Asquin v Michetti, 2021 ABQB 16

Court of Queen’s Bench of Alberta Citation: Asquin v Michetti, 2021 ABQB 16 Date: 20210106 Docket: 2001 08549 Registry: Calgary Between: Liane Asquin Applicant - and - Marjorie Michetti, Sheldon Michetti, Carrie Michetti Respondents _______________________________________________________ Oral Memorandum of Decision of the Honourable Madam Justice K.M.

Eidsvik _______________________________________________________ Background [ 1 ] The Applicant, Liane Asquin, seeks an Order for vacant possession of her home at 140 30 th Ave NW Calgary (the “Home”) and other remedies including retrieval of certain personal property in the Home. The Home was held in joint tenancy with her close friend and former common law partner, the late Deanne Michetti, who passed away on February 8, 2020. The title of the Home was subsequently transferred into Ms.

Asquin’s sole name through her right of survivorship. [ 2 ] The Respondents, members of Deanne Michetti’s family who have been residing in the Home, have refused to leave, pay

rent, return Ms. Asquin’s personal items or acknowledge her beneficial ownership. At the hearing however, their position was that in equity, Deanne Michetti and the Applicant held the Home in common, not joint, tenancy, and as a result there should be a calculation of what the ownership interest is. [ 3 ] The parties agreed that the Home had been held in joint tenancy for a period.

However, the Respondents claim that this joint tenancy was severed at some point years before Deanne Michetti’s death. [ 4 ] Accordingly, the main issue to be determined is whether at Deanne Michetti’s death the Home was being held in joint or common tenancy with Lianne Asquin. The other remedies flow from this determination. The facts Procedural issues [ 5 ] The facts in this matter are discerned from the Affidavits of Liane Asquin filed on July 16 and September 11, 2020 and the Affidavit of Carrie Michetti filed on August 25, 2020.

Neither party were questioned on these Affidavits. [ 6 ] Counsel for the Respondents also sought to rely on documents from an Affidavit of Records that he filed in this Action on November 6, 2020. Counsel for the Applicant objected on the ground that the material was filed late and well beyond the time limits allowed under PN2 (otherwise known as the triggering dates). Accordingly, he did not respond with a further Affidavit from his client.

However, he did not request an adjournment and took the position that inclusion of these facts would not alter his legal position in any event. [ 7 ] Counsel for the Respondent explained that he had had difficulty getting several of the documents in question from the Court because of delays caused by the Pandemic – hence the delay in filing his client’s Affidavit of Records. [ 8 ] Rule 6.11(1) indicates: 6.11(1) When making a decision about an application the Court may consider only the following evidence: ... (

d) an admissible record disclosed in an affidavit of records under rule 5.6 ... (

e) evidence taken in any other action, but only if the party proposing to submit the evidence gives every other party written notice of that party’s intention 5 days or more before the application is scheduled to be heard or considered and obtains the Court’s permission to submit evidence [ 9 ] The Affidavit of Records contains, amongst other things, pleadings and Affidavits filed by both Lianne Asquin and Deanne Michetti, in action FL01-11844 started by the Applicant on March 2, 2011 which sought partition and sale of the Home.

There was also a cross-application at that time brought by Deanne Michetti for support and opposing the request for partition and sale. [ 10 ] Many of the documents in the Affidavit of Records are admissible since they are pleadings that a Court can take judicial notice of. I have some concerns about the Affidavits, especially that of the late Deanne Michetti, since this latter evidence cannot be cross-examined on. It is hearsay, and it is not clear that the exception to the hearsay rule applies.

In this regard, it would be admissible since it is “necessary”, however, its reliability needs to be taken into context of the proceedings at the time. In particular, it contains statements contrary to what Ms. Asquin deposed to recently in terms of the initial ownership of the Home for instance. Ultimately in light of the position of the parties here, these facts are not determinative of the application. [ 11 ] I will allow the documents in the Affidavit of Records to be taken into account in this application. I will consider the weight that I will give to them in my deliberations as I will discuss.

The relationship and agreement about the Home [ 12 ] Ms. Asquin and Ms. Deanne Michetti (“the Couple”) started their inter-dependant relationship in late 1998 or 2000. In June 2002, the Home was purchased and put in Ms. Asquin and her father, George Asquin’s name on the title as joint tenants. Ms. Asquin denies that she initially purchased the home “together” with Ms. Deanne Michetti. Ms. Michetti on the other hand swore in 2011 that both she and Ms.

Asquin put money towards the home and that the reason Deanne Michetti was not put on the title was because she was recently separated. [ 13 ] Although the Affidavits raise some conflicting evidence surrounding the history of the initial ownership, I do not find them essential to the determination that needs to be made here. If they were, I would send the matter to trial. [ 14 ] A $204,000 mortgage was listed on the title. The Couple moved in and lived in the Home together. They had joint accounts and paid all bills and deposited all their revenue into this account.

The bills included the mortgage payments and other charges. [ 15 ] The title was changed into Ms. Asquin’s sole name in March 2004 and a new mortgage was obtained in the amount of $228,750.

[ 16 ] The title was changed again on June 6, 2007 and Ms. Deanne Michetti was added on as a joint tenant. The value of the Home was increased to $625,000 and a new mortgage with the Royal Bank for $338,000, dated on the same day, was added. Ms. Asquin deposed in 2020 that they were both equally liable for the outstanding mortgage balance, on this and subsequent mortgage renewals from this time on until Deanne Michetti’s death. [ 17 ] Further, the Couple chose to life insure the mortgage debt on the Home on both of their lives. Ms.

Asquin explained; “such that if either of one of us should die the other would become the sole owner as surviving joint owner mortgage free.” Ms. Asquin attached the life insurance documents in that regard wherein it noted that the coverage had been approved on August 26, 2010 and continued through to Ms. Michetti’s death. The last renewal, along with the mortgage life insurance, was issued in the fall of 2018. [ 18 ] Ms. Asquin moved out in 2008. There is a dispute about whether Ms. Asquin moved in with another partner. Ms. Asquin denies it.

In any event, both parties continued to keep their joint account open and continued to share finances, including the mortgage payments, and other Home expenses. [ 19 ] On August 10, 2010, the Royal Bank mortgage was increased to $430,000. Ms. Deanne Michetti stated in her Affidavit that the funds from this $100,000 increase and were used to pay off debts and expenses. In 2009, the Couple, according to Deanne Michetti, were discussing dividing their assets. They decided to continue to make mortgage payments jointly until the renewal in 2012 because otherwise there would have been a $15,000 penalty.

According to her, the plan at that time was that Deanne Michetti would take on the mortgage solely in 2012. However, this never happened. [ 20 ] Also notable was the fact that the Couple were investing in other houses and making profits on renovating them and flipping them. There were loans from both sides’ family members that were used to finance these endeavours. [ 21 ] In December 2010, according to Ms. Deanne Michetti, Ms. Asquin stopped paying her portion of the mortgage payments. Ms.

Asquin retained counsel and commenced an action for partition and sale of the Home and payment of joint debts on March 2, 1011. She deposed that the Home was worth $550,000 and that the mortgage was approximately $426,000. Lianne Asquin wanted equalization also for the mortgage payments and other expenses that had been paid since separation since she was no longer residing in the Home. [ 22 ] Ms. Michetti also retained counsel and replied by filing a Family Law Act claim for support and exclusive possession of the Home since she could not afford to live elsewhere outside the Home. She also noted that Ms.

Asquin had already received assets from the remortgaging of the home. She noted that her income was in the $50,000 range and Ms. Asquin’s in the $75,000 range. [ 23 ] The Claims were never pursued further. Thereafter, Ms. Michetti continued to be responsible and made the mortgage payments, and the Calgary property tax. She rented out portions of the duplex Home to her mother, her sister, her brother and his girlfriend over the years and kept all of the rent to offset the mortgage payments.

It is not clear what these payments were, but various deposits were made in the bank accounts to offset the mortgage and tax bills over the years. Ms. Asquin deposed that the market rent for the two duplex suites would be around $2,400/month. [ 24 ] There is quite a bit of evidence from bank statements etc. about the amount of the mortgage payments over the years. Notably, the payments came out of the Couple’s joint account up until March of 2016. The payments varied over time but were approximately $2,200/month including property tax.

In April 2016, the payments started being made from a joint account between Deanne and her sister Carrie Michetti. [ 25 ] Ms. Asquin kept the utilities in her name (although it is unclear who paid them since there was no mention of them in the bank statements – including the joint account which the Couple kept until 2016 - provided in Carrie Michetti’s affidavit). Ms. Asquin remained joint owner on title and remained on the mortgages which were renewed from time to time. The Couple’s lives continued to be both insured on the mortgages throughout. Ms. Asquin paid the house insurance, Ms.

Michetti’s cell phone and car insurance bills. It was unclear who was responsible for upkeep expenses although Ms. Asquin was upset that the Michettis recently wouldn’t let her in to perform some of the upkeep that was necessary. [ 26 ] Ms.

Asquin deposed that she and Deanne Michetti both knew and agreed that the Home would remain in their joint names with right of survivorship, they ultimately never took any steps to change the way they jointly held title and she also left many of her own items in the Home. [ 27 ] Shortly before Deanne Michetti passed away, after a long illness, she prepared a will dated February 3, 2020, that left the residue of her estate to her mother. The Home was not separately mentioned. [ 28 ] After Deanne Michetti passed away, Ms. Asquin took steps to transfer the Home into her sole name.

She also applied to have the life insurance proceeds payout the mortgage. She is now also paying the property tax on the Home (approximately $383/month). The last payment on the mortgage was made from Carrie and Deanne Michetti’s joint account in the amount of $1,031 (this payment had been made bi-monthly since the renewal in 2018). [ 29 ] Ms. Deanne’s mother, Marjorie Michetti still lives in the Home in one suite. She is in her late 70s and has lived there since she moved in in 2007. Ms. Deanne’s late brother’s partner lives in the other suite. Neither are paying rent to Ms.

Asquin or allowing her to enter the Home to retrieve her belongings and make certain necessary repairs. Ms. Carrie Michetti filed an Application for Probate of Deanne Michetti’s Estate. She claimed that Deanne Michetti owned the Home valued at $700,000 and approximately $14,800 in other personal goods. She had no other debts. Parties’ Positions [ 30 ] Ms. Asquin’s position is that she is the surviving joint owner of the joint tenancy and as such is the sole owner of the Home. A joint title can only be severed and considered a tenancy in common if there is

an act taken by one of the owners, by mutual agreement,

or by a course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common (Havlikv Whitehouse 2001 ABCA 278 and other cases). Separation, nor a will, does not work as to sever a joint tenancy and there were no stepsor documents that suggest that the Couple wanted to sever. [31] The Applicant seeks a declaration of beneficial ownership and various remedies with respect to repayment of rent and returnof her property. [32] The Michettis’ position is that all four unities of a joint tenancy must be present for a joint tenancy to exist.

The four unitiesare: title, time, interest, and possession. If one of the four unities is discontinued, the joint tenancy is severed and is automatically possession and interest were severed prior to Deanne Michetti’s death thereby defaulting the joint tenancy to a tenancy in common. [33] They argued that Deanne Michetti paid the mortgage alone since approximately 2010 and had sole possession of the Home.Further, that her will left her estate to her mother which would show intention that she meant to leave her portion of the Home to her aswell.

Analysis [34] Although it is unclear exactly what the beneficial ownership status of the Home was when it was originally purchased in2002, the Couple lived in it together from that time. Although Ms. Michetti may not have been on title initially, or responsible on themortgage until June 2007, they jointly contributed to both revenue and expenses, including the mortgage expense, for the Home andother matters through their joint account throughout this time. [35] The Parties agreed during argument that all unities of joint tenancy were present at the time of the Couple’s separationsometime in 2008. I also agree.

They were on the title at the same time, and they had possessed the property together. Their interestswere also equal as between the two of them eventhough their initial contributions are not clear. In particular, this is so, since when theMs. Asquin sought to divide their property in 2011, she only sought a difference in terms of a mutual debt owed to her mother andoccupation rent for the time since she had left the Home. She did not seek any differing interest from Ms.Michetti. Ms. Michetti alsodiscussed their interest as being equal other than pointing out that certain assets had already been paid to Ms.

Asquin which should alterher portion to be paid out. [36] Accordingly, the question is whether the joint tenancy they enjoyed was severed before Ms. Michetti’s death. [37] The test in this regard, as agreed, is as set out most recently in Havlik and as outlined above. Here, firstly it is clear that therewas no act taken by either of the parties that would operate to sever the joint tenancy. For instance, in the Sorensen case, the divorcedwife established a trust in favour of her son for her half of the property held in joint tenancy with her ex-husband and that was found bythe Court of Appeal to be

an act sufficient to sever. Notably, the fact that she possessed the property solely through a lease and hadwritten a will leaving her portion of the property to her son, was found not to have been enough to sever the tenancy. [38] Here, Ms. Michetti prepared a will that left her residual estate to her mother.

This, by itself, is not enough to sever a jointtenancy (Sorensen at para 25 and Alberta (Public Trustee) v Felske Estate 2007 ABQB 682). [39] Secondly, it is also clear that there was no mutual agreement to sever the joint tenancy. [40] The third branch of the test, whether there was a “course of dealing sufficient to intimate that the interests of all were mutuallytreated as constituting a tenancy in common” is more complicated here.

If by conduct of the parties one of the four unities is broken,then the joint tenancy will be severed and a common tenancy will be created. [41] I agree with the Respondents that at one point the joint tenancy was arguably working towards a severance, especially duringthe period where the parties were trying to separate their assets in late 2009 – 2011. The Statement of Claim issued by Ms.

Asquin was tothe effect that the unity of possession had been changed and that she no longer was content to pay a share of the Home expenses,especially the mortgage, without being compensated for the rent. [42] The reply however from Ms. Michetti at that time was that she did not want to sell the Home and separate the proceeds – butinstead, wanted to stay in the same situation that they were in previously. [43] As noted above, the parties did not proceed with any partition and sale proceedings.

Instead, the parties agreed that theywould remain on joint title, both remain responsible for the mortgage, continue with insuring their lives (as they had commenced in therenewal in 2010), and that certain expenses were to be incurred by each with the proceeds of any actual rent (and notional occupationalrent by Ms. Michetti) would be kept by Ms. Michetti to offset the mortgage expense. [44] Although Ms. Michetti remained in possession, she remained with the consent at this point of Ms. Asquin and with the intentthat the joint tenancy would not be severed, so the unity of possession was not broken.

This is a similar situation to the Sorensen casewhere the ex-wife remained in possession of the jointly held house with consent of the ex-husband. The Court held that the lease (for $1)for life did not sever the joint tenancy since it did not interfere with the characteristics of a joint tenancy. A similar finding was made in Re McKee and National Trust Co 1972 OR (2nd) 614. There the Court held that a lease did not destroy the unity of possession in thatcase.

The mutual intention was to continue the joint tenancy. [45] Similarly, here, the parties did not intend to sever the joint tenancy by allowing Deanne Michetti to remain in possession. Itwas by mutual agreement that she stay, offset the mortgage from the revenue of the Home, and both mutually insure the Home so thatthe mortgage would be paid off for the survivor. Accordingly, in this situation, the unity of possession did not sever the joint tenancy

arrangement. [ 46 ] Further, the unity of interest remained intact in light of their agreement about how the expenses and revenue from the property would be shared.

Counsel for the Respondents suggested that the case of Lemoine v Smashnuk 2008 ABQB 193 was helpful to show that a court will find no unity of interest when one of the parties bears the sole burden of paying the mortgage on the property. [ 47 ] Although I agree that paying the mortgage is indeed a factor in this determination, the facts in Smashnuk are distinguishable from here since there, the Defendant was only put on title to allow a mortgage to be place on the property in their joint names. Mr.

Smashnuk was never intending to possess the property, receive any revenue from the property, or make any payments towards the property. He was a bare trustee. Here, Ms. Asquin was making certain payments toward the property and foregoing revenue that would otherwise be her right for the property’s rental. The parties made an arrangement that was mutually satisfactory in terms of their financial contribution. Ms.

Asquin was far from a bare trustee. [ 48 ] Counsel for the Respondent also referred to the case of Christensen v Leigh 2009 ABQB 247 as another instance where joint tenancy was not found when one party was responsible for the mortgage payments. In that case, one party (

C) invested $10,000 and the other party (

L) lived in the property and made all of the mortgage payments. The Court found that there was no unity of possession or interest but instead C had a resulting trust. [ 49 ] Interestingly at para 8, Justice Yamauchi stated: “Had this Court found that the parties purchased the Property for investment purposes only, then it could be arguable that there was unity of interest, even though the Respondent lived in the house on the Property for a time.” The facts in that case are distinguishable from here in many respects, firstly because in the end, the Home was a sort of investment made by Ms.

Asquin, and secondly, the revenue aspect of the Home evened out the interests between the parties to a great extent. [ 50 ] Counsel for the Michettis also referred to Lutz v Lutz 2012 ABQB 300 as being a similar situation to this one. In that case two brothers purchased a house as joint tenants. The one brother however moved into the master bedroom and over the years took full responsibility over the house including paying for the mortgage.

The other brother moved out after some short time living there and paying some of the expenses to his brother. [ 51 ] Justice Erb found that the unities of title and time existed but queried whether the unities of possession and interest did.

She indicated at para 16 that these unities “must be considered in the context of all of the circumstances, including what the parties intended and how they dealt with the property after it was acquired.” In that case, she found that the intention was that the one brother was to own it independently, and the other brother was only helping his other one to own it by assisting him with the mortgage since he couldn’t qualify on his own.

She found no unity of possession or interest on the facts of that case. [ 52 ] This case is distinguishable on the facts from Lutz but I agree that intention is the key in determining whether the unities of possession and interest exist. Here, the Couple lived in the Home as equals and both contributed from their joint account for some time. After separation they continued this arrangement until shortly before Ms. Asquin sought a separation of their interests. However, in light of Ms. Michetti’s objection, the new arrangement was made. The unchallenged evidence of Ms.

Asquin was that they agreed that the life insurance would pay out the mortgage and that the survivor would take full ownership – whoever that may be. There was an intention of continued joint ownership here, unlike what was found in Lutz . [ 53 ] I also considered whether the unilateral preparation of Ms. Michetti’s will might suggest that she wanted to leave her portion of the Home to her mother. However, firstly, a “course of dealing” to sever requires that both co-owners know of the other’s position ( Hansen Estate v Hansen 2012 ONCA 112 at para 49 ). The evidence of Ms.

Asquin clearly shows that this was not her understanding. [ 54 ] As already noted, a will by itself, even if it had mentioned the Home, which it did not, would not have been enough to sever the joint tenancy ( Sorensen ). Also, the will might have been prepared so that it was clear that Deanne’s possessions (which were in the Home) would pass to her mother. So, the preparation of the will as an indication of intention is ambiguous and not terribly helpful. [ 55 ] I also note that during the period where the Couple were discussing separating their interests, both parties were represented by counsel.

Had the parties wanted to create a common tenancy at that time in the course of resolving their issues, a simple application pursuant to the Land Titles Act RSA 2000, c. L-4 , would have been possible (via s. 65 (

c) which allows a party to register a transfer that has the effect of severing a joint tenancy by serving an executed transfer on the other joint tenant). This was not done. [ 56 ] Ultimately, the onus to have the Court find that a joint tenancy has been severed is on the party that wants to show the severance – in my view this onus has not been met. I find that Ms. Asquin and Ms. Deanne Michetti were joint tenants at the time of her death, and that Ms. Asquin is now both the sole beneficial and legal owner of the Home at this time. Other relief [ 57 ] Ms.

Asquin seeks an order for possession and back rent at this time. Further, she seeks the return of the items listed in Exhibit B to her Affidavit. [ 58 ] Now that the ownership issue has been determined, I will adjourn the rest of this application for a short period of time so that the parties may meet and hopefully come to an arrangement that would be satisfactory. In particular, I understand that the Respondent Marjorie Michetti has indicated that she wishes to stay in the Home. Hopefully a tenancy arrangement with reasonable rent can be worked out which will allow this to happen.

Further, an agreement can also be reached to allow Ms. Asquin access to her Home, retrieve her personal items, and be paid compensation for the last few months of occupation. [ 59 ] To the extent that further Orders are necessary, the parties can make arrangements to come back before me.

Heard on the 18 th day of November, 2020. Dated at the City of Calgary, Alberta this 27 th of November, 2020. K.M. Eidsvik J.C.Q.B.A. Appearances: J. Edward Crane for the Applicant Nicholas Van Duyvenbode for the Respondents