A House Divided Against Itself Cannot Stand: Joint Tenancy, Ademption, and the Principles of Hyrniak v. Mauldin
Case: Winnitowy v Winnitowy, 2017 SKCA 12 (CanLII)
Keywords: Hryniak v. Mauldin,  1 SCR 87, 2014 SCC 7 (CanLII); Summary Judgment; Joint Tenancy; Ademption; Wills & Estates
Bill and Jean Winnitowy meet May 19, 1999, become engaged November 27, 1999 and are married August 30, 2003.
Bill has three children: Randy, Lori, and Dale (the Appellants). All are adults and fully independent from Bill. Jean, the Respondent, is not the biological mother of any of the Appellants.
Bill and Jean reside together in a house. Prior to their marriage, Bill and Jean enter into an “Interspousal Agreement” disposing of the house in favour of Jean upon Bill’s death. Bill later executes a will and Jean is named executrix. After Bill’s passing, a dispute arises between Bill’s wife and Bill’s children with regard to entitlement to the house.
Randy and Lori believe Jean, as executrix, is secretive about the will. The children commence an action seeking orders and declarations which would result in their receiving a beneficial interest in one half of the house. Jean applies for summary judgment dismissing the Appellants’ claim.
The Court of Queen’s Bench finds that, upon his death, Bill no longer owns an interest in the house, as a result of having entered (along with Jean) into joint tenancy with a right of survivorship. An ademption of the bequest to his children of half the value of the house occurs. Jean deposes Bill’s children treated him improperly, leading Bill to his decision to transfer the house into joint tenancy.
Granting summary judgment and dismissing the Appellants’ claim, Tholl J. finds “This was Bill’s intention and the ademption accomplishes the result he wished to occur”. (See para. 72 in Winnitowy v Winnitowy, 2016 SKQB 231 (CanLII)).
On appeal, the Appellants raise the following issues:
- that the decision to issue summary judgment in the absence of oral evidence constituted palpable and overriding error;
- the conclusion that Bill’s children provided no evidence to support a finding Jean exerted control over Bill’s ability to make his own decision was unreasonable;
- that the conclusion that the affidavits of Jean Winnitowy and Arliss Dellow should be given preferential weight as compared to the affidavits of Bill’s children was unreasonable; and
- in oral argument, that Tholl J. made a palpable and overriding error of fact. (See paras. 3, 4).
The Court of Appeal dismisses the children’s appeal. The Court finds Tholl J. correctly stated the law, extensively reviewed the evidence, resolved issues of credibility, and did not misdirect himself in relation to the issues that were contested. There is no error in the analysis to justify intervention.
This case provides an illustration of the principles found in Hryniak v. Mauldin,  1 SCR 87, 2014 SCC 7 (CanLII). For the Court of Appeal, the result in this matter was “governed entirely” by the following principles from Hryniak:
 In my view, absent an error of law, the exercise of powers under the new summary judgment rule attracts deference. When the motion judge exercises her new fact-finding powers under Rule 20.04(2.1) [the Rule 7-2 equivalent] and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law should not be overturned absent palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33 (CanLII),  2 S.C.R. 235, at para. 36.
 Similarly, the question of whether it is in the “interest of justice” for the motion judge to exercise the new fact-finding powers provided by Rule 20.04(2.1) depends on the relative evidence available at the summary judgment motion and at trial, the nature, size, complexity and cost of the dispute and other contextual factors. Such a decision is also a question of mixed fact and law which attracts deference.
 Provided that it is not against the “interest of justice”, a motion judge’s decision to exercise the new powers is discretionary. Thus, unless the motion judge misdirected herself, or came to a decision that is so clearly wrong that it resulted in an injustice, her decision should not be disturbed.
 Of course, where the motion judge applies an incorrect principle of law, or errs with regard to a purely legal question, such as the elements that must be proved for the plaintiff to make out her cause of action, the decision will be reviewed on a correctness standard: Housen, at para. 8.
It was not insignificant for the Court of Appeal that the parties had already expended a large sum of money on legal fees in circumstances where, for each of the three Appellants, approximately $30,000 was at stake. (See para. 5). The Court of Appeal interpreted Tholl J.’s reasons as having been consistent with Hyrniak principles – namely that the Tholl J. had been making the point that if the matter was ordered to proceed to a trial, “…it would soon diminish, if not eliminate, any possible equity in the home”. (See para. 5).
The Court of Appeal concluded that, where there is no application of an incorrect principle of law or error with respect to a purely legal question, Courts are not to intervene unless the decision is “so clearly wrong” as to result in an injustice. (See para. 14).
Counsel for the Appellants: David Rusnak, Q.C. and Andrew Glum (Rusnak Balacko Kachur Rusnak, Yorkton, Saskatchewan)
Counsel for the Respondent: Shawn Patenaude (Shawn Patenaude Legal Professional Corporation, Yorktown, Saskatchewan)
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