IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: |
Vandokkumberg v. H. Meyer Construction Ltd., |
|
2007 BCSC 1341 |
Date: 20070622
Docket: S003181
Registry: Vancouver
Between:
Carrie Vandokkumberg
Plaintiff
And:
H. Meyer
Construction Ltd.,
Henry Meyer, Bosch-Inveka Greenhouses Ltd.,
and Sandra Gammon
Defendants
Before: The Honourable Justice Davies
Oral Reasons for Judgment
In Chambers
June 22, 2007
Counsel for the Plaintiff: |
J.C. McKechnie |
|
Counsel for the Defendants: |
J.E. Roberts |
|
Place of Trial/Hearing: |
Vancouver, B.C. |
|
[1] THE COURT: This matter comes before the court as the second summary trial in this proceeding. The first summary trial resulted in judgment being granted by Justice Gerow in January of 2003 in favour of the plaintiff for $46,763.06, plus costs against the defendant, Henry Meyer.
[2] The plaintiff has since then vigorously pursued the recovery of that judgment against Mr. Meyer by bringing numerous proceedings in this court.
[3] The plaintiff’s statement of claim has evolved over time regarding those collection efforts with the latest amendments having been made on June 15, 2006, pursuant to the order of Madam Justice Loo.
[4] What is now before the court is the plaintiff’s application for summary judgment concerning title to the matrimonial home occupied by the judgment debtor, Henry Meyer, and his wife, the defendant Sandra Meyer (previously the named defendant, Sandra Gammon).
[5] By her present application, the plaintiff now seeks a declaration that Mr. Meyer owns a one-half beneficial interest in that matrimonial home which Mrs. Meyer holds in trust for him. Alternatively, the plaintiff seeks an order that the respective interests of Mr. Meyer and Mrs. Meyer in the matrimonial home be referred to a Registrar of this court for determination.
[6] In addition to that resulting trust claim, the plaintiff’s statement of claim as it presently stands also seeks relief against Mr. and Mrs. Meyer by reason of the alleged fraudulent conveyance of the matrimonial property from Mr. Meyer to Mrs. Meyer and some ancillary claims for fraudulent conveyances relating to the newly joined defendant, Bosch-Inveka Greenhouses Ltd.
[7] During submissions, however, counsel for the plaintiff acknowledged that the plaintiff could not establish the fraudulent conveyances alleged, either concerning the initial purchase of the property upon which the matrimonial home was eventually built, or with respect to the mortgage payments on that home. Accordingly, on behalf of the plaintiff Mr. McKechnie formally abandoned those allegations and advanced the plaintiff’s summary judgment claims solely upon the proposition that as a judgment creditor, the plaintiff is entitled to assert a beneficial interest in the matrimonial home on behalf of Mr. Meyer against the legal ownership of Mrs. Meyer by reason of an alleged resulting trust.
[8] While there is little doubt that a resulting trust, as between husband and wife, between common law spouses, or between unrelated parties, can be established by those parties inter se, the proposition that a judgment creditor can insert him-, her-, or itself, into the shoes of an alleged beneficiary for the purposes of obtaining title to property against which to register a judgment and then proceed to execution is novel.
[9] In making his submissions on behalf of the plaintiff in support of that proposition, Mr. McKechnie relies primarily upon s. 86.9 of the Court Order Enforcement Act, R.S.B.C. 1996, c. 78, which provides:
If a judgment creditor has knowledge that the judgment debtor is the beneficial owner of an estate or interest in land, the title to which he or she has not registered, the judgment creditor may, on proof satisfactory to the Registrar, apply, in the same manner as an application is made to register any other judgment, to register the judgment against the beneficial estate, or interest in the land affected.
[10] Although he acknowledges that s. 86.9 authorizes an application to the Registrar of Land Titles rather than to this court, Mr. McKechnie submits that, practically speaking, in a situation such as this a declaratory judgment by the court will be necessary to satisfy the statutory requirement for "proof satisfactory to the Registrar". That is also a novel proposition that tends to usurp the statutory power granted to the Registrar of Land Titles.
[11] I have, however, chosen not to decide this case on that jurisdictional basis because the parties have urged me not to do so. They have come before the court prepared to argue the case on its substantive merits with what they deem to be a complete evidentiary record and have argued the matter on the basis that the court has jurisdiction to either grant or deny the application sought. Both the plaintiff and Mrs. Meyer are of the view that the matter should be decided summarily based upon the evidence now before the court.
[12] The evidence adduced by the plaintiff asserting a resulting trust comes from the defendants. The salient facts are that:
(1) In 1987, Mr. and Mrs. Meyer (then Ms. Gammon) began a personal relationship.
(2) In 1992, Mr. Meyer's company, the defendant H. Meyer Construction Ltd., in partnership with another company, developed a five lot subdivision in Langley, British Columbia. One of the lots created by that subdivision ultimately became the property that is the subject of these proceedings.
(3) In mid-1992, Mrs. Meyer and Mr. Meyer decided to live together. They also made a decision to purchase one of the lots in the referenced subdivision and to build a “spec” home on that lot.
(4) The evidence establishes that the initial intention to build a “spec” home changed. I accept Mrs. Meyer’s uncontradicted evidence that although she and Mr. Meyer had initially considered building the home together, they later decided that Mrs. Meyer would purchase the property and build the home on it. They would then move into the home in a common law relationship. Part of the explanation for the property being purchased only in Mrs. Meyer's name was that the sale proceeds of her previous home were going to pay for the purchase of the lot and the construction of the residence on that property by H. Meyer Construction Ltd. Mr. Meyer was not going to contribute any funds for those purposes.
(5) In late 1992, Mrs. Meyer applied to the Surrey Metro Savings Credit Union for a mortgage on the same terms that had been previously applied for by Mr. Meyer for the purchase of the property and the construction of a “spec” house. What is significant about her mortgage application is that the mortgage was solely in Mrs. Meyer's name. Although Mr. Meyer was a guarantor, he was not and never has been the principal debtor.
(6) In November of 1992, the subject property was conveyed to Mrs. Meyer for $75,000. The source of the funds for that purchase was the aforesaid mortgage over the property granted by Mrs. Meyer.
(7) The evidence establishes that the net sale proceeds from the eventual sale of Mrs. Meyer's former home were $129,000. The evidence also establishes that in addition to the $75,000 payment for the purchase of the lot, Mrs. Meyer paid in excess of approximately $159,500 to H. Meyer Construction Ltd. for the construction of the home.
(8) There is some conflicting evidence as to the total ultimate cost of the lot and home which was in the range of $300,000, but in my view nothing of significance arises from that conflicting evidence given the length of time that has transpired since the events occurred.
[13] What occurred after the completion of construction is the basis of the plaintiff's claim.
[14] Mr. and Mrs. Meyer were married in 1998 approximately five years after the home was constructed and their common law relationship had commenced. The marriage also occurred before the debts to the plaintiff that have become the subject of these collection proceedings were incurred, or in any event well before judgment was rendered in respect thereof.
[15] The evidence establishes that for the most part, either Mr. Meyer or H. Meyer Construction Ltd. made the mortgage payments on the subject property between 1993 and October 2004. However, in October of 2004 (after the plaintiff had obtained judgment against Mr. Meyer in this proceeding) on the advice of her lawyer, Mrs. Meyer began to make the mortgage payments.
[16] The position advanced by the plaintiff is that by reason of having made the payments on the mortgage over the period of time from 1993 to 2004, Mr. Meyer was, in fact, contributing one-half of the purchase price of the home, so that by application of the principles of resulting trust, he is now the beneficial owner of a one-half interest in the matrimonial home. The plaintiff also takes the position that as a judgment creditor she may enforce that resulting trust against Mrs. Meyer and execute upon Mr. Meyer’s alleged beneficial interest.
[17] As I have noted, in making that submission the plaintiff relies upon s. 86.9 of the Court Order Enforcement Act. She also relies upon cases from England, the decision of the Supreme Court of Canada in Rathwell and Rathwell, [1978] 2 S.C.R. 436, and two decisions in British Columbia, all of which I will address.
[18] The English cases upon which the plaintiff relies are Gissing v. Gissing, [1970] 2 All E.R. 780, a decision of the House of Lords; and Cowcher v. Cowcher, [1972] 1 All E.R. 943, a decision of the Family Division of the Court of Chancery. While those cases tend to support the propositions advanced by the plaintiff, they are entirely distinguishable and of little assistance to the plaintiff in this case because they dealt either with situations involving fraudulent conveyances or preferences, or relationships between spouses inter se and were decided before the modernization of family law legislation in England similar to the reforms in this Province enacted in the Family Relations Act, R.S.B.C. 1996, c. 128.
[19] While Rathwell does address the availability of resulting and constructive trusts in the family context, it is of little assistance to the position advanced by the plaintiff in this case because it also dealt with those principles as between spouses inter se as opposed to questions concerning creditors’ remedies.
[20] The British Columbia cases upon which the plaintiff relies are the decision of this court in Bank of Nova Scotia v. Brickell et al (1980), 22 B.C.L.R. 222, and the decision of our Court of Appeal in RCG Forex Service Corp. v. Lin, 1999 BCCA 644. However, both of those decisions are in my opinion also distinguishable from the case at bar in that they have at their root determinations of questions of fraudulent conveyance or preference allowing an inquiry into the status of title prior to an impugned transfer.
[21] While there is obiter dicta in both cases suggesting the potentiality of a pre‑transfer beneficial interest being held by way of resulting trust, I am satisfied that the cases are not applicable to a case such as this where there has been no triggering event under British Columbia family law legislation and where there has been no fraudulent conveyance or transfer.
[22] I have concluded that the plaintiff’s application for a declaration that Mrs. Meyer holds a beneficial interest in the matrimonial home on resulting trust for Mr. Meyer must fail for the following reasons:
(1) All allegations of fraudulent conveyance or preference have been abandoned by the plaintiff.
(2) The property is now and always has been legally owned by Mrs. Meyer.
(3) The plaintiff’s argument that the making of mortgage payments by Mr. Meyer gave rise to a beneficial interest in the matrimonial home ignores that while he may have made those payments, he was not obligated to do so and he was also benefiting from living in the home. Mrs. Meyer was always legally responsible to make those payments.
(4) In any event, any issues concerning the making of those payments are not ones which can be enforced by the plaintiff when there has been no triggering event that would create separate property regimes for Mr. and Mrs. Meyer.
(5) While proceedings between the defendants under the Family Relations Act or the Divorce Act in the event of their separation could possibly result in a determination that as between them Mr. Meyer may have some share of matrimonial property, it would in my view be contrary to public policy to allow an execution creditor to stand in the shoes of a judgment debtor to trigger that determination in the absence of an established fraudulent conveyance or preference of that property.
[23] The plaintiff’s application for the declaratory relief sought is accordingly dismissed.
[24] I will hear submissions on costs after the break.
"Davies J."