Property – Page 7

By: Nigel Bankes

PDF Version: An Unseverable Joint Tenancy: Intentions of the Donor or a Question of Law?

Case Commented On: Pohl v Midtal, 2017 ABQB 711 (CanLII)

In this decision Justice Rita Khullar concludes that when a parent makes an inter vivos gift of interest as a joint tenant in real property to an adult child, that gift may include an irrevocable right of survivorship. While there is a presumption that the donor has retained the power to sever during the donor’s lifetime, this presumption may be rebutted based on the expressed intentions of the donor. In this case the presumption was rebutted. In reaching these conclusions Justice Khullar relies heavily on the decision of the Supreme Court of Canada in Pecore v Pecore, 2007 SCC 17 (CanLII), a case dealing with a joint bank account.

The Cost of Cohabitation Agreements: Considering Property Division Laws for Unmarried Cohabitants

By Kyle Gardiner

On November 28, 2017

In Family, Property

By: Kyle Gardiner

PDF Version: The Cost of Cohabitation Agreements: Considering Property Division Laws for Unmarried Cohabitants

Report Commented On: Alberta Law Reform Institute, Property Division: Living Together Before Marriage, Report for Discussion No. 31

On September 29, 2017, the Alberta Law Reform Institute (ALRI) released Property Division: Common Law Couples and Adult Interdependent Partners, Report for Discussion No. 30, addressing Alberta’s lack of statutory law dealing with property division for unmarried cohabitants. That report recommended that property division rules should apply to adult interdependent partners as defined in the Adult Interdependent Relationships Act, SA 2002, c A-4.5 (AIRA) (i.e. “common-law partners”), and that those rules should be based on the Matrimonial Property Act, RSA 2000, c M-8 (MPA) — the statute that governs property division upon marriage breakdown in Alberta. This recommendation necessitated a further question answered by ALRI’s Report for Discussion 31: how should laws of property division deal with couples who first cohabit and later marry?

Property Division: Living Together Before Marriage

By Genevieve Tremblay-McCaig

On November 27, 2017

In Family, Property

By: Genevieve Tremblay-McCaig

PDF Version: Property Division: Living Together Before Marriage

Report Commented On: Alberta Law Reform Institute, Property Division: Living Together before Marriage, Report for Discussion 31

The Alberta Law Reform Institute (ALRI) is considering changes to property division rules for spouses who live together before marriage. It recently published Property Division: Living Together before Marriage, Report for Discussion 31. Report 31 follows a separate report for discussion on property division for common law couples and adult interdependent partners. Report 31 covers the related but distinct issue of premarital cohabitation and property division. Before it makes final recommendations to the Alberta government, ALRI is seeking feedback on the proposals below.

Clarified: The Rebuttable Presumption of a Purchase Money Resulting Trust

By Jonnette Watson Hamilton

On November 9, 2017

In Property

By: Jonnette Watson Hamilton

PDF Version: Clarified: The Rebuttable Presumption of a Purchase Money Resulting Trust

Case Commented On: Singh v Kaler, 2017 ABCA 275 (CanLII)

Singh v Kaler is a useful case for two purposes. First, it clearly describes the work that a presumption does–making useful evidentiary points. Second, it clarifies the test for finding a resulting trust based on the payment of money. Clarification of the law was evidently necessary. According to the majority–Justices Patricia Rowbotham and Sheila Greckol (at para 22)–the trial judge erred in law by applying the test for resulting trust that was set out in cases predating the 2013 Supreme Court of Canada decision in Nishi v Rascal Trucking Ltd, 2013 SCC 33 (CanLII). While there is a dissenting opinion, the dissent is confined to a limitations point; the Court of Appeal is unanimous on the presumption and resulting trusts points.