Diebert v. Calder, (2001) 289 A.R. 228 (QB)

• Judge: Watson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 30, 2001
• Citations: (2001), 289 A.R. 228 (QB);2001 ABQB 187

Diebert v. Calder (2001), 289 A.R. 228 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. MR.113

Helen Agnus Diebert (plaintiff) v. John Calder (defendant)

(Action No. 9803 22507; 2001 ABQB 187)

Indexed As: Diebert v. Calder

Alberta Court of Queen's Bench

Judicial District of Edmonton

Watson, J.

March 14, 2001.

Summary:

The plaintiff sued the defendant, seeking a declaration that the parties' nine year relationship had been tantamount to a marriage under s. 16.1 of the Domestic Relations Act. The plaintiff also sought spousal support and, through the law of constructive trust, a form of division of what would be regarded as matrimonial property in a formal marriage.

The Alberta Court of Queen's Bench declared that the relationship had been tantamount to a marriage. The court granted the plaintiff lump sum spousal support and allowed the constructive trust claim.

Family Law - Topic 688

Husband and wife - Property rights during and after common law marriage or relationship - Resulting or constructive trusts -A plaintiff sued her former common law husband, seeking, through the law of constructive trust, a division of property - The Alberta Court of Queen's Bench stated that although the matter was not uncontroversial, there appeared to be additional and inter-related requirements to the requirements of enrichment, corresponding deprivation, and lack of juristic reason - The additional requirements appeared to go both to proof of claim and to the justice of the situation - These additional requirements were: (a) proof of a causal connection between the contribution and the property which had to be "sufficiently substantial and direct" and (b) proof that the person alleging the unjust enrichment had a reasonable expectation of receiving an interest in the property and that the defendant knew or ought to have known of that expectation - The nature of the plaintiff's reasonable expectation and defendant's knowledge had considerable significance in determining the justice of any form of division, since the presumptive split under the Matrimonial Property Act did not apply - See paragraphs 111 to 112.

Family Law - Topic 688

Husband and wife - Property rights during and after common law marriage or relationship - Resulting or constructive trusts -A wife, age 57, and her husband, age 64, separated after a nine year common law relationship - The husband had been the "main bread winner" - Expenses were split - The wife did the majority of the house and yard work - She invested $3,600 in a garden - The husband's companies paid her a generous wage for bookkeeping services and a moderate wage for other hourly duties - The companies expensed the costs of her income - The husband's asset portfolio increased during the relationship - The wife sought a division of property through the law of constructive trust - The Alberta Court of Queen's Bench considered, inter alia, the wife's reasonable expectations and allowed the claim - The husband had been enriched and the wife deprived - Although the wife might have benefitted from getting rid of a debt problem and an improved life, this did not prevent a constructive trust remedy - See paragraphs 104 to 126.

Family Law - Topic 1001

Common law or same sex relationships - What constitutes common law relationship - The plaintiff and defendant began dating exclusively in their "mature years" - In 1990 they moved in together with the intention of seeing how things would work out - They cohabited for nine years, sharing a common household, maintaining a common garden, splitting expenses, working together in the defendant's business, going on joint vacations and, to some extent, enjoying the company of mutual friends and their respective families - They maintained a high degree of financial autonomy - The defendant treated the plaintiff as a wife and partner - In 1996, they purchased a motorhome together and, in so doing, represented themselves as husband and wife - The Alberta Court of Queen's Bench held that the parties had been in a common law relationship where they had continuously cohabitated in a "marriage-like relationship" for the entire period that they lived together (Domestic Relations Act, s. 1(2)(b)(i)) - See paragraphs 62 to 84.

Family Law - Topic 1001

Common law or same sex relationships - What constitutes a common law relationship - Section 1(2) of the Domestic Relations Act defined a "common law relationship" as one involving a "marriage-like relationship" - The Alberta Court of Queen's Bench stated that a court should not casually decide that a marriage-like relationship has been embarked upon and continued following the relationship's breakdown - A court should consider the parties' conduct and statements both before the relationship started and through to its conclusion and beyond its end to a realistic extent in order to fairly determine if it can be said, objectively, that a marriage-like relationship existed - An objective conclusion would be based on factors commonly accepted as indications of such a relationship and might often be reached, in large measure, by weighing circumstantial evidence - Considerations would include the relevant events, circumstances of time and place, and the parties' express or implied intentions and reasonable expectations - It would not be an entirely formulaic process aimed at excluding "any other reasonable conclusion" as in Hodges' Case - See paragraphs 66 and 67.

Family Law - Topic 1001

Common law or same sex relationships - What constitutes a common law relationship - Section 1(2) of the Domestic Relations Act defined a "common law relationship" as one involving a "marriage-like relationship" - The Alberta Court of Queen's Bench stated evidence of a direct commitment by the parties, voluntarily entered into, to make a lifelong commitment to a relationship with one another that had the generally accepted characteristics of a conjugal relationship would be compelling evidence that what occurred was a marriage-like relationship - Moreover, a degree of commitment short of that would still be important evidence - However, the absence of proof of such a commitment at the commencement of the relationship would not be terminal on the question - See paragraphs 72 and 73.

Family Law - Topic 1013

Common law or same-sex relationships - Maintenance - A party to a common law relationship sought spousal support under s. 16.1 of the Domestic Relations Act - The Alberta Court of Queen's Bench held that the adaptation of the principles set out by the Supreme Court of Canada in Moge v. Moge and Bracklow v. Bracklow was aided by the similarity of s. 16.1 to s. 15.2(4) of the Divorce Act - Moreover, the justice of the situation in a given case should have regard to analogous factors such as those under the Divorce Act - In light of the manner in which the case was argued, the court concluded that it should not treat the terms of s. 16.1 as exclusive of other relevant facts - See paragraph 91.

Family Law - Topic 1013

Common law or same-sex relationships - Maintenance - The plaintiff, age 57, and the defendant, age 64, separated after a nine year common law relationship - When the plaintiff first moved to the defendant's acreage, she had debt and no savings - The defendant was the "main bread winner" - Expenses were split - The plaintiff did the majority of the house and yard work - The defendant, through his businesses, paid the plaintiff a generous wage for bookkeeping services and a moderate wage for other hourly duties - The defendant was now living off his savings - The plaintiff aspired to continue working, although there was a limited range of possibility - The Alberta Court of Queen's Bench concluded that an appropriate support award for the plaintiff was $650 per month from the date of separation until she reached age 65, to be paid on a lump sum basis - The court considered, inter alia, the plaintiff's reasonable expectations arising from the level of support she received during the relationship - See paragraphs 85 to 103.

Trusts - Topic 2308

Constructive trusts - General principles - Circumstances when imposed - [See second Family Law - Topic 688 ].

Cases Noticed:

Hodge's Case (1838), 2 Lew. C.C. 227, 168 E.R. 1136, refd to. [para. 67, footnote 1].

Taylor v. Rossu (1998), 216 A.R. 348; 175 W.A.C. 348 (C.A.), refd to. [para. 70, footnote 2].

Spracklin v. Kichton (2000), 278 A.R. 27; 2000 CarswellAlta 1335 (Q.B.), refd to. [para. 71, footnote 3].

Randle v. Randle (1999), 254 A.R. 323 (Q.B.), refd to. [para. 71, footnote 4].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, affing. (1996), 96 O.A.C. 173; 31 O.R.(3d) 417; 142 D.L.R.(4th) 1; 25 R.F.L.(4th) 116; 40 C.R.R.(2d) 240 (C.A.), affing. (1996), 27 O.R.(3d) 593; 132 D.L.R.(4th) 538; 17 R.F.L.(4th) 365; 35 C.R.R.(2d) 123 (Gen. Div.), refd to. [para. 71, footnote 5].

Molodowich v. Penttinen (1980), 17 R.F.L.(2d) 376 (Ont. Dist. Ct.), refd to. [para. 71, footnote 6].

Gostlin v. Kergin, [1986] 5 W.W.R. 1; 3 B.C.L.R.(2d) 264; 1 R.F.L.(3d) 448 (C.A.), refd to. [para. 73, footnote 7].

Gostlin v. Kergin (1985), 47 R.F.L.(2d) 43 (B.C.C.A.), refd to. [para. 73, footnote 7].

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384; 19 R.F.L.(2d) 165; 8 E.T.R. 237; 117 D.L.R.(3d) 257, affing. (1978), 87 D.L.R.(3d) 101; 20 O.R.(2d) 105; 5 R.F.L.(2d) 344 (C.A.), refd to. [para. 73, footnote 8].

Smithson v. Bock Estate (1998), 217 A.R. 50 (Q.B.), refd to. [para. 84, footnote 10].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 87, footnote 11].

CanadianOxy Chemicals Ltd. et al. v. Canada (Attorney General) et al., [1999] 1 S.C.R. 743; 237 N.R. 373; 122 B.C.A.C. 1; 200 W.A.C. 1; 133 C.C.C.(3d) 426; 23 C.R.(5th) 259; 171 D.L.R.(4th) 733; 29 C.E.L.R.(N.S.) 1, refd to. [para. 87, footnote 12].

R. v. Araujo (A.) et al. (2000), 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 193 D.L.R.(4th) 449 (S.C.C.), refd to. [para. 87, footnote 13].

Winters v. Legal Services Society (B.C.), [1999] 3 S.C.R. 160; 244 N.R. 203; 128 B.C.A.C. 161; 208 W.A.C. 161; 137 C.C.C.(3d) 371; 27 C.R.(5th) 1; [1999] 9 W.W.R. 327, refd to. [para. 87, footnote 14].

Novak et al. v. Bond, [1999] 1 S.C.R. 808; 239 N.R. 134; 122 B.C.A.C. 161; 200 W.A.C. 161, refd to. [para. 87, footnote 15].

Whirlpool Corp. et al. v. Camco Inc. et al. (2000), 263 N.R. 88 (S.C.C.), refd to. [para. 87, footnote 16].

Canada (Attorney General) v. Haberman (2000), 258 N.R. 150 (F.C.A.), refd to. [para. 87, footnote 17].

Child and Family Services of Winnipeg Central v. K.L.W. et al., [2001] 1 W.W.R. 1; 260 N.R. 203; 150 Man.R.(2d) 161; 230 W.A.C. 161; 191 D.L.R.(4th) 1 (S.C.C.), refd to. [para. 87, footnote 18].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [para. 87, footnote 19].

Best v. Best, [1999] 2 S.C.R. 868; 242 N.R. 1; 123 O.A.C. 1, refd to. [para. 87, footnote 20].

R. v. Sharpe (J.R.) (2001), 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161 (S.C.C.), reving. [2000] 1 W.W.R. 241; 127 B.C.A.C. 76; 207 W.A.C. 76; 136 C.C.C.(3d) 97; 175 D.L.R.(4th) 1; 25 C.R.(5th) 215; 69 B.C.L.R.(3d) 234 (C.A.), refd to. [para. 87, footnote 21].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; [1993] 1 W.W.R. 481; 99 D.L.R.(4th) 456; 43 R.F.L.(3d) 345, refd to. [para. 88, footnote 22].

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. 88, footnote 23].

Zahr v. Zahr (1994), 161 A.R. 42; 24 Alta. L.R.(3d) 274 (Q.B.), refd to. [para. 92, footnote 25].

Hauff v. Hauff (1994), 95 Man.R.(2d) 83; 70 W.A.C. 83; 5 R.F.L.(4th) 419 (C.A.), refd to. [para. 92, footnote 26].

Mosher v. Mosher (1995), 140 N.S.R.(2d) 40; 399 A.P.R. 40; 13 R.F.L.(4th) 385 (C.A.), refd to. [para. 92, footnote 27].

Gallant v. Gallant (1998), 131 Man.R.(2d) 15; 187 W.A.C. 15 (C.A.), refd to. [para. 92, footnote 28].

Elliot v. Elliot (1993), 65 O.A.C. 241; 48 R.F.L.(3d) 237 (C.A.), leave to appeal refused (1994), 175 N.R. 324; 74 O.A.C. 159; 3 R.F.L.(4th) 290 (S.C.C.), refd to. [para. 94, footnote 29].

Inverarity v. Inverarity (1993), 146 A.R. 389; 50 R.F.L.(3d) 251 (Q.B.), refd to. [para. 94, footnote 30].

Inverarity v. Inverarity (1996), 182 A.R. 1 (Q.B.), refd to. [para. 94, footnote 30].

Kos v. Kos (1996), 191 A.R. 241; 137 D.L.R.(4th) 281 (Q.B.), refd to. [para. 94, footnote 31].

McKee v. McKee (1994), 153 A.R. 8 (Q.B.), refd to. [para. 96, footnote 33].

Thompson v. Floyd (2001), 150 B.C.A.C. 6; 245 W.A.C. 6 (C.A.), refd to. [para. 101, footnote 35].

Sorochan v. Sorochan, [1986] 2 S.C.R. 38; 69 N.R. 81; 74 A.R. 67; 2 R.F.L.(3d) 225; [1986] 5 W.W.R. 289; 46 Alta. L.R.(2d) 97; 29 D.L.R.(4th) 1; 23 E.T.R. 143; [1986] R.D.I. 448; [1986] R.D.F. 501, reving. (1984), 36 Alta. L.R.(2d) 119; 44 R.F.L.(2d) 144 (C.A.), refd to. [para. 104, footnote 36].

Moses v. Macferlan (1760), 2 Burr. 1005, refd to. [para. 104, footnote 37].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81; [1993] 3 W.W.R. 337; 101 D.L.R.(4th) 621; 77 B.C.L.R.(2d) 1; 48 E.T.R. 1; 44 R.F.L.(3d) 329, reving. [1991] 1 W.W.R. 419; 29 R.F.L.(3d) 268; 50 B.C.L.R.(2d) 266; 39 E.T.R. 113 (C.A.), refd to. [para. 105, footnote 39].

Rathwell v. Rathwell, [1978] 2 S.C.R. 436; 19 N.R. 91; [1978] 2 W.W.R. 101; 1 R.F.L.(2d) 1; 1 E.T.R. 307; 83 D.L.R.(3d) 289, refd to. [para. 105, footnote 40].

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

Walsh v. Bona (2000), 183 N.S.R.(2d) 74; 568 A.P.R. 74 (C.A.), refd to. [para. 107, footnote 42].

Walsh v. Bona (2000), 185 N.S.R.(2d) 190; 575 A.P.R. 190 (C.A.), leave to appeal granted (2001), 267 N.R. 391; 192 N.S.R.(2d) 200; 599 A.P.R. 200 (S.C.C.), refd to. [para. 107, footnote 42].

Gingras v. Werklund et al. (2000), 258 A.R. 159 (Q.B.), refd to. [para. 107, footnote 43].

Campbell et al. v. Campbell (1999), 119 O.A.C. 30; 173 D.L.R.(4th) 270 (C.A.), refd to. [para. 113, footnote 48].

Kelly v. Russ (1994), 150 A.R. 285 (Q.B.), refd to. [para. 118, footnote 50].

Rabichuk v. Cartwright (1990), 26 R.F.L.(3d) 206 (B.C.S.C.), refd to. [para. 118, footnote 51].

Bigelow v. Bigelow (1995), 15 R.F.L.(4th) 12 (Ont. Div. Ct.), reving. in part (1993), 48 R.F.L.(3d) 424 (Ont. Gen. Div.), refd to. [para. 119, footnote 52].

Pickelein v. Gillmore (1997), 87 B.C.A.C. 193; 143 W.A.C. 193; 27 R.F.L.(4th) 51 (C.A.), refd to. [para. 119, footnote 53].

Hantel v. Hilscher (2000), 255 A.R. 187; 220 W.A.C. 187; 7 R.F.L.(5th) 108 (C.A.), affing. (1996), 182 A.R. 285 (Q.B.), refd to. [para. 119, footnote 54].

Statutes Noticed:

Domestic Relations Act, R.S.A. 1980, c. D-37, sect. 1(2)(b) [para. 62]; sect. 16.1 [para. 86].

Authors and Works Noticed:

McInnes, Mitchell, Unjust Enrichment - Restitution - Absence of Juristic Reason: Campbell v. Campbell, Case Commentary, generally [para. 108, footnote 45].

Counsel:

Marie Gordon (McBean Becker), for the plaintiff;

Steve Mandziuk (Barr Picard), for the defendant.

Watson, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, heard this matter on January 30, 2001, and delivered the following reasons for Judgment on March 14, 2001.