Gross v Alexander, 2023 ABKB 623

Court of King’s Bench of Alberta Citation: Gross v Alexander, 2023 ABKB 623 Date: 20231106 Docket: 2101 14931 Registry: Calgary Between: Brittany Gross and Bryan Gross Applicant - and - Lloyd Alexander Respondent _______________________________________________________ Reasons for Judgment of the Honourable Justice Lisa A. Silver _______________________________________________________ I. Introduction [ 1 ] This is an application for distribution of monies after the sale of a residential property located at 56 Templeridge Way NE in Calgary.

The application is brought by Brittany and Bryan Gross, who are the daughter and son-in-law, respectively, of the Respondent, Lloyd Alexander. [ 2 ] The Grosses were placed on title of the home on October 9, 2014, after the property was re-financed on September 26, 2014. Prior to re-financing, only Mr. Alexander held title. All parties agreed that Brittany and Bryan Gross went on title after Mr. Alexander requested their help with the re-financing of the mortgage.

The parties do not agree whether placing the Grosses on the title of the home created an interest in the property entitling them to a portion of the proceeds of the sale. [ 3 ] This case is an unfortunate example of what happens when family relationships breakdown. What was once a loving family is now a fractured one. What was once a non-issue between family members is now the driving issue in the family dispute. What is at stake for all parties is money but what has been already lost is family unity and respect.

[4] I find that when the Grosses were placed on title, they received an interest in the property. I further find they are eachentitled to $30,825.25 of the net proceeds of the sale totaling $61,650.50. The following are the reasons for this decision. II. Procedural History [5] Brittany Gross sought and was granted an Emergency Protection Order (EPO) against Mr. Alexander on October 30, 2021.At the time all parties were living in the home but when the EPO was granted, Mr. Alexander was required to leave.

On December 8,2021, the Grosses filed an application for partition and sale of the property and exclusive possession of the home. [6] On April 22, 2022, Justice Kenny, vacated the EPO at the viva voce hearing. Justice Kenny noted there was a propertydispute before the civil court and found the claim did not meet the test for an EPO. [7] Mr. Alexander applied on June 27, 2022, for partition and sale of the property with $50,000.00 of the proceeds to bedistributed to Mr. Alexander.

Justice Anderson granted the order on consent. [8] The evidence on this application consisted of joint affidavits filed on behalf of Bryan and Brittany Gross from November 19,2021, and October 6, 2023. There were three affidavits filed on behalf of Mr. Alexander sworn on January 31, 2022, June 10, 2022, andOctober 16, 2023. All parties were cross examined on their affidavit evidence before me on October 20, 2023. III. The Issues [9] The primary issues raised by this application are as follows: A. Was a joint tenancy created when Brittany and Bryan Gross were added to the title of the home on October 9, 2014? B.

Is there a basis for an unequal distribution of the net proceeds under

section 17 of the Law of Property Act? [10] Ultimately, these issues turn on Mr. Alexander’s intention at the time the Grosses went on title in 2014. IV. Analysis and Position of the Parties A. Was a joint tenancy created when Brittany and Bryan Gross were added to thetitle of the home on October 9, 2014? i. What is a joint tenancy in law? [11] A joint tenancy is created when four unities of title, time, possession, and interest are established: Genoud v Genoud, 2022ABKB 712 at para 41.

To determine joint tenancy, the court decides if the four unities are present and if it was the grantor’s intention tocreate a joint tenancy at the time: Smiley v McMillan, 2018 ABQB 988 at para 12-13 (Smiley); Zeligs v Janes, 2016 BCCA 280 at para39; Hunt Estate v Hunt Estate, 2016 SKCA 63 , 2016 SKCA63 at para 12; B. Ziff, Principles of Property Law, 6th ed.(Toronto: Carswell, 2014) at 336. [12] When title for all tenants arise from the same instrument, there is unity of title. In unity of interest, all tenants’ interests areequal in nature, extent, and duration.

Unity of time requires all interests to vest at the same time. There is unity of possession when alltenants have a right to possession and use of the property: Gill v Hurst, 2011 NSCA 100 at para 47. [13] Unity of interest means joint tenants must act as one in dealing with the land. Joint tenants hold the same interest in theproperty collectively: Craig v Steele, 2021 ABQB 825 (Steele) at para 46; Zelinski v Zelinski, 2021 SKCA 165 at para 22; Herunter vKostiuk, 2011 ABQB 452 at para 92.

If no interest was bestowed at the time of title or the kind of interest held by one joint tenant differsfrom the interest held by all, there is no joint tenancy. [14] A “significant characteristic” of a joint tenancy is the right of survivorship: Steele at para 46: Smiley at para 14; Pohl v Midtal,2017 ABQB 711, aff’d 2018 ABCA 403 (Pohl) at para 27; Sorenson (Estate) v Sorenson, (ABCA), 90 DLR (3d) 26at pp 31-32, 35-36. When joint tenancy is terminated by death, the interest of the deceased tenant passes to the surviving one. ii.

Position of the parties [15] In the case before me, the joint tenancy was allegedly created when the Grosses were placed on title by Mr. Alexander onOctober 9, 2014. Counsel for Mr. Alexander submitted there was no unity of interest at the time the Grosses took title and therefore nojoint tenancy. According to counsel, the Grosses neither contributed to the property to create any interest in it nor did Mr.

Alexanderintend to create such an interest. [16] Although not argued by counsel, in my view, if there is no unity of interest, there are no unities of possession and time.Without unity of interest there can be no vesting of an interest at the time of taking title and no right to undivided possession of the wholeproperty: Gill at para 47. [17] Counsel for the Grosses argued there is a joint tenancy and the Grosses’ interest in the property is the same as the interest ofMr. Alexander. According to counsel, Mr. Alexander gave the Grosses an interest in the property by gift, by gifting a right of

survivorship, and in consideration for co-signing the mortgage. Counsel also pointed to the renovations done by the Grosses as further consideration for an interest in the property. [ 18 ] If the Grosses’ interest in the property was wholly gratuitous, the presumption of resulting trust applies. Resulting trusts arise when property is in one party’s name but that party, having paid no value for it, is obliged to return the property to the original owner: Pecore v Pecore , 2007 SCC 17 at para 20 ( Pecore ).

In those circumstances, the party disputing the gratuitous nature of the transfer can rebut the presumption of resulting trust. For instance, if the interest was gifted, the transfer would not be gratuitous, and the unities of joint tenancy would be fulfilled.

But if, as in Lemoine v Smashnuk , 2008 ABQB 193 ( Lemoine ), title was given for the sole purpose of safeguarding the co-signor of the mortgage, the interest created is different in nature than the interest of the original title holder, and no joint tenancy is created. [ 19 ] Whether there is a resulting trust depends on the intention of the party transferring the property interest at the time of the transfer. This assessment aligns with the analysis required in finding a joint tenancy. In my view, whatever the argument, the intention of Mr.

Alexander at the time title transferred to the Grosses is the key determinant in resolving the nature, extent, and duration of the Grosses’ interest. I will therefore turn to the analysis of Mr. Alexander’s intention when he placed the Grosses on title of the property. iii. Assessing the evidence of intention [ 20 ] There are two overlapping reasons provided by Mr. Alexander for placing the Grosses on title in 2014. These reasons relate to the co-signing of the mortgage and Mr. Alexander’s desire that the property pass to his children when he died. There is also evidence of Mr.

Alexander’s conduct after title was transferred relating to the renovations of the property, the moving into the home by the Gross family, the Grosses payment of rent or mortgage, and the re-financing in 2019. All this evidence is relevant and material to determining Mr. Alexander’s intention at the time of title transfer to the Grosses. [ 21 ] I am mindful of Justice Rothstein’s comments in Pecore on the evidence a court may consider in determining intent of the transferor where a gratuitous transfer is being challenged.

The judge must weigh all the evidence relating to the actual intention at the time of transfer: Pecore at para 55 . Traditionally, the law strictly limited findings of actual intention to evidence contemporaneous to the transfer. This ensured that the actual and real intent at the time of transfer was being considered as opposed to a later time when intent might have changed: Pecore at para 56 . This later intention can be viewed as self-serving evidence crafted to support a different position.

It is often this changed position, which drives the litigation. [ 22 ] As is the case for many of the traditional rules of evidence, the law has become more flexible. Justice Rothstein found there is no automatic exclusion of evidence of intention arising after the transfer. The evidence must still be relevant and material to the intention at the pertinent time: Pecore at para 58-59 . Such evidence is also subject to credibility and reliability concerns.

For instance, Justice Rothstein cautioned on self-serving evidence and evidence reflecting a change of heart by the transferor after the transaction: Pecore at para 59 . [ 23 ] Before assessing the evidence of intention, I will first comment on the reliability and credibility of the evidence. a. Credibility and reliability [ 24 ] Credibility and reliability are separate concepts that may overlap. Credibility involves the believability or truthfulness of the evidence. Reliability is connected to the accuracy of the evidence.

Credibility may be impacted by many reasons such as bias, motive to lie, and material inconsistencies. Reliability can be impacted by a witness’s ability to see, hear, or remember an event. [ 25 ] As mentioned earlier in these reasons, the familial relationship between the parties is one of high conflict. The family feud has expanded to include other family members, including Ms. Gross’s brother, Yannik. This highly charged and emotional context has impacted the evidence of all parties.

I find the evidence, both oral and written, often strayed into bitterness and anger with one another instead of focusing on the real issue, which is the fair and appropriate distribution of the sale proceeds. [ 26 ] There was much evidence alleging poor behaviour and serious misconduct by all parties. Mr. Alexander suggested in his affidavit that the Grosses, from the very time they were placed on title, plotted to take over his home and pointed to the EPO as evidence. The Grosses outlined the abusive conduct they suffered at the hands of Mr. Alexander while living at the home.

I find that these comments are indicative of the breakdown of the relationship between them and do not serve as evidence of entitlement or non- entitlement to an interest in the property. This evidence does however show that the parties’ memory of actual intention is tainted by their animosity towards one another. [ 27 ] There are other examples of this kind of high conflict evidence such as the state of the property before renovation and after sale. I make no finding on who did what to whom. I do, however, find that this context has tainted the evidence of all parties and impacted their credibility.

I will be making findings based on this context. [ 28 ] Moreover, the affidavit evidence causes me concern. There are inaccuracies found in the affidavits. Some of these inaccuracies are more important than others but they suggest the parties are careless and not being completely forthright in their evidence. For example, in Mr. Alexander’s affidavit of January 31, 2022, he deposed he was 75 years of age. In his June 10, 2022, affidavit, filed some six months later, he stated he was 73 years of age.

The Grosses in their affidavit evidence suggest they both completed the renovations of the property when at the hearing it was clear that Mr. Gross did the bulk of the work. I find that this impacts both the reliability and credibility of the evidence. b. Evidence of intention at the time of transfer [ 29 ] Mr. Alexander became sole owner of the property in 2007 as part of a divorce settlement. He lived in the home since 2002. At the time he took sole ownership, the property was valued at $250,000. Mr. Alexander placed a mortgage of $177, 748 on the property

that same year. In 2013, mortgages totaling approximately $200,000 were placed on the property as well as several caveats. [ 30 ] In 2014, Mr. Alexander was unable to refinance the home. He turned to his son-in-law, Bryan Gross, to assist. Mr. Alexander suggested Brittany Gross was not eligible to cosign because she was not working at the time. Despite this position, Brittany Gross was a signee on the mortgage document, and she was added to the property title. The mortgage was for $256,000 with payments of $1066.74 due the first of each month starting October 1, 2014.

The property was appraised at $345,000. [ 31 ] Mr. Alexander in his affidavit dated January 31, 2022, maintained that at no time did he discuss or agree to the Grosses having an interest in the property “other than the assistance to cosign and as security in case of my death.” Moreover, he “trusted” the Grosses “completely.” [ 32 ] Under cross examination, counsel suggested to Mr. Alexander that his intention in putting the Grosses on title was to have the property pass to the Grosses should anything happen to him. Mr. Alexander responded as follows: No.

My intent - I have two kids, okay – Brittany and Yannik – and my intent because I couldn’t get a hold of Yannik, to put Brittany and Bryan on and further on I guess over time Yannik would be an asset also. [ 33 ] Mr. Alexander’s statement he placed the Grosses on title as “security” if he died can have two meanings. It can relate to the cosigning of the mortgage itself in the sense that if something happened to Mr. Alexander, the equity in the property would assist in paying out the mortgage thus protecting the Grosses. This explanation would be consistent with Mr.

Alexander’s present belief that he never intended for the Grosses to enjoy a separate interest in the property. [ 34 ] There is another meaning to this phrase, which I find is more consistent with Mr. Alexander’s actual intention in 2014 when the Grosses were placed on title. The statement can be viewed as an intention to bequeath the property to the Grosses on Mr. Alexander’s passing. This

interpretation aligns with Mr. Alexander’s insistence he would have placed his other child, Yannik, on title at the same time as the Grosses. It is also consistent with the placing of Ms. Gross on all property documents even though her credit did not assist in the refinancing. [ 35 ] I will now turn to the relevant and material evidence of intention after title was transferred before assessing the entirety of the intention evidence. c. Evidence of intention after the transfer [ 36 ] The relevant and material evidence of intention after the title transfer, which assists in the assessment of Mr.

Alexander’s actual intention at the time of transfer, relates to the renovations of the property, the moving into the home by the Gross family, the payment of rent or mortgage by the Grosses, and the re-financing in 2019. [ 37 ] The Grosses and Mr. Alexander took a very different stance on the renovations done to the property. Once the property was refinanced in 2014, Mr. Alexander took $40,000 in equity to renovate the home. According to Mr. Gross, Mr. Alexander did very little renovation and used most of the money for his own purposes including gifts to relatives.

The Grosses maintained they alone renovated the main and upper floors of the home by using $20,000 from Mr. Gross’s RRSP account. They also helped Mr. Alexander renovate the basement. [ 38 ] Although the Grosses did not move into the home until 2017, Mr. Gross testified they intended to move into the home at the time he and Ms. Gross took joint title in 2014. He further suggested the renovations, which started in 2014, were evidence of this. [ 39 ] According to Mr. Alexander, the renovation was done with hopes of renting out the main floor of the house to generate income. Mr.

Alexander would remain in the basement suite. I find there is no evidence anyone, but the Grosses, lived in the home with Mr. Alexander despite his stated intention the renovations were for rental purposes. There was also little evidence of exactly when the renovations were completed. Even so, I accept the intention in 2014 was to renovate the property to allow for the Grosses and their two kids to live with Mr. Alexander as one family unit.

This intention is further supported by the Grosses’ desire to reside in a larger living space, which the home provided. [ 40 ] The parties disagreed on whether the Grosses were paying rent or mortgage. According to Mr. Alexander, the move was purely a rental arrangement that was wholly unconnected to the Grosses being on title of the property. According to the Grosses, they were paying monies towards the mortgage. To support both positions, cheques written by Bryan Gross were entered into evidence. An early cheque written by Bryan Gross when the family relationship was good noted the payment was for rent.

A later cheque from February of 2022, after the parties were already in litigation, noted the payment was for the mortgage. [ 41 ] In my view, this evidence is self-serving for both parties. In the Grosses’ view, if the payments were towards mortgage this would support their position as joint tenants. In Mr. Alexander’s view, if the Grosses were paying rent this would support his position they had no interest in the property. [ 42 ] There was also evidence the Grosses initially paid $1200 per month as rent or mortgage but the payment was dropped to $900 per month.

Both parties disputed when this agreement was made. [ 43 ] The payments were not direct payments made by the Grosses to the bank for the mortgage. Rather the payments were made to Mr. Alexander. The payments did cover a substantial portion of the mortgage payments, which at the time of refinancing was $1066.74. In whichever way the payments are characterized, the monies assisted Mr. Alexander to pay the mortgage. It was the Grosses and no one else who lived in the home with Mr. Alexander and made these payments.

I accept the living arrangements and the payments relate to the Grosses receiving title in 2014. [ 44 ] In 2019, the mortgage was due and once again the home was refinanced. This time, Bryan Gross’s credit was not helpful. Mr. Alexander was able to renew the mortgage without Bryan’s assistance. Even so, Mr. Alexander kept both Bryan and Brittany Gross on

the property title because he “trusted” them. [ 45 ] Although Mr. Alexander suggested “trust” moved him to leave Bryan Gross on the mortgage, in fact the Grosses were still helping Mr. Alexander financially by paying for most of the mortgage. [ 46 ] Moreover, leaving the Grosses on title was consistent with Mr. Alexander’s stated intention for the property to pass to the Grosses when he died. His explanation that he trusted the Grosses supports this intention. At the time they were a happy family with every indication that their strong bonds would continue. d.

Determining the actual intention [ 47 ] Based on the totality of the evidence of actual intention, including my assessment of the reliability and credibility of the evidence, I find Mr. Alexander’s actual intent in placing the Grosses on title in 2014 were for two main reasons. [ 48 ] First, Mr. Alexander placed Bryan and Brittany Gross on title because he intended to share his home, and the interest in the home with the Grosses, who he considered his family. This finding is supported by the fact that Mr.

Alexander: • asked the Grosses to help refinance the property; • allowed the Grosses to assist in the renovations; • allowed the Grosses, and not anyone else, to move into the home; • allowed the Grosses to pay house and mortgage expenses; and • failed to remove the Grosses from title in 2019. [ 49 ] Of course, the title transfer was mutually beneficial. It provided the Grosses with a larger home and provided Mr. Alexander with the financial means to keep it. But more than any reason, it signified their deep and enduring family relationship at the time. The actual intention was for Mr.

Alexander and the Grosses to live together in this way for the foreseeable future. [ 50 ] In Pecore , Justice Rothstein commented on the context of family relationships when considering whether a transfer is gratuitous. There is an aspect of taking joint ownership to assist an aging parent with daily tasks. In the case of Pecore , it was a joint bank account where the child was added to help the parent make bill payments. But there is also another aspect, which I find is more relevant in this case, which are the ties that bind a family together. These ties can be complicated.

They can be emotional and financial at the same time: Pecore at para 100 . [ 51 ] In the case before me, the Grosses were not placed on title to merely assist with the transactional needs of Mr. Alexander. They were also placed on title for emotional reasons, which included sharing in the interest of the home. In this way, I find Mr. Alexander gifted an interest in the property to the Grosses. [ 52 ] This brings me to the second reason. I find Mr. Alexander intended to pass title to the property as an inter vivos gift of right of survivorship to his daughter, Brittany Gross. Mr.

Alexander wanted both his children, Brittany and Yannik, to receive the property after he died. Mr. Alexander did not name Bryan Gross as his child when he explained his intention to give a right of survivorship, but he did reference both Brittany and Bryan in that context. [ 53 ] The right of survivorship is inherent to the creation of a joint tenancy. Mr. Alexander’s intention to pass title for this reason requires the tenancy to be a joint tenancy. A tenancy in common, for instance, would not include the right of survivorship. Of course, Mr. Alexander, as a joint tenant could have severed the joint interest.

This was not done. [ 54 ] At paragraph 48 of Pecore , Justice Rothstein explained how the right of survivorship vests when joint tenancy is created, which makes the gift of those rights an inter vivos one. It also creates a legal and equitable interest in the property: see also Fuller v Harper , 2010 BCCA 421 at paras 51-53 ; Pohl at paras 27-28 ; Pecore at para 49 . [ 55 ] I therefore find the transfer of interest to the Grosses by Mr. Alexander was not gratuitous but was gifted by Mr. Alexander to the Grosses. In making this finding, I find all four unities of joint tenancy are present. [ 56 ] Although Mr.

Alexander now maintains this intention was never to gift the property, I find his actions then speak louder than his words today, which are tainted by the disintegration of their once loving relationship. Keeping the Grosses on title may not have been wise in retrospect, but it cannot now be undone because Mr. Alexander regrets it or because he no longer feels the same love and respect for his daughter that he once did. [ 57 ] Before I leave this issue, I would like to acknowledge and comment on the cases provided to me by counsel. [ 58 ] Counsel for Mr.

Alexander relied on several Alberta King’s Bench decisions in arguing no joint tenancy was created. In Lemoine , Justice Moen found there was no joint tenancy where the respondent was placed on title for the sole purpose of refinancing the property. Even so, to protect the respondent’s risk of being on the mortgage, the court ordered the respondent to remain on title until the loan was realized.

Similarly, in Christensen v Leigh , 2009 ABQB 247 Justice Yamauchi found the applicant, who merely loaned money for purchase of the property, was not a joint tenant but only a tenant in common. [ 59 ] In Gonzalez v Soto , 2009 ABQB 454 ( Gonzalez ), Justice Veit found a joint tenancy was created. At paragraph 50 of the decision, Justice Veit referenced the love and affection aspect of the transaction. In any event, there were direct financial contributions made by both parties. Counsel also pointed to Lutz v Lutz , 2012 ABQB 300 , involving a brother co-signing a mortgage for a younger brother.

There, the court found the brother held the property as a resulting trust and there was no joint tenancy.

[60] All the above cases involve a distinctive set of facts as found by the judge in each case. These decisions turn on the intentionof the transferor of title, which requires findings of fact based on the evidence. In fact, the Lutz case was overturned by the Court ofAppeal for Alberta and remitted to the trial court for viva voce evidence on intention: Lutz v Lutz, 2013 ABCA 159. [61] Counsel for the Grosses provided me with Justice Poelman’s decision in Steele v Craig, 2021 ABQB 825 ,2021ABQB 825 (Steele) and Application Judge Wacowich’s decision in Sirois v Andrews, 2017 ABQB 263 (Sirois).

These decisionsinvolve joint tenancies between parent and adult child. Again, at the heart of these cases is not the law but the factual findings. [62] The Steele decision is factually very similar to the case before me. In Sirois the father gifted the property to his daughter as ajoint tenancy. Justice Poelman found the father intended to grant property rights to his daughter and son-in-law including use of the landand right of survivorship. All parties ultimately agreed a joint tenancy was created.

There was also evidence of significant contributionby the daughter and son-in-law to the upkeep, maintain and operation the land, which was a working farm. [63] In Sirois, Steele, and Gonzalez, unjust enrichment principles were applied. In Steele, the issue was discussed in JusticePoelman’s analysis under s. 17 of the Law of Property Act (LPA). I too will reserve this discussion for the next issue on the LPA. B. Is there a basis for an unequal division of the net proceeds under

section 17 ofthe Law of Property Act? [64]

Section 17 of the LPA provides a basis for an unequal distribution of the sale proceeds. As it stands, each joint tenant shouldreceive an equal share of the proceeds: Gonzalez at paras 30-31. [65] The house sold for $345,168.02. After discharging the mortgage of $213,765.02 and payment of other fees associated with thesale, the net proceeds totaled $123,301. Fifty thousand dollars was released to Mr.

Alexander with $73,301 remaining in trust. [66] An equal distribution between all joint tenants would result in Bryan Gross, Brittany Gross, and Lloyd Alexander, to eachreceive $41,100.33, which is close to thirty-three percent share. In my view, considering both the non-exhaustive factors listed undersection 17(2) as well as other relevant factors including equitable principles, I find Mr. Alexander should receive more than his equalshare: Steele at paras 49-50. I find the just and fair distribution to Mr. Alexander is a fifty percent share in the net proceeds.

Both Bryanand Brittany Gross will each receive twenty-five percent amounting to $30,825.25 each. [67] To explain why I am directing an unequal distribution, I will first review the considerations specifically listed under section17(2). Then I will discuss the other relevant factors including equitable considerations unique to the situation before me. [68] The first factor under section 17(2)(

a) considers whether one co-owner has excluded the other co-owner from access to theproperty. I conclude that this factor weighs in favour of an unequal distribution to Mr. Alexander’s benefit. I make no finding on thevalidity of the reasons for Brittany Gross applying for the EPO. I am mindful that the EPO did issue at first instance and that the EPOwas vacated because the reviewing judge found no legal basis for it. In any event, the effect of the EPO was to exclude Mr. Alexanderfor almost six months. Mr. Alexander was able to live with his former spouse rent free, but he was required to pay the mortgage and hisshare of house expenses. [69] The second factor under section 17(2)(

b) considers whether an occupying co-owner was tenant of another co-owner. TheGrosses lived with Mr. Alexander and paid a higher proportion of the mortgage. I do note that in the mortgage statement from 2021found in Mr. Alexander’s affidavit, mortgage payments increased from 2014 and amounted to $1168.05. The proportion paid by theGrosses seemed to be decreasing. In any event, the Grosses were also using a larger proportion of the home. I find this is a neutral factor. [70] Neither section 17(2)(

c) relating to third party payments from natural resources nor section 17(2)(

d) on waste fromunreasonable use apply. Also, section 17(2)(

g) relating to dower rights does not apply. [71] Arguments were made by counsel on the improvements made by the Grosses that increased the value of the land. This is aconsideration under s. 17(2)(e). Specifically, the argument focused on the renovations done solely by the Grosses. [72] There was also argument relating to the value of the property at the time the Grosses were placed on title. Counsel for theGrosses pointed to the 2022 property appraisal showing an increase in value approximately equal to the net proceeds from the actualsale. Counsel for Mr.

Alexander pointed to the property assessments which shows the home value did not significantly increase. [73] In looking at the appraisal reports, from 2014 and 2022, the overall interior condition of the home in both years is listed asaverage. The effective age of the home in 2014 was twenty years while the effective age of the home in 2022 was fourteen years. Thissuggests that the condition of the home improved. Certainly, the photographs of the home in the appraisal report from 2014, which weretaken before renovation support this.

However, as I have already found, the renovation was a joint effort by all parties. [74] Moreover, both parties lived in the home for six years after renovation. There would be wear and tear from usage consideringthere were five people living in the house, including the Grosses’ two children. This is evident by the photographs taken by Mr.Alexander when he cleaned out the home after its sale.

I do not accept that an unequal division is warranted based on the homerenovations. [75] Neither do I accept that the Grosses should be compensated for any non-capital expenses to the land under section 17(2)(f).As already indicated both parties lived in the home, improved it, and enjoyed it. This also removes section 17(2)(

g) as a consideration. [76] Justice Poelman in Steele applied the principles of unjust enrichment as a counterweight to the statutory factors: Steele at para55; Gonzalez at paras 55-64. I will do the same here. There is an enrichment by the Grosses and a corresponding deprivation by Mr.Alexander because the Grosses did not pay as much financial cost (i.e., purchase price of the property) as they received in monetaryvalue. The Grosses did pledge their credit, made payments towards the mortgage, made modest renovations, and generally cared for the

home. [ 77 ] There are juristic reasons for an unequal share. Mr. Alexander lived in and owned the home for twenty years while the Grosses owned the home for eight years and lived in it for only five years. The property was originally a matrimonial home and part of the division of property at the time of divorce. Mr. Alexander is elderly with no other asset than the home. Mr. Alexander also intended to give his son a right of survivorship in the property, which he can no longer do. Finally, Mr.

Alexander expended money to prepare and clean the house for sale and is liable to pay the outstanding Direct Energy bill. V. Conclusion [ 78 ] I therefore direct Bryan and Brittany Gross each receive $30,825.25 for a total of $61,650.50 to be distributed from the monies held in trust. The balance of $11,650.40 will be paid to Lloyd Alexander. [ 79 ] Both parties are encouraged to agree on costs of this application. Should they be unable to do so after 90 days, they are at liberty to apply for my assistance. [ 80 ] I have one final comment to make.

Justice Abella, in the opening words of her concurring judgment in Pecore at paragraph 77 , applied Tolstoy’s literary quote that “ Happy families are all alike, every unhappy family is unhappy in its own way” to the unhappiness found when family disputes are brought into the courtroom. The law cannot heal or change this unhappiness, but it can provide closure. Hopefully, as the legal dispute ends the ill feelings will pass and the family relationship will resume. Heard on the 20 th day of October, 2023. Dated at the City of Calgary, Alberta this 6 th day of November, 2023 . Lisa A. Silver J.C.K.B.A.

Appearances: Garrett Horvath and Ivana Covic for the Applicant Abimbola Delalu for the Respondent