Kerr v Kerr, 2017 ABQB 62

Court of Queen’s Bench of Alberta Citation: Kerr v Kerr, 2017 ABQB 62 Date: 20170130 Docket: 4803 171218 Registry: Edmonton Between: Jamie Bryann Kerr Applicant - and - Matthew Thomas Kerr Respondent _______________________________________________________ Endorsement Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________ [ 1 ] Ms.

Kerr asks the court to order that a $605,000.00 conditional offer on the matrimonial home be accepted and that $11,000.00 of the net proceeds from the sale be provided to her immediately so that she can pay off a CRA debt in that amount with the remainder of the net proceeds to be held in trust until their disposition can either be agreed or determined by the court. [ 2 ] The property was initially listed at $649,000.00, which listing price was subsequently lowered to $629,000.00. [ 3 ] The signed offer on the property anticipates a closing date of March 22, 2017, and includes the following conditions: - that the buyer’s property be sold on or before 9 p.m. on March 15, 2017.

The deadline on this condition was originally February 24, 2017, which was subsequently changed to March 10, 2017; - that the buyer will pay a deposit of $5,000.00 on or before January 17, 2017. The deadline for this condition was originally December 9, 2016, which was subsequently changed to December 21, 2016;

- a financing condition on or before January 27, 2017. The deadline for this condition was originally December 21, 2016, which was subsequently changed to January 4, 2017; - the buyer be satisfied with a review of the septic system inspection by January 27, 2017. The deadline for this condition was originally December 21, 2016 which was subsequently changed to January 4, 2017; - the buyer be satisfied with the information in the country residential property

schedule by January 27, 2017, the vendor having provided a completed

schedule by January 19, 2017. The deadlines for this condition were originally December 21, 2016/December 14, 2016, which were subsequently changed to January 4, 2017/December 23, 2016. [ 4 ] Under the terms of the purchase contract, the buyer’s property has not yet been listed for sale but will be listed for sale within 7 days from the acceptance of the offer on the Kerr property. [ 5 ] The listing for the Kerrs’ property has now expired.

However, the listing agent who has brought the current offer to the Kerrs has indicated to them that the prospective buyer remains interested in purchasing the property. [ 6 ] The listing agent has provided Ms. Kerr with a letter outlining some of the chronology, including that he had been retained by Mr. Kerr to list the property, that it was originally listed for sale on July 29, 2016 for $649,000.00.

After approximately 45 days, the list price was reduced to $629,000.00 The listing agent offered these additional comments: . . .[the list price was reduced] because after many showings the potential buyers did not like the amount of updating and work that the property is in need of and therefore no offers have been submitted to us. . . . [The offer of $605,000.00 is] a fair to good price to accept. Why I suggested this was because the home was sold in 2013 for $585,000.

In my personal opinion although the market went up in 2014, as of November 2015 the market had started to slide and has continued to slide in 2016. If I was asked to re-list the property, I would now re-list [it] at $615,000. $605,000 would be a good sale price given today’s conditions and the condition of the seller’s home. [ 7 ] The parties agree that if the $605,000.00 offer were accepted, there would be a maximum of $30,000.00 in equity available to the parties. [ 8 ] At the hearing, by way of follow-up to an affidavit filed on January 10, 2017, i.e. only two days prior to the hearing, Mr. Kerr offered Ms.

Kerr a cheque for $15,000.00 in exchange for her signing off her interest in the property to him and his accepting the risk of holding onto the property. Ms. Kerr refused that offer because she was unwilling to give up any right to matrimonial property she may have in the second half of the net proceeds [ 9 ] If all other things were equal, I would grant Ms.

Kerr’s application: in this market in Alberta, and in the circumstances of this case including the length of time the property has been on the market and the price which the parties paid for the property in 2013, the difference between a listing of $629,000.00 and an offer – even such a weak offer as the one here - of $605,000.00 would not be so great as to justify a prolonged legal fight. [ 10 ] However, the one factor which causes me to deny Ms. Kerr’s application is Mr. Kerr’s offer to give Ms.

Kerr a cheque cashable today in the amount of $15,000.00 in exchange for her signing over to him her interest in the matrimonial home. In light of the agreement between the parties, $15,000.00 represents at least, and probably more than, one half interest in the net proceeds from the home, this would be a fair offer to Ms. Kerr. [ 11 ] It is true, of course, that Ms. Kerr may yet have a matrimonial property claim against Mr. Kerr for more than $15,000.00. Her property claim was filed along with the divorce claim in March 2015.

Since then, there have been parenting and child support proceedings, but no development of the property claim. Given that Mr. Kerr earns over $100,000.00 a year, I am of the view that any matrimonial property judgment against him for $15,000.00 or less is as likely to be satisfied by Mr. Kerr with or without recourse to the matrimonial home. A final resolution of interest in the matrimonial home today will provide Ms. Kerr with funds to satisfy the CRA claim, remove her liability on the mortgage and maintain her credit rating.

She doesn’t lose any remaining matrimonial property claim; she just loses access to the net proceeds of the sale to satisfy any matrimonial property claim which may be eventually recognized in court proceedings. Mr. Kerr will assume all the risk of holding on to the matrimonial home. He remains potentially liable to any claim for matrimonial property which the court may eventually recognize. Heard on the 12 th day of January, 2017. Dated at the City of Edmonton, Alberta this 27 th day of January, 2017. J.B. Veit J.C.Q.B.A.

Appearances: Timothy A. Verhaeghe, Verhaeghe & Boisvert for Ms. Kerr William A. Dushenski, Blakely & Dushenski for Mr. Kerr