McKee v Mitchell, 2021 ABQB 132

Court of Queen’s Bench of Alberta Citation: McKee v Mitchell, 2021 ABQB 132 Date: 20210219 Docket: 1703 19955 Registry: Edmonton Between: Thais McKee Plaintiff Defendant by Counterclaim - and - Lesley Mitchell Defendant Plaintiff by Counterclaim Corrected judgment: A corrigendum was issued on February 24, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment.

Corrected judgment: A corrigendum was issued on February 19, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Decision of the Honourable Madam Justice A. Loparco _______________________________________________________ Table of Contents

I. INTRODUCTION .. 3 II. ISSUES AND BRIEF CONCLUSION .. 3 III. BACKGROUND .. 4 IV. ISSUES . 5 A. When did Thais and Lesley start living in an adult interdependent relationship? . 5 1. Adult interdependent partnership law .. 5 2. Period of cohabitation . 7 a. Law re cohabitation . 7 b. Analysis . 7 B. Does either party have a valid unjust enrichment claim, and if so, how does it impact the division of their assets? . 9 1. Property rights for domestic cohabiting partners . 9 2. Legal principles for unjust enrichment claims . 9 3. Analysis of unjust enrichment claim .. 10 a. Household expenses . 10 b.

Division of labour 11 c. Career sacrifices . 12 d. Analysis . 13 i. Enrichment and corresponding deprivation . 13 ii. Juristic reason . 14 4. Appropriate Remedy . 15 a. Step 1: Were the parties engaged in a joint family venture? . 16 i. Analysis of Joint Family Venture . 18 1. Mutual effort 18 2. Economic integration . 19 3. Actual Intent 20 4. Priority of the family . 21 b. Step 2: To what extent are the plaintiff’s contributions linked to the defendant’s enhanced wealth? 22 c. Step 3: Quantifying the remedy . 24 i. Edmonton and Stouffville Homes . 25 ii. Lesley’s Pension . 26 iii.

Savings, Investments, RRSP, Life Insurance . 26 iv. The Red Lake Cabin exemption . 27 v. Calculation of accumulated wealth and equalization payment 28 C. Are there any outstanding debts associated with loans Lesley provided to Thais? . 29 a. First loan . 29 b. Second loan . 30 c. Line of Credit reconciliation . 31 d. Debt forgiveness . 32

V. CONCLUSION .. 32 I. INTRODUCTION [ 1 ] This case is about the just distribution of wealth accumulated during a common-law relationship. While there is nothing particularly novel in the legal principles that apply, the facts in such cases are often unique and require an individualized approach. [ 2 ] The Plaintiff (Defendant by Counterclaim) Ms. Thais McKee and the Defendant (Plaintiff by Counterclaim) Ms. Lesley Mitchell were involved in a romantic relationship that lasted from August 2002 to September 2016.

I will use first names for simplicity but I intend no disrespect. [ 3 ] Thais commenced this action claiming that the parties cohabited in a marriage-like relationship from October 1, 2003 to September 18, 2016. She seeks relief on the basis of unjust enrichment for having contributed to Lesley’s wealth, which includes a house in Edmonton, a cabin in Red Lake, Ontario, savings, an RRSP, investments, and a pension plan.

She seeks 50% of the increase in value of these assets accumulated during the course of their relationship [1] . [ 4 ] Lesley denies Thais contributed to any increase in her wealth and argues that Thais was fully compensated for any domestic work performed by way of an inexpensive living arrangement and various gifts. She further states that they only began cohabiting on a full-time basis in 2005.

In her counterclaim, Lesley seeks 50% of the wealth accumulated by Thais in assets, including a home in Stouffville, Ontario (“Stouffville Home”), a business, savings, life insurance, and an RRSP on the basis of unjust enrichment. Finally, she claims reimbursement of the outstanding loans plus interest made to Thais during the course of their relationship. II. ISSUES AND BRIEF CONCLUSION [ 5 ] The well-established law of unjust enrichment and joint family venture applies to this common-law relationship.

The issues raised and brief answers are as follows: Q1 When did Thais and Lesley start living together in an adult interdependent relationship? A I conclude that they cohabited from October 2003 to September 2016. Q2 Does either party have a valid unjust enrichment claim, and if so, how does it impact the division of their assets?

A I am satisfied that both parties have a valid unjust enrichment claim, arising from a joint family venture, and each are entitled to 50% of the combined accumulation of wealth, except for the Red Lake Cabin (for which Thais will be paid quantum meruit compensation of $3,000 for her work on two projects). Thais is entitled to an equalization payment of $208,474.27 plus the aforementioned $3,000, for a total payment of $211,474.27 plus prejudgment interest. Q3 Are there any outstanding debts associated with loans made to Thais? A Yes.

I find that Thais owes Lesley the outstanding amount of $38,066. [ 6 ] The net result in this case is a payment from Lesley to Thais of $173,408.27 plus prejudgment interest from the date of separation. III. BACKGROUND [ 7 ] Before I set out the history of this relationship, it is important to state that credibility is not in issue. It was obvious to me during the trial that both parties testified honestly, although both women understandably had some inability to recall some specific financial details. Principally, their evidence diverges with respect to the

interpretation of certain life events and the nature of their relationship. [ 8 ] I have pieced together the timeline from the oral and documentary evidence including the Agreed Statement of Facts presented to me. [ 9 ] The parties first met in August 2002 in Ontario. They fell in love quickly. By the end of that same year, Lesley received an attractive job offer from the University of Alberta (“U of A”) that involved a position as an associate professor as well as funding for a research lab.

The two women wanted to be together, discussed the possibility of moving to Edmonton, and agreed that the offer had significant prospects for Lesley’s career. Thais committed to the move almost immediately. [ 10 ] Lesley has a masters degree in Epidemiology. Prior to the move to Edmonton, she was working as a scientist with Sick Kids Hospital in the Pediatric Cardiac Department and as an associate professor with the University of Toronto. [ 11 ] After Lesley accepted the position in February 2003, the parties met in Edmonton at least 2 times to view prospective houses.

They planned on living together, although Lesley stated she would have moved even if Thais could not join her. [ 12 ] Lesley purchased a home in Edmonton in her own name with a possession date of November 2, 2003 (“Edmonton Home”). She paid for the home by using the proceeds from the sale of her Ontario home. The remainder was mortgaged.

[ 13 ] Lesley’s start date with the U of A was November 2, 2003. She sold her home in Ontario and moved into Thais’ home in Stouffville, Ontario for approximately one month (October 2003) prior to the move to Edmonton. [ 14 ] At the time of the move, Thais was employed in the sale of life and health insurance and earned income from providing investment advice. Thais’ move to Edmonton was not as smooth or straightforward as Lesley’s. She attempted to build a business network in Alberta, but certain opportunities fell through.

As a result, she had to continue to service her existing clients in Ontario and BC (the majority of which were in Ontario) while trying to also build a new client base in Alberta. She did so by travelling back and forth between Alberta and Ontario frequently in 2003 and 2004. She maintained and used the Stouffville Home for this purpose. While in Edmonton, she lived with Lesley. In 2005, she decided to rent out the Stouffville Home, ship the remainder of her furniture and her car, and live in Edmonton full time. IV. ISSUES A.

When did Thais and Lesley start living in an adult interdependent relationship? [ 15 ] There is no dispute that the parties started dating in August 2002 and that they became serious quickly and wanted to be together by the time Lesley received a job offer in Edmonton.

There is also no dispute that Lesley lived in Thais’ Stouffville Home for the month of October 2003 prior to moving to Edmonton. [ 16 ] There is a dispute, however, as to when the parties officially commenced cohabiting – Thais states it was in November 2003 when she moved to Alberta (despite the fact that she continued to commute to Ontario and elsewhere for work), and Lesley states it was not until 2005 when Thais began living in Edmonton full time.

The length of the relationship is important as the collective growth in wealth during this time defines the potential value of any relief for the unjust enrichment claims. 1. Adult interdependent partnership law [ 17 ] The first question is whether the parties were in an adult interdependent relationship.

The Adult Interdependent Relationships Act , SA 2002 c A-4.5 (“ AIRA ”) defines an “adult interdependent partner” (also known as common law partner) as a person living with another person in a relationship of interdependence for a continuous period of not less than three years. [ 18 ] The text, statutory context, and purpose of the AIRA indicate that the Legislature intended to recognize relationships between two people that are marriage-like. This intention is manifest in the

preamble as well as in the restrictions defining the relationship, as articulated by ss 1, 5 and 7. The

preamble mentions the importance of traditional understandings of marriage in Alberta and states that the AIRA is intended to “define a legal context for the nature of those interdependent relationships [outside marriage] and to set out the applicability of Alberta laws to them.” [ 19 ]

Section 1(

f) defines a “relationship of interdependence” as a relationship outside marriage in which any two persons: i. share one another’s lives; ii. are emotionally committed to one another; and iii. function as an economic and domestic unit; ... [ 20 ] Thais and Lesley met the first two criteria; that is, they did share one another’s lives and were emotionally committed to one another. For the purpose of my analysis, the economic and domestic integration is the critical criterion.

AIRA provides specific guidance on factors that may be relevant to evaluate the existence of an economic and domestic unit: 1(2) In determining whether two persons function as an economic and domestic unit for the purposes of subsection (1)(f)(iii), all the circumstances of the relationship must be taken into account, including such of the following matters as may be relevant:

a) Whether or not the persons have a conjugal relationship;

b) the degree of exclusivity of the relationship;

c) the conduct and habits of the persons in respect of household activities and living arrangements;

d) the degree to which the persons hold themselves out to others as an economic and domestic unit;

e) the degree to which the persons formalize their legal obligations, intentions, and responsibilities toward one another;

f) the extent to which direct and indirect contributions have been made by either person to the other or to their mutual well being;

g) the degree of financial dependence or interdependence and any arrangements for financial support between the persons;

h) the care and support of children;

i) the ownership, use and acquisition of property. [ 21 ] It is not necessary for each of the above items to be present; a global analysis of the factors is in order. As stated, the parties were in an exclusive, romantic relationship and held themselves out as a couple. They intended to marry and took steps to explore where same-sex marriages were legal.

[ 22 ] Starting around the time Lesley accepted the job offer, Thais became financially dependent on Lesley. At this time, Thais was working as an independent contractor with IPC, from which the bulk of her revenues were earned. She was also additional earning commission income through a corporation she shared with two other partners. IPC announced that it was being sold, terminated the existing independent contract, and offered Thais a one-year contract on new terms.

However, since she planned to move to Edmonton by that time, and since working remotely was not an option, the contract never came to fruition. [ 23 ] Thais gave up the IPC contract, which Lesley did not object to, for the purpose of transitioning her business to Alberta. Lesley testified that it was her belief that Thais would be able to build up her business quickly, but that did not ultimately happen.

There is also strong evidence from both that they intended to use the Stouffville Home for their retirement, at least initially, from which I infer there was an expectation of mutual long-term benefits from their arrangement. [ 24 ] Further, around the time of the start of the job in Edmonton, Lesley offered to have Thais use her line of credit to pay down existing debt and allowed her to live in the Edmonton Home without paying for any of the house-related costs (i.e., mortgage, property tax, insurance, utilities). 2.

Period of cohabitation [ 25 ] The second step will be to determine the period of cohabitation given that Thais was travelling back and forth between Alberta and Ontario until 2005. a. Law re cohabitation [ 26 ] The Supreme Court of Canada has ruled that while cohabitation is a constituent element of a common law relationship, it is not synonymous with co-residence.

Depending on the circumstances, two people may be found to be cohabiting even though they do not live under the same roof; conversely, two people may be found not to be cohabiting, even though they are living under the same roof: Hodge v Canada (Minister of Human Resource Development) , 2004 SCC 65 . The fact of one party maintaining a separate residence does not preclude a finding that the parties are cohabiting in a relationship of interdependence.

Maintaining separate residences does not necessarily mean that an adult interdependent relationship has not continued: Tait v Westphal , 2013 ABQB 668 . [ 27 ] Moreover, there is no requirement that “lived with” for the purposes of s 3(a)(

i) of the AIRA means occupying the same space at the same time all the time: Wright v Lemoine , 2017 ABQB 395 at paras 29- 49 and Cavanagh v Corlett , 2019 ABQB 316 , at para 35 . b.

Analysis [ 28 ] Based on the Agreed Statement of Facts, Thais split her time between Alberta and Ontario, with the following number of days spent in Ontario: in 2003 (13 days); in 2004 (171 days); in 2005 (141 days); in 2006 (63 days); in 2007 (46 days); in 2008 (44 days); in 2009 (29 days); and in 2010 (24 days). [ 29 ] In support of her position that they were not in a common law relationship until 2005, Lesley points to the fact that Thais declared Ontario as her residence on her tax returns in 2004 and only self-declared to be in a common law status from 2006 onward. [2] [ 30 ] However, Thais’ explanation was that she listed Ontario as her residence in 2004 because her income was earned there and that she further listed herself as single as it was her understanding that CRA required couples to cohabit for at least 1 year before making a common-law status declaration.

In 2006, the parties used a new accountant who changed their status to “common law” and counselled them as to income splitting rules. [ 31 ] Although they kept their financial affairs separate and Thais maintained an Ontario residence until 2005, I am satisfied on the evidence before me that Thais and Lesley cohabited continuously from October 2003 to September 2016, which was a period of almost 13 years. [ 32 ] There are many factors that lead me to the finding that the period of cohabitation commenced in October 2003: - At the end of 2002 or early 2003, they met with the pastor at Thais’ church to discuss whether they should live together and marry; they followed the pastor’s advice to spend as much time together as possible; - In June and August of 2003, they visited Edmonton to view houses and agreed to move together; - They discussed marriage again in the summer of 2003 and wanted to get married before leaving for Alberta since it was possible to marry in Ontario at that time; - Wedding rings were purchased in Italy in 2004.

The parties again discussed the possibility of getting married, potentially in B.C. After Lesley’s mom died, they took the rings out of storage and both wore them; - Shortly after the parties decided to move to Alberta, Thais declined the IPC contract, which was only a one-year term, even though she travelled back and forth frequently to Ontario that year.

This indicates an intention to immediately build a client network in Alberta; - Thais did all of the travelling and returned to Edmonton to be with Lesley, who, on the other hand did not (or rarely) travelled to Ontario to be with Thais; - Lesley lived with Thais at her Stouffville Home for 1 month (October 2003) prior to her move to Edmonton; - Thais sent her office and bedroom furniture on the same moving truck that came to pick up Lesley’s belongings in November 2003.

These are significant items, particularly the office furniture which she needed to operate her business from the Edmonton Home, also indicative of a permanent move and intention to transition her work to Alberta; and

- Lesley signed several forms in November, 2003, naming Thais as a beneficiary, a dependant, and declaring that she was in a common law relationship. While Lesley now characterizes these statements as false, I find that the collective declarations are a strong indication of an intention to be committed at the time they were made. [ 33 ] It is not unusual for domestic partners, whether married or not, to be physically separated on a daily basis for a variety of reasons.

A global assessment of the relevant factors is required, which might include the parties’ intentions, the choices they make with their free time, their conduct as a couple, and any plans for the future. Based on the above analysis of the factors, it is clear that the parties intended to live together starting in October 2003. B. Does either party have a valid unjust enrichment claim, and if so, how does it impact the division of their assets? 1. Property rights for domestic cohabiting partners [ 34 ] Historically, Alberta law distinguished between married spouses and domestic cohabiting partners.

When a marriage ended, the former Matrimonial Property Act , RSA 2000, c M-8 (the “ MPA ”) provided legally married spouses with a statutory right to a division of all property owned by both spouses jointly and by each of them. Adult interdependent partners did not have any property rights under the MPA . The MPA only applied to spouses or former spouses. [ 35 ] The property regime recently changed in Alberta when the Family Property Act , RSA 2000, c F-4.7 (“ FPA ”) came into force on January 1, 2020. Under the FPA, a former adult interdependent partner may apply for a family property order.

However, pursuant to s 39(5) of the FPA :

(5) The new Act applies only to adult interdependent partners who had not begun living separate and apart and had not become former adult interdependent partners before January 1, 2020. [ 36 ] In this case, the parties began living separate and apart in September 2016. The FPA , therefore, is not applicable. [ 37 ] While the AIRA creates certain legal rights for domestic cohabiting partners, it provides them with no property division rights. There was no presumed entitlement to property sharing in a common-law relationship during the time of the parties’ cohabitation. 2.

Legal principles for unjust enrichment claims [ 38 ] Counsel referred me to a number of cases on the issue of unjust enrichment. As evident from the varied outcomes, other than the basic legal underpinnings, each case turns on an individualized

interpretation of its own facts. Courts first assess whether there is such a claim, then determine the nature of the remedy (monetary or proprietary), and finally quantify the relief. [ 39 ] The Supreme Court of Canada in its seminal decision in Kerr v Baranow , 2011 SCC 10 [ Kerr ] provided guidance on how a court is to assess claims for unjust enrichment in the context of the end of a domestic relationship between unmarried persons.

With respect to the first step, the plaintiff must establish the presence of three elements: 1) An enrichment or benefit received by the defendant; 2) A corresponding deprivation to the plaintiff; and 3) No juristic reason for the enrichment. [ 40 ] These elements are cumulative such that all three - enrichment, deprivation, and absence of juristic reason for the enrichment - must be established. [ 41 ] In determining the first two elements, the court applies a straightforward economic analysis.

Policy and moral questions are left to the consideration of the third element - juristic reason: Kerr at para 37 . [ 42 ] The court considers whether the plaintiff has proven that he or she gave something to the defendant which the defendant received and retained. The contribution need not be monetary. The benefit can be positive or negative. The benefit can be in the form of something that was provided to the defendant or something that relieved the defendant of an expense.

However, the benefit must be tangible: Kerr at para 38 . [ 43 ] The plaintiff must then demonstrate that he or she has suffered a deprivation that corresponded with the enrichment to the defendant. It must be shown that the plaintiff’s loss was material because the defendant’s benefit was at the expense of the plaintiff: Kerr at para 39. [ 44 ] If an unjust enrichment is established, the court next assesses whether there are any juristic reasons to deny the unjust enrichment claim. Once the first question is answered in the affirmative, the court moves to step two - assessing the nature of the remedy.

This involves determining whether the circumstances support a monetary award or a proprietary award. [ 45 ] After the first two steps are completed (determining whether there is an unjust enrichment and the nature of the remedy), Michaud v Boehme , 2020 ABQB 155 at para 17 [ Michaud ] explains step 3 - how to quantify the remedy: The next question is how to calculate the award. There are two options: (

i) compensating the plaintiff for his or her contribution ( quantum

meruit or, as the plaintiff refers to it, the ‘hired help’ approach); or (ii) determining the value of the assets that survive the relationship (value survived approach) and apportioning their value according to the parties’ contribution to the joint family venture. [ 46 ] It is in this third step of the analysis that the determination of whether there was a joint family venture occurs. Kerr acknowledges that the unjust enrichment analysis in domestic situations is often complicated because there has been a mutual conferral of benefits, which must be considered as part of the analysis.

However, this may be relatively straightforward if one party emerges from the relationship with a disproportionate share of the assets accumulated through the parties’ joint efforts, in which case the remedy is to share that wealth proportionate to the parties’ contributions. Determining proportionate contributions is not an exact science that calls for “the reasoned exercise of judgment in light of all of the evidence” rather than “a minute examination of the give and take of daily life” (para 102). 3.

Analysis of unjust enrichment claim [ 47 ] The parties’ evidence differed as to their respective contributions during the cohabitation period. Thais states that she gave up earning potential and a career in Ontario to move to Alberta for Lesley, offering her domestic and emotional support. Lesley states their contributions were roughly equal, and that Thais was fully compensated in her low-cost living arrangement. a. Household expenses [ 48 ] The parties intended to live together in the Edmonton Home, but no discussions took place with respect to ownership or sharing of expenses.

Thais recalls that Lesley mentioned her previous arrangement with a prior partner was to split expenses proportionately; Thais believed that once she had better cash flow, this would become their arrangement. However, this was not possible at the time they started living together because Thais had previously invested a significant portion of her resources into buying a home and a car in Ontario.

Thais also owned a condo in Vancouver at the time, which she was renting out. [ 49 ] Groceries, pet care, and other household and entertainment expenses for the couple were shared, but not in any prearranged fashion or in any proportional way. Thais worked from home and would run many errands during the day, including buying groceries and household items.

In addition, she paid for some travel expenses, hotel, restaurant meals, and entertainment. [ 50 ] Thais provided a rough calculation of her daily household expenditures totalling approximately $58,000, which she derived from a review of her credit card statements, although she states the amount does not account for all her contributions. [ 51 ] Lesley also purchased groceries and ran errands, as well as paid for vacation expenses. They had a housekeeper who would come in every 2 weeks, which they both paid for, but not according to a regular or equal schedule.

Lawn-work was eventually done by a contractor. [ 52 ] There was no accounting of their household expenses between them, nor was there any expectation to be reimbursed for the purpose of equalizing their contributions to the household.

They both pitched in whenever it was convenient and there is no way of figuring out exactly how much they each paid towards the overall household expenses. [ 53 ] All of the mortgage payments, along with utilities, taxes and insurance for the Edmonton Home (house-related expenses) were paid solely by Lesley, which she calculated to be approximately $192,000 over the course of their relationship.

Additionally, she paid approximately $200,000 towards the mortgage (principal and interest). [ 54 ] Thais did not contribute to the mortgage or any of the above house-related expenses for the Edmonton Home, but she solely continued to pay for all the house-related expenses for the Stouffville Home, including paying down approximately $163,000 of the outstanding mortgage. b. Division of labour [ 55 ] During the time they resided together at the Edmonton Home, both women testified that there was no formal division of labour and that each would clean up, tidy, do yard work, care for the dog, and cook meals.

However, I accept that Thais cooked more often because of her flexible schedule, did more household and pet care overall, handled household administrative paperwork such as managing the Sunlife benefits, and ran more daytime errands including buying groceries and taking the pets to vet appointments.

I have no evidence as to who performed laundry or snow removal tasks. [ 56 ] Given the above evidence, it is difficult to determine with any precision the parties’ relative contributions to the household generally, although as stated above, I accept that Thais took on an overall greater proportion of the responsibilities. [ 57 ] In terms of the more extraordinary tasks, I accept that Thais was a full-time caregiver for Lesley’s mom for a period of approximately 1 month in 2009 when she was terminally ill with pancreatic cancer, palliative, and living in their home.

They both travelled to Red Lake to pick up Lesley’s mom and returned to Alberta in a medevac-chartered flight. From then, it was Thais that took over the overall management of care (she had training in palliative care), which allowed Lesley to return to work. [ 58 ] Thais was a dedicated caregiver and took her tasks seriously, which likely made any productive work for her during this period of time difficult.

Lesley’s mom had a stroke at the home and had to then be transferred to hospital, where she passed away about 4 weeks later. [ 59 ] Despite Lesley’s assistance during the evenings and weekends, I have no doubt that the day-to-day care, even if home care and other visitors came by to lend a hand, was extensive. Such care went beyond the quality that hired-help could provide. Thais was known to Lesley’s mom, cared for her deeply, and made it her mission to provide exceptional comfort to her. [ 60 ] While Lesley testified she also took time off, the details were vague.

I prefer Thais’ evidence in this regard, which was clear and specific as to the daily

schedule and contributions by other people.

[61] When Lesley’s rescue dog Friday required 3 surgeries, Thais again took over the day-to-day management of the care requiredeach time. The first two surgeries were related to the dog’s diagnosis of bilateral hip dysplasia, and the third was an amputation due tocancer. While Lesley also helped during her time off, the majority of the rehabilitation instructions, including administering medicationand carrying the dog outdoors with a lift for hourly breaks, fell to Thais.

Moreover, the first surgery was organized during the summermonths so that Thais could dedicate more time (being a slower work period for her) to Friday’s recovery. The recovery period wasapproximately 6-8 weeks each time. Lesley denies that Thais did the majority of the care, but admits that she was only available in theevenings and weekends to assist. [62] Thais and Lesley vacationed in Red Lake, Ontario annually, where Lesley owned a house passed down from her parents. Thaisstates that she improved the house during those visits including adding eavestroughs and a roof over a shed.

Lesley does not dispute thiswork occurred (although there is a dispute as to the nature and size of the shed), but states that it was not significant in nature and in anycase, did not add value to the property. c. Career sacrifices [63] In addition to the above contributions Thais made to the household, I conclude that Thais suffered a deprivation from theforegone employment opportunities arising as a result of her move to Edmonton. Thais had worked on contract with IPC for consultingfees since about 2001 where she was the VP of their living benefits division.

She had ongoing clientele from whom she earnedcommissions through a corporation with another partner, but that corporation was wound down in 2003. [64] A review of Thais’ income from 2001 to 2015 reveals the following (see

Schedule A): - In 2002, Thais earned approximately $217,000 in total revenues from both the IPC contract and her other commission business. - In 2003, her gross revenues were $134,000 (noting that her last IPC payment of $10,000 per month was in September of that year). - In June 2003, Thais was offered a 1-year contract extension with IPC for $6,250 per month ($75,000 annually), which she declinedbecause she had decided to move by that point. - In 2004, her gross revenues were $55,750 (which Thais states included $20,000 of income splitting). She had a negative line 150income of ($16,877).

Although the IPC contract was for much less than she earned the previous year, it is clear that her drop in income in2004 is far more precipitous than she would have otherwise experienced had she taken the contract. - From 2005-2011, Thais total revenue was between roughly $80,000 and $100,000 (which Thais believes includes income splittinguntil 2010).

The line 150 income in those years was between approximately $2,000 and $52,000. - It is only in 2012 and the years that followed where Thais consistently earned gross revenues over $100,000 and had a line 150income over $64,000. [65] If, as Lesley argues, Thais continued to live and work in Ontario throughout 2004, there is no logical explanation for why shewould not have accepted the 1-year IPC contract, which would have put her financially further ahead.

I conclude that the reason shedeclined the IPC contract was because the parties had agreed to move together to Edmonton in November 2003 and Thais did not want tobe constrained for an entire year. [66] I also reject Lesley’s argument that the decline in Thais’ income was a result of the breakdown of the corporate partnership shepreviously had or the lack of effort after her move. As of 2002, the corporation had pivoted into new income streams and was not focusedsolely on commission sales.

The greater proportion of Thais income was being derived from the IPC consulting income. [67] With respect to Thais’ efforts after the move to Alberta, I find that she had pursued with great interest what she believed wereexcellent prospects of partnering with business contacts in Alberta, but that one deal fell through in November 2003, after the move, andanother was not a good fit.

It is also clear given her extensive business travels in 2004 and 2005 that she was doing her best to maintain herexisting Ontario and BC clients, including maintaining an office in both Ontario and Alberta, for the purpose of preserving existingOntario commission income while also building up a network of new business in Alberta. It was a struggle for a few years. I also notethat she was unable to get back to her pre-Alberta income levels for approximately 10 years – notably from the age of 52-62, which sheargues were her prime income-earning years. d. Analysis i.

Enrichment and correspondingdeprivation [68] Thais advances an equitable claim against Lesley and submits that her efforts to maintain the family home allowed Lesley tocommit resources to work and investments that would otherwise have been consumed on these domestic tasks.

This is the “nestfeathering” for uncompensated domestic labour identified in Peter v Beblow, (SCC), [1993] 1 SCR 980 at 993. [69] I will first consider if there was an enrichment on the part of Lesley through the efforts of Thais for which she can claim acorresponding deprivation (Kerr at para 38 and 42). [70] While Thais contributed more to the household tasks, she also clearly benefitted from not having to contribute to the mortgageor house-related expenses for the Edmonton Home. This allowed her to keep her home in Stouffville.

However, Thais agrees that thebenefit she gained from the Edmonton living situation resulted in an unjust enrichment to her and a deprivation to Lesley, entitling Lesleyto also share in the increase in value in the Stouffville Home. [71] Case law is clear that the provision of domestic services can constitute a benefit and a corresponding deprivation for the

purposes of establishing an unjust enrichment. Moen J in Rubin v Gendemann , 2011 ABQB 71 [ Rubin ] , for example, held: “ Alberta courts recognize that, in parallel with marriage, uncompensated domestic service labour in a common-law relationship can constitute an enrichment” (citation omitted).

See also: Thompson v Williams , 2011 ABQB 311 [ Thompson ] . [ 72 ] These are not the circumstances of a lengthy common-law relationship during which one party stayed at home and looked after all day-to-day household matters while the other party was able to pursue their career, increase their financial position, and accumulate wealth. [ 73 ] Nonetheless, Lesley received some benefit as a result of the financial contributions and services provided by Thais.

The household expenses incurred, including some of the cleaning services that she paid for, the cooking and house management, her ability to run various errands, her purchases of various household goods and services, her ability to care for Lesley’s dog Friday and Lesley’s mother for intense periods of time, and her physical labour in various tasks during their annual trips to Red Lake were tangible economic benefits that Lesley received and retained. [ 74 ] These financial contributions and domestic services provided by Thais, to a certain degree, relieved Lesley from the need to take time off work or hire help.

These were expenses and services that Lesley would have had to otherwise incur and provide herself: See: Rockey v Hartwell , 2016 ABQB 438 , at paras 160-162 [ Rockey ]. Moreover, this situation is clearly distinguishable from the situation in Rubin , where the Court found serious credibility issues and concluded that the plaintiff made minimal contributions to the housekeeping and domestic requirements, and most of those which were “contracted out” were paid for by the defendant (at para 251).

In this case, I am satisfied that the evidence of the contributions is accurate. [ 75 ] I find that overall, Lesley was enriched as a result of the financial contributions and domestic services provided by Thais.

The corollary of this finding in this case leads to the conclusion that Thais was also enriched as a result of not having to financially contribute to the expenses of the Edmonton Home (other than as mentioned above) in that it allowed her the necessary liquidity to continue to keep the Stouffville Home. [ 76 ] The domestic and other services that enriched Lesley also corresponded to a deprivation for Thais. Paying the grocery and other household expenses for the entire household, rather than just her share, deprived Thais of the additional money spent towards Lesley’s share.

Time spent caring for the Edmonton Home, Lesley’s mom, Lesley’s dog, and on the general errand running deprived Thais of time that she might have spent on activities that would have benefited herself solely. Similarly, the financial support that Lesley gave to Thais corresponded to a deprivation for Lesley that she would have otherwise used to enrich her own assets. ii. Juristic reason [ 77 ] Having concluded that the first two steps have been met (an enrichment and a deprivation), the third element requires the court to consider whether there is any juristic reason for the benefit and corresponding detriment.

That is, if there is no reason in law or justice for the defendant to retain the benefit bestowed by the plaintiff, then its retention is “unjust” in the circumstances and the defendant should not be able to keep that benefit: Kerr at para 40 . [ 78 ] Kerr made it clear that the analysis for juristic reason is not subjective. It must follow a two-part analysis. First, the court must look to established categories to determine if there is a reason to allow the enrichment without compensation.

Second, if there is no established reason then the court may look to the reasonable expectation of the parties or moral or public policy reasons to determine if recovery by the plaintiff should be denied: Kerr at para 43 . [ 79 ] There may be a juristic reason for the enrichment. The juristic reason would be either within the established category, “contract” or “gift” or found in the category of residual defences, namely, the mutual reasonable expectations of the parties.

This element of “mutual benefit conferral” should be assessed in these circumstances because it might provide relevant evidence of a juristic reason for the enrichment such as reciprocal benefits giving rise to no reasonable expectation of additional compensation for the services. [ 80 ] Although Cromwell J identified these “hallmarks” of a joint family venture in the context of his discussion of the remedy where the unjust enrichment consists of the retention by one party of wealt h generated by a joint effort during the relationship – a mutual benefit – he also held that ( Kerr at para 116 ): . . . mutual benefits may be considered at the juristic reason stage, but only to the extent that they provide evidence relevant to the parties’ reasonable expectations.

Otherwise, mutual benefit conferrals are to be considered at the defence and/or remedy stage. [ 81 ] Cromwell J further explained that in the context of the juristic reason analysis, where none of the “existing categories of juristic reasons is present,” and the onus has shifted to the defendant to show that th ere is, none-the-less, a juristic reason justifying the defendant’s retention of the benefit ( Kerr at para 124 ): . . . the mutual or legitimate expectations of both parties must be considered, and not simply the expectations of either the claimant or the defendant.

The question is whether the parties’ expectations show that the retention of the benefits is just. [ 82 ] In this case, there is no evidence that either provided the domestic and other services and financial contributions as a gift or under some contract for services for money. There is no juristic reason to deny either compensation for her respective services and money. [ 83 ] There is also no reasonable expectation of the parties or moral or public policy to deny recovery. “Natural love and affection” given during a relationship does not provide a juristic reason for the enrichment.

On an economic approach, there is no reason to distinguish domestic services from other contributions, because such services are of great value to the family or to the other partner. If the services are unpaid, this constitutes a deprivation: Kerr at para 42 .

This is because the law does not oblige either to perform any work or services for the other just because they are living together. [ 84 ] Although Thais did not stay home to raise a family, I find that she made sacrifices such as giving up her career in Ontario, rebuilding in Alberta, and supporting Lesley in various ways (domestic, financial, emotional, extended family) that allowed Lesley to focus on her career and build up her pension: see Ross v DeGuara , 2019 ABQB 602 [ Ross ] (although in Ross , the plaintiff stayed home to

raise a family). While it is difficult to know whether Lesley would have fared equally well without Thais, the facts point to an enrichment, a corresponding deprivation, and no juristic reason to deny compensation. 4.

Appropriate Remedy [ 85 ] In Ernst v Martins , 2019 ABCA 242 , at paras 32-34 (with emphasis added) , the Court outlined three steps to crafting the remedy once an unjust enrichment has been found to exist: i. determining whether the parties were engaged in a joint family venture; ii. determining “whether the claimant’s contribution to the joint family venture was sufficiently connected to the generation of wealth, or whether the parties’ ‘joint effort … led to an accumulation of assets generally’ … If so, then personal relief can be calculated on a value-surviving basis to the extent that the plaintiff’s contributions are connected to the defendant’s enhanced wealth.” iii. choosing a mechanism for calculating the award which should remedy any “unjust retention of a disproportionate share of assets accumulated during the course of … a ‘joint family venture’ to which both partners have contributed”. a.

Step 1: Were the parties engaged in a joint family venture? [ 86 ] With respect to step one above, four non-exhaustive factors were established in Kerr for determining whether a joint family venture exists: mutual effort, economic integration, actual intent, and priority of the family. [ 87 ] The determination that the parties are owed a remedy for the unjust enrichment of the other does not mean that either is entitled to share equally in the assets accumulated or that her efforts had a clear causal connection to the accumulation of the assets or to any proportion of the assets retained by the other. [ 88 ] A “joint family venture can only be identified by the court when its existence, in fact, is well grounded in the evidence.

The emphasis should be on how the parties actually lived their lives, not on their ex post facto assertions or the court’s view of how they ought to have done so”: Kerr at para 88 . In other words, a joint family venture is not a rebuttable presumption of law, the plaintiff has the onus of proof. [ 89 ] The parties’ relationship in this case, like many relationships, will have some aspects that suggest that they were involved in a joint family venture and other aspects that suggest that they were not.

The test is how the relationship should be viewed on balance, having regard to the above considerations identified in Kerr . [ 90 ] Kerr explains the link between the three elements of unjust enrichment and the joint family venture as follows at para 81 (emphasis added, citations omitted): … the basis of the unjust enrichment is the retention of an inappropriately disproportionate amount of wealth by one party when the parties have been engaged in a joint family venture and there is a clear link between the claimant’s contributions to the joint venture and the accumulation of wealth.

Irrespective of the status of legal title to particular assets, the parties in those circumstances are realistically viewed as “creating wealth in a common enterprise that will assist in sustaining their relationship, their well-being and their family” […]. The wealth created during the period of cohabitation will be treated as the fruit of their domestic and financial relationship, though not necessarily by the parties in equal measure. Since the spouses are domestic and financial partners, there is no need for “dueling quantum meruits ”.

In such cases, the unjust enrichment is understood to arise because the party who leaves the relationship with a disproportionate share of the wealth is denying to the claimant a reasonable share of the wealth accumulated in the course of the relationship through their joint efforts.

The monetary award for unjust enrichment should be assessed by determining the proportionate contribution of the claimant to the accumulation of the wealth. [ 91 ] Burrows J in Blondel v Kowalski , 2020 ABQB 306 [ Blondel ], recently expounded on the possible factors that contribute to the four hallmarks of a joint family venture (paras 54-56, citing Cromwell J in Kerr , at paras 90 to 99 ): 1.

Mutual Effort: Evidence that the parties worked collaboratively towards common goals such as evidence that: • the parties pooled their efforts and worked together as a team, • the parties decided to have and raise children together, • the parties maintained the relationship for a significant time, • the parties used their funds entirely for family purposes, • one party took on a greater proportion of domestic labour thereby freeing the other to pursue activities in the paid workforce. 2.

Economic Integration : Evidence of the degree of economic interdependence and integration that characterized the parties’ relationship, such as evidence that: • the parties had a joint bank account and used it as a “common purse”, • the parties shared expenses, • the parties amassed a common pool of savings, • the parties engaged in conduct which indicated a sense of collectivity, mutuality, and prioritization of the overall welfare of the family unit over the individual interests of its individual members,

Actual Intent : Evidence of the actual intentions of the parties, as they have expressed them, or as may be inferred from their conduct, such as evidence that: • the parties made a deliberate choice not to have their lives economically intertwined, • the parties accepted that their relationship was “equivalent to marriage”, or where they held themselves out to the public as married, • the relationship was stable and of significant duration, • the parties held title to property as joint tenants, • the parties showed little concern for the details of title and accounting of monies spent for household expenses, renovations, taxes, insurance, and so on. • the parties’ planned for property distribution on death – whether in a will or in a verbal discussion. 4.

Priority of the Family : Evidence of whether and, if so, the extent to which the parties gave priority to the family in their decision making, such as evidence that: • one or both parties relied on the relationship to their detriment for the sake of the family, • the parties proceeded on the basis of an understanding or assumptions about a shared future which may or may not have been articulated, • one or both parties made financial sacrifices for the welfare of the collective family unit, • one party relied on the success and stability of the relationship for future economic security, to his or her own economic detriment, as where one party: • left the workforce for a period of time to raise children, • relocated for the benefit of the other’s career, • forewent career promotion or educational advancement for the benefit of the family relationship, • accepted underemployment in order to balance the financial and domestic needs of the family unit. i.

Analysis of Joint Family Venture 1. Mutual effort [ 92 ] There is sufficient evidence to support the conclusion that Thais and Lesley worked collaboratively towards common goals. In my view, this was a relationship focused on mutual effort.

In addition to agreeing to move to Edmonton to further Lesley’s career, taking on typical “nesting” activities in the home including cooking, organizing social events, managing benefits, pet care, quotidian household tasks, and running errands, contributing to expenses ranging from groceries to golf to landscaping supplies without any expectation of reimbursement. [ 93 ] Secondly, this was a relatively long-term relationship with plans for the future. T he parties discussed what retirement would look like and planned to keep the Stouffville Home for that purpose.

I infer that the long-term benefit Lesley expected to receive resulted in her not being concerned about equalizing Thais’ contributions to the Edmonton Home. [ 94 ] This is similar to the situation in Michaud where Hunt McDonald J found in favour of an unjust enrichment claim and a family venture, partly on the basis that the parties planned for the long-term, including retirement, and shared their lives, including participating in activities, entertaining, and taking holidays together. 2.

Economic integration [ 95 ] The more extensive a couple’s economic integration, the more likely they will be considered to have engaged in a joint family venture: Kerr at para 92 . [ 96 ] Although the economic integration between Thais and Lesley was not in the traditional sense of setting up joint asset ownership, they intermingled their financial contributions to the assets in question. [ 97 ] The parties did not share bank accounts (other than a small joint account that was rarely used) or investments, but they shared debts (household expenses were shared and the line of credit used for some joint purposes). [ 98 ] The parties did not discuss finances often nor did they have access to each other’s accounts.

All property was kept separate and neither had direct or indirect access to the other’s income. They had some knowledge about each other’s financial position, but it was not complete; they prepared their tax returns with the same accountant and determined the amount of income splitting. Thais performed some investment services for Lesley, but did not have access to the line of credit statements. [ 99 ] However, they intermingled their household expenses.

Neither party accounted to the other for his or her expenditures; they spent their money as they saw fit for their own purposes and for each other, including groceries, wine, golf expenses, housekeeping, lawncare, and various random household expenses that arose from time to time.

[ 100 ] They each filed their income tax returns under the status of “common law” as of 2006. Although this income tax designation did not occur the very first year they were together, I have concluded that there are other significant factors that globally ground my finding that they began their cohabitation earlier than so declared on their tax returns.

I note that in Michaud , filing a tax return as “single” and not designating the other for the purposes of RRSP or pension benefits did not prevent the judge from an overall finding that there was a joint family venture (at para 51) [ 101 ] Further, Lesley admits that income splitting occurred in some of the years whereby she allocated a portion of the income from a personal corporation which received certain research funds (separate and apart from her employment income) to Thais. However, there is a disagreement as to what years this occurred in.

Thais has notes indicating that it occurred each year from 2004-2010; Lesley believes it only started in 2006 and occurred in a few of the years. [ 102 ] Another significant factor in this analysis is that Lesley immediately added Thais as a dependant on her employee health care plan, declared her a common law partner, and named her as beneficiary on her pension, RRSP account, and life insurance policy. [ 103 ] As previously noted, while incomes, credit card debts, assets and property were separate, the parties shared household expenses for the Edmonton Home.

In addition to regular grocery expenses, Thais also paid for a new battery for Lesley’s car (December 2003), tires for Lesley’s car (December 2005), Edmonton Journal subscription costs, dance classes (January 2004), landscaping supplies (in 2004), a car rack, dog sitting, some veterinarian bills, various hotel nights during their travels, restaurant meals, housecleaning, carpet cleaning, window blinds (August 2008), lighting, flooring, and plumbing.

Lesley also paid for similar expenses, but no evidence of the breakdown of her expenditures was provided (except for the mortgage and house-related expenses for the Edmonton Home). [ 104 ] Thus, this was not a case where each party was solely responsible for all of his or her own expenses. I distinguish this situation from the case of Bhachu v Brown , 2019 ABQB 150 , at paras 25 and 38 where Mr. Bhachu repeatedly raised his expectation that Ms. Brown would contribute to the house and rental property before she could have any claim to it. Moreover, any domestic or financial contribution by Ms.

Brown was found to be minimal, she had not experienced any interruption in her career, the relationship was relatively short (5 years), and there were no other indicia of economic integration. [ 105 ] Further, the use of the line of credit is telling.

While there is a dispute as to how much of the debt was a loan, which I will deal with in respect of Lesley’s counterclaim, the mere fact that Lesley allowed her line of credit to be used by Thais is a key factor ( contra Blondel at para 65 , where the defendant refused to obtain a line of credit for their mutual use). [ 106 ] Finally, contrary to the situation in Blondel at para 67 where the Court found that there was no evidence of the parties’ plans for property distribution on death, in this case, Thais and Lesley both attended in 2008 before a common acquaintance to create what is known as “mirror wills”: wills that are identical except that each leaves the same gifts to the other, and each names the other as executor.

These are commonly prepared for married or common law spouses. [ 107 ] The one exception, which would not change the classification as a mirror will, is that Lesley wished to bequeath the Red Lake Cabin to her mother. Nevertheless, both parties named the other as beneficiary of their entire estates.

They each named the same 10 alternate beneficiaries (in the event they did not survive the death of the other); of these, the first 7 individuals were family or friends of Lesley. [ 108 ] Thus, while it is not a complete intermingling of financial affairs, there is plenty of evidence of economic integration in this relationship. 3. Actual Intent [ 109 ] Intention may be expressed or inferred from conduct. [ 110 ] The parties agree that marriage was discussed early in their relationship.

They intended to marry, but no formal plans were made, partly because Alberta did not recognize same-sex marriages at the time. [ 111 ] Rings designated for an eventual wedding were purchased during a trip to Italy together in 2004. Initially they were placed in safekeeping, but then they both decided to wear them after Lesley’s mom’s passing in 2009. Thais wore hers on the traditional wedding finger, while Lesley wore it on another finger and eventually lost it.

The significance of this act of wearing the rings was minimized by Lesley, but I am satisfied that the purchase and then wearing of the rings they both purposely purchased for a wedding was symbolic of their intent. [ 112 ] Second, when Lesley started her job at the U of A, she made several important declarations: Thais was added as a beneficiary of her pension; a beneficiary of her life insurance policy; a dependant for the purposes of her health benefits; and a common-law declaration for the purposes of the U of A heath care and dental care policies.

Lesley testified at trial that the statements related to her common-law status were not truthful at the time they were made, evidenced by the fact that they had not lived together for the minimum three-year period. She states that she only added Thais to her employee benefits plan to help her out. [ 113 ] I find Lesley’s declarations to her employer immediately upon moving to Edmonton to be a significant indicator of the timing of the parties’ actual intent to live in a domestic relationship, despite Lesley’s testimony that the common-law declaration was false.

Applying a retrospective lens after the breakdown of the relationship, and perhaps motivated by some animus arising from this litigation, I appreciate that Lesley may interpret the situation differently. However, my global assessment of the evidence at the relevant time leads me to a conclusion that she intended those declarations to be truthful of her intent to be in a domestic relationship with Thais.

I found no other reason to believe that she was just being kind; she is a highly intelligent woman who would have turned her mind to the serious nature of these declarations. [ 114 ] In addition to these declarations, as discussed earlier, Lesley named Thais as a beneficiary of her RRSP, the parties prepared mirror wills, and their respective income tax returns described their marital status as “common law.” [ 115 ] Despite both being independent, educated women, they never discussed how expenses were to be shared, how property would be

owned, or what would happen in the event of a relationship breakdown.

I infer from this that they were both convinced in the long-term commitment of their relationship; keeping their assets separate was not a concern for them. [ 116 ] Although finances and assets were kept separate, and there was a repayment expectation for loans to Thais and for income tax consequences arising from the income splitting that benefitted Lesley, they organized the rest of their lives in such a way that they freely shared in their respective cohabitation assets. [ 117 ] This case is distinguishable from Johnson v Goyette , 2018 ABCA 353 , where the Court of Appeal upheld the trial judge’s finding that even though the parties held themselves out as a couple, “... the respondent was very exacting in the parties’ accounting and allotment of household expenses.” The trial judge also “... found the respondent intended to keep her wealth separate and communicated that to the appellant through her conduct.

This included the designations of single status on the respondent’s tax returns” (para 6). [ 118 ] Finally, as stated in Kerr : “The stability of the relationship may be a relevant factor as may the length of cohabitation (citations omitted)”: at para 95 . In Vanasse v Seguin , the appeal considered along with Kerr , a joint family venture was found where, among other facts considered, the couple had a 12-year relationship. In this case, the parties rushed into the relationship and cohabitation quickly. They held themselves out as a committed couple. Their relationship lasted approximately 13 years. [ 119 ] In

summary, the women lived a comfortable life as a couple, attended and hosted many social events together, travelled the world often, and intended to share in each other’s lives for the long-term. 4.

Priority of the family [ 120 ] Relevant to the question of whether the parties were engaged in a joint family venture is “whether there has been in some sense detrimental reliance on the relationship, by one or both of the parties, for the sake of the family”: Kerr at para 98 . [ 121 ] In assessing this factor, the court should consider financial sacrifices made by the parties for the welfare of the collective or family unit and whether the parties fell into the traditional division of breadwinner and homemaker.

A joint family venture may be identified where one party encourages the other to leave or delay entry into the workforce or defer or forego career opportunities for the benefit of the family life, undertakes a move for the other, and the breakdown of the relationship leaves the party in a worse position than they would otherwise have been had they not acted in this way to their economic detriment”: Kerr at para 99 . [ 122 ] Relevant here is the fact that Thais relocated to Edmonton to be with Lesley, to the detriment of her own career (unlike in Blondel at para 68 , where no such relocation occurred). [ 123 ] While the parties had no children, they were engaged to be married.

According to Thais’ friend, Patricia Randall, who testified during the trial and who visited the parties in Edmonton on three occasions, the parties were seen as a couple, a family unit. The parties themselves appeared to treat each other as if they were a couple.

They spent a lot of their leisure time together, playing golf frequently, travelling often, including to various work conferences, taking on active roles within their congregation of the United Church (they socialized with other congregants, one of which was introduced by Thais to Lesley and became her lawyer), entertaining friends, attending social events, integrating their extended families and friends into each others’ lives (including travelling annually to a remote cabin in Ontario, and including the same family and friends in their mirror wills), providing financial and personal contributions to each other’s pets and family members, and each other, in times of great stress and difficulty.

Lesley subsidized vacations without any expectation of a repayment. [ 124 ] I also noted both women were emotional when discussing the care required for their dog Friday and the passing of Lesley’s mom. Thais description of the situation was sincere and frank, without any emphasis on the burden it must have been. She described it as a privilege and I had a sense they were close and that it indeed was a special time for them.

The parties also both appreciated the care and support they gave each other during difficult life occurrences- e.g., when Thais’ mom was ill and Lesley supported her financially so she could reduce her stress and pay down her debt load, when Lesley was going through her mom’s illness and asked Thais to accompany her to Red Lake to transport her mom back in a medevac flight, when Lesley’s dog needed surgery, and during work conflict that included litigation against the U of A. They freely and unconditionally offered mutual support to each other that went beyond the nature of a friendship.

When Lesley’s mom passed away, Thais attended the funeral and was mentioned as part of the family in the obituary. I conclude that they were building a life together as evidenced by “pooling of effort and team work” in how they approached life events. [ 125 ] There is no doubt in my mind that Thais and Lesley were living as a family unit as of October 2003 for the reasons stated previously. b.

Step 2: To what extent are the plaintiff’s contributions linked to the defendant’s enhanced wealth? [ 126 ] Remedies for unjust enrichment are intended to “… require the defendant to repay or reverse the unjustified enrichment”: Kerr at para 46 . The Supreme Court in Kerr identified three typical remedies for where there has been a finding of an unjust enrichment, dependent on the type of situation presented: - where the defendant has been enriched by the provision of unpaid services by the plaintiff.

In such a case a monetary judgment for the value of the services provided is the appropriate remedy. - where there has been an unrecognized contribution by the plaintiff to the acquisition, improvement, maintenance or preservation of specific property. In such a case a proprietary remedy – an interest in the specific property of a value equal to the value of the plaintiff’s contribution – is appropriate. - where the contributions of both parties over time resulted in an accumulation of wealth which the defendant retained at the dissolution of the relationship.

This will be the case where “. . . the relationship can be described as a ‘joint family venture’, and the joint efforts of the parties are linked to the accumulation of wealth . . .” In such a case “. . . the unjust enrichment should be thought of as leaving one party with a disproportionate share of the jointly earned assets” ( Kerr at para 60 ). In this situation, the appropriate remedy is a

monetary award “assessed by determining the proportionate contribution of the [plaintiff] to the accumulation of the wealth” ( Kerr at para 81 ). [ 127 ] Kerr at para 7 makes it clear that: The second issue concerns the nature of the money remedy for a successful unjust enrichment claim. Some courts take the view that if the claimant’s contribution cannot be linked to specific property, a money remedy must always be assessed on a fee-for-services basis. Other courts have taken a more flexible approach.

In my view, where both parties have worked together for the common good, with each making extensive, but different, contributions to the welfare of the other and, as a result, have accumulated assets, the money remedy for unjust enrichment should reflect that reality.

The money remedy in those circumstances should not be based on a minute totting up of the give and take of daily domestic life, but rather should treat the claimant as a co-venturer, not as the hired help. [ 128 ] On the other hand, a proprietary remedy might be ordered in circumstances where a monetary remedy is inappropriate or insufficient: Kerr at para 50 .

In a case where the plaintiff shows that there is a substantial direct link or causal connection between his or her contributions and the acquisition, preservation, maintenance, or improvement of certain property, a constructive trust might be impressed for the plaintiff in proportion to the extent of his or her contribution to that specific property: Kerr at paras 53 . [ 129 ] While a plaintiff may be entitled to a monetary or proprietary remedy, in most cases, a monetary award is generally sufficient and is the remedy that should be considered first: Kerr at para 47 . [ 130 ] A defendant who has been unjustly enriched may be required to pay a monetary remedy calculated on the basis of the “value received” method ( quantum meruit or fee for service) or the “value survived” method (joint family venture). [ 131 ] The calculation of what would be an appropriate monetary remedy is often complicated in domestic claims for unjust enrichment where there has been a mutual conferral of benefits and as such, both parties’ contributions must be evaluated in order to fairly determine the appropriate remedy.

Furthermore, practical difficulties may arise in attempting to place a value on all the services each person has provided to the other over the course of their relationship: Kerr at paras 48-49 .

In such cases, it may be more appropriate to consider the overall increase in the couples’ wealth accumulated over the course of the relationship rather than the monetary value of services provided by each person: Kerr at para 49 . [ 132 ] In cases in which the unjust enrichment arises from one party retaining a disproportionate share of assets resulting from a joint family venture where both parties had contributed to the overall accumulation of wealth, the monetary remedy should be calculated on the basis of the share of those assets which is proportionate to the plaintiff’s contribution.

In such cases, there is a link between the “value received” and the “value surviving”: Kerr at para 60 .

A monetary remedy calculated on this basis requires a finding that the couple was engaged in a joint family venture and there is a link between the plaintiff’s contributions to the joint venture and the wealth generated: Kerr at paras 81 and 100 . [ 133 ] In assessing a money remedy, Courts are guided by the following considerations ( Kerr at para 81 ): … Irrespective of the status of legal title to particular assets, the parties in those circumstances are realistically viewed as “creating wealth in a common enterprise that will assist in sustaining their relationship, their well-being and their family life” ( McCamus , at p. 366).

The wealth created during the period of cohabitation will be treated as the fruit of their domestic and financial relationship, though not necessarily by the parties in equal measure. Since the spouses are domestic and financial partners, there is no need for “duelling quantum meruits”. In such cases, the unjust enrichment is understood to arise because the party who leaves the relationship with a disproportionate share of the wealth is denying to the claimant a reasonable share of the wealth accumulated in the course of the relationship through their joint efforts.

The monetary award for unjust enrichment should be assessed by determining the proportionate contribution of the claimant to the accumulation of the wealth. c. Step 3: Quantifying the remedy [ 134 ] One of the leading cases in Alberta is Lemoine v Griffith , 2014 ABCA 46 .

The majority concluded that the joint family venture is an all-or-nothing proposition, holding that “unless it can be demonstrated that the parties to a joint family venture have intended to place specific property outside the joint venture … it is not appropriate to consider a party’s contribution to individual assets”: para 35. [ 135 ] Second, in determining the proportionate contributions to the overall wealth accumulated, Kerr states at para 102 : The remedy is a share of that wealth proportionate to the claimant’s contributions.

Once the claimant has established his or her contribution to a joint family venture, and a link between that contribution and the accumulation of wealth, the respective contributions of the parties are taken into account in determining the claimant’s proportionate share. While determining the proportionate contributions of the parties is not an exact science, it generally does not call for a minute examination of the give and take of daily life.

It calls, rather, for the reasoned exercise of judgment in light of all of the evidence. [ 136 ] Although in this case, neither party contributed financially in a significant way to the other’s assets, the case law suggests that there is no requirement to demonstrate a direct contribution to a particular asset because it is sufficient to merely demonstrate that a contribution has been made to the overall value of the joint family venture: Lemoine at para 38 . [ 137 ] The primary assets of the parties at separation consisted of the following: - Edmonton Home; - Stouffville Home; - Lesley’s pension; - Savings, investments, RRSPs, life insurance; and

- Red Lake Cabin. [ 138 ] I find that the evidence establishes a link for both parties to the entire accumulation of wealth during the course of their relationship, except for the Red Lake Cabin, for the reasons stated below. [ 139 ] In particular, Thais’ financial and domestic contribution is greater than the factual situations described in the cases referred to by counsel, Thompson and Rockey (Thais did additional tasks that were different in nature and more difficult, e.g., care for Lesley’s mom and dog for intense periods of time). [ 140 ] Their relationship was of a longer duration, and although they did not amass common or joint pools of savings, they both contributed in the way they could to the household expenses and freely to each other’s personal expenses.

They declared each other beneficiaries in their respective wills and held themselves out as a couple. Thais’ put Lesley’s career first, even though it was not at Lesley’s insistence. As in Thompson , they were engaged in a joint family venture, albeit not as financially integrated as in many marriages. [ 141 ] In the result, both parties are entitled to an equitable 50% share of the value of the collective growth in the assets acquired by each of them during the course of their cohabitation. i.

Edmonton and Stouffville Homes [ 142 ] Thais made direct contributions to the preservation of the Edmonton Home, including landscaping, flooring, window coverings, and plumbing. She also made some indirect contributions to its preservation. Thais’ was responsible for her share of the domestic chores such as tidying, pet care, errands, and cooking. While Lesley did some household chores, I find that over all she was less involved in the household duties as a result of her work schedule.

I have no evidence as to what the relative financial contribution was as Lesley did not adduce any paid receipts, but I am satisfied that Thais contributed to the day-to-day expenses in a significant way, which enhanced the preservation or value of the Edmonton Home. [ 143 ] Further, it is not necessary that their contributions to the household be equal when their incomes were not. Thais contributed commensurate to her ability in the context of a family venture. [ 144 ] I find that Thais’ provision of a greater proportion of domestic services enabled Lesley to focus her attention on her career.

The test is not whether Lesley would have succeeded in the same manner without Thais’ support and contribution. Such success would have required replacement services through paid help or leaning on other friends and family.

I am satisfied that Lesley would not be in the position she is in but for Thais’ contributions. [ 145 ] While Thais received a benefit as well, given that her financial contributions towards the Edmonton Home were relatively small and she benefited from a lower interest rate through the use of Lesley’s line of credit, Lesley received a mutual benefit in that she will share in the increase in value in the Stouffville Home. As discussed, there is no evidence to indicate that Lesley’s contributions, financially and domestically, are linked in any way directly to the buildup of the Stouffville Home.

Nevertheless, the fact that she covered all mortgage, taxes, insurance, utilities, and other real estate transactional costs for the Edmonton Home freed up Thais’ cash flow to permit her to maintain the Stouffville Home. [ 146 ] In the result, both parties are entitled to an equitable 50% share of the value of the Edmonton Home and the Stouffville Home. ii. Lesley’s Pension [ 147 ] Mr. Pat Johnson, an actuarial, was qualified as an expert witness for the purpose of valuing pensions. He valued Lesley’s pension during the period of joint accrual November 1, 2003 (when Lesley joined the UAPP) to September 18, 2016.

He used two applicable dates: value on date without any reduction or date that she would attain as normal retirement age of July 1 st after attaining 65. He calculated the following values: Age 60.42 Age 65.17 Pre-tax value $785,532 $707,128 After-tax value $618,292 $530,417 [ 148 ] However, the present value will vary materially depending on the date Lesley actually retires. I accept as fact that she now plans to retire at 70. The value decreases as the retirement age increases since there are fewer years of payment.

This will require a re- calculation of the above values. [ 149 ] As a taxable asset, the after-tax value reflects tax rates payable and assumes the use of after-tax assets to pay a judgment. If a rollover is available, the parties would use the pre-tax adjusted number. [ 150 ] At the age of 69 (the age at which the UAPP pension must start to be paid out), the gross value would be $626,565 (the tax rate is increased 5% to 29%). The net value at 69 is therefore $444,869. As this calculation was a quick estimate done during Mr.

Johnson’s testimony, I would invite the parties to correct any mathematical errors. [ 151 ] For the same reasons stated above, I order 50% of the pension present after tax value of $444,869 to be paid to Thais ($222,435). iii. Savings, Investments, RRSP, Life Insurance

[ 152 ] Overall, Lesley was able to accumulate a significantly greater amount of money in savings and investments from her earnings during the parties’ cohabitation.

While Thais’ domestic contributions did not directly effect the acquisition or preservation of this money, as was the situation in Rockey and Thompson , her provision of those services overall, in addition to financial contributions towards a larger proportion of the groceries for the household, and her payment of animal, household, and cleaning expenses relieved Lesley of this cost, enabling her to save more money. [ 153 ] In these circumstances, I believe an equitable result would be that each party receive 50% of the total overall growth in these assets. iv.

The Red Lake Cabin exemption [ 154 ] This was a family home built in 1975 by Lesley’s late parents and passed on to her before the cohabitation period . The home was apparently given to her in 1992, although title remained in her mother’s name until her death. Lesley testified that she promised her mother that once the property sold, proceeds would be shared with her two brothers and another family friend who always helped maintain the property over the years.

The intent to keep this asset separate was demonstrated in her will: Lesley’s will was a mirror of Thais’ will, except for the Red Lake Cabin, which was bequeathed to her brothers. [ 155 ] It was important to Lesley that they made an annual trip to the Red Lake Cabin in Northern Ontario to visit with her mom after he father passed away in 1999. Thais went every year except one during the course of their relationship. This trip required 2 days on either end for travel, which was extensive in order to reach the remote location only accessible by boat from the town.

The home was a 1,000 square foot, 3 bedroom beach-front cedar cabin at the top of a hill with no running water or electricity. It was built on an unstable clay foundation and required significant remedial work. Some of the work performed during the visits was described by Thais’ as “no vacation.” It involved significant clearing of overgrown weeds (which Thais tended to do), lugging water and logs, installing eves-troughs one year (which required various trips by boat to town to acquire materials), and building a roof over a shed.

The two special projects (the eves-troughs and the roof) took 2-3 days during the overall 1 week stay.

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