Paulette Marie Trottier - v. -, 2015 SKPC 45

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2015 SKPC 045 Date: March 31, 2015 File: 45/14 Location: Moose Jaw _____________________________________________________________________________ Between: Paulette Marie Trottier - and - Shayne Allen Trottier Ken Cornea For the Plaintiff Jacob Watters For the Defendant _____________________________________________________________________________ DECISION ON DEFENDANT ’S APPLICATION TO DISMISS D. KOVATCH , J _____________________________________________________________________________ BACKGROUND [ 1 ] The background and facts in relation to this application are not in dispute. The plaintiff, Paulette Marie Trottier, was married

to the deceased, Roy Phillipe Joseph Trottier. This was the second marriage for the deceased, Roy Trottier. From an earlier marriage, Roy Trottier had two children, Shayne Allen Trottier and Dawn Rhea Santiago. The son, Shayne Allen Trottier, is the defendant in this action. [ 2 ] Roy Trottier passed away on or about September 17, 2012. He died intestate. By letters of administration issued on February 19, 2014, Shayne Allen Trottier was appointed as the administrator of the estate. [ 3 ] The Court was advised that the estate of Roy Trottier is a very large one.

Further, that there are three active files in the Court of Queen’s Bench, Judicial Centre of Moose Jaw in relation to this estate. They are:

(1) Q.B.S. No. 26 of 2014, being the Court of Queen’s Bench surrogate file;

(2) Q.B. FLD No. 4 of 2014, being the plaintiff’s claim against the defendant made under The Family Property Act ; and

(3) Q.B. No. 99 of 2013, being an application by the defendant to be appointed as representative of the defendant for litigation purposes against the estate. [ 4 ] In this action, the plaintiff alleges that at the time of his death, the deceased had an outstanding Bank of Montreal Mastercard with a balance of approximately $4,000.00. The parties had a joint account with some funds in it. The plaintiff wife automatically became the sole owner of the funds in that joint account on the death of Mr. Trottier. She used funds from this joint account to pay off the Mastercard.

She made a claim against the estate for reimbursement of this sum. When this was not paid, this action was commenced in this Court. [ 5 ] The defendant then brought this application before the Court asking that this action be dismissed as being contrary to The Family Property Act , or res judicata . I am not of the view that this application should be dismissed at this time. I am of the view however, that all of the issues raised in this action are more appropriately and very likely to be dealt with by the Court of Queen’s Bench in the existing actions before that Court.

Further, that it would be quite inappropriate for this Court to allow this action to proceed at this time and make a determination of those issues that are more appropriately raised and dealt with in the Queen’s Bench proceedings. As a result, I will direct that these proceedings be stayed pending resolution of actions in the Court of Queen’s Bench. [ 6 ] I make this decision for the following reasons.

Firstly, s. 44(2) of The Family Property Act reads as follows: Where an application is made to a court pursuant to this Act , no person who is a party to the proceeding shall make an application pursuant to this Act to any other court. [ 7 ] It seems to me that this action is launched contrary to the spirit, if not the letter of this section. It is true that this action does not request any relief under The Family Property Act . However, if judgment were granted in this action, it would definitely affect The Family Property Act proceedings. Clearly the bulk of the family property remains in the estate.

If this action were successful, presumably a portion of that family property would be transferred to the plaintiff, in payment of the debt alleged. Presumably, she would then be in possession of a slightly larger portion of the family property, and the estate would be possessed of a slightly smaller portion. In other words, the order required to divide the property would then be reduced.

As a result, in my view, the issues raised in these proceedings should be dealt with by the Court of Queen’s Bench in The Family Property Act proceedings. [ 8 ] Secondly, under any reading of this action, it is a claim in debt against the estate of the deceased. Clearly such a claim should be dealt with in the Court of Queen’s Bench as a claim against the estate. [ 9 ] I followed a slightly different analytical route, but arrived at the same disposition of the matter.

It occurred to me that this action, like most other actions started in the Provincial Court Civil Division, could be commenced in the Court of Queen’s Bench. If this action were commenced in the Court of Queen’s Bench, I questioned whether it was likely that the Court of Queen’s Bench would direct that this action be consolidated with either the family property action or estate actions. It seems to me very likely that such an order would be made. If that is the case, I then asked whether the plaintiff should be in a better position, and effectively avoid consolidation,

by commencing this action in the Provincial Court. It seems to me that the plaintiff should not be in a better position. [ 10 ] As a result of all of the above, I am directing that this action be stayed pending disposition of the current actions in the Court of Queen’s Bench. Following conclusion of those matters, the plaintiff may bring an application asserting that the issues raised in this action were not determined by the Court of Queen’s Bench and asking for resumption of this action.

In the event that the Court of Queen’s Bench does not dispose of the issues in this action, then the Court will exercise its jurisdiction and deal with those issues. [ 11 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan this 31 st day of March 2015. D. Kovatch, J