Flock Estate v Flock, 2021 ABQB 502

Court of Queen’s Bench of Alberta Citation: Flock Estate v Flock, 2021 ABQB 502 Date: 20210720 Docket: FL01 21829 Registry: Calgary Between: William McKen, Litigation Representative of the Estate of Arlene Joy Flock Applicant - and - Doran Alfred Flock Respondent Corrected judgment: A corrigendum was issued on July 20, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice B.B.

Johnston _______________________________________________________ [ 1 ] The Estate of Arlene Flock (“the Estate”) seeks a declaration that the joint tenancy in a residence located on Prospect Avenue SW, Calgary (the “Property”) has been severed and that it is held by the parties as tenants in common. [ 2 ] The Estate also seeks a direction that the Registrar of Land Titles issue a new certificate of title and that the interest of Mr. Doran Flock in the Property be sold to the Estate at a price determined by the Court. [ 3 ] The Respondent, Mr.

Flock, opposes the application for severance of the joint tenancy asserting that he is the sole and lawful owner of the Property as a result of being the surviving joint tenant. Background [ 4 ] Ms. Flock and Mr. Flock were married in 1982. They purchased the Property in December 1993 for $400,000 which was funded in part with a $200,000 mortgage. They were registered on title of the Property as joint tenants. Ms. Flock and Mr. Flock spent approximately $80,000 on renovations to the Property in September 1994.

[ 5 ] The parties separated in approximately September 1994 with Mr. Flock moving out of the Property at the time. Mr. Flock only resided in the Property for approximately 9 months. Mr. Flock has not resided in the Property for the last 28 years. [ 6 ] Ms. Flock continued to reside in the Property until her death in July 2014. [ 7 ] Ms. Flock and Mr. Flock divorced in May 1999. There were no children of the marriage. [ 8 ] Also, in 1999, Mr. William McKen moved into the Property to reside with Ms. Flock. Mr. McKen and Ms. Flock married in 2009. Mr. McKen and Ms. Flock continued to live in the Property until Ms.

Flock’s death. Following Ms. Flock’s death, Mr. McKen continued residing in the Property and he currently resides in the Property. [ 9 ] From 2009 until 2015, Ms. Flock and Mr. McKen paid $237,663 towards the maintenance and upkeep of the Property, which sum included the mortgage payments. The mortgage payments included amounts for payment of property taxes on the Property. The mortgage was paid in full in 2017. Ms. Flock and Mr. McKen also spent an additional sum of $146,465 renovating the Property. [ 10 ] While Ms. Flock and/or Mr. McKen have paid nearly all of the costs associated with the Property since Mr.

Flock moved out of the Property, neither Ms. Flock nor Mr. McKen have paid any occupation rent or other compensation to Mr. Flock on account of their residing in the Property. [ 11 ] From the time he moved out of the Property, Mr. Flock did not contribute to the Property until approximately 2018 when he paid property taxes on the Property. [ 12 ] This application follows lengthy and acrimonious litigation between the parties spanning over 25 years. [ 13 ] Mr. Flock commenced a matrimonial property action in 1996. Litigation involving the division of matrimonial property continued for over 18 years.

During this period, the parties agreed to proceed to arbitration. A six day binding arbitration occurred in 2013. The arbitrator took 33 months to deliver his decision. The arbitration award was then set aside: Flock v Flock , 2007 ABQB 307 . The Court of Appeal denied the application for leave to appeal: Flock v Flock , 2007 ABCA 287 . [ 14 ] In 2014, the Estate brought an application to dismiss the matrimonial property action for long delay. The application was initially unsuccessful: Flock v Flock Estate , 2015 ABQB 671 .

However, in 2017, the matrimonial property action was dismissed by the Court of Appeal for long delay: Flock v Flock Estate , 2017 ABCA 67 ; leave to appeal refused [2017] 2 SCR vi. [ 15 ] The Estate filed this proceeding by Originating Application on August 6, 2015 seeking to sever the joint tenancy in the Property. An Amended Originating Application was subsequently filed on November 15, 2016 seeking a declaration that the joint tenancy of the Property has been severed such that the Applicant and Respondent hold the Property as tenants in common.

It further sought a direction requiring the Registrar of Land Titles to issue a new certificate of title. The Estate sought an Order directing the sale of Mr. Flock’s interest to the Estate. [ 16 ] Issues arose in this Originating Application from the questioning on affidavits. An application was heard before a Chambers Judge. The Chambers Judge made determinations regarding the questioning.

He further decided that the hearing of the Originating Application on the merits would only address the “severance” of the joint tenancy and would not consider the “distribution” of the value of the Property. [ 17 ] The decision of the Chambers Judge was appealed to the Court of Appeal: Flock Estate v Flock , 2019 ABCA 194 (“ Flock CA ”). [ 18 ] The Court of Appeal concluded that the hearing of the Originating Application “will concern both the “severance” issue, and if severance is granted the “distribution” of the proceeds:” Flock CA at paras 16 and 21 .

The Court of Appeal directed that “the pre- hearing questioning, affidavits and document production in the Originating Application proceeding are limited to matters that are relevant to the parties’ dealings with the Prospect Avenue property.” Flock CA at para 22 . Evidence relating to the arbitration award (including arbitrator’s findings about the positions of the parties, their alleged contribution to the purchase and improvement of the Prospect Avenue property and his proposed division of that property) was inadmissible evidence.

Certain without prejudice correspondence or offers of settlement were also inadmissible: Flock CA at paras 30 and 38 . [ 19 ] Finally, the Court of Appeal noted there: may be some admissible evidence assembled in the matrimonial property action, or the arbitration, that remains relevant to the severance of the joint tenancy, for example transcripts of questioning of the parties. Rule 8.14(1)(

a) may also come into play. The most economic and efficient procedure may be to permit the use of that evidence in the severance action, rather than attempting to replicate it.

If either party intends to do so, the necessary consent or approval of the trial court should be obtained: Flock CA at para 41 . [ 20 ] Following the Court of Appeal decision in 2019, the parties entered into a Consent Order to have the Severance Application heard by way of a half day special application based on affidavit evidence rather than as a trial with viva voce evidence. [ 21 ] The Estate filed their brief and supporting materials in March 2020. An objection was made by Mr.

Flock that the Estate’s materials included affidavit evidence that was to be struck in accordance with the 2019 decision of the Court of Appeal. An application to strike was heard before Justice Ho: Flock v McKen , 2020 ABQB 744 (“ McKen ”). Justice Ho ordered the offending portions of the affidavits struck in accordance with the decision of the Court of Appeal: McKen at para 31 . Justice Ho directed that the Estate had leave to apply before me if they sought to rely on affidavits or other evidence filed in other proceedings. [ 22 ] The Estate filed an application to adduce evidence.

The application was withdrawn as there was no dispute regarding the filed materials with the redactions directed by Justice Ho.

[23] The materials before me had any offending materials redacted. Issues [24] The first issue before me is whether the joint tenancy has been or should be severed with the effect that title to the Property isheld as tenants in common? [25] Depending on the determination of the first issue, the second issue is the appropriate disposition of the Property. Analysis Joint Tenants vs. Tenants in Common [26] The within case illustrates the significance of the manner in which parties can hold title to real property.

On the one hand, in ajoint tenancy, the co-owners hold the property as a unified whole such that each holds an equal interest in the property. With a tenancy incommon, one co-owner may be entitled to a greater proportionate interest in the property than the other. The critical distinction betweenthe two is what has been referred to as “the remaining grand incident” – being the right of survivorship. Through the right ofsurvivorship, the interest of a co-owner in a joint tenancy will pass on to the surviving co-owner upon his or her death.

In contrast, theinterest of a co-owner in a tenancy in common will pass on to that co-owner’s estate upon his or her death: Hansen Estate v Hansen,2012 ONCA 112 at paras 29-31. [27] There is no disputing that Ms. Flock and Mr. Flock were on title to the Property as joint tenants.

The registration has remainedunchanged from the date they purchased the Property in 1993. [28] There is also no disputing that the manner in which title is held is capable of being changed such that a joint tenancy can be“severed” and transformed into a tenancy in common. [29] The fundamental dispute here lies in whether there has been a severance of the joint tenancy such that Mr. Flock’s right ofsurvivorship would no longer be in place and the Estate and Mr. Flock would hold title to the Property as tenants in common.

Severance of Joint Tenancy [30] The severance of a joint tenancy occurs when there is a disruption of unity of title, time, interest, and possession: Keith vKeith, 2015 ABQB 409 at para 17. [31] A joint tenancy can be severed in one of three ways: 1. By the unilateral act of one joint tenant with respect to his or her interest; 2. By mutual agreement of both joint tenants; or 3. By any course of dealing which shows that the interests of all were mutually treated as constituting a tenancy in common:Sorensen (Estate) v Sorensen (1977), (AB CA), 90 D.L.R. (3d) 26 (Alta. C.A.) at 32. [32] Consistent with the above,

section 15 of the Law of Property Act enables a co-owner of lands to apply for an order terminatingthe co-ownership.

Section 19 provides that if the land was held as a joint tenancy, an order terminating a co-ownership severs the jointtenancy. Both parties agree that no such steps were taken by either party in this case. [33] It is equally clear from the evidence before this Court that there has been no “unilateral act” of either Mr. Flock or Ms. Flockdealing with his or her interest such as to sever the joint tenancy as per #1 above and no “mutual agreement” of both Mr.

Flock and Ms.Flock to sever the joint tenancy as per #2 above. [34] The Estate argues that the course of dealings between the parties establishes that the interests of the parties were mutuallytreated as constituting a tenancy in common. This triggers severance pursuant to #3 above. [35] The onus of proving severance is on the party alleging severance: Havlic v Whitehouse, 2000 ABQB 242 at para 56. In thiscase, the Estate bears the onus of establishing severance of the joint tenancy. [36] The Estate argues that the joint tenancy in the Property has been or should retroactively be severed.

They assert that there isevidence to prove severance including the lengthy and acrimonious matrimonial property proceedings between the parties and the stepsthe parties took to value their interest in the Property throughout the lengthy litigation. The Estate further relies on the Will of Ms. Flockin support of their argument that there was an intention to sever the joint tenancy. However, at least one authority suggests that theexecution of a will does not sever a joint tenancy: Sorensen at 38. [37] Mr. Flock disagrees.

He deposes in his affidavit filed July 30, 2018, that there was never any intention or steps taken to severthe joint tenancy. No steps were taken to transfer one-half of the interest in the Property to Ms. Flock. Mr. Flock was cross-examined onhis affidavit. However, he argues the preponderance of his evidence regarding his intentions was not challenged and remains

uncontradicted. [ 38 ] In Hansen , the Ontario Court of Appeal addressed the requirements to establish the severance of a joint tenancy under the third ground: The apposite rule in the present case is rule 3, or the course of dealing rule. As explained by Professor Ziff in Principles of Property Law, at p. 345, severance under this rule operates in equity. Rule 3 operates so as to prevent a party from asserting a right of survivorship where doing so would not do justice between the parties.

In the words of Professor Ziff, at p. 345: "the best way to regard matters is to say that equity will intervene to estop the parties, because of their conduct, from attempting to assert a right of survivorship." What is determinative under this rule is the expression of intention by the co-owners as evidenced by their conduct: see Robichaud, at p. 45. Rule 3 governs cases where there is no explicit agreement between the co-owners to sever a joint tenancy. In contrast, rule 2 is engaged where a mutual agreement to sever is claimed to exist. This distinction between rule 2 and rule 3 is significant.

What follows from this distinction is that the proof of intention contemplated by rule 3 does not require proof of an explicit intention, communicated by each owner to the other(s), to sever the joint tenancy. If such proof were required, then rule 3 would be rendered redundant because a communicated common intention would be tantamount to an agreement. Instead, the mutuality for the purposes of rule 3 is to be inferred from the course of dealing between the parties and does not require evidence of an agreement. ...

While the determination under the course of dealing test is an inherently fact-specific assessment, the underlying rationale for rule 3 is that it is a means of ensuring that a right of survivorship does not operate unfairly in favour of one owner (or owners) where the co- owners have shown, through their conduct, a common intention to no longer treat their respective shares in the property as an indivisible, unified whole.

For example, in the context of negotiations between spouses who are in the midst of a marriage breakdown, even failed or uncompleted negotiations can lead to a severance because "the negotiation of shares and separate interests represents an attitude that shows that the notional unity of ownership under a joint tenancy has been abandoned: Hansen at paras 35-36 and 39 . [ 39 ] Mr. Flock argues that he is the surviving joint tenant and entitled to the entire Property. He says the ability to sever the joint tenancy was extinguished upon the death of Ms. Flock.

In this case, he points out that the application for severance was filed after the death of Ms. Flock. The right of survivorship therefore took precedence over any disposition as there was no longer an interest to sever. Alternatively, he asserts that the Estate has not established that the conduct of the parties demonstrated a mutual intention to sever the joint tenancy. [ 40 ] With respect to Mr. Flock’s argument that the ability to sever the joint tenancy was extinguished upon Ms.

Flock’s death and the failure to bring an application for severance prior to her death prevents the Court from granting such relief, I reject that argument. [ 41 ] It is obvious that had Ms. Flock sought to sever the joint tenancy while still alive, she could have easily done so. The fact that she did is not determinative of whether, based on the facts set out before the Court, severance occurred under #3 through any course of dealing which shows that the interests of all were mutually treated as constituting a tenancy in common.

Further, what is recognized in #3 is the Court’s inherent jurisdiction to operate in equity. Mr. Flock’s argument that the Court is not in a position to rule on severance after death would render ground #3 meaningless.

My conclusion on this point is supported by the numerous authorities including some cited herein, where severance was found to have occurred notwithstanding the death of a joint tenant. [ 42 ] In one such authority, Obradovic Estate v Obradovic , 2013 ABQB 470 the parties had reached a matrimonial property settlement agreement calling for the transfer of the matrimonial home to the wife once she paid the husband $10,000 for his interest in the home. Prior to the payment of the funds, the husband died.

The wife claimed the house should pass to her based on her right of survivorship. [ 43 ] Justice Macklin concluded that “[n]otwithstanding the death of the husband and the transfer of his interest in the matrimonial home to the wife under survivorship law, the husband’s rights survived his death for the benefit of the estate.” The wife was therefore obligated to pay the $10,000 to affect the settlement reached prior to the husband’s death: Obradovic at para 47 . I recognize that Obradovic is distinguishable from the case before me.

This is based on the fact that an agreement had been concluded which contemplated the transfer of the home and that matrimonial property actions survive death. The obiter comments of Justice Macklin are also consistent with the decision of the Ontario Court of Appeal in Hansen . [ 44 ] Specifically, Justice Macklin noted: Another consequence may have arisen had no agreement been reached prior to the husband’s death.

Once negotiations began for the division of the matrimonial property and, particularly, once an agreement was reached, the joint tenancy was effectively terminated and the husband and wife then held their interests in common. It has been held that even failed negotiations over jointly held property can sever a joint tenancy though it may be uncertain as to the precise moment during negotiations when the joint tenancy is severed.

However, once an agreement has been reached, as I have found it was here, the joint tenancy can be considered severed and the interests of the parties in jointly held property become interests in common rather than joint interests... I have no hesitation in concluding that the separation of the parties, the commencement of litigation and the negotiation of a settlement evidence clear intentions by the parties to terminate their joint tenancy in the matrimonial home.

I have no doubt that, if asked, both parties would have said throughout the course of their dealings and even before they reached agreement that they did not want the law of survivorship to continue to apply. They each would have intended their interest in the matrimonial home to go to someone other than the estranged spouse. Had I found that the agreement was frustrated, then it would also have been open for either party to proceed on the basis that the agreement had severed the joint tenancy and resulted in the matrimonial home then being held by the parties as tenants in common. In

that event, the parties could either have simply gone their separate ways on a sale of the home or either could have proceeded with thematrimonial property action for an ultimate determination by the Court on an appropriate division of the matrimonial property, thenbeing each party’s interest as a tenant in common in the matrimonial home.

Accordingly, had there been an agreement which was frustrated, then it would have been possible for the parties to simply walk awaywith their respective interests as tenants in common or to proceed with the matrimonial property actions for a different propertydistribution: Obradovic at paras 43-46. [45] There is authority to suggest that a divorce does not automatically sever a joint tenancy nor does the commencement of amatrimonial property action. Rather, it is necessary to look at all of the circumstances to determine if there was an intention to sever:Dunn Estate v.

Dunn, (AB QB) at para 9. [46] Conversely, in McNaughton v McNaughton, 1999 ABQB 77 at para 20, Justice Veit posited in obiter at paras 19-20 thatcommencement of a matrimonial property action where a spouse claims an interest in real property may be sufficient to sever a jointtenancy. She opined as follows: Where joint owners of property have demonstrated an intent to no longer be joint tenants, the joint tenancy is severed: Kozyra. No specialprocess is required. As Professor Ziff has pointed out: Over time, the law’s position shifted.

Although the presumption in favour of the joint tenancy continued, it came to be accepted that thesubtlest indication that property was meant to be held in common would suffice to overcome it. Indeed, Professor Ziff reminds us that equity never shared the law’s support for joint tenancy. On the contrary, equity regardedsurvivorship rights as “odious”.

It may well be that in every case where one spouse owning real property jointly with the other spouseissues a statement of claim claiming an interest in the real property as matrimonial property, that is a sufficient indication of an intentionto no longer wish to be bound by the attributes of joint tenancy to sever that tenancy. [47] Justice Veit’s rationale that the mere issuance of a matrimonial property action may be sufficient to indicate an intention to nolonger be bound by the attributes of a joint tenancy, has significant and practical appeal.

However, I need not and do not decide this caseon that basis. [48] Instead, I find that the totality of the evidence relating to the course of dealings by the parties supports an intention to treat theProperty as a tenancy in common. In arriving at this conclusion, I do not just rely upon the mere commencement of divorce proceedingsand matrimonial property proceedings but on the following: • Mr. Flock ceased living in the Property in September 1994. After this time, Mr. Flock ceased paying any of the expensesassociated with the house until he started paying the property taxes in 2018.

However, this occurred after the application to sever wasfiled; • Ms. Flock remained in the residence until her death. Mr. McKen began to reside with her in the Property in 1999. The parties weremarried in 2009. Mr. McKen continues to reside there to this date; • Ms. Flock and Mr. McKen expended $237,663 towards the maintenance and upkeep of the Property and $146,465 for renovations.The renovations were made without Mr. Flock’s consent or contribution; • The parties were engaged in contentious litigation for over two decades. The parties were divorced but continued to litigate.

At theheart of the various actions was the division of matrimonial property including the valuation of the Property; • From July 1994 until 1999, Ms. Flock paid all expenses related to the Property. After Ms. Flock and Mr. McKen began to cohabit,Mr. McKen contributed to the expenses of the Property including the mortgage, insurance, utilities and maintenance. Mortgage paymentsincluded principal, interest and property taxes; • Following Ms. Flock’s death, Mr. McKen continued to pay the mortgage until it was paid off in 2017; and • The decision to have Mr.

McKen contribute to the costs of the house was, given the pending litigation, to ensure there was arecord of Mr. McKen’s money being directed to the house. Mr. McKen gave the following evidence in cross-examination on hisaffidavit: Q: Did you pay rent to Arlene? A: I did not pay rent. Q: Okay. So were these contributions to the house in lieu of rent?

A: No. As I said before, in case some litigation was coming up, Arlene thought it was better that I made payments on things to do at the house so that I would have a claim myself on the house. Q: So this was— A: Preplanned by Arlene, if that’s what you are getting at. [ 49 ] Indeed, as the Court of Appeal in Flock noted: What is clear, and not in dispute, is that the parties were involved in a lengthy, acrimonious dispute about the division of their matrimonial property.

It will be open to the trial judge to draw inferences from their past conduct in that regard: Flock CA at para 31 . [ 50 ] In considering the evidence before me, I note there is no evidence from Ms. Flock. I am further cognisant of the direction of the Court of Appeal that “ [a]ll issues about whether the joint tenancy has been or should be severed are best left to the trial judge. Whatever the answer may be “intention” must be proven by admissible evidence”: Flock CA at para 27 . [ 51 ] I agree with Mr.

Flock that if the parties were relying on the unilateral act of one joint tenant with respect to his interest that such assertion may be too late after death. However, in this case, the Estate relies on the course of conduct to establish severance. [ 52 ] Notwithstanding that no steps were taken under the Law of Property Act to sever the joint tenancy, the totality of the evidence before me supports a conclusion that conduct of the parties showed they intended for there be a severance. I find Mr. Flock’s reliance on the Builders Lien Act provisions by analogy unhelpful. [ 53 ] Mr.

Flock relies on Keith v Keith , 2015 ABQB 409 for the proposition that an intention to sever without more is not effective to sever the joint tenancy: Havlic cited in Keith at para 33 . In Keith , the Court declined to sever a joint tenancy where the transfers were not filed at Land Titles prior to the mother’s death. [ 54 ] The facts of Keith are distinguishable. Significantly, Keith did not involve a dispute between spouses where the marriage had broken down and the spouses were undergoing a dispute over matrimonial property.

In Keith , the mother signed a transfer from herself as joint tenant to herself as a tenant in common and a second transfer from herself as tenant in common to one of her sons as tenant in common. The transfers were not executed at the time they were prepared. A year later the mother was hospitalized. The lawyer attended at the hospital to have the mother sign the transfers and a Dower Affidavit. Although the lawyer signed the Affidavit of Execution, the affidavit was never commissioned. No evidence was presented by the lawyer explaining why no action was taken with regard to the transfers.

There was also no evidence of mutual agreement or any course of dealing by the parties treating ownership as a tenancy in common: Keith at para 31 . [ 55 ] Mr. Flock asserts that if there was an intention to sever the joint tenancy, there would be an agreement evidencing such intention. He relies on the written agreement relating to the sale of shares in Flag Works Inc that was entered into by the parties in 1999. He asserts that if there was an agreement to sever, the parties would have entered into a written agreement. [ 56 ] I do not find that argument persuasive or particularly relevant to ground #3.

The suggestion that the absence of a written agreement is evidence that the parties did not have an intention to sever because they had entered into agreements on unrelated matters before, is perhaps relevant to ground #2, but adds little to the analysis to ground #3. It may well be that neither party expressly considered the possibility of entering into an agreement to sever the joint tenancy separate and apart from an overall property settlement.

However, not considering entering into such an agreement does not necessarily negate a course of dealing to be taken as showing that the interests of all were mutually treated as constituting a tenancy in common. [ 57 ] Although I cannot consider the opinions of the arbitrator, the bare submissions of counsel, nor the matrimonial property action for the reasons outlined above, I can take note that the division of the Property was a live issue in these proceedings: Flock CA at para 31 . [ 58 ] I find it unusual that Ms.

Flock did not take formal steps during her life to formally sever the joint tenancy under the Law of Property Act . Nonetheless, based on the fact that following their separation, the parties were engaged in acrimonious litigation for over two decades, it is difficult to believe that they would have wanted the law of survivorship to apply. I find the evidence supports an intention of the parties to terminate their joint tenancy in the Property. As a result, the Property is held as tenants in common by the Estate and Mr. Flock and the Registrar of Land Titles is directed to issue a new title to reflect that.

Distribution [ 59 ] Given I have found the joint tenancy was severed and the title to the Property is held as tenants in common, as directed by the Court of Appeal, I will address the distribution of the proceeds. In this analysis, I will only consider the Property and not any other matrimonial property: Flock CA at para 21 . [ 60 ] Based on the fact that Ms. Flock and Mr. McKen, either alone or jointly, have resided in the Property since late 1994 and over that time have maintained the Property and paid for all of the costs associated with the Property (with the exception of the property taxes paid by Mr.

Flock since 2018), I find the appropriate remedy is for the Estate to buy out Mr. Flock’s interest in the Property at its fair market value and to reimburse Mr. Flock for the property taxes paid by him. [ 61 ] The current value of the Property is not altogether clear from the evidence. The Estate provided an appraisal dated July 3, 2008 from Avison Young setting a valuation of $1,750,000 for the Property. The City of Calgary assessed the value of the Property for the purposes of property tax in 2018 at $1,920,000. In cross-examination on his affidavit, Mr.

McKen acknowledged that the affidavit he swore in support of the application for probate of the Estate of Ms. Flock, valued the Property at $2,038,000.

[ 62 ] Given the uncertainty of the evidence of value, I am directing that an appraisal be performed of the Property by a duly qualified real estate appraiser licensed to perform appraisals in Calgary within 30 days from the date of this decision. The cost of the appraisal shall be shared equally. If the parties are unable to agree upon an appraiser, they may provide me with their selection along with their submissions as to why their selection is appropriate.

I will then decide which of the appraisers will conduct the appraisal. [ 63 ] Upon the appraisal being provided, the Estate shall within 30 days of receipt of the appraisal, pay to Mr. Flock 50% of the appraised value of the Property in exchange for Mr. Flock’s interest in the Property. If the Estate is unwilling or unable to pay Mr. Flock the sum stated, the Property shall be listed for sale with a qualified realtor at the list price set out in the appraisal. Upon receipt of an offer acceptable to either party, the offer will be brought before the Court for approval.

Upon the closing of the sale of the Property, the net proceeds will be divided equally between Mr. Flock and the Estate. [ 64 ] There shall be no occupancy rent or other payment payable by the Estate or Mr. McKen to Mr. Flock since Ms. Flock and Mr. McKen have been maintaining the property which has contributed to its increase in value over the years which benefits Mr. Flock. [ 65 ] Mr. Flock will not be obligated to pay for any improvements to the Property performed by the Estate or Mr. McKen nor shall the amounts paid for such improvements be deducted from Mr.

Flock’s 50% interest in the property since these were undertaken without the express permission of Mr. Flock who has throughout been a registered co-owner of the Property. Conclusion [ 66 ] The Property is held as tenants in common by the Estate. [ 67 ] Once the appraisal is completed, I direct that 50% of the appraised value of the Property to be paid by the Estate to Mr. Flock. [ 68 ] If funds are not paid within 30 days of receipt of the appraisal, the house can be listed for sale and the proceeds split 50/50 between the Estate and Mr.

Flock. [ 69 ] If the 50% interest in the Property is purchased by the Estate from Mr. Flock, the Registrar of Land Titles is directed to issue a new title to reflect that title will be in the name of the Estate. [ 70 ] Costs may be spoken to within 30 days of this decision. Heard on the 26 th day of May, 2021. Dated at the City of Calgary, Alberta this 30 th day of June, 2021. B.B. Johnston J.C.Q.B.A. Appearances: Mike Cashion for the Applicant Muneeb Sadiq for the Respondent _______________________________________________________

Corrigendum of the Reasons for Decision of The Honourable Madam Justice B.B. Johnston _______________________________________________________ Paras 67 through 69 should state “paid by the estate to Mr. Flock”; and Counsel’s name was changed to reflect Mike Cashion.