Mar 17, 2014

Summary of Moody v. Ashton

Moody v. Ashton, 2004 SKQB 488 (CanLII)
The plaintiffs (the Moodys) are unpaid execution creditors of the defendant Brent Ashton, who has no assets. The Moodys sue for a declaration that certain financial transactions entered into by Brent and the other defendants are fraudulent conveyances and void against the Moodys as Brent's creditors. In the alternative they seek a declaration that the defendant Susan Ashton, who is Brent's wife, holds certain assets in trust for them as Brent's creditors. The defendant corporation is a holding company of which Brent is the sole officer, director and shareholder. At trial, the Moodys relied on their resulting trust position and the Statute of Elizabeth. They did not press their claim pursuant to The Fraudulent Preferences Act and the Court's analysis was restricted to these two grounds. The primary issue is whether Brent divested himself absolutely of the assets at issue that he gave or transferred to Susan and, if Susan does not hold the assets for Brent by means of a resulting trust, whether the various transfers of the assets at issue were fraudulent conveyances.HELD: 1) A declaration shall issue that Susan Ashton holds the subject investment portfolio in trust for Brent. There is no evidence that any of the transactions benefited Susan solely or directly. The transactions were for Brent's benefit. It is apparent that some of the transactions were not in Susan's best interests. One of the most persuasive pieces of evidence that Susan does not and did not own the investment portfolio at issue is her evidence at trial that she has lost control of it and has little knowledge of it. This evidence also supports the conclusion that the reason she no longer has anything to do with the portfolio is because she has fulfilled the terms of the trust agreement. The cases cited demonstrate that the effect of s. 50(1) of The Family Property Act is not restricted in its application to disputes between spouses. Section 50(1) of the Act is retroactive and applies to the payments made by Brent to Susan. 2) The sheriff is directed, pursuant to The Executions Act, to seize and liquidate the investment portfolio, on the terms as set out. 3) A declaration shall issue that the acquisition of the Manulife Universal Life Insurance Policy by Brent and the payments made by him on the policy, constitute a fraudulent conveyance within the Statute of Elizabeth. If there was no other evidence of fraud in this case and Brent had simply acquired the policy and paid the annual premiums required, it is likely the Court would not have concluded that Brent did so with the intent to defraud his creditors. But he paid a significant amount more on the policy than was required to meet the premiums. As well, the evidence demonstrates that Brent already had another life insurance policy before he acquired the one in question. A second policy for one million dollars of coverage is a bit extravagant for someone who is insolvent or on the brink of insolvency. Another factor that is indicative of Brent's state of mind and his intention is his transfer of the policy to Susan in 1994. 4) An order shall issue directing that pursuant to The Executions Act the Manulife Universal Life policy be delivered up to the Sheriff for liquidation on the same terms as the investment portfolio. 5) In view of the disturbing testimony of Susan as to the uncertainty respecting the present state of the subject investment portfolio, the Court will retain jurisdiction over the relief granted to the plaintiffs. If the relief has been thwarted or rendered nugatory by the removal or dissipation of the investment portfolio, any party may apply for directions respecting the execution of the judgment. 6) The Court proceeded with a fraudulent conveyance analysis on the basis that an agreement of the nature outlined did exist, but did not constitute a resulting trust. There is no explanation as to how Brent came to be penniless within a short time after earning such significant amounts of annual income. The circumstances strongly suggest that fraudulent conveyances were used by Brent to transfer his assets to Susan with the intent and motive of defeating the claims of his creditors. There were several payments made over a period of 14 years. The consequence of that is that, although the circumstances that pertained in 1983 govern the legitimacy of the agreement between Brent and Susan, it is the circumstances that pertained at the time of each successive payment was made that govern the legitimacy of the respective payments. There is no evidence that Brent had debts or potential liabilities of any significance prior to 1989, but the Court was satisfied that as early as 1989 Brent knew that he has incurred a significant liability by entering into the partnerships and by jointly and severally guaranteeing the partnership debts.