Montgomery v. Schlender, 2012 ABQB 332

Court of Queen ’ s Bench of Alberta Citation: Montgomery v. Schlender, 2012 ABQB 332 Date: 20120518 Docket: FL03 09258 Registry: Edmonton Between: Cynthia Montgomery Plaintiff - and - Robert Schlender Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Cynthia Montgomery claims that Robert Schlender was unjustly enriched as a result of contributions she made to the household in which they cohabited in a common-law relationship.

She claims various remedies including an interest in the house in which they lived or its value. Mr. Schlender denies that he was unjustly enriched. [ 2 ] The parties met in 2001 when Ms. Montgomery lived in Red Deer. Mr. Schlender was married but separated at the time. When Ms. Montgomery ’ s job in Red Deer ended, she moved to Edmonton and lived with her Aunt. The developing relationship she had

with Mr. Schlender was significant in her decision to move to Edmonton. [ 3 ] In September 2002, 5 or 6 months after Ms. Montgomery moved to Edmonton, she and Mr. Schlender moved in together. They lived in a rented townhouse. They shared the rent and all the expenses of living together equally though there was no effort to account exactly to each other. [ 4 ] About the same time as they began to cohabit, Ms. Montgomery got a job with the WCB. Mr. Schlender worked for the WCB and he was instrumental in her obtaining her job. She worked in his section. She still works at the WCB. Mr.

Schlender left the WCB several years ago and is otherwise employed. [ 5 ] In 2003 Ms. Montgomery moved out of the townhouse and back to her Aunt ’ s house. She had discovered that Mr. Schlender had not been faithful to her. He had had sexual affairs with other women and she learned of at least one of them. Ms. Montgomery says she moved out in August. Mr. Schlender says it was in February. [ 6 ] In September 2003 Mr. Schlender bought a house in Sherwood Park. He paid $185,000 for it. He granted a mortgage of $181,000 on it to finance the purchase.

At the time of the purchase, therefore, he had $4000 equity in the house. [ 7 ] Ms. Montgomery had no involvement in the purchase of the house. She did not participate in selecting it, in financing the purchase, or in any of the dealings that resulted in the purchase. Mr. Schlender ’ s ex-wife did participate in the selection of the house. One of Mr. Schlender ’ s reasons for buying it was so that he would live relatively close to his ex-wife in order to facilitate access to his daughter of whom his ex-wife had custody. [ 8 ] Around the end of 2003, Mr. Schlender and Ms. Montgomery reconciled.

She moved into the Sherwood Park house. She says this occurred in November 2003. He says it occurred in early January 2004. According to her, their estrangement endured only from August to November, about 3 months. According to him, it endured from February 2003 to January 2004, almost a year. [ 9 ] The evidence of the parties is also in conflict on the subject of the nature of the reconciliation. Ms. Montgomery says that it was a restoration of their common-law marriage. Mr. Schlender says she told him she needed a place to live because her Aunt was selling her house.

She moved in as a tenant or roommate on an expense sharing, rent paying basis. [ 10 ] Between the restoration of the relationship in at least January 2004 until at least August 2006, a period of at least 31 months, they lived together in the Sherwood Park house. Their relationship was conjugal. They slept together in the master bedroom and had sexual relations frequently. There was another bedroom that was Ms. Montgomery ’ s room. She used it as a dressing room. She did not sleep in it. [ 11 ] During August 2006 there was a short period during which Ms. Montgomery was absent from the Sherwood Park house.

She says it was for 2 weeks when she went, at her grandfather ’ s request, to take care of her ailing grandmother so that her grandfather could assist another relative with harvesting. According to Ms. Montgomery, this did not constitute a change of residence for her. Neither did it constitute any change in the relationship between her and Mr. Schlender. She was simply away for 2 weeks. She testified that during that 2 weeks Mr.

Schlender came to the residence where she was taking care of her grandmother after work each day and on one occasion she and her grandmother cooked him dinner and took it to the Sherwood Park residence. She returned to the Sherwood Park residence before the end of August. [ 12 ] According to Mr. Schlender a dispute concerning use of the deck by Ms. Montgomery in early July 2006 resulted in his giving her notice to vacate. At about the same time she had decided to buy her own place. So she moved out in early August 2006.

However she discovered that she could not qualify for a mortgage and asked him if she could resume living in the Sherwood Park house as a tenant. He agreed on the condition that from that point on she pay her rent in advance given that before August 2006 some of her rental cheques had not been honoured.

[ 13 ] According to Mr. Schlender, there was great tension in their relationship after she returned in late August 2006. He no longer wanted her to live in his house. In mid June 2007 there was a serious altercation between Mr. Schlender and friends of Ms. Montgomery who were her guests for a party in the house (which Mr. Schlender did not attend until very late). The altercation was serious enough to result police involvement. In the aftermath Mr. Schlender evicted Ms. Montgomery from the house on June 18, 2007. [ 14 ] Ten days later, on June 27, 2007, Ms. Montgomery commenced this action. Mr.

Schlender ’ s Statement of Defence was filed on August 30, 2007. [ 15 ] Though her residency in the house had ended and this action had been commenced and defended, the sexual relations between Mr. Schlender and Ms. Montgomery did not end. The evidence indicates they ended just prior to the first session of Examinations for Discovery in this action which were held in November 2007. [ 16 ] On December 17, 2007, Mr. Schlender left 8 voice mail messages on Ms. Montgomery ’ s work voice mail. The messages were transcribed and are in evidence.

The general themes of the messages are abject apology, assurance of love and faithfulness, and proposal of marriage. In his testimony Mr. Schlender explained that these messages were the result of his emergence from the depression that had overtaken him following the events of mid June 2007. As I understood his evidence he was referring to depression caused by this action, not by the breakup of the relationship. He thought restoration of the relationship would solve the problems created for him by the existence of this action and the lis pendens filed against the title to his house by Ms. Montgomery. Ms.

Montgomery did not reply to his messages. [ 17 ] The evidence at trial indicated that the value of the house at the time of trial was approximately $335,000. The mortgage balance stood at $143,956.75. Accordingly, Mr. Schlender ’ s equity was $191,043.25. Ms. Montgomery ’ s claim is that 50% of that represents an unjust enrichment which Mr. Schlender should be required to restore to her. [ 18 ] The evidence established that during much if not most of the time Ms. Montgomery lived in the Sherwood Park home, there was another person besides Mr. Schlender living there as well. For 7 or 8 months a male friend of Mr.

Schlender ’ s who was going through a divorce lived there. He paid rent and bought his own groceries. For a couple of months Mr. Schlender ’ s brother lived there after he moved to Edmonton and before he found his own place to live. He did not pay rent but did buy groceries. Starting in 2006 Mr. Schlender ’ s nephew who was attending university lived there. He was living in the house when Ms. Montgomery moved out. Initially he did not pay rent but later began to pay rent and to contribute to the cost of groceries.

Property entitlement on dissolution of domestic relationships other than marriage - Relevance of the Adult Interdependent Partnership Act. [ 19 ] In Alberta, upon dissolution of a marriage, the parties to the marriage have a statutory right to receive a share of all property owned by both spouses and by each of them. Each spouse will receive an equal share unless the Court determines that equal shares would not be just and equitable. The right is created by the Matrimonial Property Act , RSA 2000, c. M-8.

The starting point right, the right to an equal share, is accorded purely on the basis of the status of the spouse as a legally married spouse. It is, in the first instance at least, an entirely status based right. [ 20 ] Parties to a “ common-law ” domestic relationship do not have the status of a legally married spouse and do not have the status based statutory right created by the Matrimonial Property Act . [ 21 ] Ms. Montgomery and Mr. Schlender were not legally married. Ms. Montgomery therefore does not have a statutory right to a distributive share of property acquired by Mr.

Schlender during the time they were together. She has no right to a share of such property based on her status as a partner to a common-law relationship. [ 22 ] There is a statute in Alberta that creates a legal status for parties to a common-law relationship. It is the Adult Interdependent Relationships Act , RSA 2002, c. A-4.5. That Act contains

definitions of “ adult interdependent partner ” and “ relationship of interdependence ” and identifies in significant detail the matters that must be taken into account in determining whether the relationship between two people is a relationship of interdependence (s. 1(2)).

[23] The Act itself grants no rights. It simply creates a legal status. Rights, obligations and consequences of the status arecontained in over 140 other statutory or regulatory provisions. The provisions of the Matrimonial Property Act are not among them. [24] Much of the evidence at trial was directed to the question of whether the relationship between Ms.

Montgomery and Mr.Schlender was a relationship of interdependence within the meaning of the Adult Interdependent Relationships Act, and whether theywere therefore adult interdependent partners. [25] However it is important, in my view, to recognize that nothing in this case turns directly on whether or not Ms. Montgomeryand Mr. Schlender were in a relationship of interdependence as defined by the Act. A determination that they had the status of adultinterdependent partners would not have a direct legal consequence in the context of Ms. Montgomery’s claim.

Her status as Mr.Schlender’s adult interdependent partner would not give her a right to a distributive share of property acquired by him during theirrelationship. [26] If Ms. Montgomery has a right to the remedy she seeks in this action, it will not be because of her status as an adultinterdependent partner. Rather it will be because the situation is one of unjust enrichment. [27] I emphasize this point because I derived the impression from the way both counsel approached the evidence and argumentthat they each considered the crucial question in this case to be whether Ms. Montgomery and Mr.

Schlender were in an adultinterdependent partnership. That, in my view, is simply not so. [28] The crucial question is whether the evidence establishes that Mr. Schlender was unjustly enriched. While some of the factsrelevant to a determination of whether the parties were in an interdependent partnership are also relevant to aspects of the unjustenrichment inquiry, a determination as to whether their relationship was or was not an adult interdependent partnership is not relevant. Such a determination is therefore unnecessary.

Unjust Enrichment [29] The law relating to unjust enrichment in the context of the dissolution of a non-marriage domestic relationship has recentlybeen reviewed and clarified by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10 , [2011] 1 SCR 269. [30] The elements which must exist before a remedy for unjust enrichment can be granted are: 1) The defendant must have received a benefit. 2) The benefit the defendant received must correspond to a detriment experienced by the plaintiff. 3) There must be no juristic reason justifying the retention of the benefit by the defendant. Did Mr.

Schlender receive a benefit? [31] Ms. Montgomery’s evidence was that while she lived in Mr. Schlender’s house she performed household chores, she madesignificant contribution to the cost of groceries, she paid Mr. Schlender a set amount each month which, on the cheques she wrote, shedescribed as “rent”, and she participated in several home improvement projects. The benefit Mr. Schlender received, she submits, is theresult of these 4 categories of contribution.

[ 32 ] That she contributed in each of these 4 areas is not in dispute though there is not complete consistency in the evidence as to the extent of her contributions in several of the categories. [ 33 ] According to Ms. Montgomery, she and Mr. Schlender did the household chores together. Some things were her jobs, some were his. He did the laundry, kitchen work and vacuuming. He did the bathrooms and dusting. She did 75% of the cooking. He did 95% of the outside work. Mr. Schlender ’ s evidence was not significantly different.

According to him, his assignments included washing the floors and they both did vacuuming, dishes and cooking. [ 34 ] As to groceries, Ms. Montgomery ’ s evidence included her bank account record which showed withdrawals presumably made using a debit card. She identified the entries which related to the purchase of groceries between July 22, 2002 and June 19, 2007. It appears she identified them by reference to the name of the store in favour of which the payment was credited. In many cases the stores named do not primarily sell groceries.

In any event she testified that the total of the entries she identified as relating to grocery purchases in that 5-year period was $23,979.12. She did not take the position that she was the only grocery purchaser. Her evidence was that both she and Mr. Schlender bought groceries for the house. Indeed for the last several months of her residency in the house, the cost of groceries was split among herself, Mr. Schlender and his nephew. Mr. Schlender paid 50% of the cost and both she and the nephew paid 25%.

There was no evidence as to whether she received partial reimbursement of what she spent in whatever reconciliation was done under this arrangement. [ 35 ] Neither did the evidence establish how much of the food Ms. Montgomery bought, Mr. Schlender ate. The evidence did give reason to infer that it was significantly less than half. Mr. Schlender is intensely involved in the sport of curling for 7 months a year. He testified that during that time he would probably only eat at home 1 night a week. There was also evidence that his credit card debt for restaurant meals was very high. The extent of the benefit Mr.

Schlender received arising from Ms. Montgomery ’ s grocery purchases was not established. [ 36 ] As to “ rent ” , the evidence indicated that when she started living at the Sherwood Park house Ms. Montgomery paid Mr. Schlender $300 a month. Sometime in mid 2005 she began paying $400 a month, usually in two payments of $200 each. In December 2005 she began paying $500 a month, usually in two payments of $250 each. She testified that though she wrote “ rent ” on the memo line of these cheques, the payment was really her contribution to household operating expenses. There was no rental agreement.

She testified that the total amount she paid in “ rent ” was $16,000. [ 37 ] As to contributions to the upkeep and improvement of the home, Mr. Schlender produced a list of 40 household improvement projects undertaken between 2003 and 2007. According to his evidence, he did 25 of them alone. He had help from someone other than Ms. Montgomery with respect to 4 of them. One of them was done entirely by a third party. Ms. Montgomery did one of them, painting the “ office ” , on her own. She participated with him on 4 others. He estimated the total hours spent in the 5 years on the 40 projects was 969 hours.

Of these, 775 were spent by him, 68 by Ms. Montgomery and 126 by third parties. He estimated that $15,060 was spent on these projects and all but $150 of it was paid by him. The remaining $150 was paid by a third party. [ 38 ] Ms. Montgomery was asked about Mr. Schlender ’ s list and estimates of time. She thought it was a “ grossly inaccurate portrayal ” . She was asked about each project individually. In most cases she acknowledged she had no involvement. In some cases where Mr. Schlender had indicated she was not involved, she testified that she had been involved. In my view her evidence did not show Mr.

Schlender ’ s list and estimates to be grossly inaccurate. [ 39 ] For the purposes of the unjust enrichment analysis, the work and payments made by Ms. Montgomery constitute a benefit received by Mr. Schlender. Did Mr. Schlender receive a benefit arising from a “ Joint Family Venture ” ? [ 40 ] I consider it appropriate at this point to address an aspect of the law of unjust enrichment clarified in Kerr v. Baranow in the context of remedy, the concept of a “ joint family venture ” .

It may appear that I am deviating from the order in which the various unjust enrichment issues logically should be considered, but, in my view it is necessary in properly dealing with Ms. Montgomery ’ s claim to consider whether the benefit Mr. Schlender received was received in the context of a “ joint family venture ” . This issue seems to me to be about the nature of the benefit or enrichment received.

[ 41 ] In my view the determination of whether the benefit should be viewed as involving assets not directly connected to what Ms. Montgomery contributed on the basis that she and Mr. Schlender were engaged in a joint family venture is properly done when considering the benefit or enrichment, even though the determination of whether the enrichment was unjust and the determination of what remedy should flow as a result, will not be made until later in the analysis. [ 42 ] In Kerr v.

Baranow Cromwell J., speaking for the Supreme Court, discussed the concept of a “ joint family venture ” when discussing the choice of method for calculating a monetary remedy for unjust enrichment. A defendant who has been unjustly enriched may be required to pay a monetary remedy calculated on the basis of the market value of the services which gave rise to the benefit.

Or, in the appropriate case, where the unjust enrichment is most realistically characterized as the retaining of a disproportionate share of assets resulting from a joint family venture, the monetary remedy should be calculated on the basis of the share of those assets which is proportionate to the plaintiff ’ s contributions. [ 43 ] In this case it is Ms. Montgomery ’ s position that her contributions as described above should entitle her to a share of the increase in equity in the Sherwood Park house which developed during the period she and Mr. Schlender cohabited there and since the end of that period.

According to Kerr v. Baranow , for her position to be correct, it must be established that she and Mr. Schlender were engaged in what Cromwell J. termed a “ joint family venture ” . [ 44 ] I pause to note that there is another possibility as to remedy – a proprietary remedy. I have concluded that if there was an unjust enrichment here, it would not be applicable. Had Ms.

Montgomery demonstrated “ . . . a link or causal connection between . . . her contributions and the acquisition, preservation, maintenance or improvement of the disputed property, a share of the property proportionate to the unjust enrichment [might be] impressed with a constructive trust in . . . her favour ” . ( Kerr at para 50 .) In my view the evidence in this case does not demonstrate such a link or causal connection. Doing domestic chores, paying for groceries, and paying toward house operating expenses, even if they constituted an unjust enrichment of Mr.

Schlender (which, as will emerge below, in my view, they did not), certainly did not link or causally connect to the acquisition, preservation, maintenance or improvement of the property. And Ms. Montgomery ’ s involvement in home improvement projects, (again if it constituted an unjust enrichment), was too modest to give rise to a proprietary interest. [ 45 ] I return to the concept of “ joint family venture ” .

In Kerr Cromwell J. observed as follows: (para 87) My view is that when the parties have been engaged in a joint family venture, and the claimant ’ s contributions to it 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 claimant ’ s contributions. In order to apply this approach, it is first necessary to identify whether the parties have, in fact, been engaged in a joint family venture . . . . It is critical to note that cohabiting couples are not a homogeneous group.

It follows that the analysis must take into account the particular circumstances of each particular relationship. Furthermore, as previously stated, there can be no presumption of a joint family venture. The goal is for the law of unjust enrichment to attach just consequences to the way the parties have lived their lives, not to treat them as if they ought to have lived some other way or conducted their relationship on some different basis. A joint family venture can only be identified by the court when its existence, in fact, is well grounded in the evidence.

The emphasis should be on how the parties actually lived their lives, not on their ex post facto assertions or the court ’ s view of how they ought to have done so. In undertaking this analysis, it may be helpful to consider the evidence under four main headings: mutual effort, economic integration, actual intent and priority of the family. There is, of course, overlap among factors that may be relevant under these headings and there is no closed list of relevant factors. What follows is not a checklist of conditions for finding (or not finding) that the parties were engaged in a joint family venture.

These headings, and the factors grouped under them, simply provide a useful way to approach a global analysis of the evidence and some examples of the relevant factors that may be taken into account in deciding whether or not the parties were engaged in a joint family venture. Mutual Effort [ 46 ] Concerning the first heading, Mutual Effort, Cromwell J. said: (para 90)

One set of factors concerns whether the parties worked collaboratively towards common goals. Indicators such as the pooling of effort and team work, the decision to have and raise children together, and the length of the relationship may all point towards the extent, if any, to which the parties have formed a true partnership and jointly worked towards important mutual goals. Joint contributions, or contributions to a common pool, may provide evidence of joint effort . . . . Pooling of efforts and resources, whether capital or income, has also been noted in the appellate case law . . . .

The use of parties ’ funds entirely for family purposes may be indicative of the pooling of resources . . . . The parties may also be said to be pooling resources where one spouse takes on all, or a greater proportion, of the domestic labour, freeing the other spouse from those responsibilities, and enabling him or her to pursue activities in the paid workforce. [ 47 ] There is very little in the evidence before me to support the conclusion that Ms. Montgomery and Mr. Schlender worked collaboratively towards common goals. [ 48 ] There was no evidence that during the time that Ms. Montgomery and Mr.

Schlender lived together in the townhouse (whether it was 6 months or a year) there was any discussion about buying a house in Sherwood Park or anywhere else. Further the evidence as to why Mr. Schlender bought a house – so that he could live near his daughter – indicates that the acquisition had nothing to do with Ms. Montgomery. The same conclusion is supported by the fact that Ms. Montgomery was not involved in the selection, financing or dealing to buy the house, though Mr. Schlender ’ s ex-wife was involved in the selection.

Clearly the acquisition of the house was not a common goal. [ 49 ] As to the home improvement projects, Mr. Schlender testified that he was advised by a real estate agent in 2006 as to what he might do to get the best value out of the house. The realtor made several suggestions. Mr. Schlender did some of the things that were suggested. A realtor testified and confirmed aspects of this evidence. It does not appear that this particular goal of maximizing the resale value of the house was in any sense a common goal held by Mr. Schlender and Ms.

Montgomery together. [ 50 ] Neither does it appear that the goals represented by the list of home improvement projects previously mentioned were common goals. I accept that though Ms. Montgomery participated in some of them, the level of her overall participation was very small compared to that of Mr. Schlender. One would expect a more even comparison of respective participation levels if the goals being pursued in the projects were “ common goals ” . [ 51 ] Other relevant features of the evidence align against the conclusion that the parties worked collaboratively towards common goals. According to Ms.

Montgomery they were together a maximum of 5 years with a minimum 3-month interruption. According to Mr. Schlender they cohabited initially for 6 months and then did not cohabit for almost a year, then cohabited for 30 months and then not for a month, and finally cohabited for a period of just short of 10 months - a total of 46 months or 3 years and 10 months. During their cohabitation they both maintained full-time jobs. They did not pool their earnings to be used for any common purpose.

Neither gave up their job or otherwise took on a disproportionate share of domestic responsibilities to free the other up to pursue a career, or any other end. [ 52 ] In the context of mutual effort, I observe that there was no suggestion in the evidence that at any time during the time Ms. Montgomery and Mr. Schlender cohabited, either in the townhouse or in the Sherwood Park house, there was any communication between them on the subject of Ms. Montgomery having any entitlement to participate in any appreciation in the value of the house. There is nothing to suggest that Ms.

Montgomery ever said she had such an entitlement or even speculated about whether she might. [ 53 ] Indeed there is nothing in the evidence to indicate that there was ever any recognition that there was any appreciation in the value of the house, or any discussion of its value whatsoever. [ 54 ] Apparently the only asset of significant value that Mr. Schlender had was the house. The appreciation in its value was largely the result of market forces which could not be significantly affected by the efforts of a joint family venture if one existed.

The only effort that might be made to “ built ” or “ create ” wealth was effort in connection with the home improvement projects. As noted, in my view Ms. Montgomery ’ s contribution to those projects was not of great significance and, in my view, she engaged in even those projects not for the purpose of increasing the value of the property but for the purpose of improving her living environment.

[ 55 ] There is nothing under the heading “ Mutual Effort ” that supports the conclusion that Ms. Montgomery and Mr. Schlender were engaged in a joint family venture. Economic Integration [ 56 ] In this context Cromwell J. observed in Kerr : (para 92 ) Another group of factors, related to those in the first group, concerns the degree of economic interdependence and integration that characterized the parties ’ relationship . . . .

The more extensive the integration of the couple ’ s finances, economic interests and economic well-being, the more likely it is that they should be considered as having been engaged in a joint family venture. For example, the existence of a joint bank account that was used as a “ common purse ” , as well as the fact that the family farm was operated by the family unit, were key factors in Dickson J. ’ s analysis in Rathwell . The sharing of expenses and the amassing of a common pool of savings may also be relevant considerations . . . .

The parties ’ conduct may further indicate a sense of collectivity, mutuality, and prioritization of the overall welfare of the family unit over the individual interests of the individual members . . . . These and other factors may indicate that the economic well-being and lives of the parties are largely integrated . . . . [ 57 ] The level of economic integration involving Ms. Montgomery and Mr.

Schlender was, on the evidence, extremely low: - There was no joint bank account. - Occasionally they borrowed money from each other but when they did they paid back the loan. - On one occasion she used his credit account at the vet ’ s office but testified that she was careful to obtain his permission before she did so. - She had at least three bank loans during the time they cohabited. She made the payments on all of them without any contribution from him. - They bought a piece of furniture together and each contributed half of its cost. - He bought a motor home and sold it a year or so later at a loss.

She had no say or financial involvement in the purchase or sale. - He bought a limousine and got in the limousine business with a friend. She thought this was foolish and said so, but she had no involvement. - He amassed a significant credit card debt for eating and drinking out in connection with his curling and baseball. She had no involvement in paying it off. - They did not tell each other how to spend their money. - His credit card was not her responsibility and vice versa.

- When she bought a new car he went with her to the dealership, but she chose the car and financed its purchase without his involvement. - Neither named the other as beneficiary in any coverages obtained through their respective employers or otherwise. - They did not file their tax returns as a couple. [ 58 ] They were not integrated economically. [ 59 ] Their conduct, especially Mr. Schlender ’ s, suggests there was very little sense of collectivity, mutuality and prioritization of overall family welfare.

For 6 or 7 months of the year he was absent from the house for many weekends and during the week in connection with his intense involvement in curling. He also spent one night a week exercising access to his daughter and accompanying her to her activities. It is difficult to conclude on the evidence that there was a Montgomery/Schlender family whose welfare held any priority for Mr. Schlender or Ms. Montgomery.

Actual Intent [ 60 ] Under the heading, “ Actual Intent ” , Cromwell J. said: (para 94) Underpinning the law of unjust enrichment is an appropriate concern for the autonomy of the parties, and this is a particularly important consideration in relation to domestic partnerships. While domestic partners might not marry for a host of reasons, one of them may be the deliberate choice not to have their lives economically intertwined. Thus, in considering whether there is a joint family venture, the actual intentions of the parties must be given considerable weight.

Those intentions may have been expressed by the parties or may be inferred from their conduct. The important point, however, is that the quest is for their actual intent as expressed or inferred, not for what in the court's view "reasonable" parties ought to have intended in the same circumstances. Courts must be vigilant not to impose their own views, under the guise of inferred intent, in order to reach a certain result. Courts may infer from the parties' conduct that they intended to share in the wealth they jointly created . . . .

The conduct of the parties may show that they intended the domestic and professional spheres of their lives to be part of a larger, common venture . . . . In some cases, courts have explicitly labelled the relationship as a "partnership" in the social and economic sense . . . . Similarly, the intention to engage in a joint family venture may be inferred where the parties accepted that their relationship was "equivalent to marriage". . ., or where the parties held themselves out to the public as married . . . . The stability of the relationship may be a relevant factor as may the length of cohabitation . . . .

When parties have lived together in a stable relationship for a lengthy period, it may be nearly impossible to engage in a precise weighing of the benefits conferred within the relationship . . . . . . . The parties' actual intent may also negate the existence of a joint family venture, or support the conclusion that particular assets were to be held independently. Once again, it is the parties' actual intent, express or inferred from the evidence, that is the relevant consideration. [ 61 ] Ms. Montgomery testified that in 2004 Mr. Schlender said they would get married in the spring of 2005.

She was enthusiastic about that prospect. But it did not happen. In 2005 or 2006, she testified, they talked about getting married again. She thought the relationship was moving toward marriage and that they would be together forever. Things did not progress, however, to the point of his giving her an engagement ring or them making wedding plans. [ 62 ] Mr. Schlender testified that they did not talk about getting married. The subject of marriage arose in a conversation about smoking. He said he would not marry a person who smoked. Ms. Montgomery smoked. Ms. Montgomery confirmed in her evidence

that this conversation occurred. Mr. Schlender testified that there were no discussions between them on the subject of their marrying each other. [ 63 ] Mr. Schlender had regular access to his daughter who was an infant at the time he and Ms. Montgomery met. Ms. Montgomery testified that she “ fell in love with ” the child and that they spent considerable time together. She said she bought things for the child including clothes to have at the Sherwood Park house during access visits. She said the relationship became strained in the last year because she did not agree with Mr. Schlender ’ s approach to parenting.

Relatives and friends of Ms. Montgomery testified that they had met the child when visiting with Mr. Schlender and Ms. Montgomery. [ 64 ] There was also evidence concerning Ms. Montgomery ’ s relationship with Mr. Schlender ’ s parents, brother, nephew, and friends. Similarly there was evidence concerning the contact between Ms. Montgomery ’ s relatives and Mr. Schlender. [ 65 ] To the extent that this evidence concerning the child and the parties ’ relatives was marshalled in order to establish that Mr. Schlender and Ms. Montgomery became a family unit within extended families, it failed.

It established only that Mr. Schlender and Ms. Montgomery had a relationship which occasionally involved contact with members of their respective extended families. The contact may have been greater than might normally occur between housemates and their respective families but it was not at a level that would justify the conclusion that Mr. Schlender and Ms. Montgomery had become a family unit. [ 66 ] Ms. Montgomery testified that she and Mr. Schlender held themselves out as a couple. Other witnesses, family members and friends of Ms. Montgomery, gave evidence to the same effect.

The evidence of witnesses called by the defence was at most equivocal on the subject. It was not directly contradictory. I accept that when together in the company of friends and family Ms. Montgomery and Mr. Schlender held themselves out as a couple. [ 67 ] But in my view that establishes little more than that they did not try to hide the fact that they had a conjugal relationship from people close to them. It does not justify the conclusion that they mutually intended that their relationship was or would become one in which they would share jointly created wealth.

It does not indicate that they intended their relationship to be the equivalent of marriage. If their relationship can be said to have lasted 5 years, and if Ms. Montgomery ’ s evidence that Mr.

Schlender expressed an intention to get married twice during that time is accepted, this, in my view, provides very little basis for concluding that he actually had such an intention, especially when it is considered with the fact that there was never any action taken in that regard, and with the fact that she continued to pay what she called “ rent ” as her contribution toward the expenses of the house right up to the end of the relationship. [ 68 ] The relationship appears not to have been very stable. This is especially so on the evidence of Mr.

Schlender which included much about other sexual affairs he had during the course of the relationship. Even if I discount that evidence or ignore it completely, even on Ms. Montgomery ’ s evidence, the first (and, by her evidence, the only) interruption of the relationship resulted from her discovery of his unfaithfulness. [ 69 ] I find little in the evidence about the parties ’ actual intent to support the conclusion that they were engaged in a joint family venture.

Priority of the Family [ 70 ] Under this heading, Cromwell J. said: (para 98) A final category of factors to consider in determining whether the parties were in fact engaged in a joint family venture is whether and to what extent they have given priority to the family in their decision making. A relevant question is whether there has been in some sense detrimental reliance on the relationship, by one or both of the parties, for the sake of the family.

As Professor McCamus puts it, the question is whether the parties have been "[p]roceeding on the basis of understandings or assumptions about a shared future which may or may not be articulated" (p. 365). The focus is on contributions to the domestic and financial partnership, and particularly financial sacrifices made by the parties for the welfare of the collective or family unit.

Whether the roles of the parties fall into the traditional wage earner/homemaker division, or whether both parties are employed and share domestic responsibilities, it is frequently the case that one party relies on the success and stability of the relationship for future economic security, to his or her own economic detriment . . . . This may occur in a number of ways including: leaving the workforce for a period of time to raise children; relocating for the benefit of the other party's career (and giving up employment and employment-related networks as a result); foregoing career or educational

advancement for the benefit of the family or relationship; and accepting underemployment in order to balance the financial and domestic needs of the family unit. As I see it, giving priority to the family is not associated exclusively with the actions of the more financially dependent spouse. The spouse with the higher income may also make financial sacrifices (for example, foregoing a promotion for the benefit of family life), which may be indicative that the parties saw the relationship as a domestic and financial partnership.

As Professor Parkinson puts it, the joint family venture may be identified where [o]ne party has encouraged the other to rely to her detriment by leaving the workforce or forgoing other career opportunities for the sake of the relationship, and the breakdown of the relationship leaves her in a worse position than she would otherwise have been had she not acted in this way to her economic detriment. [ 71 ] Considerations under this head in this case overlap significantly with matters considered under the other heads.

Most of the considerations identified by Cromwell J. in this passage which might suggest the existence of a joint family venture are not present in this case. [ 72 ] In my view no considerations under this heading give significant foundation for a conclusion that these parties were involved in a joint family venture. [ 73 ] I find that evidence does not establish a joint family venture. Ms. Montgomery did not make the contributions previously identified in the context of a joint family venture. The benefit enuring to Mr. Schlender as a result of Ms.

Montgomery ’ s contributions has nothing to do with the increase in the value of his house during the time she lived in it or afterward. If there was an unjust enrichment, it was not of a nature that warrants a monetary remedy calculated as a portion of the equity in the house. Did the benefit Mr. Schlender received correspond to a detriment experienced by Ms. Montgomery? [ 74 ] As noted Mr. Schlender received the benefit of Ms. Montgomery ’ s household chores, payment of “ rent ” and efforts in relation to home improvement projects. In the case of those 3 categories of contribution, Mr.

Schlender ’ s benefit and Ms. Montgomery ’ s detriment correspond exactly. [ 75 ] In the case of Ms. Montgomery ’ s purchase of groceries, there is correspondence only to the extent that Mr. Schlender ate groceries purchased by Ms. Montgomery. To the extent that she ate the groceries she purchased herself there is no correspondence. The evidence is not sufficiently precise to determine the extent of the correspondence between benefit and detriment in that context. Is there a juristic reason justifying the retention of the benefit by Mr.

Schlender? [ 76 ] The third question in the unjust enrichment analysis involves, potentially, 2 stages. First the onus is on the plaintiff to show that no juristic reason of a recognized type exists to justify the defendant retaining the benefit. The recognized types of juristic reason are: contract, a disposition of law, a donative intent, and “ other valid common-law, equitable or statutory obligations ” . If none of these exist, then the onus is on the defendant to show that there is a just reason arising from all the circumstances of the transaction why he or she should be allowed to retain the benefit.

In this second stage of the inquiry, the Court considers the reasonable expectations of the parties and public policy considerations. [ 77 ] In my view there is a juristic reason in this case why Mr. Schlender should retain the benefit he obtained from Ms. Montgomery. The juristic reason is either within the first stage category, “ contract ” or it arises in the second stage, just and reasonable expectations inquiry. Further, there is an element of “ mutual benefit conferral ” , a concept discussed by Cromwell J. in Kerr (beginning at para 101 ), which is relevant in this context.

[ 78 ] In my view and though it may seem a stark and cold assessment, the evidence did not establish that the relationship between Ms. Montgomery and Mr. Schlender was significantly more than that of housemates. In my view the only aspect of the relationship that suggests otherwise was its conjugal aspect and features associated with that aspect. In the context of the “ juristic reason ” analysis, that aspect does not have great significance. [ 79 ] The previously discussed contributions Ms. Montgomery made and which constitute a benefit to Mr. Schlender were made in the context of cohabiting housemates.

It was part of the contract or bargain between them that she would do her share of the household chores, buy some of the groceries required for meals consumed in the house, and contribute to the household expenses by paying “ rent ” . It was probably not part of the bargain that she participate in the home improvement projects, but in my view she did so voluntarily in order to contribute to the improvement of the space she lived in - that is, as much for her own benefit as for Mr. Schlender ’ s. [ 80 ] In turn she received the benefit of the household chores Mr.

Schlender did, which according to the evidence were approximately as extensive as those she did, the groceries he bought, the payment he made for household expenses, and the improvement of the space she lived in through his significantly greater effort in respect of household improvement.

The bargain was that on these terms they each made reasonable, fair and offsetting contributions to the running of the house in which they lived. [ 81 ] Because it was a contract or bargain, and because the contributions of one, more or less matched the contributions of the other and were made on the basis that they were fair contributions, it would not be just to require Mr. Schlender to pay Ms. Montgomery the value of the benefit he received.

In effect he has already done so by performing his side of the bargain which benefited her to the same extent that he benefited by her performance of her side of the bargain. [ 82 ] These considerations lead me to conclude that the bargain between them constitutes a juristic reason for Mr. Schlender retaining the benefit which has been established. Conclusion [ 83 ] Ms. Montgomery has failed to establish a case of unjust enrichment. Her action is dismissed. [ 84 ] I should note that I was advised at trial that the Counterclaim which Mr.

Schlender filed in this action had been struck out in an interlocutory application which occurred shortly before the commencement of the trial. It was not therefore before me. [ 85 ] If counsel need to address me on costs they may make arrangements to do so. If they have not done so by June 15, 2012, then my disposition as to costs will be that Mr. Schlender shall have costs to be taxed on the appropriate column Heard January 31, 2012 to February 3, 2012. Dated at the City of Edmonton, Alberta this 18 th day of May 2012. Brian R. Burrows, J.C.Q.B.A. Appearances:

Ronald E. Kampitsch for the Plaintiff Wayne LeDrew for the Defendant