Derworiz (Re), 2021 ABQB 448

Court of Queen’s Bench of Alberta Citation: Derworiz (Re), 2021 ABQB 448 Date: 20210609 Docket: B201 461551 Registry: Calgary In the Matter of the Bankruptcy of Edward Marvin Derworiz Between: The Estate of Cecelia Derworiz Applicant - and - MNP Ltd. as Trustee for Edward Marvin Derworiz, Edward Marvin Derworiz and Diedre E. Derworiz Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice E.J. Sidnell _______________________________________________________ [ 1 ] On January 9, 2019, Edward Derworiz (the “Bankrupt”) filed an Assignment in Bankruptcy.

The Bankrupt and his former spouse, Cecelia Derworiz, separated in 2006. There are two major creditors of the bankrupt: (

a) the Applicant, the Estate of Cecelia Derworiz (the “ECD”), as represented by the personal representative of the estate, John W. Arthur, and (

b) the Respondent, Deidre Derworiz, the Bankrupt’s daughter. I note that the ECD made an error in the spelling of Deidre Derworiz’s name in the style of cause, but since no one has raised this as a concern, I will address the substantive issues raised without regard to this error. [ 2 ] The ECD seeks to enhance its recovery in the bankruptcy and applies:

(

a) under s. 69.4 of the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (the “ BIA ”), to have the stay lifted, or under s. 38 of the BIA , to have a cause of action assigned to it, in relation to: (

i) a residential condominium located in Canmore, Alberta (the “Condo”), which was held in the names of the Bankrupt and Deidre Derworiz at the date of the Bankrupt’s assignment into bankruptcy; and (ii) the proceeds of the Bankrupt’s investment in 25.977 units of Hampton House Limited Partnership which owned a multi-unit residential building (the “MURB”); (

b) under s. 69.4 of the BIA , to have the stay lifted against the Bankrupt’s registered retirement income fund (“RRIF”); (

c) under s. 136 of the BIA , for priority for costs awards in matrimonial proceedings; and (

d) under s. 135(5) of the BIA , to reduce or disallow the proof of claim of Deidre Derworiz. [ 3 ] The ECD’s Application raises seven issues: (

a) Issue 1: Should the stay of enforcement be lifted to permit the ECD to take enforcement steps against the Condo? (

b) Issue 2: In the alternative, should a s. 38 Order be granted to the ECD for its claim against the Condo? (

c) Issue 3: Should the stay of enforcement be lifted to permit the ECD to take enforcement steps against the MURB proceeds? (

d) Issue 4: In the alternative, should a s. 38 Order be granted to the ECD for its claim against the MURB proceeds? (

e) Issue 5: Should the stay of enforcement be lifted to permit the ECD to take enforcement steps against the RRIFs? (

f) Issue 6: Should the ECD receive priority for the costs that have been ordered in the matrimonial proceedings? (

g) Issue 7: Should the proof of claim of Deidre Derworiz be expunged or reduced? Background [ 4 ] The following brief chronology of events sets the stage for determination of the issues: (

a) In April 2013, Deidre Derworiz agreed to purchase the Condo by entering into an agreement with the vendor in her own name. (

b) Within days of agreeing to purchase the Condo, Deidre Derworiz was given the opportunity to take an overseas assignment with her employer in Paris, France. Deidre Derworiz received advice from a tax professional that she risked being deemed a resident of Canada for tax purposes, and therefore being subject to double taxation, if she owned more than one home in Canada and did not lease them out while working overseas. (

c) On May 13, 2021, before closing the Condo transaction, Deidre Derworiz and the Bankrupt executed a “Charge/Mortgage of Land” in relation to the Condo (the “Mortgage”) in favour of the mortgagee Computershare Trust Company of Canada. (

d) As of May 21, 2013, the Bankrupt was included on the certificate of title for the Condo as a joint tenant which, according to Deirdre Derworiz “was intended to evidence his legal ownership for tax purposes”. (

e) In January 2015, the bankrupt sold his interest in the MURB for $95,130. (

f) On April 7, 2015, Brown J issued his reasons in the matrimonial property action which the Bankrupt had commenced against Cecelia Derworiz: Derworiz v Derworiz , 2015 SKQB 100 , which included: (

i) a determination that the parties’ three RRSPs and RRIF should be split on a 50/50 basis and, as a result, an order that the Bankrupt transfer $108,934.63 from his RRIF directly to Cecelia Derworiz, based on the value of the investments in late 2006, noting that the three accounts had been significantly depleted by the parties after that date (paras 27 and 29); and (ii) a direction that the “MURB is to be divided and half of the shares/interest is to be registered to Cecelia” (para 57) because ascertaining “a value for this item proved to be elusive at trial” and on the basis that “half of the asset is a fit distribution where evidence of value is lacking” (para 38). (

g) On March 14, 2017, Cecelia Derworiz died. (

h) On November 9, 2017, the Court of Appeal for Saskatchewan, with one minor adjustment, dismissed the Bankrupt’s appeal from the decision of Brown J. (

i) On November 14, 2018, Master Robertson granted an Order registering the judgment of the Court of Queen’s Bench of Saskatchewan as a judgment of the Court of Queen’s Bench of Alberta (the “Judgment”), which states in part: “2. The Judgment shall be registered in the amount of $162,368.35, the particulars of which are: $108,934.63 representing then amount owed by the [Bankrupt] to the [ECD] for the RRIF; . . .

as at November 14, 2018, together with interest on the Judgment at the rate of 8.0% from the date of the Judgment being registered with this Honourable Court to the date of payment of the Judgment. 3. The [MURB] shall be divided and half of the share and interest therein is to be registered to the [ECD]. 4. The [ECD] may bring an application, upon 10 days’ notice to the [Bankrupt], at a later date to vary this Order to include the monetary value of half of the shares/interest of the [MURB], as stated in paragraph 4 of Judgment, in the event the [Bankrupt] does not comply with paragraph 3 of this Order. An affidavit regarding the monetary value of the [MURB] must accompany said application. (

j) On November 28, 2018, the ECD registered a writ against the certificate of title of the Condo pursuant to the Order of Master Robertson. (

k) On January 9, 2019, the Bankrupt filed an Assignment in Bankruptcy and completed a Statement of Affairs identifying two significant creditors: (

i) the ECD in the amount of $162,702; and (ii) Deidre Derworiz in the amount of $75,400. (

l) On February 15, 2019 (though the letter is dated February 15, 2018), one of the inspectors of the Bankrupt’s estate, Robert Arthur, wrote to MNP Ltd. as trustee for the estate of the Bankrupt (the “Trustee”) and requested that the Trustee place a caveat on the Condo title to preserve the Bankrupt’s share of that asset. (

m) On March 27, 2019, the Trustee registered the bankruptcy on the title to the Condo. (

n) On December 16, 2019, the Trustee prepared a Form 82 report, under s. 170(1) of the BIA , which described its investigation and states, in part: RRIF: The Trustee has received written confirmation from TD Bank indicating the RRIF accounts are exempt. The account balances are as follows: RRIF (USD) $6,138.50 and RRIF (Cdn) is $81,700.89. ... CONDO: The Inspectors questioned the ownership of the [Condo], where the Bankrupt resides ... The Bankrupt advised that he did not list the condo on his Statement of Affairs as it belongs to his daughter, Deidre Derworiz.

The land title search indicates that both the Bankrupt and Deidre Derworiz are owners on title. They both advised that it was put in the Bankrupt's name for Deidre's tax planning reasons. The Trustee recommended the estate obtain an independent legal opinion regarding the Bankrupt's interest in the condo. The Inspectors approved Miles Davison LLP be retained as counsel to the Estate to provide a legal opinion. The Trustee registered the assignment in bankruptcy on the title on March 27, 2019.

Miles Davison LLP has provided the Trustee with the legal opinion and based on the opinion, the Trustee is recommending no further action be taken in this regard. HAMPTON PROPERTY [the MURB] At the first Inspector's meeting, the sale of the Hampton property in March 2015 was reviewed to determine if whether it would be considered a transfer at under-value pursuant to the [ BIA ]. The Trustee requested additional information from the Bankrupt and from the former legal counsel as to who the Hampton property was sold to.

Documents indicate that the Bankrupt received $95,130 on January 23, 2015 and that he sold the property back to the Hampton House Limited Partnership, after it appears they canvassed some or all of the investors as to their interest in selling. He swore on the Statement of Affairs that $30,000 went into the BMO GIC account and the remaining $65,130 was used for living expenses since then. The Trustee will be recommending to the Inspectors that any further action be taken by the creditors pursuant to

Section 38 of the BIA , should they choose to do so. . . . PREFERENCE PAYMENT: The Bankrupt transferred $72,371.81 to his daughter, Deidre Derworiz ... in the 3 months prior to the date of bankruptcy. The Bankrupt and Deidre Derworiz have provided the Trustee bank statements showing the transfer of $72,371.81 to Ms. Derworiz's bank account. Ms. Derworiz's [ sic ] has wired back $43,000 to the estate bank account at the date of bankruptcy. The Trustee has worked with Deidre Derworiz to obtain further documentation to support her proof of claim and her final claim amount is $101,430.86.

Deidre Derworiz has already wired $43,000 to the estate bank account at the date of bankruptcy. Based on a draft Statement of Receipts & Disbursements, she would have been entitled to a net dividend of approximately 14%, or $14,200. The Trustee is recommending a further recovery of approximately $15,000 representing the portion of the preference payment not yet turned over by the creditor. (

o) On November 10, 2020, the Trustee prepared a Supplementary Report. The Trustee noted that this Application had been filed by the ECD and indicated that “[i]n addition to the facts mentioned in the draft s. 170 Report, the Trustee wishes to add the following additional facts and comments that may be of relevance to the Application”: (

a) Breakdown of Preferential Payments As noted in the draft s.170 Report, the bankrupt made preferential payments totalling $72,371.81 to his daughter, Deidre Derworiz ... This report provides additional detail for the Court on these transactions. The dates and amounts referenced are based on various account

statements obtained by the Trustee and attached hereto as Exhibit "B". On November 28, 2019, the bankrupt transferred $13,371.81 from his savings account to Deidre. On November 29, 2019, the bankrupt's chequing account shows a deposit of $8,314.51 from his RRIF. On December 3, 2019, $8,000was transferred from the bankrupt's account to Deidre's chequing account. On December 4, 2019, the bankrupt transferred $31,141.86 from his TFSA to his personal chequing account. These funds had been heldin a GIC.

The statements appear that the GIC was first purchased May 19, 2015 for a two year term, and the proceeds re-invested into asecond GIC upon maturity for another 2 year term. After transferring these funds to his personal chequing account, the bankrupttransferred $31,000 to Deidre's chequing account on December 4, 2019. The bankrupt advised, but the Trustee does not have backup to confirm, that the initial $30,000 investment in the GIC came fromproceeds of the MURB sale. With respect to the MURB, the bankrupt's interest was sold in January 2015 as described in the draft s.170Report.

The bankrupt advised he dissipated the rest of the sale proceeds (which totalled $95,130) on living and legal expenses. The Trustee reviewed the nature of the bankrupt's interest in the MURB, which actually consisted of units in a partnership rather than adirect ownership interest. The Bankrupt owned a total of 25.977 units in the investment, and the Partnership offered to buy units fromseveral partners for the price of $47,319 per 12.9885 units.

Sedar online information from that time indicates the Partnership owned a107-suite apartment project in Regina. 17 Partners completed a sale of their units in January 2015. The bankrupt accepted the offer topurchase his units on November 24, 2014 and closed in January 2015. On December 13, 2019, the bankrupt's chequing account shows a deposit of $20,000 from his RRIF. On December 14, 2019, thebankrupt transferred $20,000 to Deidre's chequing account.

Upon request from the Trustee's office, Deidre repaid the sum of $43,000 on January 28, 2019 and repaid the balance of the amountssent to her by the Bankrupt on March 17, 2020. Issue 1: Should the stay of enforcement be lifted to permit theECD to take enforcement steps against the Condo? [5]

Section 69.4 of the BIA states: A creditor who is affected by the operation of sections 69 to 69.31 or any other person affected by the operation of

section 69.31 mayapply to the court for a declaration that those sections no longer operate in respect of that creditor or person, and the court may makesuch a declaration, subject to any qualifications that the court considers proper, if it is satisfied (

a) that the creditor or person is likely to be materially prejudiced by the continued operation of those sections; or (

b) that it is equitable on other grounds to make such a declaration. [6] Lifting the stay under s. 69.4 is not to be undertaken lightly. As the Ontario Court of Appeal said in Ma v Toronto-DominionBank (2001), (ON CA), 143 OAC 52, at para 3: ... lifting the automatic stay is far from a routine matter. There is an onus on the applicant to establish a basis for the order within themeaning of s. 69.4. As stated in Re Francisco, the role of the court is to ensure that there are “sound reasons, consistent with the schemeof the Bankruptcy and Insolvency Act” to relieve against the automatic stay.

While the test is not whether there is a prima facie case, thatdoes not, in our view, preclude any consideration of the merits of the proposed action where relevant to the issue of whether there are“sound reasons” for lifting the stay. For example, if it were apparent that the proposed action had little prospect of success, it would bedifficult to find that there were sound reasons for lifting the stay. [7] The ECD says that it will be materially prejudiced if not permitted to pursue its claim because the Condo is a significantasset and the ECD is a creditor.

However, this is akin to saying that the scheme of the BIA should not apply to the ECD because theECD would be prejudiced by it. Sound reasons for lifting of the stay must be consistent with the scheme of the BIA. I find that the ECDwill not be prejudiced more than any other creditor would be under the BIA if the stay is not lifted. I also find that there are no equitablegrounds to make such a declaration. [8] I find it would not be appropriate to lift the stay to allow the ECD to pursue a claim against the Condo.

Issue 2: In the alternative, should a s. 38 Order be granted tothe ECD for its claim against the Condo? [9] Subsection 38(1) of the BIA states: 38(1) Where a creditor requests the trustee to take any proceeding that in his opinion would be for the benefit of the estate of a bankruptand the trustee refuses or neglects to take the proceeding, the creditor may obtain from the court an order authorizing him to take theproceeding in his own name and at his own expense and risk, on notice being given the other creditors of the contemplated proceeding,and on such other terms and conditions as the court may direct.

[ 10 ] In Smith v Pricewaterhousecoopers Inc , 2013 ABCA 288 , Rowbotham JA said, at paras 16, 18 to 19 and 22: To obtain an order under section 38(1) an applicant must satisfy a court that four criteria are met: (1) the applicant must be a creditor of the bankrupt estate; (2) the applicant must have requested that the trustee undertake the proceeding which the applicant now seeks permission to undertake itself; (3) the trustee must have refused or neglected to undertake the requested proceeding; and (4) there is threshold merit to the proposed proceeding, i.e., it is not obviously spurious. . . .

The threshold merit criterion emanates from the implicit gatekeeper function assigned to the court under section 38(1).

Without the authority to make an inquiry into the merits of a proposed action, the court would become a rubber stamp and there would be no utility in requiring a creditor to seek the court’s permission when the statutory criteria are met: Re Jolub Construction Ltd … An applicant seeking leave under section 38(1) must demonstrate a prima facie case, which must be supported by evidence and not mere allegations … The threshold is not particularly high, and requires the applicant to show that the claim is not “obviously spurious” … . . .

There is ample authority requiring an applicant to provide some evidence in support of the merits of its claim. In Re Nesi , the court commented that in addition to meeting the procedural requirements of section 38(1) of the BIA , an applicant must demonstrate a prima facie case which amounts to a requirement that “some evidence needs to be presented which is sufficient to persuade the court that the claim is not ‘obviously spurious’” ...

In Re Jolub the court stated that some screening of creditors’ claims was clearly contemplated by section 38(1) and that an applicant must establish a “sufficient case on the merits ... to warrant the Court’s approval to proceed” ...

Recently, in ATB v Callebaut the court stated that “an applicant must establish a threshold case sufficient on its merits to warrant the Court’s approval to proceed ... [t]here must be evidence beyond mere allegations to support the claim” … [ 11 ] In Commercial Insolvency in Canada , 4 th ed, the author states, at para 3.160, footnotes omitted: The court does not consider the proposed claim in any detail. The procedure is available to the creditor if in the opinion of the creditor the proceeding ''would be for the benefit of the estate".

A number of cases have considered whether the moving party must demonstrate there is a prima facie case with varying results.

However, the theme of the cases is that some evidence in relation to the proposed action must be submitted in support of the motion. ... [ 12 ] The parties in this case agreed that on a s. 38(1) application it is not necessary for the Court to undertake a detailed review of the merits of the proposed action and that the ECD must show that the claim is not obviously spurious, but it is based on some evidence. [ 13 ] The Trustee noted at the hearing that the procedural steps set out in s. 38(1) have not been met by the ECD, but also submitted that it would not be efficient for the ECD to have to correct these procedural missteps after this hearing and for the parties to return to court.

The ECD asserted that the Application filed October 13, 2020 was sufficient for a request under s. 38(1) . In my view, the s. 38(1) procedure does not contemplate communication to a trustee to be in the form of a court application. However, compliance with the procedural steps of s. 38(1) is not an issue because the Trustee conceded non-compliance should not be considered in this case and there was no objection raised by Deidre Derworiz. [ 14 ] The ECD says that the Trustee should be pursuing the Bankrupt’s interest in the Condo.

The Trustee registered a notice of the bankruptcy on title, thereby preserving the right to claim against it. However, the Trustee, after receiving a legal opinion, which has not been disclosed to the ECD, determined that it would not pursue the Condo as an asset of the estate of the Bankrupt.

The Trustee noted in its Brief that it does not take a position on the ECD’s request for an assignment of the action relating to the Condo under s. 38(1) . [ 15 ] The evidence that the ECD relies for the s. 38(1) order relating to an action against the Bankrupt and Deidre Derworiz in relation to the Bankrupt’s interest in the Condo is as follows: (

a) Evidence Book of the ECD: (

i) Affidavit of John Walter Arthur, sworn June 4, 2020: (

A) exhibit B, being a certificate of title for the Condo, dated November 28, 2018, noting the Bankrupt and Deidre Derworiz “as joint tenants are the owners of an estate in fee simple”; (

B) exhibit C being the Mortgage and showing the Bankrupt and Deidre Derworiz as joint tenants and as mortgagors of the Condo; and (

C) paragraphs 11 to 16, describing the Condo and the efforts of a bankruptcy inspector to have the Trustee register a bankruptcy caveat against the title to the Condo and obtain a legal opinion regarding the Bankrupt’s interest in the Condo, together with exhibit D, being a letter from the bankruptcy inspector, sent February 15, 2019, regarding obtaining documents regarding the ownership of the Condo and the registration of a bankruptcy caveat; and (ii) Certificate of title for the Condo, dated October 1, 2020, showing that, as March 27, 2019, the Trustee registered a Notice of Bankruptcy and the Bankrupt is shown as an owner “as to an undivided ½ interest”.

(

b) Affidavit of Deidre Derworiz, sworn November 6, 2020: (

i) specifically, paragraphs 34 and 37, which state: 34 Before completion of the Condo sale, I obtained tax advice from an accountant at PricewaterhouseCoopers retained by myemployer to advise expatriates. She indicated that I risk being deemed a resident of Canada for tax purposes, and therefore subject todouble taxation, if I owned more than one home in Canada and did not lease them out whilst working overseas.

Solely for this reason, Iadded my father to the title of Condo as a joint tenant which was intended to evidence his legal ownership for tax purposes. ... 37 Neither my Father nor I consider that he has any interest in the Condo other than that of a temporary occupant given that he wasplaced on title as a joint tenant solely for tax purposes. My Father holds his legal interest in the Condo in trust for me until he vacates theCondo or until I return to Canada as a resident, whichever is earlier.

At such time, it has always been our intention that my Father wouldtransfer his legal interest in the condo to me such that I held 100% of the interest.

We always deemed it unnecessary to enter into awritten agreement to document our intentions as my Father is well-aware that he has no beneficial interest in the Condo and is unable todeal with it in any way other than to reside in it temporarily at my invitation; and (ii) exhibit B, being a Purchase Contract for the Condo, dated April 3, 2013, between the vendor and Deidre Derworiz. [16] Deidre Derworiz takes the position that she purchased the Condo as a vacation home in 2013. She objects to the ECDobtaining a s. 38(1) order to pursue the Bankrupt’s potential ownership in the Condo and focuses her argument on: (

a) there being no evidence that the Bankrupt made any financial contribution to the Condo; (

b) her uncontradicted evidence that: (

i) she made all of the payments for the Condo, including the down payment and all payments on the Mortgage, condo fees andtaxes; (ii) she had already entered into the contract for the purchase of the Condo and secured the Mortgage before considering addingthe Bankrupt to the title; (iii) she received tax advice to have the title registered in her name and the name of the Bankrupt as joint tenants because she wasmoving overseas; and (iv) she added the Bankrupt to the final documents on the eve of her departure overseas. [17] Deidre Derworiz asserts that she is the legal and beneficial owner of the Condo and that the Bankrupt’s interest “is that ofsomeone holding an interest on his daughter’s behalf”.

Ms. Derworiz relies on a resulting trust for her legal position. [18] Dennis Pavlich, in Trusts in Common-Law Canada, 3rd ed (Toronto: LexisNexis, 2019) at 250, says: The presumed resulting trust ... is a rule of evidence that answers the question of who holds equitable title in a gratuitous transfer ofproperty.

However, the answer is only a prima facie conclusion - the rule creates a rebuttable presumption of resulting trust and will notgovern where actual evidence of a contrary intention has been adduced. [19] And, at page 252, Dennis Pavlich states: These presumptions will only operate in the absence of evidence to the contrary. Thus, evidence of actual intention trumps thepresumption of a resulting trust ... However, the presumptions, if undisturbed by contrary evidence, will settle who has legal andbeneficial ownership of property.

In certain circumstances, even though rebutting evidence is available, a court may forbid itsproduction, that is, render the evidence inadmissible.

For example, evidence may be precluded if that evidence shows an illegalscheme/purpose, and so the court will refuse to recognize and give effect to that illegality during their analysis of the reasons for transfer.... [20] The parties referred to a number of cases relating to resulting trusts, some of which I will briefly summarize: Pecore v Pecore, 2007 SCC 17 , [2007] 1 SCR 795, where a father put his mutual funds and other investments in joint accountswith his daughter, and the father was the only account holder who deposited money into the accounts.

At paras 20 and 24 to 25,Rothstein J said: A resulting trust arises when title to property is in one party’s name, but that party, because he or she is a fiduciary or gave no value forthe property, is under an obligation to return it to the original title owner ... While the trustee almost always has the legal title, inexceptional circumstances it is also possible that the trustee has equitable title ... . . . The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers.

When a transferis challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onus is placedon the transferee to demonstrate that a gift was intended ... This is so because equity presumes bargains, not gifts. The presumption of resulting trust therefore alters the general practice that a plaintiff (who would be the party challenging the transfer inthese cases) bears the legal burden in a civil case. Rather, the onus is on the transferee to rebut the presumption of a resulting trust.

Drebert v Coates, 2008 ABQB 684, where Master Hanebury found that a writ could only attach to an exigible interest in land. BecauseMr. Drebert’s title to the land was subject to a prior equitable interest, being a written trust agreement with his mother, in her favour, and

since this interest was recognized by the court, there was no exigible interest to which the writ could attach. The writ against Mr. Drebert was discharged. Glover v Kumar , 2012 ABQB 516 , where two homeowners were the victims of a fraud perpetrated by Mr. Kumar, whereby by Mr. Kumar put his name on the title to their home. Writ holders moved to execute against Mr. Kumar’s interest in the home. Hawco J found that the writ holders could not enforce their writs because Mr. Kumar did not have a legitimate interest in the property.

Ehrmantraut v Keith G Collins Ltd , 2008 MBQB 140 , in which case the son was placed on the title of an apartment to facilitate his parents obtaining a mortgage. When the son was assigned into bankruptcy, the estate asserted an interest in the apartment. The parents submitted that they paid for the apartment and that the son had no interest.

The bankruptcy registrar found that there was a resulting trust in favour of the parents and, as a result of the parents being the sole owners of the apartment, the son had no interest in the apartment that the trustee could realize upon for the benefit of the son’s creditors. On appeal, the court found, among other things, that because the son had provided his credit for the purchase of the apartment, and the parents had no independent verification to corroborate the alleged agreement, it could not be said that the son had no interest in the apartment.

On further appeal, Ehrmantraut (Bankrupt), Re , 2008 MBCA 127 , the Manitoba Court of Appeal said, at paras 2 and 3: In her reasons for judgment, the motions judge wrote ...: I also find that the bankrupt significantly contributed to this transaction. Indeed, he was the facilitator of it by virtue of the pledging of his credit. The agreement to become a co-purchaser/mortgagor resulted in the bankrupt becoming exposed to the financial risk of the full amount of the mortgage. The bankrupt provided value for the joint interest he held in the property.

The appellant has demonstrated no palpable or overriding error in respect of this conclusion by the motions judge. The finding of a contribution of value by the bankrupt for the joint interest he held in the property is fatal to the existence of a resulting trust in favour of the appellant and is dispositive of this appeal. Luo v Vesterinen , 2017 BCSC 1566 , where, in response to a claim against the bankrupt’s interest in a property, the wife of the bankrupt and joint tenant of the property with him, argued that she was the sole beneficial owner of the property and that her husband had no interest in it.

The court found that the bankrupt had made some contribution to the purchase of the property by pledging his credit as a mortgagor and by making monthly payments, which defeated the wife’s claim of a resulting trust. Hyczkewycz v Hupe , 2019 MBCA 74 , leave to appeal refused 2020 SCCR No. 38823, where the trial judge found that titles to four parcels of land were subject to a resulting trust in favour of the plaintiff, referred to as “Sharon”, who was the mother-in-law of the defendant, “Paul”. The Manitoba Court of Appeal upheld the trial judge’s decision relying on the Pecore decision, among other cases.

At para 71, the Court of Appeal commented on its decision on Ehrmantraut : Paul relies on two Manitoba decisions in support of his position that his and Sharon’s titles to the cottage properties and Sharon’s titles to the Rossmore and Inkster properties should be considered indefeasible, being Fort Garry Care Centre Ltd ... and Ehrmantraut ... In my view, neither of these cases deals with the main issue in this case. In Fort Garry , there was no equitable interest or trust interest being asserted ...

In Ehrmantraut , this Court determined that a resulting trust did not arise on the facts of the case, and declined to comment on the issue in indefeasibility of title under

section 59 of the [ Real Property Act ]. [ 21 ] In its Brief, the Trustee asserts that the Hyczkewycz decision brings into question the conclusions in Ehrmantraut regarding indefeasibility of title. I disagree. [ 22 ] The law of indefeasibility of title in the context of resulting trusts across Canada is not entirely consistent, which is not surprising given that the statutory background is different.

While regional differences must be kept in mind when relying cases from other jurisdictions in Canada, on the issue of indefeasibility of title, the law in Alberta and Manitoba is aligned. [ 23 ] As the authors of Oosterhoff on Trusts , 9 th ed (Toronto: Thomson Reuters, 2019), state, at page 615 and 616, footnotes omitted: Courts in Alberta and Manitoba have held that registration of title does not affect the presumptions of resulting trust or advancement. . . . We believe that the Alberta and Manitoba courts are correct on this point.

The registration of land titles in western Canada is based on the Torrens registration system developed in Australia in the 19 th century. The statutory indefeasibility provisions are designed to provide greater certainty of title and greater protection for purchasers who acquire interest in land without fraud, but they do not prevent new equitable interests from arising on or after registration. ... [ 24 ] The fact that the Bankrupt’s name is on the title to the Condo does not affect the presumption of a resulting trust.

To the extent that Deidre Derworiz wants to rely on a presumption of a resulting trust to assert that the Bankrupt holds title in the Condo for her beneficial interest, she is entitled to do. [ 25 ] While the Bankrupt’s name appears on the Mortgage, there is no evidence that he agreed to pledge his credit as a contribution to the purchase of the Condo. As a result, there is no evidence that the Bankrupt contributed to the purchase or maintenance of the Condo by making any payments or being named on the Mortgage.

For the purposes of this Application under s. 38(1) , I find that the ECD has not shown that the Bankrupt had a beneficial ownership in the Condo because of any type financial contribution. [ 26 ] The evidence is that the Bankrupt lent his name to the title and the Mortgage to assist Deidre Derworiz in asserting her position with tax authorities. Deidre Derworiz has acknowledged that the Bankrupt held his interest in the Condo because it was “intended to evidence his legal ownership for tax purposes”.

[27] In Pecore, the Supreme Court of Canada said, at para 70: As for the matter of taxes on capital gains, it was submitted to this Court that for public policy reasons, transferors should not bepermitted to transfer beneficial title while asserting to the tax authorities that such title has not been passed in order to defer or avoid thepayment of taxes ...

In principle, I agree. ... [28] In Hyczkewycz, the Manitoba Court of Appeal, referring to Dashevsky v Dashevsky (1986), (MB KB), 40Man R (2d) 58, said, at paras 156 to 158: Dashevsky dealt with the nature of a transaction to transfer ownership of land, which arose in the context of proceedings for the sharingof marital assets following a separation. The husband acquired farm land from his parents in a transaction that was structured so that thetransfer could not be characterised by the Minister of National Revenue as a gift to the husband. Some years later, the husband marriedand then separated.

The nature of the original acquisition was important to the determination of whether any part of the value of the landwas shareable. If the land was a gift to the husband, the entire value was exempted from being shared. If the husband purchased the land,then the increase in the value from the date of marriage was shareable.

The trial judge found that, “having once characterized this same transaction in a manner beneficial to the parties (and, one might add, tothe economic disadvantage of the minister!) it is not now open to the Dashevskys to characterize the transfers as gifts for MaritalProperty Act purposes” ...

While neither of the purposes for the land transfer in Dashevsky was illegal, the trial judge determined that it was not open to thehusband to fundamentally change that characterisation years later, to obtain a different benefit in different circumstances. [29] Under s. 38(1) of the BIA, it is not for me to undertake a detailed review of the merits of the proposed action.

Here, there isevidence to indicate that the claim is not obviously spurious because of Deidre Derworiz’s stated purpose of the transfer to the Bankruptbeing “intended to evidence his legal ownership for tax purposes” and her current position that the Bankrupt has no interest in theCondo.

As a result, I find that the ECD should be assigned the claim. [30] The terms of the s. 38(1) BIA order shall be based on precedent number 14 - Order Authorizing Creditor to take Proceedings in Lloyd W Houlden, Geoffry B Morawetz and Dr Janis P Sarra, Bankruptcy and Insolvency Law of Canada, 4th ed (Toronto: ThomsonReuters, 2009, online current to release 2021-3) (“Houlden and Morawetz”). The proceeding authorized to be commenced by the ECDshall be described as follows: The ECD is authorized to commence and prosecute proceedings in its own name, and at its own expense and risk, against the Bankruptand Deidre E.

Derworiz for the purpose of declaring that the Bankrupt has an interest in the Condo, and to the extent that the Bankrupt isfound to have an interest, the ability to execute against that interest to the extent of amounts owned to the ECD (the “Proceeding”), pluscosts of the Proceeding. [31] Under s. 38(1) of the BIA, I also have the ability to impose terms and conditions on the authorization to commence theProceeding. I am only prepared to permit the Proceeding if it is commenced no later than August 6, 2021 and, if it is not, then theauthorization will expire.

I am imposing this deadline on commencing the Proceeding because Deidre Derworiz’s ability to dispose ofthe Condo is limited until the action is resolved and it is my view that it would only be appropriate to permit the Proceeding if it iscommenced in a timely fashion. [32] Had there been an application for security for costs in the event of the s. 38(1) authorization was granted, together withadequate evidence, I would have entertained such an application.

Without evidence, it is unknown whether the ECD has any assets and Ido not have any information about the quantum of costs for which it would be appropriate to grant security. As defendants, the Bankruptand Deidre Derworiz have the ability to apply for security for costs from the plaintiff, the ECD, in the event that the Proceeding iscommenced and served upon them. Issue 3: Should the stay of enforcement be lifted to permit theECD to take enforcement steps against the MURB proceeds? [33]

Section 69.4 of the BIA is engaged for this issue and the same test applies to the MURB as it did to the Condo. [34] The MURB proceeds of $95,130 must be considered in two portions: (

a) the portion consisting of $65,130, which has been spent on the living expenses of the Bankrupt and which the ECD has notdemonstrated are traceable (the “$65,130 Portion”); and (

b) the portion consisting of $30,000 was initially invested, in May 2015, by the Bankrupt in a guaranteed investment certificate(“GIC”) in his tax-free savings account (“TFSA”) (the “$30,000 Portion”). [35] The $30,000 Portion remained invested in a GIC, or a renewal GIC, until it was transferred to the Bankrupt’s personal bankaccount on December 4, 2019. Notwithstanding that the Bankrupt was assigned into bankruptcy on January 9, 2019, on December 4,2019, he transferred $31,000 from his personal bank account to Deidre Derworiz.

The Trustee report noted that “[u]pon request from theTrustee's office, Deidre repaid the sum of $43,000 on January 28, 2019 and repaid the balance of the amounts sent to her by theBankrupt on March 17, 2020”. I understand the Trustee’s report to mean that the $31,000 has been collected by the Trustee and formspart of the estate of the Bankrupt. [36] The ECD states in its Brief:

There is no dispute between the parties that funds from the sale of the MURB are traceable and are now in the hands of the Trustee. It is submitted that imposing a constructive trust would not be impacting upon third party creditor rights because the property did not properly form part of the Bankrupt’s estate to begin with. [ 37 ] At the hearing, the ECD appeared to concede that the $65,130 Portion could not be traced.

In any event, I find that the ECD has not proven that the $65,130 Portion can be traced. [ 38 ] The Trustee disputes that the $30,000 Portion can be traced and submits in its Brief: The bankrupt accepted an offer to sell the MURB on November 24, 2014 and the sale was completed in January 2015 (prior to the Amended Judgment of Justice Brown). According to the bankrupt, most of the proceeds were dissipated through living expenses. None of the MURB proceeds vested in the Trustee. Rather, the Trustee has recovered preferential payments made by the bankrupt to Deidre in the months leading up to the bankruptcy.

While approximately $31,000 of the preferential payments appear to have been made with MURB proceeds that were put into a GIC over 5 years ago, such proceeds are not properly traceable given they represented less than half of the $95,000 sale price and have been intermingled with other accounts. [ 39 ] The Trustee did not provide any authority for the proposition that tracing cannot occur when less than half of proceeds are traceable. [ 40 ] With regard to the $30,000 Portion, the ECD asserts that is subject to a constructive trust in favour of the ECD and does not form part of the estate of the Bankrupt.

My purpose for considering this claim is not to determine whether there is a constructive trust, but rather whether, under s. 69.4 of the BIA , there are sound reasons, consistent with the scheme of the BIA , to lift the automatic stay and permit the ECD to pursue its claim. [ 41 ] The ECD has to show more than a prima facie case because if there is little prospect of success then there are no sound reasons for lifting the stay.

In Wurth v 1135096 Alberta Ltd , 2014 ABQB 520 , Strekaf J noted, at para 19, that the standard of proof of a constructive trust in bankruptcy is high: In the bankruptcy context, there are additional considerations that may be relevant when dealing with equitable remedies, as was noted in Houlden, GB Morawetz and J Sarra, Bankruptcy and Insolvency Law of Canada (4th Ed (loose-leaf)), Vol 2, at 3-41: In proving the existence of a constructive trust in a bankruptcy setting, the standard of proof is high; and given that the BIA provides a code by which legislators have balanced the interest of those adversely affected by the bankruptcy, the legal rights of creditors should not be defeated unless it would be unconscionable not to recognize a constructive trust… . . . [ 42 ] As Master Mason said in Hoard (Re) , 2014 ABQB 426 , at para 26 : The onus of proving a constructive trust falls upon the claimant and, in a bankruptcy setting, is not lightly undertaken.

The evidence must be clear and the standard of proof is high. [ 43 ] The ECD asserts that its constructive trust claim to the $30,000 Portion arises from Brown J stating that the MURB “is to be divided and half of the shares/interest therein is to be registered to Cecelia” because ascertaining “a value for this item proved to be elusive at trial”: Derworiz , paras 57 and 38 , respectively. It is not clear what Brown J would have ordered had he known that the MURB had been sold for $95,160.

In the decision, there is no indication that Cecelia Derworiz sought a constructive trust, and Brown J made no finding of a constructive trust in favour of Cecelia Derworiz. [ 44 ] The Bankrupt’s assignment into bankruptcy occurred on January 9, 2019. The Trustee expended time and effort to recover assets, including the preferential payment of $31,000 made to Deirdre Derworiz. The Trustee submits that the estate of the Bankrupt has been in administration for many months and lifting the stay at this point would be inappropriate.

In its Brief, the Trustee says: Furthermore, there is no explanation from the [ECD] as to why it took no action to protect its interest in the MURB, RRIF, or any potential proceeds from the same prior to the bankruptcy. While the Appeal of Justice Brown's Judgment did not resolve until November 2017, there is no evidence that the April 2015 Judgment of Justice Brown was stayed pending the appeal. Nor is there any evidence that the [ECD] made any efforts to notify relevant parties of its potential claim to the MURB or RRIF.

Equity does not favour parties who delay, and the evidence suggests the [ECD] has sat on its rights. The only purpose of seeking a new remedy at this stage is to try and jump the queue and scoop assets out of the bankruptcy estate ahead of Trustee fees and other creditors. The relief now being put forward by the [ECD] comes roughly 22 months into the bankruptcy after the Trustee has already spent significant time and effort on administration. [ 45 ] In response, the ECD submits in its Reply Brief: The Brief of the Trustee also questions why Cecelia did not take steps to enforce the Judgment sooner.

Cecelia was battling a rare form of cancer. Her short life expectancy was recognized by the trial judge ... While she made inquiries with her lawyer, eventually she needed to concentrate on her health. It was only after probate was granted in 2017 that the Executor of [the ECD] was able to continue to take the steps that she was not able to herself. Additionally, Judgments of the Court are in effect for a lengthy period of time, in Alberta for a period of 10 years.

It is open to a judgment creditor to take enforcement steps at any point during that time period, and the Executor of the [ECD] was proceeding to do so when the Bankrupt made his assignment. [ 46 ] It is understandable that someone who is terminally ill would not want to undertake steps to execute on a judgment. However, the delay between January 9, 2019, the date of bankruptcy, and October 13, 2020, when this Application was filed, is lengthy.

[47] My focus under s. 69.4 of the BIA is whether there are sound reasons for lifting the stay. I must also consider whether there islittle prospect of success, or something more, for the claim.

Because the $65,130 Portion cannot be traced, there is little prospect ofsuccess. [48] While the ECD may not succeed in pursuing a constructive trust claim to the $30,000 Portion, which it will presumablyadvance pursuant to s. 67(1) of the BIA, it has not been shown by the Trustee or Deidre Derworiz that such claim has little prospect ofsuccess. [49] However, s. 69.4 of the BIA requires that the court be satisfied that the ECD is likely to be materially prejudiced or that it isequitable to make a declaration to lift the stay on other grounds.

I find that the ECD will not be materially prejudiced if the stay is notlifted because it will receive the majority of the $30,000 Portion as a creditor of the estate of the Bankrupt. When considered in thecontext of the cost of an action to determine if a constructive trust applies to the $30,000 Portion, material prejudice is not made outbecause the cost of such determination would outweigh the benefit of lifting the stay. Further, I find it is not equitable on other groundsto make a declaration to lift the stay. [50] As a result, I dismiss the ECD’s claim for a lifting of the stay under s. 69.4 of the BIA.

Issue 4: In the alternative, should a s. 38 Order be granted tothe ECD for its claim against the MURB proceeds? [51] The ECD asserts that the Trustee should be pursuing the Bankrupt’s interest in the MURB proceeds. As discussed above, theTrustee cannot pursue the $65,130 Portion as the funds have already been dispersed and spent on the Bankrupt’s living expenses. The$30,000 Portion has been collected by the Trustee from Deidre Derworiz. [52] In relation to the MURB proceeds, there is nothing more that can be done that could benefit the estate of the Bankrupt, asrequired by s. 38(1).

I find that an authorization to commence an action relating to the MURB proceeds would be obviously spurious.This portion of the Application is dismissed. Issue 5: Should the stay of enforcement be lifted to permit theECD to take enforcement steps against the RRIFs? [53] In Moore (re), 2013 ONCA 769, the Ontario Court of Appeal described the fresh start principle under the BIA, at paras 99 to101: I have already referred to the fresh start principle which underlies the BIA and which permeates the jurisprudence on bankruptcylegislation.

From a debtor's perspective, and indeed society's, financial rehabilitation is a primary goal of the bankruptcy regime. At itsheart, permitting a creditor to insist on payment of pre-bankruptcy indebtedness after a bankruptcy discharge frustrates a bankrupt'sability to start life afresh unencumbered by his or her past indebtedness. As often repeated in United States bankruptcy jurisprudence,one of the purposes of bankruptcy legislation is to give debtors "a new opportunity in life and a clear field for future effort, unhamperedby the pressure and discouragement of pre-existing debt." ...

In Canada, there are some claims that constitute exceptions to the fresh start principle. As mentioned, there are those claims that areexpressly excluded from the ambit of s. 178(2). They are described in s. 178(1) of the BIA. One such claim was described by this court asthe kind "which society (through the legislators) considers to be of a quality which outweighs any possible benefit to society in thebankrupt being released of these obligations" ... In Schreyer, LeBel J. observed, at para. 19, that giving debtors a chance for a new start is generally viewed as a wise policy choice.

Hewent on to state that exemptions that seem fair or even necessary are set out in the BIA. However, "the more exemptions there are, theless likely it is that the basic policy objectives of insolvency legislation can be achieved." [54] The RRIFs are exempt property. The ECD asserts in its brief that since the “Bankrupt was directed to transfer over $108,000from his RRIF ... but failed to do so, it is appropriate for the stay of enforcement to be lifted so that the [ECD] can take steps to againstthe RRIF”.

This proposition is contrary to the fresh start principle and the scheme of the BIA. [55] The ECD relies on two decisions: Schreyer v Schreyer, 2011 SCC 35 , [2011] 2 SCR 605 and Scott (Re), 2014ONSC 5566, both of which arise in provinces where matrimonial property is equalized, as opposed to a division of property regime,which is used in Alberta. On April 7, 2015, under the Saskatchewan legislation, Brown J ordered an equalization payment to be made bythe Bankrupt to Cecelia Derworiz.

He accepted the submission of Cecelia Derworiz that the calculation be based on a division ofmatrimonial property as it existed in late 2006, when the petition for divorce was filed, and not at the time of the trial, because asubstantial portion of the investment assets had already been dissipated by both parties prior to trial, from $500,850 to $212,858:Derworiz, at paras 27 and 29. [56] In Schreyer, the Supreme Court of Canada, at paras 31 and 32, noted a hypothetical method of recovery, which the appellantwas precluded from pursuing because her ex-husband has already been discharged from bankruptcy: Under s. 13 of Manitoba’s The Judgments Act ... the Schreyers’ family farm was exempt from execution by creditors.

But the appellant,as a spouse, would have been entitled to pursue the enforcement of her equalization claim against the exempt property, as we shall see.This property lay out of the reach of the trustee in bankruptcy, who could not dispose of it on behalf of the bankrupt’s estate in order todistribute it to his creditors.

In such circumstances, the appropriate remedy for a creditor like the appellant would be to apply to the bankruptcy judge under s. 69.4 BIA for leave to pursue a claim against the exempt property. Since this property is beyond the reach of the ordinary creditors, lifting the stay of proceedings cannot prejudice the estate assets available for distribution. In keeping with the wording of s. 69.4 (

b) BIA , this is why it would be “equitable on other grounds” to make such an order. This procedure would also accord with the policy objective of bankruptcy law of maximizing, under the BIA , returns to the family unit as a whole rather than focussing on the needs of the bankrupt ... [ 57 ] The policy objective noted in Schreyer , of maximizing returns to the family unit rather than focussing on the needs of the bankrupt, does not apply here because Cecelia Derworiz died in 2017 and there is no evidence that the ECD requires any funds to support anyone.

The equalization payment that the ECD seeks to rely upon arises from a division of assets held by the Bankrupt and Cecelia Derworiz in 2006, which had been significantly depleted by trial: Derworiz , at paras 27 and 29 . On the other hand, the Trustee has noted that the Bankrupt is in his 80s, his income is not significant, and he is dependent on the RRIF payments, which is evidenced from the following passage in the Trustee’s Supplementary Report: The Bankrupt had a surplus income requirement of $117 per month at the time of the 8 month review, based on his average income at that date.

Since then, his average income has decreased, resulting in no surplus income requirement. The Bankrupt receives monthly approximately $951 CPP, $614 OAS and $634 RRIF. He cashed in $3,500 from his RRIF February 1, 2019 as a one-time lump sum. [ 58 ] Again, s. 69.4 of the BIA is engaged for this issue. I find that the ECD has not shown that it would likely be materially prejudiced or that it is equitable on other grounds to lift the stay against the Bankrupt’s RRIFs. This portion of the Application is dismissed.

Issue 6: Should the ECD receive priority for the costs that have been ordered in the matrimonial proceedings? [ 59 ] The ECD relies on s. 136(1) (

g) of the BIA for its claim for priority for legal costs it was awarded in the context of the matrimonial property litigation: Subject to the rights of secured creditors, the proceeds realized from the property of a bankrupt shall be applied in priority of payment as follows: ... (

g) the fees and costs referred to in subsection 70(2) but only to the extent of the realization from the property exigible thereunder; [ 60 ] This is a misreading of s. 136 which is designed to address a creditor’s costs to execute on assets of the bankruptcy which would otherwise be incurred by a trustee. This

section does not give an unsecured creditor any priority for a claim for legal costs which have been awarded in unrelated litigation. The reference in s. 136(1)(

g) to s. 70(2), which deals with the ability to recover costs if a creditor “has first attached ... against the property of the bankrupt” and the fact that s. 70(2) is an exception to s. 70(1) which states that every “bankruptcy order and every assignment ... takes precedence ...” makes it abundantly clear that the fees and costs referred to in s. 136(1)(

g) cannot arise in the context of unrelated litigation. Issue 7: Should the proof of claim of Deidre Derworiz be expunged or reduced? [ 61 ] The Trustee reviewed Deidre Derworiz’s claim against the Bankrupt’s estate and did not disallow her claim as an unsecured creditor.

The ECD asserts that this Court should expunge or reduce Deidre Derworiz’s claim pursuant to s. 135(5) of the BIA : The court may expunge or reduce a proof of claim or a proof of security on the application of a creditor or of the debtor if the trustee declines to interfere in the matter. [ 62 ] The ECD concedes that the ECD has no independent evidence before the court regarding its claim that the proof of claim of Deidre Derworiz be expunged or reduced and that its position is based on the evidence of Deidre Derworiz and the Bankrupt. [ 63 ] In its Reply Brief, the ECD asserts that because Deidre Derworiz commissioned a statutory declaration of the Bankrupt which does not disclose that he is on the title to the Condo, or the value of the RRIF or his income from it, “the veracity of the evidence contained in the Deidre Affidavit should be questioned”.

The ECD acknowledges that it had the opportunity to cross-examine Deirdre Derworiz on her evidence, but choose not to do so. Without cross-examination on the point, I decline to question the truthfulness of Deidre Derworiz’s evidence. [ 64 ] The ECD suggests that it is not plausible that Deidre Derworiz would loan her father, the Bankrupt, money in the circumstances set out in her evidence and asserts that this Court should find that there was no loan, or should reduce the amount of the purported loan.

In particular, the ECD took issue with the significant cost of flights paid by Deidre Derworiz for the Bankrupt to travel to visit her when she lived overseas, which she claimed as a loan to the Bankrupt. [ 65 ] The ECD referred to Van Oirschot v Van Oirschot , 2010 ABQB 211 , for the proposition that as between non-arms length parties, where there is no evidence of an expectation of repayment, then advanced funds are a gift and not a loan.

This was a decision dealing with the division of matrimonial property and not a bankruptcy case. [ 66 ] The commentary in Houlden and Morawetz , regarding s. 135(5) of the BIA , notes that an applicant must request a trustee to disallow the claim before bringing an application. The Trustee states in its Brief that this was not done. The authors of Houlden and Morawetz further state that:

In an application under s. 135(5) , it is unnecessary for the applicant to show that the trustee acted unreasonably or improperly in allowing the claim. The applicant must prove on the merits that the claim should not be allowed ... [ 67 ] Here, there is no proof, there is just speculation that a father and daughter would not consider the cost of expensive international travel to be a loan, and, on that basis, this Court should consider the cost of the travel to have been a gift. However, it is equally plausible that, because of the significant amount, the cost of the travel was a loan and not a gift.

These theories are speculation and that is not enough to decide the matter one way or another. As further stated in the Houlden and Morawetz commentary on s. 135(5) , the correct standard of proof for a motion to expunge is that of a balance of probabilities. The ECD has not met this standard and the portion of the Application seeking relief under s. 135(5) of the BIA is dismissed. [ 68 ] In its Supplemental Brief, one of three briefs filed, the ECD raised the argument that Deidre Derworiz’s claim in the bankruptcy should be postponed pursuant to s. 137(1) of the BIA .

However, this was not argued at the hearing and, more importantly, is not mentioned in the Application filed October 13, 2020. It is not properly before Court and I decline to consider such relief. Costs [ 69 ] If the parties cannot agree on costs within 30 days of the date of this decision, the parties can contact me to arrange for written materials to be submitted on the issue of costs. Heard on the 13 th day of May, 2021. Dated at the City of Calgary, Alberta this 9 th day of June, 2021. E.J. Sidnell J.C.Q.B.A. Appearances: Francis N.J.

Taman for the Applicant, The Estate of Cecelia Derworiz Daniel Jukes for the Respondent, MNP Ltd. as Trustee for Edward Marvin Derworiz Karen Fellowes, QC for the Respondent, Deidre Derworiz Edward Marvin Derworiz Self-represented