Lemoine v. Griffith, 2012 ABQB 685

Court of Queen ’ s Bench of Alberta Citation: Lemoine v. Griffith, 2012 ABQB 685 Date: 20121113 Docket: FL01 08859 Registry: Calgary Between: Constance May Lemoine Plaintiff - and - James Griffith Defendant Corrected judgment: A corrigendum was issued on November 9, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. 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 Madam Justice S.L. Hunt McDonald _______________________________________________________ Background [ 1 ] The parties Constance May Lemoine (“Connie”) and James Griffith (“Jamie”) met in 1994 and lived together from 1995 to 2009. Initially they resided on farm property owned by Jamie’s father, Art Griffith, near Balzac, Alberta. [ 2 ] Connie has a daughter, Casey Lemoine, from a previous marriage who resided with the parties. Casey was born in [...] 1987. [ 3 ] Together the parties had a son, Chance Griffith (“Chance”), who was born [...], 2001.

Chance was born after Connie suffered two tubal pregnancies, one in 1997 and one in 2000. [ 4 ] When the parties met, Jamie was farming and ranching with his father in a partnership known as Griffith Farms.

This partnership commenced in 1991, but was not formalized in a written agreement until February 17, 1994. [ 5 ] Shortly after moving in together in 1995, Connie and Jamie became engaged to be married. [ 6 ] A Matrimonial Property Agreement (“Agreement”) was executed by the parties on January 15, 1999 at a time when the parties were still resident on Jamie’s father’s farm near Balzac, Alberta. [ 7 ] Assets of each party were appended as Schedules “A” and “B” to the Agreement as was the Griffith Farms Partnership Agreement. [ 8 ] Jamie executed the Agreement in front of his lawyer Robert A.

Young who signed the Matrimonial Property Act Certificate and Certificate of Independent Advice. In

Schedule “A” to the Agreement, Jamie’s assets were valued at $2,513,941.80. [ 9 ] Connie signed the Agreement in front of Gerald Quigley, Barrister and Solicitor. Mr. Quigley witnessed Connie’s signature in addition to completing a Matrimonial Property Act Certificate and a Certificate of Independent Advice. In

Schedule “A” to the Agreement, Connie’s assets were valued at $71,145. [ 10 ] Subsequent to the signing of the Agreement, Jamie made various land acquisitions and sales of properties north of Airdrie. [ 11 ] In the Agreement, one of Jamie’s assets indicated in

Schedule “A” were lands located in the Country Hills Boulevard area in north Calgary at (W1/2 31-25-28/4), valued at $1.28 M. The lands were later sold to Alberta Infrastructure by Jamie, with a closing date of April 1, 2003. Jamie received approximately $3.1M from the sale of the lands. [ 12 ] In 1995 Jamie acquired lands north of Airdrie and just south of Crossfield which the parties refer to as the home-half. [ 13 ] Renovations taking approximately a year to complete were done to a farmhouse (the “primary residence”) on the home-half before the parties moved in March of 2006.

There is also a secondary residence located on the home half which received minimal renovations and which is rented out to a third party.

[ 14 ] Sometime near the end of 2006, the corporation Giddy-up Western Wear Inc. was incorporated, with Connie as the 100% shareholder. She operated a western wear clothing business out of a condominium bay located in Airdrie, which was initially rented. [ 15 ] In 2007, the parties jointly purchased the premises legally described as: Condominium Plan 8610264, Unit 4, and 1,667 undivided one ten thousandth shares in the common property excepting thereout all mines and minerals. in which Giddy-Up Western Wear Inc. was located.

The condominium was registered in the name of 1310030 Alberta Inc., shares of which are held 50/50 between Connie and Jamie. [ 16 ] The parties separated in 2009. [ 17 ] On July 21, 2010, Madam Justice Phillips granted an Interim Order dealing with parenting matters to do with Chance and appointed Ms. Nicole Sheldon as a Parenting Coordinator to deal with parenting issues. [ 18 ] The Phillips Interim Order granted exclusive possession to Connie of the primary residence located on the home-half.

Jamie was granted access to all equipment and buildings exclusive to the farming and ranching operation and the parties were given joint access to the arena, which is also located on the property. Jamie was required to pay all existing expenses for the maintenance of the household including feed, utilities, insurance and fuel. Connie was to continue paying monthly payments relating to the condominium owned 1310030 Alberta Inc. in Airdrie.

Jamie was also ordered to pay Connie the sum of $1,200 per month commencing August 1, 2010, with the payments not to be characterized as either child or spousal support until the agreement of the parties or the trial of this action. [ 19 ] In the Statutory Declaration of Property sworn by Jamie on November 8th, 2011, he indicates he currently has assets totalling $5,623,333.10, and liabilities of $548,427.27.

In addition, he indicates his gross income as a farmer is nil. [ 20 ] In her Statement of Income Assets and Liabilities executed on November 9, 2011, Connie values her current assets at $2,175,507 but most of the items she included are assets that Jamie claims as his. Her only other asset is an RRSP of $15,000. [ 21 ] Connie indicated that her self-employment income in 2010 was $10,326.47 and that she expected her self-employment income for 2011 to be approximately $12,000. Issues [ 22 ] The issues to be decided in this case are as follows: 1. To determine (

a) whether the Matrimonial Property Agreement signed on January 15th, 1999 can be challenged by Connie on the basis that she did not receive proper independent legal advice at the time of execution; and (

b) whether Connie has a claim for equitable relief on the basis of unjust enrichment of Jamie. 2. If Connie’s claim is allowed, what are the appropriate property and business valuations to be used. 3. To determine the parties’ guideline incomes for the purposes of determining child and spousal support.

[ 23 ] All parenting issues are being dealt with separately. Connie ’s Evidence The Relationship [ 24 ] Connie and Jamie had their first date on New Years’ Eve, 1994. In June of 1995, they decided to move in together. At around that same time, they got engaged. [ 25 ] When Connie moved in with Jamie, she brought her young daughter, Casey, from a previous marriage, to live with them. Casey was about 8 years old when they moved in with Jamie. [ 26 ] For the first several years of the relationship, Connie and Jamie lived in a house located on land owned by Jamie’s father, Art Griffith (“RR2").

The farming operation paid for all expenses except food, entertainment and similar “extras.” Jamie earned about $1500 per month, in addition to having their living expenses paid. Connie continued to work as a computer operator at United Farmers of Alberta (“UFA”). [ 27 ] Connie continued to work at UFA until November 1997. At that time, UFA had a large restructuring, and after discussing her situation with Jamie, Connie “took a package” and left UFA.

At the time, she said, she was becoming more involved with chores at the farm, cooking during harvesting, and so on and Jamie suggested she stop working at UFA and help out at home. [ 28 ] The chores she handled involved taking care of the horses. The couple had 3 or 4 at the time. After a few years, the couple started to try to have a baby. This resulted in at least two ectopic pregnancies for Connie, for which she had to undergo surgery. In 1997 she required two surgeries, a blood transfusion and recovery in ICU. In 2000 she had surgery again for a second ectopic pregnancy.

After the first surgery, she had some significant health issues, which also contributed to her leaving UFA. [ 29 ] After leaving UFA, Connie worked in their home but, as money was tight, she took a few part-time jobs from time to time. She was working at Westfair Foods prior to the birth of the couple’s only child, Chance, on March 21, 2001. She worked for a brief time at the Hitch Shop in northeast Calgary then drove a school bus for Cardinal Coach lines during the 2005-2006 school year, as it allowed her to bring Chance to work with her.

She did not return to work for Cardinal the next year, however, as she was starting to work on opening up her own business, Giddy-Up Western Wear, in Airdrie. [ 30 ] Connie’s role as Jamie’s partner was that of a farm wife. She did all the cooking and kept house, even when she was working. When Chance was born, she was to be a stay-at-home mother.

She did farm chores and during harvest, she would undertake the task of cooking meals and delivering them to the workers, who were often out working quite far afield. [ 31 ] In 1995, Jamie inherited some money from his mother and used it to purchase some land south of Crossfield (“the home half”) with two houses located on it. Connie was extensively involved in renovating the main house, even to the point of doing most of the painting, staining and designing by herself, and by helping out John Woods, their contractor, with many jobs.

Connie, Jamie, Casey and Chance moved in to the main house in February or March of 2006, while its former tenant moved to the refurbished smaller house. Connie and Chance still live there today. [ 32 ] In 2006, after discussion with Jamie, Connie decided to open her own store. A retail condominium bay in Airdrie was leased for this purpose, and Connie started up Giddy-Up Western Wear. Within a year, she and Jamie incorporated a numbered company, 1310030 Alberta Ltd., each holding 50% of the shares. The numbered company purchased the condo bay which housed the store. Connie continues to operate the business.

Jamie’s only involvement has been through 1310030 Alberta Ltd., arranging a mortgage and by financing the initial $20,000 stock purchase.

[ 33 ] Connie’s evidence was that the couple had a joint account from the time they first began to live together, and any time she was working, her pay went into that account. The farm operations paid for a majority of living expenses, which is an inherent feature of farm finances but food, entertainment and extras for the family were paid through the joint account. Accordingly, Connie did contribute financially to the family’s maintenance and upkeep. [ 34 ] Although they were engaged throughout most of their relationship, the parties never married.

Connie’s tax returns indicate that she considered herself to be in a “common law marriage.” [ 35 ] The parties’ relationship began to deteriorate and they separated in 2009, although they kept living in the same house with their son. In February 2010, Connie commenced this action after she was told, by Jamie, that she had signed a “pre-nup,” wasn’t entitled to anything, and should “get out.” The Matrimonial Property Agreement [ 36 ] Connie gave evidence that in December of 1998 Jamie’s widower father, Art Griffith, remarried.

Jamie explained to her that the Partnership Agreement for Griffith Farms contained a clause wherein the parties agreed to “enter into a pre-marriage contract with any perspective [sic] spouse providing for, in part, the protection of the partnership assets herein.” On that understanding, she agreed to sign a contract with Jamie to protect Art Griffith’s interest in the Griffith Farms Partnership farming operation. [ 37 ] Connie’s evidence is that she was advised by Jamie that she had to sign the Agreement or his father, Art Griffith, would make her move out of the farm house that she occupied with Jamie, which was located on Mr.

Griffith’s land. It should be noted that she, her daughter Casey and Jamie had been living there together for more than 4 ½ years at that time. [ 38 ] Connie’s evidence is that she was never given an opportunity to see a draft of the Agreement prior to attending at Jamie’s lawyer’s office on January 15, 1999. At that time, she and Jamie went to his lawyer’s office to execute the agreement. Jamie and Connie sat in Robert Young’s office while he read through and explained the Agreement to both parties. Mr.

Young had Connie initial the bottom right hand corner of each page as he read it aloud to them. [ 39 ] It is Connie’s evidence that Jamie then signed the document in her presence and subsequently Mr. Young called in another lawyer, Gerald Quigley, to meet with Connie for the purpose of providing independent legal advice. [ 40 ] Connie believes she met Mr. Quigley in Mr. Young’s office and does not recall if he spoke to her there or took her to his office in the same building to execute the Agreement. Jamie waited for Connie in Mr. Young’s waiting room. [ 41 ] She advises that Mr.

Quigley asked if she understood what she was signing and she confirmed to him that yes she did, as Mr. Young had just read the document to her. Mr. Quigley then had her sign the Agreement. He witnessed her signature and then signed the Certificate of Independent Legal Advice and the Matrimonial Property Act Certificate.

She said that this process took no longer than ten or fifteen minutes. [ 42 ] Connie says no explanation was provided to her by Gerald Quigley that the Agreement protected each of the parties’ assets from the other or that it provided that Connie was never to become entitled to share in any accretion of Jamie’s declared assets in the future or in any property acquired during the period of their cohabitation.

She alleges she never understood that she was signing a document that meant that she would get absolutely nothing should she and Jamie separate, whether or not they ever married or had children. [ 43 ] Connie was never billed for Mr. Quigley’s legal services. Review of the documents in evidence show that his fees were billed to Jamie as disbursements in Mr. Young’s statement of account. The total amount of the disbursement regarding Mr. Quigley’s services was for $75. Mr. Young’s account indicated a number of telephone calls and other communications between himself and Mr.

Quigley prior to the January 15, 1999 meeting at which the Agreement was signed, so presumably that $75 covered both the communications

with Mr. Young and the time spent with Connie for the supposed purpose of providing “independent legal advice.” As Mr. Quigley gave evidence that his hourly rate at the time was in the area of $120 to $250, so the amount he charged reflects a total time commitment of 18 to 30 minutes. [ 44 ] Connie and Jamie’s son, Chance, was born [...], 2001, about two years after the Agreement was executed. Jamie ’s Evidence [ 45 ] Jamie’s evidence regarding the relationship was, at least as regards the early days, mostly consistent with Connie’s information.

He took a different view of her involvement with the family farming operations, downplaying the amount of work she did over the relevant time period. [ 46 ] It was an interesting feature of Jamie’s evidence that, while he seemed from time to time to have a very clear recall of business and farming activities and the various real estate deals he has entered into over the last 20 years or so, he had very little recollection of most things to do with Connie. For example, he had quite vague memories regarding her ectopic pregnancies, resulting surgery and long recovery periods.

He did not recognize any particular contributions she made to the farming business, their home, or their overall manner of living. Nor could he recall in any detail the circumstances surrounding the drafting and signing of the Agreement, just that they went to his lawyer’s office, for some unknown amount of time, to sign it. He was quite clear as to its purpose, however, being to protect the property he had going into the relationship and his interest in the farming partnership with his father. It may be that his memory really does function this way.

It may also be that he was trying to downplay Connie’s contribution to their lives. Either way, it does not assist his case as the more detailed positive evidence given by Connie was understandably more persuasive than the rather vague, negative evidence given by Jamie. Expert Evidence [ 47 ] During the course of these proceedings, experts were called for three distinct purposes.

First, for the purpose of assessing the value of the various properties owned by Jamie; second, in order to assist the Court with imputing income to Jamie for support purposes, as his actual cash income from the farming operations in no way reflects his actual earning capacity; and third, with regard to whether or not the services provided by Mr. Quigley to Connie Lemoine on January 15, 1999 actually amounted to “independent legal advice” so as to remove any taint of unfairness, undue influence, unconscionability or duress from the circumstances leading to the signing of the Agreement.

Property Valuation [ 48 ] The property registered in the name of James Griffith is a working farm operation comprising six quarter sections of land with some additional special use facilities, being the indoor riding arena and the extensive metal corrals, pens and fences on one quarter. The subject improvements include a main house, second house, hip-roof barn with lean-to, barn cattle handling facility, metal Quonset, combination shop machine shed, cattle waterers, metal clad vents and site services, all located on the home half. [ 49 ] Both parties presented their own expert.

For Connie, the court heard from John Sloan of Perry Appraisal Associates Ltd. Jamie presented Robin Elford of Elford Appraisal Services Ltd. Both of the party’s experts spoke to the three approaches an appraiser can take to appraising property, namely; • the Cost Approach, • the Direct Comparison Approach, and • the Income Approach [53] Neither expert used the Income Approach. Therefore, in order to estimate market value of the subject properties being appraised, the Cost and Direct Comparison Approaches were used in their appraisals.

[54] The Cost Approach assesses bare land value and then adds the depreciated value of any improvements. [55] In taking the Cost Approach to the lands, Mr. Sloan came up with a demonstrative range and adjusted prices per acre from a low of $3,598 to a high of $6,653 per acre. When the bare land and depreciated value of improvements are added together, the estimated value by Cost Approach calculated by Mr. Sloan is $2,555,000. [56] The indicators he used estimated the value of property as though bare with no improvements.

He stated that he found so using the proposition that most of the land is agricultural land and used mostly for farming and ranch land use. He also noted that the area has attracted interest by recreational land users or hobby farmers.

He stated on page 17 of his report “however, it is often noted that poorer agricultural land, characterized by relatively more tree cover, water or topography usually considered in a negative way for agricultural purposes, may command market prices equal to or in excess of land more suited for agricultural purposes.” This was particularly so in relation to the home half on which the improvements are situated. [57] He cautioned that the Cost Approach is not typically used by purchasers and vendors in the marketplace as there is little or no empirical evidence to support the rates of depreciation used in the approach.

This approach is particularly applicable when the property being appraised involves relatively new improvements which are relatively unique and for which there exist no comparable properties on the market. [58] The Direct Comparison Approach is based on the proposition that an informed purchaser would pay no more for property than the cost of acquiring another property with the same utility. Mr.

Sloan states this approach is often considered the most reliable approach to estimating value when there are sufficient market transactions involving properties similar to the subject lands. [59] In coming to his conclusion, Mr.

Sloan identified sales and listings of properties considered similar to the Griffith lands and then he made adjustments with respect to time, size, location, physical differences, land use and conditions to improve the comparability of the sale or listing to the Griffith lands. [60] This approach particularly took into account the value that is added by the indoor riding arena located on the lands in question. As well as additional out buildings, they were adjusted by Mr. Sloan, particularly in the case where a superior residence located on the comparable lands. [61] Using the Direct Comparison Approach, Mr.

Sloan came to a total aggregate valuation of the lands and improvements registered in the name of James Griffith of $5,203,000. [62] Robin Elford of Elford Appraisal Services Ltd. prepared the appraisal on behalf of Jamie Griffith. As Mr. Elford does not hold an AACI designation, Roger Beaupré AACI co-signed his appraisal. [63] Mr. Elford used the Direct Comparison Approach to establish an estimate of value for the bare land. The Cost Approach was utilized to establish the value of bare land and improvements in place on the home half, land legally described as SE4-28-[...]. [64] Mr.

Elford came to a total aggregate value of the land and improvements thereon at $3,529,000. [65] Mr. Elford approached his appraisal on the basis that the lands are solely for extensive agricultural use. He never mentions any recreational value attached, particularly to the home half. [66] He separated and individually valued each quarter.

[67] In considering the analysis of both appraisers, the largest dollar value differentials therein are the bare land valuations in their Direct Comparison Approach. Mr. Sloan came up with a bare land valuation of $4,358,000; whereas Mr. Elford appraised the bare land at $2,659,000. [68] I question the utility of Mr. Elford coming up with valuations on the separate quarters individually as opposed to considering that three of the bare quarter sections are contiguous and are farmed together. Concerns regarding access should be lessened thereby. [69] In addition, Mr.

Elford limits his assessment of the land’s highest and best use to agriculture only, and does not consider that the home half has value for recreational use. Accordingly, he has not provided any recreational use type properties as comparisons in coming up with his values. [70] This is particularly important as it applies to the indoor riding arena. Mr. Sloan came up with a depreciated value for the riding arena of $517,990 as compared to the $255,380 Mr. Elford ascribed to it. I also note in speaking about the riding arena that Mr.

Elford did not take into account that it is insulated and, rather than having an unfinished dirt floor, it has a number three sand washed wash floor, installed to a particular depth used especially for riding arenas to provide comfortable footing for horses. [71] The other substantial difference in valuation is in respect of the hip roof barn which Mr. Sloan values at $45,986 as compared with Mr. Elford’s calculated value of $17,568. Mr. Sloan points out that the hip roof barn has a new tin roof and tin siding and although the hip barn is old, it has been placed onto a new concrete foundation.

Given that new siding was not placed on the upper portion of the barn, Connie opined that renovations are planned in the future by Jamie. [72] My belief is that the largest valuation differences between the appraisers has to do with the fact that Mr. Elford did not take into account that there could be a mixture of both recreational and agricultural value to the lands owned by Jamie. In taking this approach, I find that Mr.

Elford ignored considering highest and best use potential value of the home half for a country residence site (recreation use) in addition the agricultural usage for the production of cereal grains and oilseeds and grazing of livestock. [73] His statement was that he would not compare any of the lands with recreational use properties. [74] Accordingly, the differences in valuations can be explained by the lack of common properties that the parties used for their comparables for the Direct Comparison Approach analysis. Of the nine properties Mr. Sloan used as comparables to the fourteen properties that Mr.

Elford considered, there is only one comparable property that is cited by both. [75] For the reasons set out above, I prefer the evidence and approach taken by Mr. Perry regarding value of the lands owned by Jamie. I find the aggregate value of those lands and the improvements thereon to be $5,203,000. Income [76] Although the parenting issues between Connie and Jamie are to be decided in a different forum, child support is still a matter for this court to decide. Spousal support is an issue as well, and in order to determine what is owed, income for each of Connie and Jamie must be decided.

Jamie’s Income [77] Jamie’s tax returns indicate he has no net income from his farming operations. When he was still in partnership with his father, he was paid $1500 per month, but this was in addition to all the things the farming operation paid for, such as housing and transportation.

[78] Both the Federal Child Support Guidelines under the Divorce Act and the Alberta Child Support Guidelines under the Family Law Act contain provisions on imputing income. They are essentially identical but as the Divorce Act doesn’t apply in this matter, I will quote from the Alberta Child Support Guidelines: Imputing income 19(1) The court may impute the amount of income to a parent that it considers appropriate in the circumstances, and those circumstances include the following: (

a) the parent is intentionally under-employed or unemployed, except where the under-employment or unemployment is required by the needs of a child of the parents or any child under the age of majority or by the reasonable educational or health needs of the parent; (

b) the parent is exempt from paying federal or provincial income tax; (

c) the parent lives in a country that has effective rates of income tax that are significantly lower than those in Canada; (

d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; (

e) the parent’s property is not reasonably utilized to generate income; (

f) the parent has failed to provide income information when under a legal obligation to do so; (

g) the parent unreasonably deducts expenses from income; (

h) the parent derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; (

i) the parent is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

(2) For the purpose of subsection (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada). [79] Jamie’s income is, in a sense, obscured by the different tax approach used for and by farmers. [80] The court heard expert opinion evidence regarding imputing income to Jamie from each party.

Both of the experts are chartered accountants and chartered business valuators. [81] Connie presented a written report by Robert Doran, partner of KPMG LLP Chartered Accountants, who imputed guideline income to Jamie in the range of $180,000 to $200,000 per annum. Mr. Doran came to this figure after reviewing not only the income tax returns for Jamie for three years 2008 to 2010, but also the Perry Appraisal Report which valued the six quarter sections owned by Jamie.

The written appraisal performed by Perry on behalf of Connie dated August 17, 2011 ascribes the market value of $5,203,000 to the property owned by Jamie. The report also noted that Jamie had $208,000 in cash and $95,500 invested with Wolverton Securities. [82] Jamie reported little or no income from 2008 to 2010 in his Income Tax Returns. In 2009, Jamie sold certain properties for $1.1M that triggered a significant capital gain. This was offset by farming losses. [83] In conducting his business valuation, Mr.

Doran considered it significant that Jamie may be deemed to be under-employed given the poor financial results and material improvements made to his property which required a significant amount of his time. He determined that imputation pursuant to the Alberta Child Support Guidelines was appropriate given that Jamie was not utilizing his property to generate a reasonable level of income. [84] He considered it appropriate to impute an income to Jamie as a farm manager based on his ability to earn a wage and as well

took into account a reasonable return on his assets. [85] For guideline purposes Mr. Doran found in his report that an income of $190,000 would be a reasonable income to impute to Jamie. [86] Jamie presented J. Max Wiebe, a partner with BDO Canada LLP, as his expert in respect of imputation of income both for himself and for Connie. [87] Mr. Wiebe commented that normally, one would look to Line 150 of a person’s Income Tax Return to determine the guideline income amount to determine child support and spousal support.

However, he testified that farmers have considerable latitude in deducting certain expenses and in capitalizing certain farm losses. Therefore, Line 150 of a farmer’s personal tax return may not necessarily reflect his true income, nor disposable cash available to the farmer. [88] Mr. Wiebe explained to the court that he did his analysis based on cash income that was available to Jamie rather than the normal guideline approach. Mr.

Wiebe noted that the capital cost allowance allocation on the financial statements between Art Griffith and Jamie for Griffith Farms in 2008 was exactly the same but in 2009 and 2010 they chose to allocate the capital cost allowance on a different basis. The basis of the change was not within Mr. Wiebe’s information that was provided to him. He discussed with the court the inventory adjustments both mandatory and optional which ended up showing a loss for most of the years in question. [89] In the cash based analysis that Mr. Wiebe conducted, which is attached as

Schedule 1(

A) to his written report, he estimated the annualized income of Jamie for guideline purposes for the three year average to 2010 to be $154,864.25. [90] A farmer, by the provisions of the Income Tax Act , is able to significantly modify his income for tax purposes by taking certain deductions for capital cost allowance or making an optional inventory adjustment. [91] He critiqued Mr. Doran’s approach due to Mr. Doran’s statement that it was unclear whether Jamie has been fully employed in his farming business.

Given the poor financial results and the material improvements made to his property, which required a significant amount of his time, Doran concluded that Jamie may be deemed to be under-employed. [92] Mr. Wiebe explained that many farmers lose money on a regular basis because of circumstances out of their control such as the BSE disaster to hit the cattle industry in southern Alberta and also the fact that it is not up to a business valuator to suggest that a person should get out of farming just because his operation is not profitable.

He stated that farmer’s incomes vary from year to year, and sometimes substantially. They are subject to market demands such as the price that they can sell grain or cattle for, or the prices they pay for feed. Mr. Wiebe stated that he doesn’t think it is his position to assume that he knows what a farmer should be doing with his assets. [93] Mr. Wiebe also commented on the property appraisal conducted by Mr. Sloan of Perry Appraisals of the lands owned by Jamie to have a stated value of $5,203,000.

He commented that should Jamie have to sell his lands, there is going to be significant tax on the sale or even on the assumed sale of the lands based on his adjusted cost base value. Therefore, the total amount cannot be considered as pure potential profit. [94] Mr. Wiebe also indicated in determining the income for Griffith Farms that no adjustment was made for any personal portion of the expenses that might have been run through the farm corporation. [95] The significant difference between the Doran and Wiebe reports is that Mr.

Wiebe was adamant that it is not his role in being a business valuator to impute income. He determined his role was to average Jamie’s income based on guidelines for the years 2008, 2009 and 2010. Accordingly, Mr. Wiebe did not turn to the imputation sections of the Federal Child Support Guidelines, but rather took into account that farmers have considerable latitude in deducting certain expenses and capitalizing certain farm losses. [96] I find that Mr. Wiebe had significantly more knowledge and experience in farm related accounting, and accordingly I accept

his methodology of calculation of cash income available to Jamie. I therefore impute an annual income of $154,864 to Jamie for the purposes of assessing child and spousal support. [97] As to Connie’s income, Mr. Wiebe prepared a separate report imputing income to Connie in 2010 of $26,893. I accept his reasoning and his number, and accordingly impute $26,893 per year to Connie for the purposes of assessing child and spousal support.

Legal Advice and the Agreement [98] The key issue in this case, so far as I am concerned, is whether or not the Agreement entered into as between Jamie and Connie on January 15, 1999, is valid. If so, Connie has waived her rights to claim anything as a result of the break-up of this 14-year relationship. If not, then Connie’s rights will be determined by the law of unjust enrichment, as is the usual approach in situations where long-term cohabitors never legally marry, despite living as if married for many years. [99] Connie called both Mr. Quigley, to give direct evidence, and Mr.

Lonnie Balbi, Q.C. a well-known Calgary family lawyer, as her expert on the standard of care applicable to a lawyer retained to provide independent legal advice on an agreement of this nature in 1999. Jamie called Ms. Wendy Best, Q.C. another well-known Calgary family lawyer, to act as his expert on the standard of care. Quigley ’s Evidence [100] It was clear at trial that Mr. Quigley had no independent memory of his dealings with Connie. His evidence was of what his practice “would have been” in situations like this.

He advised that ordinarily, he would receive a copy of the agreement a few days before meeting with the client, review it, and make notes which he would append to the document by way of “sticky notes.” His practice was to spend about an hour doing that. He went on to advise that he would then meet with the client, review the agreement in detail, ensure she understood the nature and effect of the document. He did not remember doing it, but said he would have advised Connie of the rights she was giving up.

He would not have told her what her options were with regard to negotiating alternative terms, or refusing to sign the agreement, or refusing to go through with a marriage. He would not have discussed the effect of the agreement in the event the parties did not marry. He believed he would have explained to Connie how “one-sided” the agreement was. [101] Mr. Quigley has retired and is no longer practising law. He was unable to produce any documentary evidence of his time spent on the matter. He had no file, no bill of costs, no notes or memoranda regarding his telephone conversations with Mr. Young. [102] Mr.

Quigley gave evidence that, at the time of his meeting with Connie, his hourly rate was likely $150 to $250. He said that he often performed independent legal advice consultations for Mr. Young, and others, and that they would provide these services for each other for “$100, $150, $250 at the time.” When presented with Mr. Young’s Statement of Account to Jamie Griffith, he seemed to be at something of a loss to explain why the disbursement relating to his services was only for $75. Expert Evidence [103] Mr. Balbi was qualified as an expert, despite opposition by the Defendant’s counsel.

The Defendant argued that Mr. Balbi’s report was based, at least in part, on the discovery evidence of Connie. The law is that such evidence is inadmissible when the party who gave the evidence seeks to have it entered. That is, of course, quite true. However, Connie’s counsel pointed out that Mr. Balbi’s instructions had been to base his opinion on the assumption that the same information would be put into evidence at trial. [104] The Defence also objected to the idea of an “expert” in family law. A concern was raised that his role would usurp the role of the court.

Connie’s solicitor, however, was at great pains to clarify that Mr. Balbi would give his opinion on the standard of care of a reasonably competent family lawyer in giving independent legal advice to a client about to sign a cohabitation agreement. He would not give evidence as to whether a duty of care exists, nor would it be for him to determine whether or not such duty was breached, or whether any consequences flowed from that breach.

[105] As the issue of the validity of the agreement is central to this case, I allowed Mr. Balbi’s report to be entered and he wasqualified as an expert in the standard of care expected of a reasonably competent matrimonial lawyer in the context of givingindependent legal advice to a party about to sign a cohabitation agreement at the time in question. [106] I also allowed the Defence time to locate, retain and brief their own standard of care expert to serve as a rebuttal witness. Theyretained Ms. Wendy Best, whose evidence was given several weeks after the main trial. [107] Mr. Balbi and Ms.

Best approached the issue of standard of care from significantly different standpoints. Mr. Balbi reviewed allthe available evidence, including Discovery transcripts and Mr. Quigley’s evidence. Ms. Best reviewed nothing other than theAgreement itself. Accordingly, Mr. Balbi’s evidence was more specific to what Mr.

Quigley had actually done, or not done, whereas Ms.Best’s evidence was limited to a more objective analysis of the steps she would consider necessary for a reasonably competent lawyer totake, given an Agreement like the one in this case, in order to demonstrate the standard of care. [108] Despite the two different approaches, it became clear to me that Mr. Quigley did not achieve a reasonable standard by eitherexpert’s measure. He spent between 18 and 30 minutes, in total, on the matter.

That would include any discussions he had with Jamie’scounsel, reviewing the Agreement, and meeting with his client, Connie, to go over the document and make sure she knew what she wassigning, what she was giving up, and what her options were. He could not have done all or even most of this in the time available. I find,therefore, that Connie did not receive independent legal advice in relation to the execution of the Agreement. The Law [109] This is not a matter arising under the Matrimonial Property Act.

Connie and Jamie never married, and the law is clear that thebenefits and protections of that Act are confined to legally married couples only.

When determining the distribution of property inrelation to what are called “common-law marriages,” the law of equity has developed its own set of guidelines for achieving fairness onthe termination of such relationships, especially where, as here, the relationship has been of fairly long duration (in this case, 14 years)and there is a child involved. [110] The basis for division of property on the dissolution of common law relationships has developed from the principles ofconstructive trust in order to prevent unjust enrichment: Pettkus v.

Becker, (SCC), [1980] 2 S.C.R. 834 in which JusticeDickson stated at p. 7: In Murdoch v. Murdoch, Laskin J., as he was then, introduced in a matrimonial property dispute the concept of constructive trust toprevent unjust enrichment. It is imposed without reference to intention to create a trust, and its purpose is to remedy a result otherwiseunjust. It is a broad and flexible equitable tool which permits courts to gauge all the circumstances of the case, including the respectivecontributions of the parties, and to determine beneficial entitlement.

It was described this way in Rathwell, at p. 455: The constructive trust, as so envisaged, comprehends the imposition of trust machinery by the court in order to achieve a result consonantwith good conscience. As a matter of principle, the court will not allow any man unjustly to appropriate to himself the value earned bythe labours of another.

That principle is not defeated by the existence of a matrimonial relationship between the parties; but, for theprinciple to succeed, the facts must display an enrichment, a corresponding deprivation, and the absence of any juristic reason--such as acontract or disposition of law ​ for the enrichment. [111] In matters arising under the Matrimonial Property Act, the law presumes enrichment by the very fact of marriage itself.

Outsideof that legislative scheme, however, each element of the test falls to the claimant to prove. [112] A critical early question in domestic claims was whether the provision of domestic services could support a claim for unjustenrichment. After some doubts, the matter was conclusively resolved in Peter v. Beblow, (SCC), [1993] S.C.J. No. 36;[1993] 1 S.C.R. 980, where the Court held that it could. A spouse or domestic partner generally has no duty, at common law, equity, orby statute, to perform work or services for the other. It follows, on a straightforward economic approach, that there is no reason to

distinguish domestic services from other contributions (Peter, at pp. 991 and 993; Sorochan v. Sorochan, (SCC), [1986]2 S.C.R. 38; [1986] S.C.J. No. 46 at p. 46). They constitute an enrichment because such services are of great value to the family and tothe other spouse; any other conclusion devalues contributions, mostly by women, to the family economy (Peter, at p. 993). The unpaidprovision of services (including domestic services) or labour may also constitute a deprivation because the full-time devotion of one'slabour and earnings without compensation may readily be viewed as such.

The Court rejected the view that such services could not foundan unjust enrichment claim because they are performed out of "natural love and affection" (Peter, at pp. 989-95, per McLachlin J., andpp. 1012-16, per Cory J.). [113] In Peter, McLachlin J. noted at para. 6: I share the view of Cory J. that the three elements necessary to establish a claim for unjust enrichment ​ an enrichment, a correspondingdeprivation, and the absence of any juristic reason for the enrichment ​ are made out in this case.

The appellant's housekeeping and child-care services constituted a benefit to the respondent (1st element), in that he received household services without compensation, which inturn enhanced his ability to pay off his mortgage and other assets. These services also constituted a corresponding detriment to theappellant (2nd element), in that she provided services without compensation. Finally, since there was no obligation existing between theparties which would justify the unjust enrichment and no other arguments under this broad heading were met, there is no juristic reasonfor the enrichment (3rd element).

Having met the three criteria, the plaintiff has established an unjust enrichment giving rise torestitution. Constructive trust is not automatically conferred on finding that there has been an unjust enrichment. It is reserved for situations where amonetary award would be inadequate, and in addition there must be a direct link between the claimant’s contributions and the property inissue.

Further, “ the courts should exercise flexibility and common sense when applying equitable principles to family law issues withdue sensitivity to the special circumstances that can arise in such cases (Peter, at para. 26). [114] The most recent and authoritative case, tying all these disparate strands of theory togther for the purposes of determiningcompensation and enrichment issues in non-matrimonial domestic partnership disputes is Kerr v. Baranow, 2011 SCC 10 ,[2011] S.C.J.

No 10; [2011] 1 S.C.R. 269, wherein an unanimous court made the following pronouncements on the state of the law: (a) “the law of unjust enrichment, coupled with the remedial constructive trust, is the preferred approach” (para. 23); (b) “the common intention resulting trust has no further role to play in the resolution of domestic cases “(para .24); (

c) The legal framework for determining unjust enrichment is the same in family law as in general law, but it “must be applied in theparticular factual and social context out of which the claim arises” (para. 34); (

d) The test for unjust enrichment remains the same: “an enrichment of or benefit to the defendant, a corresponding deprivation of theplaintiff, and the absence of a juristic reason for the enrichment “ (para. 32); (

e) An enrichment may be positive (the giving of a thing, service, or money) or it may be negative (where the benefit gives thedefendant a savings) (para. 38); (

f) The Plaintiff’s deprivation must correspond - for example, in staying home to raise Chance, Connie conferred the benefit ofchildcare services on Jamie, which is a negative” enrichment, in the sense that it saved him the cost of childcare. In providing thatbenefit, Connie was suffering the corresponding deprivation of being unable to pursue her own career and make her own money (para.39) (

g) There must be no reason in law for the enrichment. The distinction is that while “natural love and affection” may be a very goodreason for one partner in a pairing to stay home to raise the children and keep the house and family, “a spouse or domestic partnergenerally has no duty, at common law, equity, or by statute, to perform work or services for the other” (para. 42); (

h) Domestic services can constitute an enrichment “because such services are of great value to the family and to the other spouse;any other conclusion devalues contributions, mostly by women, to the family economy” (para. 42); (i) “The first step of the juristic reason analysis applies the established categories of juristic reasons; in their absence, the secondstep permits consideration of the reasonable expectations of the parties and public policy considerations to assess whether recoveryshould be denied ” (para. 43); (j) “If the case falls outside the existing categories, the court may take into account the legitimate expectations of the parties(Pettkus, at p. 849) and moral and policy-based arguments about whether particular enrichments are unjust” (para. 44); (k) “A successful claim for unjust enrichment may attract either a "personal restitutionary award" or a "restitutionary proprietaryaward".

In other words, the plaintiff may be entitled to a monetary or a proprietary remedy” (para. 46).The first remedy to consider is amonetary award (para. 47). There are two approaches to valuating a money award. The “value survived” approach looks at the value of

the property in light of the claimant’s contributions whereas the “value received” approach looks at the value of the services provided by the claimant. “Value received” can include a quantum meruit analysis. [115] Quantum meruit is, by no means, the only approach to a money award in a domestic division. The Peters case has been misinterpreted to suggest that is the case.

Connie was not just a live-in nanny/housekeeper; she was an equal partner in the family. [116] Each individual asset does not have to be assessed separately, such that any one property to which both parties have contributed is, in some way, sacrosanct. Thus, for example, in this case the court should not look at the parties’ home, the farmed land and the retail business condominium that houses Giddy-Up separately, then split them somewhere in the middle.

The overall domestic and economic activity engaged in by the family unit can be assessed as a form of “joint family venture” and dealt with in a fashion that will try to take practical realities into account. For example, any farm land that I might award to Connie will reduce the income earned by Jamie such that the award might be self-defeating. The family home, while it might have no effect on Jamie’s income, is nevertheless part and parcel of the farming operations Jamie carries on.

The retail condominium, on the other hand, is one of the few assets of any significant value that is severable from the others without diminishing the value of the rest by its removal. An Enrichment [117] Were the parties enriched by their relationship? I think this cannot seriously be questioned. Indicators of mutual effort include that Connie and Jamie lived together for 14 years in a relationship analogous to husband and wife. They had a child. Connie prioritized and contributed to the family’s livelihood by her provision of “domestic services.” She cooked and cleaned.

She kept the home and stayed home to raise their child. Her presence, and the services she provided particularly with regard to running the home and providing child care, made it possible for Jamie to do the work that he did, over the years, as a farmer. She contributed even more directly to the family unit in relation to their home on the “home half,” supervising and pitching in on the renovations.

Specifically, she broke cement, carried rock, and did all the designing, painting and staining work herself, plus assisted with the landscaping. [118] In addition, Connie contributed to Jamie’s farming undertakings by helping out daily with chores, particularly during calving and harvesting times. She looked after the family’s horses and despite having no personal experience of farming, pitched in when and where she could. It is perhaps of note that Casey, her daughter, did so as well.

I have no doubt that the parties intended to be and were economically integrated. [119] I find that Jamie was enriched by Connie’s contributions to their relationship. His net worth would not have increased at it did without Connie’s efforts and assumption of responsibilities. A Corresponding Deprivation [120] As to deprivation, again Connie’s situation is not very different from the classic case of a spouse who leaves the work force, partially or completely, in order to support his or her family in non-financial terms.

Once again, the main difference is that Connie is not afforded the protection given spouses under the Matrimonial Property and Divorce Acts. [121] To facilitate this relationship and this family, Connie left her long-term employment at UFA. Her problems surrounding their earlier attempts to get pregnant led to some significant health issues, but when Chance was born, she stayed at home with him. Eventually, she sought and found the kind of work that let her bring the baby along, such as driving the school bus, in order to add to the family finances.

Having regard to all this, I find that Connie has suffered a deprivation corresponding to Jamie’s enrichment. Juristic Reason [122] The two-part test for determining the existence and validity of a juristic reason for an otherwise unjust enrichment was set in Garland v. Consumer ’s Gas Co. , 2004 SCC 25 , [2004] 1 S.C.R. 629 at paras. 45-46 , as follows:

First, the plaintiff must show that no juristic reason from an established category exists to deny recovery [...] The established categoriesthat can constitute juristic reasons include a contract (Pettkus, supra), a disposition of law (Pettkus, supra), a donative intent (Peter,supra), and other valid common law, equitable or statutory obligations (Peter, supra). If there is no juristic reason from an establishedcategory, 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 theanalysis thus provides for a category of residual defence in which courts can look to all of the circumstances of the transaction in order todetermine whether there is another reason to deny recovery.

As part of the defendant's attempt to rebut, courts should have regard to two factors: the reasonable expectations of the parties, andpublic policy considerations. [123] The central issue in the trial was the presence or absence of a juristic reason for Jamie’s enrichment due to his relationship withConnie. The juristic reason that was focused on was, of course, the Agreement. If, however, it can be shown that the Agreement isinvalid, then the onus returns to Jamie. [124] There are a number of circumstances under which an agreement of this nature might be found invalid.

I am mindful that this andother courts have found themselves willing to interfere with contractual arrangements of this nature in direct proportion to the degree towhich these contracts purport to depart from the general scheme provided for in the Divorce Act and the Matrimonial Property Actstatutory schemes. In this case, the Agreement is a complete departure from that regime. It bars any claims Connie might ever have toshare in the accretion of Jamie’s property.

It specifically excludes the operation of the Divorce Act and the Family Law Act, such that itcould be interpreted as relieving Jamie from any obligation to support Connie or Chance in the event the relationship should end.Granted, the document also purports to relieve Connie from having to share any accretions to her wealth, or from having to pay Jamieany spousal or child support, but there was only the slightest possibility that such a scenario could arise, given the parties’ relativedisparity of wealth.

Contractual Principles [125] Despite the fact that an agreement of this nature is specialized, it is still a contract and the basic law of contract applies. One ofthe most basic principles of contract law is that consideration is required. In this case, the agreement is said to be made “in considerationof their cohabitation, the entry into marriage by each and the mutual promises and covenants contained herein.” The cohabitation pre-existed the contract. Marriage, however, never occurred.

As for the mutual promises and covenants in the agreement, they do not in anyway confer a benefit by one party to another: on the contrary, they purport to prevent either party from receiving any financial benefitfrom the other. [126] Further, the document is titled “Matrimonial Property Agreement.” As the couple never married, the property underconsideration never became “matrimonial property.” It is clear that the contract was made in contemplation of, and in consideration for, amarriage which never came about.

Despite the paragraph suggesting that “should the parties not, in fact, marry, it is their wish that thisAgreement be binding and of full force and effect, with necessary changes to reflect their non-married status, and that this Agreement bethe sole determinant of the status, ownership, division and distribution of their property.” While that may or may not have been the caseat the time, a “wish” does not amount to a term, condition or covenant. Equitable Principles [127] In considering the validity of a domestic contract, a number of equitable principles come into play.

The contract might be void,or voidable, as a result of duress, undue influence or unconscionability. I will deal with each in turn. [128] Duress, in any form, is the coercion of another’s will so as to vitiate consent: Hill v. Illnicki, (AB KB), 273A.R. 131 at para. 52, citing Pao On v. Lau Yiu Long, [1970] 3 All E.R. 65 (H.K. P.C.) at 78. It is, in other words, a threat. In this case,Connie was told that if she did not sign the Agreement, Jamie’s father would force her to move off his land. Certainly this is a threat.

[129] Traditionally, however, economic duress is usually only found sufficient to vitiate a contract where there has been a threat andthe pressure exerted by that threat must be “illegitimate” in nature: Stott v. Merit Investment Corporation (1988), (ON CA), 48 DLR (4th) 288 at 308 (Ont. C.A.). [130] The threat of an illegal act is almost always illegitimate. On the other hand, not all lawful acts are necessarily legitimate.

Thereare four factors for determining when an otherwise lawful act amounts to illegitimate pressure and is sufficient to establish a defence ofduress: (1), where the threat involves an abuse of the legal process; (2), where the demand is not bona fide; (3), where the demand is notreasonable; and (4), where the demand is unconscionable: Nelson Enonchong, Duress, Undue Influence and Unconscionable Dealing,(London, UK: Sweet & Maxwell, 2006) at 3-022. [131] The problem in this instance is that what Connie thought she was signing was a waiver of all rights to claim against the farmingpartnership only.

To be even more specific, she was told she had to waive all potential claims she might one day make with regard toGriffith Farms. That was, moreover, the requirement that Jamie and his father had entered into under their partnership agreement. WhileI recognize that this would have brought significant pressure to bear on Connie, I do not think that it amounted to duress. [132] Undue influence is an equitable doctrine that seeks to protect people from victimization by those they rely on.

The focus of thelegal enquiry centres on “the ability of one person to dominate the will of another, whether through manipulation, coercion, or outrightbut subtle abuse of power.” Goodman Estate v. Geffen, [1991] 2. SCR 353 at 377, per Wilson J. [133] The equitable defence of undue influence arises in two sets of circumstances. The first is where evidence can be adduced toprove that actual influence was exerted, unduly, in order to gain agreement to a particular transaction.

Strong persuasion is not sufficient.The second is a presumption of undue influence that arises from the nature of the relationship between the parties, particularly at the timethe transaction is being negotiated and carried out. [134] I consider that undue influence was at play in the circumstances surrounding the signing of the agreement. Connie was told theagreement was only with regard to the partnership. She was told she would have to leave the farm if she did not sign.

She never got anadvance copy of the agreement to review, she was taken to Jamie’s lawyers’ offices where his lawyer “went through” the agreement, inJamie’s presence, and then she was sent off with a complete stranger who spent approximately 15 minutes with her before she signed theagreement. [135] Having established that factors of pressure amounting to undue influence were at play in the circumstances surrounding theexecution of the agreement, it falls to the defendant to try to remove that taint so as to justify enforcement of the agreement.

The mostusual way is to show that the claimant entered into the agreement knowingly, voluntarily, and with a full understanding of what wasbeing given up. This can be achieved by establishing that the claimant had sufficient business sophistication to understand theimplications of the agreement yet chose to enter into it anyway or, instead, proving that the claimant had access to, and took advantageof, independent legal advice. [136] In this case, Jamie points to the services provided by Mr.

Quigley as proof that Connie received independent legal advice andthen, upon due consideration, chose to enter into the agreement anyway. [137] While “independent legal advice” is not, necessarily, a term of art it has certain characteristics and the phrase warrants a certainamount of parsing. For example, my analysis should first determine whether any legal advice Connie received was, in fact, independent.The factors to consider include the following: [138] Connie did not retain Mr. Quigley’s services, he was presented to her by Jamie’s lawyer, in Jamie’s lawyer’s office.

She hadnever met him before and did not, after this event, become a client. [139] Connie was not given any opportunity before the visit to the lawyers’ offices to review the agreement. It was read aloud to herand Jamie by Jamie’s lawyer, and most of the discussion, to her recollection, was with regard to the partnership.

[140] Mr. Quigley did not open a file regarding Connie. He sent his statement of account to Jamie’s lawyer, and Jamie paid it as adisbursement on his own statement of account from Mr. Young. [141] In short, Mr. Quigley was chosen, briefed and paid by Jamie and his lawyers. There was nothing “independent” at all in hisservices. [142] Next, I consider whether legal advice was given. Neither Jamie nor Mr. Quigley has any memory of what took place. Thus theonly direct evidence on point is Connie’s, and she recalls spending no more than 10 or 15 minutes with Mr. Quigley. This memory issupported by the fact that Mr.

Quigley billed only $75 for his services, despite having a stated hourly rate of $150 to $250. [143] $75 represents 18 - 30 minutes of time spent on the matter, in a situation where there would be absolutely no reason for Mr.Quigley to discount his time. Nor is there any evidence that he was ever asked to do so. Instead, he evinced a certain amount of surprisewhen told that only $75 had been billed for his time. [144] In Corbeil v. Bebris, (AB CA), [1993] A.J.

No. 587 Kerans, J.A., writing for unanimous Court of Appeal,addressed the issue as follows: 12 But I distinguish attendance on execution from advice about the wisdom of entering into the agreement. The term "independent legaladvice" has a very specific meaning in law. The duty of advising counsel has been summarized in Halsbury's Laws of England, FourthEdition, Vol. 18, Para. 343, at p.157: The duty of the independent adviser is not merely to satisfy himself that the donor understands the effect of and wishes to make the gift,but to protect the donor from himself as well as from the influence of the donee.

A solicitor who is called upon to advise the donor mustsatisfy himself that the gift is one that is right and proper in all the circumstances of the case, and if he cannot so satisfy himself heshould advise his client not to proceed. [145] I therefore find that Mr. Quigley did, in fact, spend no more than 15 minutes with Connie at the time he is alleged to haveprovided her with his “independent legal advice.” Backing out as little as another 15 minutes to cover the time he spent prior to themeeting reviewing the document and exchanging telephone calls with Mr.

Young, as well as the time it took him to sign the MatrimonialProperty Act Acknowledgement and Certificate, as well as the Certificate of Independent Legal Advice, that means he could not possiblyhave had time to provide Connie with independent legal advice about the implications of the Agreement. No valid juristic reason exists tojustify the enrichment, and Connie is therefore entitled to make claims for division of property as well as support for herself and for theirchild.

Family Assets and Income [146] Like many farmers in this province, Jamie is what could be called “land rich and cash poor.” Certainly this is the impressionthat he tried to give at trial and in all his financial disclosure. His tax returns indicate that his gross income from self-employment isminimal at best, and that he has no net income but, rather, an ongoing loss. His evidence at trial is that he earns, or has earned, about$1500 per month over the entire time that he and Connie were together.

He did not mention the $750 per month he receives as rent for thesecond house located on the home half or rent he receives from oil or gas wells located on his property. [147] Jamie’s net worth, however, is in the millions of dollars. He is able to buy and sell land, including the condo bay that housesGiddy-Up, purchase vehicles, and generally live life in comfort. [148] A major source of Jamie’s wealth was his sale, to Alberta Infrastructure, of a piece of land that is now the ring road to the northof the City of Calgary – as I understand it, Stoney Trail.

Indeed, over the course of this relationship, Jamie has bought and sold other landand made significant profits in the process.

[149] I do not have before me any evidence of the net worth Connie and Jamie had at the beginning of the relationship, although I suspect that Connie’s has declined somewhat as her horses and trailer aged.

I do have the lists of assets prepared for the Matrimonial Property Agreement, however, and for lack of better evidence will use that to compare to the property which the parties had accumulated as at the time of trial, as set out in the Statutory Declarations each one prepared. [150] Comparing Connie’s assets as of November 9, 2011 (date of signing the Statutory Declaration of Income Assets and Liabilities) and January 15, 1999 (date of signing the Agreement), I find that her net worth has increased by $98,500. (See

Schedule “A” attached) [151] I compared Jamie’s assets stated in his Statutory Declaration of Income, Assets and Liabilities, dated November 8, 2011, and adjusted the numbers to better reflect the expert evidence adduced from Perry Appraisals at trial. Once that figure was obtained, I compared it to the assets listed as of the date of the disputed Agreement. I find that his net worth has increased by $3,731,141. (See

Schedule “B” attached) [152] This net worth increase would likely be more if the 2011 values were compared with 1995 values, instead of the 1999 values set out in the Agreement which is the only evidence available to the Court. [153] In assessing the amount Connie should receive as compensation for the unjust enrichment of Jamie, the presumption of equality set out in the Matrimonial Property Act does not apply as the parties never married. I must therefore take into account the factors discussed previously in the Kerr v.

Baranow case. [154] Although I have held the Agreement invalid, there is ample evidence that Connie never intended to make a claim with regard to farmlands owned by the partnership of Jamie and his father. [155] Giddy-Up, the numbered company and the retail condominium bay were clearly intended to provide Connie with an outlet and a source of income of her own. [156] Connie is entitled to child support for Chase. I find that Jamie has not rebutted the presumption in favour of applying the Guideline amount. I have imputed an income of $154,864 to him.

This is sufficiently close to $150,000 that it is appropriate to apply the table amount: Francis v. Baker , [1993] 3 SCR 250 at para. 43 ; Schick v. Schick , 2008 ABCA 196 at para. 30 . Accordingly, Jamie’s

section 3 monthly child support obligation is $1,347. [157] Connie is entitled to retroactive child support payments. She has received $1,200 per month from Jamie in non-characterized payments since August 1, 2010 in accordance with the July 21, 2012 Order of Justice Phillips, resulting in a total amount paid of $32,400 to October 31, 2012. I characterize these payments as child support payments.

The Supreme Court has indicated that a child support award should generally be retroactive to the date when the recipient parent gave the payor parent effective notice of her intention to seek an increase in support payments: DBS v. SRG; LJW v. TAR; Henry v. Henry; Hiemstra v. Hiemstra , [2006] 2 SCR 231, 2006 SCC 37 . Connie has asked for retroactive child support relief, commencing on August 1, 2010.

I find that this fits within the legal requirements for retroactive child support, and the $147 monthly difference between Jamie’s payments of $1,200 and the table amount of $1,347 is owing to Connie resulting in a total lump sum of $3,969 as of October 31, 2012. Award [158] I find Connie is entitled to 30% of the increase of Jamie’s Net Worth once the $3,731,141 figure has been tax impacted. Given the dearth of evidence on any tax implication, I set the amount at 15%. Once I credit Jamie for his $120,000 equity in the condo bay, Connie is hereby awarded the sum of $915,440. (See

Schedule “C” attached) [159] I am mindful of the decision in Desimone v. Straub , 2010 ABQB 462 of Justice Mahoney wherein Ms. Desimone received 35% of the increase in value of certain assets. I am satisfied in considering the facts of this case and circumstances of these parties that a 30% award is appropriate.

[160] After reviewing the case law and the facts of this case, I find this is a case where a monetary award would be adequate and I decline to award Connie any interest in any of the lands Jamie owns. I am persuaded from Jamie’s evidence that he operates the six quarter sections as an integrated farming and ranching entity which would be unjust to split up.

Connie should be able to provide for herself, the child and her horses with a monetary award. [161] In view of the sum awarded to Connie of the increased value of Jamie’s assets, I find no Adult Interdependent Partner support is owing to Connie. [162] The award of $915,440 compensates her for the contributions she has made to the relationship. [163] Connie is entitled to the increase in the net value of her assets without claim from Jamie. [164] To summarize, I make the following rulings: (

a) the “matrimonial property agreement” signed by Jamie and Connie on January 15, 1999 is of no force and effect. (

b) Connie is entitled to a share in the amount of 30% of Jamie’s increased net worth after tax impacting, due to her significant contributions to the joint family venture. I calculate that sum to be $915,440. (

c) The shares in 1310030 Alberta Ltd. (Which owns the condo bay) are to be transferred into Connie’s sole name. As part of this transfer of shares, I declare that Jamie’s shareholder loan is hereby forgiven. In other words, Connie is to end up with sole and debt-free ownership of Giddy-Up and 1310030 Alberta Ltd., subject to the mortgage of approximately $75,000 registered against title to the condo bay.. (

d) Jamie shall pay child support for Chase in the amount of $1,347 per month commencing November 1, 2012, and his 85% proportionate share of s. 7 expenses. (

e) Jamie shall pay $3,969 to Connie for retroactive child support for Chase. (

f) The order should include the normal Maintenance Enforcement clause and the requirement to exchange tax returns annually. (

g) Interest on the value of Connie’s share is ordered pursuant to the Judgment Interest Act of Alberta from August 1, 2009 (the date of separation) to the date Connie’s share is paid. [165] Normal party and party costs including expert disbursements are hereby awarded to Connie. Heard on the 21 st , 22 nd , 23 rd , 24 th , 25 th , 28 th , 29 th and 30 th days of November, 2011 and the 23 rd and 24 th days of January, 2012.

Dated at the City of Calgary, Alberta this 2 nd day of November, 2012. S. L. Hunt McDonald J.C.Q.B.A. Appearances: Rupert N. Joshi, Foster LLP Family Law Lawyers for the Plaintiff Nigel Montoute, Kirk Montoute Dawson LLP for the Defendant

SCHEDULE “A ” CONNIE LEMOINE AMENDED STATEMENT OF INCOME, ASSETS AND LIABILITIES A. ASSETS Description of Asset Particulars Approximate Value Real Estate Condo Bay owned by 1310030 Alberta Ltd. (one half interest) $157,500.00 Vehicles Horse trailer $ 10,000.00 Livestock Horses $ 17,145.00 Financial Assets Wolverton Securities Account $ 15,000.00 Pensions and RRSPs Corporate/Business Interests Shares in Giddy-Up Western Wear Inc. $ 7, 500.00 TOTAL ASSETS $ 207,145.00 B.

DEBTS Description of Liabilities Particulars Balance Owing Secured Debts Mortgage on Condo Bay (one half interest) $ 37,500.00 Unsecured Debts TOTAL LIABILITIES $ 37,500.00 2011 TOTAL NET ASSETS $ 169,645.00 Less: 1999 ASSET AMOUNT 71,145.00

INCREASED AMOUNT $ 98,500.00

SCHEDULE “B ” JAMIE GRIFFITH AMENDED STATEMENT OF INCOME, ASSETS AND LIABILITIES A. ASSETS Description of Assets Approximate Value Land/Residences and Improvements $ 5,203,000.00 Condominium Bay (jointly owned by C. Lemoine) $ 157,500.00 Cattle $ 565,000.00 Crops $ 176,000.00 Farm Machinery & Equipment $ 318,000.00 2002 Chevrolet Truck $ 6,000.00 2007 Dodge Truck $ 15,000.00 2008 GM Truck $ 25,000.00 Trailer $ 52,000.00 Wolverton Account $ 52,605.00 (as at Sept. 30/11) TD Canada Trust Investor Account #[...]798 $ 177,862.76 (as at Sept. 30/11) TD Canada Trust Agriinvest Account #[...]835 $ 7,626.52 (as at Sept. 30/11) TD Canada Trust Account #[...]740 $ 416.75 (as at Jan. 31/11)

TOTAL ASSETS $ 6,756,010.00 B. DEBTS Description of Liabilities Balance Owing Land Mortgage regarding 400 Acres $ 90,000.00 (approximate) Cattle Loan $ 350,000.00 (approximate) Mortgage regarding Condominium Bay $ 37,500.00 (approximate) TD Canada Trust Line of Credit $ 26,427.27 (approximate) Visa Credit Cards NIL John Deere Financing $ 7,000.00 (approximate) TOTAL LIABILITIES $6,245,082.80 2011 TOTAL NET ASSETS $ 6,245,082.80 LESS: 1999 ASSET AMOUNT 2,513,941.80 INCREASED AMOUNT $ 3,731,141.00

SCHEDULE “C ” JUDGMENT AWARD Jamie’s Increased Net Worth $ 3,731,141.00 Less 15% Notional tax $ 559,671.00 * Balance $ 3,171,470.00 Less Jamie’s Equity - Condo Bay $ 120,000.00 NEW BALANCE $ 3,051,470.00 =========== Connie ’s Award - 30% $ 915,440.00

* I have taken the principle residence and lifetime capital gains exemptions into consideration. ___________________________________________________ Corrigendum of the Reasons for Judgment of the Honourable Madam Justice S. L. Hunt McDonald ___________________________________________________ The addition of new paragraphs [158] and [159] to page 26.