Duncanson v Everett, 2013 NSSC 398

Supreme Court of Nova Scotia Citation: Duncanson v Everett , 2013 NSSC 398 Date: 2013-12-05 Docket: Ken No. 347549 Registry: Kentville Between: Ralph Douglas Duncanson Plaintiff v. Kimberly Anne Everett Defendant Judge: The Honourable Justice Gregory M. Warner Heard: November 26, 2013, in Kentville, Nova Scotia Oral Decision: November 27, 2013 Counsel: Ron Richter , for the Plaintiff Ralph Duncanson Kimberly Everett , self-represented Defendant By the Court: [ 1 ] As promised, this an oral decision. It will be inarticulate and I may produce a written version.

If so, it will be edited for grammar and composition to be more readable. However, in doing so, I will not change any of the analysis, the reasons, the results or the determinations of law or fact. Application [ 2 ] This case involves Mr. Duncanson’s claim that Ms. Everett was unjustly enriched by his substantial renovations to her home during their 15 years in a common-law relationship. He claims a proprietary compensation equal to 45% of the value of her home. [ 3 ] Ms. Everett claims that any renovations he may have contributed were offset by a benefit to him in the form of free occupation of her home.

In her pleadings, she also counterclaimed for an interest or monetary award in assets he accumulated during their relationship. [ 4 ] Until shortly before trial, Ms. Everett was represented by counsel; at trial she was self-represented. [ 5 ] Mr. Duncanson testified. At Ms. Everett’s request, the Court required Mr. Duncanson to produce his employer and brother-in-law Kenneth Lutz to be questioned by Ms. Everett. Ms. Everett elected not to testify. Her decision was despite the Court’s suggestion, both at the opening of the trial, and at the end of Mr.

Duncanson’s case, that she carefully consider testifying. [ 6 ] This decision is based on the evidence given at the trial yesterday. [ 7 ] Every trial requires the judge to assess the reliability and credibility of the witnesses. Courts may accept none, some or all of a witness’s evidence. In assessing the evidence of Mr. Duncanson and Mr. Lutz, as well as the documentary exhibits that were admitted, I have applied the tools referred to by this Court in prior decisions, including Re Novak Estate , 2008 NSSC 283 , and Bocaneala

v Liberatore , 2013 NSSC 372 . [ 8 ] Mr. Duncanson, now 53, lived with Ms. Everett, now 46, and her then three young children in the early 1990s. After a brief separation, he lived continuously with her in a common-law relationship from the fall of 1995 to December 2010. During the last four years of their cohabitation, the children were not living in the home. [ 9 ] In about 1992, Ms. Everett entered into a rent-to-buy agreement for 2271 Morden Road, where she had been renting, for about $25,000.00. The terms appear to have been $5,000.00 down and about $500.00 a month.

By 1999 she had paid off the balance owing under that agreement and received title of the property in her name alone. [ 10 ] Mr. Duncanson’s claim and Ms. Everett’s defence and counterclaim falls squarely within the analytical framework set out in Kerr v Baranow , 2011 SCC 10 . The parties’ excellent pretrial briefs follow closely and purport to apply the Kerr analysis. I apply the Kerr analysis. Subject only to the preliminary issue of whether Mr. Duncanson and Ms.

Everett entered into a “joint family venture”, I apply the five step analysis in Annapolis v Kings Transit , 2012 NSSC 401 , at para 60 : [60] The analytical framework described in Garland , beginning at para 28, and Kerr , beginning at para 31 , is as follows. 1. Was the defendant enriched by the plaintiff? Enrichment connotes a tangible economic benefit conferred on the defendant. This analysis is devoid of moral or policy considerations. In Kerr , the Court clarified that the benefit may be positive or negative. 2. Was the plaintiff deprived? The Garland and Kerr courts do not analyze this step in any depth.

Deprivation or detriment does not appear to have been in serious dispute in these cases. In Garland , the transfer of money was directly from the plaintiff to the defendant. In Garland , the Court described deprivation as involving a tangible, economic deprivation, devoid of moral or policy considerations. In Kerr , the Court clarified that the deprivation is a “corresponding” deprivation that may, in respect of a benefit to the Defendant, occur directly or indirectly. 3.

While the Garland Court described the issue in para 28 as: “Is there a juristic reason for the enrichment?”, the analysis begins at para 38 and clearly frames the third question as whether there is “an absence of juristic reason” for the enrichment. The answer to the question may require a two-step analysis. As noted above, in response to academic and judicial commentary, the Court described the first step as requiring the deprived party to prove that none of the established justifications for the benefit apply.

If it is successful, the evidential burden shifts to the beneficiary to establish a juristic reason for retention, either by establishing a new category of juristic reason, or alternatively, that in the particular circumstances of the case (without establishing a new category) the retention is justified. Justice Cromwell amplifies the juristic reason analysis at paras 40 to 46 in Kerr . 4. Can the Defendant avail itself of any defence? Garland effectively sets this up as a fourth question (para 28.2 and beginning at para 62).

In Garland the defences advanced included the “change of position” defence, and the “regulated industry” or obedience-to-a-statute defence. In Kerr the defences included the “mutual enrichments” defence. 5. What remedy, if any, should the court order? One of the features of equity is that equitable remedies are discretionary. The Supreme Court has not suggested, either in Garland or Kerr , that unjust enrichment has lost its equitable foundation such as to restrict the discretion of the Court in granting a fair remedy, or refusing any remedy. The Facts [ 11 ] When Mr.

Duncanson moved back into the Everett home in the fall of 1995, he was working away from the area as a heavy-equipment operator for two week stretches. He was basically home every two weeks. [ 12 ] The Court understands from his evidence that Ms. Everett was not fully employed at that time. [ 13 ] The financial arrangement between the parties appears to have been that Mr. Duncanson paid for the groceries in the household; the household included himself, Ms. Everett and her three children. Ms.

Everett paid the rent-to-own payments (until whenever in 1999 they were paid off), property taxes, property insurance, and utilities. The latter included oil, electricity, and telephone. [ 14 ] Initially Ms. Everett had the use of Mr. Duncanson’s vehicle, left home when he worked away. Later he purchased two used or second-hand vehicles for her. Eventually Ms. Everett appears to have completed training and became a home care worker with VON. She then paid for her own vehicles. [ 15 ] At some point Mr. Duncanson ceased working away.

He was hired by his brother-in-law Kenneth Lutz and worked as a heavy-equipment operator locally. His work was seasonal. During the season from about March to October or November, he worked long days. During the winter he received EI and appears to have been home most of the most time. [ 16 ] I accept Mr. Duncanson’s evidence that he spent, on average, $250.00 every two weeks on groceries for the household, until the last four years, when only he and Ms. Everett lived in the home.

During the last four years, his grocery bill was reduced to about $150.00 every two weeks. [ 17 ] Other than the amount paid in the rent-to-own agreement in 1999, there is no evidence before the Court of the actual or estimated costs to Ms. Everett for taxes, insurance, oil, electricity, telephone or any other utilities. The Court can certainly infer that these costs existed, but there was no attempt to quantify them. [ 18 ] The parties never had a joint bank account. Each kept their own money separate. The Court has no evidence as to what debts, if any, either party had. It appears from the evidence that Mr.

Duncanson paid for everything in cash; he appears not to have credit cards or a line of credit. He explained that this was the reason that he had no credit rating. Each appears to have paid for what they

otherwise purchased from their own resources. [ 19 ] I accept his evidence that, when Mr. Duncanson moved in with Ms. Everett and her children in 1995, the house that he moved into was a very small home, consisting of a kitchen and living room on the ground floor; two bedrooms and a bathroom on the upstairs floor, and that it was in a very dilapidated condition. This was occupied portion of the home where they appear to have lived. [ 20 ] There was another unoccupied portion, which he described as the “gutted” portion. He almost immediately began to renovate it. He described the renovations in detail.

I am not going to repeat the particulars; they are in the evidence. [ 21 ] He did not stop at initiating significant renovations to the “gutted” portion. In about 2002 or 2003, he constructed a large two-storey addition to the main residence, creating a much larger kitchen in the main floor, and an additional bedroom and bathroom upstairs. The reason for the extension appears to have been the size of the family. I will not review in detail the particulars that are in the evidence, that Mr. Richter walked Mr. Duncanson through during his direct evidence. [ 22 ] I accept that the evidence of Mr.

Duncanson, who does not appear to have complete memory with regards to all details, was straight-forward, honest, credible and reliable. I accept that for the most part he carried out these renovations jobs on his own initiative. Sometimes he initiated them without prior consultation with Ms. Everett. Nothing in the evidence suggested that she objected to the renovations being carried out by Mr. Duncanson. [ 23 ] It was suggested in some of the questions on cross-examination that some of the renovations were unnecessary. [ 24 ] I accept the evidence of Mr.

Duncanson that the shallow dug well, I think he described as two crocks deep near swampy land, was not adequate. He arranged to dig and install a lengthy waterline and hook the house up to municipal water. This was an improvement. I accept his evidence that what constituted the septic system near the back door of the home at the time he moved in was inadequate, and that it was reasonable for him to initiate, undertake and carry out the installation of a much better septic system. [ 25 ] I accept that the renovations to the “gutted” portion of the residence were reasonable and necessary.

I accept that other extensive renovations: the replacement of the roof, windows, doors, decks and floors, as well as the large two-storey addition, constituted a tangible, economic benefit to Ms. Everett, the sole legal owner of the property. [ 26 ] I accept the evidence of Mr. Duncanson that he carried out most of these renovations. He honestly acknowledged that he had help, some volunteered and some paid for. He acknowledged that Ms. Everett participated in some of these renovations. [ 27 ] I accept that he paid out of his pocket for much of the materials for the renovations.

I accept his evidence in direct and cross examination that he did not pay for all of them. For example, with regard to the steel roof, Ms. Everett paid 60% of the materials. With regards to the windows he did not pay for them all, she paid some. I am satisfied that she paid for other unspecified materials related to the renovations. Joint Family Venture [ 28 ] Next I describe the relationship between Mr. Duncanson and Ms. Everett. [ 29 ] They cohabitated as boyfriend and girlfriend for 15 years. They slept in the same bed. They had sexual relations of a conjugal nature. They were monogamous.

They communicated on a personal level. They ate meals together. [ 30 ] Most significantly, Mr. Duncanson appears to have assumed the role of a step-parent to Ms. Everett’s three children when he moved into her residence. While it appears that her oldest child, a son, and Mr.

Duncanson had some issues, and were not particularly close, the two younger daughters did have and continue to have a good relationship with him. [ 31 ] The family did not take regular vacations but did appear to socialize on weekends outside the home and participate in activities with the children, including visiting with their respective families. [ 32 ] They acted as a family. [ 33 ] While not directly relevant to the decision at the end of the day, I sense that their relationship deteriorated after 2008 when Mr.

Duncanson purchased for $15,000.00 a 31-acre, more or less, wood lot and started working on the land and building a cabin. He appears not to have been around the home much after that. [ 34 ] Not all common-law relationships constitute a joint family venture - a precondition to the unjust enrichment analysis described by Justice Cromwell for the Supreme Court in Kerr .

Justice Cromwell dealt with the issue of when and whether courts should find that a joint family venture exists, beginning at about para 87 and continuing to para 99. [87] My view is that when the parties have been engaged in a joint family venture, and the claimant’s contributions to it are linked to the generation of wealth, a monetary award for unjust enrichment should be calculated according to the share of the accumulated wealth proportionate to the claimant’s contributions.

In order to apply this approach, it is first necessary to identify whether the parties have, in fact, been engaged in a joint family venture. In the preceding section, I reviewed the many occasions on which the existence of a joint family venture has been recognized. From this rich set of factual circumstances, what emerge as the hallmarks of such a relationship? [88] It is critical to note that cohabiting couples are not a homogeneous group. It follows that the analysis must take into account the particular circumstances of each particular relationship.

Furthermore, as previously stated, there can be no presumption of a joint family venture. The goal is for the law of unjust enrichment to attach just consequences to the way the parties have lived their lives, not to treat them as if they ought to have lived some other way or conducted their relationship on some different basis. A joint family venture can only be identified by the court when its existence, in fact, is well grounded in the evidence. The emphasis should be on how

the parties actually lived their lives, not on their ex post facto assertions or the court’s view of how they ought to have done so. [89] In undertaking this analysis, it may be helpful to consider the evidence under four main headings: mutual effort, economic integration, actual intent and priority of the family. There is, of course, overlap among factors that may be relevant under these headings and there is no closed list of relevant factors. What follows is not a checklist of conditions for finding (or not finding) that the parties were engaged in a joint family venture.

These headings, and the factors grouped under them, simply provide a useful way to approach a global analysis of the evidence and some examples of the relevant factors that may be taken into account in deciding whether or not the parties were engaged in a joint family venture. The absence of the factors I have set out, and many other relevant considerations, may well negate that conclusion. (

a) Mutual Effort [90] One set of factors concerns whether the parties worked collaboratively towards common goals. Indicators such as the pooling of effort and team work, the decision to have and raise children together, and the length of the relationship may all point towards the extent, if any, to which the parties have formed a true partnership and jointly worked towards important mutual goals. [91] Joint contributions, or contributions to a common pool, may provide evidence of joint effort.

For instance, in Murdoch , central to Laskin J.’s constructive trust analysis was that the parties had pooled their efforts to establish themselves in a ranch operation. Joint contributions were also an important aspect of the Court’s analyses in Peter , Sorochan , and Pettkus . Pooling of efforts and resources, whether capital or income, has also been noted in the appellate case law … The use of parties’ funds entirely for family purposes may be indicative of the pooling of resources: McDougall .

The parties may also be said to be pooling their resources where one spouse takes on all, or a greater proportion, of the domestic labour, freeing the other spouse from those responsibilities, and enabling him or her to pursue activities in the paid workforce … (

b) Economic Integration [92] Another group of factors, related to those in the first group, concerns the degree of economic interdependence and integration that characterized the parties’ relationship … The more extensive the integration of the couple’s finances, economic interests and economic well-being, the more likely it is that they should be considered as having been engaged in a joint family venture.

For example, the existence of a joint bank account that was used as a “common purse”, as well as the fact that the family farm was operated by the family unit, were key factors in Dickson J.’s analysis in Rathwell .

The sharing of expenses and the amassing of a common pool of savings may also be relevant considerations … [93] The parties’ conduct may further indicate a sense of collectivity, mutuality, and prioritization of the overall welfare of the family unit over the individual interests of the individual members … These and other factors may indicate that the economic well- being and lives of the parties are largely integrated … (

c) Actual Intent [94] Underpinning the law of unjust enrichment is an appropriate concern for the autonomy of the parties, and this is a particularly important consideration in relation to domestic partnerships. While domestic partners might not marry for a host of reasons, one of them may be the deliberate choice not to have their lives economically intertwined. Thus, in considering whether there is a joint family venture, the actual intentions of the parties must be given considerable weight. Those intentions may have been expressed by the parties or may be inferred from their conduct.

The important point, however, is that the quest is for their actual intent as expressed or inferred, not for what in the court’s view “reasonable” parties ought to have intended in the same circumstances.

Courts must be vigilant not to impose their own views, under the guise of inferred intent, in order to reach a certain result. [95] Courts may infer from the parties’ conduct that they intended to share in the wealth they jointly created … The conduct of the parties may show that they intended the domestic and professional spheres of their lives to be part of a larger, common venture … In some cases, courts have explicitly labelled the relationship as a “partnership” in the social and economic sense … Similarly, the intention to engage in a joint family venture may be inferred where the parties accepted that their relationship was “equivalent to marriage” … or where the parties held themselves out to the public as married … The stability of the relationship may be a relevant factor as may the length of cohabitation … When parties have lived together in a stable relationship for a lengthy period, it may be nearly impossible to engage in a precise weighing of the benefits conferred within the relationship … [96] The title to property may also reflect an intent to share wealth, or some portion of it, equitably.

This may be the case where the parties are joint tenants of property. Even where title is registered to one of the parties, acceptance of the view that wealth will be shared may be evident from other aspects of the parties’ conduct. For example, there may have been little concern with the details of title and accounting of monies spent for household expenses, renovations, taxes, insurance, and so on.

Plans for property distribution on death, whether in a will or a verbal discussion, may also indicate that the parties saw one another as domestic and economic partners. [97] The parties’ actual intent may also negate the existence of a joint family venture, or support the conclusion that particular assets were to be held independently. Once again, it is the parties’ actual intent, express or inferred from the evidence, that is the relevant consideration. (

d) Priority of the Family [98] A final category of factors to consider in determining whether the parties were in fact engaged in a joint family venture is whether and to what extent they have given priority to the family in their decision making. A relevant question is whether there has been in some sense detrimental reliance on the relationship, by one or both of the parties, for the sake of the family. As Professor McCamus puts it, the question is whether the parties have been “[p]roceeding on the basis of understandings or assumptions about a shared future which may or may not be articulated” … The focus is on contributions to the domestic and financial partnership, and particularly

financial sacrifices made by the parties for the welfare of the collective or family unit.

Whether the roles of the parties fall into the traditional wage earner/homemaker division, or whether both parties are employed and share domestic responsibilities, it is frequently the case that one party relies on the success and stability of the relationship for future economic security, to his or her own economic detriment … This may occur in a number of ways including: leaving the workforce for a period of time to raise children; relocating for the benefit of the other party’s career (and giving up employment and employment-related networks as a result); foregoing career or educational advancement for the benefit of the family or relationship; and accepting underemployment in order to balance the financial and domestic needs of the family unit. [99] As I see it, giving priority to the family is not associated exclusively with the actions of the more financially dependent spouse.

The spouse with the higher income may also make financial sacrifices (for example, foregoing a promotion for the benefit of family life), which may be indicative that the parties saw the relationship as a domestic and financial partnership.

As Professor Parkinson puts it, the joint family venture may be identified where [o]ne party has encouraged the other to rely to her detriment by leaving the workforce or forgoing other career opportunities for the sake of the relationship, and the breakdown of the relationship leaves her in a worse position than she would otherwise have been had she not acted in this way to her economic detriment. … [ 35 ] I find that this relationship was a joint family venture. The parties treated each other, and held themselves out, as a family unit, and raised Ms. Everett’s children together.

They had a long-term stable relationship. [ 36 ] While they did not have joint finances, they shared expenses in the family unit with priority on the family needs. Both contributed to the day-to-day expenses of the home. Both contributed to the substantial renovations carried out at 2271 Morden Road. [ 37 ] While it appeared from the evidence and, in particular, the cross-examination, that Mr. Duncanson did not always consult before-hand, or get formal permission to effect the renovations, I find that they were approved by Ms. Everett.

This is for the very common sense reason that they provided a much better home for her and her children to live in. It is only now, after the fact, recognizing the issues at state, that her questions suggest that the renovations were unilateral acts, not necessary or not approved. I do not accept her implication. [ 38 ] There was one important snippet of evidence dealing with the actual intentions of the parties. Ms. Everett asked Mr. Duncanson whether he acknowledged that she had told him that she would contest any claim he made for the contributions he made to the renovations to the home.

He acknowledged that that kind of discussion happened, I think, on an annual basis. [ 39 ] Clearly the discussion would not have happened on an annual basis unless he, at the same time, said he thought he was entitled to a contribution. There would have been no purpose for the repetition of that discussion or it to take place in the first place if there had been a clear joint intention that he was, in effect, making a gift of whatever contributions he made to the value of the home, or that it was part of his share of day-to-day living expenses. [ 40 ] A second question, dealing with actual intent, arose when Ms.

Everett asked Mr. Duncanson whether he agreed that she had said that house was a legacy for her children. He agreed. In redirect he was asked to say what he meant by that. His reply was clear that he understood that when something happened to the two of them, the children would eventually own the home, but not necessarily in the event of their separation. [ 41 ] I find that the priority of the efforts of Ms. Everett and Mr. Duncanson during the 15 years they cohabitated, at least for the first 11 of those years, was providing a home for her children.

The priority of their expenditures appears, during that time, to have been for the benefit of the family, at least in respect of the home that was in Ms. Everett’s name alone. Unjust Enrichment [ 42 ] The Supreme Court in Kerr discusses unjust enrichment principles beginning at para 31. It discusses the element of unjust enrichment, that is enrichment and deprivation, beginning at para 36.

It discusses the third step in the analysis, the absence of a juristic reason, beginning at para 40. [ 43 ] It does not specifically separate out the issue of defences at that part of the analysis, although the issue of defences is discussed throughout the decision.

The decision then speaks of the fourth stage as the remedy analysis, beginning at para 46; in particular, whether a monetary award or a proprietary award is more appropriate, at paras 47 and 50 respectively. [ 44 ] I particularly focus on the remedies discussion beginning at para 55 as to when a monetary award was appropriate, and the Court’s concern that the unjust enrichment analysis not fall into the trap of analysis based on a “fee for service”, which type of analysis predominated before Kerr .

The Court held that remedies for unjust enrichment must be flexible, and in appropriate circumstances, monetary relief may be assessed on a value-survived basis. [ 45 ] Relevant to the fourth step of the unjust enrichment analysis, which I call the defence step, is the “mutual benefit conferral” analysis carried out by the Supreme Court in Kerr beginning at para 101 . [ 46 ] I incorporate the analysis in Kerr as the foundation for the application of unjust enrichment principle to the facts of this case. [ 47 ] As noted, I find that a joint family venture existed.

While the parties did not create joint bank accounts and pool their cash directly, they did share their family financial obligations. They each contributed to the day-to-day household expenses. [ 48 ] They appear to have created a common goal with respect to family-oriented or household financial goals, and the result was an economic integration.

[ 49 ] There is no clear indication of a mutual agreement based upon actual intent with respect to how they would share the extensive renovations carried out to what I find to be a small and fairly decrepit residence at the time Mr. Duncanson moved in. [ 50 ] Step one of the unjust enrichment analysis is to determine whether or not Ms. Everett received a tangible, economic benefit. The way I set the question out at para 60 in Annapolis was: 1. Was the defendant enriched by the plaintiff? Enrichment connotes a tangible economic benefit conferred on the defendant.

This analysis is devoid of moral or policy considerations. In Kerr , the Court clarified that the benefit may be positive or negative. [ 51 ] Mr. Duncanson says, and I accept, that he made substantial contribution to the value of the residence, not just through ordinary maintenance but through the substantial renovation of a small, dilapidated residence by extensive repairs and renovations. The documentary evidence he produced to back up his oral evidence included receipts of approximately $16,000.00 in Exhibits 1 and 2. He gave evidence that he paid cash for most items, as he dealt only in cash.

In his oral evidence, he estimated some of his other cash payments. [ 52 ] I have some reservations about the reliability of his memory with respect to the exact amount that he may have paid to tradesmen and for other items and materials, such as the furnace. I do accept as fact that he made the claimed contributions by cash payments. [ 53 ] He provided no quantification in hours, or otherwise, of the extent of his labour contribution. I accept that it was extensive. The renovations were not minor.

They included not just the renovation of the “gutted” portion of the house early in their relationship, but the addition later in the relationship, and the water line, septic system, landscaping, flooring and other items. [ 54 ] Mr. Duncanson has an obligation to establish on a balance of probability, the extent of the improvement or the increase of the net wealth to Ms. Everett by reason of his contributions. He has not done that other than by the receipts that he produced in Exhibits 1 and 2. It is his claim to prove, not Ms. Everett’s to disprove.

With respect to the quantum of his contribution, the onus is on him. [ 55 ] Mr. Duncanson complains that he does not know the present value of the property because the person in sole possession of the home has refused to obtain an appraisal. I accept from the photographs shown in the Exhibits that the home is a very substantially improved property, and clearly, from the oral evidence, has a very substantially greater value than it had in 1995. Some of that may be attributable to inflation and just the housing market.

But, I accept as a fact, that a very substantial portion of it flows from the renovations. [ 56 ] I find as a fact, with respect to step one in the analysis, that Ms. Everett was enriched by Mr. Duncanson in a tangible economic sense to an amount of at least, and most likely substantially more than, the $16,000.00 in receipts that have been produced at trial. [ 57 ] Step two in the unjust enrichment analysis is whether there has been a corresponding deprivation, described in para 60 in Annapolis as: 2. Was the plaintiff deprived? The Garland and Kerr courts do not analyze this step in any depth.

Deprivation or detriment does not appear to have been in serious dispute in these cases. In Garland , the transfer of money was directly from the plaintiff to the defendant. In Garland, the Court described deprivation as involving a tangible, economic deprivation, devoid of moral or policy considerations. In Kerr , the Court clarified that the deprivation is a “corresponding” deprivation that may, in respect of a benefit to the Defendant, occur directly or indirectly. [ 58 ] I find that the tangible economic benefit to Ms.

Everett, by reason of the extensive renovations, is directly the result of the contributions of Mr. Duncanson. That is not to say that the total tangible economic benefit is solely from the economic contribution from Mr. Duncanson. [ 59 ] It appears that certain amounts were contributed by volunteers and they do not constitute a deprivation to Mr. Duncanson. It appears some of the contributions were by way of the use of equipment of Mr. Duncanson’s employer. Other than to the extent it has been established that he paid for that use, it was not his deprivation.

Thirdly, some of the benefit from the significant and substantial renovations was contributed by Ms. Everett herself. [ 60 ] The short answer at step two of the analysis is: yes, there is a corresponding deprivation. [ 61 ] Step three is the most difficult analysis: Is there a juristic reason for the enrichment of Ms. Everett or is there an absence of a juristic reason for her to retain the benefit? [ 62 ] I describe the question in para 60 of Annapolis , as: 3.

While the Garland Court described the issue in para 28 as: “Is there a juristic reason for the enrichment?”, the analysis begins at para 38 and clearly frames the third question as whether there is “an absence of juristic reason” for the enrichment. The answer to the question may require a two-step analysis. As noted above, in response to academic and judicial commentary, the Court described the first step as requiring the deprived party to prove that none of the established justifications for the benefit apply.

If it is successful, the evidential burden shifts to the beneficiary to establish a juristic reason for retention, either by establishing a new category of juristic reason, or alternatively, that in the particular circumstances of the case (without establishing a new category) the retention is justified. Justice Cromwell amplifies the juristic reason analysis at paras 40 to 46 in Kerr . [ 63 ] Step three involves a two-part analysis. Under the first part, the obligation is on Mr. Duncanson to show that none of the established justifications for the benefit apply.

Those established justifications include a gift, a contract, or another obligation in law, sometimes statute and sometime common law.

[ 64 ] I accept Mr. Duncanson’s evidence that his work was not, from his point view, intended or ever expressly stated to be a gift. [ 65 ] There was no contract or agreement between the parties with respect to these renovations. The exchanges on cross examination about fighting any claim for a sharing of the benefits of the renovations shows that no agreement existed. [ 66 ] This leaves, in terms of the established justifications for the retention of the benefit by Ms. Everett, statutory and common law generally. In Garland , statutory provisions entitled retention of the benefit.

Statutory law is not relevant to this case. [ 67 ] There can be other obligations in law. There are obligations of mutual support that arise out of certain relationships; these obligations of mutual support usually arise after separation, by reason of a prior dependency. That is not relevant. [ 68 ] The one possible basis for a claim by Ms. Everett, justifying retention of the benefit, is the fact that Mr. Duncanson did not pay rent.

Citing and relying upon the analysis in Garland v Consumers’ Gas , 2004 SCC 25 , and upon the British Columbia Court of Appeal analysis in Wilson v Fotsch , 2010 BCCA 226 , among others decisions, Justice Cromwell suggests that this justification should be dealt with at the defence or remedy step, and only considered at step three, to the extent of considering the reasonable expectations of the parties, a relevant factor in part two of step three. [ 69 ] At paragraphs 104 and 116 in Kerr , the approach taken by the court that suggests this is usually an issue for the defence stage or the remedy stage reads: [104] In my view, there is much to be said about the approach to the mutual benefit analysis mapped out by Huddart J.A. in Wilson .

Specifically, I would adopt her conclusions that mutual enrichments should mainly be considered at the defence and remedy stages, but that they may be considered at the juristic reason stage to the extent that the provision of reciprocal benefits constitutes relevant evidence of the existence (or non-existence) of juristic reason for the enrichment (para. 9). This approach is consistent with the authorities from this Court, and provides a straightforward and just method of ensuring that mutual benefit conferral is fully taken into account without short-circuiting the proper unjust enrichment analysis.

I will briefly set out why, in my view, this approach is sound. [116] I conclude that mutual benefits may be considered at the juristic reason stage, but only to the extent that they provide evidence relevant to the parties’ reasonable expectations. Otherwise, mutual benefit conferrals are to be considered at the defence and/or remedy stage. I will have more to say in the next

section about how mutual benefit conferral and the parties’ reasonable expectations may come into play in the juristic reason analysis. [ 70 ] The arrangement between Mr. Duncanson and Ms. Everett seems to have involved Mr. Duncanson paying for the groceries and Ms. Everett paying for the roof over their head, including utilities. [ 71 ] The evidence before the Court is Mr. Duncanson’s grocery bill was $250.00 every two weeks until the last few years when it was $150.00 every two weeks. When you do the arithmetic over the 15 years that adds up to an approximate $80,000.00 contribution. [ 72 ] Ms.

Everett paid in rent-to-own payments about $500.00 per month from late 1995 until 1999 (somewhere between 40 and 48 months) or about $20,000.00. She paid the taxes, insurance and utilities for 15 years, but the Court has absolutely no evidence upon which to quantify these expenses. [ 73 ] Before balancing the value to the beneficiaries of these mutual expenses: groceries on the part of Mr. Duncanson; the utilities and the roof on the part of Ms. Everett, I should add this. [ 74 ] During the first four years that Mr. Duncanson lived in the home, he worked away, and left his vehicle at home for use by Ms. Everett.

It was the only household vehicle. Later he obtained two used vehicles for her, which she kept for short periods of time. Eventually, when she appears to have become employed on a full-time basis and required a vehicle for work, she acquired her own vehicles. [ 75 ] There is some evidence of other contributions made by Mr. Duncanson to the household, separate from the value of his role as a step-parent; they included, for example, the purchase of a kitchen range. [ 76 ] The beneficiaries of their contributions to the day-to-day expenses were Mr. Duncanson, Ms. Everett and Ms. Everett’s three children.

It would be unfair to attribute one-half of what each contributed to the other, because the household consisted of five people. [ 77 ] Said differently, the contribution that Mr. Duncanson made to the household mostly benefitted Ms. Everett and the children. The contribution made by Ms. Everett benefitted, to some degree, but certainly not equally, Mr. Duncanson. Most of her contribution benefitted herself and her own three children. [ 78 ] I do not find on the evidence before me that a reasonable expectation would or could exist, on the part of Ms.

Everett, to believe that their respective contributions to the day-to-day living expenses of the household (exclusive of the renovations) benefitted Mr. Duncanson more than her and her children, or that their contributions created an imbalance favouring Mr. Duncanson. In other words, a deficit, which would justify or offset the very significant capital contributions to the value of the home, and a source of monetary wealth to Ms. Everett. [ 79 ] The second part of the stage three analysis provides that the established justifications for retention of an enrichment are not closed.

Unjust enrichment is an equitable concept. The Court is always open to juristic reason or, alternatively, reasons particular to circumstances, without creating a new category, which would justify retention of a benefit. The evidentiary onus to establish a new basis for entitlement is upon Ms. Everett. [ 80 ] The analysis is described at paras 40 to 46 in Kerr :

(2) Absence of Juristic Reason [40] The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without a juristic reason.

To put it simply, this means that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, making its retention “unjust” in the circumstances of the case: . . . [41] Juristic reasons to deny recovery may be the intention to make a gift (referred to as a “donative intent”), a contract, or a disposition of law … The latter category generally includes circumstances where the enrichment of the defendant at the plaintiff’s expense is required by law, such as where a valid statute denies recovery … However, just as the Court has resisted a purely categorical approach to unjust enrichment claims, it has also refused to limit juristic reasons to a closed list.

This third stage of the unjust enrichment analysis provides for due consideration of the autonomy of the parties, including factors such as “the legitimate expectation of the parties, the right of parties to order their affairs by contract” … [42] A critical early question in domestic claims was whether the provision of domestic services could support a claim for unjust enrichment. After some doubts, the matter was conclusively resolved in Peter , where the Court held that they could.

A spouse or domestic partner generally has no duty, at common law, equity, or by statute, to perform work or services for the other.

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

The Court rejected the view that such services could not found an unjust enrichment claim because they are performed out of “natural love and affection” … [43] In Garland , the Court set out a two-step analysis for the absence of juristic reason. It is important to remember that what prompted this development was to ensure that the juristic reason analysis was not “purely subjective”, thereby building into the unjust enrichment analysis an unacceptable “immeasurable judicial discretion” that would permit “case by case ‘palm tree’ justice”: Garland , at para. 40 .

The first step of the juristic reason analysis applies the established categories of juristic reasons; in their absence, the second step permits consideration of the reasonable expectations of the parties and public policy considerations to assess whether recovery should be denied: First, the plaintiff must show that no juristic reason from an established category exists to deny recovery. . . .

The established categories that can constitute juristic reasons include a contract … a disposition of law … a donative intent … and other valid common law, equitable or statutory obligations … If there is no juristic reason from an established category, then the plaintiff has made out a prima facie case under the juristic reason component of the analysis. The prima facie case is rebuttable, however, where the defendant can show that there is another reason to deny recovery. As a result, there is a de facto burden of proof placed on the defendant to show the reason why the enrichment should be retained.

This stage of the analysis thus provides for a category of residual defence in which courts can look to all of the circumstances of the transaction in order to determine whether there is another reason to deny recovery.

As part of the defendant’s attempt to rebut, courts should have regard to two factors: the reasonable expectations of the parties, and public policy considerations. … [44] Thus, at the juristic reason stage of the analysis, if the case falls outside the existing categories, the court may take into account the legitimate expectations of the parties … and moral and policy-based arguments about whether particular enrichments are unjust … For example, in Peter , it was at this stage that the Court considered and rejected the argument that the provision of domestic and childcare services should not give rise to equitable claims against the other spouse in a marital or quasi-marital relationship … Overall, the test for juristic reason is flexible, and the relevant factors to consider will depend on the situation before the court … [45] Policy arguments concerning individual autonomy may arise under the second branch of the juristic reason analysis.

In the context of claims for unjust enrichment, this has led to questions regarding how (and when) factors relating to the manner in which the parties organized their relationship should be taken into account. It has been argued, for example, that the legislative decision to exclude unmarried couples from property division legislation indicates the court should not use the equitable doctrine of unjust enrichment to address their property and asset disputes. However, the court in Peter rejected this argument, noting that it misapprehended the role of equity.

As McLachlin J. put it at p. 994, “It is precisely where an injustice arises without a legal remedy that equity finds a role.” …

(3) Remedy [46] Remedies for unjust enrichment are restitutionary in nature; that is, the object of the remedy is to require the defendant to repay or reverse the unjustified enrichment. A successful claim for unjust enrichment may attract either a “personal restitutionary award” or a “restitutionary proprietary award”. In other words, the plaintiff may be entitled to a monetary or a proprietary remedy … [ 81 ] No evidence has been advanced that would establish a new category of juristic reason, or particular circumstances in this case, beyond the analysis in stage one of step three.

The Kerr factual circumstances are not dissimilar to those in this case, a family-like relationship of unmarried partners. [ 82 ] Step four in the unjust enrichment analysis deals with defences. This is where the claim in Ms. Everett’s pleadings that any contribution made by Mr. Duncanson to the renovations is offset by her contribution to his day-to-day living arrangements, is considered. It is the “mutual benefits conferral” analysis. [ 83 ] Ms.

Everett appears, in her brief and her pleadings, to approach this defence in two different ways. [ 84 ] She suggests that there has been a tangible economic benefit to Mr. Duncanson by the manner in which they shared expenses. This is the analysis that I carried out at step three, which I repeat. In my view, there is no factual basis in the evidence to

support a conclusion that the conferral of benefits between the parties for their day-to-day living expenses benefitted Mr. Duncanson unjustly. [ 85 ] The second way she approaches the issue is to submit that because he saved money by not paying rent for 15 years, he acquired savings in the range of $30,000.00. This enabled him to acquire what she described as “toys” – four wheelers, a lawn mower and a parcel of land, for which he paid between $15,000.00 and $16,000.00. She submits that the savings constitute a tangible economic benefit to him arising from a joint family venture.

Her approach is to quantify the amount of rent that he pays to occupy the house he presently leases from Mr. Lutz at $400.00 per month, to equate to savings of $72,000.00 over 15 years. [ 86 ] Mr. Duncanson did not pay rent to Ms. Everett, but he contributed to the household amounts that he would not have had to pay if he had not been in her home for the benefit her and the children. I have already found his contribution to the Everett household, was equal to or more than any benefit of living in the Everett household. I am not satisfied Ms.

Everett has established a deprivation to her that resulted in savings to Mr. Duncanson of $30,000.00. [ 87 ] There is no evidence of a benefit to Mr. Duncanson at the expense of Ms. Everett arising out of their living arrangement that enabled him to acquire savings of $30,000.00. Remedy [ 88 ] On behalf of Mr. Duncanson, Mr. Richter claims a proprietary interest in Ms. Everett’s property equal to 45% of its value. [ 89 ] The issue of remedy is dealt with in Kerr beginning at para 46 . The Court analyses the traditional remedy of a monetary award and the remedy of a proprietary award.

There is no question that the Court was concerned that at the remedy stage the court does not look at it as a ‘fee for service’ analysis. [ 90 ] Based on the evidence before the Court, I have several problems with a request that I grant Mr. Duncanson, a proprietary award equal to 45% of the value of the property. [ 91 ] First, the amount of the capital contribution or the benefit to Ms. Everett, in the context of the increased value of her asset, the home, vis-à-vis the increased value of the home, has not been established on the evidence. The onus is on Mr.

Duncanson to prove the increased value. [ 92 ] There are many procedural remedies that courts make available to litigants to assist them to get the information. Mr. Duncanson’s excuse that the property was in the possession of Ms. Everett, meaning that he could not get that evidence is not correct. The court can grant an order that would allow access to a property in the possession of someone else to examine a property and appraise it.

It is a common remedy. [ 93 ] Because of his poor record keeping system, and because he paid cash for everything and because cannot now remember how much cash he paid for items, Mr. Duncanson cannot establish, on a balance of probabilities, the extent of his claim and this limits his remedy. If he made contributions by cash and did not keep receipts, other than the $16,000.00 proven, then he cannot say to the Court that he has established on a balance of probability what he spent.

He has not established the quantum of the part of his claim for which no reliable figures have been proven. [ 94 ] He has proved, through receipts, that he contributed $16,000.00. I accept his evidence that he has paid cash for other items. I accept his evidence that he has put considerable labour in the renovations. [ 95 ] To claim 45% of the value of the property, he has to prove the amount of his contribution and how much the value of the property was increased as a result of his contribution.

That has not been done. [ 96 ] Applying common sense, and the remedial analysis, beginning at para 46 in Kerr , the only available remedy is a monetary award. [ 97 ] Based upon the quantified amount of his contribution, I find that Ms. Everett was unjustly enriched. There is a benefit to her, a deprivation to him, and no juristic reason for the retention of the benefit by Ms. Everett.

To analyse the extent of the enrichment and deprivation, absent evidence of the value of the home or the extent to which the renovations improved the value of the home, restricts the Court to dealing with it on the basis of the contribution that has been established. [ 98 ] Kerr deals with unjust enrichment on a holistic basis, not on an asset by asset basis. This is not a case of a constructive trust in relation to a specific asset. This is intended to be a ‘big picture’ analysis. But, to see the big picture, we sometimes have to deal with the minutiae.

The minutiae has to take into consideration all of the factors and facts, including those raised by Ms. Everett. [ 99 ] I am satisfied that Mr. Duncanson has established a monetary contribution that exceeds, but has been quantified in the amount of, $16,000.00, towards the increased value of Ms. Everett’s property. It is fair, and common sense dictates, that I award Mr. Duncanson a monetary judgment in the amount of $16,000.00, the amount for which he has established his entitlement. I so order. [ 100 ] Costs have not been addressed.

Usually this Court would say at this stage that the parties should discuss the issue of costs, apply the principles in CPR 77 and, if, within a short period of time, usually 30 days, they are unable to agree, that the Court will receive written submissions. [ 101 ] I do not ask for costs submissions today. I am skeptical that Mr. Richter and Ms. Everett will be able to agree, or whether it is fair to ask this of them. I ask Mr. Richter to file with the Court within two weeks, unless you tell me that it has to be three weeks, written submissions on costs. I give Ms.

Everett two weeks thereafter to file written submissions to the Court with a copy to Mr. Richter. [ 102 ] Obviously if the parties can resolve it between themselves, that is fine. If you do not, the Court will provide a written

decision on costs in letter form as soon as submissions are received. Warner, J.