Rubin v. Gendemann, (2011) 507 A.R. 215 (QB)

• Judge: Moen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 09, 2011
• Citations: (2011), 507 A.R. 215 (QB);2011 ABQB 71

Rubin v. Gendemann (2011), 507 A.R. 215 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MR.081

Glenna Jean Rubin (plaintiff) v. Klaus Dieter Gendemann (defendant)

(FL03 18439; 2011 ABQB 71)

Indexed As: Rubin v. Gendemann

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moen, J.

March 9, 2011.

Summary:

Rubin and Gendemann began dating in December of 2001. Gendemann moved in with Rubin in July 2003. They lived together as a common law couple (adult interdependent partnership). Both had children from their marriages. They separated in January 2009. During the course of their relationship, Gendemann purchased many properties in his name alone, and those properties had accrued in value. Rubin claimed that she was entitled to half of the accrual in value of the properties on the basis of equity. She also claimed that Gendemann was in loco parentis to her two children and that he should therefore pay child support. Finally, she claimed "spousal" support.

The Alberta Court of Queen's Bench rejected the claims that: (1) Gendemann had been enriched and Rubin deprived by the domestic partnership ("if there were an unjust enrichment, it would be in favour of Gendemann rather than Rubin"; (2) Gendemann held any property in a constructive trust; (3) Gendemann had child support obligations for either of Rubin's children; and (4) Gendemann had any further "spousal" support obligations over and above the support he provided between the end of the relationship and January 1, 2010.

Evidence - Topic 464

Functions of counsel, judge and jury - Credibility of evidence - This family law trial addressed division of property and other legal issues between the plaintiff and defendant who had lived together as a common law couple - Their evidence diverged broadly - The Alberta Court of Queen's Bench addressed "a critical preliminary question", namely, the relative credibility of the parties - The court generally preferred the defendant's evidence - That preference was not primarily grounded in the demeanor of the parties in court, but rather due to a recurring pattern - Specifically, the plaintiff's testimony tended to conflict with the evidence from other sources, particularly those persons who had no obvious alignment with either party - There were other disquieting facets of the plaintiff's character which emerged at trial - The court detected no systematic evidentiary issues with the defendant's testimony - See paragraphs 13 to 20.

Evidence - Topic 4022

Witnesses - Credibility - Considerations - [See Evidence - Topic 464 ].

Family Law - Topic 681

Husband and wife - Property rights during and after common law marriage or relationship - General - The plaintiff claimed 50% of the increase in value of properties owned by the defendant prior to the parties' cohabitation and purchased by the defendant during the cohabitation - She claimed that the defendant had been unjustly enriched at her expense - The Alberta Court of Queen's Bench stated that "The couple's choice not to marry is very significant for how any dispute on property ought to be resolved ... While an unmarried couple chooses not to use the matrimonial legislation, rights in equity remain. Unmarried partners may make a claim for a share of the property through a claim in unjust enrichment with a remedy in money or property ... A decision to live together does not, without more, 'create a positive intention to contribute to and share in each other's assets and liabilities'" - Thus, the court specifically assessed whether there had been an unjust enrichment on the part of the defendant at the plaintiff's expense - In the end result, the court concluded that the plaintiff was "very well compensated for the all but notional benefits that she provided" to the defendant - If there were an unjust enrichment, it would be in favour of the defendant - See paragraphs 53 to 58, 330 and 301.

Family Law - Topic 688

Husband and wife - Property rights during and after common law marriage or relationship - Resulting or constructive trusts - [See first Restitution - Topic 62 ].

Family Law - Topic 692

Husband and wife - Property rights during and after common law marriage or relationship - Quantum meruit claim for contributions - [See third Restitution - Topic 62 ].

Family Law - Topic 1001.1

Common law, same-sex or adult interdependent relationships - What constitutes an interdependent relationship (incl. duration of) - The parties disagreed as to the division of the property obtained during their relationship - The defendant did not dispute that he and the plaintiff were adult interdependent partners - The Alberta Court of Queen's Bench stated that "In Alberta, the features and requirements for a common-law relationship are now codified in the Adult Interdependent Relationships Act ... A person is the adult interdependent partner of another person if the two individuals have lived a relationship of interdependence for a continuous period of not less than three years" - See paragraphs 22 and 23.

Family Law - Topic 1001.1

Common law, same-sex or adult interdependent relationships - What constitutes an interdependent relationship (incl. duration of) - The parties disagreed as to the length of their interdependent relationship - Specifically, they differed on when the relationship commenced - There had been an escalating process in which the couple became more and more involved - The Alberta Court of Queen's Bench concluded that, until July of 2003, the interdependence of the parties was not established - There was no real dispute that the parties met the first two requirements of a "relationship of interdependence" as defined in s. 1(f) of the Adult Interdependent Relationships Act - The critical criterion was the economic and domestic integration (s. 1(f)(iii)) - In evaluating the existence of an economic and domestic unit, there were several circumstances listed in s. 1(2) that the court saw as particularly important - During the pre-July 2003 period the parties' finances were still structured as being independent - Given that the separation date was January 2009, the length of the relationship therefore was five and a half years, not seven - See paragraphs 25 to 37.

Family Law - Topic 1006

Common law, same-sex or adult interdependent relationships - Resulting or constructive trusts - [See first Restitution - Topic 62 ].

Family Law - Topic 1008

Common law, same-sex or adult interdependent relationships - Monetary awards - [See second Family Law - Topic 1013 ].

Family Law - Topic 1013

Common law, same-sex or adult interdependent relationships - Maintenance - The Alberta Court of Queen's Bench considered the legislation and the common law applicable to the obligation of a person who was in an adult interdependent relationship to pay support to a former adult interdependent partner - See paragraphs 329 to 335.

Family Law - Topic 1013

Common law, same-sex or adult interdependent relationships - Maintenance - The length of the parties' common law relationship was five and a half years - The plaintiff claimed that between the end of the relationship (January 2009) and January 2010, she was economically disadvantaged as a consequence of the end of that relationship - During that period, she had received $118,958.93 from the defendant - She asked for $15,000 to $20,000 per month for that period (effectively, $180,000 to $240,000) - The crux of her claim was that her relationship and its end disrupted her income stream - The Alberta Court of Queen's Bench considered the four factors identified in the Family Law Act, s. 60 - In relation to the economic effect of the relationship and its termination, the plaintiff suffered no real economic disadvantage from the relationship - The defendant had no obligations to provide support to the plaintiff's two children - Though the plaintiff was not living in the "high style" that she did during the relationship, there was no evidence that she experienced hardship with the termination of the relationship - She had a well-paying job - In the end result, the court granted spousal support in the amount that the defendant had already paid, namely, $118,958.93, "to ease her resumption of the lifestyle that she enjoyed" prior to the relationship - See paragraphs 336 to 349.

Family Law - Topic 1013

Common law, same-sex or adult interdependent relationships - Maintenance - The length of the parties' common law relationship was five and a half years - The plaintiff claimed that between the end of the relationship (January 2009) and January 2010, she was economically disadvantaged as a consequence of the end of that relationship - She made an alternative claim for a lump sum of $225,000 "spousal" support, if she did not receive half of the accrued value in the property obtained during their relationship - The Alberta Court of Queen's Bench rejected the plaintiff's equitable claim and similarly rejected the alternative "spousal" support claim - The court previously concluded that, considering the "trade balance" between the two parties, the plaintiff came out far ahead - The court found the same when taking into account the Family Law Act, s. 60, and the Bracklow v. Bracklow factors - See paragraph 350.

Family Law - Topic 1013

Common law, same-sex or adult interdependent relationships - Maintenance - In the present matter, the Alberta Court of Queen's Bench did not order ongoing spousal support under s. 56 of the Family Law Act - "The legislation and case-law make it clear that my obligation is to as best as possible separate the parties and their finances, while putting both separating partners into a position where they may resume independent, self-sufficient lives" - On that basis, the court awarded the amount that the defendant had already paid for short term spousal support, i.e., $118,958.93, and did not order repayment of that sum - The defendant was better positioned to take that loss given his income and his not having any equitable obligations to the plaintiff - Further, the defendant undertook those payments willingly - Those payments "more than fully discharge any past or future obligation" the defendant might have to the plaintiff - See paragraphs 354 to 357.

Family Law - Topic 2203

Maintenance of wives and children - General principles - Persons obligated to support children (in loco parentis) - The plaintiff and defendant had lived together as a common law couple for some five and a half years - The plaintiff claimed that the defendant was in loco parentis to her two daughters (one was over 18, employed, and had funds available to further her education) and should, therefore, pay child support to top up the child support she received from her former husband and father of those children - The Alberta Court of Queen's Bench concluded that the defendant did not stand in place of a parent with either of the children - The decisive factor was the defendant's effectively non-existent role in control over the children (Family Law Act, s. 48(2)(c)(ii)) - The defendant operated on more of a "friend" basis - Even if the court were to conclude otherwise, it would still not order support - Here, child support would be a "wealth transfer" to maintain what was in fact an extravagant lifestyle - See paragraphs 308 to 325.

Restitution - Topic 62

Unjust enrichment - What constitutes - The plaintiff claimed 50% of the increase in value of properties owned by the defendant prior to the parties' cohabitation and purchased by the defendant during the cohabitation - In particular, she claimed an interest in real property held solely in the defendant's name - She made the claim in equity and in particular in unjust enrichment - The Alberta Court of Queen's Bench stated that the plaintiff could not now claim an interest as a resulting trust - The Supreme Court of Canada, in its recent decision about the division of assets between domestic partners (Kerr v. Baranow, 2011) had removed that remedy in matrimonial claims as it was no longer necessary to achieve a just result - See paragraphs 38 and 39.

Restitution - Topic 62

Unjust enrichment - What constitutes - During the parties' interdependent relationship (July 2003 to January 2009), the defendant either owned or acquired a number of real properties - The plaintiff claimed that she had contributed to a number of those properties and deserved a 50% share in the increase of their values during the relationship - The Alberta Court of Queen's Bench examined the nature of the contributions that the plaintiff claimed enriched the defendant, including her claims that the defendant owed her both directly for her "sweat" and indirectly for her "nesting" activities - In the end result, the court concluded that the plaintiff was "very well compensated for the all but notional benefits that she provided" to the defendant - If there were an unjust enrichment, it would be in favour of the defendant - See paragraphs 46 to 52, 300 and 301.

Restitution - Topic 62

Unjust enrichment - What constitutes - In this domestic case, the plaintiff claimed that the defendant had been unjustly enriched at her expense during the parties' interdependent relationship (July 2003 to January 2009) - She claimed that she contributed to the assets of the domestic partnership by transferring her house (the Butchart Drive property) to the defendant in June 2003 without full compensation - Second, she claimed that she contributed directly to the value of each of the properties through labour ("sweat equity") - Third, she claimed that she made a domestic contribution ("nest feathering") to the partnership for which she said she suffered a deprivation - The Alberta Court of Queen's Bench, applying the Kerr v. Baranow analysis (2011, SCC) dismissed each of the claims - With respect to the Butchart Drive property, there was no enrichment and consequent deprivation - See paragraphs 73 to 114 - As to the "sweat" contributions, the plaintiff made no significant contribution to the purchase, development or maintenance of any of the properties - She did not do any more at the various holiday properties than one would expect from a frequent visitor - Any residual benefit the defendant received from the plaintiff's presence and contributions was outweighed by the benefit she received by the use of the properties - See paragraphs 115 to 191 - With respect to the "nest feathering" the vast majority of domestic costs were paid for out of the defendant's own pocket - That conclusion alone defeated the alleged unjust enrichment - In any event, there was no deprivation that the plaintiff suffered by virtue of her domestic partnership - See paragraphs 192 to 257.

Restitution - Topic 62

Unjust enrichment - What constitutes - The plaintiff claimed 50% of the increase in value of properties owned by the defendant prior to the parties' cohabitation and purchased by the defendant during the cohabitation - The Alberta Court of Queen's Bench found that the plaintiff could not establish a link between her efforts and the specific properties - The court then looked at the overall relationship to determine if the parties shared in a joint family venture that would suggest an enrichment on the part of the defendant and a corresponding deprivation on the part of the plaintiff - In the end result, the court concluded that an examination of the criteria of mutual effort, economic integration, actual intent, priority of the family, defeated any argument that the parties operated in a joint family venture context - The plaintiff benefited over and above what she could have reasonably expected to do in the context of her relationship with the defendant - The defendant was not getting a disproportionate share of the assets that were accumulated during the domestic partnership - See paragraphs 258 to 287.

Restitution - Topic 123

Unjust enrichment - Remedies - Constructive trust - [See first Restitution - Topic 62 ].

Trusts - Topic 2346

Constructive trusts - Basis for imposition - Unjust enrichment - [See first Restitution - Topic 62 ].

Cases Noticed:

Kerr v. Baranow (2011), 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, appld. [para. 10].

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. 50].

Wright-Watts v. Watts (2005), 387 A.R. 293; 2005 ABQB 708, refd to. [para. 50].

Kopr v. Kopr et al. (2009), 465 A.R. 300; 2009 ABQB 93, refd to. [para. 53].

Davidson v. Loucks, [2008] A.R. Uned. 205; 2008 ABQB 154, refd to. [para. 53].

Behiels v. McCarthy (2010), 496 A.R. 327; 2010 ABQB 281, refd to. [para. 53].

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. 54].

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

Hartshorne v. Hartshorne, [2004] 1 S.C.R. 550; 318 N.R. 1; 194 B.C.A.C. 161; 317 W.A.C. 161; 2004 SCC 22, refd to. [para. 54].

Panara v. Di Ascenzo, [2005] 9 W.W.R. 282; 361 A.R. 382; 339 W.A.C. 382; 2005 ABCA 47, refd to. [para. 55].

Shunamon v. Diegel (2008), 453 A.R. 199; 2008 ABQB 291, refd to. [para. 56].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, appld. [para. 61].

Mustard v. Brache (2006), 397 A.R. 361; 384 W.A.C. 361; 275 D.L.R.(4th) 545; 2006 ABCA 265, refd to. [para. 290].

P.M. v. S.D., [2008] A.R. Uned. 87; 171 A.C.W.S.(3d) 386; 2008 ABCA 224, refd to. [para. 308].

Chartier v. Chartier, [1999] 1 S.C.R. 242; 235 N.R. 1; 134 Man.R.(2d) 19; 193 W.A.C. 19; 168 D.L.R.(4th) 540, refd to. [para. 308].

C.J.R. v. B.D.T. et al., [2009] A.R. Uned. 236; 64 R.F.L.(6th) 140; 2009 ABQB 156, refd to. [para. 311].

Shirley v. Shirley (2007), 417 A.R. 170; 410 W.A.C. 170; 2007 ABCA 281, appld. [para. 313].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211; 169 D.L.R.(4th) 577, refd to. [para. 332].

Hamilton v. Wallace et al., [2008] A.R. Uned. 328; 52 R.F.L.(6th) 331; 2008 ABQB 90, refd to. [para. 332].

Abbott v. Abbott et al., [2010] A.R. Uned. 658; 2010 ABQB 585, refd to. [para. 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. 332].

Schild v. Kassian, [2010] A.R. Uned. 786; 2010 ABQB 572, refd to. [para. 332].

Godin v. Godin, [1999] A.R. Uned. 439; 1999 ABQB 614, refd to. [para. 354].

Statutes Noticed:

Adult Interdependent Relationships Act, S.A. 2002, c. A-4.5, sect. 1(f) [para. 32]; sect. 1(2) [para. 33]; sect. 3 [para. 23].

Family Law Act, S.A. 2003, c. F-4.5, sect. 48 [para. 309]; sect. 51(5) [para. 310]; sect. 56 [para. 329]; sect. 58 [para. 330]; sect. 60 [para. 331].

Counsel:

Debbie A. Yungwirth, Q.C., for the plaintiff;

Tina Huizinga (Barr Picard), for the defendant.

This trial was heard before Moen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment, with reasons, dated March 9, 2011.