Thompson v. Williams, 2011 ABQB 311

Court of Queen ’ s Bench of Alberta Citation: Thompson v. Williams, 2011 ABQB 311 Date: 20110506 Docket: FL01 04424 Registry: Calgary Between: Cindy Lou Thompson Plaintiff - and - Robert David Williams Defendant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J. Strekaf _______________________________________________________ I.

Introduction [ 1 ] The Plaintiff Cindy Thompson and the Defendant Dave Williams were in a common-law relationship for approximately 18 years. After their relationship ended in June 2007, Ms. Thompson commenced this action based upon the principles of unjust enrichment seeking 50% of the assets acquired by the couple during the course of their relationship. Ms. Thompson also seeks indefinite support of $3,000 per month.

II. Issues [ 2 ] There are two main issues to be determined in this action: 1. Was Mr. Williams unjustly enriched at Ms. Thompson’s expense? If so, what remedy is appropriate? 2. Were Ms. Thompson and Mr. Williams adult interdependent partners? If so, what support, if any, should be provided by Mr. Williams to Ms. Thompson? III. Relevant Facts [ 3 ] At the trial of this action, the Plaintiff called four witnesses in addition to herself, being Dr. Duggleby (her physician), Terra Taylor (psychologist), Joseph Erewlin (contractor) and Jacqui Minnear (friend).

The Defendant called three witnesses, in addition to himself, being Valora Mosher (bookkeeper), Jeff Hurley (tenant) and Dr. Mandel (psychologist). [ 4 ] Ms. Thompson and Mr. Williams met at a wedding in September 1985, shortly before Mr. Williams departed on a prearranged trip to south east asia for six months. At the time, Ms. Thompson was 31 years of age and was living in Listowell, Ontario where she operated a yarn business under the name Yarns of Tralee. Ms.

Thompson had qualified as a registered nursing assistant after graduating from high school, and had attended nursing school for a time but did not complete the program to qualify as a registered nurse. Mr. Williams, who was 25 years of age, had graduated with his Bachelor of Science degree and was living in London, Ontario and working at Lafarge Canada, where he had been employed since 1981. London is approximately 65 miles from Listowell. [ 5 ] The parties kept in contact while Mr. Williams was travelling and began dating upon his return to Canada in May 2006.

They eventually began living together, which was in the spring or summer of 1987 according to Ms. Thompson or in June or July of 1989 according to Mr. Williams. The parties had lived together in an apartment sublet from some students during the summer of 1987 and thereafter spent a considerable amount of time together, but maintained two addresses in different cities until Ms. Thompson was able to sell her business. In December 1987, Mr. Williams was offered a promotion to management at the Lafarge terminal in Toronto, which is approximately 100 miles from Listowell. Ms. Thompson and Mr.

Williams looked at potential homes in Toronto. Mr. Williams found a house on Brookside Drive and purchased it in June 1988 for $207,500 in his name using money he had saved, an interest free loan from Lafarge and a mortgage. Ms. Thompson and Mr. Williams lived together in Toronto in the home on Brookside Drive. Ms. Thompson made no financial contribution to the purchase price of the home, the mortgage payments, the property taxes, the utilities or any of the renovation costs. Both parties contributed to the other living expenses. Ms.

Thompson assisted in some renovation work on the home and looked after finding tenants and renting the upstairs to some students. While living in Toronto, Ms. Thompson took some university courses, did a refresher course so she could work as a Registered Practical Nurse and had various full-time and part-time jobs including working for Special Care People and the Victorian Order of Nurses. [ 6 ] In 1994, Mr. Williams and Ms. Thompson moved to Canmore when Mr. Williams took a job as the Human Resources Manager at Lafarge’s Exshaw plant. After Mr. Williams accepted the job, Ms.

Thompson quit her job and readied the house to go on the market as Mr. Williams was spending about two weeks per month in Exshaw. The house sold for $208,000, which was approximately the purchase price but without full recovery of the renovation expenses that had been incurred. Lafarge paid for the move and for Ms. Thompson to go to Canmore to look for accommodation for the couple. Mr. Williams purchased a three bedroom split level home at 1708 [...] Avenue in Canmore (“1708") for $162,500. The house needed renovations, which began immediately after closing in June 1994.

By the spring of 1995, the house was painted white throughout; stucco and drywall on the upstairs fireplace wall was removed; the drop ceiling was removed in the basement and drywall and pot lights installed; oak trim and an oak entranceway, a new furnace and new carpet were installed; a new shower stall, vanity and sink were installed downstairs; a new fireplace ceramic surround and new kitchen sink and counter were installed. While both Mr. Williams and Ms. Thompson performed some of the renovations themselves, the bulk of the work was largely done by a contractor, Joe Erewlin, at Mr. Williams’ expense. Ms.

Thompson participated in some of the renovations, liaised with the contractor, did landscaping and was actively involved in design decisions and selecting finishing materials for the home. Mr. Erewlin described Ms. Thompson’s help as necessary, although on cross-examination he acknowledged that some of the work could have been done without her. Ms. Thompson made no financial contribution towards the purchase price, the mortgage payments, the property taxes, the utilities or the renovation expenses, all of which were paid by Mr. Williams. [ 7 ] After moving to Canmore, Ms.

Thompson became qualified as a registered practical nurse and worked at various full-time and part-time jobs including starting a home nursing company, working at another home nursing company and at the local newspaper, at

Rapidmed, at the Town of Canmore, at the Welcome Wagon and at Mistaya Communications. She was unemployed at various points in time. [ 8 ] In 1997, the parties began renting out the home at 1708 on occasion as a vacation rental property when they went on vacation through Bow Valley Bed Finders. Ms. Thompson was responsible for getting the property ready for renters. [ 9 ] Ms. Thompson and Mr. Williams decided to get into the vacation rental business in 1998. In January 1998, Mr.

Williams purchased a house at 1414 - [...] Avenue in Canmore (“1414") for $232,000, with the intention of renovating the property into two vacation rental units. Mr. Williams provided the down-payment and paid the mortgage payments, taxes, utilities and the renovation expenses. Title and the mortgage were in Mr. Williams’ name. This property was largely renovated by June 1998, so that it could be rented by the summer. The renovation work, which was mostly done by Joe Erewlin at Mr. Williams’ expense, included: removing panelling and wallpaper (which Mr. Williams and Ms.

Thompson participated in); painting the unit white throughout (which Mr. Williams and Ms.

Thompson participated in); refacing kitchen cupboards and installing a new kitchen sink and counter; removing the old laundry room and storage downstairs; installing new linoleum in the upstairs kitchen and bath and new carpet and oak trim throughout; installing a new tub, sink, vanity and ceramic tiles in the upstairs bathroom; cutting a hole in the living room wall; reinforcing the deck; installing a used hot tub; installing used kitchen cupboards and a new sink and vanity in the bathroom downstairs; dry-walling and painting the kitchen and bathroom hall; insulating and dry-walling/panelling the garage ceiling and walls; and making and installing coat and ski racks. [ 10 ] Both properties at 1708 and 1414 were rented out for the summer of 1998, during which time Ms.

Thompson and Mr. Williams lived in various places, including their camper van. The rental business was operated under the trade name Mountain Escapes. Ms. Thompson was responsible for looking after renting out the properties, including arranging advertising, finding tenants, negotiating the agreements with the tenants, hiring and supervising the cleaners and doing some cleaning herself periodically. Ms. Thompson’s sole source of income from 1998 until the parties separated in 2007 was from managing these and other rental properties. [ 11 ] Mr. Williams/Mountain Escapes began paying Ms.

Thompson/Thompson Consulting approximately $1,500/month. From 1998 through 2007, the following amounts were paid: 1998 - $18,000 1999 - $22,500 2000 - $18,000 2001 - $17,500 2002 - $30,500 2003 - $18,000 2004 - $18,000 2005 - $24,766 2006 - $29,090 2007 - $10,000 Ms. Thompson also began providing rental unit management services to third parties, under the name Thompson Consulting. [ 12 ] The Town of Canmore began enforcing a bylaw in 1999 that prohibited more than one renter in a 28 day period. Ms. Thompson was involved in the litigation challenging the bylaw, which was ultimately upheld.

Enforcement of this bylaw reduced the viability of the vacation rental business in Canmore. [ 13 ] Mr. Williams purchased a newly built unit at [...], 743 Railway Avenue, Canmore (“Boardwalk”) for $215,000 to be used as a rental property. The property was sold on April 29, 2002 for $277,300. The profit was used by Mr. Williams to pay down debt. Title to the property and the mortgage was in Mr. Williams’s name only and he paid all the mortgage payments, utilities and property taxes and

received all the rental income. [ 14 ] On September 3, 2004, Mr. Williams purchased 1410 - [...] Avenue in Canmore (“1410") for $415,000. Mr. Williams and Ms. Thompson had previously planned to buy that property with another couple to use as a rental unit, but before they could submit an offer, the property was purchased by a third party. The third party purchaser later decided to sell the property. Before purchasing it himself, Mr. Williams asked Ms. Thompson if she wanted her name on the title and she declined. Ms.

Thompson was substantially less involved in the renovation work on 1410 than she had been with the previous properties, and her contribution was limited to some landscaping, selecting some tiles, countertops and paint colours and purchasing some furniture. [ 15 ] Ms. Thompson acknowledged that she understood throughout her relationship with Mr. Williams that he considered his real estate property holdings to be his own. She first raised her belief that she had an interest in the real estate with Mr. Williams in 2005.

She asked him to consider making her a part owner of the properties, which he refused to do. [ 16 ] There were strains on the relationship by this time and Ms. Thompson advised Mr. Williams that she was not sure if she could remain in the relationship. A condo was purchased at Spring Creek Gardens in Canmore in 2006, for $260,000. Mr. Williams put up the 25% deposit and title to the condo was initially registered in his name. The condo was to be the parties’ retirement home if the relationship survived, and Ms. Thompson’s home if they were no longer together. [ 17 ] Mr. Williams and Ms.

Thompson moved into the condo in August 2006 and immediately began renovations.

This included removing the carpets; installing soundproofing; removing a closet; upgrading the kitchen cupboards; removing the washer/dryer and hot water tank; moving the plumbing, heat ducts and the furnace stack; installing new walls for a new bathroom; reinforcing the stairs; installing a new heating stack, duct work and a high efficiency hot water tank; installing a new gas line for a barbeque and genair gas stove; painting the main floor rooms; redesigning the moving the crawl space hutch; installing a curved and sloped kitchen header; installing plastic plumbing throughout the unit; rewiring the entire unit and installing new breakers; and installing a new handrail and bannister.

Mr. Williams transferred title to the condo into Ms. Thompson’s name on January 4, 2007. [ 18 ] The parties separated on May 31, 2007, when Mr. Williams moved back into 1708 and Ms. Thompson remained in the condo. Following separation Mr. Williams continued to assist with the renovations of the condo and pay for the renovation costs. He contributed more than $100,000 towards the costs of renovating the condo following the parties’ separation, in addition to the support he paid to Ms. Thompson. [ 19 ] Following separation, Mr. Williams asked Ms.

Thompson in the summer of 2007 whether she wanted to continue managing the properties. She declined. IV. Analysis A. Was Mr. Williams unjustly enriched at Ms. Thompson’s expense? If so, what, if any, remedy is appropriate? 1. The Law [ 20 ] The Supreme Court of Canada in Kerr v. Baranow , 2011 SCC 10 328 D.L.R. (4 th ) 577, has recently provided guidance with respect to how courts should address claims for unjust enrichment in the context of the breakdown of a domestic relationship between unmarried persons.

The doctrine of unjust enrichment in Canada permits recovery whenever the plaintiff can establish three elements: an enrichment of or benefit to the defendant, a corresponding deprivation of the plaintiff, and the absence of a juristic reason for the enrichment. A straightforward economic approach is taken to the first two elements. The plaintiff must demonstrate that he or she gave something to the defendant, which enriched the defendant by providing either a positive benefit or by sparing the defendant from having to incur an expense.

The defendant’s benefit must be at the plaintiff’s expense. [ 21 ] The third element is that the benefit and corresponding detriment occurred without a juristic reason. This means that there is

no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, thereby making its retention “unjust” in the circumstances. In Garland v. Consumer’s Gas , 2004 SCC 25 , [2004] 1 S.C.R. 629, the Supreme Court of Canada set out a two step analysis for assessing the absence of juristic reason. The first step applies the established categories, being the intention to make a gift (donative intent), a contract or other valid common law, equitable or statutory obligations or a disposition of law (e.g. where the enrichment is required by law or where a valid statute denies recovery).

However, the Court recognised that this is not a closed list. The second step permits consideration of the reasonable expectations of the parties and public policy considerations to assess whether recovery should be denied. [ 22 ] Remedies for unjust enrichment are restitutionary in nature, that is, to require the defendant to repay or reverse the unjustified enrichment. The plaintiff may be entitled to a monetary or a proprietary remedy. [ 23 ] Monetary remedies should be considered first and will usually be sufficient.

However, calculation is often not straightforward because domestic claims of unjust enrichment arise out of relationships where there has been a mutual conferral of benefits and it would be unjust to consider only the contribution of one party in assessing an appropriate remedy. This creates practical problems as it may be extremely difficult to value every service rendered by each party to the other throughout the course of their relationship. Monetary remedies are not limited to calculation on a “value received”, quantum merit or fee-for-service basis, but may be based upon a “value survived” approach.

Where the unjust enrichment is best characterized as an unjust retention of a disproportionate share of assets accumulated during the course of a joint family venture to which both partners have contributed, the monetary remedy should reflect that fact. As Cromwell, J. stated in Kerr at para. 81 : In such cases, the basis of the unjust enrichment is the retention of an inappropriately disproportionate amount of wealth by one party when the parties have been engaged in a joint family venture and there is a clear link between the claimant's contributions to the joint venture and the accumulation of wealth.

Irrespective of the status of legal title to particular assets, the parties in those circumstances are realistically viewed as "creating wealth in a common enterprise that will assist in sustaining their relationship, their well-being and their family life" (McCamus, at p. 366). The wealth created during the period of cohabitation will be treated as the fruit of their domestic and financial relationship, though not necessarily by the parties in equal measure. Since the spouses are domestic and financial partners, there is no need for "duelling quantum meruits".

In such cases, the unjust enrichment is understood to arise because the party who leaves the relationship with a disproportionate share of the wealth is denying to the claimant a reasonable share of the wealth accumulated in the course of the relationship through their joint efforts.

The monetary award for unjust enrichment should be assessed by determining the proportionate contribution of the claimant to the accumulation of the wealth. [ 24 ] He went on at para. 85 to state: I conclude, therefore, that the common law of unjust enrichment should recognize and respond to the reality that there are unmarried domestic arrangements that are partnerships; the remedy in such cases should address the disproportionate retention of assets acquired through joint efforts with another person.

This sort of sharing, of course, should not be presumed, nor will it be presumed that wealth acquired by mutual effort will be shared equally. Cohabitation does not, in itself, under the common law of unjust enrichment, entitle one party to a share of the other's property or any other relief.

However, where wealth is accumulated as a result of joint effort, as evidenced by the nature of the parties' relationship and their dealings with each other, the law of unjust enrichment should reflect that reality. [ 25 ] When parties have engaged in a joint family venture and the plaintiff’s contributions are linked to the generation of wealth, a monetary award for unjust enrichment should be calculated according to the share of the accumulated wealth proportionate to the plaintiff’s contributions.

A joint family venture will not be presumed and its existence must be based upon the evidence, which may be considered under four main headings: (

a) mutual effort; (

b) economic integration; (

c) actual intent; and, (

d) priority of the family.

(

d) priority of the family. [ 26 ] Mutual effort concerns whether the parties worked collaboratively toward common goals, which may be indicated by the pooling of effort and team work, the decision to have and raise children together, the length of the relationship, joint contributions or contributions to a common pool, the use of parties’ funds for family purposes, and the pooling of resources whereby one spouse takes on all, or a greater proportion, of the domestic labour thereby freeing the other spouse to pursue activities in the paid work force. [ 27 ] Economic integration concerns the degree of economic interdependence and integration that characterized the parties’ relationship.

The greater the integration, the more likely they should be considered as having been engaged in a joint family venture. The existence of a joint bank account, the sharing of expenses, the amassing of a common pool of savings, the prioritization of the overall welfare of the family unit over the individual interests of individual members are factors that may indicate that the economic well-being and lives of the parties are largely integrated. [ 28 ] The parties’ actual intent, express or inferred from the evidence, is a relevant consideration.

Their intentions should be given considerable weight as some domestic partners chose not to marry as a deliberate choice not to have their lives economically intertwined. The parties’ conduct may indicate that they intended to share in the wealth they jointly created. The intention to engage in a joint family venture may be inferred where the parties accept that their relationship was “equivalent to marriage”.

The stability of the relationship and the length of cohabitation may be relevant as it may be nearly impossible to engage in a precise weighing of the benefits conferred with the relationship when parties have lived together in a stable relationship for a lengthy period. Joint title to property may reflect an intention to share wealth. Where title is registered in the name of one of the parties, a lack of concern with the details of title and accounting of monies spent for household expenses, renovations, taxes, insurance and so on may suggest an expectation that wealth will be shared.

Plans for property distribution on death may indicate that the parties saw each other as domestic and economic partners. [ 29 ] The extent to which the parties have given priority to the family in their decision making is the fourth factor. Has there been detrimental reliance on the relationship by one or both of the parties for the sake of the family? Are they proceeding on assumptions about a shared future, which may or may not be articulated?

Has one party relied on the success and stability of the relationship for future economic security to his or her own economic detriment, eg by leaving the workforce for a period of time to raise children, by relocating for the benefit of the other party’s career, by foregoing career or educational advancement for the benefit of the family or by accepting underemployment in order to balance the financial and domestic needs of the family unit. [ 30 ] Proprietary remedies may be required where monetary awards would be insufficient in the circumstances or are otherwise inappropriate.

Where a plaintiff can demonstrate a sufficiently substantial and direct link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of certain property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in the plaintiff’s favour. [ 31 ] Cromwell, J. acknowledged that the unjust enrichment analysis in domestic situations is often complicated by the fact that there has been a mutual conferral of benefits, which must be taken into account as part of the analysis.

This may be relatively straightforward where one party emerges from the relationship with a disproportionate share of the assets accumulated through their joint efforts, in which case the remedy is to share that wealth proportionate to the parties contributions. Determining proportionate contributions is not an exact science that calls for “the reasoned exercise of judgment in light of all of the evidence” rather than “a minute examination of the give and take of daily life” (para.102).

In cases where the appropriate remedy is a money award based on a fee-for- services approach, mutual enrichments should mainly be considered at the defence and remedy stages, but may also be considered at the juristic reason stage. 2. Application of the Law [ 32 ] Ms. Thompson has established the first two elements of the test for unjust enrichment, that is, an enrichment of or benefit to the defendant and a corresponding deprivation of the plaintiff. [ 33 ] The provision of domestic services can support a claim for unjust enrichment and can constitute a benefit and a corresponding deprivation.

Throughout the course of their relationship, Ms. Thompson provided domestic services to Mr. Williams. There is a difference in the parties’ evidence as to the extent of Mr. William’s performance of domestic duties. She states that their understanding was that she was responsible for the domestic duties, including cooking, cleaning, shopping, decorating, entertaining and running errands and would work part-time and that he would come home from work and everything would be done. She stated that she “never saw Mr.

Williams with a broom or vacuum cleaner in his hand to this day”, although she acknowledges that he did his own laundry. Mr. Williams stated that they shared domestic duties, but acknowledged that Ms. Thompson took the lead with cooking. Ms. Mienaar described both parties as exacting and stated that Ms. Thompson did the cleaning and tried to have everything the way Mr. Williams’ wanted. I am satisfied that Ms.

Thompson was responsible for performing substantially all of the domestic duties throughout the parties’ relationship and that both had high standards in this regard. [ 34 ] In addition to those domestic services, Ms. Thompson also contributed work towards the renovation of the properties and managed the rental business. The first two elements of the test have been met. [ 35 ] With respect to the third element, Mr. Williams argues this element has not been established as any services provided by Ms.

Thompson were done while she was living rent free with knowledge of his position with respect to ownership of the properties in his name and were either a gift or were pursuant to a contract for which she was paid. [ 36 ] Ms. Thompson received funds from Mr. Williams from 1998 - 2007 that she claimed as business income for tax purposes. Ms. Thompson states that this amount was a token amount that was based on what was considered best from a tax perspective. Mr. Williams states that it was intended to reflect a fair wage for the services she provided to the rental business. Mr. Williams suggests that Ms.

Thompson was overpaid as the property managers that assumed Ms. Thompson’s duties were paid only $5,941 in 2008 and $4,897 in 2009, which is significantly less than what Ms. Thompson was paid. I am satisfied that Ms. Thompson’s property duties were more time consuming when the business was initially established, that finding and supervising cleaning staff was more challenging before the economy collapsed in 2008 and that the scope and extent of the services she provided were more extensive than those provided by the subsequent property managers. I do not accept that the amounts paid to Ms.

Thompson reflected a salary negotiated between the parties that was intended to fully compensate her for all the services which she provided. Instead, I accept her evidence that the amount reflected a form of income splitting. I reject the suggestion that Ms. Thompson should be viewed as a salaried employee receiving free accommodation in exchange for domestic and other services provided over a period of 18 years. [ 37 ] I am satisfied that Mr. Williams has been unjustly enriched at Ms. Thompson’s expense. The next issue to be determined is what remedy is Ms. Thompson entitled to receive.

This requires consideration of whether the parties were engaged in a joint family venture. The parties’ relationship in this case, like many relationships, will have some aspects that suggest that they are involved in a joint family venture and other aspects that suggest that they are not. The test is how the relationship should be viewed on balance, having regard to the considerations identified in Kerr . [ 38 ] Mutual Effort . While Ms. Thompson and Mr. Williams did not have children together, they lived together as a couple on a long term basis for a period of at least 18 years. Mr. Williams and Ms.

Thompson pooled their efforts and worked together to develop the real estate and rental property business. Mr. Williams purchased the properties and paid for the renovation expenses and the ongoing mortgage, property tax and utility expenses out of his salary. Ms. Thompson assisted with the renovation work, and assumed the primary responsibility for the operation of the rental business. Ms. Thompson assumed responsibility for the greater proportion of the domestic duties throughout the course of their relationship, which enabled Mr.

Williams to spend more time at his job at Lafarge and to perform more of the physical aspects of the renovation projects, without having to deal with domestic duties. [ 39 ] Economic Integration . Mr. Williams and Ms. Thompson maintained separate bank accounts throughout the course of their relationship. While Ms. Thompson did have some authority with respect to Mr. Williams’s bank accounts, it was limited to transferring monies. The parties amassed no common or joint pool of savings. Both parties contributed to the household expenses. Ms.

Thompson paid for her own cell phone and her car insurance and they both sometimes paid for each other’s vehicle repairs, gas, clothing, and travel expenses. Mr. Williams began giving Ms. Thompson $500 per month for household expenses when she needed money because she was not working or receiving unemployment insurance. Ms. Thompson received $18,000/year commencing in 1998 (more in some years) from Mr. Williams which was attributed to the services she provided in managing the real estate rental business. [ 40 ] Actual Intent . The parties chose not to marry as Mr.

Williams’ position was that he would only get married if they had children, but they nevertheless operated as a couple for more than 18 years. Title to the real estate was in Mr. Williams’ name only. Ms. Thompson made no financial contribution to the acquisition, renovation or ongoing expenses of the properties. On at least two occasions, Ms. Thompson chose not to have real estate registered in her name. The parties had discussed acquiring a rental property in Ms. Thompson’s name at Mountain Village, using funds from Ms. Thompson’s RRSP as a deposit, but Ms.

Thompson ultimately chose not to go ahead as she felt it would be too much of a stretch. On another occasion, she turned down the opportunity to go on the title to 1410. This behaviour suggests that the parties viewed the nature of Ms. Thompson’s responsibility and interest in the real estate to be different if she was on title, than if that was not the case. Ms. Thompson acknowledged that she understood throughout her relationship with Mr. Williams that he considered his real estate property holdings to be his own. She first raised with Mr. Williams that she believed that she

had an interest in the real estate in 2005. She asked him to consider making her a part owner of the properties at that time, which he refused to do. [ 41 ] Priority of the Family . Ms. Thompson relocated on two occasions in order to continue to live with Mr. Williams, however, there is no evidence that this was not done willingly or that it constituted a personal sacrifice that was contrary to her best interests at the time. Ms. Thompson’s work history was much different than that of Mr. Williams, who worked at Lafarge throughout the entire relationship. Ms.

Thompson had multiple jobs, some full-time and some part-time while in Toronto and Canmore. While some of this was the result of personal choices made by her, some health issues and her personality, she had primary responsibility for the domestic chores. I am satisfied that she put Mr. Williams’ career obligations ahead of her own, although there is no evidence that this was done at the request or insistence of Mr. Williams.

The parties were the beneficiary of the other’s will during the course of their relationship. [ 42 ] While there are some aspects of the parties’ relationship that are somewhat inconsistent with a joint family venture, the parties were not merely roommates with benefits who were sharing expenses and who were engaged in a contractual relationship for the provision of rental management services. They were, and were viewed by people who dealt with them, as a common law couple. They worked together to develop a real estate rental portfolio that would help fund their retirement.

On balance, I am satisfied they were engaged in a form of joint family venture, albeit pursuant to an arrangement that was not as financially integrated as would be the case in many marriages. [ 43 ] The assets accumulated by the parties during the course of their relationship were as follows: Real Estate 1708 - [...] Avenue, Canmore Appraised value $585,000 MCAP mortgage (100,714) LaFarge loan ( 14,011) $470,275 1414 - [...] Avenue, Canmore Appraised value $539,000 CIBC mortgage (209,073) CIBC line of credit (198,741) Capital gains tax adjustment ( 69,209) $ 61,977 1410 - [..] Avenue, Canmore Appraised value $510,000 CIBC mortgage (280,165) Capital gains tax adjustment ( 17,869) $211,966 #32, 1530 - [...] Avenue, Canmore

Appraised value $370,000 MCAP mortgage (179,200) $190,800 Total Net Real Estate $935,018 Pension Plans and RRSPs Present value of Mr. Williams LaFarge pension accrued during the relationship $161,137 RRSP - Ms. Thompson - MRS 70,050 RRSP - Ms. Thompson - CIBC 5,050 RRSP - Mr. Williams - CIBC 109,824 LaFarge DCPP - Mr. Williams 18,776 LaFarge DPSP - Mr. Williams 24,336 LaFarge EPSP - Mr. Williams 18,554 LaFarge RRSP - Mr. Williams 26,793 Total Pension Plans and RRSPs $434,520 Less adjustment for tax @ 30% (130,356) Total Net Pension and RRSPs 304,164 Vehicles 1997 Jetta - Ms. Thompson 3,000 1990 Dodge Camper - Mr.

Williams 6,000 2004 Jetta - Mr. Williams 10,000 1985 Motorhome 50% - Mr. Williams 4,000 1981 Motorcycle - Mr. Williams 1,200 Total Vehicles 24,200 Pre-Cohabitation/Exempt Assets

Mr. Williams savings ($ 3,722) Mr. Williams RRSP ( 13,960) Mr. Williams equity in 119 Brookside Drive, Toronto ( 42,000) Gifts/Early inheritance from Mr.

Williams’ father ( 34,619) _________ Total Accumulated Assets $1,169,081 [ 44 ] The above calculation is based upon estimated values at the time of separation in June 2007, to the extent possible based upon the available evidence, subject to the following: - The value of the real estate is based upon appraisals as of July 7, 2010 and the associated debt from the most recent mortgage statements provided, as no evidence of property values or mortgage balances as of June 2007 were provided. - The value of the pension and RRSPs were reduced by 30% to reflect their pretax status. - No tax adjustment was made to 1708 and 1530 as they were principal residences that would not be subject to capital gains tax.

The values of 1414 and 1410 were reduced to reflect the estimated capital gains tax that would arise on disposition. - The pre-cohabitation assets that were excluded from the calculation were the balances in Mr. Williams’ RRSP and savings account and an estimate of his equity in the Brookside property. The other pre-cohabitation assets of both parties (to the extent established by the evidence) including furniture, vehicles or personal items were treated as offsetting and as absorbed in the parties’ accumulated assets. - Three gifts from Mr.

Williams’ father totalling $34,619 were excluded from the calculation as reflecting exempt assets acquired in the course of the relationship that should not be subject to Ms. Thompson’s claim for unjust enrichment. [ 45 ] There is a clear link between assets accumulated by the parties during the course of their relationship and Ms. Thompson’s contributions to the relationship. Her assumption of the majority of the domestic chores, her management of the real estate rental business and her assistance with the renovations enabled Mr.

Williams to continue working full-time at Lafarge throughout the relationship while pursuing the development of a real estate rental portfolio. [ 46 ] The next issue is to determine is what portion of the jointly accumulated wealth reflects Ms. Thompson’s contribution. I am satisfied that Ms. Thompson’s contributions were both different in nature and were overall significantly less than those of Mr. Williams. Mr. Williams worked full-time at Lafarge throughout the relationship, whereas Ms. Thompson worked full-time for only portions of the relationship and worked part-time and was unemployed at various times. Mr.

Williams contributed more assets when the relationship commenced. He was the only party on title to the real estate properties (with the exception of 1530 in 2007) and the only person liable on the mortgages and at risk for any liabilities associated with the properties. Mr. Williams came up with the deposits and made all of the mortgage payments, tax payments, insurance payments and utility payments and paid for all of the renovations on all of the properties throughout the relationship. On at least two occasions, Ms. Thompson was not prepared to assume the responsibilities of being on title.

While both parties had many outside interests, Ms. Thompson spent more time on these activities than did Mr. Williams. [ 47 ] Ms. Thompson was responsible for the majority of the domestic chores such as cooking, cleaning and decorating but Mr. Williams did some household chores, such as his own laundry. Ms. Thompson was responsible for the development and management of the real estate rental business, but received some monies from Mr. Thompson for the services she provided. While it is likely that Ms.

Thompson’s property management duties were more extensive when the business was initially established, the property managers that assumed Ms. Thompson’s duties were paid significantly less than what Ms. Thompson was receiving. Ms. Thompson participated actively, but to a lesser degree than Mr. Williams, in the renovation of Brookside, 1708, 1414 and 1530, and she was much less involved in the renovation of 1410.

[ 48 ] I assess Ms. Thompson’s overall contribution to be 30% and find that she is entitled to this proportion of the assets accumulated during the course of the relationship ($1,169,081), with the exception of the gain in value of 1410 ($211,966). I am of the view it would not be appropriate for her to share in the gain in value on a property she specifically elected not to participate in the ownership of and to which her contribution was quite limited in scope, relative to the other properties. As a result, she is entitled to 30% of $957,115 in the amount of $287,135.

As she has assets in her name totalling $268,900 (1997 Jetta - $3,000; MRS RRSP - $70,050; CIBC RRSP - $5,050; 1530 - $190,800), she is entitled to an equalization payment from Mr. Williams in the amount of $18,235. [ 49 ] The remedy which Ms. Thompson had been seeking involved both proprietary and monetary aspects. She was asking to have title to 1414 transferred into her name, while Mr.

Williams would continue to be responsible for the associated debt in respect of that property, plus have him pay her the sum of $93.312.74, which she calculated would result in equalizing the non-exempt assets acquired by the couple during the course of their relationship. The reason that she gave for seeking to have 1414 transferred into her name is the 1414 and 1410 properties have potential to be developed jointly, that she believes these properties are currently undervalued and that a transfer would enable her to share equally in the potential upside.

While I concluded that she was entitled to a lower proportional share of the accumulated assets, I would have rejected her proprietary claim in any event. There has been no evidence that 1414 is a unique property. If property in Canmore is currently undervalued, there are presumably other properties that are similarly undervalued in respect of which Ms. Thompson could invest any monies she received from Mr. Williams. Moreover, I see no justification to compel the parties to continue to deal with each other on a long term basis in respect of a real estate investment following the termination of their relationship.

B. Were Ms. Thompson and Mr. Williams adult interdependent partners? If so, what, if any, support should be provided by Mr. Williams to Ms. Thompson? [ 50 ] There is no doubt that Ms. Thompson and Mr. Williams were adult interdependent partners during the lengthy period of at least 18 years while they were cohabiting in a common law relationship. Section 3(1) (a)(

i) of the Adult Interdependent Relationships Act , S.A. 2002, c A-4.5, as amended provides that a person is the adult interdependent partner of another person if the person has lived with the other person in a relationship of interdependence for a continuous period of not less than three years. “Relationship of interdependence” is defined in section 1(1)(

f) as a relationship outside marriage in which any two persons share one another’s lives, are emotionally committed to one another and function as an economic and domestic unit. Ms. Thompson and Mr. Williams’ relationship meets this criteria. [ 51 ] Sections 56 - 60 of the Family Law Act , S.A. 2003, c. F-4.5, as amended provide for the payment of support to a former adult interdependent partner in certain circumstances.

Section 56 states that “(e)very spouse or adult interdependent partner has an obligation to provide support for the other spouse or adult interdependent partner.”

Section 57 provides that an application can be made to the court for an order requiring an adult interdependent partner to provide support for the other adult interdependent partner when the adult interdependent partners are living separate and apart. Sections 58 and 60 , which are reproduced below, outline the factors to be considered by the court in making an order and set out the objectives of an order. 58 In making a spousal or adult interdependent partner support order, the court shall consider: (

a) the conditions, means, needs and other circumstances of each spouse or adult interdependent partner, including: (

i) the length of time the spouses or adult interdependent partners lived together; (ii) the functions performed by each spouse or adult interdependent partner during the period they lived together; and, (iii) any order or arrangement relating to the support of the spouses or adult interdependent partners; (

b) any legal obligation of the spouse or adult interdependent partner having the support obligation under the order to provide support for any other person; and,

(

c) the extent to which any other person who is living with the spouse or adult interdependent partner having the support obligation under the order contributes towards household expenses and thereby increases the ability of that spouse or adult interdependent partner to provide support; and, (

d) the extent to which any other person who is living with the spouse or adult interdependent partner who is to receive support under the order contributes towards household expenses and thereby reduces the financial needs of that spouse or adult interdependent partner. 60 A spousal or adult interdependent partner support order should: (

a) recognize any economic advantages and disadvantages to the spouses or adult interdependent partners arising from the relationship or its breakdown; (

b) apportion between the spouses or adult interdependent partners any financial consequences arising from the care of any child of the relationship over and above the obligation apportioned between the spouses or adult interdependent partners pursuant to a child support order or a child support agreement; (

c) relieve any economic hardship of the spouses or adult interdependent partners arising from the breakdown of the relationship; and, (

d) insofar as practicable, promote the economic self-sufficiency of each spouse or adult interdependent partner within a reasonable period of time. [ 52 ] The objectives of an adult interdependent support order are set out in

section 60. In this case, both parties suffered stress as a result of the breakdown of their relationship, which was ongoing at the time of trial. Both parties will also suffer some economic disadvantages as a result of the termination of their relationship, which had been focused on developing a portfolio of investment properties that would fund their ability to retire early and travel. A particular objective of any support order in this case would be to promote the economic self sufficiency of Ms. Thompson within a reasonable period of time. [ 53 ] I will focus on the factors set out in

section 58(

a) as sections 58(

b) through (

d) are not applicable in this case as there was no evidence presented that either party had support obligations for any other persons or were living with any other persons. [ 54 ] Ms. Thompson and Mr. Williams lived together for at least 18 years. They had no children or other dependents. They both worked throughout their relationship. Ms. Thompson relocated on two occasions, from Listawell to Toronto and from Toronto to Canmore, due to Mr. Williams employment. From 1998 - 2007, Ms. Thompson’s income was principally derived from renting the real estate properties acquired by Mr. Williams.

While she earned some income from third party rentals during this period, she was not independently employed. [ 55 ] Ms. Thompson experienced difficulties following the separation. She was very upset and stressed and felt that she was living in “reno hell”. This was aggravated when she was attacked and bitten by a dog owned by one of the workmen. She was in a cast for six weeks and had physiotherapy for six months. After her mother died on March 7, 2008, Ms. Thompson inherited over $400,000.

By August of 2010, her portfolio was down to $76,000 due to a drop in the market and expenditures for living expenses and legal fees. [ 56 ] Ms. Thompson began seeing a psychologist, Dr. Doucette, for counselling as she was upset and crying. Ms. Thompson suffers from headaches which was acknowledged by many of the witnesses, although the degree and extent to which she is affected is a matter of some dispute. Ms. Thompson suffered from headaches since she was 22, which are aggravated when she is overtired or under stress. [ 57 ] Ms.

Thompson’s only employment from 1998 through separation in 2007, was in relation to operating the rental business. Following separation she applied for various jobs but obtained no employment for over 16 months. She was hired in November of 2008 to work six hours per day at $18.10/hour as the assistant to the assistant of the director of nursing at the Canmore Hospital. In early

December she was advised that she was not fast enough and was offered a job at the front desk. She was registered in an 18 hour computer course around the same time and was afraid she would be unable to handle working the front desk on her own over the Christmas holidays so she quit. The hospital job lasted two - four weeks. Her next job was 20 months later when she was hired to work at a fruit stand in Canmore for two Thursdays in September 2010. She lasted only one and one half days. At the time of trial, she had been working at a coffee shop.

She had worked 12 hours in September and 40 hours in October, from four to eight hours/day, as required. [ 58 ] There was conflicting evidence with respect to Ms. Thompson’s ability to work at the time of the trial. Dr. Duggleby, Ms. Thompson’s family physician, noted that Ms. Thompson suffers from “significant headaches, anxiety, sleep disruption, palpitations, distraction and difficulty with concentration”, all of which are aggravated by personal life stressors. She is currently on medications and the symptoms have been severe enough to have prompted referral to a psychiatrist.

He concluded that: At present I do not think that she is fit for work at full time employment presently, as it would significantly aggravate her symptoms/illness. With appropriate reduction in her stressors, continued support, and medication, I believe that she may be fit for work on a part time basis in the future. Any increase in her work would require reassessment in the future. [ 59 ] While Ms. Thompson apparently saw a psychiatrist this fall prior to the trial, no report from the psychiatrist was provided.

I am prepared to draw an adverse inference that his/her report would not have assisted the Plaintiff’s case. [ 60 ] Terra Taylor, the psychologist called by the Plaintiff, stated that Ms. Thompson met the DSM-IV criterion for a diagnosis of Major Depression, which she characterized as mild in degree. She described Ms. Thompson as presenting “with symptoms quite characteristic of a reactive depression to a significant change in life circumstances subsequent to the dissolution of her relationship with Mr.

Williams and the resulting emotional turmoil”, aggravated by a serious dog attack and the death of her mother that occurred shortly thereafter. She concluded: Ms. Thompson will face ongoing psychological challenges with respect to her psychological symptom management and treatment of her depression and anxiety, as well as her cognitive difficulties, general health (i.e. treatment of menopause symptoms), and with respect to her chronic migraines. Her presenting depression and anxiety required medical consultation and pharmaceutical intervention, as well as, a good deal of psychological intervention over time.

It is recommended that she benefit from ongoing psychological therapeutic support. Therefore, 30 to 60 sessions of psychological therapy would likely be warranted. The clinical interviewing, clinical observation and objective psychological testing indicate that currently Ms. Thompson is not a suitable candidate for recertification or full time employment. However, after receiving treatment for here depression and anxiety, she may want to consider a part-time position with flexible hours. [ 61 ] By contrast, Dr. Mandel, the psychologist called by the Defendant, was of the view that Ms.

Thompson suffered from an adjustment disorder with anxiety, rather than a major depression, and that these issue would “resolve spontaneously, without the need for additional treatment, within six months after her separation agreement/divorce has been finalized”. He felt that 30 - 60 sessions of treatment suggested by Ms. Taylor were not necessary but acknowledged that 6 - 8 sessions might hasten her return to normalcy, but were not essential. [ 62 ] Dr. Mandel recognized that Ms.

Thompson has experienced headaches for many years but was of the view that there was little evidence to suggest that her overall ability to function has been significantly affected by her headaches. While Dr. Mandel felt that Ms. Thompson was “employable once her litigation is resolved, she will be starting at a new job and will have limited years remaining in the workforce before she is of retirement age”, that her earnings were “unlikely to fully mature for at least five years” and that she will be competing for jobs with younger applicants, which may be a disadvantage.

He felt there was no justifiable reason that would limit Ms. Thompson to working part-time and suggested a number of possible jobs for her that would not involve additional training or education such as a customer service clerk, hotel/motel desk clerk, travel counsellor, tour/travel manager, retail sales clerk, retail supervisor, receptionist or cashier, each of which would enable her to earn between $25,000 - $35,000/year. [ 63 ] I accept that Ms.

Thompson continues to suffer from headaches, but she has coped with these issues for many years and they did not prevent her from working previously on a full-time and part-time basis. I anticipate that over time she will be capable of working almost full-time once she no longer suffers from the stress associated with these proceedings. She may require some flexibility in gradually resuming more regular employment. It is reasonable to expect that Ms. Thompson should eventually be able to earn approximately $20,000 - 25,000 per year, while continuing to manage her health issues.

[ 64 ] Ms. Thompson’s budgeted monthly expenses are $3,401 (excluding legal fees) and Mr. Williams’ personal budgeted monthly expenses (excluding debt repayment, legal fees and debt reduction) are $4,244.46. Both budgets appear reasonable and consistent with the relatively frugal lifestyle adopted by the parties during the course of their relationship. [ 65 ] Following separation, Mr. Williams continued to provide monies to Ms. Thompson to cover expenses incurred in renovating her condo. In addition, he provided monthly support payments to her until October 2009.

He initially made payments of $2,700/month from June 1, 2007 until December 1, 2007. He then paid her varying monthly amounts until August 2008, averaging $2,375/month. He paid her $2,500/month from September 1, 2008 until October 1, 2009, for a total of $72,900. These payments were made both voluntarily, and pursuant to a Consent Order dated December 18, 2008, in which it was acknowledged that the Plaintiff received $18,900 interim spousal support in 2007 and that Mr. Williams would pay $2,500/month of interim spousal support on December 1, 2008, January 1, 2009 and February 1, 2009. Mr.

Williams states that no payments were made since October 2009 due to an inability to make appropriate arrangements for the payments to be tax deductible. [ 66 ] Mr. Williams has been continuously employed with Lafarge since 1981. His base salary is $92,500. While he received a bonus of $10,000 for 2008 and 2009, there is no certainty that this bonus will continue. Mr. Williams’ taxable income from 1989 through 2006 ranged between $49,308 (2003) and $98,258 (1998). His taxable income for 2007 was $93,390, for 2008 was $107,985 and for 2009 was $104,412.

While he is eligible for retirement, he is only 51 years of age and did not indicate any immediate intention to retire. There is no evidence of any health issues that would prevent him from continuing to work. His remaining real estate properties, 1414 and 1410, are essentially operating at a break even basis. [ 67 ] Mr.

Williams indicates that he is prepared to pay ongoing support on the following basis: - $2,500/month for the first year; - $2,500/month for the second year; - $1,500/month for the third year; - $1,000/month for the fourth year. [ 68 ] While the Draft Spousal Support Advisory Guidelines are in no way binding, they can provide some useful benchmarks. I have attributed annual income of $20,000 to Ms. Thompson (which I expect that she should be able to earn) and $100,000 to Mr. Williams, and a cohabitation period of 18 years, for the purpose of determining the support amounts that would be generated.

The result is a range of $1,800 - $2,400 for an indefinite duration. [ 69 ] I am satisfied that the support paid by Mr. Williams to Ms. Thompson following their separation in June 2007 through October 2009 was appropriate. Thereafter she is entitled to a declining level of support of $2,400 for the remainder of the first five years following separation in June 2007, reducing to $2,000 for the next two years and to $1,500 for the last two years. This declining level of support should assist Ms. Thompson in her transition to becoming self sufficient.

Spousal support shall terminate on July 1, 2016. [ 70 ] I am of the view that this arrangement reflects an appropriate balance that gives Ms. Thompson both the support and the incentive to assume responsibility for becoming self sufficient and provides certainty to both parties. Throughout the relationship Ms. Thompson worked at various jobs, assumed primary responsibility for domestic chores and from 1998 - 2007 worked exclusively in managing real estate rental properties, largely those owned by Mr. Williams.

As a result of this work history, coupled with her health issues, she faced significant challenges after separation. While it is unfortunate that Ms. Thompson has dissipated much of her mother’s estate, Mr. Williams is not responsible for Ms. Thompson’s financial decisions following the separation or for her failure to either obtain regular employment or seek consistent psychological therapy to address any issues preventing same. [ 71 ] The parties may contact me within thirty days to arrange to speak to costs if they are not able to agree how costs should be

addressed. Heard on October 25 th - 29 th , 2010. Dated at the City of Calgary, Alberta this 6 th day of May, 2011. J. Strekaf J.C.Q.B.A. Appearances: R. S. Foster, Q.C. and E. E. Dubon for the Plaintiff G. F. Graham, Q.C. for the Defendant