SS Applicant And: BH Respondent Corrected Judgment : The text of the original judgment was corrected on June 3, 2019 v. a description of the correction is appended., 2019 NLSC 110

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR FAMILY DIVISION Citation : SS v. BH , 2019 NLSC 110 Date : May 24, 2019 Docket : 201502F0215 Between: SS Applicant And: BH Respondent Corrected Judgment : The text of the original judgment was corrected on June 3, 2019 and a description of the correction is appended. Before : Justice Alexander MacDonald Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: February 19 - 23, 2018; February 26 and 28, 2018; March 1, 2 and 5, 2018; January 28, 29 and 30, 2019. Appearances: Nicholas J.G. Avis, QC Appearing on behalf of the Applicant Jean V. Dawe, QC Appearing on behalf of the Respondent

Authorities Cited: CASES CONSIDERED: Gostlin v. Kergin (1986), (BC CA), 1 R.F.L. (3d) 448, 3 B.C.L.R. (2d) 264, (B.C.C.A.); M.v. H., (SCC), [1999] 2 S.C.R. 3, 171 D.L.R. (4th) 577; Molodowich v. Penttinen (1980), (ON SC),17 R.F.L. (2d) 376, 2 A.C.W.S. (2d) 486 (Ont. D.C.); Rushton v. Rushton (1968), (BC SC), 1 R.F.L. 215, 2 D.L.R. (3d)25 (B.C.S.C.); Dupere v. Dupere (1974), (NB KB), 19 R.F.L. 270, 9 N.B.R. (2d) 554 (NBCA); Field v. McLaren,2009 MBQB 118; Gibbons v. Kowal, 2006 MBQB 11; L. (R.) v. B. (L.A.), 2013 PESC 24; Zacharias v. Zacharias, 2015 BCCA 376; H.(J.E.) v. H. (P.L.), 2014 BCCA 310; Dymon v.

Bains, 2013 ONSC 915; Fisher v Fisher, 2008 ONCA 11; Kerr v. Baranow, 2011 SCC10; MacKinnon v. MacKinnon (2005), (ON CA), 199 O.A.C., 353, 256 D.L.R. (4th) 385 (Ont. C.A.); S. (D.B.) v. G.(S.R.), 2006 SCC 37; Nadeau v. R., 2003 FCA 400; Phillips v. Phillips (1981), (ON SC), 10 A.C.W.S. (2d) 468, 24R.F.L. (2d) 139 (Ont. Co. Ct.); Pecore v. Pecore, 2007 SCC 17; Nicholas v. Edgecombe Estate, 2018 NLSC 176; Bath v. Bath, 2002NFCA 21; Hiscott v. Hall, 2015 NLCA 1; Martin v. Martin (1998), (NL CA), 168 Nfld. & P.E.I.R. 181, 42 R.F.L.(4th) 251 (Nfld. C.A.) STATUTES CONSIDERED: Family Law Act, R.S.N.L. 1990, c.

F-2; Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.); Judgment InterestAct, S.N.L. 1996, c. J-1.1. RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D. TEXTS CONSIDERED: Brenda Cossman & Bruce Ryder, “What is Marriage-like Like? The Irrelevance of Conjugality”, (2001) 18Can. J. Fam. L. 269. OTHER: Spousal Support Advisory Guidelines REASONS FOR JUDGMENT MacDonald, J.: INTRODUCTION [1] BH and SS were in a relationship for 18 years. They never married or had children. [2] SS was born in February of 1967 and is now 52 years old. She spent most of her life in St. John’s.

She completed high school.She started work with the Bank of Montreal in 1991. Over the years, she worked her way up to an administration position. [3] BH was born in October of 1963 and is now 55 years old. He, like SS, lived most of his life in St. John’s. He completed highschool. He started work with a commercial diving contractor. He qualified as a commercial diver in his own right in 1992. [4] BH started SFDL in 1996. He is the sole shareholder of the company and its controlling mind.

Through his efforts, thecompany grew and prospered with the development of the Newfoundland and Labrador offshore oil industry. It now has sales in themillions of dollars. [5] The couple lived in three houses. From 1996 to 2006, they lived in a house in St. John’s owned solely by SS. From 2006 to2014, they lived in a jointly owned house in St. Philip’s. From February 2010, they also lived in a house owned by SFDL in Bradenton,Florida. [6] They eventually came to despise each other, which lead inevitably to the irrevocable breakdown of the relationship. SS lefttheir home on July 4, 2014 when she was 47 years old.

I am to decide the financial consequences of the breakdown. [7] SS claims that during most of their relationship and until July 4, 2014, they were partners under the Family Law Act,R.S.N.L. 1990, c. F-2 (“Act”). [8] She claims partner support pursuant to

section 39 of the Act. She seeks one-half of the equity and furnishings in the St.Philip’s house because she is a joint owner. She claims ownership of three vehicles used by her, but owned by his company, SFDL. Twoof these vehicles are in her possession. [9] BH says that they were not partners during those years. They were friends who cohabitated. He says that SS is not entitled to

partner support. However, BH says that if she was his partner, the relationship ended before she physically left their house on July 4,2014 and certainly before March 23, 2013. He says that this would mean she did not commence her action for support within thelimitation period. [10] He claims that SS’s joint interest in the St. Philip’s house is subject to a resulting trust in his favour because she did not pay forthat interest. He says that the St. John’s house is subject to a resulting or constructive trust to the extent that he paid for capital andoperating costs of the house.

He also seeks damages arising out of SS wrongfully retaining possession of the two vehicles. [11] I am to decide: (

a) were BH and SS partners and, if so, when did they separate? (

b) is SS entitled to partner support and, if so, for what amount and duration? (

c) does BH have: (

i) a resulting or constructive trust over SS’s interest in the St. John’s house because he contributed to both capital and operatingcosts? (ii) a resulting trust over SS’s joint interest the St. Philip’s house because she did not pay for the interest? (

d) did SFDL give three vehicles to SS? [12] I find that: (

a) SS and BH were partners within the meaning of the Act for 18 years until they separated on July 4, 2014; (

b) BH shall pay SS partner support of $8,285.00 a month for 17 years starting on April 1, 2015; (

c) BH shall pay SS $270,222.23, one-half the agreed value of the St. Philip’s house and furnishings. I dismiss BH’s claim to theSt. John’s house; and (

d) With respect to the couple’s claims over the vehicles: (

i) BH gave SS the Cadillac SRX. BH shall cause SFDL to transfer all of its legal and beneficialtitle to SS. BH shall pay SS for her loss of use of the vehicle. I order that this loss be fully set-off by payments made by SFDL for theresidual due under the lease; (ii) BH gave SS the Saturn Sky convertible. BH shall cause SFDL to transfer all of its legal andbeneficial title to SS. BH shall pay SS $15,000.00 for her loss of use for the vehicle; and (iii) I dismiss SS’s claim to the Chrysler Sebring. [13] I now discuss whether the couple were partners and, if so, when they separated. WERE BH AND SS PARTNERS AND WHEN DID THEY SEPARATE? [14]

Section 35 of the Act defines a partner as one of two persons who cohabitated in a conjugal relationship outside of marriage fora period of at least two years. SS claims that they were, while BH claims they were not. SS must establish this fact on a balance ofprobabilities. [15] I find that the parties were partners for 18 years from the time they moved in together in 1996 until they separated on July 4,2014. I now discuss why I made this decision. [16] The definition of conjugal relationships is complex. Brenda Cossman & Bruce Ryder discussed it in, “What is Marriage-likeLike?

The Irrelevance of Conjugality”, (2001) 18 Can. J. Fam. L. 269. On page 7, the authors state that there are two prevalentapproaches to these relationships. [17] The first approach finds marriage equivalence in the voluntary assumption of long-term commitments to mutual economicsupport. The only essential, defining feature of a marital relationship is the voluntary assumption of mutual support obligations “untildeath do us part”.

They called this the “subjective equivalence” test. [18] The second approach finds marital equivalence in a bundle of factors that together indicate the existence of an emotionally andeconomically interdependent relationship. The focus of the inquiry is on the objectively observable features of the relationship. Theycalled this the “functional equivalence” test. [19] The leading case on the subjective equivalence test is the British Columbia Court of Appeal decision in Gostlin v. Kergin(1986), (BC CA), 1 R.F.L. (3d) 448, 3 B.C.L.R. (2d) 264, (B.C.C.A.).

Lambert, J.A. highlights key elements of thisapproach when he says, “independence should be a choice” and that the law “should not force them into mutual commitments that theydo not want.” [20] The test can be summarized as, has the couple voluntarily embraced the permanent support obligations set out in the relevantlegislation? [21] If the couple’s intent is not apparent, the court should consider a number of objective factors with perhaps the most important

of all being, did one of them surrender financial independence and become economically dependent on the other, in accordance with amutual arrangement? [22] Cossman & Ryder acknowledge that the subjective equivalence test has little support outside of British Columbia and Yukon.Importantly, the Supreme Court of Canada in M. v. H., (SCC), [1999] 2 S.C.R. 3, 171 D.L.R. (4th) 577, did not refer tothe subjective equivalence test when it adopted the reasoning in Molodowich v. Penttinen (1980), (ON SC), 17 R.F.L.(2d) 376, 2 A.C.W.S. (2d) 486 (Ont.

D.C.), which in turn adopted the functional equivalence test. [23] Molodowich directs a court to consider function attributes consolidated under seven headings 1) shared shelter, 2) sexual andpersonal behaviour, 3) services, 4) social, 5) societal perceptions of the couple, 6) economic, and 7) children. [24] The Court provided a comprehensive list of the generally accepted characteristics of such a relationship in paragraphs 18 to 40.Not all of these elements are required. The court emphasizes that each case turns on its complex matrix of facts and that no one factor isdeterminative.

I am not to give particular weight to any one of the factors, including fidelity or sex. [25] The Supreme Court adopted Molodowich almost 20 years ago and our society has evolved since then. Many people formrelationships. They may or may not conform to an idealized version of a common-law relationship. Who is to say that fidelity isimportant in such relationships? Who is to say their feelings for each other are consistent with an idealized version of partners? Who is tosay whether it matters if they eat meals together? Who is to say whether they should share a bed or sex?

Who is to say that each partyshould give gifts to each other on special occasions? [26] Whether BH and SS are partners is only relevant to me because one seeks post-separation financial support from the other. Iwould apply the subjective equivalence test. However, the Supreme Court of Canada has not accepted this view, and I am obligated toapply the functional equivalence test. [27] I now decide whether BH and SS were partners. [28] Most witnesses, including SS and BH, referred to the times before and after the parties moved into the St. John’s house in1996, before and after the parties moved into the St.

Philip’s house in 2006, and before and after the parties acquired the Bradentonhouse in February 2010. I shall do so in the absence of more precise dates. Relationship before the St. John’s House [29] I find that before the St. John’s house, the parties were not partners. I now discuss why I made this decision. [30] The parties testified that they met in 1988 and began, what they both considered, a regular dating relationship. SS lived in theSt. John’s house. BH lived with his parents.

They did not sleep together during this time, but they were sexually active. [31] Two people were constant witnesses to the couple’s relationship. The first is SS’s sister, GS. She is in a common-lawrelationship with JM. JM and GS were close family friends of the couple and were an important part of their lives. They spent manyChristmases, New Year’s Eves and holidays together. GS lived with the couple in 2002 for two years. [32] The other is JH, BH’s brother, business partner and best friend. He visited the couple weekly when they lived in the St.

John’sproperty and every day while they lived next door to him in the St. Philip’s property. [33] I agree with the testimony of GS when she described the relationship as “a typical dating couple”. I conclude that before the St.John’s house, the parties were not partners within the meaning of the Act. [34] I now turn to the time after the St. John’s house. Relationship after the St. John’s House [35] I find that after the St. John’s house, they were partners within the meaning of the Act. I now discuss why I made this decision. [36] In 1996, BH moved into the St.

John’s house following a break-in attempt at the residence. The parties initially slept together,but shortly after the move, SS asked him to move into another bedroom because of his snoring. The parties disagreed as to whether thiswas a reasonable request. The fact remains, they ceased, except on rare occasions, sleeping together. BH remembers vividly that one ofthe few times they slept together was the night their beloved, ailing family dog died in their arms. [37] BH testified that they had sex around five times per month.

SS generally confirms his account of their sex lives, but recalls thesex was more frequent. [38] SS retained legal ownership to the St. John’s house and each maintained their own careers. The parties spent holidays together.They shared expenses of the St. John’s house. SS made the mortgage payments, while BH paid most other expenses. SS had the primaryresponsibility for cooking meals, doing light housework and looking after the family pets. BH hired and paid for cleaning staff. [39] SS testified that she and BH became engaged while at the St. John’s house.

Although she cannot remember the year thisoccurred, she linked it to the date on which she said BH gave her an engagement ring. [40] BH said he gave her the ring sometime before 2002, but that it was not an engagement ring. The parties agree that he neverasked SS to marry him. His view is that they should only marry if they are having children. JH heard this view from him on manyoccasions. [41] BH testified that others frequently introduced the couple as fiancés and he did not correct this statement. JH and GS testifiedthat they introduced the couple as boyfriend and girlfriend after the alleged engagement.

GS always considered BH as her brother-in-law.

[ 42 ] I conclude that SS and BH never discussed plans to get married and they were not engaged. However, I do believe the ring was a symbol of their commitment to each other, and their friends and family saw it as such. [ 43 ] The parties shared shelter and had sex. They socialized with friends and family, and travelled together. They shared living expenses. They exchanged a commitment ring. They let others believe they were engaged. They bought gifts for each other on special occasions. [ 44 ] While they did not sleep together, this was not because BH did not want to.

I accept it was because SS could not cope with BH’s snoring. I believe they loved and maintained an attitude of fidelity to each other. Family and friends perceived them as a couple. [ 45 ] I now turn to the time after the St. Philip’s house. Relationship after the St. Philip’s House [ 46 ] I conclude that the parties continued to be partners after the St. Philip’s house and remained so until July 4, 2014, when they separated. I now discuss why I made this decision. [ 47 ] Pursuant to

section 60 of the Act , SS must commence her action for partner support within two years of their separation. The parties agree that if the parties separated before February 23, 2013, the action is statue barred. The partners continued to live together until July 4, 2014. The question is did they separate before then? [ 48 ] BH and SS moved into the St. Philip’s house in September 2006. They jointly owned the house.

There is no evidence that their relationship was initially any different from the years before. [ 49 ] They continued to take holidays together, although they did separately as well. [ 50 ] ED met BH in 2008 and their business relationship evolved into a personal relationship. She and BH were in each other’s company 10 to 12 times a year, both in St. John’s and in Bradenton. Both ED and JH considered BH and SS a couple. ED included SS when she invited partners to events. [ 51 ] JH was aware of the parties’ sleeping arrangements, the frequency of their sex and their general demeanour towards one another.

Although he said this type of relationship was not for him, it was for the couple to decide if it worked. [ 52 ] BH paid all of the living expenses associated with the St. Philip’s house. SS had the primary responsibility of cooking meals, doing light housework and looking after the family pets. BH also hired and paid for cleaning staff.

He hired SS’s father, JS, to assist with the pets and do light housework. [ 53 ] They had separate careers until September of 2008, when SS resigned from her position with the Bank of Montreal and became an employee of SFDL. [ 54 ] BH named SS as a beneficiary, an insured and common-law spouse on a life insurance policy, a Manulife investment account and on his Blue Cross Health benefits’ policy. [ 55 ] Between 2008 and 2012, and certainly before March 23, 2013, the couple agreed that there were notable changes in their relationship.

Counsel for BH argues that these changes support the conclusion that the parties lived separate lives and acted on their intention to separate prior to March 23, 2013. [ 56 ] The couple had a similar view of the relationship in 2009. BH testified that by 2009, the couple “despised each other”. They did not speak for extended periods. SS’s version is that in 2009, they “wanted to get rid of each other”. She did not want anything to do with BH. She testified that he felt the same way. [ 57 ] Witnesses called by both parties observed that after 2008, the couple seemed unhappy.

Most observed disrespectful conversations between them. SS and JH wondered why they were together. Both SS and BH testified that in 2009, the relationship started to deteriorate rapidly. [ 58 ] JH, JM and GS witnessed this deterioration. GS believes that after St. Philip’s, BH changed as his business became more successful and he became wealthier. [ 59 ] ED observed that they did not act like a loving couple. She observed that SS did not attend events that she expected a couple might to attend. She recounts that he once referred to SS in the company of her friends as a “housekeeper”.

This was not acceptable to the group and they admonished him accordingly. [ 60 ] I now discuss the changes in their relationship. The Couple Stopped Having Sex [ 61 ] BH testified that the couple stopped having sex sometime in 2008 because SS told him that he did not deserve it. SS testified that sex ended in 2010. She suggests that BH’s prostate cancer diagnosis was the reason. I conclude that it is more likely that they stopped having sex in 2009 because they “despised each other” and “wanted to get rid of each other”. These reasons are far more likely than any medical one.

Poor Communication [ 62 ] Although the couple never communicated well, they agree that before March 23, 2013, they went for long periods without speaking to each other.

Stopped Wearing Engagement Ring [ 63 ] BH knew that SS stopped wearing her “engagement ring” in 2008. He did not raise issues with this decision. She claims that she did so because she no longer liked yellow gold and the diamonds were too small. She claims that BH purchased a three-diamond replacement engagement ring. [ 64 ] BH denies buying such a ring. SS could give no details about the replacement ring.

She could not remember the circumstances of the purchase or any discussion between the couple about the replacement. [ 65 ] I conclude that it is more likely that she stopped wearing the original ring because of the deterioration in their relationship. I conclude that it is unlikely that BH bought her a new engagement ring when they both, by that time, began to despise each other. SS’s Outside Sexual Relationships [ 66 ] SS introduced evidence of three sexual and romantic relationships. The conduct of the parties is not relevant for the purposes of support issues.

However, application of the ‘fidelity factor’ in the functional equivalence test can make her extra-relationship sexual and romantic activities relevant, if the activities show SS acted upon her intention to end the relationship. [ 67 ] The first relationship was with T. The relationship started in 2007 and ended in 2008. The second was with G, which started in 2008 and ended in 2010. The third relationship was with RM, which started in 2013 and resulted in her leaving the parties’ home in July 2014. [ 68 ] SS’s sister was aware of the relationships.

Under cross-examination, SS confirmed that she told some of the couple’s family about the first two relationships. [ 69 ] BH said that he did not know about or approve of these relationships, despite the fact that many around him knew of them. He was, and is, angry that they occurred. The irony of this is not lost upon me since he adamantly denied that he and SS were anything but friends. If they were just friends, his approval is unnecessary and his anger unjustified.

Money to Leave the House [ 70 ] Both parties agree that sometime in 2009 or 2010, BH and SS discussed how much money it would take for her to leave the St. Philip’s house. SS said that these conversations occurred often and that she demanded $1,000,000.00 to leave. She testified on cross- examination that the couple knew the relationship was over when these discussions occurred. [ 71 ] She confirmed that she also communicated these demands to JH with the expectation that he would relay the demands to his brother. JH confirmed this evidence.

GS and JM testified that SS said in their presence multiple times “write me a cheque and I’m out of here”. By then, JH concluded that they were living separate lives. [ 72 ] SS testified that in 2013, her demands increased to $2,000,000.00. BH testified that he was not prepared to pay this amount, but did not feel he could ask her to leave the St. Philip’s house because she was on the deed. Change in Christmas Routine [ 73 ] From 2004 to 2010, the parties spent every Christmas and New Year’s Eve with GS and JM. BH and SS would travel to Halifax and return shortly after Christmas. GS and JM would then come to St.

John’s for New Year’s Eve. [ 74 ] In 2010, there was a notable change. GS and JM spent Christmas in their home in Halifax. SS announced to BH that she was going alone to Halifax for Christmas and he was not welcome. He told her that he would pack up her things and send them to Halifax. JM testified that BH was not invited. BH called JM and was upset that SS was there without him. BH told him that SS “is supposed to be my wife”. However, the two couples did meet for subsequent Christmases but both couples agreed there was virtually no conversation between the couple.

SS Stopped Cooking BH’s Meals [ 75 ] I conclude that the couple rarely ate together during the relationship except in the company of others. This was their habit. In 2012, SS stopped cooking for him but continued to cook when others were present. [ 76 ] BH testified that he stopped eating food prepared by SS in 2012 when she told him she was poisoning it. I conclude that although SS said this, BH did not take the claim seriously. I find it difficult to accept that BH would continue to live in a home with someone who is trying to kill him.

SS’s Reaction to BH Illness [ 77 ] BH testified about his cancer diagnosis in March 2012 and a confirmatory biopsy in April 2012. SS did not go with him to the doctor’s office to receive the biopsy results because she said she was “afraid of hospitals”. BH testified that her reaction to his biopsy result was “oh really”. However, SS was at the hospital in Florida during BH’s subsequent surgery.

When then did the Couple Separate? [ 78 ] I now discuss how these changes affect my decision on when the couple separated. [ 79 ] These factors certainly show that, although this couple was unhappy and probably should have separated, neither acted on that intention until July 4, 2014. Furthermore, they did not live separate lives. I now discuss why I made this this decision.

[80] I considered that: (

a) although SS seemed uninterested and nonchalant about BH’s 2012 cancer diagnosis, she was with him in Florida during hissurgery; (

b) in 2011, 2012, 2013 and 2014, the couple continued to live together and travel together to Florida, where they were in thecompany of friends; (

c) the couple celebrated BH’s 50th birthday in later September or early October 2013 at a surprise birthday party at the St.Philip’s house. They then travelled together to celebrate the event in Florida; (

d) the couple celebrated JS’s 80th birthday in early 2014 at the St. Philip’s house. Shortly after this trip, the couple againtravelled together to Florida; (

e) BH did not revoke designations in his insurance and investment accounts, although he cancelled her health insurancecoverage; (

f) the couple continued to spend holidays, including Christmases, with friends and family; (

g) the couple did not physically separate, nor did they try to evict each other from the St. Philip’s house; (

h) BH continued to split his income with SS; and (

i) BH continued to pay all of SS living and travel expenses. [81] So in light of these facts, when did this couple separate? [82] In the divorce context, the leading cases on this issue are Rushton v. Rushton (1968), (BC SC), 1 R.F.L. 215,2 D.L.R. (3d) 25 (B.C.S.C.) and Dupere v.

Dupere (1974), (NB KB), 19 R.F.L. 270, 9 N.B.R. (2d) 554 (N.B.C.A.).Ruston confirms the possibility that a married couple who live in the same house, may be separated as long as they live separate lives.The court concludes that the mere fact that the parties are under one roof does not mean that they are not living separate and apart withinthe meaning the Divorce Act. [83] In Dupere, the court outlined some of the factors that may determine circumstances in which couples are living separate andapart.

The factors include occupying separate bedrooms, absence of sex, little, if any, communication, eating meals separately and nosocial activities together. I find that these factors are also relevant to unmarried couples. [84] In Field v. McLaren, 2009 MBQB 118, the court considered the separation date of a common-law couple for the purposes ofproperty division. The court concluded that the intention of one party to separate might be sufficient to sever the relationship.

There mustbe evidence that the separating party communicated this intention to the other party and acted upon the intention. [85] Furthermore, in Gibbons v. Kowal, 2006 MBQB 11, the court stated that a conjugal relationship ends when either party regardsit as being at an end and, by his or her conduct, demonstrates in a convincing manner that this particular state of mind is a settled one. [86] Did either SS or BH do this? I conclude that although the couple was unhappy, they did not live separate lives.

Furthermore,while both parties may have stated their intention to separate, neither acted on that intention until SS left their home on July 4, 2014. Inow discuss why I made this decision. [87] I must consider the factors in Dupere by comparing their presence to the norm of the couple during the relationship. The couplealways occupied separate bedrooms and ate separately. Their sex life declined over time. Their communication with each other was nevergood. They often socialized separately.

These then, cannot be definitive indicators that they separated. [88] I find that the couple’s actions are inconsistent with wanting to “get rid of” each other. I conclude that they did not act upontheir stated intention to end the relationship. It is clear that they did not like each other and for some years, they did not have sex and orcommunicate well. [89] The fact remains that they did not separate. They continued to travel, spend holidays and celebrate significant family milestonestogether. They did not live separate lives. They, like many couples, stayed together in spite of these problems.

The motivation to do socan be myriad and complex. [90] Perhaps, BH still harboured some love or affection for SS or, perhaps, he was just unwilling to give her up. Likewise, SS wasunwilling to end the relationship, perhaps because she could not afford to do so. Whatever their reasons, their actions are insufficient totrigger a separation and an end to the relationship as partners under the Act. [91] All but one of the factors described in paragraphs [61] through [77] share one characteristic. Both parties lived through thesechanges and stayed together in spite of them.

In that sense, they acquiesced to this living arrangement. [92] Only one fact was unknown to one of them. SS had sexual relationships with other men without his knowledge. I find that itdoes not mean the couple separated. Fidelity in and of itself is not an absolute indictor of the existence of an end of a common-lawrelationship. I find that SS’s infidelity does not mean that this couple separated. [93] I now will discuss the amount and duration of partner support. IS SS ENTITLED TO SUPPORT AND, IF SO, FOR WHAT AMOUNT AND DURATION?

[ 94 ] Pursuant to

section 60 of the Act , SS must not take application for partner support “after 2 years from the day the … partners separate.” She commenced her action for support on March 23, 2015. I concluded that SS and BH separated on July 4, 2014. Accordingly, she commenced her claim for partner support within the limitation period. [ 95 ] I order that BH pay SS $8,285.00 per month for 17 years from April 1, 2015. I now discuss why I made this decision. [ 96 ] The Act provides me direction on the factors I must consider in determining partner support. Sections 39(9)(

a) The Assets and Means of SS and of BH Section 39(9)(

c) The Capacity of BH to Provide Support [ 97 ] I find that, for the purposes of any calculations for support, BH’s income is $564,593.00. I now discuss why I made this decision. [ 98 ] The SF Group includes SFDL, owned 100 percent by BH, and three commonly controlled companies, SFTI and SFPI, owned 50 percent by BH and 50 percent by JH, and SFHI, owned 40 percent by BH, 40 percent by JH and 20 percent by an unrelated third party. [ 99 ] BH called Michael Power, the tax accountants for SFDL and its associated companies, which I collectively refer to as the SF Group.

He is a chartered accountant with 47 years’ experience and a partner at the firm, Power & Associates. [ 100 ] Counsel and the Court accepted him as an expert on the accounting matters relating to the financial statements of SFDL, an audit by the Canada Revenue Agency of SFDL and BH’s income tax returns. Power & Associates are not otherwise BH’s personal accountants. [ 101 ] Michael Power submitted financial statements for SFDL for the years ending December 31, 2012, 2013, 2014, 2015 and 2016. No party gave me consolidated financial statements for the SF Group.

This omission will require me to make certain assumptions on SF Group’s dividends and BH’s income. [ 102 ] There is obviously a material difference in the assets and means of the couple. BH has both a personal income and an interest in the SF Group. I heard no evidence on the value of the remaining companies in the SF Group, but can conclude, based on the dividend stream received by BH, that it is significant. [ 103 ] SS’s $52,000.00 per year income from SFDL, described in paragraphs [145] to [155], is a form of income splitting. BH testified that he would sooner pay SS than Canada Revenue Agency.

BO, the long time operations manager for SFDL, testified that she did no work for the company. [ 104 ] Michael Power introduced a Canada Revenue Agency reassessment in which it reallocated expenses for vehicles and the Bradenton property from SFDL to BH. This reassessment increased his line 150 income for 2014, 2015 and 2016 by $44,194.00, $49,175.00 and $53,612.00, respectively.

Michael Power testified that all of BH’s employment income (as opposed to dividend income) derived from SFDL and from no other company. [ 105 ] It is notable that BH’s 2014 income did not include any dividends from the SF Group because, he testified, there was no profit to distribute. Furthermore, he said he and JH must agree on payment of dividends. [ 106 ] I heard no evidence as to whether or not the associated company was able to declare a dividend in 2014. BH received dividends in 2013, 2015 and 2016, but did not in the year he physically separated from SS.

I find it significant that JH, BH’s business partner, did not provide any explanation for the lack of a dividend in 2014. [ 107 ] Given the lack of disclosure of consolidated financial statements, I impute a dividend in 2014 equivalent to the average of the dividends actually paid in 2013, 2015 and 2016, or $203,872.00, which increases his total income for support purposes in 2014 to $508,011.00. I also add SS’s income to BH’s, as it is a form of income splitting and is now available to SS since she is no longer on the company’s payroll.

Table 1 - BH Income 2012-2016 $ Year Line 150 [1] SS Income [2] Dividends [3] Total income 2012 164,324 52,000 216,324 2013 569,175 52,000 187,500 621,175 2014 268,139 36,000 Nil 203,872 [4] 304,139 508,011 [5] 2015 719,270 241,010 719,270 2016 601,340 183,105 601,340 [ 108 ] The financial statements and balance sheet of SFDL show it has retained earnings of almost $2,700,000.00 in 2014.

Michael Power testified that SFDL required these retained earnings to support both its long-term debt and its guarantees of the SF Group debt. [ 109 ] I heard insufficient information to make an informed decision on whether I should allocate any of SFDL’s retained earnings to BH’s income for the purpose of support calculations because no one disclosed SFDL’s banking documentation. I deal with this uncertainty by making the rulings set out in paragraphs [110] and [227](d). [ 110 ] I will use BH’s 2013 and 2014 two-year average income of $564,593.00 for the purpose of calculating support because BH did

not explain why his line 150 income in 2014, the year of separation, was much less than in 2013 and 2015 . [ 111 ] SS left the relationship with considerable assets she acquired because of BH’s gifts. I considered some in paragraphs [160](

d) and [163] to [167]. Section 39(9)(

b) The Capacity of SS to Provide for her Own Support Section 39(9)(

g) The Measures Available, Length of Time and Cost for SS to become Financially Independent [ 112 ] For the purposes of calculating support, I find that SS could find employment consistent with her prior employment with the Bank of Montreal. Her salary in 2008 was about $50,000.00. I conclude that she is capable of earning employment income of $50,000.00 per year. Furthermore, I deem she could earn non-taxable rental income of $10,000.00 a year for her St. John’s property.

I now discuss why I made this decision. [ 113 ] SS testified that after the couple separated she did not work for six months because of a back injury. She submitted physiotherapy and medical certificates to support this testimony. She submitted evidence of applications to financial institutions. She did not submit evidence that she actually sent the applications or that the institutions received them. [ 114 ] I find that SS has not shown any medical reason why she did not work.

Furthermore, I find that she did not make any meaningful efforts to seek employment. [ 115 ] SS testified that she did not look for a job because her poor mental state immediately after separation. She said BH caused this mental state because he called her demeaning names, was violent and inappropriately controlled her. [ 116 ] Although she presented no medical evidence to support these assertions, I consider each. I first deal with BH’s use of nicknames. [ 117 ] I conclude that SS has not shown that BH’s use of nicknames affected her ability to find employment.

I now discuss why I made this decision . [ 118 ] Early in the relationship, BH gave SS the nickname, Miss Piggy. After he coined this nickname, their friends rarely used her actual name. Most witnesses testified that he used nicknames for virtually everyone. SS suggested he used these names as a form of abuse. [ 119 ] BH adamantly denied the nicknames were a sign of abuse or disrespect. He testified that he called SS Miss Piggy because of her long, flowing hair and personality. He said, and GS agreed, that everyone called her Miss Piggy or Piggy. [ 120 ] He calls JS Dummy and JS calls him Moron.

He emotionally testified that this nickname was not a sign of disrespect and said, “I have the most respect for that man”. I conclude that JS is an important person in BH’s life, despite the collapse of his relationship with SS. He speaks of him with obvious fondness and respect. He sees him virtually every day. He supports him financially. [ 121 ] It is obvious to me that he loves his brothers, has fondness, if not love, for JS and, in my view, once considered GS a dear friend.

Therefore, I consider the use of nicknames by BH irrelevant to the matters before me. [ 122 ] I now turn to BH’s alleged violent behaviour. [ 123 ] I conclude that SS has not shown that BH’s alleged violent behaviour affected her ability to find a job. I find the characterization of BH as a violent man, unsubstantiated. I now discuss why I made this decision. [ 124 ] JM, GS and SS testified about a 2011 Florida incident. SS made a loud, banging noise when she was sitting next to BH as he backed up in a vehicle. He thought he hit a gas pump.

BH then slapped or punched SS on the shoulder or upper arm. [ 125 ] BH confirmed the details of this incident. He said he instinctively struck her with the back of his hand on her shoulder. He said the first time he ever heard this incident mentioned was during testimony in this Court. He said neither SS, JM nor GS mentioned it to him. He said he would never strike SS intentionally because she would have “given him a crack back”. He said they fought verbally, not physically. [ 126 ] RM testified he overheard a 2014 interaction while on a telephone call with SS.

He testified that he heard cupboards slammed, although he could not say who was slamming the doors. I consider his evidence unreliable and it is unsubstantiated even by SS. [ 127 ] I find that the Florida incident does not show that BH is violent. I heard no evidence that BH has any history of violence. Despite the many issues in this relationship, BH’s alleged violent behaviour is not one of them. [ 128 ] I now turn to whether BH exerted undue control over SS. [ 129 ] I conclude that SS has not shown that BH exerted undue control over her.

I now discuss why I made this decision. [ 130 ] SS introduced evidence that in early September 2014 BH left her two voicemails on RM’s telephone: #1 I expect you to answer the phone. Ah, just a heads up, I will not be paying you any more money I am, I, I hope that [RM] is going to step up to the plate now and he can support you, but you will not be getting any more money from me. You’re going to find out just how smart I am. Just how smart I am, I found out this number. #2 Automatic Recording - Yeah it’s me, I will call you again.

[ 131 ] Counsel for SS submitted this as evidence of BH’s controlling behaviour. He also relies on BH’s efforts to locate SS after she left BH. He argues that this is a part of a larger pattern of control. The pattern includes BH’s violent disposition and his use of demeaning nicknames. He says that this behaviour shows that BH did not let her go. He argues that this is a reason SS did not leave BH sooner and why she did not work after separation. [ 132 ] There is no evidence that BH controlled SS’s spending. There is no evidence that he asked her to work or perform corporate duties.

There is no evidence that he restricted her travel or vacations, with or without him. I do not consider the voicemails an attempt at control. It is what it seems. They are voicemails from an unhappy man. [ 133 ] The relationship of the parties was so toxic that it is difficult for me to decide who was controlling whom. It is likely that each was controlling the other.

Each was not ready to let the other go, but for different reasons. [ 134 ] I find that SS has not established on the balance of probabilities an inability to work and therefore, must conclude that she has chosen not to work for reasons known only to her. Section 39(9)(

d) SS’s and BH’s Age and Physical and Mental Health [ 135 ] SS is 52 years old (47 on the date of physical separation) and is apparently in good health. BH is 55 years old (50 on the date of physical separation) and has prostate cancer and other health issues. I heard no evidence on BH’s prognosis. I do not consider the parties’ physical health and age factors in amount or duration of support. Section 39(9)(

e) The Length of Cohabitation [ 136 ] The parties lived together for more than 18 years. I find, based on the length of time they cohabited, the change in SS’s standard of living after separation and the relative roles each took during the relationship, that SS is entitled to spousal support analogous to entitlement on a non-compensatory basis under the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp .). I discuss the reasons in paragraphs [138] to [142] [ 137 ] I find that she is not entitled to support which would be analogous to entitlement on a compensatory basis for the reasons set out in paragraphs [145] to [157]. Section 39(9)(

f) The Needs of SS, with Regard to the Accustomed Standard of Living while the Parties Resided Together [ 138 ] The parties lived a lifestyle consistent with a wealthy couple. They lived in a relatively expensive home. They flew business class. They took extended holidays in a family-owned Florida home. They drove expensive vehicles. SS did not work to support their lifestyle. I consider this lifestyle a factor in determining the amount of support. [ 139 ] It is settled law that a difference in income alone does not automatically lead to entitlement. Non-compensatory claims involve need.

Need means a significant decline in the standard of living from the standard enjoyed by the couple. Non-compensatory support reflects the economic interdependence of couples summed up in the phrase ‘merger over time’. [ 140 ] The Supreme Court of Canada discussed this concept in paragraph 864 of Moge. It directs me to keep in mind the doctrine of equitable sharing.

It observes that the doctrine of equitable sharing does not guarantee either party the standard of living enjoyed during the relationship, but this standard is far from irrelevant for support entitlement. [ 141 ] I should consider relationships a joint endeavor, and the longer the relationship endures, the closer the economic union, and the greater the presumptive claim will be to equal standards of living upon dissolution . [ 142 ] The Revised User’s Guide of the Spousal Support Advisory Guidelines observes that while judicial statements of principle emphasize that income disparity does not automatically mean entitlement to support, in practice a court will find entitlement where there is significant income disparity at the time of the application. [ 143 ] I find that the factors applicable to a married couple are also relevant to partners under the Act . [ 144 ] RM, SS’s current partner, testified that his line 150 income in 2014 was $127,979.00, in 2015, it was $128,971.00 and in 2016, it was $137,643.00.

His employer terminated him effective January 22, 2018. His employer offered him a severance package of 16 months with full salary continuance. I considered SS’s family income in the manner set out in paragraph [160](c). Section 39(9)(

j) A Contribution by one Party to the Realization of the Career Potential of the Other and Section 39(9)(

l) SS’s Role and the Effect on BH’s Earning Capacity [ 145 ] SS testified about leaving her job at the Bank of Montreal. She raises this to establish an entitlement for support analogous to entitlement on a compensatory basis under the Divorce Act . [ 146 ] She said BH asked her to leave her job for two reasons. The first was to allow the couple more travel to Florida. The second was so she could act as a “corporate wife” and assist with the business of SFDL. [ 147 ] I conclude that SS left her job because she wanted to and not for the reason she alleges.

Furthermore, even if BH asked her to take on the duties of a “corporate wife”, she performed no such duties. I now discuss why I made this decision. [ 148 ] In 2008, she began working with a new manager with whom she did not get along. The Bank reprimanded her for a failure to report a breach of cash management procedures. She believes she was overworked. The combination of these factors led her to resign from the Bank. The reason why is in dispute. [ 149 ] SS testified that BH told her to “quit” and suggested that she tell her boss to “shove it [the job] up his ass”. She said BH wanted

her to spend more time with him. She said he wanted her to travel to Florida with him. She said he wanted her to act as “corporate wife”. [ 150 ] BH disagrees. He testified that SS hated the new manager. She came home day after day upset saying how much she hated the job. He confirmed that he told her that if he were in her position, “he would resign and tell the manager to shove the job”. However, he said he told her that she needed to figure out her pension before she resigned. [ 151 ] BH confirmed that if she did resign, he would put her on SFDL’s payroll.

In exchange, she would do cleaning and chores around the house, and prepare meals. He denies that he asked her to resign to facilitate travel to Florida, as SFDL did not then own the Bradenton home. He denies asking her to act as a corporate wife. He said they did not spend more time together after SS left her employment with the Bank. [ 152 ] The parties agree that SS quit her job on October 14, 2008 and she was on the payroll of SFDL from July 8, 2008 to September 2, 2014 at a weekly salary of $1,000.00.

The parties agree that SS did not do any actual work for the company. [ 153 ] I find BH’s version of events more credible. I find that SS resigned because she was unhappy at work, not because BH told her to do so. There is no evidence that they travelled frequently to Florida before the acquisition of Bradenton. Furthermore, I do not find it likely that she was a “corporate wife” or that BH asked her to act as such. [ 154 ] I take it that she considers the term “corporate wife” to mean that she would promote BH’s business interests. By her own testimony, during her six years as a “corporate wife” she: (

a) attended the 2006 conference in Houston. She gave this example even though it occurred before her resignation from the Bank; (

b) attended dinner with a new business partner of BH and his spouse; (

c) attended the SF Group’s Christmas parties. She did not do anything to assist in preparing for the party. She cannot specifically recall which ones she attended but I find she attended most of the Christmas parties; (

d) hosted one business dinner at the St. Philip’s house with SFDL’s bank manager and his spouse; and (

e) hosted a business associate in Bradenton overnight. [ 155 ] I find that most of her duties as a so-called “corporate wife” are activities that any partner would do. They do not constitute a meaningful contribution to SFDL’s business. I conclude that BH did not ask SS act as a corporate wife, and even if he did, SS did not perform such a role. [ 156 ] I find that SS’s role in the relationship did not enhance BH’s earnings. I conclude that she did not assume any significant responsibilities for promoting BH’s business, nor did her activities in the home allow BH to do so. Section 39(9)(

o) Domestic Service Performed by SS [ 157 ] I find that SS did little in the way of domestic chores, other than cooking and relatively minor cleaning not done by paid staff. Sections 39(9) (h), (i,), (m), (

n) and (

p) of the Family Law Act [ 158 ] I find that these factors are not relevant to my decision. Amount and Duration of Partner Support [ 159 ] I find that BH will pay SS $8,285.00 per month for 17 years, starting April 1, 2015. I now discuss why I made this decision. [ 160 ] This is not an application for support under the Divorce Act , but is an application under the Act . With that in mind, the reasons for my award of support are: (

a) SS has established an entitlement to support analogous to entitlement on a non-compensatory basis under the Divorce Act , but she has not established an entitlement on a compensatory basis. The parties’ cohabitation as partners lasted about 18 years. This is a significant duration; (

b) BH’s income is $564,593.00. I will not consider any post-separation increases in BH’s income. SS did not contribute to this increase. I have the discretion not to base support on BH’s post-separation salary increases and I do so. L. (R.) v. B. (L.A.) , 2013 PESC 24 . I will not make any adjustment for inflation; (

c) SS is capable of working. She could earn $50,000.00 per year from the separation. She could earn $10,000.00 a year in non- taxable rental income. She now shares a household with RM. He earned about $128,000.00 in 2014. I am entitled to combine his income with hers for the purposes of calculating support as in Zacharias v. Zacharias , 2015 BCCA 376 . I will not make allowance for any salary increases or inflation for either salary; and (

d) SS received substantial financial benefits during the relationship. In particular, BH gifted her a one-half interest in the St. Philip’s house ($166,117.23 ). Furthermore, she received a salary of $320,000.00 [6] from SFDL from 2008 to 2014, while doing little to earn the salary. She is not legally entitled to these benefits merely because of her legal status as BH’s partner. [ 161 ] The Spousal Support Advisory Guidelines (“ SSAG ”) range of support is $8,285.00 - low, $9,666.00 – mid range, $11,046.00 - high, with indefinite duration subject to variation and review.

The Rule 65 is applicable to this couple (SS’s age at separation of 47 years and an 18-year relationship). I consider this range a tool to assist me in my decision on the support.

[162] I should not apply the SSAG formulas automatically when a payer’s income exceeds $350,000.00. However, it is not an error tofix an amount in the SSAG range (H. (J.E.) v. H.(P.L.), 2014 BCCA 310). In Dymon v. Bains, 2013 ONSC 915, the application’s judgeset spousal support slightly above the low end SSAG range when the payer’s income was $550,000.00 and the recipient’s was$55,935.00. [163] Based on the individualized fact specific analysis of this couple’s circumstances, I consider a low range level supportappropriate in this case.

To assist me in determination of the duration, I consider the gifts and other financial benefits she received duringthe relationship. I determined the lump sum support with indefinite duration, and subtracting from that the gifts and salary received bySS. [164] I ignored living expenses like travel, furniture, household operating and mortgage costs, transportation and food. I ignored anycapital contributions to the St. John’s house as I had insufficient evidence to calculate the amount. For the purposes of comparing NetPresent Value (“NPV”), I assume her capital gain on the St. Philip’s house is tax-free.

I discounted SS’s salary assuming an average taxrate of 25 percent. I assume that SS received these amounts on the date of separation. [165] DivorceMate restructuring algorithms calculate the NPV. I used the resulting calculation to assist me in setting the duration ofsupport. The result is in Table 2. [166] The Ontario Court of Appeal in Fisher v. Fisher, 2008 ONCA 11, discussed the use of a lump sum conversion of monthlyspousal support. They conclude, at paragraph 112, that a judge can use these conversions as a “litmus test of reasonableness”.

Table 2: Duration of Low Range Partner Support Support – Low End $8,285/mon[7]Length of Relationship 18BH Income $564,593SS taxable income $50,000SS non-taxable rental income $10,000RM income $128,000.00Lump sum NPV- low end[8] $1,261,011Less ½ equity in St.

Philip’s $166,117Less SFDL salary to SS[9] [10] $240,000Total Net NPV after deducting benefits $854,894Duration for equivalent lump sum 17 years, 9 monthsResulting Lump sum 17 years, 8 months $855,700 [167] Therefore, based on the financial benefits SS received during the relationship, I consider it appropriate to limit the duration ofthe partner support award to 17 years after the commencement date for support on April 1, 2015 (paragraphs [168] to [171]). When thelast payment is due on March 1, 2032 SS will be 65 years old.

Commencement Date of Support [168] SS claimed partner support in her Originating Application filed March 23, 2015. I order that support commence on the first ofthe month after March 23, 2015 or April 1, 2015. I now discuss why I made this decision. [169] The Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10, upheld a trial decision ordering support effective to the datethe claimant had commenced proceedings.

The court concluded that the trial judge had discretion to award support effective to the dateof the proceedings. [170] The Supreme Court of Canada supported the conclusion of the Ontario Court of Appeal in MacKinnon v. MacKinnon, (2005), (ON CA), 199 O.A.C. 353, 256 D.L.R. (4th) 385 (Ont. C.A.), that the usual commencement date is the date ofinitiation of the proceeding [paragraph 24]. [171] Finally, although neither party asked me to undertake the analysis described in S. (D.B.) v. G. (S.R.), 2006 SCC 37, I find that: (

a) SS established a need for support from the date of her Originating Application; (

b) BH can pay the support and will not suffer any undue hardship as a result; and (

c) SS took her claim promptly after separation. She did not delay bringing her claim to trial. [172] In this decision, I intend to create an obligation on BH to pay retroactive periodic partner support for a specified period beforethis judgment (see Canada Revenue Agency Tax Folio S1–F3–C3). SS may be entitled to deduct legal fees incurred to obtain thissupport order (Nadeau v. R., 2003 FCA 400). CRA’s tax treatment of the retroactive payment will not affect the amount of partnersupport BH must pay under this judgment. Application of Section 39(10) of the Family law Act [173] Finally, section 39(10) of the Act has no application in this case. That

section provides, “the court may in determining theamount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of therelationship.” [174] I find that although some may find that SS’s infidelity is unsettling, it does not meet the threshold test set out in Phillips v.

Phillips (1981), (ON SC), 10 A.C.W.S. (2d) 468, 24 R.F.L. (2d) 139 (Ont. Co.Ct.), because SS’s conduct was notexceptionally bad. [175] This couple treated each other badly. SS was not sexually faithful. However, many relationships end because one of the couplemeets someone else. Infidelity by one is not sufficient to trigger section 39(10). [176] I now turn to BH’s claims over the St. John’s and St. Philip’s houses. DOES BH HAVE A RESULTING OR CONSTRUCTIVE TRUST OVER SS’S INTERESTS IN THE ST. JOHN’S HOUSE AND THEST. PHILIP’S HOUSE? [177] BH claims a resulting trust in his favour over SS’s sole interest in the St.

John’s house to the extent he contributed capital andoperating costs. In the alternative, he claims that he has a constructive trust over SS’s interest based on the concept of unjust enrichment. [178] Furthermore, BH claims that SS’s joint interest in the St. Philip’s house is subject to a resulting trust in his favour as she paid noexpenses for the purchase or maintenance of the property. [179] I dismiss these claims. I now discuss why I made this decision. Law of Resulting Trusts [180] The Supreme Court of Canada in Kerr discussed the legal doctrine of resulting trust arising from gratuitous transfers.

Thesetraditionally arose in two situations. The first is a gratuitous transfer of property from one partner to the other. The second is a jointcontribution by two partners to the acquisition of property in the name of one of them only. [181] In either case, the transfer is gratuitous. In the first case, there is no consideration for the transfer of the property. In the secondcase, there is no consideration for the contribution to the acquisition of the property. [182] In Pecore v.

Pecore, 2007 SCC 17, the Supreme Court of Canada concluded that in these gratuitous transfer situations, the actualintention of the grantor is the governing consideration. When BH challenges the gratuitous transfer, I commence my inquiry with theapplicable presumption. I am to weigh all of the evidence to decide BH’s actual intention. [183] The court observed that the law generally presumes the grantor intended to create a trust rather than to make a gift. However, incertain circumstances there is a presumption that the grantor intended to make a gift.

This presumption of advancement traditionallyapplied to grants from husbands to wives[11], although it is not yet clear whether it applies to common-law spouses. [184] I believe this presumption would also apply to a gift to partners under the Act. Thus, the onus would shift to BH to establish thathe did not intend to make a gift. [185] However, Butler, J. in Nicholas v. Edgecombe Estate, 2018 NLSC 176, concluded that this is a significant change to thecommon-law.

She did not make this change without directions from the Supreme Court of Canada. [186] Thus, SS must establish on the balance of probabilities that BH actually intended to gift SS a one-half interest in the St. Philip’shouse and the value of the capital improvements to the St. John’s house. Law of Unjust Enrichment [187] BH must establish three elements: (

a) SS received a benefit; (

b) he suffered a corresponding deprivation; and (

c) the absence of ajuristic reason for the benefit. [188] I now discuss BH’s claims over the St. John’s House. St. John’s House: BH’s Claims for Unjust Enrichment and Resulting Trust [189] I dismiss BH’s claims for a resulting trust or unjust enrichment over the St. John’s house. I now discuss why I made thisdecision. [190] BH paid maintenance and operating costs after he moved into the St. John’s house, SS continued to pay the first mortgage(including property taxes) and, later, a $10,000.00 second mortgage. [191] The second mortgage financed a new kitchen and extension to the house.

BH paid costs of the extension in excess of $10,000.00.However, the parties did not give me detailed evidence of these costs. For the purpose of this analysis, I assume BH paid more of thecosts than SS did. [192] I characterize BH’s payment of operating costs as payments in lieu of rent and any enrichment or benefit since BH paid foraccommodation SS owned.

I find that BH, by paying for the capital improvements, provided a benefit to SS and she received a benefit. [193] Is there, then, an absence of a juristic reason for the benefit and corresponding deprivation? [194] One of the established juristic categories is a donative intent. Based on all the evidence before me, I conclude that BH actuallyintended to gift to her the capital improvements. [195] BH enjoyed the benefit of these capital improvements and he did not provide any evidence that he wanted repayment of theseexpenses. Had he done so, SS may not have renovated.

He made his claim for repayment only in response to SS’s claims in this action.At trial, he confirmed that he seeks no repayment of these amounts but he seeks to set them off set-off against any amount he owes.

[ 196 ] Thus, on the balance of probabilities, I believe there is a juristic reason for the benefit and corresponding deprivation arising from BH’s contribution to the improvements to the St. John’s house. I dismiss BH’s claim for unjust enrichment. [ 197 ] This ruling also disposes of BH’s claim for resulting trust. SS has rebutted the presumption of a resulting trust. The St. Philip’s House Resulting Trust over SS’s Joint Interest [ 198 ] I dismiss BH’s claims for a resulting trust over SS’s interest in the St. Philip’s house. I now discuss why I made this decision. [ 199 ] The parties acquired the St.

Philip’s house in 2006. The purchase price for the home was $480,000.00. BH financed the house with $10,000.00 down payment and mortgages. The parties agree that the equity in the St. Philip’s house is $332,234.46 and the value of the furnishings is $8,210.00. [ 200 ] BH and SS are joint owners of the house. Both are obligated under the mortgage over the house. SS made no financial contribution to the purchase price or the ongoing maintenance and operating expenses. [ 201 ] The parties generally agree on how SS became a joint owner.

BH testified that SS told him she would never feel part of the home “unless her name was on the deed”. SS stated it slightly differently and testified that BH agreed to put her name on the deed to make it “our home”. From this, I can only conclude BH knew that SS wanted an ownership interest to make the property their home. [ 202 ] BH’s counsel argued that he did not understand the legal consequence of joint ownership. She said that he only intended to gift a right of survivorship.

Alternatively, she said that he only intended to gift any increase in the value of the property from the acquisition date to separation. Finally, she said that he did not intend to gift the down payment. [ 203 ] These may be good arguments, but BH did not say that any of these were his intention. [ 204 ] BH is a classic example of a self-made man. He is largely self-educated. He created his business from nothing. He runs a successful multi-million dollar business. I find that he knew the legal effect of transferring a joint interest to SS and he knew the home would be hers as well as his.

I find that his actual intention was to transfer one-half of the interest in the St. Philip’s house to SS. [ 205 ] I reject an explanation that BH took this action with the intention to claim a resulting trust if the couple separated. I do not believe that this was his intention. [ 206 ] I conclude that BH has not rebutted the presumption of advancement to SS, but if the presumption does not apply to partners that BH actually intended to gift to her a one-half interest in the St. Philip’s house. [ 207 ] I also find that BH also intended to gift a one-half interest in the furnishings of the St.

Philip’s house for the same reasons. [ 208 ] I now turn to SS’s claims over the three vehicles. DID SFDL GIVE THREE VEHICLES TO SS? [ 209 ] SS claims that BH or SFDL gave her the Cadillac and the Saturn, currently in her possession in Ontario, and the Sebring, that is not. [ 210 ] I find that BH gave SS the Cadillac and the Saturn, but did not give her the Sebring. I now discuss why I made this decision. [ 211 ] The Newfoundland and Labrador Court of Appeal outlined the law on gifts in the case of Bath v. Bath , 2002 NFCA 21 .

It says that a gift is effective when BH intends to make it a gift, and SS takes the thing given and keeps it, knowing that he has done so. [ 212 ] Therefore, SS must show on the balance of probabilities that BH intended to transfer the use of the vehicles to her that she was not to repay the value of her use. [ 213 ] BH, though SFDL, provided the use of motor vehicles to SS during their relationship. The company usually financed by way of lease and parties returned the vehicles at the end of the lease.

SS confirmed this arrangement and that she never expected to own a particular motor vehicle beyond the lease term. [ 214 ] After the couple separated, SS took the Cadillac and the Saturn to Ottawa where they remain to this day. SFDL continued to pay all costs associated with vehicles. SFDL purchased the Cadillac at the end of the lease term because SFDL was unable to return it to the finance company. [ 215 ] I find that BH, as the controlling mind of SFDL, intended to gift the use of the Cadillac for the term of the lease.

To this extent, SFDL transferred the beneficial title to the Cadillac to her. [ 216 ] BH is responsible for damages associated with SS’s inability to use the vehicle because of the expiration of the registration of the vehicle. However, the parties understood that this beneficial ownership was subject to SFDL returning the vehicle to the finance company at the expiry of the lease. [ 217 ] SS shall compensate BH for the residual cost incurred at the end of the lease. SS may offset her loss of use claim against BH’s claim for the residual cost. Neither party is obliged to compensate each other for these claims.

BH shall cause SFDL to transfer legal title of the vehicle to SS. This transfer is effective on the date of the couple’s physical separation. BH shall be responsible for any transfer fees or taxes. [ 218 ] In 2006, BH, through SFDL, gave SS the Saturn as a belated birthday gift. In March 2010, BH, through SFDL, gave SS the Sebring, “for her use while she was in Florida”. SFDL did not finance the purchases. Both parties testified that these vehicles were

considered for her use and SFDL was to pay, and did pay, all costs associated with these vehicles. [219] I find that BH, as the controlling mind of SFDL, intended to gift SS the Saturn and did so by delivering it to her. Although SFDLretained legal title to the vehicle, BH gifted her SFDL’s beneficial title. BH or SFDL must transfer legal title of the vehicle to SS. Thistransfer is effective on the date of the couple’s physical separation.

BH shall be responsible for any transfer fees or taxes. [220] BH is responsible for damages associated with SS’s inability to use the vehicle because of the expiration of the registration ofthe vehicle. I heard no evidence on when this occurred and, therefore, for how long SS was deprived of its use. Given that registrationsare effective for one year, BH likely deprived her of its use since 2015. I order that BH pay her $3,000.00 per year or $15,000.00 as myestimate of damages for her inability to use the vehicle. [221] Similarly, SFDL gifted SS the Sebring “for her use while she was in Florida”.

I find this to mean that the parties knew that thegift relating to this vehicle was limited to its use while she was at the Bradenton house. The couple did not intend that the gift would befor any other purpose. Therefore, I dismiss SS’s claim for the Sebring. [222] I now turn to the issue of costs. COSTS [223] SS shall be entitled to her costs according to Column 4 of the Scale of Costs in the Appendix to Rule 55 of the Rules of theSupreme Court, 1986, S.N.L. 1986, c. 42,

Schedule D. [224] SS alleges that BH took improper procedural steps intended to exhaust her financially. She says that I should penalize BH forthis conduct in my order for costs. [225] I disagree. Parties may pursue their legal rights even if they fail. I consider the failure to disclose the SF Group’s consolidatedfinancial statements and the SFDL’s bank statements more relevant. [226] The Court of Appeal in Hiscott v. Hall, 2015 NLCA 1, referred to Cameron J.A.’s, comments in Martin v. Martin (1998), (NL CA), 168 Nfld. & P.E.I.R. 181, 42 R.F.L. (4th) 251 (Nfld. C.A.).

She stated that I can consider factors in familymatters which I would not in most civil litigation (paragraph 71). She identified the following factors: (

a) the parties’ success at trial. SS established that she and BH were partners within the meaning of the Act. She established aclaim for partner support. She successfully defended BH’s claims for an interest in her properties; (

b) the parties’ actions before and during the trial. I refer to this conduct in paragraph [227](b), [227](

c) and [227](d); and (

c) whether each party can pay their own costs, and whether any ordered costs could affect BH’s ability to pay the judgment. BH’sincome far exceeds SS’s and I find that my costs order does not affect his ability to pay the judgment. [227] I also considered the factors in Rule 55.04(4) of the Rules of the Supreme Court, 1986. In this case: (

a) both parties hired senior counsel; (

b) BH did not admit that he was ever SS’s partner despite providing little evidence to support his position. Much time was spenton this issue at trial and no doubt leading up to it; (

c) the issues in the trial were complex and were made more so by BH’s failure to completely disclosure his and SFDL’sfinancial information until late in the process; and (

d) SFDL has significant retained earnings. Mr. Power said the SF Group’s bank required the company to retain the earnings tosupport SF Group debt. Furthermore, a significant amount of BH’s income is dividends from an associated company. BH knew this. Heshould have disclosed the SF Group’s consolidated financial statements and SFDL’s banking documentation. [228] Given all these factors, I order that BH pay SS costs according to Column 4 of the Scale of Costs in the Appendix to Rule 55 ofthe Rules of the Supreme Court, 1986. DISPOSITION [229] I hereby Order that: (

a) BH shall pay SS $8,285.00 per month for 17 years, starting April 1, 2015. (

b) BH shall pay SS $414,250.00, the support due under paragraph [229](

a) for the 50 months from April 1, 2015 up to andincluding May 1, 2019 within 120 days of the date of this judgment; (

c) BH shall pay SS $170,222.23 representing one-half the value of the St. Philip’s property and furnishings; (

d) BH shall immediately transfer all legal title to the Cadillac SRX and the Saturn Sky convertible to SS. He shall execute anddeliver the appropriate transfer and registration documentation required under the Ontario motor vehicle legislation. He shall pay anytax or fees relating to the transfer. He shall pay SS $15,000.00 in relation to the loss of use of the Saturn; (

e) BH shall pay all amounts he owes SS pursuant to paragraph [229](

c) and (

d) within 60 days of the date of this judgment; and (

f) SS is entitled to her costs according to Column 4 of the Scale of Costs in the Appendix to Rule 55 of the Rules of the

Supreme Court, 1986 . _____________________________ Alexander MacDonald Justice APPENDIX Correction made on June 3, 2019: 1. The initials SS in last sentence of paragraph 172, page 35, have been changed to BH.