Buchner v Long, 2016 ABQB 523

Court of Queen’s Bench of Alberta Citation: Buchner v Long, 2016 ABQB 523 Date: 20160921 Docket: FL01 17147 Registry: Calgary Between: Denise Lynn Buchner Plaintiff - and - Douglas William Long Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.S.

Phillips _______________________________________________________ Introduction [ 1 ] These reasons arise from a seven day family law trial to decide the outstanding issues of unjust enrichment, child support, and partner support between the Plaintiff, Denise Lynn Buchner, and the Defendant, Douglas William Long. The parties have agreed to the parenting arrangements for their youngest child. Factual background [ 2 ] This action concerns a common law relationship, known in Alberta as an adult interdependent partnership, between Ms. Buchner and Mr. Long.

They began living together in September 1993 and did so until Ms. Buchner moved out with their children on November 15, 2013. During the course of the 20-year relationship, they raised 3 children, now ages 22, 18 and 16.

[ 3 ] A number of disputes have arisen between the parties since separation. Specifically, they do not agree on how to distribute the assets they acquired while living together, or on how to divide the increase in value of assets that were acquired prior to the commencement of their relationship. In addition, they disagree on the proper amount of child and partner support and

section 7 expenses that Mr. Long should have been paying since the date of separation and whether Ms. Buchner is entitled to ongoing partner support. [ 4 ] It has been a long, difficult and costly endeavour for Ms. Buchner to get this matter to trial. Mr. Long has resisted settling the matter, even when Ms. Buchner's counsel again offered settlement during the course of trial. [ 5 ] Furthermore, this court has adjusted child and partner support numerous times. It seems this occurred whenever the court was provided with more complete financial information from Mr. Long. An expert, Ms.

Heather Askham, has now testified to what she believes to be Mr. Long's guideline income for child support purposes for the years in question. Her expert opinion, which was not rebutted, was of great assistance in making a determination on this issue. [ 6 ] On the property matters, as these parties were never married, the Matrimonial Property Act does not apply to their situation, so there is no presumption of equal division of assets. Ms.

Buchner argues that the court should apply the principles of unjust enrichment, as set out in the Supreme Court of Canada’s decision in Kerr v Baranow , 2011 SCC 10 to grant her an equal share of the assets acquired during the relationship. She seeks a ruling that Mr. Long holds half of the assets of the relationship pursuant to a constructive trust in her favour. She submits that the evidence establishes that she and Mr. Long were engaged in a joint family venture for the 20 years they were together. Mr.

Long denies that there was a joint family venture during their 20 year cohabitation and that he has been unjustly enriched. [ 7 ] At the end of trial, I issued partial judgment, with full written reasons to follow. I found that Ms. Buchner had made out her claim in unjust enrichment and that a share of the accumulated assets of the parties, including real property, is impressed with a constructive trust in her favour. I ordered Mr. Long to assign all right, title and interest in the Redwood Meadows home to Ms. Buchner. [ 8 ] Subsequent to the conclusion of trial, I received a series of letters from Mr.

Long, in which he appears to re-litigate many issues. In some cases, Ms. Buchner’s counsel felt compelled to reply. Other than the corrected property

summary sheets submitted by Ms. Buchner’s counsel on June 3, 2016, I have not considered any of this additional evidence or submissions as they are not properly before the court. I have only considered the evidence and submissions that I heard at trial in May 2016, and the June 3, 2016 corrected property

summary sheets. Issues [ 9 ] There are three main issues to be determined in this action: (

i) Ms. Buchner’s unjust enrichment claim, and if established, the remedy; (ii) Ms. Buchner’s claim for retroactive and ongoing

section 3 base child support and

section 7 expenses; and, (iii) Ms. Buchner’s claim for retroactive and ongoing partner support. [ 10 ] These issues require an assessment of a number of sub-issues, all of which are set out below.

Unjust enrichment The law [ 11 ] Canadian law permits recovery for unjust enrichment whenever the plaintiff can establish three elements: an enrichment of, or benefit to, the defendant; a corresponding deprivation to the plaintiff; and, the absence of a juristic reason for the enrichment: Kerr v Baranow , 2011 SCC 10 , at para 32 . [ 12 ] The plaintiff must show that she gave something to the defendant that the defendant received and retained, and thereby was enriched. The benefit must be tangible.

It may be positive, but it may also be negative, in the sense that the benefit conferred on the defendant spared him an expense he otherwise would have had to incur: Kerr , at para 38 . [ 13 ] It is not enough for the plaintiff to establish that the defendant has been enriched; she must also establish that the enrichment corresponded to a deprivation that she has suffered: Kerr , at para 39 . [ 14 ] Without juristic reason simply means that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff.

In Kerr , the court affirmed the two-step juristic reason analysis from Garland v Consumers’ Gas Co. , 2004 SCC 25 . The first step requires the court to consider established categories of juristic reasons, such as contract, a disposition of law, and other valid common law, equitable or statutory obligations. In their absence, the second step permits consideration of reasonable expectations of the parties and public policy considerations to assess whether recovery should be denied: Thew v Nichol , 2015 ABQB 556 at para 53 .

The court may take into account the legitimate expectations of the parties and moral and policy based arguments about whether particular enrichments are unjust; overall the test for juristic reason is flexible: Thew , at para 54 . The conferral of mutual benefits can be taken into account at the juristic reason stage of the analysis, but only to the extent that it provides relevant evidence of the existence of a juristic reason for the enrichment: Kerr , at para 109 .

The juristic reason analysis is intended to reveal whether there is a reason for the defendant to retain the enrichment, not to determine its value of whether the enrichment should be set off against reciprocal benefits: Kerr , at para 114 .

[ 15 ] In Kerr , the court reaffirmed that a domestic partner has no duty, at common law, equity, or by statute, to perform work or services for the other: Kerr , at para 42 . Domestic services constitute an enrichment because such services are of great value to the family and to the other partner. Joint Family Venture and Remedy The law [ 16 ] The purpose of the remedy in unjust enrichment cases is to “require the defendant to repay or reverse the unjustified enrichment”: Kerr , at para 46 .

In the case of common law couples or interdependent partners, a claim for unjust enrichment often arises in relatively similar circumstances. An obvious unjust enrichment claim is made out where both parties have worked together for the common good, where there is a relationship that can be described as a “joint family venture”, with each making extensive but different contributions to the welfare of the other and as a result, there has been an accumulation of assets and wealth that is linked to the joint efforts of both parties.

The unjust enrichment following the breakdown of their relationship should be thought of as leaving one party with a disproportionate share of the jointly earned assets: Kerr , at para 60 . [ 17 ] In Kerr , the court delineated factors to consider in determining whether the parties were involved in a joint family venture: mutual effort, economic integration, actual intent, and priority of the family: Kerr , at para 89 . [ 18 ] The mutual effort factor considers whether the parties worked collaboratively towards common goals.

The decision to have and raise children together and the length of the relationship may all point towards the extent, if any, to which the parties have formed a true partnership and jointly worked towards important goals: Kerr , at para 90 . Also, the extent to which the parties have used their funds for family purposes or otherwise pooled their efforts and exhibited team work.

The court expressly noted in Kerr that the parties may be said to be pooling their resources where one partner takes on all, or a greater proportion, of the domestic labour, freeing the other partner from those responsibilities, and enabling him or her to pursue activities in the paid workforce: Kerr , at para 91 . [ 19 ] Economic integration is evidenced by a sense of collectivity, mutuality, and prioritization of the overall welfare of the family unit over the individual interests of the individual members: Kerr , at para 93 . [ 20 ] Actual intent may be inferred where the parties hold themselves out to the public as married or in a relationship equivalent to marriage: Kerr , at para 95 . [ 21 ] Priority of the family encompasses factors such as the extent to which the parties have given priority to the family in their decision making and whether there has been some detrimental reliance on the relationship, by one or both of the parties, for the sake of the family: Kerr , at para 98 .

Often, one party relies on the success and stability of the relationship for future economic security, to his or her own economic detriment, such as leaving the workforce for a period of time to raise children, foregoing career or educational advancement for the benefit of the family, or accepting underemployment to balance the financial and domestic needs of the family unit: Kerr , at para 98 . [ 22 ] In

summary, an unjust enrichment is best characterized as one party leaving the relationship with a disproportionate share of the wealth that accumulated as a result of the parties’ joint efforts. This will be so when the parties were engaged in a joint family venture and where there is a link between the contributions of the claimant to the joint family venture and the accumulation of wealth. [ 23 ] If an unjust enrichment is established, the first remedy to consider is always a monetary award: Kerr , at para 47 . In some cases, however, a monetary award may be inappropriate or insufficient.

The court may take the probability of recovery into account in this assessment: Kerr , at 52. In such cases, the court may order the proprietary remedy of a remedial constructive trust: Kerr , at para 50 . In a traditional unjust enrichment claim, the plaintiff must demonstrate a sufficiently substantial and direct link, a causal connection, between her contributions and the property which is the subject matter of the trust.

Indirect contributions of money or labour may suffice, provided there is a connection between the plaintiff’s deprivation and the acquisition, preservation, maintenance, or improvement of the property: Kerr , at para 51 . The extent of the constructive trust interest should be proportionate to the claimant’s contributions: Kerr , at para 53 . Again, the purpose of the remedy is to “require the defendant to repay or reverse the unjustified enrichment”: Kerr , at para 46 .

In the context of a joint family venture, there need only be a link between the claimant’s contributions to the joint family venture and the accumulation of wealth as a whole. [ 24 ] In the context of this case, Ms. Buchner must establish that she and Mr. Long were engaged in a joint family venture and that there is a link between her contributions to the joint family venture and the accumulation of wealth.

The parties’ relationship [ 25 ] The following narrative, drawn from the many documents filed as exhibits during the trial, as well as my findings of fact derived from the viva voce evidence, sets out the history and nature of the parties’ relationship. [ 26 ] Ms. Buchner met Mr. Long through a running club in the spring of 1993. At that time, he had two degrees, one in engineering and one in computer science. Ms. Buchner had a Bachelor of Education and was working for the Calgary Health Region in an Early Intervention Program.

In the fall of 1993, she decided to apply to the University of British Columbia (“UBC”) to take her Masters in interdisciplinary studies at the Faculty of Education. Ms. Buchner paid her moving costs to Vancouver, BC and her tuition fees through a student loan. At the start of their relationship, the loan stood at approximately $20,000. Ms. Buchner has not included it as a relationship debt. Mr. Long chose to join Ms. Buchner in Vancouver in the fall of 1993 and helped her move from Calgary to Vancouver. [ 27 ] Soon after the move to Vancouver, Ms. Buchner learned that she was pregnant with their first child, M.

She testified that Mr. Long was very excited about the prospect of being a father. Mr. Long in his opening statement, on the other hand, gave the impression

that he was somewhat resentful of this unplanned pregnancy as he "gave up his life and planned career path in Calgary" to go and live in a common law relationship with Ms. Buchner, to be there for her when M was born. I point out, however, that he made the choice to be in Vancouver with Ms. Buchner and their son, M. I find as a fact that he did so of his own volition, without any pressure from Ms. Buchner. In fact, not only did he first rent out his Calgary home in Mayland Heights when he left for Vancouver, he later sold it, and he and Ms. Buchner opened a joint account with the Royal Bank in Vancouver.

The sale proceeds from the Mayland Heights home went into Mr. Long’s personal Scotiabank account and were later used to purchase a home in Crescent Heights, which subsequently became their family home when they first moved back to Calgary. The Royal Bank joint account opened in Vancouver was closed in January 2015, almost 22 years later. [ 28 ] I find, contrary to Mr. Long's assertion, when M was born in May 1994, the parties both agreed that he would have Ms. Buchner’s surname. Ms.

Buchner admitted it was unconventional, but she explained that the Buchner surname would not have survived to the next generation had M not been given that surname. I find this to be a reasonable explanation. Furthermore, there is nothing to suggest that Mr. Long was not identified as M’s father on his birth certificate. I reject Mr. Long's assertion that it was one of the conditions of their relationship demanded by Ms. Buchner prior to M’s birth that their son be given Ms. Buchner’s surname, or that Ms.

Buchner did not want to be married because their career paths were most likely incompatible, such that this unwanted relationship could be ended relatively quickly. Ms. Buchner does not recall that the choice of Buchner for M's surname was a condition of their relationship; she recalls that they simply both agreed to give M her surname. Nor does she recall saying, as Mr. Long further asserts, that she told him that she would retain full custody of M if their relationship ended, and that she would expect to be paid child support but would make no claim to his then existing assets. [ 29 ] While Ms.

Buchner admits their relationship was rocky at first and that she was unsure how long it would last, she said that she advised Mr. Long that he could come to Vancouver and live with her and M as a family, provided she was not prevented from doing her Masters, while caring for M. This is the assurance she sought and received from Mr. Long at the time. He had no objection to her doing her Master’s degree, so long as he did not have to pay for it, to which she agreed. The fact the parties were together for 20 years and raised three children indicates that they were able to make this common law relationship work.

There is certainly no evidence; specifically, there is no written agreement between the parties to support Mr. Long's claim that Ms. Buchner would seek only child support and waive any claim against his assets, if they separated. It is curious to me that Mr. Long took care to register title to both the Redwood Meadows and Crescent Heights homes in his name alone, but would not have documented these conditions in the event they separated (the conditions he asserts Ms. Buchner demanded when they started living together). I find the reason that there is no documentation on this is because it did not happen as Mr.

Long alleges; it is not believable. [ 30 ] After M was born, Ms. Buchner found it very difficult to support herself and M. Living in Vancouver and attending UBC was expensive, and Mr. Long was unemployed when he first came to Vancouver. Ms. Buchner eventually got a job as a research assistant while doing her Master’s, and later Mr. Long found a job in his field. Unfortunately, Ms. Buchner was unable to obtain student financial assistance since the parties were living common law and Mr. Long's income was too high for her to qualify.

She found this very frustrating, but there was nothing she could do about it. [ 31 ] While taking her Master’s, Ms. Buchner paid her own tuition, as well as M’s daycare fees, out of her research assistant income (the fees were costly at $800/month when M was a baby). She also volunteered a half day each week at the daycare, but does not recall that Mr. Long ever did. In 1997, she obtained her Master's Degree from UBC. [ 32 ] Prior to obtaining her Master’s degree, in July 1995 when M was 14 months old, Ms. Buchner was required to go to Swaziland to do some research. Mr.

Long decided to join her there, as his contract work was wrapping up. Ms. Buchner’s travel and living expenses were paid through an award she had won, which allowed her to do research on deafness in Swaziland. She and Mr. Long paid for M's travel expenses out of their joint bank account. Mr. Long eventually took a contract while in Swaziland with a company that needed some database work done. Prior to obtaining this job, he looked after M while Ms.

Buchner pursued her research in Swaziland. [ 33 ] They were in Swaziland for almost a full year, where M unfortunately got very sick with malaria and was taken to hospital in South Africa. Luckily, M recovered, but the parties were left with a $2,000 hospital bill that they paid out of their joint bank account. Mr. Long, in giving his evidence, stressed how expensive this was and wanted to leave the impression that he alone had absorbed this cost. I find that he did not; there is no evidence to suggest the monies covering this hospital bill came from him alone.

To the contrary, the monies used to pay this hospital bill came out of their joint account. Except for this frightening incident, I accept Ms. Buchner's evidence that when they came back to Vancouver from Swaziland, they were more connected as a family. [ 34 ] Mr. Long returned to Calgary from Vancouver sometime between December 1996 and May 1997 to work for Bantrel. Ms. Buchner stayed with M in Vancouver for six months to complete her Master’s degree. Mr. Long visited them in Vancouver many times in that period. Ms.

Buchner applied to the PhD program at UBC and was accepted, but she did not get funding so she was unable to pursue further education. She had promised Mr. Long that she would not continue on and pursue her PhD without funding. Also, Ms. Buchner was trying to get pregnant again as she wanted to have a family, so she returned to Calgary in June 1997 with M to live with Mr. Long. [ 35 ] On May 29, 1997, Mr. Long purchased a family home in Crescent Heights in Calgary for $159,000 (the “Crescent Heights home”) with a mortgage of $116,250. Mr. Long registered title in his name alone. Mr.

Long later refinanced the home and placed a mortgage on it for $138,750. Mr. Long paid the deposit and the balance of the cash to close of approximately $42,000. Ms. Buchner said that she did not put any money into the Crescent Heights home, but that she thought of it as “our house” as they had already been together as a family for four years and were raising their children there. Also, she contributed to it in other ways, by cleaning, doing yard work, building a fence and the like. I accept that she did so as there is no evidence to contradict these contributions. [ 36 ] In the summer of 1997, Ms.

Buchner found herself pregnant once again. She gave birth to another son, O, in March 1998. Although O’s surname was Buchner, his middle name was changed a year or two later to his father’s first name, “D”. There is no indication that Mr. Long objected. [ 37 ] After O was born, Ms. Buchner worked off and on for the Calgary Health Region as an early intervention therapist. She

became pregnant again in 1999, but sadly, the child was stillborn. [ 38 ] In February 1999, the Buchner/Long family moved to their home in Redwood Meadows (the “Redwood Meadows home”). Equity was taken out of the Crescent Heights home through its re-financing and the Redwood Meadows home was purchased for $215,000, together with equity and mortgage financing. Mr. Long again registered title in his sole name. Prior to moving to Redwood Meadows, the parties tried to sell the Crescent Heights home but were unsuccessful, so they decided to rent it out. Also, at the time of the move to Redwood Meadows, Mr.

Long was unemployed, but subsequently he got a job. [ 39 ] Ms. Buchner said they made the decision to move to Redwood Meadows because they liked the community and it looked like a nice place to raise a family. There were good schools and the children liked the area. It seemed to suit their lifestyle, with her as a stay- at-home mother. She had just quit her job, as she was caring for their two sons and soon found herself pregnant with their daughter, E, who was born in August 2000. After E was born, Ms. Buchner was a typical stay-at-home parent.

She was a loving devoted mother to her children, who were always a priority in her life. She cared for them, cooked, cleaned her home, and did a lot of the yard work and the usual domestic chores done by a stay-at-home parent. Mr. Long was a loving and caring father to his children. Although he worked hard and long hours, he participated in the children’s activities and took many vacations and trips with them and did some of the domestic chores, but the bulk of the chores were done by Ms. Buchner.

On the whole, family life was good: they went on many family holidays; they were always hiking and camping; they lived in their Redwood Meadows home as a family; and, as can be seen from the exhibited photos, they were happy. [ 40 ] Ms. Buchner said they talked about getting married, but she did not think it was a good use of resources, as weddings cost money, and it was not necessary since they were functioning like any other family in the community. She was fine with Mr. Long giving her a wedding ring in August 2002 and liked wearing it because it demonstrated their partnership. Mr.

Long said it was not a wedding ring but an engagement ring. Interestingly, Ms. Buchner says Mr. Long started wearing his father's wedding ring when she got her wedding ring from him. She always thought it was a pair to her wedding ring. Mr. Long's father had passed away in December 2000 and Mr. Long had inherited his father's wedding ring. Irrespective of whether Ms. Buchner's ring was a wedding ring or an engagement ring, I find that by wearing these rings the parties indicated to the world that they were committed to each other and their children as a family in a common law relationship akin to marriage.

I reject Mr. Long's submission that the wearing of rings was nothing more than recognition that Ms. Buchner was the mother of his three children and that he had a moral commitment to his three children only, and not to Ms. Buchner. Furthermore, I reject his statements that the ring he gave Ms. Buchner was only “a symbol of [his] commitment to support her and our family until she got her education finished so she could become financially independent” and that their “relationship was one of convenience between the two of us.” There is no evidence to suggest there was any understanding or agreement by Ms.

Buchner that this was the case. Certainly, Mr. Long's actions prior to their separation belie what he now submits, almost 14 years later. [ 41 ] Furthermore, friends and family who testified on Ms. Buchner’s behalf saw Ms. Buchner’s and Mr. Long’s relationship as very similar to marriage. They were seen as a family in the community, with their children being involved in many community activities with their parents. [ 42 ] In 2003, Mr. Long was unemployed but got a job in Newfoundland. He worked there from October 2002 to September 2003.

Luckily, he was able to return home regularly for family visits as his company paid for his flights. In May 2003, Ms. Buchner travelled with the children to Newfoundland to be with Mr. Long and enrolled M in a six week intensive reading program, as he was having learning difficulties in school. The family spent the summer there and stayed in Newfoundland until September 2003, when they all returned to Calgary in a motorhome they bought in Newfoundland. By all accounts, everyone enjoyed the family vacation driving across Canada. In late September, the children returned to school and Mr.

Long started working at Fluor Canada, a job that unfortunately ended when he was laid off in 2004. [ 43 ] Mr. Long then got a job in Sarnia. His employer expected him to live in Sarnia, which meant he had to pay for his own trips home to see his family. Although Mr. Long did come back from Sarnia for family visits, his visits were less frequent than when he was working in Newfoundland. Admittedly and understandably, Ms. Buchner was upset as she was left alone looking after the children and dealing with all the stresses of daily family life.

She was always concerned about being able to pay off her student loan and was doing some tutoring to cover that expense as best she could. [ 44 ] While Mr. Long was in Sarnia, Ms. Buchner was put in charge of the Crescent Heights rental property. Even when Mr. Long was in Calgary, although he would pick up the rental cheques, Ms. Buchner helped to advertise the property, cleaned up when tenants moved out, arranged to meet repairmen at the property when required, and helped Mr. Long, along with the children, to clean up the yard every fall. I find that Mr. Long and Ms.

Buchner, prior to their physical separation in November 2013, contributed equally in their work efforts towards the maintenance and upkeep of the Crescent Heights home. [ 45 ] Ms. Buchner admitted that she had an affair with another man for about two months when Mr. Long was in Sarnia. Mr. Long was angry when he found out about the affair and returned home to Calgary within ten days of learning about it. He subsequently found employment in Calgary. The parties reconciled; Ms.

Buchner explained that they wanted to be a family again and so they were. [ 46 ] In September 2006, all three children were in school and Ms. Buchner realized she should do something for herself. She wanted to be a happier, more fulfilled person. She decided she would go back to university to get her PhD in the interdisciplinary studies program of Global Health Research at the University of Calgary (“U of C”). She was accepted into that program and started classes in September 2006. Mr. Long did not object, but said that he would not pay for it. At that time, Ms.

Buchner was offered a job as a research assistant at the U of C for 7 ½ hours per week and she hoped she would be able to pay for her PhD through working and by obtaining grants. In her words, which I accept, “nothing is going to change for Doug (i.e. Mr. Long)”. “He is going to work and continue to have his career, and he is not going to be impeded at all.” She was going to do her PhD and her research assistant job, while caring for the children before and after school, taking them to their extracurricular activities, and doing her household chores.

She quickly found out, as many women do, that it was very difficult to do a PhD and work as a research assistant, while being a mother and attentive to her children and her partner and to her household duties. In her words, she found it “enormously stressful” and “very frustrating” at times. [ 47 ] At one point, their daughter E broke her collarbone and Ms. Buchner had to stay home and care for her and so missed five

weeks of work. This was a difficult and challenging time for her and provides one example of why it took her five years to complete her PhD. [ 48 ] In September 2006, Ms. Buchner was asked to be part of a U of C project on strengthening health systems in Laos, Southeast Asia. She went to Laos for three weeks in September 2006 to check out the project and to determine if it was feasible for her to participate, given her family responsibilities. Upon her return, the parties agreed that she would take O and E to Laos for an eight-month period, while M would stay home with Mr.

Long, as he was having learning difficulties and was diagnosed with dyslexia by Dr. Pat Wrinch. In August 2006, M was enrolled in Calgary Academy, very reluctantly and under protest by Mr. Long, as he felt M should not have been labelled in that fashion and because Calgary Academy was expensive, costing about $15,000 per year. Nevertheless, Mr. Long agreed to pay for it and the monies for Calgary Academy came out of their joint account. Also, Mr. Long was able to use the Calgary Academy expense as a medical expense tax deduction. Ms. Buchner does not recall, as Mr.

Long asserts, that she agreed to pay 50% of the costs of the Calgary Academy. I accept that at that time she did not have an income that could have supported paying such an expense. It turns out the monies were well spent on M's education as he flourished at Calgary Academy while there for 3 years, and he went on to graduate from high school and onto SAIT where he was at the top of his class in aircraft maintenance engineering. M now works as an apprentice in that field and supports himself. [ 49 ] In October 2006, prior to her December 2006 departure for Laos, Ms.

Buchner learned she was pregnant again and decided that she would go to Laos for only six months, instead of eight. A couple of days before her departure, she discovered the baby had died and she miscarried in hospital shortly thereafter. She was exhausted. After coming home from hospital, Ms. Buchner decided she would just quit, as it was all too much. She had done all the planning for the Laos trip alone, without any support from Mr. Long. Since Mr. Long would be working while Ms. Buchner was away, she had organized an army of friends and family to help him out with their son M.

This kind of organization and household planning was her responsibility and hers alone, as was attested to by Ms. Buchner and the family and friends who testified on her behalf. [ 50 ] Her family and friends said “No, don’t quit”, while Mr. Long said nothing. Notwithstanding Mr. Long's non-response, but with the support and encouragement of her family and friends, Ms. Buchner went to Laos. Mr. Long and the three children travelled with her to Laos and spent three weeks there over the Christmas break. After the Christmas break, Mr.

Long returned to Calgary with M, while the two younger children stayed in Laos with Ms. Buchner. Mr. Long and M returned to Laos for a three week family visit in April 2007 and again in June 2007, at which time the whole family travelled around China on vacation. After the China trip, M stayed in Laos through the summer with Ms. Buchner and the two younger children and they all returned to Calgary in August. There is no evidence to suggest that Mr. Long did not enjoy these family visits to Laos and China or that he was forced to go on these family trips.

Certainly, they were a wonderful and educational experience for the children. [ 51 ] During her time in Laos, Ms. Buchner’s own expenses, (including her travel expenses) were covered by two awards she had won. The children’s expenses were covered by monies she had earned as a research assistant and through teaching at the U of C, and also out of their joint account. [ 52 ] Upon returning to Calgary in August 2007, the children went back to school and Ms. Buchner continued working on her PhD and volunteering on the UNITAR project.

She was invited twice per year to participate in ten day workshops on leadership skills with Afghanistan civil servants. These workshops took place in countries such as Japan and she participated in a total of three workshops. She used air miles to cover the flight costs and she received a per diem to cover her other expenses. Prior to her departure for a trip, Ms. Buchner arranged for family and friends to help with the children, since Mr. Long was at work. It is clear to me that Ms.

Buchner’s children were always her priority and that she wanted to be sure their daily routine of school and after-school activities was minimally disrupted when she was away on a trip for work. [ 53 ] The three children were busy and involved in many extracurricular activities over the years. E and M competed in snowboarding. M was an especially competitive snowboarder, snowboarding three times per week and for a while ranked sixth in Canada for half-pipe. O and E played hockey and all three children played soccer. They also all took piano and O still plays the piano and takes lessons.

All of these activities required Ms. Buchner to spend many weeknights driving the children to their activities, games and practices. Often these drives were into the city, resulting in higher than normal gas costs. [ 54 ] In the summer months, the family hiked the West Coast Trail, first without E, then a second time with her. Both times, by all appearances, they had a fun family vacation. As well, since Ms. Buchner had the summer off and the children were on vacation, she took them camping or to the family cabin of her friend, Ms. Tracy Neff, to spend time with Ms. Neff and her children. On many occasions, Mr.

Long joined them to set up camp on their summer camping trips and then returned to Calgary for work. [ 55 ] They went on cycling trips together as a family, cycling the Golden Triangle regularly on an annual basis. They went on ski trips, including every year at Christmas, without exception. Ms. Buchner organized all of these family trips, packing the appropriate clothing, organizing the food and finalizing the details of the trip. She was the domestic CEO, while Mr. Long was busy at work, providing financially for their family. [ 56 ] Ms. Buchner never indulged herself in massages, manicures, or pedicures.

She was too busy with her family, especially driving her children to and from their activities. Even Ms. Buchner’s personal activities, such as dog walking or spin classes, were done in part for her family. She went to spin classes three times per week when the children were young so that she would be strong enough to tow one of them behind her on her bike when they cycled the Golden Triangle. The only times they had a housekeeper was when Mr. Long was away in Newfoundland, or when both he and Ms. Buchner were working outside the home.

This was short lived and the housekeeper only cleaned the home every second week for four hours at a rate of $30 to $40 per hour. It should be noted that none of these matters were a source of conflict when the parties were together; it is only since their separation that Mr. Long has raised his disapproval of Ms. Buchner’s spin classes or having a housekeeper some of the time. [ 57 ] Mr. Long says he took the entire year 2009 off to be the children’s primary caregiver and assumed all the domestic chores so that Ms. Buchner could focus her attention on completing her PhD. The fact of the matter is that Mr.

Long did not have work that year, as he was laid off at Christmas 2008 and did not find another position until February 2010. It should be noted, however, that he

nevertheless paid himself salary and dividend income in 2009 from his company, 1017108 Alberta Ltd. (the "Corporation"), as his family needed to be supported. While I acknowledge that he helped out as every parent would by taking the children to their extra- curricular activities, attending teacher conferences, and helping out with housework, it cannot be said that he was the primary caregiver in 2009. Rather, in 2009, Ms. Buchner and Mr. Long shared their parental responsibilities. While the children were at school, Ms. Buchner worked on her PhD and Mr. Long upgraded his computer skills.

They jointly took care of the household duties and pursued their recreational activities, such as running, together. Also, the family continued to ski on weekends, attended the Kaslo Jazz Festival, and visited an amusement park in Idaho. [ 58 ] In 2009, Ms. Buchner formed Buchner Consulting while still working on her PhD. She got three contracts from CIDA, one of which required her to travel to India and Bangladesh for three weeks. Ms. Buchner paid for her airline tickets up front. Upon her return, she was reimbursed for all her trip-related expenses.

She decided she needed a line of credit to pay for these expenses up front; however, she had no assets to offer as security for a line of credit. Therefore, Ms. Buchner asked Mr. Long to put her on title to the Redwood Meadows home or the Crescent Heights home. He responded that he would never put her name on title to either of these houses, as she was a reckless spender and she would spend all the money. In the end, since she could not get a line of credit at the time, she put all of her travel expenses on her credit card and waited six months for reimbursement. [ 59 ] In January 2012, Ms.

Buchner decided she had no choice but to shut down her consulting company since the interest rate on her credit card was too high and therefore, using a credit card to cover her travel expenses was no longer feasible. This was especially so, since she was also trying to pay for as much of the children's expenses as she could manage. She noted there was always some tension with Mr. Long about the cost of the children and their activities. So Ms. Buchner for the most part paid for their extra-curricular program fees, competitive snowboarding fees, school fees, and the like.

As she said at trial: “I spent everything on the kids.” Mr. Long primarily paid the mortgage, utilities, insurance, and household expenses, although he did pay for the children too. Any child tax credit money Ms. Buchner earned went into their joint account and any income she earned from her various jobs went into her own account to be spent primarily on the children and her tuition expenses. Mr. Long would leave money in a coffee cup as a contribution towards expenses. At trial, she said she hated him doing so. To her, it reflected a form of financial control. [ 60 ] Occasionally, Ms.

Buchner wrote cheques on their joint account, but only because she did not have the funds to cover the children's expenses. She was aware that she was not supposed to use the joint account (it was meant to be used for household expenses), but before doing so she would tell Mr. Long and ask him for his financial assistance. She admitted that on occasion she forgot to tell Mr. Long that she had written a cheque on the joint account, causing one of the household cheques written by him to bounce. This often caused friction and resentment between the parties, especially on Ms. Buchner’s

part in the latter part of their relationship. Ms. Buchner further acknowledged that she used a supplementary Amex credit card belonging to Mr. Long to buy food and gas, and she put some expenses on her own credit card. She attempted to pay off as much of her credit card as she possibly could. When she could not, she asked Mr. Long to help her out but she admitted “that often didn’t go over very well.” Nonetheless, they operated under these unspoken financial arrangements for years. To reiterate, Ms.

Buchner paid for the children’s expenses from funds deposited into her chequing account from her pay and/or used her credit cards. She paid off as much as she could each month on her credit cards and Mr. Long would usually assist her in paying off the rest if she was short of funds. [ 61 ] In January 2012, Ms. Buchner was offered a job with a U of C organization called “Health Child Uganda” that required her to go and work on a project in Uganda. She informed Mr. Long and the children that she would have to go to Uganda for 12 weeks.

They talked about it and decided the family could make it work. [ 62 ] Because E was too young to leave at home alone, they decided Mr. Long would fly to Uganda with her in February/March 2012, so that she could stay with Ms. Buchner. Mr. Long spent two weeks holidaying with them and as Ms. Buchner stated, "he was always keen to come" on these trips. It seemed that he “really liked coming along on her life and these adventures.” [ 63 ] In September 2012, Ms. Buchner went back to Uganda for 12 weeks alone to work on the project and returned home in the middle of December 2012.

Her absence from the home and family was hard on everyone, especially E. At no time prior to her going on any of these trips did Mr. Long voice any objections to her being away; although Ms. Buchner did admit things were strained in their family at that time and she felt there were intolerable levels of inequality. She wanted that to change. [ 64 ] In her usual fashion, prior to going to Uganda, Ms. Buchner organized family and friends to drive the children to and from their after school activities.

By this time, the oldest child M could drive, so he helped when he could with transporting the two younger children to their activities. Also, before the September 2012 trip to Uganda, she made 60 dinners that were put in the freezer for everyone to enjoy. [ 65 ] In January 2013, the family vehicle broke down. Ms. Buchner decided that she wanted to buy her own vehicle. She had saved some money for its purchase. The whole family went shopping at T & T Honda. Ms. Buchner selected a Honda CRV at a cost of $34,230.26, which she financed with a $25,730.26 bank loan.

Since she had no assets in her name, she was unable to get a low interest rate car loan and had to take a bank loan with an interest rate of 6.5% per annum. She paid $4,000 by cheque on her own bank account, gave the dealer $500 cash, and then borrowed $4,000 from Mr. Long until such time as she repaid him on January 31, 2013. The CRV is now worth $17,000 (based on Ms. Buchner’s evidence from Kijiji listings) and the outstanding loan amount at the time of separation was $23,247.87, rounded off to $23,248. [ 66 ] Mr. Long now claims that Ms.

Buchner never really repaid him because about one week after he received her $4,000 cheque, which he deposited into their joint bank account, she asked him (around February 7, 2013) for $5,000 to cover the charges on her credit card bill. Ms. Buchner says these credit card charges had nothing to do with the vehicle she had purchased; they related to gifts purchased for Christmas for the family, charges towards their annual Christmas ski trip, cell phone bills, and child, household and gas expenses. From my review of the exhibits, I accept Ms. Buchner’s submissions.

Also, I note that the funds used to pay the $5,000 towards her credit card bill came out of their joint account. Therefore, I am satisfied that Ms. Buchner repaid Mr. Long the $4,000 she borrowed from him to purchase her vehicle. I also note there is no indication that repayment of the $4,000 was an issue between the parties in January/February 2013; it is only after separation that this has become one of Mr. Long's many complaints. Furthermore, I note the monthly payment on the RBC car loan has always come out of Ms. Buchner’s line of credit (which she eventually was able to obtain

when she became fully employed at the U of C), or her own chequing account, and not their joint account. [ 67 ] In March 2013, Ms. Buchner brought home two stray puppies that the children had fallen in love with on their visit to Uganda. M was on a gap year and was working at a landscaping job. Contrary to his parents’ wishes, he bought a truck with his own money, although Mr. Long eventually contributed $2,500 towards its purchase. Unfortunately, in July 2013 M accidentally ran over one of the dogs in the driveway. It had to be taken to the veterinarian because of its serious injuries.

The veterinary bill was about $3,700, which Ms. Buchner put on her credit card. Mr. Long paid some additional veterinary bills when he picked up the dog. Ultimately, Mr. Long transferred funds from their joint account to Ms. Buchner, which she applied towards her credit card to cover the veterinary expense. After that, M’s truck broke down. At trial, Mr. Long let it be known that he was angry and annoyed with Ms. Buchner about having to expend this amount of money on veterinary bills. I find these are the kinds of unforeseen expenses that every family faces, and luckily for this family, Mr.

Long had an income of about $200,000 in 2013 so he, more than most, could cover this type of unforeseen expense. [ 68 ] By this time, the fact that none of the family assets were in Ms. Buchner’s name had become a real source of resentment for her. She wanted her relationship with Mr. Long to be fairer, one of equality between the two of them. She wanted a different relationship, all the while trying to keep their family together. For example, Ms. Buchner wanted Mr. Long to take the children to some of their appointments, such as the dentist, rather than always doing it herself. She wanted Mr.

Long to show her some respect and appreciation and to stop saying to her that “you don't really work when you go over there – it’s just a boondoggle”, “you don't do anything valuable and you don’t make any money”, and that “your career is useless” and “why not get a real job?” For once, Ms. Buchner wanted to be supported in her work and praised by Mr. Long that she was doing great work in her jobs with the U of C. Unfortunately, this was not to be. Instead, she quit job after job as she was not supported by Mr. Long in her work efforts.

As a result, she said, and I accept, she was at least ten years behind in her career. [ 69 ] In the spring of 2013, the parties’ relationship was strained and Ms. Buchner was not sleeping well, so she moved out of their bedroom and slept in the basement. Mr. Long prepared their 2012 tax returns, as he always did, but for the first time he identified Ms. Buchner as “single”, rather than “living common law”. He presented the tax return for her to sign without mentioning that he had designated her status as “single” and she was not aware of this when she signed the tax return.

It was only when she received a Notice of Reassessment from the CRA in June 2013 that she first became aware that Mr. Long had changed her status. It appears his rationale for doing so was, as he said to Ms. Buchner when she questioned him about the change, that she had “abandoned” the children and her family when she went to Uganda in September 2012 and had left him with full custody of the children. Mr. Long denies using the word “abandon”, but he did say that Ms. Buchner had “left our family”. Whether he used the word “abandon” or the phrase “left our family”, I find Ms.

Buchner correctly interpreted him to have accused her of abandoning their family. His comments scared her enough to quit her job in the summer of 2013. [ 70 ] Ms. Buchner says she had no intention of abandoning her family. She was the children's primary caregiver and the children always came first to her. It is clear from Ms. Buchner’s evidence, which I accept, that she had every intention to try and work things out with Mr. Long so that they could be a family, provided there was more equality and respectfulness in their relationship.

As she said, they had a nice happy family, which she had hoped to keep together. Certainly, Ms. Buchner did not abandon her children for she was clearly a devoted mother, who placed their needs in priority to those of her own. [ 71 ] Although Ms. Buchner went to Uganda again for 3 weeks in July 2013 to train her replacement, since she had quit the post– doctoral program “Healthy Child Uganda”, she did so with much trepidation, as she felt threatened by Mr. Long’s accusation that she had “abandoned” their children and by his identifying her as “single” on her tax return. In Ms.

Buchner's words, “that was pretty much the nail in the coffin” unless there was some massive change. Upon her return from Uganda, she suggested to Mr. Long they go for counselling, and especially to a financial advisor, but he refused. [ 72 ] Mr. Long maintains his assertion that Ms. Buchner wanted to live separate and apart and to be financially separate from him upon her return from Uganda in December 2012. In February 2014, after their separation in November 2013, Ms. Buchner learned that Mr.

Long had phoned her employer without her knowledge and consent to obtain a letter to show when she was out of the country in Uganda, implying that she had abandoned and left her family. Her employer, after consulting with Ms. Buchner, would not provide the requested letter to Mr. Long. Understandably, Ms. Buchner was very angry that Mr. Long had contacted her employer in the first place and responded in an email dated February 25, 2014: “Leave my work and professional life alone. Leave us alone.” [ 73 ] Yet, contrary to Mr. Long’s assertion of Ms.

Buchner’s abandonment and her desire to live separate and apart, he continued to pay Ms. Buchner dividends in 2012 and 2013. He also paid the tax liability owing on that dividend income out of their joint account while the parties were together. This confirms that they were still very much a common law couple living with their children until Ms. Buchner left the Redwood Meadows home with the children on November 15, 2013; which is in fact the date of their separation. I find that until that time, Ms. Buchner hoped to work things out with Mr.

Long and she suggested that they do so through counselling or mediation. [ 74 ] Eventually, in October 2013, Ms. Buchner consulted a lawyer to understand her options. After meeting with her lawyer, Ms. Buchner had a discussion with Mr. Long. She said she would stay with the children in the relationship, provided it was on her terms of fairness and equality. Basically, she wanted her name on title to the Redwood Meadows home. It soon became evident that nothing was going to change. Mr. Long was never going to put her on title to the Redwood Meadows home.

So as noted, on November 15, 2013, she left the Redwood Meadows home with their children, as she knew Mr. Long would never leave. She instructed her lawyers to serve him with an application for exclusive possession of the Redwood Meadows home and an application for adult interdependent partner support and child support, as well as her Statement of Claim and Notice to Disclose. In the interim, Ms. Buchner and the children moved into a home in Altadore. Ms. Buchner had great difficulty serving Mr.

Long with her court application set for November 20, 2013 since it was likely that he was evading service, which cost her $1,000 in fees and disbursements. [ 75 ] On the advice of her lawyer, prior to moving out of their Redwood Meadows home, Ms. Buchner looked for Mr. Long’s financial information while he was at work and found it in a box. She scanned and copied it and returned it to the box. She is adamant that she did not steal nor take Mr. Long's financial documentation out of their Redwood Meadows home and I believe her. In any event, if Mr.

Long could not find his personal tax returns, he could have gone on to the CRA website, and printed them, as she did for some of her

missing tax returns but he did not. I note that this has become a contentious point for Mr. Long, for he contends that Ms. Buchner had all of his financial disclosure at the time Justice Romaine made her Interim Order on March 28, 2014 (the “Interim Romaine Order”), including his previous tax year slips and his 2010 to 2012 tax returns. He contends that Ms. Buchner's counsel represented to Justice Romaine that these personal tax returns had not been provided to Ms.

Buchner, which he says is not true. [ 76 ] I have no way of knowing whether this is true or not, as I have not been provided with copies of the transcripts of the proceedings for the various court orders. I note, however, in my review of Mr. Long’s Affidavit in Response to the Notice to Disclose sworn on March 21, 2014, Mr. Long did not append personal tax returns for 2011 to 2013, as required by the Notice to Disclose, nor did he provide T4s for 2011 and 2012, for example. This suggests to me that Ms. Buchner’s counsel was correct in representing to Justice Romaine that Mr. Long’s disclosure was incomplete.

Furthermore, the

preamble to the Interim Romaine Order notes Mr. Long’s incomplete disclosure, for it states: AND UPON noting the Applicant’s income in 2013 was $28,084; AND UPON noting the Respondent has not disclosed his personal tax returns for the past three (3) years or the financial statements for his numbered Company , 1017108 Alberta Ltd. for the past three (3) years. [Emphasis added.] [ 77 ] Mr.

Long submits that had Justice Romaine reviewed the tax returns, she would have more accurately determined his guideline income, which would have been lower than the guideline income of $200,000 that she set for him on an interim basis. In the result, he claims he paid a higher amount of child and partner support and

section 7 expenses than he should have. He alleges this caused no end of difficulty with MEP, when he was unable to make his payments, and caused him to make several applications to vary support, based on what he claimed to be his guideline income. None of these court orders were ever appealed and until this trial, no proper determination of Mr. Long's guideline income could be made without expert evidence on this issue. [ 78 ] When Ms. Buchner left with the children in November 2013, she took most of the dishes, as she had bought most of them or they were gifts and were needed to set up her household in Calgary.

She left some pots and pans and dishes for Mr. Long. She also took some furniture (i.e. beds, etc.) and Mr. Long kept all of his tools and the larger items, such as expensive furniture they had purchased while they were together. Exhibit 83 sets out an itemized list of household items that they each took. Ms. Buchner thought the division of household goods was fair and so do I, except that the Barley Twist buffet, purchased prior to the relationship by Mr. Long, belongs to him and should be made available for pick up at a time mutually agreeable to both parties. In any event, Ms.

Buchner believed that by February 2014, Mr. Long was staying with his girlfriend the majority of the time or at the Crescent Heights home and only going to the Redwood Meadows home periodically. He had some of his belongings there, but for the most

part it appeared that he had vacated the home. Mr. Long corroborated this conclusion in his testimony. He explained that he went there weekly to get the mail and check on the house, and M hosted parties there. There is some question as to whether Mr. Long checked on the house as frequently as he claims to have done. [ 79 ] After a Domestic Special Chambers hearing on September 5, 2014 before Justice Macleod resulting in an order for child support and partner support (the “Macleod Order”), Ms. Buchner hired an appraiser to conduct an appraisal of the Redwood Meadows home and the Crescent Heights home.

This was done at her expense and it would appear without the knowledge and cooperation of Mr. Long, for he took the position that she had no interest in any of his assets. At that time (September 2014), the Redwood Meadows home was appraised at $460,000 and the Crescent Heights home was appraised at $435,000. Mr. Long has provided no rebuttal appraisal reports.

I accept the appraised values of these properties as of September 2014. [ 80 ] I note that when the appraiser did the appraisal for the Redwood Meadows home, he took photos of the interior that show the home was in “average condition relative to its age and similar properties.” Ms. Buchner says it was messy and dirty when she went into the house with the appraiser, but there was no indication that there were any serious issues, such as floors being torn up or holes in the floor, or water leaks around the fridge and into the basement.

The appraiser also noted “It was reported a new furnace/humidifier was installed in 2013, granite countertops/carpeting and exterior painting was completed in 2012 and the roof was replaced in 2011 amongst others. Selected repairs/painting/cosmetic touch ups are required.” [ 81 ] Prior to the appraisals being done on both properties, Ms. Buchner said she had no problems going to the Redwood Meadows home. Until then, she had had unfettered access to the home so that she could pick up the children’s sports equipment, when needed. That all changed, however, once the appraisals were done.

She attended at the Redwood Meadows home to get another pair of hockey skates for E in early October 2014, a couple of weeks after going there with the appraiser. She discovered the locks had been changed. She and the children were locked out of the house and could not get into the house through the side garage door. There were burglar bars on the basement windows as well. At that time there appeared to be no damage to the interior of the Redwood Meadows home. [ 82 ] In October 2014, Ms.

Buchner instructed her lawyer to make an application for exclusive possession of the Redwood Meadows home; almost 10 months after her first application was adjourned. Justice Wilson granted Ms. Buchner exclusive possession of the home and its contents on October 23, 2014 and required Mr. Long to vacate the “Family Home” by 8AM on November 3, 2014 (the “Wilson Order”). Also, the Wilson Order further stated that as of 8AM on November 3, 2014, Mr. Long was restrained from entering or attending at or within the Redwood Meadows home and as of that date, Ms.

Buchner was responsible for paying all expenses associated with the Redwood Meadows home, including but not limited to, utilities, insurance and property taxes, upon receiving proof of any such expense from Mr. Long. Mr. Long was to provide proof of any expense associated with the Redwood Meadows home to Ms. Buchner through her counsel. It appears that Ms. Buchner attempted to make payments in relation to the various expenses associated with the Redwood Meadows home but, because she was not the registered owner, she had some difficulty doing so when it came to insurance and property taxes.

The evidence suggests Mr. Long has been reimbursed the prorated amounts for 2014 property taxes and insurance, as well as for the 2015 insurance and property tax payments. The parties shall make whatever adjustments are necessary, if any, to reflect the state of the 2016 payments with regards to the Redwood Meadows home. [ 83 ] Interestingly, after the Wilson Order, Mr. Long sent what is clearly a self-serving e-mail to Ms. Buchner's lawyer. In the message, dated October 24, 2014, Mr.

Long reasserts his September 17, 2014 offer in which he says he would be willing to move out of the Redwood Meadows home so that Ms. Buchner could move back in, subject to a series of complaints and conditions from him, including a request for shared parenting.

[ 84 ] In the October 24, 2014 e-mail, Mr. Long reminded Ms. Buchner’s counsel of his previous notice that the house was in a state of disrepair and that he was slowly getting it ready for sale or for possible return of the children. Mr. Long confirmed in his email that the house was “in a non-functional state.” There were plumbing issues and the water was turned off, floors had been torn up and not replaced, damaged walls were being patched, basement door casings were being finished and baseboards were off and lying on the floor.

Finally, he closed the message by saying: “She can accept as is November 3 on her dime to repair or delay possession date six months for me to personally repair and return to a habitable state. Written authorized reprieve by end of business hours today or I will assume she accepts the property in an as is state with all costs of remediation her sole responsibility.” [ 85 ] Ms. Buchner’s counsel, correctly, responded to Mr. Long on October 24, 2014 by saying: “Sorry - we did not in any way consent to your leaving Redwood in a state of disrepair.

I can't tell you whether my client will attend the property or whether we will seek funds in Court to deal with any mess you leave behind. The Order speaks for itself.” And so it does, for I find there was nothing in the Wilson Order that addressed this alleged prior notice of disrepair given by Mr. Long. Nor is there anything in the Wilson Order to suggest that if the Redwood Meadows home was in a state of disrepair when Ms. Buchner took possession of it on November 3, 2014 that she would be solely responsible for all costs of remediation to it, as Mr. Long contends. I accept Ms.

Buchner's evidence that when Justice Wilson granted his order, she was not aware that the Redwood Meadows home was in a state of disrepair; the first she heard of this was through Mr. Long’s e-mail the following day. Therefore, it is clear to me that Ms. Buchner never consented to receiving exclusive possession of the Redwood Meadows home in the state of disrepair she found it when she took possession of it on November 3, 2014. [ 86 ] In fact, Ms. Buchner discovered the true state of affairs when she entered the Redwood Meadows home on November 3, 2014.

She entered it with the locksmith and her daughter, E, and with her close friend, Dr. Karen Massey, and another friend, Ms. Neff. The photos exhibited at trial show the extent of disrepair. Clearly, Ms. Buchner was shocked and upset with what she saw. The furnace, heat, and water had been turned off and the house was freezing cold. There appeared to be some sort of plumbing problem. There was water damage and mold by the fridge and the floor had been taken up in the kitchen. It appeared that the fridge had leaked and caused the water damage.

The floor in the laundry room, by the kitchen, had been ripped up and there was mold there as well. The water damage extended into the living room and into her daughter's bedroom in the basement and had caused a lot of damage on those walls. The carpet was wet and had been pulled up and the baseboards were off. The rest of the basement was messy and dirty, and the surround sound system for the TV had been ripped away, and the dog fence was ruined. Upstairs was messy too and inexplicably, in the ensuite to the master bedroom, it appeared that a chunk of the linoleum flooring had been chiselled out, leaving a hole.

Clearly, the house was not habitable. [ 87 ] Instead of withdrawing funds from their joint bank account, Ms. Buchner got a line of credit for about $25,000 from the Royal Bank and, with some of her own money and $3,000 raised by the Redwood Meadows community she was able to have the necessary repairs completed to make the house habitable for her and the children. She advised the court that she spent a total of $37,566.13 on house repairs and upgrades. She acknowledged that if she received the Redwood Meadows home these expenses would be reflected in the overall increased value of the property.

I accept that she incurred these expenses; I have no contradictory evidence to dispute that figure. [ 88 ] Meanwhile, Mr. Long went off to France and Spain for a month with his girlfriend, with whom he was living common law, without offering any financial or other assistance to Ms. Buchner for the house repairs and upgrades. Instead, he paid for their trip and related expenses. Mr. Long could not provide any evidence as to the cost of this trip. I am satisfied that the 30-day trip to Europe cost at least $6,000 to $7,000.

He also acknowledged that prior to the November/December Europe trip, he and his girlfriend went to an all- inclusive resort in Mexico in March 2014, estimated to cost $5,000, and in March 2015 they travelled to Turkey for two weeks at another estimated cost of $5,000. He provided no receipts to show the costs of these trips, although I understand they were paid out of his company's retained earnings. This spending pattern has continued to this day; on cross-examination Mr.

Long admitted that he is paying for all of his common law partner's expenses, as she is retired and has no income because the grain from her farm has not sold. Also, he has also loaned her $50,000, to be paid back when she sells her farm. [ 89 ] Although Mr. Long was able to pay for all of these trips, to cover the ongoing daily expenses of his common law girlfriend, and to lend her $50,000, he was and is pleading insolvency in Ms. Buchner’s action. He submitted that if he is obligated to pay support as currently ordered, he will be bankrupt in three years.

He claimed that he could not afford $350 for mediation, in which nothing would be decided. He also passed a corporate resolution for the Corporation on April 22, 2014 (the “Resolution"), wherein he redeemed all the shares of minority shareholders, which included Ms. Buchner's and the children's shares, at the alleged fair market value of $5 per share. The Resolution stated that the T5's issued based on Share Certificates 006 and 007 be cancelled and their dividends reallocated to the T5 of the Director (i.e. Mr. Long). The background and basis for all of this is as stated in paras. B and C of the Resolution: B.

The Director is invoking the Force Majeure clause of the Unanimous Shareholder Agreement to mitigate effects of a forced liquidation of Corporate assets invoked by the Court of Queen's Bench under claim FL01-17147 which has resulted in the insolvency of the Corporation for the sole benefit of minority shareholders. C. The income of the Director is derived substantially from dividends received from the Corporation and the Court of Queen's Bench has imputed his income to a much higher amount in part by attributing all dividends of minority shareholders to the income of the Director. [ 90 ] It is clear from

Schedule 4 of Ms. Askham’s expert report and her testimony at trial that the Corporation had retained earnings of $201,747 in 2013 and $203,758 in 2014, with minimal liabilities in each of those years. Furthermore, Mr. Long testified that there is presently approximately $110,000 in the retained earnings of the Corporation. He also acknowledged that he did not have an expert value his company at $5 per share; he simply chose that dollar amount.

Furthermore, he did not pay the minority shareholders their $5 per share, as he was of the view they had already been paid through receiving dividend income in previous years. In my view, this all shows that Mr. Long and the Corporation were far from insolvent, as he claimed in his Resolution.

He is not credible when he repeatedly makes these submissions to this court at the various applications and proceedings with respect to this matter. [ 91 ] As for the binding JDR, which by July 3, 2014 had been set for October 14, 2014, he again by e-mail dated September 23, 2014 to this court’s JDR co-ordinator, copied to Ms. Buchner’s counsel, began to renege on the earlier agreement that the JDR would be

binding, saying that he would be “perfectly happy to continue with the binding JDR on jointly purchased property and personal propertypurchased for the use and enjoyment” of his children. As for the other property that he alone had acquired, Mr. Long wanted this to bereviewed in a non-binding JDR, which clearly was not the intention when the matter was set down for a binding JDR. Mr. Longwrongfully blamed Ms. Buchner’s counsel, Mr. Vogel, for cancelling the binding JDR, but in my view, Mr. Vogel had no choice as Mr.Long would not agree to a binding JDR on the property against which Ms.

Buchner might have an unjust enrichment and constructivetrust claim. Mr. Long argued he could not proceed with the binding JDR because “Mr. Vogel has yet to disclose what justification orpotential property Ms. Buchner may still intend to make an unjust claim upon despite numerous requests for clarification.” To me, thiswas just an excuse by Mr. Long since he had no intention of going to a binding JDR in relation to all of the property. [92] Mr. Long is an intelligent person and he well knew from the time he received Ms.

Buchner’s Statement of Claim in lateOctober 2013 that she was asserting an equitable interest in all of his property based on the principles of unjust enrichment. Conclusion re: unjust enrichment [93] As is apparent from the above narrative, I am satisfied that Ms. Buchner gave something of benefit to Mr. Long that hereceived and retained. She committed herself to managing the household, planning and organizing the family vacations, and taking thechildren to their various activities.

She contributed directly to the maintenance and enhancement of the Crescent Heights and RedwoodMeadows homes, in the form of housekeeping and yard work, and by managing the rental property. She earned an income from her workas an early intervention therapist, as a research assistant, and in her other roles and she spent these funds on the family, in particular onthe children and their activities. Correspondingly, she suffered a deprivation in that she delayed her education and career to stay homeand care for the parties’ three children.

While she succeeded in obtaining her PhD in the course of the relationship and she now has agood job and good income, it took her much longer than it otherwise would have to finish her PhD due to her competing familyresponsibilities. I also accept her evidence that she is at least 10 years behind in her career as a result of her sacrifices for the family. [94] Ms. Buchner’s efforts at home enabled Mr. Long to focus on his career and his business, travel for contracts to other parts ofCanada, and put aside savings in RRSPs and in the retained earnings of the Corporation.

He could not have made the efforts he did butfor Ms. Buchner’s assumption of the household and child-rearing responsibilities. He has reaped the benefits of Ms. Buchner’scontributions by being able to focus his time, energy and efforts on his career. Furthermore, the hard costs of family life to which hecontributed, particularly the mortgage payments, also accrued to his benefit, while Ms. Buchner’s income was directed towardsconsumables such as groceries, clothing, gifts, and their children’s activity fees. [95] Mr. Long has left the relationship with significantly more assets than Ms. Buchner.

He is the sole registered owner of the twohomes, one of which is mortgage free. He is also the sole owner of the Corporation and its retained earnings, as well as numerous otherassets. Ms. Buchner, by contrast, has little to show financially from her long-term relationship with Mr. Long. He has been enriched toher detriment. [96] I have rejected Mr. Long’s submission that there is a contract or understanding that permits his enrichment at Ms. Buchner’sexpense. I have found that there was no such agreement. Nor were Ms. Buchner’s contributions a gift.

The law is well-settled thatdomestic services do not naturally flow from mutual love and affection; they have value and are not gifted to the other partner. There isno proof that the parties expected to benefit unequally from the contributions they each made. Although Mr. Long may have taken thisposition, public policy and the law of equity demands a different outcome. [97] I reject Mr. Long’s arguments that Ms.

Buchner has been unjustly enriched at his expense by obtaining her education in thecourse of the relationship, having a good lifestyle (including being given RRSPs) without having to work, to the detriment of his ownsavings. I note that Ms. Buchner paid for her education with student loans and funds obtained from working as a research assistant, allthe while managing the household and being the children’s primary caregiver. It seems Mr. Long needs to be reminded that the threechildren of their relationship are his children too and that Ms.

Buchner provided the entire family with a valuable service in giving themsuch loving care and attention, and is entitled to her fair share of the overall wealth accumulated through their joint efforts. [98] I also find that Mr. Long was a joint and willing participant in the family’s expensive lifestyle. He partook in the vacations,the ski holidays, etc. He supported, tacitly or otherwise, the children’s participation in hockey, snowboarding, music, theatre and otheractivities. I also note that he submitted budget figures for his own expenses post-separation that were high compared to Ms.

Buchner’s,suggesting that he enjoys a good lifestyle himself following their separation. [99] I find that Mr. Long has been unjustly enriched at Ms. Buchner’s expense. There is no juristic reason for Mr. Long to retain adisproportionate share of the assets accumulated by the parties during their 20-year cohabitation.

As Dickson J stated in Pettkus vBecker, (SCC), [1980] 2 SCR 834 at 849: ...where one person in a relationship tantamount to spousal prejudices herself in the reasonable expectation of receiving an interest inproperty and the other person in the relationship freely accepts benefits conferred by the first person in circumstances where he knows orought to have known of that reasonable expectation, it would be unjust to allow the recipient of the benefit to retain it. Joint Family Venture [100] I also find that Ms. Buchner and Mr.

Long were engaged in a joint family venture where both parties contributed equally to theoverall accumulation of wealth. All the indicia of a joint family venture exist in this case. [101] With respect to mutual effort, the parties lived together as a couple over a 20 year period and raised three children. Theypresented themselves and their children to the world as a family, vacationed together, and made decisions collaboratively taking thefamily’s needs into account. As in many traditional marriages, Ms. Buchner carried the majority of the childcare and householdresponsibilities, which enabled Mr.

Long to focus on his career and earn money for the family and to pay down mortgages on hisproperties, and put aside savings in RRSPs and his Corporation’s retained earnings. Ms. Buchner actively maintained the Crescent

Heights home and the Redwoods Meadows home while living in them with Mr. Long and their children, and took on numerous responsibilities when the Crescent Heights home became a rental property. They lived together in every respect as a modern family with shared contributions to their homes derived from their labours inside and outside of their homes. In the result, Ms. Buchner and Mr. Long, each in their own way, contributed to the overall wealth and well-being of their family. [ 102 ] There was economic interdependence as well as the pooling of human and financial resources.

The parties had a joint bank account that they opened early in their relationship and maintained for more than 20 years. They had joint credit cards and generally shared expenses and made purchases together. Mr. Long paid primarily for the hard costs of running and maintaining the parties’ two homes, such as the mortgage, taxes, and utilities. Ms. Buchner paid for as much of the groceries, their clothing, family gifts, and children’s activity expenses as she could, with her more limited income over the years. Mr. Long also paid a significant portion of these expenses.

They did not formally discuss these arrangements. While there was some tension about the cost of the children’s activities, they continued in this pattern throughout their 20-year cohabitation. [ 103 ] In 2003, Mr. Long made Ms. Buchner a 45% shareholder of the Corporation, although he later reduced her shareholdings to 10% and eventually eliminated them altogether. He paid her, and later the children, employment and dividend income from the Corporation, as a form of income splitting, to obtain the most favourable tax treatment possible for them as a family unit.

This income was deposited into the joint account, as were child tax credit monies, to be used for the joint family venture. Furthermore, Mr. Long contributed approximately $30,000 to a spousal RRSP in Ms. Buchner’s name to help provide for her eventual retirement and as a tax savings for their family unit. [ 104 ] As for the parties’ actual intent, Mr. Long argued strenuously that they were not married and should not be treated as though they were.

Nonetheless, I conclude that the parties, over their 20 years together, conducted themselves as a family unit and considered their relationship to be a joint family venture. The joint efforts that went into planning and accommodating Ms. Buchner’s travel for her work and education provide just one example.

Also, I have found that the rings the parties wore were meant to indicate to the world that they were committed to each other as a couple and to their children as a family in a common law relationship akin to marriage. [ 105 ] Finally, with respect to the final factor, priority of the family, there is no doubt that Ms. Buchner made the family her priority; her devotion to her family is without question. She worked for the benefit of the family unit, both inside and outside the home, and directed any funds she obtained to family expenses. Mr.

Long contributed to the household and family expenses, even if he did so grudgingly at times. [ 106 ] Over the parties’ 20-year cohabitation, which is a significant period of time, the parties’ joint efforts lead to an accumulation of wealth that following their separation rests, as will be seen below, disproportionately in Mr. Long’s name. As is the case with most domestic relationships, Mr. Long and Ms. Buchner never kept a record or accounting of their household income and expenses, showing the required link between each party’s contributions and a specific property.

Kerr does not require such a specific linkage but only that there is a link between the joint efforts of the parties and the accumulation of wealth. Furthermore, in Kerr , Cromwell J noted at para 85: Cohabitation does not, in itself, under the common law of unjust enrichment, entitle one party to a share of the other’s property or any other relief.

However, where wealth is accumulated as a result of joint effort, as evidenced by the nature of the parties’ relationship and their dealings with each other, the law of unjust enrichment should reflect that reality. [ 107 ] This is what is required in these circumstances, where Mr. Long and Ms. Buchner contributed differently but equally through their joint efforts to the accumulation of their wealth and assets. There is a clear and demonstrable link between Ms. Buchner’s contributions and Mr. Long’s enrichment

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