Rubin v. Gendemann, 2011 ABQB 71

Court of Queen ’ s Bench of Alberta Citation: Rubin v. Gendemann, 2011 ABQB 71 Date: 20110309 Docket: FL03 18439 Registry: Edmonton Between: Glenna Jean Rubin Plaintiff - and - Klaus Dieter Gendemann Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice A.B. Moen _______________________________________________________ I. Introduction.............................................................................................................. Page: 3 II.

Party Credibility...................................................................................................... Page: 5 III. Analysis................................................................................................................... Page: 6 A. Nature and duration of the relationship.................................................... Page: 6 1. The commencement of the Rubin / Gendemann relationship... Page: 7 2. The characteristics of an adult interdependent partnership...... Page: 8

3. Conclusion.................................................................................... Page: 10 B. Equitable claims by Rubin against Gendemann.................................. Page: 10 1. The real properties...................................................................... Page: 10 2. Rubin’s claims in equity.............................................................. Page: 11 3. Legal character of a common-law relationship......................... Page: 12 4. The legal framework for unjust enrichment................................ Page: 13 a.

An enrichment and corresponding deprivation............. Page: 14 b. Absence of juristic reason.............................................. Page: 14 5. Purchase of Butchart Drive......................................................... Page: 16 a. Enrichment and deprivation............................................ Page: 16 b. Juristic Reason................................................................ Page: 21 6. Is Rubin entitled in equity to any of the other real property owned by Gendemann?.......................................................................................................

Page: 21 a. The Duplex........................................................................ Page: 22 b. Pigeon Lake..................................................................... Page: 22 c. George Court................................................................... Page: 24 i. Acquisition of George Court............................... Page: 24 ii. Renovation of George Court............................... Page: 25 iii. Maintenance and operation of George Court... Page: 26 iv. Expansion and development of George Court. Page: 27 v. Entertainment services........................................

Page: 28 vi. Conclusion............................................................ Page: 29 d. Seclusion Bay.................................................................. Page: 29 e. Courtney Property............................................................ Page: 30 f. Scottsdale......................................................................... Page: 31 g. Ikon.................................................................................... Page: 32 h. Conclusion - contributions to real property.................... Page: 32 7. Domestic support and housekeeping benefit...........................

Page: 33 a. The parties’ positions...................................................... Page: 34 i. Rubin..................................................................... Page: 34 ii. Gendemann.......................................................... Page: 34 b. The enrichment - Rubin’s domestic and household contributions Page: 34 i. Rubin’s direct domestic contributions............... Page: 35 ii. The nanny’s role in the household...................... Page: 35 iii. Rubin’s meal preparation................................... Page: 36 iv. Rubin’s entertainment services.......................... Page: 37 v.

Rubin’s other housekeeping activities.............. Page: 38 vi. Email communications........................................ Page: 38 vii. Rubin’s direct housekeeping activities in the holiday properties............................................................................... Page: 40

viii Rubin’s care for Gendemann’s mother............. Page: 40 ix. Rubin’s indirect housekeeping activities.......... Page: 41 x. Conclusion - enrichment...................................... Page: 41 c. The deprivation - Rubin’s loss........................................ Page: 41 d. Joint family venture.......................................................... Page: 42

i) Mutual effort.......................................................... Page: 44 ii) Economic integration.......................................... Page: 44 iii) Actual intent.......................................................... Page: 45 iv) Priority of the family............................................. Page: 46

v) Conclusion............................................................ Page: 46 e. Juristic reason.................................................................. Page: 46 f. Conclusion........................................................................ Page: 48 C. Child support............................................................................................ Page: 49 1. The parties’ positions.................................................................. Page: 49 2. In loco parentis............................................................................. Page: 49 3.

Analysis......................................................................................... Page: 51 D. ‘Spousal’ support.................................................................................... Page: 53 1. The parties’ submissions............................................................ Page: 53 2. ‘Spousal’ support, legislation and the common-law................ Page: 54 3. Effect of the relationship and its termination............................. Page: 56 4. The children.................................................................................. Page: 56 5.

Hardship from the termination of the relationship..................... Page: 56 6. Support to restore economic self-sufficiency............................ Page: 57 7. The alternative support claim...................................................... Page: 58 8. Gendemann’s sabotage of Rubin’s Pfizer career................... Page: 59 9. Conclusion - ‘spousal’ support................................................... Page: 59 V. Conclusion............................................................................................................ Page: 60 VI.

Costs..................................................................................................................... Page: 60 I. Introduction [ 1 ] This trial addressed division of property between two persons who never married. While my analysis involves many facts and specific legal issues, there is one unifying question: whether under the principles of equity the Plaintiff, Glenna Jean Rubin (“Rubin”), can demand a share of the property owned by the Defendant, Klaus Dieter Gendemann (“Gendemann”).

[ 2 ] The parties began dating in December of 2001. Both had been previously married. Gendemann was divorced and Rubin was separated. At that time, Gendemann was 45 years of age and was working as a psychiatrist at the University of Alberta. Rubin was 42 years of age and employed as a pharmaceutical sales representative for Pfizer Canada. [ 3 ] Their dating relationship evolved into one in which they lived together as a common-law couple. The parties disagree as to when the common-law (adult interdependent partnership) relationship began.

The parties separated in January 2009. [ 4 ] Both parties had children from their marriages. Both of Gendemann’s children were essentially grown up at the time Gendemann and Rubin began dating. Rubin’s children were ten and seven. [ 5 ] During the course of their relationship, many properties were purchased by Gendemann in his name alone and those properties have accrued in value. One of the properties purchased by Gendemann was the home in which Rubin and her children lived. [ 6 ] As a psychiatrist, Gendemann earned a considerable income each year.

As a sales representative, Rubin earned substantially less than Gendemann. In 2007, she took a termination package from Pfizer Canada and thereafter worked as a consultant in a variety of capacities. She is now again employed full time on contract with Pfizer. [ 7 ] The parties broadly disagree as to the division of the property obtained during their relationship. Rubin claims that she should be entitled to half of the accrual in value of the property on the basis of equity.

She also claims that Gendemann was in loco parentis to her two children and should, therefore, pay child support to top up the child support she receives from her former husband and father of those children, Jeff Rubin. Finally, if she does not receive half of the accrued value in the property, Rubin claims a lump sum of ‘spousal’ support. Additionally, Rubin claims ‘spousal’ support for a period of approximately 12 months in 2009, prior to her return to full-time work at Pfizer. [ 8 ] Gendemann completely disagrees that he stood in place of a parent to her children.

Further, Gendemann denies Rubin is entitled to any of the property in his name or any form of ‘spousal’ support. [ 9 ] Pursuant to an order of Yamauchi , J., Gendemann has paid $5000.00 per month to the Plaintiff between June 15, 2009 and the date of trial; that payment is not designated either as spousal support or as payment for property.

Gendemann has also paid for the mortgage, municipal taxes, and insurance of the house occupied by Rubin and for Rubin’s car insurance payments. [ 10 ] Very recently the Supreme Court of Canada handed down an important decision about the division of assets between domestic partners: Kerr v. Baranow , 2011 SCC 10 [“ Kerr ”]. It is to the analysis in this decision that I turn to determine the issues concerning division of property and spousal support. [ 11 ] The questions that must be answered in the case before me are the following: 1.

Is Rubin entitled to any of the accrued value in the properties purchased by Gendemann during the duration of the relationship? If so, on what basis does that right arise and how do we calculate the value if there is one? 2. Did Gendemann stand “in the place of a parent” to Rubin’s two children? If so, what is the child support payable? 3. Is Rubin entitled to any adult interdependent support?

[ 12 ] Before turning to these issues I will address a critical preliminary question, the relative credibility of the Plaintiff and Defendant. In many respects their evidence diverges broadly. Since that inconsistent evidence is often crucial to my analyses I will first comment on my general assessment of the credibility of these two key witnesses, Rubin and Gendemann. II. Party Credibility [ 13 ] Many of my conclusions in this judgment are flavoured by my assessment of the credibility of the parties.

As sometimes occurs in family law matters the parties have dramatically different recollections on many crucial facts. In certain instances I do not have documentation or independent third party testimony to assist in my evaluation of these alternative histories. When documentary evidence is absent each party indicates the other had the relevant records. The origin of funds for specific payments and costs is disputed. [ 14 ] I generally prefer Gendemann’s evidence where the testimony of the former domestic partners differs.

This preference is not primarily grounded in the demeanor of the parties in court, but rather due to a recurring pattern. Rubin’s testimony tended to conflict with the evidence from other sources, particularly those persons who had no obvious alignment with either party. There are other disquieting facets of Rubin’s character which emerged at trial. [ 15 ] Rubin appears to have provided the courts with inconsistent sworn testimony. For example, affidavit evidence filed by Rubin in relation to her first marriage and divorce is inconsistent with the testimony given at this trial.

In each case, Rubin characterized her relationship with Gendemann in a manner that maximized her legal advantage in the relevant proceeding. [ 16 ] Certain aspects of Rubin’s testimony does not correlate well with her other comments on the same or related matters. An excellent illustration of these internal inconsistencies is the manner in which she describes Gendemann. At certain times she describes her former domestic partner as generous and loving. Yet she also says on other occasions that he was physically abusive even when the two lived separately.

This Jekyll and Hyde characterization includes social and financial aspects. Sometimes Gendemann is described as generous, eager to provide all manner of luxuries and conveniences to his companion and her daughters, yet at other times he is tightfisted, insisting on disclosure of Rubin’s financial secrets, demanding she sell him her home. Which is it? It is difficult to align and correlate these very different portraits of the same man. [ 17 ] There is no question that Rubin grossly exaggerated certain of her activities.

A good example of this hyperbole is the manner in which Rubin characterized her relationship with the Defendant’s elderly mother, Amanda Gendemann. Rubin claims she regularly visited and assisted Amanda Gendemann, though other witnesses consistently indicated that Rubin had all but no contact or involvement with Defendant’s mother and instead viewed the mother in a hostile manner, as “demanding”. That is supported by documentary evidence; for example Rubin’s name was never logged in the visitors registry at the care centre where the mother resided. The notes made by Rubin’s psychiatrist, Dr.

Kathy Kirdeikis, recorded Rubin’s unfavourable perception of Gendemann’s mother. [ 18 ] The malleable state of Rubin’s truths are not limited to this court proceeding. Rubin’s corporate business cards, her resume, and her prior evidence indicate that she had received a B.Sc degree, yet on the stand she acknowledged that she had never completed that program. [ 19 ] Finally, Rubin’s testimony has an decidedly opportunistic flavour. A theme will be apparent in my review that follows: Rubin provides testimony that would, if believed, favour her legal claim against Gendemann.

However, that evidence is all too often inconsistent, unsupported, or in conflict with evidence provided by other, independent witnesses. I have come to the conclusion that Rubin is quite comfortable exaggerating her commitments to her former domestic partner, and is equally eager to minimize the benefits she received during their relationship. [ 20 ] That is not to say that in all instances I have preferred Gendemann’s testimony but rather that I have exercised extra care in my evaluation of Rubin’s description and explanation of events during the relationship.

Gendemann’s testimony was also, at times, inconsistent or not supported by the documentary evidence. That said, and unlike the Plaintiff, I detected no systematic evidentiary issues with the Defendant’s testimony.

III. Analysis [ 21 ] To determine if Rubin is entitled to any of Gendemann’s property, I must: 1. First, determine the nature and duration of the relationship between Gendemann and Rubin; and 2. then address whether there is any claim proved by Rubin in equity that entitles her to a share of Gendemann’s property. A. Nature and duration of the relationship [ 22 ] The length of the relationship is important as the only relevant changes in value of Gendemann’s property are those that occurred during the relationship.

Further, the answer to this question is important in determination of entitlement, duration, and quantity of partner support. [ 23 ] In Alberta, the features and requirements for a common-law relationship are now codified in the Adult Interdependent Relationships Act , SA. 2002, c. A-4.5. Rubin maintains that she and Gendemann were adult interdependent partners. A person is the adult interdependent partner of another person if the two individuals have lived a relationship of interdependence for a continuous period of not less than three years: Adult Interdependent Relationships Act , s. 3.

Gendemann does not dispute that he and Rubin were adult interdependent partners. [ 24 ] The parties disagree, however, as to the length of the relationship. Both parties agree that they separated in January 2009, so their disagreement is a result of each having a different opinion on when the relationship commenced. Rubin’s position is that the parties were in a common-law relationship for approximately seven years. Gendemann disagrees, and says that the relationship was for five and a half years. 1.

The commencement of the Rubin / Gendemann relationship [ 25 ] Neither party disputes that Rubin and Gendemann started to date in December 2001. At that point she and her two children lived in her house - the Butchart Drive property, while Gendemann was living in a basement suite in his mother’s residence.

Gendemann ultimately moved in with Rubin and her children, though the parties disagree on how that transition occurred. [ 26 ] Rubin testified that Gendemann stayed over for the first time in January 2002 and that he started living with her permanently in early 2002, though she was not specific as to a particular date on which that cohabitation commenced. Rubin said that Gendemann gradually moved his clothes and toiletries into her home, overall his relocation from his mother’s residence occurred bit by bit.

Her neighbour, Jennifer Anderson, had noted Gendemann’s car was often parked outside the Butchart Drive property overnight. [ 27 ] Gendemann says that they began living together in July 2003 when he moved out of his mother’s basement suite and transferred his furniture into Rubin’s home.

He agrees that he and Rubin were dating and that while he stayed over at the Rubin residence from time to time during that ‘dating’ period, the frequency of sleep-overs increased until July 2003 when Gendemann permanently moved into her place. [1] [ 28 ] That timeline is supported by the testimony of Mercedes Ponseca [“Mery”], who was employed throughout this period by Rubin as a nanny and general housekeeper.

I will comment later in more detail on this individual’s activities but at this point it is sufficient to say that Mery was ideally positioned to comment on the character of Gendemann’s presence in the household. [ 29 ] Also problematic is that Rubin’s testimony at trial is inconsistent with other evidence she gave during her divorce proceeding.

[ 29 ] Also problematic is that Rubin’s testimony at trial is inconsistent with other evidence she gave during her divorce proceeding. In December 2001, Rubin was in the process of getting a divorce from her former husband, Jeff Rubin. A matrimonial property settlement agreement with her former husband had been completed in December 2001. At the time, Rubin was on long-term disability for a broken ankle. Her divorce was finalized in February 2002. [ 30 ] In May 2004 Rubin swore an affidavit that related to an action between Rubin and her former husband [“the May 2004 affidavit”].

In that affidavit Rubin indicated she and Gendemann had lived together “for about the last year” and that Rubin and Gendemann had “been involved” for about two and one-half years [Exhibit 2, binder 7, document 23, para. 14]. [ 31 ] The May 2004 affidavit time-line correlates better with Gendemann’s testimony at this proceeding, and supports his suggested cohabitation start date. I note this later date of cohabitation indicated in the May 2004 affidavit probably entitled Rubin to additional support in the divorce action. 2.

The characteristics of an adult interdependent partnership [ 32 ] Both parties and other witnesses agreed that what occurred here was an escalating process in which the couple became more and more involved. In light of that progression it is useful to see just how the Adult Interdependent Relationships Act , s. 1(

f) defines a “relationship of interdependence”: 1(f) “relationship of interdependence” means a relationship outside marriage in which any two persons: (

i) Share one another’s lives; (ii) are emotionally committed to one another; and (iii) function as an economic and domestic unit; ... [ 33 ] There was no real dispute that Rubin and Gendemann met the first two requirements, that is, they did share one another’s lives and during the relationship appeared to be emotionally committed to one another. Here and for the purpose of our analysis, it is the economic and domestic integration which is the critical criterion.

The Adult Interdependent Relationships Act provides specific guidance on factors that may be relevant to evaluate the existence of an economic and domestic unit: 1(2) In determining whether two persons function as an economic and domestic unit for the purposes of subsection (1)(f)(iii), all the circumstances of the relationship must be taken into account, including such of the following matters as may be relevant: (

a) Whether or not the persons have a conjugal relationship; (

b) the degree of exclusivity of the relationship; (

c) the conduct and habits of the persons in respect of household activities and living arrangements; (

d) the degree to which the persons hold themselves out to others as an economic and domestic unit; (

e) the degree to which the persons formalize their legal obligations, intentions, and responsibilities toward one another;

(

f) the extent to which direct and indirect contributions have been made by either person to the other or to their mutual well being; (

g) the degree of financial dependence or interdependence and any arrangements for financial support between the persons; (

h) the care and support of children; (

i) the ownership, use and acquisition of property. [ 34 ] The circumstances listed in Adult Interdependent Relationships Act , s. 1(2) “may be relevant”, so each of these items may not necessarily apply to my analysis. With Gendemann and Rubin there are several items which I do see as particularly important. From the very beginning of the relationship there was what could be categorized as a financial dependence by Rubin on Gendemann. Succinctly, Gendemann paid for many of Rubin’s costs and debts.

That said, I do not see this kind of dependance as immediately knitting the couple into an adult interdependent partnership. There is very strong evidence that Gendemann had not immediately committed to total financial support of his new partner, especially the specific manner in which Gendemann purchased the Rubin home. This purchase is discussed in more detail below. Rubin also testified that she had originally planned to repay Gendemann for his financial assistance.

It appears that she did insofar as anything he paid on her debt prior to his purchase of the Butchart Drive property was considered to be included in the purchase price of that property as I explain below. [ 35 ] There is a latter point in their relationship where Gendemann clearly is footing the bill for Rubin’s support and lifestyle, but during the pre-July 2003 period the two parties finances were still structured as being independent. [ 36 ] Otherwise, prior to July 2003, the parties are best described as retaining independent households and living arrangements.

There were two domestic units, though often Gendemann was paying for costs of both. Gendemann was not a caregiver for Rubin’s children. The house purchase, which was the chief formalized element of their property and economic interaction, was functionally a scheme that had the effect of keeping their property and obligations separate and discrete, rather than merging their affairs into a single economic unit. 3.

Conclusion [ 37 ] I find, based on the evidence of Gendemann, Rubin, Mery, and others, that Gendemann moved in with Rubin in July 2003 and then commenced the kind of more permanent relationship anticipated under the Adult Interdependent Relationships Act . Until July of 2003, the interdependence of the parties was not established. Given that the separation date is January 2009, the length of the relationship therefore was five and a half years. B.

Equitable claims by Rubin against Gendemann [ 38 ] Rubin claims 50% of the increase in value of properties owned by Gendemann prior to the co-habitation and purchased by Gendemann during the co-habitation. In particular, she claims an interest in real property held solely in Gendemann’s name. Rubin makes this claim in equity and in particular in unjust enrichment.

She does not make an equitable claim against all of the properties. [ 39 ] I shall discuss the case of Kerr throughout these reasons, but for the purpose of Rubin’s claim in equity, I can say that she cannot now claim an interest as a resulting trust as the Supreme Court of Canada has now removed that remedy in matrimonial claims as, it says, it is no longer necessary to achieve a just result. [ 40 ] I shall first describe the real properties involved in this claim.

1. The real properties [ 41 ] During the relevant period Gendemann either owned or acquired a number of items of real property. [ 42 ] Gendemann as of July 2003 owned the following real property: 1. A house located at 430 Butchart Drive, Edmonton, transferred from Rubin to him in June 2003 and valued at $300,000.00 [“Butchart Drive”]; 2. A cottage in Pigeon Lake, Alberta, owned by Gendemann prior to the start of the relationship and valued at $200,000.00 [“Pigeon Lake”]; 3.

A cabin located in George Court, Westbank, British Columbia, bought by Gendemann in November 2002 and valued at $640,000.00 [“George Court”]; and 4. A duplex located in Edmonton, owned by Gendemann jointly with his mother [the “Duplex”]. [ 43 ] Subsequent to July 2003, Gendemann also purchased: 1. A one-third interest in a 150 acre property on Lake Okanagan called Seclusion Bay [“Seclusion Bay”]; 2. A property in Courtney, British Columbia [“Courtney”]; 3. A one-quarter share in a golf holiday home in the Scottsdale neighbourhood of Phoenix, Arizona [“Scottsdale”]; and 4.

A one-third interest in a newly constructed condominium in Edmonton, the Ikon Omega Condominium [“Ikon”]. [ 44 ] Rubin does not claim an interest in either the Duplex or Ikon. She does however claim that she has contributed to these other properties and deserves a 50% share in the increase of their values during the adult interdependent relationship. [ 45 ] The parties do not dispute that Gendemann does not share legal title with Rubin for any of these properties and that he was the one who provided all the funds to make these purchases. 2.

Rubin’s claims in equity [ 46 ] Rubin claims that she did many things to enable Gendemann to enrich himself. I will examine the nature of the contributions that Rubin claims enriched Gendemann in the context of the evidence of a number of other persons who had an opportunity to observe Rubin and Gendemann and their respective roles in the relationship. [ 47 ] Rubin advances three largely discrete kinds of equitable claim on Gendemann’s property (other than the Duplex and Ikon).

[48] The first of these claims is that Rubin was not paid the full or a fair amount when she sold the Butchart Drive property toGendemann. She then claims in fairness that she still should own a part of that home. [49] A second and more general claim is that Rubin argues that in certain instances her activities directly contributed to the valueof the various properties owned or purchased by Gendemann.

This kind of ‘direct’ claim is sometimes described by the colourful phraseof “sweat equity”, which relates to its underlying concept - where a person puts unpaid labour and effort into maintenance orimprovement of a property, then that person’s “sweat” should deserve an interest in the property. [50] The last general equitable claim is essentially that the Rubin’s domestic contributions during the adult interdependentrelationship indirectly allowed Gendemann to allocate time and resources to income generating activities that would otherwise have beenconsumed in less productive ways.

McLachlin J. (as she then was) in Peter v. Beblow, (SCC), [1993] 1 S.C.R. 980, 101D.L.R. (4th) 621 quoted Lord Simon’s anthropomorphic description of this kind of benefit: “[t]he cock-bird can feather his nest preciselybecause he is not required to spend most of his time sitting on it.” The Alberta courts recognize that, in parallel with marriage,uncompensated domestic service labour in a common-law relationship can constitute an enrichment: Wright-Watts v.

Watts, 2005 ABQB708 at para. 9, 387 A.R. 293. [51] Further, in Kerr, at para. 91, the Supreme Court of Canada has confirmed that uncompensated domestic labour is oneindicator of possible intention by two common-law partners collaborating towards common objectives, an indication “... the parties haveformed a true partnership and jointly worked towards important mutual goals.” That may indicate a kind of integrated household thatJustice Cromwell describes as a “joint family venture” (paras. 87-99)/ [52] Rubin claims that in equity Gendemann owes her both directly for her ‘sweat’ and indirectly for her ‘nesting’ activities. 3.

Legal character of a common-law relationship [53] As this was a common-law relationship (adult interdependent partnership), the Matrimonial Property Act, R.S.A. 2000, c. M-8does not apply: see Kopr Re v. Kopr, 2009 ABQB 93 at para. 45, citing Davidson v. Loucks, 2008 ABQB 154 at para. 17; Behiels v.McCarthy, 2010 ABQB 281 at para. 16. That legislation provides a scheme by which married persons can divorce and divide up thematrimonial property. [54] The couple’s choice not to marry is very significant for how any dispute on property ought to be resolved. In Nova Scotia(Attorney General) v.

Walsh, 2002 SCC 83 at para.55, [2004] 4 S.C.R. 325, Basterache J. explained that: ... people who marry can be said to freely accept mutual rights and obligations. A decision not to marry should be respected because italso stems from a conscious choice of the parties. See also Hartshorne v. Hartshorne, 2004 SCC 22 at para. 36, [2004] 1 S.C.R. 550. The courts generally respect the choices a couplemakes as to how they structure their economic affairs for example, by marriage. [55] While an unmarried couple chooses not to use the matrimonial legislation, rights in equity remain.

Unmarried partners maymake a claim for a share of the property through a claim in unjust enrichment with a remedy in money or property: Kopr at para. 45citing Panara v. Di Ascenzo, 2005 ABCA 47, 361 A.R. 382 at para. 22, referring to Nova Scotia (Attorney General) v. Walsh. [56] A decision to live together does not, without more, “create a positive intention to contribute to and share in each other’s assetsand liabilities”: Shunamon v. Diegel, 2008 ABQB 291 at para. 15, 453 A.R. 199. [57] Thus we do not start from a presumption that Rubin and Gendemann share the property purchased and the accrual of assets in

the name of Gendemann that occurred during the relationship. Rubin needs to prove her claim to any of Gendemann’s property. [58] Specifically we must assess whether there has been an unjust enrichment on the part of Gendemann at the expense of Rubin.The Supreme Court of Canada in Kerr has now given us a clear analytical approach to determining such questions. 4.

The legal framework for unjust enrichment [59] Justice Cromwell of the Supreme Court of Canada reminds us (Kerr at para. 31) about the essence of the equitable doctrine ofunjust enrichment: At the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit which justice does not permit one to retain: Peel(Regional Municipality) v. Canada, (SCC), [1992] 3 S.C.R. 762, at p. 788.

For recovery, something must have beengiven by the plaintiff and received and retained by the defendant without juristic reason. [60] The principles that apply to the doctrine of unjust enrichment in domestic cases are the same principles that apply in all cases.Nevertheless, “the courts must apply those principles in ways that respond to the particular context in which they are to operate.” [Kerrat para. 34] [61] Rubin claims Gendemann has been unjustly enriched at her expense. A claim for unjust enrichment is established once threeelements are proven (Garland v.

Consumers’ Gas Co., 2004 SCC 25 at para. 30, [2004] 1 S.C.R. 629, Kerr, at para. 31): a. An enrichment; b. corresponding deprivation; and c. the absence of a juristic reason for the enrichment. [62] Kerr makes it clear that the analysis a court must follow is to first establish there has been an enrichment, then to find acorresponding deprivation and finally to determine if there is no juristic reason for the enrichment.

After the court determines that thesethree elements have been proved, the court must determine a remedy and assess any defences that are put forth by the defendant. [63] The determination of the enrichment and corresponding detriment is a straight forward economic analysis. Policy and moralquestions are left to the consideration of the third element - juristic reason: Kerr at para. 37. [64] Only once those three things have been established must the court determine the remedy.

Kerr, at para. 7, makes it clear thatthe old dichotomy of quantum meruit or constructive trust no longer exists where common-law spouses collaborate: [W]here both parties have worked together for the common good, with each making extensive, but different, contributions to the welfareof the other and, as a result, have accumulated assets, the money remedy for unjust enrichment should reflect that reality.

The moneyremedy in those circumstances should not be based on a minute totting up of the give and take of daily domestic life, but rather shouldtreat the claimant as a co-venturer, not as the hired help. [Emphasis added.] a. An enrichment and corresponding deprivation

[ 65 ] Here Rubin must first show that she gave something to Gendemann which he received and retained and by which he was enriched, and that the benefit she gave can be restored to Rubin in specie or by money. The benefit must be tangible. It may confer a benefit on Gendemann or spare him an expense he would have had to undertake. Second, Rubin must show a corresponding deprivation — that is that Gendemann has been enriched in a manner that corresponds to the deprivation which Rubin has suffered: Kerr , at paras. 38-39 . b.

Absence of juristic reason [ 66 ] It is at this stage of the analysis that the court must consider whether the enrichment, if there is one, is unjust.

Here the court does not evaluate the enrichment but determines if the defendant should keep that enrichment: Kerr , at para. 114 . [ 67 ] The Plaintiff, Rubin, must show no reason in law or justice for Gendemann to retain any benefit conferred by Rubin, if there is one, thereby making the retention of the benefit unjust in the circumstances of this case: Kerr , at para. 40 . [ 68 ] There are established categories of juristic reason available to deny recovery of a benefit bestowed which include contracts, valid common law, equitable or statutory obligations or an intention to make a gift.

If there is no established category the court may consider other juristic reasons to deny recovery for any benefit bestowed such as the reasonable expectations of the parties and other public policy considerations. For example, in a domestic partnership, one of the partners may have provided domestic services for the other. As is explained in Kerr , at para. 42 , Canadian courts have for some time recognized this constitutes value to the family because the other partner benefits from such services. Therefore, there is no juristic reason to deny recovery for domestic services.

Further such services obviously provide the concomitant deprivation to the spouse that provides them. [ 69 ] Cromwell J., in Kerr at para. 43 , explains the process to determine if there is an absence of a juristic reason. The court must undertake a two step analysis: 1.

Determine if one of the established categories applies; then 2. if it does not, consider the legitimate expectations of the parties and whether there is any other moral or public policy reason to deny recovery. [ 70 ] It is the plaintiff in the first step of the analysis that has the burden of showing that there is no juristic reason falling under the established categories to deny recovery of the benefit given to the defendant.

Once the plaintiff has shown a benefit has been conferred on the defendant, that there has been a concomitant deprivation on the part of the plaintiff and that there exists no juristic reason under the established categories, then the plaintiff has made out a prima facie case for unjust enrichment: Kerr at para. 43 . [ 71 ] At the second step of the juristic reason analysis, the defendant may rebut the prima facie case by establishing that there is a juristic reason for him/her to retain the benefit that does not fall within the existing categories.

This analysis may take into account whether the parties legitimate expectations and other moral and policy-based arguments to show that the retention by the defendant of the benefits is just: Kerr at para. 44 . [ 72 ] In this step of the unjust enrichment analysis, that the court may consider conferral of mutual benefits. This is a consideration of the extent to which the defendant has provided reciprocal benefits to the plaintiff. Justice Cromwell explains that reciprocal benefits would usually be considered at the defence and remedy stages of the analysis.

Consideration of mutual benefit conferral has a limited role to play in the juristic reason analysis, but is not excluded. It should “only be considered to the extent that it provides relevant evidence of a juristic reason for the enrichment”: Kerr at para.104 and 109. [ 73 ] I turn now to an analysis of the particular case before me to determine if there has been an unjust enrichment of Gendemann to the detriment of Rubin and if there has been, if there is an absence of a juristic reason to deny recovery.

[ 74 ] Rubin first claims that she contributed to the assets of the domestic partnership by providing the house at Butchart Drive to Gendemann without full compensation. Second, she claims that she contributed directly to the value of each of the properties through labour and other contributions (not financial). Third, she claims that she made a domestic contribution to the partnership for which she says she suffered a deprivation. [ 75 ] I shall examine each of these claims.

Given the nature of the evidence, when I discuss her contributions to the properties Gendemann brought into the domestic partnership I will examine her contribution to each of the properties in question and then review her domestic contribution. 5. Purchase of Butchart Drive [ 76 ] Here with respect to the property in which Gendemann and Rubin lived throughout their domestic partnership, the house which I refer to as the Butchart Drive property, I must first determine if Gendemann was enriched when Rubin transferred that property to him, and that enrichment resulted in a corresponding deprivation to her.

She says that an inequity exists, he says that he paid fully for that home and assumed the mortgage which he then paid. [ 77 ] Rubin had received the Butchart Drive home as part of her divorce settlement with her first husband, Jeff Rubin. She and her two children had lived there since 1992, nine years prior to her meeting Gendemann. She and her children lived there. The mortgage on that property in 2003 at the commencement of the domestic partnership was $199,000.00. [ 78 ] Gendemann purchased Butchart Drive from Rubin shortly before he moved into that home in July 2003.

When Rubin and Gendemann discussed payments on the house once he had moved in, he told her that if he was paying the mortgage, he wanted that house in his name. [ 79 ] The parties do not disagree this sale occurred, though their evidence on other aspects of the transaction is quite different. What is crucial here is whether Rubin received a fair market price for that property. If not, she may have retained an equitable interest in the property through the subsequent relationship and to the present day. a.

Enrichment and deprivation [ 80 ] In January 2002, Butchart Drive was valued at $240,000.00 and it had an outstanding mortgage of $204,000.00. A year and one-half later, when the home was transferred, the transfer document indicates a value of $330,000.00, an increase of $90,000.00. The mortgage was then $199,000.00. [ 81 ] Gendemann based his purchase of Rubin’s home on the $330,000.00 value, and assumed the existing mortgage ($199,000.00). A subsequent historical appraisal of the Butchart Drive property confirmed that its value at that time was actually $300,000.00.

I find that the value of the Butchart Drive property in June 2003 was $300,000.00. Gendemann therefore apparently paid more for the house than it was worth. However, it must be shown that Gendemann actually paid the difference between $199,000.00 and $300,000.00 which is $101,000.00. [ 82 ] For Rubin to show an enrichment and a corresponding deprivation she must show that she did not receive value for the difference between the mortgage and the value of the home. Rubin acknowledges that she was in deep financial trouble at the time Gendemann purchased the house.

She said that she had accumulated around $65,000.00 in debts, which were paid by Gendemann in 2002 on her promise to repay. Her primary asset, the Butchart Drive home, had a large associated mortgage. It was Rubin’s evidence that prior to Gendemann’s moving into Butchart Drive he knew her full financial circumstances.

Gendemann said that Rubin in the winter of 2002 had revealed that her debts were more extensive than she had previously disclosed; again he offered to help in the context of the purchase of the Buchart Drive property. [ 83 ] The first thing that I note is that the parties were not able to produce all of the relevant financial records for the period 2003

leading up to the purchase by Gendemann of the Butchart Drive home. Therefore, the payments Gendemann made to Rubin to assist her with her debt (both parties acknowledge this happened, it is the quantum that may be at issue) were not completely disclosed at trial. I will calculate the amounts Gendemann paid for which I have evidence. [ 84 ] It was Gendemann’s evidence, which I accept, that he agreed with Rubin to provide funds for a pre-sale renovation of the Butchart Drive house and to take over the mortgage, taxes, and insurance on the home, provided she sold him the Butchart Drive property.

The renovations were completed prior to Rubin selling the home to Gendemann and the commencement date of the domestic partnership. It was Gendemann’s evidence, and there was documentation to support it, that the renovations cost about $27,500.00.

Rubin acknowledged that the renovations were paid for by Gendemann and that a person who had previously helped Gendemann with some work at his Pigeon Lake cottage also helped her update the house in 2003. [ 85 ] There is no doubt that the change in value of the Butchart Drive property from January 2002 to when it was purchased by Gendemann in 2003 was, in part, accounted for by the renovations.

However, for the purpose of this evaluation, I am only taking into account the actual cash paid by Gendemann, not any increase in value resulting from an increase in the market or in the value of the house as a result of the renovations which may account for more than the renovations actually cost. I do not have any evidence about the reason for the increase in value of the Butchart Drive property from its valuation in early 2002 ($240,000.00) to the value in mid 2003. The only valuation I have for the Butchart Drive property is an historical appraisal for $300,000.00 at the time of the purchase.

We also know that the price on the transfer documents was $330,000.00, which is clearly inflated. [ 86 ] Taking into account the cost of renovations, we must be able to find that Gendemann paid Rubin an amount of $73,500.00 in addition to assuming the mortgage. [ 87 ] It was Gendemann’s evidence that their discussion about his buying the home would take into account the $65,000.00 he had paid on Rubin’s debt in 2002 prior to the sale of the house. That payment of her debt was acknowledged by Rubin.

The sale documents show that the $65,000.00 was a deposit on the sale of the house. [ 88 ] Adding the amounts he paid for debt and for the renovations together, he had paid $92,500.00 over and above assuming the mortgage. At a value of $300,000.00 he would still owe $8,500.00. These amounts take into account that Gendemann paid for the cost of the renovations to the Butchart Drive home and for the 2002 ($65,000.00) amounts he paid on Rubin’s debt. [ 89 ] However, he also paid other debt which was accounted for in the sale of Butchart Drive.

Gendemann paid an additional amount of approximately $31,000.00 on debt (Amex, Aerogold, RBC Platinum) owing by Rubin in the year 2003. [ 90 ] Gendemann said that late in 2002 Rubin revealed to him that she had much more debt than the $65,000.00 that he had already paid off. When she approached that subject again in November or December 2002, he again assisted her by putting her legal fees (from her first marriage) on an installment plan on one of his credit cards. Rubin at that time because of her debt was considering selling her home and moving to a smaller home.

Gendemann offered to pay the additional debt and buy the house from her. That would enable her and the children to stay in the same home. [ 91 ] According to Gendemann, Rubin offered to repay him for the money he gave her to pay her debts. At first, he offered her $275,000.00 for Butchart Drive and she agreed that he should pay that amount. However, in the spring, Rubin asked him to renovate. When she went to the lawyer’s office to sign the papers it became apparent that over the period of time in the late fall and spring she had additional debt over and above the amount of $65,000.00 he had paid in 2002.

At that time they altered the price of the house to $330,000.00 to offset the additional debt. In other words, Gendemann paid more for the house so that Rubin could walk away debt free and stay in the house with her children. [ 92 ] Taking all of this into account, I find that Rubin was well compensated for the sale of the Butchart Drive home to Gendemann. In fact, taking the value of the home at $300,000.00, Gendemann paid $22,500.00 more that the value. [ 93 ] Gendemann was very free with assisting Rubin in the pre-domestic partnership period and probably paid more than the amounts I have set out above.

However, to be completely fair to Rubin, I have only included the amounts that were proved through documentation. This calculation is based on documents before me, and not on additional amounts that were not proved because the credit card debt documents relating to Rubin were missing.

[ 94 ] Further, although the evidence established that he gave her cheques in that period in the amount of $15,000.00, I have not included that amount in my calculations because those funds may have been for living expenses. [ 95 ] Rubin also claims equity in the house because she says she made a significant contribution to the renovations. Rubin described her contribution to the renovations on Butchart Drive as obtaining paint (i.e. picking it up) and painting furniture.

I find that this benefit she allegedly bestowed on Gendemann was negligible. [ 96 ] On its face, Rubin received a fair, if not very generous amount, for the sale of her home. [ 97 ] However, Rubin also alleges that she was coerced into the sale of her home and that she was not paid for it, notwithstanding what the sale documents said.

I turn now to a discussion of these issues because if she proved them, the transfer may not be valid, and, if she was not paid, she would continue to hold an equitable interest in the property. [ 98 ] Rubin’s testimony is that she did not voluntarily sell Gendemann the Butchart Drive property, and that she was never paid the entire proceeds of that sale. Gendemann explained how his decision to buy Butchart Drive came after he had paid her debt in 2002, then discovered that she had much more debt than she had revealed and that she was going to have to sell the Butchart Drive home.

He said that the sale to him was to accommodate the repayment of her debt and to ensure that he would make the payments on the home. I accept Gendemann’s evidence in this regard. [ 99 ] There were aspects of the sale that cause concern. Rubin signed an “Acknowledgement of Independent Legal Advice” [the “Acknowledgement”] which was entered as an exhibit at trial. The Acknowledgement was signed by Rubin in June 2003, and is witnessed by Janice Gilmore, who was and still is Gendemann’s assistant.

Rubin agrees she signed the Acknowledgement but Rubin said at trial that Gilmore was not present when she signed that document, and Gilmore testified she has no recollection of the event. Rubin also says she never saw other documents relating to the purchase and sale of Butchart Drive including a Residential Real Estate Purchase Contract that was not signed by her or anyone else. [ 100 ] The legal work for the sale of the home from Rubin to Gendemann was completed by a lawyer retained by Gendemann. Rubin did not receive any independent legal advice at the time of the transfer.

Rubin suggested that Gendemann used intimidation methods to belittle her and he also promised her, she said, that they would grow old together and he would look after her. She said that she had signed the documents and an Acknowledgment because she was “scared”. [ 101 ] It would have been much better for Rubin to have independent legal advice. However, she is an intelligent and competent woman who had a job with responsibility. To suggest that she was not capable of seeking her own advice because she was somehow overborne by Gendemann stretches credulity.

I find that this does not invalidate the transfer of the land. [ 102 ] Her discussion at trial of her being “scared” had to do with her financial mess at the time and that his buying the house and paying off her debt “... would bring an end to the bad times so they could move forward”, that is that she and her children could move forward. They could remain in the house and she would be free of debt.

However, at trial she maintained she had sold the house and signed the Acknowledgment because of her vulnerability, which she implied coerced her sale of the Butchart Drive home. [ 103 ] These conversations occurred before Gendemann bought the house and moved in. She did not sell the Butchart Drive home to Gendemann because she was frightened of Gendemann. This was clear from her testimony. She made a bargain to her benefit and now wants this Court to believe she was coerced. I do not accept this. In reviewing the whole transaction, she did very well.

Not only did she save the home in which she and her children lived, but she got rid of her debt and Gendemann assumed the whole of the expense of paying the mortgage on the home in which she lived. [ 104 ] Another matter that might cause a court concern was that Rubin was under the care of a psychiatrist (Dr. Kirdeikis) throughout this whole period of time. The evidence established that the care was for counselling. It is notable that Rubin did not tell the psychiatrist about this transfer of land, nor that she had been coerced into the transaction nor that she was afraid of Gendemann at the time. I find that

the notes of her psychiatrist did not make out that she was in a frail state which would nullify the transfer to Gendemann and the absence of any indication of coercion in the psychiatric record is unexpected because Rubin was candid about many other aspects of her relationship with Gendemann. [ 105 ] Further, I have also found that Rubin was paid above market value. [ 106 ] The second point on which Rubin disputes the Butchart Drive transaction relates to how Gendemann paid (or allegedly did not pay) for the transaction. [ 107 ] The Acknowledgment states that Rubin acknowledged receipt from Klaus Gendemann in cash or equivalent: 1) the deposit of $65,000.00 and 2) the cash to close at $66,846.75.

Rubin said that she did not know how the $66,846.75 was arrived at. The combination of those two amounts is about $131,847.00, which if added to the assumption of the mortgage and considering the costs of the sale, comes to about $330,000.00. Rubin acknowledged that $65,000.00 had been paid on her debt by Gendemann but also says the couple did not keep exact track of how much had been paid. [ 108 ] At trial, Rubin denied having received the cash to close. I have set out above the calculations as to the transfer of the house and will not repeat them here.

I have concluded that she received, actually more than the cash to close, in further payments on her debt and for the renovations. [ 109 ] Counsel for Gendemann argued that if I went behind the documents that I would be breaching the parole evidence rule. I disagree with counsel that I would be breaching that rule. The contract in this case is very clear and no one disagreed with the terms of that contract. What was not clear was whether that contract had been fulfilled, that is, had Rubin received cash or equivalent in the amount set out in the Acknowledgment.

Put in a different context, the question is not the terms of the contract but rather its performance. In that sense the Acknowledgment stands alone as it potentially provides evidence on that critical point. [ 110 ] My conclusion is that, effectively, Rubin was paid the cash-to-close. I have the signed Acknowledgment and the evidence about Gendemann’s contributions to Rubin’s debt to support that the sale occurred and payment was made.

Following on my earlier comments on credibility, Rubin’s story of being cowed into selling Butchart Drive and never having inquired into whether she had been paid is incongruous given her appetite for money from Gendemann. It is hard to believe Rubin would have simply never inquired about the allegedly missing $66,846.75. [ 111 ] I therefore reject the Plaintiff’s claim that Gendemann was enriched by her in the transfer of the Butchart Drive property. Consequently, there was no concomitant deprivation on the part of Rubin.

Rubin had no remaining interest in that house once it was purchased by Gendemann. [ 112 ] At this juncture I will comment on Rubin’s claim that after she had completed the transfer she began to have discussions with Gendemann about putting her name back on the title. Although Rubin did ask for this Gendemann was not prepared to put her name back on without a contribution by her to the property. Therefore, I make nothing of this claim. b. Juristic Reason [ 113 ] I turn now to a brief discussion about the third element in a claim for unjust enrichment, that is juristic reason.

Given that I have found there is no enrichment and consequent deprivation, I do not need to discuss absence of juristic reason with respect to the Butchart Drive property. [ 114 ] I turn now to the second set of transactions for which Rubin claims an equitable remedy consequent to an unjust enrichment by Gendemann and that is her contribution to many other properties that Gendemann either brought into the relationship or bought during the domestic partnership.

6. Is Rubin entitled in equity to any of the other real property owned by Gendemann? [ 115 ] Rubin makes two categories of claims for the other property owned by Gendemann during their relationship, for her ‘sweat’ and for ‘nesting’ contributions.

I will first examine her direct contributions to the maintenance and improvement of these various properties. [ 116 ] In doing so, I am analysing the contributions on the basis of whether Gendemann was enriched by her contribution, whether there was a concomitant deprivation on the part of Rubin and whether there is an absence of a juristic reason why Gendemann should be enriched without Rubin having an equitable interest in the property. [ 117 ] In this analysis I shall review all the properties owned by Gendemann. a. The Duplex [ 118 ] Gendemann owned a duplex together with his mother.

He lived in this duplex until July 2003 when he moved into the Butchart Drive property with Rubin. Gendemann continued to own his share of the duplex until his mother was moved into a nursing home. Gendemann used the duplex as collateral for another property purchase which I discuss later. [ 119 ] Rubin does not make a claim on this property. I have no evidence that Rubin made any contribution to the operation or maintenance of this property; Gendemann has, therefore, not been enriched by Rubin in relation to this property. b. Pigeon Lake [ 120 ] Gendemann had owned a property on Pigeon Lake since 1982.

After he began dating Rubin, he and Rubin and Rubin’s children would go to this cottage for weekends during their summer vacations, and also for some weekends during the winter. Gendemann was the sole owner of the Pigeon Lake property. It was a place he, his friends, and his family including his mother would enjoy away from the city, and use for recreational activities such as boating on the lake and enjoying a barbecue. The cottage was a kind of ‘communal property’ used by Gendemann and his circle of family and friends. [ 121 ] Rubin is not asking her equitable claim be secured by this property.

That said, Rubin does argue she put considerable effort into the cottage and gave extensive evidence about what she had done to improve the cottage at Pigeon Lake. [ 122 ] Rubin said that she first went to Pigeon Lake in December 2001. She and her children also visited Pigeon Lake in the summer of 2002.

Rubin reports Gendemann told Rubin that she was to treat the cabin at Pigeon Lake as though it was her own and that is consistent with all testimony of how Gendemann expected members of his social group would use the cottage. [ 123 ] Consequently, on several occasions between 2001 and 2003, Rubin used the cottage at Pigeon Lake with her children and with friends of her children.

The frequency of these visits decreased as her children became busier with their extracurricular activities and as Rubin and Gendemann began in 2003 to holiday instead in Kelowna. [ 124 ] Rubin’s alleged contributions to the Pigeon Lake cottage occur in 2002, prior to the beginning of the relationship. Rubin said that she did a major cleaning and organized the closets at Pigeon Lake and added kitchen things to the cottage and decorating items. Further, she organized paperwork at the cabin. Rubin maintained that she had purchased some plants and planted some pots outdoors.

She also said that she had arranged some family pictures, built an Adirondack chair, and decorated two bedrooms by providing new bedding and similar contributions. Rubin claimed to have spent a whole weekend organizing the garage. Finally, Rubin testified that she had done all the household chores at the cottage and in the garage at that location.

[ 125 ] Evidence from several other witnesses was that the cottage changed little in the time that Rubin was involved with Gendemann. They describe the cottage as already well-stocked prior to Rubin’s involvement. Witnesses also described the rooms in the cottage and the rooms in the external buildings as remaining pretty much the same over the years. The evidence of others who went to the cottage was that everybody pitched in to get the jobs done. With respect to cooking, Gendemann always did the barbecuing and the others, including Rubin, would prepare the other foods such as salads.

The other witnesses disagreed as to the changes to the garage and simply observed that the garage might have been better organized by Rubin but that no extraordinary amount of work had been done. [ 126 ] With respect to the work done on the outside of the cottage after Rubin became involved with Gendemann in December 2001, all witnesses agreed that the landscaping work was done by contractors.

Further, the witnesses agreed that a company was retained on a regular basis to maintain the cottage landscaping. [ 127 ] Rubin complained that Gendemann would have guests frequently and that he would bring his mother with them almost every weekend. Rubin was very critical as to how Gendemann’s guests had left the cabin when they had used it for a vacation or weekends. She complained that Gendemann’s friends would deplete supplies at the cabin. Further, Rubin complained that one of the guests had done some reorganization in the kitchen and in personal drawers.

All of this was done primarily in 2002 prior to the commencement of the domestic partnership. [ 128 ] Again, this evidence on the state of the cottage is contested by the people Rubin had identified as Gendemann’s guests. They told a very different story and explained the usual guests kept the cottage in good order. [ 129 ] There was another consequence of Rubin’s presence at and use of the cottage.

Several people who were friends of Gendemann and had used the cottage prior to Rubin’s involvement testified that Rubin made them feel very unwelcome at the cottage and so they tended to avoid going there when she was present. Arguably, this reduced the ‘utility’ of the cottage for Gendemann. Ultimately these tensions led to Rubin simply not using this facility.

In particular, it was the evidence of several witnesses that Rubin did not like Gendemann’s children and, in fact, Rubin acknowledged that she stayed away from Pigeon Lake so Gendemann’s children could use the cottage. [ 130 ] In general, I find that Rubin did no more for the cabin at Pigeon Lake than would a thoughtful guest. Gendemann was not enriched by Rubin’s activities at the Pigeon Lake cottage, nor was she deprived by any of the work that she allegedly did. c. George Court [ 131 ] Rubin makes a claim in equity against a cabin, George Court, located in Kelowna. This is another ‘holiday’ property.

Gendemann is the sole owner on title. This property was purchased by Gendemann prior to the commencement of the domestic partnership. Rubin’s claim relates to the purchase, improvement, upkeep, and operation of George Court. Rubin agrees she did not contribute any money to the purchase of the George Court property, nor to the cost of the renovations, however, Rubin claims that she is entitled to an interest in the property because of her other contributions to that property. [ 132 ] Rubin says that she was instrumental in finding and purchasing the property and its subsequent renovations and ongoing maintenance.

Further she says that her broad responsibility to entertain Gendemann’s friends and relatives warrant a share in George Court. [ 133 ] After its purchase Rubin and Gendemann would spend about two to three weeks and possibly a couple of other weekends at George Court per year. Rubin’s children would sometimes join the couple. So would other people. Gloria Agar, a friend of Rubin’s, described Gendemann as generous and explained that he offered the cottage and its boats for her family’s use.

This account is consistent with Gendemann’s pattern on how he treated his holiday properties; he was generous with his property and with his friends. [ 134 ] I will break up my evaluation of Rubin’s alleged contributions to the George Court property into four subcomponents: property acquisition, property renovation, expansion, and ongoing maintenance and operation. In each case I will consider whether Gendemann was enriched by Rubin’s contributions and whether she was deprived by those contributions.

Finally, I will consider if there was an enrichment, whether there is any juristic reason to deprive Rubin of the enrichment.

i. Acquisition of George Court [ 135 ] I find that Rubin did not participate in finding or acquiring the property, George Court. Consequently, Gendemann was not enriched nor was Rubin deprived in this respect. [ 136 ] Gendemann purchased the George Court property in November 2002 with funds he had obtained from the sale of a property (his former house) he owned in Edmonton prior to meeting Rubin. Rubin does not allege she made any direct financial contribution to that purchase.

Gendemann has subsequently used the George Court property as security to finance the purchase of Seclusion Bay in British Columbia (another property I discuss later). George Court is also security for a line of credit for his professional corporation. [ 137 ] Rubin suggested in her evidence that she was deeply involved in searching for the property in Kelowna and was intimately involved in making the decision to purchase that piece of property. In short, her labour had made that purchase possible. [ 138 ] The evidence on this point given by two witnesses for the defence was very different.

Leo Gendemann (“Gendemann’s cousin”) testified that Gendemann had told him that he was interested in purchasing a property in Kelowna. Gendemann’s cousin therefore kept an eye out for a suitable property. One day he noticed an empty cabin on a lot in Westbank. Gendemann’s cousin directly contacted the people who owned that cabin and told them that his cousin, Klaus, wanted to buy a property.

When the cabin owners expressed an interest, Gendemann’s cousin turned the negotiation over to Gendemann, who then negotiated and purchased the property in his own name. [ 139 ] Rubin’s involvement in the Kelowna real estate market was unrelated to George Court. Gendemann was introduced to a realtor in Kelowna by Gordon Agar, the husband of a friend of Rubin’s, Gloria Agar. Gloria had known Rubin since 1982. The Agar’s live and work in Kelowna. This realtor showed Gendemann and Rubin properties in and around Kelowna. Rubin did not want to buy in the Westbank area.

Instead, she wanted to buy in another location because she had friends in that area. Gendemann however was not interested, and instead bought the Westbank property, George Court, that his cousin had scouted. [ 140 ] It is clear that Gendemann bought George Court with his own funds and was the person who made the decision. Rubin was involved in looking at certain other properties in Kelowna, but was not part of the decision to buy George Court, and as I noted, was actively opposed to that choice. I find as fact that Rubin played no significant

part in the identification and purchase of the George Court property. ii. Renovation of George Court [ 141 ] I find that Rubin did not contribute to the renovation of George Court in any way that enriched Gendemann or deprived Rubin. [ 142 ] Gendemann’s cousin described George Court as being “not in good shape”, and that point does not seem to be in dispute.

Rubin argues she had a significant role in the renovations, however, it is my conclusion that she did not participate in any extraordinary way in cleaning up and renovating the cabin. [ 143 ] Gendemann’s cousin testified he performed a number of tasks for Gendemann on the outside of the property without pay: cleaning up and painting the outside of the cabin; obtaining a contractor to remove several poplar trees; building sheds or arranging to have sheds built; arranging for and supervising the installation of a septic tank; cleaning the filthy deck.

Gendemann’s cousin found contractors to do some of the work, would get estimates and then would supervise the work when Gendemann was not present. He always first obtained approval from Gendemann prior to doing any work. Neither Gendemann nor any other witness observed Rubin doing any outside work at that cabin. [ 144 ] The inside of the cabin also needed work. Gendemann’s cousin was responsible for removing the old furniture. Inside he installed a shower and did a number of plumbing tasks. Gendemann’s cousin gave very specific evidence as to many other things he did with respect to the cabin.

Whenever he had to spend money he was reimbursed by Gendemann, but the cousin was never paid for any of

that work. [ 145 ] Rubin and Gendemann participated in the initial ‘clean up’ of the cabin’s interior to make the cabin habitable. This clean-up took place over two weekends. Over one of the two weekends that Gendemann and Rubin worked at the cabin to make it habitable, Gendemann and Rubin along with Rubin’s children stayed at Leo Gendemann’s house for a couple of nights. [ 146 ] Other interior and exterior renovations were done by other friends of Gendemann and Rubin. Gloria and Gordon Agar from Kelowna participated in the initial clean up, and were not paid for their labour on the cabin.

The first time Gloria Agar saw George Court was after Gendemann had purchased the property, while she and Gordon worked with Rubin and Gendemann to clean up the property. Gloria said that when the cleanup and decorating was done the cabin was more quaint and cute. [ 147 ] A new dock was constructed and Gendemann paid for that. While Rubin claims to be involved in the new dock’s planning and construction, I conclude the dock construction was arranged by Gendemann and Gordon Agar. Gendemann asked Gordon to supervise the construction of the dock.

Communication with respect to the dock took place by telephone and Gendemann used Rubin’s email as well. [ 148 ] The evidence was that Gendemann paid for the repair and upgrade of the property. The evidence also establishes that Rubin found some minor furnishings and supplies which were paid for by Gendemann. [ 149 ] I conclude that Rubin’s participation in the initial renovations was restricted to what were essentially friend helping friend.

While Rubin worked without pay, so did other friends and relatives, and indeed if anyone had an equitable claim on Klaus Gendemann, it would be his cousin Leo, as Leo was clearly the person chiefly responsible for the majority of interior and exterior renovations. The characterization of the work by Gendemann’s cousin, Rubin and the Agars could be characterized as friends and family pitching in to help a member of the family or a good friend. I see no basis for a claim by Rubin of enrichment against Gendemann for her participation in the George Court renovations. iii.

Maintenance and operation of George Court [ 150 ] Another aspect to cabin life is the ongoing maintenance of the property. During visits there is necessary maintenance work that must be done. Again, Rubin testified she had a critical role in maintenance of George Court and she specifically claims that she did all the cooking and cleaning while the family was at the cabin. [ 151 ] The other witnesses provided a different view and testified that cleaning had been contracted out. Someone came in and cleaned the cabin before visitors arrived. After the guests had left someone cleaned the cabin.

These cleaning services were paid for by Gendemann. [ 152 ] The boats were put into the water and taken out of the water by someone else - Gordon Agar. Initially, the care of the cabin and lot was done by paid workers, or was looked after by Gendemann’s cousin. The laundry was done by a local laundry service; Rubin arranged for the laundry to be done at a service near George Court and either Rubin or Gendemann dropped off and picked up laundry. Again, the laundry costs were paid for by Gendemann. Gendemann also bought a washing machine because towels needed to be done daily.

Testimony is consistent that it was Rubin who would do the daily towel laundry. [ 153 ] Landscaping was paid for by Gendemann; a commercial service looked after the yard. [ 154 ] Gendemann’s cousin was generally responsible for ongoing supervision and maintenance of the cabin when Gendemann was not there. He would open it up and shut it down and check in from time to time to ensure that everything was okay. He also dealt with some issues relating to neighbours of George Court.

During this whole period of time, Gendemann’s cousin never contacted Rubin. [ 155 ] In about 2004, Gendemann’s cousin was, as he put it, “getting old”. Gendemann then arranged for Gordon Agar to look after

the cabin. Thereafter, Gordon Agar has done a number of things at the request of Gendemann to maintain the property. Agar explained that for two years, he and Gloria cleaned the cabin prior to Gendemann and Rubin’s arrival. When Gendemann and Rubin were finished their vacation at the cabin, Rubin would give Gloria Agar any of the leftover food. Gloria would often do laundry such as towels and bedding, putting them back into the cabin clean for the next visit. [ 156 ] The ‘maintenance’ contributions by Rubin are insignificant, particularly in comparison to the efforts of other caretakers, both paid and unpaid.

Further, they are similar to what a “good guest” would do at someone’s cabin or cottage for the privilege of staying there free. iv. Expansion and development of George Court [ 157 ] Rubin also alleges that she had a role in planning future developments for George Court. She was dissatisfied with the cabin and wanted to build on the George Court property.

Rubin testified that she arranged for an architect to do some design work with a view to having a house built on the property, and that was another contribution to the property for which she claims an interest. [ 158 ] Rubin’s plans and desires are not in dispute, however those plans and intentions are ultimately irrelevant. Gendemann was adamant in court that he did not want to build on that property, and I believe that Gendemann had no intention of building a house at George Court. Gordon Agar testified Gendemann had specifically told him that he had no interest or intention to build anything at George Court.

Further, Pat Liviniuk testified that Gendemann at times simply indulged Rubin’s architectural schemes, at least so far as planning went, so as to avoid conflict. I see that as quite plausible. v. Entertainment services [ 159 ] Rubin also argues that in equity she deserves an interest in George Court on the basis of the ‘entertainment’ services she provided at that location. Rubin gave evidence that when she and Gendemann were at George Court there were always people there and those people were Gendemann’s friends.

Rubin says she worked herself to the bone to entertain Gendemann’s friends at George Court, and complained that she was exhausted by having to constantly entertain his friends. [ 160 ] This is one of the equitable claims that ‘bleeds’ between categories. One could characterize Rubin’s alleged entertainment contributions to life at George Court as a kind of domestic support, or alternatively that Rubin’s contributions had the effect of ‘improving’ the operations of George Court as a retreat for Gendemann and his associates.

For convenience I am including these activities here as part of Rubin’s contributions to the value of the George Court retreat. [ 161 ] The evidence simply does not support Rubin’s contention that Gendemann had an inordinate number of visitors at George Court and that these persons then were an imposition on Rubin. Gloria Agar agreed that there were often other guests at George Court. However, she and her husband Gordon observed that Rubin only welcomed her friends as guests. If visitors were not Rubin’s friends, Rubin would be upset, but that if they were her friends she would be happy.

The scope of Rubin’s complaints eventually led the Agars to wonder if even they were welcome. [ 162 ] Unsurprisingly, the result was that the evidence of all others who had been to the cabin was that they did not go often or did not go back because they felt unwelcome by Rubin. For example, notwithstanding all the work that Gendemann’s cousin did to make the place livable and consequently an enjoyable retreat for Rubin and her children, Gendemann’s cousin reported that Rubin was not welcoming when he attended at the cabin. Other witnesses echoed this.

Gendemann’s cousin can only recall being invited to George Court for one barbecue. Once, when he dropped in for a quick visit with other family members, Gendemann’s cousin reported that Rubin was rude and unwelcoming. Further, when Gendemann’s cousin came to Edmonton, which occurred about once a year, he was never invited to Rubin’s home at Butchart Drive, but instead would only see Gendemann in a restaurant. [ 163 ] With respect to food preparation at the cabin, the evidence of other witnesses was that Gendemann barbecued, Rubin prepared salads, and others brought food and helped clean-up.

There was also food brought in often from a local Italian restaurant.

[ 164 ] As I noted, Rubin’s own friends visited the cabin. Gloria and her husband had two daughters who were friends of Rubin’s daughters and who often stayed at the cabin when Rubin’s daughters were present. The four girls enjoyed each other’s company. Often Gloria and Gordon and their two daughters would be at the cabin for dinner. Gendemann would barbecue, Gloria would take a salad and help Rubin do some of the other cooking. The four teenagers were expected to clean up. There is no doubt that the two Agar girls were at George Court most of the time when Rubin’s two daughters were there.

Had Rubin’s daughters not been there, neither would the Agar girls. This company cannot be attributed to Gendemann or seen as an imposition by Gendemann on Rubin’s time and resources. [ 165 ] I conclude that Rubin’s domestic and meal-preparation contributions to George Court do not warrant an equitable claim on that property. vi. Conclusion [ 166 ] I find that Rubin did little to arrange for the purchase of the property, nor to clean it up, nor to build the dock, nor to maintain George Court. She did what any friend would do and certainly no more than Gendemann’s cousin or George and Gloria Agar did.

Further, I find that Rubin did not do an inordinate amount of work and certainly no more than any other guest who had the benefit of the cabin for holidays. The evidence was that Rubin enjoyed herself at the cabin and particularly that she enjoyed water sports and she was most often out in or on the water, enjoying the facilities. [ 167 ] In short, Gendemann paid for George Court and all the improvements on it. The improvements were contributed to by the Agars but principally by Gendemann’s cousin. The only effort put into the property itself by Rubin was the cleanup of the interior of the cabin on two weekends.

Thereafter, she benefited from the use of the cabin by herself, her two daughters, and their friends. She did what any person renting such a facility for a holiday would do, or a pe

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