Martin v Martin, 2022 SKCA 79

Court of Appeal for Saskatchewan Docket: CACV3734 Citation: Martin v Martin , 2022 SKCA 79 Date: 2022-07-19 Between: Richard Calvin Martin Appellant (Defendant) And Martha Martin, in her capacity as executrix of the Estate of Kenneth Martin, and Martha Martin Respondents (Plaintiffs) Before: Schwann, Tholl and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Mr. Justice Tholl The Honourable Mr.

Justice Kalmakoff On appeal from: 2020 SKQB 272 , Saskatoon Appeal heard: June 9, 2022 Counsel: Elke Churchman for the Appellant Curtis Onishenko and Paige Van de Sype for the Respondent Schwann J.A. I. INTRODUCTION [ 1 ] Case law is replete with situations where a parent gratuitously transfers real property into joint title with an adult child but later changes their mind about the arrangement only to discover that their initial, well-intentioned decision is legally difficult to undo. This case is another variation on that theme.

Here, Richard Martin, the son of Martha Martin and Kenneth Martin, transferred title to his home into joint title with his parents, with rights of survivorship. For various reasons, Richard’s parents grew weary of that arrangement and applied for partition and sale of the property. [ 2 ] Following a three-day trial, a Court of Queen’s Bench judge made an order directing the sale of the property: Martin v Martin , 2020 SKQB 272 [ Trial Decision ]. Richard appeals from that decision.

While he does not take issue with any of the legal principles or the analytical framework used in this case, he says the trial judge committed errors in his fact-finding and placed too much weight on his mother’s evidence, which, he argues, was patently unreliable. [ 3 ] For the reasons expressed below, I find Richard’s appeal must be dismissed. II. BACKGROUND [ 4 ] In 1997, Richard purchased property located 20 km northwest of Saskatoon.

Title to that property was initially registered in his sole name, but, two years later, he added his wife to the title and moved an old Eaton’s house onto the property. [ 5 ] In 2000, Richard and his wife obtained a $170,000 construction loan from the Saskatoon Credit Union – the repayment of which was secured by a mortgage. The loan was earmarked for various improvements and renovations Richard intended to make to the house. Richard began his renovation project in 2000, aided by his father, Kenneth, who was a skilled carpenter. [ 6 ] Richard and his wife separated in 2001.

When his wife assigned into bankruptcy shortly thereafter, the Credit Union demanded repayment of the construction loan. The Credit Union was prepared to reinstate the mortgage, provided Richard’s parents agreed to assume it and to replace Richard’s wife on the title. [ 7 ] To achieve that end, and as part of Richard’s divorce settlement with his wife, Kenneth and Martha signed a loan agreement with the Credit Union, advanced $8,000 to Richard to enable him to settle his family property claim, and agreed to a transfer of title to their names and Richard’s as joint owners.

The mortgage balance at the time of this transfer was $160,249, with the property (including the house) valued at $190,000.

While the parties agreed that Richard had received $8,000 from his mother, they differed on the source of those funds, with Richard maintaining the funds were generated from the sale of some of his equipment. [ 8 ] No agreement or memorandum was prepared at the time of the transfer to document the parties’ intentions or, contrary to Richard’s assertion at trial, to reflect that his parents only held legal title in trust for him. [ 9 ] At trial, the parties disagreed as to the reason behind the transfer of title. Bruce McDonald was Richard’s lawyer at the time of transfer.

He testified that title was transferred from Richard and his ex-wife’s names into the joint names of Richard and his parents because Richard had expressed concerns over the possibility that he would be required to divide the equity in the property with any future spouse in the event of his remarriage. When Mr. McDonald was asked by Richard (who was self-represented at trial) why he (Richard) had wanted his parents’ name on the title, Mr. McDonald responded by saying, “You were concerned that you’d had to include in the

family property division with … your former spouse, all of the equity in the family home. So you wished to avoid running into that circumstance in the future”. [ 10 ] For his part, Richard testified that he had instructed his lawyer to transfer the property into joint names for estate planning purposes. The following exchange took place in the course of cross-examination by Martha’s legal counsel: Q And when [your wife] transferred her interest, she transferred -- when she transferred her interest in the property, she transferred it directly to you, Ken, and Martha; correct?

A I got Bruce McDonald to do that, yeah. Part of my estate planning. Q I’m going to show you a transfer authorization, dated February 18, 2003. Is that your signature on that document? A Yeah. Q Okay. Now, if I can get you to flip a few pages, you’ll see there’s a transfer from [your wife] -- A Yeah. Bruce would’ve done that. This is in his affidavit. Q Did you find the page? A With the affidavit in it? Q No, there’s a transfer from [your wife]. A Yeah. Oh, yeah. Q Okay. Do you -- can you read for the Court who that is transferred to? A Well, it’s transferred to all three of us. Q All three of who?

A Martha, Ken, and -- and me. Q And what’s the date she signed the affidavit? Or that transfer, sorry. A Oh, that would’ve on 2003 sometime probably. [ 11 ] As noted, renovations to the house commenced in 2000. It was undisputed at trial that Kenneth had provided considerable assistance to Richard over the years in connection with the renovation project.

While the parties differed on how much time Kenneth had devoted to the project, Richard was prepared to concede that it was around 3,000 hours. [ 12 ] The relationship between Richard and his parents broke down in or around 2010 over a financial dispute relating to a family-run towing business. That dispute led to competing oppression actions brought by the parties in the Court of Queen’s Bench, which were eventually resolved in the parents’ favour: Martin v Martin , 2012 SKQB 294 , 401 Sask R 245 [ 2012 Oppression Decision ].

However, as the trial judge observed, although that litigation led to an increase in tension between Richard and his parents, the oppression proceedings had no direct bearing on the parents’ application for partition and sale of the property. [ 13 ] Kenneth passed away in 2012. Martha is the executor of his estate. Shortly before Kenneth’s death, he and Martha had commenced an action against Richard alleging “a joint investment in the Land and a business” in which they had made substantial payments towards the cost, upkeep and renovations to Richard’s house.

Paragraph 5 of the statement of claim reads as follows: 5. Ken is a journeyman carpenter and did all the woodwork in the House. There is hardwood in all the rooms, except slate tile in two bathrooms and the entrance of the addition. Ken built the interior wooden stairs and railings with antique wood from his great grandfather’s house. All of the wood on the floors was from Ken’s great grandfather’s house. Ken rescued the wood from the house and used his trailer and paid for the gas to haul same to the House.

All of these items were paid for by the Plaintiffs. [ 14 ] The statement of claim goes on to allege that the parents had made the mortgage payments from 2001 until April 1, 2011, and paid the utilities and some of the taxes. By way of relief, Kenneth and Martha sought an order for the sale of the property and a division of the proceeds “according to their respective interests” or, alternatively, for partition of the property.

Martha and Kenneth also sought a permanent injunction “restraining [Richard] from making an Application by Surviving Joint Tenant in the event of the death of one or both of [Martha or Kenneth] until the within action and all appeals therefrom have been disposed with by the Courts”. [ 15 ] Richard filed a statement of defence in which he disputed most of the assertions set out in his parents’ statement of claim. He contested his parents’ allegation of having made various payments and other contributions toward the cost of renovation and upkeep of his house. More specifically, he denied that (

a) Martha and Kenneth had obtained title to the property for investment purposes, (

b) Martha and Kenneth had paid for the materials for the property, (

c) Kenneth had worked on his house to the extent asserted in the statement of claim (approximately 13,000 hours), and (

d) his parents had made payments towards the mortgage, utilities or taxes. According to Richard, all of those payments came from a joint bank account that he held with his mother, and the deposits into that account had been generated from income derived from his business. Finally, Richard asserted that his parents’ assistance was voluntary “because of their relationship as father/mother and son”. [ 16 ] In relation to the requested relief, Richard resisted the application for partition and sale by pleading that it was motivated “by malice, a desire to be vexatious, or to be oppressive …”.

He asserted that the sale would cause him serious hardship and that his parents’ action was no more than retribution for the oppression litigation. In the event the Court granted partition or sale of the property, Richard sought to have the proceeds divided unequally in his favour. [ 17 ] Martha testified on her own behalf at trial and in her capacity as the executor of Kenneth’s estate. She tendered five handwritten ledgers as evidence of how she had documented the various advances she and Kenneth made to Richard over the years, along with expenses they had personally incurred on his behalf.

The ledgers included items such as mortgage payments, but also referenced payments related to Richard’s tow-truck business. [ 18 ] After setting off deposits against payments allegedly made on Richard’s behalf, the “mom and dad loan” column of Martha’s ledger totaled $180,575. Martha testified that, by July of 2008, Richard was indebted to them to the tune of $226,719. In recounting this evidence, the trial judge commented on how the deposits had been recorded as credits against expenses.

Martha testified that those deposits were primarily from the operation of the Richard’s tow-truck business, i.e., Richard’s business income.

[ 19 ] The trial judge found the ledgers to be unclear with regard to how much money Richard allegedly owed his parents. The trial judge remarked on how Martha was uncertain about many of the entries, had acknowledged in cross-examination that the list of things she and Kenneth had allegedly paid for were not specified as loans, and observed that she had no paperwork to back up the various entries.

After recounting the difficulties with her documentary evidence, the trial judge concluded by stating, “Her conflicting evidence on what the ledger accounts meant and acknowledgement of no longer understanding the basis upon which they were created means that I can place no reliance whatsoever on these ledgers in determining any issue arising out of this court case” (at para 16). [ 20 ] The trial judge also commented on an appraisal of the property, which had been completed in 2006 for purposes of mortgage renewal, which showed its value to be $288,000, even though a significant amount of work remained to be done. [ 21 ] An affidavit sworn by Kenneth shortly before his death was read into the record at trial.

Kenneth averred that he had devoted roughly 13,000 hours of work into Richard’s house. Richard disputed that figure but, as mentioned above, conceded that the amount of Kenneth’s labour was roughly 3,000 hours. Based on the conflicting and inadequate evidentiary foundation, the trial judge concluded on this point by stating, “There is no way to accurately know how much physical work Kenneth did on the house, except, at the very least, the admission by Richard of approximately 3,000 hours of work is a good indication” (at para 22). [ 22 ] Richard testified on his own behalf.

He was adamant that he had put approximately $450,000 of his own money into the property. That evidence stood in contrast to Martha’s testimony. She testified that, from 2001 to 2006, Richard had earned less than $60,000 in pre-tax income in total. Her testimony was supported by Richard’s own tax returns. [ 23 ] The trial judge rejected Richard’s testimony about his alleged financial contributions to the property.

However, he went on to find that it was “impossible from the evidence presented to determine the absolute or relative financial contribution made by Richard on the one hand and Kenneth and Martha on the other to the Land” (at para 24). [ 24 ] Paragraph 25 of the Trial Decision contains the trial judge’s findings of fact: [ 25 ] The factual situation that I accept that I believe is relevant to the legal issues on this case is as follows:

(1) Richard was the initial sole purchaser of the Land registering it in his own name.

(2) Richard purchased the Eaton house which was moved onto the Land.

(3) The Land was registered in the name of Richard and … his wife, as joint owners.

(4) At the time of Richard and [his wife’s] divorce Kenneth and Martha advanced $8,000 to Richard to help pay out [his wife] for her property settlement including the Land.

(5) At around the same time the Credit Union demanded payment of the mortgage registered against the Land.

(6) Kenneth and Martha assumed the mortgage effectively putting it into the names of Kenneth, Martha and Richard.

(7) At Richard’s suggestion the Land was transferred into joint tenancy of Richard, Kenneth and Martha.

(8) Richard’s intention was that the beneficial interest in the property would be held by all three of them with the survivor ultimately becoming the sole owner.

(9) Following the transfer into joint names, Kenneth and Martha made financial contributions to the continued construction of the house and mortgage payments; however, the amount of those contributions cannot be quantified.

(10) Richard continued to make financial contributions to the mortgage payments and renovations to the house but that number cannot be quantified.

(11) Kenneth assisted Richard with physical labour in doing the renovations to the house. Richard acknowledges that Kenneth’s contribution amounted to some 3,000 hours, but there is no way to calculate the value of such work as it relates to the value of the house.

(12) Some of the financial contributions by Kenneth and Martha to the house renovations were likely gratuitous, but there is no way of quantifying the amount of such gratuitous contributions.

(13) The assistance that Kenneth provided physically to the improvement of the property before it was transferred into joint names was likely done on the basis of a parent assisting a child in an endeavour without any anticipation of payment. It was gratuitous.

(14) The work done by Kenneth in assisting Richard on the house renovations after Kenneth became a registered owner cannot be attributed to either: (

a) an intention by Kenneth to benefit himself as a registered owner; or (

b) an intention to provide a gratuitous benefit to Richard.

(15) There is no evidence as to the fair market value of the Land at the time that the court action for partition was started or at the time of trial. [25] The trial judge then turned to s. 4 of The Partition Act, 1868 (UK), 31 & 32 Vict, c 40, which, he said, permits a court to sell and divide property, absent a good reason to the contrary. Relying on Porterfield v Pirot , 2017 SKQB 144 , [2017] 10 WWR 369, and the authorities referenced in that decision, the trial judge adopted the principle that a joint tenant has a prima facie right to partition and sale.

He observed that, while the court has discretionary authority in relation to such matters, a decision refusing a partition request is limited and should be exercised sparingly. The trial judge also remarked that, in seeking partition and sale, plaintiffs must not be motivated by

malice or vexatiousness, or be oppressive. However, an order that causes inconvenience and hardship, he said, is not a sufficient basis to refuse the requested relief. [ 26 ] The trial judge found as fact that the motivation underpinning Martha and Kenneth’s application was grounded in a desire to end their financial relationship with Richard; and (by the time the matter went to trial) Martha’s desire to put her personal affairs in order.

He found no evidence that “the partition action was commenced for the purpose of putting pressure upon Richard as to gain an advantage in the corporate action” (at para 31). [ 27 ] While the trial judge accepted that the sale of the property would cause Richard an inconvenience, particularly if he were forced to move, he nonetheless found this reason was not one recognized at law as a basis to refuse an application for partition or sale. He concluded by saying that “[t]here is nothing in the factual situation of this case that overrides the direction of the Court that a partition shall be ordered” (at para 33).

The trial judge was prepared to give Richard an opportunity to purchase Martha’s and Kenneth’s estate’s interests. [ 28 ] The trial judge next turned his attention to Richard’s implied trust argument. He remarked on Richard’s failure to plead any type of trust-based defence, and went on to say that, even if it had been pleaded, there was no evidentiary foundation to support the existence of a trust: “there was no written, verbal or implied agreement that his parents would be holding the property for his benefit” (at para 42).

Neither did the trial judge see any evidence capable of supporting the existence of a resulting trust. In fact, quite to the contrary, he found the circumstances all pointed to an intention on Richard’s part to convey a beneficial interest in the property to his parents. [ 29 ] The last issue addressed by the trial judge concerned the quantification of Richard’s and Martha’s respective interests in the property following Kenneth’s death. He noted that Kenneth’s share would devolve equally in Martha and Richard, “resulting in them each owning a one-half interest in the property …” (at para 43).

That said, relying on the obiter comments of Scherman J. in the 2012 Oppression Decision , the trial judge determined that where a party commences legal proceedings for partition prior to death, the joint tenancy is severed on the commencement of that action, and the estate is entitled to proceed with that action after the death of the party.

The trial judge concluded, “As such, Kenneth’s estate, Martha and Richard are each determined to be the owner of an undivided one-third interest in the Land” (at para 43). [ 30 ] Based on those findings, the trial judge ordered severance of the joint tenancy “with each of Martha Martin, the estate of Kenneth Martin and Richard Martin owning an undivided one-third interest in the Land” (at para 45(1)). In the event Richard did not purchase the remaining two-thirds interest held by Martha and the estate on an agreed upon or court-ordered price, the property would be listed for sale. III.

ISSUES [ 31 ] It is useful to consider Richard’s appeal by first highlighting what is not in issue. Richard does not ground his appeal in an error of law, nor does he take issue with the trial judge’s finding that (

a) a trust was not created, (

b) legal and beneficial title vested in all three parties, (

c) the joint tenancy was severed at the commencement of his parents’ legal proceedings, (

d) his parents were not motivated by a malicious or a vexatious intent designed to oppress him, and (

e) there was no equitable reason to depart from dividing the sale proceeds in proportion to ownership. [ 32 ] Instead, Richard raises four grounds of appeal, which can be distilled to the following: (

a) Was Martha an unreliable witness and, if so, did the trial judge err in accepting her evidence about financial contributions to the property as alleged in her statement of claim? Did the trial judge err in rejecting Richard’s evidence in that regard? (

b) Did the trial judge err in not dividing the sale proceeds unequally in Richard’s favour? IV. ANALYSIS A. Errors with the reliability findings [ 33 ] The central thread to Richard’s appeal is his assertion that the trial judge erred by not preferring his evidence over Martha’s, which he says was vague and confusing. In contrast, Richard points to his testimony to the effect that his parents made no direct financial contribution to the cost of renovating his house or paying for the mortgage, utilities and taxes.

Unlike his mother, Richard says he was able to recall and explain various pieces of evidence, identify dates and timelines, and speak to the numerous improvements that were made to the property. For example, he emphasizes that he had personally contributed hundreds of thousands of dollars subsequent to the date of purchase, including the injection of funds from the construction loan ($170,000), to pay for the various improvements and renovations.

Richard also claims to have earned significant income from selling other properties, as well as from generating substantial income from his business. [ 34 ] Richard says the trial judge’s rejection of Martha’s documentary evidence should have been a clear signal that her testimonial evidence was equally flawed and unreliable. He characterized Martha’s evidence in this way in his factum: 36. While it was determined that Martha’s testimony was limited in its coherence and credibility, it was still largely accepted for the purposes of coming to a conclusion regarding the facts of the matter.

Martha’s recollection of events is flawed, and her stories contradict each other. Her testimony should be given little weight as opposed to the substantial weight it was given in coming to a decision in this matter. As such, when faced with the allegedly patently unreliable evidence from Martha, pitted against his testimony, Richard says the trial judge fell into error by siding with Martha.

[ 35 ] Placing Richard’s grounds of appeal in an appellate context, I do not understand him to argue that the trial judge based his decision in an error of law, failed to appreciate the applicable law, or incorrectly applied the law to the facts. An error of this sort would attract the correctness standard of appellate review.

Rather, Richard’s argument directly challenges the trial judge’s credibility and reliability findings and, most pointedly, takes aim at the reliability of Martha’s testimony, the weight assigned to her evidence, and the rejection of his evidence in the face of an alleged patently unreliable witness. [ 36 ] Credibility and reliability findings are findings of fact. Trial judges are “the fact finder and [have] the benefit of the intangible impact of conducting the trial” and the benefit of seeing and hearing the witnesses first hand ( R v G.F ., 2021 SCC 20 at para 81 , 459 DLR (4th) 375).

For that reason, the standard of appellate review for such matters is highly deferential. This means that an appellate court cannot “simply substitute its opinion for that of the trial judge with respect to the assessment of the credibility of witnesses” ( R v Brunelle , 2022 SCC 5 at para 9 , 78 CR (7th) 288).

Instead, appellate courts are instructed to apply the palpable and overriding error standard of review to those sorts of findings when challenged on appeal: “An error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it, and is overriding if it has affected the result” (emphasis in original, Hydro-Québec v Matta , 2020 SCC 37 at para 33 , 450 DLR (4th) 547). [ 37 ] A determination of the weight to be assigned to the evidence is also a matter for the trier of fact: “it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence” ( Housen v Nikolaisen , 2002 SCC 33 at para 22 , [2002] 2 SCR 235).

To similar effect, the palpable and overriding error standard applies to inferences drawn from the evidence, meaning that the question on this appeal is not whether the trial judge could have or should have drawn a different inference from the evidence, but whether the inference that was drawn was clearly wrong or palpably in error: see Arcand v Atsu , 2021 SKCA 81 at para 8 , and McCabe v Kowalyshyn , 2022 SKCA 56 at para 24 .

Moreover, the fact that an alternative factual finding could have been reached , “based on different ascription of weight”, does not mean that a palpable and overriding error has been made ( Nelson (City) v Mowatt , 2017 SCC 8 at para 38 , [2017] 1 SCR 138): see also Arcand at para 8 . [ 38 ] Respectfully, Richard either misreads or misinterprets what the trial judge said. The trial judge was keenly aware of the problems with Martha’s evidence about the ledgers and her other documentary evidence. He found she had no recollection as to what the specific notations represented or what the figures and markings meant.

Martha had also stated that she could not recall with any certainty what she and Kenneth had actually paid for in connection with the renovations made to Richard’s house. The following paragraph, from the Trial Decision , encapsulates this finding: [15] I find the ledgers of no evidentiary value. In examination-in-chief it is clear that Martha no longer remembered what the ledgers represented.

She generalized that they represented the loan accounts between her and Richard; however, she stated in examination-in-chief that she did not have any memory of the individual items in the ledger and further that she was unable to describe what in fact the ledgers meant. She acknowledged in-chief that she really did not know what the notebook meant. She stated that one of the ledger exhibits showed what Richard owed in total, but she did not know that. She thought it may be what he owed on the house and the mortgage. She was asked what M & D meant.

She said she did not know, although ostensibly it meant mom and dad loan. She thought that she and Kenneth paid for a horse corral and maybe the road, but she does not remember and thinks it probably would be in the book. [ 39 ] As is clear from that passage of the decision, the trial judge concluded he could not put any weight on Martha’s ledgers and notebooks or on her testimony about the specific entries in them to determine the quantification of the amount of money she and Kenneth had put into the property and Richard’s house.

That determination, however, did not preclude him from finding that Martha’s evidence was sufficiently reliable with regard to her overall assertion that she and Kenneth had made financial contributions toward the renovations and upkeep of Richard’s house.

The fact that the trial judge found he could not rely on her documentary evidence to quantify the precise contributions they had made over the years did not mean that he had to reject her evidence outright. [ 40 ] Put another way, the trial judge was satisfied that Martha’s core allegation – that she and Kenneth had financially assisted Richard with the renovations to his house and to its upkeep – was reliable. The fact he made that finding, placed weight on her testimony in that regard or that another trier of fact may have assessed her evidence differently, does not constitute a palpable and overring error.

Furthermore, the trial judge found support for Martha’s testimony in other evidence presented at trial. [ 41 ] As noted above, Kenneth swore an affidavit on December 16, 2011, shortly before his death. Although the affidavit is hearsay, the trial judge admitted it into evidence based on the res gestae exception to that rule. No appeal is taken from that ruling. In it, Kenneth deposed to the amount of time and energy he and Martha had invested in the property and to various financial contributions they had made over the years. The key portions of it read as follows: 3.

On or about the year 2000, an old “Eaton’s House” after this called the “House”, was moved on to the Land. I spent from 8:00 a.m. to 2:00 p.m. or 3:00 p.m., with no lunch breaks, seven (7) days a week, with only a few weekends off each year, for five (5) years to complete the interior of the House, build an addition – thirty feet (30’) by sixteen feet (16’) – and build a garage – thirty-two feet (32’) by forty feet ( 40’). Martha and I paid for and I insulated the House. Martha and I paid for and I did the dry walling and taping. I did all the wiring in the garage and all the wiring and plumbing in the addition.

I installed underfloor heat in the house and garage. … 5. Martha and I helped plant and mulch five thousand (5,000) trees through [the Prairie Farm Rehabilitation Administration (PFRA)]. Martha and I paid for the trees/tree planter and I picked the trees up at my expense. 6. Martha and I paid the mortgage payments on the House since 2001 until April 1, 2011. Martha and I also paid utilities and some taxes.

Money received from a fellow who used to cut hay on the property went to [Richard] for taxes. [ 42 ] Taking all of this into account, the trial judge concluded as follows: “Following the transfer into joint names, Kenneth and Martha made financial contributions to the continued construction of the house and mortgage payments; however, the amount of those contributions cannot be quantified ” (emphasis added, at para 25(9)). The record supports this finding. [ 43 ] By the same token, neither did the trial judge ignore Richard’s evidence about his financial contributions. In fact, he accepted

that Richard had purchased the property and the house, and that he had made some, but not all, of the payments on the mortgage, utilities and taxes.

He simply did not accept Richard’s testimony about the extent of his alleged contributions, as reflected by the following finding: “Richard continued to make financial contributions to the mortgage payments and renovations to the house but that number cannot be quantified ” (emphasis added, at para 25(10)). [ 44 ] Richard testified that he had invested in excess of $450,000 in the property, and yet he conceded at trial that his total net income did not exceed $60,000 over the relevant time frame. His income tax returns confirmed as much.

While Richard does not take issue with what those returns revealed, he says the trial judge erred by not accepting his clear, concise testimony that (

a) he had paid for the cost of the renovations, mortgage and other expenses, and (

b) the money to do so came from a joint account he held with his mother, which he claimed was funded by income derived from his towing business. Richard also testified that he had sold assets to cover his expenses. [ 45 ] In the end result, by referring to the evidence that called into question Richard’s financial wherewithal to pay for the full cost, or even the vast bulk of the renovations, the trial judge can be understood to have found Richard’s evidence not to be credible.

He made this finding: “If I were to accept the evidence of Richard that he made all the house mortgage payments during that time, he would have nothing left to put into the house, much less $450,000” (at para 23) and that “ Richard’s arguments respecting his financial contributions to the property are not sustainable ” (at para 24). [ 46 ] With respect, Richard’s argument conflates the concepts of credibility and reliability. There is an important distinction between them.

The former refers to a witness’s willingness to testify truthfully, and the latter refers to the accuracy of a witness’s testimony: “Finding a witness to be credible does not equate to finding a witness’s testimony to be reliable.

While a non-credible witness’s testimony will not be reliable, a credible witness’s testimony is not necessarily reliable” ( R v Kishayinew , 2019 SKCA 127 at para 59 , 451 DLR (4th) 430, rev’d on other grounds 2020 SCC 34 ): see also R v Patrick , 2017 SKCA 95 at para 56 . [ 47 ] Considering the evidence as a whole, the inference drawn by the trial judge – that Richard’s annual income did not allow him to cover the cost of the renovations and the mortgage to the extent he said it did – is amply supported by the record.

Although he did not expressly say so, the trial judge can be taken to have found Richard’s testimony not to be credible. Moreover, the fact he found some of Martha’s evidence not reliable did not lead inexorably to a finding that Richard’s evidence was credible and capable of belief. It was open to the trial judge to accept some, none or all of the evidence of any witness. That is precisely what he did here based on his assessment of the parties’ evidence. The simple fact he rejected portions of Martha’s evidence did not mean that he had to reflexively accept all of Richard’s evidence.

That is not the law. [ 48 ] Finally, as discussed above, for Richard to succeed on this appeal, he must do more than simply disagree with the trial judge’s credibility and reliability findings or contest the ascription of weight assigned to the evidence. Richard must point to the mishandling of specific parts of the evidence that reveal a palpable error and then show how that error affected the outcome. To the extent he asserts the trial judge overlooked relevant evidence, he needed to show what that evidence was. [ 49 ] Richard has done none of that.

The trial judge was acutely aware of the shortcomings in Martha’s evidence and found parts of it to be unreliable. Similarly, the trial judge understood Richard’s evidence but found his underlying assertion – that he paid for everything – not to be credible. It was open to him to do so. [ 50 ] There is no basis for appellate intervention under this ground of appeal. B. Failure to make an unequal distribution [ 51 ] In the alternative, Richard sought an unequal division of the sale proceeds based on the following allegations contained in his statement of defence: (a) “Richard purchased the Land in 1997.

At that time, Richard paid for the Land in full, and the Land was registered in Richard’s sole name” (at para 3); (a) “Richard denies that the Plaintiffs made any payments toward the Mortgage, the utilities and/or the taxes. The said payments were made from an account held jointly by Richard and Martha, though all of the funds used for the said payments were from deposits into the said account [from] Richard’s income” (at para 12); (b) “The Credit Union agreed to re-instate the Loan if Kenneth and Martha assumed the Loan and the Mortgage with Richard … .

To assist Richard, Kenneth and Martha agreed to do so” and that “there was a clear understanding between the parties that the title was being transferred for that reason.

There was no agreement or suggestion between the parties that Kenneth and/or Martha were obtaining title for investment purposes or otherwise” (at para 9); and (c) “Further, there was no agreement to pay Kenneth and/or Martha for the work completed at the Addition or for planting the trees, nor was the said work completed by Kenneth and/or Martha with an expectation that it was furthering any interest Kenneth or Martha had in the Land” (at para 11). [ 52 ] Based on his pleadings, I understand Richard to have argued at trial that, since there was no evidence of any financial contribution having been made by his parents toward the cost of the renovations, mortgage, taxes and so forth, he had a greater interest in the property than they did.

Respectfully, Richard’s argument – that the trial judge erred by failing to divide the property unequally – operates from a fundamental misconception of both the factual findings of the trial judge and the applicable law. [ 53 ] The trial judge began his assessment of Richard’s argument by reviewing the law as summarized in Stubbings v Stubbings , 2018 SKQB 8 , 35 ETR (4th) 80 [ Stubbings ]. In Stubbings , an elderly parent had gratuitously transferred title to a condominium into joint title with right of survivorship with his son.

The father subsequently changed his mind about the transfer and no longer wanted his son to be the sole beneficiary of the property on his death. This change of heart caused him to bring an application under The Partition Act, 1868 , for an order directing the sale of the condominium. Central to the court’s disposition in that case was the Chambers judge’s finding that the son did not hold the condominium in trust for his father.

[ 54 ] The Chambers judge made five important points in Stubbings . First, he concluded that s. 4 and s. 5 of The Partition Act, 1868 , permits an owner who holds a half interest or more in a property to request the sale of the property instead of just its partition: “the court ‘shall’ unless it sees good reason to the contrary, direct such a sale and give necessary or proper consequential directions” (at para 38).

Second, he held that s. 4 of The Partition Act, 1868 , creates a prima facie entitlement to an order for sale of the property, and that a Court should only exercise its discretion to refuse sale where things like malice, a motivation grounded in vexatiousness or oppression are demonstrated. Third, the trial judge found that any inconvenience or hardship that may befall a defendant is not a sufficient basis to refuse to direct a sale. Fourth, there is considerable inherent discretion in s. 5 of The Partition Act, 1868 , to permit one co-owner to buy out the interests of the other.

Fifth, he determined that an unequal sharing “is premised on one party showing that the other has been unjustly enriched at the expense of the other. But not in a situation where, as has been found in this instance, one party – [the father] – has gifted a half interest to another party – [the son]” (at para 43). [ 55 ] At the appeal hearing, Richard argued that Stubbings is distinguishable on its facts and that the trial judge erred by relying on it.

Apart from the fact that the parent in Stubbings had transferred title to his child – as opposed to the reverse in the matter at hand – I see no distinction and find no error in the trial judge’s reliance on that decision. Moreover, Richard does not assert the trial judge erred in law as far as the

interpretation of s. 4 of The Partition Act, 1868 , is concerned, that Stubbings was wrongly decided, or that the trial judge in the within matter misapplied the principles in Stubbings . Simply put, the principles of law are the same, and none have been challenged on appeal. [ 56 ] The trial judge considered Richard’s arguments as to why an order for the sale of the property should be refused but found nothing in the evidence capable of justifying that result. Neither did the trial judge view Richard’s arguments for an unequal division of the sale proceeds as compelling.

Richard had argued that, because he had invested more money in the property than his parents did, the equities should result in an unequal distribution in his favour.

The trial judge found that argument indistinguishable from the reasoning in Stubbings , stating as follows: “Nevertheless, the courts in Saskatchewan when ordering sale have not taken into consideration the type of criteria asserted by Richard to be in his favour. … Richard’s allegations of facts that he says calls for unequal distribution are no different than those in Stubbings where unequal distribution was not ordered” (at para 38). [ 57 ] Richard’s argument is also undermined by the following findings of fact: (

a) while the trial judge accepted that Richard had made the initial investment to purchase the land and the house, he found Richard did not “make all of the mortgage, utility and tax payments” (at para 39); (

b) the understanding between the parties was that Richard “intended to transfer the beneficial interest to his parents …” (at para 40); (

c) Richard’s pleadings did not assert that “Martha and Kenneth were holding the property in trust in some fashion for him”, either by way of an express or resulting trust (at para 41); and (

d) even if Richard had pleaded the existence of an express or resulting trust, he did not “lead evidence suggesting that there was a trust of any nature between him and his parents in respect of the transfer of the property” (at para 41). [ 58 ] Respectfully, Richard’s argument is premised on a misunderstanding of the law. The issue before the trial judge was not how much money Martha and Kenneth had invested in the property and if that amount triggered the right to seek relief under The Partition Act, 1868 . Rather, it was the nature of the interest they held in the property.

To the extent Richard now argues that his parents were not beneficial owners of the property (even though he had not pleaded that), as noted, that position is inconsistent with the trial judge’s finding that Richard’s intention at the time of the transfer was for his parents to hold a beneficial interest in the property, with the survivor ultimately becoming the sole owner. The trial judge’s finding in that regard is supported by Richard’s own evidence: That’s -- that’s basically what I’m saying, is -- is I built the house, it’s my house.

I put my mom and dad on the title after my ex-wife left as a -- estate planning, I guess you’d call it, because -- in case I died. I had no one else to -- my brothers and sisters were not around. Bruce McDonald was my lawyer and he put them on at my request. There was no money that changed hands or -- it’s not an investment of property as they’re claiming. [ 59 ] There was also the evidence of Richard’s lawyer, Mr. McDonald, who confirmed Richard’s intention to transfer beneficial ownership in the property to his parents: Q [Richard]: Okay.

And part of my divorce settlement with my ex-wife … involved my family home. Do you remember who I put on title after [my wife’s] name come off? A [Mr. McDonald:] The title was transferred from your and [your wife’s] name into the names -- into your name and the names of your parents. Q Okay. Do you recall what reason I gave you that I wanted my parents name on the property? A You were concerned that you’d had to include in the family property division with [your wife], your former spouse, all of the equity in the family home.

So you wished to avoid running into that circumstance in the future. [ 60 ] Based on the law, coupled with his findings of fact on this issue, the trial judge found no equitable reason why Richard should receive a greater share of the sale proceeds. Richard does not take the position that the trial judge committed an error in law or misapplied the law to the facts. Neither has he appealed from the crucial findings of fact nor persuaded me that the trial judge made a palpable and overriding error with respect to them. The trial judge’s factual findings are amply supported by the record.

Even if an unequal division of the sale proceeds were calibrated based on financial contribution alone, as he says it should be, the facts as found do not support the conclusion that Richard had made a significantly greater contribution toward the house and property than his parents did. [ 61 ] To summarize, Martha and Kenneth are on title as co-owners in joint tenancy. On the face of it, they were entitled to apply for partition and sale, regardless of whether they had made financial or in-kind labour contributions.

The trial judge determined that they were beneficial owners of the property and that there was no known legal, equitable or factual basis to refuse the relief sought. Finally, on the facts as found by the trial judge, Richard had not demonstrated any basis for an unequal division of the sale proceeds in his favour.

[62] I see no error in how the trial judge exercised his discretionary authority in that regard. C. Costs [63] Richard asks that the Queen’s Bench costs order be set aside if he is successful on appeal. That request is moot given theresult. In any event, there is no basis to set that order aside. As a matter of general principle, “in the absence of strong reasons to thecontrary”, a successful party is entitled to costs (Thomas v Lafleche Union Hospital Board (1991), (SK CA), 93 Sask R150 (CA) at para 16).

Furthermore, it is accepted law that the power to make a costs award is discretionary, but it is a discretion that mustbe exercised judicially: see, for example, British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71 at para 42,[2003] 3 SCR 371, and McNabb v Cyr, 2018 SKCA 51 at para 31. [64] Given that the issue is now moot because Richard has not prevailed, coupled with the standard of review for a decision toaward costs, there is no basis for appellate intervention. V. CONCLUSION [65] Richard’s appeal is dismissed.

The respondents shall have one set of costs calculated under Column 1. “Schwann J.A.” Schwann J.A.I concur. “Tholl J.A.” Tholl J.A.I concur. “Kalmakoff J.A.” Kalmakoff J.A.