AK v JS, 2019 ABQB 932

Court of Queen’s Bench of Alberta Citation: AK v JS, 2019 ABQB 932 Date: 20191205 Docket: FL03 50949 Registry: Edmonton Between: AK Applicant - and - JS Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] This afternoon chambers application had two aspects. Mr. Hall, former counsel for JS, sought an order allowing him to pay $13,811.97 held by him in trust for the parties into court.

The monies resulted from the foreclosure sale of the parties’ former residence and matrimonial home. The parties have been unable to agree on how to divide those funds. I granted Mr. Hall’s application and the funds were paid into court to the credit of this action.

[ 2 ] The second part was JS’s application and AK’s cross-application to have the monies paid out to them. I reserved on that application as I needed more time than was available in morning chambers to read the parties’ somewhat lengthy affidavits and to consider the matter. JS swore his affidavit on October 28. AK swore her affidavit on November 13; JS filed a response affidavit on November 26 following the hearing of the application. Background [ 3 ] AK and JS were in a common law relationship from December 2005 until July 2015. There are two children of their relationship.

The parties jointly owned a home on 152A Avenue in Edmonton. Before they separated, they were experiencing financial difficulties. The property was listed for sale. [ 4 ] AK and the children moved out of the home in July 2016. Shortly after AK moved out, her father and brother filed builder’s liens against the home, claiming that they were owed a total of $17,000 for work they did to improve the home and make it ready for sale. [ 5 ] JS denies that he requested that this work be done, and disputes the value of it.

JS remained in the home for some time after the separation. [ 6 ] He eventually moved out of the home himself. The home then went into foreclosure in November 2016. AK’s father and brother commenced action to enforce their builder’s liens. AK did not defend, and judgment was granted against her. JS defended, and the action against him does not appear to have been resolved. [ 7 ] The home was eventually sold in the foreclosure proceedings, Action 1603-19833. The judgment against AK in favour of her father and brother was paid out of the sale proceeds.

In December 2017, AK applied in the foreclosure proceeding to have the net sale proceeds paid to her. JS cross-applied in the foreclosure proceeding to have the net sale proceeds divided between them. He sought “half of the funds paid into court plus half of my expenses from the date of separation to the date I vacated (the home)”. The time period referenced by JS was July 2016 to October 2016. [ 8 ] The result of the application was that the net sale proceeds were paid into Mr.

Hall’s trust account, where they have remained until the current applications. [ 9 ] JS’s application filed October 28, 2019 seeks the same relief: half of his expenses from separation until the date he vacated, costs, with the balance being split between them. AK seeks “at least half” of the monies in court, with daycare costs and

section 7 expenses that have not been paid since an interim custody, access and support order was made in September 2016. She claims that JS owes her $2541.76 in

section 7 expenses and $1083.94 relating to daycare costs she has not been reimbursed for. [ 10 ] In JS’s reply affidavit of November 26, he disputes the claimed

section 7 expenses and daycare costs. He says that AK did not provide confirmation of employment or schooling regarding the daycare claim, and no receipts for any

section 7 expenses were provided to him until he was given AK’s affidavit of November 13 in court that day. [ 11 ] The parties ask me to decide on these issues. Analysis [ 12 ] As a starting point, the “interim without prejudice order” dated September 14, 2016 did not deal with any

section 7 expenses other than before/after school care. JS’s obligation to pay is not contingent on AK being employed or attending school. He should reimburse her the $1083 claimed. If monies are owed to the daycare by JS, that is between him and the daycare. [ 13 ] There is no order concerning other

section 7 expenses. JS says in his most recent affidavit that the parties do not communicate. AK attempted to have

section 7 expenses enforced through the Maintenance Enforcement Program. They declined as there is no court order regarding expenses other than child care. AK has not brought an application for

section 7 expenses generally and her notice of application and materials are insufficient for me to make any order. The parties should participate in the Child Support Resolution Program to put a

section 7 order into place and to deal with any appropriate arrears. [ 14 ] JS seeks compensation for payments he made on the home between July 2016 and October 2016. He was living in the home at that time. The parties were trying to sell the home. He had the benefit of the home for those months, while AK and the children apparently lived with her brother.

He did not pay child support for July or August 2016. [ 15 ] In my view, his claim for compensation is offset by the benefits he had in living in the home for some 4 months, and not having to pay child support for the first 2 months. [ 16 ] With respect to his claim that AK should have been solely responsible for the builder’s liens filed be her father and brother, JS had an opportunity to apply to set aside the judgement against AK. He did not do so.

While it is possible that had the builder’s lien action proceeded to a conclusion, the monies owed to her father and brother might have been ordered to be paid by AK alone. [ 17 ] That would be an unusual result. The home was owned jointly. The parties were living in a fairly long term common law relationship and were raising their children there. The work by AK’s father and brother was apparently done. That work may have improved the home and increased its value. The appraisal report filed in the foreclosure action suggests that the home was in reasonable condition. No deficiencies were noted.

Whether JS requested the work, or impliedly requested that the work be done, depends so some extent on the roles the parties played in managing their affairs. He may have directly benefited from the work. It is more likely than not that he would have been found jointly liable with AK. But that is speculation at this stage. Neither of the two court orders involved

(judgment against AK and the order having the liens paid out of the sale proceeds) were appealed. To some extent, res judicata plays a role here. [ 18 ] The other consideration is practicality. If this were a matrimonial property action, the debt to AK’s father and brother would be seen to be a matrimonial debt and would be shared in the division of property. The unjust enrichment action commenced by AK in 2016 seeks a division of the parties’ property in a just and equitable manner. [ 19 ] In my view, the builder’s lien amount was likely properly deducted from the sale proceeds.

Decision [ 20 ] The funds in court should be divided equally between the parties. Out of JS’s share, AK should receive the sum of $1083 to reimburse her for old child care expenses. Assuming no interest has accumulated on the funds in court, AK should receive$7988.99. JS should receive $5822.98. [ 21 ] AK should pursue

section 7 expenses by way of an application to vary the September 2016 order, likely by initiating a child support resolution hearing. Heard on the 14 th day of November, 2019. Dated at the City of Edmonton, Alberta this 5 th day of December, 2019. Robert A. Graesser J.C.Q.B.A. Appearances: AK on her own behalf JS on his own behalf R. Hall Counsel on behalf of the trust account