Sirois v Andrews, 2017 ABQB 263

Court of Queen’s Bench of Alberta Citation: Sirois v Andrews, 2017 ABQB 263 Date: 20170411 Docket: 1503 08004 Registry: Edmonton Between: John Reynold Sirois Plaintiff - and - Shauna Ann Andrews Defendant _______________________________________________________ Reasons for Decision of R.P. Wacowich , Master, Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This is a dispute between a father (the Applicant, Sirois) and daughter (the Respondent, Andrews) over a residential property fully paid for by the father in the name of both parties as joint tenants.

The issues are did the father intend the daughter’s interest to be a gift from him to her as an interest in the land; if so is her interest subject to either a resulting or constructive trust in favour of the applicant. The application is to have co-ownership of the land terminated with the entire property transferred to the father. Alternatively, the father applies for the sale of the property and an uneven distribution of the sale proceeds in favour of the father. Background [ 2 ] The property in question is located at 386, 52313 RR 232, Sherwood Park, Alberta.

The daughter had purchased a property in the same subdivision in 2001 and the father purchased a property in 2007 in the same subdivision. He saw the property in question for sale in 2008 and decided to purchase it for himself and his daughter as joint tenants. He had experience with rental properties and has rental property in Tofield, Alberta.

He appears to be a relatively sophisticated businessman. [ 3 ] The father states in his affidavit that he decided to help his daughter by purchasing the home with her, fixing it up and reselling it to a third party so that he could split the profits with her on the resale. The daughter was to do renovations to make the property more saleable and valuable and handle the resale. He paid for the full property price out of his own funds. [ 4 ] It is clear that the property was put into joint tenancy so that on the death of the father the property would go to his daughter.

It is also clear that his daughter was responsible for substantial renovations to the building from 2008 to 2010. She and her husband

effected significant work to the property to prepare it to be rented. They painted the interior of the house, replaced flooring, installedbaseboards, renovated bathrooms, removed a large amount of debris and garbage from the shed and garage, performed landscaping andremoved old carpet. They also hired contractors to do landscaping and help maintain the premises, the costs of which they personallycovered. [5] She deposes that significant water damage occurred to the basement in 2010 as a result of flooding. This occurred after thefather turned off the sump pump later followed by a significant rain storm.

The property was repaired through an insurance claim but nofurther renovations were made. [6] The father deposes that the water damage occurred in 2014. He also deposes that “at no time did Shauna renovate...theproperty”. As can be seen from this decision the father makes assertions that are clearly wrong. [7] There is agreement that there was a significant breakdown in the relationship in January 2012. A very volatile andthreatening discussion took place between them which involved the appearance of the RCMP. The father notes in his affidavit that, “...shortly after the purchase our relationship broke down”.

In fact, it was not until after the January 2012 incident involving the RCMP thatthe parties’ relationship broke down. [8] The father deposes that on December 23, 2014 he had his lawyer ask the daughter to transfer the property back to him.Obviously he no longer wished her to have the property on his passing. The father is now approximately 84 years of age. By virtue of anagreement between the parties the property was put into the name of both as tenants-in-common in 2015.

The agreement was the subjectof a Consent Order wherein it was agreed that severance of the joint tenancy was without prejudice to the rights of either party in thisaction. [9] The property remains vacant with no revenue having been produced by it since the time of purchase. The daughter found arenter but the father chose not to rent, “because he didn’t want the property wrecked”. [10] As indicated, the father clearly intended her to be a joint co-owner and clearly expected her to benefit should he pass awaywhile the property was still in their joint names.

Because of their breakdown in relations it is clear he no longer wishes her to benefitfrom his 2008 decision in having both names on title as joint tenants.

Resulting Trust and Unjust Enrichment [11] The brief on behalf of the father indicates that while the title to the property was initially put into both names, resulting in astatutory presumption of indefeasible title, “the presumption of indefeasible title can be rebutted by the presumption of resulting trust”,Mac v Mak, 2016 BCSC 1140. [12] The Court in Mac states: “... if a gratuitous transfer is made to independent adult children the presumption of resulting trustmay apply ...

The court must examine all of the relevant evidence to determine the transferor’s intention regarding the property transfer... [I]f established, the onus is then on the transferee to rebut the presumption and prove the gift was intended.

Mac, supra, para 110. [13] With respect to a presumption of joint tenancy, in Wessa v Knight, 2014 ABQB 671, the Court states at para 61, “there is apresumption that joint tenants hold equal interest, but that presumption is rebuttable by the parties seeking an unequal distribution ... ifthere is a great discrepancy between the contributions to the property by the joint owners, the principal of unjust enrichment may beapplied.” [14] It is clear that the presumption of resulting trust is rebuttable and may be rebutted by the establishment of the fact that thedonor intended the transfer to be a gift or that there was consideration given for the transfer.

Miller v Walker, 2006 ABQB 424. Principles of Gifting [15] A helpful

summary on the basic principles of gifting is provided by Judge Skitsko in Dube v Young, 2012 ABPC 40. [16] A valid gift requires three elements: a. Intention to create a gift; b. Delivery of the item that is to be gifted; and c. Acceptance of the gift. Dube, citing Lehner v Grundle [1995] OJ No. 181, at para 28 [17] The question of whether the Plaintiff made a gift is a question of fact, and the Court must ascertain the intention of the donorat the time of the transaction – being when the gift was made. An absolute and irrevocable gift defeats any claim based upon resulting orconstructive trust.

Berdette v Berdette, (1991) (ON CA), 3 OR (3d) 513 [18] Constructive trust is also dealt with in the case of Miller v Walker, supra. The three requirements that must be met for unjustenrichment are an enrichment to the Respondent, a corresponding deprivation to the Applicant and the absence of any juristic reason forthe enrichment. The Court in Miller v Walker states at para 37: Juristic reason is assessed on the basis of:

a. Whether the Plaintiff has established that no contractual or other obligations exist to deny recovery; and b. Whether the Defendant has shown a reason why the enrichment ought to be retained. [ 19 ] The intention of the father must be ascertained from all of the circumstances leading up to and surrounding the transaction. [ 20 ] When he was questioned on his affidavit, the father explained that he wanted the property to pass to his daughter in the event of his death. The father understood that he and his daughter would own the property as joint tenants.

The father also indicated at his Questioning on Affidavit at page 11 and 12 of the transcript: Q You want Shauna Ann Andrews removed as joint tenant? A That’s correct. Q And why? A She never paid a nickel on it. That’s mine. Q Well, when you put title in your names as joint tenants you knew that Ms. Andrew had not paid anything for the purchase of the property, correct? A I put her name on it in case I die and that was explained to her. Q And now you’ve changed your mind, you do not want her to have the property – A I want to sell that piece of land. Q I see. A And I only gave her half. I did not change my mind.

You’re the one that’s trying to screw me. Q You gave her half, that’s what you just said? A I did not give her half. Q Well, that’s what you just said, Mr. Sirois. You only gave her; those were your words two seconds ago. Did you give her half or not? A Where do you get that that I gave her half? Q Because that’s what you just said. A I never said that. Q All right. A It’s my land, period. Q Now, you understood at the time you bought this property and put it in your joint names of you and Ms. Andrews that if you died she would get the property, correct? A I don’t answer anymore questions.

You always ask stupid questions [ 21 ] As further evidence of his intention, the father created a Will in 2007 which granted one half of the residue of his estate to the daughter and the other half to his son. While this Will has since been replaced, the 2007 Will is demonstrative of the father’s intention to gift an immediate interest to his daughter. She was already entitled to receive a future inheritance from him without needing to be put on title. If all he wanted to do was ensure that a future interest passed to her, his Will would have already accomplished that.

It is therefore reasonable to infer that he intended an immediate gift of the one-half interest to her in the property by putting her name on title. [ 22 ] The gift was accepted by her in that she signed all of the required purchase documents and did substantial renovations and work to the property. The gift was delivered by the title registered in both their names as joint tenants. [ 23 ] It is clear that his attitude towards her changed in 2012, well after they purchased the property in 2008. As of retaining his lawyer on December 23, 2014 it was clear he no longer had any desire to “help out” his daughter.

Nonetheless, despite the fact that his expectations for the property and his relationship with her did not proceed as he imagined, the Court will not revoke this valid gift. [ 24 ] There is ample authority for this point, which is best demonstrated by the Ontario Court of Appeal decision in Berdette - a case involving similar instances of property being purchased unilaterally by one family member and gifted to another.

There, the Court affirmed the following principle: The task of the court was not to correct a possible mistake in the judgment on the wife’s part, but to ascertain her intention at the time of the transactions. When the properties were purchased the wife intended her husband to be a joint owner of them. ... ... the failure of a donee to fulfil a donor’s expectations does not vitiate a valid gift. Berdette , at paras 11 and 17

While it is recognized that Berdette dealt with a gift from a wife to her husband, in my view this case involves an intended gift which cannot be vitiated by the change in their relationship four years after the gift. [ 25 ] Beyond the fact that the father cannot revoke the gift on the basis of him changing his mind, the fact that no express right of revocation exists precludes him from revoking or retracting the gift made to his daughter. Berdette , at para 18 Berdette was quoted with approval by Hunt-McDonald J. in Sharma v Raval , 2016 ABQB 404 at paras 352-353 .

There is no Basis for Unjust Enrichment [ 26 ] As previously stated, the presumption of joint tenants holding equal interest can be rebutted if there is a great discrepancy between the contributions to the property by joint owners. The basis for this is the equitable principle of unjust enrichment. ( Wessa v Knight , supra). [ 27 ] A finding of unjust enrichment requires three elements: a. One party suffering a deprivation: b. The other party enjoying a corresponding enrichment: and c. There is no juristic reason for the enrichment. Garland v Consumers’ Gas Co , 2004 SCC 25 at para 30 [ 28 ] He intended the gift.

He did not suffer a deprivation. Also, there is juristic reason for the daughter being enriched and receiving benefit from being placed on title. Her father’s intention was to irrevocably make a gift to her. There was consideration; the daughter did a considerable amount of renovation and other work on both the house and the property. She fulfilled her part of the bargain.

In any event, no bargain or consideration is necessary on a gift and in my view this was a gift which the father later regretted because of a later inability to continue “natural love and affection” sometimes referred to as consideration in family property transactions. [ 29 ] There will be no finding under

section 17 of the Law of Property Act to vary the equal interest of the parties. There is no reason for any unequal distribution in favour of the father on the basis of that

section and there is no resulting or constructive trust to minimize or extinguish the daughter’s interest. [ 30 ] Accordingly, this application is dismissed. The property will have to be appraised and sold either to one of the parties or a third party with both parties entitled to one-half of the net proceeds of sale. Listing price and acceptance of any offer to purchase can be determined by the Court, failing agreement between the parties. [ 31 ] Costs follow the event and accordingly are awarded to the daughter. Heard on the 6 th day of April, 2017. Dated at Edmonton, Alberta this 11 th day of April, 2017. R.P.

Wacowich M.C.Q.B.A. Appearances: Lawrence Hazlett Nickerson Roberts Holinsk & Mercer for the Plaintiff/Applicant

Murray Engelking Engelking Wood for the Defendant/Respondent