Judge won’t let man evict ill sister from inherited land

SURREY — A South Surrey man who inherited ten acres from his father has lost his bid in B.C. Supreme Court to have his half-sister evicted as a trespasser.

Terry Nociar tried to have Catherine McCulloch removed from the rural property, which contains a house, workshop, storage sheds, storage trailers and a mobile home, but Justice Terry Schultes wouldn’t permit it.

Terry has lived in the house with his wife and four children since 1998 and Catherine is currently living in their father’s woodworking shop at back of the property.

"I find that the father’s intention was to grant Ms. McCulloch the right to stay in the structure as long as she was in need, and that while he did not explicitly refer to it being for life, he clearly contemplated an indefinite duration," Schultes found. "Whatever changes and declines may have occurred in his mental state closer to the time of his death, it has not been argued, and I would not find on the current evidence, that he lacked any capacity to grant her this right."

The court heard during a trail in New Westminster that Terry is a child of their father John Nociar’s second marriage and Catherine of his first marriage. Until 2008, their father was the sole owner of the land but in May of that year, he gave Terry a one-half interest in it, with "right of survivorship," and the father and son became joint tenants. The land has since been passed on to the son, after the father died in January 2014, at age 83.

When he was alive, John Nociar and his second wife had another home on 109th Avenue in Surrey and Catherine had lived with them there before moving to the South Surrey property.

The court heard Catherine McCulloch, 49, suffers from an auto-immune disorder and allergies to certain materials that are used in constructing homes, making it difficult for her to find housing. She hasn’t been able to work since 1998 and lives on a disability pension

The court also heard of a "personality clash" between her and stepmother at the 109th Avenue property. Another brother, who also lived there, testified that Catherine’s behavior – like letting her pet rabbit roam free in the house – was at times eccentric and irritated the other occupants at the 109th property.

Catherine testified her father told her it was best she had a place of her own and she moved to the South Surrey property on July 1, 2009.

Schultes noted Catherine never paid her father or half-brother anything to occupy the place but made some intermittent payments for electricity, directly to BC Hydro.

Schultes also heard that Terry’s wife told Catherine that her boyfriend couldn’t use the driveway to access her place after 9:30 p.m., but Catherine’s dad put a stop to that.

Terry testified it was his understanding Catherine’s residence there "was always going to be temporary" and described it as "a place for her to stay in time of turmoil."

At the time of the trial, her electricity and water had been cut off. Catherine interpreted this as a campaign of harassment by her half-brother and his wife to get her to leave but Terry maintained this was done for safety reasons and to comply with health and zoning regulations.

He testified the electricity was left off following an inspection after a storm in March 2013 that revealed the wiring wasn’t safe. He also said the hydro bill skyrocketed while Catherine was connected on account of numerous electrical devices she had plugged in, and that her water was cut off for fear of sewage backing up into her dwelling because her septic field was failing.

Almost three years after Catherine moved in, in March 2012, Terry formally requested through his lawyer that she vacate the property. Their father was in a care facility at the time and was not called by either party as a witness. He died before Schultes rendered his decision.

Schultes found Catherine McCulloch to be a credible witness who "came across as a rather fragile and guileless person."

The judge found that John Nociar had "explicitly made the structure available to Ms. McCulloch, renovated it and invited her to enjoy the benefit of it" and that her half-brother "took no overt action to assert his rights as a joint tenant to exclude her."

"It is also noteworthy that he took no formal steps to seek her removal until the letter to her from his lawyer in March 2012, almost three years after she moved in," Schultes noted. "The unseemly mischief surrounding her water, electricity and sewer and the reporting of her occupancy to the regulatory authorities were still more recent than that."

He found Terry allowed Catherine to believe, for several years, that she would continue to be allowed to live there and that her reliance on that belief would have "delayed and hindered her" from pursuing alternative accommodation of her own and given the "likely limited supply" of suitable housing, given her allergies, "this would not be a trivial degree of detriment" to Catherine’s interests.

Schultes also found it would be "taking unconscionable advantage of the situation" for her half-brother "to act on his strict legal rights and evict her now.

"He seemed willing to placate his father, while the father was still mobile and healthy, allowing Ms. McCulloch’s expectations of long-term housing security to mount and her pursuit of scarce alternatives to lie dormant," Schultes said. "Once the father was out of the picture a host of objections to her occupancy have rather too conveniently emerged and his formal steps to evict her, which have been available to him since day one, have only more recently been taken."

Schultes said he hopes his judge will be a "catalyst for what should have taken place in the first place – reasonable negotiations between the parties in search of a practical solution that balances the limitations of this particular structure with the father’s clear intention to provide Ms. McCulloch with a place to live."

tzytaruk@thenownewspaper.com

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