Faurschou v Faurschou, 2018 MBCA 44

Citation: Faurschou v Faurschou, 2018 MBCA 44 Date: 20180423 Docket: AF16-30-08656 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner BETWEEN : DENEEN ISABEL FAURSCHOU ) J. A. Jones ) for the Appellant (Petitioner) Respondent ) ) L. I. Z.

Pinsky - and - ) for the Respondent ) GLENN DARRYL FAURSCHOU ) Appeal heard and ) Decision pronounced: (Respondent) Appellant ) April 23, 2018 On appeal from 2016 MBQB 12 Cameron JA (for the Court): [ 1 ] The respondent appealed the decision of the trial judge that the appreciation in value of 100 Class A common shares (the shares) in a farm corporation (the corporation) must be included as a shareable asset in the parties’ accounting pursuant to The Family Property Act , CCSM c F25 (the Act ).

In reaching that conclusion, she rejected his assertion that he originally acquired the shares as a gift. [ 2 ] Despite his initial insistence that he inherited the shares, during the course of the litigation it was discovered that the corporation’s minute book contained a directors’ resolution and a

schedule share subscription (the subscription) signed by the respondent evidencing that he purchased the shares for $100. Upon learning of this discovery, the respondent then claimed that he did not pay the $100 to the corporation, nor did he recall having signed the subscription. Consequently, his new position was that the shares were a gift. [ 3 ] In finding that the respondent had not proven on a balance of probabilities that the shares were a gift, as required by

section 22 of the Act , and thus not shareable, the trial judge commented on the respondent’s lack of recollection of the transaction. She noted that he had no positive evidence in support of his position that the shares were a gift and that he only concluded there was a gift when he saw the subscription. She also considered parts of his evidence to be incredible. Finding him to be a sophisticated businessman, she rejected his contention that he thought there was a difference between shares and ownership.

She drew a negative inference regarding his failure to call his mother—who was the corporate secretary at the time the subscription was executed—as a witness. [ 4 ] The respondent’s position that the trial judge made palpable and overriding errors in reaching the above conclusions was without merit. In our view, her reasons were adequate for the purposes of appellate review. Each of the findings of fact made by the trial judge were grounded in the evidence before her. Her determination regarding the respondent’s credibility is entitled to deference. [ 5 ] The appeal was dismissed with costs. JA JA

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