Behiels v. McCarthy, 2010 ABQB 281

Court of Queen ’ s Bench of Alberta Citation: Behiels v. McCarthy, 2010 ABQB 281 Date: 20100428 Docket: 4803 135841, FL03 12745 Registry: Edmonton Between: Valarie Alanna Behiels Plaintiff - and - Hugh Terrance McCarthy Defendant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ I.

Introduction [ 1 ] This is a consolidated trial of the divorce, matrimonial property and constructive trust actions. I previously granted a divorce judgment on April 9, 2010. The Plaintiff has withdrawn her claim for spousal support.

[ 2 ] There now only remains the matrimonial property and the constructive trust actions. In the constructive trust action, the Plaintiff claims certain property or financial entitlements arising from the parties’ pre-marital relationship, which she characterizes as a common-law relationship. The Defendant disputes the character and duration of their pre-marriage interactions. [ 3 ] The Plaintiff and the Defendant first met in 1998. At that time, the Plaintiff was 43 years of age and the Defendant was 56 years of age. At the date of trial, the Plaintiff was 55 years of age. This is her second marriage.

She has three adult children from her first marriage. The Defendant is now 68 years of age. This is his third marriage. He has five adult children from his previous marriages. The parties have no children from their relationship. [ 4 ] The parties’ inter-relationship unquestionably encountered a certain amount of turbulence, and that resulted in a number of shifts in living arrangements and interactions.

Although the parties often disagreed as to the details of their relationship, I conclude that their testimony clearly indicates the following distinct periods: 1. pre-marriage period 1 - October 1999 to October 2000: the parties maintain separate residences; 2. pre-marriage period 2 - October 2000 to January 2003: the parties share a single residence; 3. separation 1 - January to April 2003: the parties no longer live together nor are in a relationship; 4. pre-marriage period 3 - April to October 25, 2003: the relationship resumes but the parties live separately; 5. marriage - October 25, 2003 to March 1, 2005: the parties are married and cohabit; and 6. separation 2 - March 1, 2005 to the date of trial: the parties no longer cohabit, but remain married. [ 5 ] The parties dispute many of the details of their interactions and status during these distinct periods.

However, there are certain points on which there is agreement. At the time when the parties first met the Plaintiff was living in a house located at [...] Wahstao Road (the “Wahstao Property”), and the Defendant was living in a rental property with her three children. [ 6 ] The parties began dating shortly after they met. That soon escalated into an intimate relationship. In October of 1999 [pre- marriage period 1], the Plaintiff moved in with the Defendant at the Wahstao Property. The exact nature of this living arrangement is in dispute.

What is clear is that prior and after that move, the Plaintiff had leased a residential condominium unit and a parking stall in a condominium complex for use by the Defendant. Her sons and daughter also lived at the rented condominium unit. [ 7 ] The condominium unit lease was due to expire on October, 2000.

At that point [pre-marriage period 2] the Plaintiff and the Defendant agreed that the Plaintiff’s two sons would move in with the Plaintiff and the Defendant at the Wahstao Property; the condominium unit was vacated. [ 8 ] The Plaintiff’s twin adult sons were a source of tension between the parties, and they moved in and out of the Wahstao residence. In July of 2001 the Plaintiff’s two sons moved out of the Whastao Property and moved to Calgary to live with their father for the school year 2001/2002.

A few months after completion of the 2001/2002 school year, the Plaintiff’s two sons returned to the Wahstao Property. The Plaintiff and the Defendant became engaged in October of 2001, with the thought of soon marrying on a forthcoming cruise vacation. That cruise vacation however led to a disagreement between the Plaintiff and Defendant as they disputed whether the two sons should remain in the Wahstao Property while the Plaintiff and the Defendant were on the cruise. This dispute led to the Plaintiff and her two sons moving out of the Wahstao Property in approximately late January or early February of 2003.

[ 9 ] The parties agree that the intimate relationship ended at that point, and that for the next several months [separation 1] there was little to no contact between the parties. [ 10 ] In April of 2003 [pre-marriage period 3], the Plaintiff and the Defendant again met and in May of 2003 they began to see each other regularly. The Plaintiff and the Defendant again agreed to marry, however the Plaintiff did not move back with the Defendant at the Wahstao Property. They instead agreed that the Defendant would sell the Wahstao Property and the parties would acquire a new home.

In September of 2003, the Wahstao Property was sold and the Plaintiff and the Defendant acquired in joint names a house located at [...] Bainbridge Crescent (the “Bainbridge Property”). [ 11 ] In September of 2003, the Plaintiff and the Defendant moved into the Bainbridge Property. On October 25, 2003 (the “Date of Marriage”), the Plaintiff and the Defendant were married.

During the time [marriage] that the Plaintiff and the Defendant cohabited at the Bainbridge Property, the Plaintiff and the Defendant jointly shared the Defendant’s Alberta Treasury Branch bank account and each party’s employment income was deposited to this joint bank account.

At the Plaintiff’s suggestion, the parties implemented a payment plan by which the Plaintiff would contribute financially towards the payment of all mortgage payments, taxes, utilities, groceries, and other household expenses related to the Bainbridge Property. [ 12 ] On March 1, 2005, (the “Date of Separation 2”), the Plaintiff left the Defendant and as at the date of trial there has been no reconciliation between the parties. From the Date of Separation 2 to the date of trial, the Defendant continued to reside in the Bainbridge Property, and the Plaintiff has resided in rental accommodations. II.

Issues [ 13 ] The Plaintiff makes claims that extend from pre-marriage period 1 through to separation 2. As a consequence, I must characterize the state of the parties’ inter-relationship throughout the identified periods, both personal and financial. Different legal principles govern persons in a marriage versus common-law relationships, a distinction which Basterache J. in Nova Scotia (Attorney General) v.

Walsh , 2002 SCC 83 at para. 55 , [2002] 4 S.C.R. 325 noted as being a reflection of personal and conscious choice of parties in how they organize their affairs. [ 14 ] In the present matter that means that a separate analyses must be conducted of the interactions and implications of the parties’ conduct during the periods I have identified, in accordance with the following: (

a) the nature of the pre-marital relationship and its legal consequences, for: i. pre-marriage period 1, ii. pre-marriage period 2, and iii. pre-marriage period 3; (

b) distribution of matrimonial property; and (

c) costs. III. Analysis

A. Pre-marital Relationship [ 15 ] The Plaintiff claims a constructive trust based on unjust enrichment for the period from October of 1999 to January of 2003 [pre-marriage periods 1 and 2]. She alleges that during this period the Plaintiff and Defendant were in a common-law relationship. The Defendant denies a pre-marital common-law relationship, and instead characterizes their pre-marital relationship as more similar to “dating” or “courting”. [ 16 ] Unlike persons divorcing after a marriage, individuals in a common-law relationship are not presumed to have any right to claim their partner’s property.

This rule was succinctly stated by Russell J. in Panara v. Di Ascenzo , 2005 ABCA 47 at para. 22 , 361 A.R. 382: In a common law relationship there is no presumed entitlement to property sharing. However, remedies are available to unmarried partners who are unfairly disadvantaged upon breakdown of the relationship...

Any claim must therefore have a basis in equity. [ 17 ] The Plaintiff’s claim requires that she prove on a balance of probabilities two issues: 1. the existence of a common-law relationship, and 2. unjust enrichment of the Defendant that arises from the common-law relationship. [ 18 ] Unjust enrichment has three elements: (

a) an enrichment; (

b) a corresponding deprivation; and (

c) the absence of a juristic reason for the enrichment. See Panara v. Di Ascenzo , at para. 22 , and see also Peter v. Beblow , 1993 CanLII 126 (SCC) , [1993] 1 S.C.R. 980 at 987-89, 101 D.L.R. (4th) 621; Sorochan v. Sorochan , 1986 CanLII 23 (SCC) , [1986] 2 S.C.R. 38 at 44, 29 D.L.R. (4th) 1; and Pettkus v. Becker , 1980 CanLII 22 (SCC) , [1980] 2 S.C.R. 834, 117 D.L.R. (3d) 257 [ 19 ] If an unjust enrichment has occurred, the appropriate remedy (monetary award versus constructive trust) is then identified: Peter v. Beblow , at para. 3 ; Czaplinska v. Caravaggio , 2006 ABQB 615 at para. 57 , 63 Alta.

L.R. (4th) 125; F.D.R. v. M.D.P. , 2006 ABQB 202 at paras. 25-33 , 25 E.T.R. (3d) 103. 1. Existence of a common-law relationship [ 20 ] The first question is whether the parties were in a common-law relationship?

[ 21 ] In Wright-Watts v. Watts , 2005 ABQB 708 at paras. 17-19 , 387 A.R. 293, McMahon J., identifies factors first enumerated in Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC) , 17 R.F.L. (2d) 376 at 381-382, 2 A.C.W.S. (2d) 486 (Ont. Dist. Ct.) that assist in determining the existence of a common-law relationship: 17 A useful list of factors to consider in determining the existence of a common law relationship was provided by Kurisko Dist. Ct. J. in Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC) , 17 R.F.L. (2d) 376 at 381-382 (Ont. Dist. Ct.): 1. Shelter: (

a) Did the parties live under the same roof? (

b) What were the sleeping arrangements? (

c) Did anyone else occupy or share the available accommodation? 2. Sexual and Personal Behaviour: (

a) Did the parties have sexual relations? If not, why not? (

b) Did they maintain an attitude of fidelity to each other? (

c) What were their feelings toward each other? (

d) Did they communicate on a personal level? (

e) Did they eat their meals together? (

f) What, if anything, did they do to assist each other with problems or during illness? (

g) Did they buy gifts for each other on special occasions? 3. Services: What was the conduct and habit of the parties in relation to: (

a) preparation of meals; (

b) washing and mending clothes; (

c) shopping; (

d) household maintenance; and (

e) any other domestic services? 4. Social: (

a) Did they participate together or separately in neighbourhood and community activities? (

b) What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties?

5. Societal: What was the attitude and conduct of the community toward each of them and as a couple? 6. Support (economic): (

a) What were the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.)? (

b) What were the arrangements concerning the acquisition and ownership of property? (

c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship? 7. Children: What was the attitude and conduct of the parties concerning children? 18 In M. v. H., 1999 CanLII 686 (SCC) , [1999] 2 S.C.R. 3 at para. 59 , a majority of the Supreme Court of Canada, per Cory and Iacobucci JJ., said that the Molodowich factors are the "generally accepted characteristics of a conjugal relationship" and that not all are necessary to establish a conjugal relationship.

At para. 60, they further said that the weight to be accorded the factors to be considered in determining whether a conjugal relationship exists will vary widely and almost infinitely . The Molodowich factors have been cited with approval by this Court in Spracklin v. Kichton (2000), 278 A.R. 27, 2000 ABQB 812 ; Diebert v. Calder (2001), 289 A.R. 228, 2001 ABQB 187 ; Medora v.

Kohn (2003), 336 A.R. 163 , 2003 ABQB 700 ; and Spracklin (2003). [Emphasis added.] Clearly, existence of a common-law relationship is highly dependent on the context of the circumstances and nature of the interactions between two non-married persons. [ 22 ] McMahon J. then continued at para. 19 to review case-law that considered the relevance of cohabitation: 19 A common law relationship can exist, albeit atypically, in the absence of a shared residence . For example, in McEachern v. Fry Estate, [1993] O.J. No. 1731 (Gen.

Div.) , the parties met later in life and were constant companions for 15 years before one of them died. Although they spent much time in each other's residences, they maintained separate residences. In all the circumstances, Sheppard J. found continuous cohabitation. On the other hand, in Smithson v. Bock Estate (1998), 217 A.R. 50 , 1998 ABQB 110 , this Court found cohabitation began when one party moved his belongings into the other party's residence.

The parties' preceding intimate relationship spanning eight or nine years was merely "courting" or "dating" and not to be considered cohabitation for the purpose of determining legal rights. Smithson was followed by this Court in Diebert in finding that the parties were in a common law relationship for the entire period that they were together excluding the dating period, in other words, for the period that they were living together at the acreage owned by one of the parties. [Emphasis added] [ 23 ] The Molodowich v. Penttinen criteria and the cases referenced by McMahon J. in Wright-Watts v.

Watts will now be applied to the pre-marriage periods identified above. a. pre-marriage period 1 [ 24 ] During pre-marriage period 1, the evidence as presented at trial shows that the Plaintiff maintained her own residence, a leased condominium unit. Her two sons and her daughter resided there throughout this period. The Plaintiff testified that during this period she would from time to time return to the condominium unit either by herself or in the company of the Defendant. During this

time, the Plaintiff did not move any of her furniture into the Wahstao Property and had only brought in her clothing and personal effects. [ 25 ] The Defendant testified that during pre-marriage period 1, although the Plaintiff may have stayed over from time to time at the Wahstao Property, that cohabitation was not continuous. He understood he and the Plaintiff were dating or courting one another. [ 26 ] The Plaintiff testified that while she resided with the Defendant at the Wahstao Property, she painted the fence and deck and assisted the Defendant in house keeping matters.

I note that the Plaintiff did not provide detailed information on when these services were provided, as no specific dates were provided by the Plaintiff. I can therefore only assume that certain of these services may have been provided during the pre-marriage period 1. [ 27 ] Furthermore, although the Plaintiff testified that she had contributed to certain household duties, I conclude that participation was relatively minimal.

The Defendant testified that he was, in his words a “clean freak” and that in his previous marriages, it was his personal preference to be responsible for the housecleaning and that remained so with respect to the Wahstao Property. In fact, the Defendant testified that he had a system for housecleaning and that he would leave work early for such purpose.

I accept this evidence, noting that the parties agreed that the Defendant’s approach to household cleanliness and organization was the seed for the tensions involving the Plaintiff’s sons. [ 28 ] The Defendant further testified that he would prepare his own breakfast and lunch, he would mostly eat out for supper, and that it was his custom to have weekly barbecues on Sunday with his family and that at these times the Plaintiff’s family would be invited. [ 29 ] Considering all of the evidence, in my opinion, the evidence does not support the existence of a common-law relationship between the Plaintiff and the Defendant during pre-marriage period 1.

Although it can be said that from time to time the Plaintiff and the Defendant may have shared the same accommodation at the Wahstao Property, and indeed may have had intimate relations during this time, that is not enough; more is required in order to establish the existence of a common-law relationship. [ 30 ] I agree with McMahon J. that a common-law relationship in the absence of a shared residence is “atypical”.

Had the Plaintiff continuously cohabited with the Defendant at the Wahstao Property instead of returning to her condominium unit, that would indicate that the Plaintiff’s home was with the Defendant at the Wahstao Property, and that they were indeed a couple. This conclusion would have further been bolstered had the Plaintiff provided evidence to the effect that the parties had consolidated their property in one location, specifically that the Defendant had moved her entire belongings, including household furniture into the Wahstao Property.

That clearly was not the case here. [ 31 ] Indeed, the Plaintiff’s habit of staying at the Wahstao Property can simply be understood as a question of privacy. The parties unsurprisingly chose to share time together in a location which was not shared by other adults, in an intimate relationship that was less a question of cohabitation than privacy and convenience.

As stated previously, the evidence falls short of substantiating a common-law relationship between the Plaintiff and the Defendant during pre-marriage period 1. b. pre-marriage period 2 [ 32 ] With respect to pre-marriage period 2, the evidence discloses that the relationship between the Plaintiff and the Defendant underwent dramatic changes. The Plaintiff did not renew her condominium unit lease; her only place of residence was the Wahstao Property. The Plaintiff and her two sons moved themselves and their furniture and personal effects into the Wahstao Property with the Defendant.

For the Plaintiff the Wahstao Property was now a true shared home, not a ‘residence of convenience’. [ 33 ] Concurrently there was a fundamental change in the economic integration of the parties. Up to this point their finances were entirely separate. The Plaintiff was added as a party to the Defendant’s MasterCard and line of credit. The Defendant testified that the Plaintiff made regular $250 monthly payments to the Defendant, and was responsible for the cost of her and her sons’ groceries.

Later, the Plaintiff increased that monthly payment to $500, in order to assist the Defendant in making his car payments. [ 34 ] Certain pre-marriage period 1 activities continued, including the weekly Sunday barbecues with both the Plaintiff’s and the Defendant’s family members. The Defendant maintained his housecleaning program. As stated previously, the Plaintiff testified that

while she resided with the Defendant at the Wahstao Property she painted the fence and deck and assisted the Defendant in housekeeping matters at certain unspecified dates. Again, I can only assume that certain of these services may have been provided during pre-marriage period 2. However, the Defendant testified that at this time there were no prescribed household duties for the Plaintiff to perform, and I conclude that was the case. [ 35 ] Social integration increased. The Plaintiff testified that during this period of time, she and the Defendant went out together on numerous occasions and vacations.

That said, the Defendant had a different perspective of their inter-relationship during pre-marriage period 2, and still characterized their relationship as dating or courting, even though the parties continued their intimate relationship. [ 36 ] With respect to the Plaintiff’s children, and more specifically her two twin sons, they resided with the Plaintiff and the Defendant for approximately one year. The evidence shows that the Defendant played no parental role with respect to these two boys. As such, the Plaintiff was solely responsible for any and all of their care, including behavioural discipline.

Both sons testified that they were active participants in the weekly Sunday barbecues. Furthermore, the Plaintiff testified that in September of 2001 or possibly earlier, the Defendant had placed the Plaintiff and her two sons under the Defendant’s Alberta Health Care coverage. [ 37 ] I conclude from all this evidence combined, it would indicate that the Plaintiff and the Defendant were a couple cohabiting as a domestic unit in a common-law relationship during the pre-marriage period 2.

Particularly relevant factors are the absence of any second residence, and the economic integration of the parties in supporting the Wahstao residence. c. separation 1 [ 38 ] At trial the Plaintiff conceded that immediately after separation 1, the parties lived separately and there was only very minimal communication, and certainly no intimacies. This was a significant interruption in the relationship. No common-law relationship therefore existed between January to April 2003. d. pre-marriage period 3 [ 39 ] The parties’ relationship during pre-marriage period 3 is again very different from the preceding periods.

The Plaintiff and the Defendant no longer reside together at the Wahstao Property, and only shared accommodation for a brief period of approximately two weeks while the Defendant moved himself and his furniture into the Plaintiff’s residence. This two week period was between the closing of the sale of the Wahstao Property and the time that the Bainbridge Property was ready for occupation. If anything, the evidence indicates that the Defendant was merely the Plaintiff’s guest at her residence, much the same as if the Plaintiff and the Defendant had gone off together for an extended vacation.

That transient period of joint occupancy is therefore essentially irrelevant. [ 40 ] The parties re-established an intimate relationship and were anticipating marriage. Pre-marriage period 3 saw further economic integration between the parties. The Plaintiff and the Defendant planned and proceeded to jointly obtain the Bainbridge Property.

The Plaintiff was added to the Defendant’s Alberta Treasury Branch bank account, making it a joint bank account. [ 41 ] However, it would appear that the Defendant was responsible for all costs associated with the acquisition of the Bainbridge Property and that the Plaintiff contributed no funds or labor with respect to the acquisition and the readying of the Bainbridge Property for occupation by the Plaintiff and the Defendant.

In that sense he acted unilaterally. [ 42 ] I conclude that the evidence falls short of confirming the existence of a common-law relationship between the Plaintiff and the Defendant during the pre-marriage period 3. They had an intimate relationship, but separate households. What the evidence instead very clearly demonstrates is that there was a plan underway to establish not a new common-law partnership, but rather a marriage. In light of the Supreme Court of Canada’s instruction in Nova Scotia (Attorney General) v.

Walsh that the courts should respect the interpersonal planning of couples, I conclude that there was no common-law relationship during pre-marriage period 3, but instead preparations for the subsequent marriage.

2. Unjust enrichment during pre-marriage period 2 [ 43 ] As stated previously, on proof of a common-law relationship, the Plaintiff may be entitled to a remedy based on unjust enrichment if she can establish the three elements of an unjust enrichment: an enrichment, a corresponding deprivation, and the absence of a juristic reason for the enrichment. [ 44 ] I have determined that a common-law relationship between the Plaintiff and the Defendant existed only during pre-marriage period 2, from October 2000 to January 2003.

Any relevant unjust enrichment therefore must have occurred during that particular period. a. legal principles on unjust enrichment [ 45 ] There is an abundance of case law surrounding the issue of enrichment in a family law context. That said, many cases are not easily reconcilable with the other and each case must turn on its own facts. Nevertheless, the underlying equitable principles that govern this analysis are well established.

Ultimately, the test is one of fairness - has one partner benefitted from the other without reason? [ 46 ] The Plaintiff argues she is entitled to a constructive trust as against the Defendant principally on the basis of her domestic and financial contributions. [ 47 ] There is a plethora of case law that holds that the provision of domestic services by one person for another may enrich the recipient. In Hantel v. Hilscher , 2000 ABCA 84 at para. 10 , 255 A.R. 187, the Alberta Court of Appeal remarked that: It is clear from Peter v.

Beblow , 1993 CanLII 126 (SCC) , [1993] 1 S.C.R. 980, that childcare and housekeeping are valuable benefits and the presence of a spouse-like relationship does not provide a juristic reason for the conferral of those benefits without compensation. [ 48 ] In Peter v. Beblow the plaintiff was an unpaid housekeeper who took care of all of the housekeeping including cooking, laundry, cleaning, snow shoveling and child care. She also undertook various projects to improve the property including fence painting and gardening. The defendant owned the property and also assisted the plaintiff in maintaining it.

The Court concluded at pp. 989, 994 that the plaintiff’s contribution towards the maintenance of the property and the performance of essential domestic work allowed the defendant to pay down the mortgage and acquire other assets. He was therefore enriched by the plaintiff’s labour. This decision thus continues the reasoning in Sorochan v. Sorochan , 1986 CanLII 23 (SCC) , [1986] 2 S.C.R. 38 at 51, 29 D.L.R. (4th) 1, where the Supreme Court of Canada determined that any unpaid performance of domestic duties in any relationship amounts to an “enrichment”. [ 49 ] Similarly, in Czaplinska v.

Caravaggio , at para. 58 , Park J. held that the plaintiff's efforts in performing household tasks enriched the defendant. [ 50 ] With respect to financial contributions, our Court of Appeal has in Kazmierczak v. Kazmierczak , 2003 ABCA 227 at para. 83 , 17 Alta. L.R. (4th) 205, provided a useful commentary on situations where two people live together as a couple and each contribute goods, services or money to the relationship: When a couple live together for some time, it is natural that one will provide some goods, services or money, and the other will provide other goods, services or money.

One may shovel the walks and another wash the dishes. One may raise the children and administer the home and family, the other earn money. If their contributions are about even, no one is hurt and there is nothing to remedy. In principle there is no unjust enrichment . [Emphasis added.] Where both parties contribute to the homemaking costs and activities, then it is the relative magnitude of those contributions that indicates who has been enriched, and who has been deprived.

b. the alleged unjust enrichment i. homemaking and financial contributions [ 51 ] The Plaintiff claims that the Defendant has been enriched by the Plaintiff’s homemaking contributions. She provided house and yard maintenance, and other domestic services that allegedly preserved and improved the Wahstao Property. However, I have concluded that the Defendant maintained his housecleaning program throughout and there were no prescribed household duties for the Plaintiff to perform. [ 52 ] The present case is to be distinguished from homemaking contribution cases such as Czaplinska v. Caravaggio and Peter v. Beblow .

In the former case the Court found that the plaintiff’s housekeeping, home renovations and gardening services were extensive and varied, that the defendant received the benefit of these domestic services with no specific payment by him in return; as a result he was enriched. In the present case, if any enrichment does exist, that enrichment is, to say the least, modest.

The parties did not live together as husband and wife in a lengthy common-law relationship, where the primary duty of the spouse claiming unjust enrichment was to remain in the home and look after all day-to-day household matters, releasing the other spouse to further their interests and increase their financial position. [ 53 ] In that sense this is not the same scenario identified by McLachlin J. in Peter v.

Beblow , where at para. 19 , she quoted Lord Simon as stating that, “The cock-bird can feather his nest precisely because he is not required to spend most of his time sitting on it” (“With All My Worldly Goods,” Holdsworth Lecture (University of Birmingham, 20th March 1964), at p. 32). As stated previously, the evidence shows the Defendant’s personal preference for housecleaning. The Defendant did not rely on the Plaintiff to prepare meals.

The Defendant testified that given the nature of his employment, he did not work a typical 9 to 5 work day and as many as three nights a week he would be required to work in the evening, he prepared his own breakfast and lunch, and that he would mostly eat out for supper. The Defendant testified that he was seldom at the Wahstao Property for daily meals. [ 54 ] Financially, the Plaintiff points to the fact that during pre-marriage period 2, she paid the Defendant $250 a month, plus the cost of all groceries used by herself and her two sons.

She further points to the fact that when the Defendant required additional funds to make his car payments, she increased the monthly payment to $500. [ 55 ] The Plaintiff notes that during pre-marriage period 2 the Defendant’s balance of principle owing on the Wahstao Property mortgage was reduced significantly, and she claims that this decrease is a direct consequence of her financial assistance. The Defendant testified during cross-examination that his practice was to annually pay down the maximum amount as against the principal outstanding on the mortgage and that this explains the reduction in such balance.

I therefore conclude that the mortgage balance is of limited probative value. [ 56 ] What benefit then did the Defendant receive as a result of the contributions and services provided by the Plaintiff? If anything, by receiving lodging for herself and her two sons in return for the Plaintiff’s small monetary payment and limited domestic service contributions, it was the Plaintiff rather than the Defendant who was enriched.

I conclude there was really no material and substantial homemaking and financial contributions by the Plaintiff to the Wahstao Property that would support an enrichment on the part of the Defendant. ii. emotional relationship and companionship [ 57 ] An argument can be advanced that during pre-marriage period 2 the Defendant was enriched as a result of the Plaintiff’s personal contribution to the relationship.

This argument is that the Defendant enjoyed a semblance of a quasi-marital relationship that gave the Defendant a wife-like partner with whom to speak, to travel, and with whom to share his accommodations, effectively a person analogous to a wife. Reciprocally, is the Plaintiff entitled to be compensated for the emotional loss associated with the ending of any such relationship? [ 58 ] Our Court of Appeal in Panara v. Di Ascenzo at paras. 22-23 , while interpreting Nova Scotia (Attorney General) v. Walsh and the nature of unjust enrichment, emphasized the material and tangible character of an unjust enrichment:

23 In the context of establishing unjust enrichment arising from a common law relationship, the provision of domestic services may constitute an enrichment and the devotion of free labour may constitute a corresponding deprivation because a common law spouse has no general legal duty to perform work and services for his or her partner: Sorochan at 46; Peter at 991.

In other words, the relationship alone does not constitute a juristic reason for the enrichment . [Emphasis added.] [ 59 ] However, the character of a couple’s interactions can affect whether the appropriate remedy for an unjust enrichment is a constructive trust or a monetary award.

Writing for the majority, Russell J.A. continued at para. 56: 56 In his article, "The Measure of Restitution" (Spring, 2002), 52 Univ. of Toronto L.J. 163, Mitchell McInnes submits that the only logical remedy to address an unjust enrichment claim is restitution, on the basis that it re-establishes an equilibrium between the parties by accounting for both the plaintiff's loss as well as the defendant's gain . This view accords with La Forest J.'s in Lac Minerals.

In the context of a dissolved common law relationship, McInnes, at 207, argues that restitution is often not an appropriate remedy and that an action in unjust enrichment "cannot begin to adequately articulate the plaintiff's grievance." Of the plaintiff in such an action, McInnes writes: While she may be forced by precedent to express herself through the medium of subtractive enrichment, she is not primarily aggrieved by the fact that she gave something to the defendant that she wants back. The gist of her complaint is much more profound.

She contributed, both materially and emotionally, to an intimate relationship in the belief that it would continue indefinitely. That relationship, by its nature, ineluctably spoke to the future, not to the past. It proceeded on the premise of an enduring partnership to which both members contributed and in which each member shared. True restitution, consequently, cannot provide appropriate redress when those assumptions are disappointed. Mere restoration of the status quo ante would disregard, if not distort, the essence of the underlying relationship.

What is required is a remedy that recognizes the unique bond that developed between the parties and that fulfills their associated economic expectations. [Emphasis added.] [ 60 ] It should be specifically noted that Park J. in Czaplinska v. Caravaggio , at para. 74 , cited these same passages from McInnes and ordered a constructive trust. In that sense the emotional bond, interactions, and relationship expectations between a common-law couple may be relevant in a court’s determination of whether the harm to a common-law spouse can be remedied by a simple monetary award.

A purported life-long and tightly integrated common-law couple more likely requires a trust-based remedy. However, this consideration is specifically relevant in determining the kind of remedy once unjust enrichment is established . It is not the basis for an unjust enrichment in itself. [ 61 ] Even if I am incorrect on this point, the relationship between the parties here is very different from that described in Czaplinska v. Caravaggio , where the couple had an extended and loving relationship based on the couple forming a life-long partnership in which they lived together in their ‘dream home’.

In the case at bar, the parties’ household was hardly idyllic during the pre-marriage period 2. The Plaintiff’s two sons and the Defendant enjoyed a relationship which in its remotest sense was far from amicable. The Plaintiff testified that the Defendant did not appreciate the manner in which her two sons kept their accommodations and that this was always a matter of discord between him and the Plaintiff’s two sons. Furthermore, the Defendant testified that he liked his house kept clean and that when the Plaintiff’s two sons moved to Calgary to be with their father, he was in his words, “in heaven”.

During at least one half of pre-marriage period 2 the relationship that existed between the Plaintiff and the Defendant was nothing like the “intimate relationship” that was referenced by Mitchell McInnes in his article, The Measure of Restitution (Spring, 2002), 52 Univ. of Toronto L.J. 163. [ 62 ] Accordingly, I find that the Defendant has not been enriched as a result of the financial contributions and domestic services provided by the Plaintiff, nor by the Plaintiff’s presence or emotional contribution to their relationship.

The first part of the test for a case of unjust enrichment as against the Defendant has therefore not been established. Although this would normally end the matter, nonetheless, I feel that it is warranted to discuss the remaining two elements requisite for a finding of unjust enrichment. b. the alleged corresponding deprivation [ 63 ] The next step in an unjust enrichment analysis is to determine whether the Plaintiff suffered a deprivation that corresponds to

the enrichment received by the Defendant. In Panara v. Di Ascenzo , our Court of Appeal noted at para. 30 a crucial factor, “[t]o succeed in an unjust enrichment claim, any deprivation found must correspond to the enrichment...”. A corresponding enrichment is one that is “causally connected” to the deprivation: Panara v. Di Ascenzo , at para. 30 . [ 64 ] The evidence clearly establishes that during pre-marriage period 2 the financial affairs of the Plaintiff and the Defendant were principally independent though there was some interaction and inter-relation.

That makes it difficult for the Court to evaluate to what extent either party was enriched or deprived. What is agreed is that the Plaintiff did make certain financial contributions; the Plaintiff paid the Defendant $250 a month, and covered the cost of all groceries used by herself and her two sons. The monthly amount was subsequently increased to $500. [ 65 ] Assuming that the Defendant was enriched as a result of the financial contributions and domestic services provided by the Plaintiff, and/or by the Plaintiff’s presence in their relationship, what is the corresponding deprivation?

The Plaintiff, by entering the relationship with the Defendant, to a certain extent provided the Defendant with some semblance of a familial home life. However, upon closer examination of the Plaintiff’s contributions and services provided, and the relationship created, it cannot be stated that the Plaintiff experienced a deprivation because of the relationship. [ 66 ] The Plaintiff continued to earn employment income or obtained unemployment insurance benefits during pre-marriage period 2. She deposited her income cheques into her own personal bank account.

Although the Plaintiff did assist with certain domestic services in the Wahstao Property, her involvement was limited. These activities could very well be categorized as necessary tasks for one roommate who shares accommodations with another.

With respect to the Plaintiff’s financial contributions to the relationship during pre- marriage period 2, although the Plaintiff made a monthly financial contribution, I conclude these contributions were merely intended to reimburse the Defendant for the cost incurred by the Defendant in permitting the Plaintiff and her two sons to reside with the Defendant at the Wahstao Property. [ 67 ] Furthermore, the monthly amounts are far less than what she would otherwise be required to spend on her own home had she not cohabited with the Defendant. This situation is analogous to Goddard v.

Hambleton , 2005 NSCA 124 , 237 N.S.R. (2d) 1 where J.E. Fichaud, J.A stated at para. 11: There was no "deprivation". Part of Mr. Goddard's monthly contribution was applied to Ms. Hambleton's mortgage payments from October 1994 through April 1997. In return Mr. Goddard and his son lived rent free in Ms. Hambleton's home for the same period. There was no evidence as to what an appropriate occupation rent would be for similar premises. It may be that the rent which Mr. Goddard saved would exceed the amount of his contribution to the mortgage payments. Without evidence on that matter, Mr.

Goddard has not proven "deprivation", the second element of unjust enrichment. [ 68 ] I fail to see where the Plaintiff has suffered any deprivation that corresponds to any enrichment to the Defendant. If anything, the Plaintiff has been enriched from the relationship with the Defendant. She and her sons lived in what was essentially subsidized housing, provided for by the Defendant.

The Plaintiff has therefore failed to establish as against the Defendant the second part of the test for an instance of unjust enrichment. c. absence of a juristic reason [ 69 ] Again, the finding that the second of the three elements of an action in unjust enrichment was not made out would normally end this matter. Nonetheless, I will comment on the third part of the test, being an absence of a juristic reason. [ 70 ] It has long been established that the existence of a contract between persons is a juristic basis for an enrichment and deprivation: Rathwell v.

Rathwell, 1978 CanLII 3 (SCC) , [1978] 2 S.C.R. 436 at 455, 83 D.L.R. (3d) 289. [ 71 ] As previously stated, the parties had agreed that the Plaintiff would pay the Defendant monthly, $250 and later $500, plus the cost of all groceries used by herself and her two sons. An oral agreement on splitting expenses, such as the arrangement between the

Plaintiff and the Defendant, constitutes an adequate juristic reason that negates the third element for establishing a case of unjust enrichment. That was the conclusion of the Nova Scotia Court of Appeal in Goddard v. Hambleton , where J.E. Fichaud, J.A stated at para. 12: 12 There was a juristic reason for Mr. Goddard's contribution. The parties had agreed that they would evenly split living expenses. The living expenses included the monthly mortgage payments which were necessary to provide shelter. This allowed Mr. Goddard and his son to live rent free in Ms. Hambleton's home. There was a contract between Mr.

Goddard and Ms. Hambleton, with consideration moving from each party. Contract is an established juristic reason under the third element in the cause of action for unjust enrichment : Garland v. Enbridge Gas Distribution Inc ., 2004 SCC 25 (CanLII) , [2004] 1 S.C.R. 629, at para. 44 , per Iacobucci, J. for the Court. [Emphasis added.] [ 72 ] Even if a benefit and corresponding deprivation were to have been made out, the presence of the oral agreement between the Plaintiff and the Defendant to share expenses relative to the Wahstao Property provides a juristic reason for that benefit.

Accordingly, the Plaintiff’s constructive trust claim premised on the existence of a pre-marital common-law relationship and an unjust enrichment on the part of the Defendant must fail. B. Distribution of Matrimonial Property 1. Effect of joint title in the Bainbridge Property [ 73 ] There is no question that the Defendant had full legal and equitable title to the Wahstao Property. However, during pre- marriage period 3 he sold that property, and the proceeds were used in part to acquire the Bainbridge Property, which was registered in the names of both the Plaintiff and Defendant.

That joint ownership has implications on who has rights to the Bainsbridge Property. [ 74 ] During closing argument, counsel for the Defendant conceded and Plaintiff’s counsel agreed with the fact that when the Defendant placed the title of the Bainbridge Property in the joint names of the Plaintiff and the Defendant, the Defendant intended to gift the Plaintiff a 25% interest in the Defendant’s equity in the Wahstao Property. Counsel for the Defendant conceded Harrower v. Harrower (1989), 1989 CanLII 221 (AB CA) , 97 A.R. 141, 68 Alta. L.R. (2d) 97 (Alta. C.A.) and Jackson v.

Jackson (1989), 1989 ABCA 197 (CanLII) , 97 A.R. 153, 68 Alta. L.R. (2d) 118 (Alta. C.A.) applied to the facts of the present case. In Jackson v. Jackson , Stevenson J.A., concluded that: ... putting exempt properties in both names evinces a presumed intention to subject the gift to the matrimonial property regime or removing it from the protection given exempt properties. [ 75 ] In Jackson v. Jackson , the Alberta Court of Appeal upheld the decision of the trial judge, by which one-half of the exemption was allocated to the husband and the other half was apportioned as non-exempt matrimonial property.

Applying Jackson v. Jackson , to the case at bar, the net effect is that at the Date of the Marriage, the Plaintiff was entitled to 25% of the Defendant’s equity in the Wahstao Property. Despite counsels’ agreement to this entitlement, the evidence and the applicable law support such conclusion, and I so confirm. 2. Principles governing matrimonial property division [ 76 ] Division of matrimonial property in Alberta is governed by the Matrimonial Property Act , R.S.A. 2000, c. M-8 (“ MPA ”).

Section 7 of the MPA sets out a scheme for the distribution of property between spouses based upon a legal presumption of equal distribution. An unequal distribution of non-exempt property may only be made where, after considering the factors in

section 8, the Court concludes it would be unjust or inequitable to divide the property equally. [ 77 ] Paperny J.A. in Jensen v. Jensen; J. (D.) v. J. (M.); D.R.J. v. M.J. , 2009 ABCA 272 at paras. 17-23 , 464 A.R. 16 reviewed the relevant principles that govern matrimonial property division following the MPA , ss. 7 - 8 procedures, and referenced Dwelle v. Dwelle

(1982), 1982 ABCA 349 (CanLII) , 46 A.R. 1, 31 R.F.L. (2d) 113 (Alta. C.A.); Mazurenko v. Mazurenko (1982), 1981 ABCA 104 (CanLII) , 30 A.R. 34, 124 D.L.R. (3d) 406 (Alta. C.A.), leave denied, [1981] S.C.C.A. No. 108; Cox v. Cox , 1998 ABQB 987 , 233 A.R. 258; Hulleman v. Hulleman , 1999 ABCA 366 , 2 R.F.L. (5th) 406; Crosby v. Crosby , 2007 ABQB 31 , 155 A.C.W.S. (3d) 1167; LeBlanc v. LeBlanc , 1988 CanLII 96 (SCC) , [1988] 1 S.C.R. 217, 47 D.L.R. (4th) 1; Elsom v. Elsom , 1989 CanLII 100 (SCC) , [1989] 1 S.C.R. 1367, 59 D.L.R. (4th) 591.

She succinctly summarized the appropriate approach at para. 23: [23] The MPA is premised on a presumption of equal distribution of non-exempt property acquired during the marriage. The presumption should only be rebutted in the clearest of cases when, having regard to the s. 8 factors, it would be unjust and inequitable to make an equal division . When considering the s. 8 factors, courts should not embark upon the weighing of each party’s respective contribution and make divisions of property that are proportionate to the relative contributions of each spouse.

Rarely if ever will the contribution of each spouse be the same. The purpose of the legislation is to avoid microscopic analysis of the respective roles each party played to determine who did more. It is only in cases where, having regard to the factors in s. 8 , it would be unjust and inequitable to have an equal division that the court should depart from the principle of equality . [Emphasis added.] [ 78 ] Hodgson v. Hodgson , 2005 ABCA 13 , 361 A.R. 190 is the leading case on the proper date for the valuation and division of matrimonial property under the MPA . The Alberta Court of Appeal in Hodgson v.

Hodgson at paras. 18-22 described the four-step process for the division of matrimonial property that is set out by the MPA , ss. 7 - 8 as follows: 1. Determine all property owned at the date of trial. 2. Discern the property that is exempt from distribution under section 7(2). The exempt property under section 7(2) is valued at the date of acquisition or the date of marriage. 3. Determine what property falls under section 7(3), which is then distributed between the parties in a manner that is just and equitable taking into consideration the factors set out in

section 8 . 4. Divide the balance of the remaining property valued at the date of trial equally, unless it would be unjust and inequitable to do so considering the factors set out in

section 8 . 3. Matrimonial property in dispute [ 79 ] The parties agreed that the matrimonial property that potentially will be subject to division are the increases in the value of the Bainbridge Property during the marriage and separation 2, and increase in value of the Defendant’s Pension during the marriage. As I discussed above, the parties agree that the Plaintiff is entitled to 25% of the Defendant’s equity in the Wahstao Property.

Both counsel confirmed to the Court that neither of their respective clients are making a claim with respect to any RRSP, Canada Saving Bonds, or motor vehicles in either party’s name. a. the Bainbridge Property [ 80 ] In applying the four-step process for the division of matrimonial property as set out in Hodgson v. Hodgson to the Bainbridge Property and its increase in value, we start with the presumption of equal division.

The question then to be answered is whether there is some real imbalance in the contributions of the respective parties having regard to what was expected of each. i. increase in property value during marriage and separation 2 periods

[ 81 ] Market inflation has led to a dramatic increase in the value of the Bainbridge Property, during the marriage and separation 2 periods. The Defendant contends that the Plaintiff should only be entitled to one half of the increase in value of the Bainbridge Property during the marriage but not to any share in the appreciated value of the Bainbridge Property during separation 2.

The Plaintiff claims half of any increase in value over the entire Date of Marriage to trial date period [marriage and separation 2]. [ 82 ] With respect to a determination as to the appropriate division of the appreciated value of the Bainbridge Property, I am guided in my deliberations by a number of Alberta cases where the courts departed from an equal division of an increase in the value of matrimonial property. [ 83 ] In Warwoda v.

Warwoda , 2009 ABQB 582 at para. 37 Hughes J. wrote: 37 In my view, the value of the matrimonial home at the time of separation ($150,000) should be divided equally as both parties contributed to it. However, the increase in value since that time should not be divided equally for the following reasons: 1. Mr. Warwoda caused the mortgage to go into arrears prior to the end of 2000. Ms. Warwoda brought the mortgage back into good standing in 2004 because she worked two jobs - one during the day and one in the evening - for part of that time.

Thus, it was through her hard work and determination alone that the property was conserved . 2. Mr. Warwoda made no financial contribution to the home since the latter part of 2000, some 9 years ago. 3. Mr. Warwoda made no contribution to the welfare of the family after he left the matrimonial home . 4. Mr. Warwoda contributed nothing to the increase in the value of the home since he moved from the home . Based on these factors, I have determined the increase in the value of the matrimonial home from $150,000.00 to $308,500.00 should be divided 80% to Ms. Warwoda and 20% to Mr.

Warwoda. [Emphasis added.] In brief, an unequal claim to the home results from unequal contributions to the maintenance and increased value of that property. [ 84 ] Furthermore, in Nasin v. Nasin , 2008 ABQB 219 at para. 103 , 291 D.L.R. (4th) 432 A.B. Moen J., determined that a proper division of the matrimonial property required consideration of: 1. the short duration of the marriage, 2. the parties lived completely separate lives during the separation, and 3. the husband made all payments for the house including maintenance, utilities, taxes and insurance.

Moen J., concluded at para. 104: Given the short marriage and the complete separation of all financial matters after that short marriage, there is nothing to suggest that the parties should share in the equity of the house up until the day of trial.

In the end result, Moen J. divided equally the increase in the matrimonial home during the marriage, however, she concluded at para. 106 that the wife should not share in the “... fortuitous increase in value of the home from the date of separation, having done nothing to increase that value.” [ 85 ] As well, in Wright-Watts v. Watts , McMahon J. awarded the wife only 25% of the increase in value of the properties owned by the husband before the marriage including rental properties, taking into account the fact that: (

a) the marriage was short (three years), and (

b) that the husband had a greater income (paras. 74, 77). [ 86 ] In Wallat v. Marshall; K.E.W. v. C.R. M. , 2005 ABQB 426 at para. 127 (Alta. Q.B.) Coutu J. awarded the husband 30% of the increased value of the property brought into the marriage by the wife.

While Coutu J. observed that the husband had made significant financial contributions ($12,000) and made substantial non-financial contributions to the marriage, she concluded that the short duration of the marriage (1.5 years) required unequal division of the increase in property value: “[t]his was a short marriage, so a distribution of 50% would be disproportionately large in relation to the length of the marriage.” [ 87 ] In the present case, the marriage was approximately 1.5 years and therefore of short duration: Nasin v. Nasin ; Wright-Watts v. Watts ; Wallat v. Marshall; K.E.W. v. C.R.M.

In fact, the time span between the Date of Separation 2 and the date of trial is more than three times the duration of the marriage. This factor favours the Defendant receiving over half of the increased value in the Bainbridge Property. [ 88 ] In parallel to Nasin v. Nasin , the Plaintiff left the Bainbridge Property at the Date of Separation 2 and only returned to retrieve her personal belongings and furniture. Subsequently, the parties have lived completely separate lives. [ 89 ] Similar to Nasin v.

Nasin , post-marriage the Defendant has continued to pay all mortgage payments, insurance, taxes, and utilities associated with the Bainbridge Property. Except for two payments which were made to the Defendant, from the Date of Separation 2 to the date of trial, the Plaintiff has contributed no funds or services of any kind in regards to ownership, maintenance, and preservation of the Bainbridge Property. [ 90 ] During the separation 2 period the Defendant at his sole cost has continued to maintain and repair the Bainbridge Property. Those costs have been significant.

The Defendant testified that at one point during separation 2 the basement of the Bainbridge Property was damaged by a flood. Certain portions of this damage were not covered by the insurance and the Defendant was required to expend his own funds and labor to remedy the uninsured damage.

The Defendant’s significant and unilateral contribution to the Bainbridge Property again favour the Defendant receiving a greater share of the increased value. [ 91 ] I therefore agree with counsel for the Defendant that an award to the Plaintiff of 50% of the increase in value of the Bainbridge Property from the Date of Separation 2 to the date of trial would not be just and equitable.

After considering the factors set out in s. 8 of the MPA , in my view, it would be unjust and inequitable to accede to the Plaintiff’s position, and instead I conclude that a just and equitable distribution to the Plaintiff would be 25% of the increase in value of the Bainbridge Property from the Date of Separation 2 to the date of trial (separation 2). ii. occupation rent [ 92 ] The Plaintiff points to the fact that from the Date of Separation 2 to the date of trial, she was required to rent accommodation, which most recently are at a monthly cost of $1,200, whereas during the same time, the Defendant continued to reside at the Bainbridge Property and was only required to pay the mortgage payments, taxes and utilities.

It would appear that the Plaintiff is alluding to the fact that the Defendant should be charged “occupation rent” to account for the benefit of occupying the Bainbridge Property during this period of time, or alternatively, this Court should otherwise take into consideration the fact that the Defendant enjoyed such accommodation during this period of time. [ 93 ] The occupation rent concept was recently reviewed by Marceau J. in Seeman v. Seeman , 2010 ABQB 30 at paras. 13-14 where a party had use of a matrimonial home. Marceau J. at para. 13 quoted the analysis of Clackson J. in Busenius v.

Busenius , 2006 ABQB 162 at paras. 45-46 , 156 A.C.W.S. (3d) 159, that indicated an occupation rent claim is effectively a response to a claim by the

property occupier for expenses incurred in maintenance of the property: [45] That does not foreclose the Law of Property Act claim for upkeep and counterclaim for rent in occupation. Both would be perfectly appropriate claims in a matrimonial property action. It would also be permissible to claim that one party has, while in exclusive possession of the matrimonial property unreasonably or negligently destroyed or dissipated the value of the property so as to justify an unequal division of the matrimonial assets.

However, that is not a claim for occupation rent, but a claim to set aside the presumption of equality in the distribution of the assets. That is a circumstance specifically identified in s. 8 (

l) of the Matrimonial Property Act . [46] In my view when stripped of obligations of support, joint ownership in the matrimonial context is no different than joint ownership in general. Therefore, the claim for occupation rent would only be applicable to meet the claim by the exclusive occupier for contribution to expenses incurred . Since Ms. Gullion has not sought to reimbursed for expenses incurred to keep up the matrimonial home, there is no basis upon which Mr. Busenius can claim occupation rent . [Emphasis added.] [ 94 ] Marceau J. also referenced Kazmierczak v.

Kazmierczak , 2001 ABQB 610 , 292 A.R. 233 at paras. 87-90 , affirmed 2003 ABCA 227 , 17 Alta. L.R. (4th) 205, where Slatter J. (as he then was) explored the nature of a claim for occupation rent: [87] This claim for occupation rent has many similarities to the claim just discussed for a capitalization of unpaid spousal and child support. The notional income from the property represented by this occupation rent would have been an expense to Mr. Kazmierczak, and income to Mrs. Kazmierczak, during the period of separation. If Mrs.

Kazmierczak had demanded occupation rent in a timely way, that demand would probably have been met with a cross-demand for child support and exclusive possession of the matrimonial home. That in turn might have triggered a claim for spousal support. The occupation rent would have been an additional expense in Mr. Kazmierczak's budget and it would have been an income item in Mrs. Kazmierczak's budget. All of these factors would have been considered by a Court in deciding whether to award spousal support, child support, or occupation rent.

Accordingly, this banking of occupation rent raises many of the issues raised by the capitalization of an inchoate support obligation . [88] The concept of "occupation rent" is a common-law attribute of the joint ownership of property. At common law, all joint tenants have an equal right to the occupation of the whole of the premises, and neither had the right to exclude the other. In limited circumstances the Courts would recognize a right to occupation rent in favour of the joint tenant who was out of possession . In his book Principles of Property Law (Scarborough: Carswell, 1993) Professor B.

Ziff summarizes the law with respect to occupation rent at p. 266: These rules require elaboration. Given that all co-tenants are inherently entitled to possession of each and every part of the property, no matter the size of their individual shares, one co-owner cannot exclude or "oust" another (say, by changing the locks). Not only is this direct action unlawful, but also where the conduct of one co-owner is so egregious that one would not expect the other party to remain, this amounts to a constructive ouster.

If a party is locked out or forced to leave by the expulsive conduct of the other, the remaining owner may be charged with an occupation rent. No occupation rent is normally payable simply because one owner has enjoyed exclusive possession. However, where, on partition, the party in possession makes a claim for reimbursement for the payment of current expenses, a counterclaim for occupation rent may be entertained .

The amount of rent ordered is often based on an estimation of the market value of property (divided by the number of co-owners), but sometimes it is pegged at the cost of current expenses. [Footnotes omitted.] ... [90] In my view, care must be taken in carrying forward the common-law concept of occupation rent into the family law context. Non-family joint tenants generally do not have mutual obligations of support for each other, and for children.

In the family law context, such mutual obligations of support are generally present, and would usually dominate and outweigh the common-law property rights associated with joint tenancy. Occupation rent should only be awarded in the family law context with great caution . [Italics in original, underlining for emphasis added.] [ 95 ] Marceau J. in Seeman v. Seeman then concluded at para. 14 that he would not allow the claim for occupation rent despite the fact that “... Mr. Seeman has enjoyed the matrimonial home for 7 years rent free but for payment of the taxes and insurance while Ms.

Seeman has paid rent for 7 years.” I note that the approach to occupation rent taken by Slatter J. in Kazmierczak v. Kazmierczak was expressly approved by the Alberta Court of Appeal (at paras. 142, 149).

[ 96 ] On this basis I reject any award of occupation rent or the relevance of the Plaintiff’s rent payments. I am confident that had the Plaintiff pressed her claim for occupation rent to be paid by the Defendant, most likely, she would have been met with a counterclaim by the Defendant for payment by the Plaintiff equal to one half of the mortgage payments, taxes, utilities, and costs of maintenance and repair relative to the Bainbridge Property for the period of time from the Date of Separation 2 to the date of trial.

In any case, all funds expended by the Defendant towards payment of these items during separation 2 would be monies payable by the Defendant against a hypothetical award of occupation rent. [ 97 ] Furthermore, any amounts paid by the Defendant as against the mortgage on the Bainbridge Property after the Date of Separation 2 shall be deemed to be payments made on behalf of both parties. Consequently, the Plaintiff will be entitled to share in such credit despite the fact that she did not contribute to such payments .

As well, it should not be forgotten that but for the Defendant’s decision to remain in the Bainbridge Property after the Date of Separation 2, the Plaintiff would not now have an opportunity to share in any increase in the value of such property after such date. As such, I fail to see where the Plaintiff can claim that she has been unjustly treated and that the Defendant has gained a windfall by virtue of the Defendant not being required to pay occupation rent. Instead, she is the one who has benefitted without investment or contribution. iii.

Bainbridge Property valuation [ 98 ] Each party provided appraisals of the Bainbridge Property as at the Date of Separation 2 and as at the date of trial. The Defendant’s appraisal states that the value of the Bainbridge Property as at the Date of Separation 2 is $320,000 (Frost & Associates Realty Services Inc.), while the Plaintiff’s appraisal identified the value of the Bainbridge Property as at March 8, 2005 between $335,000 and $375,000 (Hagan Appraisal Service).

At the date of trial, the Defendant’s appraisal which was conducted on January 6, 2010 states the value of the Bainbridge Property at $475,000 (Frost & Associates Realty Services Inc.) while the Plaintiff’s expert (Bourgeois & Company) valued the Bainbridge Property at $570,000 as of March 31, 2010. [ 99 ] Counsel for both parties commented on these appraisals. The Defendant’s counsel noted that the Plaintiff’s Hagan appraisal was a “drive by” appraisal, which denotes that the appraiser did not have the opportunity to enter the Bainbridge Property for the purpose of conducting the appraisal.

Counsel for the Plaintiff stated that he too had concerns with the Frost appraisals, given the fact that both of them were conducted retrospectively. Counsel for the Plaintiff further stated that he had concerns with the location and time of sale of the allegedly comparable properties used in the January 4, 2010 Frost appraisal. [ 100 ] That said, neither party provided expert evidence to assist the Court in its review of these appraisals and their comparative strengths and weaknesses.

The Defendant testified that it was his hobby to familiarize himself with the market values of residential property and that over time he had developed a certain amount of expertise in this area. In my view, this may be all and well but that does not qualify the Defendant to give expert testimony in this regard. I therefore put no weight on his evidence in this regard. [ 101 ] Although I may have a certain degree of knowledge in land related matters, including valuation, I am by far not an expert, nor should I act as an expert. As a judge I can only introduce evidence via judicial notice. In Lameman v.

Canada (Attorney General); Papaschase Indian Band No. 136 v. Canada (Attorney General) , 2006 ABCA 392 , 66 Alta. L.R. (4th) 243, reversed on other grounds 2008 SCC 14 , [2008] 1 S.C.R. 372, Côté J.A. observed the stringent limitations placed on judges: 26 At common law, judges cannot take judicial notice of matters of expertise or opinion, and non experts cannot testify as to them (with a small number of narrow exceptions irrelevant here). Evidence must come from someone with sufficient expertise. Otherwise the Court cannot act . ... [Emphasis added.] [ 102 ] Judicial notice has a very limited scope.

This was made clear by McLachlin C.J. in R. v. Find, 2001 SCC 32 , [2001] 1 S.C.R. 863 at para. 48 : ... Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute . Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross examination.

Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy ... [Emphasis added.]

See also R. v. Spence , 2005 SCC 71 at para. 53 , [2005] 3 S.C.R. 458. [ 103 ] The Court relies upon the litigants to provide expert evidence to assist in making findings of fact, such as the proper valuation of a property. Absent the context provided by any such expert evidence, the Court must then look to an equitable and just solution. With respect to the parties’ respective appraisals, I feel that such a result can be obtained by averaging each parties’ appraised values. In the case of the Hagan appraisal I am using the low end of the range.

Date of Valuation Hagan Appraisal Service (2005) / Bourgeois & company (2010) (Plaintiff) Frost & Associates Realty Services Inc. (Defendant) Average Date of Separation 2 $335,000-$375,000 $320,000 $327,500 Date of Trial $570,000 $475,000 $522,500 The increase in value of the Bainbridge Property during the post-marriage separation 2 period is therefore $195,000. iv. calculation of the parties’ interests [ 104 ] The Plaintiff and Defendant are each entitled to an equal 50% share of the increase in value of the Bainbridge Property during the marriage until the Date of Separation 2.

As indicated above, post-marriage separation 2 increases in value are divided on a 75%/25% Defendant/Plaintiff basis. [ 105 ] I conclude that in total the Plaintiff should be entitled to an equalization payment by the Defendant in the sum of $111,109.75.

This amount is calculated as the total of the following components: 1. initial interest in the Bainbridge Property : the Plaintiff’s 25% interest by way of a gift in the Defendant’s equity in the Wahstao Property: 25% of $198,912 = $49,728; plus 2. increased value of the Bainbridge Property during the marriage : a. 50% of the increase in the value of the Bainbridge Property during the marriage: $327,500 - $292,000 = $35,500, divided by 2 = $17,750, plus b. 50% of reduction in the principle owing on the mortgage for the Bainbridge Property during the marriage: $95,000 - $80,000 = $15,000, divided by 2 = $7,500; plus 3. increased value of the Bainsbridge Property post-marriage during separation 2 : a. 25% of increase in the net value of the Bainbridge Property during separation 2: $522,500 - $327,500 = $195,000, divided by 4 = $48,750; less

b. 25% of the balance of the principle owing on the mortgage for the Bainbridge Property as at the date of trial: $50,473 divided by 4 = $12,618.25. The Defendant shall pay this equalization payment in the sum of $111,109.75 to the Plaintiff within 60 days of the date of this Decision. b. the Defendant’s pension [ 106 ] Lastly, there remains to be divided the increased value of the Defendant’s pension benefits during the marriage until the Date of Separation 2. In my opinion, the Defendant shall be entitled to a share of 50% of the increased value of these pension benefits for that period of time.

Should counsel require further direction in regards to such entitlement, they may come back for further direction. IV. Costs [ 107 ] Both parties were in agreement with the granting of the divorce. However, it was not until trial that the Defendant conceded any entitlement by the Plaintiff to a share of the Plaintiff’s equity in the Wahstao Property. Although the Plaintiff was not successful in regards to the constructive trust action, she was partially successful in regards to the matrimonial property action. Given this mixed success, each party shall bear their own costs. Heard on the 8 th day of April, 2010.

Dated at the City of Edmonton, Alberta this 27 th day of April, 2010. Don J. Manderscheid J.C.Q.B.A. Appearances: David S. Patterson Patterson Family Law Office for the Plaintiff

Stephen J. Gawlinski Gawlinski Parkatti Verhaeghe for the Defendant