Kopr v. Kopr et al., 2009 ABQB 93

• Judge: Thomas, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 20, 2009
• Citations: 2009 ABQB 93;(2009), 465 A.R. 300 (QB)

Kopr v. Kopr (2009), 465 A.R. 300 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. MR.019

A.C. Waring & Associates Inc., Trustee in Bankruptcy of the Estate of Marie Kopr (plaintiff) v. Milan Kopr and 795760 Alberta Ltd. (defendants)

(0303 03069; 2009 ABQB 93)

Indexed As: Kopr v. Kopr et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Thomas, J.

February 20, 2009.

Summary:

A former common law spouse (Marie) claimed that her former partner (Milan) and his numbered company (the corporate defendant) had been unjustly enriched. Marie sought the imposition of a constructive trust or monetary compensation. At issue were five properties: the Edmonton apartment building, the Saskatchewan Lake property, the 90 th Street house, the 114 th Street condominium and the Jasper Avenue condominium. Title to the properties was held either in Milan's name or in that of the corporate defendant.

The Alberta Court of Queen's Bench held that Milan and the corporate defendant had been unjustly enriched regarding all of the properties. It was appropriate to impose a constructive trust over the Edmonton apartment building and the Saskatchewan Lake property, but a monetary award was a sufficient remedy regarding the other three properties. Marie was entitled to a 50% beneficial interest in the Edmonton apartment building and the Saskatchewan Lake property and an additional $50,000 as compensation for the remaining three properties.

Editor's Note: For a related decision involving these parties, see (2006), 403 A.R. 29.

Family Law - Topic 688

Husband and wife - Property rights during and after common law marriage or relationship - Resulting or constructive trusts - A former common law spouse (Marie) successfully established that her former partner (Milan) and his numbered company (the corporate defendant) had been unjustly enriched - Marie sought the imposition of a constructive trust or monetary compensation - At issue were five properties: the Edmonton apartment building, the Saskatchewan Lake property, the 90 th Street house, the 114 th Street condominium and the Jasper Avenue condominium - The Alberta Court of Queen's Bench found that it was appropriate to impose a constructive trust over the Edmonton apartment building and the Saskatchewan Lake property, but that a monetary award was a sufficient remedy regarding the other three properties - Marie had acted as a building manager for the Edmonton apartment building and had worked extensively on the Saskatchewan Lake property - These contributions were substantial and were directly linked to the two properties - The argument for a constructive trust was weaker regarding the other properties - Marie's contributions to those properties included indirectly contributing money to the purchase price of the 114 th Street condominium through the corporate defendant and directly contributing money to the down payment on the 90 th Street house - These connections did not support a finding of proprietary interest - Finally, the court held that Marie was entitled to benefit from the substantial increase in value of the properties since the parties separated in 2003 - See paragraphs 61 to 74 - To determine the current value of the constructive trust, the court applied the "value survived" approach, rather than the "value received" - Marie was entitled to a 50% beneficial interest in the Edmonton apartment building (present value $2.2 million) and the Saskatchewan Lake property (present value $16,000) - Marie was awarded an additional $50,000 as compensation for the remaining three properties - See paragraphs 75 to 86.

Family Law - Topic 695

Husband and wife - Property rights during and after common law marriage or relationship - Valuation (incl. time for) - [See Family Law - Topic 688 ].

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 ].

Restitution - Topic 62

Unjust enrichment - General - What constitutes - A former common law spouse (Marie) claimed that her former partner (Milan) and his numbered company (the corporate defendant) had been unjustly enriched - At issue were five properties: the Edmonton apartment building, the Saskatchewan Lake property, the 90 th Street house, the 114 th Street condominium and the Jasper Avenue condominium - Title to the properties was held either in Milan's name or in that of the corporate defendant - The Alberta Court of Queen's Bench held that Milan and the corporate defendant had been unjustly enriched regarding all of the properties - Through her financial contributions, hard work and dedication, Marie had benefited Milan and the corporate defendant, particularly regarding the Edmonton apartment and the Saskatchewan Lake property - In addition to financial contributions, Marie worked extensively on renovations to the Saskatchewan Lake property and was available on a 24/7 basis as a building manager for the Edmonton apartment building - Marie was correspondingly deprived - The very modest wage that she received from the corporate defendant was not sufficient compensation - After that was terminated, she was not compensated at all for her services - She was also denied the use and enjoyment of the Saskatchewan Lake property - Milan failed to rebut the presumption of unjust enrichment by demonstrating some other juristic reason for the enrichment - Marie was under no duty to provide her services to Milan - Further, the parties' expectations were that the properties were acquired for their joint benefit and to assist in saving for their retirement - Marie would not have exerted the level of effort which she had without an expectation of an interest - Finally, there were no public policy issues, such as power discrepancies or consequences to children, to consider - See paragraphs 46 to 60.

Restitution - Topic 64

Unjust enrichment - General - Juristic reason for enrichment - [See Restitution - Topic 62 ].

Restitution - Topic 65

Unjust enrichment - General - What constitutes enrichment - [See Restitution - Topic 62 ].

Restitution - Topic 123

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

Trusts - Topic 2308

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

Trusts - Topic 2310

Constructive trusts - General principles - Circumstances when not imposed - [See Family Law - Topic 688 ].

Trusts - Topic 2346

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

Cases Noticed:

Davidson v. Loucks, [2008] A.R. Uned. 205; 2008 ABQB 154, refd to. [para. 45].

Panara v. Di Ascenzo (2005), 361 A.R. 382; 339 W.A.C. 382; 2005 ABCA 47, refd to. [para. 45].

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. 45].

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

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. 46]. Mustard v. Brache (2006), 397 A.R. 361; 384 W.A.C. 361; 2006 ABCA 265, refd to. [para. 54].

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. 63].

R.A.P. v. B.K. (2008), 438 A.R. 174; 2008 ABQB 4, refd to. [para. 66].

Pickelein v. Gillmore, [1997] 5 W.W.R. 595; 87 B.C.A.C. 193; 143 W.A.C. 193; 30 B.C.L.R.(3d) 44 (C.A.), refd to. [para. 77].

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

Tran v. Ma, [2007] Northwest Terr. Cases (SC) 33; 2007 NWTSC 33, refd to. [para. 82].

Counsel:

Alvin Goldsman (Goldsman Shadlyn), for the plaintiff;

Milan Kopr appeared on his own behalf.

This action and counterclaims were heard on June 2-6, 2008, by Thomas, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on February 20, 2009.