Dunn v. Murphy, 2013 NSSC 444

• Judge: MacLellan, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 02, 2012
• Jurisdiction: Nova Scotia
• Citations: 2013 NSSC 444;(2013), 351 N.S.R.(2d) 1 (SC)

Dunn v. Murphy (2013), 351 N.S.R.(2d) 1 (SC);

    1111 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. OC.048

Leslie Dunn (petitioner) v. Thomas Murphy (respondent)

(SFSNOTH-063283; 2013 NSSC 444)

Indexed As: Dunn v. Murphy

Nova Scotia Supreme Court

Family Division

MacLellan, J.

July 15, 2013.

Summary:

Common-law spouses separated in June 2006 after a 17 year relationship. The wife owned her own home. Both were employed. During the relationship, two rental properties were purchased by the husband (sole registered owner and mortgagor), renovated and resold. The husband retained the $153,145.35 profit. The wife claimed 50% of the profit by way of constructive trust for the husband's unjust enrichment in what was an accumulation of wealth by a joint family venture. The husband likewise claimed 50% of the value of the wife's home.

The Nova Scotia Supreme Court, Family Division, held that the wife's physical and financial contributions to the rental properties entitled her to a 45% share of the profits. Given the husband's unquantifiable minimal contributions to the obtention and maintenance of the wife's home, his claim for equitable relief was dismissed.

Family Law - Topic 688

Husband and wife - Property rights during and after common law marriage or relationship - Resulting or constructive trusts - During the common-law spouses' 17 year relationship, the husband purchased two rental properties which were renovated and resold at a $153,145.35 profit - The wife brought significant assets into the relationship, including the home they lived in - She paid almost all of the bills respecting the home - The husband came into the relationship with almost nothing - Both were steadily employed, but the wife earned significantly more and the husband lived pay cheque to pay cheque - The wife loaned him the down payment for the first rental property, which he repaid - The wife provided other loans (all repaid) and worked side by side with the husband evenings, weekends and vacations to complete renovations needed to lease the properties - Title was held solely by the husband and he was the sole mortgagor - The wife claimed 50% of the profit by way of constructive trust for the husband's unjust enrichment in what was an accumulation of wealth by a joint family venture - The husband likewise claimed 50% of the value of the wife's home - The Nova Scotia Supreme Court, Family Division, held that the wife's physical and financial contributions to the rental properties entitled her to 45% of the profits - There was a clear link between the wife's contribution to the joint family venture and the husband's accumulation of wealth - The rental properties were intended to be part of their retirement package - The relationship allowed the husband to live virtually rent free in the wife's home, freeing up his income to accumulate the profits - The husband was unjustly enriched and the wife suffered a corresponding deprivation for which there existed no juristic reason - It would be unfair for the husband to leave the relationship with the entire profits, as it was impossible for him to accumulate this wealth without the wife's financial and physical assistance - Given the husband's unquantifiable minimal contributions to the obtention and maintenance of the wife's home, his claim for equitable relief was dismissed.

Family Law - Topic 1006

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

Trusts - Topic 2346

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

Cases Noticed:

Kerr v. Baranow, [2011] 1 S.C.R. 269; 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 49].

Baker-Warren v. Denault (2009), 277 N.S.R.(2d) 271; 882 A.P.R. 271; 2009 NSSC 59 (Fam. Div.), refd to. [para. 57].

Darlington v. Moore, [2011] N.S.R.(2d) Uned. 77; 2011 NSSC 152 (Fam. Div.), refd to. [para. 77].

Goddard v. Hambleton (2005), 237 N.S.R.(2d) 1; 754 A.P.R. 1 (C.A.), refd to. [para. 103].

Authors and Works Noticed:

Hovius, Berend, Property Disputes Between Common Law Partners (Law Society of Upper Canada presentation on June 16, 2011), generally [para. 77].

MacKinnon, Jennifer, Initial Judicial Responses to Unanswered Questions (2012), generally [para. 77].

Counsel:

Elaine Gibney, for Leslie Dunn;

David Iannetti, for Thomas Murphy.

This matter was heard on August 7-8, September 13 and November 2, 2012, at Sydney, N.S., before MacLellan, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following judgment orally on July 15, 2013.