Genoud v Genoud, 2022 ABKB 712

Court of King’s Bench of Alberta Citation: Genoud v Genoud, 2022 ABKB 712 Date: 20221025 Docket: 2103 11271 Registry: Edmonton Between: Heather Maria Genoud Applicant - and - David Calvin Genoud and Glenna Jane Jefferies Respondents _______________________________________________________ Reasons for Decision of the Honourable Justice J.M. Ross _______________________________________________________ Introduction [ 1 ] Heather Maria Genoud (Heather), now 53 years old, was born with Down Syndrome. She is a represented adult within the meaning of the Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2 .

This application is brought by Heather’s sister, Gwendolyn Genoud (Gwen), as litigation representative for Heather. The Respondents are Heather’s brother, David Calvin Genoud (David) and Heather’s sister-in-law, Glenna Jane Jeffries (Glenna). The application relates to beneficial ownership of lands legally described as Plan 9222667, Block 9, Lot 2, located at 2804 46 Avenue, Athabasca, Alberta (the Property). The Property is registered in the names of

Heather, David and Glenna as joint tenants. The 2004 and 2008 Review Applications [ 2 ] For many years, Heather’s mother, Gunhild Signe Genoud (Signe), acted as her guardian and trustee, appointed under the predecessor legislation to the AGTA , the Dependent Adults Act, RSA 2000, c D-11 . Gwen was appointed as alternate guardian and trustee. [ 3 ] In 2004, Signe applied to review and continue her appointment as guardian and Gwen’s appointment as alternate guardian under a prior court Order dated January 10, 1994. Signe also applied to be appointed as limited trustee, with Gwendolyn as alternate limited trustee (the 2004 Review Application). [ 4 ] The 2004 Application Information

Summary signed by Signe described the reason for the 2004 Review Application: This application arises because her parents and siblings are purchasing a residence for Heather Maria Genoud and placing Heather Maria Genoud’s name on the title along with those other family members in order that Heather Maria Genoud may live at such residence along with other similar dependent adult persons under adequate supervision.

The residence will be rented out to such other similar dependent adult persons as may be appropriate to provide income to pay for the new mortgage, utilities and other expenses with respect to the property so the Heather Maria Genoud may acquire equity in her home rather than renting and her share of any net income will provide her with further savings.

Following the grant of this application, the title to the said property will be placed in the joint names of HEATHER MARIA GENOUD and the said other family members as tenants in common for which HEATHER MARIA GENOUD will pay no money as her interest in the title will be a gift from the other family members. Following the title to the said property being so registered, then a new mortgage will be placed on the title to finance the construction of the new residence on the said property. [ 5 ] By Order dated May 26, 2004, the appointments were made.

The powers of the limited trustee and alternate limited trustee were stipulated as “to purchase, sell, mortgage, grant or accept leases for more than 3 years or otherwise dispose of real property” and “to receive the income from real property and to pay all expenses with respect thereto”. [ 6 ] The residence described in the application was constructed in 2004 on the Property.

Title to the Property was transferred to Heather, David and Glenna on June 14, 2004. [ 7 ] In 2008 Signe and Gwen applied to review the 2004 Order, to discharge Signe as limited trustee and guardian, to appoint Gwendolyn as limited trustee and guardian, and to appoint Heather’s brother, Gerald Genoud, as alternate guardian and alternate limited trustee (the 2008 Review Application). [ 8 ] The 2008 Application Information

Summary signed by Gwen stated: Since May 26, 2004 [Heather’s] parents and siblings purchased a residence for Heather Maria Genoud and have placed Heather Maria Genoud’s name on the title along with those other family members in order that Heather Maria Genoud may live at such residence along with other similar dependent adult persons under adequate supervision.

The residence has and will be rented out to such other similar dependent adult persons as may be appropriate to provide income to pay for the new mortgage, utilities and other expenses with respect to the property so that Heather Maria Genoud may acquire equity in her home rather than renting and her share of any net income will provide her with further savings. A copy of the title to the said property placed in the joint names of HEATHER MARIA GENOUD and the said other persons as tenants in common is attached hereto.

HEATHER MARIA GENOUD has paid no money for her interest in the title other than $6,000 and the rest has been a gift to her from the other family members. [ 9 ] A Trusteeship Needs Report filed with the 2008 Review Application estimated the value of the Residence as $225,000 and described Heather as “only part owner” of the Property “as outlined in the title.” [ 10 ] The 2008 Application Information

Summary also states, regarding the estimated value of real estate, “One Third interest in the property located at 2804 46 Avenue, Athabasca, Alberta T9S 1N4 (legally described as Plan 922 2667, Bock 9, Lot 2) $75,000.” Contributions to Acquisition and Maintenance of the Property [ 11 ] The residence on the Property was constructed during 2004. The contract with the builder was signed in January, and an addendum for basement development was signed in April.

The total contract price, including the basement, was $160,145.73. [ 12 ] $6000 towards the purchase was provided by a cheque signed by Signe on Heather’s behalf. The principal amount of the mortgage was $147,012.60. The mortgage was subject to mortgage insurance, so the amount advanced towards the purchase of the Property was $143,965.00. This amount was paid to the Respondents and used to pay construction invoices or to reimburse construction costs that had been paid by the Respondents utilizing their personal line of credit. [ 13 ] The Respondents oversaw the construction.

David kept a balance sheet, created contemporaneously with the build of the

Property, setting out the contract price and other construction costs.

Including handwritten additions, the costs total $165,999.16. [ 14 ] There is a dispute between the parties regarding whether the Respondents were fully recompensed for amounts they paid for construction. [ 15 ] The Respondents argue that expenses totaling over $20,000 were not covered by the mortgage. $6000 of this amount was paid on behalf of Heather; they paid the remaining amount of more than $14,000. [ 16 ] The Applicant points out that the Respondents’ calculation does not include credits, rebates and allowances under the construction contract.

Records provided by the builder indicate that the total amount invoiced for the construction after factoring in credits was $152,781.66. The total amount paid on the contract was $149,636.76. The difference of $3144.90 was written off by the construction company in 2006.

The Applicant notes that its calculation of the contract cost is corroborated by the Certificate of Possession signed by David and the construction company on November 4, 2004, which indicated that the total contract price was $153,110. [ 17 ] The amount paid by the Respondents on the construction contract was fully covered by the mortgage advances of $143,965.00 and Heather’s $6000 contribution.

In fact, the Applicant argues, the Respondents not only made no financial contribution to the Property, but they were also reimbursed by $328.24 too much. [ 18 ] I agree that the Respondents’ calculation of a $14,000 contribution is in error as it does not consider credits, rebates and allowances provided by the builder. However, the Applicant’s calculation did not include expenses excluded from the contract that were paid for by the Respondents totaling $5853.43: light fixtures ($591.28); appliances ($2620.43); blinds ($1605); insurance ($377); taps ($107); interest ($450); and thermostat ($102.72).

I accept the Respondents’ evidence regarding these costs, although the documentation is incomplete. The costs were recorded at the time and are reasonable on their face. It is not surprising that documentation is incomplete given the passage of time. Thus, after deducting the overpayment calculated by the Applicant, the Respondents financial contribution to the acquisition of the Property was $5525.19 ($5853.43 minus $328.24). [ 19 ] It is common ground that the Respondents did not contribute to mortgage payments, property taxes, utility charges, or maintenance or upgrade costs.

These costs were paid from what the Applicant characterizes as “Heather’s funds”, which include rental income from the Property. [ 20 ] The Respondents assert that it was their understanding that the rental payments would constitute their contribution to mortgage payments and other property expenses. There is no evidence of an agreement regarding entitlement to rental income. The 2004 and 2008 Applications refer to rental income being used to pay Property expenses, and to Heather’s “share” of net rental income.

However, rental agreements named Heather alone as landlord, and all rental income was paid to Heather. [ 21 ] David states that he had some involvement in managing the Property from 2004 to 2010. He provides only one example, the provision of a notice of rental increase to one of the tenants in 2007. [ 22 ] For the period 2004 through 2010 Heather’s tax filings did not include rental income.

In 2010, after the dispute about ownership of the Property commenced, Gwendolyn provided information to the Canada Revenue Agency (CRA) and Heather’s income from 2004 to 2010 was reassessed to include all the net rental income from the Property. This practice continued in the following years. Dispute regarding Beneficial Ownership [ 23 ] In 2010, David and Glenna proposed to sell the Property at market value to Blue Heron Vocational Training Centre (Blue Heron), which provided the staff who resided at the Property.

David states that he was concerned that the Property was not being properly maintained, and he thought it was fair for Blue Heron to manage the Property and bear the cost of maintenance. It was a condition of the sale that Heather be paid out her one-third share and be able to live on the Property for the rest of her life. [ 24 ] When Gwen was made aware of this proposal, she sought legal advice regarding what equity, if any, David and Glenna held in the Property.

Counsel concluded that David and Glenna had made no financial contribution to the purchase of the Property and that they held their interests in a resulting trust for Heather. [ 25 ] The dispute regarding beneficial ownership was not resolved in 2010 and the proposed sale did not proceed. The issue arose again in 2016 when the 2008 Order came up for review. Gwen’s review application (the 2016 Review Application) identified Heather as the sole beneficial owner of the Property. David submitted a Request for Hearing in response to the 2016 Review Application.

The issue remained unresolved, and the resulting Order of June 20, 2016, provided that further application to the Court could be made to determine if Heather’s beneficial interest in the Property is otherwise than as described in the 2016 Review Application. [ 26 ] In March 2020, Heather’s health deteriorated, and her condition required that she move to a setting with increased medical support and care. The tenants resided in the property and paid rent until the end of August 2020.

Afterwards, the Property remained vacant, and Gwen paid Property expenses on Heather’s behalf as Heather’s income was insufficient. [ 27 ] The within application was commenced on July 13, 2021.

The relief sought is a declaration that the Respondents hold their interest in the property in a resulting trust for Heather; alternatively, that the parties’ co-ownership be terminated and all sale proceeds from the property be paid to Heather; alternatively, that judgment be granted against the Respondents for damages for unjust enrichment. [ 28 ] By Order dated February 25, 2022, in the within proceeding, the parties agreed to list the Property for sale and to pay out one- third of net sale proceeds to Heather, with entitlement to the remaining two-thirds to be determined by the Court.

The Property was subsequently sold, and Gwen was authorized to transfer the Property on Heather’s behalf by Order dated August 26, 2022.

Resulting Trust [29] The Applicant claims that the Respondents provided no value for their interests in the Property, and that the presumption ofresulting trust applies. The onus is on the Respondents to rebut this presumption, by proving that the Property was intended as a gift tothem or that they provided valuable consideration: Pecore v Pecore, (2007) 2007 SCC 17 , 1 SCR 795, at paras 20, 24 and 25.There is no suggestion that the Property was intended as a gift to the Respondents; the issue is whether the Respondents have proven thatthey provided valuable consideration for the transfer.

Evidence regarding the intention of the transferee is relevant in determiningwhether the transfer was intended as a gift or was made for valuable consideration: Pecore v Pecore at para 43; Bauer (Estate) v Bauer,2019 ABCA 227, at paras 44 and 52-53. [30] I find that the intention of Signe and Gwen as indicated in the 2004 and 2008 Review Applications was that Heather wouldhave a one-third beneficial interest in the Property and the Respondents would have a two-thirds beneficial interest.

This is clear in theinformation provided with the 2008 Review Application, which values the Property at $225,000 and Heather’s one-third interest at$75,000. The Applicant argues that the 2008 Review Application indicates that the Property was intended to be a gift from her family toHeather, where it states: “Heather Maria Genoud has paid no money for her interest in the title other than $6000 and the rest has been agift to her from the other family members” (emphasis added).

This statement does not support the position that the family members hadgifted sole beneficial interest in the Property to Heather; the gift was Heather’s “interest in the title” which is stated elsewhere to be aone-third interest. [31] Gwen states that her intention at the time of the 2004 and 2008 Review Applications was based on her understanding, and shebelieves Signe’s understanding as well, that the Respondents had made a financial contribution to the acquisition of the Property in anamount commensurate with a two-thirds interest.

She argues that this understanding is supported by the Respondents’ claim to havemade a financial contribution of over $14,000. However, the evidence demonstrates that no such contribution was made. [32] I have found that the Respondents did make a financial contribution to construction costs in the amount of $5525, approachingHeather’s $6000 financial contribution. In addition, they provided services during the construction period, negotiating the purchase andconstruction contract, dealing with the builder throughout the construction process, and purchasing items not included in the constructioncontract.

Their credit made it possible to obtain the mortgage, as Heather did not qualify for mortgage financing. The Applicant arguesthat these non-monetary contributions do not rebut the presumption of a resulting trust. However, the case law takes a more nuancedapproach than suggested by the Applicant. [33] In Syrnyk v Syrnyk, 2019 ONSC 225 the parties were two brothers. Title was registered in the defendant’s name, but theplaintiff resided on the property. The plaintiff had negotiated the purchase of the land and construction of a residence. He had paid adeposit but was unable to obtain mortgage financing.

The defendant assisted the plaintiff to complete the transaction so that he would notlose his deposit. The brothers agreed that the defendant would hold title, but the plaintiff would be responsible for all property costs,except for a down-payment, which the defendant paid. The issue was whether the payment of the down payment was a financialcontribution that rebutted the presumption of resulting trust. The court found that it was not; it was agreed to be a loan and had been fullyrepaid. The court further held that the plaintiff acted as property purchaser and property owner throughout.

It was clear he had neverintended the defendant to have beneficial ownership. The presumption of resulting trust was not rebutted, notwithstanding thedefendant’s role in obtaining financing. [34] While there are similarities between this case and Syrnyk v Syrnyk, there are significant differences as well. The Respondentshad a much greater role in the purchase and construction and did make a financial contribution.

Their non-monetary contributions mustbe considered in this context to determine the parties’ intentions. [35] In Walters v Nusseiri, 2019 ONSC 22, the property was initially in the defendant’s name alone, but was transferred to jointownership with the plaintiff while the parties were in a relationship. The court found that the plaintiff made no financial contribution tothe purchase or maintenance of the property, so the presumption of resulting trust applied. The presumption was not rebutted theplaintiff’s non-monetary contributions, in the nature of repairs and renovations to the property.

He had performed this work over the fouryears that he lived on the property. It was not shown that his work enhanced the value of the property. The defendant was not enrichedby the plaintiff’s contributions to the property. Further, any benefit that the plaintiff provided was outweighed by the benefit to him ofliving at the house without contributing toward expenses. [36] This case is quite different from Walters v Nusseiri. The Respondents’ non-monetary contributions related to the acquisitionof the Property.

Heather would never have owned the Property but for the contributions of the Respondents; thus, their contributions didenrich her. Further, the Respondents received no other benefit for their contributions. The Applicant argued that the Respondents reliedon the value of the Property to obtain a loan in 2006, but this was not proven. The document referred to by the Applicant was ambiguous;David denied that it referred to the Property; Glenna said she did not know but speculated that it might have.

The evidence does notdemonstrate any benefit to the Respondents. [37] The Respondents’ financial contribution, combined with their non-monetary contributions to the acquisition of the Property,satisfy me that the presumption of resulting trust either does not apply or has been rebutted. It is also consistent with the evidence that itwas the intention of the parties, including Signe and Gwen acting on behalf of Heather in the 2004 and 2008 Review Applications, thatthe Respondents would have a beneficial interest in the Property.

The fact that the financial contribution was less than claimed by theRespondents does not support a resulting trust, although it may have relevance regarding the application of the Law of Property Act, RSA2000, c L-7 (LPA). Application of the LPA [38] The LPA ss 15 and 17 allow for the partition and sale of property held as a co-tenancy:

Application for termination of co-ownership 15

(1) A co-owner may apply to the Court for an order terminating the co-ownership of the interest in land in which the co-owner is a co-owner.

(2) On hearing an application under subsection (1), the Court shall make an order directing (

a) a physical division of all or part of the land between the co-owners, (

b) the sale of all or part of the interest of land and the distribution of the proceeds of the sale between the co-owners, or (

c) the sale of all or part of the interest of one or more of the co-owners’ interests in land to one or more of the other co-owners who are willing to purchase the interest.

(3) A sale under subsection (2)(

b) or (

c) and the distribution of the proceeds of the sale shall be under the direction of the Court.

(4) In making an order under subsection (2)(c), the Court shall fix the value of the land sold and the terms of the sale. Accounting, contribution and adjustment 17

(1) In making an order, the Court may direct that (

a) an accounting, contribution and adjustment, or any one or more of them, take place in respect of the land, and (

b) compensation, if any, be paid for an unequal division of the land.

(2) In determining if an accounting, contribution or adjustment should take place or compensation be paid for an unequal division of the land, the Court shall, without limiting itself from considering any matter it considers relevant in making its determination, consider whether (

a) one co-owner has excluded another co-owner from the land; (

b) an occupying co-owner was tenant, bailiff or agent of another co-owner; (

c) a co-owner has received from third parties more than the co-owner’s just share of the rents from the land or profits from the reasonable removal of its natural resources; (

d) a co-owner has committed waste by an unreasonable use of the land; (

e) a co-owner has made improvements or capital payments that have increased the realizable value of the land; (

f) a co-owner should be compensated for non-capital expenses in respect of the land; (

g) an occupying co-owner claiming non-capital expenses in respect of the land should be required to pay a fair occupation rent; (

h) a co-owner has at the time the application is made under this Part rights in the land for which the co-owner would receive compensation under the Dower Act if an order had been made under that Act dispensing with that co-owner’s consent to the disposition of that land. [ 39 ] “Co-owners” include both joint tenants and tenants in common: LPA , s 14(a). [ 40 ] The parties have addressed two issues: whether the Property was held in a joint tenancy; and whether there should be an unequal division of the Property under the LPA .

The LPA provisions apply to both joint tenancy and tenancy in common, and do not apply different presumptions to the different forms of co-ownership; however, courts applying the LPA have also considered common law principles including a presumption that joint tenants hold equal interests.

This presumption may be rebutted on a consideration of the factors in s 17(2) of the LPA , and common law factor including unjust enrichment: Jagodnik v Oudshoorn , 2015 ABQB 456 , at paras 100-103 . [ 41 ] The title to the Property lists Heather, David and Glenna as joint tenants, although the 2004 and 2008 Review Applications indicated that Heather and family members were tenants in common. However, this is not conclusive of a joint tenancy that would carry with it a presumption of equal interests.

To determine that, it must be shown that joint tenants are “virtually perfectly equal”; that they share “four unities”: unity of title, unity of time, unity of possession, and unity of interest: Bruce Ziff, Principles of Property Law , 4 th ed., (Toronto: Thomson Canada Limited, 2006) at 312. [ 42 ] Unity of title and unity of time are present in this case as Heather, David and Glenna are registered on title as joint tenants, and all three obtained title at the same time. [ 43 ] I have been referred to three decisions of this court indicating that that unity of possession is not present where it was the intention of the co-owners that they would not equally occupy the property: Herunter v Kostiuk , 2011 ABQB 452 , at paras 91and 95, Christensen v Leigh , 2009 ABQB 247 , at para 7 , and Lemoine v Smashnuk , 2008 ABQB 193 , at para 31 .

The evidence in this case is that it was understood that Heather alone would occupy the Property. It appears that there is no unity of possession. [ 44 ] Justice Moen in Lemoine v Smashnuk , at paras 32-35 , and Justice Yamauchi in Herunter v Kostiuk , at para 96 found that there was no unity of interest where the co-owners’ contributions to the property differed substantially. I will consider the parties’ contributions in relation to the factors set out in s 17(2) of the LPA . As pointed out by Renke J. in Klein v Wolbeck , 2016 ABQB 28 , at

paras 155-156 , the same evidence is considered in relation to the presence of unity of interest, and the question of whether an unequal distribution should be ordered under s 17 of the LPA . Further, in either context, the burden of proof is on the party asserting an unequal distribution. [ 45 ] The parties have relied on ss 17(2)(a), (c),(e),(

f) and (g). l (

a) One co-owner has excluded another co-owner from the land [ 46 ] It was the mutual understanding of the parties that Heather would occupy the Property, and David and Glenna would not. The Respondents nonetheless submit that they were excluded because they discovered when trying to give access to a realtor in March 2022 that the locks to the Property had been changed. There may be many reasons why the locks may have been changed, and there is no suggestion that the Respondents were not given access when they requested it. To the very limited extent that the Respondents ever accessed the Property, there is no evidence that they were excluded from it. (

c) A co-owner has received from third parties more than the co-owner’s just share of the rents from the land [ 47 ] Heather received the rents from the roommates who resided with her at the Property. The rents helped to pay for expenses as specifically contemplated in the 2004 and 2008 Review Applications. Heather reported to CRA net rental income after deducting two- thirds of Property carrying costs (including insurance, interest, professional fees, maintenance and repairs, property taxes and utilities). She had net rental income every year except 2016 and 2019, in amounts ranging from $79 to $3447.

In 2016 she had a net loss of $577 and in 2019 she had a net loss of $1261. [ 48 ] There appears to be a modest benefit to Heather from receiving the rents. From my calculation, the net rental income that she received from 2004 through 2019 was just over $20,000. As noted above, the 2004 and 2008 Review Applications referred to Heather’s “share” of net rental income but did not define this share. While the Respondents stated that it was their belief that the rental amounts were intended to cover their mortgage payments, there was no agreement to this effect.

No reason has been suggested why the Respondents should be credited with the rental income, or even a share of the rental income, given their almost complete lack of involvement in managing the Property. [ 49 ] The Applicant draws an analogy to Andrade v Andrade , 2016 ONCA 368 , where title to a family home was in the name of two sons, but their mother resided there. Expenses for the house were paid from rent generated by it. The sons declared the rent as their income for tax purposes but made no other claim to it. They were not involved in negotiating rental contracts or collecting rent.

The Court of Appeal held that the rent generated from the house belonged to the mother. In this case, the Respondents did not declare the rental income and made no other claim to it, until their response to this application. [ 50 ] Considering that the Respondents made no claim to rental income prior to this application, that they had very minimal involvement in renting the Property even before the dispute about ownership arose in 2010, and no involvement since then; it is my view that Heather was justly entitled to 100% of the rental income. (

e) A co-owner has made improvements or capital payments that have increased the realizable value of the land [ 51 ] The parties’ financial contributions to the acquisition of the property were $6000 from Heather and $5525 from the Respondents jointly. [ 52 ] All post-possession improvements including landscaping, a central vacuum system and in-floor heating in the basement were paid for by Heather. Gwen’s evidence is that David may have initially covered some costs, but these were reimbursed to him from Heather’s funds.

There is no evidence that there was any increase in the value of the lands as a result; and some or all of these costs may be included in maintenance and repair costs reported to CRA. I would not assign any additional credit to Heather for post-possession improvements. [ 53 ] As of December 31, 2021, the principal balance on the mortgage was $61,066.91. Over the approximately 18 years that Heather made the mortgage payments (or Gwen made them on Heather’s behalf), capital payments were made totaling more than $85,945.69 ($147,012.60 principal amount of the mortgage less $61,066.91). (

f) A co-owner should be compensated for non-capital expenses in respect of the land [ 54 ] All non-capital expenses since possession of the Property were paid by Heather. As discussed above, two-thirds of non-capital costs were covered by rental income in almost all years. Heather paid the remaining one-third. Since the Property has been vacant, non- capital costs have been paid by Gwen on Heather’s behalf. (

g) An occupying co-owner claiming non-capital expenses in respect of the land should be required to pay a fair occupation rent [ 55 ] The rent paid by the tenants was originally $435 per month and in 2007 was increased to $485 per month. This is the only

evidence as to a fair amount for occupation rent. Heather’s tax returns indicate that in all but two years, rent paid by the tenants paid for their share of carrying costs. I conclude, therefore, that the benefit Heather received by not being required to pay occupation rent off-sets the non-capital expenses that she paid. This was the case until Heather was no longer able to reside on the Property. Since then, there has been no off-set for the payment of non-capital expenses. Unjust enrichment [ 56 ] The LPA factors are not exclusive.

Other common law considerations apply; including unjust enrichment: Jagodnik v Oudshoorn , at paras 100-103 . A portion, sometimes a significant portion, of the value of real property does not derive directly from financial or non-financial contributions of co-owners, but from market forces. The issue is whether there is an unjust enrichment arising from the way in which this “windfall” is apportioned between the parties. [ 57 ] The parties provided little evidence about the value of the Property.

The Applicant submits that there was no equity in the Property when Heather moved in and took responsibility for all expenses. The Respondents do not say otherwise. Acquisition costs referred to above totaled $155,490.19. [ 58 ] The 2008 Review Application indicated that the value of the Property was $225,000, indicating a market increase at that time of about $70,000. Neither party provided current information about the value of the Property at the hearing of this application; counsel advised that the real estate market in Athabasca has not been strong. I was not advised about the sale price in August 2022.

Nonetheless, the evidence suggests that there has been a market increase in the value of the Property since its purchase. How should that increase be apportioned? [ 59 ] From a consideration of financial contributions to the Property, the Applicant’s at $6000 for the purchase and approximately $86,000 in principal payments on the mortgage far outweighs the Respondents’ contribution of $5525. Further, while the Respondents made non-monetary contributions to the acquisition of the Property, those are far outweighed by the Applicant’s contributions over 18 years in maintaining the Property.

These factors provide support for the Applicant’s position that the Respondents should receive only reimbursement for their expenses, rather than an equitable interest in the Property. [ 60 ] However, it is my view that the Respondents are entitled to an interest in the Property. At the time of acquisition, their financial contribution was only a little less than the Applicant’s, and their non-monetary contribution was greater. It was intended by those acting on Heather’s behalf that the Respondents would have a beneficial interest in the Property.

There is force in the Respondents’ argument that Heather would never have acquired the Property without their contributions. [ 61 ] Heather’s capital payments on the mortgage can be accounted for by an adjustment, following the approach I adopted in Jagodnik v Oudshoorn . After that adjustment is made, it is my view that the value in the Property resulting from a rise in the market should be shared between the parties.

It is further my view that the appropriate division of sale proceeds from the Property, after allocating to the Applicant the value of her capital payments on the mortgage, is two-thirds to the Applicant, and one-third to the Respondents jointly. This share is based on their roughly equal contributions at the time of acquisition of the Property, and the Applicant’s greater contributions thereafter. Conclusion [ 62 ] The application for a declaration of resulting trust is denied. The application under the LPA for an unequal division of proceeds from the sale of the Property is granted as summarized below.

Given my ruling under the LPA it is not necessary to address the claim for damages for unjust enrichment. [ 63 ] From the sale proceeds, an amount equal to the Applicant’s capital payments on the mortgage should be paid to the Applicant. The remaining proceeds should be allocated with two-thirds paid to the Applicant, and one-third to the Respondents jointly. [ 64 ] I have not given directions regarding reimbursement to Gwen for property expenses which she paid on Heather’s behalf.

If reimbursement has not already been made, it should come from Heather’s share of the proceeds, as I have considered Gwen’s payments as made on Heather’s behalf, when determining adjustments and proportionate shares under the LPA . [ 65 ] If the parties require further direction regarding the sale proceeds, they may provide written submissions to me. [ 66 ] Further, if the parties are unable to agree on costs, they may provide written submissions.

Heard on the 25 th day of February, 2022 with further written submissions on the 24 th day of March and 8 th day of April, 2022 Dated at the City of Edmonton, Alberta this 25 th day of October, 2022 . J.M. Ross J.C.K.B.A.

Appearances: Amy Abbott for the Applicant Jillian Gamez for the Respondents