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Excessive Gifts Analysis Contextual: MBCA
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A
second wife who was left nothing but a life interest in her late
husband’s share of their condominium was unsuccessful in appealing the
dismissal of her claim for a Family Property Act accounting and equalization and other relief in Ball v Sizeland et al,
2018 MBCA 85. She argued that she was entitled as of right to an
accounting before a Master, but the Court of Appeal found that the
application judge (who heard her application concerning improper gifts
and misappropriation of assets by the husband’s children) had already
done an accounting and determined there was no merit to her claims. On
the issue of whether the almost $45,000 worth of gifts the husband made
(under a power of attorney) to his children and grandchildren in the
last years of his life fell under the dissipation or excessive gifts
provisions of the Act, the court found that the excessive gifts
analysis is contextual, having regard to the nature and extent of the
gifts in question as well as the overall financial situation of the
family. The court saw no reason to interfere with the application
judge’s conclusion that, while on a prima facie basis the gifts were
done with the intent to deprive the wife of her share of the value of
the family asset, they were made as part of the husband’s financial
planning and desire to make gifts to his grandchildren for their
education and to his son and daughter to equalize the payments made for
the benefit of the wife and her daughter during his lifetime.
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Time to Address the Substance of the Parker Lands Applications: MBQB
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In 6165347 Manitoba Inc. et al. v. The City of Winnipeg et al.,
2018 MBQB 153, the court granted the Parker Lands developers a writ of
mandamus to compel the City Centre Community Committee to hear two
applications with respect to the land: a secondary plan application and
a rezoning application. While the court found no specific evidence that
the City acted in bad faith in exercising its discretion to proceed
with the secondary plan as a by-law application rather than pursuant to
a Council policy, it noted that such discretion must be exercised
fairly. In this case, where the City changed their approach mid-process
and otherwise contributed to the 5-year delay, the court found it was
time for the substance of the applications to be addressed.
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Conditional Use Order Intra Vires the Municipality: MBQB
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The
restrictions set out in a conditional use order limiting the
applicants’ gravel extraction operation were within the broad
discretion allowed the Municipality in ss. 71(3)(k) and (t) and
106(1)(b)(i) and (ii) of The Planning Act and were not discriminatory, according to the court in Anderson et al. v. The Rural Municipality of Ste. Anne,
2018 MBQB 139. The applicants’ original application requested
conditions allowing for a modest and very localized gravel pit
operation and the Municipality repeatedly rejected subsequent requests
to remove the conditions to permit a full operation pit with
off-premise sales. Such restrictions were within the scope of the
Municipality’s jurisdiction and it was not obliged to provide reasons
for its decision, according to the court.
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Insufficient Reasons Not a Stand-Alone Ground for Setting Aside a Decision: MBQB
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In Canad v. The City of Winnipeg,
2018 MBQB 137, the court declined to set aside a decision of the City’s
Appeal Committee allowing a zoning by-law variance to permit the
construction of a hotel 20 feet above the height limitation and with a
front setback decrease of 20 feet (to allow for a larger parking lot).
The court rejected Canad’s argument that the Appeal Committee
misinterpreted s. 36 of the zoning by-law by not recognizing that the
owner created the conditions which caused the by-law to have an
injurious effect. In the court’s view, s. 36 is directed to prohibiting
the granting of a variance where an owner has charged ahead and created
conditions on the property before making a variance application. In
this case, where permission was sought in advance, it was open to the
Board and Appeal Committee to reject or accept the variance.
Furthermore, although the reasons provided in the case approached “the
low water mark of what should be acceptable for a public administrative
tribunal,” after reviewing the record and finding some support for the
Appeal Committee’s decision the court declined to intervene.
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Legislative Update
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Bill 19, The Planning Amendment Act (Improving Efficiency in Planning), received royal assent and came into force in part on June 4, 2018. Section 25 was proclaimed
in force October 15, 2018. Sections 18, 20 and 26 will come into force
on proclamation. Among other things, the legislation amends The Planning Act
to change the process for adopting or amending zoning by-laws and the
review and approval process for large-scale livestock operations. For
further details see the explanatory note to the bill.
Bill 35, The Crown Lands Amendment Act (Improved Management of Community Pastures and Agricultural Crown Lands), was introduced October 4, 2018 and had second reading October 25, 2018. It amends The Crown Lands Act
to enable Cabinet to designate certain lands as community pastures and
to regulate their use and introduces regulations allowing public
auctions to be used to determine fees or rent for leases and permits
for agricultural Crown lands.
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Property Registry Notices
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Fee changes for the Land Titles and Personal Property Registries will come into effect on January 6, 2019. See the notice and directive for more information, including a full list of 2019 fees.
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Recommended Reading
Continuing Professional Development: LSM
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Drafting Wills & Estate Administration 101 (Brandon) – register
for one or both of these session to be held November 20, 2018 in
Brandon, Manitoba. In the morning session K. Eleanor Wiebe Q.C. will
review basic practical steps and legal issues involved in drafting a
will for a client and in the afternoon Bob Fabbri will walk you through
all the steps involved in basic estate administration.
Hot Topics in Real Estate – this year’s program will provide tips
on commercial real estate, joint tenancies and an array of what we like
to call “short snappers” – pointers about seemingly little issues
that crop up in real estate practice. There are two dates to chose
from: December 10, 2018 (1:00 pm to 4:00 pm) or December 11, 2018 (9:00
am to 12 noon).
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MBA Programs
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Part II (Powers of Attorney Series) – Duties and Obligations (Nov 7, 2018) and Part III – Powers of Attorney - Advanced Topics
(Dec 11, 2018) – these are the last two programs in a three part series
on Powers of Attorney presented by the Wills and Estates Law section.
Part II deals with attorney obligations, misbehaving attorneys, POA
accounting, and removing or replacing attorneys. Part III covers more
in-depth issues such as joint accounts, estate planning by attorneys,
reporting requirements, and obstacles facing foreign individuals acting
under POA. Both sessions take place in the 2nd floor conference room,
444 St. Mary Ave.
"Basics" of waste water management rules in Manitoba
– a practitioner and a wastewater management specialist will discuss
the regulatory scheme for waste water management at this Real Property
section meeting on Nov 22, 2018. The program takes place from 5:00 to
6:30 pm in the 25th floor boardroom, 360 Main Street.
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STEP Programs
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Upcoming educational sessions offered by the Winnipeg branch
of the Society of Trust and Estate Practitioners (STEP) include:
Overview from Experts on Valuation and Accounting Issues During
Separation and Divorce (Nov 20, 2018); Insurance in a Corporate
Environment - Why It Fits and Where It Fits (Dec 11, 2018); and a full
day course on Succession of the Family Business (Jan 29, 2019). To
register, or for information on how to become a member of STEP, check
their website.
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ISSN 1916-3916
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