Marriott v. Stone, 2016 NSSC 183

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Marriott v. Stone , 2016 NSSC 183 Date: 2016-07-21 Docket: SFHMCA-096989 Registry: Halifax Between: Carolyn June Marriott Applicant v. John Douglas Stone Respondent LIBRARY HEADING Judge: The Honourable Justice Leslie J. Dellapinna Heard: June 27, 28, 29, 2016 in Halifax, Nova Scotia Subject: Custody, shared custody and access; Unjust enrichment; and Child maintenance.

Summary: The parties lived in a common-law relationship for approximately three and a half years during which they had one child, a son who, at the time of the trial was approximately five and a half years of age. During the parties’ relationship they did not accumulate assets but did accumulate a number of debts. The Applicant sought joint custody and primary care of the parties’ son with specified parenting time by the Respondent.

She also sought an order for child maintenance and an equal sharing of the remaining balance of the increase in the debt that the parties accumulated from the date they began their cohabitation to the date that they separated their finances. The Respondent sought joint and equal shared custody of the parties’ son. He sought an order for child maintenance that would reflect shared parenting. With the exception of a joint line of credit which he agreed to share equally, he denied responsibility for any other debt that was in the name of the Applicant. Issues: 1.

What is the appropriate parenting arrangements for the parties’ son? 2. What is the appropriate division of the parties’ remaining debts? 3. What is the appropriate child maintenance order for the support of the parties’ son? Result: Primary care was granted to the Applicant with specified parenting time granted to the Respondent. During cohabitation and after the Applicant demonstrated that she was the parent who was primarily responsible for their son’s care and the parties’ poor relationship and lack of communication did not work in favour of an equal shared custody arrangement.

It was determined that the parties were engaged in a joint family venture as defined by the Supreme Court in Kerr v. Baranow , 2011 SCC 10 . It was found that the Applicant’s credit card accounts had been used for the benefit of the family during the parties’ cohabitation and the increase in her credit card debt during their relationship was divided equally between the parties. The Applicant’s claim for a division of her line of credit account was denied.

There was insufficient evidence that the Respondent had directly or indirectly benefitted from the Applicant’s use of that account during their period of cohabitation. The Respondent was ordered to pay the table amount of child maintenance as well as his proportionate share of their son’s childcare expenses. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Marriott v. Stone , 2016 NSSC 183 Date: 2016-07-21 File No.

SFHMCA-096989 Registry: Halifax Between: Carolyn June Marriott Applicant

v. John Douglas Stone Respondent Judge: The Honourable Justice Leslie J. Dellapinna Heard: June 27, 28, 29, 2016, in Halifax, Nova Scotia Counsel: A. McFarlane for the Applicant P. Boubnov for the Respondent By the Court: [ 1 ] The Applicant, Carolyn June Marriott, filed a Notice of Application in July 2015 seeking an order under the Maintenance and Custody Act , R.S.N.S. 1989, c. 160 (“the MCA”) for custody and access in relation to the parties’ son, AKS, as well as an order for child maintenance and exclusive occupation of the family residence.

She also sought an order under the Partition Act , R.S.N.S. 1989, c. 333 for the sale of their home and an order for compensation based on unjust enrichment principles. [ 2 ] A three day hearing was held on June 27, 28 and 29, 2016. In addition to the evidence of the parties, the Court received affidavit evidence from the Applicant’s sister and a co-worker as well as the Respondent’s two sisters, his common-law partner and from one of his friends. [ 3 ] This is my decision from that hearing.

BACKGROUND [ 4 ] The Applicant and the Respondent, John Stone, began dating in March 2009 and began living together in November 2010. According to the Applicant their relationship began to deteriorate while she was pregnant for AKS, who was born on November 25, 2010. [ 5 ] The parties seem to agree that their relationship ended in July 2014 although they continued living under the same roof.

They did not physically separate until the Respondent left the family residence on September 1, 2015. [ 6 ] In July 2015 the Applicant filed with the Court a Notice of Motion for Interim Relief seeking, among other things, an order for interim custody of AKS. Prior to the Motion being heard the Respondent left the family residence. On October 1, 2015 the Honourable Justice Cormier of this Court rendered a decision regarding interim parenting.

It was her decision that the parties would share joint custody of AKS and that he would be in the care of the Respondent approximately three days and nights per week from Sunday until Wednesday and in the care of the Applicant the remainder of the week. Justice Cormier’s decision were put in the form of an Interim Order which was issued on November 15, 2015. [ 7 ] During a conference with me on February 8, 2016 the parties were able to agree on holiday access pending the outcome of the hearing and a Settlement Conference was scheduled to take place on April 20, 2016.

No further agreements were reached at that conference. However, before the conclusion of the hearing before me the parties were able to agree on some issues. They agreed as follows: 1. The Applicant will have sole possession and ownership of the parties’ family residence which is located in Middle Sackville, Nova Scotia. The Respondent will provide to the Applicant a quit claim deed as well as the sum of $250.00 to help with the cost of recording the deed and the release of the mortgage.

The Applicant will assume sole responsibility for all of the expenses associated with that property including the assumption of the mortgage that secures that property in favour of the Bank of Nova Scotia. According to the evidence the property has no net value and in fact, after taking into account notional disposition costs, may very well have a negative value. 2. The Applicant will continue to be the sole owner of a property located on Prince Street in Middle Sackville which had been the parties’ family residence at one time but which is now a rental property.

Title to that property is already in the name of the Applicant. The Applicant will be solely responsible for any expenses associated with that property including the mortgage which is held by the Bank of Nova Scotia. Again, there appears to be little or no equity in the Prince Street property and, after taking into account disposition costs, may also have a negative value. 3.

The parties have a joint line of credit owing to the Bank of Nova Scotia which has a balance owing of approximately $19,490.05 being the balance of that account as of the date the Respondent left the family residence plus interest that accrued since that date. Both agree to forthwith take steps to each assume one half of that debt which will necessitate both parties taking out separate financing. [ 8 ] All the above agreements are to take effect no later than 60 days from the release of this decision. The parties’ agreement will be included in the Court’s order.

ISSUES [ 9 ] The remaining issues are as follows: 1. What is the appropriate parenting arrangement for the parties’ son, AKS? 2. What is the appropriate division of the parties’ remaining assets and debts? 3. What is the appropriate child maintenance order for the support of the parties’ son, AKS? DISCUSSION OF ISSUES Parenting [ 10 ] Both parties asked for an order for joint custody.

The Applicant, however, sought primary care of AKS and proposed that the Respondent have their son in his care every second weekend and Monday of every week, overnight to Tuesday morning. [ 11 ] The Respondent requested a shared custody arrangement and asked the Court to order an alternate week arrangement. [ 12 ] It was the Applicant’s position that the parenting arrangements as described by the Interim Order have not worked. She said that the parties did not communicate regarding their son.

She claimed that the Respondent threatened her, intimidated her and insulted her in the past which made communication difficult if not impossible and face-to-face transitions uncomfortable to say the least. [ 13 ] She said too that the Respondent was not forthcoming with information regarding how AKS is cared for in his household and who is providing that care. Prior to the hearing she received little if any information regarding the Respondent’s partner.

She described their relationship as “high conflict” making it impossible for them to co-parent. [ 14 ] The Respondent acknowledged that the parties do not communicate well. He however blamed the Applicant for that and said that when he tried to communicate with the Applicant their discussion spiralled into an argument and, he says, the Applicant would then accuse him of harassment. [ 15 ] In spite of their inability to communicate he took the position that the shared parenting arrangement as ordered by Justice Cormier was working well although he thought there was room for improvement.

He expressed the desire to have an order that allowed both parties to have full weekends with their son from time to time or more preferably, each to have alternating full weeks. [ 16 ] The Applicant is an accountant with the province of Nova Scotia. She works full time, Monday to Friday. She has almost completed the requirements for her Masters of Health Informatics degree.

She described herself as having been the primary parent to AKS prior to the parties’ separation although she acknowledged that the Respondent was an involved parent and, since the parties have been living in separate households, he has continued to be involved in AKS’s life. [ 17 ] When the parties were together the Applicant was responsible for the family’s finances. [ 18 ] The Respondent works for an insurance company in a managerial position. He has been working for the same employer for many years. He too works full time, Monday to Friday, and occasionally has to work on a weekend. His hobby is music.

He plays infrequently with a band. According to his evidence they make very little income from their performances. They do it mainly for personal enjoyment. [ 19 ] With respect to custody and access the MCA provides as follows: 18(5) In any proceeding under this Act concerning care and custody or access and visiting privileges in relation to a child, the court shall give paramount consideration to the best interests of the child.

(6) In determining the best interests of the child, the court shall consider all relevant circumstances, including (

a) the child’s physical, emotional, social and educational needs, including the child’s need for stability and safety, taking into account the child’s age and stage of development; (

b) each parent’s or guardian’s willingness to support the development and maintenance of the child’s relationship with the other parent or guardian; (

c) the history of care for the child, having regard to the child’s physical, emotional, social and educational needs; (

d) the plans proposed for the child’s care and upbringing, having regard to the child’s physical, emotional, social and educational needs;

(

e) the child’s cultural, linguistic, religious and spiritual upbringing and heritage; (

f) the child’s views and preferences, if the court considers it necessary and appropriate to ascertain them given the child’s age and stage of development and if the views and preferences can reasonably be ascertained; (

g) the nature, strength and stability of the relationship between the child and each parent or guardian; (

h) the nature, strength and stability of the relationship between the child and each sibling, grandparent and other significant person in the child’s life; (

i) the ability of each parent, guardian or other person in respect of whom the order would apply to communicate and co-operate on issues affecting the child; and (

j) the impact of any family violence, abuse or intimidation, regardless of whether the child has been directly exposed, including any impact on (

i) the ability of the person causing the family violence, abuse or intimidation to care for and meet the needs of the child, and (ii) the appropriateness of an arrangement that would require co-operation on issues affecting the child, including whether requiring such co-operation would threaten the safety or security of the child or of any other person. [ 20 ] Counsel for the parties also referred me to a number of prior decisions of this Court. They included decisions of the Honourable Associate Chief Justice O’Neil in Gibney vs. Conohan , 2011 NSSC 268 and Murphy vs.

Hancock , 2011 NSSC 247 , the decision of the Honourable Justice Haley in McNeil vs. Peach , 2012 NSSC 135 and my decision in Hammond vs. Nelson , 2012 NSSC 27 . Associate Chief Justice O’Neil in Gibney and I in Hammond attempted to develop lists of considerations to take into account when deciding whether a shared parenting arrangement should be ordered in any given case. The lists were never intended to be exhaustive. Each case must be decided on its own facts. In arriving at my decision my focus has been on AKS and what I believe to be in his best interests.

In addition to subsection 18(5) I have considered all of the circumstances contained in subsection 18 (6) of the MCA and the cases that have been referred to me by counsel and, in no particular order, I came to the following conclusions based on the evidence. [ 21 ] I believe the Applicant’s evidence regarding the nature of the parties’ relationship prior to their separation. She described it as “tumultuous”. She said that the Respondent became jealous, controlling and threatening beginning while she was still pregnant for AKS.

Her affidavit included examples of such threats including threats to keep AKS from her if they were to separate, threats of physical violence and one episode in January 2011 when the Respondent grabbed her by the foot and “yanked” her off the couch resulting in her back and arm being bruised. There were other examples of controlling behaviour on the part of the Respondent as well as arguments in front of their young son, insults and threatening gestures. [ 22 ] I also accept the Applicant’s evidence that she was the primary parent to AKS prior to the breakdown of the parties’ relationship.

While Respondent was an involved parent, the Applicant, more so than him, was responsible for their son’s personal hygiene, the majority of the child’s transportation to and from daycare (the Respondent did not drive) and it was the Applicant who took him to most of his medical and dental appointments.

I also find that when AKS was sick it was the Applicant who was responsible for his care the majority of the time. [ 23 ] Since the Interim Order was granted the Applicant has continued to be the parent who is primarily responsible for getting AKS to his medical and dental appointments as well as getting his hair cut. [ 24 ] While both parties appear capable of meeting their son’s day-to-day physical needs, the Applicant has shown a slightly greater concern for his social development by arranging play dates and extracurricular activities (such as Beavers). [ 25 ] Notwithstanding my conclusions regarding the Respondent’s behaviour toward the Applicant during their relationship, I believe AKS is safe in the care of both of his parents.

There is no evidence to suggest the Respondent has ever been abusive to AKS. [ 26 ] Given their son’s age, no specific attempt was made to ascertain his wishes, but based on the evidence I have concluded that he loves both of his parents, is close to both of them and is content when he is in the care of either of his parents. [ 27 ] At the present time the parties live in close proximity to each other. [ 28 ] The Respondent’s partner is supportive of his relationship with AKS and it appears that AKS gets along well with her.

The Respondent’s family, and his sisters in particular, have a close relationship with the Respondent and have shown a willingness to help him with the care of AKS when needed. [ 29 ] Since the parties physically separated there have been no serious disagreements between them regarding the care arrangements for their son but for the most part there have been no major decisions that had to be made during that time frame. There apparently was never any issue over what school he was going to attend. [ 30 ] Communication between the parties is poor. There is a high level of mistrust between them.

The Applicant’s mistrust of the Respondent likely stems from the Respondent’s behaviour toward her prior to their separation. The Respondent denied he ever mistreated or harassed the Applicant and said that he did not want to engage in conversations with her out of fear that she will make further accusations against him. Their son is well aware of the nature of his parents’ relationship.

He has to go from one parent to the other at a “public place” in the presence of witnesses. [ 31 ] If the circumstances required it, both parties would be capable of assuming the role of primary parent to AKS but, in my view, the Applicant would be better equipped to do so than the Respondent. She has the experience. [ 32 ] The Interim Order served its purpose. It allowed for a shared parenting arrangement pending the hearing but I do not believe it will work in the best interest of AKS or his parents in the long term.

It does not afford either party a full weekend with AKS and because they both work full-time and he attends school, both the Applicant and the Respondent are limited in what they can do with their son recreationally. Both parties expressed some level of dissatisfaction with the Interim Order. Parenting – Conclusion [ 33 ] Both the Applicant and the Respondent are good parents in their own way. I believe AKS wants to spend time with both of his parents and certainly it would be in his best interest to continue to have a relationship and regular contact with both of them.

Of the two parties, I believe that the Applicant is the more organized and, as she said during her cross-examination, in the past she has taken the lead on the decision making when it came to their son. [ 34 ] I considered maintaining the current parenting arrangement. It had the advantage of being easily followed by AKS. He knew what to expect each day of the week. However, for the reasons already stated, I do not believe that it is sustainable. [ 35 ] I considered the Respondent’s week about proposal. I do not believe that such an arrangement would be in their son’s best interest.

The parties do not communicate and cooperate well enough to have an equal shared parenting arrangement but perhaps more important than that, I believe that it would not be in the best interests of AKS to be away from either parent, and in particular the Applicant, for a full week. [ 36 ] I have come to the conclusion that the plan proposed by the Applicant is the best option. It should be easy for AKS to understand and follow. It gives both parties time over weekends – at least every second weekend – to have with their son.

It also provides the Applicant with time during weekdays to ensure that their son gets to any necessary appointments and recreational activities. [ 37 ] Although the Applicant’s proposed

schedule means AKS is in the Respondent’s care fewer hours over a two week period than was the case under the Interim Order, the time he will be with his father will be less encumbered by school and work thus enabling the Respondent to spend more time with him. [ 38 ] I also believe that it is in AKS’s best interest to specify holiday and special occasion time. I therefore order as follows: 1. The parties will share joint custody of AKS. 2.

AKS will be in the primary care of the Applicant and in the care of the Respondent every other weekend from Friday after school (or approximately 4:30 p.m. if school is not in session) until Monday morning before school recommences. Provided school is in session the transitions will take place at AKS’s school or Excel Program if he is attending Excel, otherwise they will continue to be at a public location agreed upon by the parties. In addition, the Respondent will have parenting time with AKS every Monday after school overnight to Tuesday morning.

As a result, every second weekend the Respondent will have AKS in his care from Friday after school until the following Tuesday morning when he is dropped off at school. On the other weeks he will have AKS in his care Monday overnight until Tuesday morning. 3. If the Respondent is required by his employment to work the weekend that he would ordinarily have AKS, he will instead be permitted to have the care of AKS the following weekend in its place. 4. The regular parenting arrangements referred to above will be altered on certain holidays and special event days as described below. 5.

Christmas : Beginning in 2016 and continuing in even numbered years thereafter, AKS will be in the care of the Respondent from 6:00 p.m. on December 24 until 1:00 p.m. on December 25. AKS will then be in the Applicant’s care from December 25 at 1:00 p.m. until 1:00 p.m. on December 26. In odd numbered years commencing in 2017 the opposite

schedule will apply such that AKS will be in the care of the Applicant from 6:00 p.m. on Christmas Eve until 1:00 p.m. on Christmas Day and in the care of the Respondent from 1:00 p.m. on Christmas Day until 1:00 p.m. on December 26. After 1:00 p.m. on December 26 the parties will revert to the parenting

schedule referred to in clause 2 above. 6. Easter: In 2017 and all odd numbered years thereafter, AKS will be in the care of the Respondent from 6:00 p.m. on the Thursday before Easter until 6:00 p.m. on the Saturday before Easter. He will then be in the care of the Applicant from 6:00 p.m. on the Saturday before Easter until the following Tuesday morning. In 2018 and in all even numbered years thereafter, AKS will be in the care of the Applicant from 6:00 p.m. on the Thursday before Easter until 6:00 p.m. on the Saturday before Easter.

He will then be in the care of the Respondent from 6:00 p.m. on the Saturday before Easter until school drop off on the following Tuesday morning. 7. Mother’s Day: AKS will be in the care of the Applicant on the Friday before Mother’s Day at 6:00 p.m. until he is dropped off at school on the following Monday morning. 8. Father’s Day: AKS will be in the care of the Respondent on the Friday before Father’s Day at 6:00 p.m. until he is dropped off at school on the following Monday morning. If by changing the alternating weekend

schedule in order to accommodate special time with AKS on the Mother’s Day and Father’s Day weekends either party then would otherwise have the care of their son for three weekends in a row, the parties will alter the regular weekend

schedule on the third weekend such that the opposite parent has AKS in his or her care following the Mother’s Day or Father’s Day weekend. 9. Thanksgiving: In 2016 and all even numbered years thereafter, AKS will be in the care of the Applicant from 6:00 p.m. on the Friday before the Thanksgiving weekend until school drop off on the following Tuesday morning.

In 2017 and all odd numbered years thereafter, AKS will be in the care of the Respondent from 6:00 p.m. on the Friday before the Thanksgiving weekend until school drop off on the following Tuesday morning. 10. Halloween: In 2016 and all even numbered years thereafter, AKS will spend Halloween with the Respondent from 6:00 p.m. on October 31 until the following morning at approximately 7:30 a.m. when he will either be returned to school or the care of the Applicant if school is not in session.

In 2017 and all odd numbered years thereafter, AKS will spend Halloween with the Applicant from 6:00 p.m. on October 31 until 7:30 a.m. on November 1. 11. Summer: Both the Applicant and the Respondent will have the option of having up to two weeks block parenting time (i.e. two periods of seven consecutive days) with AKS during AKS’s summer vacation from school. In even numbered years the Applicant will have the first opportunity to choose her block parenting time with AKS and will do so no later than May 15. The Respondent will then have until May 31 to choose his block parenting time.

In odd numbered years the Respondent will have the first opportunity to choose his block parenting time with AKS and will do so no later than May 15 and the Applicant will then choose her block parenting time with AKS no later than May 31. 12. All other holidays: All other holidays not specifically referred to above will be shared equally by the parties. Failing any agreement to the contrary, such holidays will be alternated between the parties.

If either party is unable to care for AKS during their regularly scheduled holiday, the other party will have the first opportunity to do so. [ 39 ] In addition to the foregoing, I also order as follows: 1. Both of the parties will be entitled to travel with AKS within the province of Nova Scotia during their scheduled parenting time with him with no advance notice to the other party. 2. Both parties will be entitled to travel with AKS outside of the province of Nova Scotia but within Canada provided 14 days advance written notice is given to the other party.

Such notice will also include a brief itinerary of the travelling parent’s travel arrangements including their date of departure and expected date of return, where they plan to travel to with AKS and how they can be reached in the event of an emergency. 3. Both parties will be entitled to travel with AKS outside of Canada provided 30 days advance written notice is given to the other party. Similarly, such notice will include an itinerary as described above. When travelling internationally, the party who is not travelling with AKS will, if requested, provide a consent letter authorizing the travel arrangements.

Consent will not be unreasonably withheld. 4. The Applicant may apply for a passport for AKS and the Respondent will cooperate to the extent needed for that passport to be obtained. When the passport is not needed for travel purposes it will remain in the possession of the Applicant.

Asset and Debt Division [ 40 ] As stated earlier, the parties were able to agree on the division of a joint line of credit owed to the Bank of Nova Scotia as well as the ownership of two parcels of real estate in the name of the Applicant. [ 41 ] They were unable to agree on the division of three other debts. [ 42 ] The Applicant sought a contribution from the Respondent to three credit accounts that were in her name alone. They consisted of a PC Financial Master Card account, a Royal Bank Visa account and a Royal Bank line of credit.

To be specific, she sought to divide equally with the Respondent the increase in the outstanding balance of those accounts from the date the parties began their cohabitation to the date they separated their finances in July 2015. [ 43 ] In addition, the Applicant sought the sum of $111.07 from the Respondent representing expenditures made by the Respondent using the parties’ joint bank account in August 2015 after he stopped depositing his pay cheque into the account in July.

She also asked for a further sum of $60.00 from the Respondent representing one half of the bank fees that accumulated on the joint account from the date the parties separated their finances up to the date that the account was closed, six months later. [ 44 ] The Applicant based her claim on the principle of unjust enrichment. [ 45 ] One of the leading cases on unjust enrichment, at least in the context of a domestic couple, is the Supreme Court’s decision in Kerr vs. Baranow , 2011 SCC 10 . [ 46 ] Kerr confirmed that there are three components to establishing unjust enrichment and the onus is on the Applicant.

Firstly: “…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.” (paragraph 38) [ 47 ] Cromwell J., writing for the majority, also said at paragraph 38 of Kerr that the benefit must be tangible and 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…”. [ 48 ] Secondly, in addition to a benefit given by the claimant to the defendant, there must be a corresponding deprivation. “…the plaintiff’s loss is material only if the defendant has gained a benefit or been enriched….That is why a second requirement obligates the plaintiff to establish not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered….” (para 39) [ 49 ] And finally: “The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without a juristic reason.

To put it simply, this means that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, making its retention “unjust” in the circumstances of the case….”(para 40) [ 50 ] If unjust enrichment is established, the Court has to determine the appropriate remedy. “Remedies for unjust enrichment are restitutionary in nature; that is, the object of the remedy is to require the defendant to repay or reverse the unjustified enrichment. A successful claim for unjust enrichment may attract either a “personal restitutionary award” or a “restitutionary proprietary award”.

In other words, the plaintiff may be entitled to a monetary or proprietary remedy….” (para 46) [ 51 ] In the circumstances of this case, where the alleged enrichment is the non-payment of a debt, the appropriate remedy would be a monetary award, not a proprietary remedy. [ 52 ] Justice Cromwell pointed out that most domestic unjust enrichment claims fall into two categories – those where the enrichment consists of the provision of unpaid services, and those where it consists of an unrecognized contribution to the acquisition, improvement, maintenance or preservation of a specific property. (para 59) [ 53 ] However there can be others such as cases involving the contributions by two parties over time which resulted in the accumulation of wealth. “The unjust enrichment occurs following the breakdown of their relationship when one party retains a disproportionate share of the assets which are the product of their joint efforts.” (para 60) [ 54 ] Given that the benefit may be positive or negative, it stands to reason that an unjust enrichment may occur when, as a result of the parties’ joint expenditures over a period of time, one of the parties is left with a disproportionate share of the family debt. [ 55 ] In Kerr the Court said at paragraph 60 “…where there is a relationship that can be described as a “joint family venture”, and the joint efforts of the parties are linked to the accumulation of wealth, the unjust enrichment should be thought of as leaving one party with a disproportionate share of the jointly earned assets.” Or, in cases such as this it can be a disproportionate share of jointly accumulated debts. [ 56 ] The Court went on to say “Unlike much matrimonial property legislation, the law of unjust enrichment does not mandate a presumption of equal sharing.” (para 62) But it “should recognize and respond to the reality that there are unmarried domestic arrangements that are partnerships; the remedy in such cases should address the disproportionate retention of assets acquired through joint efforts with another person.

This sort of sharing, of course, should not be presumed, nor will it be presumed that wealth acquired by mutual effort will be shared equally. Cohabitation does not, in itself, under the common law of unjust enrichment, entitle one party to a share of the other’s property or any other relief.

However, where wealth is accumulated as a result of joint effort, as evidenced by the nature of the parties’ relationship and their dealings with each other, the law of unjust enrichment should reflect that reality.”(para 85) [ 57 ] The Court recognized that different couples have different relationships and not all relationships should be categorized as joint family ventures and not all joint family ventures are the same.

But, “when the parties have been engaged in a joint family venture, and the claimant’s contribution 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.”(para 87) [ 58 ] To determine whether the parties had a joint family venture the Court, at paragraph 89, suggested an analysis of the parties’ relationship under four headings: mutual effort, economic integration, actual intent and priority of the family. [ 59 ] Following that analysis, I have come to the conclusion that the parties had a joint family venture.

They presented themselves as a family unit and, more importantly, conducted themselves as such. They pooled their efforts to care for their son and to run the household. [ 60 ] On paper it may seem like they were not economically integrated but in reality they were. They both deposited their pay cheques to a joint account which they both then used for family expenses. When their incomes were not enough to cover all their expenses they resorted to using the Applicant’s credit accounts.

While it may have been the Applicant who transferred unpaid expenses to her credit accounts most of the time, the Respondent knew it was happening and trusted the Applicant to handle their financial affairs. He acknowledged that he knew the Applicant’s credit card accounts were used for family purposes and that the family’s expenses exceeded their incomes.

If he did not know the extent of their indebtedness it was because he never questioned the Applicant. [ 61 ] While the parties’ relationship may have been “tumultuous” they still managed to try to give priority to their son and the family as a whole. [ 62 ] There is no evidence that the Applicant misused either of her credit card accounts or the line of credit. [ 63 ] During their relationship the parties did not accumulate additional assets. They accumulated debt. They both shared in its accumulation.

[ 64 ] If the Applicant was left with the responsibility for the remaining debt that was accumulated for their mutual benefit without contribution by the Respondent, the Respondent would be unjustly enriched. He would receive an enrichment in the form of the avoidance of his fair share of the family debt which was incurred for family purposes during their cohabitation. The Applicant would suffer a corresponding deprivation in the form of that debt being placed solely in her lap.

There is no juristic reason for that happening. [ 65 ] Having concluded that the appropriate remedy would be a monetary award, the only issue left to determine is the amount of that award. [ 66 ] The Applicant’s evidence intending to demonstrate how her credit accounts were used was not as detailed as I would have preferred. I recognize it is not always possible nor would it be practical to expect the Applicant to produce every monthly statement of every account used by the parties during their relationship or proof of who incurred each and every charge on a credit account and for what purpose.

But enough monthly statements should be produced in order for the Court to determine, on the balance of probabilities, that the debt was incurred by both parties, or if incurred by just one of the parties, that the debt incurred benefitted the Respondent. In so far as the Applicant’s two credit card accounts were concerned she did that. Based on the credit card statements she attached to her affidavit and the testimony of both parties I am satisfied that the PC Financial Master Card was used virtually in its entirety for family related purposes.

The balance outstanding in July 2015 was $1,633.00 and it was all incurred during the parties’ relationship. Similarly I am satisfied that the Applicant’s Royal Bank Visa account was also used for family purposes. The balance outstanding on that account in July 2015 was $14,545.00. The Applicant was not looking for the Respondent to share the entire outstanding balance but rather she asked for one half of the increase in the balance of that account from the time the parties began their relationship to the time they separated their finances.

The account increased over that period of time by $10,107.00. [ 67 ] I was not as satisfied with the Applicant’s evidence of how her Royal Bank line of credit was used. In her affidavit she said the following with respect to that account: “162. The Royalbank line of credit #***-001 was used primarily for tuition and transfers into jointly used accounts and joint accounts.

An example is attached hereto as Exhibit “U”, on the statement from March 31 2014 there was a transfer of $600 to the joint chequing account #3589.” (account number deleted) [ 68 ] Exhibit “U” was the Applicant’s line of credit statement for the period March 1, 2014 to March 31, 2014 – three months before the date the parties said their relationship broke down and more than a year before they separated their finances. The statement showed cash withdrawals of $1,300.00.

It also showed a balance owing as of March 31, 2014 of $4,480.25. [ 69 ] The only other statement provided was attached to the Applicant’s Statement of Property. It was for the period July 1, 2015 to July 31, 2015. The only transaction shown in that month was an interest payment of $81.68. The total owing on the account as of July 31, 2015 was $9,611.25. The Applicant asked that the Respondent be required to reimburse her one half of that amount. [ 70 ] It was the Applicant’s evidence that the line of credit was used primarily for her tuition payments and transfers into jointly used accounts.

She gave no breakdown of the outstanding debt and she gave no evidence of actual activity on this account other than what I’ve referred to above. The Respondent denied any knowledge of this account being used for his or the family’s benefit. [ 71 ] The onus is on the Applicant. She has given me nothing from which I can conclude that her line of credit was used for the benefit of the Respondent or the family. I believe it was possible for the Applicant to provide that evidence, if it existed. [ 72 ] As far as this account is concerned the Applicant has failed to meet the required burden of proof.

I am not satisfied, on the balance of probabilities, that the Respondent received any benefit from the use of this account. [ 73 ] I therefore order that the Respondent pay to the Applicant within 60 days of the release of this decision, the sum of $6,011.07, calculated as follows: PC FINANCIAL MASTER CARD $ 1,633.00 ROYAL BANK VISA 10,107.00 BANK CHARGES ON JOINT ACCOUNT ($20.00 X 3 months) 60.00 SUBTOTAL $ 11,800.00 DIVIDED EQUALLY $ 5,900.00 CHARGES BY THE RESPONDENT (to the joint chequing account in August 2015) $ 111.07 TOTAL $ 6,011.07 [ 74 ] I find the Applicant should be compensated for the purchases made by the Respondent on the joint account after he stopped contributing to that account but I was not given a sufficient explanation for why the joint account had to stay active for six months in order for the Applicant’s bills to be moved to her sole account.

I believe three months would have been enough time. Child Maintenance [ 75 ] According to the Respondent’s Statement of Income his annual gross income is $44,819.04. He did not supply a copy of his 2015 tax return but his pay stub information would suggest that figure is more or less accurate. The Applicant accepted that figure for child maintenance purposes.

Based on that amount I order the Respondent to pay to the Applicant the table amount of child maintenance in the sum of $376.00 per month effective the 1 st day of July, 2016 and continuing on the 1 st day of each month thereafter until otherwise ordered. [ 76 ] The Respondent did not claim undue hardship but a comparison of his financial circumstances to that of the Applicant would indicate that he would not have been successful with such a claim.

While the Applicant may have more assets than the Respondent, she has debts corresponding to those assets and her financial picture is certainly no better than that of the Respondent. [ 77 ] In addition to the table amount the Respondent will pay to the Applicant, pursuant to

section 7 of the Child Maintenance Guidelines , his proportionate share of their son’s childcare expenses which are necessary to permit the Applicant to attend work. [ 78 ] I calculate the Applicant’s income for child maintenance purposes to be $83,096.00. Therefore the Respondent’s proportionate share of their son’s daycare costs comes to 35%. The daycare costs are $295.00 per month.

After taking into account tax savings to the Applicant, the Respondent’s proportionate share of that expense comes to $61.00 per month. [ 79 ] The Applicant also asked that the Respondent be required to share with her the cost of their son’s Boy Scout registration fees which came to $38.00 per month. While Boy Scouts is an extracurricular activity, I do not consider the cost to be an extraordinary expense. I therefore decline that claim.

In total, the Respondent will pay to the Applicant child maintenance of $437.00 per month commencing July 1, 2016. [ 80 ] The parties agreed to include a provision in the order requiring both parties to maintain a life insurance policy on their lives in the minimum sum of $25,000.00 naming their son as the beneficiary of that policy until he has attained the age of 19. Each will name the other parent as the trustee for their son under their policy until he is 19.

COSTS [ 81 ] Should either party wish to have the opportunity to address the issue of costs they are to contact my office in writing within 30 days of the release date of this decision so that a date for submissions can be scheduled. [ 82 ] I direct that counsel for the Applicant prepare the order containing the operative provisions of this decision. Dellapinna, J.