E.S., Applicant, – v. –, 2023 NBKB 192

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON E.S. v. J.M. 2023 NBKB 192 FDM-248-2021 2023/11/10 BETWEEN: E.S., Applicant, – and – J.M., Respondent. DECISION BEFORE: Madam Justice Colette M. d’Entremont AT: Moncton, New Brunswick DATE OF HEARING: July 11, and October 16, 2023

DATE OF DECISION: November 10, 2023 APPEARANCES: Jack Haller, for the Applicant, on the second day of the hearing. On the first day of the hearing, the Applicant represented herself. Daniel Gallant, for the Respondent d’Entremont, J. INTRODUCTION [ 1 ] The Applicant, Ms. S., argues that she and the Respondent, Mr. M., had an agreement whereby, subject to a few conditions, she would become the sole owner of the jointly held family residence after the separation. Ms. S. proposes that if Mr. M. is awarded a portion of the equity in the house, he will be unjustly enriched. If Ms.

S. has success in this matter, she is asking for an award of costs. [ 2 ] For his part, Mr. M. says there was no agreement between the spouses. He argues that he is entitled to one-half of the equity in the jointly held family residence. He advances that if Ms. S. has all the equity in the residence, she will be unjustly enriched. He proposes that the residence be sold and that the proceeds be divided. As well, Mr. M. is requesting the return of certain furniture, namely, the bedroom set (but not the bed), the TV stand and the deep freeze. In the event that he is successful, Mr. M. advances a claim for costs.

On the last day of the trial, Mr. M. withdrew his claim relating to occupational rent and to an interest in a 2013 Nissan Pathfinder. FACTS [ 3 ] The parties commenced living together as a couple in May of 2010. [ 4 ] At the time, Ms. S. had three children from a previous relationship and Mr. M. had one boy from a previous relationship. The parties had a child, L.M., born in 2011. [ 5 ] The parties were never married. They finally separated around mid-May of 2019 while Mr. M. recovered from heart surgery. [ 6 ] When the parties commenced their relationship, their financial resources were limited. In fact, Mr.

M. had outstanding payday loans and cash loans. The couple opened a joint bank account in which they both deposited their incomes and from which they paid the family bills. They continued to use this account until July of 2020, that is, over one year after the separation. During her testimony, Ms. S. accused Mr. M. of wasting money while they were together. She criticized him for buying power drinks, ordering takeout food, and subscribing to cable TV packages. [ 7 ] At one point during the relationship, Mr. M. received a lump sum of $24,000 as disability benefits from Canada Pension Plan.

From this amount, the sum of $13,000 went to reimburse the Province of New Brunswick, as the family had been collecting social assistance benefits for some time. The remainder was used to cover family expenses. [ 8 ] Throughout the relationship, Ms. S. was employed outside the home. She worked as a waitress at various restaurants in the Greater Moncton area. Furthermore, Ms. S. worked for H & R Block and then she was employed as a cleaner. For the most part, her

income was based on minimum wage. She earned between $14,000 and $28,600 per year. [ 9 ] For his part, Mr. M. was considered to be disabled as he was afflicted with a serious heart condition. He collected Canada Penson Plan disability benefits of about $7,035 to $7,600 per year. Additionally, the five children living with the couple received the children’s portion of the Canada Pension Plan benefits. This totaled about $3,000 per child per annum for five children, which meant about $15,000 per year.

The family also received the Canada Tax Benefit for the five children from the government of Canada. [ 10 ] Generally, when Ms. S. was working, Mr. M. is the parent who remained home to care for the children. [ 11 ] In 2014, the family was selected for a Habitat for Humanity home. The family members had to complete 500 hours of sweat equity.

Typically, the recipient families who qualified for a Habitat for Humanity residence had a household income of between $28,000 and $46,000. [ 12 ] On November 17, 2014, the title to the home located at 48 Point Park Drive, in Riverview, New Brunswick, was taken in joint tenancy by Ms. S. and Mr. M. The home was bought for about $128,000. In December of 2014, the family of seven moved in the residence. [ 13 ] The parties are listed as the mortgagors on a mortgage securing the principal amount of $128,000 relating to the purchase of the residence.

The mortgage contains a “right of first refusal”, meaning that when the house is sold, Habitat for Humanity – Moncton Region Inc. has the first option to repurchase the home at the fair market value less 5%. [ 14 ] Following the separation, Ms. S., the parties’ son L., as well as some of the other children remained in the home, [ 15 ] For his part, Mr. M. went to live at his mother’s house for some time. Then he resided with a friend until 2021. In the winter of 2021, he moved in with a new partner. In July of 2022, Mr. M. married his new partner. He now lives with his wife and four children. [ 16 ] When Mr.

M. left the home, he took a shotgun, rings, a 40-inch television set, a neck chain, a hunting case, hunting gear, and a record player. [ 17 ] After the parties ceased to live together, Ms. S. told Mr. M. he could have the TV stand and the freezer. He never came to retrieve these items. Ms. S. then transferred the TV stand and the freezer to Mr. M.’s son. These are two household items that Mr. M. was asking for at the within trial. Given that Mr. M.’s son has these objects, then Mr. M. may request these from his son. [ 18 ] Regarding the other items requested by Mr.

M., that is, the “bedroom set without the bed”, there was no evidence at the trial on this issue. I am not aware of its value or whether this item still exists. Therefore, Mr. M.’s claim to have the bedroom set, without the bed, is denied. Normally, an independent appraisal of the items requested would be carried out or there would be some evidence relating to the requested item during the trial. [ 19 ] The issue relating to the parenting order regarding the couple’s son L. was settled on June 17, 2021, by a Consent Order. The parties share decision-making responsibility regarding the child. Ms.

S. has the vast majority of the parenting time in respect to the child. Mr. M.’s parenting time is every second weekend as well as some time during the holidays. Mr. M. was ordered to pay child support of $120 per month starting July 1, 2021, based on his annual income of $15,067. [ 20 ] Following the separation, Ms. S. was of the view that the parties had an agreement settling the issue pertaining to the home. She believed that she would be the sole owner of the house if Mr.

M. had access to the joint bank account for a year after the separation, and if he received the newer Xbox, a 42-inch television, the engagement and wedding rings, and everything that he received as a gift during the relationship. Mr. M. took most of these items and he had access to the joint bank account. Ms. S. testified that title to the property was not transferred to her pursuant to the alleged deal as Ms. S. could not afford to pay a lawyer to complete the transfer.

[ 21 ] For his part, Mr. M. disagrees. He says he always wanted the equity in the house and there was no kitchen table agreement whereby he would transfer his interest in the property if he had access to the joint bank account and if he received certain items. Certainly, there was nothing in writing relating to the deal and nobody had legal advice. However, Mr.

M. did receive most of the requested items and he had access to the joint bank account for over a year after the separation. [ 22 ] As for the value of the home, the provincial assessment value according to the Province of New Brunswick has been as follows: Assessment 2019 $145,000 2020 $149,900 2021 $149,900 2022 $171,400 2023 $232,300 [ 23 ] The balance due on the mortgage registered against the residence was as follows: April 2019 $107,004 July 4, 2023 $91,926 [ 24 ] Mr. M. argues the house is worth more than the assessed value provided by the province.

He relies on an email sent to him by Amanda Ryan, real estate agent. This is opinion evidence. Ms. Ryan did not prepare a proper appraisal of the property, nor did she testify and she was not qualified as an expert. Consequently, I will disregard this evidence. [ 25 ] Following the separation, Ms. S., three of the children and her new partner resided in the home. Ms. S. paid most of the mortgage payments of about $650 per month and she was responsible for the utility bills relating to the house. [ 26 ] At the time of the trial, the water bill owing to the Town of Riverview for the residence was about $7,200.

When Mr. M. moved out in April of 2019, the water bill was $1,500. Mr. M. agrees he is liable for one-half of this amount, that is, $750. Also, at the time of the trial, the outstanding N.B. Power bill was about $690. Although the outstanding mortgage was about $91,000 at the time of the trial, Ms. S. had accumulated mortgage arrears of $2,555 while she had sole possession of the premises. Ms. S. indicated that she carried out renovations to the home in the amount of $1,500 since the separation. ISSUES: [ 27 ] The issues in this matter are the following: – Was there an agreement between the parties whereby Mr.

M. relinquished any interest in the home in exchange for use of the joint bank account and the return of certain items? – How should the interest in the family home be divided? – Does the principle of unjust enrichment apply in this situation? – What is the valuation date to be used for the home? – Should there be an award as to costs? Agreement [ 28 ] Ms. S. argues that she and Mr. M. had a verbal kitchen table agreement whereby Mr. M. agreed to transfer his interest in the jointly-held family home in exchange for having access to the joint bank account and the return of certain items. Mr. M. says there was

no such deal. [ 29 ] Following a separation, the parties who have been cohabiting may settle their differences by executing a separation agreement. The Marital Property Act , RSNB 2012, c. 107 , which generally applies to married spouses, provides for this situation.

Section 36 of the M.P.A. reads as follows: 36 Two persons who cohabited and are living separate and apart or who are cohabiting and agree to live separate and apart may enter into a separation agreement in which they agree on their respective rights and obligations, including (

a) ownership in or division of property, (

b) support obligations, (

c) the right to parenting time or decision-making responsibility with respect to their children, and (

d) any other matter in the settlement of their affairs. [ 30 ] However,

section 37 of the M.P.A. provides that such agreements must satisfy certain conditions in order to be valid. This

section reads as follows: 37 A domestic contract and any agreement to amend or rescind a domestic contract shall be in writing, shall be signed by the parties to be bound and shall be witnessed. [ 31 ] The purported agreement in the within matter may be described as a “kitchen table agreement” ( Canadian Family Law , 7 th edition, by Julien D. Payne and Marilyn A. Payne, page 295). However, before embarking on an analysis as to the validity of the agreement based on the fact that no legal advice was obtained as provided for in

section 43 of the M.P.A. or whether the deal was unconscionable based on Miglin v. Miglin , 2003, SCC 24 , I must find that there is an agreement. In the within matter, the requirements that the deal be in writing, that it be signed by the parties and be witnessed have not been respected. Accordingly, I find there was no separation agreement dealing with the division of the family residence. [ 32 ] Therefore, Ms. S.’s claim that she had a deal with Mr. M. pertaining to her becoming the sole owner of the jointly-held home is dismissed.

Division of home [ 33 ] The parties acquired title to the family home as joint tenants, meaning that they are both owners of the property. [ 34 ] Mr. M. is asking that the home be sold and that on the severance of the joint tenancy, each party receive one-half of the beneficial interest in the property. He relies on Rule 67 of the New Brunswick Rules of Court . The rule provides that the court may order that lands be sold and direct the distribution of the proceeds of the sale in accordance with the interests of the owners. Given that the joint tenants have been separated for over four years and that Ms.

S. is not in a position to buy out Mr. M.’s share, I order that the property located at 48 Point Park Drive, in Riverview, New Brunswick, be sold. The proceeds of the sale will be divided as explained later in these reasons.

Was there an unjust enrichment? [35] Ms. S. has argued that Mr. M. will be unjustly enriched if he receives one-half of the property. Ms. S. advances that he did notcontribute as much as she did to the property, essentially saying that she worked and earned a salary, whereas Mr. M. spent money onunnecessary items. The evidence shows that while Ms. S. worked, Mr. M. was responsible for the five children as he was home. Heapplied for and received disability benefits from CPP for himself and for the five children. The parties spent money on various thingswhile they were a family.

They both spent money on cigarettes, alcohol, food, cable television, housing, and transportation. The partiesspent money from the joint bank account while they were a family and while they were in a relationship. Generally, it is not for theCourt to analyze and criticize the spending habits of the parties while they were together unless the spending was outrageous.

This is notthe case in the within matter. [36] As well, for a claim of unjust enrichment to be made out, there must be three elements proven, namely, whether the defendanthas been enriched by the plaintiff and whether the plaintiff has suffered as corresponding deprivation. The third element of an unjustenrichment claim is that the benefit and corresponding detriment must have occurred without a juristic reason (see Kerr v. Baranow,2011 SCC 10 , [2011] 1 SCR 269, paragraphs 36 to 40). [37] In this case, I recognize that Mr. M. was not employed outside the home while Ms.

S. was working and earning an income.However, Mr. M. was caring for the children while she was working. Ms. S. argued that Mr. M. wasted and spent more money than hebrought in. The fact is that one-half of the household income was derived from the Canada Pension Plan disability benefits received byMr. M., and the five children’s portion of the dependents CPP disability benefit. I cannot conclude that Mr. M. would be unjustlyenriched if he received one-half of the equity in the jointy-held property. [38] Regardless, there is a juristic reason as to why Mr.

M. should be entitled to one-half of the proceeds of the sale; that is, he was ajoint tenancy owner of the home and as such he is entitled to his interest in the home. The valuation date [39] Ms. S. proposes that the valuation date for the purpose of the division of the interests in the home be as of the date of separation,that is, in 2019. However, Mr.

M. proposes that since then, and with the onset of the pandemic in 2020, the value of real estate in theRiverview-Moncton area has increased significantly and it would be unfair to use the provincial assessment value of 2019, but preferableto use the present-day market value to divide the proceeds of the home. [40] The decision of LeBouthillier v. LeBouthillier

(1992) CanLII 4211 NBCA, indicates that in some cases, the property assessmentproduced by the Province of New Brunswick may be used when determining the value of a residence in the context of a division ofassets. However, generally, the provincial property assessment does not reflect the true market value of real property. A propertyappraisal carried out by an independent professional appraiser produces a better determination of the true value of real estate. In this case,I do not have a property appraisal. [41] In L.T.G. v.

C.J.G., 2011 NBCA 12, the New Brunswick Court of Appeal dealt with the valuation date and the value of themarital home to be used when dividing marital assets and debts. In paragraph 8 of the said decision, the Court recognized that a properapproach was to use the evidence of the appraiser as of the date of the trial and then subtract the cost of renovations carried out on theproperty after the separation. [42] Ms. S. has indicated that she cannot afford to buy out Mr. M.’s interest. Therefore, the proper value to be attributed to the housewill be the price the real estate market will produce.

The evidence of renovations carried out after the date of separation is that thesetotaled about $1,500. The amount outstanding on the mortgage will be provided by the mortgagee, Habitat for Humanity-MonctonRegion Inc. [43] The house could be bought by Habitat for Humanity, if it exercises its right of first refusal. If not, the house will be listed for saleby a real estate agent at a reasonable price as determined by the real estate agent. The parties shall accept offers being within 90% of thelisting price.

Upon the sale of the property to Habitat for Humanity or a third party, the proceeds will be distributed in the followingorder:

a) The real estate fees and legal fees relating to the sale shall be paid;

b) The outstanding mortgage as of the date of the sale (excluding arrears owed by Ms. S.) owing to Habitat for Humanity shall be paid;

c) The sum of $1,500 shall be paid to Ms. S. representing the cost of renovations after the separation;

d) The balance shall be divided in two parts for each of the parties;

e) From Mr. M.’s part, $750 will be used to pay one-half of the water bill owing to the Town of Riverview, for the time he was living there; the remainder of this portion shall be transferred to Mr. M.; and

f) From Ms. S.’s part, the following will be paid: the remainder of the water bill owing to the Town of Riverview, the arrears on the mortgage accumulated while she had exclusive possession of the house, the N.B. Power bill while she was living in the house, and costs of $5,000 in favour of Mr. M. as per the following paragraphs; the remainder of this portion shall be transferred to Ms. S. [ 44 ] In the event that Ms.

S. is unable or unwilling to sign the listing agreement, the agreement of purchase and sale, the transfer or any other documents relating to the sale, the clerk of the Court of King’s Bench of New Brunswick, Judicial District of Moncton, shall sign the documents on her behalf (see

section 37 of the Judicature Act , R.S.N.B., 1973, c.J-2 ). COSTS [ 45 ] Both parties requested an award of costs in the event that he or she was successful. [ 46 ] Rule 59 of the Rules of Court of New Brunswick deals with the issue of costs. This rule reads as follows: 59.01 Authority of the Court

(1) Subject to any Act and these rules, the costs of a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs shall be paid.

(2) Nothing in this rule shall be construed so as to interfere with the authority of the court (

a) to fix the costs of a proceeding, or a step in a proceeding, with or without reference to a tariff, instead of requiring assessment of the costs, (

b) to allow or refuse costs in respect of a particular issue or part of a proceeding, (

c) to order costs to be assessed on a solicitor and client basis, or (

d) where parties are entitled to costs from each other, to order set-off of the costs. 59.02 Costs of a Proceeding In fixing costs, the court may consider (

a) the amount claimed and the amount recovered,

(

b) the apportionment of liability, (

c) the complexity of the proceeding, (

d) the importance of the issues, (

e) the conduct of any party which tended to shorten or unnecessarily lengthen the duration of the proceeding, (

f) the manner in which the proceeding was conducted, (

g) any step in the proceeding which was improper, vexatious, prolix or unnecessary, (

h) any step in the proceeding which was taken through over-caution, negligence or mistake, (

i) the neglect or refusal of any party to make an admission which should have been made, (

j) whether or not two or more defendants or respondents should be allowed more than one set of costs, where they have defended theproceeding by different solicitors, or where, although they defended by the same solicitor, they separated unnecessarily in their defence, (

k) whether two or more plaintiffs, represented by the same solicitor, initiate separate actions unnecessarily, and (

l) any other matter relevant to the question of costs [47] With respect to costs, the following passages found in Rademaker v. Rademaker, 2002 NBCA 47, give some guidance on thequestion of costs in family matters. Paragraphs 27 and 28 read as follows: 27 The only remaining issue is that of costs. In Simms v. Simms (1996), (NB CA), 182 N.B.R. (2d) 362 therespondent cross-appealed the award of costs.

The trial judge had awarded costs of $10,000.00 in addition to suit money of $7,500.00,which the respondent submitted were inordinately low considering the length of the trial, the interlocutory proceedings, the complexityof the issues and, particularly, the amount of marital property involved, $707,314.00. Hoyt C.J.N.B. made the following comment atpara.14: The trial lasted four days. Apart from two consent orders contained in the Appeal Book, we were not made aware of the number ornature of the pre-trial applications. Mrs. Simms did not call direct expert evidence about the most complex issue, valuation.

I can see noreason to invoke Tariff A of Rule 59 of the Rules of Court to determine costs at trial in family matters. Its use might often upset anotherwise delicate division of marital property. Frequently, as here, not all marital property or its value is in issue. Most important,however, is the nature of the resolution of family disputes. Rules 72, 73 and 74 recognize that family matters are considered under adifferent regime than most other civil disputes. I can see no reason to introduce the rigidity of Tariff A of Rule 59 to marital propertydisputes.

In my view, costs of $17,500.00 for this four-day trial are reasonable. 28 In the case before us the trial judge made no award as to costs after the four-day hearing even though there was a considerableamount of property involved. Furthermore he gave no reasons for not allowing costs. I agree that in cases involving family disputesregarding the custody and access of children and child and spousal maintenance orders awarding costs under Rule 59 may generally notbe appropriate. However in cases where division of property is at issue and an amount involved is easily determined, as in a civil case,

then it is appropriate to apply the Tariff under Rule 59 . [ 48 ] This was a two-day trial. The contentious issue was the determination of the interest of the parties in a property held in joint tenancy. [ 49 ] All in all, I am of the view this was a rather simple case. Since the separation, Mr. M. has tried to get one-half of the equity in the jointly held family home, which is a straightforward calculation. Ms. S. did not cooperate in this regard. [ 50 ] The determination of costs is at the discretion of the trial judge. Given that Mr.

M. has had more success in this matter, he is entitled to an award of costs of $5,000, which amount shall be paid to Mr. M. from Ms. S.’s share of the proceeds of the sale of the family residence. DISPOSITION [ 51 ] I order as follows: (

a) Ms. S.’s claim that there was an agreement whereby she would be the sole owner of the jointly held property is dismissed. (

b) The property located at 48 Point Park Drive, in Riverview, New Brunswick, shall be sold. (

c) The claim of unjust enrichment is not proven. (

d) The proceeds of the sale of the home shall be disbursed as provided for in paragraph 43 of these reasons. (

e) Mr. M. is entitled to an award of costs of $5,000. DATED at Moncton, N.B., this 10 th day of November 2023. _______________________________________ Colette M. d’Entremont Justice of the Court of King’s Bench of New Brunswick