Tooktoshina v Kelly, 2023 ABKB 216

Court of King’s Bench of Alberta Citation: Tooktoshina v Kelly, 2023 ABKB 216 Date: 20230414 Docket: FL13 01938 Registry: Fort McMurray Between: Janine Elizabeth Tooktoshina Plaintiff - and - Lorrie Gordon Kelly Defendant _______________________________________________________ Oral Decision of the Honourable Justice L.M. Angotti _______________________________________________________ I. Introduction [ 1 ] The Plaintiff Janine Tooktoshina and the Defendant Lorrie Kelly had an adult interdependent partner relationship that lasted from August 29, 2004 until it ended on August 25, 2019.

The couple have two children of the relationship. At the time of separation, the couple were joint owners of the family home and a cabin. They also had a Ford Explorer. In addition, Mr. Kelly had a pension plan with his employer. [ 2 ] Ms. Tooktoshina commenced an action for unjust enrichment and constructive trust, seeking a remedy of an equal share of the assets acquired by Mr. Kelly or the couple during the course of their relationship either by ownership or constructive trust. At trial, she specified that this was an equal share of the family home, the cabin, and the pension. She sought for Mr.

Kelly to pay for all debt owing on the vehicle, on the basis it was a gift. [ 3 ] In his Counterclaim on Division of Property, Mr. Kelly claimed an equal division of equity or debt in the family home and cabin, subject to an exemption claim of $60,000 equity in the family home. He also claimed an exemption for the entirety of his employment pension. He sought a remedy for Ms. Tooktoshina to pay her share of expenses for the family home. He did not make a claim on the basis of unjust enrichment. At trial, Mr. Kelly sought full equity of the family home, an 80/20 split of the equity in the

cabin to his favour, a full exemption for his pension, and that Ms. Tooktoshina be responsible for all debt owing on the Ford Explorer. [ 4 ] By Order of the Court on May 26, 2022, the issues of division of property and child support were directed to trial. Mr. Kelly requested that spousal support be considered at trial, as it remains an outstanding issue between the parties.

I declined to do so, as the Order directing the trial specified the issues to be determined, the justice setting the order was aware of the procedural history, and it would have been unfair to the plaintiff at that late stage to add a new issue to the trial. II. General Background [ 5 ] Where the facts are disputed, I generally accept Ms. Tooktoshina’s evidence. She gave her evidence in a forthright manner, without exaggeration. In contrast, Mr. Kelly often exaggerated in his evidence, thus giving his evidence in a self-serving manner that was often at odds with the reality of the situation.

For example, he claims that he did 95% to 100% of the domestic work, which is impossible when he worked full time and contrary to his own level of recognition for Ms. Tooktoshina’s contribution to the domestic work. In addition, he tried to lay the choice and blame for getting pregnant, despite the medical risks, on Ms. Tooktoshina; yet admitted that the choice to have children was consensual, thus meaning by agreement. [ 6 ] The parties met in the spring of 2004, introduced to each other by Ms. Tooktoshina ’s aunt. At the time, Ms.

Tooktoshina had moved from British Columbia and was staying with friends, as she did not have a place of her own. Mr. Kelly lived in a home that he had purchased on March 28, 2002, with two roommates who provided him with rental income. He was a certified millwright, working in the oilsands for Syncrude. [ 7 ] Throughout her life, Ms. Tooktoshina has suffered from disability. When she was a young child, she was diagnosed with ventricular tachycardia, a form of cardiac arrythmia (heart condition) that resulted in brain damage impacting her memory and her ability to read and spell.

As a result, she was never able to work in employment involving administrative functions, including reading or paperwork. She could only work as a labourer. [ 8 ] They began to co-habit on August 29, 2004, when Ms. Tooktoshina moved into the home owned by Mr. Kelly. This home would be the residence for the couple throughout their relationship, as the family home. Within a couple of months, the parties were in an intimate relationship. At the time co-habitation began, Ms. Tooktoshina was not working due to injuries from a dog attack, but when she healed, she began working again as a labourer. Mr.

Kelly continued to work with Syncrude. [ 9 ] In 2007, Ms. Tooktoshina became pregnant with the couple’s first child, despite concerns that this could have a negative impact upon her heart condition. She testified that she did so, because Mr. Kelly had told her that he wanted a family and he would take care of her forever. [ 10 ] Ms. Tooktoshina stopped working when she was pregnant with her first child, as she was concerned that the chemicals she used in her housekeeping job were dangerous to her unborn child. She also began to experience pain in her joints.

After giving birth, she experienced further heart issues. Before her medical caregivers could resolve what was causing her further medical issues, she became pregnant with the couple’s second child. Following the birth of the second child, she experienced increased and debilitating joint pain. After some years, she was diagnosed with a severe form of ankylosing spondylitis, which is a significant disabling condition. Ms. Tooktoshina’s physician identified to her that her pregnancies were a significant cause of the condition.

As a result of her condition, her physician has confirmed that she cannot work as a labourer. [ 11 ] Following that diagnosis, she testified that the couple’s relationship began to decline significantly, ending in their separation on August 25, 2019. [ 12 ] Ms. Tooktoshina has not worked since her first pregnancy. After separation, she has attempted, so far unsuccessfully, to qualify for AISH benefits. Mr. Kelly maintained his employment with Syncrude throughout and after the separation. III. Division of Property and Unjust Enrichment A. Unjust Enrichment [ 13 ] The Supreme Court of Canada in Kerr v.

Baranow , 2011 SCC 10 ( Kerr ) addressed how a court is to assess claims for unjust enrichment in the context of the end of a domestic relationship between unmarried persons.

The Supreme Court confirmed at para 32 that to grant a remedy for unjust enrichment, the plaintiff must establish the presence of three elements: 1) An enrichment or benefit received by the defendant from the plaintiff; 2) A corresponding deprivation to the plaintiff; and 3) No juristic reason for the enrichment. [ 14 ] In determining the first two elements as to whether there has been an enrichment and corresponding deprivation, the Supreme Court of Canada in Kerr applies a straightforward economic analysis.

The court considers whether the plaintiff has proven that he or she gave something to the defendant which the defendant received and retained. The contribution need not be monetary. The benefit can be in the form of something that was provided to the defendant or something that relieved the defendant of an expense. However, the benefit must be tangible: Kerr at para 38 . The plaintiff must then demonstrate that they have suffered a deprivation that corresponded with the enrichment to the defendant.

It must be shown that the plaintiff’s loss was material, because the defendant’s benefit was at the expense of the plaintiff: Kerr at para 39.

[ 15 ] The existence of a conferred benefit and corresponding deprivation in the context of domestic relationships, where the plaintiff provided domestic services rather than a financial contribution, was summarized in Kerr at para 42 : A critical early question in domestic claims was whether the provision of domestic services could support a claim for unjust enrichment. After some doubts, the matter was conclusively resolved in Peter , where the Court held that they could. A spouse or domestic partner generally has no duty, at common law, equity, or by statute, to perform work or services for the other.

It follows, on a straightforward economic approach, that there is no reason to distinguish domestic services from other contributions ( Peter , at pp. 991 and 993; Sorochan , at p. 46). They constitute an enrichment because such services are of great value to the family and to the other spouse; any other conclusion devalues contributions, mostly by women, to the family economy ( Peter , at p. 993). The unpaid provision of services (including domestic services) or labour may also constitute a deprivation because the full-time devotion of one’s labour and earnings without compensation may readily be viewed as such.

The Court rejected the view that such services could not found an unjust enrichment claim because they are performed out of “natural love and affection” ( Peter , at pp. 989-95, per McLachlin J., and pp. 1012- 16, per Cory J.). [ 16 ] Domestic services include such things as taking care of the children, performing housework or other work around the family property, or otherwise handling matters necessary for day to day functioning of the family unit. [ 17 ] Mr. Kelly was the main financial provider for the family. When Ms.

Tooktoshina was working during the first years of the relationship, her pay cheque was used to contribute to the bills. After she quit her job during her first pregnancy, Mr. Kelly was the sole financial provider and remained so throughout the remainder of the relationship. [ 18 ] Ms. Tooktoshina testified that her role in the household, after the birth of the children, was as a homemaker, caring for the children, making meals, and cleaning the house. After the couple purchased the cabin, her role included taking care of the cabin, the children, and Mr. Kelly when they were at the cabin.

As a result of her conditions following her son’s birth, it took her extended time to perform domestic household chores, such as cleaning and dishes. Performing the tasks caused her pain and she needed to take breaks to help ease the pain. [ 19 ] Mr. Kelly confirmed that the parties agreed, upon the birth of their first child, that it was the intention of the parties for Ms. Tooktoshina to stay at home with the children.

However, he took the strong position that she only fed herself, not him or the children, and only cleaned “her own environment”, meaning the parts of the house that she needed clean such as the toilet, her bedroom area, and the kitchen only if she had made a meal for herself. He stated multiple times, “I had to do all of the domestic chores, well I shouldn’t say all, but 95% of them.” I do not accept his evidence as to each parties’ contribution to the domestic services. I recognize that, once Ms. Tooktoshina became pregnant with the first child, Mr.

Kelly was the sole financial provider and that he also contributed to domestic services in the household. I also recognize that, as a result of her medical condition, Ms. Tooktoshina had a significantly more difficult time dealing with physical tasks. However, it is not possible for Mr. Kelly to perform 95% of domestic work while working full time. Both parties agreed that Ms. Tooktoshina performed tasks while Mr. Kelly was working (which was more than 5% of the time), as well as performing some of the tasks when he was not working.

She engaged in renovation activities for the house and he engaged in renovation activities for the cabin. [ 20 ] After the birth of the second child, Ms. Tooktoshina became unemployable even as a labourer due to another medical condition. Despite her disabilities, she continued to contribute domestic services by caring for the children, household chores, cooking, and other daily living tasks. I accept that Mr. Kelly performed some of these tasks while he was not working, including cooking that he enjoyed and in light of her medical situation that made it difficult to for her to perform these tasks.

However, he worked a full time job away from the family home, during which Ms. Tooktoshina would have, by necessity, had to perform these tasks. The evidence does not establish that Ms. Tooktoshina was not a good parent or that the children suffered. Mr. Kelly himself testified that she did the tasks as well as some home renovation work of painting, just not to his satisfaction. Her disability does not take away from the fact that she provided services that allowed Mr. Kelly to continue working full time and financially provide for the family; services of great value to Mr.

Kelly (despite his subjective assessment of the same) and of great value to the entire family unit. The evidence does not in any way support that Mr. Kelly did 95% or even 50% of the domestic chores. [ 21 ] Thus, Ms. Tooktoshina has proven both that she gave a benefit to Mr. Kelly and that she suffered a deprivation as a result. Mr. Kelly submitted that Ms. Tooktoshina actually benefited, as he gave her more than she gave to him, through his financial and assets support.

As set out in Kerr , at para 37 and 48 , the mutual conference of benefits in a relationship is determined at the remedy stage, not in consideration of whether the plaintiff has met the first and second elements of unjust enrichment. [ 22 ] The third element requires the court to consider whether there is any juristic reason for the benefit and corresponding detriment.

In other words, if there is no reason in law or justice for the defendant to retain the benefit bestowed by the plaintiff, then its retention is “unjust” in the circumstances and the defendant should not be able to keep that benefit: Kerr at para 40-45 . [ 23 ] The Court considers this third element in two stages. First, the plaintiff must show that none of the established categories of juristic reason exist, being the existence of a contract, a legal requirement (such as a court order or statutory obligation), a gift, or other valid legal, equitable or statutory obligations. There is no evidence that Ms.

Tooktoshina provided her domestic services pursuant to any of these categories. [ 24 ] If the plaintiff shows that a categorical juristic reason does not exist, then the Court considers whether the defendant has shown another reason to deny recovery. At this second stage, the Court will look at all the circumstances in order to determine if there is another reason to deny recovery, including the reasonable expectations of the parties and public policy considerations. In relation to the parties, they conducted themselves in a manner where it was the reasonable expectation of both parties that Mr.

Kelly would provide financially for the family and Ms. Tooktoshina would stay at home to provide domestic services for the family. Both parties stated this was their agreement. [ 25 ] While Mr. Kelly argues that he thus provided Ms. Tooktoshina with free shelter, free food, free clothes, and other financial benefits, Ms. Tooktoshina provided domestic services of significant value. Mr. Kelly’s financial contributions are not a juristic reason to

deny a remedy to Ms. Tooktoshina for unjust enrichment. Such an argument was raised and soundly rejected in Peter v. Beblow, (SCC), [1993] 1 S.C.R. 980. On a public policy basis, the Supreme Court of Canada “...has rejected the argument that theprovision of domestic and childcare services should not give rise to equitable claims against the other spouse in a marital or quasi-maritalrelationship”, such that there is no juristic reason to deny unjust enrichment: Kerr at para 44-45. [26] Thus, Ms. Tooktoshina has established all three elements of unjust enrichment. B.

Joint Family Venture [27] As all three elements of unjust enrichment have been established, I must now determine the remedy. It will be either amonetary or proprietary award, either of which need to be quantified. In most cases, a monetary award is generally sufficient and is theremedy that should be considered first: Kerr at para 47.

Monetary remedies can be calculated on either the “value received” method(quantum meruit or fee for service) or the “value survived” method (joint family venture). [28] Where the Court determines that the relationship is a “joint family venture” and the plaintiff’s contributions to the jointventure are linked to the accumulation of wealth over the period of the relationship; unjust enrichment arises when upon separation, oneparty keeps a disproportionate share of the jointly earned assets, irrespective of legal title: Kerr, at para 60, 81, 87.

This method ofvaluation considers the overall increase in the couple’s wealth accumulated over the course of the relationship rather than the monetaryvalue of services provided by each person: Kerr at para 49. The monetary award is calculated based upon the reasonable share of thoseassets which is proportionate to the plaintiff’s contribution, though not necessarily equal proportion. [29] There is no presumption that a joint family venture exists. To determine if one exists, the Court considers a variety of factors.Justice Burrows provided a useful

summary of such factors in Blondel v Kowalski, 2020 ABQB 306 at para 54, under the categories ofmutual effort, economic integration, priority of the family, and actual intent. [30] Mutual effort is established through evidence that the parties worked collaboratively towards common goals.

The factors ofhaving and raising children together (2 children of the relationship), maintaining the relationship for a significant time (15 years), usingtheir funds entirely for family purposes, and one party taking on a greater proportion of domestic labour thereby freeing the other topursue activities in the paid workforce are all found on the evidence. [31] Economic integration is shown through the degree of economic interdependence and integration that characterized the parties’relationship. When Ms.

Tooktoshina worked prior to her first pregnancy, her earnings were placed into her own bank account and shepaid for her own things. However, after she became pregnant and the parties agreed that she would stay at home rather than return towork, all of the money was earned by Mr. Kelly. Mr. Kelly controlled and monitored the finances, including expenditures by Ms.Tooktoshina. She was economically dependant upon him. In addition, over time the parties jointly owned assets, rather than keepingthem separate.

For example, the couple saved money which was used for a down payment on the cabin, which they purchased as jointowners. They also had what they referred to as a “family vehicle”. Such conduct indicated a sense of collectivity, mutuality, andprioritization of the overall welfare of the family unit over the individual interests of its individual members. [32] Priority of the family relates to whether and, if so, the extent to which the parties gave priority to the family in their decisionmaking. Both Mr. Kelly and Ms. Tooktoshina relied on the relationship to their detriment for the sake of the family. Ms.

Tooktoshinabecame pregnant twice, despite risks to her health, and she became medically unable to work as a result. Mr. Kelly also would havemade financial and time sacrifices for the sake of the family. The parties also proceeded on the basis of an understanding for a sharedfuture, as demonstrated by having children and becoming engaged. Ms.

Tooktoshina relied upon the success and stability of therelationship for future economic security; but to her own personal economic detriment, by leaving the workforce to have children (whichultimately resulted in her inability to earn a living) and raise the children. [33] The parties’ actual intention to engage in a joint family venture can be established by either express words or inferred fromtheir conduct. In respect of actual intent, the parties made a deliberate choice to have their lives economically intertwined, especiallybased on the decision to have Ms.

Tooktoshina stay at home to handle domestic tasks and care for the children. The relationship wasstable for a significant period of 15 years. Ms. Tooktoshina testified that she stopped using birth control to become pregnant despitepotential health risks, because Mr. Kelly had promised her they would grow old together and they both wanted to have children together.Both parties testified that Mr. Kelly asked her to marry him and he gave her a diamond engagement ring when she said yes.

Thus, theparties treated the relationship as akin to marriage. [34] Another factor to show actual intention is the joint ownership of property. The parties held property as joint tenants. There isno dispute that this was the intention with the cabin, which was purchased and intentionally put into joint ownership. However, there isdispute over whether there was an actual intention of joint ownership of two other assets, the family home and the Ford Explorer, despitethe parties being listed jointly upon the respective title documents. [35] The family home was purchased by Mr. Kelly prior to the relationship.

He remained the sole owner on title, until the couplepurchased the cabin in September 2013. At that time, the ownership of the family home was changed to joint ownership of Ms.Tooktoshina and Mr. Kelly. [36] Mr. Kelly testified that he was surprised to see, upon separation 6 years later, that the parties were joint owners of the familyhome. He explained that he must have failed to read the fine print or been too excited by the purchase of the cabin at the time to payattention to the paperwork. Therefore, per his evidence, there was no intention to make Ms.

Tooktoshina a joint owner of the familyhome, in contrast to the intention of joint ownership of the cabin. Ms. Tooktoshina testified that the ownership of the family home waschanged at the same time as the cabin was purchased. There was no evidence from her that this was anything, but intentional. [37] I find that Mr. Kelly’s evidence as to the change of the family home to joint ownership being an unintended error, due to hislack of attention to detail, is inconsistent with the circumstances and simply self-serving. Mr.

Kelly confirmed that the cabin was notpurchased by financing with the equity in the family home. As Ms. Tooktoshina was not earning money at the time, she was not required

to be on the title to assist with financing. Although the change in ownership occurred at the same time as the purchase of the cabin, it was not necessitated by that purchase or any other reason. Therefore, the change in title on the family home would require a conscious decision on the part of Mr. Kelly, with express instructions to the lawyer who handled the land titles filings. The legal process to change ownership on a registered Land Titles certificate is involved and significant; it involves more than the “fine print”.

It is a stretch, given the paperwork and signatures required and the impact upon legal rights, to accept that a lawyer did this without Mr. Kelly’s knowledge or that the change was simply hidden in the details and slipped past Mr. Kelly’s attention. He struck me as a person rightfully and extremely proud of his house ownership and a person who pays attention to financial detail; not a person who would let a detail such as the transfer of ownership of his home occur by mistake or lack of attention. I find the intention of the couple was to have Ms. Tooktoshina as a joint owner of the family home. [ 38 ] Mr.

Kelly relies upon the case of Beaudin v Forget , 2020 ABQB 186 , in particular the finding that the changing of title in specific property to joint tenants was done in error. In that case, both parties testified that they were unfamiliar with mortgage lending, co-signing, and Land Titles principles and that they were unaware, at the refinancing time, that the plaintiff had actually been added to the title.

It is also notable that the defendant needed the plaintiff, who was earning employment income, to co-sign for his mortgage at the insistence of the prospective lender, thus providing some basis for the addition of the plaintiff to the title. However, in the circumstances of that case, Justice Lema determined that the other evidence did not support that the agreement to have the plaintiff co- sign for the mortgage as required by the lender was also an agreement to have the plaintiff acquire a one half interest in the land. This case is distinguishable from the case before me on its facts.

Each case is determined on its own facts and Beaudin does not establish any legal principle with respect to the determination of the intention of parties as to co-ownership. It is simply one example of when such intention was not found to exist, contrary to the situation here. [ 39 ] Ms. Tooktoshina also claims that the Ford Explorer purchased on May 17, 2019 was a gift from Mr. Kelly to her. I accept Ms. Tooktoshina’s evidence that Mr. Kelly surprise her by telling her they were buying a vehicle as her birthday present and she should choose between one of two Ford Explorers.

However, I do not find that these statements meant that she would be the sole owner or that it was his actual intention to make her the sole owner. That would be contrary to his conduct with respect to the family assets previously. Other evidence is more consistent with the purchase of this vehicle jointly. Mr. Kelly testified that Ms. Tooktoshina was placed as the primary buyer, to take advantage of her Inuk status to avoid payment of GST on the purchase. The previous family vehicle was traded in for the Ford Explorer and Ms.

Tooktoshina testified that the Ford Explorer was purchased because the couple wanted a different family vehicle. [ 40 ] Ms. Tooktoshina took the vehicle when the couple separated, as she continued to need a vehicle and believed it was her vehicle. But that belief is not sufficient to make this a gift. At law, a gift requires not only an intention to gift and acceptance of that intention, but also delivery of the gift: Bruce Ziff, Principles of Property Law , 7th ed (Toronto: Thomson Reuters Canada, 2018) at 184.

The Retail Instalment Contract set out that they are co-buyers of the vehicle, but that the Seller (the dealership) remained the owner of the Ford Explorer until the financing was paid in full. As co-buyers of the vehicle, they are presumptively purchasing the property as joint tenants: Ziff at 398. In addition to Mr. Kelly’s lack of intention to gift the vehicle to Ms. Tooktoshina, he was unable to deliver the gift, because the dealership remained the owner until the full purchase price and interest was paid, which did not occur. [ 41 ] The Provincial Court Order of November 1, 2019, directing Mr.

Kelly to make payments for the Ford Explorer after separation, is also not relevant to whether this was a gift. As the issue of property division or unjust enrichment was not before that Court, this term of the Order relates to a form of spousal support and does not establish anything with respect to ownership.

Therefore, I find that the parties were co-buyers of the vehicle, which was intended to be a family vehicle, and represented an intention to jointly acquire the property. [ 42 ] The actual intentions of the parties, as represented by their conduct, was that they were in a joint family venture. [ 43 ] Based on a review of the total circumstances and in consideration of the relevant factors, I find that the couple were in a joint family venture during their adult interdependent partner relationship. I also find that there has been a link between Ms.

Tooktoshina’s contributions to the joint family venture and the accumulation of wealth over the length of the relationship. Her contributions allowed the parties to have children and raise a family, while Mr. Kelly was able to continue in his work with Syncrude throughout. Ms. Tooktoshina’s domestic services allowed for a fully functioning family unit and the accumulation of wealth, which would not have been possible without her contributions. [ 44 ] Mr. Kelly has also retained a disproportionate share of the assets, as he has maintained control over the cabin and the family home, residing in the latter.

The only physical property that Ms. Tooktoshina took with her was the Ford Explorer, which was subject to significant debt that she could not afford. A Provincial Court order directed that Mr. Kelly was responsible for the payments on the truck, but he quickly stopped making these payments. This resulted in the loss of the vehicle, due to repossession by the Ford Credit. [ 45 ] Common sense dictates that a domestic relationship, especially a joint family venture, involves a mutual conferral of benefits: Kerr , at para 101 . Not only has Ms. Tooktoshina conferred benefit upon Mr. Kelly, but Mr.

Kelly has also conferred benefit upon Ms. Tooktoshina. A monetary remedy takes this mutual conferral of benefits into account, to provide a share of the accumulated wealth that Mr. Kelly has disproportionately retained to Ms. Tooktoshina, proportionate to her contributions to the joint family venture: Kerr at para 102 . The proportionate share is not determined solely by the financial contributions of each party, but by the overall contributions of each party.

The Supreme Court of Canada has been clear that the provision of domestic services are important and valid contributions requiring appropriate recognition in the joint family venture, as they are tangible benefits, allow the venture to function and allow the other partner to make the financial contributions. [ 46 ] Mr. Kelly relies upon the case of Freake v Riley , 2010 ABQB 562 . I decline to follow that case, as it was decided before Kerr . Kerr is a binding authority upon me and provides guidance on determining claims of unjust enrichment, which guidance is different from the analysis in Freake .

In particular, Freake did not consider the existence of a joint family venture and it also considered the issue of mutual benefit conferral at the first stage of unjust enrichment analysis, rather than at the remedy stage (see Kerr at para 104 ) . I also distinguish Beaudin , supra , on the basis that the couple in that case were not in a joint family venture.

[ 47 ] In determining an appropriate monetary remedy on a ‘value survived’ basis, the trial court is not bound by a strict template. As stated in Kerr at p 65, “there may be many ways in which an award may be quantified reasonably.” The period of unjust enrichment applies to the entirety of the parties’ 15 year relationship. [ 48 ] In considering the financial contributions of each party, Ms. Tooktoshina contributed a minimal amount over the years. Mr. Kelly generated most of the family income. [ 49 ] I find that Ms.

Tooktoshina did engage in domestic work, including maintaining the house and caring for the children that she bore for the family at significant cost to her health and thus ability to work. Mr. Kelly made it clear that her efforts were not done to his satisfaction. I accept that he truly felt this way at the time of the trial and for some time prior;, but his subjective view does not diminish the contributions that she made. Ms. Tooktoshina did all of the domestic work, including raising the two children with love, affection, and care, when Mr. Kelly was away for work.

She also performed a significant amount of the domestic work when he was not working and engaged in some level of maintenance of the property. However, Ms. Tooktoshina suffered from significant and disabling pain in her joints due to a condition caused by her pregnancies, such that she was unable to work after the children were born. By her own evidence, this impacted her ability to perform domestic chores. Therefore, I also accept that Mr. Kelly had a meaningful role in the domestic chores, including contributions to caring for the children, cleaning the home, and cooking when he was not working.

Both parties engaged in the maintenance of the property. [ 50 ] Mr. Kelly further testified that in the last years of their relationship, he asked Ms. Tooktoshina to find work, even part time but she refused. I also do not accept this evidence. It is contrary to the agreement of the parties that Ms. Tooktoshina would be a homemaker. Mr. Kelly was aware of Ms. Tooktoshina’s two significant medical conditions and their impacts upon her.

Thus, he would have known her ability to work was severely impaired and, if he did request that she work, this was an unreasonable request separated from the reality of the situation and does not establish that Ms. Tooktoshina was not contributing to the joint family venture. [ 51 ] Her provision of services make her an equal contributor to the family venture. Mr. Kelly was an equal contributor to the family venture. He was the director of the finances and she was the director of the household.

Based upon the joint family venture, I find that it is reasonable and appropriate to apportion each party’s share of the wealth accumulated during the relationship equally. [ 52 ] As noted in Kerr at para 142 and 194 , the value survived method relates to jointly accumulated wealth, also described as the wealth accumulated over the course of the relationship as a result of the joint family venture. Therefore, the wealth accumulated by Mr. Kelly or Ms. Tooktoshina prior to the relationship and after the relationship would not be applicable.

I have used the value of the assets at the date of separation, as that was the date that the joint family venture ended: Buchner v Long , 2016 ABQB 523 at para 108 (aff’d 2017 ABCA 382 ). C. Family home and cabin [ 53 ] Appraisals of the family home and the cabin were obtained by Ms. Tooktoshina prior to trial. The tax assessments for the properties were also entered into evidence by Mr. Kelly. [ 54 ] The family home was purchased on March 28, 2002 by Mr. Kelly, for the amount of $185,000, with a $10,000 down payment and a mortgage. Mr.

Kelly was unable to obtain banking information as to the mortgage amount owing as of August 2004. As of the date of separation, the remaining mortgage amount was $17,866. The mortgage was fully paid by July 2020. The appraisal of the family home was completed on February 10, 2022 and valued the property as of August 25, 2019 at $224,000. The tax assessment for 2019 was based upon a value of $272,940 and the tax values in subsequent years were in the range of $227,310 to $238,700.

In determining the value of the family home as of the date of separation, I rely upon the expert report of the appraiser, which was not challenged by Mr. Kelly, and would be a more accurate determination of value than a tax assessment. Mr. Kelly also testified that the condition of the family home, including the uncompleted renovation work, remained the same as it was on August 25, 2019, so the appraiser would have been aware of the relevant condition of the house. [ 55 ] Mr.

Kelly claims that his equity in the family home was $60,000 as of August 2004, based upon the $10,000 payment plus payment of the mortgage, utilities and taxes. However, equity is determined by the value of the property less debt owing on the property. Utilities and taxes are not part of the equity calculation. [ 56 ] It is unknown what the mortgage debt was as of August 2004 as Mr. Kelly was unable to obtain such information, although Mr. Kelly had equity in the family home prior to the relationship based upon the mortgage payments from March 2002 to August 2004.

Equity builds slowly in the early years of a mortgage, as a result of a higher portion of the payment to interest as compared with the later years. Based upon the mortgage documents provided by Mr. Kelly for 2017 to 2022 for the cabin, the mortgage amounts in 2018 and 2019 was approximately the same amount as borrowed in 2002 for the family home. They show a reduction of the principle by approximately $5,000 per year. While the interest rates and payments may have been different, this provides the best estimate for the equity gained between March 2002 and August 2004 (29 months) by Mr. Kelly.

I estimate that prior to the relationship beginning at the end of August 2004, Mr. Kelly had additional equity of $12,000 in the family home. [ 57 ] The equity in the family home as of August 25, 2019 was $224,000 less $17,388.12 (mortgage owing as of August 25, 2019), for an equity of $206,611.88. Mr. Kelly is credited with the $22,000 in equity he had prior to the relationship, being the $10,000 down payment and $12,000 in principal payments. Based upon an equal sharing of the equity in the family home as of the date of separation, Ms.

Tooktoshina is entitled by unjust enrichment to 50% of $184,611.88, being $92,305.94. [ 58 ] The cabin was purchased in September 2013 for $215,000, with the parties as joint owners. As of January 1, 2019, the remaining mortgage amount was $170,990.79. As of December 31, 2019, the remaining mortgage amount was $166,191.23. Therefore, I estimate the amount owing on the mortgage as of August 25, 2019 was $167,790. The appraisal of the cabin was completed on March 17, 2022 and valued the property as of August 2019 at $245,000. Mr. Kelly provided a tax assessment for 2020, showing a value of $91,220.

In determining the value of the cabin as of the date of separation, I rely upon the expert report of the appraiser, which was not challenged by Mr. Kelly. A tax assessment is not based upon a thorough review of the property value every year, unlike the detailed

review completed by the appraiser. The tax assessment value is also not consistent with the purchase price of the cabin, as it is significantly lower and renovations (albeit not yet complete) had occurred since the purchase. [ 59 ] The equity in the cabin as of August 25, 2019 was $245,000 less $167,790. Based upon an equal sharing of the equity in the cabin as of the date of separation, Ms. Tooktoshina is entitled by unjust enrichment to 50% of $77,210, being $38,605. D. Ford Explorer XLT [ 60 ] At the time of separation, the couple had a 2004 Toyota and a 2006 Ford truck, which remained in Mr.

Kelly’s possession after separation. Ms. Tooktoshina made no claim with respect to these vehicles. [ 61 ] I have already addressed that the parties were co-buyers of the Ford Explorer. Upon separation, Ms. Tooktoshina took possession and use of that vehicle until it was repossessed as a result of a failure to make the payments required by the financing agreement. By the terms of the Retail Instalment Contract, the dealership remained the owner of the vehicle until the financing was paid in full.

Therefore, this was not a family asset, as the parties did not effectively own the vehicle. [ 62 ] However, debt of the family may be considered in relation to property. As set out above, a monetary remedy under a joint family venture in unjust enrichment relates to the increase in wealth over the course of the relationship, so the debt must also be considered in relation to that time frame. The required payments were made during the relationship. While there was debt remaining on the vehicle at the time the relationship ended, that debt was not due and owing before the relationship ended.

Therefore, I conclude that such debt would not be considered in determining the distribution of family wealth upon termination of the relationship under unjust enrichment. [ 63 ] Following the separation, Mr. Kelly was directed by a Provincial Court Order granted October 23, 2019, to continue making the payments on the Ford Explorer. As stated above, the requirement of Mr. Kelly to make the payments relates to a matter of spousal support, which is not an issue being dealt with at trial. Any claim that arises from Mr.

Kelly’s failure to comply with the Court Order would need to be the subject of a different application with respect to spousal support. E. Employment Pension Plan [ 64 ] Mr. Kelly works for Syncrude. He started working there prior to the relationship. At Syncrude, he participates in a company pension plan, which has a defined benefit Registered Plan and a Supplemental Registered Plan. The latter is a voluntary benefit plan, with the employee making contributions that are matched by Syncrude and than invested. Mr.

Kelly believes, but could not recall for certain, that he is participating in the Supplemental Registered Plan. [ 65 ] Mr. Kelly did not obtain a pension value statement, contrary to the Court Order requiring him to do so for the purposes of this trial. He explained that the statement would cost him $1,000 and he did not have the money to pay for that. I do not accept that Mr. Kelly was unable, as of June 22, 2022, to budget for such a payment and obtain the valuation in time for trial. Mr. Kelly earned over $180,000 in 2022.

He testified to his ability to manage money, by paying off the remaining $17,388.12 mortgage on the family home within 11 months after separation, which could only be accomplished by making payments in excess of the required mortgage amount. In reviewing his budget, I do not find that his monthly expenses would have prohibited him from making the $1,000 payment for the pension valuation. Without seeking consent or a change to the Court Order requiring him to provide the valuation, Mr. Kelly simply choose not to obtain the valuation. I find that Mr.

Kelly has failed to be forthcoming in this regard. [ 66 ] Further, this is not a situation where a monetary remedy would be appropriate. Mr. Kelly refused to obtain a pension valuation. Absent his consent, Ms. Tooktoshina would have no ability to obtain the valuation herself, hence the court direction that it be provided by Mr. Kelly. I am also concerned about Ms. Tooktoshina’s ability to recover a monetary remedy with respect to the pension, in the absence of a proprietary interest. Mr. Kelly has not paid all of his court ordered spousal support payments.

He failed to comply with the court order requiring him to make the payments on the Ford Explorer. His explanation was that Ford no longer had him in the system and was not sending him paperwork, which is not an acceptable reason for non-compliance with a court order. [ 67 ] Inability to recover is a reason why a monetary remedy may be inappropriate: Kerr at para 52 ; Peter at para 31 ; Buchner v Long , 2017 ABCA 382 at para 23 ; Postans v Davidson , 2021 ABQB 30 .

I am also in agreement with Justice Gosse’s decision in Postans , at para 28 , that a constructive trust remedy is available where a joint family venture exists. This accords with the inherent flexibility of remedies in unjust enrichment, as recognized in Kerr , at para 70-73 . [ 68 ] Ms. Tooktoshina did not make a direct contribution to Syncrude for the pension. However, as the parties were economically interdependent in their joint family venture and Ms. Tooktoshina’s provision of domestic services allowed Mr.

Kelly to continue working full time during the joint family venture, I find that her contributions to the joint family venture allowed for that accumulation of wealth. This is a sufficient link to the pension. [ 69 ] Therefore, Ms. Tooktoshina is entitled to a proprietary interest by way of constructive trust in Mr. Kelly’s pensio n, being a 50% share of the value of the pension for the period of August 29, 2004 to August 25, 2019 . IV. Child Support [ 70 ] An Order was granted in Provincial Court on September 24, 2019, directing that Mr. Kelly pay $1,473 per month in child support.

The parties agree that he has made those payments regularly since the Order and there are currently no child support arrears. The child support in the Court Order was based upon a shared parenting arrangement for both children. [ 71 ] Ms. Tooktoshina testified that since separation, the parenting arrangement involved Ms. Tooktoshina having the oldest child

fulltime and shared parenting of the youngest child (split 50/50). This parenting arrangement lasted until July 2022. At that time, the youngest child remained with Ms. Tooktoshina full time. At some point, the oldest child began parenting time with Mr. Kelly, but after three parenting visits, this visitation stopped, and her parenting time remained with Ms. Tooktoshina full time. Mr. Kelly confirmed this parenting arrangement. [ 72 ] Child support must be determined on the reality of the parenting arrangement, even if it differs from the court ordered parenting arrangement.

Therefore, I calculate child support from September 1, 2019 to the date of trial and ongoing, based upon one child being primarily with Ms. Tooktoshina and shared parenting of the other child until July 2022, when Ms. Tooktoshina began the current primary parenting of both children. [ 73 ] Mr. Kelly is also seeking contribution by Ms. Tooktoshina for orthodontic fees for the oldest child. He testified that the parties agreed to split the remaining fees owing, after the application of Mr. Kelly’s benefits. The amount remaining after benefits was $2,325, which was paid by Mr. Kelly. Mr. Kelly did not put to Ms.

Tooktoshina during her evidence that such an agreement existed. There is no documentary evidence, such as text messages or emails, that the parties agreed to share this expense. I was not made aware of any order setting out the parties’ respective shares of

section 7 expenses. I find that such an agreement existed. [ 74 ] Even if there was such an agreement, the Court may consider, but is not bound, by it. The Court is required to ensure that reasonable arrangements have been made for child support. Section 7(2) of the Alberta Child Support Guidelines provides that the guiding principle with respect to

section 7 expenses, such as orthodontic expenses, is for the expense to be shared by the parents in proportion to their respective incomes. I find that proportionate sharing is a reasonable arrangement. [ 75 ] Pursuant to s 3 and 4 of

Schedule 3 of the Alberta Child Support Guidelines , calculations of s 3 child support do not consider spousal support payments for calculation purposes. Calculations of s 7 child support do consider payments of spousal support in calculating the income of the parties, as it is included in the recipient’s income and deducted from the payor’s income. [ 76 ] Ms.

Tooktoshina’s guideline income is as follows, based upon her income tax returns: • 2019 $0 income plus $12,365 spousal support payments received • 2020 $19,000 income plus $17,892 spousal support payments received • 2021 $16,600 income plus $36,000 support payments received • 2022 Unknown as she has not yet filed this return, so I base her 2022 income upon her 2021 tax return. [ 77 ] Mr.

Kelly’s guideline income is as follows, based upon his T-4’s for the first three years (he testified that he only files his taxes every 5 years and so did not have income tax returns for the respective years) and his final pay stub for 2022: • 2019 $189,575.14 • 2020 $217,190.98 • 2021 $169,736.83 • 2022 $180,748.07 [ 78 ] The monthly s 3 or s 9 child support (as applicable based on shared parenting) payable by each party for each year is as follows: • 2019 Mr. Kelly $2,655 - Ms. Tooktoshina $0 • 2020 Mr. Kelly $3,020 - Ms. Tooktoshina $170 - Set off = $2,850 • 2021 Mr. Kelly $2,394 - Ms.

Tooktoshina $139 - Set off = $2,255 • 2022 Mr. Kelly $2,539 - Ms. Tooktoshina $145 - Set off = $2,394 (January to July) • 2022 Mr. Kelly $2,539 - Ms. Tooktoshina $0 (August to December) [ 79 ] In 2019, Mr. Kelly should have paid 4 months of child support at $2,655, for a total of $10,620. In 2020, he should have paid 12 months at $2,850, for a total of $34,200. In 2021, he should have paid 12 months at $2,255, for a total of $27,060. In 2022, he should have paid 7 months at $2,394 and 5 months at $2,539, for a total of $29,453. The sum total from August 2019 to December 2022 is $101,333. [ 80 ] Mr.

Kelly has paid $1,473 child support monthly as of October 1, 2019. To December 31, 2022 (39 months), this total amount is $57,447. Thus, he has child support arrears for s 3 and s 9 child support of $43,886. [ 81 ] For the two orthodontic payments in 2021 ($387.50), the parties’ proportionate income shares would be 70.86% for Mr. Kelly and 29.14% for Ms. Tooktoshina. Thus, Ms. Tooktoshina is responsible for $112.92. For the remaining 10 orthodontic payments in 2022 ($1,937.50), the parties’ proportionate income shares would be 73.35% for Mr. Kelly and 26.65% for Ms. Tooktoshina. Thus, Ms.

Tooktoshina is responsible for $516.34.

[ 82 ] Ms. Tooktoshina’s total share of the orthodontic expenses ($629.26) is deducted from Mr. Kelly’s child support arrears, so that the total outstanding child support arrears, as of December 31, 2022 are $43,256.74. [ 83 ] Child support is determined based upon on the most recent available income information. Therefore, for 2023, base child support is based upon Mr. Kelly’s 2022 income and Ms. Tooktoshina’s 2021 income of $16,600. Mr. Kelly shall pay, as of January 1, 2023, monthly s 3 child support of $2,539. Any s 7 expenses will be shared by the parties proportionate to their incomes, being 73.35% for Mr.

Kelly and 26.65% for Ms. Tooktoshina. He shall be credited for any child support amounts already paid in 2023 towards child support. Conclusion [ 84 ] In

summary, Mr. Kelly owes Ms. Tooktoshina the following amounts: A. $92,305.94 for her share of the equity of the family home; B. $38,605 for her share of the equity of the cabin; C. 50% of the value of his pension from August 29, 2004 to August 25, 2019, on the basis of a constructive trust; and D. $43,256.74 in child support arrears as of December 31, 2022. [ 85 ] Each party is responsible for 50% of the cost of the two appraisals completed. [ 86 ] After Mr. Kelly pays to Ms. Tooktoshina a lump sum of $130,910.94, being the equity in the family home and the cabin, Ms.

Tooktoshina shall assign and transfer all of her right, title and interest in the family home and cabin to Mr. Kelly. [ 87 ] The Court shall issue an appropriate order, directing the pension administrator of Mr. Kelly’s pension plan with Syncrude to transfer Ms. Tooktoshina’s share of the pension directly to her. [ 88 ] The payment of child support arrears and ongoing child support is enforceable through Alberta’s Maintenance Enforcement Program. [ 89 ] Mr.

Kelly is required, as of January 1, 2023, to pay ongoing child support of $2,539. [ 90 ] As I have not dealt with spousal support in any manner, either party may bring an application with respect to spousal support (including, but not limited to, the failure of Mr. Kelly to make payments in accordance with the Provincial Court Order of November 1, 2019 or the level of spousal support payable). The parties may do so through the applicable court processes. Heard on January 12, 13, and February 1, 2023 Dated at Fort McMurray, Alberta this 14 th day of April, 2023. L.M. Angotti J.C.K.B.A.

Appearances: Janine Elizabeth Tooktoshina Self Represented Litigant Lorrie Gordon Kelly Self Represented Litigant