Introduction

In the case of Koziey v. Koziey, the Manitoba Court of Appeal addressed a dispute between Peter Koziey and his son, Kevin Koziey, regarding the ownership of a residential property on Waterloo Street in Winnipeg. The key issue was whether Peter’s transfer of property to joint ownership with Kevin constituted a gift or a trust arrangement intended to benefit Peter until his death. The court ultimately upheld the original ruling, finding that the transfer was indeed a gift to Kevin.

Background

Peter Koziey purchased the property, known as Waterloo, in September 2004 and registered it solely in his name. In 2007, he transferred the title to himself and Kevin as joint tenants. This transfer raised questions about Peter’s intentions—whether he intended to gift the property to Kevin or if Kevin was merely holding it in trust for Peter’s benefit.

Peter argued that the transfer was part of his estate planning, asserting that Kevin’s interest was a trust meant to pass to him only upon Peter’s death. To support his claim, Peter presented handwritten notes dated September 2006, which he believed demonstrated his intention to create a trust. However, Kevin contested this interpretation, asserting that the transfer was a gift.

Key Issues in the Case

1. Trust vs. Gift: The court needed to determine whether the transfer of the property was a completed gift or a trust arrangement.
2. Admissibility of Evidence: The relevance of Peter’s handwritten codicils and whether they could be admitted as evidence of his intention. Among other words, these notes include the words “Held in Trust for Kevin”.  Kevin’s objection is that these notes constitute prior consistent statements which are generally inadmissible because of their self-serving nature and “oath helping” qualities.^[1]
3. Use of Post-Transfer Evidence: The court evaluated whether evidence of events occurring after the transfer could inform Peter’s intentions at the time of the transfer.

Court’s Findings

The court’s analysis focused on several key points:

• Peter’s Handwritten codicils: The trial judge found Peter’s handwritten notes were not admissible as strong evidence because they were copies, not “original documents”.^[2] Although they could be considered for limited purposes, the judge determined they did not substantiate Peter’s claims about the nature of the transfer.

Peter argues that these notes are admissible based on s. 58(1) of The Manitoba Evidence Act, C.C.S.M. c. E150, which provides as follows:

58(1) In any legal proceedings where direct oral evidence as to a fact would be admissible, any statement made by a person in a document and tending to establish that fact is, on production of the original document, admissible as evidence of that fact,

(a) if the maker of the statement either

(i) had personal knowledge of the matters dealt with by the statement; or

(ii) where the document in question is, or forms part of, a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and

(b) subject to subsection (2), if the maker of the statement is called as a witness in the proceedings.^[3]

• Post-Transfer Evidence: The trial judge examined evidence from after the transfer, such as who paid for property renovations and how the property was maintained, to assess Peter’s credibility and true intentions. The judge found that the actions and circumstances following the transfer were relevant and indicated that the transfer was more likely a gift.
• Credibility Assessments: The judge determined that Peter and his wife, Phyllis, were not credible witnesses, while Kevin’s account of the situation was more reliable. The judge concluded that Peter’s actual intention was to gift a half-interest in the property to Kevin, effectively rebutting any claims of a resulting trust.

Concluding Comments

The Manitoba Court of Appeal dismissed Peter Koziey’s appeal, affirming that the property transfer to Kevin was a gift since Peter’s actual intention was to gift a half -interest in the property to Kevin. The court had found the presumption of a resulting trust had been rebutted, and the property was to remain owned by Peter and Kevin as joint tenants. The court held that the trial judge correctly considered both the handwritten notes and post-transfer events when determining the parties’ intentions.^[4] This case highlights the importance of clear evidence and credible testimony in property disputes and the complexities involved in establishing the nature of ownership transfers in family contexts.

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[1] Koziey v. Koziey, 2024 MBKB 5 (CanLII), at para 9

[2] Koziey v. Koziey, 2024 MBKB 5 (CanLII), at para 12

[3] Koziey v. Koziey, 2024 MBKB 5 (CanLII), at para 10

[4] Koziey v Koziey, 2024 MBCA 78 (CanLII)