SUPREME COURT OF NOVA SCOTIA {TRIAL DIVISION) Citation: Marriott v. Marriott (January 15, 1988), Halifax 1201-35979 (NSSC(TD)) 19 n c;;-, N ~~cu) ll Date: 1988-01-15 Docket: 1201-35797 Registry: Halifax Between: Margaret Mary Marriott Petitioner v. Brian Leslie Marriott Respondent And Leslie Lawrence Marriott and Lorna Vivian Marriott Intervenors LIBRARY HEADING Judge: The Honourable Justice William J. Grant Heard: April 22-23, June 26 & 29, 1987 Summary: The husband's parents (the intervenors) sold the couple a home for a reduced price. Sale terms provided that if the terms weren't met, the couple would be tenants. Couple breached terms. Wife claimed½ house's equity. Couple had more than tenants' rights at separation: they had a matrimonial interest in the home as a result of"modest but recognizable oflabor and material". Their payments for two years of occupation were no greater than rent. Value of their interest fixed at $2,000 and wife awarded $1,000. Key words: Family, Matrimonial property, Equal division, Classification of assets Legislation: Matrimonial Property Act, S.N .S. 1980, c. 9, section 4 Divorce Act, S.C. 1967-68, c. 24
( [ 1987 File No. 1201-35979 t IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION r-BETWEEN: [ MARY MARGARET MARRIOTT, Petitioner r - and f BRIAN LESLIE MARRIOTT, Respondent - and -LESLIE LAWRENCE MARRIOTT and LORNA VIVIAN MARRIOTT, Intervenors HEARD: at Halifax, Nova Scotia, before the Honourable I Mr. Justice William J. Grant, Trial Division, on April 22, April 23, June 26 and June 29, 1987 L LAST January 15, 1988 MEMORANDA l RECEIVED COUNSEL: Jean Morris for the petitioner ~ J.W. Jordan, Esq. for respondent Michael Lambert, Esq. for Intervenors t
[ 1987 File No. 1201-35979 f IN THE SUPREME COURT OF NOVA SCOTIA f . TRIAL DIVISION f BETWEEN: MARY MARGARET MARRIOTT, r Petitioner { - and f BRIAN LESLIE MARRIOTT, t Respondent r - and -LESLIE LAWRENCE MARRIOTT and ·r LORNA VIVIAN MARRIOTT, Interven6rs GRANT, J.: This is a matrimonial action. The issues of the divorce, custody, access and other anci~lary matters have l been agreed upon or dealt with by me. The sole remaining issue is the claim of the petitioner 1 in the former residence of the parties, under the Matrimonial ~ f L
f - 2 r -~ Property Act. L The parties were married in 1973. r The Intervenors are the parents of the respondent. [ Leslie L. Marriott is 69 years old. He retired from his job as a driver at Simpson-Sears in 1982. He has Canada r Pension and Old Age Security. l The Intervenors were anxious to help their son and his wife. [ On January 5, 1984 William A. Reid died leaving I his property at 114 Herring Cove Road to his brother Harry Alfred Reid. Harry Alfred Reid gave his cousin, the Intervenor 1 Leslie Lawrence Marriott the opportunity to purchase it for $20,000.00. It was then assessed at $37,000.00. The petitioner and respondent were then living [ in a mobile home at Lower Sackville. In an effort to assist [ their son and daughter-in-law the Intervenors agreed to sell the property to them for their cost. There were some ~ expenses and the purchase price was $21,000.00. The monthly payments were to be $250.00 - for a term of 7 years. There l was to be no interest. At the end of the 7 years they were to get a deed. L The Intervenors also prepared a lease agreement. ~ In the event there was a default under the terms of the [ .L
r - 3 -~ [ agreement in the purchase and sale then the parties became tenants. The money paid in was to be treated as rent and r the title remained in the Intervenors. That was apparently the extent of the instructions given by the Intervenors r to their solicitor. { Nothing was paid down by the petitioner or respondent. The documents were executed on May 2, 1984. The parties f separated February 28, 1986. Less than 2 years had passed and $5,500.00 had been paid during that period. The fair market value of the property is now agreed at $55,000.00. The petitioner claims half of the equity. The Intervenor quantifies this at $20,000.00. The petitioner \ quantifies it at not more than $12,500.00. f The Intervenors were motivated by a desire to see the young couple get ahead. [ The documentation was prepared by the Intervenors' l then solicitor. It was prepared primarily for the protection of their interests. The petitioner and respondent were not taking [ any risk, they had nothing to lose. They were the beneficiaries of the bounty of the Intervenors. They were not represented [ by counsel at the signing. Each had the opportunity to L read the documents before and after execution had they { wished to do so. Each had the opportunity to consult counsel. {
[ - 4 r ~ [ At the time of signing the couple were not earning much money. The petitioner worked as a cashier for Sobeys r and the respondent worked with the City Transit Commission. The respondent was being assisted by his father. Leslie f Marriott had been helping his son financially. He helped r pay to paint a truck and later pay off a lien. He loaned $3,000.00 to buy a Pontiac and $3,500.00 to later buy a f truck. [ After the Intervenors acquired the property $675.00 was paid for a survey. They were not reimbursed. About r $500.00 was spent fixing the property before they dealt with it. f The down payment was to be $1.00. The petitioner f and respondent put nothing into the transaction as they had nothing to put in. [ Under the lease arrangement a default in the provisions l of the lease was to trigger a default in the Agreement of Purchase and Sale. The status then would be changed [ to a landlord and tenant situation. [ The petitioner and respondent separated on February 28, 1986. Payments fell into arrears. ( There were several other breaches of the agreement. [ No damage deposit was paid. The parents made no effort f lr
{r· - 5 -\.. [ to enforce payment. Some or most of the taxes were paid by the Intervenors. Again no effort was made to insist [ on payment of all of the taxes. There were some alterations and redecorating without consent. There was some damage [ to the premises. r This, in my assessment, was an effort by an honest, elderly couple, of very modest means to help their son ( and his wife. He sought legal help in drawing up the documents. l In my assessment of Lawrence Marriott he would consider the lawyer "knew best" how to draw up the documents once I he outlined his proposition. Had this been a contract between hard nosed business people the documentation may [ have been different. Here the standard documents were adjusted to conform to this rather unusual transaction. f When the marriage, which I find the Intervenors l were trying to keep together, fell apart, the situation changed. The respondent stayed on as a tenant rent free l until March, 1987. f Had the petitioner or respondent made any real contribution either in money or in work or money's worth L the situation could be much different. L Here they contributed little and risked little. The rent they paid was no more than they had paid before l they came into possession. Any work they did was not of ( l L
[ - 6 -~ r great consequence either in cost or in increase in the value of the house. They enjoyed the result of that work r as the premises were more pleasant to live in. [ Counsel has referred me to several cases which they consider persuasive. f In Gillis v. Gillis 40 R.F.L. (2d) 145 the Manitoba r Court of Queen's Bench Morse, J. included a farm property as a matrimonial asset. The husband's elderly parents l ran a farm and in 1971 asked the son to run the farm for them. The husband and wife returned to the farm. He worked f until 1977. The father retired in 1975. In 1977 he divided [ some assets amongst his family. He gave the farm to the son, not to both. He gave a deed to the son with an agreement [ back to pay certain sums over a period of time. Although the deed was only to the son the court included that property L as a matrimonial asset. [ In Smith v. Smith 23 R.F.L. (2d) 263, Maloney, J. of the Supreme Court of Newfoundland found a wife had f a 25 percent interest in a property owned by a parent. The 0 parties built a house on the father's land. The couple both worked at constructing the house over a four year L period. ( Notwithstanding that the title to this land continued ( in the father's name the court found the home to be a matrimonial l l_
[ . - 7 -~ r asset, the interest of the father was quantified and the remaining 50 percent was divided equally between the husband r and wife. In Elliott v. Lowe l N.S.R. (2d) 187, Gillis, [ J. of this court refused to exercise his equitable discretion r in favor of an owner against a purchaser. I consider that in this case it is necessary to f balance the equities of the parties. I find few, if any equities, in favor of either the petitioner or respondent. I find the balance of the equities in favor of the Intervenors. l I find that at the date of separation the property [ was one in which the couple had more than a tenants rights. They were in possession under two instruments which purported [ to define the rights and obligations of each. I find they had a matrimonial interest in the property. [ My understanding of the practice in this province [ relating to agreements of sale is that a purchaser generally acquires equities under such an agreement which this court . f recognizes and enforces. In certain instances it may be l treated as a deed-mortgage situation requiring a foreclosure and sale proceeding. Generally if the purchasers have i acquired an interest in the property equitable principles come into play to protect those interests. [ ( I find that the interest the parties had acquired l l
r - 8 r"r at the time of separation was the result of certain modest, but recognizable expenditures in labor and material. They r had moved from the mobile to the house. I cannot see that their financial situation suffered, in fact I believe and [ find that it improved. f The payments they made to the Marriotts, Sr. were no more than rent would have been for comparable premises, ' perhaps less. [ Considering all the relevant circumstances including the position of ·the Intervenors, I fix the interest of [ the petitioner and respondent in that asset at $2,000.00. [ The petitioner is entitled to one-half of that interest, i.e. $1,000.00. This sum shall be a charge against the 0 real property until paid. [ I have also considered the doctrine of unjust enrichment. I consider that to find either the petitioner [ or respondent to have a greater interest in the property would be to unjustly enrich them to the detriment of the [ Intervenors. L There shall be no costs. { A~0 -----<~ ( J. l Halifax, Nova Scotia 0 February 18, 1988
1987 Filw No. 1201-35979 IN THE SUPREME COURT OF NOVA SCOTIA C TRIAL DIVISION BETWEEN: MARY MARGARET MARRIOTT Petitioner - and -BRIAN LESLIE MARRIOTT Respondent - and -LESLIE LAWRENCE MARRIOTT and LORNA VIVIAN MARRIOTT Intervenors C DECISION OF GRJ\NT, J. (
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