Nolt-Leverton v Leverton, 2023 ABKB 318

Court of King’s Bench of Alberta Citation: Nolt-Leverton v Leverton, 2023 ABKB 318 Date: 20230529 Docket: 4803 182059 Registry: Edmonton Between: Karen Ellen Nolt-Leverton Plaintiff - and - Peter Leverton Defendant _______________________________________________________ Reasons for Judgment of the Honourable Justice W.N. Renke _______________________________________________________ [ 1 ] This matter came before me as a

Summary Trial by Order of Justice Kendell. [ 2 ] The ultimate issue concerns the entitlement of each of the parties to the net proceeds of sale of the matrimonial home. No other matrimonial property matters were at issue in these proceedings. [ 3 ] The Defendant (Peter Leverton) contended that the Plaintiff (Karen Nolt-Leverton) was entitled to none of the proceeds of sale. All remaining sale proceeds should be “turned over” to Tracey Yuill, the Defendant’s former partner. Ms. Yuill was not a party to these proceedings.

[ 4 ] The Plaintiff contended that the Defendant was entitled to none of the proceeds of sale. Alternatively, she sought equal division of the proceeds. [ 5 ] The descriptions of the ultimate issue and the governing law are straightforward.

Resolution of this issue is complicated by the history of the parties and the property. [ 6 ] I’ll consider the governing law and the parties and the property (including determinations of some preliminary factual issues) before providing my assessment of the parties’ competing claims to the net proceeds of sale. [ 7 ] In the following, I’ll refer to the following filed materials: • Affidavit of the Defendant, April 20, 2022 (D-April22 Affidavit) • Affidavit of the Defendant, September 29, 2017 (D-Sept17 Affidavit) • Affidavit of the Defendant, January 31, 2019 (D-Jan19 Affidavit) • Cross-Examination of the Defendant on Affidavit, August 29, 2022 (DXA) • Cross-Examination of the Plaintiff on Affidavit, November 23, 2022 (PXA) • Affidavit of the Plaintiff, November 14, 2017 (P-Nov17 Affidavit) • Affidavit of the Plaintiff, March 18, 2019 (P-March19 Affidavit) • Affidavit of the Plaintiff, October 31, 2022 (P-Oct22 Affidavit) • Affidavit of Tracey Yuill, April 20, 2022 (TY Affidavit) • Cross-Examination of Tracey Yuill on Affidavit, August 29, 2022 (TYX) • Plaintiff’s Book of Cross-Examinations on Affidavit and Undertaking Responses (Plaintiff’s Materials, cited to bates number).

Table of Contents I. Governing Law .. 4 A. Statute . 4 B. Time of Valuation and Division . 4 C. Presumption of Equal Division . 4 D. Division of Post-Separation Debt 5 E. Recognition of Ms. Yuill’s Claim (if any) 5 II. The Parties and the Property . 6 A. Noncontroversial Facts . 6 1. The Plaintiff, the Defendant, and Tracey Yuill 6 2. Matrimonial Debt at the Date of Separation . 6 3. The Buffalo Lakes and Morgan’s Mountain Properties . 7 4. Mortgages, Registrations, and Events respecting the Acreage . 8 B. Preliminary Issues Concerning the Parties and the Property . 13 1. Ms.

Yuill’s Claim and the Promissory Notes . 13 2. The Defendant’s Credibility . 14 3. Absent Evidence . 15 4. Adverse Inferences from Failure to Comply with Undertakings . 15 5. Value of the Acreage in 2011 . 15 6. August 2014 Transfer by the Plaintiff to the Defendant 16 7. Compensation for Sweat Equity . 19 III. Assessment 19

A. The Mortgages and the Parties’ Positions respecting the Acreage Proceeds . 19 1. The Aaron Acceptance Mortgage . 19 2. Coxson Mortgage . 20 3. CMI Mortgage . 20 4. Coxson Mortgage Payments . 20 B. The Defendant’s Payment of Non-Mortgage Debt 22 1. Matrimonial Debt at the Date of Separation . 22 2. The RBC Writ 23 3. Credit to the Defendant for Payment of Matrimonial Debt 24 4. Payment of Personal Debts . 24 5. Net Credit to the Defendant for Payment of Matrimonial Debt 25 C. Financing Renovations . 25 1. 2010 to August 2014 . 25 2. September 2014 – April 29, 2017 . 26 3. April 30, 2017 to November 2021 . 27 D.

Conclusion . 29 IV. Desk Divorce . 30 V. Costs . 30 I. Governing Law A. Statute [ 8 ] Pursuant to ss. 39(2) and (4) of the Family Property Act , the Matrimonial Property Act applies to the parties’ dispute. The distribution of the sale proceeds is governed by ss. 7 and 8 of the Matrimonial Property Act . [ 9 ]

Section 7 provides that 7(1) The Court may, in accordance with this section, make a distribution between the spouses of all the property owned by both spouses and by each of them ....

(4) If the property being distributed is property acquired by a spouse during the marriage and is not property referred to in subsections (2) and (3), the Court shall distribute that property equally between the spouses unless it appears to the Court that it would not be just and equitable to do so, taking into consideration the matters in

section 8 . [emphasis added] [ 10 ]

Section 8 provides that 8 The matters to be taken into consideration in making a distribution under

section 7 are the following: ... (

c) the contribution, whether financial or in some other form, made directly or indirectly by or on behalf of a spouse to the acquisition, conservation or improvement of the property; ... (

f) whether the property was acquired when the spouses were living separate and apart; .... (

m) any fact or circumstance that is relevant. B. Time of Valuation and Division [ 11 ] Absent agreement between the parties, matrimonial property is divided as of the date of trial: Stuve v Stuve , 2019 ABCA 142 at para 10 . C. Presumption of Equal Division

[12] In MAK v TJK, 2020 ABCA 196, the Court of Appeal confirmed the importance of the presumption of equal division whenapplying the s. 8 factors, writing as follows at paras 42 and 43: [42] In Jensen v. Jensen, 2009 ABCA 272, [2009] AJ No 878, this Court reiterated that Mazurenko v Mazurenko, 1981 ABCA 104,application for leave to appeal to the Supreme Court of Canada dismissed [1981] SCCA No. 108, remained the law in Alberta. It stated,at para. 19: 19. The court must, in my view, look at the relevant facts under s. 8 and then ask itself if it would be unjust or inequitable to divide theproperty equally.

That conclusion would not be lightly reached. There must be some real imbalance in the contribution having regard towhat was expected of each or attributable to the other factors in s. 8. In establishing the presumption I take the Legislature to havedecided that in ordinary cases equality is the rule .... The legislation introduces a discretionary system with the presumption of equalsharing, which is similar to a deferred sharing scheme with a power of adjustment.

The important point is that both of these schemesrecognize “... the principle that a husband and wife carry on their married life, including their economic functions, for their mutualbenefit and account and according to arrangements accepted by both for that purpose.

That principle, if accepted, requires that the lawprovide in some way for the sharing of their economic gains between the husband and wife”. (p. 26) That is done by the legislation anddone with the presumption of equality: (emphasis added). [43] The Court went on to state, at para 20, “[t]he presumption of equal distribution is the rule and unequal distribution theexception”.

It cited LeBlanc v LeBlanc, (SCC), [1988] 1 SCR 217 for the proposition that the presumption of equality isnot to be disturbed lightly and reiterated that, “[t]he MPA is premised on a presumption of equal distribution of non-exempt propertyacquired during the marriage. The presumption should only be rebutted in the clearest of cases when, having regard to the s. 8 factors, itwould be unjust and inequitable to make an equal division”: Jensen at para 23.

See Stuve v Stuve at paras 11, 13. [13] A party contending for unequal division of matrimonial assets bears the burden of rebutting the presumption of equaldivision. D. Division of Post-Separation Debt [14] The Court of Appeal addressed post-separation debt at para 34 of Stuve: [34] .... The onus is on the party incurring debt after separation to demonstrate that the debt was used for the benefit of the family unitand not solely for the debtor’s own purposes.

If that cannot be established, s 8 of the MPA permits unequal distribution of the debt,including sole responsibility for the debt falling to the party that incurred it: Busenius v Busenius, 2006 ABQB 162 at paras 2, 27, 29;Esquirol v Esquirol, 2018 ABQB 487 at para 39. [15] The absence of evidence of use for both spouses of post-separation debt entails that the debt will be characterized as being thesole responsibility of the party who incurred the debt: Stuve at para 35. E. Recognition of Ms. Yuill’s Claim (if any) [16] Because Ms.

Yuill is not a party to these proceedings, she would not be entitled to a judgment or order such as a judgment thatshe is entitled to all or part of the sale proceeds based on (e.g.) the doctrine of unjust enrichment. [17] However, were I to find that Ms. Yuill enhanced or preserved the value of the matrimonial property and were I to find that itwould not be just and equitable for the Plaintiff to take her share of the proceeds of the property without recognizing Ms.

Yuill’scontributions (in light of ss. 8(c), (f), and (m)) I could reduce the quantum of the Plaintiff’s entitlement to those proceeds (if any)accordingly. II. The Parties and the Property A. Noncontroversial Facts [18] There was no agreed statement of facts, but I consider the facts that follow not to have been controversial and to have beenestablished on a balance of probabilities. Some of the facts have features that are controversial. I will return to those issues below. 1. The Plaintiff, the Defendant, and Tracey Yuill [19] The Plaintiff and Defendant were married in 1998 and separated in July 2010.

They are not yet divorced. [20] In 2009, prior to separation, the Defendant suffered a work-place injury. Counsel mentioned that he was 80% disabled. Hereceived Workers’ Compensation payments for an extended period. I accept that he did not have significant disposable income. He couldnot have financed renovations to the matrimonial home from his income. [21] Not long after the parties’ separation, in about September 2010, Tracey Yuill began cohabiting with the Defendant: DXA68.14-16; TYX 9.21. 2. Matrimonial Debt at the Date of Separation

[ 22 ] The Defendant provided a Statement of Assets and Liabilities at the time of separation: D-April22 Affidavit ex B, D-Sept17 Affidavit ex B; D-Jan19 Affidavit para 6; see DXA 10.7-21.

The matrimonial debts were as follows: • RBC Mortgage $252,000 • RBC Loan $49,000 • RBC Credit Line $30,000 • RBC Visa $12,700 • TD Visa $7,100 • Home Depot $1,650 • Sears $500 • Auto Loan $12,000 • Property Taxes $8,000 • Propane $1,000. [ 23 ] The $252,000 debt was for the mortgage of the Morgan’s Mountain property owned by the parties. [ 24 ] The debts totalled $121,950, not including the RBC mortgage: D-April22 Affidavit para 5. The TD Visa amount was negotiated down to $4,700: D-Sept17 ex G, reducing the total to $119,550. [ 25 ] I’ll return to the RBC debts below.

The Defendant provided documentary support for the TD Visa and Sears debts: D-Sept17 Affidavit ex’s F, G, H. [ 26 ] The Plaintiff agreed that it was fair to say that the Defendant “handled the debt,” that he was dealing with the joint debt: PXA 17.21-26, 21.25-27, 24.5. [ 27 ] The Plaintiff did not dispute the existence of these debts and I find that the indicated amounts were owing by the parties as matrimonial debt on the date of separation. Each party was responsible for 50% of these debts. I’ll return to the payment of these debts below. 3.

The Buffalo Lakes and Morgan’s Mountain Properties [ 28 ] At the time of separation, the Plaintiff and Defendant owned two properties in the County of Grande Prairie, the “Morgan’s Mountain” property and the “Buffalo Lakes” property that became the matrimonial home (the Acreage). [ 29 ] The Acreage was purchased in 2005. [ 30 ] The equity from the Morgan’s Mountain property had been used to purchase the Acreage: P-Nov17 Affidavit para 13. [ 31 ] The Plaintiff and Defendant were registered as holding these properties as joint tenants. (

a) Condition of the House on the Acreage at Separation [ 32 ] At the time of separation, the residence on the Acreage remained unfinished. The Defendant claimed that the residence was a “shell,” with no running water, no flushable toilet, only wood heat, and minimal interior walls. The Plaintiff provided a somewhat more salubrious description: PXA 5.19-6.8. She stated that they had running water and a toilet was set up.

The walls were “just the studs.” “Downstairs was all insulated and poly-ed.” She said that it was a shell when they bought it, but “it was in the process of being, like, worked on.” Nonetheless, the Plaintiff confirmed that (P-Nov17 Affidavit para 12) the building was under renovation and there was no heat except wood heat. There was no running water or flushable toilet and there were no walls in the entire house. The only privacy was a blanket nailed to the inside of my teen daughter’s room.

The Plaintiff stated that she, her daughter, and the Defendant “lived in a home that was in fact unliveable for many years:” para 19. [ 33 ] Ms. Yuill cohabited with the Defendant at the Acreage commencing shortly after the Plaintiff left. Ms. Yuill claimed that house on the Acreage was “barely liveable.” There was no running water and no walls within the main living area: TY Affidavit para 3; TYX 10.1-24. According to Ms. Yuill (TYX 15.24-16.24) the house was completely gutted. There was nothing in it. There was no flooring. There were no walls ... Knob and post electrical. There was no running water.

There wasn’t a furnace. There was nothing. This was a shell, so the majority of the work was not completed with the addition .... [the majority of the work was] done slowly over those six years. [ 34 ] Ms. Yuill stated that by 2016, a “good portion” of the renovations were done. (

b) Morgan’s Mountain Foreclosure

[ 35 ] Following separation, the parties defaulted on the Morgan’s Mountain mortgage. Foreclosure occurred in 2013. A Rice Order was granted to RBC on June 13, 2013 by Master Breitkreuz in action 1204 00705. The deficiency judgment was for $22,367.43 plus solicitor and own client, full indemnity costs: Plaintiff’s Materials 451. A writ of enforcement was filed at the Personal Property Registry. The deficiency judgment was assigned to CMHC on July 30, 2013. (

c) August 7, 2014 Transfer by the Plaintiff to the Defendant [ 36 ] On August 7, 2014, the Plaintiff transferred her joint interest in the Acreage to the Defendant: D-April22 Affidavit ex C; D- Sept17 Affidavit para 7. [ 37 ] The Plaintiff did not release her dower rights respecting the Acreage. [ 38 ] The Defendant’s Affidavit of Transferee stated that the current value of the land, in his opinion, was $180,000. (

d) Plaintiff’s Contribution to the Acreage Post-Separation [ 39 ] The Plaintiff did not do any work on the home or land or provide materials or put any money into the home after separation: PXA 9.25-10.3; PXA 24.9-11. (

e) Certificates of Lis Pendens [ 40 ] The Plaintiff registered a certificate of lis pendens against the Acreage on November 25, 2017. [ 41 ] Ms. Yuill registered a certificate of lis pendens against the Acreage on September 3, 2020. 4. Mortgages, Registrations, and Events respecting the Acreage [ 42 ] The Plaintiff consented to all mortgages on the Acreage, before August 7, 2014 as a joint tenant, after August 7, 2014 because she retained her dower rights. (

a) October 21, 2008 Mortgage [ 43 ] The certificate of title for the Acreage dated April 26, 2019 shows an RBC mortgage with the original principal amount of $50,000 registered on October 21, 2008 as number 082 460 895: P-Oct22 Affidavit ex N. [ 44 ] The Defendant explained that this was a construction loan for the home. The home had been built in the 1930s. Instead of bulldozing the existing structure, the parties chose to renovate. The Defendant claimed that $49,000 was still owing at the time of separation, as was shown in his statement of matrimonial debt: DXA 63.11-24. (

b) June 20, 2013 RBC Writ [ 45 ] The 2019 certificate of title shows an RBC writ with registration number 132 183 067 in the amount of $43,830 and costs, referencing the 1204 00705 action number. [ 46 ] This writ, though, does not concern the RBC deficiency judgment.

Rather, it concerns a default judgment granted to RBC respecting two principal amounts, $29,789.18 with interest pursuant to an RCL Agreement (a “Royal Credit Line” agreement, which I interpret to have been a “revolving line of credit” agreement) plus costs, and $12,856.18 with interest and costs respecting a VISA agreement: P-Oct22 Affidavit ex K; D-Sept17 Affidavit ex I. [ 47 ] The default judgments are against both parties. [ 48 ] The total amount for the two judgments was $45,852.62. [ 49 ] These two amounts are represented by the entries for the RBC Credit Line and RBC VISA in the Defendant’s statement of matrimonial debt. [ 50 ] The Defendant explained that the line of credit was also acquired for the purpose of funding renovations for the Acreage. [ 51 ] The Plaintiff stated that the VISA debts were all for the benefit of the parties.

The VISA was in her name only because “Peter had very bad credit, so all financial things were in my name to ... the most extent ...:” PXA 8.12-9.9. (

c) Late December 2014 Aaron Acceptance Corp Mortgage [ 52 ] In late 2014, the Defendant obtained another mortgage on the Acreage, through Aaron Acceptance Corp. It appears that Aaron Acceptance acted as broker. The registration on title, 152 040 107, February 4, 2015, showed 996317 Alberta Inc as mortgagee with an original principal amount of $83,000. [ 53 ] The Acreage was evaluated at $182,000 by Biegel & Perra Appraisals in an appraisal dated July 28, 2014 prepared for Aaron Acceptance: D-April22 Affidavit ex D; D-Sept17 Affidavit ex E.

This valuation amount was about the same land value as claimed for land titles purposes in connection with the Plaintiff’s transfer of her joint interest to the Defendant in 2014.

[ 54 ] The Aaron Acceptance statement of receipts and disbursements (P-Oct22 Affidavit ex

L) showed a funding date of December 31, 2014 and confirmed the principal amount of the mortgage as $83,000. In addition to off-the-top deductions, the statement confirmed payout of the “RBC mortgage” for $61,603.81 and $15,000 paid to Witten LLP for “judgment.” [ 55 ] The Defendant received no proceeds from this mortgage. With all the payouts and deductions he wound up owing an additional $1,423.65. [ 56 ] There was some uncertainty about the “RBC mortgage” that was paid out. The certificate of title established that this was the 2008 RBC mortgage.

The title reflects a discharge of registration number 082 460 895, the registration number for that mortgage. [ 57 ] The payment to Witten LLP related to the RBC writ registered against title. The certificate of title shows a postponement of writ 132 183 067 (the 2013 writ concerning the RBC default judgments) in favour of mortgage 152 040 107 (the Aaron Acceptance mortgage). I find that what occurred, then, was that RBC accepted a part-payment of $15,000 to postpone its writ so the Aaron Acceptance mortgage would have priority.

See also D-Jan19 Affidavit ex G (p. 31). [ 58 ] The $15,000 payment left about $31,874.89 owing to RBC on the default judgments as of January 9, 2015. (

d) Late 2015/Early 2016 William Gordon Coxson Mortgage [ 59 ] In late 2015, at or near the renewal date of the Aaron Acceptance mortgage, the Defendant granted a mortgage in favour of William Gordon Coxson (a private lender) in the principal amount of $109,003.05. The date of this mortgage appears to be on or about December 15, 2015. This mortgage was registered on January 20, 2016 as registration number 162 019 732. [ 60 ] No statement of disbursements was provided for the Coxson mortgage.

However, by inference from the 2019 certificate of title entries, I find that mortgage proceeds were used to • discharge the Aaron Acceptance mortgage, by registration number 162 039 147, and • postpone (once again) the RBC writ by registration numbers 162 039 107 and 162 039 147. [ 61 ] The amount owing on the Aaron Acceptance mortgage was not in evidence. [ 62 ] Given the Defendant’s debt-payment history, in my opinion, it was likely that about $83,000 was owing on the Aaron Acceptance mortgage, plus some interest.

That amount would have been paid out so that mortgage could be discharged. [ 63 ] RBC did not postpone its writ for free. As in the Aaron Acceptance case, it required a payment of $15,000: D-Jan19 Affidavit ex G (p. 31). [ 64 ] The Defendant had been making $250/month payments against the default judgments.

These payments plus the $15,000 left $14,196.31 owing to RBC on the default judgments as of January 20, 2016. [ 65 ] The net proceeds of the mortgage in the Defendant’s hands, then, would have been about $11,000. [ 66 ] The Defendant did not provide evidence about how those net proceeds of the mortgage were disbursed, that is, about what he spent that money on. (

e) April 2017 Fire [ 67 ] On April 30, 2017, the residence on the Acreage burned to the ground. (

i) Value Before and After the Fire [ 68 ] Biegel & Perra Appraisals performed an appraisal of the Acreage dated November 28, 2017, based on an inspection on April 30, 2017 and valuing the Acreage as of April 30, 2017. The appraisal was done for ClaimsPro Inc, the adjuster for the insurer. [ 69 ] The evaluation as a “complete unit” as of April 30, 2017 was $170,000. The estimated depreciated value of the building alone was $75,000. The estimated value of the land was $95,000: D-Jan19 Affidavit ex D. [ 70 ] AccuPro Real Estate Appraisal and Consulting did an appraisal of the lands for the Defendant and Ms.

Yuill dated November 19, 2018. This appraisal stated that the market value of the bare land was $45,000 and that about $55,000 would need to be spent on cleaning up debris before the property could be sold for $100,000: D-Jan19 Affidavit para 4 ex C. The land valuation, I note, is very close to the Biegel & Perra valuation. [ 71 ] Jen Student provided an opinion for the Plaintiff respecting listing prices for the land with its remaining improvements, including a barn.

The high listing price was $143,000, medium $137,000 and “aggressive” $130,000: P-March19 Affidavit ex F. (ii) Adjusting the Loss [ 72 ] A dispute with the insurer followed the fire. [ 73 ] The Defendant submitted a proof of loss that was rejected entirely: D-Jan19 Affidavit para 4 and ex A. [ 74 ] Later, the insurer provided a cheque for $75,000. That matched the building loss as valued by the Biegel & Perra appraisal.

[ 75 ] The Defendant’s account of this settlement varied. The Defendant stated in an affidavit that he accepted a settlement for “75K on or about October 11, 2018:” D-Jan19 Affidavit para 4.

A cheque for $75,000 was sent to the Defendant by the adjuster: D-Jan19 Affidavit ex B. [ 76 ] The Defendant claimed that there were debts secured against the property that “ate up” the settlement: D-Jan19 Affidavit para 5. [ 77 ] In cross-examination on affidavit, he said that the cheque was “never sent to me:” DXA 38.24. [ 78 ] I find that the cheque was sent but never cashed. [ 79 ] Eventually, the insurer paid $200,000 directly to a manufacturer who provided a modular home for the Acreage: PXA 28.2-8. [ 80 ] Except for $10,000 for living expenses, there was no evidence that the insurer paid out additional amounts respecting the fire loss. (iii) The Modular Home on the Acreage [ 81 ] Further improvements were required for the installation and completion of the modular home.

The Defendant and Ms. Yuill claimed that Ms. Yuill provided funding to complete construction, including carpentry, electrical, plumbing, and completion of the basement: D-April22 Affidavit para 8. [ 82 ] It appears that the work done in connection with the installation of the modular home was completed in 2021: D-April22 Affidavit para 10; TY Affidavit para 7. (

f) Paying Off the 2013 RBC Writ [ 83 ] As of October 12, 2018, $5,110.50 was left payable respecting the 2013 RBC writ for the default judgments: P-Oct22 Affidavit ex O. [ 84 ] The amount outstanding was paid by about November 30, 2018.

A satisfaction of judgment was filed on January 14, 2019, the writ of enforcement was withdrawn on November 29, 2018, and the writ registered with the Personal Property Registry was discharged on November 30, 2018: D-Sept17 Affidavit ex G. [ 85 ] In addition to the two $15,000 postponement payments, • in 2015, the Defendant made 12 payments of $250/month or $3,000 • in 2016, the Defendant made 12 payments of $500/month or $6,000 • in 2017, the Defendant made 11 payments of $500/month or $5,500 plus one payment (August 8) of $1,819 for a total of $7,319 • in 2018, the Defendant made one payment of $368 then paid off the outstanding balance of $5,110.50 for a total of $5,478.50.

The Defendant’s payments (not including postponement payments) totalled $21,429.50. See P-Jan19 Affidavit ex G (pp. 31-32). (

g) March 16, 2021 CMI High-Yield Opportunity Fund Corp Mortgage [ 86 ] On March 16, 2021, the Defendant granted a mortgage to CMI. The principal was $250,000, although $2,525 was pulled off the top as an “investor bonus” leaving mortgage proceeds before various deductions of $247,475. [ 87 ] The CMI mortgage paid off the Coxson mortgage ($133,924.35).

I note that there was some evidence that the Defendant had made at least three mortgage payments in September, November, and December 2017 of $903.82 each. [ 88 ] The CMI mortgage paid off the RBC deficiency judgment owing from the Morgan’s Mountain property ($14,646 to “CMHC judgment”). [ 89 ] The CMI mortgage also paid off the following debts: • Superior Propane ($1,700.68) • Enmax ($1,054.28) • County of Grande Prairie tax arrears ($4,734). [ 90 ] In addition, the CMI mortgage paid the following debts: • Carfinco ($6,500) • Easyfinancial ($7,044.51) • Gatestone & Co Contact Centres Inc ($10,600).

The nature and timing of these debts was not addressed in evidence.

[ 91 ] The CMI mortgage maintained a “construction holdback” of $25,000. [ 92 ] The net mortgage proceeds, after deduction of the foregoing and other deductions, was $25,171.65. (

h) November 2021 Sale of the Acreage [ 93 ] The Acreage was sold on November 19, 2021 for (according to the Transaction Listing and Statement of Adjustments) $479,172.38: P-Oct22 Affidavit ex R. [ 94 ] The CMI mortgage was paid out for $256,593.78. [ 95 ] Disbursements included • outstanding County of Grande Prairie taxes ($3,826.36) • required remedial construction work for property – South Peace Property Management ($17,265) • required remedial construction work for property – Smook’s Plumbing ($803.25). [ 96 ] The lawfirm Transaction Listing also has a payment to Smook’s Plumbing for $1,926.75.

This doesn’t appear on the Statement of Trust Receipts and Disbursements. The Smook’s Plumbing invoices were not billed to the Defendant but to a third party. The disbursements would have been reviewed by counsel so I accept that the Smook’s Plumbing invoices were for the correct property. The third party name does not match the name of the purchaser on the Transaction Listing and Statement of Trust Receipts and Disbursements. [ 97 ] The amount stated to be remaining in trust on the Transaction Listing is $186,220.61.

The “funds remaining in trust” set out in the Statement of Trust Receipts and Disbursement is $186,943.36, a difference of $722.75. B. Preliminary Issues Concerning the Parties and the Property 1. Ms. Yuill’s Claim and the Promissory Notes [ 98 ] The Defendant and Ms. Yuill tendered documents purporting to be Promissory Notes executed by the Defendant in favour of Ms. Yuill as evidence of his indebtedness to her, totalling $225,000. The Defendant claimed that he “executed a series of Promissory Notes starting in 2016:” D-April22 Affidavit para 9.

The Promissory Notes are ex F to the D-April22 Affidavit and ex A and B to the TY Affidavit. (

a) The Promissory Notes [ 99 ] The particulars of the Promissory Notes with the Defendant as Borrower and Ms. Yuill as Lender are as follows: • Promissory Note dated October 31, 2016, for $85,000 without interest, witnessed by John Schipper of Sexsmith, Alberta • Promissory Note dated May 10, 2018, for $48,500 without interest, witnessed by John Schipper of Sexsmith, Alberta • Promissory Note dated September 17, 2019, for $67,000 without interest, witnessed by Ryan Dorey of Beaumont, Alberta • Promissory Note dated July 1, 2020, for $25,000 without interest, witnessed by Ryan Dorey of Beaumont, Alberta. Mr.

Shipper was Ms. Yuill’s father. He passed away in 2020: TYX 35.23. Mr. Dorey was Ms. Yuill’s son-in-law. [ 100 ] Each of the Promissory Notes is a form that states on the foot of the last page “©2002-2020 LawDepot.ca®.” (

b) Evidential Value of the Promissory Notes [ 101 ] In my opinion, the promissory notes have no evidential value. [ 102 ] First, I find that all the notes were created in 2020, not just the July 1, 2020 note. The actual date of execution of the notes is evidenced by the dates of the copyright notice at the foot of each promissory note. A copyright notice sets out dates of creation so the period of copyright protection can be ascertained. A copyright notice would not set out a date in the future. None of the notes dated prior to 2020 were actually signed prior to 2020.

Only one of the four notes purports to be signed in 2020. That undermines the inference of accuracy of the dates of all the notes. [ 103 ] Second, both the Defendant and Ms. Yuill refused to undertake to provide contact information for Mr. Dorey: DXA 37.11-38.3; TYX 28.5-15. They were not willing to provide information to the Plaintiff that might have assisted in confirming or disconfirming the dates of execution of the notes. I am not drawing an adverse inference from the failure to provide the information.

The accuracy of the dates of execution of at least three of the notes, though, has been called into question. There is an absence of evidence that could corroborate the dates of execution of at least the two notes witnessed by Mr. Dorey. [ 104 ] Third, as between the Defendant and Ms. Yuill, the amounts stated in the notes might be binding. But the notes cannot corroborate amounts actually contributed by Ms. Yuill to the Acreage. The Defendant confirmed that he and Ms. Yuill kept no records of money she allegedly advanced: DXA 72.8-9. Ms. Yuill stated that “We didn’t keep receipts.

We didn’t keep records:” TYX 14.3-18. She

and the Defendant “discussed it” and the notes reflected “the number we came up with:” TYX 18.15-19.3. [ 105 ] Fourth, while the litigation between the parties has been ongoing since 2011, there was no mention of debt owing to Ms. Yuill until 2022: P-Oct22 Affidavit para 5. In the D-Jan19 Affidavit, the Defendant mentioned only that Ms. Yuill had contributed some rent for the Morgan’s Mountain property – “My current partner Tracey supplemented the rent so that I could keep paying the mortgage:” para 10. [ 106 ] I observe as well that on August 21, 2020, after the last dated promissory note, Ms.

Yuill filed a Statement of Claim against the Defendant based on the $225,000 owed under the Promissory Notes. No affidavit of service or certificate of lis pendens appears on the procedure card. Nonetheless, the Defendant acknowledged having received “the papers” from his counsel, who was also counsel for Ms. Yuill: DXA 51.24-25, 58.15-17. The certificate of lis pendens was registered against the Acreage title. While the Plaintiff was suspicious of the timing of filing of the Statement of Claim, I do not take the filing to be an independent reason for rejecting the evidential value of the Promissory Notes.

I do not take the timing of the filing, though, to support the accuracy of the dates of the notes. (

c) Consequence of the Rejection of the Evidential Value of the Promissory Notes [ 107 ] My rejection of the evidential value of the Promissory Notes supports adverse credibility inferences respecting both Ms. Yuill and the Defendant. [ 108 ] The rejection of the Promissory Notes supports the inference that Ms. Yuill was working with the Defendant to produce evidence purporting to favour the Defendant and her. I therefore will not accept her claims based on her assertions alone.

Before accepting her claims, I will look to see whether there is corroboration or support from other evidence, the absence of evidence, or common-sense probabilities. [ 109 ] I confirm that it may be, regardless of my findings concerning the notes, that the evidence supports determinations that Ms. Yuill made contributions towards the Acreage that could be argued to reduce any entitlement the Plaintiff has respecting the proceeds of sale. I will address the evidence of her contributions below. 2.

The Defendant’s Credibility [ 110 ] In my opinion, the Defendant’s credibility was impaired by several factors. [ 111 ] First, his credibility was impaired through his participation in the creation of the Promissory Notes, as I have found that those notes were not signed on the dates indicated. [ 112 ] Second, his credibility was impaired by the Proof of Loss he submitted after the fire: P-March19 Affidavit ex B. The claims in the Proof of Loss were made pursuant to a statutory declaration. The Defendant’s total claim was $714,950. He valued the building at $339,000 and contents at $271,200.

The amount claimed for the building was wildly in excess of the actual value of the home. The insurer ultimately paid out, on the evidence, about $200,000 for the modular home plus $10,000 for living expenses. [ 113 ] Third, the Defendant did not mention the fire in the D-Sept17 Affidavit. He did attest to the fire in the D-Jan19 Affidavit (para 4). [ 114 ] Fourth, as indicated, the Defendant’s claims about Ms. Yuill’s financial contributions did not surface until 2022.

He stated he was served with her Statement of Claim in 2020. [ 115 ] I therefore attach little weight to the Defendant’s evidence, particularly when it conflicts with the Plaintiff’s evidence. As concerning Ms. Yuill, I will not accept his claims based on his assertions alone. Before accepting his claims, I will look to see whether there is corroboration or support from other evidence, the absence of evidence, or common-sense probabilities. 3. Absent Evidence [ 116 ] The Defendant and Ms. Yuill stated that the fire destroyed documents relevant to matters at issue in this litigation. I accept that this is true.

That does not mean that I can or should infer that those documents would have harmed or supported the positions of the Defendant or Ms. Yuill. The lost documents are simply absent evidence. [ 117 ] The lack of evidence is relevant to the application of the burden of proof on the unequal distribution issue. 4. Adverse Inferences from Failure to Comply with Undertakings [ 118 ] The Plaintiff argued that the Defendant failed to answer undertakings or failed to answer undertakings properly or completely. An adverse inference might be drawn because of a failure to comply with undertakings.

See Dandeneau v Dandeneau , 2000 ABQB 959 , Nash J at paras 9-12; 656621 BC Ltd v David Moerman Painting Ltd , 2022 BCSC 1683 , Blake J at paras 185, 188. [ 119 ] I need not rely on adverse inferences. This case may be decided on the record, on the evidence and the absence of evidence, in light of the burdens of proof. To the extent that the Defendant and Ms. Yuill failed to comply with their undertakings, to that extent their claims lacked supporting evidence. 5.

Value of the Acreage in 2011 [ 120 ] The Defendant relied on a comparative market analysis dated April 4, 2011 setting the value of the Acreage at $129,900: D- April22 Affidavit ex A (the Brock Tokar Valuation).

[121] This valuation, as it is reproduced on the record, has numerous weaknesses. [122] It does not state for whom the valuation was prepared. It does not set out the description of the “subject property” (thedescription “Buffalo Lakes Property” is handwritten).

The printing at the top of the document appears to read “Morgan’s Mountain.” Idraw no inference from that observation, though, since the printing is not sufficiently legible. [123] The analysis states merely “[b]ased on comparable sales, active listings and homes that failed to sell, I think your listing pricefor your property should be $129,900.” [124] This is an opinion, as a valuation must be. However, no detail is provided respecting the “comparable sales, active listings, andhomes that failed to sell.” There is no supporting information.

There is no analysis or supporting documentation as is usually found inmarket valuations. There is merely the bare assertion that that the conclusion is “based on” the indicated matters, whatever those mightbe. Assessing the weight of the opinion is impossible. [125] Justice Binnie wrote in R v J-LJ, 2000 SCC 51 at para 59 that “[b]efore any weight at all can be given to an expert’s opinion,the facts upon which the opinion is based must be found to exist.” To the extent that the facts supporting an opinion have not beenestablished, to that extent the weight of the opinion is reduced.

Justice Wilson wrote in R v Lavallee, (SCC), [1990] 1SCR 852 at 896 that [i]n my view, as long as there is some admissible evidence to establish the foundation for the expert’s opinion, the trial judge cannotsubsequently instruct the jury to completely ignore the testimony. The judge must, of course, warn the jury that the more the expertrelies on facts not proved in evidence the less weight the jury may attribute to the opinion. [126] In this case, there is no admissible evidence establishing the foundation for the expert’s opinion.

I attach no weight to the BrockTokar Valuation. [127] I note that the Plaintiff had disputed the Brock Tokar Valuation. She claimed that “the land was almost worth that .... The landwas worth 120,000:” PXA 6.22-7.7. I attach no weight to this opinion. Like the Brock Tokar Valuation, the Plaintiff provided nofoundation for her opinion. In addition, there was no evidence that she had any expertise in land valuation. 6. August 2014 Transfer by the Plaintiff to the Defendant [128] What was the significance of the Plaintiff’s August 2014 transfer of her joint interest in the Acreage to the Defendant? (

a) The Defendant’s Evidence [129] The Defendant characterized this transfer as part of a settlement with the Plaintiff. She would transfer the Acreage to him and hewould pay off the matrimonial debt. The Defendant claimed that he and the Plaintiff “discussed the joint debt and because it was almostexactly equal to the value of the acreage, we agreed that I would keep the acreage as long as I paid all the debt:” D-April22 Affidavitpara 6; D-Sept17 Affidavit para 8.

The Defendant urged that the Plaintiff realized that leaving the Defendant with both the debt and theAcreage (by way of compensation) was a fair compromise. See also D-April22 Affidavit para 111. [130] The Defendant described the arrangement at some points as turning on him actually having paid the matrimonial debt, uponwhich the Plaintiff would transfer the Acreage. He said the following in his cross-examination: we had already talked about this. If I pay off the matrimonial debt, ... I would ... do my best to keep Morgan’s Mountain intact, but ...

Iwas unable to hang onto Morgan’s Mountain so the debt that we have now is all from the acreage ... at Buffalo Lakes. I paid off all thedebt, so she transferred the land over to me. (18.19-19.8) I convinced her to sign it over after I paid off all the marital debt. (65.1-3) The Defendant had not paid off the matrimonial debt by August 2014. [131] Ms. Yuill stated that a settlement agreement was drawn up and sent to the Plaintiff’s lawyer in 2011. Ms. Yuill said that theDefendant had signed the agreement and sent it to the Plaintiff’s lawyer for the Plaintiff’s signature: TYX 11.5-13.24.

This accountcould have been hearsay but Ms. Yuill was personally involved in the discussions, including discussions with the Plaintiff’s lawyer. (Thelawyer’s conduct led to him being discharged by the Plaintiff.) The Plaintiff did not sign this agreement. There was no claim that theDefendant received a signed copy of this agreement. [132] Ms. Yuill was aware that the Plaintiff remained on title until 2014. I find that she was also aware that the Plaintiff retained herdower rights after August 2014. In my opinion, if it was not clear earlier, by August 2014 it was clear that there was no settlementagreement. (

b) Plaintiff’s Account of the Agreement [133] The Plaintiff’s position was that she did not sign over her property interest in the Acreage “in lieu of debt.” Rather, shetransferred her interest only so the Defendant could get a mortgage in his name. She never intended to give up her right to the division ofmatrimonial property: P-Nov17 Affidavit para 16, P-March19 Affidavit para 13. [134] The Plaintiff stated that she wanted $30,000 in exchange for transferring her interest in the Acreage. The Defendant refused.“[H]is best offer was to include my daughter in his will.” See also P-Nov17 Affidavit para 14.

The Defendant claimed that he alsorefused to include the Plaintiff’s daughter in his will: DXA 65.8-14.

[ 135 ] The Plaintiff stated that she asked for a $30,000 property payment “[e]ach time this new mortgage was signed:” P-Nov17 Affidavit paras 5, 8, 19. She was never paid anything. (

c) Matrimonial Property Agreement [ 136 ] It is true that the parties could have entered into an agreement under s. 37(1) of the Matrimonial Property Act , removing the Acreage from the distribution regime under

Part 1 of the Act. I find that there was no such agreement. [ 137 ]

Section 37 of the Matrimonial Property Act provides as follows: 37(1)

Part 1 does not apply to property that is owned by either or both spouses or that may be acquired by either or both of them, if, in respect of that property, the spouses have entered into a subsisting written agreement with each other that is enforceable under

section 38 and that provides for the status, ownership and division of that property. [ 138 ]

Section 38 provides as follows: 38(1) An agreement referred to in

section 37 is enforceable if each spouse or each person, in the case of persons referred to in section 37(2), has acknowledged, in writing, apart from the other spouse or person (

a) that the spouse or person is aware of the nature and the effect of the agreement, (

b) that the spouse or person is aware of the possible future claims to property the spouse or person may have under this Act and that the spouse or person intends to give up these claims to the extent necessary to give effect to the agreement, and (

c) that the spouse or person is executing the agreement freely and voluntarily without any compulsion on the part of the other spouse or person.

(2) The acknowledgement referred to in subsection (1) shall be made before a lawyer other than the lawyer acting for the other spouse or person or before whom the acknowledgement is made by the other spouse or person. [ 139 ] No written and signed settlement agreement was in evidence. [ 140 ] The August 7 transfer did not provide for the status, ownership and division of the Acreage, besides being the transfer of a joint interest. The documentation did not indicate that the Acreage would cease to be matrimonial property.

The transfer did not, by implication, amount to a renunciation of the Plaintiff’s interests in the Acreage since her dower rights were preserved. Neither could it be inferred, through a sort of “part performance” argument, that the August 7 transfer was proof of a matrimonial property settlement as contemplated by the Act.

The transfer was only a transfer, in my view supportive on a balance of probabilities of the Plaintiff’s account rather than the Defendant’s account. [ 141 ] The August 7 transfer did not meet the requirements of ss. 38(1)(a)-(c). [ 142 ] The Defendant claimed that “[t]o confirm our agreement,” the Plaintiff met with a lawyer in 2014 and transferred the acreage to his name alone: D-April22 Affidavit para 6. The Defendant claimed that she had independent legal advice.

She “met with a lawyer:” D- April22 Affidavit para 11. [ 143 ] The transfer was signed before a lawyer, but this lawyer was a member of the firm representing the Defendant. The Plaintiff did not receive independent legal advice. The Plaintiff’s account of this aspect of the transaction was as follows (PXA 14.8-24): A .... the lawyer from your firm, who I went to sign this with – and I was upset, and he goes, ‘Well, you still have your dower rights’ .... Mr. Bird, worked at ... your firm, and I went there to sign it, and I was upset.

So he tried to tell me after – he said, ‘Well, you still have your dower rights, so everything is not lost.” Q Okay, So did you receive legal advice on this? A If that’s legal advice. [ 144 ] The Plaintiff’s implicit point was correct. This was not legal advice, let alone independent legal advice. (

d) Conclusions [ 145 ] On the evidence, the Plaintiff did not enter into an enforceable agreement to relinquish her matrimonial property rights respecting the Acreage. She maintained her matrimonial property rights in the Acreage. [ 146 ] This conclusion does not make the Plaintiff’s transfer inexplicable. Her explanation made sense. She transferred her interest so the Defendant could deal with mortgage companies. Her role was reduced to approving the financing by signing as the dower rights holder. She thereby received information about mortgages placed on the Acreage and held a veto. 7.

Compensation for Sweat Equity [ 147 ] The Defendant was involved in renovations of the house on the Acreage. However, he did not advance a claim (e.g. on a quantum meruit basis) for recognition of his labours in the distribution of the proceeds of sale of the Acreage. [ 148 ] The lack of claim for – in effect – recognition of the Defendant’s sweat equity was appropriate, on the record. The evidence did

not permit an assessment of the value of the Defendant’s contributions. He was receiving Workers’ Compensation payments so his ability to perform renovations may have been impaired. Some of his renovations ended up costing money. About $18,000 from the Acreage sales proceeds was dedicated to remedial work (see, in particular, the Smook’s Plumbing invoice descriptions). He had the benefit of occupying the house on the Acreage, which up to August 2014 was held jointly and thereafter remained matrimonial property.

Whether or not the Defendant stood in the place of a parent for the Plaintiff’s child was not an issue in these proceedings and this child did not reside with the Defendant after separation. The Defendant did not pay spousal support. As there was no sweat equity claim, there was no corresponding occupation rent claim against the Defendant. [ 149 ] In the absence of evidence, claims, and argument, I need not determine whether the Defendant’s renovation efforts might have warranted any deduction from any amount of the net proceeds of sale the Plaintiff might be entitled to.

See Kazmierczak v Kazmierczak , 2001 ABQB 610 , Slatter J, as he then was, paras 86-95. III. Assessment [ 150 ] The foregoing conclusions inform my assessment of entitlement to the proceeds of sale of the Acreage. The Defendant’s and Ms. Yuill’s claims must be approached with caution. Although I have rejected the Promissory Notes as evidence of Ms. Yuill’s contributions to the Acreage, the evidence may support the finding that she did make contributions that require recognition.

The Plaintiff remains married to the Defendant and she did not relinquish her matrimonial property rights respecting the Acreage. [ 151 ] I’ll consider the impacts and implications of the post-separation mortgages against the Acreage, the Defendant’s retirement of non-mortgage debts, then the evidence bearing on the financing of renovations to the home on the Acreage. A. The Mortgages and the Parties’ Positions respecting the Acreage Proceeds 1.

The Aaron Acceptance Mortgage [ 152 ] The Aaron Acceptance mortgage extracted part of the parties’ equity in the Acreage. [ 153 ] The Aaron Acceptance mortgage paid off the 2008 RBC mortgage, a joint debt of the parties. This mortgage also reduced the amount owing by the parties respecting the RBC default judgments by $15,000. [ 154 ] The Defendant received no net proceeds, no additional financial benefit from this mortgage. [ 155 ] I consider the Aaron Acceptance mortgage to be a joint debt of the parties. The Plaintiff consented to the mortgage. It was a means to pay off other debt.

Essentially, the mortgage substituted for the earlier debt. It did not so much eliminate debt as defer its payment. 2. Coxson Mortgage [ 156 ] The Coxson mortgage paid off the Aaron Acceptance mortgage. As the Aaron Acceptance mortgage was dedicated to paying matrimonial debt, so this feature of the Coxson mortgage was not a benefit solely for the Defendant but was a joint benefit. [ 157 ] The Coxson mortgage, I found, further reduced the amount owing by the parties respecting the RBC default judgments by $15,000.

Again, this was a reduction of joint debt. [ 158 ] And again, I consider the Coxson mortgage to be a joint debt of the parties. The Plaintiff consented to the mortgage. It too was a means to pay off other debt, substituted for that debt, and did not so much eliminate debt as defer its payment. [ 159 ] However, this left mortgage proceeds of about $11,000 unaccounted for by the Defendant. I’ll return to this amount below. 3. CMI Mortgage [ 160 ] The CMI mortgage paid off the Coxson mortgage.

Again, insofar as the Coxson mortgage itself paid off matrimonial debt, this was a mutual benefit to the parties. [ 161 ] The CMI mortgage also paid off the CMHC deficiency judgment. This paid off a joint debt. [ 162 ] And yet again, I consider the CMI mortgage to be a joint debt of the parties. The Plaintiff consented to the mortgage. Like the other mortgages, it was a means to pay off other debt, substituted for that debt, and did not so much eliminate debt as defer its payment. [ 163 ] The CMI mortgage paid off some additional debts, including municipal taxes, propane, and further debts.

I’ll return to these below. 4. Coxson Mortgage Payments [ 164 ] There was evidence that Defendant or Ms. Yuill made payments towards the Coxson mortgage. (

a) Defendant Payments [ 165 ] There was some evidence that the Defendant made three payments towards the Coxson mortgage of $903 each or $2,705, in

September, November, and December 2017: Plaintiff’s Materials 468. [ 166 ] This was payment toward a joint debt, so the Defendant should have a credit of 50% of the total amount paid, or $1,354.50. (

b) Ms. Yuill’s Payments [ 167 ] The Defendant received a demand letter from Hendrix Law when the Coxson mortgage came due. The Hendrix Law correspondence was dated October 15, 2018 and the balance due was $119,763.13: P-March19 Affidavit ex D. (

i) Payments by Ms. Yuill [ 168 ] Ms. Yuill provided evidence that she made payments to Hendrix Law. The Plaintiff countered that the evidence did not specify the nature of the payments to Hendrix Law and the payments might have concerned Ms. Yuill’s own obligations to pay for legal services. [ 169 ] Ms. Yuill’s evidence was that she obtained the funds from a LIRA: TYX 25.8-12. An April 30, 2018 e-mail from Cherif Armanious showed that Ms. Yuill removed $33,950 from a “pension,” “27950 for “the hardship” and $6000 for the “mortgage arrears:” Plaintiff’s Materials 449.

Another e-mail from February 2019 referred to a further “unlocking,” although no dollar amount was specified. [ 170 ] In my opinion, the timing of the payments (after the fire, and before and after the demand letter, before receiving funds from the CMI mortgage), Hendrix Law’s representation of the Coxson mortgagee, and the documentation confirming the LIRA withdrawals provides a sufficient circumstantial foundation for the determination that Ms. Yuill made the payments to Hendrix Law (the demand letter requested payment to Hendrix Law) to defray amounts owing under the Coxson mortgage. [ 171 ] Ms.

Yuill paid $17,018.63 to Hendrix Law by way of e-Transfers (Plaintiff’s Materials 451): • 2019-04-05: $1,810 • 2019-02-28: $3,208.63 • 2019-02-24: $3,000 • 2019-02-22: $5,000 • 2019-02-22: $3,000 • 2019-02-20: $1,000. [ 172 ] I consider the e-Transfers to support proof of payment. There was no proof of payment of the $6,000 for “mortgage arrears.” (ii) The Amount of Ms. Yuill’s Credit [ 173 ] Should Ms. Yuill receive credit for 100% of her contributions? [ 174 ] The payment was against the joint debt of the Defendant and the Plaintiff. [ 175 ] Ms.

Yuill did not make the payments while operating under any mistake of law or fact. In 2019, when the payments were made, it was clear that the Defendant and Plaintiff had not come to a settlement respecting matrimonial property. The Plaintiff retained and exercised her dower rights respecting mortgages on the property. She had filed a certificate of lis pendens in 2017. [ 176 ] Nonetheless, Ms. Yuill’s payments were not a gift to the Plaintiff. No evidence could have supported that conclusion. [ 177 ] Through Ms.

Yuill’s payments, the Plaintiff received the benefit of the reduction of her share of the mortgage debt. It is true that the Plaintiff did not ask Ms. Yuill to pay for her or consent or otherwise acquiesce to (or even know about) Ms. Yuill’s payments. It is also true that if Ms. Yuill had advanced an unjust enrichment claim against the Plaintiff there may have been an issue about whether a payment foisted on a third party, even though that payment preserved the third party’s property, would support recovery for unjust enrichment.

See Professor Mitchell McInnes, The Canadian Law of Unjust Enrichment and Restitution (LexisNexis Canada, 2014) 596- 598. However, I do not consider a distribution under ss. 7 and 8 of the Matrimonial Property Act to be limited by restitutionary doctrine. [ 178 ] It would not be just and equitable for the Plaintiff to receive the benefits of Ms. Yuill’s payments against the Coxson mortgage without recognition of Ms. Yuill’s contributions. [ 179 ] In my opinion, the Plaintiff’s share of the sale proceeds should be reduced by 50% of the amount paid by Ms.

Yuill toward the Coxson mortgage, representing the Plaintiff’s benefit from the payments. [ 180 ] I need not deal with Ms. Yuill’s claim against the Defendant and whether the presumption of advancement applied to Ms. Yuill’s payments for the Defendant’s benefit. See Pecore v Pecore , 2007 SCC 17 , Rothstein J at para 28. The reduction of the Plaintiff’s claim increases the Defendant’s share of the proceeds. Ms. Yuill can take the steps she deems fit respecting recovery from the Defendant. [ 181 ] The Plaintiff’s share of the net proceeds of sale must be reduced by $8,509.31 to recognize Ms.

Yuill’s contributions to the Coxson mortgage. B. The Defendant’s Payment of Non-Mortgage Debt

1. Matrimonial Debt at the Date of Separation [ 182 ] The Plaintiff raised only some minor issues respecting the non-mortgage and non-RBC debt. She claimed that she had paid the Sears debt ($500). She’d had the bill directed to Portage College where she was studying after leaving the Defendant: P-Nov17 Affidavit para 18.

The Defendant responded that he still had to pay $132.93 on this account: D-Jan19 para 6. [ 183 ] The Plaintiff confirmed that (otherwise) she did nothing in relation to the joint debt after separation: PXA 9.16-17, 10.20-22. [ 184 ] Neither party provided documentary confirmation of the times and manner of payment of the debts. [ 185 ] There was, though, no evidence of any court proceedings or other enforcement activities respecting these debts.

The Plaintiff was never the subject of enforcement proceedings after separation: PXA 17.14-26, 21.21-24. [ 186 ] I infer that the debts were paid. [ 187 ] Setting aside the amount owing on the RBC default judgments, I find that the Defendant paid off the following debts, without relying on mortgage proceeds: • TD Visa $4,700 • Home Depot $1,650 • Sears $132.93 • Auto Loan $12,000 • Property Taxes $8,000 • Propane $1,000. The total of the debt payments is $27,482.93. [ 188 ] As these were matrimonial debts, the Defendant was responsible for 50% of the debt total.

The Defendant paid 100% of these debts, though, so the Defendant made an excess payment of $13,741.47. 2.

The RBC Writ [ 189 ] The Defendant paid off the RBC default judgments. [ 190 ] Again, $30,000 was paid by the Aaron Acceptance and Coxson mortgages for postponement. [ 191 ] As described above, the Defendant made additional payments totalling $21,429.50 to retire this debt. [ 192 ] In 2015, the Defendant had been able to make payments of $250/month. [ 193 ] In 2016 and 2017, the Defendant was able to make payments of $500/month (and in one month double that). [ 194 ] The Defendant, I infer, had access to increased disposable income in 2016 and 2017 as opposed to 2015. [ 195 ] Recall that $11,000 from the Coxson mortgage was unaccounted for.

The total amounts paid in 2016 and 2017 ($13,319) exceed $11,000, but $11,000 would go a long way toward funding the payment of the RBC default judgment debt. [ 196 ] In my opinion, the unaccounted-for $11,000 from the Coxson mortgage was applied to reduce the amount of the RBC default judgment debt.

There was no evidence that the amounts owing on the RBC default judgments were paid from any other source. [ 197 ] I note the Defendant’s comment at D-Jan19 Affidavit para 7: “I have been paying them [the RBC default judgment debts] down gradually and just paid them off entirely in January 2019.” [ 198 ] Hence, the Defendant did not obtain a personal benefit from the net proceeds of the Coxson mortgage.

The amount of equity extracted from the Acreage was used to pay off joint debt. [ 199 ] The total amount required to retire the debt, not funded by the Aaron Acceptance and CMI mortgages, was the sum of • the 2015 $250/month payments - $3,000 • the difference between the 2016 and 2016 payments and $11,000 - $2,319 • the January 2018 payment - $368 • the final payment - $5,110.50 for a total of $10,797.50. [ 200 ] The Defendant, then, paid more than his share to retire this joint debt. He was responsible for 50% of the debt. His excess payment was $5,398.75.

3. Credit to the Defendant for Payment of Matrimonial Debt [ 201 ] The Defendant should be credited, then, with an overpayment of debt of $29,004.03, subject to any further adjustments, being the sum of the following overpayments of joint debt: • matrimonial non-mortgage non-RBC debt - $13,741.47 • RBC default judgments - $5,398.75 • Coxson mortgage (Defendant) - $1,354.50 • Coxson mortgage (Ms. Yuill) - $8,509.31. 4. Payment of Personal Debts [ 202 ] The CMI mortgage had some deductions for legal fees, lender fees, broker fees, and title insurance.

I view these expenses as necessarily incidental to the type of mortgage obtained by the Defendant. The Plaintiff did not claim that the Defendant could or should have obtained a less expensive type of mortgage. [ 203 ] The CMI mortgage paid out the following debts: • County of Grande Prairie tax arrears ($4,734) • Superior Propane ($1,700.68) • Enmax Rh ($1,054.28) • Carfinco ($6,500) • Easyfinancial ($7,044.51) • Gatestone & Co Contact Centres Inc ($10,600). [ 204 ] I find that the property taxes are an unavoidable incident of property ownership.

Since the Plaintiff maintained an interest in the benefits of the Acreage and its increasing value, the Plaintiff maintained responsibility for the burdens of the Acreage such as property tax. The payment of tax arrears was a payment of joint debt. [ 205 ] I view the utilities expenses (Superior Propane and Enmax) as living expenses and not expenses for capital maintenance. The Defendant had the benefit of remaining on the Acreage. He should bear the burden of living expenses for living on the Acreage. There were no submissions on this point.

Neither was there any evidence about the nature of the propane or Enmax payments. These debts and these payments, then, were solely for the benefit of the Defendant and not for the benefit of the Plaintiff. [ 206 ] Similarly, there was no evidence and there were no submissions respecting the nature of the Carfinco, Easyfinancial, and Gatestone debts.

In the absence of evidence showing any benefit received by the Plaintiff through incurring these debts, I find that these debts were incurred by the Defendant solely for his own benefit and the payment of these debts was solely for the Defendant’s benefit. [ 207 ] I therefore find that the sum of the utilities, Carfinco, Easyfinancial, and Gatestone debts, $26,899.47, was extracted from the equity of the Acreage for the Defendant’s sole benefit. 5.

Net Credit to the Defendant for Payment of Matrimonial Debt [ 208 ] The payment of personal debt ($26,899.47) must be set-off against the overpayment of joint debt ($29,004.03). [ 209 ] The Defendant, then, has a net credit of $2,104.56 for his overpayment of matrimonial joint debt, including Ms. Yuill’s contribution on his behalf to the Coxson mortgage payments. C. Financing Renovations [ 210 ] The Defendant or Ms. Yuill or both of them may have contributed to the renovation expenses for the Acreage.

If so, these would be payments on capital and should be recognized in the division of the sale proceeds. [ 211 ] The issue of where the money came from to finance renovations should be approached chronologically. 1. 2010 to August 2014 [ 212 ] The evidence was that the Acreage with home was worth about $182,000 by August 2014. (

a) Circumstantial Argument [ 213 ] The Defendant relied on a circumstantial argument based on the Brock Tokar Valuation. That valuation put the property value

at about $129,000 in 2011. But the property was worth about $182,000 in 2014. The increase in value must reflect the value of renovations. Renovations had to be paid by someone and that someone was not the Plaintiff. The funding for the renovations must have come from Ms. Yuill. [ 214 ] However, I rejected the evidential value of the Brock Tokar Valuation. The record, then, does not disclose the value of the Acreage in 2011 and so undercuts this circumstantial argument.

The evidence does not permit a finding of the value of the Acreage in 2010 or 2011. [ 215 ] Nonetheless, I accept that the house construction was, to put it mildly, incomplete at the time that the Plaintiff left the Acreage and Ms. Yuill moved in. I accept that some renovations were done by 2014 and were recognized in the 2014 appraisal value. (

b) Evidence of Renovations [ 216 ] The Defendant’s evidence was that “[i]n 2010, Karen left. I started doing renovations on the home for the next four years up until she signed that property over to me:” DXA 66.16-67.5. [ 217 ] He did work on the - front porch - back addition - improvements inside the house. [ 218 ] The Defendant said that he did a lot of renovations in those four years: DXA 30.3-22, 32.4. [ 219 ] The Defendant pointed out that “[i]f you look at the appraisal [the 2014 Biegel & Perra appraisal], you can see that the house did grow in cubic feet .... improvements were made on the outside ....

There was a big addition that went on the back of the house:” DXA 31.2-12. He’d added another “1,300 square feet:” DXA 32.4. [ 220 ] I accept that renovations were made and that money was necessary for (at least) the materials required for the renovations. (

c) Ms. Yuill’s Evidence [ 221 ] There was no evidence of payments by Ms. Yuill for renovations in the 2010 to 2014 period. (

d) Sources of Funding [ 222 ] The evidence pointed to the sources of funding for renovations. The 2008 RBC mortgage was taken out for the very purpose of improving the Acreage, as was the RBC RCL: DXA 63.11-24. [ 223 ] The 2008 mortgage was for a principal of $50,000.

The RBC RCL debt was $29,789.18 as of 2013, after the Plaintiff had left the Acreage. [ 224 ] Nearly $80,000 had been available, then, for renovations, by 2014. [ 225 ] The Defendant said that “all the money that I borrowed went into the house:” DXA 57.21-24. [ 226 ] I find that, on the evidence, the funding for renovations over the 2010 to August 2014 period was provided by RBC and not by Ms. Yuill. 2. September 2014 – April 29, 2017 (

a) Lack of Evidence of Significant Post-August 2014 Renovations [ 227 ] The evidence did not establish that significant renovation work was done between September 2014 and 2016. [ 228 ] The Defendant’s evidence was that he did a lot of renovation work from 2010-2014, although he did say that he did more renovations after June 2014. [ 229 ] Ms. Yuill had stated that the renovations were largely complete by 2016 (a “good portion” of the renovations were done by then). [ 230 ] The Biegel & Perra appraisal of November 28, 2017 valued the Acreage as of April 30, 2017 at $170,000 (building $75,000, land $95,000).

This valuation is close to the 2014 valuation and suggests that little was done between the two appraisals that might have increased the property value. I note that Biegel & Perra had the advantage of having appraised the Acreage in 2014. [ 231 ] Did the settlement of the fire claim show that the value of the house was $200,000? The insurer did pay $200,000 for a replacement modular home. [ 232 ] The evidence did not establish the nature of the insurance settlement. My conclusion is that the $200,000 payment by the insurer was all-inclusive, or nearly all-inclusive. It represented more than the home value.

The proof of loss suggested coverage for not only the building but (among other things) contents. Ms. Yuill referred to $10,000 in living expenses paid by the insurer. That amount

was kept by the Defendant and not shared with Ms. Yuill. (

b) No Aaron Acceptance Mortgage Proceeds for Renovations [ 233 ] The Aaron Acceptance mortgage did not yield proceeds that could have supported renovations between 2014 and 2016, when the Coxson mortgage was taken out. (

c) Coxson Mortgage Proceeds? [ 234 ] I found that the Coxson mortgage did yield net mortgage proceeds of about $11,000. Some or all of those proceeds could have been used for renovations. However, given the absence of significant renovations during the 2014-2017 period and the evident payment on the RBC default judgments, my finding that the $11,000 should be credited to the payment of the RBC default judgments is confirmed. (

d) Ms. Yuill’s Payments [ 235 ] The evidence did not provide proof that Ms. Yuill was financing renovations from 2014 to 2017, before the fire. 3. April 30, 2017 to November 2021 [ 236 ] After the fire, Ms. Yuill was paying her and the Defendant’s rent that was “extremely high,” $2,200 a month. She could not pay that and assist with the mortgage: TYX 25.21-25; 26.3-5. 25.13-27.6, 50.13-25. It follows that Ms. Yuill could not have paid rent and made significant investments in home renovations. Ms.

Yuill’s rent payments were payments of living expenses not investments in the Acreage. [ 237 ] The evidence was that further construction costs were necessary despite the insurer’s provision of the modular home. The Defendant and Ms. Yuill claimed that Ms. Yuill provided funding to complete construction, including carpentry, electrical, plumbing, and completion of the basement: D-April22 Affidavit para 8. Ms. Yuill stated that she “financed the entire cost of the basement and all the contractor’s ( sic ) costs and materials to assemble the home and install all utilities etc:” TY Affidavit para 4. Ms.

Yuill attached what she characterized as receipts for the assembly and construction of the home, totalling $224,749.50: TY Affidavit para 5. [ 238 ] I note that the Plaintiff’s certificate of lis pendens was registered in November 2017, after the fire. There was no suggestion that any amounts paid by Ms. Yuill were made in ignorance of the Plaintiff’s claims concerning the Acreage. (

a) Ms. Yuill’s Evidence [ 239 ] Ms. Yuill’s documents are found in the TY Affidavit Ex C, referenced by page number. (

i) Quotations and Estimates [ 240 ] Some documents provided by Ms. Yuill were only quotations or estimates. I accept the Plaintiff’s position that these documents did not establish that amounts were actually invoiced and paid. The quotations and estimates did not prove Ms. Yuill’s claimed contributions. I do not accept Ms.

Yuill’s and the Defendant’s uncorroborated claims of payment as proof of payment. [ 241 ] The following documents were quotations only: • Dave’s Concrete Services, p. 14 • Pumps & Pressure, p. 17 • Rentco Equipment Ltd, p. 19 • Wolseley (boiler quote), pp. 20-26 • Canlift Crane Inc, pp. 28-29 • Marmit Plastics Inc, p. 30 • Wolseley (“Levant House”) p. 31. [ 242 ] I accept that the “Levant House” reference was an error by Wolseley and what was meant was the “Leverton” house. [ 243 ] The Dave’s Concrete quote was for $72,900. Ms. Yuill stated that she dealt with that expense: TYX 39.5-6.

However, the document was a quote not an invoice and there was no proof of payment by her. I am not satisfied that Ms. Yuill made the claimed payment. (ii) Reaxion Mechanical Ltd. Invoice [ 244 ] The Reaxion Mechanical invoice (p. 13) was for $79,275.86. [ 245 ] However, Ms. Yuill stated that she did not pay that amount to Reaxion. She paid Reaxion only for covering the Canlift invoice: TYX 39.16, 40.1, 42.1-24. This would reduce the amount attributable to Reaxion to $68,371.61.

[ 246 ] There were some complications respecting Reaxion. [ 247 ] First, the 100% shareholder of Reaxion was Ms. Yuill’s son-in-law (at least eventually). At the material time he may or may not have been married to one of her daughters: P-Oct22 Affidavit ex J. Ms. Yuill claimed that she did not know that he had any interest in the company: TYX 38.18-22, 53.12-18. Given the evidence on the record respecting Ms. Yuill’s credibility, I do not find that her claim is likely true. [ 248 ] Second, the invoice appears to have been sent by way of a text to Ms. Yuill.

The “Re:” at the bottom of the invoice is “Lis pendens.” That subject line suggests a specific use for the response received from Reaxion, a company that turns out to have been wholly owned by Ms. Yuill’s (eventual) son-in-law. [ 249 ] Third and most importantly, Ms. Yuill’s evidence was that she didn’t actually pay Reaxion, other than for the crane: “I actually didn’t pay to Reaxion” (38.24-25). “I didn’t pay Reaxion” (41.19). “Q [Y]ou didn’t pay that to Reaxion? A No. No.” (42.18-19). He (Reaxion) “shopped around for quotes” (39.9-10). The Reaxion document was a quote (40.8).

It was “a screenshot of an email I received from him where he sent me the information on where he had found the best prices. He was just shopping for me” (41.21-24). [ 250 ] Hence, despite its appearance as an invoice, Ms. Yuill did not pay Reaxion $79,275.86. (iii) Invoices [ 251 ] The following documents were invoices: • First Choice Electrical Supply, p. 15 ($1,514.46, shows balance due only) • Atco, pp. 16 and 18 (duplicates – one-time: $5,591.12, but marked “paid”) • Canlift Crane Inc. p. 27 ($10,904.25, shows balance due only). [ 252 ] Ms. Yuill stated that she did pay $10,904 to CanLift: TYX 42.22-24.

I accept that she did so, by way of reimbursement of Reaxion. There was an invoice and it would have been necessary to have crane services to hoist the modular home and its roof sections. She stated that she paid back this amount to Reaxion. [ 253 ] Ms. Yuill stated that she paid First Choice: 44.8-15. Again, electrical work would have been necessary. I accept that she paid this amount. [ 254 ] Ms. Yuill accepted the duplication of the Atco amount: 49.10-11. I find that she did pay the (single) amount owing. [ 255 ] The evidence established a total amount paid by Ms.

Yuill for construction costs relating the modular home of $18,009.58. [ 256 ] This payment should be regarded as establishing a joint debt for the parties. The Plaintiff, then, should be responsible for $9,004.92, 50% of the amount paid by Ms. Yuill. (

b) Mortgage Funding [ 257 ] The CMI mortgage in 2021 yielded about $50,000 for renovations. There was a construction holdback of $25,000 and net mortgage proceeds of about $25,000. [ 258 ] The CMI mortgage, then, provided about $50,000 for post-fire renovations. [ 259 ] I recognize that the goods and services established to have been paid for by Ms. Yuill do not constitute all the construction costs that would have been necessary to set up the modular home.

In particular, I accept the Defendant’s comments about the old basement having been unusable because damaged by fire and the need, then, for a new basement for the home. [ 260 ] I find, on the record, that the $50,000 should be applied to the costs of pre-sale construction for setting up the modular home, other than those costs paid by Ms. Yuill. This amount was drawn from the home equity and the amount advanced constituted a shared matrimonial debt. The construction work paid for by this amount was an investment in the Acreage benefitting both parties. (

c) Sale Proceeds [ 261 ] There were deductions of about $18,000 (South Peace Property Management and Smook’s Plumbing) for remedial renovation work. I accept that these were disbursements for post-sale remedial work not for renovation work bringing the Acreage back up to marketable standards after the fire. These were costs that had to be incurred for the sale to close and for the parties to receive proceeds of the sale. (

d) Conclusion [ 262 ] The Plaintiff is responsible for 50% of the debt owing to Ms. Yuill for her contributions to pre-sale construction for the Acreage, $9,004.92. D. Conclusion [ 263 ] In my opinion, neither the Defendant nor the Plaintiff has established that it would be just and equitable to distribute the net sale

proceeds of the Acreage unequally, to the point of wholly disentitling the other party from a share of those proceeds. Neither party has displaced the presumption of equal division. That is my starting point. [ 264 ] In my opinion, it is just and equitable to recognize that, on the evidence, the Defendant and Ms. Yuill have made financial contributions to the Acreage beyond the scope of the Defendant’s obligations. [ 265 ] The Defendant has a net credit of $2,104.56 for his overpayment of matrimonial joint debt, including Ms. Yuill’s contribution on his behalf to the Coxson mortgage payments.

The calculation of this credit took into account the Defendant’s receipt of personal benefits from the equity of the Acreage. [ 266 ] To that amount must be added $9,004.92, the Plaintiff’s share of the amounts contributed by Ms. Yuill on the evidence, beyond what I have found was covered by the $50,000 available for construction costs under the CMI mortgage. [ 267 ] As I indicated, the evidence gave conflicting numbers for the amount in trust - $186, 220.61 and $186,943.36. The actual amount in trust can be readily determined by counsel. [ 268 ] I order that the amount in trust be divided in two steps: (

a) the amount in trust shall be divided into two equal shares (

b) from the Plaintiff’s share, the amount of $11,109.48 shall be deducted and the amount of $11,109.48 shall be credited to the Defendant’s share. Put another way, I order that the Plaintiff’s share of the net sale proceeds shall be equal to 50% of the net sale proceeds less $11,109.48 and that the Defendant’s share of the net sale proceeds shall be equal to 50% of the net sale proceeds plus $11,109.48. IV.

Desk Divorce [ 269 ] So long as the current matrimonial property issue remains outstanding between the parties it would not be appropriate to order corollary relief to be severed from the divorce proceedings and to authorize proceeding with the divorce under r. 12.50. My determination is a final judgment following a

summary trial but a final judgment may be subject to further proceedings. [ 270 ] An application for the divorce to proceed under r. 12.50 may be brought before me or any other Justice once all proceedings respecting this judgment have concluded. I do not waive any requirement for a Family Docket Court appearance. V. Costs [ 271 ] If the parties cannot agree on costs, written submissions respecting costs may be provided to me through my Judicial Assistant within 60 days from the date of this decision. I will respond in writing. Heard on the 1 st day of February, 2023.

Dated at the City of Edmonton, Alberta this 29 th day of May, 2023. W.N. Renke J.C.K.B.A. Appearances: Jerry Kiriak Kiriak Law Office for the Plaintiff Michael Wheaton Dobko & Wheaton

for the Defendant