(ADAM PROSKIW / iNFOnews.ca)

JUDGE: "ORDERING THE INJUNCTION COULD ENFLAME RATHER THAN ALLEVIATE THE TENSION."

KELOWNA – They lived in the house most of their lives, their mother wanted them to have it, but now a dispute with their uncle and his ex-wife has forced them to move out.

Jordell Andrea Hofmann and her brothers Andrew Anthony Lloyd Bloomfield and Dominic Dale Hofman are currently in a legal battle with their uncle, David Joseph Habib, and his ex-wife, Becky Dee Komant, over a property in East Kelowna.

The siblings say Habib tricked their mother, who was dying from cancer, into signing her share of the property over to them and one of the siblings says he fears for his safety after being allegedly intimidated by Habib's brother, who he calls a 'gang member.'

According to a recently-released judgement, the house belonged to Sally Rene Habib and her brother David and Komant. After Sally died from cancer in August, 2015, her three children believed they were to inherit her share, however David and Becky, who are now divorced, say she transferred her share to them prior to her death.

Sally's three children sought an injunction preventing Komant from evicting them before the question of ownership can be resolved in court.

“The plaintiffs … say that David had tricked Sally into signing the Transfer,” Justice G.P. Weatherill writes. “They allege that David told Sally that she was simply signing mortgage documents that would allow him to refinance the Property and that the mortgage documents would not affect her beneficial one-third ownership.”

Weatherill said Dominic also alleges that he was the victim of family violence.

“Dominic alleges that Dale Habib, David’s brother, is a gang member and threatened him when he refused to vacate the (residence) in November 2016. Dominic says that he is intimidated and does not feel safe living at the (residence.) He suggests an injunction against David and Becky would provide him with some peace of mind.”

But Habib's story is much different. Habib says that in 2004 Sally was in financial trouble and entered into an oral agreement to give up her one-third share to David in exchange for free rent “for the rest of her life.”

“The defendants therefore say that any entitlement Sally had to use the Property terminated on her death.”

Of the three siblings, only Dominic lives in the home, downstairs from where their mother lived for 20 years. The judgement says most of her belongings are still upstairs.

Also named in the suit is a lawyer who the siblings say played a part in tricking their mother. She signed the agreement in December, 2014, nine months before her death.

“Sally signed the Transfer in the presence of the defendant Christopher Charbonneau, a lawyer who, the plaintiffs allege, failed to provide her with proper independent legal advice. The plaintiffs say that had Sally been provided with proper legal advice, she would not have signed the Transfer.”

The defendants deny these allegations and say that the Transfer was made simply to formalize the 2004 agreement. Though a number of changes were made on title over the year, it remains legally in Komant's name.

Despite Sally’s last will and testament, dated one day prior to her death, leaving one-third of her estate to each of her three children, Weatherill denied the injunction, calling Komant the legal owner.

"Becky is the existing owner of the Property; the plaintiffs, on the other hand, have not yet shown any entitlement to own or reside on the Property,” Weatherill said. “The circumstances surrounding the Transfer do raise some concern about the validity of the Transfer. For instance, the documentary evidence suggests that Sally was ill with cancer at the time and may not have been in the right mind to agree to the Transfer, despite the presence of a lawyer, which could lead to the Transfer being set aside.

“Finally, regarding Dominic’s allegations of family violence, I am not prepared to order the injunction on that basis. Dominic says that ordering the injunction may give him some peace of mind but I disagree. In my view, if family tensions do exist between the parties, ordering the injunction could enflame rather than alleviate the tension. I feel as though alternate avenues to resolving any family tensions may be more appropriate in these circumstances.”

They were given until March 1 to remove all belongings and move out.

None of the allegations were proven or considered in the application. Weatherill made no findings of fact on the case itself, which remains in litigation. 

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