Neddow v. Fobes, 2021 ABQB 905

Court of Queen’s Bench of Alberta Citation: Neddow v. Fobes, 2021 ABQB 905 Date: 20211112 Docket: FL03 60960 Registry: Edmonton Between: Forrest Todd Fobes Applicant - and - Lisa Laine Neddow Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice N.J. Whitling _______________________________________________________ 1. Introduction [ 1 ] This is an application by the Applicant, Forrest Todd Fobes, against the Respondent, Lisa Laine Neddow, for an Order summarily dismissing the Respondent’s claims against the Applicant for unjust enrichment and partner support on the basis of

limitations. [ 2 ] In brief overview, the Applicant argues that the two-year limitation period contained in s. 3(1) (

a) of the Limitations Act , RSA 2000, c L-12 began to run against the Respondent’s claims when the parties separated in August, 2017. Given that the Respondent’s claims were not filed by her former counsel until November 20, 2019, the Applicant argues that these claims must be summarily dismissed pursuant to rules 7.2 and 7.3 of the Alberta Rules of Court , AR 124/2010 . [ 3 ] In response, the Respondent argues that there exists a lack of clarity in the law of Alberta respecting the application of limitation periods to claims of this nature, such that a trial of these issues is required.

In the alternative, she argues that the applicable limitation periods did not start to run against her claims until, at the earliest, April, 2018, when the parties’ attempts at reconciliation proved unsuccessful. [ 4 ] I find that the Applicant’s application to summarily dismiss the Respondent’s unjust enrichment claim must be granted, and that the Applicant’s application to dismiss the Respondent’s partner support claim must be denied. [ 5 ] I find that all of the material facts respecting the Respondent’s unjust enrichment claim arose and were known to the Respondent no later than August, 2017, when the parties separated.

At that point in time, the parties’ common law relationship had ended, and the Applicant remained the legal owner of the property at issue. Since the Respondent’s Statement of Claim was not filed until November 20, 2019, there is no merit to the Respondent’s unjust enrichment claim, and that claim must be summarily dismissed. [ 6 ] Regarding the Respondent’s claim for partner support, I find that the Applicant has not established that there is no merit to that claim.

Given that the Applicant made certain monetary payments to the Respondent as late as June, 2019, it is not at all clear that the limitation period applicable to the Respondent’s claim for partner support began running more than two years prior to November 20, 2019, when her Application was filed. Any further reliance upon a limitations defence respecting the partner support claim would require a trial. 2. Brief Factual Background [ 7 ] The Respondent began working for the Applicant’s company in approximately 1999.

The parties began dating in approximately February, 2001, and began co-habiting in approximately July, 2002. The Respondent pleads that their relationship was one of interdependence. During their relationship, certain property was acquired including business property and a house in Mexico. The Applicant’s divorce from his previous relationship was granted in 2012, and beyond that date the parties filed their income tax returns as common law partners. [ 8 ] The parties physically separated in August, 2017, when the Respondent moved into a separate residence.

In July, 2018, the Applicant paid the Respondent $80,000 to buy a house. The Respondent stopped working for the Applicant’s company in September, 2018. However, she continued to receive wages from that company until June 16, 2019. Arguably, those wages were paid in lieu of partner support that would have otherwise been payable.

The parties disagree as to the extent to which their finances were integrated during the currency of their relationship. [ 9 ] On November 20, 2019, the Respondent’s former counsel filed both a Statement of Claim seeking a share of the relationship property and an Application seeking partner support. [ 10 ] The Applicant now applies for an Order summarily dismissing the Applicant’s claims on the basis of limitations. 3.

Application to Summarily Dismiss the Unjust Enrichment Claim 3.1 When does an unjust enrichment claim arise in the quasi-matrimonial context? [ 11 ] Since the law of Alberta does not accord the Respondent a statutory right to apply for a division of family property, [1] the Respondent’s claim for a share of the Applicant’s property is grounded in common law principles of unjust enrichment.

The leading case respecting this cause of action is Kerr v Baranow , 2011 SCC 10 . [ 12 ] It is fair to say that there exists some lack of clarity in the law of Alberta respecting the application of the Limitations Act to claims of this nature. More specifically, some controversy exists as to when the applicable limitation period begins to run against these claims.

In such cases as J ohansson v Fevang , 2009 ABQB 573 and Perehudoff v Christiano , 2013 ABQB 390 , it was held that this lack of clarity raised a complex issue which necessitated a trial. [ 13 ] In Kerr , Cromwell J. did not specifically address the point in time that an unjust enrichment claim arises in this context.

Although he did briefly state at paragraph 60 that t he unjust enrichment may occur “following the breakdown” of the relationship, it was unnecessary for him to identify the precise moment at which such a “breakdown” occurs. [ 14 ] The Alberta Court of Appeal’s statements on this subject have also been brief. In Milavsky v Milavsky , 2011 ABCA 231 at para. 26 , the Court noted that “[g]enerally speaking, a claim for unjust enrichment arises at the date of the parties’ separation”. Similarly, in Mustard v.

Brache 2006 ABCA 265 at para. 15 , the Court stated that a constructive trust, when awarded as a remedy for unjust

enrichment, may be back-dated to the “time of separation”, which implies that the claimant’s entitlement arises at that point in time. Inneither case did the Court of Appeal find it necessary to elaborate upon the meaning of the term “separation” in this context. [15] Of course, the term “separation” as used by the Court of Appeal in Milavsky and Mustard cannot be interpreted asencompassing any and every event of physical separation. Rather, that term must refer to the traditional concept of a separation whichmarks the termination of a “conjugal” or “common law” relationship.

The leading case on that subject is Hodge v Canada (Minister ofHuman Resources Development), 2004 SCC 65, where Binnie J. explained at paras. 41-42 that, unlike a legal marriage, a common lawrelationship ends upon the termination of “cohabitation” since “cohabitation is a constituent element of a common law relationship”.However, since “cohabitation” in this context is not synonymous with “co-residence”, not every physical separation will end thecohabitation.

Rather, Binnie J. agreed with the following statements by Morden J.A. in Sanderson v Russell (1979), (ON CA), 99 DLR (3d) 713 (Ont CA) at p. 716: ...Without in any way attempting to be detailed or comprehensive, it could be said that such a [common law] relationship has come to anend when either party regards it as being at an end and, by his or her conduct, has demonstrated in a convincing manner that thisparticular state of mind is a settled one.

While the physical separation of parties following “a fight” might, in some cases, appear toamount to an ending of cohabitation the test should be realistic and flexible enough to recognize that a brief “cooling-off” period does notbring the relationship to an end. Such conduct does not convincingly demonstrate a settled state of mind that the relationship is at an end. [16] Cases subsequent to Hodge have emphasized that the test adopted by Binnie J. consists of two elements. In Nagels vRobillard, 2019 ONSC 2662, Summers J. wrote as follows: 37 The decision in Hodge v.

Canada (Minister of Human Resources Development), also addressed when a common law relationshipends. The court said, “a common law relationship ends when either party regards it as being at an end and, by his or her conduct, hasdemonstrated in a convincing manner that this particular state of mind is a settled one.” [Emphasis added by Summers J.] [17] Similarly, in Gosbjorn v.

Hadley, 2008 BCSC 219, Gray J. wrote: [142] Using the analysis suggested in Hodge, parties cease to live and cohabit in a marriage-like relationship when either party regardsthe relationship to be at an end, and by his or her conduct, demonstrates in a convincing manner that this particular state of mind is asettled one. [Emphasis added by Gray J.] [18] Reading Kerr in light of Hodge, I conclude that where an unjust enrichment claim is grounded in a “common law”,“conjugal”, or “marriage-like” relationship, the “breakdown” of that relationship occurs “when either party regards it as being at an endand, by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one.” At that point intime, the relationship has ended, one of the parties owns a disproportionate share of the relationship property, and the cause of actionarises. [19] Substantially the same conclusion is reflected in the academic and out-of-province authorities on point.

In The Law ofRestitution, loose-leaf, release no. 25, July, 2020 (Toronto: Canada Law Book, 2013), at p. 3-58, §3:500.30, Maddaugh and McCamuswrite: ...Where the plaintiff seeks a division of matrimonial property on the basis of the cause of action recognized in Pettkus v. Becker, andrefined in Kerr v.

Barranow, the cause of action should not be considered to have arisen until the parties have either divorced or until theplaintiff has reasonable grounds to believe that the relationship has become permanently dissolved. [20] The above passage from The Law of Restitution was cited with approval by Huddart J.A. in Wilson v Fotsch, 2010 BCCA226 at para. 10 who wrote that an entitlement to a remedy for unjust enrichment in this context “will usually be no later than when theparties separate, divorce or when a plaintiff has reasonable grounds to believe that the relationship has become permanently dissolved”.And as Rosenberg J.A. put it in McConnell v Huxtable, 2014 ONCA 86 at para. 54: “I would think that ordinarily the claim should betaken not to have been discovered until the parties have separated and there is no prospect of resumption of cohabitation”. [21] In terms of the criteria to be considered in determining whether or not a particular event of separation has effectivelyterminated the parties’ cohabitation, and hence their common law relationship, Binnie J. in Hodge referred at para. 43 to Arsenault vCollier (2001), 2001 PESCTD 99 , 208 Nfld & PEIR. 117 (PEISCTD) at paras. 15-17 and Tanouye v Tanouye (1993), (SK KB), 117 Sask R 196 (QB) at paras. 32-38.

Those cases, in turn, consider the hallmarks of a “conjugal relationship”identified in the leading case of Molodowich v Penttinen (1980), (ON SC), 17 RFL (2d) 376 (Ont Dist Ct), which wasadopted in M v H, (SCC), [1999] 2 SCR 3 at para. 59, among many other authorities.

Although it was unnecessary forBinnie J. to apply these hallmarks to the circumstances in Hodge, he appears to suggest that their cessation signals the breakdown of acommon law relationship. [22] Given that the test in Molodowich focuses primarily upon the formation of a relationship as opposed to its dissolution,additional assistance may be derived from the authorities which address the point in time at which partners become separated with noreasonable prospect that they will resume cohabitation for the purposes of family law and taxation statutes.

A helpful overview of thatsubject area may be found in Al-Sajee v Tawfic, 2019 ONSC 3857 at para. 26. [23] In

summary, the “injury” for the purposes of a quasi-matrimonial claim for unjust enrichment occurs at the time of the“breakdown” of the relationship. In cases involving a common law or conjugal relationship, the breakdown occurs when “cohabitation”ceases. Since cohabitation is not synonymous with co-residence, a separation must be accompanied by an intention on the part of at leastone of the parties to end the relationship permanently. Whether or not such an event has occurred may be assessed in light of the criteriareflected in such cases as Molodowich and Al-Sajee. 3.2 Is the limitation period applicable to an unjust enrichment claim affected by the Adult Interdependent Relationships Act?

[ 24 ] I will deal next with the Respondent’s argument that Johansson v Fevang , 2009 ABQB 573 and the Adult Interdependent Relationships Act , SA 2002, c. A-4.5 (the “ AIRA ”) raise a triable issue respecting the commencement of the limitation period respecting her unjust enrichment claim. [ 25 ] The AIRA came into force on June 1, 2003, a few years after the commencement of the parties’ cohabitation. It may be that beyond a certain point in time, the parties became “adult interdependent partners” (“AIPs”) by operation of s. 3(1)(

a) of that statute. If the parties did become AIPs, then that status did not terminate until they became “former adult interdependent partners” upon the occurrence of the earliest of the events listed in s. 10(1) (a)-(

e) of the AIRA . Of those events, the one which potentially applies to the termination of the parties’ relationship is contained in s. 10(1) (b), which states: “the adult interdependent partners live separate and apart for more than one year and one or both of the adult interdependent partners intend that the adult interdependent relationship not continue”. [ 26 ] The Respondent now argues that since the parties did not become former AIPs until one year after their separation, the limitation period applicable to her claim did not begin to run until that point in time.

If correct, this would mean that her Statement of Claim was filed within the applicable two-year limitation period. [ 27 ] The same argument now advanced by the Respondent was accepted in Johansson .

In that case, Ouellette J. dismissed an application to summarily dismiss a quasi-matrimonial unjust enrichment claim on the basis of limitations since “ there is a triable issue as it relates to the meaning of the date of separation and also whether the provisions of the AIRA take precedence and impose a date of separation other than when the facts may disclose an actual physical separation occurred. ” [ 28 ] Johansson was followed by Jones J. in Perehudoff v Christiano , 2013 ABQB 390 who briefly concluded at para. 35 that: “ To the extent the Respondent’s action is based in constructive trust, the commencement of the applicable limitation period is a triable issue.” [ 29 ] In my view, the issue identified in Johansson is no longer a triable issue. [ 30 ] When Johansson was decided, the prevailing view was that a plaintiff advancing a quasi-matrimonial unjust enrichment claim was required to first establish the existence of a relationship recognized by the applicable statute.

In Wright-Watts v Watts , 2005 ABQB 708 , McMahon J. found that the plaintiff before him was entitled to succeed on her unjust enrichment claim only “[o] n proof of a common law relationship” (para. 8) as a “common law relationship” was then defined by the Domestic Relations Act , RSA 1980, c. D- 37, s. 1(2) (b). Consequently, he found, “ the threshold issue is whether the Plaintiff and the Defendant were in a pre-marital common law relationship or something less” (para. 10).

Similarly, the existence of an adult interdependent relationship for the purposes of the AIRA was treated as a precondition to recovery for unjust enrichment in Bowles v Beamish , 2008 ABQB 395 at paras. 8-13 . [ 31 ] Johansson , Wright-Watts , and Bowles were decided prior to Kerr . In Kerr , Cromwell J. did not hold that claims of this nature depend upon the existence of any particular form of statutory relationship.

Instead, he held that the three traditional elements of an unjust enrichment claim (an enrichment, a corresponding deprivation, and the absence of a juristic reason) will be satisfied where the parties’ relationship amounted to a “joint family venture”, the existence of which is to be assessed on the basis of four “headings”, being “ mutual effort”, “economic integration”, “actual intent”, and “priority of the family” .

These considerations were derived from Cromwell J.’s analysis of the common law, not upon any statutory requirements. [ 32 ] Since Kerr , it has been recognized that a plaintiff seeking recovery for unjust enrichment is not required to establish the existence of any statutory relationship. In Montgomery v Schlender , 2012 ABQB 332 , the parties to an unjust enrichment dispute had focused much of their evidence and arguments upon what they understood to be the threshold issue of whether or not they had been AIPs under the AIRA .

In finding that it was unnecessary for him to determine that issue, Burrows J. wrote: 25 However it is important, in my view, to recognize that nothing in this case turns directly on whether or not Ms. Montgomery and Mr. Schlender were in a relationship of interdependence as defined by the [ AIRA ]. A determination that they had the status of adult interdependent partners would not have a direct legal consequence in the context of Ms. Montgomery's claim. Her status as Mr.

Schlender's adult interdependent partner would not give her a right to a distributive share of property acquired by him during their relationship. 26 If Ms. Montgomery has a right to the remedy she seeks in this action, it will not be because of her status as an adult interdependent partner. Rather it will be because the situation is one of unjust enrichment. 27 I emphasize this point because I derived the impression from the way both counsel approached the evidence and argument that they each considered the crucial question in this case to be whether Ms. Montgomery and Mr.

Schlender were in an adult interdependent partnership. That, in my view, is simply not so. 28 The crucial question is whether the evidence establishes that Mr. Schlender was unjustly enriched. While some of the facts relevant to a determination of whether the parties were in an interdependent partnership are also relevant to aspects of the unjust enrichment inquiry, a determination as to whether their relationship was or was not an adult interdependent partnership is not relevant.

Such a determination is therefore unnecessary. [ 33 ] In addition to the legal developments reflected in Kerr and Montgomery , I note that Johansson was decided prior to Hryniak v Mauldin , 2014 SCC 7 and Weir-Jones Technical Services Inc. v Purolator Courier Ltd. , 2019 ABCA 49 . Those cases have implemented a “shift in culture” respecting the resolution of litigation, and encourage greater resort to

summary procedures where fairness permits. [ 34 ] Applying the authorities examined above, I conclude that the effect of s. 10 of the AIRA upon the Respondent’s unjust enrichment claim does not raise a serious issue for trial. The Respondent’s cause of action is governed by the common law principles

reflected in Kerr and not by the requirements of the AIRA. By operation of those common law principles, the “injury” for which theRespondent now seeks a remedial order occurred (if at all) at the time of the “breakdown” of the relationship. At that point in time, theRespondent had the ability to sue the Applicant for his retention of any disproportionate share of the relationship property. Her ability todo so was not affected by the AIRA.

Although the parties may not have become “former adult interdependent partners” for the purposesof the AIRA for another year, that circumstance did not suspend the Respondent’s right of action, nor the commencement of theapplicable limitation period. 3.3 When will a common law relationship be effectively continued or re-commenced by reconciliation efforts? [35] The Respondent also argues that the parties’ separation in August, 2017, was merely a physical separation and not aseparation which brought about an end to their common law relationship.

She argues that since the parties made efforts towardsreconciliation as late as April, 2018, the applicable limitation period did not commence until after that date. In response, the Applicantargues that there was never any prospect of reconciliation beyond the separation in August, 2017. [36] Among many other subjects, Chappel J.’s analysis in Al-Sajee addresses the point in time at which it may be said that thereexists “no reasonable prospect of reconciliation” for the purposes of the Family Law Act, R.S.O. 1990, c. F-3.

Although that statute is ofcourse inapplicable to the present application, I find the following principles to be of assistance in the resolving the parties’ presentarguments respecting reconciliation: 26 …[T]he relevant principles and considerations that emerge from the case-law can be summarized as follows 9. …Parties who are generally living separate lives in separate homes may be found to be living separate and apart despite occasionalincidents of sexual intimacy and discussions of reconciliation (Greaves [v. Greaves, 2004 CarswellOnt 2408 (S.C.J.)], at para. 36; S.(K.L.), [2012 NBCA 16] at para. 23; Wells. v.

King, 2015 NSSC 232 (S.C.), at para. 23)… 13. …In assessing any contacts, the court should consider whether the events were evidence of an ongoing relationship or reconciliationor simply “rare moments of friendliness or civility” (Torosantucci [v. Torosantucci, (ON SC), 1991 CarswellOnt 262(U.F.C.)]; Daley v.

Gowan, 2015 ONSC 6741 (S.C.J.), at para. 66). […] 37. …Half-hearted suggestions or discussions about possible reconciliation will not necessarily move the valuation date forward in theabsence of sincere action by the parties to put their relationship back on track (Strobele [v Strobele, 2005 CarswellOnt 9201 (SCJ)], atpara. 32). As Beckett J. stated in Torosantucci, a reasonable prospect of resumption of cohabitation “must be more than wishful thinkingon the part of either party. There must be more than residual affection that may linger by one or both of the parties.

The Act does notspeak of a “prospect” of reconciliation but a “reasonable prospect.” He added that in order to find that there is a reasonable prospect ofresumed cohabitation, “there must be some indication or step taken by both of them in that direction” (see also Rosseter [v. Rosseter,2013 CarswellOnt 17606 (S.C.J.)], at paras. 57-58; Tesfatsion, at para. 56). A sincere desire on the part of one party to resumecohabitation and efforts by that party to advance this objective will not generate a reasonable prospect of resumed cohabitation if theother party has no mutual interest in exploring this possibility.

In the words of Corbett J. in Strobele, at para. 32, “groundless hopes ofreconciliation should not extend the valuation date where one spouse has been clear in his or her intentions to end the relationship” (seealso O’Brien [v O’Brien, 2013 ONSC 5750], at para. 50). 3.4 Application of legal principles to the facts of this case [37] I will now apply the legal principles summarized above to the circumstances of this application in accordance with theguidelines established by the Alberta Court of Appeal in Weir-Jones. [38] As stated in Weir-Jones at para. 47, there exists a threshold burden upon the Applicant to establish that there is no merit to theApplicant’s unjust enrichment claim.

This requires him to establish on a balance of probabilities that the material facts identified in s.3(1)(a)(i)-(iii) of the Limitations Act arose more than two years prior to November 20, 2019, when the Respondent’s Statement of Claimwas filed. If that burden is met, the Respondent must put her best foot forward to demonstrate from the record that there is a genuineissue which requires a trial. [39] The parties have focused their submissions on the requirement of s. 3(1)(a)(i), being “that the injury for which the claimantseeks a remedial order had occurred”.

The parties are in substantial agreement that the relevant “injury” occurred at the time of theparties’ “separation”, but the parties disagree as to when that separation occurred. The Respondent has not argued that any of the materialfacts respecting her claim were not discoverable at the time of their occurrence. She also has not argued that the requirements of s.3(1)(a)(ii) or (iii) did not arise at the time of separation. [40] As explained above, the parties’ separation occurred at the time that their cohabitation ceased.

Separation in this context refersto living apart, combined with an intention on the part of at least one of the parties to end the relationship. Beyond that point in time, theApplicant enjoyed ownership and possession of the relationship property, and any entitlement on the part of the Respondent to sue for ashare of that property had crystallized. [41] The time of separation is a subject specifically addressed in the parties’ pleadings. The Respondent’s Statement of Claim

states: 3. The Plaintiff and Defendant co-habituated together as common-law husband and wife, respectively, between July 2002 up to the date of separation in August 2017, in the City of Leduc in the Province of Alberta. The Plaintiff states that at all times between she and the Defendant lived in a relationship which was analogous to a marriage relationship. […] 12. On or about August, 2017, the parties commenced to live separate and apart and have continued to do so up to the date of commencement of this action.

There is no possibility of reconciliation between the parties. [ 42 ] In his Statement of Defence filed on January 29, 2020, the Applicant agreed with the date of separation pleaded in the Statement of Claim: 4. The Defendant admits that the parties began living separate and apart in August 2017 as set out at paragraphs 3 and 12 [“Separation”]. The Defendant admits that they began cohabiting in July 2002. […] 8. In further response to paragraph 12, the Defendant admits that that [ sic ] there is no possibility of reconciliation between the parties. 9.

In further response to paragraph 13, the Defendant admits that he has been residing in the Defendant’s Home since Separation while the Plaintiff has resided elsewhere. [ 43 ] In his affidavit in support of this application, the Applicant refers to the above pleadings and affirms “that in August 2017, we ceased cohabiting, and have not cohabited since that date.” He also states: “No possibility of reconciling existed when we concluded our cohabitation in August 2017.” [ 44 ] The remaining evidence relied upon by the Applicant on this subject is not of great significance respecting the date of separation.

The Applicant states that he became romantically involved with another person, but not until the summer or fall of 2018. He also states that he believes that the Respondent had been romantically involved with another person since before separation, but that fact is denied by the Respondent in her own affidavit. [ 45 ] In response to the Applicant’s evidence and arguments, the Respondent has not made any formal request to withdraw the apparent admissions in her Statement of Claim, but argues that those admissions merely refer to a physical separation, and not a separation that terminated the relationship.

In her responding affidavit, she states that around the first week of August, 2017, she packed a small duffle bag and proceeded to stay at one of her mobile homes in Leduc. However, she continued to work for the Respondent’s company until late 2018, and continued to receive paychecks in lieu of support until June, 2019. [ 46 ] The Respondent also states in her responding affidavit that “there were periods of attempted reconciliation”.

The only specificity provided respecting reconciliation is a statement that she travelled to Phoenix during the week of April 12 to 18, 2018, and visited the Applicant “to see if we were able to reconcile the relationship”. In support of this statement, the Respondent exhibits a number of text messages she sent to someone in Edmonton during that week. Those text messages appear to confirm the time period that she was with the Applicant in Phoenix, but they do not themselves contain any information respecting any attempts at reconciliation.

No additional detail is provided respecting the parties’ attempts at reconciliation during that period. [ 47 ] Having considered all of the pleadings and evidence, I conclude that the Applicant has established on a balance of probabilities that the parties separated, and that their relationship terminated in August, 2017. He states that the parties ceased cohabiting in August, 2017, and that no possibility of reconciling existed at that point in time. [ 48 ] Further, the admissions in the Respondent’s Statement of Claim do not refer merely to a physical separation.

Rather, they refer to the parties living “separate and apart”, which wording signifies a settled state of affairs. [ 49 ] I find further that the Respondent’s evidence in response does not raise a serious issue for trial on either the facts or the law. The connections between the parties that persisted beyond August, 2017, such as the Respondent’s ongoing employment with the company, do not detract from the occurrence of the separation.

The Respondent’s sparse evidence respecting attempts at reconciliation does not contain sufficient factual detail to establish any realistic prospect of reconciliation at any time after August, 2017. Significantly, that evidence does not indicate any intention on the part of the Applicant to resume the relationship. [ 50 ] Given that the parties separated in August, 2017, and given that there are no issues raised with respect to discoverability, the Respondent’s cause of action arose at that point in time. By operation of s. 3(1) (

a) of the Limitations Act , her cause of action for unjust enrichment became statute barred two years later in August, 2019. Given that her Statement of Claim was not filed by her former counsel until November 20, 2019, there is no merit to her claim for unjust enrichment. [ 51 ] The Applicant’s application to summarily dismiss the Respondent’s unjust enrichment claim is granted. 4. Application to Summarily Dismiss the Partner Support Claim [ 52 ] By Application filed November 20, 2019, the Respondent seeks partner support pursuant to the Family Law Act , RSA 2000, F-4.5 (“ FLA ”). The Applicant argues that this claim is also barred by s. 3(1) (

a) of the Limitations Act since any obligation on the part of the Applicant to support the Respondent arose even before the time of their separation when they first became AIPs ( FLA s. 56).

[ 53 ] Considerable uncertainty exists in Alberta respecting the applicability of the Limitations Act to claims for partner support pursuant to the FLA . That issue was examined by Justice Graesser in Thalheimer v Chalut , 2021 ABQB 19 , and by Justice Feth in Blaney v Murphy , 2020 ABQB 199 . [ 54 ] I do not find that it is necessary to resolve this difficult issue in the context of the present application. Assuming that the Respondent is entitled to partner support, her situation did not warrant bringing a claim until the Applicant had failed or refused to provide such support.

The parties agree that the Applicant paid the Respondent a significant amount of money after the termination of their relationship. This money included wages from the Applicant’s company until June, 2019, despite the fact that the Respondent had stopped working for the company in the fall of 2018. There was also a payment $80,000 in July, 2018, for the purchase of a house. If some or all of those payments are properly characterized as partner support, then the Applicant did not fail or refuse to provide partner support until as late as June, 2019.

These considerations at least raise a triable issue. [ 55 ] For these reasons, the Applicant’s application to summarily dismiss the Respondent’s claim for partner support is denied. 5. Conclusions and Order Granted [ 56 ] The Applicant’s application to summarily dismiss the Respondent’s claim for unjust enrichment is granted. [ 57 ] The Applicant’s application to summarily dismiss the Respondent’s claim for partner support is denied. [ 58 ] Should either party seek costs, they may address costs in writing within 30 days of the date of this decision. Heard on the 23 rd day of July, 2021.

Dated at the City of Edmonton, Alberta this 12th day of November, 2021. N.J. Whitling J.C.Q.B.A. Appearances: Ken Proudman for the Applicant Collista Coles for the Respondent