Behiels v. McCarthy, 2010 ABQB 281

• Judge: Manderscheid, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 08, 2010
• Citations: 2010 ABQB 281;(2010), 496 A.R. 327 (QB)

Behiels v. McCarthy (2010), 496 A.R. 327 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. MY.020

Valarie Alanna Behiels (plaintiff) v. Hugh Terrance McCarthy (defendant)

(4803 135841; FL03 12745; 2010 ABQB 281)

Indexed As: Behiels v. McCarthy

Alberta Court of Queen's Bench

Judicial District of Edmonton

Manderscheid, J.

April 27, 2010.

Summary:

Spouses divorced. At issue was the division of matrimonial property and a constructive trust action.

The Alberta Court of Queen's Bench determined the issues.

Family Law - Topic 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - The parties met in 1998, married in October 2003 and separated in March 2005 - Shortly before they married, the parties purchased the matrimonial home in joint title - Since the separation, the husband had occupied and assumed all responsibility for the matrimonial home - At issue was the wife's claim for occupation rent - The Alberta Court of Queen's Bench denied the wife's claim - Had the wife pressed her claim for occupation rent, most likely, she would have been met with a counterclaim by the husband for payment by the wife equal to one half of the mortgage payments, taxes, utilities, and costs of maintenance and repair relative to the property from the date of separation - Furthermore, any amounts paid by the husband as against the mortgage on the property after the date of separation were deemed to be payments made on behalf of both parties - Consequently, the wife would be entitled to share in such credit despite the fact that she did not contribute to such payments - As well, it should not be forgotten that but for the husband's decision to remain in the property after the separation, the wife would not have had an opportunity to share in any increase in the value of such property after such date - As such, the court failed to see where the wife could claim that she had been unjustly treated and that the husband had gained a windfall by virtue of not being required to pay occupation rent - Instead, she was the one who benefitted without investment or contribution - See paragraphs 92 to 97.

Family Law - Topic 630

Husband and wife - Marital property - Matrimonial home - General - The parties met in 1998, married in October 2003 and separated in March 2005 - Shortly before they married, the parties purchased the matrimonial home in joint title - At issue was the proper division of the increase in value of the matrimonial home since separation - The Alberta Court of Queen's Bench found that the marriage was approximately 1.5 years and therefor short in duration; the wife left the property at separation, only returning to retrieve her personal belongings; the parties had since led separate lives; post marriage, the husband continued to pay all mortgage payments, insurance, taxes and utilities associated with the property; the wife had contributed no funds or services of any kind in regard to ownership, maintenance and preservation of the property; and, since the separation, the husband, at his sole cost, had continued to maintain and repair the property - The court found that a just and equitable distribution to the wife would be 25% of the increase in value of the property from the date of separation to the date of trial - See paragraphs 81 to 91.

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - [See Family Law - Topic 630 ].

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - [See Family Law - Topic 630 ].

Family Law - Topic 883

Husband and wife - Marital property - Considerations in making distribution orders - Contribution of parties (incl. unequal contributions) - [See Family Law - Topic 630 ].

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - The parties met in 1998, married in October 2003 and separated in March 2005 - Shortly before they married, the parties purchased the matrimonial home in joint title - Since the separation, the husband had occupied and assumed all responsibility for the matrimonial home - At issue was the valuation of the matrimonial home as at the date of separation and the date of trial - Each party provided appraisals of the property as at both dates - Neither party provided expert evidence to assist the court in its review of the appraisals and their comparative strengths and weaknesses - The Alberta Court of Queen's Bench stated that "[t]he Court relies upon the litigants to provide expert evidence to assist in making findings of fact, such as the proper valuation of a property. Absent the context provided by any such expert evidence, the court must then look to an equitable and just solution. With respect to the parties' respective appraisals, I feel that such a result can be obtained by averaging each parties' appraised values." - See paragraphs 98 to 103.

Family Law - Topic 890.6

Husband and wife - Marital property - Considerations in making distribution orders - Marriages of short duration - [See Family Law - Topic 630 ].

Family Law - Topic 1001

Common law, same-sex or adult interdependent relationships - What constitutes common law relationship - The parties met in 1998, married in October 2003 and separated in March 2005 - The wife made claims that extended from the pre-marriage period through separation - She claimed a constructive trust based on unjust enrichment for the period from October 1999 to January 2003 - She alleged that during that time, they were in a common law relationship - The husband denied a pre-marital common law relationship and characterized their pre-marital relationship as more similar to "dating" or "courting" - The first question was whether they were in a common law relationship - The Alberta Court of Queen's Bench separated the period into three pre-marital periods - During the first, from October 1999 to October 2000, the parties maintained separate residences - The wife maintained a rented condominium unit - She would return to the unit from time to time with or without the husband - The wife did not move any of her household furniture into the husband's property and had only brought in her clothing and personal effects - The wife did not participate in any household chores - The husband prepared his own meals - The wife and her children would participate in family barbeques at the husband's home - The evidence did not support the existence of a common law relationship during this period - While the parties shared accommodations from time to time and might have had intimate relations, that was not enough - A common law relationship in the absence of a shared residence was atypical - More was needed - See paragraphs 24 to 31.

Family Law - Topic 1001

Common law, same-sex or adult interdependent relationships - What constitutes common law relationship - The parties met in 1998, married in October 2003 and separated in March 2005 - The wife made claims that extended from the pre-marriage period through separation - She claimed a constructive trust based on unjust enrichment for the period from October 1999 to January 2003 - She alleged that during that time, they were in a common law relationship - The husband denied a pre-marital common law relationship and characterized their pre-marital relationship as more similar to "dating" or "courting" - The first question was whether they were in a common law relationship - The Alberta Court of Queen's Bench separated the period into three pre-marital periods - During the second, from October 2000 to January 2003, the parties shared a single residence - There was an economic integration of the parties - The wife was added as a party to the husband's MasterCard and line of credit - The parties agreed that the wife would make regular $250 monthly payments to the husband and would be responsible for the costs of her and her sons' groceries - Later, the payments increased to $500 - Social integration increased - They continued their intimate relationship - The husband placed the wife and her sons under his Alberta Health Care coverage - However, the husband played no parental role towards the wife's sons - The court concluded that the parties were in a common law relationship during this period - See paragraphs 32 to 37.

Family Law - Topic 1001

Common law, same-sex or adult interdependent relationships - What constitutes common law relationship - The parties met in 1998, married in October 2003 and separated in March 2005 - The wife made claims that extended from the pre-marriage period through separation - She claimed a constructive trust based on unjust enrichment for the period from October 1999 to January 2003 - She alleged that during that time, they were in a common law relationship - The husband denied a pre-marital common law relationship and characterized their pre-marital relationship as more similar to "dating" or "courting" - The first question was whether they were in a common law relationship - The Alberta Court of Queen's Bench separated the period into three pre-marital periods - During the third, from April 2003 to October 2003, the parties resumed their relationship after a brief separation (from January 2003 to April 2003) but lived separately - The husband resided briefly with the wife between the closing sale of the husband's property and the time that the new property purchased together by the parties was ready for occupation - The parties had reestablished an intimate relationship and were anticipating marriage - This period saw further economic integration between the parties - The evidence fell short of confirming the existence of a common-law relationship between the parties during this period - They had an intimate relationship, but separate households - What the evidence instead very clearly demonstrated was that there was a plan underway to establish not a new common-law partnership, but rather a marriage - See paragraphs 39 to 42.

Family Law - Topic 1006

Common law, same-sex or adult interdependent relationships - Resulting or constructive trusts - The parties met in 1998, married in October 2003 and separated in March 2005 - The wife made claims that extended from the pre-marriage period through separation - She claimed a constructive trust based on unjust enrichment - The Alberta Court of Queen's Bench held that the parties were in a common law relationship from October 2000 to January 2003 - However, the court dismissed the wife's claim for a constructive trust - The husband had not been enriched as a result of the financial contributions and domestic services provided by the wife, nor by the wife's presence or emotional contribution to their relationship - The court failed to see where the wife had suffered any deprivation that corresponded to any enrichment of the husband - If anything, the wife had been enriched from her relationship with the husband - Finally, the parties had agreed that the wife would pay the husband monthly, $250 and later $500, plus the cost of all groceries used by herself and her two sons - An oral agreement on splitting expenses, such as the arrangement between the wife and the husband, constituted an adequate juristic reason that negated the third element for establishing a case of unjust enrichment - See paragraphs 43 to 72.

Restitution - Topic 62

Unjust enrichment - General - What constitutes - [See Family Law - Topic 1006 ].

Restitution - Topic 66

Unjust enrichment - General - Conditions precedent - [See Family Law - Topic 1006 ].

Trusts - Topic 2310

Constructive trusts - General principles - Circumstances when not imposed - [See Family Law - Topic 1006 ].

Cases Noticed:

Nova Scotia (Attorney General) v. Walsh - see Walsh v. Bona.

Walsh v. Bona, [2002] 4 S.C.R. 325; 297 N.R. 203; 210 N.S.R.(2d) 273; 659 A.P.R. 273; 2002 SCC 83, refd to. [para. 13].

Panara v. Di Ascenzo (2005), 361 A.R. 382; 339 W.A.C. 382; 2005 ABCA 47, refd to. [para. 16].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81; 101 D.L.R.(4th) 621, refd to. [para. 18].

Sorochan v. Sorochan, [1986] 2 S.C.R. 38; 69 N.R. 81; 74 A.R. 67; 29 D.L.R.(4th) 1, refd to. [para. 18].

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384; 117 D.L.R.(3d) 257, refd to. [para. 18].

Czaplinska v. Caravaggio, [2006] A.R. Uned. 551; 63 Alta. L.R.(4th) 125; 2006 ABQB 615, refd to. [para. 19].

F.D.R. v. M.D.P., [2006] A.R. Uned. 290; 25 E.T.R.(3d) 103; 2006 ABQB 202, refd to. [para. 19].

Wright-Watts v. Watts (2005), 387 A.R. 293; 2005 ABQB 708, refd to. [para. 21].

Molodowich v. Penttinen (1980), 17 R.F.L.(2d) 376; 2 A.C.W.S.(2d) 486 (Ont. Dist. Ct.), refd to. [para. 21].

Hantel v. Hilscher (2000), 255 A.R. 187; 220 W.A.C. 187; 2000 ABCA 84, refd to. [para. 47].

Kazmierczak v. Kazmierczak, [2003] A.R. Uned. 297; 17 Alta. L.R.(4th) 205; 2003 ABCA 227, refd to. [para. 50].

Goddard v. Hambleton (2005), 237 N.S.R.(2d) 1; 754 A.P.R. 1; 2005 NSCA 124, refd to. [para. 67].

Rathwell v. Rathwell, [1978] 2 S.C.R. 436; 19 N.R. 91; 83 D.L.R.(3d) 289, refd to. [para. 70].

Harrower v. Harrower (1989), 97 A.R. 141; 68 Alta. L.R.(2d) 97 (C.A.), refd to. [para. 74].

Jackson v. Jackson (1989), 97 A.R. 153; 68 Alta. L.R.(2d) 118 (C.A.), refd to. [para. 74].

D.R.J. v. M.J. (2009), 464 A.R. 16; 467 W.A.C. 16; 2009 ABCA 272, refd to. [para. 77].

Dwelle v. Dwelle (1982), 46 A.R. 1; 31 R.F.L.(2d) 113 (C.A.), refd to. [para. 77].

Mazurenko v. Mazurenko (1981), 30 A.R. 34; 124 D.L.R.(3d) 406 (C.A.), leave to appeal denied (1981), 39 N.R. 539; 32 A.R. 612 (S.C.C.), refd to. [para. 77].

Cox v. Cox (1998), 233 A.R. 258; 1998 ABQB 987, refd to. [para. 77].

Hulleman v. Hulleman, [1999] A.R. Uned. 428; 2 R.F.L.(5th) 406; 1999 ABCA 366, refd to. [para. 77].

Crosby v. Crosby, [2007] A.R. Uned. 414; 155 A.C.W.S.(3d) 1167; 2007 ABQB 31, refd to. [para. 77].

Leblanc v. Leblanc, [1988] 1 S.C.R. 217; 81 N.R. 299; 84 N.B.R.(2d) 33; 214 A.P.R. 33; 47 D.L.R.(4th) 1, refd to. [para. 77].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165; 59 D.L.R.(4th) 591, refd to. [para. 77].

Hodgson v. Hodgson (2005), 361 A.R. 190; 339 W.A.C. 190; 2005 ABCA 13, refd to. [para. 78].

Warwoda v. Warwoda, [2009] A.R. Uned. 693; 2009 ABQB 582, refd to. [para. 83].

Nasin v. Nasin (2008), 443 A.R. 298; 291 D.L.R.(4th) 432; 2008 ABQB 219, refd to. [para. 84].

Wallat v. Marshall, [2005] A.R. Uned. 469; 2005 ABQB 426, refd to. [para. 86].

Seeman v. Seeman, [2010] A.R. Uned. 52; 2010 ABQB 30, refd to. [para. 93].

Busenius v. Busenius, [2006] A.R. Uned. 272; 156 A.C.W.S.(3d) 159; 2006 ABQB 162, refd to. [para. 93].

Kazmierczak v. Kazmierczak (2001), 292 A.R. 233; 2001 ABQB 610, affd. [2003] A.R. Uned. 297; 17 Alta. L.R.(4th) 205; 2003 ABCA 227, refd to. [para. 94].

Lameman et al. v. Canada (Attorney General) et al. (2006), 404 A.R. 349; 394 W.A.C. 349; 66 Alta. L.R.(4th) 243; 2006 ABCA 392; 2007 ABCA 180, revd. in part [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 101].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236; 2001 SCC 32, refd to. [para. 102].

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150; 2005 SCC 71, refd to. [para. 102].

Authors and Works Noticed:

McInnes, Mitchell, The Measure of Restitution (2002), 52 Univ. of Toronto L.J. 163, generally [para. 61].

Counsel:

David S. Patterson (Patterson Family Law Office), for the plaintiff;

Stephen J. Gawlinski (Gawlinski Parkatti Verhaeghe), for the defendant.

This case was heard on April 8, 2010, by Manderscheid, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on April 27, 2010.