Hilmoe v Hilmoe, 2018 SKCA 92

Court of Appeal for Saskatchewan Docket: CACV3156 Citation: Hilmoe v Hilmoe , 2018 SKCA 92 Date: 2018-11-23 Between: Michael Hilmoe and Gaylynn Reimer Appellants (Respondents) And Dianne Hilmoe Respondent (Applicant) Before: Ottenbreit, Herauf and Schwann JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Herauf and The Honourable Madam Justice Schwann In Dissent The Honourable Mr. Justice Ottenbreit On Appeal From: 2017 SKQB 312 , Swift Current Appeal Heard: June 13, 2018 Counsel: Holli A. Kuski Bassett for the Appellants Jason M.

Clayards for the Respondent Herauf and Schwann JJ.A. I. Introduction [ 1 ] Shortly before he died in 2006, Wayne Hilmoe transferred title to five parcels of farmland [Farmland] into joint names with his spouse, Dianne Hilmoe, with right of survivorship. Following Wayne’s death, Dianne had the Farmland registered in her name as the sole surviving joint tenant.

In spite of this registration, Dianne applied to the Court of Queen’s Bench nine years later for a declaration that she is both the legal and beneficial owner of the Farmland. [ 2 ] Michael Hilmoe and Gaylynne [1] Reimer, Wayne’s adult children from his first marriage, opposed Dianne’s application.

Given the parties’ conflicting affidavit evidence and the nature of the issues at stake, the matter proceeded by of a viva voce hearing. [ 3 ] At trial, Michael and Gaylynne argued the Farmland was subject to a resulting trust in their favour and, in the alternative, if the transfer was a valid inter vivos gift, it was the product of undue influence exerted by Dianne over Wayne and should accordingly be set aside. [ 4 ] The trial judge concluded the transfer was a valid inter vivos gift from Wayne to Dianne and not a resulting trust in favour of Michael and Gaylynne.

He went on to find that the transfer was not the product of undue influence brought to bear on Wayne by Dianne. [ 5 ] Michael and Gaylynne appeal from that decision. They argue the trial judge erred by failing to correctly identify the law in relation to gifts of a deceased donor, which in turn caused him to approach the issue through the wrong judicial lens. They also argue the trial judge erred in law by making findings of fact based on no evidence, in disregard of relevant evidence, or based on irrational inferences of fact.

Finally, they submit the trial judge erred in determining that the presumption of undue influence did not arise in the circumstances of this case. [ 6 ] We have had the benefit of reading the reasons of our colleague Ottenbreit J.A. in this matter. While we are in substantial agreement with his statement of the facts and the law, for the reasons that follow, we are unable to endorse his disposition of this appeal. II. ANALYSIS A.

Standard of Review [ 7 ] It is Dianne’s position that since Michael and Gaylynne’s application in the Court of Queen’s Bench was rooted in The Land Titles Act, 2000 , SS 2000, c L-5.1 [ LTA ], pursuant to s. 111 of that Act , an appeal to this Court is confined to questions of law.

Michael and Gaylynne do not take issue with Diane’s approach to their appeal. [ 8 ] With regard to the standard of review, we agree with Ottenbreit J.A. that Saskatchewan Government Insurance v Royer , 2012 SKCA 234, 393 Sask R 69 [ Royer ] , sets out the appropriate standard of review where a finding of fact is said to ground an error of law.

Referencing this Court’s decision in Murphy v Saskatchewan Government Insurance , 2008 SKCA 57 at para 5 , [2008] 7 WWR 401, the Court in Royer adopted the following standard of review: [5] Since the right of appeal is confined to a question of law, neither the right of appeal nor the jurisdiction of the Court extends to a

finding of fact. However, a finding of fact may be grounded in an error of law, as will be the case, for example, when a finding: (

a) is based on no evidence; (

b) is made on the basis of irrelevant evidence or in disregard of relevant evidence; or, (

c) is based on an irrational inference of fact. See: P.S.S. Professional Salon Services Inc. v. Saskatchewan Human Rights Commission et al. , 2007 SKCA 149 , (2007), 302 Sask. R. 161 at paras. 60-65 (application for leave to appeal to S.C.C. filed February 13, 2008). The right of appeal, of course, extends to such errors of law. III. Issues [ 9 ] We would frame the issues as follows: (

a) Did the trial judge fail to identify and apply the law relating to gifts of a deceased donor? (

b) Did the trial judge err in law with respect to his treatment of the evidence of donative intent? (

c) Did the trial judge err in his analysis of undue influence? (

d) Did the trial judge err in his application of The Family Property Act , SS 1997, c F-6.3? A. Did the trial judge fail to identify and apply the law relating to gifts of a deceased donor? [ 10 ] Michael and Gaylynne contend the trial judge made three fundamental legal errors with respect to how he approached the issue of Wayne’s donative intent.

They argue firstly that when a gift is alleged to have been made by a deceased donor, the prevailing jurisprudence requires the trial judge to examine the donee’s evidence with care, even with a degree of suspicion, and that some form of corroborating evidence is typically required to support an inference of gift. Their second argument is that Dianne, as donee, had to prove that Wayne had a clear and unmistakable intention to gift the Farmland and that it was an error on the part of the trial judge not to have considered Dianne’s evidence more scrupulously.

Michael and Gaylynne’s final argument is that the trial judge erred by failing to consider or give sufficient weight to the post-transfer evidence and its significance relative to Wayne’s donative intent. [ 11 ] Viewed collectively, Michael and Gaylynne argue the trial judge’s errors of law permit this Court to assess the evidence afresh through the proper judicial lens and substitute our decision for that of the trial judge. [ 12 ] We will address each argument under this ground of appeal in turn. 1.

Failure to view Dianne’s evidence with suspicion [ 13 ] Michael and Gaylynne argue that when a gift is made by a donor who subsequently dies, the evidence of the donee (in this case Dianne) must be examined with care, even to the point of suspicion and, moreover, that some corroborating evidence should have been required to support an inference of gift to Dianne.

They rely on the following decisions in support of their position: Kessler (Estate) v Kessler , 2015 SKQB 369 , 15 ETR (4th) 82 [ Kessler ]; Thorsteinson v Olson , 2014 SKQB 237 , [2014] 10 WWR 768 [ Thorsteinson QB ], aff’d: 2016 SKCA 134 , 404 DLR (4th) 453 [ Thorsteinson CA ]; Estate of Emiel Cyrille Van De Keere , 2012 MBQB 33 , 274 Man R (2d) 119 [ Van De Keere ], aff’d: 2012 MBCA 109 , 288 Man R (2d) 49; Weisbrod v Weisbrod , 2013 SKQB 282 , 426 Sask R 179 [ Weisbrod ].

We find all of these decisions distinguishable on their facts. [ 14 ] Kessler involved a claim brought by the donor’s son against his sister for the alleged misuse of their father’s funds and breach of the daughter’s fiduciary duty under a power of attorney. The son’s claim was brought after their father’s death. The daughter defended the claim by arguing that the transfer of funds to her and her family was simply a gratuitous inter vivos gift from the father.

While Kessler urges care, even to the point of suspicion, with a donee’s evidence where an inter vivos gift is alleged, these comments were directed more broadly to situations where, as it was in that case, the donee was the power of attorney for the donor. In any event, the impugned gifts in Kessler were personal property – not land – as is the case in this appeal. [ 15 ] Like Kessler , the court in Van De Keere grappled with gifts of personal property where the presumption of a resulting trust applied.

Here, again, this decision does not support the proposition that the trial judge should have examined Dianne’s evidence with a level of suspicion and that corroborating evidence was required in the circumstances. [ 16 ] In Thorsteinson QB , the trial judge’s comments with regard to how to approach the evidence of a donee were made in the context of the law of undue influence.

When it came to an examination of the resulting trust issue, however, the court did not suggest the donee’s evidence had to be approached with a degree of suspicion nor did the court require the donee to provide any form of corroborating evidence ( Thorsteinson QB at paras 104–116 ). Thorsteinson QB was upheld on appeal as it related to the finding that the impugned transaction constituted a gift ( Thorsteinson CA at para 31 ). [ 17 ] Weisbrod involved the gratuitous transfer of mineral rights from a father to a son based on an agreement between them.

This case is distinguishable insofar as the document in question was an agreement with the primary issue being whether the agreement was testamentary in nature. In any event, the inter vivos gift was upheld based on a finding of fact that the donor intended to divest himself of the property.

Finally, to the extent Weisbrod lends any support to Michael and Gaylynne’s position, that decision must be read in light of this Court’s subsequent decision in Dunnison Estate v Dunnison , 2017 SKCA 40 at para 91 , [2017] 8 WWR 18 [ Dunnison Estate ], which, in our view, makes Weisbrod of limited precedential effect. [ 18 ] In

summary, none of the referenced decisions support Michael and Gaylynne’s argument that the trial judge erred in failing to approach Dianne’s evidence with a degree of suspicion, or, for that matter, in failing to have required Dianne to have adduced some form of corroborating evidence.

[ 19 ] In any event, as noted above, the authorities relied on by Michael and Gaylynne preceded this Court’s decision in Dunnison Estate . Thus, to the extent the authorities stood for the proposition advanced by Michael and Gaylynne, when it comes to real property, they have been subsequently overtaken by Dunnison Estate in relation to inter vivos transfers of land into joint title with a right of survivorship.

Dunnison Estate dealt with the compatibility of voluntary transfer resulting trusts and the common law presumption that accompanies such trusts with the land titles legislation in this province, notably, the principle of indefeasibility of title enshrined in the legislation.

Succinctly stated, this Court ruled in Dunnison Estate : “In light of such authorities as Pecore v Pecore , 2007 SCC 17 , [2007] 1 SCR 795 [ Pecore ], voluntary transfer resulting trusts can exist with respect to land in this Province” (at para 1). [ 20 ] The issue in Dunnison Estate was framed around the modern doctrinal view of trusts, i.e., that a trust arises because the transferor lacked donative intent and therefore the title holder has an equitable obligation to hold the property for the benefit of the transferor (at para 21).

The Court then turned its mind to the burden of proving lack of donative intent on the part of the transferor. Assigning the burden becomes all the more important where the donor is deceased and unable to offer testimony about his or her intention in effecting the transfer. [ 21 ] Dunnison Estate began with an examination of the presumption established by the Supreme Court of Canada in Pecore v Pecore , 2007 SCC 17 , [2007] 1 SCR 795 [ Pecore ], that where a transfer is made for no consideration, the onus is on the transferee (or donee) to demonstrate that a gift was intended. The presumption had two purposes.

First, it shifted the evidentiary burden to the transferee (donee) to establish, on a balance of probabilities, that a gift was intended. And, second, it adjusted the “presumption” that would come into play by tipping the balance in favour of a resulting trust if a trial judge was unable to determine a transferor’s true intent after weighing all the evidence ( Dunnison Estate at para 86 ). [ 22 ] With that jurisprudential landscape in mind, we return to how this Court dealt with the “presumption” issue in light of Saskatchewan’s land registration system.

On this point, Dunnison Estate definitively ruled that, in this jurisdiction, the presumption articulated in Pecore was counter to s. 90(1) of the LTA . Section 90(1) provides that, absent words of limitation, every instrument transferring land operates as an absolute transfer of all such right and title the transferor has in the land ( Dunnison Estate at paras 89 and 91 ).

At paragraph 91, this Court concluded in Dunnison Estate : “based on s. 90(1), the burden of proof will be on the person challenging the title to establish on a balance of probabilities that the transferor lacked donative intent and, thus, the title does not accurately reflect legal ownership of the land” (emphasis added). [ 23 ] It is thus clear that, for evidentiary purposes, where a challenge to an inter vivos transfer of land is brought, the burden of attacking a certificate of title is borne by the person challenging it to establish that the transferor lacked donative intent ( Dunnison Estate at para 91 ). [ 24 ] The important point to be drawn from all of this for purposes of the arguments advanced in the present appeal is that Dunnison Estate does not require corroborating evidence nor must a donee’s evidence be examined with suspicion.

This is not surprising given this Court’s finding in Dunnison Estate : [89] A transfer under our land titles legislation is a statement of the transferor's intention to divest himself or herself of the land. Users of the system are entitled to rely on s. 90(1) which states “[n]o words of limitation are necessary in a transfer of land in order to transfer all or any title ... .” Unless the transfer contains words of limitation, every instrument transferring land operates as an absolute transfer of all such right and title as the transferor has in the land.

In other words, only a fee simple estate is acceptable for registration. (Bold in original, italics emphasis added) [ 25 ] The logical extension of the aforesaid statement is that, absent any limitation in the instrument, title to land operates to establish the donee’s assertion that the donor intended the transfer to be a gift. Given this, it is not necessary for a trial judge to look behind the title or require further corroborating evidence from the donee.

Our conclusion on this point is consistent with this Court’s decision to eliminate the presumption of a resulting trust in the context of inter vivos gifts of land and to place the burden of proving the transferor lacked donative intent squarely on the person challenging title ( Dunnison Estate at para 91 ). [ 26 ] Accordingly, in light of Dunnison Estate , the trial judge did not err by failing to view Dianne’s evidence with suspicion or by failing to require some form of corroborating evidence from her.

The onus was on Michael and Gaylynne to attack the certificate of title by establishing, on a balance of probabilities, that Wayne lacked donative intent when he transferred the Farmland into joint names with Dianne, with right of survivorship. 2.

Dianne’s failure to demonstrate that Wayne had a clear and unmistakable intention to gift the Farmland [ 27 ] Michael and Gaylynne also submit that, when a court is determining whether a gift was intended by a deceased donor, the donee bears the burden of establishing a clear and unmistakable intention to make the gift and that the evidence in that regard is inconsistent with any other intention. [ 28 ] This argument is really about which party bears the burden of proof.

As discussed above, Dunnison Estate has unequivocally resolved this issue by placing the evidentiary and persuasive burden on the person challenging title to establish that the donor lacked donative intent. 3.

Failure to examine evidence of Wayne’s intention in the context of events that arose after the transfer of the Farmland [ 29 ] Michael and Gaylynne argue the trial judge misunderstood what evidence was contemporaneous with the transfer and, in so doing, the trial judge misinterpreted or misapplied the law established in Pecore and thereby committed an error in law. [ 30 ] In Pecore , Rothstein J. said a court was permitted to consider various types of evidence in ascertaining the intention of the

transferor, including evidence of intention that arises subsequent to a transfer (at paras 55–59). As an important qualifier, though,Rothstein J. added: “The trial judge must assess the reliability of this evidence and determine what weight it should be given, guardingagainst evidence that is self-serving or that tends to reflect a change in intention” (Pecore at para 59).

With this statement, it can be saidthe Supreme Court effectively expanded the traditional notion that evidence of a transferor’s intention had to be “‘contemporaneous, ornearly so’, to the transaction” (Pecore at para 56), but the Court also clarified that it was up to the trial judge to assess the relevance,reliability and weight of such evidence. [31] Returning to the matter under appeal, we see no error with how the trial judge dealt with this issue. The trial judge correctlyidentified the law in relation to the use that may be made of post-transfer evidence.

He recognized that it was his duty as the trier of fact“to assess what weight, if any to accord such evidence in the circumstances” (at para 115).

We are satisfied the trial judge’s approach tothe post-transfer evidence was consistent with the direction given in Pecore with regard to both his obligation to consider it and hisdiscretion with regard to the weight to assign it. [32] In terms of the application of these principles to the evidence before him, we are also satisfied that the trial judge did notimproperly restrict himself to evidence that was reasonably contemporaneous with the transfer to Dianne and that he carefully examinedand reviewed evidence of the events that occurred following the transfer (see paragraphs 39, 51, 56, 93 and 94).

In this regard, the trialjudge expressly stated that he took into account the following pieces of post-transfer evidence and, in so doing, made the importantobservation that this evidence weighed against the transfer of Farmland being an inter vivos gift to Dianne. For instance, he took note ofthe following: (

a) Dianne had acknowledged that between the time Wayne executed his will on November 4, 2005 [Will] and his death, he hadassured his children they would receive their inheritance, albeit there was no evidence from Dianne as to when this discussion occurredvis a vis the transfer (at para 119); and (

b) Wayne and Dianne had asked Gaylynne in April 2006 if she was still comfortable with the terms of the Will (at para 120). [33] In

summary, in relation to Michael and Gaylynne’s ground of appeal, we find no reversible error of law with regard to howthe trial judge approached the issue of post-transfer evidence or with his appreciation of the law concerning gratuitous inter vivostransfers of land where a donor subsequently dies following the transfer. Nor do we see any error with how the trial judge treated thepost-transfer evidence. He was cognizant of this evidence and its significance for Michael and Gaylynne, but chose to assign it limitedweight. B.

Did the trial judge err in law with respect to his treatment of the evidenceof donative intent? 1. Framing this issue in light of the standard of review [34] As a preliminary matter, it is important to once again underscore the scope of this appeal in light of the applicable standard ofreview. The parties have agreed to approach this appeal from the perspective of error in law and not error in fact. As such, it is importantto keep in mind the unique position that trial judges hold and the restrained role of appellate courts.

A trial judge is in an advantageousposition when it comes to credibility findings, drawing inferences and weighing the evidence. A trial judge enjoys the unique position ofbeing able to see and hear the witnesses and thus assess their credibility. It is not the task of an appellate court to “second-guess” theweight a trial judge assigns to the different pieces of evidence.

In light of all of this, an appellate court is not free to interfere with thefactual conclusions of a trial judge where its basis for disagreement stems from a difference of opinion over the weight to be assigned tothe underlying evidence (Housen v Nikolaisen, 2002 SCC 33 at paras 22–23, [2002] 2 SCR 235). [35] We also find it helpful to restate certain basic principles of appellate review where errors of fact are said to ground an error oflaw.

First, a trial judge is not required to revisit each and every piece of evidence in his or her reasons, and an appellate court mustpresume the trial judge has reviewed all of the evidence unless an omission gives rise to a “reasoned belief” the trial judge has forgotten,ignored or misconceived the evidence in a way that affected the trial judge’s conclusion (Van de Perre v Edwards, 2001 SCC 60 at para15, [2001] 2 SCR 1014; Housen v Nikolaisen at para 72).

Second, it is open to a trial judge to prefer the evidence of certain witnessesover the evidence of other witnesses and to place more weight on some parts of the evidence over other evidence (Toneguzzo-Norvell(Guardian ad litem of) v Burnaby Hospital, (SCC), [1994] 1 SCR 114 at 122–123; Housen v Nikolaisen at para 72).Third, the mere fact a trial judge has not discussed certain evidence in depth is not on its own a sufficient basis for appellate intervention(Van de Perre v Edwards at para 15; Housen v Nikolaisen at para 72; see also, Northrock Resources v ExxonMobil Canada Energy, 2017SKCA 60, [2017] 12 WWR 369 [Northrock]). [36] With that context in mind, I now turn to the arguments advanced by Michael and Gaylynne. 2.

The absence of legal advice [37] Our colleague, Ottenbreit J.A., maintains the trial judge misunderstood the facts and the ratio of Winnitowy v Winnitowy, 2016SKQB 231, 23 ETR (4th) 147 [Winnitowy], affirmed by 2017 SKCA 12, and that this misunderstanding coloured his analysis. Werespectively disagree. [38] In Winnitowy, the husband had executed an interspousal agreement and last will and testament wherein he gave his secondwife a 50% interest in the house he had brought into their marriage.

Several years thereafter, with the benefit of legal advice, the husbandtransferred title to the house into joint title with his spouse, with right of survivorship. In the context of the trial judge’s discussion aboutwhether, generally speaking, a person can be said to understand the natural consequence of his or her actions, the trial judge commented:“The court would not expect a member of the general public to understand that the transfer into joint names would change thatarrangement unless that person received some advice about the effect of the transfer” (at para 42).

[39] The trial judge relied on Winnitowy for the limited point that because a prior document shows a different intention at adifferent time, it does not, in and of itself, defeat the intention reflected in a subsequent document (at para 114). The trial judge onlyrelied upon this principle to show that, because Wayne’s intention expressed in the terms of his Will was to grant Dianne a life interest inthe Farmland, this could not, in and of itself, defeat his subsequent intention that granted Dianne joint ownership as expressed in thetransfer agreement.

The trial judge simply used this principle as a starting point in his analysis. After he made this point, the trial judgewent on to review the remaining facts that appeared to weigh in favour of a resulting trust, commenting that if Michael and Gaylynnewished to establish the existence of a resulting trust, evidence other than Wayne’s Will was necessary. Importantly, though, he did notexclude the evidence of Wayne’s Will from his analysis. [40] Justice Ottenbreit is correct that in Winnitowy there was clear evidence from the deceased’s lawyer showing how thetransferor had changed his mind.

We do not have this sort of evidence here to support Wayne’s subsequent intention to gift the Farmlandto Dianne. But we again emphasize that in light of this Court’s comments in Dunnison Estate with regard to the onus of proof, Diannehad no obligation to provide this type of evidence to prove a valid transfer. Furthermore, even if the trial judge did overemphasize thepoint made in Winnitowy, he only referenced Winnitowy before going on to examine the balance of the evidence. 3.

Irrational findings of fact [41] Michael and Gaylynne contend the trial judge erred in law by making findings of fact in the face of no evidence to supportthem. They specifically point to the absence of any evidence that showed: (

i) Wayne knew or understood Dianne would become soleowner of the Farmland upon his death simply because he had, years earlier, transferred title in the family home and the Funk Farm – asmall holding purchased by Wayne and Dianne years prior to his death – into joint names with the right of survivorship; (ii) Wayne hadactually transferred his vehicles into joint names; and (iii) their bank account, although joint, included a right of survivorship.

Michaeland Gaylynne argue that in accordance with Royer, it was an error of law for the trial judge to have made a finding of fact or to havedrawn an inference based on no evidence. [42] Unpacking these arguments, Michael and Gaylynne take issue with the trial judge’s conclusion that Wayne had understoodthe legal effect of the right of survivorship. They contend it was irrational to presume Wayne had sophisticated knowledge of how thelaw operated in this area.

The trial judge dealt with this issue in the following way: [128] Moreover, if it had been Wayne’s intention to merely grant Dianne a life interest in the Farmland, he had already done so in hisWill, executed November 4, 2005, and there was no need to take the additional step of transferring title.

Conversely, if it had been hisintention to make an inter vivos gift, there was no need to amend the terms of his earlier Will to give effect to that intention, as thenatural consequence of transferring the Farmland into joint tenancy with Dianne, with right of survivorship, would be the ademption ofthe testamentary disposition (Sorenson v Sorenson, (1977) (AB CA), 90 DLR (3d) 26 (Alta CA)). [129] Moreover, as the Court of Appeal noted in Dunnison Estate, at paras 90 and 114, had Wayne intended to merely create a lifeinterest in favour of Dianne, he could have also done so by entering into a written lease with her, and registering the same pursuant tosection 50 of The Land Titles Act, 2000.

Instead, he executed and registered the authorizations necessary to transfer title to the Farmlandinto the names of himself and Dianne, and arranged to check the box confirming that they were to hold the same as joint tenants withright of survivorship. [43] We respectfully disagree with Michael and Gaylynne’s argument.

The trial judge did not come to a conclusion with regard toWayne’s donative intent in isolation on the basis of his education or based on what he may have learned had he received legal advice.Instead, the trial judge drew an inference that Wayne knew what he was doing with the Farmland largely from how he had dealt with hisother assets.

He concluded this evidence lent support to an inference that Wayne was acquainted with the concept of joint tenancy andright of survivorship. [44] By Michael and Gaylynne’s own definition, in order for an inference to be irrational, it must be “not governed by or accordingto reason,” and “not logical or reasonable.” We are satisfied the trial judge was well aware of Wayne’s education level (at para 48) andhe knew that Wayne did not have legal advice when he executed the transfers (at para 123).

His inference that Wayne understood theconsequences of joint tenancy and the right of survivorship was based on several factors (discussed more fully below) and the fact thebox confirming the Farmland would be held in joint tenancy with the right of survivorship had been checked at the time the transferdocuments were executed in accordance with Wayne’s instructions (at para 32).

Furthermore, the trial judge never concluded Wayne hadsophisticated knowledge and understanding, only that Wayne intended the transfer to be an outright gift. [45] Survivorship, while a technical term, is not manifestly beyond the intuitive comprehension of the average person. In thissense, given the surrounding facts, it was open to the trial judge to have drawn the inference that Wayne knew exactly what he was doingand understood the impact of his decision. Wayne was obviously motivated to do something vis a vis the Farmland, and we agree thisalone does not impute expertise to Wayne.

Rather, we understand the trial judge to state that if had it been Wayne’s intention to simplygive Dianne a life interest in the Farmland, there was no need for him to transfer the Farmland into joint names with right ofsurvivorship. He did not conclude that Wayne did what he did because he had a sophisticated knowledge about the right of survivorshipthat accompanies joint ownership.

In any event, the burden was on Michael and Gaylynne to prove that Wayne lacked the donativeintent, not for Dianne to disprove it (Dunnison Estate at para 91). [46] When it comes to legal advice or lack thereof, Dunnison Estate makes it clear that a transferor does not require legal advice todivest him or herself of land since the transfer itself “is a statement of the transferor’s intention to divest himself or herself of the land”(Dunnison Estate at para 89).

This Court only considered the presence of legal advice at the end of its analysis stating if the presumptionof resulting trust had in fact applied, the presence of legal advice would be useful in rebutting the presumption (Dunnison Estate at para122). [47] Michael and Gaylynne rely on two authorities for the proposition that a general member of the public does not understand theeffect of transferring title into joint names absent legal advice about the effect of the transfer.

In support of their argument, they firstlyrefer to the comments of Tholl J. in Winnitowy and, second, point to the comments of the Newfoundland Court of Appeal in Coish v

Walsh , 2001 NFCA 41, 40 ETR (2d) 204 . The difficulty with these two authorities is that they both predate Dunnison Estate where this Court specifically found ss. 90(1) and 213(1) of The Land Titles Act abolished the presumption of resulting trust in Saskatchewan as it relates to land.

Furthermore, the argument must be understood in light of what this Court said in Dunnison Estate about the “presumption” of a resulting trust: [94] ... [Sections 90(1) and 213(1)] provide different evidentiary assumptions than the presumption of resulting trust , namely, that absent limitations set out in a transfer, the transfer is taken as conveying absolute title (a fee simple estate) to the transferee and that a certificate of title is conclusive evidence the person named is entitled to the interest in land described therein. (Emphasis added) [ 48 ] Therefore, while lack of legal advice is one factor a court may consider in determining whether a person challenging title has proven lack of donative intent on a balance of probabilities, the absence of legal advice is not dispositive of the issue.

If it were otherwise, it would place the onus on the transferee, which Dunnison Estate explicitly rejected. As well, this Court in Thorsteinson Estate CA , while in the context of its discussion about undue influence, specifically rejected the argument that legal advice is a requirement where an individual signs a deed or transfer (at para 52). This Court found that independent legal advice is not a necessary requirement, but it can be an effective way to rebut the presumption of undue influence. Similar reasoning is applicable here.

Independent legal advice is not a necessary requirement to make the transfer valid but it could be used to establish, and indeed would be helpful to establish, donative intent should someone challenge the validity of the transfer. [ 49 ] In the matter under appeal, the trial judge was aware Wayne did not receive legal advice when he transferred the Farmland to Dianne and he weighed this evidence in his overall consideration of Wayne’s donative intent. Thus, the issue Michael and Gaylynne advance is largely a matter of how the trial judge weighed the evidence.

They have not identified an error of law in this respect. [ 50 ] The next argument advanced by Michael and Gaylynne concerns the evidence about how Wayne dealt with his other assets prior to his death, and whether this evidence could or should have had any bearing on his donative intent. Michael and Gaylynne argue the trial judge made findings of fact in relation to the other assets based on no evidence or on a misapprehension of the evidence, which in either case, they argue, give rise to an error of law. [ 51 ] This argument stems from the trial judge’s reasons.

The trial judge drew on evidence about how Wayne had dealt with several other assets prior to his death to infer that Wayne had acted purposefully and understood the legal consequence of a joint tenancy with right of survivorship in relation to the Farmland.

The trial judge’s analysis began with the family home, where he said: “The manner in which he elected to deal with the Farmland is entirely consistent with his previous decision to add Dianne as a joint tenant on title to the home, and would suggest that he was acquainted with the concept and legal consequence of joint tenancy and the right of survivorship” (at para 125). It is clear from this statement that the trial judge found it relevant that Wayne, who had owned the family home prior to marriage, transferred it into joint names with Dianne several years prior to his death.

Michael and Gaylynne do not address these facts and are presumed to take no issue with both the findings of fact and the inference drawn from it. [ 52 ] In reference to how Wayne dealt with four other assets, the trial judge commented that it was “entirely consistent with the manner in which they treated their other assets, including their joint bank account and the Funk Farm, which they also held as joints tenants with right of survivorship” (at para 126), and “his decision to transfer the vehicles and the rented Crown land into joint tenancy with Dianne was, if not precisely contemporaneous, certainly of the same time frame as, and in the case of the leased Crown land, subsequent to his transfer of the Farmland” (at para 127). [ 53 ] Michael and Gaylynne do not take issue with the factual finding concerning Wayne’s decision to transfer rented Crown land into joint names with Dianne at roughly the same time as he transferred the Farmland, but they challenge the evidentiary findings in relation to the three other assets.

The first such asset is the Funk Farm. Michael and Gaylynne disagree with the trial judge’s conclusion that how they dealt with the Funk Farm supported Dianne’s position. They contend there is no evidence it was owned in the same manner as the Farmland based on a conversation Wayne and Dianne had had with Michael, where Dianne had said to Michael in relation to the Farmland: “Why would you buy something that should rightfully be yours?” [ 54 ] We do not find this piece of evidence persuasive. The issue before the trial judge was Wayne’s intent, not Dianne’s.

In any event, simply because the Funk Farm was sold to Michael prior to Wayne’s death does not undermine the trial judge’s conclusion that Wayne dealt with this piece of property in a manner consistent with the Farmland or that Wayne misunderstood the legal consequences of joint ownership and survivorship.

If anything, it serves to reinforce the trial judge’s inference since Wayne felt it was necessary to sell the Funk Farm to Michael prior to his death. [ 55 ] As to the joint bank account, Michael and Gaylynne submit there was no evidence Wayne and Dianne held it with a right of survivorship, only that Wayne and Dianne held it “jointly”. Even if the trial judge overstated the evidence on this point, this argument ignores the obvious fact that the parties held the account jointly and once again ignores the onus borne by those who challenge title to disprove donative intent.

While it may have been an error for the trial judge to have overstated the evidence on this point, this minor error would not have had a material effect on the trial judge’s analysis of the overall issue. [ 56 ] Finally, Michael and Gaylynne contend the trial judge erroneously stated the vehicles had been transferred into joint names when there was no evidence to support this finding of fact. In our view, this argument misinterprets what the trial judge actually said. The trial judge merely commented on evidence of Wayne’s intention to transfer the vehicles into joint names with Dianne.

There is no error here with how he treated this evidence. [ 57 ] Michael and Gaylynne’s final argument is that the trial judge disregarded other relevant evidence. There is little merit to this argument. The trial judge considered how the Farmland was important to Wayne (at paras 57 and 71) and that the income from the Farmland had been treated differently from Wayne’s employment income (at para 121).

As well, the trial judge considered the fact Wayne had told his children they would get their inheritance (at para 119), that Wayne never said anything to Gaylynne that led her to think he had changed his intention with regard to disposition of the Farmland (at para 120), and that Wayne told his children it was important for the Farmland to stay in the family (at para 91). The trial judge was clearly aware of all of this evidence.

[ 58 ] Since the trial judge did not disregard or ignore this evidence, resolution of Wayne’s donative intent came down to a question of the relative weight he assigned to the evidence that was before him. Applying the Royer framework, it was not an error of law for the trial judge to have assigned it less weight than Michael and Gaylynne say it deserved. [ 59 ] Finally, we wish to briefly comment on the position taken by our colleague Ottenbreit J.A. concerning Dianne’s evidence about the absence of any discussion between her and Wayne concerning the transfer of the Farmland.

While we agree that this evidence gives added weight to Michael and Gaylynne’s position, the trial judge was aware of this evidence and addressed it at paragraphs 34 and 47 of his judgment. The trial judge was also aware of Dianne’s evidence that, except for a dining room set, Wayne had never discussed with her what would happen to their property in the event of his death (at para 22). [ 60 ] Michael and Gaylynne contend the absence of any discussion between Dianne and Wayne on such an important matter amounted to clear evidence of Wayne’s lack of donative intent. This, of course, is true.

However, the trial judge was required to view their lack of discussion in light of all of Dianne’s evidence and determine if it was consistent with the relationship Wayne and Dianne had, particularly the evidence about the fact they never spoke about what would happen to their property in the event of death. Again, there is no identifiable error in law here. Michael and Gaylynne’s concern is really with how the trial judge weighed this evidence and the inference he drew from it. [ 61 ] In

summary, while the trial judge may have overstated the evidence in a couple of minor respects, these evidentiary miscues simply relate to the trial judge’s assessment of how Wayne treated his other assets. The trial judge relied on this analogous body of evidence to buttress the inference about Wayne’s intention to gift the Farmland to Dianne.

In any event, even if the trial judge had overstated the strength or accuracy of some pieces of this evidence, given the burden of proof borne by Michael and Gaylynne to establish a lack of donative intent, it is hard to fathom how this error had any bearing on the trial judge’s conclusion regarding analogous treatment of assets. 4. Conclusion [ 62 ] Respectfully, the issues raised by Michael and Gaylynne concern how the trial judge weighed the evidence before him, drew inferences from the evidence and applied the legal principles to the facts.

Here, the trial judge extensively reviewed the evidence in paragraphs 13–100 of his judgment. Having regard to the evidence that was accepted, he then carefully articulated the facts that weighed in favour of a resulting trust and the facts that supported Dianne’s position that Wayne intended a gratuitous inter vivos gift of land.

In the end, he concluded Michael and Gaylynne had failed to meet the persuasive burden of demonstrating that Wayne lacked donative intent. [ 63 ] Since we have found the trial judge’s findings were not based on the absence of evidence or on an irrational inference, Michael and Gaylynne’s argument is essentially an appeal from the weight that had been assigned to the evidence by the trial judge. At its highest, Michael and Gaylynne’s appeal raises questions of mixed fact and law, not questions of law. As noted above, Michael and Gaylynne have agreed that the appeal is restricted to questions of law.

Since they have failed to identify an error of law arising from the evidence, this ground of appeal pertaining to the trial judge’s treatment of the evidence about Wayne’s donative intent must fail. C. Did the trial judge err in his analysis of undue influence? [ 64 ] Michael and Gaylynne contend that while the trial judge correctly identified the law relating to undue influence, his application of the law to the facts and disregard for relevant evidence constituted an error in law.

More specifically, Michael and Gaylynne argue the trial judge erred in failing to conclude that a presumption of undue influence had arisen in light of the unique circumstances of Wayne’s illness, Dianne’s role as caregiver and their close spousal relationship.

They point to the fact that it was Dianne who drove Wayne to the land registry on several occasions to facilitate the transfer of the Farmland. [ 65 ] We are satisfied the trial judge correctly identified Thorsteinson CA as the governing law and understood that the existence of a spousal relationship, in and of itself, does not automatically give rise to the presumption of undue influence.

Rather, he noted the need for a careful examination of the factual context and the particular circumstances of Wayne and Dianne’s relationship to determine if it gave rise to a potential for domination by Dianne and hence invoke a presumption of undue influence (at para 141). [ 66 ] Michael and Gaylynne had argued that Wayne was confused, in a vulnerable state and thus in a position of dependency on Dianne. After a careful review of the pertinent evidence, the trial judge was unable to agree with Michael and Gaylynne.

He found that although Wayne was on medication for his pain “there was no evidence, medical or otherwise, to suggest that it left Wayne confused, or otherwise mentally infirm” (at para 145). In fact, the trial judge held other evidence tended to suggest otherwise and that Wayne was only truly reliant on Dianne for driving. The trial judge found it significant that it was on Wayne’s direction that Dianne drove them to Mennonite Trust and the land titles office in Swift Current to fill out forms relative to the land transfer.

As he noted, this occurred on more than one occasion and Dianne’s evidence on this point went in unchallenged.

Finally, relying on Thorsteinson QB , and Thorsteinson CA , the trial judge concluded the absence of legal advice did not advance Michael and Gaylynne’s argument. [ 67 ] Following his examination of the law and the evidence, the trial judge had little difficulty concluding Wayne and Dianne’s spousal relationship did not give rise to a presumption of undue influence, and that in the event he was in error, on the evidence before him, “there was no actual undue influence exercised by Dianne over Wayne when he transferred the Farmland into their joint names” (at para 153). [ 68 ] In our view, Michael and Gaylynne have failed to identify any error of law with how the trial judge dealt with the issue of undue influence.

Like the previous issue, Michael and Gaylynne’s argument is really concerned with the trial judge’s findings of fact, how he weighed the evidence on this issue and the conclusions and inferences he drew from them. Based on a careful reading of the trial judge’s decision, we are satisfied that he was alert to the particular pieces of evidence that had been identified by Michael and Gaylynne as being supportive of their position. We are satisfied this evidence was either addressed by the trial judge in his reasons or was simply found not to be persuasive on the issue of undue influence.

[ 69 ] In the end result, the trial judge committed no error of law and we are satisfied the evidence and his findings of fact were capable of supporting his bottom-line determination. Therefore, this ground of the appeal must be dismissed. D. Did the trial judge err in his application of The Family Property Act ? [ 70 ] The trial judge found that s. 50 of The Family Property Act was inapplicable to the matters before him.

He relied upon Dunnison Estate to find the onus rested on Michael and Gaylynne to demonstrate, on a balance of probabilities, that Wayne intended to create a life interest as opposed to an outright gift of the Farmland to Dianne (at para 135). [ 71 ] Michael and Gaylynne did not press this issue on appeal and we find any remaining questions regarding the application of s. 50 of The Family Property Act in light of Dunnison Estate are best left to another day. Therefore, we see no reason to interfere with the trial judge’s ruling on this issue. IV.

Conclusion [ 72 ] For the reasons given, we would dismiss the appeal with costs to Dianne to be assessed in the usual way. “Herauf J.A.” Herauf J.A. “Schwann J.A.” Schwann J.A. Ottenbreit J.A. I.

Introduction [ 73 ] Michael Hilmoe and Gaylynne Reimer appeal the Court of Queen’s Bench decision dated October 16, 2017 ( 2017 SKQB 312 ), where it was determined that a 2006 transfer of certain farmland near Cabri, Saskatchewan, by Wayne Hilmoe to Dianne Hilmoe, as joint tenant with right of survivorship, constituted a valid inter vivos gift of both the legal and beneficial interest and not a resulting trust, and that such transfer was not the product of any undue influence. For the reasons hereinafter set forth, I would allow the appeal. II. Facts and Background [ 74 ] Dianne married Wayne in 1991.

Dianne and Wayne lived in Cabri in the matrimonial home Wayne had from his first marriage. Both had grown children from their respective previous relationships. Michael and Gaylynne are Wayne’s children. [ 75 ] In 1982 or 1983, Wayne began acquiring five parcels of farmland [Farmland] from his parents under an agreement for sale. Wayne made payments on the Farmland and on occasion Dianne made payments as well. [ 76 ] After the first year of marriage, Wayne and Dianne opened a joint bank account. They pooled their wages into that account and paid all of their expenses from that account.

Wayne maintained a separate bank account for income and expenses related to the Farmland, which during the marriage was rented out. Dianne’s name was never added to that account. When Wayne’s father passed away, the balance of the purchase price of the Farmland was forgiven and the Farmland was transferred into Wayne’s name. [ 77 ] A few years after they were married, Wayne added Dianne as joint tenant on the title to the Cabri residence. During their marriage, Wayne and Dianne also acquired a parcel of land known as the Funk Farm. Dianne contributed money to this purchase.

The Funk Farm was put into joint tenancy as well. [ 78 ] In October 2005, Wayne was diagnosed with terminal pancreatic cancer. His palliative care consisted of pain management with medication. Dianne looked after Wayne’s day-to-day care in the Cabri residence until his death. [ 79 ] After receiving news of his father’s illness, Michael drove to Cabri to visit his father. He offered to purchase the Farmland from Wayne, but Wayne assured him that was not necessary because it was passing to him in his will. Wayne also advised Michael that he could not sell him the Farmland because Dianne needed it to live.

Dianne had told Michael that he was rightfully entitled to the Farmland and so he should not worry about buying it. Wayne told Michael that he was going to Mennonite Trust to make a will and was leaving the Farmland to him and Gaylynne but that he wanted Dianne to be taken care of. Michael promised Wayne that Dianne would receive the proceeds from the Farmland. [ 80 ] Wayne and Dianne thereafter visited the local branch of Mennonite Trust in Swift Current. On Wayne’s instructions, the manager of the branch, Doug Dueck, prepared a new will for Wayne dated November 4, 2005 [Will].

It provided Dianne a life interest in the Farmland. The Will also stated that after Dianne’s death, the Farmland was to be given to Michael who was to pay Gaylynne half its value or, alternatively, the Farmland was to be divided equally between them if Michael did not want the Farmland. [ 81 ] Gaylynne indicated that she saw the Will in December 2005 in the presence of Dianne. On that occasion, Wayne had directed Gaylynne to read the portion dealing with the Farmland and asked her if she was content with that. Gaylynne testified that she told her father she did not want the Farmland as it meant more to Michael.

Wayne replied that the Will stated that she was to be paid half the

value of the Farmland by Michael as he wanted to be sure that she was provided for. [ 82 ] In January 2006, Wayne told Dianne he wanted her name to be put on the title to the Farmland as a joint tenant. He did not tell her why he was doing this. Dianne drove Wayne to the Land Registry Office in Swift Current where he obtained transfer authorizations and supporting documents. They returned home and Dianne, at Wayne’s instruction, filled out the documents to transfer the Farmland into both names.

She checked the “Joint Tenants” box on each of the transfer authorizations signifying the right of survivorship. [ 83 ] On January 17, 2006, Dianne and Wayne again attended at Mennonite Trust in Swift Current where the completed transfer authorizations were executed and witnessed. They registered the documents at the Land Registry Office. However, one parcel of land was missed in the preparation of documents. As a result, in March 2006 they again made their way to Swift Current and completed the paperwork necessary to transfer the remaining parcel into joint names.

Wayne did not tell Dianne why he wanted the Farmland put into both names and Dianne never asked. She and Wayne never discussed what would happen to the Farmland in the event of death. Around the same time, Wayne also arranged for the lease of a parcel of Crown land to be put into joint names with Dianne. [ 84 ] Gaylynne recalled that in April 2006 she had gone to visit with her father and at that time her father had asked her if she was still okay with the terms of the Will and she confirmed she was. She recalled that Dianne asked him “Are you sure?” to which Wayne replied “Yes”.

Dianne then told Gaylynne “You just have to trust me”. [ 85 ] Dianne indicated that between the time of executing the Will and his passing, Wayne had told his children not to worry and that they would get their inheritance. However, he never told her what that meant and in the final weeks preceding his death, the only conversations Wayne had with either of his children in her presence were when he advised he wanted to go through his personal belongings to give various items to his grandchildren. [ 86 ] Wayne died on October 29, 2006.

In February 2007, Dianne arranged to have title to the Farmland registered in her name as sole surviving joint tenant. [ 87 ] In January 2015, Dianne applied pursuant to Rule 3-49(1)(

e) of The Queen’s Bench Rules and ss. 107(1) (d), 109(1) and 109(3) of The Land Titles Act, 2000 , SS 2000, c L-5.1 [ LTA ], for a declaration that she was the sole legal and beneficial owner of the Farmland. In March 2015, in response to Dianne’s application, Michael and Gaylynne registered a miscellaneous interest against the Farmland on the basis that Dianne held the title under a resulting or constructive trust. III.

Decision of the Queen’s Bench Judge [ 88 ] Dianne submitted that the transfer of the Farmland by Wayne into their joint names was an inter vivos gift and, as the sole surviving joint tenant, she was its sole legal and beneficial owner.

She argued that The Family Property Act , SS 1997, c F-6.3, presumed joint tenancy and, moreover, the LTA and the concept of indefeasibility of title precluded the existence of a resulting trust in respect of the Farmland. [ 89 ] Michael and Gaylynne asserted that their father’s transfer of the Farmland into joint tenancy with Dianne was without consideration and gave rise to a presumption of resulting trust, which presumption Dianne had failed to rebut.

Alternatively, they argued that if the transfer was indeed an inter vivos gift, it was the product of undue influence and should be set aside. [ 90 ] The trial judge indicated that the issue for determination was Wayne’s intention at the time he transferred the Farmland into joint tenancy. He stated that a prior document that showed a different intention at a different point in time did not, in and of itself, defeat a clear intention in the subsequent document.

The trial judge also indicated that it was for the trier of fact to assess what weight, if any, was to be given to evidence of the donor’s intention. [ 91 ] The trial judge reviewed the factors that appeared to militate against an inter vivos gift. These were as follows: (

a) Wayne’s spoken intention to Mr. Dueck at the time he made the Will that Dianne was to receive the income from the Farmland and upon her death it would pass to his children; (

b) at the time he executed the Will, Wayne assured his children that they would receive their inheritance; (

c) Wayne had assured Gaylynne on many occasions over the years that the Farmland would eventually pass to her and Michael and in April 2006 both Wayne and Dianne asked her if she was still comfortable with the terms of the Will, despite that Wayne had transferred the Farmland the preceding January; (

d) both Dianne and Wayne treated the Farmland differently from their other assets in terms of finance; (

e) there was no evidence as to what became of the income derived from the Farmland or the expenses associated with it between the time that Wayne created the joint tenancy in the Farmland and his passing; and (

f) Wayne had not had the benefit of any legal or other advice when he transferred the Farmland. [ 92 ] The trial judge also went through a number of factors that tended to support Dianne’s contention that Wayne intended to make an outright gift of the Farmland to her: (

a) some years earlier, Wayne had also arranged to transfer title to what had been his own home prior to their marriage into joint tenancy with Dianne, with right of survivorship; (

b) the transfer of the Farmland was consistent with his previous decision to add Dianne as a joint tenant on the house. This would suggest he was acquainted with the concept of joint tenancy and the legal consequences of joint tenancy and the right of

survivorship; (

c) the transfer of the Farmland was consistent with the manner in which they treated all their other assets; (

d) Wayne transferred vehicles and rented Crown land into joint tenancy with Dianne; (

e) if Wayne’s intention was to merely grant Dianne a life interest in the Farmland as he had already done in the Will, there was no need to take an additional step to transfer title; and (

f) if Wayne wanted to create a life interest in favour of Dianne, he would have done so by entering into a lease with her and registering the same pursuant to the LTA . [ 93 ] The trial judge found, because title to the Farmland had been registered by Wayne in the names of both himself and Dianne as joint tenants, that the presumption of resulting trust as provided in s. 50(1) of The Family Property Act was inapplicable and that The Family Property Act had no application to the matter. [ 94 ] With respect to the allegations of undue influence, the trial judge found that he could not infer that at the time Wayne transferred the Farmland he was confused, in a vulnerable state and in a position of dependency on Dianne.

He indicated that although Wayne was taking medication at the time and that the medication could cause drowsiness, neither Michael nor Gaylynne proffered any evidence to suggest Wayne had become confused or mentally infirm.

He stated that there was nothing, apart from the fact that Wayne required Dianne to drive, to suggest that he was reliant on Dianne, whether emotionally, physically or financially. [ 95 ] The trial judge found that there was no evidence of the potential for Dianne to dominate Wayne’s will and that, in the circumstances of their spousal relationship, there was nothing to give rise to a presumption of undue influence.

Alternatively, he found that if he was in error in this regard, he was satisfied nonetheless that, despite the absence of legal advice, the evidence demonstrated on a balance of probabilities that there was no actual undue influence exercised by Dianne over Wayne when he transferred the Farmland into their joint names. [ 96 ] He concluded that Dianne was the sole legal and beneficial owner of the Farmland and discharged Michael and Gaylynne’s interest registered against the Farmland. IV. Issues [ 97 ] Michael and Gaylynne raise a number of issues on appeal.

I need not deal with the issues of undue influence and s. 50 of The Family Property Act as I agree with the disposition of these issues by my colleagues. [ 98 ] Accordingly, I need only deal with two issues to determine this appeal: (

a) Jurisdiction and standard of review. (

b) Did the trial judge err in law in determining that Wayne had donative intent when he transferred the Farmland? V. Analysis A. Jurisdiction and Standard of Review [ 99 ] Dianne argues that Michael and Gaylynne’s right of appeal and this Court’s jurisdiction under ss. 7(2) (

a) and 10 of The Court of Appeal Act, 2000 , SS 2000, c C-42.1, is limited by the wording of s. 111 of the LTA to a question of law. She submits that, at its highest, the issues raised by Michael and Gaylynne are mixed questions of fact and law, not questions of law and that the case is really about the weight that was given to the evidence in making the factual determinations of what Wayne intended by executing the transfer. [ 100 ] Dianne commenced this proceeding pursuant to ss. 107(1)(d), 109(1) and 109(3) of the LTA and Queen’s Bench Rule 3-49(1)(

e) for a declaration that she is the legal and beneficial owner of the Farmland. Although s. 107(1)(

d) is drafted widely to allow anyone to apply to the court respecting an interest in land, the process set out in ss. 107–112 of the LTA appears to be primarily, although not entirely, directed to issues and decisions that arise out of the operation of the land titles system.

As such, it is procedurally ill-suited to the determination of what is essentially a conflict between beneficiaries of an estate and the donee of an inter vivos gift concerning factual questions of the intention of the donor. [ 101 ] While it is true that s. 111 of the LTA limits appeals of decisions made under the foregoing sections to questions of law, in this case the appeal is not necessarily so limited. This is because Queen’s Bench Rule 3-49(1) provides a parallel process for a declaration respecting issues related to land.

The decisions made pursuant to that Rule are appealable like any other decision of the Court of Queen’s Bench on both questions of law and questions of fact pursuant to ss. 7(2) (

b) and 10 of The Court of Appeal Act, 2000 . That said, Michael and Gaylynne have approached the appeal on the basis that it is restricted to questions of law. I will therefore also approach it on that basis. [ 102 ] Michael and Gaylynne argue that the trial judge made errors of law by failing to identify the law relating to gifts of a deceased donor and by making findings of fact based on no evidence, a disregard for relevant evidence or on an irrational inference. For the latter argument respecting the trial judge’s dealing with the facts, they rely on Saskatchewan Government Insurance v Royer , 2012 SKCA 42 at paras 15 and 16 , 393 Sask R 96.

B. Did the trial judge err in law in determining that Wayne had donativeintent when he transferred the Farmland? [103] I turn first to the governing law. When title to land under the LTA is challenged on the basis that it is subject to a resulting trust,the case of Dunnison Estate v Dunnison, 2017 SKCA 40, [2017] 8 WWR 18 [Dunnison], applies.

In Dunnison, this Court said thefollowing respecting challenges to the indefeasibility of the title under the since repealed Land Titles Act, RSS 1978, c L-5: [91] The ultimate effect of ss. 118, 243 and 244 in combination with s. 90(1) is that transfers of land are transfers of the complete feesimple estate. The presumption of resulting trust is incompatible with those sections because a transfer cannot be viewed as “absolute”and at the same time be “presumed” to create a trust.

This conclusion is not inconsistent with the Supreme Court of Canada’s decisions inPecore, Madsen, Kerr and Nishi as none of those cases considered whether there were legislative provisions that might affect thepresumption of resulting trust.

The law may still impose a resulting trust in situations where such trusts traditionally would have arisenbut, based on s. 90(1), the burden of proof will be on the person challenging the title to establish on a balance of probabilities that thetransferor lacked donative intent and, thus, the title does not accurately reflect legal ownership of the land. … [93] Subsection 213(1) states a certificate of title is conclusive evidence of ownership subject to the exceptions and reservationsimplied by the Act. Subsection 213(1) clearly places the burden of attacking a certificate of title on the person(

s) challenging the same.On the other hand, the presumption of resulting trust reverses that statutory evidentiary burden, requiring the registered owner toestablish the validity of his title. [94] In

summary, in light of Pecore, a voluntary transfer resulting trust can exist with respect to land in Saskatchewan. However, thepresumption that accompanies such trusts is incompatible with ss. 90(1) and 213(1) of The Land Titles Act, 1978.

Those sections providedifferent evidentiary assumptions than the presumption of resulting trust, namely, that absent limitations set out in a transfer, the transferis taken as conveying absolute title (a fee simple estate) to the transferee and that a certificate of title is conclusive evidence the personnamed is entitled to the interest in land described therein. … [96] To be clear, as a matter of judge-made law, voluntary transfer resulting trusts can exist with respect to land in this Province.Having said that, we have concerns about whether such trusts truly fit with our land titles system. [104] This analysis and these conclusions are equally applicable to the LTA.

On the basis of Dunnison, the law in this Provincepresumes that Dianne’s title to the Farmland is both legal and beneficial. The burden of proof to the contrary falls on Michael andGaylynne to show on a balance of probabilities that their father did not intend to gift the Farmland beneficially to Dianne when hetransferred it into joint tenancy (Dunnison at para 111). To be clear, there is no onus on Dianne to prove that she was gifted the beneficialinterest in the Farmland.

Michael and Gaylynne must rebut the presumption of a gift. [105] The analytical process to be used in a case like this is discussed in Pecore v Pecore, 2007 SCC 17, [2007] 1 SCR 795 [Pecore].After determining the proper presumption to apply, the trial judge must weigh all the evidence related to the intention of the transferorwhen making the gift to determine if the presumption has been rebutted (Pecore at para 55). The evidence a court may consider in itsanalysis of the intention of the transferor “ought to be contemporaneous, or nearly so” to the transaction (Pecore at para 56).

However,evidence that arises after the transfer should not be automatically excluded. Such evidence must be relevant to the intention of thetransferor at the time of the transfer. The trial judge must assess the reliability of the evidence to determine what weight it should begiven, guarding against evidence that is self-serving or that tends to reflect a change in intention (Pecore at para 59).

The requirement ofcontemporaneity is to prevent persons from undoing a transaction with calculated later statements (Pecore at paras 56–57; Clemens vClemens Estate, (SCC), [1956] SCR 286 at 294). [106] Michael and Gaylynne argue that the trial judge failed to identify and consider the applicable law and did not regard Wayne’sdonative intent through the appropriate judicial lens, all of which amounts to an error of law. I agree with this.

I will explain. [107] The trial judge began his identification of the governing law by appropriately quoting Dunnison and referring to Pecore, notingthat the operative presumption was that the transfer was a gift and the issue for determination was Wayne’s intention at the time hetransferred the Farmland. The trial judge’s error, however, came in his misunderstanding of the scope of the possibly relevant evidenceand his handling of the evidence. [108] Pecore suggests that the types of evidence a trial judge can or should consider will depend on the facts of each case (Pecore atpara 55).

In this case, there was no direct evidence of intent other than the transfer of the Farmland itself. Circumstantial evidence ofintent therefore necessarily played a bigger

part in the analysis. In the process of looking at all the evidence, it was necessary to treatWayne’s testamentary dealings with the very same Farmland as equally relevant. The trial judge failed to do that. [109] In answering the question of Wayne’s intention, the trial judge misunderstood the concept of what evidence can be said to becontemporaneous as discussed in Pecore. Contemporaneity of the evidence is a fluid concept. It will also vary with each case dependingon what direct evidence of intent at the time of the transfer is available.

In a case such as this, the parameters of what is relevant andcontemporaneous are necessarily broader to accommodate circumstantial evidence and evidence over a longer time period because of thelacunae in direct evidence of intent at the time of the transfer. [110] Evidence of what transpired both before and after the transfer is relevant given that we do not have, apart from the transferitself, any verbal or written expressions about what was intended by the transfer.

The continuum of contemporaneous and relevant eventsand evidence referable to the Farmland and Wayne’s intention starts in early November 2005 and continues to shortly before his death.In the circumstances of this case, that is a span of approximately 12 months.

[111] Rather than considering Wayne’s actions and utterances with respect to the Farmland after he got sick ending with the periodshortly before his death as a continuum that might shed light on his intent regarding the transfer, the trial judge unduly restricted himselfin the analysis of the evidence. As a result, he dismissed Wayne’s express testamentary instructions to Mr.

Dueck in November that hewanted the Farmland to go to his children and Dianne to have a life interest in it as not being probative or relevant to Wayne’s intentionwhen he signed the transfer some months later. [112] In this regard, he relied on Winnitowy v Winnitowy, 2016 SKQB 231, 23 ETR (4th) 147 [Winnitowy], for the general propositionthat a prior document showing a different intention at a different time did not of itself defeat a clear intention in a subsequent document.That case does not stand for that proposition.

Winnitowy was similar to this case in that the deceased had signed a will dividing theproceeds of the sale of his house on his death between his three children. Two years after signing the will, he transferred the house intojoint names with his second wife, who on his death took title as surviving joint tenant. The difference in Winnitowy was that the deceasedhad received legal advice on execution of the transfer and had indicated to the lawyer advising him with respect to the transfer that hiswife had assisted him better than his children and she deserved to get the house.

In short, the intention that the transfer was to be a gift tothe wife was clearly discernible from evidence extrinsic to the transfer document itself at the time the instruction to transfer was given. [113] The reference to Winnitowy coming as it does at the beginning of the trial judge’s analysis of the evidence tending to showWayne did not intend a gift, colours the trial judge’s understanding of the concept of relevance and contemporaneity reflected in hisanalysis of and approach to the rest of the evidence. [114] For example, it is a fair statement that the trial judge appears to have concluded Wayne understood the concept and legalconsequences of joint tenancy and the right of survivorship because he had transferred his home into joint tenancy with Dianne and, aswell, had done the same with respect to the Funk Farm and their joint account.

Michael and Gaylynne submit there is no evidence tosupport that conclusion and, moreover, no evidence that he understood those consequences in relation to the terms of the Will. I agreewith this. [115] There is no direct evidence about his actual understanding of the concept of joint tenancy with right of survivorship in relationto the property transferred a substantial time prior to the transfer of the Farmland, such as the Funk Farm and the Cabri residence.Likewise, with the transfer of the Crown lease into joint names after the transfer of the Farmland.

There is no evidence as to what heunderstood about those transfers into joint names. [116] Paragraph 128 of the decision reads as follows: [128] Moreover, if it had been Wayne’s intention to merely grant Dianne a life interest in the Farmland, he had already done so in hiswill, executed November 4, 2005, and there was no need to take the additional step of transferring title.

Conversely, if it had been hisintention to make an inter vivos gift, there was no need to amend the terms of his earlier will to give effect to that intention, as the naturalconsequence of transferring the Farmland into joint tenancy with Dianne, with right of survivorship, would be the ademption of thetestamentary disposition (Sorenson v Sorenson, (1977) (AB CA), 90 DLR (3d) 26 (Alta CA)). [117] Implicit in this comment is that Wayne understood the consequences of the transfer of the Farmland would be to extinguish thegift to his children in the Will by ademption and instead gift Dianne the beneficial interest in the Farmland on his death.

Such aconclusion is unreasonable in that it disregards Wayne’s grade 8 education and his lack of legal advice about both the transfer and theWill and, specifically, the absence of advice about the effects of the transfer on the terms of the Will. [118] While lack of legal advice is not a ground in itself to justify overturning a gift, such a lack nevertheless informs thedetermination of whether Wayne understood the concept of joint tenancy with right of survivorship and what he understood he was doingvis-à-vis the terms of the Will.

The trial judge’s comment that the LTA does not require legal advice is irrelevant, since the lack of such arequirement is not probative of what Wayne understood. [119] Michael and Gaylynne also argue that the trial judge disregarded relevant evidence that would indicate lack of intent to gift theFarmland. They submit the Farmland was the most significant financial asset owned by Wayne and it had sentimental value to himbecause it came from his family.

They argue as well that, apart from the transfer itself, there was no evidence that Wayne wanted todisinherit his children and, in fact, the evidence from all witnesses was to the contrary. There was strong evidence as to Wayne’s pre-existing intention to give the Farmland to his children, which was contemporaneous with the date of the transfer.

I agree that the trialjudge, while reciting the evidence on this point, seems to have ignored in his analysis the effect of this substantial direct evidenceregarding what he intended to do with the Farmland. [120] The trial judge also misapprehended significant aspects of the evidence. While the trial judge considered evidence that Waynetreated the Farmland differently than other assets by depositing the income from it into a separate account as significant, he discountedthis factor based on an erroneous finding that there was no evidence of how Wayne treated the income from the Farmland after thetransfer.

In fact, Dianne testified that the income from the Farmland was, until Wayne died, put into his account but that periodicallyWayne would give her money from it for groceries or other things. [121] The trial judge found there was no evidence from Dianne as to the timing of Wayne’s conversation with his children that theywould get their inheritance. In fact, Dianne testified that it occurred shortly before Wayne died. [122] The trial judge also failed to deal with several significant relevant matters.

The first was Dianne’s testimony that Wayne tookthe step to transfer title without saying anything to her about why he was doing that. Dianne accepted that transferring the Farmland wasa monumental matter and Wayne would thereby disinherit his children. However, the “why” of this step was never discussed by them.Indeed, the whole matter was never discussed by them. Dianne’s evidence that the matter was never discussed was accepted by the trialjudge as was his right to do.

However, its significance with respect to inferences about Wayne’s intention was lost on him. [123] The absence of discussion about the matter is significant because Dianne testified that she and Wayne talked about thingsopenly, as he did with his children. He discussed the gift of the Farmland to his children in the Will in the presence of Dianne, bothbefore and after the transfer, assuring his children that they would get their inheritance. It is therefore odd that Wayne would, if he

understood he was disinheriting his children, not at least address the issue of the transfer with Dianne. A transaction that had the effect of disinheriting the children and gifting a substantial asset to her should, as matter of common sense and in view of their close relationship, have been a significant talking point between them in view of what he was telling the children in her presence. [ 124 ] Had the trial judge considered this strange behavior he might have considered what inferences to draw from Wayne’s silence with Dianne in light of all the other evidence.

One such inference from this silence is that Wayne did not think it important to talk about the effect of the transfer with Dianne because he believed it did not affect what he had told his children about their inheritance and the terms of the Will. Such an inference is, for example, consistent with Wayne asking Gaylynne approximately two months after he signed the transfer if she was still comfortable with the terms of his Will.

Unfortunately, the trial judge did not undertake that analysis. [ 125 ] The trial judge also failed to deal with a second significant matter that might have shed some light on Wayne’s intentions. This matter was Wayne’s questioning of his children as to whether they were satisfied with their inheritance. The genesis of this matter is Dianne’s recollection of Wayne telling Michael the day before Wayne made a new Will that he would not sell the Farmland to him because “Dianne needed to live”.

Michael confirmed Dianne’s recollection as saying that he understood Wayne wanted Dianne to have the proceeds of the Farmland and that thereafter the Farmland would be left to him. The very next day Wayne executed the Will leaving a life interest in the Farmland to Dianne and after her death giving the Farmland to his children. [ 126 ] Dianne recalled that between the time of executing the Will and his passing, Wayne told his children not to worry, they would get their inheritance.

In early December 2005, Wayne gave Gaylynne the Will to read, specifically directing her to the part dealing with the Farmland, which would have included the part about the life interest. After she read it, he asked her if she was content with it and specifically mentioned at that time that he wanted Dianne to be looked after. In April 2006, after the Farmland had already been transferred jointly to Dianne, Gaylynne visited her father and he asked her again if she was still okay with the terms of his Will.

She confirmed she was. [ 127 ] In light of all this, a fruitful line of inquiry might have been to consider what Wayne was trying to do by continuing to ask Gaylynne if she was okay with the Will and to what he was referring in doing so, even after he had transferred the Farmland into joint tenancy. It is unlikely that his continued asking related only to whether Gaylynne was happy about getting the Farmland.

Had the trial judge considered the significance of this, one of the inferences open to him would have been that Wayne was concerned that his children were not happy that their inheritance was delayed because of Dianne’s life interest and that he still believed Dianne would get a life interest under the Will even after the transfer. [ 128 ] The failure by the trial judge to consider Wayne’s silence and Wayne’s serial questioning of Gaylynne about whether she was satisfied by the terms of the Will is significant because of the lack of direct evidence of intent.

Consideration of these matters would have assisted in making sense of what was going on and informed the determination of whether, on all the evidence, Wayne intended that Dianne would continue to only receive a life interest in the Farmland despite the transfer. [ 129 ] The errors of the trial judge as explained above represent a constellation of errors that amount to an error of law inviting intervention by this Court. [ 130 ] It is therefore necessary for this Court to substitute the decision that the trial judge should have arrived at if the errors had not been made. This can be accomplished in a

summary fashion incorporating my previous remarks. [ 131 ] In determining whether Michael and Gaylynne have discharged the burden upon them, the standard of proof is the balance of probabilities. Applying this standard to the evidence outlined above, I conclude they have done so. Taking into consideration the inferences I outlined regarding the

[…]