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 Martin, 2020 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:
- 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;
- 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;
- 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;
- 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;
- 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;
- 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;
- Richard however testified that he had instructed his lawyer to transfer the property into joint names for estate planning purposes;
- 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;
- The relationship between Richard and his parents broke down in or around 2010 over a financial dispute relating to a family-run towing business;
- 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;
- 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;
- Richard filed a statement of defence in which he denied that:
- Martha and Kenneth had obtained title to the property for investment purposes;
- Martha and Kenneth had paid for the materials for the property;
- Kenneth had worked on his house to the extent asserted in the statement of claim (approximately 13,000 hours); and
- 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:
- A trust was not created;
- Legal and beneficial title vested in all three parties;
- The joint tenancy was severed at the commencement of his parents’ legal proceedings;
- His parents were not motivated by a malicious or a vexatious intent designed to oppress him; and
- 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:
- 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?
- 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.