Wieben v Randall, 2017 ABQB 60

Court of Queen’s Bench of Alberta Citation: Wieben v Randall, 2017 ABQB 60 Date: 20170127 Docket: 1503 17281 Registry: Edmonton Between: Mark Wieben Plaintiff - and - Lori Randall Defendant _______________________________________________________ Reasons for Decision of S.L. Schulz , Master, Court of Queen's Bench of Alberta _______________________________________________________ I. Introduction [ 1 ] This is an application for the partition and sale of two properties jointly owned by the parties.

The central issues are the fair division of the parties’ interests in the house and which party is entitled to keep the condo. II. Facts [ 2 ] Mark Wieben and Lori Randall were engaged in early 2010. With a view towards starting their life together, Mr. Wieben put Ms. Randall onto the title as a joint tenant of a condo he owned in St. Albert. The parties also took out approximately $75,000 of the equity in the condo to make a down payment on a house they could live in together as a blended family. [ 3 ] In March 2010, the parties purchased a house in St. Albert as joint tenants for $360,000.

They put down $50,000 from the condo equity take-out as a down payment and paid the rest with a mortgage in both their names. [ 4 ] As a pre-condition to the mortgage on the house, the parties were required to pay off their credit card debts. Mr. Wieben used the money from the condo equity take-out to pay off both parties’ debts, paying $8,194 towards Ms. Randall’s three credit card debts. [ 5 ] Mr. Wieben and Ms. Randall moved into the house together. The condo was rented to third party tenants. While the parties lived together, they shared all payments for the house out of a joint bank account, and Mr.

Wieben collected all of the rent from the condo and made all of the payments on the condo. The parties also obtained a joint line of credit, although only Mr. Wieben picked up his credit card for the line of credit account [ATB Credit Card]. [ 6 ] In fall 2010, the parties formally separated. Since the separation, Mr. Wieben has retained sole possession of both properties, living in the house and continuing to rent out the condo. He has made all capital and non-capital payments on both properties. [ 7 ] In October 2012, with Ms. Randall’s consent, Mr.

Wieben took out a second mortgage on the house, for which he has made

all payments. [ 8 ] In July, 2015, a writ was placed on the title to the house for a debt Ms. Randall owed on a credit card. Mr. Wieben paid $7,467 to have the writ discharged from the title. [ 9 ] Mr. Wieben now applies to terminate the parties’ co-ownership interests. III. Issues [ 10 ] 1. How should each party’s interest in the house be calculated? 2. Who is entitled to purchase the condo? IV. Law [ 11 ] Section 15(1) of the Law of Property Act , RSA 2000, c L-7 [ LOPA ] provides that a co-owner of an interest in land may apply for an order terminating co-ownership. Specifically: 15(2) On hearing an application under subsection (1), the Court shall make an order directing (

a) a physical division of all or part of the land between the co-owners, (

b) the sale of all or part of the interest of land and the distribution of the proceeds of the sale between the co-owners, or (

c) the sale of all or part of the interest of one or more of the co-owners’ interests in land to one or more of the other co-owners who are willing to purchase the interest.

(3) A sale under subsection (2)(

b) or (

c) and the distribution of the proceeds of the sale shall be under the direction of the Court.

(4) In making an order under subsection (2)(c), the Court shall fix the value of the land sold and the terms of the sale. [ 12 ] Section 17(1) of the LOPA allows the Court to direct an accounting, contribution, or adjustment in respect of the land or compensation to be paid for an unequal division of the interest in land based on the following considerations: 17(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 (

a) one co-owner has excluded another co-owner from the land; (

b) an occupying co-owner was tenant, bailiff or agent of another co-owner; (

c) a co-owner has received from third parties more than the co-owner’s just share of the rents from the land or profits from the reasonable removal of its natural resources; (

d) a co-owner has committed waste by an unreasonable use of the land; (

e) a co-owner has made improvements or capital payments that have increased the realizable value of the land; (

f) a co-owner should be compensated for non-capital expenses in respect of the land; (

g) an occupying co-owner claiming non-capital expenses in respect of the land should be required to pay a fair occupation rent; (

h) a co-owner has at the time the application is made under this Part rights in the land for which the co-owner would receive compensation under the Dower Act if an order had been made under that Act dispensing with that co-owner’s consent to the disposition of that land. [ 13 ] The common law principles of property law continue to apply to supplement the factors laid out in s 17(2) ( Klein v Wolbeck , 2016 ABQB 28 at para 149 , 29 Alta LR (6th) 135 [ Klein ]; Jagodnik v Oudshoorn , 2015 ABQB 456 at para 103 , [2015] AJ No 792 [ Jagodnik ]; Herunter v Kostiuk , 2011 ABQB 452 at paras 146-147 , 521 AR 250; Gonzalez v Soto , 2009 ABQB 454 at paras 42-45 , 81 RFL (6th) 125 [ Gonzalez ]). [ 14 ] Moreover, in addition to the factors listed in s 17(2), where the co-owners have made unequal contributions to the property, the principle of unjust enrichment may be applied ( Klein at para 149 ; Jagodnik at para 103 ; Wessa v Knight , 2014 ABQB 671 at para 61 , [2014] AJ No 1252 [ Wessa ]). [ 15 ] When the parties are joint tenants, the party claiming an unequal distribution under s 17(2) has the burden of proving it would not be unjustly enriched by the unequal distribution ( Klein at para 156 ; Gonzalez at paras 31- 33 ). [ 16 ] The decision to allow an unequal distribution under s 17(2) is discretionary, being “not an exact science, but an exercise of what is reasonable in all of the circumstances” ( Klein at para 306 ; Jagodnik at para 124 ; Wessa at para 66 ).

V. Analysis A. How should each party’s interest in the house be calculated? [17] Mr. Wieben argues he is entitled to an unequal division of the equity in the house, based on his contributions. Ms. Randallargues she is entitled to an equal division of the equity. [18] In addressing the arguments advanced by the parties, I will consider each of the applicable factors under

section 17 of theLOPA and the parties’ unjust enrichment arguments. 1. Section 17(2)(

a) One co-owner has excluded another co-owner from the land [19] Ms. Randall argues she moved out of the house as a result of Mr. Wieben’s conduct. This raises the issue of constructiveexclusion. [20] Constructive exclusion is made out where the conduct of one co-owner is so egregious no reasonable person would tolerate it.In Klein, Justice Renke found the respondent left the property because the relationship between the applicant and the respondent haddeteriorated.

Although the relationship was uncomfortable, Justice Renke held this fell below the standard required to establishconstructive exclusion (Klein at para 222). [21] Ms. Randall’s affidavit evidence is that she left because Mr. Wieben’s conduct was making her and her children veryuncomfortable. [22] Following Klein, I find Ms. Randall’s evidence that she and her children were uncomfortable is inadequate to establish Mr.Wieben’s conduct would be intolerable to any reasonable person. Accordingly, constructive exclusion is not made out and this factor isinapplicable. 2. Section 17(2)(

e) A co-owner has made improvements or capital payments that have increased therealizable value of the land [23] Mr. Wieben claims he is entitled to an unequal distribution of the property, because he increased the realizable value of theland through: the down payment on the house; capital payments on the first mortgage; capital payments on the second mortgage; andimprovements to the house.

a) The Down Payment on the House [24] Mr. Wieben argues he is entitled to the full value of the $50,000 down payment on the house. Ms. Randall argues that shebenefits from the presumption of advancement and, as such, is entitled to half of the equity from this payment. The parties agree that the$50,000 came from the equity take-out from the condo, which at that point belonged to Mr.

Wieben alone. [25] In equity, transfers of property for no consideration are governed by two presumptions: advancement and resulting trust.Under the presumption of advancement, equity presumes the transferring party intended a gift to the recipient. This presumption applieswhen a parent transfers property to a minor child (Pecore v Pecore, 2007 SCC 17 at paras 28-33, [2007] 1 SCR 795 [Pecore]).Historically, it also applies to a husband making a transfer to a wife (Kerr v Baranow, 2011 SCC 10 at para 20, [2011] 1 SCR 269[Kerr]).

However, the presumption of advancement does not apply to common law couples: Ruff v Strobel (1978), 1978 ALTASCAD151 , 9 AR 378 at para 14, 86 DLR (3d) 284 (CA)). [26] Where the presumption of advancement does not apply, the presumption of resulting trust presumes the transferring party didnot intend to transfer the property and imposes a resulting trust.

The recipient of the property retains legal title, but holds it for the benefitof the transferring party (Pecore at para 20, Kerr at paras 18-19). [27] Both the presumption of advancement and the presumption of resulting trust are rebuttable by evidence of a contrary intentionby the transferring party at the time of the transfer (Pecore at para 22). [28] In this case, the presumption of resulting trust governs. Mr. Wieben and Ms. Randall were not married, nor did they livetogether long enough to be in a common law relationship.

However, there is sufficient evidence on the record to rebut that presumptionand establish that when Mr. Wieben paid the down payment, he intended Ms. Randall to share in the benefit of the down payment. Onother words, he intended a gift of part ownership of the down payment. [29] In Miller v Walker, 2006 ABQB 424, 403 AR 15 [Miller], the plaintiff claimed an unequal distribution under s 17(2)(e),because she had paid $110,000 of the down payment whereas the defendant had paid only $5,000.

At paragraph 31, Justice Macklinfound the presumption of resulting trust was rebutted by evidence that: • the parties agreed to put the property in their joint names; • they incurred the joint liability of a mortgage debt and later a joint line of credit; • they contributed almost equally to the joint bank account from which the mortgage payments were made; • they were content that if one died, the other would acquire full title to the property by right of survivorship; and

• at the time they purchased the property, the parties intended to marry. [ 30 ] Here all of the same considerations are present. Mr. Wieben and Ms. Randall agreed to put the house in their joint names and incurred the joint liability of a mortgage and a joint line of credit. While they were together, they both contributed to the joint bank account from which the mortgage was paid. They also created a joint tenancy, such that if one died the other would acquire full title to the property by right of survivorship.

Finally, at the time they purchased the property, they intended to marry. [ 31 ] During questioning on his first affidavit, Mr. Wieben deposed that he paid the down payment on his own, because Ms. Randall did not have any money to contribute to the financing of the house. However, the salient question is not where the money came from, but what was intended when the money was transferred. Both parties acknowledged that although Mr. Wieben provided the money for the down payment, the parties did the refinancing of the condo and the purchase of the house together with the full intention of starting a life together.

As a result, I find that at the time of the transfer Mr. Wieben intended Ms. Randall to share in the benefit of the money provided for the down payment. [ 32 ] In conclusion, I find the presumption of resulting trust is rebutted. The parties clearly intended to live as a domestic unit and share their finances, and, consequently, I find that at the time of the transfer, Mr. Wieben intended to gift Ms. Randall part ownership of the down payment. As such, both parties are entitled to share in the equity from the down payment, and Mr. Wieben is not entitled to an unequal distribution on that basis.

b) Capital Payments on the First Mortgage [ 33 ] Mr. Wieben argues he has been responsible for all the payments since separation, thereby entitling him to the full value of the capital payments made on the first mortgage since the date of separation. Ms. Randall does not contest that Mr. Wieben made all of the post separation capital payments on the first mortgage, but argues she is entitled to half of this amount by virtue of the presumption of advancement. [ 34 ] Under s 17(2)(

e) a party who makes all of the mortgage payments is entitled to an unequal division of property in the amount that the mortgage was paid down ( Klein at para 215 ; Jagodnik at para 108 ). [ 35 ] The presumption of resulting trust applies between the parties. Mr. Wieben is presumptively entitled to the full value of these payments on the first mortgage. Ms. Randall has not provided any evidence to rebut the presumption of resulting trust for the post- separation mortgage payments and there is no evidence to suggest Mr. Wieben intended these payments to be a gift to Ms. Randall. [ 36 ] As a result, Mr.

Wieben is entitled to the increase in equity resulting from his payments on the first mortgage following the parties’ separation.

c) Capital Payments on the Second Mortgage [ 37 ] Mr. Wieben argues he is entitled to the full value of capital payments made on the second mortgage, because he has been responsible for all of the second mortgage payments. Ms. Randall argues that although both parties signed the second mortgage, Mr. Wieben has received the full value of the mortgage and, as such, should not be entitled to claim additional credit for paying it down. [ 38 ] Under s 17(2)(

e) of the LOPA , Mr. Wieben has a prima facie entitlement to an unequal division of property in the amount the second mortgage was paid off. However, the burden is still on Mr. Wieben to prove he would not be unjustly enriched by an unequal distribution of the property on that basis. [ 39 ] On the evidence before me, I find Mr. Wieben has failed to meet this burden. He has failed to show that both parties received the benefit of the second mortgage, such that he should receive an unequal distribution of the property for paying it off. [ 40 ] During questioning on his first affidavit, Mr.

Wieben deposed he used the money from the second mortgage to pay off a condo assessment and the debt on the parties’ joint credit account. Mr. Wieben has failed to show Ms. Randall benefitted from either of these payments. [ 41 ] With respect to the condo assessment, the parties have agreed that Mr. Wieben made all payments on the condo and received all of its benefits. This being the case, Mr.

Wieben was responsible for paying for the condo assessment and, consequently, he was the one who benefitted from using the money for this purpose. [ 42 ] With respect to the payments on the ATB Credit Card, the parties agreed that although they shared the account, only Mr. Wieben picked up and used his credit card. [ 43 ] Mr. Wieben deposed during questioning on his first affidavit that even though it was his credit card, the debt was shared by both parties, because many of the purchases on his credit card were for both their benefit and sometimes Ms. Randall made purchases using his credit card. Mr.

Wieben did not specify the quantum or any of the details of the purchases he alleges were made by Ms. Randall. In her affidavit, Ms. Randall deposed that Mr. Wieben incurred all of the debts by himself. [ 44 ] Given that: Mr. Wieben cannot supply any details of this allegation; Ms. Randall specifically states that she did not use the credit card; and only Mr. Wieben had an ATB credit card, I find that Mr. Wieben has not met his onus to prove this allegation. In the absence of a more fulsome evidentiary record, I therefore rely on the fact the credit card was Mr.

Wieben’s to infer that the debts were his. [ 45 ] In conclusion, Mr. Wieben has failed to establish he would not be unjustly enriched by an unequal distribution in the amount of the capital payments he has made on the second mortgage, because he has failed to demonstrate that Ms. Randall benefitted from his use of the money from the mortgage.

[ 46 ] Consequently, I find Mr. Wieben’s payments on the second mortgage do not entitle him to an unequal distribution of the property.

d) Improvements [ 47 ] Counsel for Mr. Wieben argues that Mr. Wieben is entitled to credit for an estimated $4,200 spent on improvements to the house. [ 48 ] Section 17(2) (

e) of the LOPA provides that “a co-owner has made improvements or capital payments that have increased the realizable value of the land”. [ 49 ] Where the applicant fails to put forward any evidence the improvements have increased the value of the property, the applicant has no claim for an adjustment for improvements ( Charles v Sandau , 2000 ABQB 470 at paras 8-9 , Master Laycock). [ 50 ] Similarly, in Jagodnik , Justice Ross held that improvements to the property made by the plaintiff did not justify an unequal division of the property, because the improvements did not increase the property’s value ( See para 108). [ 51 ] In this case, Mr.

Wieben has not put forward any evidence demonstrating the improvements he made to the house increased the property’s realizable value. As a result, he is not entitled to an unequal division of property on that basis. 3. Section 17(2)(

f) A co-owner should be compensated for non-capital expenses in respect of the land; and section 17(2)(

g) An occupying co-owner claiming non-capital expenses in respect of the land should be required to pay a fair occupation rent. [ 52 ] Counsel for Mr. Wieben argued he should receive compensation for the non-capital expenses he has paid on the house since the parties separated. In oral argument, he conceded there should be a notional set-off between these non-capital expenses and the occupation rent Mr. Wieben would owe Ms. Randall for exclusive possession of the house. [ 53 ] Ms. Randall disputes the set-off and argues Mr.

Wieben owes her occupation rent for his exclusive use and occupation of the house since the parties separated, claiming half of the difference between the rental value of the house and the non-capital expenses Mr. Wieben has paid. Ms. Randall deposes Mr. Wieben’s non-capital payments towards the house have been about $2000 per month and a similar 5-bedroom house in St. Albert can be rented for $1750-2500 per month. [ 54 ] Under subsections 17(

f) and (

g) of the LOPA , occupation rent would typically be set-off against non-capital expenses paid by the occupying spouse ( Klein at para 241 ; Jagodnik at paras 111-112 ; Wessa at para 71 ; Miller at para 47 ). This approach is especially appropriate where the parties have not put forward any evidence of the rental value of the property in question ( Klein at para 242 ; Miller at para 47 ). [ 55 ] Here, Ms. Randall deposed that the rental value of the house exceeds the non-capital expenses paid by Mr. Wieben, this is opinion evidence which Ms. Randall is not qualified to give.

Furthermore, the Kijiji ads are inadmissible hearsay, or at best are an indication of the basis for her inadmissible opinion. [ 56 ] In the absence of properly admissible evidence on the rental value of the property, it would be inappropriate to order occupation rent in excess of the non-capital payments made by Mr. Wieben. Accordingly, I find the occupation rent owed by Mr. Wieben should be set-off against the non-capital payments he has made towards the house since the parties separated. 4. Section 17(2)(

c) A co-owner has received from third parties more than the co-owner’s just share of the rents from the land [ 57 ] Ms. Randall claims a share of the rent Mr. Wieben received from tenants who intermittently occupied the house following the parties’ separation. Ms. Randall deposed in her affidavit that Mr. Wieben said he was receiving $1000 per month from each of his two sons and that she saw third party renters in the house in 2014 and again in 2015. [ 58 ] Mr.

Wieben argues any rent received from boarders is not significant and merely offsets a portion of the non-capital expenses he paid after the parties separated. [ 59 ] During questioning on his first affidavit, Mr. Wieben deposed that his sons did not pay any rent, instead contributing to groceries and other bills. He further deposed that although there were two third party renters in the house, their contributions were minor: one was there for 5-6 months and paid $800 per month in rent and the other was there for about 2 months and paid $400 per month. The only evidence to the contrary is Ms.

Randall’s assertion that Mr. Wieben told her his sons paid rent. This is hearsay evidence, which is inadmissible for the truth of its contents. [ 60 ] In Jagodnik , Justice Ross held that $4700 in rent received from third parties was not a significant factor and merely offset a portion of the non-capital expenses of the occupying spouse (at para 107). Following Jagodnik , I find that the rent paid in this case was also not a significant factor and merely offsets some of the non-capital expenses Mr. Wieben paid on the house. 5.

Unjust enrichment [ 61 ] The final consideration under s 17 of the LOPA is whether one party would be unjustly enriched by an equal division of the property. Unjust enrichment occurs where: • one party has suffered a deprivation;

• the other party enjoys a corresponding enrichment; and • there is no juristic reason for the enrichment ( Garland v Consumers’ Gas Co , 2004 SCC 25 at para 30 , [2004] 1 SCR 629). [ 62 ] Under s 17 of the LOPA , it is also necessary to show a direct connection between the unjust enrichment and the property, sufficient to justify an unequal division ( Gonzalez at para 36 ). [ 63 ] The parties have raised five unjust enrichment arguments. Mr. Wieben argues Ms. Randall was unjustly enriched when Mr. Wieben paid off the writ, paid off her credit card bills, and by his compulsory discharge of her obligations. Ms.

Randall argues Mr. Wieben was unjustly enriched when he closed the joint TD account and because the interest on his credit card was reduced by the use of Ms. Randall’s credit.

a) The Writ [ 64 ] Mr. Wieben argues he should receive $7,467 credit for paying off the writ that was registered against the property to secure Ms. Randall’s debt. Ms. Randall acknowledges she owed this debt and Mr. Wieben paid it off. [ 65 ] Whether as a capital payment under s 17(2)(

e) or by means of unjust enrichment, I find Mr. Wieben is entitled to the amount by which he paid off the writ. In paying off this sum, he removed an encumbrance from the title to the property, which increased its realizable value. He also paid off Ms. Randall’s debt, which provided Ms. Randall with a benefit for which he suffered a corresponding deprivation and for which there was no juristic reason. [ 66 ] As a result, whether as a capital payment or unjust enrichment, I find Mr. Wieben is entitled to an unequal division of the property in the amount of $7,467.

b) Credit Card Bills [ 67 ] Mr. Wieben argues Ms. Randall was unjustly enriched when he paid off her three credit card bills for a total amount of $8,194. Counsel for Ms. Randall argued in oral submissions that the credit card payment was insufficiently connected to the property for Mr. Wieben to claim it under s 17 of the LOPA . [ 68 ] The payments by Mr. Wieben were a benefit to Ms. Randall with a corresponding deprivation to Mr. Wieben.

The issue is whether there was a juristic reason for the payments. [ 69 ] Ultimately, the circumstances of paying off the credit card debts cannot be separated from the broader context of the parties’ decision to refinance the condo, buy a house, and start a life together. As with the down payment, I find there is sufficient evidence on the record that Mr. Wieben intended Ms. Randall to benefit from his payments of her credit card debts. [ 70 ] On his own evidence, Mr. Wieben paid Ms. Randall’s credit card debts so she could qualify for the mortgages, and they got the two mortgages to start a life together.

It was in this context that Mr. Wieben and Ms. Randall agreed to put the property in their joint names and incurred the joint liability of a mortgage and a joint line of credit. Moreover, in purchasing the house they created a joint tenancy, so that if one died the other would acquire full title to the property by right of survivorship. [ 71 ] In this context, it is clear that at the time he paid off Ms. Randall’s credit card debts, Mr. Wieben intended Ms. Randall to have the benefit of those payments. Consequently, there was a juristic reason for the transfer and unjust enrichment is not made out. Mr.

Wieben has not established that he should benefit from an unequal distribution under s 17 on this basis. [ 72 ] Since there is a juristic reason for the transaction, I will not consider the argument that the credit card payments were insufficiently connected to the property for Mr. Wieben to claim unjust enrichment as a factor under s 17 of the LOPA .

c) Compulsory Discharge of Ms. Randall’s Obligations [ 73 ] Mr. Wieben argues he should benefit from a type of unjust enrichment referred to in Jagodnik as the compulsory discharge of another’s obligations. He bases this argument on the fact that he made all the capital and non-capital payments on the house following the parties’ separation. [ 74 ] In Jagodnik (at para 122 ), Justice Ross held the compulsory discharge of another’s obligations is made out where one party shields the other from her debts and obligations with respect to the property.

Although the LOPA accounts for most of this type of unjust enrichment through the set-off of occupation rent and credit for capital payments, Justice Ross found it was appropriate to further award the paying party a greater share of the increase in the post-separation value of the property in recognition that without the paying party there would not be an increase in value to enjoy (at para 124). [ 75 ] In Klein (at paras 243-245 and 307-310 ), Justice Renke followed Jagodnik and recognized that the contributions of the paying party allowed both parties to enjoy an increase in the value of the property since their separation.

In the result, Justice Renke also awarded the paying party a greater share of the increase in the property’s value. [ 76 ] In this case, Mr. Wieben discharged Ms. Randall’s obligations by making all capital and non-capital payments on the house since the parties separated, but he has not further enriched Ms. Randall by allowing the parties to benefit from an increase in the value of the property. To the contrary, the value of the house has gone down. Consequently, I find it would be inappropriate to grant Mr. Wieben an unequal distribution on this basis.

d) The Joint TD Account

[ 77 ] Ms. Randall claims that Mr. Wieben has been unjustly enriched, because his overdraft on their joint TD account was paid with her money. In her affidavit, Ms. Randall deposed that Mr. Wieben unilaterally closed their joint TD bank account right after she had deposited her pay cheque. At the time there had been a $1,400 overdraft on the account, which was entirely accumulated by Mr. Wieben. Effectively, her paycheque was used to cover the overdraft. Mr. Wieben has not raised any argument on this point. [ 78 ] The affidavit evidence of Ms.

Randall shows a benefit and a corresponding deprivation, insofar as she paid off Mr. Wieben’s overdraft and he benefitted from having his overdraft paid off. However, contrary to Ms. Randall’s argument, there was a juristic reason for the transfer. At the time of the transfer, Ms. Randall intended Mr. Wieben to share the benefit of her paycheque. Both Ms. Randall and Mr. Wieben agree that prior to their separation they paid all bills out of the joint TD account. They also agreed that both parties contributed money to the account. [ 79 ] On this basis, I find that when Ms.

Randall put her paycheque into the joint TD account, she intended both parties to benefit from it. It was the parties’ practice to contribute jointly to the account, to pay their joint bills. There is no reason to think that this transaction differed in any way from that norm. [ 80 ] Ms. Randall has raised the fact that Mr. Wieben closed the account right after she deposited her paycheque, insinuating that his enrichment is unjust on this basis.

However, the salient question when assessing a transfer of property is always the intention of the transferring party at the time of the transfer ( Pecore at paras 43-44 ; Kerr at para 18 ). Regardless of what happened afterward, I find that at the time of the transfer Ms. Randall intended Mr. Wieben to have the shared benefit of her paycheque. [ 81 ] In conclusion, Ms. Randall has failed to establish there was no juristic reason for her payment of Mr. Wieben’s overdraft. Accordingly, she has not made out her claim for unjust enrichment.

e) The Interest on Mr. Wieben’s Credit Card [ 82 ] Ms. Randall claims that Mr. Wieben has been unjustly enriched because the interest on his credit card was reduced by her credit. In support of her position, Ms. Randall deposed that the rate on Mr. Wieben’s credit card was close to 20% and was reduced to the mortgage rate of 3.94%. She also provided a calculation of the amount by which Mr. Wieben’s interest was reduced in her affidavit. [ 83 ] Mr. Wieben denies that he received the benefit of any of Ms. Randall’s credit. [ 84 ] The parties disagree on whether Mr.

Wieben received a benefit, and neither party addressed whether there was a sufficient connection to the property to award an unequal distribution under s 17. [ 85 ] I do not need to resolve those issues. There is an obvious juristic reason for any interaction between the parties’ credit and interest rates. Both the putative decrease in Mr. Wieben’s interest rate and Ms. Randall’s credit being tied up are the result of the parties’ first mortgage on the house.

Put otherwise, both results are the consequence of the first mortgage, which is a contractual agreement both parties willingly entered into. [ 86 ] Accordingly, even if Mr. Wieben benefitted from Ms. Randall’s credit, there was a juristic reason for that benefit, and, consequently, Ms. Randall has not made out her claim for unjust enrichment. 6. Value of the House [ 87 ] With a view towards calculating the equity in the house, the 2015 appraisal shows the current value of the house to be $355,000. Ms. Randall deposed in her affidavit that the house is worth closer to $385,000.

However, this is opinion evidence and Ms. Randall is not qualified as an expert to give evidence in the area. Based on the only evidence properly before the Court, the current value of the house is $355,000. 7. Calculation of Interest in the House [ 88 ] Based on the above, Mr. Wieben is entitled to a credit for the amount he has reduced the principal on the first mortgage since the parties separated, as well as credit for his payment of the writ. Once these amounts have been subtracted from the equity in the house, each party is entitled to one half of the remaining equity. B.

Who is entitled to purchase the condo? [ 89 ] The parties agree that Ms. Randall is not entitled to any equity in the condo, not having made any financial contributions to its purchase or any of the ongoing capital or non-capital payments. Even so, Ms. Randall and Mr. Wieben each argue they should be entitled to take over the other party’s interest in the condo. [ 90 ] Mr. Wieben argues he should be allowed to take title to the condo, because he has made all financial contributions to it, and therefore Ms. Randall has no financial entitlement to it. Ms.

Randall argues she should be allowed to have the condo, because by assuming the condo’s mortgage, she would effectively be paying Mr. Wieben back for the writ and, also, taking on their original credit card debts. In effect, each party has offered to purchase the other’s interest for zero dollars. [ 91 ] Under s 15(2) of the LOPA , the Court may order the sale of one co-owner’s interest to another co-owner who is “willing to

purchase the interest”. [ 92 ] In C Keay Investments Ltd v 1157089 Alberta Ltd , 2007 ABCA 74 , 404 AR 5, the Court of Appeal held the decision over which party should be allowed to purchase the other’s interest is discretionary, but that a Court should consider the principles of fairness, reasonableness, practicality and equality ( See para 9). [ 93 ] Taking into account these principles, I find Mr. Wieben should have title to the condo. It is only fair that Mr.

Wieben retain the condo, given he has made all of the financial contributions to its acquisition and maintenance and it belonged to him prior to the parties’ relationship. [ 94 ] Furthermore, allowing Mr. Wieben to retain the condo is fair, because Ms. Randall’s offer to take on the condo without payment does not adequately account for Mr. Wieben’s equity in the property. In his affidavit Mr. Wieben deposed that as a result of his payments there is $14,041 in equity in the condo. Taking on the remainder of the mortgage does not compensate Mr.

Wieben for this amount or, for that matter, the writ payment and the payment of their original credit card debts, as Ms. Randall argues. Conversely, Ms. Randall has made no financial contributions to the condo, so allowing Mr. Wieben to keep the condo would represent no financial loss to her. [ 95 ] As far as I can tell, the essence of Ms. Randall’s argument that she should keep the condo is that she would like to live there. As understandable as this may be, it is not sufficient to override Mr.

Wieben’s financial claim to the condo. [ 96 ] Based on the principles of fairness, reasonableness, practicality and equality, Mr. Wieben should be entitled to the condo. VI. Conclusion [ 97 ] I direct Ms. Randall sell her entire interest in the house to Mr. Wieben for the value of her interest in the property, determined according to the foregoing analysis. If the parties cannot agree to this amount, they may speak to me within 30 days. I further direct that Ms. Randall’s name be removed from the title to the condo and that the title be reissued in Mr.

Wieben’s name alone or as he directs. [ 98 ] If the parties cannot agree to costs, they may be spoken to within 30 days. Heard on the 22 nd day of November, 2016. Dated at the City of Edmonton, Alberta this 27 th day of January, 2017. S.L. Schulz M.C.C.Q.B.A. Appearances: Paul Foisy Foisy Law Offices for the Plaintiff William Dushenski Blakely & Dushenski for the Defendant