Dimitrova v Dimitrov, 2023 ABKB 227

Court of King’s Bench of Alberta Citation: Dimitrova v Dimitrov, 2023 ABKB 227 Date: 20230418 Docket: FL01 29842 Registry: Calgary Between: Zornitsa Valentinova Mladenova Dimitrova Plaintiff - and - Nikolay Gueorguiev Dimitrov Defendant _______________________________________________________ Reasons for Decision of the Honourable Justice E.J.

Sidnell _______________________________________________________ [ 1 ] Immediately before being married in Bulgaria, on October 26, 2011, the Defendant, Nikolay Gueorguiev Dimitrov, lived in Calgary, Alberta, and the Plaintiff, Zornitsa Valentinova Mladenova Dimitrova, resided in Bulgaria. During their six-year marriage, the parties lived in several countries.

[ 2 ] At issue is the appropriate division of two residential condominiums located in Calgary (the Condos), both purchased by Mr. Dimitrov before the marriage, in his sole name. This case involves the application of unjust enrichment and joint family venture principles. [ 3 ] During the two-day trial, the legal descriptions for the Condos were entered in evidence but referred to by their unit numbers: “Unit 308”, being where the parties resided together for a period during the marriage; and “Unit 5” which was either occupied by Mr.

Dimitrov’s son or rented out during the marriage. [ 4 ] On April 1, 2022, Kenny J ordered that this matter be set down for a two-day trial to determine the following issues: (

a) As a preliminary issue of jurisdiction, will or should the Court in Canada take jurisdiction over all of the matrimonial property of the parties both in Canada and Bulgaria and make an order distributing all of that property under the laws in Canada? (

b) If so, what is the proper distribution of all of the parties' matrimonial property? (

c) If the Court does not take jurisdiction over all of the parties' matrimonial property, what is the interest of Ms. Dimitrova in the property in Canada? [ 5 ] The parties subsequently agreed that this Court has the jurisdiction to determine the division of the Condos and that the Bulgarian courts have jurisdiction over their property in Bulgaria. As a result, the parties released one of the trial days. The trial was not concluded in one day and the matter was continued for a second day, approximately two months later. In the interim, the parties submitted written argument.

The evidence was given virtually as Ms. Dimitrova and Mr. Dimitrov currently reside in Bulgaria. [ 6 ] Given the parties’ agreement on jurisdiction, the issue to be determined is whether there is any basis for Ms. Dimitrova’s claim for unjust enrichment and, if there is, was there a joint family venture entitling Ms. Dimitrova to a portion of the increase in Mr. Dimitrov’s equity in the Condos. Legal framework [ 7 ] The parties agree that since they separated in 2017, the applicable Alberta property division legislation is the Matrimonial Property Act , RSA 2000, c M-8 ( MPA ).

However, although the parties lived together as a married couple in Canada, the MPA does not apply because neither of the parties meets the habitual residence test set out in s 3(1) and no statement of claim for divorce was filed as contemplated in s 3(2). [ 8 ] The parties agree that the legal principles to be applied are unjust enrichment and joint family venture.

Both also submitted that the analysis should begin with a determination of whether there is a joint family venture and, if there is one, a determination of whether there has been any unjust enrichment. [ 9 ] To support the assertion that the Court should first consider whether a joint family venture exists, Ms. Dimitrova referred to the sub-heading before para 87 in Kerr v Baranow , 2011 SCC 10 : “

(5) Identifying Unjust Enrichment Arising From a Joint Family Venture”. This sub-heading appears in that case in the context of Cromwell J’s discussion of: “ Is a Monetary Award Restricted to Quantum Meruit? ”. [ 10 ] The Kerr decision deals with two appeals, described at paras 4 and 5. In Vanasse , unjust enrichment was conceded, and Cromwell J addressed the quantification of a monetary award for unjust enrichment.

The Kerr appeal addressed the role of a resulting trust, how an unjust enrichment analysis should account for the mutual conference of benefits and the role of the parties’ intentions and expectations in that analysis. The latter two points were raised in this case by Mr. Dimitrov. [ 11 ] In relation to the Kerr appeal, Cromwell J said, at para 194: ... As set out earlier in my reasons, for Ms. Kerr to show an entitlement to a proportionate share of the wealth accumulated during the relationship, she must establish that Mr.

Baranow has been unjustly enriched at her expense, that their relationship constituted a joint family venture, and that her contributions are linked to the generation of wealth during the relationship. She would then have to show what proportion of the jointly accumulated wealth reflects her contributions. ... [ 12 ] Clearly, Cromwell J put the consideration of whether there has been unjust enrichment before an analysis of whether there was a joint family venture. [ 13 ] Hoy JA, writing for a unanimous Ontario Court of Appeal in Martin v Sansome , 2014 ONCA 14 , at para 51 , referred to Cromwell J’s

summary of quantum meruit versus constructive trust, see Kerr at para 100 .

Then, at para 52, Hoy JA described the steps of inquiry to be followed by a court dealing with a claim for unjust enrichment, such as this one: In this way, the framework established in Kerr requires the court to ask the following questions: (1) have the elements of unjust enrichment -- enrichment and a corresponding deprivation in the absence of a juristic reason -- been made out; (2) if so, will monetary damages suffice to address the unjust enrichment, keeping in mind bars to recovery and special ties to the property that cannot be remedied by money; (3) if the answer to question 2 is yes, should the monetary damages be quantified on a fee-for-service basis or a joint family venture basis; and

(4) if, and only if monetary damages are insufficient, is there a sufficient nexus to a property that warrants impressing it with a constructive trust interest? [ 14 ] Epstein JA, again on behalf of a unanimous Ontario Court of Appeal, reiterated the Martin steps of inquiry in Reiter v Hollub , 2017 ONCA 186 , and stated, at para 26: ... it would have been preferable to first establish whether there was any unjust enrichment before considering the possibility of a joint family venture. The joint family venture inquiry concerns remedy. In Martin v.

Sansome ... , this court set out the appropriate analysis for determining an unjust enrichment-based claim for an interest in property within the context of a domestic relationship ... [ 15 ] The Martin steps of inquiry were also adopted in Lesko v Lesko , 2021 ONCA 369 . The Manitoba Court of Appeal in a unanimous decision, using slightly different wording, adopted the Martin steps of inquiry. [ 16 ] Mr. Dimitrov submits that the law is different in Alberta and points to the trial and appellate decisions in Long v Buchner , 2016 ABQB 523 and upheld on appeal 2017 ABCA 382 .

However, these decisions disclose an analytical framework similar to the Martin steps of inquiry: see 2016 ABQB 523, at paras 9 to 24, and 2017 ABCA 382, at paras 14 and 15. [ 17 ] Furthermore, in Ernst v Martins , 2019 ABCA 242 , at paras 32 to 34 , the Alberta Court of Court set out the analytic steps, which also reflect the Martin steps of inquiry: After a finding of unjust enrichment, there are three steps involved in crafting a remedy. First, the court must determine whether the parties were engaged in a joint family venture. ...

Second, the court must determine whether the claimant’s contribution to the joint family venture was sufficiently connected to the generation of wealth, or whether the parties’ “joint effort … led to an accumulation of assets generally”: Kerr at para 78 . If so, then personal relief can be calculated on a value-surviving basis to the extent that the plaintiff’s contributions are connected to the defendant’s enhanced wealth. Third, the court must choose a mechanism for calculating the award.

In Kerr at para 80 , the Supreme Court encouraged a move away from “the false remedial dichotomy” between the “fee-for-service” and “share of specific property” models. The court’s focus should be on remedying any “unjust retention of a disproportionate share of assets accumulated during the course of … a ‘joint family venture’ to which both partners have contributed”. Clear instruction is found at Kerr para 102 ... [ 18 ] I find that the framework set out in Martin and Ernst for the steps of inquiry is applicable in this case.

Accordingly, I will first look at entitlement under the principles of unjust enrichment and then turn to the joint family venture analysis. Ms. Dimitrova conceded that she does not seek a proprietary claim and that the relief she seeks is limited to a monetary award. Brief chronology [ 19 ] A brief chronology will assist in establishing the context for the issues to be determined: (

a) Mr. Dimitrov purchased Unit 5 for $190,750 on or about May 11, 2009. (

b) Mr. Dimitrov purchased Unit 308 on June 30, 2009 for $210,000. (

c) The parties had a brief courtship and did not live together before marriage. During their courtship, they discussed having children together and agreed that they would try. This is important because it provides context for some of the accommodations made during the marriage. (

d) To facilitate Ms. Dimitrova’s move to Canada, Mr. Dimitrov applied to sponsor her by making an application to what was then “Citizenship and Immigration Canada” and is now known as “Immigration, Refugees and Citizenship Canada”. For ease of reference, I have referred to this government department as “Immigration Canada”. (

e) From the date of marriage until their separation, the parties’ residential status and locations were as follows: Phase Residential Status Start Date End Date Duration (months) Description of arrangement 1 Apart October 26, 2011 November 28, 2013 25 Mr. Dimitrov resided in Unit 308 and applied to Immigration Canada to sponsor Ms. Dimitrova, who resided in Bulgaria 2 Together November 28, 2013 September 10, 2014 9.5 They lived in Unit 308 once Ms. Dimitrova obtained her immigration status 3 Apart September 10, 2014 March 28, 2015 6.5 Ms.

Dimitrova travelled to Bulgaria to participate in an in vitro fertilization program and Mr. Dimitrov stayed in Calgary in Unit 308; during this time, the parties communicated daily by video

4 Together March 28, 2015 July 28, 2016 16 Mr. Dimitrov took a position in Iraq, with living arrangements in Dubai in a company-supplied apartment and Ms. Dimitrova moved to Dubai 5 Together July 28, 2016 October 26, 2017 15 Mr. Dimitrov’s work contract changed, and the parties moved to reside in Bulgaria while Mr.

Dimitrov worked in Iraq 28 days on and 28 days off 6 Apart October 26, 2017 March 28, 2023 65 Separation to trial: the parties lived apart [ 20 ] Notwithstanding that there are no children of the marriage, I refer to the parties, at times, as a family as, in my view, they were a family regardless of whether they had a child. The parties separated on or about October 26, 2017 and currently both reside in Bulgaria. [ 21 ] Mr. Dimitrov commenced divorce proceedings in Bulgaria on June 14, 2018 and a divorce was granted in October 2021.

The parties testified that they have submitted to the jurisdiction of the Bulgarian courts in relation to their property in Bulgaria and are still litigating that dispute. [ 22 ] Ms. Dimitrova commenced this action, and registered Certificates of Lis Pendens against each of the Condos, on October 17, 2018.

Unjust enrichment [ 23 ] The well-known test for unjust enrichment was revisited by Cromwell J in Kerr , at para 32 : Canadian law ... permits recovery whenever the plaintiff can establish three elements: an enrichment of or benefit to the defendant, a corresponding deprivation of the plaintiff, and the absence of a juristic reason for the enrichment ... [ 24 ] In Vanasse , the companion appeal in Kerr , at para 136 , Cromwell J explained that the trial judge divided the relationship of the parties into three distinct periods.

In this case, the parties referenced five distinct periods of the relationship, plus the period after separation until trial. These six distinct periods are described in the table above, at paragraph [19]. Was there an enrichment of, or benefit to, Mr. Dimitrov? [ 25 ] In Kerr , at para 38 , Cromwell J described the analysis at this first stage: For the first requirement — enrichment — the plaintiff must show that he or she gave something to the defendant which the defendant received and retained.

The benefit need not be retained permanently, but there must be a benefit which has enriched the defendant, and which can be restored to the plaintiff in specie or by money. Moreover, the benefit must be tangible. It may be positive or negative, the latter in the sense that the benefit conferred on the defendant spares him or her an expense he or she would have had to undertake ... [ 26 ] Mr. Dimitrov asserts that he did not receive any benefit from Ms. Dimitrova and was not enriched from the marriage. Mr. Dimitrov focuses on Ms.

Dimitrova not having worked during the marriage during Phases 2, 3 and 4 and his financial support of her during those phases. Phase 1 [ 27 ] During Phase 1, the parties lived apart and while they undoubtedly communicated on a regular basis, the evidence shows that their lives were not much changed from before they were married. [ 28 ] Mr. Dimitrov attained a university degree in mining from a university in Bulgaria and continued with his education after he moved Calgary. Mr.

Dimitrov spent approximately eight or nine years becoming a member of the Association of Professional Engineers and Geoscientists of Alberta (APEGA), which he attained in 2006. He also took construction management courses at the University of Calgary. During Phase 1, Mr. Dimitrov continued to live in Calgary and worked for Shell Canada. Mr. Dimitrov worked as a contractor for two years and then 14 years as a full-time employee for Shall Canada, before commencing work for an affiliated international joint venture during Phases 4 and 5. [ 29 ] Ms.

Dimitrova has degrees in biochemistry and microbiology and a PhD in virology. Since 2001, she worked at the National Center of Infectious and Parasitic Diseases (NCIPD) in Sofia, Bulgaria. Her position during her last four years was head of the national laboratory and assistant professor. In this role, she was involved in a number of international projects and research papers. [ 30 ] During Phase 1, Ms. Dimitrova continued to live and work in Sofia. In 2012, when she was living in what had been her parents’ apartment in Sofia, they transferred the title to Ms. Dimitrova. Mr.

Dimitrov said that they never jointly purchased property together and it is not clear whether he made any financial contribution to this transfer. In cross-examination, Mr. Dimitrov said that the residence where the parties lived in Sofia during Phase 5 was in both of their names. There was no evidence of the law of Bulgaria presented at this trial and there has been no division of the parties’ property in Bulgaria. However, I can presume that the law of the foreign jurisdiction is identical to the lex fori , law in the jurisdiction where the action is brought: Alberta.

The Sofia apartment was the place where the parties lived together during Phase 5 and it was either in both of their names or, if it was only in Ms. Dimitrova’s name, and if it was subject to the MPA , Mr. Dimitrov would have an interest in it. Furthermore, it was Ms. Dimitrova’s evidence that the

apartment taxes were paid by her and her parents. [ 31 ] Although they were married, the parties carried on with their independent lives during Phase 1 and pursued their respective careers. However, Mr. Dimitrov received a tangible benefit in the form of an interest in Ms. Dimitrova’s apartment in Sofia. I find that there was an enrichment of, and a benefit to, Mr. Dimitrov during Phase 1. Phase 2 [ 32 ] At the commencement of Phase 2, Ms. Dimitrova moved to Calgary and the parties lived together in Unit 308. The evidence was that both parties participated in completing the housework, though Mr.

Dimitrov said that, after about two weeks after she arrived, Ms. Dimitrova started making the evening meal and that he would help by making salads and cleaning up. Mr. Dimitrov’s adult children regularly visited Unit 308 to share a meal on Sundays with the parties. [ 33 ] When she arrived, Ms. Dimitrova started taking English lessons. Ms. Dimitrova was specific in her evidence that the initial classes were taken from January to the end of March 2014, five days a week from 8 to 3. Mr. Dimitrov said the classes ran for four or five months. I prefer the evidence of Ms. Dimitrova.

In any event, the initial classes were paid for by a government program. [ 34 ] Ms. Dimitrova took two further weeks of English classes. Ms. Dimitrova said the classes were at Bow Valley College and Mr. Dimitrov said that they were at Mount Royal University. Ms. Dimitrova said these classes were five days a week and 4 or 5 hours a day. I prefer the more detailed evidence of Ms. Dimitrova. These classes were paid for by Mr. Dimitrov. [ 35 ] Mr. Dimitrov said that he was surprised that Ms.

Dimitrova wanted to take so many English classes as he understood that her English was good as she had been involved in international projects, had worked at a laboratory for an unspecified period of time in London, UK, and been an author, or co-author, of more that one scientific

article written in English. However, Mr. Dimitrov also said that he was of the view that Ms. Dimitrova did not have the necessary confidence to apply for employment without further English training. [ 36 ] Ms. Dimitrova testified that once she arrived in Canada, she was unable to work. She described having to complete a significant amount of paperwork, taking English classes and driving lessons, and attending sessions with Immigration Canada. She said that Immigration Canada told her to upgrade her education and apply for a professional designation, which would take approximately three years.

On cross-examination, it was put to Ms. Dimitrova that she was able work in Canada. In response, Ms. Dimitrova said she wanted to be a family, have a child, and work. [ 37 ] Ms. Dimitrova understood that her immigration status allowed her to work, though she was of the view finding a job was not an urgent task because Mr. Dimitrov was working, and she was focused on getting pregnant. In addition, she was still a consultant for one international project in 2013, in relation to which Mr. Dimitrov accompanied her to a meeting in Ankara, Turkey, in 2014. Ms.

Dimitrova also said that she wrote two scientific papers during this phase. [ 38 ] Ms. Dimitrova was asked about an undated letter from Immigration Canada, addressed to her at her address in Sofia, and entered as a joint agreed trial exhibit. Ms. Dimitrova denied having seen the letter before trial even though it was said to have previously been attached to an affidavit filed by Mr. Dimitrov. The letter confirms issuance of Ms. Dimitrova’s Confirmation of Permanent Residence and states its “validity” as being April 30, 2014. The attachment to the letter contains tips for finding employment.

The letter and attachment were admitted for the truth of their contents, and I find that they are some evidence that Ms. Dimitrova received her permission to work in Canada as of April 30, 2014. [ 39 ] While recognizing that Mr. Dimitrov assisted with some household chores, Ms. Dimitrova said he did not help a lot as he worked from 8 to 5 and that she performed most of them. She said she undertook all of the tasks that she considered a “good wife” would do, including shopping, cooking, cleaning, ironing, dropping-off and picking-up dry cleaning and supporting Mr. Dimitrov “physically and emotionally”. [ 40 ] Mr.

Dimitrov says that he worked 40 hours a week and still did 50% of the household chores. He noted that he did his own laundry, cleaned the floors on the weekends, washed exterior windows and drove to the grocery store to buy groceries. Having heard all of the evidence, I find that Mr. Dimitrov overestimates his contribution to the household chores. I find that Ms. Dimitrova performed a significant proportion of the housekeeping for the parties during Phase 2. [ 41 ] Ms.

Dimitrova was cross-examined on her specific involvement in repairs, renovations and decorating of Unit 308, which were either negligible or limited. However, notwithstanding the registration of the Certificates of Lis Pendens , Ms. Dimitrova made it clear at trial that she asserts a monetary claim and not a proprietary claim, so it is unclear how these tasks would relate to the remedy sought by Ms. Dimitrova. [ 42 ] Ms. Dimitrova said that she moved to Canada to have a relationship with Mr. Dimitrov and to have a child with him. Ms. Dimitrova said having a child was a joint decision. Mr.

Dimitrov agreed that having a child was discussed before they got married and that he was supportive of trying to have one naturally. [ 43 ] The parties’ efforts to become pregnant were aided by hormonal stimulation and in vitro fertilization in Canada. Those efforts did not produce a pregnancy. A friend of Ms. Dimitrova’s connected her with reproductive specialists in Bulgaria towards the end of September 2014. [ 44 ] I find that, during Phase 2, Ms. Dimitrova performed a significant proportion of the housekeeping services enjoyed by the parties.

The provision of domestic services by one party for another can be the basis for showing a benefit as there is no reason to distinguish domestic services from other contributions: Kerr , para 42 . In this case, I find that the housekeeping services performed by Ms. Dimitrova during Phase 2 were a benefit that enriched Mr. Dimitrov.

Phase 3 [ 45 ] During Phase 3, Ms. Dimitrova traveled to Bulgaria to pursue in vitro fertilization services. Mr. Dimitrov said that he was in favour of pursuing pregnancy without medical intervention. However, regardless of his views, Mr. Dimitrov said that he participated in the in vitro fertilization attempts in both Canada and Bulgaria. [ 46 ] Ms. Dimitrova said the cost of in vitro fertilization was much less in Bulgaria. Mr. Dimitrov said that the cost differential was not relevant, especially as it required travel to Bulgaria.

I am of the view that the parties’ reasons for participating in the in vitro fertilization treatments in Bulgaria are not relevant to the unjust enrichment analysis as the parties entered into them willingly. [ 47 ] While Ms. Dimitrova was in Bulgaria, the parties spent most of the time apart, except when Mr. Dimitrov travelled to Bulgaria for participation in the in vitro fertilization treatments. [ 48 ] Two months before the conclusion of the in vitro fertilization treatments, Mr. Dimitrov accepted a position working in Iraq which provided accommodation in Dubai. Ms.

Dimitrova said that she stayed in Bulgaria for those remaining two months to translate necessary documents and to deal with governmental requirements in Bulgaria and Dubai. [ 49 ] Given that the parties had agreed that they wanted to have a child together, Ms. Dimitrova was working towards that common goal, albeit while they lived apart. The parties’ time apart was temporary and there was no evidence that it was intended to be long term or permanent. I find that this phase should be considered in the same manner as Phase 2 as it was a temporary deviation from a period where Ms.

Dimitrova’s contribution benefited Mr. Dimitrov. Phase 4 [ 50 ] During Phase 4, the parties lived together in Dubai while Mr. Dimitrov travelled to work in Iraq five days a week. [ 51 ] Ms. Dimitrova said that she had wanted to return to Canada after the failed Bulgarian in vitro fertilization treatments but could not because Mr. Dimitrov took the position in Iraq without consulting her. Mr.

Dimitrov acknowledged that he received a call from his supervisor who advised him to apply for the position in Iraq, with a joint venture company, affiliated to Shell, because his position in Calgary was not as secure as he thought. He acknowledged he had not consulted with Ms. Dimitrova before applying for, and accepting, this position. [ 52 ] The parties spent the first month in a hotel and then moved to an apartment. Ms. Dimitrova was a homemaker in Dubai.

She testified she did the same things as she had done in Canada: housekeeping, looking after the utilities, communicating with the landlord, obtaining a driver’s license, dealing with the registration and care of the vehicles, one of which came from Canada, and meeting with other Shell wives. [ 53 ] Ms. Dimitrova and Mr. Dimitrov had different views on whether Ms. Dimitrova was permitted to work in Dubai. Ultimately, Ms. Dimitrova applied for several jobs. She also applied for professional recognition in Dubai, but before that was granted, Mr.

Dimitrov’s job changed again, and they returned to Bulgaria. [ 54 ] Mr. Dimitrov minimized the efforts of Ms. Dimitrova in housekeeping and asserted that he undertook a considerable amount of the housekeeping when he returned after working for five days. I prefer the evidence of Ms. Dimitrova. She was in the Dubai residence full time and Mr. Dimitrov returned on his two days off. Ms. Dimitrova also acted as host for various family members who stayed with them in their residence in Dubai, including her family members and Mr. Dimitrov’s father, son and daughter.

I find that the housekeeping services performed by Ms. Dimitrova during Phase 4 were a benefit that enriched Mr. Dimitrov. Phase 5 [ 55 ] During Phase 5, the parties lived in Sofia. Mr. Dimitrov travelled to work in Iraq, where he worked 28 days on and 28 days off. Three or four months after arrival in Sofia, Ms. Dimitrova found a position in a private laboratory. [ 56 ] There was little or no evidence regarding the parties’ domestic arrangements for housekeeping and other duties during Phase 5.

Without specific evidence to the contrary, I am of the view that it is reasonable to find that the parties continued to live much in the same way as they had before with Ms. Dimitrova preparing meals for the parties when they were both at home and taking on a significant proportion of the household duties. [ 57 ] I find that the housekeeping services performed by Ms. Dimitrova during Phase 5 were a benefit that enriched Mr. Dimitrov. Phase 6 [ 58 ] After the parties separated on October 26, 2017, they lived in separate residences and there was very little evidence regarding their arrangements during this time.

I find there was no evidence to establish a benefit given by Ms. Dimitrova that enriched Mr. Dimitrov during Phase 6. [ 59 ] I have included this phase because Ms. Dimitrova argued that her entitlement should be considered as at the date of trial. Was there a corresponding deprivation of Ms. Dimitrova? [ 60 ] When Ms. Dimitrova moved to Canada at the beginning of Phase 2, she gave up her position at NCIPD. In her view, she put her career on hold while the parties started their life and family together in Canada. It is clear that the parties both put a priority on having a child, getting Ms.

Dimitrova settled in Canada and starting their life together. By making these matters a priority, Ms. Dimitrova

was deprived of her career in Bulgaria and of obtaining equivalent professional qualifications in Canada. [ 61 ] Mr. Dimitrov asserted that Ms. Dimitrova came to Canada to improve her career. However, regardless of Ms. Dimitrova’s intentions, the fact is that she took no steps to obtain equivalent qualifications in Canada. Ms. Dimitrova spent 9.5 months in Canada before temporarily locating to Bulgaria to pursue further in vitro fertilization treatments. Ms. Dimitrova focused on her new family, including Mr.

Dimitrov, and given her intensive English training and adjustment to life in Canada, it is not surprising that she did not obtain any equivalent qualifications here. [ 62 ] I find that Ms. Dimitrova suffered a corresponding deprivation. Is there an absence of a juristic reason for the enrichment? [ 63 ] In Kerr , at para 43 , Cromwell J noted the two-step analysis for the absence of juristic reason. In this case, the first step involves Ms. Dimitrova showing that no juristic reason from an established category exists to deny recovery.

Here, there was no evidence that there was a contract, a disposition of law, a donative intent or other valid common law, equitable or statutory obligation that would be a juristic reason for not finding unjust enrichment. In relation to statutory obligations, I note that if the MPA applied, Ms. Dimitrova would have an entitlement to 50% of all of the matrimonial assets acquired from the date of marriage to the date of trial, subject to exemptions. I find Ms.

Dimitrova has made out a prima facie case under the juristic reason component of the analysis. [ 64 ] The second step allows for the prima facie case to be rebutted, if Mr. Dimitrov can show that there is reason to deny recovery based on the circumstances of the case. In this part of the test, the reasonable expectations of the parties and public policy considerations can be assessed.

As Cromwell J pointed out, in Kerr , at para 44 , at the second part of the test, legitimate expectations of the parties, and moral and policy-based arguments about whether particular enrichments are unjust, can be taken into account. [ 65 ] Here, Mr. Dimitrov testified to his expectations and noted on numerous occasions how disappointed he was that Ms. Dimitrova had not obtained employment in Canada and in Dubai. However, I have already found that, given all of the other things that Ms.

Dimitrova was undertaking after her arrival in Canada, it is reasonable that she did not find a job in the nine-and-a-half months she spent in Calgary. She then spent a temporary six-and-a-half-month period in Bulgaria undergoing in vitro fertilization treatments, which both parties agreed to pursue. Upon arriving in Dubai, a destination selected without her input, Ms. Dimitrova still had not obtained equivalent certifications but eventually applied for jobs in Dubai shortly before the family moved back to Bulgaria, again for reasons related to Mr. Dimitrov’s employment.

Given the focus on getting pregnant, which both parties agree to, and the number of places in which the parties lived during their six years together, I find it is reasonable that Ms. Dimitrova was not employed until her return to Bulgaria during Phase 5. To the extent that Mr. Dimitrov had an expectation that Ms. Dimitrova would be employed, before she actually obtained employment, those expectations were unreasonable.

I find that no juristic reason has been established on reasonableness expectations that would undermine the prima facie case of unjust enrichment. [ 66 ] Both parties testified about a vehicle purchased for Ms. Dimitrova when the parties lived in Dubai. Mr. Dimitrov said that he purchased a second vehicle for his wife because she took driving lessons on an automatic and she did not want to drive his manual transmission vehicle, which he had transported from Canada. Further, Mr. Dimitrov said that Ms. Dimitrova was able to use the second vehicle for personal use and to travel to potential employment opportunities.

Mr. Dimitrov said that he put the second vehicle in Ms. Dimitrova’s name. Notwithstanding this arrangement, Mr. Dimitrov asserted that the second vehicle was not a present for Ms. Dimitrova, that he purchased it, and it was his vehicle. Mr. Dimitrov had possession of the second vehicle when the parties separated but said Ms. Dimitrova borrowed and refused to return it. I find that Mr. Dimitrov’s expectations as to the ownership of the second vehicle after separation were unreasonable but the division of it is not before the Court in this action.

There is nothing about the second vehicle that undermines the prima facie case of unjust enrichment. [ 67 ] Mr. Dimitrov also raised concerns about payments he made to Ms. Dimitrova when she was financially dependent upon him. The evidence in this regard was fairly consistent between the parties. Mr. Dimitrov said that he gave Ms. Dimitrova $41,821 and Ms. Dimitrova acknowledged that she received approximately $38,000 in financial support during the marriage. Ms. Dimitrova detailed the amounts she received as follows: (

a) Phase 1: no financial support; (

b) Phases 2 and 3 combined: $11,326; (

c) Phase 4: (

i) April to June 2015: cash transfers of an unknown amount but referred to by Ms. Dimitrova as “minimal”; and (ii) September 2015 to July 2016, $11,814; and (

d) Phase 5 and two months beyond: $14,442. [ 68 ] Mr. Dimitrov said that he gave Ms. Dimitrova money to make her happy, for her to learn how to deal with money and to have a comfortable living. Mr. Dimitrov testified that he gave money to Ms. Dimitrova without any strings attached. He said that he did not give her access to his own bank account because of a negative experience he had in a previous relationship. At one point, Ms. Dimitrova said that she used some of those funds to purchase household items, including groceries. Mr. Dimitrov testified that he paid for groceries from his personal account as well.

I find that Mr. Dimitrov’s financial support of Ms. Dimitrova was either used for household items or were in the nature of a gift. Either way, I find Mr. Dimitrov’s financial support of Ms. Dimitrova does not form any basis for a juristic reason to undermine the prima facie case of unjust enrichment. [ 69 ] No moral or policy-based arguments were raised in relation to this aspect of the analysis.

Unjust enrichment conclusion [ 70 ] I find that Mr. Dimitrov has been enriched by Ms. Dimitrova and Ms. Dimitrova suffered a corresponding deprivation. I find that there is an absence of a juristic reason. As a result, I find that Mr. Dimitrov was unjustly enriched during the period of the marriage, being Phases 1 through 5. [ 71 ] Ms. Dimitrova claims that Mr. Dimitrov’s increase in equity in Unit 308 and Unit 5 should be divided using the period from the date of marriage to the date of trial. For this proposition, Ms. Dimitrova relies on Hodgson v Hodgson , 2005 ABCA 13 .

However, at para 10 of Hodgson , the Court of Appeal made it clear that its conclusion that the date of trial must be used for valuation and division was based on the provisions of the MPA and the overall statutory scheme. As noted above, the MPA does not apply to this case and Ms. Dimitrova acknowledged that is why she pursued a claim for unjust enrichment. I find that the applicable date for valuation is separation, corresponding with the end of Phase 5, as there is no basis for unjust enrichment after the parties separated. Will monetary damages suffice to address the unjust enrichment? [ 72 ] Ms.

Dimitrova conceded that she was looking for a monetary remedy. Further, Ms. Dimitrova submits that this case is best characterized as an unjust retention of a disproportionate share of assets accumulated during the course of a joint family venture to which both parties have contributed. In Kerr , at para 7 , Cromwell J described this type of situation as follows: ...

In my view, where both parties have worked together for the common good, with each making extensive, but different, contributions to the welfare of the other and, as a result, have accumulated assets, the money remedy for unjust enrichment should reflect that reality. The money remedy in those circumstances should not be based on a minute totting up of the give and take of daily domestic life, but rather should treat the claimant as a co-venturer, not as the hired help. [ 73 ] Mr. Dimitrov denies that Ms. Dimitrova made extensive, or even any, contributions to the family or contributions to his personal welfare.

Mr. Dimitrov submits that Ms. Dimitrova is not entitled to a share of the increased equity in the Condos accumulated during the marriage.

Was there a joint family venture? [ 74 ] Cromwell J explained, in Kerr , at paras 87 and 88 , how participating in a joint family venture provides a basis for a finding of a monetary remedy for unjust enrichment and the evidence necessary to make that finding: My view is that when the parties have been engaged in a joint family venture, and the claimant’s contributions to it are linked to the generation of wealth, a monetary award for unjust enrichment should be calculated according to the share of the accumulated wealth proportionate to the claimant’s contributions.

In order to apply this approach, it is first necessary to identify whether the parties have, in fact, been engaged in a joint family venture. ... ... the analysis must take into account the particular circumstances of each particular relationship. Furthermore, as previously stated, there can be no presumption of a joint family venture. The goal is for the law of unjust enrichment to attach just consequences to the way the parties have lived their lives, not to treat them as if they ought to have lived some other way or conducted their relationship on some different basis.

A joint family venture can only be identified by the court when its existence, in fact, is well grounded in the evidence.

The emphasis should be on how the parties actually lived their lives, not on their ex post facto assertions or the court’s view of how they ought to have done so. [ 75 ] As noted in Kerr , at para 89 , there is no exhaustive list of factors for analysing where a joint family venture existed; however, Cromwell J identified four main headings to be considered: In undertaking this analysis, it may be helpful to consider the evidence under four main headings: mutual effort, economic integration, actual intent and priority of the family.

There is, of course, overlap among factors that may be relevant under these headings and there is no closed list of relevant factors. What follows is not a checklist of conditions for finding (or not finding) that the parties were engaged in a joint family venture. These headings, and the factors grouped under them, simply provide a useful way to approach a global analysis of the evidence and some examples of the relevant factors that may be taken into account in deciding whether or not the parties were engaged in a joint family venture.

The absence of the factors I have set out, and many other relevant considerations, may well negate that conclusion. [ 76 ] I find it appropriate in this case to use the headings proposed by Cromwell J in Kerr to assist in the analysis of whether there was a joint family venture in this case. Mutual effort [ 77 ] The mutual effort heading considers those factors which indicate whether parties work collaboratively towards common goals.

There should be a consideration of pooling of effort and teamwork, the decision to have and raise children together, and the length of the relationship: Kerr , at para 90 . [ 78 ] Here the parties worked collaboratively towards common goals. Initially, those goals included living together as a family in Canada and planning to have children together, if possible. Later, after the in vitro fertilization treatments failed, the parties lived

together as a couple. Their marriage lasted exactly six years. Mr. Dimitrov testified that he was disappointed that Ms. Dimitrova did not find work; however, I find that, throughout the marriage, she was focused on the home life that the parties were building together. That home life was clearly a common goal. I have already found that Ms. Dimitrova took on a significant portion of the domestic duties which freed Mr. Dimitrov from those responsibilities, which enabled him to pursue his career. [ 79 ] Unit 5 was purchased by Mr. Dimitrov and during the marriage was either used by his son or rented out.

It is not clear how much of the mortgage was paid for with rental income or contributions from Mr. Dimitrov’s son. What is clear is that Ms. Dimitrova only visited the property once and only for a few minutes. She had no involvement in its management, upkeep, maintenance, management or housekeeping . [ 80 ] Unit 308, where the parties lived together for nine-and-a-half months, was where Mr. Dimitrov resided when Ms. Dimitrova was temporarily in Bulgaria, during Phase 3, and either vacant or rented during the remainder of the marriage, during Phases 4 and 5.

Mr Dimitrov testified about paying the costs of Unit 308 but provided no evidence regarding any income received from renting out Unit 308. He said he kept Unit 308 so that the parties could reside there when they returned to Calgary at the conclusion of his contract in Iraq. That did not occur because Mr. Dimitrov had no employment in Calgary, so he stayed in Bulgaria when his contract came to an end. Mr.

Dimitrov paid off the mortgage on Unit 308 during the marriage. [ 81 ] I find that there was mutual effort between the parties to establish their family together in the way that they envisioned it, but those efforts did not extend to Unit 5. Economic integration [ 82 ] At this point, I must consider the degree of economic interdependence and integration in the parties’ relationship. There was evidence about the parties not having a joint bank account, primarily because of Mr. Dimitrov’s previous negative experience on sharing a bank account with a partner.

However, until she obtained employment during Phase 5, Ms. Dimitrova was entirely financially dependent on Mr. Dimitrov, and they were working together to build their family. They did not share expenses but were living together, and building a life together, while Mr. Dimitrov paid down the mortgage on Unit 308 and Unit 5. [ 83 ] The evidence of the parties’ conduct reflects that they were working collectively, and, for the most part, mutually prioritizing the overall welfare of their family over their individual interests. Ms. Dimitrova had given up her career to move to Canada to be with Mr.

Dimitrov and start a family and Mr. Dimitrov supported Ms. Dimitrova in her move to Canada. One significant deviation from the mutual effort to support their family was Mr. Dimitrov’s unilateral decision to take a job in Iraq and move the family to Dubai. Actual intent [ 84 ] In Kerr , at para 94 , Cromwell J spoke of domestic partners who for their own reasons do not marry. It is for this reason that Cromwell J points out the actual intentions of the parties must be given considerable weight.

At para 95, Cromwell noted that the intention of the parties to engage in a joint family venture may be inferred where the parties have accepted that the relationship is equivalent to marriage or held themselves out to be married. In this case, the parties were married and conducted themselves as a married couple. [ 85 ] I find that the parties’ actual intent of a joint family venture is evidenced by the fact that they married and committed themselves to each other and a life together.

Priority of the family [ 86 ] In Kerr , at para 98 , Cromwell J noted that a relevant question is whether there has been detrimental reliance on the relationship, by one or both of the parties, for the sake of the family. Here it is clear that Ms. Dimitrova detrimentally relied on the relationship for the sake of the family in that she spent a great deal of time and effort in trying to get pregnant because the parties had decided, together, to have a child, if possible. [ 87 ] Ms. Dimitrova is highly educated and gave up her more than 15-year career to devote herself to her new family.

In addition, over the marriage, Ms. Dimitrova relocated for the benefit of Mr. Dimitrov’s career. Mr. Dimitrov downplayed his interest in moving to a job in Iraq, stating that it was foisted upon him. However, it was his career and his decision to take on the work in Iraq and he did it without even consulting Ms. Dimitrova. I find that Ms. Dimitrova relocated to Dubai for the benefit of Mr. Dimitrov’s career. [ 88 ] There was evidence that Ms. Dimitrova’s job at a private laboratory in Sofia, which she obtained during Phase 5, pays marginally more than her old position at the NCIPD. However, Ms.

Dimitrova’s evidence was the position with the NCIPD was more prestigious and that she had the opportunity to work on international projects, travel internationally and hold an assistant professor position. I find that Ms. Dimitrova left the workforce for over five years to start her family and support Mr. Dimitrov. Whether Ms. Dimitrova’s salary increased when she returned to the workforce is not the only element to be considered and I accept that Ms. Dimitrova does not have the same type of employment as she did before she moved to Canada. Conclusion on joint family venture [ 89 ] I find that Ms.

Dimitrova has established that the parties were engaged in a joint family venture. Calculation of monetary award

[ 90 ] Ms. Dimitrova claims that she is entitled to the equivalent to 50% of the increase in Mr. Dimitrov’s equity in the Condos between the date of the marriage and date of trial. Mr. Dimitrov resists this claim in its entirety.

I must determine the appropriate amount of the monetary award in the context of already having found unjust enrichment and a joint family venture. [ 91 ] In Kerr , at paras 87 and 102 , Cromwell J said that a monetary award should be calculated according to the share of the accumulative wealth proportionate to the claimant’s contributions linked to the generation of wealth. [ 92 ] I find that this is not an appropriate case for a monetary award based on a quantum meruit approach, such as a fee-for-service. Ms.

Dimitrova contributions to the relationship were undertaken as an equal partner, regardless of her employment status. I find that the unjust enrichment monetary award should be calculated as an equal share of the accumulated wealth which is proportionate to Ms. Dimitrova’s contributions to the joint family venture. Unit 5 [ 93 ] As discussed at paragraph [79], Ms. Dimitrova made no contribution to Unit 5. I find that Ms. Dimitrova is not entitled to any monetary award for any increase in Mr. Dimitrov’s equity in Unit 5.

Unit 308 [ 94 ] Having found unjust enrichment through Phases 1 to 5, and a joint family venture, I must consider what monetary claim Ms. Dimitrova has in relation to Mr. Dimitrov’s increased equity in Unit 308. [ 95 ] When Mr. Dimitrov purchased Unit 308 in 2009, he obtained a mortgage in the amount of $157,500. The mortgage principal on December 31, 2011 was $142,685. Over the course of 2011, Mr. Dimitrov made total principal payments the amount of $5,196, or approximately $433 per month. Which means that, as of October 26, 2011, when the parties married, Mr.

Dimitrov owed approximately $143,551 in mortgage principal ($142,685+$433+$433). [ 96 ] Each party submitted evidence of the fair market value of Unit 308 at the date of marriage: (

a) Ms. Dimitrova: $254,000, based on the 2011 City of Calgary property tax bill; and (

b) Mr. Dimitrov: $291,000, based on an appraisal effective as of October 26, 2011 but prepared in January 2023. [ 97 ] For the appraisal effective October 26, 2011, prepared for Mr. Dimitrov, the appraiser provided the following commentary regarding Unit 308: The subject building includes vinyl siding and brick. The windows are aluminum dual pane and the roof is asphalt shingles.

The unit layout includes a den, kitchen (Ikea brand cabinets and soft close doors, granite counter tops and raised breakfast bar, stainless steel appliances including fridge, oven, microwave and dishwasher), living room, two bedrooms, three piece bathroom (vessel sink, travertine vanity top and full shower backsplash) and a laundry closet. The finishings include knock down ceilings, painted drywall, engineered hardwood and travertine flooring. The subject unit was extensively renovated in 2009 as reported by the owner.

The owner reported no additional interior changes to the unit following this time to the date of this report. The unit is assumed to have been in average to good condition as of the retrospective date with only typical wear and tear between the two dates.

See Extraordinary Assumptions ... [ 98 ] The “Extraordinary Items Addendum” contained in the appraisal, effective October 26, 2011 states, in part, emphasis added: The subject was evaluated following the retrospective date and is assumed to be [ sic ] have been in good condition as of the effective date included. [ 99 ] The appraiser reviewed three comparable units, two of which were within the same building, and which sold between March 31, 2011 and May 26, 2011. The appraiser opined that the adjusted values of those comparable units were between $268,000 to $291,500.

One of the comparable units was unit 208 in the same building, which sold on April 27, 2011. The appraiser added adjustments to the sale price of $251,500 as follows: (a) $20,000 for “[i]nferior” versus “average” “Extra/Upgrd”; and (b) $20,000 for the condition being “average” rather than “good”. [ 10 0] Each party submitted evidence of the fair market value of Unit 308 at the date of separation: (

a) Ms. Dimitrova: $260,500, based on the 2017 City of Calgary property tax bill; and (

b) Mr. Dimitrov: $240,000, based on an appraisal effective as of October 26, 2017 but prepared in January 2023. [ 10 1] For the appraisal effective October 26, 2017, the appraiser provided the same description of Unit 308 as the one in the appraisal effective October 26, 2011, except that the windows were noted to be triple pane vinyl rather than aluminum dual pane. Further, the “Extraordinary Items Addendum” stated, in part, emphasis added: The subject was evaluated following the retrospective date and is assumed to be above average to good in condition as of the effective date included.

[ 10 2] For the appraisal effective October 26, 2017, the appraiser also reviewed three comparable units, including unit 208, in the same building, which had been considered in the appraisal effective October 26, 2011. Without explanation, in the 2017 appraisal, the appraiser made no adjustments for the extras/upgrades and condition of unit 208 as had been made for the 2011 appraisal, where the appraiser had increased the sale price by $40,000.

The only adjustment to the sale price in the 2017 appraisal was a reduction of $5,000 to account for the date of sale, which was approximately 50 days before the effective appraisal date. [ 10 3] A comparison of the adjustments to the sale prices of unit 208 and commentary on Unit 308, in the appraisals effective October 26, 2011 and October 26, 2017, is as follows: October 26, 2011 appraisal October 26, 2017 appraisal Unit 308 Unit 208 Unit 308 Unit 208 Sale price $251,500 $250,200 Date of sale April 27, 2011 Sept 7, 2017 Adjustment for date of sale -$5,000 “Extra/Upgrd” “Average” “Inferior” “Average” “Average” Adjustment for extras & upgrades +$20,000 “AGE/CONDITION” “Good” “Average” “Av/Gd” “Av/Gd” Adjustment for condition +$20,000 Adjusted value $291,500 $245,200 [ 10 4] The inconsistencies between the appraiser’s reports effective October 26, 2011 and October 26, 2017 are concerning.

The appraiser undertook both appraisals in January 2023. There is no explanation why, in 2011, unit 208 would be considered “[i]nferior” to Unit 308 requiring an upward adjustment of $20,000 for extras and upgrades, but not in 2017. Further, the condition of Unit 308 fell from “good” to “average” without the appraiser viewing Unit 308 in either 2011 or 2017 and without any explanation.

Lastly, while there is a general description of the market as of October 2, 2017, in the appraisal effective October 26, 2017, it provides no explanation for a $5,000 reduction as of October 26, 2017, given the “highest inventory on record for the month of September”. The inconsistencies in the appraisal reports submitted by Mr. Dimitrov make them unreliable and, as a result, I cannot accept them. [ 10 5] Unit 208, in the same building, was sold in both 2011 and 2017 for approximately the same amount. The City of Calgary assessment for Unit 308 increased from $254,000 to $260,500.

I find that Unit 308 had a fair market value of $254,000 as of October 26, 2011. Based on the evidence before me, I find that Unit 308 did not increase in value by any material amount between October 26, 2011 and October 26, 2017. As a result, I find that the fair market value of Unit 308 as of October 26, 2017 was $254,000. [ 10 6] Mr. Dimitrov argued that in quantifying a monetary claim I should account for exemptions for the significant renovations he undertook in 2009, his down payment and the mortgage pay between 2009 and 2011.

However, there are no exemptions necessary as the claim relates to the increase in Mr. Dimitrov’s equity during the marriage. The increase in Mr. Dimitrov’s equity is calculated by: (

a) determining Mr. Dimitrov’s equity at the date of marriage: (i) $254,000 (fair market value) less $143,551 (mortgage owing, see paragraph [95]); (ii) equals $110,449 in equity as of the date of marriage; (

b) determining Mr. Dimitrov’s equity at the date of separation: (i) $254,000 (fair market value) less zero (no mortgage owing, see paragraph [80]); (ii) equals $254,000 in equity as of the date of separation; and (

c) subtracting Mr. Dimitrov’s equity at the date of marriage from his equity at the date of separation: (i) $254,000 less $110,449; (ii) equals $143,551. [ 10 7] The only accumulation of wealth was Mr. Dimitrov’s increase in his equity in Unit 308 between the date of marriage and separation. [ 10 8] Unit 308 was the matrimonial home during Phase 2. Ms. Dimitrova said that she wanted to return to Canada after Phase 3, but Mr. Dimitrov unilaterally applied for, and accepted, a job which required the parties to reside in Dubai. After living in Dubai, the parties moved back to Bulgaria, again for Mr. Dimitrov’s job.

Except for Phase 1, during the marriage the parties either lived in Unit 308, except when Ms. Dimitrova was temporarily in Bulgaria, or it was empty or rented out through a property management company. In my view, the increase in equity in Unit 308 related directly to the joint family venture that the parties were undertaking during the course of their marriage. I find that it is appropriate to divide the $143,551 increase in Mr. Dimitrov’s equity in Unit 308, during the marriage, equally. As a result, Ms. Dimitrova is entitled to $71,775.50. Conclusion [ 10 9] I found that Ms.

Dimitrova is entitled to a monetary judgment in the amount of $71,775.50. [ 11 0] In the event that the parties require further direction regarding the judgment or costs, counsel may contact me after they have

tried to resolve the matter themselves and no earlier than 30 days and no later than 60 days after issuance of these reasons. Heard on the 1 st day of February, 2023 and the 28 th day of March, 2023. Dated at the City of Calgary, Alberta this 18 th day of April, 2023. E.J. Sidnell J.C.K.B.A. Appearances: David Taylor, first day of trial, and Leigh E. Sherry, second day of trial for the Plaintiff Nancy Collins for the Defendant