Coghill v. Michalko, 2010 ABQB 292

• Judge: Marceau, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 29, 2010
• Citations: 2010 ABQB 292;(2010), 488 A.R. 93 (QB);2010 ABQB 59

Coghill v. Michalko (2010), 488 A.R. 93 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. FE.027

Lorna Adele Coghill (applicant) v. Allan Steven Michalko (respondent)

(FL13 00165; 2010 ABQB 59; 2010 ABQB 292)

Indexed As: Coghill v. Michalko

Alberta Court of Queen's Bench

Judicial District of Ft. McMurray

Marceau, J.

January 26, 2010 and April 29, 2010.

Summary:

Coghill and Michalko separated after 28 years' cohabitation. By statement of claim, Coghill sought the imposition of a constructive trust arising out of their cohabitation resulting in an equal sharing of all assets acquired by the parties individually and jointly to the date of trial. In a separate application, Coghill sought support as Michalko's one time interdependent partner. The two matters were consolidated for trial.

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

Family Law - Topic 688

Husband and wife - Property rights during and after common law marriage or relationship - Resulting or constructive trusts - Coghill and Michalko separated after 28 years' cohabitation - Coghill sought the imposition of a constructive trust arising out of their cohabitation resulting in an equal sharing of all assets acquired by the parties individually and jointly - The parties had effected a distribution of most assets, but Michalko's Syncrude pension remained in dispute - The Alberta Court of Queen's Bench stated that unjust enrichment only gave rise to a constructive trust in limited circumstances - First, there had to be a connection between the contributions and the asset's acquisition, accumulation, or preservation - Domestic work could constitute the necessary link - The evidence supported the conclusion that both parties reasonably expected that Coghill would have an interest in the pension - Michalko's pension resulted from his work at Syncrude which was rendered possible largely by Coghill's support on the homefront - No other retirement vehicle of this potential significance was created during their cohabitation - There was a sufficient link - The second requirement for a constructive trust remedy was that a monetary award had to be insufficient - Here, a constructive trust was not required to achieve an equitable result - Further, there were assets available to Michalko to quickly satisfy this equalization payment, and there was no evidence to suggest that he would not abide by a court order to make the equalization payment - If a charging order was necessary it could be applied for - See paragraphs 41 to 55.

Family Law - Topic 695

Husband and wife - Property rights during and after common law marriage or relationship - Valuation (incl. time for) - Coghill and Michalko separated in 2002 after 28 years' cohabitation - Coghill sought the imposition of a constructive trust arising out of their cohabitation resulting in an equal sharing of all assets acquired by the parties individually and jointly to the date of trial - The parties had effected a distribution of most of the assets, but Michalko's pension with his employer Syncrude remained in dispute - The pension was a basic non-contributory and defined benefit pension - The Alberta Court of Queen's Bench held that the appropriate time to value the pension arising out of the common law marriage was the separation date - To remedy unfairness arising from using that date, the court awarded interest fixed at 4% per annum (the rates prescribed in the province for interest on special damages and interest on general damages) - The court increased the value of the pension as at November 30, 2009 (seven years from separation) by a factor of 7 x 4% or 28% - See paragraphs 44 to 51.

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Particular property - Pensions (incl. bridging benefits and pension annuities) - [See Family Law - Topic 695 ].

Family Law - Topic 967

Husband and wife - Actions between husband and wife - Practice - Interest on awards - [See Family Law - Topic 695 ].

Family Law - Topic 1006

Common law, same-sex or adult interdependent relationships - Resulting or constructive trusts - [See Family Law - Topic 688 ].

Family Law - Topic 1013

Common law, same-sex or adult interdependent relationships - Maintenance - Coghill and Michalko separated in 2002 after 28 years' cohabitation - By statement of claim (2004), Coghill sought the imposition of a constructive trust arising out of their cohabitation resulting in an equal sharing of all assets acquired by the parties individually and jointly to the date of trial - In a separate application (2007), Coghill sought support as Michalko's one time interdependent partner - The two matters were consolidated for trial - Coghill argued that Michalko should be made to pay partner support back to May of 2003, the date on which her counsel wrote him a letter indicating a desire to enter into discussions about an overall settlement and division of property and deal with support - Michalko did not respond to the letter because he hoped that he and Coghill could work out a settlement without employing lawyers and embarking on expensive court proceedings - The Alberta Court of Queen's Bench held that it did not fault Michalko for believing that partner support was not in issue until May 2007, when he was served with a Notice of Motion returnable June 19, 2007 claiming spousal/partner support - Nor did it fault him for trying to work things out without a lawyer - Further, his conduct in offering help, in consenting to an order for partner support, in paying child support for their youngest child without an order and in buying out Coghill's interest in their home all indicated a genuine concern for fairness and for Coghill - Coghill did not seem bitter about Michalko's conduct in the litigation or claim that he left her destitute or that the litigation had been particularly acrimonious - For the court to make substantial retroactive orders there had to be blameworthy conduct on the payor's part and some reasonable diligence in pursuing the payee's remedies - Here, there was neither - The court ordered support retroactive to July 1, 2007 - See paragraphs 56 to 61.

Family Law - Topic 1013

Common law, same-sex or adult interdependent relationships - Maintenance - The Alberta Court of Queen's Bench stated that the leading case on the quantum of spousal support was Moge v. Moge (1992, S.C.C.) - Moge made it clear that spousal support could be needs based, compensatory or both - The court stated that s. 60 of the Family Law Act was close to codifying the law in Moge as it had been interpreted in later cases - Section 58 of the Act mandated that the court consider the conditions, means, needs and other circumstances of each party, the length of time they lived together and the functions performed by each spouse or adult interdependent partner during the period that they lived together - See paragraph 62.

Family Law - Topic 1013

Common law, same-sex or adult interdependent relationships - Maintenance - Coghill and Michalko separated in 2002 after 28 years' cohabitation - Coghill sought support as Michalko's one time interdependent partner - Coghill had recently gotten her degree in Education, was doing substitute teaching and seeking a permanent position - The Alberta Court of Queen's Bench determined that Michalko's income for support purposes was $150,000 annually - For the purposes of calculating ongoing support, the court projected Coghill's income as $40,000 for 2010, $43,000 for 2011, $46,000 for 2010 and $52,000 for 2013 - The court determined that reasonable spousal support was approximately $3,400 monthly for 2010, $3,300 monthly for 2011, and $3,200 monthly in 2012 - It was reasonable to assume that by 2013, Coghill would have stable employment - For that year and into the indefinite future, spousal support would be payable at $3,000 monthly - See paragraphs 76 to 87.

Family Law - Topic 2210

Maintenance of wives and children - General principles - Calculation or attribution of income - Coghill and Michalko separated in 2002 after 28 years' cohabitation - Coghill sought support as Michalko's one time interdependent partner - Michalko worked for Syncrude in Fort McMurray - He had been making voluntary spousal support payments but Coghill argued that it was inadequate - She sought retroactive support back to 2003 - The Alberta Court of Queen's Bench ordered support retroactive to July 1, 2007 - The court found that Michalko's income had been skewed over the past three years - The parties could not realistically have believed in 2002 that labour shortages at Fort McMurray and in Canada caused by the Fort McMurray plant construction would be so severe as to cause Syncrude to rewrite its contract with its employees - Therefore, the court discounted $17,000 retention bonuses from Michalko's income for 2007, 2008 and 2009 as a windfall not reasonably expected by the parties - Further, Michalko had worked excessive overtime in those years (800, 700 and 463 hours), which he could not have realistically refused - The overtime hours that should have been reasonably anticipated for 2007, 2008 and 2009 over and above the statutory holidays was about 300 hours per year, and was used to determine his base salary for support purposes - See paragraphs 21 to 27 and 68 to 76.

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - [See first Family Law - Topic 1013 ].

Family Law - Topic 2213

Maintenance of wives and children - General principles - Extent of duty to support - [See third Family Law - Topic 1013 ].

Family Law - Topic 2329

Maintenance of wives and children - Maintenance of wives - Considerations - Coghill and Michalko separated in 2002 after 28 years' cohabitation - Coghill sought support as Michalko's one time interdependent partner - The Alberta Court of Queen's Bench found that had the relationship not taken place, Coghill would likely have been in a better position to support herself after separation - Therefore, she was entitled to support on a compensatory basis - Second, Coghill benefited from the income stream provided from Michalko's employment practically throughout the relationship - She had lost that income stream and was entitled to support on a needs basis - Need in this sense was not to be interpreted as basic survival but rather need on a basis consistent with the lifestyle sharing his income and her own would justify - In considering the standard of living which Coghill was entitled to enjoy, the court first had to determine the standard of living which the parties enjoyed before the separation and the standard of living the parties had a reasonable expectation of enjoying in the future at the time of the separation - See paragraph 63.

Family Law - Topic 2388

Maintenance of wives and children - Variation of - Cost of living increases - Coghill and Michalko separated in 2002 after 28 years' cohabitation - Coghill sought support as Michalko's one time interdependent partner - The Alberta Court of Queen's Bench ordered, inter alia, ongoing indefinite support - The court stated that the spousal support payments were based upon the parties' present financial positions and upon the present costs of living - Coghill lived in Wetaskiwin and Michalko lived in Fort McMurray - The court found that the City of Edmonton's cost of living fell somewhere between the cost of living for Wetaskiwin and Fort McMurray - The court held that if there was any change, either upward or downward in Edmonton's cost of living as reflected in the Consumer Price Index as published by Statistics Canada which exceeded 10%, a corresponding adjustment by way of increase or reduction would be made in the spousal support payments - See paragraph 86.

Family Law - Topic 2486

Maintenance of wives and children - Awards - Effect of income or potential income of claimant - [See third Family Law - Topic 1013 ].

Restitution - Topic 63

Unjust enrichment - General - Requirement of enrichment at plaintiff's expense - Coghill and Michalko separated after 28 years' cohabitation - Coghill alleged that Michalko had been unjustly enriched by their cohabitation - She sought an equal sharing of all assets acquired by the parties individually and jointly to the date of trial - Coghill argued that but for the cohabitation with Michalko and the raising of children, she would have obtained a degree in education much sooner - Michalko argued that this was speculative - Further, he argued that during their cohabitation, Coghill significantly benefited from the income generated by his earnings - He was by far the main contributor to all the household expenses - Her babysitting was not a source of significant income; her job as a teacher's aide was more significant, but at no time did she earn income which would have allowed her to live the comfortable lifestyle they lived as a family - The Alberta Court of Queen's Bench held that although it was difficult to predict what Coghill would have done but for the relationship, what she had done from shortly before the separation and especially after the separation was sufficient to make a finding that she had the skills, intelligence and drive to better her economic situation by becoming well educated and securing employment in her field - Therefore, if she had not chosen to live with Michalko for 28 years, she would have been left in a much better position to earn income in the future - There had been a deprivation - See paragraphs 33 to 35.

Restitution - Topic 65

Unjust enrichment - General - What constitutes enrichment - Coghill and Michalko separated after 28 years' cohabitation - Coghill alleged that Michalko had been unjustly enriched by their cohabitation - She sought an equal sharing of all assets acquired by the parties individually and jointly to the date of trial and the imposition of a constructive trust - The Alberta Court of Queen's Bench held that Michalko had been enriched over the parties' 28 years of cohabitation - By staying at home and providing all the usual services of a homemaker, from cooking to cleaning to being the primary caregiver for their three children, Coghill had enabled Michalko to commence employment with Syncrude, train for and become a journeyman millwright and later become a journeyman instrumentation mechanic - This had enabled him to engage in considerable overtime work - He had accumulated assets including Syncrude's basic non-contributory pension - Coghill had also contributed her income in part to expenses which could be considered household expenses - See paragraph 32.

Restitution - Topic 123

Unjust enrichment - Remedies - Constructive trust - [See Family Law - Topic 688 ].

Trusts - Topic 2346

Constructive trusts - Basis for imposition - Unjust enrichment - [See Family Law - Topic 688 ].

Cases Noticed:

R.A.P. v. B.K. (2008), 438 A.R. 174; 2008 ABQB 4, appld. [para. 27].

Locke v. Ledrew, [2006] A.R. Uned. 359 (Q.B.), refd to. [para. 33].

Rawluk v. Rawluk, [1990] 1 S.C.R. 70; 103 N.R. 321; 38 O.A.C. 81, refd to. [para. 43].

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. 43].

Mustard v. Brache (2006), 397 A.R. 361; 384 W.A.C. 361; 2006 ABCA 265, refd to. [para. 43].

McAlister v. McAlister (1982), 41 A.R. 277 (Q.B.), refd to. [para. 47].

Maloney v. Maloney, [1993] O.J. No. 2724 (Gen. Div.), refd to. [para. 47].

L.N.S. v. W.M.K. (1999), 246 A.R. 60 (Q.B.), refd to. [para. 50].

Hantel v. Hilscher (1996), 182 A.R. 285 (Q.B.), affd. (2000), 255 A.R. 187; 220 W.A.C. 187; 2000 ABCA 84, refd to. [para. 50].

Bigelow v. Bigelow, [1995] O.J. No. 2395 (Div. Ct.), refd to. [para. 54].

J.A.B. v. H.W.C., [2008] B.C.T.C. Uned. C12; 58 R.F.L.(6th) 295; 2008 BCSC 644, refd to. [para. 544].

Lowry v. Lowry, [1997] A.R. Uned. 273; 56 Alta. L.R.(3d) 139 (Q.B.), refd to. [para. 60].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 62].

Spiers v. Spiers, [2003] A.R. Uned. 577; 25 Alta. L.R.(4th) 131; [2004] 9 W.W.R. 371; 2003 CarswellAlta 1413; 2003 ABQB 830, refd to. [para. 64].

Yemchuk v. Yemchuk (2005), 215 B.C.A.C. 193; 355 W.A.C. 193; 16 R.F.L.(6th) 430; 2005 BCCA 406, refd to. [para. 77].

Fisher v. Fisher (2008), 232 O.A.C. 213; 2008 ONCA 11, refd to. [para. 77].

Taylor v. Taylor (2009), 464 A.R. 245; 467 W.A.C. 245; 2009 ABCA 354, refd to. [para. 77].

Sawatzky v. Sawatzky (2008), 440 A.R. 267; 438 W.A.C. 267; 2008 ABCA 355, refd to. [para. 77].

Lust v. Lust (2007), 417 A.R. 106; 410 W.A.C. 106; 2007 ABCA 202, refd to. [para. 77].

Statutes Noticed:

Family Law Act, S.A. 2003, c. F-4.5, sect. 58 [para. 62]; sect. 60 [para. 56].

Counsel:

Marie Gordon, Q.C. (Gordon Zwaenepoel), for the applicant;

Terrance A. Cooper, Q.C. (Campbell & Cooper), for the respondent.

This action and application were heard by Marceau, J., of the Alberta Court of Queen's Bench, Judicial District of Ft. McMurray, on November 16-20, 2009 and April 29, 2010. Marceau, J., delivered the following decision and addendum to decision on January 26, 2010 and April 29, 2010, respectively.