Get on with your deal or lose the farm

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

A recent decision of the Ontario Superior Court of Justice tells a sad tale of sisters fighting over the family farm.  The 100-acre farm with a two-storey farmhouse and bank barn had been in their mother’s family since the 1920s.  By the time the father died in the late-2000s, the mother was living in a long-term care home, incapable of managing her property.  Her four daughters held power of attorney for property, but could not agree on how to manage the property including the farm.  For five long years, the sisters engaged in “bitter litigation”, launching court actions back and forth.

Things looked up by the end of 2015 when the sisters resolved their litigation through Minutes of Settlement.  They agreed to structure their mother’s property so that it would be divided equally among the sisters consistent with the wording of their mother’s will.  With respect to the farm, though, the will and a codicil to the will directed that the farm not be sold for one year after the mother’s death “to enable one or more of my children to find a way to keep it in the family, failing which the farm shall be sold and the proceeds shall form a part of the residue of my estate. It is my fervent wish that my children will assist one another in ensuring that, if at all possible, the farm will remain in the ownership of one or more of them.”

The sisters’ mother passed away in late-2020, triggering a countdown of sorts towards dealing with the farm property.  By the mother’s date of death, the farm was valued at approximately $1.9 million.  However, in 2014, the farm had been appraised at $890,000 and the sisters had already agreed in their Minutes of Settlement that two of the sisters would pay the other two sisters $422,750 for the farm (being one-half of the $890,000 less $44,500 real estate commission).  Each sister was entitled to one-quarter of the value of the farm property.  Title to the property was to be transferred to the purchasing sisters by a closing date to be the later of a date in February, 2016 and the date on which certain of the mother’s investment assets were to be disbursed.

The farm transaction was not completed in February, 2016.  By March, 2018, the transaction had still not been completed.  The selling sisters wrote to the purchasing sisters stating: “the agreement was not intended to extend over a period of time and needs to be fulfilled”.  They set a deadline of April 15, 2018 for completion of the deal failing which they would conclude that the purchasing sisters didn’t “intend to fulfill the Minutes of Settlement” and would “take the appropriate course of action.”

Fast-forward to 2022 and the purchasing sisters commenced a court application asking the Court to order that they could pay $422,750 to the selling sisters and that the selling sisters would have to transfer to the purchasing sisters title to the farm.  Again, as at the time of the mother’s passing in 2020, the farm had been valued at about $1.9 million – a $422,750 purchase price would represent a discount on the 2020 value of the farm of more than 50%.  It was the court application brought by the purchasing sisters that culminated in the recent Superior Court decision.

Madam Justice C. D. Braid heard the application and concluded the following: 1) the Minutes of Settlement were a contract between the sisters; 2) the purchasing sisters “repudiated” the contract by failing to complete the transaction with the selling sisters; and, 3) the selling sisters accepted the repudiation of the contract, bringing their agreement to accept $422,750 in exchange for the farm to an end.  As such, the purchasing sisters were no longer entitled to purchase the farm pursuant to the terms of the Minutes of Settlement.

While the purchasing sisters had never expressed an intention not to complete the transaction as required by the Minutes of Settlement, Justice Braid found that the purchasing sisters’ “extreme delay” meant they repudiated (or disavowed) their contract with the selling sisters.  Where a contract contains sufficiently clear terms about price, the property, and the parties, the Court will infer that the parties expect a transaction to be closed “within a reasonable period of time”.  Where a contract doesn’t stipulate a specific time of performance, the law implies a term that the contract is to be performed “within a reasonable time”.  Where delay in performance “becomes so long as to go to the root of the contract”, the contract will be considered repudiated or fundamentally breached and the party suffering the delay will be excused from performance.

Faced with repudiation of the Minutes of Settlement by the purchasing sisters, the selling sisters could have chosen to keep the contract alive and have sought to enforce the deal.  However, it was their option to accept the repudiation and end the contract.  With the Minutes of Settlement now unenforceable, Justice Braid ordered that the family farm be sold on the open market and the net proceeds from the sale be divided equally between the sisters in accordance with their mother’s will.  Her Honour did specify that the purchasing sisters were not prohibited from making an offer to purchase the farm once it was listed, but the purchasing sisters had lost the opportunity to buy the farm at the 2014 price.

Read the application decision at: 2024 ONSC 603 (CanLII).  

UPHELD ON APPEAL: 2024 ONCA 791 (CanLII).

Reversing the regretted farm transfer and other uses of the resulting trust

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

Most often (but not always) with the best of intentions, a parent may transfer part of his or her ownership interest in a farm property to a child for little or no consideration.  In some cases, the parent intends to gift the ownership interest outright with the understanding that the child will be the true owner of the interest going forward.  In other cases, the transfer might be in connection with a plan to operate the farm with the child, who will contribute labour to the operation going forward in repayment to the parent.  Often the parent makes the transfer in contemplation of an estate plan or farm succession plan; for instance, a parent may add a child on title to a property as a joint tenant so as to avoid payment of probate tax in the future on the death of the parent, at which time the parent’s ownership interest will pass automatically to the child. 

Unfortunately, life after a gratuitous transfer of ownership can fall far below the expectations of the parent.  Parent and child may not get along as joint operators of a farm.  A child may turn out to be an unexpected prodigal.  Whatever the reason, parents sometimes come to regret having transferred the ownership interest and look for ways to reverse the transfer.  In certain circumstances, the law will allow the parent, the transferor, to recover ownership from the child, the transferee, on the basis of a “resulting trust”.

Canadian law presumes that the transfer of ownership results from a fair bargain, not a gift.  If a transfer is made without proper consideration in return (i.e. a gratuitous transfer), the law normally presumes a resulting trust in favour of the transferor.  The transferee is presumed to be holding legal title in trust for the transferor’s benefit – the transferee may be registered as legal owner of a certain interest on title to a property, but the transferor remains the beneficial owner of that interest, which is to be returned to the transferor on demand.  The presumption is rebuttable by the transferee, who may show on a balance of probabilities that the transferor had an intention to gift the ownership interest outright.  The transferee might also show that the transfer was not in fact gratuitous at all – that there was an exchange of consideration and a “fair bargain”.

If persuaded that a transfer of ownership was gratuitous, and that the transferor did not intend to make a gift, the Court may make an order setting aside the original transfer and restoring full legal ownership to the transferor.  Although the presumption of resulting trust is a legal tool of general application, the Court’s analysis is heavily fact-driven, and the outcome of each case will depend on its particular circumstances. 

Ontario’s Court of Appeal has found that the resulting trust continues to apply where assets are held within a corporation, and the transferee receives shares in the corporation without proper consideration; the focus of the analysis should be on the substance of the transaction, not the form.  The transferee’s interest in the assets as a shareholder in the corporation would be subject to the presumption of resulting trust, rebuttable by showing that there was an intention to gift the interest in the assets to the transferee.  Where the resulting trust is found to apply, the Court could order that legal ownership of the shares be restored to the transferor.

A resulting trust can also be presumed in situations where two parties acquire property jointly, but only one of the parties puts up the consideration paid in the transaction.  Depending on the circumstances, the party who paid the consideration may be entitled to the beneficial ownership of the entire property while the other non-contributing owner holds his or her legal ownership interest in trust for the other.

Claims based on a resulting trust argument sometimes arise in the context of estate proceedings, after the transferor parent has passed away.  As noted above, a surviving joint tenant will become the full owner of a jointly owned property where the other joint tenant dies; the jointly owned property does not become part of the estate of the deceased available for distribution to beneficiaries under a will or otherwise.  Those beneficiaries may argue that a jointly held property should nevertheless form part of the estate of a deceased parent on account of a resulting trust. 

Similarly, in bankruptcy proceedings, creditors of a bankrupt may argue that a certain property legally owned by another party forms part of the bankrupt’s estate (for purposes of satisfying the bankrupt’s debts) by way of a resulting trust.  And the opposite situation can occur as well, with creditors of an alleged beneficial owner of a property arguing against the inclusion of the property in the estate of the bankrupt legal owner so as to keep it out of the hands of the bankrupt’s creditors.

Bachelor farmer dies in accident in 2009 - Court tasked with interpreting holographic will from 1992

Farmer P was 60 years old when he died in an accident on his Saskatchewan farm in March, 2009.  He had no spouse and no children, and was survived by his 95-year old mother, a brother and sister-in-law, and a sister.  After P's death, his family discovered that he had made a holographic will in 1992 that provided as follows:

Last Will and Testament of [P]

I leave all my farming assets to [my brother and sister-in-law].

I leave 50% of my personal assets to [my brother and sister-in-law].

I leave 50% of my personal assets to my sister [K].

All household personal assets (those that Mom can use) I leave to [my mother].

A holographic will is one that is made entirely by the testator's own handwriting, without formality, and without the presence, attestation or signature of a witness (e.g. the mythic will written on a napkin).

For almost 8 years after P's death, his siblings were engaged in acrimonious disputes about the administration of P's estate and their entitlement to his assets.  The assets included farmland, farm equipment, grain and inputs inventories, etc.  The debts owing by P's estate included substantial income tax owing, a tractor loan, a mortgage, etc.  The questions left by the holographic will included which assets were farm assets and which assets were personal assets, and which debts were to be paid by the Estate and which debts were to be paid by individual beneficiaries.  In January, 2017, Justice Ball of the Court of Queen's Bench in Saskatchewan issued a decision in which he wrote: "Hopefully, this decision will do something to bring an end to the litigation."

Justice Ball noted that, "The court's only objective in interpreting a will is to ascertain and give effect to the intention of the testator, as expressed by the language of the will, at the time the will was executed."  After reviewing the law applicable to the interpretation of wills, Justice Ball then reviewed the evidence about the information known by P at the time he made his will in 1992 that provides the context for the will.  Having reviewed the context, Justice Ball concluded, among other things, that "farming assets" included all farmland, farm implements and inventory, and unsold grain on hand; "Personal assets" included all household effects in P's home, personal motor vehicles, and personal bank account balances.

At the end of the decision, there were still some assets that could not be assigned to a specific category based on the evidence before the Court.  These assets included surface lease annual payments and farm subsidies or other government payments.  Further evidence would need to be filed with the Court before any decision could be made on those assets.

As with most estate law cases involving farms, the lesson to be drawn from this case is that it pays to have a clear and fully-documented succession plan in place as soon as possible.  Farmer P did have a will at the time of his fatal accident, but that will was not sufficiently instructive to his family to avoid nearly a decade of litigation.

Read the decision at: Ellingson v Ellingson Estate.

REMINDER: CAFA - Current & Connected Conference - June 4, 2015 - Woodstock, ON

The Canadian Association of Farm Advisors will be holding its annual Current & Connected Conference at the Quality Inn in Woodstock, ON on June 4, 2015.  Featured speakers include:



Brent Van Parys & Hali VanVliet, BDO SuccessCare Program:  Building & Transitioning Three types of Capital

Karl Volkmar, Southern Crop Protection and Food Research:  The Direction of Federal Research in the Science and Technology Branch

John Mill, Succession Tax Council:  Capital Gains Deductions and Rollovers for Farmers

Gary VanBolderen, Dutch Builders, VP Council of Ontario Construction & Chair, Canadian Farm Builders

Naomi Loewith, Lenczner Slaght:  Strategic Advice for Avoiding & Managing Legal Disputes


Click here for the agenda

Click here to register

When "strong bonds of love and devotion" fall apart: Sask Court considers action to set aside gratuitous gift of land from elderly parent to adult child

Justice Schwann of the Court of Queen's Bench for Saskatchewan opened her recent decision in a farm estate case as follows: "At issue in this case are the legal ramifications flowing from a gratuitous gift of land from an elderly parent to an adult child, and the parent's subsequent desire to revoke that gift."  An elderly mother transferred a joint tenancy interest in the family farm to her stepson shortly before she left to live in an assisted living home, but a year later brought a court action to have the transfer set aside.  She died a few years after that before the action was decided - it was continued by her estate.  Upon the mother's death, the farm passed to the stepson as the surviving joint tenant.

Several grounds for setting aside the original transfer were proposed to the Court: 1) undue influence of the stepson over the mother; 2) the absence of independent legal advice; 3) breach of fiduciary relationship; 4) failure of consideration; and, 5) presumption of resulting trust.

Justice Schwann determined that the mother had gifted the interest in her farm property by exercise of free will - she was not unduly influenced by her stepson.  She also found that the mother had not received adequate independent legal advice about the transfer, but this was not in and of itself a reason to overturn the gift.  Justice Schwann did not find that the lack of independent legal advice meant that the stepson had dominated the mother's free will.  She also found that there was no fiduciary relationship, that no consideration (i.e. quid pro quo) was required for the gift, and that no resulting trust was established.  The action by the estate was dismissed in its entirety.

Read the decision at: Thorsteinson v Olson.

Inter-generational farm sale agreement rectified by Court of Appeal

A father and mother sold their farming business as a going-concern, including all real and personal property, to their son and daughter-in-law.  Everyone signed a memorandum of agreement outlining the terms of the transfer.  The memorandum listed various ways in which the purchase price could be satisfied, including a vendor take back mortgage for the real property.

Following the father's death, the mother brought an action for rectification of the memorandum on the basis that the total purchase price was incorrectly recorded; it was stated to be $222,444, which was $115,000 less than the fair market value of $337,444.  The mother testified at trial that the sale of the farming business was intended to be at fair market value.  Of note, the mother's action proceeded only against the daughter-in-law, who had by then separated from the son.  The son did not contest the request for rectification, and summary judgment was obtained against him.

The trial judge refused to grant rectification on two bases: 1) the mother had failed to meet the standard of proof for rectification, which was "convincing proof"; and, 2) the parties did not have a common intention as to the amount of consideration for the farm business at the time that they executed the agreement.

The Court of Appeal disagreed and granted the rectification, concluding: "Applying the ordinary civil standard of proof, and considering the surrounding documentary and oral evidence as a whole, in my view, the requirements for rectification based on common mistake are met. The parties had a common intention to enter into a transaction for a total selling price at fair market value, the fair market value is clear, and the fair market value was incorrectly expressed in the documentation. Unless rectification is granted, [the daughter-in-law] will be unjustly enriched."

Read the decision at: McLean v. McLean.

Court of Appeal sends family farm dispute back for a second trial

An "unfortunate dispute" between a brother and a sister over the family farm of their late parents has been sent back for a second trial.  The Ontario Court of Appeal found that the first trial judge "applied incorrect legal principles to the evidence and made numerous unreasonable findings of fact."  These "cumulative errors" rose "to the level of a substantial wrong".  A new trial was ordered because the transcript from the first trial did not allow the Court of Appeal to decide the factual issues for itself.

The farm had been in the family since 1830, and the son had worked on the farm as a full-time occupation for 24 years.  The son contended that he had an oral agreement with his parents that if he stayed on the farm and farmed with them, and if farming was his main occupation, he would receive the farm land and the farm assets when his parents stopped farming.  The sister, the only sibling, worked off the farm and was not involved in running the farm operation.

The mother and the father had identical wills: if one died, everything went to the survivor; when the survivor died, everything was shared equally between the son and the daughter.  After both parents died, the son commenced an action seeking a declaration that he was benefically entitled to the farm property and the farm business.  The sister contested the claim and filed a counterclaim asking for an accounting by the brother for his use of the farm property and the business since the father's death in 2001.  The son's claim was commenced in 2004.

The trial judge found that the son had not proven the alleged contract with his parents and dismissed his claim.  On the counterclaim, the trial judge ordered both son and daughter to account for their management of the estate property and assets since the father's death. The trial judge awarded costs to the daughter on a substantial indemnity basis fixed at $275,000 inclusive, payable by the son and not by the estate of the parents. 

The Court of Appeal allowed the appeal of the dismissal of the son's claim and also reversed the costs award.  The reasons for decision of the appellate court address the following three errors in the trial judge's consideration of the son's claim for part performance of an oral contract (i.e. for the transfer of the farm and farm business):

(i) he erred in concluding that because there were no signed documents, there was no oral agreement;

(ii) he erred in his application of the doctrine of part performance; and

(iii) he made various findings of fact that disclose palpable and overriding error.

The son was awarded $40,000 as costs of the appeal.

Read the decision at: Mountain v. TD Canada Trust Company.

Alta. Court rules lawyer negligent in drafting will meant to bequeath farmland

The Alberta Court of Queen's Bench has ruled that a solicitor was negligent in drafting a will for a client after the intended gift to a beneficiary failed.  The deceased owned land, including four quarter sections he wished to pass onto his brother through his will.  In drafting the deceased's will, the lawyer did include the bequest.  However, it was not actually the deceased who owned the four quarter sections.  Instead, the property was held by the deceased's company.  The intended gift failed and the brother sued the lawyer for negligence.

The Court found first that the lawyer owed the brother, as an intended beneficiary, a duty of care.  Next, the Court found that the lawyer had fallen below the standard of care required in failing to address the fact that the land was owned by the company: "A reasonably competent solicitor in those circumstances would, at a minimum, have asked who owned land to be gifted in the will or done a search to ascertain in ownership."

The Court awarded damages to the brother in an amount equal to the value of the land as of the date of the death of the deceased testator.  Added to that amount was some $11,200 which would have been earned by the brother as surface lease income had he received the properties.

Read the decision at: Meier v Rose.

CAFA Conference in Ottawa - February 2, 2012

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2011 Ontario Farm Tax & Business Seminars announced

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Appeal Tribunal allows partial transfer of dairy quota from son back to father

Steven Baes is a dairy farmer.  Adjacent to his dairy operation is another dairy farm owned by a corporation called Baeverdale Farms Ltd. The owners of the farm corporation are Steven's father and mother, Leon and Bernadette Baes, and his brother and sister-in-law, Michael and Melissa Baes.  In 1994, Leon Baes transferred approximately 11 kgs of quota to his son Steven in an effort to get him started in dairy farming. The elder Mr. Baes' transfer arrangement was that in the event of any changes in Steven's circumstances, the quota would be returned to the father for his own dairy operation which is now Baeverdale Farms Ltd. (Baeverdale).

Steven subsequently purchased additional quota for his own dairy farm operation.  According to Baeverdale, a similar verbal agreement was made to transfer such additional quota to the family held operation should Steven ever run into problems in the future or decide to leave the dairy business.  Over the years some quota was returned to the father.  Steven Baes requested an exemption from DFO's policy to allow him to transfer all of his remaining quota to Baeverdale, and to allow the merger of the quota under one licence.  The Dairy Farmers of Ontario (DFO) denied the request to transfer the quota.  Baes appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal.

DFO contended that the proposed transfer was not permitted under the current quota transfer policy, saying that this type of transfer has not been allowed since 2006.  The DFO witness outlined three alternative options for the transfer of quota:

1.  Baes could sell his quota on the exchange, and Baeverdale could buy quota from the exchange, recognizing this would be a slow accumulative process.

2.  Baes could transfer his quota to Baeverdale and Baeverdale could continue to operate two different barns with two different licences. This would prevent the merger of the quota to operate under one licence.

3.  Baes could sell his quota and Baeverdale could sell their dairy farm and buy a dairy farm with more quota if they wanted a larger dairy operation.

The Tribunal ruled that two different amounts of quota were in play in this case.  First, there was quota initially bought by the father and transferred to the son in 1994.  Second, there was quota purchased by the son directly from the exchange and not part of the original transfer from the father. 

The Tribunal found that the son had actually begun to transfer back quota to his father beginning in 2003 pursuant to their agreement, prior to the DFO policy changes that now prohibit the transfer of quota.  Of 11 kg in total first transferred by the father, 7 kg had already been returned.  The Tribunal determined:

The uniqueness as it applies to this situation is that it involved a transfer back agreement made in 1994, which DFO accepts; and it is shown to have been an ongoing transfer back since 2003 only interrupted by DFO's policy change in 2006. Such a transfer back between the parties would have been allowed under policies prior to 2006, and the appellant and his father anticipated that this policy would continue. To the Tribunal Panel's knowledge, there have been no cases before the DFO Board that involved a son to father transfer that had its original transfer agreement prior to 2006 and had been in the process of being completed.  The uniqueness and extenuating aspect in this case is that it involved a verbal agreement between the father and son that predates the limiting policy change by 12 years, and was in the ongoing process of completion.

On this basis, the Tribunal permitted the completion of the transfer back to the father that was contemplated in the original 1994 agreement.  This transfer back was limited to the quota that was originally transferred from father to son.  It cannot include the quota that was purchased by the son on the exchange.
Read the decision: Steven Baes vs. Dairy Farmers of Ontario (DFO).

Saskatchewan Court of Appeal awards farm to son

In a recent decision, the Saskatchewan Court of Appeal has ordered that parents, Barbara and Alfred Raymond transfer their one-quarter interests in a quarter section of land to their son, Barry.  The trial judge in the proceeding had instead ordered the payment of damages as opposed to specific performance of a transfer agreement that was found to have been in place between parents and son.

Barbara and Alfred are deceased, but their estates were respondents in the appeal.  The action by Barry arose out of a broader dispute between him and his brother, Alan, as to their succession to the farm land owned by their parents.  The trial judge found that a valid sale agreement for one-half of one quarter section of land had been in place between the parents and Barry and should be enforced.  Barry already owned another one-quarter interest in the property.  However, the judge declined to award specific performance of the agreement (i.e. the transfer of the land) because it was found that the land involved was not "unique or irreplaceable in the sense that it cannot be compensated by damages."  Instead, the trial judge awarded $70,500, which was one-half of the appraised value of the property.

The Court of Appeal decided differently and awarded the land to Barry.  The Court commented on the change in the law that took place in 1996 following a Supreme Court of Canada decision:

Until 1996 it had long been a tenet of our law that each parcel of real property was inherently unique. Given this inherent uniqueness, our courts made the equitable remedy of specific performance readily available to a plaintiff purchaser who claimed the vendor had breached a contract for the sale of real property. In 1996, Sopinka J.’s majority decision in Semelhago v. Paramadevan, 1996 CanLII 209 (SCC), [1996] 2 S.C.R. 415 (“Semelhago”), questioned these longstanding, rudimentary elements of our law of real property. His comments, although obiter, were thereafter generally accepted as law. However, Sopinka J. did not so much make new law as remind us that a basic legal rationale based on the presumed inadequacy of expectation damages has always underpinned the availability of specific performance as a remedy in cases involving real property. Unfortunately, post-Semelhago there has been some confusion as to when the remedy of specific performance will be made available to an aggrieved prospective purchaser of land. For this reason, Semelhago has been criticized for founding legal uncertainty in once settled law. This appeal results in part from that uncertainty.

The Saskatchewan Court of Appeal says that the SCC decision in Semelhago does not stand for the proposition that the presumption of uniqueness has been supplanted by a presumption of replaceability.  Judges must not longer presume the inadequacy of damages (i.e. a monetary payment rather than the land itself) as a remedy whenever real property is involved, but instead a judge must decide whether, in the cirucmstances, damages would be an inadequate remedy.  The Court of Appeal described the inquiry as follows:

In practical terms, this means the prospective purchaser bears the burden of adducing evidence that the subject property is specially suited to the purchaser and that a comparable substitute property is not readily available. These evidentiary points are necessarily intertwined because, on the basis of the evidence, the prospective purchaser must discharge the overall burden of persuading the judge that the subject property is so different from others that damages is an inadequate remedy and that justice dictates the purchaser should have the subject property. The judge, in turn, must conduct a critical inquiry on the evidence as to the nature and function of the subject property in relation to the prospective purchaser. The evidence and analyses will necessarily overlap, but the overall question the judge must answer is whether the justice of the matter calls for an award of specific performance because damages would be inadequate.

In the circumstances of this case, the Court of Appeal found that the land held unique value for Barry and was not simply a commodity.  It commented on Barry's specific case and on the unique value of family farm land in general:

It cannot be said that the Land is, or that Barry treated the Land as, more akin to a commodity than a tract of land having special attributes not found in any other farm land. The Land is immediately across the road from Barry’s home quarter. Barry already owns an undivided one-quarter interest in the Land. The Land once belonged to his grandfather and is home to his parents’ yard-site. Barry used the Land for over 40 years, with his parents, his brother, and his deceased son. These factors or attributes are cogent and impossible to value precisely. On this basis, I would find that an award of damages cannot restore Barry to the position that he would have been in had the Parents’ Estates performed under the agreement for sale of the Parents’ Interests. Furthermore, Barry’s evidence was also that there are no “reasonable yard-sites” located in close proximity to his home quarter. Whether or not reasonable yard-sites are available, no other yard-site could have the attributes of the Land. In other words, there is no comparable substitute property, let alone one that is readily available. If there is any farm land in respect of which compensatory damages is inadequate, it is typically that farm land which sits directly across the road from a farmer’s home quarter. This is especially so where the farmer has an existing legal interest in it, strong emotional and familial ties to it, and sound economic reasons for making it part of his farming operations. Whether pre- or post-Semelhago, such farmland is “unique” and the appropriate remedy in such a case is an order for specific performance.

Read the decision at: Raymond v Anderson.

Siblings, the family farm, and nasty litigation

Here's how a recent decision of the Alberta Court of Queen's Bench begins:

It is unfortunate that at this stage of their lives siblings are involved in nasty litigation. Mr. Chemerinski is the brother of Susan Richter. Anne Marie Chemerinski was their mother. She died on November 1, 2009. Before her death, she was unable to look after her own affairs. Her son William held a Power of Attorney and looked after her affairs. Calvin Richter is Susan’s husband. In 2002 The Richters started an action for damages against these Respondents and the estate of Anne’s late husband Carson based on breach of contract, unjust enrichment or quantum meruit arising out of a joint farming operation near High Prairie, Alberta. In another action, Susan was named the Defendant by Anne. This action dates to 2002. Anne claimed repayment of an alleged $40,000.00 loan to her daughter. In another Queen’s Bench action dating from 2006, Susan is a Plaintiff along with her sister Christine and Bill and Anne are two of the Defendants. In this action two sisters are pitted against their brother and mother. This claim relates to the ownership of a joint investment account held by the Plaintiffs and their mother at CIBC Wood Gundy.

This multifaceted litigation has been disastrous for this family on two levels. It has been emotionally and financially crippling. The litigants are in their late 50s and early 60s. Any vestiges of family harmony have been destroyed. The litigation has accomplished very little other than to create bitterness and deplete resources. It is a prime example of what can happen if litigants possess an abundance of bile and resources.

Read the rest of the decision at: Richter v. Chemerinski.