QB 1997 NO. 471000309 J.C. M.J. IN THE COURT OF QUEEN’S BENCH FAMILY LAW DIVISION JUDICIAL CENTRE OF MOOSE JAW BETWEEN: MILDRED BEATRICE OLSON vs- VERA MILDRED WILLETS RESPONDENT D. ANSELL for the applicant B.R. CRAIK for the respondent JUDGMENT MacLEAN, J. September 15, 1997 The applicant seeks an order pursuant to s. 130 of The Land titles Act S.S. c. L-5 and s. 56 of The Enforcement of Maintenance Orders Act (EMOA)S.S. c. E-9.2 for an Order relieving the LORNE EDWARD WILLITS Estate (the deceased) from payment of maintenance order by Johnson J.(as he then was) on November 28, 1972. Section 130 of the Land Titles Act in part reads as follows: 130 For the purposes of this section, “claimant”, “maintenance order” and “respondent” have the same meanings as ascribed to them In The Enforcement of Maintenance Orders Act. (2) When maintenance order is filed pursuant to s. 33(1) of The Enforcement of Maintenance Orders Act, no certificate of title is to be granted and no transfer, mortgage, lease or other instrument executed by the respondent is to be effectual, except subject to the rights of the claimant. (3) The registrar, on granting certificate of the title and on registering any transfer, mortgage or other instrument executed by the respondent affecting such land, shall be memorandum upon the certificate of title state that the certificate, transfer, mortgage or other instrument is subject to such rights. (4) maintenance order may be discharged by filing in the Land Titles Office in which the maintenance order is filed. (a) not relevant (b) the judgment or order of the court setting aside the maintenance order or certificate of local registrar of the court, under seal of the court, that the maintenance order has been discharged or set aside. Section 56 of the EMOA in part reads: Section 56 where moneys are recoverable pursuant to s. 55, judge of the court in which the maintenance order was made or registered may, on the application of any interested party, relieve the respondent or, if the respondent has died, the estate of the respondent of the obligation to pay, in whole or in part, the amount in default if the judge is satisfied that: (a) having regard to the interests of the respondent or the estate of the respondent, as the case may be, it would be grossly unfair and inequitable not to do so; (b) having regard to the interests of the person in whose favour the maintenance order was made or his estate, as the case may be, it is justified; Mildred Beatrice Olson purports to bring this application on behalf of Lorne Edward Willits Estate, even though she is nether the executrix named in the Will nor a beneficiary. The Will has not been admitted to Probate. The respondent objects to the application being brought on behalf of the estate. She contends the applicant has no standing. Counsel concedes, however, that Ms. Olsen is an “interested party” within the meaning of sec.56 of the EMOA and entitled to bring this application on her own behalf. The motion is signed by Ms. Ansell as solicitor for the applicant Mildred Beatrice Olson. The respondent is not mislead and has not been prejudice. There will be an order amending the Style of Cause to show Ms. Olson as applicant and to amend the motion so that it is Ms. Olson seeking relief. On November 28, 1972 the respondent Vera Mildred Willits was granted decree of Divorce from the deceased. The decree gave her custody of their two children who were then 10 and and child support of $60.00 per month. It also awarded spousal support of $40.00 per month, lump sum of $500.00 and her costs. The lump sum and costs were paid as result of garnishee proceedings. No further payments were ever made despite periodic requests for payment by the respondent. In 1978 the deceased began cohabiting with the applicant in her home at 1001 Hastings Street, Moose Jaw, Saskatchewan. In about November 1980 the applicant transferred her home to the deceased and herself as joint tenants. At about the same time the deceased transferred his two and one-half quarter sections of farm land to the applicant. The then value of the land according to copies of titles which have been filed was $33,000.00. The respondent claims the land is presently worth between $80,000.00 and $160,000.00. Upon the deceased death, which occurred on August 18, 1994, the applicant as surviving joint Tennant obtain title to the Hastings Street property. According to the title it was then worth $16,000.00. During her marriage and following the divorce the respondent resided in the matrimonial home at Mossbank, Saskatchewan. There is no evidence who owned the home or when the respondent vacated the property or what became of it. The applicant suggests there may have been an agreement between the deceased and the respondent whereby the respondent lived in the matrimonial home rent free in lieu of support. The respondent denies such an agreement. The respondent received Welfare to support herself and the children until 1981. During these years she had no funds with which to hire lawyer to enforce the support payments which were due to her. In about 1981 she learned the deceased had transferred his farm land to the applicant but did nothing then or later to enforce her Maintenance Order against the land. The applicant asserts she paid overdue mortgage installments to Farm Credit Corporation although she does not state the amount of the arrears. She also claims to have paid off $4,000.00 execution and $9,575.00 taxes and arrears of taxes. II In the circumstances s.130 of the Land Titles Act is of no assistance to the applicant. This application fails to be determined upon s.56 of the EMOA. The question for resolution in whether it would in the words of the section be “grossly unfair and inequitable” from the applicants perspective to refuse the application and whether such an order can be “justified” in so far as the respondent is concerned. See: Kent vs Kent (1985) 1985 CanLII 3120 (MB CA), 44 R.F.L. (2d) 263 (Man. C.A.) The maintenance order constitutes a charge upon the land and the applicant obtained title to the land subject to that charge. See: Briggs vs Carson (1924) 1924 CanLII 133 (SK CA), 3W.W.R. 465 (Sask.C.A.) The applicant has presented no evidence of the circumstances surrounding the transfer of the land to her. There is no evidence of any consideration being paid nor is there evidence of what became of the income generated by the land prior to the deceased’s death. In Flamand vs Flamand (1987) 1987 CanLII 7121 (MB CA), R.F.L. (3d) 51 the Manitoba Court of Appeal considered s. 61(4) of the Manitoba Family Maintenance Act which is similar to s. 56 of our Act. At pp 52-53 O’Sullivan J.A. noted: These arrears must now be considered as vested debt owning by husband to wife subject to being divested only on its being shown that it would be “grossly unfair and inequitable not to do so” and also that such divestment is justified having regard to the interests of the wife. It is up to party seeking to deprive wife of these payments to establish on balance of probabilities the conditions set out in s. 31.3(4) (now s. 61 4) of the Act. cannot determine on the basis of the affidavit evidence what if any portion of the arrears should remain as charge upon the lands. Some of the evidence conflicts. There is no evidence of the circumstances surrounding the transfer from the deceased to the applicant. The court should hear evidence viva voce. order the trial of an issue. The respondent will assert her right to recover arrears of maintenance pursuant to the order of November 29,1972. The applicant will defend the action and assert her right to discharge of the order pursuant to s. 56 of the EMOA. The costs of this application will be determine, by the trial judge.
The applicant sought an order pursuant to s.130 of the Land Titles Act and s.56 of the Enforcement of Maintenance Orders Act for an order relieving the estate from payment of maintenance ordered in 1972. The respondent objected to the application being brought on behalf of the estate as Olson was neither executrix nor a beneficiary under the Will. The Will had not been admitted to probate. The respondent had divorced testator in 1972 and was granted child support of $60 per month and monthly spousal support of $40. The applicant who cohabited with the deceased since 1978 transferred her home to him in 1980 as joint tenants and he transferred his two and one-half quarter sections of farm land to the applicant. The applicant suggested there was an agreement whereby the respondent lived rent free in the matrimonial home in lieu of support. The respondent received welfare to support herself and the children and had had no funds to pursue enforcement of the unpaid support payments. HELD: 1)The style of cause was amended to show Olson as applicant. She was an interested party within the meaning of s.56 of the EMOA and entitled to bring the application on her own behalf. The respondent was not misled and there was no prejudice. 2)The Land Titles Act was of no assistance to the applicant. The application was to be determined upon s.56 of the EMOA and whether it would be grossly unfair and inequitable to refuse the application. 3)The maintenance order constitutes a charge upon the land and the applicant obtained title to the land subject to that charge. There was no evidence presented either of consideration being paid nor of what became of the income generated by the land prior to the deceased's death.  4)A trial of an issue was ordered to determine what if any portion of the arrears should remain a charge upon the lands. Some of the evidence conflicted. Viva voce evidence should be heard.