C.A.H. v. M.W.S.,

• Judge: Wittmann
• Neutral Citation: 2008 ABQB 34
• Court: Court of Queen's Bench of Alberta (Canada)
• Date: 15 October 2007
• Citation: 2008 ABQB 34,(2008), 439 A.R. 379 (QB),439 AR 379,87 Alta LR (4th) 340,(2008), 439 AR 379 (QB),439 A.R. 379

C.A.H. v. M.W.S. (2008), 439 A.R. 379 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. MR.071

C.A.H. (applicant) v. M.W.S. (respondent)

(FL06 00503; 2008 ABQB 34)

Indexed As: C.A.H. v. M.W.S.

Alberta Court of Queen's Bench

Judicial District of Lethbridge

Wittmann, A.C.J.Q.B.

January 11, 2008.

Summary:

The parties were involved in a relationship between the fall of 1998 and March 2006. The applicant claimed to be entitled to a remedy in the nature of a constructive trust. She also claimed that the relationship constituted an adult interdependent relationship within the meaning of the Adult Interdependent Relationships Act (AIRA) and the Family Law Act (FLA).

The Alberta Court of Queen's Bench held that as there was no unjust enrichment, the applicant was not entitled to the remedy of a constructive trust. Additionally, there was no entitlement for support under the AIRA and FLA.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call available evidence - The parties were involved in a relationship between the fall of 1998 and March 2006 - The applicant claimed to be entitled to a remedy in the nature of a constructive trust - She also claimed that the relationship constituted an adult interdependent relationship within the meaning of the Adult Interdependent Relationships Act (AIRA) and the Family Law Act (FLA) - The parties lived under the same roof for some periods of time from the fall of 1999 through August 2004 - However, there was a material conflict between the parties as to where the applicant resided between December 2002 and June 2003 - The respondent claimed that the applicant lived with her son in an apartment - The applicant claimed she lived with the respondent and not with her son - The applicant's son was present at trial but was not called as a witness - The respondent requested that the court draw an adverse inference against the applicant with respect to the residency issue - The Alberta Court of Queen's Bench drew an adverse inference against the applicant for failing to call her son - The court concluded that the applicant had lived with her son during the disputed period - The son's evidence was on a material point that was in dispute - It was the best evidence on that point - See paragraphs 38 to 59.

Family Law - Topic 1001.1

Common law, same-sex or adult interdependent relationships - What constitutes an interdependent relationship - The parties were involved in a relationship between the fall of 1998 and March 2006 - The applicant claimed that the relationship constituted an adult interdependent relationship within the meaning of the Adult Interdependent Relationships Act (AIRA) and the Family Law Act (FLA) and she was therefore entitled to support - The Alberta Court of Queen's Bench rejected the claim - The parties lived under the same roof for some periods of time from the fall of 1999 through August 2004 - The parties had separate bedrooms but occasionally engaged in a sexual relationship - They did not maintain an attitude of fidelity towards each other - While the applicant claimed to love the respondent, the respondent claimed to not have any such feelings towards the applicant - The financial arrangements suggested that while they lived under the same roof, the applicant did not contribute to the necessities - Finally, for some periods of time, the applicant did not live with the respondent - The periods of absence detracted from the relationship of interdependence - Accordingly, there was no continuous period of three years upon which to base a relationship of interdependence (AIRA, s. 3(1)(a)(i)) - See paragraphs 70 to 85.

Family Law - Topic 1006

Common law, same-sex or adult interdependent relationships - Resulting or constructive trusts - The parties were involved in a relationship between the fall of 1998 and March 2006 - The parties lived under the same roof for some periods of time from the fall of 1999 through August 2004 - The applicant claimed entitlement to a remedy in the nature of a constructive trust based on unjust enrichment - She claimed that during the relationship, she painted rooms at the respondent's business and fulfilled the role of a housekeeper in the home - The Alberta Court of Queen's Bench rejected the applicant's claim - The respondent was not enriched - There was no evidence that he obtained a benefit or retained a benefit arising out of the relationship - Occasional sex and companionship did not attain the status of an enrichment - In any event, a corresponding enrichment, not deprivation, was attained by the applicant on that level - In terms of the applicant supplying housekeeping and domestic services that were uncompensated, the evidence fell far short of demonstrating any asset enhancement arising from her performance of services that were not compensated for - To the contrary, the evidence established that the applicant was paid for any services she supplied to the respondent's business and there was some evidence she was paid more than her services were worth - There was no evidence whatsoever that she contributed economically to household expenses - Finally, the only evidence as to the applicant's expectations in terms of marriage and permanency of a relationship was that she raised it from time to time and the respondent did not respond - Thus, there was no enrichment and no deprivation making any discussion of the absence of a juristic reason for it, moot - Similarly, the remedy - See paragraphs 60 to 67.

Restitution - Topic 62

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

Cases Noticed:

R. v. Burdett (1820), 4 B. & Ald. 95, refd to. [para. 40].

Blatch v. Archer, [1895] A.C. 310, refd to. [para. 41].

Levesque v. Comeau (1970), 5 N.B.R.(2d) 15; 16 D.L.R.(3d) 425 (S.C.C.), refd to. [para. 42].

Dabrowski v. Robertson (2007), 419 A.R. 359 (Q.B.), refd to. [para. 43].

Beger v. MacAstocker Estate (1996), 192 A.R. 241 (Q.B.), refd to. [para. 45].

Panarctic Oils Ltd. v. Menasco Manufacturing Co. (1983), 41 A.R. 451 (C.A.), refd to. [para. 46].

Canada Southern Petroleum Ltd. et al. v. Amoco Canada Petroleum Co. et al. (1996), 195 A.R. 1 (Q.B.), refd to. [para. 47].

Allied Signal Inc. v. Dome Petroleum Ltd. - see Canada Southern Petroleum Ltd. et al. v. Amoco Canada Petroleum Co. et al.

Wade v. Baxter (2001), 302 A.R. 1 (Q.B.), refd to. [para. 54].

Schuttler v. Anderson (1999), 243 A.R. 109 (Q.B.), refd to. [para. 55].

M.E.S. v. D.A.S. (2001), 304 A.R. 112; 2001 ABQB 1015, refd to. [para. 56].

Wakaluk v. Wakaluk (1977), 25 R.F.L. 292 (Sask. C.A.), refd to. [para. 56].

Panara v. Di Ascenzo (2005), 361 A.R. 382; 339 W.A.C. 382; 2005 ABCA 47, refd to. [para. 60].

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384, refd to. [para. 60].

Sorochan v. Sorochan, [1986] 2 S.C.R. 38; 69 N.R. 81; 74 A.R. 67, refd to. [para. 60].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81, refd to. [para. 60].

Harper v. Harper (1995), 166 A.R. 212 (Q.B.), refd to. [para. 61].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128, refd to. [para. 64].

Medora v. Kohn (2003), 336 A.R. 163; 2003 ABQB 700, refd to. [para. 73].

Mohoney v. King, [1998] O.T.C. Uned. 235; 39 R.F.L.(4th) 361 (Gen. Div.), refd to. [para. 73].

Spracklin v. Kichton (2000), 278 A.R. 27; 95 Alta. L.R.(3d) 371 (Q.B.), refd to. [para. 73].

Molodowich v. Penttinen (1980), 17 R.F.L.(2d) 376 (Ont. Dist. Ct.), refd to. [para. 73].

Wright-Watts v. Watts (2005), 387 A.R. 293; 2005 ABQB 708, refd to. [para. 74].

Authors and Works Noticed:

Mewett, Alan W., and Sankoff, Peter J., Witnesses (2007), p. 2-23 [para. 44].

Wigmore, John Henry, Evidence in Trials at Common Law (1979), generally [para. 39].

Counsel:

S.C. Mogdan, for the applicant;

R.G. Harvie, for the respondent.

This case was heard on October 15, 2007, by Wittmann, A.C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Lethbridge, who delivered the following judgment on January 11, 2008.