Maggs v Huggins, 2023 ABKB 383

Court of King’s Bench of Alberta Citation: Maggs v Huggins, 2023 ABKB 383 Date: 20230626 Docket: FL03 61759 Registry: Edmonton Between: Audrey Lynn Maggs Plaintiff/respondent - and - Kelvin Lawrence Huggins Defendant/applicant _______________________________________________________ Reasons for Decision of the Honourable Justice Douglas R. Mah _______________________________________________________ A. Background [ 1 ] The issue in this case is whether this unmarried couple, Mr. Huggins and Ms. Maggs, terminated their common-law relationship in October 2016 as alleged by Mr.

Huggins, or October 2018 as alleged by Ms. Maggs. [ 2 ] Ms. Maggs has commenced an action for unjust enrichment against Mr. Huggins by way of statement of claim filed on February 27, 2020.

[ 3 ] The date of separation makes a difference because if the separation occurred in October 2016, then Ms. Maggs’ action is time-barred by reason of being commenced outside the limitation period.

If the separation occurred in October 2018, then the action was commenced in time and must be resolved on the merits. [ 4 ] Both sides agree that the remedy of unjust enrichment would take the form of a remedial order under section 3(1) of the Limitations Act which requires the claimant to seek a remedial order within two years of when the claimant knew or ought to have known that an injury had occurred, was attributable to the defendant and, assuming liability, warrants bringing a proceeding. [ 5 ] Mr. Huggins effectively is saying that Ms.

Maggs had actual knowledge as of October 2016 that the couple had separated, thus crystallizing all elements of section 3(1) (

a) of the Limitations Act . He says that she knew because Mr. Huggins had moved out of their home and into a different residence located 100 km away. [ 6 ] Ms. Maggs says the actual separation did not occur until October 2018. She concedes that for a period of a year or so preceding that, Mr. Huggins often spent nights away from home and stayed at their property in Yellowhead County, a property that had been acquired in 2012 for recreational and eventual retirement purposes, but that the true separation happened in October 2018 when Ms. Maggs called it quits. [ 7 ] At the hearing, counsel for Ms.

Maggs did not contest the position that Justice Whitling’s decision in Neddow v Fobes , 2021 ABQB 905 settles the question of whether or not section 10(1)(

b) of the Adult Interdependent Relationships Act , which states that parties do not become former AIPs until one year after separation, adds a year to the limitation period for unjust enrichment following separation. Justice Whitling ruled that it does not. I would have, in any event, adopted Justice Whitling’s analysis and conclusion as correct. [ 8 ] The one-day viva voce application before me was originally couched as Mr. Huggins’ application for

summary dismissal based on a limitations defence. Had the application proceeded as such, the onus would have been on Mr. Huggins to demonstrate that there was no merit to Ms. Maggs’ action because of the effluxion of the limitation period. That would have meant that had Mr. Huggins been successful, the action would have been put to an end. On the other hand, had Ms. Maggs’ defence of the

summary dismissal application been successful, the action would have lived on with the limitation question being a determination for trial. [ 9 ] However, at the hearing, both counsel agreed that I should make a final determination of the limitations issue. In effect, the

summary dismissal application was converted to a trial-of-an-issue. Because of this, the onus fell to Ms. Maggs under section 3(5)(

a) of the Limitations Act to prove her action was commenced within the requisite two years. [ 10 ] I should also mention that there was an oral hearing order in effect restricting the parties to their respective affidavits, plus up to one hour of examination-in-chief to augment the affidavit and up to one hour of cross-examination of the other party. No other evidence was permitted. Both sides were content to follow the oral hearing order notwithstanding that the nature of the application had changed, although the legal question had not. B. Relationship History [ 11 ] I will now review the relevant facts.

Where they are contested, I will so indicate: • Mr. Huggins and Ms. Maggs entered into a common-law relationship in September 1996. • They first resided in a rental property in Edmonton and after the birth of their first child Jesse, they purchased that property in 1998. Title to this Edmonton property was placed in Mr. Huggins’ name only. Ms.

Maggs says that this was because she was still undergoing legal proceedings in respect of her first marriage and they wanted to keep property out of her name. • A second child, Kara, was born in 2000. • During the relationship, the parties assumed what I will call “traditional roles”. Mr. Huggins worked outside of the home. He is a scaffolder by trade. He brought home the totality of the family income. Meanwhile, Ms. Maggs took on the role of primary caregiver for the children and homemaker. • In his testimony, Mr. Huggins confirmed as much, stating that Ms.

Maggs engaged in “house duties, looking after children, and cooking and cleaning.” She also looked after family finances using a joint bank account and did the taxes until and including the 2018 taxation year. Ms. Maggs did not work outside of the home during their relationship, except for a part-time job at the school. • In 2012, a second property was acquired in Yellowhead County for recreational purposes. The house on that property was not winterized. For the period 2012 the 2016, the family went there during the summer for vacations and relaxation.

Whether that activity continued beyond 2016 was a factual question at the hearing. • In the year 2000, Mr. Huggins gave Ms. Maggs a ring as an expression of their relationship. They differ as to what the ring meant. Mr. Huggins says it was a ‘promise’ ring, which I understand may be in the nature of a pre-engagement ring but not always, but in any event the giving and acceptance of the ring mean the couple are committed to one another. Ms.

Maggs says the ring was an engagement ring, that it was given and accepted in anticipation of marriage, and which she wore proudly, until she called off the relationship in October 2018. • During the relationship, for at least the period until sometime in 2016, Mr. Huggins and Ms. Maggs and their children functioned

as a family. They did activities together, shared and celebrated holidays and birthdays together, visited relatives on both sides together, lived together and shared their lives with one another. • It is acknowledged that on occasion Mr. Huggins would spend the night at the Yellowhead property because it facilitated working out of town. It is also acknowledged that Mr. Huggins took a separate vehicle on family visits because he might get called out to a job. • Both sides agree that the relationship eventually took a turn for the worse. They differ now on why, how and when that happened. Mr.

Huggins says that by October 2016, he had become fed up with Ms. Maggs’ extensive drinking and verbal and physical abuse. He said that when she was drinking, and in a state, she would attack him physically without cause and without warning. He packed up his belongings and moved from the Edmonton property to the Yellowhead property in October 2016 to escape the abuse, where he has remained since. He says that occasionally he would come back to the Edmonton property to visit his children and to gather up more of his belongings but that he and Ms. Maggs had basically no interaction. • After October 2016, Mr.

Huggins says that the family basically ceased to function as a family. Occasionally, Ms. Maggs would drive the children out to the Yellowhead property to visit him but she did not stay long. They ceased to have meals together, ceased to celebrate holidays together and ceased to engage in activities as a family. The two of them ceased giving gifts to one another on occasions such as birthdays and Christmas. • Ms. Maggs stopped cooking for him and stopped doing his laundry.

He said at first that the two of them had stopped having intercourse as of October 2016 but then conceded that they may have had intercourse on one or two occasions in 2017 following separation, but it did not amount to a reconciliation of any sort. • On the other hand, Ms. Maggs concedes that the relationship changed drastically starting about January 2017. She calls this the period of “nonsense”, referring to Mr. Huggins’ behaviour. She suspects that Mr.

Huggins began using drugs other than cannabis, likely cocaine or meth, and then fentanyl and oxycodone, and began associating with unsavoury individuals connected to the drug trade who would often hang around the Edmonton property. She did not directly observe Mr. Huggins taking drugs but says she recognized the behaviour associated with taking drugs. • She recalls a specific incident in January 2017 in which she went out to the garage for a smoke and found Mr. Huggins’s friend Tim Hurst snorting cocaine. This led to a scene and a physical altercation between Ms. Maggs and Mr. Huggins. The result was that Mr.

Huggins left with Mr. Hurst and did not return for the rest of the month. • According to Ms. Maggs, as of about October 2017, Mr. Huggins would sleep at the Edmonton property about one night out of four. The rest of the nights he spent at the Yellowhead property. She surmises the purpose of this was so that Mr. Huggins could facilitate his association with Mr. Hurst and others and engage in drug behaviour. • She concedes that as a family, after October 2017, they stopped doing many of the things they did before.

She concedes that apart from Christmas 2017 they did not particularly celebrate holidays together and the two of them, Ms. Maggs and Mr. Huggins, stopped giving gifts to one another and observing the other’s birthday. Further, they no longer socialized with other couples as they did before and took no visits to relatives in Saskatchewan. • Whereas before October 2017, when Mr. Huggins was away for work, they would speak on the phone every night. After October 2017, they spoke infrequently when he was away. • However, she insists that when Mr.

Huggins was at the Edmonton property, the two of them did carry on as a couple, sleeping together and having sex until separation in 2018, and only sleeping separately when snoring became a problem, which had always been the case. • She also says that she and the children continued to go to the Yellowhead property in 2017 and there are pictures to prove it. • Ms. Maggs says that Mr. Huggins did not tell her that the two of them were separated in October 2016. He kept coming home and they slept together until 2018. Ms.

Maggs says that she finally called it off in October 2018 because she realized, after nearly two years of trying to make the relationship work, that she “can’t do this anymore.” She was referring to Mr. Huggins’ drug use, and associating with unsavoury people, those people staying at the Yellowhead property and his lies and deception in that regard. In particular, she believed that Mr. Huggins was associating with people who have HIV and that was when she stopped sleeping with him. • While Ms. Maggs says that Mr.

Huggins never told her or the rest the family in October 2016 or at any time that the two of them were separated, she told him in October 2018 that she was terminating the relationship and took off the ring. • Ms. Maggs admits to consuming alcohol but not to the extent alleged by Mr. Huggins. Mr. Huggins denies drug usage of any sort beyond cannabis and denies associating with persons involved in drug culture. • There is no dispute that Mr. Huggins attended the funeral service of Ms. Maggs’ father on April 28, 2018, which she cites as corroborating evidence that they were still together as a couple. Mr.

Huggins says he came in a separate vehicle and sat in a different place during the service and that his presence doesn’t prove anything. • Ms. Maggs, by her counsel, filed the statement of claim on February 27, 2020. In para 3, the date of separation is stated to be October 2016 and then in the very same para also October 2017. The statement of defence filed May 1, 2020 invoked, among other things, the limitation defence which is the subject-matter of this application. By consent order dated June 3, 2020, Ms. Maggs was permitted to amend her statement of claim.

It was amended on June 16, 2020, by changing the date of separation in para 3 from October 2016 and October 2017 to October 2018 in both places. • Ms. Maggs says that the separation dates in the original statement of claim were typos.

• On November 16, 2021 Ms. Maggs obtained an EPO. Ostensibly it was premised on past acts of violence by Mr. Huggins and hisintention to move back into the Edmonton property, with a female companion and relegate Ms. Maggs to a spare bedroom, which Ms.Maggs said invoked fear and anxiety on her part. In the hearing that took place that day, with Ms.

Maggs attending by cell phone whileshe was at work at the deli, she seemed to be guessing at the date of separation and suggested it was in 2017. • The EPO was resolved by way of a mutual no-contact order granted on March 18, 2022. • The whole time since separation, on whichever date it was, Ms. Maggs remained in possession of the former family home. Shedoes so to this date. On or about October 26, 2022, Mr. Huggins purported to evict Ms. Maggs (but not the children) from the Edmontonproperty by way of notice of eviction. The notice, prepared by Mr.

Huggins himself, states that the two of them had separated “about 3years ago” which would place the date of separation in or about October 2019. • Ms. Maggs did not work outside of the home until, as near as I can figure, about 2009 when she secured a part-time position as the“lunch lady” at McArthur School, where she was also an in-class volunteer. This form of employment lasted until at least June 2018according to the exhibits to her affidavit. I know she was working at the deli in 2021. • There is also no dispute that Ms. Maggs, as part of doing the family finances, did the annual taxes. Typically, Mr.

Huggins’ taxreturn showed him as living common-law with Ms. Maggs. This was indicated in the tax return for 2018. Mr. Huggins said he just signedit without looking at it or asking questions. • His union pension statement shows Ms. Maggs as his common-law spouse and primary beneficiary in 2018. He said he did thisbecause he was “still trying to be nice.” [12] That is the factual backdrop of this application. I may mention other facts as I progress through these reasons. C.

When does an unjust enrichment claim arise? [13] Justice Whitling in the Neddow case at paras 11 through 23 helpfully canvases the law or legal test related to when a claim forunjust enrichment arises: • at para 14, he cites from Milovsky v Milovsky, 2011 ABCA 231 at para 26 where the Court of Appeal notes that “generallyspeaking, a claim for unjust enrichment arises at the date of the parties’ separation”. • at para 15, he states that “separation” cannot be interpreted as encompassing every event of physical separation.

Rather, that termrefers to the traditional concept of a separation that marks the termination of a conjugal or common-law relationship. The leading case inthat regard is Hodge v Canada (Minister of Human Resources Development), 2004 SCC 65, where Binnie J explained at paras 41 – 42that, unlike a legal marriage, a common-law relationship ends upon the termination of “cohabitation” since “cohabitation is a constituentelement of a common-law relationship”.

However, since “cohabitation” in this context is not synonymous with “co-residence”, not everyphysical separation will end the cohabitation. • Binnie J in Hodge adopts this test from Sanderson v Russell, (1979), (ON CA), 99 DLR (3d) 713 (ONCA) at p716: “… Without in any way attempting to be detailed or comprehensive, it could be said that such a common-law relationship has cometo an end when either party regards it as being at an end and, by his or her conduct, has demonstrated in a convincing manner that thisparticular state of mind is a settled one.” • At para 19, citing from McCamus in his 2020 textbook The Law of Restitution, he states: “… Where the plaintiff seeks a divisionof matrimonial property on the basis of the cause of action recognized in Pettkus v Becker and refined in Kerr v Baranow the cause ofaction should not be considered to have arisen until the parties have either divorced or until the plaintiff has reasonable grounds tobelieve that the relationship has become permanently dissolved.” [14] In

summary, a claim for unjust enrichment arises upon separation of the parties, which means that at least one party regardsthe relationship as ended and by conduct has convincingly demonstrated that this intention is settled, or when the plaintiff has reasonablegrounds to believe the relationship is permanently dissolved. D. Credibility Generally [15] As seen, the evidence of Mr. Huggins and Ms. Maggs conflict on numerous factual issues, particularly as related to theirinvolvement with one another in the period October 2016 to October 2018.

The overarching issue for me to determine is credibility, thatis, the truthfulness, or sincerity and reliability of what Mr. Huggins and Ms. Maggs said in their affidavits and in court.

In assessingcredibility, I am guided by these well-known following principles, derived from decades of decided court cases[1]: • the evidence of the Applicant and the Respondent should be subjected to the same degree of scrutiny; • all, some, or none of the evidence of a particular witness may be accepted; • generally, limited reliance should be placed in a credibility assessment on the “demeanour” of a witness, understood as his or hermanner of testifying or appearance when testifying, unless the witness (even allowing for the stress of testifying) was significantlyargumentative, evasive, or slow to answer; • credibility assessment relies heavily on the assessment of the “natural probabilities” of the evidence, having regard to a number offactors:

• whether what the witness says is reasonable and logical in the circumstances, • consistencies and inconsistencies between elements of a witness’ own testimony and elements of the other witness’ testimony, • inconsistencies between prior statements of a witness and his or her testimony, or with known facts; • factors tending to support or detract from a witness’ objectivity such as exaggeration on the one hand, or downplaying of negative facts on the other, whether there has been proven dishonesty, and whether the witness concedes adverse facts. [ 16 ] Since I was not a participant in these events when they happened, I cannot say what actually happened.

I can only say what likely happened or what probably happened based on my assessment of the evidence. Indeed, the standard I must apply is the balance of probabilities. What is more likely than not to have happened? Is it more likely than not that the date of separation was October 2016, or is it more likely than not that it was some later date such as October 2018? E. Credibility Findings [ 17 ] I have applied equal scrutiny to the evidence of both sides. That evidence was found in affidavits filed for this application, the in-court testimony of Mr. Huggins and Ms.

Maggs, the previous affidavits filed in the EPO proceeding and the transcript from that proceeding. [ 18 ] Assessing credibility, as the Supreme Court of Canada tells us [2] , is more art than science and consists of forming an impression, either favourable or not, after considering what the witnesses said in the context of the totality of the evidence.

To wit, in a civil case, does one version make more sense than the other having regard to the preponderance of probabilities, and based on what the trier of fact knows about the individuals and circumstances involved and what a reasonable person would know about the way the world works. [3] [ 19 ] In my assessment, after equal scrutiny, the evidence of Mr. Huggins contains far more flaws and deficiencies than the evidence of Ms. Maggs. I will point some of these out: • Mr. Huggins was unwilling to admit what is plainly obvious.

In cross-examination, he said he didn’t consider the two of them to be in a common-law relationship. In answer to the direct question, he said “Not really – no.” He would not concede this point, even though, the facts incontrovertibly establish that the two of them were in an exclusive relationship for at least 16 years, lived together, shared their lives together and had two children together. Mr. Huggins provided total financial support to Ms. Maggs and the family during the relationship and Ms. Maggs provided all the household and childcare services.

Even though the Adult Interdependent Relationships Act has limited play in this case, these facts comprise a textbook adult interdependent relationship. • Downplaying the nature of the relationship in an attempt to erode Ms. Maggs’ legal status was a theme throughout Mr. Huggins’ evidence. In his affidavit, he described being in a “romantic relationship” with Ms. Maggs in contrast to a conjugal, common-law relationship of at least 16 years duration in which 2 children, now adults, are the product.

In cross-examination, he at first did not recall using the expression “romantic relationship” and then said that there was “nothing romantic about it.” • He said that in 2000, he gave Ms. Maggs a ‘promise’ ring not an engagement ring, meaning at most they were engaged to be engaged. In his evidence he suggested that Ms. Maggs was not really required in the home to look after their children as his sister Shelley could have done so. How that would have been possible is not explained since Ms. Maggs was the mother and legal co-guardian of the children. • There are numerous inconsistencies in Mr. Huggins’ evidence.

He said that he did not trust her with the finances (para 4c of his November 14, 2022 affidavit) and said Ms. Maggs was financially irresponsible, yet she handled the family finances through a joint chequing account during the entirety of their relationship, and did his taxes until 2018. It seems that he actually found her very trustworthy. • In fact, he found her so trustworthy that he said he would sign his income tax returns, prepared by Ms. Maggs, without reading them or checking them, including the 2018 return. • While I am on that subject, I will turn to the inconsistencies between what Mr.

Huggins said and the documentary evidence. • Ms. Maggs deposed that she filed their income tax returns indicating common-law status between 1998 and 2018, attaching the first page of the 2018 return as an exhibit showing that Mr. Huggins certified to the federal government that he was living in a common- law relationship with Ms. Maggs during the 2018 taxation year. This information is prominently featured on the first page of the return. It is hard to miss. Why would he not protest that this was inaccurate before signing it?

For that matter, if they had been separated and had nothing to do with each other for over two years as of the first quarter of 2019 when the 2018 tax return was prepared, why was Ms. Maggs preparing Mr. Huggins’s tax return? I note it is a criminal offence to submit false information in an income tax return. • Mr. Huggins’s response to all of this is that he was inattentive but that still does not explain why Ms. Maggs was doing the 2018 income tax return in the first place. • Staying with inconsistencies, there is the matter of Mr. Huggins’ 2018 statement for his union pension, showing Ms.

Maggs as primary beneficiary. His explanation was “I was still trying to be nice to her.” This explanation means that he actually turned his mind in 2018 to who should be his primary beneficiary. Instead of saying “Audrey Lynn Maggs - former common-law spouse,” he said “Audrey Lynn Maggs - common-law spouse.” This document is at odds with an October 2016 separation. • Still keeping with documentary inconsistencies, there is the form of notice of eviction dated October 26, 2022 which Mr. Huggins prepared himself and served on Ms.

Maggs wherein he says that she has had more than enough time to find a new residence since their

separation about three years ago. It is much closer to Ms. Maggs’ October 2018 separation date than Mr. Huggins’ October 2016 date, one year versus six years. • Mr. Huggins testified that this was just a mistake. • The eviction notice was, I find, just a ruse to get her out of the house. The eviction notice makes reference to unpaid rent but he confirmed in cross-examination that he never asked Ms. Maggs to pay rent while they cohabited and not afterwards. The eviction notice also refers to a lease but there was no lease put in evidence.

What I do know is that the two of them lived together in the house with their children as a family, Mr. Huggins left at some point and Ms. Maggs remained with the children. There is nothing to suggest any kind of landlord-and-tenant relationship. • The next document I wish to comment upon is the statutory declaration of George Ronald Dow attached as Exhibit D to Mr. Huggins’s November 14, 2022 affidavit. I assume that this statutory declaration was produced by Mr. Dow at the behest of Mr. Huggins. I don’t imagine Mr. Dow produced it on his own initiative and then gave it to Mr. Huggins.

It is an attempt at corroboration of Mr. Huggins’ position on the date of separation. At para 6, it contains this statement: “I have not witnessed Audrey at Kelvin’s property in Yellowhead County or seen her at all since 2016, when I believe their relationship ended. Prior to 2016, I witnessed her and Kelvin together at Kelvin’s Yellowhead County property on multiple occasions.” • Then this statement appears just below: “Note: It is an offence to make a false declaration.” Mr. Dow’s evidence just quoted was proven in court to be manifestly false. In court, it was established that Ms.

Maggs was the person who took the picture dated August 20, 2017 of Mr. Dow at the Yellowhead property. Mr. Dow is looking right at her. Now it may be that Mr. Dow is simply mistaken about the date on which he last saw Ms. Maggs at the Yellowhead property. Nonetheless, this statement shows that Mr. Dow is amenable to making statements to help Mr. Huggins regardless of accuracy. Mr. Dow’s evidence, such as it is, is completely unreliable and carries no probative value. • Moreover, with regard to the photos in evidence, Mr. Huggins agreed in cross-examination that he and Ms.

Maggs were hosting parties at the Yellowhead property post-October 2016. • These photographs collectively indicate that Ms. Maggs not only participated in but hosted social gatherings along with Mr. Huggins at the Yellowhead property after October 2016. All of this is in direct contradiction to his evidence in examination-in-chief where he said that he and Ms. Maggs ceased to socialize together, that she would drop the children off to visit, would stay for an hour or two and “just look around and bitch about anything she could.” • I move next to the question of sexual relations after October 2016.

The frequency and cessation of sexual relations is but one factor to consider in determining whether a couple is separated. Within his own affidavit, Mr. Huggins is inconsistent about this topic. At para 20, he says they ceased having sex in October 2016. At paragraph 31, he says they had sex on two occasions in 2017 after they had separated but ceased completely by mid-2017. Ms. Maggs, on the other hand, is consistent in saying they ceased engaging in sexual intercourse in October 2018 when she determined that Mr. Huggins was associating with people who have HIV. • With regard to Ms.

Maggs’ alcohol consumption, Mr. Huggins stated at para 18 of his December 8, 2021 affidavit in opposition to the EPO that it was not uncommon for her to drink more than 10 cans of beer on any given weekday. During the hearing before me, he dropped that estimate to 4 to 5 cans. Ms. Maggs says the amount is exaggerated. She is a woman of small stature who weighs between 105-110 pounds. She admits to drinking, but says it would have been impossible for her to drink 10 beers at a time. I conclude that the “not uncommon 10 beers on any given weekday” is an exaggeration, so much so that Mr.

Huggins had to revise his estimate downward in court in order to appear more credible. • Finally, Mr. Huggins was not even consistent in his examination-in-chief about what happened with the relationship. After testifying that it was terminated in October 2016, he then said at the conclusion of his examination-in-chief that in his mind “the relationship was on its way down ” in October 2016. • ‘On its way down’ is different than being over. ‘On its way down’ means ‘unwinding’ or ‘deteriorating’. This ‘on its way down’ comment is consistent with Ms.

Maggs’ evidence that it took two years of ‘nonsense’ or bad behaviour on Mr. Huggins’ part for her to realize that the relationship was irretrievable and that it was at that point, in 2018, that she put an end to it. [ 20 ] Now, all of that is not to say that Ms. Maggs’ evidence was perfect. There are a couple of points I wish to touch upon. • First, there is the inconsistency in the EPO transcript where she tells the provincial court judge that she and Mr. Huggins separated as a couple in 2017. However, I feel this inconsistency is not significant.

She explained the circumstances of the court hearing, that she was at work at the deli and on a cell phone with the dishwasher running in the background. She was also guessing at the date. She said ‘2017’ with a question mark . She then said “I think it was 2017.” Ms. Maggs further then explained in court that the 2017 date referred to the date when Mr. Huggins began to regularly spend time at the Yellowhead property which was in October 2017. • Second, in cross-examination, Ms. Maggs agreed with Mr. Basaraba that Mr.

Huggins would have no reason to live at the Yellowhead property in winter except to leave a relationship. This is an inconsistency because she had earlier said that Mr. Huggins had begun to regularly spend time at the Yellowhead property in order to engage in drug behaviour with Mr. Hurst. But even so, the comment must be taken in context. If someone were to live outright at the Yellowhead property, the reason could be to separate from a partner. But Ms. Maggs’ evidence was that Mr.

Huggins was at the Yellowhead property on some nights, most nights, but one out of four nights he was back at the Edmonton property sleeping with her in their bedroom, until October 2018. So, if this one answer to a cross-examination question is an inconsistency, it is not significant and would not cause me to reject her evidence on the important points. [ 21 ] Overall, I find Ms. Maggs more credible than Mr. Huggins and I will briefly summarize my reasons: • Ms. Maggs was more forthright. Mr. Huggins would not concede they were even in a common-law relationship. Ms. Maggs did concede that Mr.

Huggins at one point spent the majority of nights away from their Edmonton home and at the Yellowhead property.

• The documentary evidence (the 2018 tax return, the 2018 pension statement and the 2022 notice of eviction) is inconsistent with the October 2016 separation date and consistent with the October 2018 date of separation. • The photographs support Ms. Maggs’ evidence that the two of them were still hosting and socializing at the Yellowhead Property in 2017 while Mr. Huggins said that had ceased as of October 2016. • Mr. Huggins’ excuses for these inconsistencies are weak – he says they are mistakes, or in the case of the 2018 pension statement because he was purposely trying to be nice to Ms.

Maggs. • Among these ‘mistakes’ is a false statutory declaration from Mr. Dow, which could only have been created at Mr. Huggins’ request. At best, Mr. Huggins is not concerned about putting inaccurate information before the court. [ 22 ] Accordingly, I believe Ms. Maggs and disbelieve Mr. Huggins on these main points: • There was some kind of altercation in January or February 2017 involving Ms. Maggs’ disapproval of Mr. Hurst that marked a turning point in the relationship of Mr. Huggins and Ms. Maggs; • As of October 2017, Mr.

Huggins did begin to regularly spend nights away from their Edmonton home, as many as three nights out of four, and stay at the Yellowhead property, but he frequently returned to their Edmonton home, on average one night out of four, to spend the night with Ms. Maggs. • This relationship, strained as it was, with many family activities and celebrations falling by the wayside along the way, continued until October 2018. That is when Ms. Maggs concluded that Mr. Huggins’ dishonesty and deception about what he was doing and with whom he was associating at the Yellowhead Property was too much for her.

At that point, she decided to end the relationship. [ 23 ] I make no specific finding about drug use on Mr. Huggins’ part or excessive alcohol consumption on Ms. Maggs’ part. The evidence is insufficient on both points. For my purposes, it is enough to say that in 2017, Mr. Huggins did retreat to the Yellowhead property regularly with Mr. Hurst because Ms. Maggs did not approve of Mr. Hurst. F. Nature of the Relationship [ 24 ] You might ask, what kind of relationship can this be, when one party spends three out of four nights away from the other party?

Relationships take different forms but they can still be relationships. Couples can live apart and even in different cities and for long periods of time but still be together as a couple. I agree that this was not a case of a couple agreeing that one partner should live out of town for work purposes and that this was not a case of a long-distance relationship where the parties live in different cities. [ 25 ] Some relationships may defy categorization. Life is not always neat and tidy. The reality is that relationships can be messy.

A relationship can slowly deteriorate for a period of time, even years, before finally dissolving. Couples can be in bad and stressful relationships but they are in a relationship nonetheless. [ 26 ] Relationships can take many permutations. This one during the 2017-2018 period was not typical and certainly not ideal. The question is really about the satisfaction of the legal test: When was there a demonstrable settled intention that the relationship was permanently dissolved? [ 27 ] In this case, between February 2017 and October 2018, Mr. Huggins and Ms. Maggs were in a messy, bad and stressful relationship.

But I cannot find there was a termination in October 2016 simply because now, looking back, Mr. Huggins feels in his own mind that the relationship was over in October 2016. He had to demonstrate in a convincing matter at the time that his state of mind was a settled one. He did not do so. The documents produced in this hearing showed that the common law relationship continued in 2018. The photographs showed that the couple still hosted and socialized together in 2017. Mr. Huggins did not show a settled intention because he continued to spend one out of four nights with Ms.

Maggs at their Edmonton home. [ 28 ] At no point did Mr. Huggins tell Ms. Maggs that their relationship was over. On the other hand, Ms. Maggs was clear that she declared in October 2018, with her concern regarding HIV-positive individuals, that the relationship with Mr. Huggins was over. To signify this termination, she removed the ring from her finger. It was in October 2018 that Ms. Maggs had reasonable grounds to believe that the relationship was permanently dissolved. It was by her own doing. G. Outcome [ 29 ] Accordingly, I find that Ms.

Maggs has discharged her onus of proof and has established on a balance of probabilities that the date of separation was in October 2018. Accordingly, the statement of claim filed on February 27, 2020 and later amended was filed within the limitation period. H. A note about this decision [ 30 ] This decision is a near verbatim written rendition of the oral reasons delivered by me in court on June 23, 2023. I have added only headings, case names and citations, and I have made minor wording changes to improve readability. The oral reasons remain the official decision of the court.

Heard on the 30 th day of May, 2023. Oral reasons delivered on the 23 rd day of June. Dated at the City of Edmonton, Alberta this 26 th day of June, 2023. Douglas R. Mah J.C.K.B.A. Appearances: Johnathan M.E. Healey for the Plaintiff/Respondent Colin E. Basaraba for the Defendant/Applicant