Death doesn't bar estate's claim for relief: Alberta Court of Appeal

Court order severed joint tenancy of residential property between deceased and former spouse

Death doesn't bar estate's claim for relief: Alberta Court of Appeal

Neither death nor passage of time extinguishes an estate’s right to file a civil proceeding for severance of a joint tenancy – otherwise, one of the grounds for severance would be meaningless, the Alberta Court of Appeal has ruled.

In Flock Estate v. Flock, 2022 ABCA 229, the appellant and Ms. Flock married in 1982 and bought a Calgary home as joint tenants in 1993. They later separated, with the appellant moving out and leaving Ms. Flock to pay the property-related expenses.

In 1999, a divorce judgment was granted and the respondent started living with Ms. Flock in the home. They married in 2009 and the respondent helped pay for the property’s insurance, mortgage, utilities, maintenance, and renovations.

In 2002, the appellant and Ms. Flock agreed to arbitrate unresolved issues for the matrimonial property’s division. When Ms. Flock died in 2014, the matrimonial property dispute was still unresolved, with the certificate of title stating that the appellant and Ms. Flock were joint tenants.

The respondent, as the estate’s litigation representative and sole beneficiary, continued residing in the property and paying the mortgage until it was paid off in 2017. That same year, the Alberta Court of Appeal struck the matrimonial property action due to delay.

In 2020, the appellant brought a claim asking the court to order the respondent to vacate the property and to pay restitution or, alternatively, damages, interest, and costs. He alleged that the respondent occupied the property without his consent and wrongfully enjoyed its exclusive use without paying rent.

In 2021, the Alberta Court of Queen’s Bench severed the joint tenancy of the appellant and the late Ms. Flock before her death. The application judge said that the third ground for severance – any course of dealing showing that the interests of all were mutually treated as constituting a tenancy in common – was at issue.

The application judge found that the parties’ dealings from 1994 to 2014 – from when they separated until she died – showed that they mutually treated the property interests as constituting a tenancy in common. The judge then determined how the sale proceeds should be distributed between the parties.

Judge made clear and comprehensive reasons, no reviewable errors

The appellate court dismissed the appeal and deferred to the application judge’s factual findings, which inferred from the evidence that the parties mutually intended to deal with the property as tenants in common.

According to the appellate court, the application judge appropriately held the following: first, neither Ms. Flock’s death nor the passage of time barred the estate’s claim for relief; and second, the third ground for severance of a joint tenancy would be meaningless if death would extinguish the right to bring a civil proceeding for severance.

The appellate court noted that the application judge knew about and expressly referred to numerous evidentiary points that the appellant raised in his arguments, such as:

  • The preponderance of Mr. Flock’s evidence about his intentions was unchallenged and uncontradicted
  • Ms. Flock did not provide any direct evidence
  • The parties did not enter into an agreement to sever joint tenancy
  • Ms. Flock took no formal steps for severing the joint tenancy under Alberta’s Law of Property Act.

Regarding the property’s distribution, the appellant argued that he did not mean for the severance application to tackle the issue of occupation rent arising from the respondent’s use of the property. The appellate court, disagreeing, said that the judge was entitled to address whether the respondent or the estate owed any money, including occupation rent, to the appellant.

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