K. Ferreira

The plaintiff, a judgment creditor of the defendant Francesco Fiore, brought an action to unwind the transfers of a residential property from Francesco to his son, and subsequently to his daughter.

The plaintiff alleged the transfers were fraudulent conveyances or created a resulting or express trust to shield the property from creditors.

The court found the action was not statute-barred as the 10-year limitation period under the Real Property Limitations Act applied.

While the court did not find sufficient evidence of fraudulent intent or an express trust, it concluded that the transfers lacked consideration and that Francesco retained control and beneficial ownership of the property.

The court declared a resulting trust and ordered the reappointment of a bankruptcy trustee to sell the property and pay creditors.

The moving party, a creditor of the bankrupt, obtained a section 38 order under the Bankruptcy and Insolvency Act to pursue the partition and sale of a property co-owned by the bankrupt and the respondents.

Following the sale, the parties disputed the distribution of the net proceeds held in trust.

The court determined that the moving party was entitled to its costs for the section 38 application and a one-third share of the proceeds.

The court also ordered the respondents to account for funds they improperly drew from a secured line of credit after the partition and sale order was granted.

The respondents' claims for allowances related to mortgage payments and previous line of credit withdrawals by the bankrupt were dismissed.