Ernst v Martins, 2017 ABQB 785

Court of Queen’s Bench of Alberta Citation: Ernst v Martins, 2017 ABQB 785 Date: 20171220 Docket: FL03 43127 Registry: Edmonton Between: Lisa Lee Ernst Plaintiff - and - Manuel Joaquim Martins Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Douglas R. Mah _______________________________________________________ A. Introduction [ 1 ] This action concerns an unmarried couple, Lisa Lee Ernst (Lisa) and Manuel Joaquim Martins (Manny), who lived, worked and had two children together, but whose relationship has fractured and ended.

Since then, they have not been able to agree on much. They disagree about the extent of Lisa’ contribution to a business operated by Manny and whether she is entitled to payment or property as a result of the doctrine of unjust enrichment. They disagree about the date on which their relationship began and the date on which it ended. They differ on parenting, child support (both s 3 and s 7) and whether Lisa is entitled to partner support. [ 2 ] A seven day trial was held before me to canvass the issues above. This is my decision. B. Lisa’s Background

[ 3 ] Lisa is currently 41 years of age. She hails from the Barrhead area of Alberta where her parents maintained a farm. Following high school graduation, she attended NAIT and obtained a business diploma. She also has certifications in payroll and group benefits. She has worked since she was 12 years old and worked fulltime for four years after high school to pay her way at NAIT. She always held part-time employment while she was at school. By the time she moved to Edmonton in 1998, she had saved some $50,000.

When she got her own apartment in Edmonton in 2001, she cleaned the building in order to reduce her rent. She started working at EPCOR in 1999 or 2000 as a payroll assistant and was promoted to payroll representative. [ 4 ] I accept that Lisa is an industrious person. C. Manny’s Background [ 5 ] Manny is presently 55 years old. He is of Portuguese descent and spent his childhood in Africa. He immigrated to Canada in 1979 and settled in Edmonton where he finished grade 12.

As a young man, he began working in construction and because of his abilities was given advanced placement in the apprenticeship program as a carpenter. He received certification as journeyman carpenter within two and a half years and obtained the “Red Seal” endorsement of excellence. [ 6 ] Describing himself by nature as a leader rather than a follower, Manny took a business course at NAIT to become a self- employed contractor and then went into business for himself, doing various types of carpentry.

He began as a sole proprietorship but in or around 1990 incorporated Glen Martin Developments Inc. (GMD) as a business entity to conduct a home building business. [ 7 ] By all accounts, Manny is an extremely skilled craftsman and home builder. This was attested to by two former clients who testified, as well as by Brian Skelly, one of Manny’s former teachers at NAIT, who described him as having a special talent in carpentry. [ 8 ] Along the way, Manny married his first wife, Glenna Martins, with whom he had a son, Kyle.

He described how it took nine years to get divorced and he eventually settled with Glenna by building and gifting to her a $450,000 house in Edmonton. [ 9 ] In the early to mid-1990s, Manny through GMD was active in the Grande Cache area where he built over 65 homes. During that period, he had a business and romantic partner named Cheryl Deslauriers. GMD did well and Manny testified that when he broke up with Cheryl he was required to surrender a significant portion of GMD’s value to her in settlement.

As a result, he swore he would never again allow a romantic partner to take an equity position in his business. [ 10 ] In 1999, he incorporated Martin Homes Inc. (MHI) and began building show homes. D. Date of Cohabitation [ 11 ] It is necessary to establish a commencement date for the party’s cohabitation for two reasons: first, to have an initial valuation date for the assets in dispute, and second, to determine the length of the relationship for the purposes of the partner support issue. [ 12 ] The parties became acquaintances in February 2002. Manny described Lisa as pleasant, kind and angelic.

He observed good qualities in her. At the time, he needed help with the show home he had built and he wanted to bring her into the business. [ 13 ] Shortly thereafter, Lisa began as a hostess in the show home. Her duties included greeting clients, answering basic questions (while deferring more technical or detailed questions to Manny), taking notes at meetings and often doing cleaning. Lisa also related that since Manny was alone in the business, he required an office infrastructure to be set up. Manny did not like to use computers, so Lisa set up files and templates for him and did general office work.

She says she initially worked three or four evenings a week at the show home, coming directly from her job at EPCOR. On Saturday and Sunday, she took shifts at the show home from 12:00 to 5:00 p.m. Manny disputes the extent of her involvement with the show home at this early stage of the relationship. [ 14 ] Manny would often take Lisa out for dinner to compensate her for the “extras” that she did at the show home. They shared a strong work ethic and began developing feelings for one another.

By June or July of 2002, they had entered into a sexual relationship. [ 15 ] In late 2002 or early 2003, Manny moved the office to his Edmonton property at 1905 Tomlinson Way where he lived. As Lisa was spending at least three nights per week at Manny’s place, they agreed that Lisa should move into 1905 Tomlinson Way and she did, effective October 1, 2003.

Within a couple of months, Lisa’s mother, Marjorie, began staying weekends at 1905 Tomlinson Way as well as did Manny’s son, Kyle, as Manny had access on alternate weekends. [ 16 ] Lisa contends that the commencement date of their common-law relationship was October 1, 2003, the date on which she moved into 1905 Tomlinson Way. Manny insists that notwithstanding the physical consolidation of their residences, no actual common- law relationship was established until the birth of the couple’s first child in April 2005.

Prior to then, Manny says that he was not committed to Lisa and that she was merely his tenant at 1905 Tomlinson Way. At earliest, Manny contends, the common-law relationship commenced in June of July of 2004 when the couple decided that Lisa would go off birth control. [ 17 ] There was much discussion about a joint bank account at TD Canada Trust established about the time the couple moved in together. It appears to have been used primarily for household expenses, mostly groceries. Between January 26, 2004 and April 1, 2005, there are credits of $500 indicating “rent” or $1,000 indicating “rent joint payment”.

Manny says these entries support his contention that Lisa was a tenant until April 2005. It was agreed that the idea was that each of the parties would contribute $500 a month to the account but they disagree as to the characterization of Lisa’s payment. For her part, Lisa says she does not know why the bank designated some of the payments as “rent”. No evidence was called as to how the bank came to designate certain entries as “rent”. It is an untenable leap of logic to see those few entries and conclude that Manny and Lisa were in landlord and tenant as opposed to a common-law conjugal relationship.

[ 18 ] Manny also asserted that even though Lisa had moved into his residence, they were not in an exclusive relationship. He said that he was free to date other women. If so, it is not clear that he communicated this to Lisa. In any event the assertion strikes me as rather improbable in light of: • Lisa had given up her apartment and had moved in with Manny at his residence, with a shared bedroom where they had sexual relations together; • Lisa’s mother, Marjorie, was cool to the idea of her daughter dating and then moving in with an older man who had been previously married.

She testified that Manny had given her an ultimatum, “Accept me or lose your daughter because we will be together.” Marjorie soon relented and within a couple of months was also staying weekends at the 1905 Tomlinson Way. • Manny and Lisa had taken a trip to the Dominion Republic together in 2002 during which Lisa met members of Manny’s family. There was a stopover in Toronto where the couple stayed at Manny’s brother’s house in the same bedroom. • During the summer of 2003, Manny and Lisa along with his son Kyle went on a vacation to Vancouver and Victoria.

Manny tried to say that he had gone on vacation with his son Kyle and that Lisa had tagged along. The vacation pictures entered into evidence did not suggest that Lisa imposed herself on a father and son vacation. • There is no evidence that Manny actually dated anyone else during this period. [ 19 ] Manny testified that in his mind a common-law relationship did not commence until the couple had a child and that he believed he would incur no legal obligations in the interim.

He also said that he did not commit emotionally to Lisa until the birth of their son. [ 20 ] Legal status must be established by way of reference to objectively demonstrable facts rather than subjective feelings (which do not appear to have been communicated) or subjective beliefs based on a perception of the law. Accordingly, I find that the common- law relationship commenced on October 1, 2003 when the physical cohabitation began at 1905 Tomlinson Way. E. Lisa’s Involvement in the Business [ 21 ] There were two phases to the business that Manny was operating during the period 2003 to 2014.

The first was the home building business he operated through MHI. The second was the acquisition and operation of rental properties in Las Vegas, Nevada, initially owned by Manny personally and later through a US corporation, Martin Homes Holdings LLC (LLC). The purchase of the Las Vegas properties was possible through leveraging off the equity of the Canadian properties, thus enabling Manny to purchase the Las Vegas properties for cash. Manny started acquiring Las Vegas rentals in earnest in 2007.

The couple had earlier also purchased Canadian rental properties as investments. [ 22 ] I will describe each of the properties later in the Decision. [ 23 ] Lisa was still working at EPCOR in 2004 when MHI started getting busy. Lisa’s activities on behalf of MHI evolved over time between 2003 and 2014. She had started as a show home hostess, and by 2004, had assumed clerical and administrative duties. She had hired an office manager named Tamara in 2004, but Tamara quit after about a year.

Following the birth of their first child, Colby, on April 12, 2005, Manny agreed to let Lisa take on the role of office manager, as Lisa was on maternity leave from her job at EPCOR. The office manager function including doing the financial accounting for MHI and GMD. [ 24 ] While performing these services for Manny’s business, Lisa continued to work full-time at EPCOR with two maternity leave periods.

After the birth of their second child Dylan, in October 2006, the couple decided that Lisa would remain in the home supporting Manny in his business and providing care to the children. [ 25 ] No formal job description for any position that Lisa held in Manny’s business was ever produced, but in evidence, she described the range of duties that she performed between 2004 and 2014 as follows: • participating in client meetings with Manny and notetaking; • meeting with clients herself to present floorplans, lot choices and discuss custom plans; • ensuring the showhome was open, clean and acceptable to the public; • preparation of quotations for customers; • dealing with mortgage financing; • obtaining architectural approval for features; • obtaining municipal permits and approvals; • at every stage of building, submitting for quotes on trades and sending out purchase orders; • communicating with customers, including dealing with ongoing changes for custom builds; • arranging supplier visits with customers; • processing credits and change orders;

• requesting mortgage draws; • arranging for plumbing and HVAC inspections, and the rectification of deficiencies; • doing closing statements; • doing reconciliations and final costs; • maintaining hold-backs; • working with lawyers; • doing walk-throughs with customers on move-in; • doing the one-year walk-through with the Alberta New Home Warranty Program; • organizing books and files; and • advertising for and interviewing employees. [ 26 ] At its peak, MHI was working on ten jobs at a time. [ 27 ] The evidence of Greg Sim and Roxby Hughes, both customers of MHI, corroborate Lisa’s description of the services she performed.

MHI constructed a residence for Mr. Hughes, an engineer, starting in late 2007. He understood Lisa to be the sales manager and office manager for MHI, and was his main contact during the construction. He produced a binder of construction documents showing Lisa as the authorizing signatory on behalf of MHI. He also produced a binder containing an extensive record of email communications between himself or his wife on the one hand, and Lisa, on behalf of MHI on the other, covering a period of more than two years, and every phase of construction.

The emails were almost exclusively exchanged with Lisa, although some involved Manny. Mr. Hughes recalls a meeting with both Manny and Lisa at their residence at 14 Kingsbury Crescent in St. Albert. He noticed two young children in the house, and formed the impression that Manny and Lisa were a married couple, although he admits to be taken aback by the terse tone that Manny took with Lisa. Mr. Hughes also remembers Lisa’s mother, Marjorie, doing cleaning and performing general labour at the site. [ 28 ] Mr. Sim, a lawyer, also purchased a residence from MHI.

His experience with Lisa was similar to that described by Mr. Hughes. Mr. Sim also produced a binder of construction documents showing Lisa as the authorized signatory for MHI, as well as a binder of emails containing an extensive record of communication between Mr. Sim or his wife and Lisa, dealing with every phase of construction. Again, primary contact was with Lisa, although Manny was involved in some of the emails. The period covered by the emails is April 2010 to November 2011. [ 29 ] Mr. Sim similarly recalls a meeting with Manny and Lisa at their residence at 14 Kingsbury Crescent.

He believed them to be a couple with children and noted that Lisa’s mother also lived in the home. Mr. Sim understood Manny to be the “owner” of MHI and the one who physically built the homes with the help of subtrades. However, Lisa was the main point of contact during construction. [ 30 ] In his evidence, Manny minimized Lisa’s role in the business of MHI. He said he was reluctant to involve her in the business, because of the bad experience he had had with Cheryl.

He felt he was capable of operating the entire business on his own, and the only assistance he required was with some typing as he is not a proficient typist. He recounted that after the birth of Colby, Lisa practically begged him to take over the office manager job vacated by Tamara and, against his better judgment, he gave in.

He said that Lisa neither requested nor did he pay her any remuneration for services performed between 2004 and 2014. [ 31 ] When asked to do so, Manny specifically estimated the number of hours that Lisa worked as follows: • 2005 – 6 to 10 hours per week, but increasing towards the end of the year; • 2006 – almost full-time for the first three to four months, diminishing after that; • 2007 – hardly working at all, because she was looking after the children, maybe 11 hours per week; • 2008 through 2012 – 10 hours per month; and • 2013 – minimal work. [ 32 ] When asked to put a value on the services provided by Lisa, Manny said that generously applying a rate of $20 per hour, he estimated that the total value of her work between 2004 and 2014 would be $60,000.

I note this works out to about 300 hours per year or 25 hours per month. [ 33 ] Despite Manny’s attempt to downplay the extent of Lisa’s involvement in the business, I find that Lisa played a significant and valuable role during the whole of the period 2004 to 2014. There clearly was a division of labour within MHI in the delivery of its product, which was high-end luxury homes. Manny clearly was the “owner” of the company, as Mr. Sim observed, and he was clearly in charge of physical production, doing much of the work with his own hands or supervising sub-contractors.

Lisa provided the customer interface and the office infrastructure. While there might be some argument about the relative importance of their contributions, it is obvious that one could not function without the other. It is clear that when MHI was at its busiest, Manny would not have had the capacity to discharge Lisa’s functions as well. He described his physical work as taxing and exhausting and, at times, backbreaking. He said the demands and stresses of his work caused his health to deteriorate in 2006. He relied on Lisa to make sure the customers got what they wanted and the office was kept running.

[ 34 ] Accordingly, Lisa was integral to the ongoing success of MHI. I will place a value on that contribution later in this Decision. F. The Relationship [ 35 ] While there is contention regarding the exact commencement and termination dates of the relationship, there is no real dispute with respect to the nature of the relationship for the purposes of the Adult Interdependent Relationships Act , RSA 2002 c A-4.5. Manny and Lisa lived in a relationship of interdependence within the meaning of s 1(1)(

f) in that they shared one another’s lives, were emotionally committed to one another, and functioned as an economic and domestic unit. All the hallmarks of an “economic and domestic unit” set out in s 1(2) are present.

In particular: • They joined forces in a common household over a ten year period of cohabitation; • They worked together and supported one another in the business of MHI; • They had two children together; • Lisa’s mother, Marjorie, joined the household while Manny’s son, Kyle, would often stay on weekends; • Lisa and Manny and their children travelled together as a family, sometimes bringing Marjorie and Kyle along; • As recounted by the witnesses Craig Sim, Roxby Hughes and Tony Ziccarelli, Lisa and Manny held themselves out to the world as a couple in a committed relationship with two children; • The finances were intertwined.

Apart from the joint bank account from which some expenses were paid, Lisa had no salary between 2006 and 2010 and depended on Manny for support. [ 36 ] The depth of their commitment was shown in a couple of ways. First, there was Manny’s vow to Marjorie that he and Lisa would be together. Second, there was the engagement on April 10, 2006 in Toronto when Manny presented Lisa with a $28,000 engagement ring.

Looking at the photograph of that moment, Manny said at trial that “it brings a lot of joy to me”. [ 37 ] Apart from their work together in the business of MHI, two of the couple’s rental properties were placed in Lisa’s name and one in joint names. [ 38 ] While at one point Manny had contemplated entering into a cohabitation agreement with Lisa in order to circumscribe the rights and expectations of the parties, they never got around to it.

Lisa said they had discussed marriage but formal marriage, in her view, was not necessary because she considered themselves 100% committed to one another at the time of the engagement. A wedding date was never set and they never got married. [ 39 ] First as a couple and then as a family Lisa and Manny moved into four different homes where they shared a bedroom, had a conjugal relationship and assumed their respective roles in the household and in the business.

During the Las Vegas phase of their relationship, rental properties were acquired in Las Vegas and whichever property was vacant at the time was used by the family as a vacation property. [ 40 ] I have no hesitation in finding that Lisa and Manny were adult interdependent partners (AIPs) within the meaning s 3(1) of the Adult Interdependent Relationships Act in that they lived with one another in a relationship of interdependence for a continuous period of not less than three years, or of some permanence where there are two children of the relationship by birth.

Accordingly, the nature of the relationship gives Lisa the right to claim partner support under s 56 of the Family Law Act . Whether the relationship constitutes a joint family venture for constructive trust purposes is a separate question which will be dealt with later. G. Las Vegas [ 41 ] Starting in 2007 Manny developed an interest in spending recreational time in Las Vegas. He testified that after spending an entire career doing hard physical labour and enduring the stressful business of home building, he wanted to slow down.

He said that when he made this decision, he declared himself to be in “semi-retirement”. He took frequent recreational trips to Las Vegas, sometimes with Lisa, the children and Marjorie and sometimes on his own. [ 42 ] His interest in Las Vegas was a turning point in the business. Starting in 2007, MHI began winding down. Lisa testified that Manny’s interest in Las Vegas caused him to neglect the business of MHI. She says it was through the efforts of herself and Marjorie that the operations of MHI continued because Manny was often away on one of his Las Vegas trips.

Lisa observed that Manny was quite taken by the Las Vegas lifestyle. She feared that he had begun to associate with unsavoury people and had developed a gambling habit. [ 43 ] Manny agrees that he was an avid poker player, enjoyed the game and has spent the equivalent of the price of one of his homes on poker. [ 44 ] However, gambling was not Manny’s only activity in Las Vegas. The housing market in the US was declining at the time and Manny saw opportunity to purchase rental properties. He was transforming the nature of his business from new home construction to property rental.

He saw it as less stressful and less physically taxing on his body. Using funds borrowed against the Canadian properties, he purchased several properties in Las Vegas. He would often use whichever property was vacant at the time as his base of operations while he was in Las Vegas. He bought a car in Las Vegas. As stated, the family would use a vacant rental as a vacation property when

the family joined Manny on a Las Vegas trip. [ 45 ] In May 2010, Manny was involved in an incident in Las Vegas in which he had the sum of $196,000 US swindled or stolen from him. He was offered an unconventional investment by one of his Las Vegas tenants. Manny indicates that he was initially suspicious but agreed to meet another individual (“the broker”) who was facilitating the investment. The broker described how some high-rolling gamblers from Dubai were forced to leave the US abruptly with no return visa. The Dubai gamblers had left millions of dollars in casino chips from various casinos.

The broker had been commissioned to sell the chips at a considerable discount. He was essentially offering Manny $900,000 worth of casino chips for $300,000 in cash. [ 46 ] Manny was able to come up with $26,000 in cash which he had at a bank in Las Vegas, and which he turned over to the broker as a deposit. Manny felt he could only come up with two-thirds of the money in total and struck a deal with his tenant that he would receive two-thirds of the casino chips. On May 14, 2010 Manny had raised the balance of the cash by borrowing against a home equity line of credit.

Accompanied by Lisa, he delivered the cash to the broker at a Las Vegas lounge. The broker left with the money in a suitcase so that it could be “professionally counted” and said he would return with Manny’s portion of the chips. About a half hour later, the broker returned with a suitcase supposedly full of casino chips when he was accosted by two large men in black suits (apparently posing as law enforcement) who hauled him away. Manny did not get the casino chips nor did he ever see his money again. The matter was reported to local police but nothing resulted. H.

The Corporations [ 47 ] Manny controls three corporations. [ 48 ] The first is GMD which historically provided project management services (in the person of Manny himself) to MHI. Manny is the sole shareholder of GMD. [ 49 ] The second is MHI which historically was involved in the construction of new high end homes. Notably, MHI remains the registered owner of the property at 32 Kingsford Crescent, which was the last of the former family homes and is the property in which Lisa still resides with the children.

MHI also owns an inventory of lots and undeveloped land as well as an interest in LLC. [ 50 ] LLC is the US Corporation through which the current Las Vegas rental properties are held with the exception of 1168 Via Vernio (which is registered in Lisa’s personal name). The US holding company currently owns five Las Vegas rental properties. Four of them were transferred from Manny’s personal name to the holding company in 2013 and one in 2014. The acquisition of these properties was financed by funds obtained by Manny using lines of credit secured against Canadian properties registered in his name.

MHI is the sole shareholder of the US holding company. I. Date of Separation [ 51 ] Each of the parties has their own perspective regarding the cause of the relationship breakdown and the date of separation. [ 52 ] Lisa’s position is that the parties separated on April 5, 2014 following her discovery of Manny’s infidelity. [ 53 ] Manny’s view is that the parties actually separated in December 2012. For sake of convenience, he assigns a separation date of January 1, 2013 for valuation purposes. He says his reason for the breakup was because he became fed up with Lisa’s parasitic and dishonest ways.

I will deal first with Manny’s version of the breakup. [ 54 ] He gave three principle reasons for ending the relationship: • He could no longer tolerate Lisa “leeching” (his word) off him; • He disapproved of her dishonesty in designating herself as “single parent” when claiming the child tax benefit in her Income Tax Return; and • He disapproved of her practise of “hacking” into other people’s email. [ 55 ] By “leeching”, Manny was referring to his perception that Lisa was not contributing to their joint expenses.

It has already been established that she made payments of $500 per month into their joint account for household expenses until the birth of their first child in April 2005. She later made a payment into that account in the sum of $5,000 on April 17, 2007.

It is also known that between 2006 and 2010, Lisa had no income whatsoever as she had quit her job at EPCOR following the birth of Dylan in 2006 and was not being paid for her work at MHI. [ 56 ] It is further known that after the loss of $190,000 US in the Las Vegas scam, Manny encouraged Lisa to return to work and she did so starting in July 2010 at the Alberta Gaming and Liquor Commission (AGLC) where she was a payroll representative and later a supervisor.

Lisa’s evidence was that the joint bank account fell increasingly into disuse as she used her earnings from her AGLC job to pay expenses for the household and the children. [ 57 ] Based on the foregoing, I do not find much substance to Manny’s complaint that Lisa was “leeching” off him. Lisa further does not recall a discussion or issue with Manny regarding the child tax benefit.

Manny’s accusation regarding the “hacking” is a bare allegation on which he did not elaborate, nor was there any cross-examination of Lisa on the point. [ 58 ] Manny suggests that, on account of the foregoing, he moved out of the family home in December 2012 and into 32 Kingsford Crescent which at the time was in the final stages of construction. Despite that, Manny and Lisa still went on a Las Vegas vacation

together at the end of 2012 (at or around New Year’s Eve) and then a further family Spring Break vacation to Disneyland and Las Vegas in 2014. [ 59 ] It was during the trip to Las Vegas at the end of 2012, that the couple met Trevor Peters. They met at the airport in Edmonton and were on the same flight to Las Vegas. Manny befriended Mr. Peters and offered him free accommodation in the unit at Panorama Towers in which Manny and Lisa were staying. Mr. Peters stayed in that unit with the couple for the duration of the trip, which was seven days. [ 60 ] Mr. Peters says he came and went from the unit as he pleased.

It appeared to him that relations were “strained” between Manny and Lisa but he assumed nonetheless that the two were sharing the same bedroom. The three of them had many restaurant meals together during the vacation. [ 61 ] Upon return to the Edmonton area a week later, Mr. Peters agreed to assist Manny to install granite at 32 Kingsford Crescent. Mr. Peters was a tiler by trade. He understood 32 Kingsford Crescent to be Manny’s home and that a separate house was being built for Lisa. [ 62 ] The installation of the granite proved to be a two-man job requiring long hours. Both men slept there. Mr.

Peters observed that Manny had toiletries in a bathroom in the house but otherwise the house had no furniture nor did he see any of Manny’s clothes. The house did not as yet have a functioning kitchen. [ 63 ] Mr. Peters testified that he and Manny attended at 76 Erin Ridge Road, then the family home, for meals where they all ate together. Typically, Mr. Peters, Manny, Lisa, Marjorie and the children ate together. Mr. Peters enjoyed Marjorie’s cooking but again observed that the relationship between Manny and Lisa did not appear to be going well. He was therefore surprised in May 2013, when he returned to St.

Albert to visit Manny, that Lisa and the rest of the family had moved into 32 Kingsford Crescent. [ 64 ] While giving evidence in the witness box, Mr. Peters kept looking at Manny who was sitting in the gallery. I am unable to say whether collusion or coaching was going on but Mr. Peters was obviously seeking approval from Manny for the responses he was giving. I am therefore reluctant to accept Mr.

Peter’s evidence in totality, particularly his characterization of couple’s relationship. [ 65 ] The entire narrative respecting the separation in December 2012 does not make sense for several reasons: • Not only did Manny and Lisa go on the year-end Las Vegas vacation together (which, according to Manny, would have been post separation), the entire family went on a subsequent Spring Break holiday in March of April of 2014 to Las Vegas and Disneyland.

Marjorie was also along for that vacation. • There are additional photographs of Manny and Lisa as a couple behind the home at 32 Kingsford Crescent in October, 2013. • There is a further photo taken at Christmas in 2013 featuring the entire family, including Lisa’s parents, at 32 Kingsford Crescent. The photo was taken using a timer, as all family members are in the picture. • It seems obvious that Manny was doing finishing work at 32 Kingsford Crescent in January 2013 (enlisting the aid of Mr. Peters) and working long hours to get it done.

Manny habitually worked long hours, which he stated himself and which was confirmed by the witness Brian Skelly. Sleeping at 32 Kingsford Crescent was a convenience to facilitate the long work hours. It was not a separation. [ 66 ] By far the most telling evidence that the couple did not separate in December 2012 is the fact the Lisa and the rest of the family moved into 32 Kingsford Crescent in May or June of 2013. Lisa remained in the family home until the actual physical separation of the couple the following year in April.

It simply does not make sense that Manny would be separated for good as of December 2012 when there is clear evidence that they cohabitated at 32 Kingsford Crescent in 2013 and 2014. It is more likely, and I so find, that Manny was merely sleeping at 32 Kingsford Crescent in the early days of 2013 to get the house finished so that the rest of the family could move in. [ 67 ] Manny’s position is that the relationship had been deteriorating for some time prior to 2013 and, in his own mind, it was over and he had already moved on.

Feeling disconnected from someone, or being part of a deteriorating relationship, does not mean that a legal relationship is over. Even if I accept what Manny says about his feelings, subjective feelings by themselves do not define legal status. [ 68 ] Manny tries to make much of the fact that Lisa signed a lease in 2013, when the family moved into 32 Kingsford Crescent which purported to indicate that MHI (the registered owner of 32 Kingsford Crescent) was permitting Lisa to stay in the premises in exchange for her bookkeeping and office services.

It is through the lease, Manny contends, that whatever common-law relationship they might have had was declared to be at an end and that Lisa’s status was converted to that of mere tenant. Lisa testified that Manny hounded her to sign the lease and that she finally gave in to make him happy. [ 69 ] My conclusion is that the signing of the lease did not to change the legal relationship between Manny and Lisa. I note that the lease was between Lisa and MHI and not an agreement signed with Manny personally. There is no doubt that Manny had some ulterior purpose in getting Lisa to sign the lease.

The document is equally consistent with Manny attempting to expense part of the family’s housing costs through MHI. [ 70 ] Lisa’s version of the breakup is more credible and makes more sense. Following the vacation for Spring Break in 2014, Lisa returned with the children to St. Albert so that she could return to work. Manny remained in Las Vegas. The children had brought Manny’s iPad back with them. The message feature on the iPad contained text exchanges between Manny and his girlfriend. From these

messages, Lisa discovered that Manny had been having an affair and also that he had moved his girlfriend into 704 Panorama Towers, the unit which the family had just used as a vacation residence and had just vacated. [ 71 ] When Manny returned to St. Albert on April 5, 2014, he was confronted with the evidence of his infidelity and a heated discussion ensued. Manny called the police and under the auspices of MHI as titled owner of 32 Kingsford Crescent attempted to have Lisa, Marjorie and the children evicted.

Rather than evict anyone, the police restored calm, advised the parties to get legal advice and departed. Manny returned to Las Vegas. The entire episode was witnessed by Marjorie, who recounted it in some detail in her evidence. [ 72 ] The parties never lived together again after that date. [ 73 ] If Manny had separated from Lisa in 2012, he did not tell anyone about it. No communication was put in evidence, not even a notice to the customers of MHI that his business was no longer located at 76 Erin Ridge Drive.

Furthermore, Manny’s own witnesses, both Brian Skelly and Tony Ziccarelli, testified that they understood the separation to have occurred in 2014. The other of Manny’s witnesses on this point, Rae Del Rusnek-Holm, could only recall that Manny’s difficulties with Lisa occurred in either 2013 or 2014. [ 74 ] On the evidence above, I find that the date of separation was not in December 2012 but rather on April 5, 2014, the date on which the parties physically separated for good. J. Credibility [ 75 ] At this point, I will offer my observations on the credibility of the two main parties.

Manny was an expansive and flamboyant witness. He is a natural raconteur and insisted on providing extensive background and detail to his answers, most of which was unnecessary. For example, he described an occasion when made a special drink for Lisa and then asked whether he should provide the recipe. He obviously enjoyed himself immensely while he was testifying. [ 76 ] However, it is not on the basis of demeanor that I make my finding on credibility. Often Manny engaged in obfuscation. He seldom answered a question directly and sometimes not at all.

He preferred telling his own story, rather than be guided by questions. [ 77 ] At times, his evidence was internally inconsistent. At one point, he testified that he did not want Lisa to get involved in his business because of his previous bad experience with Cheryl. At other times he complained about how he did want Lisa to get involved in the business by injecting her own money. The purchase of the Victoria condo, 84 Erin Ridge Drive and 1168 Via Vernio are all examples of Lisa getting directly involved in his business, by putting her name on title or contributing funds or both.

He said that he accepted that Lisa was not contributing equally to the joint bank account as “I have better thing to do than fight over a few dollars” and then cited Lisa’s deficient contributions as one of the reasons for wanting to end the relationship. His description of separating from Lisa in December 2012 is completely inconsistent with his admission that they lived together in 2013 and 2014. [ 78 ] There are also external inconsistencies.

He insisted that Lisa did not contribute to the household expenses while ignoring the fact that the reason she went back to work at AGLC in 2010 was exactly for that purpose. He minimized the extent of her contributions to MHI, which was contradicted by the evidence of Greg Sim and Roxby Hughes. [ 79 ] Much of what he said on the main points of contention was improbable. He tried to characterize his granite job at 32 Kingsford Crescent as a breakup from his common-law spouse.

His stated reasons for the breakup not only seem improbable but pale in comparison to the infidelity cited by Lisa. [ 80 ] Lisa’s evidence, on the other hand, does not display the same type of internal or external inconsistencies. The independent evidence of Roxby Hughes and Greg Sim is corroborative of her position as to the extent of her involvement in the enterprise of MHI. The evidence of Tony Ziccarelli supports Lisa’s position regarding the date of separation.

Lisa’s version of events is also corroborated by Marjorie who had an active role in many of the events and was in a good position to observe those events. As Lisa’s mother, it might be said that she would be naturally supportive of her daughter but I was given no reason to question the trustworthiness of her evidence, unlike that of Mr. Peters. Marjorie was also candid in admitting that she was initially resistant to Manny’s designs upon her daughter but eventually warmed up to him and integrated into their household.

For these reasons, I generally accept Lisa’s evidence with respect to the main points of contention, mainly the date cohabitation commenced, the date of separation, the nature of the relationship and the extent of her involvement in the business. K.

Joint Family Venture [ 81 ] In Kerr v Baranow , 2011 SCC 10 , the Supreme Court of Canada confirmed that for the Plaintiff to succeed in a claim of unjust enrichment, three elements must be established: (1) an enrichment or benefit to the defendant, (2) a corresponding deprivation of the plaintiff, and (3) the absence of a juristic reason, either in law or in justice, for the enrichment. The application of these principles in family cases must always be contextual. [ 82 ] A successful claim for unjust enrichment may result in either a monetary award or a proprietary award.

At paragraphs 72 and 73 of Kerr , the court notes the need to retain remedial flexibility to deal with the contextual circumstances of every case. [ 83 ] The court determined that when the parties have engaged in a joint family venture where the plaintiff’s contributions are connected to the generation of wealth, the monetary award for unjust enrichment should be calculated as the share of the accumulated wealth proportionate to those contributions.

Whether a joint family venture existed is dependent upon four main, but not exhaustive, factors: (1) mutual effort, (2) economic integration, (3) actual intent, and (4) priority of the family. [ 84 ] The approach recognizes that the monetary remedy should not be an arithmetic exercise of adding up the total hours worked on life’s timesheets and multiplying by an hourly wage. Rather, the approach recognizes the plaintiff as a co-venturer where both parties

have worked together in a common enterprise with each making extensive, albeit different, contributions for the benefit of the other and which has resulted in the accumulation of assets. [ 85 ] I will first consider whether an unjust enrichment has occurred. There can be no question that Manny has been enriched. He has increased both his personal and corporate assets significantly during the time that he and Lisa lived and worked together.

This accretion in assets is reflected in the September 17, 2017 valuation of the corporate assets and the Statement of Property completed by Brenda Pisko. [ 86 ] Lisa’s contributions to the business took two forms. First, she was in charge of the domestic side of the household, particularly with regard to child care. It is not disputed that Manny had a role in his children’s lives from the outset, but the primary duties of child care fell to Lisa. This enabled Manny to focus his time, energy and efforts on building homes and later in acquiring the Las Vegas real estate.

While it could be said that, at times, Lisa subcontracted the child care duties to Marjorie, it must be recognized that the only reason Marjorie was part of the household was because Lisa had brought her in. Marjorie was not paid for any of her domestic and childcare work. [ 87 ] The second way that Lisa contributed to the business, as described, was directly through her work on behalf of MHI. She basically provided all of the front office, clerical, accounting and customer service functions. MHI would not have been able to carry on business without that contribution.

Following the commencement of their cohabitation and until their separation, a period of over a decade, Lisa was not paid for her work at MHI. [ 88 ] The fact that Lisa was not paid for her work on behalf of MHI is also indicative of her corresponding deprivation. Furthermore, she was out of the workforce between 2006 and 2010 when the children were young and so that she could devote more hours to MHI. She gave up the opportunity to earn income while she was working at MHI.

She also gave up the opportunity to progress in her career at EPCOR. [ 89 ] Next I will examine whether there is a juristic reason to deny recovery. The first step is to determine whether there is denial on the basis of an established category such as contract, gift, or any other valid equitable, statutory or common-law obligation. No category was suggested by Manny other than contract. The contract itself, being the 2013 lease for 32 Kingsford Crescent, was signed late in their relationship, ten years after the commencement of cohabitation and less than one year before the separation.

It purported to allow Lisa and the children to live at 32 Kingsford Crescent in exchange for bookkeeping services for MHI. I cannot construe the lease to have the legal effect of foisting an obligation upon her to provide domestic services to Manny and office services to MHI for the entire period in question. Accordingly, I find there is no categorical juristic reason to deny recovery to Lisa. [ 90 ] The second part of the inquiry into juristic reason obliges the defendant to rebut the prima facie case for unjust enrichment.

Here the defendant must point to circumstances that allow the court to determine whether there is another reason to deny recovery, having regard to the parties’ reasonable expectations or questions of policy. I find that there are no circumstances that confine the parties’ reasonable expectations such that Manny should retain all of the benefit. [ 91 ] Furthermore, no public policy reason was argued as to why recovery should be denied to Lisa.

Accordingly, I find that there is no juristic reason for the enrichment in this case. [ 92 ] Next, I must examine whether the unjust enrichment occurred in the context of a joint family venture, with regard to the four factors previously listed. Mutual Effort [ 93 ] In Kerr , the mutual effort category was defined as the parties working collaboratively toward common or mutual goals.

The court listed a number of indicators of collaboration, including the pooling of effort, teamwork, the decision to have raise children together, the length of the relationship, joint contributions, contributions to a common pool and the pooling of efforts and resources or income.

In this regard, I note the following: • There was a pooling of effort with both of the parties having their defined roles in the operation of the business of MHI; • Conducting the business in this manner required the parties to engage in teamwork; • The parties decided to have and raise two children together; • The relationship was over a decade in length; • The parties each contributed their own income to the maintenance of the household, either through a joint account or separately; • During the course of the relationship, the parties used personal and corporate funds to acquire properties, one of which was in joint names (the Victoria condo) and two of which were in Lisa’s name (1168 Via Vernio and 84 Erin Ridge Drive); • Lisa was responsible for maintaining the home (often employing Marjorie for child care and household duties) and continuing to operate the business of MHI while Manny was in Las Vegas speculating on rental properties; • The parties made mutual decisions both when Lisa quit her job at EPCOR in 2006 and then resumed employment at AGLC in 2010; • The parties made plans for their future by getting engaged in 2006; • Lisa’s mother Marjorie lived with the parties in their home for an extended period of time, as did Manny’s son Kyle during Manny’s access weekends;

• Lisa used her earnings from AGLC in order to meet the needs of their children. [ 94 ] All of the factors shown above indicate that there was mutual effort and collaboration towards a common goal of the securing the future for the family.

Economic Integration [ 95 ] The category of economic integration was defined in Kerr as being the degree of economic interdependence characterizing the relationship, as indicated by the sharing of expenses and the amassing of a common pool of savings, and their conduct showing a sense of collectivity, mutuality, and prioritization of the overall welfare of the family unit as opposed to individual interests.

In this regard, I note the following: • The use of a joint bank account to pay family expenses for much of the relationship; • The use of Lisa’s own income from AGLC pay household and child expenses; • The operation of MHI essentially as a family business; • Manny’s provision of a succession of residences that served as family homes, the last of which was owned by MHI; • Lisa naming Manny as the beneficiary of her pensions (and not revoking the designation until a year after separation in the event the couple reconciled). [ 96 ] Manny alleges that Lisa did not identify herself as being in a common-law relationship on her income tax return, which would be a factor against economic integration if proven.

However, overall, the factors listed above and in particular the fact that both parties contributed to the household expenses in one way or another supports the presence of economic integration. Actual Intent [ 97 ] As Cromwell, J noted in Kerr , the actual intention of the parties plays an essential role in determining the existence of a joint family venture. Such intentions may be expressed directly by the parties or inferred from their conduct.

As noted at paragraph 95, “the intention to engage in a joint family venture maybe inferred where the parties accepted that their relationship was equivalent to marriage”... “or where the parties held themselves out to the public as married.” The stability and length of the relationship are also factors.

Other indicators include the way titled property is held and whether the parties held each other to account for monies spent for household expenses and other joint purposes. [ 98 ] I note the following in this case: • The parties became engaged in April, 2006, the event marked by Manny actually purposing and presenting Lisa with a $28,000 diamond ring; • Thereafter, Manny declared that “Lisa was the woman I would be with for the rest of my life”.

He said he felt “a lot of joy” on the occasion of the engagement. • Lisa noted that although the parties were engaged for many years, a formal marriage did not materialize. Lisa felt it wasn’t necessary as she believed that she and Manny were committed to one another as life partners. • The parties acquired properties together for investment purposes, sometimes in Manny’s name, sometimes in Lisa’s name, and the in the case of the Victoria condo, in joint names.

During the relationship, no concern was expressed by the parties that title was held in one name or the other. • The joint bank account was used to fund household and family expenses for a period of time. When the account fell into disuse, Lisa used her earnings to pay some of those expenses. There is no evidence that the parties accounted to one another for this spending. • Although Lisa thought the $190,000 invested by Manny in the discounted casino chips was a bad investment (and it was), she did not take Manny to task for it.

Instead, she agreed to return to work in order to help the family recover from the loss. • The couple held themselves out in public as being in a committed relationship, as confirmed by Roxby Hughes, Greg Sim and Tony Ziccarelli. They were in such a relationship for a period in excess of a decade, with continuous cohabitation. [ 99 ] All of the foregoing are indicators that reflect the actual intent of the parties to jointly contribute to a joint family venture for their mutual benefit and that of their children.

Priority of a Family [ 100 ] The last category to consider in determining whether the parties participated in a joint family venture is how they have given priority to the family in their decision making. An important factor is whether there has been detrimental reliance on the relationship by one or both parties for the sake of the family. [ 101 ] The decision that Lisa leave EPCOR for good following the birth of Dylan in order to devote more time to the children and the family business is an example of a decision that gives priority to the family.

The same can be said of the decision for Lisa to return to work at ALGC, which occurred at Manny’s urging, and at a time when the family had just suffered a major cash loss. In staying out of

the work force for approximately four years between 2006 and 2010, Lisa essentially worked for free in the family business and made no earnings for herself during that period. [ 102 ] The parties did in fact have two children together and formed a family. Often Manny would combine business trips to Las Vegas with family vacations. The parties integrated Lisa’s mother into the household and had Manny’s son Kyle over on weekends.

Marjorie and Kyle sometimes came on family vacations. [ 103 ] There are sufficient indicia of the parties giving priority to the family so as to satisfy this last criterion of the joint family venture analysis. Relative Contributions [ 104 ] Accordingly, I find that there are sufficient factors as enumerated above to satisfy each of the four criteria to establish a joint family venture in this relationship. The next step is to determine whether the contributions of the claimant during the course of the joint family venture were linked to the generation of the wealth.

If that finding is made, the last step is to calculate the award according to the share of the accumulated wealth proportionate to the claimant’s contributions. [ 105 ] With regard to the second step, I find that Lisa’s contributions have sufficient connection to the generation of the overall wealth in this relationship. Clearly, Lisa’s participation in the business of MHI stabilized the business, enabled Manny to focus his energies on the construction aspect and allowed the business to grow and become prosperous.

The success of the business allowed Manny the financial freedom to purchase of the various Las Vegas properties. The imprint of Lisa’s contributions can be found on virtually all of the wealth generated during the period of the relationship. In a material way, Manny reaped the benefits of Lisa’s participation and sacrifice. It was also Lisa who brought Marjorie into the household who, along with Lisa, were primarily responsible for the child care, thus enabling Manny to devote his attention to construction and later investment.

Calculation of the Award [ 106 ] It was urged upon me during argument by counsel for Manny that I should value Lisa’s contribution strictly on a quantum meruit or fee-for-service basis. It was suggested to me that payment of the sum of $60,000 would more than adequately compensate her for her efforts between 2003 and 2014. [ 107 ] First, the Court in Kerr states that strict reliance in unjust enrichment claims on a fee-for-service calculation is wrong.

This rejection rests on the notion that where joint effort has led to the creation of increased wealth and, following relationship breakup, a deprivation of one partner, “there is no reason in principle why a monetary remedy cannot be fashioned to reflect this basis of the enrichment and corresponding deprivation”.

Thus, neither a quantum meruit approach or constructive trust with respect to specific property is mandated as a remedy in an unjust enrichment case involving a joint family venture. [ 108 ] Second, in this specific case, Lisa’s value to the joint family venture far exceeded what one would expect from a secretary or office assistant working for an hourly wage in a small business.

The quantum meruit approach here would not reflect the reality of either Lisa’s contribution or the nature of the relationship. [ 109 ] I therefore reject the fee-for-service approach suggested by Manny’s counsel. [ 110 ] As Kerr points out at paragraph 81 , “the monetary award for unjust enrichment should be assessed by determining the proportionate contribution of the claimant to the accumulation of wealth”, while retaining flexibility to fashion a remedy that will respond to the specific factual situation. [ 111 ] Unlike the statutory matrimonial property regime, there is no presumption that the property division should be equal.

Nor in unjust enrichment cases is there a presumption that the contributions of the parties are equal, so as to result in an equal distribution of the increase in wealth. Rather the relative contributions of the parties must be given weight. [ 112 ] Counsel for Manny urged me to find that the Manny’s contribution to the joint family venture exceeded Lisa’s by orders of magnitude. He suggested that Manny supplied all the capital and all the expertise and took all the risk. He suggested that Lisa performed office duties that could have been provided by anyone.

It was argued that Manny was totally self-sufficient in running the business except that he didn’t like to work at a computer. Accordingly, it was argued that at most Lisa should be entitled to 5% of the accumulation in wealth. [ 113 ] Lisa’s counsel took the position that MHI would not have been prosperous, and the acquisition of the Las Vegas properties not possible, had it not been for Lisa’s participation in the joint family venture.

It was argued that Lisa should be entitled to receive half of the accumulation of wealth. [ 114 ] In weighing the respective contributions of the parties, I do note that Manny supplied the initial capital and obviously the construction expertise. Those who were able to opine on the topic were unanimous that Manny is a craftsman without peer.

However, as I have previously said, Lisa’s contribution was significant in stabilizing and expanding the business of MHI, which in turn permitted the acquisition of the Las Vegas properties. [ 115 ] There is no precise mathematical formula for assessing the relative weight of contributions. In order to recognize the roles that each party had in the generation of the increased wealth, I apportion it 60% in Manny’s favour and 40% in Lisa’s favour. L. The Assets

[ 116 ] The parties have agreed, more or less, as to what comprises the body of assets that are at issue in this action, as shown in the respective Statements of Property entered into evidence. They disagree as to the extent of some of Manny’s claimed exemptions and they disagree as to the valuation of some of the assets. [ 117 ] Where there is disagreement as to valuation, I have adopted those valuations supported by some objective evidence.

In the absence of objective confirmation, I have relied on the proposed valuation advanced by the party who is in the best position of knowledge and where such valuation appears reasonable in all the circumstances, [ 118 ] I will now discuss individual assets that fall into one or more of the following categories: • Any asset where one party alleges the asset should not be included within the body of assets under consideration; • Any asset which is subject of a disputed exemption, including the extent of the exemption; and • Any asset where the valuation is disputed. [ 119 ] This discussion assumes that the cohabitation commenced October 1, 2003 and that the date of separation was April 5, 2014, as previously found.

The Real Properties 14 Kingbury Crescent, St. Albert, Alberta [ 120 ] This property was acquired by Manny personally in 1999. It was used as the family home and the location of the family business for a period of time. Lisa’s valuation of this property is $800,000 which is the same value provided by Manny in his Statutory Declaration of September 4, 2014. At trial, he stated that the value was $710,000. The difference arises because of the different position adopted by the parties with respect to the commencement date of cohabitation and the date of separation.

Accordingly, I accept Lisa’s figure of $800,000 for this property. 84 Erin Ridge Drive, St. Albert, Alberta [ 121 ] This property is in Lisa’s name. The purchase of this property was described by Manny as a “joint venture” between himself and Lisa. Lisa suggests that the value of the property is $410,000 in accordance with the property assessment (Exhibit 60). Manny says that value is $575,000, based on his knowledge of the residential housing industry. He says that actual value often exceeds assessed value. I agree with Manny’s observation but he provides nothing to support his valuation other than mere opinion.

Accordingly, I will assess the value of this property for the purposes of this action at the mid-point between the two proposed values or $492,500. 5112 Whisper Lake Avenue, Las Vegas, Nevada [ 122 ] Lisa assesses the value of this property at $140,970, the acquisition cost of the property in 2015. Manny suggests the property should not be included at all in the body of assets. While it was purchased in Manny’s name during the relationship, he did so only as an accommodation or favour to his Las Vegas friend Nathan Robart. Mr. Robart could not qualify for a mortgage.

The idea was that Manny would hold bare title and finance the property at no interest until such time that Mr. Robart was able to finance the property himself. Manny conveyed title to Mr. Robart in 2015 after the couple separated and received a payout. [ 123 ] According to a Clark County Real Property Report, the sale price of the property when transferred to Mr. Robart in 2015 was US $127,600 x 1.1 = CDN $140,970. Lisa did not dispute that the property was acquired as a favour to Mr. Robart but testified that the funds used to purchase the property were funds that Manny and herself had on hand.

Manny did not identify the source of the purchase funds. [ 124 ] It is unusual that Manny did not document the transaction. He said it was done on a handshake basis. Nonetheless Lisa does not dispute that the property was purchased for an eventual transfer to Mr. Robart. However the original purchase by Manny occurred during the relationship and used funds from the relationship. Manny was unable to say what he received from Mr. Robart in terms of payment or eventual payout. He did say he used the proceeds to live on post-separation.

Accordingly the sale value in 2015, being $140,970, is the best evidence of value and this amount should be considered part of the body of assets under consideration. The Victoria Condo [ 125 ] Manny suggests the Victoria Condo is exempt property if one uses the later of the two dates for the commencement of cohabitation. I have already found that the earlier of the two dates is applicable. I recognize that Lisa put in $7,500 of her own money into the purchase and that Manny paid the balance when the couple did not qualify for an out-of-province mortgage.

However, the property was purchased after the date of cohabitation as a joint investment and should therefore be included in the body of assets under consideration. It is valued at $250,000, according to the statutory declaration sworn by Lisa Ernst on July 15, 2014 as part of Form FL- 17 (Tab 44 of Exhibit 1). The Other Real Properties [ 126 ] The valuations of the remaining real properties were derived as follows: • 1905 Tomlinson Way, Edmonton, AB - $580,000 – from the statutory declaration sworn by Manuel Martins on September 4, 2014 as part of Form FL-17 (Tab 43 of Exhibit 1) (Manny’s statutory declaration);

• 76 Erin Ridge Drive, St. Albert, AB - $550,000 – from Manny’s statutory declaration; • 1177 Via Piazza, Henderson, NV – US $308,750 x 1.11 = $342,714 – from

Schedule C4 of the Pisko Report showing a midpoint of the appraisals obtained by the parties; • 9 Ellesboro Close, St. Alberta, AB & 10 Erindale Close, St. Albert, AB - $519,790 – per information received by Ms. Pisko from Edwin Radke (Manny’s accountant); • 1168 Via Vernio, Henderson, NV – US $179,049 x 1.1 = $198,744 – Clark County Real Property Record (Exhibit 39). The Tangible Assets 2006 Chevrolet Corvette [ 127 ] Lisa is the owner and driver of this vehicle.

I will accept her valuation of $30,000, which is supported by Auto Trader data, as opposed to Manny’s valuation of $35,000. 2007 Loadall Zoom Boom [ 128 ] This piece of equipment was acquired in 2007 at $144,500. Lisa believes it is currently worth $60,000. Manny says its true value is $30,000, as it has sustained extensive damage through misuse, is currently not operable and remains unrepaired. I accept Manny’s position here. 2007 Toyota Tundra [ 129 ] Lisa’s valuation of $13,500 is based on information retrieved from the Auto Trader. Manny is the owner and driver of this vehicle.

He indicates that it was the vehicle used in the construction business and that it requires extensive bodywork. I therefore accept his valuation of $4,000. 2006 Boat [ 130 ] Lisa’s valuation of the item is $10,000, based on Manny’s Statutory Declaration dated September 4, 2014. At trial, Manny stated that the boat has a blown engine and requires extensive repairs. He estimated the value of the boat at $5,000. I accept Manny’s valuation based on the fact that he has knowledge and possession of the boat. 2007 Yamaha Quad [ 131 ] Lisa has assessed the value of this item at $4,500.

Manny says it is worth $7,000 because it is virtually new and he is prepared to take the vehicle at that amount. Accordingly, I assess the value of this item at $7,000. Can-Am Quad Acquired in 2007 [ 132 ] Lisa states this vehicle has a value of $4,500, while Manny say it is worth $9,000. Again, as he is the owner and user of the vehicle, I am prepared to accept his valuation of $9,000. 14’ Utility Trailer and 30’ Gooseneck Trailer [ 133 ] Lisa places a value of $3,000 each for these items based on Exhibits 45 and 46. Manny says that both pieces of equipment are in bad shape and have zero value.

They are currently in a repair yard, although unrepaired, and about to accumulate storage charges. Based on his possession of these items and his actual knowledge of their condition, I accept Manny’s valuation. 2008 Lexus [ 134 ] This vehicle is valued by Lisa at $30,000 based on Auto Trader information. Manny does not dispute this value but says the vehicle is owned by GMD. However, the value is not reflected in the Pisko Valuation of GMD. Accordingly, I assess the value of $30,000.

Cash from TD Canada Trust Boarderless Account #7115121 and Chase Bank Account #000000163867530 [ 135 ] Lisa also claims the following amounts as part of the body of assets under consideration: • $107,537 CAD (or $96,880 US) transferred by Manny by way of a series of bank drafts from Manny’s TD Canada Trust boarderless account in St. Albert to the account of LLC at Chase Bank in Las Vegas on or about April 17, 2014; and • The further sum of $173,001 CAD ($155,857 US) in the Chase bank account on April 7, 2014.

[ 136 ] The total in the Chase bank account as of April 29, 2014 was $246,026.23 US. From that amount, a series of cashiers’ cheques totalling $97,000 US was deposited at two casinos in Las Vegas. By August 8, 2014, the balance in the Chase Bank account was less than $5,000 US. Lisa has no knowledge of what happened to the cash. [ 137 ] Manny testified that a portion of that cash had been earmarked for further property purchases in Las Vegas. When the transactions did not materialize, he used the funds to live on. [ 138 ] I find that funds in Manny’s name in the St.

Albert bank account and those in the LLC account in Las Vegas were accumulated during and as part of the joint family venture. Accordingly, both amounts ($107,537 CAD and $173,001 CAD) form part of the assets under consideration in this action. [ 139 ] LLC was formed for the purposes of holding and managing the Las Vegas properties. Four of the properties were transferred to LLC in 2013 and one in 2014. As noted earlier, the ability to purchase the assets of LLC arose from the joint family venture.

Therefore any cash held by LLC on its own, but subsequently spent by Manny personally, should be considered part of the assets of the joint family venture. M. Remedy [ 140 ]

Schedule A to this Memorandum is a Statement of Property listing all of the assets that are subject to the joint family venture. The Statement is based on Exhibit 65 from the trial, being the last Statement of Property prepared by Ms. Pisko on September 26, 2017 tendered as evidence in the trial. It assumes a cohabitation commencement date of October 1, 2003 and a date of separation of April 5, 2014 (which dates correspond with my findings). Ms. Pisko’s Statement is modified to the extent of the findings I have made above in regard to the valuation of certain assets.

Schedule A is incorporated as part of this Decision. Accordingly, in order to give effect to my finding that she is entitled to receive 40% of the wealth accumulated during the relationship, Lisa is entitled to payment of the equivalent of $1,291,939 as reflected in

Schedule A. [ 141 ] The court in Kerr emphasize that the remedy to be granted in domestic unjust enrichment cases should be flexible to suit the factual context. A straight monetary award would be inappropriate here because each party has holdings in their names and has been paying the expenses associated with maintaining those assets. Further, Lisa and the children still occupy the former family home at 32 Kingsford Crescent, St. Albert which is in the name of MHI. Third, a monetary award is based upon notional disposition.

Actual disposition may be impractical, particularly in terms of tax efficiency. [ 142 ] Accordingly, I make an award for unjust enrichment in the Lisa’s favour that includes: • Retention of the Victoria condo in her sole name only, as of January 1, 2018 or so soon thereafter as practicable; • Retention of 84 Erin Ridge Drive, St. Albert, and the associated mortgage; • Retention of 1168 Via Vernio, Henderson, Nevada; • Transfer of 32 Kingsford Crescent, St.

Albert from MHI to Lisa Ernst solely effective January 1, 2018, or so soon thereafter as practicable. [ 143 ] I have valued 32 Kingsford Crescent at $1,064,778, the amount indicated in

Schedule B5 of the Pisko Report, as being the fair market value of the residence as at April 5, 2014. Taking into account the total of the assets shown in Lisa’s column in

Schedule A along with the transfer of 32 Kingsford Crescent, Lisa will be entitled to a further cash payment from Manny in the sum of $227,161 less the tax cost and closing costs to MHI of transferring that property to her. She has judgment for whatever balance remains. [ 144 ] Otherwise, the parties will retain the assets shown in their respective columns in

Schedule A. N. The Partner Support Claim [ 145 ] At trial, Lisa claimed partner support from Manny on the basis that she and Manny were in an AIP relationship. Her counsel suggested a lump sum payment of $50,000 would suffice in this regard. Manny contests the claim. [ 146 ] I have earlier found that the couple was in an AIP relationship. [ 147 ]

Section 58 of the Family Law Act sets out the following factors to be considered by the Court in making an award: (

a) the conditions, means, needs and other circumstances of each spouse or adult interdependent partner, including (

i) the length of time the spouses or adult interdependent partners lived together, (ii) the functions performed by each spouse or adult interdependent partner during the period they lived together, and (iii) any order or arrangement relating to the support of the spouses or adult interdependent partners, (

b) any legal obligation of the spouse or adult interdependent partner having the support obligation under the order to provide support for any other person,

(

c) the extent to which any other person who is living with the spouse or adult interdependent partner having the support obligation under the order contributes towards household expenses and thereby increases the ability of that spouse or adult interdependent partner to provide support, and (

d) the extent to which any other person who is living with the spouse or adult interdependent partner who is to receive support under the order contributes towards household expenses and thereby reduces the financial needs of that spouse or adult interdependent partner. [ 148 ]

Section 60 of the Family Law Act provides that a decision to grant partner support should achieve the following: (

a) recognize any economic advantages and disadvantages to the spouses or adult interdependent partners arising from the relationship or its breakdown, (

b) apportion between the spouses or adult interdependent partners any financial consequences arising from the care of any child of the relationship over and above the obligation apportioned between the spouses or adult interdependent partners pursuant to a child support order or a child support agreement, (

c) relieve any economic hardship of the spouses or adult interdependent partners arising from the breakdown of the relationship, and

d) insofar as practicable, promote the economic self-sufficiency of each spouse or adult interdependent partner within a reasonable period of time. [ 149 ] A decision as to whether to grant AIP support entails reviewing the applicable factors set out in s 58 in light of the objectives contained in s 60. [ 150 ] In my view, an award of partner support on a compensatory basis would be a duplication of the financial recognition already given to Lisa through her participation in the joint family venture.

As far as a non-compensatory award is concerned, I note that Lisa has gainful, stable employment and more than two decades of useful working life ahead of her. Through the unjust enrichment award just made, she will have a substantial clear title to the family home and other assets with which to generate income. In such regard, Lisa has benefitted substantially from the relationship. Through the combination of employment income and income-generating assets, Lisa is perfectly self-sufficient. Although they were adult interdependent partners, I find no basis upon which to make a partner support award. O.

Manny’s New Family Circumstances [ 151 ] In November, 2015, Manny met Anastasiya Shylenka while playing poker in Las Vegas. Ms. Shylenka is a professional poker player from Belarus who was on vacation in the US at the time. Their relationship developed quickly and within 90 days of meeting her, Manny proposed marriage to her. The couple was married in the Dominican Republic on August 8 th , 2016. They subsequently had a child together, a daughter, who was born on May 25 th , 2017. [ 152 ] Ms. Shylenka’s US visa expired and she has been unable to obtain a visa to come to Canada. In consequence, Ms.

Shylenka returned to Belarus for a short period but is now living in Portugal with some of Manny’s family. Manny has been travelling when he can to visit with his new family. P. Parenting [ 153 ] Under an existing court order, Manny has access on Wednesday evenings and every other weekend. Lisa proposes that the Wednesday evening access be eliminated because it is not really practical given its short duration. She also notes that Manny has been somewhat sporadic in exercising his access and has missed approximately 80% of his access time with their boys over the last two years.

The sporadic nature of the access appears to stem from, in Lisa’s view, Manny’s travel schedule. She proposes instead that Manny be entitled to 26 weekends per year, some of which can be consecutive and some of which can extend to long weekends. [ 154 ] Manny has proposed a shared parenting arrangement, with equal time. When in Canada, Manny lives at 76 Erin Ridge Drive in St. Albert. Under the existing court order, exchanges have been occurring at one of two Tim Horton’s locations in St. Albert. [ 155 ] In August, 2016, Manny had a two-week period of access, commencing on August 8 th .

He had planned to take the boys to the Dominican Republic so they could attend his wedding. He did not tell Lisa of his plans for the two weeks and, in particular, did not advise her of the wedding. [ 156 ] When Manny appeared at 32 Kingsford Crescent to pick up the boys, he asked Lisa for their passports. Lisa said that she told Manny that the boys did not want to go back to Las Vegas and instead wanted to spend time with their father locally. She refused to hand over the passports. Manny became angry and he kicked the front door three times.

Lisa says she was alarmed by this behaviour and that it frightened the children. She called the police. Manny left without taking the boys. No charges were laid in connection with this incident. [ 157 ] A week or so later, the boys received an email from Manny which attached a video of the wedding. Lisa says that in retrospect, had Manny advised her of the circumstances, the incident may have had a different outcome. [ 158 ] Commencing January 1 st , 2016 and continuing until June 30 th , 2017, Lisa kept a record of the actual access exercised by Manny.

The log she created does indeed show that Manny missed about 80% of his access time. Since June 30 th , 2017, she has not kept a

record but says that the pattern has not changed. [ 159 ] Manny is going through transition in his life. He has a new wife and baby. He is trying to bring them to Canada but at present they reside in Portugal and he must travel to Portugal to visit them.

He also maintains a strong connection with Las Vegas because of the rental properties he must manage and his recreational activities. [ 160 ] At trial, Lisa stated that she is open to increasing Manny’s parenting time as circumstances allow, but that given Manny’s current circumstances, shared parenting as proposed by Manny is not viable. [ 161 ] I agree with Lisa. I accept that Manny is a loving father. However, his demonstrated inability to responsibly exercise his access over the last two years suggests to me that he is not ready for shared parenting.

Moreover, he has to contend with a new family on a different continent and is in the process of trying to get them to Canada. There was no projected date given to me to accomplish this. Even if Manny is successful in relocating his new family to Canada, Ms. Shylenka is a stranger to Dylan and Colby. [ 162 ] In the circumstances, I find that it would not be practical nor in the best interests of Dylan and Colby to be moved into a shared parenting regime at this time. Children do best with stability and predictability.

At this point in time, Manny offers neither. [ 163 ] Accordingly, I order that Lisa retain primary, day-to-day care of Dylan and Colby, including sole primary decision-making. Manny is entitled to 26 weekends during the year, including 5 long weekends, and Manny will identify those weekends in writing to Lisa and communicate that information to her prior to January 1 st of each year.

The sole exception is 2018, where Manny has until February 1 st to identify his 26 weekends, including the long weekends. [ 164 ] With regard to holidays, I order that they be shared equally between the two parents either by way of splitting or alternating. Where they are single-day holidays, they may be factored into the long weekends previously discussed. School breaks should also be shared equally in the same manner. During summer vacation, each parent is entitled to four weeks, which by agreement may be taken consecutively.

In the event the parties are unable to agree on a schedule, they make seek a direction from me through counsel, or apply in Family Law Chambers. [ 165 ] I am also of the view that the door-kicking incident of August, 2016 is still too fresh to change the current arrangements with regard to exchanges. Accordingly, the exchanges will continue at the designated Tim Horton’s locations in St. Albert, until further order. Q.

Section 3 Child Support [ 166 ] The court order currently in effect requires Manny to pay s 3 child support to Lisa based on a Guideline Income of $100,000. He says that this is inaccurate, both on an historical and prospective basis. [ 167 ] Determining Manny’s Guideline Income for child support purposes has proven to be a complicated task. He says his personal income is nowhere near $100,000 per annum. Through counsel, he stated that his 2016 line 150 income is $25,698 and that should be the amount of his Guideline Income.

He also says that he is currently living off a bank loan and that his companies are in decline. According to the report of Brenda Pisko, the net income of the two companies since 2013 has been as follows: Glen Martin Developments 2016 (3,279) 2015 (1,536) 2014 40,166 2013 1,435 Martin Homes Inc 2016 5,069 2015 2,754 2014 38,922 2013 108,024 [ 168 ] There was much argument at trial regarding whether the deductions taken by MHI were justifiable. Lisa’s counsel cited Durfey v Durfey

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