Gallant v. Gallant

Gallant v. Gallant

The trial judge correctly found that the evidence, including the House Purchase Plan and documentary material, established an express trust created by Roy for the equal (20%) beneficial ownership of the five children, that the title in three names was held in trust, and that there was no basis to disturb the trial judge's refusal to cancel the Certificate of Pending Litigation or the Rule 18A judgment; the appeal is dismissed.

Citation
2007 BCCA 21
Parties
Respondent (plaintiff): Roy Gallant; Respondent (plaintiff): Grant Gallant; Respondent (plaintiff): Ashley Gallant; Respondent (plaintiff): Jennifer Gallant; Appellant (defendant): Opal Claire Gallant; Appellant (defendant): Trevor John Nowoselski; Respondent (defendant): Clay Anthony Gallant
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
9 January 2007
Procedural Posture
Civil Appeal (trust and Property Dispute) / Appeal From Trial Judgment on Rule 18 a Application; Oral Reasons by Court of Appeal
Outcome
Appeal dismissed; judgment below upheld.
Legal Topics
Declaration of Trust, Beneficial Ownership Vs Legal Title, Certificate of Pending Litigation, Partition of Property Act, Reliance on Affidavits and Documentary Evidence, Standard of Appellate Review
Source Language
English
Trusts Property Law Equitable Remedies Civil Procedure Evidence Declaration of Trust Beneficial Ownership Vs Legal Title Certificate of Pending Litigation +3 more

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Parties

Roy Gallant

Respondent (plaintiff)

Grant Gallant

Respondent (plaintiff)

Ashley Gallant

Respondent (plaintiff)

Jennifer Gallant

Respondent (plaintiff)

Opal Claire Gallant

Appellant (defendant)

Trevor John Nowoselski

Appellant (defendant)

Clay Anthony Gallant

Respondent (defendant)

Procedural Posture

Civil Appeal (trust and Property Dispute) / Appeal From Trial Judgment on Rule 18 a Application; Oral Reasons by Court of Appeal

Legal Issues

  1. 1 Whether the facts established a trust declaring each of five children beneficial owners of 20% of the property
  2. 2 Whether the trial judge properly resolved conflicting affidavit evidence and relied on documentary evidence
  3. 3 Whether the Certificate of Pending Litigation should be removed and conduct of sale awarded to defendants

Ratio Decidendi

The trial judge correctly found that the evidence, including the House Purchase Plan and documentary material, established an express trust created by Roy for the equal (20%) beneficial ownership of the five children, that the title in three names was held in trust, and that there was no basis to disturb the trial judge's refusal to cancel the Certificate of Pending Litigation or the Rule 18A judgment; the appeal is dismissed.

Court Disposition

Appeal dismissed; judgment below upheld.

Orders

  • Appeal dismissed.
  • Order of the Supreme Court (granting plaintiffs Rule 18A judgment and dismissing defendants' cross-application to remove Certificate of Pending Litigation and to obtain conduct of sale) is upheld.