J.A.B. v. H.W.C.,


2008 BCSC 644

Date: 20080521

Docket: E48968

Registry: Nanaimo







Before: The Honourable Madam Justice Lynn Smith

Reasons for Judgment

Counsel for the Plaintiff

B.R. Vining

Counsel for the Defendant

P.K. McMurchy

Date and Place of Trial:

November 5, 6, 7, 8, 9, 2007;
January 21, 22, 2008


Nanaimo, B.C.


[1]                J.A.B., the plaintiff, and H.W.C., the defendant, cohabited for a period of time beginning in 1989.  In this litigation, the plaintiff seeks restitution for unjust enrichment, either through a declaration of constructive trust or monetary compensation, and an order for spousal support.  The defendant seeks a declaration of resulting trust with respect to assets held in the joint names of the parties. 

Evidence and Findings of Fact

[2]                The plaintiff and defendant are both in their 70s.  Both had been married before they met.  They developed a relationship in 1988 or 1989.

[3]                The plaintiff was born and educated in England to the equivalent of a Grade 10 level.  She came to Canada in 1955 with her first husband whom she had married when she was about 19 years old.  She worked in his family business, a nursing home, until her third child was born in 1961.  After 13 years and four children they were divorced in 1968.

[4]                After the separation from her first husband, J.A.B. lived on spousal and child support and welfare.  As events unfolded, she raised the two girls, while the two boys lived with her former husband.

[5]                On October 30, 1970, the plaintiff married Mr. B.  He worked for B.C. Ferries and was a freelance carpenter.  She worked with him as his assistant on some of his construction projects.  They were together until September 30, 1986.  By the time they separated both of her daughters had grown up and moved out.  They divided some minimal assets and J.A.B. received spousal support of $100 per month for two years following their divorce in 1988.  She also obtained a share in Mr. B’s B.C. Ferries pension, payments from which she started to receive in 2004.

[6]                Immediately after the separation from Mr. B in 1986, the plaintiff agreed to be a live-in housekeeper for an older man who needed some assistance with housework, in exchange for free room and board.  After a time, she was unhappy with the arrangement and left, moving into a basement suite.  She was living there, receiving welfare and spousal support payments, when she met H.W.C. in early 1987.

[7]                H.W.C. was born in 1932.  He obtained a Grade 8 education, then worked in logging camps and on fish boats.  He married in 1961.  He began to work at the Harmac Mill in 1962 and continued to work there until he retired at the age of 65.  In March 1965 he purchased a 4.5 acre lot in Nanaimo for $2,000, and built a two-bedroom home there (the “home”).  It was registered in his sole name.  He and his wife had two children, L.C. in 1969 and I.C. in 1972.

[8]                When H.W.C. retired from employment at the mill in 1997, he was earning annually $74,207 in salary and overtime, and had built up a fairly significant entitlement in the company’s pension plan.

[9]                The parties met in the Nanaimo neighbourhood where they both lived and began a romantic relationship in the spring of 1988.

[10]            H.W.C. and his wife separated at the beginning of September 1988.  He testified that his wife had a drinking problem.  She left the home and he lived on his own for about seven months with his two boys who were then 19 and 16.

[11]            J.A.B. testified that H.W.C. would call her for advice when he was struggling with the situation and she would come over and help him; for example, she came over the week before Christmas in 1988, decorated the house and provided Christmas dinner for H.W.C. and his family.

[12]            Sometime around January or February 1989, H.W.C. asked J.A.B. to come and live with him.  J.A.B. testified that he said:  “Why don’t you just come and move in with me – you don’t have to live like this – come and move in and I’ll take care of you.”  H.W.C. testified that he could not recall any specific words, but he does agree that he invited her to come and live with him.

[13]            When J.A.B. moved in with H.W.C. around April 1, 1989, she said the house needed work and was not very clean; she said she therefore did a lot of cleaning.

[14]            H.W.C., by that time, was going through a divorce.  The proceedings were not straightforward, since H.W.C. had transferred funds to his two sons and those transfers were challenged by his wife, as will be described.

[15]            At his examination for discovery the defendant testified that when he entered the relationship with J.A.B. he had about $20,000 equity in the house, and owed money to six lawyers.  He said that a realtor told him the house was worth $53,000 in 1989, and increased to about $85,000 by 1990.  The assessed value of the house in 1991 and 1992 was $83,300.  H.W.C. put a $47,000 mortgage on the house to fulfill his obligations to his ex-wife, who had obtained a judgment against him for $72,000.

[16]            H.W.C. admitted on cross-examination that he transferred his truck into J.A.B.’s name around 1988 in order to avoid disclosing that asset in the dispute with his wife.

[17]            It emerged in the divorce proceedings that H.W.C. had transferred a significant amount of funds to his children (totalling about $190,000), beginning in about 1983 when his eldest son was 14 years old.  H.W.C.’s position was that the transfers were gifts.  After a trial, on August 10, 1990, the court ordered that 50% of the amount transferred to the children should vest in H.W.C.’s wife.  H.W.C.’s son I.C. restored some or all of the remaining 50% he had received to H.W.C., but his son L.C. did not.

[18]            H.W.C. agreed on cross-examination that he ended up with his son I.C.’s share and that he has not paid him back.  It is a fair inference that H.W.C. was not candid in his evidence to the court in 1990 and that the transfer to his sons was not a gift, but an attempt to keep the assets from his wife.

[19]            Aside from H.W.C.’s entitlement under his pension and about $20,000 equity in the home, and possibly some funds transferred back from his son (the evidence is unclear as to when such a transfer was made), neither party had significant assets when they entered into the relationship.

[20]            Neither testified as to any discussion about the financial arrangements between them when they began cohabitation.

[21]            The parties’ relationship can conveniently be divided into four phases:  (1) from the commencement of cohabitation to H.W.C.’s retirement; (2) from H.W.C.’s retirement to an incident involving J.A.B.’s granddaughter; (3) from that incident until August 2006 when H.W.C. delivered a letter to J.A.B.; (4) from the August 2006 letter to the present.

Phase 1:  April 1989 to October 1997

[22]            During this first phase of their relationship, the plaintiff and defendant lived together as husband and wife.  The defendant was still employed at the mill.  For almost two years, H.W.C.’s younger son I.C. lived with them and J.A.B. took care of both of them, and of the home.  H.W.C.’s son L.C. was only at home for a short time before he moved out.  After I.C. graduated from high school and began to work, H.W.C. insisted that he pay J.A.B. about $200 a month for the work she did for him.  She testified that she did not feel this was necessary, but went along with it.  I.C. moved out of the home in January 1991.

[23]            The mortgage on the house was paid off in 1993.  H.W.C. testified that he used the funds returned to him by his son I.C. in order to deal with that debt.  He did not specify the amount, and I.C. was not called to testify.

[24]            H.W.C. and J.A.B. had a fairly “traditional” division of responsibilities, with H.W.C. working full-time and paying for all household expenses, and J.A.B. doing the shopping, cooking, housework, laundry and (initially at least) the bulk of  the gardening.  They had a fairly substantial vegetable garden as well as a number of fruit trees.  J.A.B. would can and preserve the vegetables and fruits.  A photograph was produced of a tidy pantry with rows of glass jars, which J.A.B. testified are still in the basement of the house.  J.A.B. would run errands for H.W.C.  H.W.C. did some of the outdoor work and some household repairs and maintenance. 

[25]            H.W.C. set up a joint bank account into which he had J.A.B. deposit his paycheques, and from which she would pay the bills and make necessary household purchases.

[26]            H.W.C. agreed that J.A.B. kept the house in good condition and took care of him well.  He also agreed that she was honest and he had no complaints about her management of the money.

[27]            J.A.B. also tried to assist H.W.C. in other ways including doing some shopping for his clothing and getting him involved in social events.  He liked to live frugally, and she assisted him in that regard, for example, by taking the bus to go shopping, and preserving the fruits and vegetables from the garden.

[28]            J.A.B. does not have a driver’s licence and would take the bus into town to shop, or they would go together to shop on Friday nights, H.W.C. driving his truck.

[29]            There were no discussions at any time during the relationship about J.A.B. going on title to the house.  H.W.C. had always had the title in his sole name, including during his marriage.  J.A.B. agreed on cross-examination that she knew that it was H.W.C.’s view that it was his house since he had worked hard and paid for it.

[30]            The couple undertook some renovations on the house in 1992-93.  H.W.C. paid for all of the costs of the renovations.  According to H.W.C., J.A.B. helped out a bit and the project was designed to get the house fixed up the way she would like it.  According to J.A.B., she worked very hard alongside H.W.C. throughout the lengthy process, which was prolonged by a dispute with the maker of the kitchen cabinets.  H.W.C. was still working at the mill, but would do work on the home in the evenings and on weekends and holidays.

[31]            I find that J.A.B. did make a significant contribution to the renovation work.  She assisted with the selection of products and materials, she did some of the painting, and she assisted with other tasks such as stripping wax off hardwood floors, laying a new plywood sub-floor in the kitchen, and installing new fixtures and a shower surround in the bathroom.  She sewed new curtains and bedding.  When the exterior of the house was painted, she assisted with that project.

[32]            K.M., J.A.B.’s daughter, witnessed the work and the transformation.  She said that both her mother and H.W.C. are “handy”, that they did a good deal of the work themselves, and that her mother did everything she could to assist, including being the “gopher” and doing clean-up.

[33]            During this period the plaintiff and defendant took three trips to England, in 1989, 1993 and 1997.  H.W.C. paid for the airfare, and J.A.B.’s relatives provided accommodation during the visits.

[34]            The plaintiff testified that when they visited England in the summer of 1989 her mother was not well and that on the last day of their visit, the defendant told J.A.B.’s mother, “Don’t worry about [J.], I’ll take care of her.”

[35]            It appears that they had a good relationship with J.A.B.’s extended family.  K.M., whose evidence I accept as she was a straightforward and careful witness, testified that it was a close relationship, with her children viewing H.W.C. as their grandfather.  They also had a good relationship with H.W.C.’s son I.C. 

[36]            However, H.W.C. had become estranged from his son L.C.  L.C. had refused to come back to Canada from England to testify on his father’s behalf at his father and mother’s divorce trial and had declined to return the balance of the funds that had been transferred to him by his father.

[37]            J.A.B. had no income, but she did receive $2,000 in settlement proceeds in connection with a personal injury action in around 1989.  She began to receive pension payments of about $180 per month in 1996, when she turned 60.  J.A.B. did not put her funds into the joint account, but used them for her own needs.  It does not appear that there was any objection by H.W.C. to her doing so.

[38]            In April of 1993, at H.W.C.’s instance, the couple executed reciprocal wills.  Each declared the other as his or her common law spouse.  J.A.B.’s will provided that H.W.C. would have her estate after a bequest of her jewellery to her daughter K.M.  H.W.C.’s will provided that his son I.C. would have his personal effects and the contents of his workshop, that Mr. B would have the remaining household articles, that J.A.B. would have the right to reside in his house until her death, remarriage or new common-law relationship, or to request the sale of the house, and that J.A.B. would have 50% of his residuary estate, and I.C. or his children, and failing that K.M.’s children, would have the other half.

[39]            H.W.C. listed J.A.B. as his common law spouse on his tax returns for 1994, 1995 and 1996.  He said that 1994 was the first year that the government allowed common law spouses to be declared as dependents.  H.W.C. put J.A.B. on his medical plan and listed her as a beneficiary on his pension plan.

[40]            H.W.C. began to make contributions to RRSPs for J.A.B. in 1992, and did so through to 1996.  As a result, J.A.B. had a RRIF, as of trial, worth about $25,000 and had cashed in RRSPs in 2000 and 2001, worth a total of $7,200.

[41]            H.W.C. testified that they stopped having sexual relations in 1993 because J.A.B. had rejected his overtures in a way that was hurtful.  He said that from then on the relationship went downhill.  J.A.B.’s evidence was that sexual relations ceased later.  They continued to share a bed throughout this period.

[42]            During this time between the commencement of cohabitation in April 1989 and H.W.C.’s retirement in 1997, he worked a good deal of overtime.  It is fair to conclude that J.A.B. carried the responsibility for almost all of the household work.

[43]            The defendant retired in October 1997.  During his final years at work, he was earning a good income:  $41,795 in 1989, $49,904 in 1991, $50,820 in 1992, $57,920 in 1993, $62,332 in 1994, $67,829 in 1995, $68,879 in 1996 and $74,207 in 1997.

[44]            The assessed value of the house in 1997 was $127,300.

Phase 2:  October 1997 to June 1999

[45]            After the trip to England in the fall of 1997 the couple returned to Nanaimo and H.W.C. worked for a few more weeks before he retired at the age of 65.  The trip to England did not go well.  J.A.B. said it was because H.W.C. was so miserable about retiring. 

[46]            H.W.C. was not happy in retirement.  He testified that he felt like “a fish out of water”.  He did not enjoy having so much time off and being around the house.  They decided to get a wilderness trailer, in part because J.A.B. wanted to assist H.W.C. in finding an activity that would suit him in his retirement.  The trailer was purchased in April 1999 for $23,000, in their joint names.  (It appears that H.W.C. had wanted it to be in his name alone but the salesperson copied the two names from the joint account cheque, and J.A.B. prevailed in the dispute that followed, with the outcome that the trailer stayed in their joint names.)

[47]            They went camping in the trailer a few times, with mixed success.  The trailer has a double bed at the back that they shared, but there was no sexual activity.  H.W.C. also used the trailer to go hunting on a few occasions with some friends.  J.A.B. testified that she got the trailer set up and equipped, and that she would organize it and lay in food for the trips they took together and for H.W.C.’s hunting trips.

[48]            The couple continued to have regular contact with J.A.B.’s family, for example, dropping in to see K.M. and her children, and to spend holidays such as Christmas, Easter and Thanksgiving with them.  They also saw H.W.C.’s son I.C.

Phase 3:  June 1999 to August 2006

[49]            After the summer of 1999, the couple ceased to socialize with J.A.B.’s family.  Although I did not permit testimony as to the details (given the lack of relevance to the issues in this litigation), there was evidence that one of J.A.B.’s granddaughters (K.M.’s daughter), made a complaint about sexually inappropriate conduct by H.W.C.  This caused a serious rift in the family, indeed a rift between the plaintiff and her daughter for a time.  H.W.C. denies that anything inappropriate occurred.  Nevertheless, the incident appears to mark a turning point in the relationship between the parties.

[50]            J.A.B.’s evidence was that sexual relations between them ceased by 1999.  H.W.C. moved to a bedroom downstairs.

[51]            After 1999, H.W.C.’s son I.C. stopped coming over to the home.

[52]            After 2000, H.W.C. began to spend more and more time away from home.  When he was on the premises, J.A.B. cooked for him, did the laundry, and they shared meals together, at least some of the time.  It does not appear that they did much else together although they took a couple of vacations together in the trailer, with the last one being in 2000.  When the plaintiff would ask the defendant where he was going, she would be told that it was “none of your f**g business”.

[53]            For a while J.A.B. kept a calendar showing the amount of time they were spending under the same roof.  It recorded, for example, that in June 2001 H.W.C. was at the home 5 of 30 days, in July 2001 8 of 31 days, and in August 2001 13 of 31 days.  J.A.B. agreed on cross-examination that during the six-month period between June and December 2001, of the 180 days, 55 were spent under the same roof.  She also agreed that H.W.C.’s absences increased over the years.  She agreed that the amount of time they spent apart meant that they were not really sharing their lives together. 

[54]            When H.W.C. was at the home, he had his own bedroom downstairs.  J.A.B. said she would still help him if he needed help with his tinkering, and that she made the meals, did the cleaning and laundry.  H.W.C.’s evidence was that they had little to do with one another.

[55]            H.W.C. continued to pay for all of the household expenses with the exception of some food and personal items, which J.A.B. purchased with her own funds.

[56]            The assessed value of the house was $126,000 in 1999.

[57]            After February 2001, H.W.C. stopped depositing his pension cheque from employment into the joint account, although he did continue to deposit his Canada Pension Plan cheque into that account.

[58]            J.A.B. began to receive Old Age Pension in 2001.  She would deposit those cheques into her own account.

[59]            H.W.C. changed his will in 2002, making I.C. his sole beneficiary.  J.A.B. did not learn of this until the examination for discovery in this matter.

[60]            J.A.B. began to receive a share of her ex-husband Mr. B’s pension beginning in 2004.  She put the funds into her own bank account.

[61]            H.W.C. testified that sometime in this period they had discussions about her leaving the home, and that she said she would do so when her pensions began.

[62]            J.A.B. denied that such discussions occurred.  She testified, however, that sometimes they would have arguments in the course of which H.W.C. would say “The gate swings both ways, you can leave” and she would say “One of these days I will”.

[63]            H.W.C. testified that he spent a good deal of time in this period with the family of a friend, who have a gravel company and a farm.  He said he would go hunting and trail bike riding with his friend and would go and try out their heavy equipment.  He did not mention, until it was put to him in cross-examination, that he had a relationship for a time with his friend’s mother.

[64]            J.A.B. took trips to England in 2002, 2003, 2004, 2005 and 2006.  It appears that a relative paid for the 2002 trip, and she used her savings and some RRSPs to pay for the others, at an estimated cost of $3,000 - $3,500 each.

[65]            Sometime during this period H.W.C. withdrew $30,000-$45,000 cash from the bank and put it in his safety deposit box.  He did not disclose this on his March 2007 or November 2007 Financial Statements.

[66]            This is an appropriate juncture at which to describe the tax returns filed by the parties from 1998 on.

[67]            H.W.C. on his 1998 tax return stated “no spouse” and did the same in all ensuing years except 2000, in which he marked “separated”.  In 1997, J.A.B. began claiming her own income on a tax return that H.W.C. prepared.  On J.A.B.’s tax return in 1998 the box for “divorced” was checked.  In 1999 her return said “living common law”, and from 2000 on it said “divorced”.  The plaintiff testified that H.W.C. did the tax returns for her in 1998 and 1999, and she did her own (with some help from a Seniors Centre) after that.  She said she considered herself divorced from her husband Mr. B.  She also said that she thought H.W.C. wanted her to describe herself as “divorced”.  At her examination for discovery, when asked about her 2003 tax return on which she had ticked off “divorced”, she said it was “because [H.] was already doing his own thing then, he had divorced me”, and that from then on she figured she was divorced.

Phase 4:  August 2006 to Date of Trial

[68]            On August 1, 2006, H.W.C. delivered a letter to J.A.B. that read as follows:

Dear [J.].

I am writing to you regarding your saying you are moving out of my home at […].

You have been saying for about 7 years that you were going to move out.

I know you are not happy here, and I am definitely not happy also.

On July 28/2006 you said that you would make arrangements to move out, after you return from your trip to England.

You said that you are going to England on August 24/2006 and returning on October 20/2006.

So I am asking you to please make arrangements to be moved out by November 30th 2006.

I would also hope that this would all happen without any bad feelings towards each of us.

I would also help you in moving all your belongings and would hope you will be much happier when you are on your own.

I am asking you to please give me in writing your response to my letter by August 15/2006.

If I do not hear from you in writing by August 15/2006 I will feel or assume you are in agreement with what I have wrote to you in my letter of August 1/2006.

Your (sic) Truly


[69]            H.W.C., in the letter, refers to previous discussions about J.A.B. moving out of the house, and he testified that they began sometime in this period.  I noted the lack of clarity in J.A.B.’s answers when cross-examined about whether such discussions occurred, and find that there were discussions between them over the years, in which J.A.B. indicated her intention to leave the property at some future date, possibly with reference to her forthcoming pension income.  It is implausible that such discussions would not have occurred, given the circumstances:  the ongoing erosion and crumbling of the relationship; H.W.C.’s having become involved with another woman; and H.W.C. having acquired the house before they met.

[70]            J.A.B. testified that she was shocked by the letter, and felt that H.W.C.’s timing was terrible since she was about to go to England.  She told H.W.C. she needed more time, and he agreed to let her stay longer.  This is confirmed in his letter of August 14, 2006:

Dear [J.]

Regarding you moving out of my home at […].

My letter of August 1st 2006, I asked you to please make arrangements to move out by November 30th 2006. 

On August 14th 2006 you asked me if you could have more time to move out.  You asked if you could have till Dec 31st 2006.

I have no problem with that.  You needing more time to move out.

I told you I was flexible in giving you more time.

I hope your move will go well, and when you get settle in your new home, you will be much happier in the years to come.

Also have a great time in England.

Your (sic) Truly


[71]            H.W.C. delivered a third letter on New Year’s Eve, 2006, which is dated December 20.  That letter refers to previous discussions and letters and states a deadline of January 31, 2007 for J.A.B. to move out. 

[72]            J.A.B. commenced this action on January 4, 2007. 

[73]            J.A.B. testified that she has remained in the house to this date because she could not find anywhere to go.  Through her counsel at trial, she conceded that she will have to leave the house and that she is prepared to do so.

[74]            H.W.C. has been living elsewhere since sometime in 2006 or 2007 as I understand it and has come back to the house only once or twice.  He has entered into a new relationship.  He has continued to pay some of the expenses of the home but in May 2007 he turned off the heat and the cable service.  J.A.B. has had the heat restored.  She testified that they had discussed in the last year that she would help with payment for the utilities, but she had insisted on receipts, which he refused to provide.

[75]            The assessed value of the house in 2006 was $184,400 and in 2007 it was $251,000.  Its appraised value as of April 2, 2007 was $296,000.

Current Financial Situation of the Parties

[76]            J.A.B.’s current income is around $19,400 per year; H.W.C. is receiving around $30,700.

[77]            So far as financial assets go, as of October 2007, the plaintiff had savings of around $7,000 and a RRIF worth $25,000.  She had cashed in RRSPs and depleted her savings between 2000 and the date of trial. 

[78]            H.W.C. had savings of around $3,600; the evidence was unclear as to how much of the cash in the safety deposit box remains.  H.W.C. has RRIFs worth about $62,000.  The truck and the trailer are worth possibly $20,000.  The house was appraised at $296,000 as of April 2, 2007 and is probably worth somewhat more now, one year later.

[79]            The parties have agreed on a division of their household effects.

Positions of the Parties

The Plaintiff

[80]            Counsel for the plaintiff submitted that the parties were in a marriage-like relationship from April 1989 to August 1, 2006 (when H.W.C. handed J.A.B. the letter).  Thus, the plaintiff’s position is that there was a marriage-like relationship for 17 years and 4 months.

[81]            On the basis of unjust enrichment, the plaintiff seeks 50% of the assets in the defendant’s name and 50% of his pension for the seven years they were together while he was still working.  She bases that claim on the enrichment she provided to him through domestic work, assistance with renovations, gardening, preserving, and taking care of his sons (for a time), and on her legitimate expectations flowing from his promises, his transfer of RRSPs to her, and the mutual wills.

[82]            Mr. Vining for the plaintiff argued that the house was worth about $67,500 when J.A.B. moved in and is now worth about $296,000.  He argued that H.W.C.’s equity in the house of about $20,000 at the time the parties began to cohabit was so minimal that he need not be given credit for it today.  Further, the plaintiff’s position is that the evidence about where the funds came from to pay off the mortgage in 1993 is unclear and that it is fair to infer that the plaintiff contributed to the savings which made that possible. 

[83]            Counsel for the plaintiff submitted that the other assets consist of the trailer, which is worth about $13,000, a truck worth about $10,000, and cash which the defendant removed from his safety deposit box totalling about $28,000.

[84]            Mr. Vining submits that the plaintiff should receive spousal support in the sum of $300 a month, commencing February 1, 2008, with liberty to apply to readjust that amount when it is known how much J.A.B. will receive from H.W.C.’s pension.  He bases that submission on the Spousal Support Advisory Guidelines, which give a range of $242 to $322 for a relationship of 17 years, putting the defendant’s income at $30,701 and the plaintiff’s income at $19,220.

The Defendant

[85]            The defendant’s position is that there was a marriage-like relationship between April 1989 and sometime in 1999 when sexual relations had ceased, the parties moved to different parts of the house and no longer socialized together.  Thus, the defendant’s position is that there was a 10-year relationship.  The defendant’s position is that the spousal support claim is out of time due to the requirement under the FRA that it be brought within one year of the separation between the parties.

[86]            Mr. McMurchy for the defendant submitted that the unjust enrichment claim cannot succeed.  He argued that the plaintiff has not shown deprivation and in fact that the plaintiff’s financial situation has markedly improved since she moved in with the defendant.  He argued that the plaintiff did not forego opportunities and that there is no evidence that she contributed any of her own funds towards the joint expenses at any time.

[87]            The defendant’s position is that the renovations in 1993 did not substantially enhance the value of the home and that any contribution J.A.B. made to them is negligible with respect to the current value.

[88]            Mr. McMurchy argued that the plaintiff has not shown an absence of juristic reason or an injustice in leaving the assets in the defendant’s name, and that the court should not overlook the value of the benefits the plaintiff received.

[89]            With respect to the value of the plaintiff’s spousal services received by the defendant, Mr. McMurchy argued those services were valued at the cost of free room and board, given that the plaintiff was previously doing housekeeping for someone else on that basis.  In addition, he pointed to the fact that J.A.B. received assets (RRSPs) totalling more than $32,000 during the relationship as well as free room and board for seven years after the marriage-like relationship ended.

[90]            As for legitimate expectations, counsel for the defendant submitted that there were none, since the parties chose not to marry, they did not make a lifetime commitment, she kept her finances separate throughout, and she did not testify that she expected an interest in the property.

[91]            The defendant’s position is that the plaintiff has not shown a direct link between the services, the corresponding deprivation if any, and the alleged entitlement to pension benefits.

[92]            With respect to the defendant’s resulting trust claim, Mr. McMurchy argued that since H.W.C. made all of the financial contributions to the purchase of the trailer and to the funds in the joint accounts, there should be a declaration that those jointly-held assets are his alone.


1.         Was the defendant unjustly enriched by the plaintiff and if so, is the plaintiff entitled to an interest in real property, pension or other assets in the defendant’s name, or to monetary compensation?

(a)        What are the implications of Walsh v. Bona for the general approach to claims based on common law relationships?

[93]            Although there has been some suggestion that Walsh v. Bona signals a change in policy direction with respect to common law relationships, it must be recalled that the issue in Walsh v. Bona was the constitutionality of provincial legislation restricting marital property division claims to those who were legally married.  The Supreme Court of Canada found that the legislative restriction did not infringe s. 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.  The Court confirmed that the law of constructive trust and unjust enrichment is available to unmarried parties to remedy any inequities arising from the dissolution of their relationship (at para. 61).

[94]            Walsh v. Bona makes clear that there is not to be a presumed 50% division of shared assets in cases where parties have chosen not to marry.  Instead, possible inequities arising from the relationship breakdown are addressed by the law of unjust enrichment and constructive trust.  The principles to be followed are set out in Pettkus v. Becker, [1980] 2 S.C.R. 834, Sorochan v. Sorochan, [1986] 2 S.C.R. 38, and Peter v. Beblow, [1993] 1 S.C.R. 980.  Unjust enrichment occurs where one party has acquired gain corresponding to another party’s deprivation, and there is an absence of juristic reason for the enrichment and deprivation.

[95]            In assessing a claim of unjust enrichment arising from a relationship breakdown, it is relevant to consider the reasonable expectations the parties had of the relationship.  As part of that assessment, it is relevant that the parties have chosen not to marry.  It is also relevant if the common law relationship is a “traditional” one in the sense that one spouse has sacrificed his or her economic independence for the advancement of the relationship:  Smith v. Turner, 2004 BCSC 1034; Ford v. Werden, (1997), 27 B.C.L.R. (3d) 169 (C.A.) at para. 16-17.

[96]            Where monetary compensation is inadequate and there is a link between an unjust enrichment and some property, a constructive trust can be applied over the property to redress the unjust enrichment.

(b)       The Law of Unjust Enrichment and Constructive Trust:  General Principles

[97]            The analysis of claims of unjust enrichment involves three stages:  (1) was the defendant enriched by the plaintiff; (2) was the plaintiff correspondingly deprived by that enrichment; and (3) was there an absence of “juristic reason” for the enrichment.

[98]            On the first two parts of the unjust enrichment analysis, gain and deprivation, the Supreme Court of Canada has consistently taken a straightforward economic approach.  The court has recognized that household services constitute a gain when they are received, and constitute a deprivation when they are provided:  Peter v. Beblow at 990.

[99]            On the question of whether an enrichment obtained by receiving household services is unjust (that is, whether there is an absence of “juristic reason” for it), the fundamental concern is the legitimate expectation of the parties:  Peter v. Beblow at 990, citing Pettkus v. Becker.  In Peter v. Beblow, the court noted that in family cases, the determination of legitimate expectations may raise the following subsidiary questions (at 990-91):

(i) Did the plaintiff confer the benefit as a valid gift or in pursuance of a valid common law, equitable or statutory obligation which he or she owed to the defendant?

(ii) Did the plaintiff submit to, or compromise, the defendant's honest claim?

(iii) Does public policy support the enrichment?

[100]        In regard to the first question, the court stated at 991 that a common law spouse generally owes no duty at common law, in equity or by statute to perform work or services for her partner.  The court observed at 991-92 that the existence of an obligation or gift must be supported in the evidence of the circumstances of the parties.

[101]        The court did not address the second question in its decision, but it rests upon the principle that a defendant should not be expected to provide restitution for a benefit that was conferred on him to settle an honest claim.

[102]        Regarding the third question and public policy, the Supreme Court of Canada stated that indirect or non-financial contributions, such as household services, may be of equal value to financial contributions and deserve legal recognition, and parties who render them are entitled to compensation:  Peter v. Beblow at 992-94.

[103]        At the same time, as will be discussed below, the benefits received by the party who has made non-financial contributions must also be taken into account.

[104]        In Peter v. Beblow the court held at 997 that in order for a constructive trust to be found to be the appropriate remedy for unjust enrichment, in a family case as in other cases, monetary compensation must be inadequate and there must be a link between the services rendered and the property in which the trust is claimed.  The question (per Dickson J. in Pettkus v. Becker, supra, at 852) is whether “[the plaintiff's] contribution [was] sufficiently substantial and direct as to entitle her to a portion of the profits realized upon sale of the ... property.”  Once this threshold is met, the amount of the contribution governs the extent of the constructive trust:  Peter v. Beblow at 997.

[105]        The value of the constructive trust is to be determined on the basis of the actual value of the shared property and the portion of the value of that property that is attributable to the claimant’s efforts.  The extent of the trust reflects the court's best estimate of what is fair having regard to the contribution that  the claimant's services have made to the value surviving, bearing in mind the practical difficulty of calculating with mathematical precision the value of particular contributions to the family property:  Peter v. Beblow at 997-999.

[106]        I will proceed to discuss the legal principles in more detail in the context of the analysis specific to the facts of this case, beginning with the question of the length of the marriage-like relationship.

(c)        What was the length of the marriage-like relationship?

[107]        I have already described the parties’ positions.  It is conceded by the defendant that there was a marriage-like relationship; the dispute relates to its length. 

[108]        Was this a 17-year relationship (as the plaintiff asserts) or was it a 10-year relationship (the defendant’s position)?

[109]        In addressing this question, I take into account the factors identified by the Court of Appeal in Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264 (C.A.) at 268 (with reference to a spousal support claim):

Did the couple refer to themselves, while talking to their friends as husband wife or as spouses, or in some equivalent way that recognized a long-term commitment?  Did they share legal rights to their living accommodation?  Did they share their property?  Did they share finances and their bank accounts?  Did they share their vacations?  In short, did they share their lives.  And, perhaps most importantly of all, did one of them surrender financial independence and become economically dependent on the other, in accordance with a mutual arrangement.

[110]        More globally, Lambert J.A. wrote at 268 that the court should ask whether the parties considered themselves committed to life-long financial and moral support of each other:

… The purpose of the legislative scheme is to impose on an unmarried couple the same obligations under s. 57 as are voluntarily undertaken by a married couple.  So I would ask whether the unmarried couple’s relationship was like the relationship of the married couple in that the unmarried couple have shown that they have voluntarily embraced the permanent support obligations of s. 57.  If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been “Yes”, then they are living together as husband and wife.  If the answer would have been “no”, then they may be living together, but not as husband and wife.

[111]        In Conquergood v. Dalfort, 2007 BCSC 1556, Shabbits J. at para. 46, finding that the parties lived as marriage partners, stated:

The parties maintained financial independence, but every other aspect of their relationship bore the hallmarks of a marriage-like relationship.  This included living together, an exclusive sexual relationship, joint recreational activities, joint vacations, and joint entertaining.

[112]        A direct statement by a party that he or she regards the relationship as ended is a relevant factor:  Eisener v. Baker, 2007 BCSC 83 at paras. 35-36, citing Thompson v. Floyd, 2001 BCCA 78, 86 B.C.L.R. (3d) 56; see also Paff v. Postnikoff, 2007 BCSC 90 at paras. 11-13.  The fact that parties ceased living under the same roof is relevant but not determinative:  the key issue is when the “marriage-like” quality of the relationship ended.  Russell J. in Eisener v. Baker stated at para. 36:

The key factors in determining when a couple have ceased living in a marriage-like relationship include the absence of sexual relations, a clear statement by one of the parties of his or her desire to terminate the relationship, physical separation of the parties into different rooms of the same house or different residences, or the couple no longer presenting themselves to the outside world as a couple.  Additionally, the method in which the spouses filed income tax returns may be a relevant consideration… and provides objective evidence of whether a person considered himself or herself to be involved in a marriage-like relationship.

[113]        By 2001, the parties in this case were spending the majority of their time separately, and were living in separate parts of the house when they were there at the same time.  They ceased to refer to each other on their income tax returns.  They had ceased to socialize together.  However, they continued to share meals when H.W.C. was present, and J.A.B. continued to do the housework and laundry for him.  Further, H.W.C. continued to provide financial support to J.A.B. in that she continued to have access to the joint account, and she continued to be the beneficiary of an interest in the home under his will.

[114]        There is no clear evidence as to when either of them told the other that they thought the relationship was over, although H.W.C. initiated discussions at some point about J.A.B. needing to find a new place to live.  H.W.C., to his credit, did not take abrupt steps to cut off support for J.A.B. or remove her from the home.  He eventually gave her a letter in August 2006 confirming the earlier discussions and his view that they had gone their separate ways.

[115]        Just as not all marriages flourish, marriage-like relationships are not all healthy.  The marriage-like relationship between the parties in this case ceased to be healthy after 1999, but it remained alive for some time after that.  However, at some point in the evolution from a relationship that was clearly marriage-like (from 1989 to 1999) to the non-relationship between the parties today, the relationship ceased to be marriage-like.  J.A.B. testified at her examination for discovery that she considered herself divorced by 2003.  H.W.C. said that he considered the relationship ended as of 1999.

[116]        It is necessary to identify a point at which the marriage-like relationship ended.  In all of the circumstances, including (on the one hand) the ongoing financial support, part-time cohabitation, and H.W.C.’s disposition of his estate in his will, and (on the other hand) the end of sharing a bedroom in 1999, the parties’ statements on the tax returns beginning in 1998, the change in H.W.C.’s will in 2002 and the testimony of the parties as to when they considered the relationship had ended, I find that the marriage-like relationship terminated by January 1, 2003.

(d)       At what stage in the analysis should the value of benefits received by the plaintiff be considered?

[117]        Counsel for the defendant urged this Court to apply a “value for benefits” analysis to determine whether the plaintiff has suffered a deprivation, that is, an analysis considering whether the contributions of the claimant were offset by benefits received during the relationship.  Counsel noted that the analysis has sometimes been applied at the first two stages, to determine whether there has been an enrichment and deprivation, and at other times has been applied under the rubric of juristic reason. 

[118]        In Ford v. Werden (1996), 27 B.C.L.R. (3d) 169 (C.A.) at paras. 13-14, Newbury J.A. expressed doubt that the majority of the Supreme Court of Canada in Peter v. Beblow intended to lay down as a rule that spousal services must generally be assumed to have benefited one party to the deprivation of the other.  The court addressed the problem of how to treat reciprocal exchanges of benefits in non-traditional relationships as a matter of determining whether there was an absence of juristic reason for the enrichment, stating at paras. 16-17:

In any event, the fact that “spousal services” can be and are now regarded by Canadian courts as valuable and compensable does not in my view remove the necessity of determining on the facts of each case whether there is no juristic reason for the enrichment -- i.e., whether the enrichment is "unjust" or, in the terms advanced by Cory, J., whether one party's expectation to share in the other's property is a “legitimate” one.  In situations involving “traditional” common law marriages, these are not difficult questions – the court is generally confronted with one party (usually a woman) who has subverted her economic independence to the greater good of the family, foregoing opportunities to maximize her own income stream or asset base in the expectation that the relationship will last and she will be in a position to share in the income stream of her husband and in the appreciation of his assets.  The courts rightly regard it as unjust to permit the husband thereafter to walk away from the relationship, taking with him all his assets and his entire income stream, enlarged or improved as it is by the common law wife’s efforts.

It is a different matter, however, to apply these assumptions to relationships that are not the stereotypical or “traditional” type of common law marriage.  If one considers the three factors suggested by McLachlin, J. at p. 990-1 of Peter v. Beblow, distinct differences are apparent.  In these non-traditional relationships, each party confers “benefits” on the other without expecting to be paid -- except perhaps in kind by reciprocal services. The very nature of the relationship as a kind of partnership between two independent persons necessarily implies mutual duties and obligations that for legal purposes might be described as “gifts” in the sense that they are rendered outside of the realm of contractual, common law, equitable or statutory obligation and without a known expectation of compensation. A clearer example (in the sense that it is less clouded with moral and policy considerations) of such a relationship occurs where two persons room together and divide the household tasks between them: the law does not, as far as I know, permit one to sue the other for the “benefits” conferred, even though they are not conferred pursuant to a legal obligation. In this context, neither person expects to compensate or to be compensated.

[119]        It is apparent that Newbury J.A. applied the considerations underlying the “value for benefits” analysis to the question of lack of juristic reason, and not to the questions of enrichment and deprivation.  At para. 18 she wrote:

Since there is no question concerning a compromise of the defendant's claim in this case, I move to the third factor mentioned by McLachlin, J. -- whether public policy favours some form of restitution. In British Columbia, the legislature has enacted the Family Relations Act to provide married persons with property claims and interests in "family property". This statute presumes that equal entitlement will generally be the fair resolution of those claims. The legislature has not done the same with respect to common law spouses or other adults living together. Nor has a rule developed at common law that whenever two adults live together, they thereby acquire claims to or interests in each other's property. Overall, it is my view that there is no "unjustness" that needs to be remedied in the circumstances by the imposition of a special rule or presumption not found in the general law of unjust enrichment, and that ultimately, the analysis should involve a close examination of the facts in each case.

[120]        In Thomas v. Fenton, 2006 BCCA 299, 57 B.C.L.R. (4th) 204, Kirkpatrick J.A. concluded that it was an error for the trial judge to fail to give adequate consideration to the benefits conferred on Mr. Thomas, who had lived with the defendant Ms. Fenton for 30 years, and noted that these benefits, properly considered, would support a conclusion that there was a juristic reason for Ms. Fenton’s enrichment (para. 25):

In my opinion, the trial judge erred in failing to give adequate consideration to the benefits conferred on Mr. Thomas by Ms. Fenton.  It is manifestly clear that Ms. Fenton bestowed far more on Mr. Thomas than he bestowed on her.  Had the trial judge undertaken the requisite global analysis of the circumstances of these parties, I think he would have concluded that there was a juristic reason for Ms. Fenton's enrichment and that the claim for unjust enrichment could not succeed.

[121]        Kirkpatrick J.A. did not consider the reciprocal benefits in relation to the question of deprivation.

[122]        The decision of the Court of Appeal in Pickelein v. Gillmore (1997), 30 B.C.L.R. (3d) 44 (C.A.), indicates a similar approach.  Huddart J.A. stated at paras. 13 and 14:

… The respondent considers that equal contributions should be set off against each other, without consequence, certainly without a finding of unjust enrichment. This will be the effective result whenever contributions are equal and measured using the value received approach. Difficulty arises, however, in a case such as this, when the current market value of the assets to which contributions were made differs from the total value contributed, not only by the parties, but also by others. In such circumstances, the value received approach is an inadequate measure and regard must be had to the value survived from the contributions for which compensation is being sought, whether or not a proprietary remedy is awarded.  In my view, the trial judge did not err in failing to set off the contributions against each other because they were equal.  His error was in failing to consider the value survived approach to valuation of the respective enrichments later in his analysis when the appropriate remedy for unjust enrichment fell to be determined.  At this stage of the analysis, the only issues to be resolved are whether the claimant has proved an enrichment, a corresponding deprivation, and the absence of a juristic reason for that deprivation.

Where there are mutual claims with regard to multiple assets and monetary compensation is determined to be appropriate, the claims may be set off, one against the other.  This does not mean that the analysis of a claim for unjust enrichment should be collapsed into a valuation of the contributions of the claimant. Such a process would encourage the tendency against which Madam Justice McLachlin cautioned in the passage from her reasons in Peter that I quoted at para. It would also permit undue emphasis being placed on the detriment while minimizing the enrichment. The principles underlying the doctrine of unjust enrichment would have been forgotten. It cannot be assumed that the value of the detriment must equal the value of the enrichment, particularly when time elapses between the detriment and the measuring of the enrichment.

[123]        On the other hand, in Toth v. de Frias (1996), 78 B.C.A.C. 34, Donald J.A. upheld the decision of a trial judge to deny a claim in unjust enrichment.  Donald J.A. rejected the appellant’s contention that the trial judge ignored the appellant’s contribution of household services and noted that the trial judge’s decision “rests on the finding that the benefits derived by the plaintiff in the relationship offset her contributions such that in the end no deprivation was established” (para. 22).

[124]        Counsel for the defendant also referred to Conquergood v. Dalfort, 2007 BCSC 1556, Schultz v. Landry, 2007 BCSC 994 and Kauwell v. Melnyk, 2007 BCSC 485 as supporting the “value for benefits” approach at the stage of determining whether there has been enrichment or deprivation.  I have also had my attention drawn to Fuller v. Matthews, 2007 BCSC 444.

[125]        In Massincaud v. Logie, 2005 BCSC 1665, the court acknowledged that “in Toth v. de Frias (1996), 78 B.C.A.C. 34, [1996] B.C.J. No. 1620, the Court of Appeal approved the legitimacy of approaching the enrichment/deprivation issue by examining the benefits received by the party claiming the deprivation” (para. 44).  However, after a thorough review of the authorities, Ballance J. concluded at para. 51 that the benefits conferred on a party claiming in unjust enrichment should be considered with respect to the lack of juristic reason:

The authorities support taking into account the benefits conferred by Mr. D.G.L. in assessing whether there has been an enrichment or deprivation, or if a deprivation were found or assumed, taken into account to offset or nullify the legal ramifications of such deprivation under consideration of juristic reason.  In my view, it is preferable doctrinally to consider the benefits conferred upon the plaintiff under the lack of juristic reason analysis.  Either way, the benefits visited upon Ms. S.E.M. by Mr. D.G.L. must not be overlooked in balancing whether an injustice has occurred.  The court is to examine the totality of what has passed between the parties in order to assess whether an injustice has occurred.

[emphasis added]

[126]        The conclusion in Massincaud that the benefits conferred on a party claiming in unjust enrichment should be considered under the lack of juristic reason analysis is consistent with the approach recently taken by the Court of Appeal in Thomas v. Fenton and with the Court of Appeal’s direction indicated earlier in Pickelein v. Gillmore.  I will therefore consider the benefits bestowed on the plaintiff when determining whether the plaintiff has established an absence of juristic reason for the defendant’s enrichment and when considering the question of remedy.

(e)       Was the defendant enriched and the plaintiff correspondingly deprived?

[127]        The value of homemaking services has been recognized in the law:  Pettkus v. Becker at 849, Sorochan at paras. 11-13, and Peter v. Beblow at 989 and 993‑94.

[128]        It is clear that there is no special rule or presumption that whenever two adults live together, they thereby acquire claims to or interests in each other’s property.  Further, there is no special status attached to spousal services that would automatically give rise to a claim in unjust enrichment:  Ford v. Werden, para. 19.

[129]        During the first phase of the relationship, H.W.C. worked full-time (and did a great deal of overtime at the mill) and J.A.B. did all or virtually all of the work in maintaining the household.  H.W.C. acknowledged that J.A.B. did a good job at keeping the house clean, growing and preserving vegetables and fruits, and managing the household affairs.  He said she was a good cook.  He enjoyed the benefits of the social activities and events with family that she organized.

[130]        J.A.B. also made significant contributions to the upkeep and improvement of the house and property, in particular with respect to the renovations in 1993.

[131]        In the second phase, after H.W.C.’s retirement, although the relationship started to break down, it seems that J.A.B. still did the bulk of the household chores.  The defendant had the benefit of her work in the home, management of the household finances, the shopping, and so on.  He had the benefit of her assistance in organizing his life in retirement.

[132]        Going into the third phase (from June 1999 to August 2006), at least from 2001 on, the defendant was often absent from the home.  The plaintiff did the cleaning, cooking and shopping, but much of the work would have been for her own benefit.  Although the benefit received by the defendant during the third phase was less than the benefit he received during the first two phases, on a straightforward economic view of the matter, I find that the defendant was enriched by the plaintiff’s efforts during some of this period.

[133]        In the fourth phase, from August 2006 to the present, when the defendant was present at the home only very rarely, any enrichment was nominal (perhaps comparable to that received from a house-sitter).

[134]        Although J.A.B. did not give up lucrative employment or other income-earning opportunities in order to take care of H.W.C. and his home, she did give up some opportunities.  She could possibly have found other employment in caregiving or housekeeping.  She could possibly have found someone else with whom to share her life.  By choosing to devote her efforts to providing household services to H.W.C. (and his son, for a time) without remuneration, J.A.B. was deprived of the economic value of her labour and the freedom to pursue other opportunities.

[135]        I find that the defendant was enriched, and the plaintiff correspondingly deprived, in varying degrees over time, as I have described.  I will deal later with the quantification of the enrichment and with the benefits the plaintiff received during the marriage-like relationship and after it ended.

(f)        Is there a juristic reason for the enrichment and corresponding deprivation?

[136]        I find that there was no juristic reason for the enrichment of the defendant and the corresponding deprivation of the plaintiff in the first and second phases of their relationship, so long as its marriage-like nature continued, up to January 1, 2003.

[137]        The facts here are very different from those in Thomas v. Fenton, where the services provided by the plaintiff were said to be “modest”, and the parties had not intertwined their finances.  In this case, the plaintiff rendered significant services and the parties did merge their financial affairs. 

[138]        During the first (pre-retirement) phase, H.W.C. -- through his will (in which he provided for J.A.B. to have an interest in the house upon his death), the creation of the RRSPs to provide for J.A.B.’s retirement, the joint account in which he had J.A.B. deposit his paycheques and pay the bills, the naming of her as the beneficiary under his pension, and in other ways -- created legitimate expectations in J.A.B. that she would share in his financial future.  Correspondingly, by making him the sole residuary legatee under her will, J.A.B. created a legitimate expectation in H.W.C. that he would share in her financial future.

[139]        Into the third phase of the parties’ relationship, up to the date when its marriage-like nature ended, the expectation that each would share in the other’s financial future and that J.A.B. would receive some benefit in return for her labour was not disturbed.  J.A.B.’s enrichment of H.W.C. continued on the same footing as it did during the first phase of their relationship.

[140]        J.A.B. was at no time under an obligation to perform the domestic work, gardening, preserving, home renovation work, and home management work that she did.  There is no evidence of an agreement between the parties that she would be H.W.C.’s housekeeper, household manager, gardener and renovations assistant in return for room and board.  Instead, the evidence is that J.A.B. and H.W.C. entered into a marriage-like relationship in which each assumed a role in pursuit of a joint enterprise.

[141]        I do not accept the defendant’s argument that the plaintiff’s services should be valued at the level of room and board simply because of a brief time in 1988 when she rendered services as a housekeeper in return for room and board.  The evidence suggests that J.A.B. was probably somewhat desperate at that point, having just separated from her husband and having nowhere to live.  Further, the arrangement she made, which gave her a place to live in return for housekeeping services, did not give rise to an expectation that she would share a financial future with the person to whom she was providing these services.

[142]        It is clear on the evidence regarding the actions of both parties that their expectation of a shared financial future eventually faded.  After February of 2001, H.W.C. stopped depositing his pension cheque from employment to the joint account.  In 2002, H.W.C. changed his will, making I.C. his sole beneficiary.  Around 2000, J.A.B. began to take charge of her own finances, preparing her own tax returns and looking after her RRSPs.  They ceased to refer to each other as common law spouses on income tax returns.  Beginning in 2004, J.A.B. began to receive a share of her ex-husband Mr. B’s pension, and put the funds into her own bank account.  I have found that from at least 2003 or 2004, the parties discussed J.A.B. leaving the house.  After then, J.A.B. remained in the house only because H.W.C. held back from taking steps to force her to leave.

[143]        It is difficult, and indeed somewhat artificial, to determine precisely the point in time at which J.A.B.’s enrichment of H.W.C. can no longer be said to have been given with the expectation that they would share in the accumulation of wealth.  In my view, the evidence of changes that occurred to their personal and financial arrangements supports a finding that any enrichment ceased to be unjust at January 1, 2003.  From that point on, when there was no longer a marriage-like relationship and H.W.C. was receiving only a marginal benefit, the benefits J.A.B. received outweighed any that she rendered by continuing to maintain the home, cook the occasional meal and do some laundry for H.W.C. when he was on the premises.

[144]        I find that the plaintiff is entitled to a remedy for the unjust enrichment of the defendant through the increase in the value of his assets, resulting from her unpaid work, from 1989 to 2003.  That remedy should take into account the benefits J.A.B. received during the marriage-like relationship and later, after it had ended.

(g)       What is the appropriate remedy?

[145]        It is possible to base a remedy either upon the “value received” by the party who was enriched, or upon the “value survived”, that is, the extent to which the assets of the party who was enriched increased in value during the period of cohabitation.  The question is whether the plaintiff’s contribution was sufficiently substantial and direct as to entitle her to a portion of the increased value of the property (Pettkus v. Becker at 852; Peter v. Beblow at 997).  A minor or indirect contribution is insufficient.

[146]        The “value survived” approach is usually appropriate in cases where the parties have had the expectation that they would share in whatever wealth they created during their relationship, rather than having had the expectation that one would compensate the other for the value of the labour that she or he provided.

[147]        Between 1989 and 2003, in addition to doing virtually all of the work required to maintain the household, J.A.B. assisted over about a one-year period with the renovation work that preserved and significantly improved the home, and she took responsibility for the planting and maintenance of the garden.  Further, she assisted H.W.C. in preserving and building up his assets by freeing him from household responsibilities, enabling him to work a significant amount of overtime, and assisting him in living frugally.  The parties’ expectation was of a shared financial future, living together on H.W.C.’s property and drawing support together from H.W.C.’s assets.

[148]        In a marriage-like relationship such as that which subsisted between the parties here for close to 14 years, in which the plaintiff made a substantial direct and indirect contribution to the defendant’s accumulation of assets, the “value received” approach would be inappropriate and the “value survived” approach must be taken.

[149]        The date at which to assess the value of the parties’ contributions for this purpose is the end of cohabitation, not the date of trial:  Smith v. Turner, 2004 BCSC 1034, 35 B.C.L.R. (4th) 336; Harrison v. Kalinocha (1994) 90 B.C.L.R. (2d) 273 (C.A.); Pickelein v. Gillmore.  I find that J.A.B. is entitled to share in the increase of the value of the home during the period of the cohabitation in a marriage-like relationship between April 1, 1989 and January 1, 2003.

[150]        H.W.C. had $20,000 equity in the home when the parties began to live together.  He had found the property and built the house before the parties met.  He made all of the tax and other payments (such as home insurance).  H.W.C. paid to remove the mortgage and obtain clear title to the house in 1993 (there is no evidence as to the amount aside from the face value of the mortgage, which was $47,000), and he paid for the cost of the renovations that same year (again there was no evidence as to the amount).  He also did some physical work on the home, including extensive work on the renovations.

[151]        J.A.B. received benefits during the relationship up to 2003, including accommodation and support for her living expenses, RRSP contributions and the ability to accumulate some savings.  She received further benefits after that date in that she had rent-free accommodation and some continued support for living expenses.

[152]        I find that the value of H.W.C.’s equity in the house in 2003 was approximately $170,000, given that its assessed value in 1999 was $126,000 and its assessed value in 2006 was $184,400.  (There is some evidence that the assessed value is somewhat lower than market value.  For example, the assessed value in 2007 was $251,000 and the appraised value on April 2, 2007 was $296,000.)  The increase in value of his equity thus was $150,000 ($170,000 less H.W.C.’s original $20,000 equity).

[153]        The increase in the value of H.W.C.’s interest in the home between April 1989 and January 2003 is attributable to three factors:  (1) the payments he made toward the mortgage and renovations; (2) the efforts of both of the parties in maintaining and improving the home; and (3) market forces.

[154]        Taking all of the circumstances into account, in particular the equity H.W.C. brought unto the relationship, the relative contributions of the parties and the relative benefits received by the parties, I find that J.A.B. is entitled to a 40% interest in the increased value of the house during the period of marriage-like cohabitation, that is, 40% of $150,000, or $60,000.  From that amount should be deducted a sum representing the net benefit J.A.B. received in the form of rent-free accommodation from January 1, 2003 to the date of trial.  I find the appropriate deduction to be $25,000.  Accordingly, J.A.B. is entitled to $35,000.

[155]        Whatever approach to valuation is taken, a constructive trust should be imposed as a remedy for unjust enrichment only where a monetary remedy would be inadequate:  Peter v. Beblow at 997, Pickelein v. Gillmore at para. 23; Shannon v. Gidden, 1999 BCCA 539, 71  B.C.L.R. (3d) 40 at para. 23; Swaren v. Swaren, 2007 ABQB 193, 74 Alta. L.R. (4th) 143 at paras. 68-74.  In other words, a declaration of trust does not automatically follow from a conclusion that the “value survived” approach should be followed.

[156]        In looking at whether a monetary award is insufficient, the court may take into account the probability that the award will be paid, the value of the claimant’s contributions to the value of the property in question, and the special interest in the property acquired by the contributions: Peter v. Beblow at 997-99.

[157]        It appears that H.W.C. will be able to satisfy an award of damages by re-financing the property.  J.A.B. does not seek to remain in the home and there is no reason that a monetary award would be insufficient in this case. 

[158]        I find that a monetary award of $35,000 is the appropriate remedy with respect to the home.

[159]        I now turn to the question of H.W.C.’s pension.

[160]        H.W.C. named J.A.B. as the beneficiary under his pension; she expected to share in it when he retired.  I find that the plaintiff, through her provision of all of the support that a “traditional” wife gives to a husband, assisted and enriched H.W.C. in working and building up his pension entitlement during the period of cohabitation from 1989 until he retired in 1997.  I find that she was correspondingly deprived and that there was no juristic reason for the enrichment and deprivation, for the reasons already stated above.

[161]        Section 25 of the Pension Benefits Standards Act, R.S.B.C. 1996, c. 352, permits a division of a pension at its source to satisfy an order for a constructive trust:  Dorflinger v. Melanson (1994), 91 B.C.L.R. (2d) 91 (C.A.).

[162]        However, it is necessary for the plaintiff to show a direct link between the enrichment and the asset in question in order for a constructive trust to be declared.  In both Westergard v. Buttress, 2005 BCSC 622, 18 R.F.L. (6th) 196 and Wilson v. McDougald, 2006 BCSC 1155, members of this court have found it inappropriate to grant the remedy of a constructive trust for that reason, although in Wilson, a monetary award was granted.

[163]        There was no evidence as to the value of the pension.  Mr. Vining on behalf of the plaintiff estimated that if the Court finds J.A.B. entitled to a 50% interest for the seven years calculated in the manner prescribed by Part VI of the FRA, that might amount to payments of about $150 per month.

[164]        I find that a monetary award is appropriate in this case and I will award $10,000 to compensate J.A.B. with respect to the pension.

[165]        As to the savings of the parties, in the form of RRIFs, saving accounts and cash, H.W.C. does not claim an interest in those in J.A.B.’s name, while J.A.B. claims an interest in H.W.C.’s cash savings (though not his RRIFs).  The evidence does not permit a conclusion as to the amount of savings in H.W.C.’s name attributable to the period of the marriage-like relationship and, in any event, J.A.B.’s ability to preserve her own savings was enhanced by H.W.C.’s contributions.  I find that no award should be made with respect to H.W.C.’s savings. 

2.         Is the plaintiff entitled to an order for spousal support?

[166]        The FRA requires that a claim for spousal support must be brought within one year after the parties ceased to live together.  This requirement arises from the definition of “spouse” in s. 1 of the Family Relations Act:

“spouse” means a person who

(b) except under Parts 5 and 6, lived with another person in a marriage-like relationship for a period of at least 2 years if the application under this Act is made within one year after they ceased to live together and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender,

[167]        The limitation period begins to run when the parties cease to live together in a marriage-like relationship:  D.L.M. v. R.E.G., 2004 BCSC 364.

[168]        The ongoing payment of financial support beyond the date when the marriage-like relationship ended may extend the limitation period:  Eisener v. Baker, at para. 39, referring to Pierce v. Pierce (1997), 29 B.C.L.R. (3d) 111 (S.C.); W.A.S. v. D.W.T., 2003 BCSC 865, 40 R.F.L. (5th) 389; Markin v. Gysel, 2004 BCSC 364.  The extension of the limitation period is based on a form of estoppel, as Groberman J. stated in W.A.S. v. D.W.T. at para. 30: 

… the party paying support is estopped from denying that the opposite party is his or her spouse where, by his or her conduct, he or she has deliberately led that party into believing that he or she will not rely upon the strict definition of “spouse” contained in the Family Relations Act.

[169]        J.A.B. first sought spousal support when she began these proceedings on January 4, 2007.  Because I have concluded that the marriage-like relationship ended in January 2003, J.A.B.’s claim for spousal support is out of time unless the limitation period has been extended.  The evidence is unclear as to when H.W.C. ceased to provide financial support to J.A.B.  After February of 2001, H.W.C. stopped depositing his pension cheque from employment into the joint account, although he did continue to deposit his Canada Pension Plan cheque there.  I have accepted H.W.C.’s evidence that he had discussions with J.A.B. about her leaving the house, including the fact that she said she would do so when her pensions began.  J.A.B. began to receive Old Age Pension in 2001 and a share of her ex-husband Mr. B’s pension in 2004.

[170]        At no time after the end of the marriage-like relationship did H.W.C. directly provide monetary support to J.A.B.  Any monetary support she received after the breakdown of the marriage-like relationship came from her continued access to H.W.C.’s bank account.  However, J.A.B.’s access to the joint account was necessary in order for her to pay household expenses, which H.W.C. would have incurred whether she lived there or not.  In these circumstances, I do not think J.A.B. could have been led into believing that H.W.C. intended to provide her with support indefinitely.  Even if J.A.B. had such a belief, I find that nothing H.W.C. did was calculated to lead her into such a belief.

[171]        I find that the limitation period on J.A.B.’s claim for spousal support was not extended, and her claim is out of time.

3.         Is the defendant entitled to a declaration that the plaintiff holds her interest in the jointly-held assets in resulting trust for him?

[172]        The defendant counterclaims for a declaration that the plaintiff holds her interest in the assets she holds jointly with the defendant in resulting trust for him.  Those assets are the joint bank accounts and the trailer.

[173]        As stated in D.W.M. Waters, M.R. Gillen & L.D. Smith, eds., Waters’ Law of Trusts in Canada, 3rd ed. (Toronto: Thomson Carswell, 2005) at 362, a resulting trust arises:

…whenever legal or equitable title to property is in one party’s name, but that party, because he is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner, or to the person who did give value for it.

…where one person has gratuitously transferred his property to another, or paid for property and had the property put into another’s name.  The intention of the transferor or purchaser is implied to be that the transferee is to hold the property on trust for the transferor or purchaser. The implication arises out of the fact that Equity assumes bargains, not gifts, and requires the donee to prove that a gift was intended.

[174]        The Supreme Court of Canada recently articulated the leading principles on resulting trusts in Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795 at paras. 24-25:

The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers.  When a transfer is challenged, the presumption allocates the legal burden of proof.  Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended:  see Waters’ Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110.  This is so because equity presumes bargains, not gifts.

The presumption of resulting trust therefore alters the general practice that a plaintiff (who would be the party challenging the transfer in these cases) bears the legal burden in a civil case.  Rather, the onus is on the transferee to rebut the presumption of a resulting trust.

[175]        In certain circumstances, the relationship between the transferor and transferee will cause the presumption of resulting trust to be displaced by the presumption of advancement (i.e., presumption of gift), as explained in Pecore at paras. 27-28:

The presumption of resulting trust is the general rule for gratuitous transfers.  However, depending on the nature of the relationship between the transferor and transferee, the presumption of a resulting trust will not arise and there will be a presumption of advancement instead: see Waters’ Law of Trusts, at p. 378.  If the presumption of advancement applies, it will fall on the party challenging the transfer to rebut the presumption of a gift.

Historically, the presumption of advancement has been applied in two situations.  The first is where the transferor is a husband and the transferee is his wife: Hyman v. Hyman, [1934] 4 D.L.R. 532 (S.C.C.), at p. 538.  The second is where the transferor is a father and the transferee is his child…

[176]        The presumption of advancement has been applied to unmarried spouses:  see, for example, Manley v. Schiller (1980), 22 B.C.L.R. 61 (S.C.) and Hedberg v. Heaps, [1999] B.C.J. No. 1309 (Q.L.) (S.C.), varied on other grounds 2000 BCCA 648, 11 R.F.L. (5th) 126.

[177]        Both the presumption of resulting trust and the presumption of advancement may be rebutted.  In Goodfriend v. Goodfriend (1971), [1972] S.C.R. 640 at 646, Spence J. quoted with approval the following words of Schroeder J., as he then was, in Walsh v. Walsh, [1948] O.R. 81 at 94:

It is abundantly clear that whatever presumptions may arise from the circumstances of any particular case, the Court is under a duty to go into the actual facts, and to consider at the circumstances of the case, so as to arrive at the real intention of the transferor, giving due weight to the presumptions at are raised by the circumstances.

[178]        The normal civil standard of proof is applicable to rebut the presumptions of resulting trust and advancement.  Rothstein J. discussed the burden of proof at paras. 43-44 in Pecore:

The weight of recent authority, however, suggests that the civil standard, the balance of probabilities, is applicable to rebut the presumptions: Burns Estate v. Mellon (2000), 48 O.R. (3d) 641 (C.A.), at paras. 5-21; Lohia v. Lohia, [2001] EWCA Civ 1691 (BAILII), at paras. 19-21; Dagle, at p. 210; Re Wilson, at para. 52.  See also Sopinka et al., at p. 116.  This is also my view.  I see no reason to depart from the normal civil standard of proof.  The evidence required to rebut both presumptions, therefore, is evidence of the transferor’s contrary intention on the balance of probabilities

As in other civil cases, regardless of the legal burden, both sides to the dispute will normally bring evidence to support their position.  The trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention.  Thus, as discussed by Sopinka et al. in The Law of Evidence in Canada, at p. 116, the presumption will only determine the result where there is insufficient evidence to rebut it on a balance of probabilities.

[179]        Here, J.A.B. acquired her interests in the jointly held assets (the trailer and the joint bank account) during the time when there was a marriage-like relationship and the parties intended there to be an economic union.  The presumption of advancement applies in these circumstances.  There is no evidence to rebut the inference that H.W.C. intended J.A.B. to have a beneficial interest in the funds.  With respect to the trailer, the evidence is that H.W.C. did not intend J.A.B. to be a joint owner, and the two names on title came about essentially against his will.

[180]        I find that the defendant’s claim for a declaration of resulting trust fails with respect to the bank accounts and succeeds with respect to the trailer.


[181]        J.A.B. has succeeded in establishing that H.W.C. was unjustly enriched by her and she is entitled to a judgment for $45,000.  Her claim for spousal support is dismissed.  H.W.C.’s claim for a declaration of resulting trust is allowed with respect to the trailer.

[182]        I will hear submissions as to costs, if counsel are unable to agree, at a time and date to be arranged by counsel.

“The Honourable Madam Justice Lynn Smith”