Lotnick v. Berezowski, 2013 ABQB 304

Court of Queen ’ s Bench of Alberta Citation: Lotnick v. Berezowski, 2013 ABQB 304 Date: 20130528 Docket: 1203 09520 Registry: Edmonton Between: Tara Lynn Lotnick Applicant - and - Russell Edward Berezowski Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.P. Marceau _______________________________________________________ 1. History of the Proceedings [ 1 ] The parties commenced a common-law relationship in the summer of 2004. From this relationship were born three children: KB, born 2005; JB, born 2006; and KJRB, born 2009.

The couple and their children lived in a succession of three houses. [ 2 ] The parties separated on June, 28, 2011 and at that time resided in their third home, an acreage near municipally known as Site 43, Box 2, Comp. 9, RR1 in the Town of Drayton Valley, Alberta. This property, the “ Third Home ” , was held in a joint tenancy.

[ 3 ] On June 22, 2012, Ms. Lotnick [the “ Applicant ” ], filed an application: 1. to terminate the joint tenancy; 2. dispensing with the consent of Mr. Berezowski [the “ Respondent ” ] for the purpose of listing and selling the Third Home; and 3. to divide the sale proceeds from the Third Home between the Applicant and the Respondent pursuant to the parties ’ respective interest in the premises after payment of:

a) all encumbrances registered against title, and

b) any outstanding property taxes, real estate commission, and reasonable legal fees. [ 4 ] Initially the Applicant requested a direction the Respondent provide compensation for an unequal distribution of the sale proceeds but that application was withdrawn at the Special Chambers hearing. From the orders on file, it is apparent that the initial viva voce hearing was scheduled for October 1, 2012, then adjourned to December 17, 2012 and last to May 14, 2013. [ 5 ] As a preliminary point, I observe that there was a very unsatisfactory aspect to this hearing.

The parties at the May 14 application indicated they wished to turn this application from an interlocutory application into, essentially, a mini trial.

This separating couple really wanted a shortened trial which would dispose of the issues that should be addressed in a trial context, but they also want swift and cheap decisions on all the major points of contention. [ 6 ] By booking one day only for a special chambers hearing, they rushed the evidence of the Applicant and the Respondent and still used up an extra half hour of a juridical day on the May 14, and then still required almost a half day for argument on May 15.

It was obvious to me that substantial documentary evidence was available, such as receipts for purchases, cancelled cheques, income tax records, and details of the joint accounts. However, putting this evidence in at the hearing (pseudo-trial) would have entailed at least a couple more days. The result is that the evidence is quite skimpy on detail, and that benefits no-one. 2. Legislation [ 7 ] The parties ask that I order termination of the joint tenancy on the Third Home. This is authorized by the Law of Property Act , R.S.A. 2000, c.

L-7 [the “ Act ” ], and is a collateral effect of an order under the Act , s. 17: Accounting, contribution and adjustment 17(1) In making an order, the Court may direct that (

a) an accounting, contribution and adjustment , or anyone or more of them, take place in respect of the land, and (

b) compensation , if any, be paid for an unequal division of the land .

(2) In determining if an accounting, contribution or adjustment should take place or compensation be paid for an unequal division of

the land, the Court shall, without limiting itself from considering any matter it considers relevant in making its determination, consider whether ... (

e) a co-owner has made improvements or capital payments that have increased the realizable value of the land; Severance of joint tenancy 19 If the interest in land that is the subject of an order is held in joint tenancy, the order on being granted severs the joint tenancy . [Emphasis added.] 3. Position of the Parties [ 8 ] Mr. Berezowski ’ s position flows from the history of the purchase and sale of the Third Home and other houses occupied by the parties.

He argues that while both parties have equal legal title, and would normally receive half the net value of the Third Home, he nevertheless should receive more because he has contribute more to the value of the Third Home. [ 9 ] Mr. Berezowski ’ s position is that when the relationship started he owned and had sole titles to the first home occupied by the couple. When that house was sold he used $46,000.00 of the proceeds to purchase home number two, which was placed in both names in joint tenancy. Mr.

Berezowski argues that $42,000.00 of the $46,000.00 from the proceeds of sale of the second home can be traced as a contribution to a down payment to purchase the Third Home. As a consequence, Mr. Berezowski argues that there should be an unequal distribution of the equity in the Third Home by awarding him and additional one-half of $42,000.00, namely $21,000.00. [ 10 ] The second contention of Mr. Berezowski is that the land on which the Third Home is located was given to him as a pre- inheritance. He values that contribution as $75,000.00.

His position is that as to $37,500.00 (one-half), a priority distribution should be made to him. [ 11 ] Ms. Lotnick asks for the proceeds of sale of the Third Home be divided equally between herself and Mr. Berezowski. [ 12 ] Forced sale is not the only alternative acceptable to the parties; they, in the alternative, requested that I fix a price at which Mr. Berezowski may purchase the Third Home, and set a reasonable deadline to do so. If Mr. Berezowski does not exercise that option then I am asked to direct that the land be listed for sale. [ 13 ] Mr.

Berezowski argues that in my assessment of the Third Home ’ s value, that I take into account that part of the driveway to that home is not situated on the land which is in joint tenancy but rather on his uncle ’ s land. Arguably, this causes access issues, and the value of the property should be adjusted downwards to account for this issue. [ 14 ] The parties also wish I address the distribution of the funds with back taxes, obligations to pay mortgage payments, occupation rent, and payment to Mr. Berezowski of any arrears of child support due to him as found by the court in the Family Law action. 4.

The Relationship

[ 15 ] The parties started dating in 2004. Ms. Lotnick says that she was in university at the time. When university ended in the summer of 2004, she moved into house number one which Mr. Berezowski had purchased in his own name for $75,000.00 in April 2004 ($5,000.00 down payment, $70,000.00 mortgage). [ 16 ] Ms. Lotnick worked part time from the summer of 2004 until when the couple ’ s first baby was born in June, 2005. She did not say how many hours she worked per week, but she did say that her hourly rate was $26.00 per hour. It is clear that during this period Mr.

Berezowski had a full time job and made more money than her, but then again, no one has led any evidence of exactly how much she or he earned in any particular year. [ 17 ] Ms. Lotnick testified that from the time she moved in until the property was sold, adjusted as of May 19, 2006, she had helped maintain and renovate the home along with Mr. Berezowski, her father, her grandfather and other persons.

She described extensive renovations in the house: 1. replacement of panelling on the walls with drywall (since drywall has been around for a long, long time, I have to conclude that a house with panelling for walls was very much a fixer-upper); 2. the walls were re-insulated before putting on the drywall; 3. the flooring both upstairs and downstairs was changed to laminate flooring; 4. cupboards were installed; 5. some trees were cut down and the yard was cleaned; and 6. the kitchen, livingroom, hallway and two bedrooms were painted. [ 18 ] Ms. Lotnick says she contributed to these improvements in several ways.

She contributed funds from her part time income from work at the swimming pool. She said she painted most of the bedrooms and living room. Ms. Lotnick says the paint was paid for by one of them but she is not sure which. She assisted with the cupboards and the yard improvements. [ 19 ] Mr. Berezowski, when he gave evidence, minimized Ms. Lotnick ’ s involvement in the renovations to the first house. I generally found Mr. Berezowski ’ s evidence to be unsatisfactory, particularly in respect of Ms.

Lotnick ’ s contribution to the household. [ 20 ] Generally speaking, I am satisfied that during the period until the second child was born in August of 2006, Ms. Lotnick made a substantial contribution to the household and the improvements of the household. From a financial point of view, during this period she had been working until the first child was born and thereafter was on maternity leave collecting benefits until the second child was born. Ms. Lotnick was unable to get further benefits because she had not worked between the first and second children. Ms.

Lotnick testified that during the period between the birth of her second and third child she did some work, but it was gratis working for his mother. [ 21 ] From at least the time of the purchase of the second home, there was a joint bank account and all receipts and disbursements went through the joint bank account. The date at which this joint account was opened is in some dispute. Mr. Berezowski believes that the couple did not establish a joint account in November 2004. At that point he proposed marriage and gave Ms. Lotnick an engagement ring.

He believes the joint bank account was not opened until house number two was purchased, in joint names, with an adjustment date of May 8, 2006.

[ 22 ] In a sense this disputed point is immaterial as Mr. Berezowski acknowledges that everything Ms. Lotnick made during there relationship was dedicated to common living expenses. [ 23 ] I was particularly impressed with Ms. Lotnick ’ s evidence that Mr. Berezowski sustained what was only referred to as “ a disability ” at about the time the third child was born (May, 2009), and for a time there was no income for either Ms. Lotnick or Mr. Berezowski because any disability payments did not kick in immediately.

No evidence was ever led as to whether this was a disability that was related to his work and so may have involved Workers ’ Compensation, or if the disability was simply a non-work related injury which was covered by private or company insurance plans. [ 24 ] In any event, Ms. Lotnick went back to work within two months of the third child ’ s birth and appears to have worked full- time ever since. For a good length of time, (I was never told what “ a good length of time was ” ) the parental roles were reversed so that Mr. Berezowski stayed home with the children and Ms.

Lotnick went to work, earning $2,000.00 net every two weeks, all of which went into the joint bank account along with any disability payments that Mr. Berezowski may have received, and any federal benefits related to the children. 5. Claim to Excess Capital Contributions by Mr. Berezowski Traced to the Third Home [ 25 ] The reporting letter from counsel for Mr. Berezowski dated May 23, 2006, shows that after payment of the mortgage and the balance of real estate commission, $46,431.11 was disbursed to the Bank of Nova Scotia to payout interim financing.

That interim financing was for the purchase of house number two for $224,900.00, made up principally of the mortgage of $168,675.00 and interim financing of $46,225.00. [ 26 ] Mr. Berezowski argues that the $46,225.00 is a capital contribution solely by Mr. Berezowski and part of it can later be traced through the second home to the Third Home. Fundamentally, this is a constructive trust argument. Mr. Berezowski argues that to divide the proceeds of the sale of the Third Home equally would mean an unjust enrichment to Ms. Lotnick, a corresponding deprivation to Mr.

Berezowski, and that unjust enrichment has no juristic basis as it has an inequitable result. A. The First Home [ 27 ] I reject that argument. The first reason is that I believe that from the period in the summer of 2004 until the sale and purchase in May of 2006, about 23 months, Mr. Berezowski and Ms. Lotnick were engaged in “ a joint family venture ” as described by Cromwell J. in Kerr v.

Baranow , 2011 SCC 10 at para. 87 , [2011] 1 S.C.R. 269 : My view is that when the parties have been engaged in a joint family venture, and the claimant's contributions to it are linked to the generation of wealth, a monetary award for unjust enrichment should be calculated according to the share of the accumulated wealth proportionate to the claimant's contributions .

In order to apply this approach, it is first necessary to identify whether the parties have, in fact, been engaged in a joint family venture. ... [ 28 ] A joint family venture has long been recognized as a basis on which a court may assess whether partners ’ relative contributions to a household may be evaluated and valued. Monetary value alone is not the critical factor when a household operates as a single unit. 50 ...

Where the plaintiff can demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour ( Pettkus , at pp. 852-53; Sorochan , at p. 50).

Pettkus made clear that these principles apply equally to unmarried cohabitants, since "[t]he equitable principle on which the remedy of constructive trust rests is broad and general; its purpose is to prevent unjust enrichment in whatever circumstances it occurs" (pp. 850-51).

51 As to the nature of the link required between the contribution and the property, the Court has consistently held that the plaintiffmust demonstrate a "sufficiently substantial and direct" link, a "causal connection" or a "nexus" between the plaintiffs contributions andthe property which is the subject matter of the trust (Peter, at pp. 988, 997 and 999; Pettkus at p. 852; Sorochan, at pp. 47-50; Rathwell,at p. 454). A minor or indirect contribution will not suffice (Peter, at p. 997).

As Dickson C.J. put it in Sorochan, the primary focus is onwhether the contributions have a "clear proprietary relationship" (p. 50, citing Professor McLeod's annotation of Herman v. Smith (1984), (AB KB), 42 R.F.L. (2d) 154, at p. 156).

Indirect contributions of money and direct contributions of labour maysuffice, provided that a connection is established between the plaintiffs deprivation and the acquisition, preservation, maintenance, orimprovement of the property (Sorochan, at p. 50; Pettkus, at p. 852). (citations omitted) [29] Justice Cromwell identified four factors that are characteristic of a joint family venture: 1. mutual efforts by the partners (paras. 90-91), 2. economic integration of the partners (paras. 92-93), 3. actual intent to operate in a cooperative manner (paras. 94-97), and 4. that the family unit has priority over the individual partners (paras. 98-99). [30] Although the relationship was not that long, I find that all four criteria have been met.

There certainly was a mutual effort,these persons lived in a single household with their children. The expenses were being met by both parents so that before me neitherparty really could prove who paid what and for what during that 18 month period. As far as actual intent is concerned, I certainly find thelong-term commitment is established when a man proposes marriage, that proposal is accepted and then as couple, they have one childand the mother is already pregnant with their second child. The birth of a third child certainly shows a long-term “nesting” approach andcommitment to the family.

The priority of the family, as the fourth element, is also met. [31] I am mindful that there is no presumption in law that because parties are living in a common-law relationship ofinterdependence for a reasonably lengthy period, they intend to share equally in the fruits of their mutual labours, love andcompanionship. That must be proved, as it has been here, in contrast to the very clear situation dealt with by Moen J. in Rubin v.Gendemann, 2011 ABQB 71, 507 A.R. 215, affirmed 2012 ABCA 38, 522 A.R. 358 where Mr. Gendemann made sure there were nojoint investments, no contribution by Ms.

Rubin to those investments in his name, no joint bank account, no pooling of financialresources, and no intention to share the wealth from those investments. [32] My conclusion is that the Lotnick and Berezowski household did not operate in that way, but instead was a tightly integratedand cooperative effort. Mr. Berezowski argues that as he was the only one on title he should retain all the value of the home. Ms. Lotnickargues her contributions during that period are significant and have value that warrants a share in the home. To not provide that interestwould leave Mr. Berezowski unfairly enriched and Ms.

Lotnick would be unfairly deprived. That leaves the issue of whether there is ajuristic reason for Ms. Lotnick to have an equal share of the property. My prior conclusion that a joint family venture existed during thisperiod is a partial answer to that issue. What remains is whether the joint venture resulted in an accumulation of wealth in the specificproperty, as was explained by Justice Cromwell at para. 78 ...

In my view, this reasoning is persuasive whether the joint effort has led to the accumulation of specific property, in which case aremedial constructive trust may be appropriate according to the well-settled principles in that area of trust law, or where the joint efforthas led to an accumulation of assets generally. In the latter instance, when appropriate, there is no reason in principle why a monetaryremedy cannot be fashioned to reflect this basis of the enrichment and corresponding deprivation. ... [Emphasis added.] [33] Again, the facts support this conclusion. Ms.

Lotnick was the primary child caregiver, had contributed financially while shewas employed, and participated in the home renovations. These contributions had both direct and indirect benefits to the household andacquisition of wealth during this period. I put the contributions of each parent during this period as equal. [34] The parties were not able to say whether the increase from $75,000.00 to the sale price of $147,000.00 was solely because of

soaring house prices or the substantial improvements to the residence, but it appears to be a combination of both. In any case, I conclude that even though Mr. Berezowski ’ s financial contribution during this period was greater, that does not warrant a disproportionate downstream division of home value. B. The Second Home [ 35 ] Even if I am wrong, and Ms. Lotnick is not entitled to be compensated with any capital contribution to the second home, that does not lead to an equitably protected capital contribution to the third home.

I conclude that the joint family venture continued during occupancy of the second home, for the same reasons as outlined above. Ms. Lotnick ’ s contributions continued to enrich the household. [ 36 ] The second home, occupied from May 2006 until in 2008, was held in joint title. Presumptively, each person on title is entitled to a 50% share of the value of the property. Mr. Berezowski argues, in effect, that an equal division of the property value would be inequitable and a constructive trust is warranted so that he retain a higher share of the property value. I disagree as the joint family venture and Ms.

Lotnick ’ s contributions create a juristic basis for equal division of the value of this property. [ 37 ] This too would exhaust any traceable contribution by Mr. Berezowski to the Third Home. C. The Third Home [ 38 ] The situation for the Third Home is more complex because other persons are involved. The Third Home was built upon land contributed by Mr. Berezowski ’ s relatives. On December 7, 2007, the title to the bare land for the third home was registered in the names of Russell Berezowski and Tara Lotnick, as joint tenants. i.

Capital Contributions from the Second Home [ 39 ] On February 7, 2008, Russell Berezowski and Tara Lotnick offered to purchase a modular home from Dufferin Homes for a total purchase price of $178,338.30, with payment of $15,300.00 upon signing the contract and a further $27,162.00 at the time of the “ order factory ” . The sum of those two figures is $42,462.00. [ 40 ] At some point, Mr. Berezowski and Ms. Lotnick added to the mortgage on the second home by borrowing against that home on a Bank of Nova Scotia line of credit. That line of credit had a balance of $74,615.88 at the time the second home was sold.

The proceeds of the sale paid off the line of credit and a mortgage against the second home, which total $158,440.72. At the same time, a further $25,000.00 was disbursed to Russell Berezowski and Tara Lotnick from the sale proceeds of the second home. [ 41 ] Mr. Berezowski argues he made the two initial payments for the modular home. He says the two payments made to Dufferin Homes came from the Scotia line of credit and his interest in the home. Nevertheless, he was either unable or unwilling to produce any records which show that clearly the two initial payments to Dufferin Homes came from the line of credit.

It is just as arguable that the difference between the line of credit payout of $74,905.16 and the payment to Dufferin Homes of $42,462.00, namely $32,443.16, plus the $25,000.00 disbursed to Mr. Berezowski and Ms. Lotnick - a total of $57,443.16, represents the disappearance of any excess capital contribution Mr. Berezowski is trying to trace to the third home. [ 42 ] In any case, this attempt to assign fund sources and trace value forward is moot.

It is obvious to me that when the parties set up the line of credit, they jointly borrowed the money, had a joint obligation to repay the money, and co-mingled the funds in the joint bank account. The result is that there is no way of telling which funds from the line of credit ended up going to Dufferin Homes, going to other services that were being provided to bring services to the home,the new home, construct the large deck, orbuilding the basement, or were simply used for regular expenses. The claim to excess capital contributions by Mr.

Berezowski, if he ever had such a claim, is lost and cannot be traced to the third home. This is simply a function of my conclusion that a joint family venture existed at this point and that was associated with near total economic integration. This family was operating as a single unit.

ii. Claim Under s.17(2)(

e) for a Capital Contribution by Mr. Berezowski for the Transfer of his Gift of Land to the Name of the Parties as Joint Tenants [ 43 ] The last facet is the ownership of the land on which the Third Home was constructed. While the parties were still living in home number two (which was in joint tenancy), discussions were underway between Mr. Berezowski ’ s grandmother and his Uncle, Reese Wolsey. Mr. Berezowski was interested in acquiring an acreage on property which was co-owned by his grandmother and Mr. Wolsey. The owners (grandmother and Mr. Wolsey) realized that Mr. Berezowski had resided on that quarter

section for a good part of his life and had an attachment to it. The land had been in the family for some 50 years. The offer was made that after the land was subdivided 15 acres would be transferred to Mr. Berezowski as a gift or pre-inheritance. [ 44 ] Mr. Berezowski testified that when he applied for a mortgage to purchase a modular home and place it on a basement to be constructed on the acreage, he was told by the bank that he would not qualify for a mortgage unless Ms. Lotnick was also on the title. Mr. Berezowski then asked that his relatives transfer the land to himself and Ms. Lotnick as joint tenants.

That was done at the lawyer ’ s office. The valuation placed on the gift was $75,000.00 and the Transfer of Land was registered on the December 7, 2007. The consideration was said to be one dollar and the value $75,000.00. The parties agree the $75,000.00 amount is fair market value. Mr. Berezowski ’ s argument is that although the transfer was made in favour of both parties, in fact the land was a gift to him. It was his relatives ’ intention that he have full equitable interest in the property. He asked both he and Ms.

Lotnick be put on title together so they together could obtain a mortgage. [ 45 ] Although I have found that throughout the relationship there was a family joint venture, that does not in my view mean that Mr. Berezowski intended to gift one half of the $75,000.00 to Ms. Lotnick. It does not help Ms. Lotnick ’ s position to argue that they had access to lawyers and Mr. Berezowski had to know that by making the direction that he made, he was giving her a half interest in the land because the simple answer is that if he is taken to know the law, he is also taken to know that under The Law of Property Act , s.17(2)(

e) a judge may make an unequal distribution of property held in co-ownership where there has been a substantial unequal contribution of capital. That is precisely what happened here. [ 46 ] Further, it is the intention of Mr. Berezowski ’ s grandmother and Mr. Wolsey that is critical. In this sense I accept Mr. Berezowski ’ s testimony on how the negotiation to sell the land for a notational payment was intended for his benefit, not for the couple together. Equity requires that the intention of the giver be respected. [ 47 ] Ms. Lotnick argues that either Mr.

Berezowski or his relatives wanted to give her an equal share in the land. In part this argument flows from the presumption of advancement, and the Applicant cites Veit J, Gonzalez v. Soto , 2009 ABQB 454 at para. 7 , 81 R.F.L. (6th) 125 , where she wrote: ... Finally, I conclude that the equitable foundation of presumption of advancement applies here in Ms. Gonzalez ’ s favour; at the time when the property was placed in Ms. Gonzalez ’ s joint ownership, the parties had mutual love and affection which was expected to last for the remainder of their lives, and Mr.

Soto, as the partner who earned more money, had acquired a legal obligation to support Ms. Gonzalez. For all these reasons, there is no statutory or equitable reason why the distribution of the proceeds from the sale of the jointly owned property should not be divided according to the legal ownership. [ 48 ] That decision preceded Kerr v. Baranow (supra). Cromwell J. in Kerr v. Baranow wrote the following at paragraph 20: ... Whether the application of the presumption of advancement applies to unmarried couples may be more controversial: Oosterhoff , at pp. 681-82.

Although the trial judge in Kerr touched on this issue, neither party relies on the presumption of advancement and I need to say nothing further about it. [ 49 ] I take this to be a disapproval of the use of the presumption of advancement argument to prevent a judge from recognizing and giving effect to an unequal substantial capital contribution to the acquisition of property. I conclude that the contribution of the parties to the acquisition, maintenance, and improvement of the third home was otherwise equal but in distributing the equity that arises upon the sale of the third home, Mr.

Berezowski will receive $37,500.00 from the net sale proceeds which otherwise would have been presumed to go to Ms. Lotnick. In short, he contributed the land that he received as a gift, and deserves compensation for that.

[50] This can also be considered as a point where the joint family venture does not apply. There was no evidence that Ms. Lotnickmade a contribution to the value that flowed from the land. She was simply uninvolved. [51] Last, during the argument I asked the parties for further submissions on whether a decrease in the net worth of the ThirdHome as a consequence of an additional 2009 mortgage would affect the equitable interest that may result from the gift of the land.Counsel for the Respondent provided binding case authority, Rosin v. Rosin (1994), 1994 ABCA 344 , 157 A.R. 184, 8 R.F.L.(4th) 319 (Alta.

C.A.), that addresses this specific scenario and indicates that an increase in debt against a home does not constitute a giftbetween spouses. This principle has subsequently been applied in a number of decisions of this court: M.J.W. v. B.J.W., 2006 ABQB 19at para. 22, 153 A.C.W.S. (3d) 946; Felker v. Felker, 2005 ABQB 365 at para. 29, 383 A.R. 391; D.G.M. v. K.M.M., 2002 ABQB 225,310 A.R. 21, affirmed 2004 ABCA 257, 354 A.R. 321. While these cases address matrimonial property, I see no distinction between theapplication of equitable principles in that and a common law relationship context. 6.

Value of Plan 072 9062, Block 1, Lot 1, (15 acres)(the Third Home and Acreage) [52] The property was appraised at the request of Mr. Berezowski as of December 12, 2011. The direct comparison approach usedresulted in a value of $327,000.00. A second appraisal by mutual consent occurred on December 5, 2012. This appraisal, again a directcomparison appraisal, arrived at a value of $385,000.00. [53] There was no evidence of substantial increase in property values of acreage homes in the Drayton Valley area in the pastyear.

In fact, the municipal assessment for the last two years shows only a very modest increase: 2011, $406,310.00; 2012, $411,430.00.The first appraiser noted the driveway encroached on other land but the appraiser did not indicate the property was discounted for thatreason. The two Realtors used different comparable properties but that does not give me a reason to prefer one appraisal over the other. [54] I have earlier indicated that I was impressed with the evidence given by Ms. Lotnick as to the amount of work and effort shehad put into the relationship. I was unimpressed with the evidence of Mr.

Berezowski that her efforts were not all that great and that hehad resisted putting the title to the second home in their joint names. Mr. Berezowski explained he did so to avoid an argument. [55] Ms. Lotnick was never asked in cross examination whether there had been any argument, so the general impression is thatwhen both parties put title for the second home as a joint tenancy that decision was based on mutual love and affection. It hardly standsto reason that within a few months of proposing marriage and conceiving his second child, Mr. Berezowski could deny Ms.

Lotnick’scontribution to the accumulation of wealth, and the love and affection in a long-term relationship. This proof of mean-spiritedness is alsoevident in what Mr. Berezowski did in bringing to the attention of the appraiser that he alone had hired in December 2011 that theroadway was not entirely on his land. [56] After there was an adjournment of this hearing date, it appears that on January 11, 2013, Mr. Berezowski obtained a quote for$42,000.00 to rebuild approximately 300 m of driveway, relocate the approach and culvert and 50 mm of gravel surfacing. TheRespondent then went and had a survey prepared.

My reading of the survey indicates that up to a point even with the Third Home thedriveway is entirely on Mr. Berezowski’s property. It only thereafter deviates. Access to the Third Home requires relocating only a fewmetres of road. More importantly, Mr. Berezowski and Mr. Wolsey, his uncle, use the shop that is located on Mr. Wolsey’s land and ifthe parties were to become nasty, Mr. Berezowski could force Mr. Wolsey to rebuild a very long road to his shop if he wanted tocontinue to access it and store his ATV’s there.

This is a non-starter and very simply could be solved by spending a little money torelocate the end of the line as far as the house is concerned or simply granting each other mutual easements as per the legal surveyalready prepared. [57] The point is that Mr. Berezowski grossly exaggerated the road access and land ownership problem with a definite view ofhaving the court find that the driveway problem drove down the value of the property by as much as $42,000.00. That was disingenuous.As he hired an appraiser and then told the appraiser about the problem, I wonder to just what extent Mr.

Berezowski may have leaned onthe appraiser to come out with a low appraisal. I put more credibility in the second appraisal at $385,000.00 which was made on behalfof both parties; Ms. Lotnick indicated that this second appraiser was chosen completely at random. [58] I am reinforced in that view by the fact that the municipal assessment was over $411,000.00. I take judicial notice of the

assessment system in the province of Alberta. The assessor for 2012 endeavours to obtain a fair market value as at mid-year, July 1 st . That assessment is then sent out to the two owners of the land and if they are unhappy with the stated value, they have a right of appeal. I was not told that there was an appeal from the 2012 assessment. Mr. Berezowski poo-pooedtrivialized the municipal assessment, saying that the prices listed are always exaggerated. He produced no evidence of that. I fix the value of the third lot and modular home at $385,000.00. [ 59 ] I direct that Mr.

Berezowski be given the option to purchase this property for $385,000.00 with an adjustment date of August 20, 2013. Initially, after a tax adjustment, all arrears of taxes and current taxes shall be paid, all mortgages against the land shall be paid as well as reasonable conveyancing fees, and the balance will be distributed as follows: 1. one-half of the net proceeds to Mr. Berezowski; 2. one-half of the net proceeds to Ms. Lotnick less: (a) $37,500.00 to compensate for the extra capital contribution of Mr. Berezowski to acquire the Third Home and lot; (

b) a sum which will reimburse Mr. Berezowski for one-half the mortgage payments he alone made since the parties separated on June 28, 2011, up to and including interest paid to August 20, 2012; and (

c) any arrears Ms. Lotnick has been found (by the court at a hearing not yet held) to owe for arrears of child support to Mr. Berezowski. [ 60 ] I indicated my reasoning to counsel with respect to the mortgage payments. From June, 28, 2011, when the parties separated and Ms. Lotnick remained in possession without paying any occupation rent, the parties both paid their half of the mortgage until August 19, 2012, when Ms. Lotnick was ordered to vacate the third home. Thereafter, some payments were made by both parties and some payments were made only by Mr. Berezowski. After December, 2012, Mr.

Berezowski was ordered to pay the full mortgage payments. The period when Ms. Lotnick did not pay occupation rent was 13 months. If the parties are both held to paying half of the mortgage payments until August 20, 2013, without any occupation rent payable by Mr. Berezowski who has been in possession, both parties will not have paid occupation rent for a period of 13 months each. In short, their use of the property cancels each others outclaim to occupation rent. [ 61 ] If Mr.

Berezowski does not purchase the property by August 20, 2013, the property will be immediately listed for sale for $385,000.00 or a higher sum if the parties agree to that.. [ 62 ] Until the property is sold, Mr. Berezowski will retain possession of the home and in lieu of rent shall pay the mortgage payment for the month of August and thereafter together with proportionate taxes for the period commencing on the 1 st day of August, 2013 until the property is sold. Any payments which lower the amount of the mortgage payout shall accrue to the parties equally, this in lieu of Mr.

Berezowski paying occupation rent. 7. Claim for Money Owing to Ms. Lotnick ’ s Father [ 63 ] Ms. Lotnick testified that her father had an account at Home Hardware and they, Ms. Lotnick and Mr. Berezowski, charged materials to that account from time to time in order to obtain the discount to which her father was entitled because he owned a company that dealt with Home Hardware. [ 64 ] Ms. Lotnick produced Exhibit 5, which is a list of materials she claims were supplied by her father. She argues her father is owed this amount. Mr.

Berezowski acknowledges that he did indeed use the Home Hardware account in order to obtain the discount but says he paid the accounts on the spot, or as soon as the invoice was prepared.

[ 65 ] The copies that are attached to Exhibit 5 are barely or not legible. No one, neither Mr. Berezowski nor Ms. Lotnick, could give any details and her father, to whom it is said the amount is owed, was not called. [ 66 ] What is clear is that the parties had a very good relationship with Ms. Lotnick ’ s father for a long time. Mr. Berezowski used his pumper truck to empty Ms. Lotnick ’ s father ’ s sump or sewer without any charge. It is also clear that her father contributed a lot of work to the couple without asking for any payment.

I have grave doubts that there was any intention to create legal obligations. I believe that Ms. Lotnick ’ s father is simply a generous man who wanted to support his daughter and her husband-to-be. I will not allow any deduction from Mr. Berezowski ’ s share or Ms. Lotnick ’ s share to be paid to her father but that does not preclude her father from bringing an action in small claims court, if he believes he is entitled to payment for the Home Hardware expenditures. [ 67 ] The parties may speak to costs if necessary, by appointment. Heard on the 14 th and 15 th days of May, 2013.

Dated at the City of Edmonton, Alberta this 28 th day of May, 2013. R.P. Marceau J.C.Q.B.A. Appearances: Brook S. Mishna, Venture Law Group for the Applicant Michelle L. Mackay, Gordon Zwaenepoel for the Respondent