Desimone v. Straub et al., (2010) 498 A.R. 311 (QB)

JudgeMahoney, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateJuly 09, 2010
Citations(2010), 498 A.R. 311 (QB);2010 ABQB 462

Desimone v. Straub (2010), 498 A.R. 311 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JL.073

Doreen Mabel Josephine Desimone (plaintiff) v. Douglas John Straub, Shane Johnathon Straub, Rhonda Leigh Straub and Straub & Sons Dairy Ltd. (defendants)

(FL01 01685; 2010 ABQB 462)

Indexed As: Desimone v. Straub et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Mahoney, J.

July 9, 2010.

Summary:

Desimone and Straub lived together from about 1985 to 2005 on a dairy farm owned by Straub. They never married. Desimone claimed that her contribution of labour, goods and money to the farm had unjustly enriched Straub, Straub & Sons Dairy Ltd., and Straub's son and daughter-in-law. Desimone sought a constructive trust in her favour for one half interest in the increase in the value of all the defendants' assets and lands from the date of cohabitation to the date of the trial and one-third of the increase in value of a milk quota purchased in 2008. Alternatively, she sought damages in the form of quantum meruit for the total value of the contributions made by her. In addition, Desimone claimed partner support.

The Alberta Court of Queen's Bench found that Desimone's domestic and farm services provided an unjust enrichment to Straub and Straub & Sons Dairy Ltd. The court held that Desimone was not entitled to a proprietary interest in the farm, but she was entitled to damages calculated according to the value survived approach. Desimone was entitled to 35% of the increase in value from December 1, 1985 to June 1, 2005 and she would receive interest on the value of her 35% share from June 1, 2005 to the date her award was paid. Debts of $200,000 would be deducted from the appraised value of the assets as of June 1, 2005, before calculating Desimone's 35% share. Occupational rent owing by Desimone at $500 per month from June 1, 2005, would be deducted from Desimone's award. Desimone's unjust enrichment claim against Straub's son and daughter-in-law was dismissed. With respect to support, the court held that the $1,200 per month that Straub had paid to Desimone for five years complied with the spousal support objective of recognizing Desimone's economic disadvantage arising from the relationship and its breakdown and the $1,200 per month payments would terminate as of July 1, 2010.

Family Law - Topic 688

Husband and wife - Property rights during and after common law marriage or relationship - Resulting or constructive trusts - Desimone and Straub lived together from about 1985 to 2005 on a dairy farm owned by Straub - They never married - Desimone claimed that her contribution of labour, goods and money to the farm had unjustly enriched Straub and Straub & Sons Dairy Ltd. - Desimone sought a constructive trust in her favour for one half interest in the increase in the value of all the defendants' assets and lands from the date of their cohabitation to the date of the trial and one-third the increase in value of a milk quota purchased in 2008 - In addition, Desimone claimed partner support - The Alberta Court of Queen's Bench found that Desimone's domestic and farm services provided an enrichment to Straub and Straub & Sons Dairy Ltd. - Although Desimone was paid a salary for income splitting and tax purposes, it was minimal and she contributed most of it back to the family unit - The salary did not compensate her for all of the domestic and farm work she did and she therefore suffered a corresponding deprivation - A juristic reason was not established to allow Straub to retain all the accumulated net asset gain - Desimone was not entitled to a proprietary interest in the farm, but she was entitled to damages calculated according to the value survived approach - Desimone was entitled to 35% of the increase in value from December 1, 1985 to June 1, 2005, and she would receive interest on the value of her 35% share from June 1, 2005 to the date her award was paid - Although the defendants argued that the amount payable to Desimone should be reduced by the benefits she received during the course of the relationship, there would be no deduction from Desimone's award for the provision of food and shelter as the court took it into account when determining the appropriate apportionment - The issue of her wages had already been dealt with - With respect to support, the court held that the $1,200 per month that Straub had paid to Desimone for five years (totalling $73,200) complied with the spousal support objective of recognizing Desimone's economic disadvantage arising from the relationship and its breakdown and the $1,200 per month payments would terminate as of July 1, 2010.

Family Law - Topic 1006

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

Family Law - Topic 1008

Common law, same-sex or adult interdependent relationships - Monetary awards - [See Family Law - Topic 688 ].

Family Law - Topic 1013

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

Practice - Topic 1310

Pleadings - Questions of law - Pleading a statute - Desimone and Straub separated after living together for 20 years - Desimone claimed partner support - The Alberta Court of Queen's Bench rejected an argument that Desimone's failure to plead the Family Law Act and the Adult Interdependent Relations Act was fatal to her claim for spousal support - The court stated that "Under the Alberta Rules of Court, the only statutes that must be pleaded are the Statute of Frauds and the Limitations Act (Rule 109), otherwise the pleadings need only contain a summary statement of the material facts on which the party relies on for the claim. The facts in this case give rise to a claim under the Family Law Act" - See paragraph 101.

Restitution - Topic 62

Unjust enrichment - General - What constitutes - [See Family Law - Topic 688 ].

Restitution - Topic 64

Unjust enrichment - General - Juristic reason for enrichment - [See Family Law - Topic 688 ].

Restitution - Topic 124

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

Cases Noticed:

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. 40].

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

Swaren v. Swaren, [2007] A.R. Uned. 203; 74 Alta. L.R.(4th) 143; 2007 ABQB 193, varied (2008), 440 A.R. 27; 438 W.A.C. 27; 2008 ABCA 339, refd to. [para. 41].

Wilson v. Fotsch, [2008] B.C.T.C. Uned. 301; 2008 BCSC 548, varied (2010), 286 B.C.A.C. 276; 484 W.A.C. 276; 2010 BCCA 226, refd to. [para. 42].

Panara v. Di Ascenzo (2005), 361 A.R. 382; 339 W.A.C. 382; 2005 ABCA 47, refd to. [para. 57].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, 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. 65].

Pickelein v. Gillmore (1997), 87 B.C.A.C. 193; 143 W.A.C. 193; 30 B.C.L.R.(3d) 44 (C.A.), refd to. [para. 65].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, refd to. [para. 65].

Kopr v. Kopr et al. (2009), 465 A.R. 300; 2009 ABQB 93, refd to. [para. 68].

Sorochan v. Sorochan, [1986] 2 S.C.R. 38; 69 N.R. 81; 74 A.R. 67, refd to. [para. 71].

R.A.P. v. B.K. (2008), 438 A.R. 174; 2008 ABQB 4, refd to. [para. 72].

F.D.R. v. M.D.P., [2006] A.R. Uned. 29; 2006 ABQB 202, refd to. [para. 74].

Czaplinska v. Caravaggio, [2006] A.R. Uned. 551; 63 Alta. L.R.(4th) 125; 2006 ABQB 615, refd to. [para. 79].

Wang v. Wang et al., [2007] B.C.T.C. Uned. E58; 2007 BCSC 1288, refd to. [para. 96].

Bowers v. Wolfram, [2008] A.R. Uned. 751; 1 Alta. L.R.(5th) 104; 2008 ABQB 729, refd to. [para. 100].

Beneteau v. Young, [2009] O.T.C. Uned. I24 (Sup. Ct. Fam. Ct.), refd to. [para. 105].

R.F.T. v. O.K.G. (2007), 416 A.R. 1; 2007 ABPC 70, refd to. [para. 111].

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. 118].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 120].

Medora v. Kohn (2003), 336 A.R. 163; 2003 ABQB 700, refd to. [para. 120].

Counsel:

Lois M. Sparling, for the plaintiff;

Robert V.T. Boyden, Q.C., for the defendants.

This case was heard on September 1-14, 2009, before Mahoney, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on July 9, 2010.

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12 practice notes
  • Rubin v. Gendemann, (2011) 507 A.R. 215 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • March 9, 2011
    ...332]. N.L.G. v. R.A.T., [2009] A.R. Uned. 488; 74 R.F.L.(6th) 264; 2009 ABQB 415, refd to. [para. 332]. Desimone v. Straub et al. (2010), 498 A.R. 311; 2010 ABQB 462, refd to. [para. Schild v. Kassian, [2010] A.R. Uned. 786; 2010 ABQB 572, refd to. [para. 332]. Godin v. Godin, [1999] A.R. U......
  • R.S.K. v. W.F.W., 2016 ABQB 28
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • January 14, 2016
    ...420 at para 49. This three-part understanding of entitlement applies to partner support under the Family Law Act : Desimone v Straub , 2010 ABQB 462, Mahoney J at para 120; Brick v Cross , 2014 ABQB 35, Goss J at para 86; Kostin v Eaket , 2012 ABQB 756, Jones J at para 108. [66] The objecti......
  • Kostin v. Eaket, [2012] A.R. Uned. 872
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • December 17, 2012
    ...the relevant circumstances to be taken into account in cases such as Bracklow v. Bracklow , [1999] 1 S.C.R. 420, Desimone v. Straub , 2010 ABQB 462, Abbott v. Abbott , 2010 ABQB 585, Schild v. Kassian , 2010 ABQB 572 and the above-cited cases of Hamilton v. Wallace and Gordon v. Towell . Th......
  • Coast Capital Savings Credit Union v. Symphony Development Corp. et al., [2014] B.C.T.C. Uned. 400 (SC)
    • Canada
    • Supreme Court of British Columbia (Canada)
    • March 12, 2014
    ...not be imposed where damages are appropriate: Peter v. Beblow , [1993] 1 S.C.R. 980 at 988; Caterpillar at para. 66; Desimone v. Straub , 2010 ABQB 462 at paras. 66-70. One factor that may be considered is the probability of the award being paid: Peter v. Beblow , [1993] 1 S.C.R. 980 at 999......
  • Request a trial to view additional results
12 cases
  • Rubin v. Gendemann, (2011) 507 A.R. 215 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • March 9, 2011
    ...332]. N.L.G. v. R.A.T., [2009] A.R. Uned. 488; 74 R.F.L.(6th) 264; 2009 ABQB 415, refd to. [para. 332]. Desimone v. Straub et al. (2010), 498 A.R. 311; 2010 ABQB 462, refd to. [para. Schild v. Kassian, [2010] A.R. Uned. 786; 2010 ABQB 572, refd to. [para. 332]. Godin v. Godin, [1999] A.R. U......
  • R.S.K. v. W.F.W., 2016 ABQB 28
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • January 14, 2016
    ...420 at para 49. This three-part understanding of entitlement applies to partner support under the Family Law Act : Desimone v Straub , 2010 ABQB 462, Mahoney J at para 120; Brick v Cross , 2014 ABQB 35, Goss J at para 86; Kostin v Eaket , 2012 ABQB 756, Jones J at para 108. [66] The objecti......
  • Kostin v. Eaket, [2012] A.R. Uned. 872
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • December 17, 2012
    ...the relevant circumstances to be taken into account in cases such as Bracklow v. Bracklow , [1999] 1 S.C.R. 420, Desimone v. Straub , 2010 ABQB 462, Abbott v. Abbott , 2010 ABQB 585, Schild v. Kassian , 2010 ABQB 572 and the above-cited cases of Hamilton v. Wallace and Gordon v. Towell . Th......
  • Coast Capital Savings Credit Union v. Symphony Development Corp. et al., [2014] B.C.T.C. Uned. 400 (SC)
    • Canada
    • Supreme Court of British Columbia (Canada)
    • March 12, 2014
    ...not be imposed where damages are appropriate: Peter v. Beblow , [1993] 1 S.C.R. 980 at 988; Caterpillar at para. 66; Desimone v. Straub , 2010 ABQB 462 at paras. 66-70. One factor that may be considered is the probability of the award being paid: Peter v. Beblow , [1993] 1 S.C.R. 980 at 999......
  • Request a trial to view additional results

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