it was Mark Gauthier who signed the bill of sale. Eventually, she said she got the bill of sale from “his wife”. Later, she said it was “his sister” that gave her the bill of sale. When asked if she obtained the bill of sale in 2015 even though it is dated in 2009, her response was not direct. She said “I cannot see where it shows 2015.” [ 25 ] When asked if she had asked for the bill of sale to be put into her son’s name, her response was “when they gave this [Home] to us, they were ready to make this document”.

When asked again why the bill of sale was put into Nik’s name, she said this was because her husband had always agreed the Home was for the son. She was then asked if the Gauthiers were aware that Agafonik Anufriev was the name of her minor child and not the name of her spouse; her answer to the question was not responsive. She said something like this: I never met either Jarett or Mark but their sister, she gave me the letter.

She told me that my husband’s lawyer and friend went to see the Gauthiers and they said I requested this paper but it is not true. [ 26 ] None of Jarett and Mark Gauthier, their sister or the wife of either of them was called to give evidence. Neither did Nik give any evidence. At the beginning of the trial, Nik was named by counsel for Ms. Kuznetsov as a defence witness. Nik sat in the courtroom throughout the trial, but was not called to the witness stand. I note parenthetically that it was a term of the Michalyshyn Order that “[t]he Defendant shall produce the witness Agafonik Anufriev at the

Summary Trial for conventional oral cross examination by the Plaintiff.” [ 27 ] Nik filed an affidavit as required by the Michalyshyn Order. It says this: My mother and I have worked very hard and she bought this land we're currently living on, and we got a trailer that is in my name. [ 28 ] In respect to the Land, Ms. Kuznetsov’s affidavit evidence was that she bought it partly with money she earned “by an Old Believer custom where people would pay me to pray for them”. Later in the affidavit, she said “many people in the Old Believer community made gifts to me to help me to obtain housing”.

Exhibit C, attached to her affidavit, is titled “Gifts to Alexandra Kuznetsov to help her buy land” and contains 10 names, dates and amounts totalling $51,000. [ 29 ] Affidavits of the 10 persons named, as well as an 11 th , ‘Annette Tol’, were filed on October 27, 2016, or in one case, October 31, 2016.

[ 30 ] At paragraph 6, the Michalyshyn Order governs the use to be made of these affidavits at this proceeding. It requires the named persons to be produced for trial for the purpose of cross examination. The clerk’s notes from the appearance before Justice Michalyshyn that resulted in the Michalyshyn Order indicate that Michalyshyn, J ordered “subject to the direction of the trial judge, each [of the additional 11 witnesses for Ms. Kuznetsov] have to be produced at trial for the purposes of their cross examination.

The trial judge will be at liberty to disregard their affidavits should they fail to appear for cross examination.” [ 31 ] Paragraph 6 of the Michalyshyn Order appears to require the Defendant to produce the witnesses who swore the affidavits only if they have been cross-examined by the Plaintiff prior to trial, but this makes little sense and contradicts the clerk's notes. Further, oral submissions by counsel for the parties at trial show they understood the Order to be as set out in the clerk's notes and not as set out in the Order itself.

I infer that paragraph 6 of the Michalyshyn order contains a typographical error and the clerk's notes are accurate. [ 32 ] Thus, I conclude that under the terms of the Michalyshyn Order, I have the discretion to disregard the affidavits of the additional 11 witnesses for Ms. Kuznetsov since they were not called at trial. [ 33 ] Ms. Kuznetsov also said in her affidavit that she was the only person who contributed to the purchase and the upkeep of the Land and the Home. [ 34 ] In cross examination, her answers were frequently difficult to follow.

She did not directly answer many of the questions put to her and was, at times, evasive. The gist of her evidence in cross-examination was that the couple did not bring much money with them when they emigrated from Bolivia to Canada. She agreed that the parties had sold a home in Bolivia before they left and some farm machinery but when asked where this money went, gave various explanations. She said her husband took it all, that he owed money everywhere and was involved with the Mafia.

She contradicted herself in respect to the sale of the property in Brazil; at first saying it was not sold and was still in her father’s name and later saying it was sold by Mr. Anufriev by forging her signature when he went back to South America while her parents were in Australia. [ 35 ] She denied that Mr. Anufriev had done anything to improve the property but then agreed that he had hired Mr. Chaschin to move the Home onto the property. She said, however, that the work Mr. Chaschin said he did on the property did not take nearly the amount of time he testified to and that half of what Mr.

Chaschin said was a lie. [ 36 ] Specifically, she said that Mr. Chaschin had said something different on the witness stand from what he had said to her when he came to pick up his tools on October 13, 2016. In her affidavit, she said that in that conversation, Mr. Chaschin apologized to her for the invoices, admitting they were wrong but telling her that nothing could be done about this now because they were “in court”. This version of events was put to Mr. Chaschin in cross examination. He denied it. Credibility: [ 37 ] The parties’ evidence is contradictory on several key points.

In addition, there were allegations of lying or falsifying documents from both sides. Ms. Kuznetsov accused Mr. Anufriev of falsifying and forging documents connected with the work done on the house. Mr. Anufriev accused Ms. Kuznetsov of going to see Jarett Gauthier much after the fact, and requesting a bill of sale for the Home, giving him the explanation that it was required for insurance purposes and misleading Mr. Gauthier to name Nik as the purchaser of the Home by making him think that he was putting it into the name of Mr. Anufriev. Mr. Chaschin gave evidence that Ms.

Kuznetsov had asked him to falsify invoices respecting the work done on the Home and the Land. Ms. Kuznetsov accused both Mr. Anufriev and Mr. Chaschin of lying. [ 38 ] I must make findings respecting credibility before going further. [ 39 ] Where their evidence differs, I prefer that of Mr. Anufriev to that of Ms. Kuznetsov for four reasons. [ 40 ] Firstly, Ms. Kuznetsov answered critical questions in an evasive manner.

Her answers were sometimes unresponsive to the question asked and, even when the question was repeated, she failed to answer it in a straight forward manner. [ 41 ] Secondly, she contradicted herself on more than one occasion. For example, when speaking of the parties' home in Brazil, she at first said that her father still owned the land on which this house was situated. Later, she said that Mr. Anufriev had returned to Brazil and sold this land while her parents were in Australia, by forging her signature. [ 42 ] Thirdly, her evidence was also inconsistent. For example, she said that Mr.

Anufriev did nothing to improve the Land but she agreed that Mr. Chaschin had come to her home in the fall of 2016 in order to collect tools he had loaned to Mr. Anufriev. It was Mr. Chaschin's evidence and that of Mr. Anufriev that Mr. Chaschin had loaned tools to Mr. Anufriev so that he could do work on the Land. Ms. Kuznetsov did not give any alternative explanation for how Mr. Chaschin's tools came to be in her possession. [ 43 ] Lastly, her evidence was sometimes inherently improbable and at odds with other evidence.

She asked this Court to believe that the Gauthiers wanted to give the Home to the parties' son, who would have been less than 10 years of age at the time she says this gift was made. However, this assertion was contradicted by the bill of sale which she proffered which says on its face that the consideration for the "sale" was moving the Home from the Gauthiers’ property. It would have been impossible for a child of less than 10 to move a double-wide manufactured home and Ms. Kuznetsov agreed in her evidence that the Home had, in fact, been moved by Mr. Chaschin, although she disputed that Mr.

Anufriev had paid for Mr. Chaschin to do this. [ 44 ] Ms. Kuznetsov’s evidence was that her husband sold her parents’ land in Brazil while they were absent from that country by forging her own signature to some document.

In the absence of any evidence respecting the law relating to the sale of land in Brazil, I find it inherently improbable that Brazilian law is such that someone could sell land belonging to a party by forging the signature of another party, albeit a relative. [ 45 ] Neither party speaks English fluently or understands it completely and difficulties with understanding and communication are always possible. A Russian interpreter was used throughout and neither party indicated any difficulties with comprehension of the

proceedings or translation. Further, it was evident that particularly Ms. Kuznetsov understood some English. More than once, she began her answer to a question asked in English before it had been translated into Russian and more than once, she answered a question partly in English. [ 46 ] I cannot attribute the inconsistencies, contradictions and difficulties in answering in a straight forward manner to any difficulties Ms. Kuznetsov had with comprehension. [ 47 ] In contrast, Mr. Anufriev answered questions, for the most part, in a straight forward manner and did not contradict himself.

His evidence was also corroborated by Mr. Chaschin. [ 48 ] I accept Mr. Chaschin's evidence without reservation. He went to considerable effort to appear at this trial since he was working in Saskatchewan and had to take a day off work to appear at a court house in that province to give evidence by teleconference. Defence counsel asked him if he had gone to Saskatchewan to avoid these proceedings. Mr. Chaschin's response was that he was in the middle of a multi-year contract to work in Saskatchewan in the winter and had to give his entire crew the day off so he could attend, at considerable expense. Mr.

Chaschin has no monetary interest in the outcome of this proceeding and struck me as an honest witness. Ms. Kuznetsov accused him of lying but offered no reason why he would do so. The Law: [ 49 ] The Matrimonial Property Act , RSA 2000, c. M-8 as amended, (the “Act”) applies to these proceedings as they were commenced in Alberta, relate to at least one spouse who is “habitually resident in Alberta”, are connected with a divorce action, and relate to property located in Alberta: see s. 3 of the Act. [ 50 ] There was evidence in this trial of property in Brazil and in Bolivia.

Section 9 of the Act permits the Alberta court to distribute property in Alberta in such a way as to give effect to a distribution of all property whether located in Alberta or not. Ms. Kuznetsov's evidence was that Mr. Anufriev kept all the money from the property that was sold in South America and she got none of it. However, she made no submissions about how I should treat property in other jurisdictions in making my order. Mr. Anufriev’s evidence was that he built a house on land belonging to Ms. Kuznetsov’s father and located in Brazil which was promised to the couple when they married.

He said that the wife retained all of the proceeds when their home in Bolivia was sold and he believes Ms. Kuznetsov’s father retains the Brazil land and the house; he does not seek to have any value in or received from these South American properties included in the calculation of matrimonial property or taken into account on division.

His submission was that this judgment should contain a declaration that it does not deal with property located outside of Alberta so as to preserve the parties' rights to deal later with any foreign property in the foreign jurisdiction. [ 51 ] The general rule is that all matrimonial property acquired by spouses during a marriage is to be distributed equally unless it falls within one of the exceptions set out in s. 7(2) or s. 7(3) of the Act : s. 7(4) .

This provision legally recognises marriage as an economic partnership, founded on the presumption that the parties intend to share the fruits of their labour during and as a result of it, on an equal basis. [ 52 ] It is trite law that property not owned by the parties is not matrimonial property and not subject to distribution. Ownership of the Home: [ 53 ] Ms. Kuznetsov says that the Home belongs to the parties' son Nik. If I accept this evidence then, of course, the Home is not divisible property. [ 54 ] However, I do not accept her evidence.

The evidence about how the Home came to be registered in Nik's name is contradictory. Ms. Kuznetsov says the community gave the Home to Nik but gives confusing and contradictory evidence about how and when the bill of sale was created. Nik Anufriev's affidavit evidence does not confirm that of his mother’s and merely states the obvious -- that the Home is in his name. [ 55 ] Mr. Anufriev says the Home was obtained from Jarett Gauthier who agreed to give it to whomever would haul it from his property.

The wording of the bill of sale confirms that the consideration for the purchase of the Home is that the "buyer" must remove it from the seller's property. Both Mr. Anufriev and Mr. Chaschin testified that it was Mr. Chaschin who moved the Home to the Land on the instructions of Mr. Anufriev and that Mr. Anufriev paid for this work to be done. This evidence was not contradicted by Ms. Kuznetsov. [ 56 ] Thus, the only evidence I have is that it was Mr. Anufriev and not Nik who paid the consideration for the "purchase" of the Home. While Ms.

Kuznetsov says the Home was a gift to Nik from the Old Believers community, the only evidence I have is that the Home was owned by someone in the Gauthier family. Ms. Kuznetsov variously says that she dealt with Mark Gauthier or a female member of the Gauthier family to obtain the bill of sale. She does not explain how or if the person or persons she dealt with in the Gauthier family were members of the Old Believers community.

As the Old Believers community is a community originally from Russia, and the Gauthier family does not have a Russian name, I question whether they are of Russian origin and whether they are members of the Old Believers community. No one gave any evidence that they were. As I have said, they were not called to give evidence. [ 57 ] Further, in 2009, when it appears the Home was moved onto the Land, Nik would have been less than 10 years old.

I find it inherently unlikely that anyone would have given a manufactured home to a child of less than 10 years old for the consideration that he had to move it. [ 58 ] I reject Ms. Kuznetsov's evidence on this issue. It is inherently unbelievable. Further, she contradicted herself saying at first she dealt with Mark Gauthier and then saying she dealt either with his sister or his wife. It was open to her to call one of the Gauthiers or even Nik, himself, to corroborate her evidence. She did not.

[59] Instead, I conclude that the evidence offered by Mr. Anufriev is more believable. It is corroborated as well by the evidence ofMr. Chaschin, who gave evidence about moving the Home onto the Land. [60] I conclude that the Home was a gift from the Gauthiers to the Anufriev-Kuznetsov family on the condition that it be removedfrom the Gauthier property and that it was through the efforts of Mr. Chaschin and Mr. Gauthier that this condition was satisfied.

It is,therefore, matrimonial property and divisible. [61] The Plaintiff argued, in the alternative, that the Home was a fixture and therefore part of the Land, having lost its character asa chattel. As a consequence, I reviewed the law of fixtures.

I have concluded, however, that the question of whether the manufacturedhome is a chattel or a fixture does not assist in the determination of ownership. [62] A chattel that has been sufficiently attached to land may be transformed to become a fixture: Bruce Ziff, Principles ofProperty Law, 6th ed (Toronto: Carswell 2014) at 217. [63] In this case, the manufactured home has become attached in numerous ways. I heard evidence of attachment by pipes to septictanks buried in the ground. It is also attached by pipes to a water source, a well dug in the ground.

It is further attached to a natural gasand an electrical source. It rests on poured concrete footings and is surrounded by skirting. The appraisal photograph of the propertyshows a substantial roofed front porch or deck has been built with steps leading down to the ground. Importantly, the entire width of theback of the manufactured home has had built onto it a substantial addition with doors and windows, which addition, according to thedescription of the appraiser, sits on a poured concrete pad. The photo of the addition shows it is unfinished on the outside. The insulationremains visible and it has no siding.

However, judging from the photographs and description of the appraiser, the inside is finished andbeing lived in. It is obvious that this addition and the front porch would both have to be destroyed in order to move the Home. There arepoured concrete sidewalks and a gravel driveway leading to the Home and there is landscaping around the Home. [64] Attachment to the land raises a rebuttable presumption that the chattel has become a fixture. The degree of attachment here isstrong evidence that it has become part of the realty. [65] The Court must determine the objective intention of the attachment.

Was the chattel attached for its better use as a chattel orfor the better use of the Land? [66] The characterization of manufactured homes is particularly difficult. The many cases that have considered whether amanufactured home had become a fixture are not possible to reconcile.

One thing is clear, however; if a manufactured home is placed onthe property by a non-owner of the land, such as a tenant, a court will be reluctant to determine an objective intention to make it afixture: see for example Personal Loan & Finance Corp v Dieckman Construction Ltd. , [1987] AJ No 1210 (QB Master). [67] In this case, therefore, the answer to the question of objective intention might be quite different depending on whether themanufactured home is found to belong to the son or to the parents.

It is for this reason that I have concluded that the degree ofattachment does not assist in determination of the question of ownership. Exemptions: [68] Section 7(2) (

a) of the Act creates an exception to the general rule of equal distribution of all property owned by the spouses,excepting out from division, property “acquired by a spouse as a gift from a third party”. [69] Ms. Kuznetsov says that 11 people, all members of the Old Believers community, in the Plamondon area, have given her cashin varying amounts and that these amounts are exempt from distribution. [70] The onus of proof of an exemption is on the spouse claiming it: Scheffelmeier v Krassman, 2011 ABCA 64, 505 AR 83 atparas 16, 32, citing Roenisch v Roenisch, 1991 ABCA 163, 32 RFL (3d) 233 at 236. [71] It is well-established law that the spouse claiming an exemption must demonstrate: (

i) the property on which the exemption is based either still exists or is traceable into property that still exists; and (ii) the market value of the property at the relevant time can be ascertained. [72] With regard to tracing exempt property, the Alberta Court of Appeal has held that tracing can be established by inference,implication, or presumption, but that these concepts must be supported by some evidence that satisfactorily links the exempt property tothe newly acquired property: Harrower v Harrower (1989), (AB CA), 68 Alta. LR (2d) 97 (Alta.

C.A.); Carmichael vCarmichael, 2007 ABCA 3 , [2007] AJ No. 1 (Alta. C.A.). [73] Although the 11 individuals who say they gave money to Ms. Kuznetsov to purchase the Land did file affidavits, I haveconcluded that it would be unfair to accept this evidence. The Plaintiff had no opportunity to cross-examine them as they were not calledas witnesses at trial. I interpret the Michalyshyn Order as requiring the Defendant to call these individuals if she wished to have theirevidence considered.

That she did not call them raises the issue of whether their evidence could withstand cross-examination and I makea negative inference from the fact they were not called. Accordingly, I do not accept their evidence. [74] Ms. Kuznetsov says that individuals in their community gave money to her alone in accordance with an Old Believers custombecause she prayed for them. Other than her assertion that this is so, however, no other evidence that I am prepared to accept wastendered. This is also contradicted by the affidavit of value of land sworn when the Land was transferred into Ms. Kuznetsov's name.

Inthis affidavit, Ms. Kuznetsov swears that the "true consideration paid by me" was $1.00 although the value of the Land was $70,000.This affidavit of value was affixed to Mr. Anufriev's affidavit as part of the documentation of the Land transfer, but was not attached tothe transfer of land exhibited by Ms. Kuznetsov in her affidavit. Ms. Kuznetsov denied that her failure to include this affidavit of value aspart of the exhibit in her affidavit was an attempt to deceive the Court and explained that failure and the fact that she swore this affidavit

which she now asserts is incorrect, on her poor English language skills. She also said that the affidavit was sworn in this fashion because that is what the Marushevs asked for it to say. [ 75 ] As I indicated earlier, Ms. Kuznetsov's English is imperfect. However, my impression of her was that she is not naive but rather a savvy business woman and well aware that the transfer of land constituted a legal document that would be filed at Land Titles. The affidavit of value shows that it was sworn before a Commissioner for Oaths on December 12, 2012.

In the ordinary course, the Commissioner for Oaths would have asked Ms. Kuznetsov to swear that the affidavit was true. [ 76 ] I do not think Ms. Kuznetsov misunderstood the affidavit of value, nor do I think she was mistaken as to the legal effect of swearing the document to be true. Whether Ms. Kuznetsov's sworn statement in the affidavit of value is untrue or her now evidence of how she came to swear an untrue affidavit is untrue, her credibility is damaged.

If her assertion under oath at trial - that she swore an untrue affidavit because the Marushevs requested it - is true, then the obvious conclusion is that she was prepared to lie under oath in the affidavit merely to satisfy a request from an acquaintance. If her trial statement is untrue and the affidavit is correct, then again, she lied under oath. [ 77 ] Mr. Anufriev offers an alternative explanation for how the property was acquired, saying members of the community, Konstantin and Elana Marushev, gave the Land to the family as a welcome gift. This is not completely denied by Ms. Kuznetsov.

She agreed in cross examination that the Land had been previously owned by the Marushevs and that they were prepared to give it to her. However, she says she did not want to accept the Land as a gift and paid for it, offering them $51,000 she says she got as gifts from other members of the community. [ 78 ] She does not explain why she chose to accept gifts from others in the community but not that offered by the Marushevs. Further, the transfer of land and, particularly, the affidavit of value corroborate Mr. Anufriev's evidence and so does the evidence of Mr.

Chaschin. [ 79 ] There is, further, no corroboration of Ms. Kuznetsov’s evidence that even if she did receive gifts from other members of the community in the amounts she asserts, that these funds were used to purchase the Land. In other words, other than Ms. Kuznetsov's say- so, there is no evidence that satisfactorily links the gifts to the Land. [ 80 ] Neither of the Marushevs were called to give evidence respecting the circumstances of the Land transfer. There was no explanation for why they were not called.

Again, the failure to call these witnesses leads me to make a negative inference. [ 81 ] I conclude that Ms. Kuznetsov's claim of an exemption in the amount of $51,000 in the Land fails. She has not proven either that she received a gift in that amount or that any funds she received as a gift can be traced into the Land. [ 82 ] Her alternative assertion that she has an exemption of $70,000 in the Land because that was its value at the time of the transfer fails as well for the foregoing reasons.

Further, her counsel was not able to provide any authority for the proposition that a party who claims an exemption for a gift received during a marriage can claim an exemption for an increased value because the exempt amount is invested in a property that has a value greater than the exemption. Distributable Value of the Matrimonial Property: [ 83 ] The parties are agreed that the Land and the Home together are to be valued at $190,000. As I have found no exemptions, this is the total value of the property to be divided.

There is no reason to disturb the presumption of equal division and I conclude that the property should be divided equally between the parties. [ 84 ] I have no satisfactory evidence respecting the value of property owned in other jurisdictions or whether it still exists; the evidence about what happened to the funds from any property sold is contradictory. On this evidentiary basis, I cannot make any decisions which take into account the value of property held elsewhere than in Canada. Should the Property be sold: [ 85 ] The property consists of the residence where Ms. Kuznetsov resides with now 17 year old Nik.

Nik is still in school and both he and his mother wish to remain in the Home. Mr. Anufriev wishes to have the Home and the Land sold immediately. [ 86 ] These parties separated in October 2014, so Ms. Kuznetsov has had the sole use of the property for two and one half years. While it is unfortunate that Ms. Kuznetsov and Nik will have to move if the Home and the Land are sold, Mr. Anufriev is entitled to receive his portion of the matrimonial property. Both parties argued s. 2 of the Minors Property Act , c. M-18.1.

However, since I have found that Nik has no interest in the Home, this statute is inapplicable. [ 87 ] I conclude there is no reason that the Land and the Home should not be sold now. I direct that the Land and Home be listed immediately with an accredited realtor in the area under a multiple listing agreement to be sold as a unit. Ms. Kuznetsov must sign the listing agreement without any delay after it has been provided to her. [ 88 ] The listing price shall be $190,000 in accordance with the value established by the appraisal. Any offer that is within 10% of the list price shall be accepted.

If, after a reasonable period of time, the property remains unsold, the parties may seek the recommendation of the realtor as to the price he or she recommends the property be listed for. If they cannot agree to a reduced price, either party may seek the assistance of the court. [ 89 ] Upon sale, all proper costs of the sale will be paid, including realtor fees and legal fees and an accounting of these will be provided to each party. The balance of the purchase price will be paid to counsel for the Plaintiff in trust. He will divide the net proceeds into two equal shares. [ 90 ] From Mr.

Anufriev's share, an amount shall be deducted to pay all spousal support and child support due and owing to Ms.

Kuznetsov at that time. The remaining portion of Mr. Anufriev’s share shall be paid to him or on his direction. [ 91 ] Counsel for the Plaintiff will pay the remaining one-half share of the net proceeds to counsel for the Defendant together with all past due spousal and child support deducted from Mr. Anufriev's share in accordance with the foregoing direction. The amount so paid will be disbursed by counsel for the Defendant to her or on her direction. [ 92 ] As requested, I make a declaration that this judgment divides only property owned by the parties in the Province of Alberta.

I have made no orders in respect to any property located in any other jurisdiction and this judgment is not intended to affect either party's rights in respect to any real or personal property located in any jurisdiction outside the Province of Alberta. [ 93 ] Costs may be spoken to if required. Heard on the 22 nd to 24 th days of February, 2017. Dated at the Town of St. Paul, Alberta this 6 th day of March, 2017. D.C. Read J.C.Q.B.A. Appearances: Pierre V. Lamoureux, Lamoureux Culham LLP for the Plaintiff John Kozina, J. W. Kozina Professional Corporation For the Defendant