Executive Summary: Key Legal and Evidentiary Issues

• Determination of whether Jennifer Chichak retained a beneficial interest in the property after transferring legal title to her husband in 2010.

• Dispute over the entitlement to foreclosure sale proceeds between a judgment creditor and a claimed beneficial owner.

• The court's reliance on the presumption of indefeasible title versus the rebuttable presumption of resulting trust.

• Jennifer's claim that her 2010 transfer was not intended to give up beneficial ownership was undermined by documentary evidence and lack of corroboration.

• Independent third-party evidence from the lender (MCAP) refuted assertions that the transfer was required by lending terms.

• The court assessed credibility of evidence, finding Jennifer and Derek Chichak’s testimonies unreliable and inconsistent with contemporaneous documentation.

Background and Facts

Jennifer and Derek Chichak were married and jointly purchased a residential property in Richmond, British Columbia in 1988, which served as their family home. Over the years, they refinanced the property multiple times. In 2006, title was transferred solely to Jennifer for the purposes of securing a GMAC mortgage. Later, in 2010, title was transferred solely to Derek to facilitate another refinancing with MCAP. The legal documents at the time reflected that Derek was the sole legal and beneficial owner.

In 2014, a judgment creditor, Cardero Capital Corporation, obtained and registered a judgment against Derek related to a failed real estate venture. When the property was foreclosed and sold in 2016, $312,830.83 of the proceeds were paid into court (the "Jennifer Balance") pending resolution of competing claims: Cardero sought recovery under their registered judgment, while Jennifer claimed a 50% beneficial interest in the property.

Jennifer asserted that her 2010 transfer was never intended to extinguish her beneficial interest and was done merely to secure better loan terms. She relied on the legal doctrine of resulting trust, arguing that since the transfer was gratuitous, the beneficial interest should be presumed to remain with her.

Procedural History

Following foreclosure proceedings initiated by MCAP, the property was sold, and proceeds were deposited with the court. Cardero initially obtained an order granting them the Jennifer Balance, but Jennifer appealed. The Court of Appeal set aside that decision, remanding the issue of entitlement back to the Supreme Court for determination based on whether a resulting trust existed. Additional legal proceedings ensued, including unsuccessful challenges by Derek to the enforceability of Cardero’s judgment.

Issues and Legal Framework

The central legal issue was whether Jennifer retained a beneficial ownership interest in the property at the time of sale, despite the legal title being solely in Derek’s name. The court was required to consider the interaction between two competing legal presumptions:

• The presumption of indefeasible title, which assumes that the registered owner also holds beneficial ownership.

• The presumption of resulting trust, which can arise when property is transferred without consideration, suggesting that the transferee holds it in trust for the transferor.

Jennifer bore the burden of proving, on a balance of probabilities, that her intention in 2010 was not to gift the property but to retain a beneficial interest. Conversely, Cardero, as a judgment creditor, could only take whatever interest Derek actually held, which would exclude any interest held in trust for Jennifer.

Analysis and Findings

The court found Jennifer's and Derek’s evidence lacking credibility. Jennifer’s explanation of her intentions changed between affidavits submitted in 2015 and 2017, particularly after MCAP provided sworn evidence refuting her claims. MCAP’s representative confirmed that it was not a requirement that Derek be the sole owner or borrower for the loan, contradicting Jennifer’s assertion that the transfer was lender-mandated.

Further, the court concluded that Jennifer received tangible benefit from the 2010 transaction: it cleared her liability on the GMAC mortgage and allowed Derek’s business to continue generating family income. The Form A transfer was unconditional and not qualified by any language indicating trust or retained interest. Jennifer also signed a Spousal Waiver, which explicitly subordinated any claim she might have in favor of MCAP.

The judge held that Jennifer’s transfer was not gratuitous, as she received sufficient consideration. Consequently, the presumption of resulting trust did not arise, and she failed to rebut the presumption of indefeasible title. Additionally, there was no agreement or shared intention between Jennifer and Derek at the time of the transfer that Derek would hold the property in trust for her.

Outcome

The court ruled that Jennifer did not retain a beneficial interest in the property. As a result, the judgment creditor, Cardero, was entitled to the Jennifer Balance. Jennifer’s petition was dismissed, and Cardero’s application was granted with costs awarded against Jennifer.