Macgregor v. Hosack, 2012 ABQB 647

Court of Queen ’ s Bench of Alberta Citation: Macgregor v. Hosack, 2012 ABQB 647 Date: 20121022 Docket: FL03 05658 Registry: Edmonton Between: Catherine Macgregor Plaintiff - and - Douglas Hosack, Kenneth Hosack and Kathy Hosack Defendants Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Introduction

[ 1 ] These written Reasons arise from the trial of this matter which occurred between September 17 - 21, 2012. [ 2 ] There are two main issues to be determined in this action:

a) Were the Defendants unjustly enriched at the Plaintiff Catherine MacGregor ’ s expense?

b) If the Defendants were unjustly enriched, what is the appropriate remedy? [ 3 ] The Supreme Court of Canada has recently reviewed the law in respect to claims for unjust enrichment in Kerr v. Baranow , [2011] 1.

S.C.R. 269. [ 4 ] The elements of the test for unjust enrichment which must be met for there to be a remedy 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. [ 5 ] In Kerr at paras 46 and 47, the Supreme Court described the available remedies for unjust enrichment claims as follows: 46 Remedies for unjust enrichment are restitutionary in nature, that is, the object of the remedy is to require the defendant to repay or reverse the unjustified enrichment.

A successful claim for unjust enrichment may attract either a "personal restitutionary award" or a "restitutionary proprietary award". In other words, the plaintiff may be entitled to a monetary or a proprietary award. [ … ]. 47 The first remedy to consider is always a monetary award ( … ). In most cases, it will be sufficient to remedy the unjust enrichment.

The Trial Evidence [ 6 ] It is common ground between the Plaintiff and the Defendant, Douglas Hosack ( “ Doug ” ) that they met in early January 2002. [ 7 ] The Plaintiff testified that in late November, early December 2001, she was living alone in the Riverbend area in Edmonton, working for Laird Plastics, and had decided that she would join an online dating site "Lava Life" to see if she could meet people. The Plaintiff testified that she met Doug online through Lava Life in the "Long Term Relationship"

section of the website at the end of December, 2001, and they we met in person in early January 2002 at Christopher's Restaurant in Edmonton, Alberta. Doug essentially agreed with this evidence, although he recalls the Lava Life

section as being “ Just for Friendship ” . [ 8 ] The Plaintiff testified that her and Doug very quickly started a relationship. The Plaintiff testified that sexual relations occurred between she and Doug very early on in the relationship, in fact on her first trip to Barrhead at his rented duplex. The Plaintiff testified that she and Doug spent many hours travelling between his duplex rental in Barrhead and her rented apartment in Edmonton. Doug denies ever having had a sexual relations with the Plaintiff.

[ 9 ] The Plaintiff's evidence was that Doug had told her he was a Mormon Elder and had shown her a card or certificate she believed proved this, and that he had divorced 8 years prior. Doug denies ever showing the Plaintiff anything or claiming to be a Mormon Elder. In February 2002 the Plaintiff moved to one bedroom apartment in the same building in Edmonton, and had received assistance from Ken, Hugh Barkley and Rob Barkley (friends of Doug) [ 10 ] The Plaintiff gave evidence that during the month of January, 2002, she met the Defendants Kathy Hosack ( “ Kathy ” ) and Kenneth Hosack ( “ Ken ” ) in Barrhead.

Doug took her to the acreage that he said he purchased and had started to build a garage on. The Plaintiff testified at that time that the garage was a shell, with no interior walls or ceilings, a cement floor, no running water, and no bathroom. [ 11 ] The Plaintiff stated that she was told at this time by Doug that he had paid $3000 for the lot being Tiger Lakes Lot 11 Plan 802[...] (hereinafter the "Lands"). Doug denies this. At trial, Exhibit 2, Tab 1 was entered as evidence being a Land Titles Certificate evidencing the lot was purchased in the name of Kenneth Hosack for $2,937.00.

Ken testified this was correct and that in fact it was a good deal. Tab 2 of Exhibit 2 was a property tax notice from the County of Barrhead evidencing that as of September 28, 2001, the assessed value of the Land was $4,450.00. [ 12 ] The Plaintiff testified that she and Doug spent weekends in January and February working on the garage, sleeping at his duplex in Barrhead and during the week Douglas would stay many nights at her apartment in Edmonton. The Plaintiff further testified that by March, 2002, her and Doug were discussing how to work together to purchase the needed materials for the garage.

The Plaintiff testified that Doug would work as much as he could during the weekdays and they would work together on the weekends to turn the garage into a living quarters. The Plaintiff testified they planned the layout together. [ 13 ] The Plaintiff gave evidence that in February and March she was working with Doug on the garage one or two evenings per week and every weekend. The Plaintiff testified that between January and May, 2002, she and Doug had put walls up, a raised-floor in, plumbing, tiles and a wood stove fireplace.

The Plaintiff testified that by April 2002, she and Doug planned that they would move in together in the living quarters once it was ready and the weather was a little warmer.

The Plaintiff gave evidence that she and Doug had discussed how much it was costing for both of them to have their own places and that by moving into the garage they would save money that could go towards putting in a well, finishing the garage and building a home for them to share on the property. [ 14 ] It is common ground between the Parties that in May, 2002, with the help of Ken, and Doug ’ s friend Hugh Barkley and Hugh's son Robert Barkley, the Plaintiff moved from Edmonton to the living quarters that they had been building in Tiger Lake Estates on Lot 11, and that Doug moved from the duplex in Barrhead into the garage at this time also. [ 15 ] The Plaintiff testified that in May and June of 2002, her and Doug split up household expenses.

The Plaintiff paid for the groceries and tobacco, while Doug paid for the utilities and his phone bills. The Plaintiff also gave evidence that she did all housekeeping, cooking, laundry, helped to get and chop wood and did some yard work by helping cut grass. The Plaintiff testified at this time she was making $55,000.00 per year with Laird Plastics, and Doug was receiving AISH and some money from his grey market satellite business. [ 16 ] The Plaintiff gave evidence that one of the first things she and Doug had done upon moving in was they had the water well drilled.

Tab 3 of Exhibit 2 was the Water Well Drilling Report which demonstrated the well was drilled on June 17, 2002, and the owner of the well was Doug. The Plaintiff testified that Doug had called her and asked her if she could stop at her bank on her way home so they could pay the well driller in cash to save a bit of money. The Plaintiff testified that she paid $3,000.00 cash toward the well, and that Doug had paid the remainder.

During cross examination, the Plaintiff identified a withdrawal/debit memo from her CIBC account (being Tab 16 of Exhibit 2) on June 20, 2002 of $4,870.50 as being funds used to pay for the well. [ 17 ] The Plaintiff gave evidence that her understanding in June of 2002 was that Doug was the owner of the Lands. The Plaintiff testified that the Tiger Lake subdivision plan which was Tab 4 of Exhibit 2 was given to her by Ken which identified "Doug" as the owner of Lot 11.

Under cross examination, Ken confirmed that the subdivision plan was his, that it was his writing on the plan, and that Lot 11 was identified as belonging to "Doug". [ 18 ] The Plaintiff testified that she did not learn of Doug ’ s Hepatitis C until his father, Ken advised her of this fact.

[ 19 ] The Plaintiff testified that the understanding at all times between her and Doug with respect to their contributions to the property was that they were building a home together and that the Plaintiff due to her good job would contribute the financial means to buy materials and pay needed trades and provide as much labour as she could, and that Doug would contribute his labour as he had knowledge of how to build homes. [ 20 ] The Plaintiff admitted that she had signed the AISH Rent Report and rental receipts from May 1, 2002 to May 1, 2004, which were contained at Tabs 5 and 6 of Exhibit 2.

The Plaintiff testified that it was never discussed with Doug or Ken that she was to be a tenant. The Plaintiff testified that she never paid rent to Ken or Doug This was confirmed by Doug or Ken in their evidence. The Plaintiff testified that Doug advised her he expected an AISH interview and that he needed her to sign the Rent Report and provide the receipts so that if AISH ever reviewed his file he could show the rental amount.

The Plaintiff also testified that she was told by Doug that he needed his AISH income, and that building the house could be compromised if his AISH benefits ended. [ 21 ] The Plaintiff testified that throughout 2002 she continued to work in Edmonton at Laird Plastics as the Branch Manager and drove back and forth from Barrhead every day. [ 22 ] The Plaintiff testified that starting in June 2002, she and Doug were living together in the living quarters in the garage, where there was only one bed, and they began planning what type of house they would build. Doug essentially denies this.

The Plaintiff ’ s evidence was corroborated by the Plaintiff's daughter, Nadia Quattriocchio who testified that she and her common law husband, Sean Jones, visited the Plaintiff and stayed with her and Doug in June 2002, during which visit Cathy and Doug were living together and they discussed building a home together.

The Plaintiff testified that at this time, there was still no septic or running water, everyone stayed in the garage, and that everyone was having to shower either at Doug's parent's home or at the Thunder Lake Conservation area. [ 23 ] The Plaintiff testified that she and Doug had agreed on a 2400 square foot bungalow plan for the home. This is corroborated by the County of Barrhead No. 11 development permit which was approved on August 20, 2002, and entered as Tab 7 of Exhibit 2.

Further, the Plaintiff testified that she drew the plans for the home which were entered as evidence as Tab 9 of Exhibit 2 and which were based on those plans at Tab 8 of Exhibit 2. [ 24 ] The Plaintiff testified that in January of 2003, she started working primarily out of the garage because in December 2002 the Edmonton branch of Laird Plastics physically closed and the plant in Edmonton was combined with the plant in Calgary. The Plaintiff testified that she was offered a transfer, but since they were in the middle of building their home, she decided to take the option of working from home.

The Plaintiff testified that Laird Plastics paid for an extra phone line to be put into the garage. She acknowledges she never received permission from Doug or Ken to run the extra phone line. [ 25 ] The Plaintiff testified that she continued to work primarily from the garage until January of 2004 when through a mutual agreement with Laird Plastics she accepted a severance package which included a net lump sum payment of $9,696.47 on February 13, 2007.

This amount was reflected on Tab 16 of Exhibit 2 of the Plaintiff's CIBC account for February 13, 2007. [ 26 ] The Plaintiff testified that the buyout from Laird also gave her access to the monies she had invested in her retirement savings program ( “ RRSP ” ). The Plaintiff testified that at this point she decided to dedicate her time and money to completing the home. Tabs 14 and 15 of Exhibit 2 were the Plaintiff's statements from her Investor's Group, Group RRSP and her Primerica RRSP.

The Plaintiff testified and the statements demonstrated that $13,195.39 of her Investor's Group money was withdrawn on January 27, 2004, and $12,082.70 of her Primerica monies were withdrawn between March 22, 2005 and July 27, 2005. The Plaintiff's evidence was these funds were used to help fund construction of their home. [ 27 ] The Plaintiff testified that she knew once work had started on the home that title to the Land was actually in Ken ’ s name.

The Plaintiff testified that Doug had told her due to his Maintenance Enforcement arrears for child support owing to his ex-wife, and due to AISH requirements, he could not have anything in his name as the assets would either be seized or cause his AISH to end. [ 28 ] The Plaintiff testified that she discussed with both Ken and Doug her concerns about her contributions to the property and the title being in Ken ’ s name. The Plaintiff testified that at one meeting at the kitchen table, Ken and Doug assured her that she was looked after in Ken ’ s will and he would ensure she would get half of the Lands.

The Plaintiff further testified on cross examination that the defendants advised her that they trusted her, and that if anything happened to Doug due to his health, they felt they could trust the

Plaintiff to ensure that Doug's half of the Lands was given to his daughters. Both Doug and Ken deny that these conversations took place. [ 29 ] The Plaintiff also testified that when she received the severance package from Laird, she had a discussion regarding the monies with Ken. The Plaintiff testified that Ken told her that she "should spend the money on the house because what good is it in the bank".

Ken stated in his testimony stated that he often kept cash at home and didn't always put his money in the bank and that was how he paid cash for the Land. [ 30 ] The Plaintiff testified that in terms of construction, they started to build the home in the spring of 2003 by first preparing the Land then building the grade beam. The Plaintiff testified that she and Doug went to the Barrhead Co-op with their plans and ordered the roofing trusses for the house and started doing the floor joists.

The Plaintiff testified that it was agreed that until she opened her own Barrhead Co-op account, they could use Kathy ’ s account. The Plaintiff testified that while they waited for her new account to open with the Co-op, she paid all the invoices from the Barrhead Co-op.

Upon cross examination, Kathy testified that when she received the Barrhead Co-op invoices for the building of the house, she gave them to Doug to get paid but did not know if Doug himself actually paid for them. [ 31 ] The Plaintiff testified that she opened her own Barrhead Co-op Account in May 2003 with a $5,000.00 credit limit and began charging supplies to her account. The Plaintiff testified that she paid for the roof trusses. In his examination in chief, Doug testified that he did not have a chequing account as he didn't believe in them.

Exhibit 1 which was entered at trial evidenced that $2,000.00 of the Barrhead Co-op truss account was paid by debit from a chequing account. The Plaintiff testified that it was agreed that prior to her opening her own account, any amounts charged to Kathy ’ s Barrhead Co-op account for the home would be paid by the Plaintiff. [ 32 ] The Plaintiff and her brother James Foster, who testified, both testified that James came out to stay with the Plaintiff and Doug from approximately August 2003-February 2004.

The Plaintiff and James Foster testified that he helped in the construction, including helping to dig the trench to run the main wiring from the shop to the house (which James fell into and broke his foot). The Plaintiff and James Foster also testified that James helped with the framing and flooring, pounding nails, sanding floors and joining the roof trusses in the evenings and on the weekends.

James testified that he stayed in the garage at this time, as did Doug and Cathy and that his observation was that Cathy and Doug were a couple, they slept in the same bed and that they were like "boyfriend and girlfriend". [ 33 ] The Plaintiff also testified that she assisted in dealing with contractors on remedial work for the home.

Tab 10 of Exhibit 2, the Plaintiff testified, were drawings of the foundation and measurements that Cathy helped Doug with in dealing with the concrete contractor. [ 34 ] The Plaintiff testified that by the end of summer 2003 and before winter they had the house closed in - the roof, foundation and walls were up and they could start on the interior. [ 35 ] The Plaintiff and her brother David Foster testified that David came out for Christmas 2003 and they all spent Christmas with Kathy and Ken at their home in Barrhead.

The Plaintiff testified that the Hosack's had become her family and were very welcoming to her. David Foster testified that at Christmas dinner, he was in a reading room with Ken who told him that Doug was very lucky to have a woman like Cathy. David Foster also testified that when he first met Doug that Christmas, Doug had told him how wonderful the Plaintiff was and the huge changes she had helped make in his life.

David further testified that during his visit, he and his brother James Foster slept on two couches in the garage while the Plaintiff and Doug slept in the bed, and they were seen kissing, holding hands and were very much like a couple. [ 36 ] The Plaintiff testified that she and Doug took vacations together, including a trip to Las Vegas in early 2004 and purchased joint assets. Tab 11 of Exhibit 2 was a Westlock Chevrolet receipt and Bill of Sale for a 2006 Uplander which was purchased jointly by the Plaintiff and Doug.

The Plaintiff testified that the primary purpose of the purchase of the Uplander was so they would be able to have all of Doug ’ s daughters with them when necessary. [ 37 ] The Plaintiff gave evidence that during the summer of 2004, while she was not working due to her severance from Laird Plastics, she and the defendant Doug did work and construction on the home including:

- putting up drywall; - mudding, taping, priming and painting; - putting in insulation in the walls and ceilings; - helping with the siding and shingling; - picking up materials including nails, wood, or whatever was needed. [ 38 ] The Plaintiff's evidence of her labour contributions to the Lands was corroborated by all of the Plaintiff's witnesses who at various times throughout the construction of the home were present and witnessed the Plaintiff's contributions, although the Plaintiff ’ s labour and contributions to the lands were generally all denied and even ridiculed by the Defendants. [ 39 ] The Plaintiff and Nadia Quattriocchio both testified that Nadia and Sean came out once again in the summer of 2005 for one month along with their daughter to visit and stayed with Cathy and Doug in the new home.

Nadia testified that the home only had one bed, and that Doug had built a second bed just for her and Sean for their stay. [ 40 ] The Plaintiff testified that she applied for a position with the Alberta Government and accepted the position of Contract Administrator starting in December 2005 earning $33,000.00 per year. The Plaintiff gave evidence that her daughter Nadia, son in law and granddaughter moved to Alberta in early December 2005.

The Plaintiff gave evidence that Ken and Kathy were welcoming to the Plaintiff's family and they were all were invited to the Hosack home for family Christmas. [ 41 ] The Plaintiff testified that for Christmas 2005 she received a ring from Doug. The Plaintiff gave evidence that Doug told her that it was a promise ring, although Doug denies ever giving the Plaintiff any ring.

The Plaintiff testified that she showed the ring to Doug ’ s family at Christmas dinner, and to Kathy who the Plaintiff stated described as being excited. [ 42 ] The Plaintiff testified that her disabled daughter Paula moved to Alberta in August of 2006 and lived in a small town about 45 minutes away until suitable programming could be put in place.

The Plaintiff testified that starting in the summer of 2006 Doug seemed a little paranoid, and kept telling the Plaintiff that he was getting the 45 (handgun) from his father and that he was keeping the rifle ready. [ 43 ] The Plaintiff testified that in August 2006 the Defendant, Doug seemed to be changing every day.

The Plaintiff gave evidence that in early fall Doug told her that he couldn't handle her baggage and that he had discussed it with his father and that they decided to give her $35,000, $25,000 for her contribution and $10,000 for her efforts and that it was a one-time offer and that if it wasn't accepted right away, it was off the table and would never be offered again. [ 44 ] The Plaintiff testified that she was shocked and that she never thought she would have to worry about this type of situation from the Defendants who the Plaintiff testified had always assured her that the home was for their future and their retirement.

The Plaintiff gave evidence that it was always her belief that her and the defendant were like a married couple as they slept in the same room, had sexual relations, took vacations together, purchased vehicles together and attended family functions. [ 45 ] The Plaintiff testified that it was always discussed and understood that she and Doug had an equal share of the Lands based on the amount of work they both put in to the property and the money the Plaintiff invested. [ 46 ] The Plaintiff reviewed Exhibit 1 which was the binder of receipts she kept from the construction of the home.

The Plaintiff testified that she had kept these receipts throughout the construction of their home as when the home was completed they could apply for

the Home Renovation Tax Credit. The Plaintiff testified that Tab 20 of Exhibit 2 was a listing of all the receipts contained in Exhibit 1 that she had paid for. The Plaintiff testified that in total she paid for receipts from Exhibit 1 totalling $34,431.22.

This evidence was not undermined or contradicted on cross examination by counsel for the Defendants, although the Plaintiff acknowledged that there were some receipts in Exhibit 1 she did not pay for such as the Bartle & Gibson receipts. [ 47 ] In addition to the $34,431.22 in Exhibit 1, the Plaintiff also testified that she had paid $3,000.00 cash for the water well that was drilled on the Lands.

The Plaintiff produced at Tabs 16 and 17 of Exhibit 2 her personal banking statements from CIBC and TD bank evidencing payments and cash withdrawals which the Plaintiff testified all went to the running of the household or construction of the new home, with the exception of $5,000.00 withdrawal which was given to her daughter Nadia as part of a down payment on a condominium. [ 48 ] Also Exhibit 3 was entered into evidence being the Plaintiff's Barrhead Co-op statements that identified the Plaintiff as spending between May 17, 2003 and February 3, 2007, at the Home Centre, a total of $15,657.33. [ 49 ] The Plaintiff testified that on or about October 12, 2006, she received a call that her handicapped daughter Paula was having seizures.

The Plaintiff testified that she met Paula and her caregivers at the emergency room and by 8:30 that evening Paula had suffered approximately 15 seizures. Paula was admitted to hospital that evening and the Plaintiff testified that the next day the doctors said she could take Paula home being October 13, 2006. The Plaintiff testified she took Paula back to the Lands along with her caregivers. [ 50 ] The Plaintiff testified that upon arriving home the night of October 13, 2006, Doug was very agitated which resulted in the RCMP being called to the Lands.

The Plaintiff testified she left the Lands that night with her disabled daughter and she grabbed what she could and left. [ 51 ] The Plaintiff testified that a few days following she went to the Lands to collect some of her personal items being clothes, a winter coat and paperwork for her daughter Paula. The Plaintiff testified that when she went to the house there was a note on the door which the Plaintiff identified as Document 039 of Exhibit 4 being a letter from a lawyer for Ken issuing a notice to her that she was not allowed on the property.

The locks had also been changed. [ 52 ] The Plaintiff testified that it was not until November 11, 2006, that she was able to re-attend at the Lands and obtain the remainder of her personal effects. The Plaintiff and Doug gave lengthy contradictory evidence as to the events of that evening and the eventual calling of the RCMP. [ 53 ] The Plaintiff testified that when she left the Lands, the house was essentially completed and there were just finishing touches left.

Pursuant to a Notice to Admit filed July 27, 2012, which was served on the Defendants and never responded to and therefore deemed to be admitted, the value of the Lands for the purposes of trial was deemed to be $245,000.00 and the Defendants at no point contested this fact. [ 54 ] Tab 18 of Exhibit 2 was entered into evidence. The Plaintiff and Ken and Kathy identified this as the Transfer of Land that was executed on February 27, 2009, whereby the Lands were transferred from Ken to Kathy for the sum of $1.00.

Ken testified that the transfer was signed in the hospital as he was very ill and had only been given 48 hours to live, so he transferred all of his assets to his wife. [ 55 ] However, in his cross examination, Ken testified that there had been "nothing new" with his health since 2007. As well, Kathy testified that she remembered well Ken in the hospital in 2008 as her mother had been ill that year as well. Finally, when asked what gave him 48 hours to live in 2008, the defendant Ken stated that "I don't know what you are talking about".

When questioned in cross examination regarding the application brought to have the Certificate of Lis Pendens removed in 2009, Ken stated that he had heard about the application and "we were trying to get rid of her". [ 56 ] The Plaintiff read-in certain evidence of Ken, the highlights of which included:

- The Plaintiff went to Hosack family functions; - The Plaintiff went to Ken and Kathy ’ s home for dinner; - He was aware the Plaintiff and Doug went on holidays together; - The Plaintiff and Doug were living as a couple at first; - Ken bought two lots - one lot for Doug to settle on, and the other lot for himself to keep his toys. - The Plaintiff never paid him any rent. - He didn't ever talk to the Plaintiff directly about rent, he really let them two of them (the Plaintiff and Doug) kind of do everything there. [ 57 ] The Plaintiff read-in certain evidence of Doug, the highlights of which included: - The Uplander van was in both of their names; - Doug and the Plaintiff stayed together in a trailer when they went to Las Vegas; - The Plaintiff was doing the cooking and the laundry; - The Plaintiff helped him insulate the attic; - The Plaintiff helped do some sanding on the drywall; - The Plaintiff helped do some of the painting and priming; - The Plaintiff helped with the shingles.

Analysis [ 58 ] The Plaintiff has the burden of proof in this trial and the Defendant has the burden of rebutting such proof. The Plaintiff has the burden of establishing that:

a) an enrichment of or benefit has accrued to the Defendants';

b) there was a corresponding deprivation to the Plaintiff; and

c) The absence of a juristic reason for the enrichment.

a) An Enrichment of or a Benefit has Accrued to the Defendants: [ 59 ] The Plaintiff submits that she has contributed a minimum of $37, 431.22 to the improvement of the Tiger lake Property. [ 60 ] However the Defendants argue that the Plaintiff has failed to produce all her bank records, and despite her assertion that she produced everything she had, she has failed to produce for the Court's consideration all of her bank records. [ 61 ] It is submitted that the Plaintiff's own records seem to be missing pages and for some reason are not the complete record as they are stated to be.

Tab 17 of Exhibit 2, purports to be the TD Deposit Account History that runs from 01/01/04 to 03/12/07.

However when the document is reviewed, it begins at August 2004 and ends in January 0f 2005 and goes no further. [ 62 ] The Defendants argue that Doug paid the Plaintiff in cash for her bills, and that at the very least an adverse inference should be drawn against the Plaintiff for her failure to provide all of her banking record. [ 63 ] The Defendants submit that a review of Tab 16 of Exhibit 2 shows that there are $7,301.13 of deposits to the account for the 2003 calendar year that are not related to the Plaintiff ’ s payroll deposits.

The Plaintiff provided evidence that she had cashed in her RSP and her RRSP in 2004 and 2005. It is submitted that there is no explanation in the records of these deposits, and the Plaintiff did not address them when she was examined. [ 64 ] Further for the same calendar year the Plaintiff received $39,346.16 in payroll deposits which include her expense cheques. For this year the Plaintiff submits that she incurred at least $24,583.14 in expenses relating to the building and maintaining of the Tiger lake Property.

The Plaintiff had a total of $5,507.27 in pre-authorized car payments that came out of the account and also the Plaintiff by her own evidence was spending $600.00 per month for groceries and cigarettes. This translates to an annual expense of $7200.00.

If you deduct all the expenses from her total payroll deposits she would be left with approximately $2055.75 for the year to take of all of other expenses, meaning gasoline, insurance, clothes, prescriptions and any other sundry expenses. [ 65 ] The Defendants submit that the Plaintiff could not survive at all without taking into consideration the unexplained deposits in 2003 and even then she would be left with a total to live on of $9356.88.

The Defendant's submit that it simply is not credible that she survived on those amounts for the entire of 2003. [ 66 ] The Plaintiff has submitted a listing of her expenses with the Barrhead Co-operative that totals $15,657.33 in Home Centre expenses, but the Defendants point out that these monies were allegedly paid back to her in cash. [ 67 ] The Defendants submit that the relationship between Doug and the Plaintiff was a Landlord/Tenant relationship only.

The Defendants submit that the Plaintiff admitted to signing the rental documents which mean that they were either true, or that she was complicit in the subterfuge she accuses Doug of.

b) There Has Been a Corresponding Deprivation to the Plaintiff

[ 68 ] For the same reason listed above the Defendants submit that the Plaintiff has not provided credible evidence to establish that she has suffered a corresponding deprivation.

c) The Absence of a Juristic Reason for the Enrichment [ 69 ] Even if the Court finds that there was an unjust enrichment and a corresponding deprivation, the Defendants submit that the only amount that the Court can be certain that the Plaintiff paid was the amounts listed in Exhibit 3 for a total of $15,657.33 in Home Centre expenses that the Plaintiff paid to Barrhead Co-operative. [ 70 ] The Defendant's also submit that there is a juristic reason for the enrichment to remain. [ 71 ] In Kerr at para 43, the Supreme Court of Canada cited Garland v.

Consumer's Gas , [2004] SCC 25 which established the two stage test in establishing the presence or absence of a juristic reason for not providing a remedy in an unjust enrichment case: "First the plaintiff must show that no juristic reason from an established category exists to deny recovery [ … ] the established categories that constitute juristic reasons include a contract [ … ], a disposition of law [ … ] equitable or statutory obligations [ … ] If there is no juristic reason from an established category, then the plaintiff has made out a prima facie case under the juristic reason component of the analysis.

The prima facie case is rebuttable, however where the defendant can show that there is another reason to deny recovery. As a result, there is a de facto burden of proof placed on the defendant to show the reason why the enrichment should be retained.

This stage of the analysis thus provides for a category of residual defence in which courts can look to all of the circumstances of the transaction in order to determine whether there is another reason to deny recovery. [ 72 ] The Defendants submit that the Plaintiff herself gained significantly by her living at the Tiger Lake Property, by her own admission, rent free for 53 months.

Based on what her expenses were prior to the location to the Tiger Lake Property ($590.00 per month), she gained a benefit of at least $31,270.00. [ 73 ] The Defendants further submit that to grant the Plaintiff a remedy for the unjust enrichment regime would amount to a windfall to her, and that would be contrary to public policy. The Law [ 74 ] The law relating to unjust enrichment in the context of the dissolution of a non-marriage domestic relationship and the elements which must exist before a remedy for unjust enrichment can be granted are:

a) An enrichment of or benefit to the defendant;

b) A corresponding deprivation of the plaintiff; and

c) The absence of a juristic reason for the enrichment. [ 75 ] At stage 3 of the test for unjust enrichment, the Court must determine that there is no reason in law for the Defendants' retention of the benefit conferred by the Plaintiff thereby rendering the retention unjust in the circumstances.

[ 76 ] In Kerr , at para 41, the SCC discussed Garland v. Consumer's Gas, 2004 SCC 25 , whereby the Supreme Court of Canada set out a two-step analysis for determining the absence of juristic reason. i. The first step involves applying established categories - the intention to make a gift, a contract, a disposition of law, or other valid common law, equitable or statutory obligations. ii.

The second step permits consideration of the reasonable expectations of the parties and public policy considerations. [ 77 ] The onus is on the Defendants to show that there is a just reason arising from all the circumstances of the transaction and why he or she should be allowed to retain the benefit. [ 78 ] Remedies for unjust enrichment are restitutionary in nature, that is, to require the defendant to repay or reverse the unjustified enrichment. The plaintiff may be entitled to a monetary or proprietary remedy.

Monetary remedies should be considered first and will usually be sufficient. [ 79 ] As well, in Thompson v. Williamson 2011 ABQB 311 my colleague Strekaf, J. stated at para 23 that: Monetary remedies are not limited to calculation on a "value received", quantum merit or fee-for-service basis, but may be based upon a "value- survived" approach.

Where the unjust enrichment is best characterized as an unjust retention of a disproportionate share of assets accumulated during the course of a joint family venture to which both partners have contributed, the monetary remedy should reflect that fact. [ 80 ] The Supreme Court of Canada in Kerr stated at para 90-99 that the joint family venture should not be presumed and should be based on the evidence presented in the matter and should be viewed under four headings:

a) Mutual effort;

b) Economic integration;

c) Actual intent express or implied from the evidence; and

d) Priority of the family.

a) Mutual Effort [ 81 ] The Supreme Court of Canada in Kerr at para 90-91 identified a number of non-exhaustive factors when determining mutual effort:

a) Whether the parties worked collaboratively toward common goals, a pooling of effort and teamwork;

b) Length of the relationship;

c) The joint contributions or common contributions to a common pool;

d) The use of the parties' funds for family purposes;

e) The pooling of resources whereby one spouse takes on all or a greater proportion of the domestic labors so the other can work.

b) Length of Relationship [ 82 ] The Supreme Court of Canada in Kerr at para 92-93 further identified a number of non-exhaustive factors when looking at economic integration:

a) The degree of economic interdependence and integration of the parties;

b) The presence of joint accounts and the sharing of expenses;

c) The amassing of common savings; and

d) The prioritization of the overall welfare of the family unit over the individuals' interests.

c) Actual Intent Express or Implied from the Evidence [ 83 ] The Supreme Court of Canada in Kerr at para 94-97 also identified a number of non-exhaustive factors in looking at this branch of the test:

a) Does the conduct indicate that the parties intended to share in the wealth they jointly created?

b) Did the parties accept the relationship was akin to marriage?

c) The stability of the relationship and length of cohabitation.

d) Joint title to property.

e) If the title is in one name, the lack of concern with the details of title or the accounting of money spent may suggest the expectation that wealth will be shared; and

f) Plans for property distribution on death.

d) Priority of the Family [ 84 ] The Supreme Court of Canada in Kerr at para 98-99 also identified non-exhaustive factors to review under this portion of the test as follows:

a) The detrimental reliance on the relationship by one or both of the parties for the sake of the family;

b) The parties' assumptions regarding a shared future; and

c) One party relying on the success of a relationship for the future economic security to their own detriment. [ 85 ] Kerr noted that proprietary remedies may be required where a monetary award would be insufficient in the circumstances or would be inappropriate.

Where the Plaintiff can show a sufficiently substantial and direct link or causal connection between their contributions and the acquisition, preservation, maintenance or improvement of certain property, then a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust. [ 86 ] The Plaintiff must also establish that a monetary award would be insufficient in the circumstances. The Court may take into account the probability of recovery, as well as whether there is a reason to grant the Plaintiff the additional rights that flow from the recognition of the property rights.

A. Unjust Enrichment - Conclusion [ 87 ] The Plaintiff has satisfied the first two elements of the test for unjust enrichment. [ 88 ] The evidence is clear that in terms of household or domestic services, the Plaintiff did the cooking, cleaning and laundry.

The Plaintiff's evidence was corroborated by the Plaintiff's witnesses in this regard. [ 89 ] The evidence also clearly shows that the Plaintiff contributed numerous hours of labour and at a minimum $37,431.22 of her own money into constructing the garage into a liveable unit, clearing the Land, and building the parties dream retirement home. [ 90 ] The Defendants, through their subsequent transferring of the Lands, have all obtained the benefit of the Plaintiff's domestic services and her labour and monetary contribution to the Lands. [ 91 ] The Defendants main argument or defence lies with the third step of the unjust enrichment analysis - that being whether there is a juristic reason for the benefit and corresponding deprivation.

In this regard, the defendants advanced three main arguments: 1. That the Plaintiff and Defendant Douglas Hosack never were a common law couple or adult interdependent partners; 2. That the Plaintiff and Defendant were in a rental type relationship whereby Ken was the Landlord, the Plaintiff was the Tenant, and Doug was the Sub-Tenant and;

3. That the Plaintiff was wholly repaid by the Defendants for any monies she put into the Lands. 1. The Relationship [ 92 ] Whether or not the Plaintiff and Doug were common-law partners or adult interdependent partners is not a complete defence.

The crucial question is whether the evidence establishes that the Defendants were unjustly enriched. [ 93 ] In any event, the evidence adduced by the Plaintiff at trial established that the Plaintiff and Doug were involved in a common-law relationship: - the physical living together aspect of their relationship lasted more than four years from June 2002 to October 2006; - the Plaintiffs evidence that the parties were a couple, and had sexual relations to the exclusion of others; - the Plaintiff did the cooking, cleaning, laundry and purchased groceries; - friends of the Plaintiff and Defendants believed they were a couple; - the Defendant allegedly gave the Plaintiff a promise ring for Christmas 2005; - the Plaintiff looked after Doug due to his hepatitis C; - the Plaintiff assisted Doug in looking after his children, including the purchase of the mini-van so they could transport the children; - the Parties acquired assets, an Uplander mini-van together; - the Parties vacationed together and their families assimilated including the sharing of holidays; - the Parties built a home together utilizing the assets of the other, being the Plaintiff's money and Doug ’ s home building knowledge and both of their labour.

Rental Relationship [ 94 ] The only evidence possibly suggesting a rental relationship is the Rental Report and the rental receipts. [ 95 ] The Plaintiff in her evidence clearly stated that purpose of the Rental Report and receipts was that the Defendant Doug requested she complete the documents in case he had an AISH interview such that he would not lose his entitlement. [ 96 ] Further the Defendant Ken, the alleged Landlord, who as a former sheriff and had knowledge of landlord and tenant matters and evictions, gave evidence that:

1. A rental arrangement was mentioned at first that the Plaintiff would pay rent, but "she was a very good woman at first, they were getting along and he figured he didn't need the money." 2. The Plaintiff never in fact paid him any rent. 3. Ken didn't ever talk to the Plaintiff directly about rent, he really let them two kind of do everything there. 4. He never took a rental deposit from the Plaintiff . 5. He never performed a check in/check out walkthrough with the Plaintiff . 6. There was no written rental agreement. 7.

He would stop in at the property whenever he wanted for a coffee - he never had to give notice as you would to a tenant on a property. [ 97 ] In Document 039 of Exhibit 4 Ken retained the services of lawyer Wayne Peterson, who prepared and provided to the Plaintiff a notice pursuant to the Petty Trespass Act.

Arguably if Ken had believed the Plaintiff was a tenant, with his experience as a sheriff, Ken would have taken steps to have the Plaintiff evicted from the Lands and served an eviction notice - not issue a Petty Trespass Act notice. [ 98 ] Further, for there to have been a sub-lease between the Plaintiff and Doug, there must have been a head-lease between Ken and the Plaintiff. Ken ’ s own evidence establishes there was no such head-lease as between himself and the Plaintiff. In his examination-in-chief, and upon cross examination, Doug alleged there was a written rental agreement between Ken and the Plaintiff.

However no such agreement was ever produced, despite multiple opportunities for the Defendants to produce this evidence. [ 99 ] The rental receipts the Defendants rely on do not even cover the entirety of their relationship. They only cover from May 1, 2002 to May 1, 2004. Even if it were completely unclear from the Defendants evidence what the terms of the alleged lease even were, key terms of a rental agreement such as what was the deposit and how long of a rental arrangement was do not exist in this case.

There was a failure to comply with the Residential Tenancies Act with respect to damage deposits, landlord entry notices, and move-in/move- out inspections, all of which Ken admitted on cross-examination. [ 100 ] The onus is on the Defendants to establish a juristic reason under the unjust enrichment analysis, with respect to the alleged rental arrangement. [ 101 ] The Defendants argue that the Plaintiff actually received a benefit of $31,270.00 by living on the Lands for 53 months rent free. The Defendants reasoning is problematic because:

a) The evidence heard at trial was that the Plaintiff, Defendants and any guests living on the Lands for several months, had to use public campground showers and "the field" as a washroom. The Plaintiff made obvious significant sacrifices to her living conditions to further the relationship on the expectation that she was building a home and a future on the Lands with Doug.

b) By the Defendants own reasoning, Doug would have incurred the exact same benefit as he had been paying rent at a duplex in Barrhead immediately prior to his moving out to the Lands. Thus there has been a mutual benefit conferred upon both parties.

c) The Defendants assertion that the Plaintiff obtained a benefit by virtue of not paying rent elsewhere ignores the uncontroverted evidence that the Plaintiff expended at least $37,431.22 improving the Lands, while the Defendants collectively at best only contributed by providing invoices (not even receipts) totaling $9,507.19;

e) For an initial $2,937.00 investment, Ken and the other defendants have gained the benefit of the Plaintiff's financial contributions and sweat equity put into the Lands, which Lands are now valued at $245,000.00. [ 102 ] The Defendants argument also fails to acknowledge any other contributions of the Plaintiff to the relationship including the purchasing of groceries, and the provision of various other domestic services activities performed by the Plaintiff. [ 103 ] The Defendants argument that because the Plaintiff lived rent free, thereby receiving an offsetting benefit, would be inconsistent with the Supreme Court of Canada ’ s decision in Kerr . 2.

Repayment to the Plaintiff [ 104 ] Doug stated in his evidence that he provided the Plaintiff with between $20,000 to $30,000 in cash as repayment for her contributions to the Lands. [ 105 ] This was denied by the Plaintiff and although Doug stated in his examination-in-chief that this could be corroborated by his parents, Kathy and Ken, this evidence was never led by the Defendants in their respective examinations in chief. [ 106 ] Doug asks the Court to believe that he would advance $20,000 to $30,000 to the Plaintiff in alleged repayment of her contributions, without obtaining any receipts for such payments, even though he demanded the Plaintiff provide him with rental receipts.

I conclude that there is insufficient or no evidence provided to prove the cash payment is alleged. [ 107 ] In

summary I conclude that all three aspects of the test for unjust enrichment were met in this case, and the Defendants were unjustly enriched at the Plaintiff's expense. B. Remedy [ 108 ] It is submitted that the appropriate remedy pursuant to the analysis laid out in Kerr is that the Plaintiff should be granted a one-half interest in the property by way of a constructive trust.

Alternatively, the Plaintiff should be granted a monetary judgment as against all the defendants in the sum of $121,031.50. [ 109 ] It is submitted that it is clear in this case that the unjust enrichment is best characterized as an unjust retention of a disproportionate share of the Lands which was accumulated during the course of a joint family venture. [ 110 ] As noted in Thompson , supra at para. 25 , when the parties have engaged in a joint family venture and the Plaintiff's contributions are linked to the generation of wealth, a monetary award for unjust enrichment should be calculated according to the share of the accumulated wealth proportionate to the plaintiff's contributions.

Further, in Thompson at para. 30 , the Court recognized that where a plaintiff can demonstrate a sufficiently substantial and direct link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of certain property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in the plaintiff's favour. [ 111 ] A joint family venture must be based on the evidence, will not be presumed, and may be considered under four main headings

being mutual effort, economic integration, actual intent and priority of the family. Mutual Effort [ 112 ] The Supreme Court of Canada in Kerr identified a number of factors when determining mutual effort. The evidence in this case can be attributed as follows:

i) Whether the parties worked collaboratively toward common goals, a pooling of effort and teamwork; - The evidence demonstrated that the parties worked toward the common goal of building a home together, they selected and drew plans together, picked out colors, tile, flooring. - The parties understood that Catherine was doing the bulk of the domestic and household work, working so as to maintain an income to pay for materials and contractors where necessary and Doug was contributing his knowledge and abilities for homebuilding. ii) Length of the relationship; - The parties commenced dating in January 2002, and moved in together in June 2002 and the relationship lasted until October 13, 2006. iii) The joint contributions or common contributions to a common pool; - Although the parties did not maintain joint bank accounts, the parties were at all times working towards a common goal or pool - being the Land and the home being constructed thereon.

It is important to note that the Lands were at all material times mortgage free. iv) The use of the parties' funds for family purposes; - The parties vacationed together; - The parties purchased vehicles together in order to assist the defendant with the transportation of his daughters;

v) The pooling of resources whereby one spouse takes on all or a greater proportion of the domestic labors so the other can work. - In this case, the evidence establishes that the Plaintiff for a large part of the relationship maintained employment, performed the domestic and household chores, and purchased materials with her funds and retirement savings thereby performing a greater share of the work. Length of Relationship [ 113 ] The Supreme Court of Canada in Kerr further identified factors when looking at economic integration. The key evidence with respect to these factors in this matter was as follows:

i) The degree of economic interdependence and integration of the parties;

- It is respectfully submitted that the parties directed themselves to the pooling of their resources, and specifically the plaintiff, which were put towards the one goal of building a home together. - The parties purchased motor vehicles together. ii) The presence of joint accounts and the sharing of expenses; - The parties did not maintain joint accounts.

The Plaintiff testified that the Defendant did not keep accounts other than the one his AISH payment was deposited to due to the Defendants outstanding Maintenance Enforcement arrears. - The evidence did show that the parties shared household expenses in that the plaintiff paid for groceries and tobacco and the defendant paid for the power. - The parties jointly contributed to the purchase of a motor vehicle. - The defendant did contribute to some expenses for the construction of the home. iii) The amassing of common savings; - The home being built on the Lands was the "common savings" of the parties. - The home was built without the assistance of any form of construction draw or conventional mortgage or even a line of credit to fund construction. iv) The prioritization of the overall welfare of the family unit over the individuals interests. - As the Plaintiff testified, she gave up her employment with Laird Plastics rather than being transferred, in order to stay in Barrhead and finish building their home. - The Plaintiff spent most of her savings and retirement savings on materials and other costs for the building of the home. - The Plaintiff clearly put the overall welfare of the family over her individual interests. [ 114 ] It is important when reviewing the documents to recognize the Plaintiff's monetary input into the construction of the home on the Lands as compared to the Defendants.

The Plaintiff provided evidence through Exhibit 1 and Tab 20 of Exhibit 2, that her readily traceable contribution were at least $34,431.22 plus an additional $3,000.00 for the water well for a total of $37,431.22. [ 115 ] The only receipts provided by the Defendants in Exhibit 4 being documents 009 and 045-073 when added up only equal $9,507.19.

Actual Intent, Express or Implied from the Evidence [ 116 ] The Supreme Court of Canada also identified a number of factors in looking at this branch of the test:

i) Does the conduct indicate that the parties intended to share in the wealth they jointly created? - The Plaintiffs evidence at trial was that she was repeatedly assured by the defendants Ken and Doug that she would be entitled to ½ of the Lands. - The Plaintiff further testified that upon receiving her severance buyout from Laird Plastics, Ken encouraged her to put her money into the Lands "because what good is it in the bank". - Depending on which version of events is to be believed from the defendants, one of their arguments advanced through their amended Statement of Defence filed in 2012, was that it was always the intent for the Lands to go to Doug ’ s children.

However the defendants produced the codicil to the will of Kathy, which was only executed May 25, 2012, approximately 3 weeks before the trial of this matter was originally scheduled to occur on June 18, 2012. ii) Did the parties accept the relationship was akin to marriage? - The evidence heard in the trial established that the parties did accept their relationship was akin to marriage.

It was only after the relationship had broken down that the defendants attempted to assert the parties were not involved in a relationship. iii) The stability of the relationship and length of cohabitation. - The evidence established that the parties maintained a loving, stable relationship from January 2002 until the fall of 2006, a period of over 4 ½ years.

The evidence established that the parties cohabited as a family unit from June 2002 until October 13, 2006. iv) Joint title to property. - Although the title to the Lands was initially in the name of Ken, and then transferred to Kathy, there is evidence that the parties represented to the Plaintiff that she was to have a ½ interest in the Lands and that Doug was the true beneficial owner of the Lands. Evidence given on this point was:

a) That Ken and Doug advised the Plaintiff her interest in the Lands would be secured in the Defendant Kenneth's will;

b) That Ken encouraged the Plaintiff to put her resources and savings into constructing the home on the Lands;

c) Ken and Doug requested of the Plaintiff that should anything happen to them due to their ill health, that she would ensure Doug's share of the Lands went to his four daughters;

d) Doug originally represented to the Plaintiff and others that he was the owner of the Lands. The Plaintiff testified to this point. As well, the Water Well Report and Subdivision Plan, acknowledged by the Defendants, all identified Doug as the owner of the Lands.

v) If the title is in one name, the lack of concern with the details of title or the accounting of money spent may suggest the expectation that wealth will be shared. - The evidence of the Plaintiff demonstrated that the expenses maintained for the construction of the home were kept in a folder so that at the end of construction, the parties could apply for the GST Home Renovation Tax Credit. - Other than this record keeping, there was no real concern between the parties with respect to the accounting of money spent, although Doug testified he always wanted receipts "because that's just the way I am".Yet Doug produced no receipts for monies alleged to be advanced to the Plaintiff, and no receipts for payments made to any suppliers or contractors. vi) Alternate plans for the property distribution on death. - The Defendants evidence that the Lands were to be left for Doug's four daughters is not reliable, and was only introduced well after the relationship of the parties had broken down, and litigation had commenced.

For example:

a) This defence was not pled until the Amended Statement of Defence was filed on May 31, 2012 and was only first raised in affidavits sworn by the defendants in support of their application to have the Plaintiff's Certificate of Lis Pendens removed from title to the Lands.

b) Kathy produced a codicil, which was not executed until May 25, 2012, three weeks before the trial of this action was to be initially heard on June 18, 2012, purporting to leave the Lands to Doug's four daughters, however Kathy did not produce a copy of the original will.

c) The evidence of Ken, depending on what issue he was speaking to, set out five potential purposes for the original purchase of the Lands. The only version of Ken ’ s evidence that can be independently corroborated through documentary evidence was Tab 4 of Exhibit 2, being Ken ’ s own Tiger Lake subdivision plan which he agreed identified Doug as the owner of Lot 11. Priority of the Family [ 117 ] The detrimental reliance on the relationship by one or both of the parties for the sake of the family:

i) The Plaintiff detrimentally relied on the relationship for the sake of the family. The Plaintiff's evidence clearly demonstrated that:

a) She lived in Barrhead and drove back and forth to Edmonton each day for her employment so that she could live with Doug;

b) She performed the large majority of the household and domestic functions including laundry, cooking and cleaning;

c) The Plaintiff lived for a period of time in a garage with no running water, no washroom and no septic whereby she had to go to a campground to shower and had to go to the washroom in a field;

d) The Plaintiff expended the bulk of her severance package from Laird Plastics as well as her entire retirement savings on helping to build the parties shared home.

[ 118 ] The parties' assumptions regarding a shared future: The evidence established that the parties assumed they were building towards a future retirement home together. [ 119 ] One party relying on the success of a relationship for the future economic security to their own detriment. The Plaintiff's evidence was that she expended almost all of her financial resources, as well as four years of her life in building the parties home together, at the end of which she was kicked out of the home along with her disabled daughter. Remedy - Conclusion [ 120 ] The British Columbia Court of Appeal in McLean v.

Grandmont 1993 Can Lii 269 , had the opportunity to review a somewhat similar fact situation whereby the property in that case was registered in the mother's name. As in this case, in McLean the Court described the property as being in a primitive state.

Further, as in this case, the Court in McLean noted that the mother did not stand idly by while the Plaintiff expended resources on the property, and in fact encouraged it. [ 121 ] In the McLean case, the Court of Appeal overturned the lower court decision, allowed the appeal, and granted the Plaintiff judgment against the defendants on the basis of unjust enrichment. [ 122 ] Further, as noted by the New Brunswick Court of Queen's Bench in Harvey v.

Harvey 2000 Carswell NB 523 at para 12 , in a situation where marital property was being transferred amongst family members, the Court stated: Maneuvering the property from relative to relative to friend of the petitioner by design or otherwise cannot extinguish Mr. Harvey's rights under the Marital Property Act. [ 123 ] In Harvey , the New Brunswick court awarded the Plaintiff for the purposes of division one half the value of the property from the current appraisal ($95,000) less some survey costs. [ 124 ] In the present case the Lands were purchased for the sum of $2,937.00 prior to her relationship with Doug.

As in Harvey , the Plaintiff claims for a judgment against the defendants being a constructive trust, or alternatively a monetary remedy being the difference between the appraised value of the property being $245,000.00 less the purchase price of $2,937.00, for a total half interest of $121,031.50. [ 125 ] Any result should acknowledge the disproportionate amount of resources the Plaintiff exerted in the relationship domestically, monetarily and labouriously. A monetary award should be considered first over a proprietary remedy. Relief Granted [ 126 ] The Plaintiff is awarded the following relief in this matter:

a) A monetary judgment as against all the Defendants jointly and severally in the sum of $121,031.50 being one half of the appraised value of the Lands, [$245,000.00], less the original cost of $2937.00 for the Lands;

b) Costs of this action to be determined by this Court.

Heard on the 17 th day of September, 2012 to the 21 st day of September, 2012. Dated at the City of Edmonton, Alberta this 22 nd day of October, 2012. Donald Lee J.C.Q.B.A. Appearances: Christopher G. Hoose and Richard D. Smith Stillman LLP for the Plaintiff Kevan B. Peterson Advantage Law for the Defendants