Holzman v. Gasparin
- Citation
- 2013 BCSC 2284
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- Supreme Court of British Columbia
- Decision
- 30 October 2013
- Posture
- Application to Discharge Certificates of Pending Litigation (cpl) in Context of a Family/constructive Trust Claim and Refinancing / In Chambers Application Hearing (master)
- Language
- English
More details
- Court
- Supreme Court of British Columbia
- Decision
- 30 October 2013
- Posture
- Application to Discharge Certificates of Pending Litigation (cpl) in Context of a Family/constructive Trust Claim and Refinancing / In Chambers Application Hearing (master)
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
Master ordered CPLs discharged in part: Anderson Terrace CPL discharged to permit renewal of mortgage with liberty to claimant to refile; 156 Wilson Street CPL discharged to permit registration of a $148000 mortgage with liberty to claimant to refile after registration and subject to respondent's prompt accounting for initial disbursement and any excess proceeds; 2945 Westsyde Road application adjourned; costs awarded to respondent but not payable forthwith; cancellation was appropriate under ss.256-257 LTA given hardship/inconvenience and provision for re-filing preserves claimant's security.
Court disposition
Application granted in part and adjourned in part
Orders
- Discharge of CPL against Anderson Terrace (lot 8) with liberty to claimant to refile following registration of renewed mortgage
- Adjournment of application with respect to 2945 Westsyde Road (lot A)
- Discharge of CPL against 156 Wilson Street (lot 7) to permit registration of a $148000 mortgage (as referenced in respondent's affidavit exhibit) with liberty to claimant to refile following registration
- Respondent to promptly account to claimant for initial disbursement of mortgage proceeds and to account for any excess proceeds in the context of the litigation
- Costs of the application awarded to respondent but not payable forthwith
02
Material facts
Parties
Lisa Joyce Holzman
Claimant Counsel: S.M. SollRoberto Maurizio Gasparin
Respondent Counsel: R. GasparinAmounts and remedies
- Anderson Terrace Assessed Value: CAD 345,000
- Anderson Terrace Existing Mortgage Owing: CAD 340,000
- 156 Wilson Street Assessed Value (municipal Assessment): CAD 225,900
- 156 Wilson Street Existing First Mortgage Balance: CAD 58,748.68
- 156 Wilson Street Existing Second Mortgage Balance (approx): CAD 61,908
- 156 Wilson Street Proposed Mortgage: CAD 148,000
- Approximate Current Equity on 156 Wilson Street Before Proposed Mortgage: CAD 100,000
- Approximate Equity After Proposed Mortgage on 156 Wilson Street: CAD 72,000
03
Procedural history
Posture
Application to Discharge Certificates of Pending Litigation (cpl) in Context of a Family/constructive Trust Claim and Refinancing / In Chambers Application Hearing (master)
04
Questions and positions
Legal issues
- 01
Whether CPLs registered against three parcels should be cancelled in whole or in part under ss.256-257 Land Title Act to permit refinancing
- 02
Whether proceeds of the proposed mortgage may be applied to pay legal fees or otherwise encroach on claimed equitable interest
- 03
Whether family law interim distribution principles apply to non-family assets claimed under constructive trust
Party arguments
- Applicant
- Respondent/applicant sought discharge or partial discharge of CPLs to permit renewal/refinancing of mortgages, asserting hardship and inconvenience from CPLs, need to pay taxes and other charges and to apply some proceeds toward legal fees and refinancing costs.
- Respondent
- Claimant opposed release of proceeds that would pre-encroach on her asserted equitable interest; relied on family law authorities to argue against releases that pre-determine entitlements or fund legal fees and sought preservation of equity via CPLs and security for potential claim.
05
Court’s reasoning
Legal principles
- 01
Land Title Act R.S.B.C. 1996 c.250 ss.256-257
Registration of a CPL may be cancelled in whole or in part where s.256 affidavit requirements are met and s.257 permits cancellation with conditions
- 02
Family Relations Act jurisprudence cited: Ansari v. Ansari 2000 BCSC 634; Jiwa v. Jiwa; Herr v. Herr 2006 BCSC 1097; Pierce v. Pierce
Interim distributions or releases of family assets to fund litigation are restricted by a two-fold test: (1) whether the advance is required to mount the challenge; and (2) whether the advance will jeopardize the other party's position at trial
- 03
Family Law Act S.B.C. 2011 c.25; case context in reasons
Family Law Act not applicable to proceedings commenced before it came into force; relevant family law principles may nevertheless be considered by analogy but do not override Land Title Act regime for CPLs
06
Ratio, limits and disposition
Ratio decidendi
Master ordered CPLs discharged in part: Anderson Terrace CPL discharged to permit renewal of mortgage with liberty to claimant to refile; 156 Wilson Street CPL discharged to permit registration of a $148000 mortgage with liberty to claimant to refile after registration and subject to respondent's prompt accounting for initial disbursement and any excess proceeds; 2945 Westsyde Road application adjourned; costs awarded to respondent but not payable forthwith; cancellation was appropriate under ss.256-257 LTA given hardship/inconvenience and provision for re-filing preserves claimant's security.
Obiter and limits
- Family Law Act did not apply because notice of family claim issued before FLA came into force
- If an appraisal is obtained and comes into respondent's possession it must be disclosed under ongoing disclosure obligations
- Court reluctant to impose extraneous terms in Land Title Office orders beyond direct relief under ss.256-257
Court disposition
Application granted in part and adjourned in part
- Discharge of CPL against Anderson Terrace (lot 8) with liberty to claimant to refile following registration of renewed mortgage
- Adjournment of application with respect to 2945 Westsyde Road (lot A)
- Discharge of CPL against 156 Wilson Street (lot 7) to permit registration of a $148000 mortgage (as referenced in respondent's affidavit exhibit) with liberty to claimant to refile following registration
- Respondent to promptly account to claimant for initial disbursement of mortgage proceeds and to account for any excess proceeds in the context of the litigation
- Costs of the application awarded to respondent but not payable forthwith
Source and reliance status
Supreme Court of British Columbia · 30 October 2013
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