M. Kim Anderson, K.C., speaks at Saskatchewan Joint CICMA-CIAA Education Conference

Join Kim Anderson, K.C. at the Saskatchewan Joint CICMA-CIAA Education conference, where he will be discussing Documents that Safeguard the Claims Investigation Process.

The Canadian Insurance Claims Manager Association (CICMA) is an organization that brings claims managers together to exchange information in matters pertaining to the settlement of claims. CICMA is also responsible for the administration of the Canadian Inter-Company Arbitration Agreement. For more information about CICMA click here.

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Tiffany Paulsen, K.C. and Curtis Clavelle present at PATHS Conference 2022

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Tiffany Paulsen, K.C. and Curtis Clavelle will host a breakout workshop titled, The Divorce Act Amendments in Practice: Creating Meaningful Change? at this year’s PATHS Conference.

PATHS’ mission is to support and collaborate with member agencies and others to address, prevent, and ultimately eliminate intimate partner and family violence in Saskatchewan.

For tickets to this year’s conference, click on the link below.

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Questioning for Family Lawyers

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Can I quit my job to avoid paying my ex child support?

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Jared Epp Co-Authors Builders’ Lien Textbook

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Used by the bar, the judiciary, as well as the College of Law, the Builders’ Lien Manual is the definitive legal textbook on the operation and meaning of Saskatchewan’s Builders’ Lien Act.

Congratulations to Jared Epp for his efforts in publishing this textbook which now, for the first time, contains a fully annotated guide to each section of Saskatchewan’s lien legislation.

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Jared Epp presents to College of Law

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Saskatchewan Estate Litigation Update: Martin v Martin, 2022 SKCA 79

The recent Saskatchewan Queen’s Bench decision in Peters (Estate) (Re), 2022 SKQB 186 prohibits the practice of altering an affidavit without actually re-swearing it.

Factual background:

The background facts in Peters can be described as follows:

  1. Antonia Peters died on March 1, 2022;
  2. She left a Will dated September 17, 2007. In that Will she named her husband, S. Frederick Peters, as executor and sole beneficiary of her estate;
  3. The Will provided that should her husband predecease Antonia, then two of her children (Edie Louise Nelson and Wally David Peters) would act as her executors;
  4. Her estate was then given to her children and grandchildren as well as two charities. There is nothing controversial about the Will itself;
  5. The initial application for grant of probate was filed on June 2, 2022;
  6. By fiat dated June 15, 2022, the Court rejected the application. The Court noted that the Will had named the testatrix’s husband as executor and that if he had predeceased her, then proof of the husband’s death was required under Rule 16-10 of The Queen’s Bench Rules;
  7. As well, what should be paragraph 4 of the probate application originally filed, had stated all beneficiaries named in the Will but did not list the husband as a beneficiary. The Court noted that it appeared that the husband had predeceased the testatrix. This reality required revision to the material;
  8. On July 25, 2022, a representative of the office of the executors’ solicitor removed the application, affidavits and Will to have the material corrected. Subsequently, revised and additional material was filed;
  9. The application and supporting affidavits were later refiled. A change was made only to the application form to read that all named beneficiaries had survived the deceased “except for S. Frederick Peters, who passed away on January 20, 2016”. Previously, on the initial filing, paragraph 4 had read that all named beneficiaries had survived the deceased;
  10. The Court found it problematic, however, that the executors’ affidavits were not re-sworn. What appeared to have occurred was that a new page containing a revised paragraph 4 was “slip-sheeted” into the material;
  11. That is, instead of the entire affidavit (and all of its pages) being re-sworn, the single erroneous page was revised and replaced after the affidavit had already been sworn before the deponents;
  12. Thus, the Court observed that the lack of a re-sworn affidavit meant that neither executor has verified under oath the revised, current content of the probate application.
Guidance offered by Peters:

The Court in Peters noted that the practice of slip-sheeting was being used more and more. However, such a practice was not consistent with the purpose of requiring a sworn affidavit from an executor who applies for probate.

Such an affidavit is not just a procedural hoop through which an applicant must leap. Rather, it verifies under oath the truth of the contents filed by the executor. The Court relies on these contents to be true, and the affidavit is the mechanism to verify that truth (as otherwise, a false sworn affidavit can lead to legal consequences, which incentivizes the deponent to be accurate).

The affidavit essentially takes the place of the deponent showing up in court, being affirmed or sworn, and testifying to the veracity of the application documents.

The “slip-sheeting” process entirely defeats the purpose of the affidavits. The two deponents of the affidavits in Peters could not have verified under oath the ultimate contents of the application (in its present form) when they first swore the affidavit in April.  This is because at the very moment that they had first sworn the original affidavits, the later slip sheeted pages were of course not yet in the affidavits.

Conclusion:

Ultimately in Peters, the court did not grant the application in the current form. The Court required that the executors refile fully sworn new affidavits.

Peters thus reminds us that affidavit exhibits need someone to identify and vouch for them. If a lawyer wants to change the content of an already sworn affidavit, the lawyer must have the client re-swear the affidavit in its final form.

Read more on our blog.

The Saskatchewan Estate Law blog is dedicated to providing practical, real-world information on Estate Law issues that affect Saskatchewan residents. The blog is written by RS lawyer, James Steele, whose practice focuses on estate litigation.

Contacting a Lawyer on this Subject

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or [email protected]. The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.

Robertson Stromberg welcomes Brittany Bezmutko and Jesse Hayward

Robertson Stromberg is pleased to welcome associates Brittany Bezmutko and Jesse Hayward to the firm.

Called to the bar in June 2022, Brittany Bezmutko has dedicated her practice to Family Law and Employment Law. While attending law school, Brittany volunteered with Pro Bono Students Canada in several capacities, including the Family Legal Assistance Clinics in which she provided legal information to community members regarding family law matters.    

CONTACT

Direct: (306) 933-1358
Main: (306) 652-7575
Fax: (306) 652-2445
Email: [email protected]

Jesse Hayward maintains a general civil litigation practice with a particular interest in Administrative Law, Commercial Litigation, Construction, Insurance, and Labour and Employment Law. He has represented clients in the Court of Queen’s Bench, Provincial Court, and various boards and tribunals.

CONTACT

Direct: (306) 933-1348
Main: (306) 652-7575
Fax: (306) 652-2445
Email: [email protected]

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Saskatchewan Estate Litigation Update: Martin v Martin, 2022 SKCA 79

The recent Saskatchewan Court of Appeal decision in Martin v Martin, 2022 SKCA 79 offers a reminder of the litigation which can ensue when a person puts another family member on title, and a dispute later arises as to whether that person holds beneficial title, or, instead is merely on title as a trustee.

Martin reminds us that such disputes can be best avoided if all parties first sign a written agreement, at the time of the transfer, to document the parties’ intentions.

Overview:

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 estranged from Richard, and they later applied for partition and sale of the property. Partition means that the property would be sold, and each person on title would be given a share of the sale proceeds (generally an equal division, unless there is a basis to order unequal division).

Richard argued in effect that his parents were on title as mere trustees, and Richard was the sole beneficial owner of the land. Thus, a trial was required to determine which side was correct.

Following a three-day trial, a Court of Queen’s Bench judge made an order directing the sale of the property, against Richard’s protests: Martin v Martin2020 SKQB 272.

Richard chose to appeal from that decision. Richard said that 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.

Factual background:

The factual background can be summarized below:

  1. 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;
  2. Richard intended to make renovations to the house. Richard began his renovation project in 2000, aided by his father, Kenneth, who was a skilled carpenter;
  3. 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;
  4. 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;
  5. 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;
  6. 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;
  7. There was evidence from Bruce McDonald, who was Richard’s lawyer at the time of transfer. Mr. McDonald 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;
  8. Richard however testified that he had instructed his lawyer to transfer the property into joint names for estate planning purposes;
  9. 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;
  10. The relationship between Richard and his parents broke down in or around 2010 over a financial dispute relating to a family-run towing business;
  11. Kenneth passed away in 2012. Martha is the executor of his  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;
  12. 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;
  13. Richard filed a statement of defence in which he denied that:
  1. Martha and Kenneth had obtained title to the property for investment purposes;
  2. Martha and Kenneth had paid for the materials for the property;
  3. Kenneth had worked on his house to the extent asserted in the statement of claim (approximately 13,000 hours); and
  4. 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
Handwritten ledgers maintained by Martha:

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. However, 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.

Richard in turn argued that he had put approximately $450,000 of his own money into the property. However, the trial judge rejected Richard’s testimony about his alleged financial contributions to the property. However, the trial judge 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 of the trial decision).

Decision of the Court of Queen’s Bench:

The trial judge ruled against Richard, and found that the circumstances all pointed to an intention on Richard’s part to convey a beneficial interest in the property to his parents. Thus, his parents were entitled to seek partition.

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 also addressed the issue of the quantification of Richard’s and Martha’s respective interests in the property following Kenneth’s death. The trial judge 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, 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 in its own right, but also Martha and Richard, were each determined to be the owner of an undivided one-third interest in the Land (at para 43).

Based on these findings, the trial judge ordered severance of the joint tenancy. 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.

Issues on appeal:

Richard did not ground his appeal in an error of law, nor did he take issue with the trial judge’s crucial findings that:

  1. A trust was not created;
  2. Legal and beneficial title vested in all three parties;
  3. The joint tenancy was severed at the commencement of his parents’ legal proceedings;
  4. His parents were not motivated by a malicious or a vexatious intent designed to oppress him; and
  5. There was no equitable reason to depart from dividing the sale proceeds in proportion to ownership.

Instead, Richard’s grounds of appeal, could be distilled to the following:

  1. 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?
  2. Did the trial judge err in rejecting Richard’s evidence in that regard?
  3. Did the trial judge err in not dividing the sale proceeds unequally in Richard’s favour?
Decision of the Court of Appeal:

The Court of Appeal dismissed Richard’s appeal. Its reasons can be distilled to the below.

First, Richard’s core arguments directly challenged the trial judge’s credibility and reliability findings and, most pointedly, took 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.

However, credibility and reliability findings are findings of fact. For that reason, the standard of appellate review for such matters is highly deferential. 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”.

Moreover, the trial judge was entitled to rely on some of Martha’s evidence, but not rely on other parts of it. It was true that 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 quantificationof 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 quantifythe precise contributions they had made over the years did not mean that he had to reject her evidence outright.

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. 

For Richard to succeed on his appeal, he had to do more than simply disagree with the trial judge’s credibility and reliability findings. Richard had to point to the mishandling of specific parts of the evidence that reveal a palpable error and then show how that error affected the outcome. Richard did not do that.

The judge’s failure to order unequal distribution:

Richard also appealed on the basis that the trial judge had wrongly failed to order an unequal division of the sale proceeds.

The Court of Appeal however agreed with the decision of the trial judge. Martha and Kenneth were 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.

Moreover, as per the facts found by the trial judge, Richard had not demonstrated any basis for an unequal division of the sale proceeds in his favour. Richard had not shown any overriding error in these factual conclusions by the trial judge.

Conclusion:

As the Court in Martin v Martin, 2022 SKCA 79 observed, Saskatchewan 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. The reality is that such a decision is legally difficult to undo.

Martin reminds us that any person who puts anyone else on title, without receiving value in exchange, should take care to speak first with a lawyer about the consequences of doing so. Any such person should anticipate what would happen if they later have a falling out with the person who is going on title. A lawyer can help first advise as to what paperwork should be executed by all sides before the transfer, to later prove what the real intention is behind the transfer, and who is the true beneficial owner.

Read more on our blog.

The Saskatchewan Estate Law blog is dedicated to providing practical, real-world information on Estate Law issues that affect Saskatchewan residents. The blog is written by RS lawyer, James Steele, whose practice focuses on estate litigation.

Contacting a Lawyer on this Subject

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or [email protected]. The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.

Whether it’s personal or business, we handle cases ranging from wills to overseeing complex business deals, and everything in between. Our success comes as a result of our collective effort. Combining the experience of your lawyer together with the resources of our team, you can put your trust in us to handle your case with confidence.

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