Vipond v. Parker, 2020 NSSC 176

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Vipond v. Parker , 2020 NSSC 176 Date: 20200605 Docket: SFHPSA 109104 Registry: Halifax Between: Deirdre Jane Vipond (Milne) Applicant and Dwight Donald Parker Respondent LIBRARY HEADING Judge: Associate Chief Justice Lawrence I. O’Neil Heard: April 1, 2, September 23 and December 5, 2019

Summary: The parties lived as a common law couple for more than ten (10) years. They purchased a home and registered the home in both names. Each party now seeks an unequal division of the equity realized following sale of the home in August 2019. Key words: Partition; joint ownership; unjust enrichment Legislation: Parenting and Support Act , R.S.N.S. 1989, c. 160 Partition Act , R.S.N.S. 1989, c 333 Cases: Richardson v. Underwood , 2018 NSSC 258 THIS INFORMATION SHEET DOESN’T FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . IN THE SUPREME COURT OF NOVA SCOTIA Citation: Vipond v. Parker , 2020 NSSC 176 Date: 20200605

Docket: SFHPSA-109104 Registry: Halifax Between: Deirdre Jane Vipond (Milne) Applicant and Dwight Donald Parker Respondent Judge: Associate Chief Justice Lawrence I. O’Neil Heard: April 1, 2, September 23 and December 5, 2019 Counsel: Owen Bland, Counsel for Deirdre Vipond (Milne) Dwight Parker, Self-Represented By the Court : Introduction/Overview [ 1 ] Justice Beaton heard evidence in a final hearing in this matter on April 1 and 2, 2019. She was unable to complete the trial.

As provided by R. 82.19, I heard the remainder of the evidence on September 23, 2019 and summations on December 5, 2019. [ 2 ] The parties are a former common law couple who did not marry each other at any point. They were in a relationship for approximately twelve years, separating in 2015, although Ms. Vipond says they lived separate and apart beginning in 2013. They purchased a house together in 2003. The home was registered in the names of both parties as joint tenants. This litigation concerns the entitlement of each to the equity in that home. [ 3 ] In his Affidavit filed May 28, 2018 Mr.

Parker says the parties were in a relationship for approximately 17 years and they resided together until November 1, 2015 and in the subject home for 12 years. [ 4 ] Ms. Vipond (Milne) filed a Notice of Application on March 7, 2018 and sought exclusive occupation of the parties’ former residence as provided by sec. 7 of the Parenting and Support Act, R.S.N.S. 1989, c. 160 and an order for sale of the same property as provided by sections 4 and 5 of the Partition Act , R.S.N.S. 1989, c.333 . [ 5 ] Those issues are no longer before me.

The property in question sold in August 2019 and the net proceeds of that sale are now being held in trust pending a claim by each party for an unequal division of the proceeds from the sale.

[ 6 ] Each bases their claim on an alleged unjust enrichment of the other should the proceeds be equally divided. Mr. Parker claims Ms. Vipond is not entitled to any of the proceeds because he says he was required to meet many expenses associated with the home and for which Ms. Vipond was solely or jointly liable. He says they had agreed on a sharing of expenses when she vacated. He seeks reimbursement for these expenses. [ 7 ] Ms. Vipond claims she was required to pay household accounts both before and after she vacated in 2015 and Mr. Parker remained in the home.

These were payments on the mortgage account; the Nova Scotia Power account and the home insurance account. [ 8 ] Ms. Vipond says Mr. Parker remained in the home after she left the home on October 31, 2015. She says beginning in 2014, Mr. Parker continuously frustrated the sale of the home. She says his obstruction of opportunities to sell the home increased the costs of carrying the home and she should not be held responsible for those additional costs. He says he did not unreasonably withhold his consent for the sale of the home.

Litigation History [ 9 ] At the conclusion of an Interim Hearing held on June 5, 2018 the parties agreed to an Interim Consent Order which required Mr. Parker to be responsible for the payment of the mortgage, the upkeep and maintenance of the home and to cooperate with efforts to sell the home. He was also directed to notify Ms. Vipond if he planned to vacate the home and she would then have the opportunity to exclusively occupy the home. [ 10 ] The order provided as follows: 1.

The Respondent, Dwight Donald Parker, will continue to reside in the property (the “Home”) at 117 Gourok Avenue, Dartmouth, Nova Scotia, PID#00185249. 2. The Respondent is responsible for paying the mortgage for the Home for so long as he resides in the Home and until the matter is brought for final determination. 3. The Respondent is responsible for maintaining the arrears on the Home’s mortgage and will do what is necessary to prevent the Home from entering foreclosure proceedings. 4.

The Respondent is responsible for upkeep and the maintenance of the Home, including any power, water, or other bills incurred for so long as he resides in the Home. 5. The Respondent will co-operate with the Applicant with regards to all attempts to sell the Home. 6. If the Respondent fails to comply with the terms of this Order, the Applicant will give the Respondent seven (7) days’ notice to vacate, at which time the Applicant will take exclusive possession of the Home. Issues [ 11 ] Are the parties entitled to an equal sharing of the proceeds from the sale of the home? If not, what share is each entitled to?

Are there outstanding related liabilities each party may have to the other which have the effect of reducing the quantum of funds each will receive? Position of the Parties

[ 12 ] The parties agree that, absent liabilities of one to the other, they should equally share the equity in the home given their status as registered joint owners of the property. [ 13 ] In the case of Ms. Vipond, she says after vacating the property she continued to pay mortgage costs, property insurance and the electric bill and Mr. Parker received the benefit of her having done so because he continued to live in the home. As noted above by order dated June 5, 2018, Mr. Parker must bear responsibility for these costs after June 5, 2018.

The disagreement of the parties as to payment of these expenses relates to the period prior to June 5, 2018. [ 14 ] Ms. Vipond also argues she contributed more than her share to the costs of renovations to the home while they were together. [ 15 ] She says Mr. Parker’s uncooperative attitude has resulted in the home not selling for approximately five years. It was listed in 2014 and sold in 2019. [ 16 ] She says of the $58,194.78 held in trust following the sale of the home she should receive $17,664.63 more than Mr. Parker or $46,762.02. Mr. Parker would then receive $11,432.76 as a consequence. [ 17 ] Ms.

Vipond says $17,664.63 should be deducted from Mr. Parker’s one-half share. She arrives at this amount as a deduction by adding insurance costs of $3,254.38; mortgage costs of $9,886.88; electricity costs of $3,523.37 and the cost of a pool liner replacement of $1,000.00. [ 18 ] In her February 19, 2019 Affidavit (Exhibit 1, tab 2) she defines some of her claim under these headings. [ 19 ] In response, Mr. Parker, in his pre-trial brief, filed March 25, 2019 says he and Ms. Vipond made an agreement concerning the mortgage, property taxes, insurance and household expenses.

He says he has honoured the agreement, but Ms. Vipond has not paid as agreed and she therefore should not receive any share of the proceeds from the sale of the home. [ 20 ] He says she failed to cover the cost of certain home repairs. He says she hired inexperienced people to work on the property and this resulted in depreciation of the value of the home by $10,000.00. [ 21 ] He says while the parties were together, Ms. Vipond regularly directed funds from their mortgage account to her personal use to his detriment.

He says she also increased their line of credit without his knowledge. [ 22 ] He says he gave her funds in 2015 to pay the electric bill when she vacated in 2015 but she failed to do so. [ 23 ] Finally, Mr. Parker says he purchased the home using his own funds for the entire down payment of $13,500.00. Evidence [ 24 ] The Court considered the Affidavit and oral evidence of the parties. The Court also considered the Affidavit and oral evidence of Christine Pinsent, a real estate agent and Mauritius Parker, the mother of Mr. Parker. Christine Pinsent [ 25 ] Ms.

Pinsent testified that she believed the subject home was first priced above the market value at the direction of Mr. Parker and, for this reason, it would not sell. She says she initially listed the property on May 6, 2016 at $234,900.00. In January 2017 the price was reduced to $219,000.00 although she had recommended a listing price of $199,900.00 to $209,000.00.

[26] She said Mr. Parker set time parameters for showings that were an obstacle to showings and the sale of the property. [27] She said the parties received an offer of $209,000.00 in May 2017 but because Mr. Parker would not close before August 21,2017 and only at a price of $214,900.00, the sale was lost. Mauritius Parker (Exhibit 6) [28] Mauritius Parker is the mother of the Respondent, Dwight Parker. She gave evidence of what she was told or learned of themortgage account pertaining to the subject property. She said the account was in arrears in March 2013. Much of her Affidavit evidencewas struck. [29] Ms.

Parker gave evidence that her son took very good care of the subject property. Conclusion [30] The Court had recent occasion to review the law of unjust enrichment and to consider the intersection of this area of commonlaw with the provisions of the Partition Act. I therefore remind myself of the discussion of the relevant law in Richardson v.Underwood, 2018 NSSC 258 at para. 27: [27] In a recent decision, Moore v.

Sweet, 2018 SCC 52, the Supreme Court restated the elements of a cause of action in unjustenrichment: [41] The first two elements of the cause of action in unjust enrichment require an enrichment of the defendant and a correspondingdeprivation of the plaintiff. These two elements are closely related; a straightforward economic approach is taken to both of them, withmoral and policy considerations instead coming into play at the juristic reason stage of the analysis (Kerr, at para. 37; Garland, at para.31).

To establish that the defendant was enriched and the plaintiff correspondingly deprived, it must be shown that something of value— a “tangible benefit” — passed from the latter to the former (Kerr, at para. 38; Garland, at para. 31; Peel, at p. 790; Pacific NationalInvestments Ltd. v. Victoria (City), 2004 SCC 75 , [2004] 3 S.C.R. 575, at para. 15).

This Court has described the enrichmentand detriment elements as being “the same thing from different perspectives” (Professional Institute of the Public Service of Canada v.Canada (Attorney General), 2012 SCC 71 , [2012] 3 S.C.R. 660 (“PIPSC”), at para. 151) and thus as being “essentially twosides of the same coin” (Peter, at p. 1012). . . . . . [43] In addition to an enrichment of the defendant, a plaintiff asserting an unjust enrichment claim must also establish that he or shesuffered a corresponding deprivation.

According to Professor McInnes, this element serves the purpose of identifying the plaintiff as theperson with standing to seek restitution against an unjustly enriched defendant (M. McInnes, The Canadian Law of Unjust Enrichmentand Restitution (2014), at p. 149; see also Peel, at pp. 789-90, and Kleinwort Benson Ltd. v. Birmingham City Council, [1997] Q.B. 380(C.A.), at pp. 393 and 400). Even if a defendant’s retention of a benefit can be said to be unjust, a plaintiff has no right to recover againstthat defendant if he or she suffered no loss at all, or suffered a loss wholly unrelated to the defendant’s gain.

Instead, the plaintiff mustdemonstrate that the loss he or she incurred corresponds to the defendant’s gain, in the sense that there is some causal connectionbetween the two (Pettkus, at p. 852). Put simply, the transaction that enriched the defendant must also have caused the plaintiff’simpoverishment, such that the defendant can be said to have been enriched at the plaintiff’s expense (P. D. Maddaugh and J. D.McCamus, The Law of Restitution (loose-leaf ed.), at p. 3-24).

While the nature of the correspondence between such gain and loss mayvary from case to case, this correspondence is what grounds the plaintiff’s entitlement to restitution as against an unjustly enricheddefendant. Professor McInnes explains that “the Canadian conception of a ‘corresponding deprivation’ rightly emphasizes the crucialconnection between the defendant’s gain and the plaintiff’s loss” (The Canadian Law of Unjust Enrichment and Restitution, at p. 149). [31] I am satisfied Mr. Parker contributed more of the down payment to purchase the home than did Ms.

Vipond, although Ms.Vipond disagrees as to what the difference in their contributions was.

[ 32 ] I am also satisfied that before and after separation the parties from time to time contributed more to meet a household expense than was each’s typical share. This pattern reflected the ebb and flow of their relationship and their varying ability to meet a household expense. There was no enrichment to either party as that concept is applied in the area of unjustment law.

Their decisions on financial matters reflected that each benefited as a result of their flexibility. [ 33 ] Each offered evidence of expenses the other paid prior to and after their separation and now seeks a contribution from the other to some of these expenses. I am not prepared to engage in that accounting. [ 34 ] To do so is to invite the Court to retrospectively determine the financial intimacies of their relationship. That is not possible given the evidence.

I am satisfied their decisions as to the payment of expenses including the down payment on the home reflected an agreement that their financial arrangements from time to time were equitable. I am satisfied this was indeed the case. [ 35 ] Mr. Parker says his relationship with Ms. Vipond deteriorated after he came to believe she was engaging in deceptive financial practices involving their household finances.

He says this belief first developed in 2011 (exhibit 5). [ 36 ] The evidence does not establish on a balance of probabilities that either party was deceptive in how they managed the household financial resources. [ 37 ] Following their separation in late 2015, Ms. Vipond says she suffered financial losses because Mr. Parker was uncooperative and frustrated the sale of their home and this in turn forced her to bear ongoing costs of the home, although she did not live in the home. Mr. Parker argues Ms. Vipond had agreed to pay a greater share of the expenses than he paid and failed to do so. [ 38 ] Mr.

Parker did insist on listing the home at a price in excess of that recommended by the real estate agent. It is a statement of the obvious that a lower price would make the home more marketable. [ 39 ] However, Mr. Parker offered a rationale for his position. He explained why he felt a higher listing price was believed by him to be appropriate (exhibit 5). He was influenced by the sale of a nearby home at a higher price.

His disagreement with the listing price proposed by the real estate agent did not amount to obstruction of the selling process. [ 40 ] He had an interest in not selling the home given he would need to move when the house sold. However, I am not satisfied this factor caused him to be less cooperative than he should have been. [ 41 ] Ms. Vipond acknowledges she agreed to assume certain household expenses after leaving the home in the fall of 2015. She understood that to be an obligation on her part and also knew Mr.

Parker would have great difficulty meeting all of the household expenses if left to do so without her contribution. [ 42 ] I conclude Ms. Vipond did not foresee herself as being subject to this obligation for a lengthy period of time, certainly not until June 2018 when a consent order issued imposing the obligation on Mr. Parker to meet all of these expenses. Her willingness to cover certain expenses post separation was not in the nature of a contractual obligation. It was evidence of her willingness to work with Mr. Parker so the home would not be foreclosed upon.

These parties had limited resources at the time, and it was in their mutual interest to share expenses related to the home pending a sale of the home. [ 43 ] The Court has sympathy for Ms. Vipond but is not prepared to order reimbursement to her for expenses she paid after separation. It declines to do so because the evidence does not satisfy the Court on a balance of probabilities what amount was paid nor does the evidence satisfy the Court that Ms. Vipond’s contribution to the payment of these expenses was viewed by her as inequitable at the time.

Again, the Court is not in a position to retrospectively evaluate the parties’ decision making and behavior. It is not possible given the conflicting evidence. [ 44 ] Mr. Parker filed evidence that post separation, he regularly paid Ms. Vipond funds to apply to the NSPC account pertaining to

the home he was then occupying solely (exhibit 5) and that he regularly paid the mortgage prior to being subject to the interim order herein. [ 45 ] As referenced supra in summation, counsel for Ms. Vipond (exhibit 8 – identification only) claimed she is owed $17,664.63 by Mr. Parker. She calculates that amount on the basis that she made the following payments that were in fact obligations of Mr. Parker: House insurance $ 3,254.38 Mortgage payments $ 9,886.88 NSPC $ 3,523.37 Pool liner replacement $ 1,000.00 $17,664.63 [ 46 ] She wants $17,664.63 paid to her from Mr.

Parker’s one-half share of the equity from the home, i.e. $29,097.39. This would result in her receiving $46,762.02 and Mr. Parker receiving $11,432.76. [ 47 ] Mr. Parker on the other hand initially claimed Ms. Vipond owed him $36,252.77 for damages to the home and losses to him for her alleged failure to meet her pre and post-separation financial obligations to him (exhibit 5 at paragraph 152). [ 48 ] A detailed claim for this amount appears as exhibit DD to the affidavit of Mr.

Parker, being exhibit 5. [ 49 ] He also wanted her to release her interest in the home to him. [ 50 ] As stated, the home sold in August 2019 and $58,194.78, being the net proceeds from the sale, are held in trust by a law firm. [ 51 ] I do not find either party was unjustly enriched by the circumstances. For more than ten (10) years following the home purchase in 2003, they were in an intimate relationship and shared the household expenses. Presumptively, each paid certain expenses. However, if one party was unable to meet an expense, the other would contribute.

This was the ebb and flow of their relationship and a common sensical response to financial pressures each faced. I am not satisfied the parties kept a running record of what each owed the other. They accepted each was doing their best. [ 52 ] With the initiation of separation starting with the listing of the home in 2014, the same rationale is not available. [ 53 ] Nevertheless, I am satisfied each accepted a responsibility to meet household expenses given their shared interest in selling the home. These they did for their own reasons.

Each did so because of their belief it was in their interest to do so. [ 54 ] In all the circumstances therefore, the Court concludes there is not unjust enrichment of either party and the proceeds from the home should be equally divided. ACJ