Canada v. Malachowski

Canada v. Malachowski

Rule 458 includes equitable or beneficial interests in real property; the moving party must discharge the interim charging order on the balance of probabilities; evidence of partial performance (ledger recording payments matching agreed purchase price, debtor's residence and control, and substantial improvements) satisfied inference of an equitable interest by Malachowski so the motion to set aside the interim charging order failed and is dismissed with costs to the respondent.

Citation
2011 FC 413
Parties
Judgment Creditor: Her Majesty the Queen as represented by the Minister of National Revenue; Moving Party / Claimant (third Party Owner): Suzanne Fishwick; Judgment Debtor: Marcel Malachowski
Court
Federal Court
Jurisdiction
Canada
Judgment Date
5 April 2011
Procedural Posture
Enforcement of Tax Debt / Interim Charging Order Under Income Tax Act and Federal Court Rules / Motion to Set Aside Interim Charging Order (interlocutory); Hearing on Whether Charge Should Be Made Absolute to Follow
Outcome
Motion to set aside the interim charging order dismissed.
Legal Topics
Interim Charging Order, Beneficial/equitable Interest in Land, Statute of Frauds and Part Performance, Ex Parte Applications, Burden of Proof, Federal Court Rules R.458 and R.462
Source Language
English
Tax Law Property Law Equity Civil Procedure Interim Charging Order Beneficial/equitable Interest in Land Statute of Frauds and Part Performance Ex Parte Applications +2 more

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Parties

Her Majesty the Queen as represented by the Minister of National Revenue

Judgment Creditor

Suzanne Fishwick

Moving Party / Claimant (third Party Owner)

Marcel Malachowski

Judgment Debtor

Procedural Posture

Enforcement of Tax Debt / Interim Charging Order Under Income Tax Act and Federal Court Rules / Motion to Set Aside Interim Charging Order (interlocutory); Hearing on Whether Charge Should Be Made Absolute to Follow

Legal Issues

  1. 1 Who bears the onus in a motion to set aside an interim charging order made under Rule 458?
  2. 2 Does Rule 458 apply to beneficial/equitable interests in real property?
  3. 3 Did the judgment debtor, Marcel Malachowski, have a beneficial/equitable interest in Nun's Point?

Ratio Decidendi

Rule 458 includes equitable or beneficial interests in real property; the moving party must discharge the interim charging order on the balance of probabilities; evidence of partial performance (ledger recording payments matching agreed purchase price, debtor's residence and control, and substantial improvements) satisfied inference of an equitable interest by Malachowski so the motion to set aside the interim charging order failed and is dismissed with costs to the respondent.

Court Disposition

Motion to set aside the interim charging order dismissed.

Orders

  • The motion to set aside the interim charging order is dismissed.
  • Costs of the motion are in favour of the Responding Party (Minister of National Revenue).