King v. King, 2015 NLCA 54

Date: 20151105 Docket: 15/81 Citation: King v. King , 2015 NLCA 54 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : DERRICK KING AND GABRIELE KING APPLICANTS AND : SHERMAN KING AND JAYNE LUNNEY (KING) RESPONDENTS Coram: Welsh J.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201401G5216 2015 NLTD(G) 130 Application Heard: November 4, 2015 Decision Rendered: November 5, 2015 Reasons for Decision by Welsh J.A.

Counsel for the Applicants: Self Represented Counsel for the Respondents: Ernest Gittens Welsh J.A.: [ 1 ] By decision dated October 2, 2015, the trial judge dismissed the claim by Derrick and Gabriele King for transfer of ownership of a house which they alleged had been given to Derrick King as a gift from his father. The judge ordered Derrick and Gabriele King to deliver vacant possession of the property to Sherman King, Derrick’s father, on or before November 27, 2015.

Derrick and Gabriele King filed a notice of appeal and, pending disposition of the appeal, they are seeking a stay of enforcement of the order. [ 2 ] For the reasons that follow, the application for a stay is denied. Analysis [ 3 ] Rule 57.10(1) of the Rules of the Supreme Court, 1986 provides: The filing of a notice of appeal shall not operate as a stay of the order appealed from. [ 4 ] However, the appellant may apply to have enforcement of the decision stayed pending disposition of the appeal. The test to be

applied in assessing an application for a stay is summarized in RJR – MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, at page 334: Metropolitan Stores [[1998] 1 S.C.R. 110] adopted a three-stage test for courts to apply when considering an application for either a stayor an interlocutory injunction. First, a preliminary assessment must be made of the merits of the case to ensure that there is a seriousquestion to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application wererefused.

Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of theremedy pending a decision on the merits. … [5] The first element, whether the appeal raises a serious question, requires a preliminary assessment of the merits of the appeal. The threshold for satisfying this element is low. [6] In the particular circumstances of this case, the first question merits more than a cursory inspection. Derrick and GabrieleKing, while not legally trained, represented themselves at trial, which is their right. The same applies in this Court.

However, the trialjudge’s decision and that of this Court must be based on the law. Derrick and Gabriele King have indicated that they will be unable topursue their appeal if the stay is refused since they will return to Ontario. In the result, I believe a more thorough discussion of whetherthe appeal raises a serious question is warranted. I would hasten to add that, should the appellants pursue their appeal in any event, thisdecision, and the reasons, would not be considered by the panel assigned to hear the appeal and I would not discuss or sit on the appeal. [7] The trial judge’s decision is comprehensive.

He discussed the law and the evidence. He made reference to differences in theevidence given by the witnesses. The judge began his analysis of the merits of the case by commenting (2015 NLTD(G) 130): [31] Derrick King said in the course of his testimony that the house was not worth the destruction of the family relationship. As Ipointed out a number of times during the proceeding, this is true.

But the combination of personality conflicts, differing expectationsand intentions, and the failure to clarify and commit a family arrangement to writing have combined to create what may well beirreparable damage to the King family. [8] The elements necessary to constitute a gift in law were fundamental to the trial judge’s decision: [33] … To be valid, a gift requires a continuing intention to make a gift; the gift must also be ‘perfected’ by the donor doingeverything within his or her power necessary to transfer the gift to the donee – see McCormick v. McCormick Estate, (SK KB), [1985] 6 W.W.R. 466, 42 Sask.

R. 58 (Sask. Q.B.). [34] While McCormick refers to a continuing intention on the part of the donor, the recent decision of the Supreme Court of Canada inNishi v. Rascal Trucking Ltd., 2013 SCC 33 clarifies that the donor’s intention is to be assessed at the time of the transfer of the propertyin question – see paragraphs 30, 37, 38, 41 and 46. [9] The judge concluded that, in this case, the relevant time occurred when Derrick and Gabriele King went into possession of theproperty.

This is relevant to the appellants’ argument that the gift occurred when, by telephone, they agreed to leave Ontario on theunderstanding that the house had been given as a gift to Derrick King. [10] The judge also dealt with expectations: [37] The expectation or understanding of the donee/recipient are irrelevant to the determination of whether or not a transfer ofproperty is intended to be a gift. … The intention – not the motivation – of the donor is critical. [11] The trial judge concluded: [41] I am not satisfied that Derrick and Gabriele have proven that as of June 4, 2012, Sherman had the intention to give the house tothem, or to Derrick himself, as an outright and absolute gift.

As I have noted earlier, it is a fact that the word ‘gift’ was used on a numberof occasions. But taken as a whole, the evidence satisfies me that Sherman’s intention was to allow Derrick and Gabriele to live in thehouse for nothing for as long as they wanted, but with Sherman and Jayne being free to come and go to and from the property as theywanted, to use the garage and shed for working and storage, and to get drinking water from the well as necessary. … [43] To repeat, the evidence does not support a finding that Sherman intended to transfer – in his lifetime – title to Derrick.

Suchevidence as there is points to an intention not to sign over the property. Accordingly, the alleged gift must fail for a lack of proof ofintention. [12] The judge went on to deal with the lack of written evidence transferring the property to the appellants. He considered thepossible application of equitable considerations that may be relevant and concluded: [50] Equity will thus intervene when improvements made to the property by the [donee] are such as to render it unfair and unjust forthe [donor] not to complete the intended gift. [51] In this case, there were no such extensive improvements to the property.

It is true that some money and labour was expended,but the evidence is clear that such expenditures were mostly for routine maintenance items. … Further, the evidence does not suggestthat they in fact improved the property. … [52] I do not propose to repeat the specifics of what was done in and around the house after Derrick and Gabriele went intopossession. Suffice it to say that, taken together, they fall far short of the nature and extent of improvements and expenditures required tosupport equitable relief.

[ 13 ] The trial judge also gave reasons for denying the appellants’ claims for the cost of their move from Ontario and for premiums to insure the property. [ 14 ] In their notice of appeal, Derrick and Gabriele King provide the following grounds for their appeal. The first ground is that the trial judge “failed to take account of evidence that there was a ‘verbal agreement’”.

The trial judge, in fact, addressed the relevance and legal effect of statements made by the parties. [ 15 ] The second ground of appeal is that the trial judge was “biased” and erred by refusing evidence as to Sherman King’s bad character as well as his intention or motivation to have his son make improvements to the house so that he could take back an improved property. There is no evidence of bias by the trial judge.

He dealt with the improvements Derrick and Gabriele made to the property and the legal relevance of motive. [ 16 ] In light of the above, I am satisfied that the appeal does not raise a serious question. Accordingly, the first element of the test for granting a stay has not been established. In the result, it is unnecessary to consider the remaining components of the test.

Summary and Disposition [ 17 ] The dispute underlying this appeal has caused significant anxiety and stress for all the involved parties. Having given careful consideration to the evidence and the law, the trial judge made a determination in favour of Sherman King. I have reviewed the judge’s decision and considered the submissions of Derrick and Gabriele King, as well as those of Sherman King, and have concluded that the appeal does not raise a serious issue such as is required in order to grant a stay of the trial judge’s order. [ 18 ] Accordingly, the application for a stay is denied.

The parties shall bear their own costs of the application. _________________________________ B. G. Welsh J.A.