Belvedere v. The Canada Trust Company as Estate Trustee of the Estate of Brittain [Indexed as: Belvedere v. Brittain Estate]

94 O.R. (3d) 655

Court of Appeal for Ontario,

Rosenberg, R.P. Armstrong and Watt JJ.A.

January 6, 2009

Trusts and trustees -- Constructive trust -- Plaintiff and deceased cohabiting for 23 months on deceased's farm -- Deceased expressing intention to transfer his RRSPs to plaintiff on his death if they were still living together -- Deceased not changing his will before his sudden accidental death -- Trial judge erring in finding that plaintiff was entitled to constructive trust in deceased's RRSPs, to be satisfied by payment of $1,750,000 -- Deceased not unjustly enriched and plaintiff not suffering corresponding deprivation -- Constructive trust not [page656] appropriate remedy even if unjust enrichment was made out -- Amount awarded to plaintiff patently unreasonable in any event.

The plaintiff and the deceased cohabited for 23 months. During that time, the deceased told the plaintiff that he would transfer his Registered Retirement Savings Plans ("RRSPs") to her on his death, provided they were still living together. In order to accomplish this, he asked her to sign a cohabitation agreement and said that he would change his will. No cohabitation agreement was signed and the deceased's will was not changed before his sudden accidental death. The plaintiff brought an action against the trustee of the deceased's estate, asserting a claim for an interest in the estate assets by reason of a constructive or resulting trust. The trial judge issued a declaration that the plaintiff was entitled to a constructive trust in the deceased's RRSPs at the time of his death, to be satisfied by a payment of $1,750,000. The estate appealed.

Held, the appeal should be allowed.

The trial judge erred in finding that the deceased was unjustly enriched. During the relationship, the plaintiff used her travel privileges as an Air Canada employee to take the deceased and his son on trips, and also took them occasionally to her family's Florida condominium. The trial judge valued the travel privileges and the use of the condominium at $30,000. The plaintiff also performed some housekeeping services for the deceased. The trial judge found four categories of deprivation experienced by the plaintiff: she gave up active work with Air Canada; she sold her car for a low price at the deceased's suggestion; she sold her house for less than she thought it was worth and disposed of her furniture; and she was not compensated for her domestic labour. Those categories of deprivation were not sufficient to establish a claim for unjust enrichment. The plaintiff was on leave from her job when she started living with the deceased, so did not give up "active work" as a result of commencing the relationship. She did not experience a financial loss in selling her car or house, and in any event, there was no evidence that the deceased was enriched by those transactions. During the relationship, the deceased paid all of the plaintiff's living expenses, provided her with gifts of jewellery and bought clothing for her. The trial judge failed to balance the benefits conferred and received by the parties to determine whether the plaintiff's contribution was sufficient to entitle her to compensation. The trial judge's finding that the plaintiff suffered deprivation exceeding the lifestyle she enjoyed with the deceased was not supported by the evidence. Finally, the trial judge erred in finding that the plaintiff's "disproportionate emotional response" to the deceased's death provided a legal basis for a claim in unjust enrichment.

Even if unjust enrichment was made out, a constructive trust would not be an appropriate remedy for two reasons. First, a constructive trust is available as a remedy for unjust enrichment only where monetary damages are inadequate. That was not the case here. Second, there must be a link between the contribution that founds the action and the property in which the constructive trust is claimed. The plaintiff did not contribute, directly or indirectly, to the deceased's RRSPs, and whatever potential interest she might arguably have had would in any event be limited to the deceased's last two payments during the time of the cohabitation. The promise of the RRSPs was not sufficient to establish a link. Finally, the trial judge erred in finding that intent was relevant to the establishment of a constructive trust.

Even if a claim for unjust enrichment payable in monetary damages had been made out, the amount awarded to the plaintiff was patently unreasonable in the circumstances. [page657]

APPEAL from the declaration of Browne J., 2007 32666 (ON SC), [2007] O.J. No. 3067, 45 R.F.L. (6th) 81 (S.C.J.) that the plaintiff was entitled to a constructive trust.

Cases referred to Bell v. Bailey, 2001 11608 (ON CA), [2001] O.J. No. 3368, 203 D.L.R. (4th) 589, 148 O.A.C. 333, 20 R.F.L. (5th) 272, 107 A.C.W.S. (3d) 634 (C.A.); Eberts v. Carleton Condominium Corp. No. 396, 2000 16889 (ON CA), [2000] O.J. No. 3773, 136 O.A.C. 317, 36 R.P.R. (3d) 104, 100 A.C.W.S. (3d) 359 (C.A.); Lovsin v. Hodgins, [2008] O.J. No. 1831, 2008 ONCA 371, 39 E.T.R. (3d) 170, 167 A.C.W.S. (3d) 611; Peter v. Beblow, 1993 126 (SCC), [1993] 1 S.C.R. 980, [1993] S.C.J. No. 36, 101 D.L.R. (4th) 621, 150 N.R. 1, [1993] 3 W.W.R. 337, J.E. 93-660, 23 B.C.A.C. 81, 77 B.C.L.R. (2d) 1, [1993] R.D.F. 369, 48 E.T.R. 1, 44 R.F.L. (3d) 329, 39 A.C.W.S. (3d) 646, EYB 1993-67100; Pettkus v. Becker, 1980 22 (SCC), [1980] 2 S.C.R. 834, [1980] S.C.J. No. 103, 117 D.L.R. (3d) 257, 34 N.R. 384, 8 E.T.R. 143, 19 R.F.L. (2d) 165, 6 A.C.W.S. (2d) 263; Rathwell v. Rathwell, 1978 3 (SCC), [1978] 2 S.C.R. 436, [1978] S.C.J. No. 14, 83 D.L.R. (3d) 289, 19 N.R. 91, [1978] 2 W.W.R. 101, 1 E.T.R. 307, 1 R.F.L. (2d) 1, [1978] 1 A.C.W.S. 225; Sorochan v. Sorochan, 1986 23 (SCC), [1986] 2 S.C.R. 38, [1986] S.C.J. No. 46, 29 D.L.R. (4th) 1, 69 N.R. 81, [1986] 5 W.W.R. 289, 46 Alta. L.R. (2d) 97, 74 A.R. 67, [1986] R.D.F. 501, 23 E.T.R. 143, 2 R.F.L. (3d) 225, 39 A.C.W.S. (2d) 347

Paul D. Amey and Heather A. Hall, for appellant. Lou-Anne F. Farrell, for respondent.

The judgment of the court was delivered by

Introduction

R.P. ARMSTRONG J.A.: --

[1] Lora Belvedere met Jeffrey Brittain on June 17, 2000. Three days later, they commenced living together until Mr. Brittain's untimely death in a farming accident on May 8, 2002. During the course of the relationship, Mr. Brittain expressed his intention that on his death he would transfer his five Registered Retirement Savings Plans ("RRSPs") to Ms. Belvedere, provided they were still living together. In order to accomplish this objective, he asked Ms. Belvedere to sign a cohabitation agreement and he, in turn, would change his will.

[2] Unfortunately, when Mr. Brittain died, no cohabitation agreement had been signed and his will had not been changed.

[3] Ms. Belvedere commenced an action against the Canada Trust Company as the trustee of Mr. Brittain's estate. She claimed a broad spectrum of relief, including a claim for an interest in the assets of the estate by reason of a constructive or resulting trust and damages for unjust enrichment.

[4] The trial judge issued a declaration that Ms. Belvedere was entitled to a constructive trust in Mr. Brittain's RRSPs at [page658] the time of his death, to be satisfied by payment to Ms. Belvedere of $1,750,000. Mr. Brittain's estate appeals.

[5] For the reasons that follow, I would allow the appeal.

Background

(a) The relationship

[6] Mr. Brittain was 53 years old in June 2000. He had separated from his second wife, Rosemary Rich, in January of that year. He had custody of his four-year-old son. Mr. Brittain was involved in the insurance business, from which he had amassed considerable wealth. He lived on a working farm in Princeton, Ontario with his son, in a house which he shared with his elderly mother.

[7] At the time of his death, the assets in his estate were valued at approximately $6 million.

[8] Shortly after Mr. Brittain separated from his second wife, he was introduced to Ms. Belvedere through a mutual friend, Angela Campbell. Initially, there was simply telephone contact as Ms. Belvedere lived in Mississauga. Then on June 17, 2000, Ms. Belvedere visited Mr. Brittain at his residence with Angela Campbell and her husband, George Campbell. The next day, Mr. Brittain and his son visited Ms. Belvedere at her home in Mississauga. They stayed the night.

[9] Apparently there was instant mutual attraction and Mr. Brittain invited Ms. Belvedere to move to the Princeton farm with him and his son. Ms. Belvedere accepted, and the couple lived together from June 20, 2000 until Mr. Brittain's death in May 2002.

[10] Ms. Belvedere was 45 years old when she moved in with Mr. Brittain. She was unmarried and had no children. She was a long-standing employee of Air Canada, but had been on sick leave since September 1999. She owned a house and a car. In September 2001, she sold her car to her niece for the outstanding balance owing to a finance company. For a period of time, she rented out her house and then in March 2002, she sold it for $215,000. The net proceeds of the sale, which closed after Mr. Brittain's death, were approximately $70,000.

[11] At the time of Ms. Belvedere's move from Mississauga, there were no promises made by Mr. Brittain concerning his RRSPs. He did not propose marriage to her at that time.

[12] Ms. Belvedere maintained her seniority as an Air Canada union employee throughout her relationship with Mr. Brittain. She returned to work at Air Canada one day per week in October 2000. After several months, Ms. Belvedere opted to take [page659] advantage of Air Canada's policy of shift transfers, which allowed her to pay another employee to work her shift for her. Although she suffered a net loss in pay, as found by the trial judge, the advantage to Ms. Belvedere was that she maintained her employment status, including seniority and entitlement to benefits.

[13] As of June 2001, Ms. Belvedere did secretarial work in Mr. Brittain's office four days a week.

[14] Ms. Belvedere had expenses in relation to her car until she sold it and the expenses of carrying her house during part of the cohabitation. These expenses were to some extent offset by $400 per month rent from her roommate between June 2000 and July 2001. From July 2001 to May 2002, the house was fully rented at the rate of $1,250 a month, which covered all costs. She also had some expenses related to her family's condominium in Florida. Ms. Belvedere testified that, although she was unable to provide the details, in terms of her earnings and expenses, she was "breaking even".

[15] During their 23-month relationship, Mr. Brittain paid all Ms. Belvedere's living expenses, which included housing, food and the use of a car. He provided her with gifts of jewellery, valued at $20,000, and purchased clothing for her. In short, Mr. Brittain paid for anything Ms. Belvedere needed.

[16] For her part, Ms. Belvedere used her Air Canada travel privileges to take Mr. Brittain and his son on occasional trips to her family's condominium in Florida and elsewhere, including Mexico, Bermuda, Jamaica, Arizona, Hawaii, Boston and various destinations in Canada. Mr. Brittain and Ms. Belvedere made it a habit to travel at least one week each month. The Air Canada travel privileges and use of the condominium were valued at $30,000 by the trial judge.

[17] As well, Ms. Belvedere, through her employment, was able to include Mr. Brittain and his son under the Air Canada health plan after the first year of their cohabitation.

[18] During the relationship, Ms. Belvedere cleaned Mr. Brittain's house and cooked for him and his son. Prior to Ms. Belvedere's arrival, Mr. Brittain paid a housekeeper $100 every two weeks to do the housecleaning. The housekeeper was terminated when Ms. Belvedere suggested that she was no longer required. Ms. Belvedere provided babysitting for Mr. Brittain's son when the boy was not in daycare. She also assisted with some chores around the farm.

[19] Ms. Belvedere testified that while on vacation in Hawaii in February 2002, Mr. Brittain proposed marriage to her. They agreed that the wedding would be held on July 13, 2002. They also agreed that, except for a few close friends, the [page660] engagement and wedding date were to be kept secret until some undisclosed date.

(b) The cohabitation agreement and the RRSPs

[20] During the course of the relationship, there were discussions concerning the appropriate provision for Ms. Belvedere in the event of Mr. Brittain's death. In September or October 2000, during a social visit with Angela Campbell and her husband, Mr. Brittain showed Ms. Belvedere a copy of a cohabitation agreement between himself and his second wife, Ms. Rich. This agreement stipulated that in the event of Mr. Brittain's death, provided they were still living together, Ms. Rich would receive Mr. Brittain's RRSPs. If they separated, Ms. Rich would receive nothing.

[21] Mr. Brittain had made changes by hand to the Rich agreement and asked Ms. Belvedere to sign it. Ms. Campbell apparently suggested to Mr. Brittain that he should have a new agreement drafted and also include in it a provision for Ms. Belvedere if they separated before Mr. Brittain's death. After further discussion, he agreed to have a new agreement drafted. Mr. Brittain also agreed to pay $1,000 per month in the event of separation and upon his death, a lump sum calculated on the basis of $1,000 per month for each month of cohabitation. [See Note 1 below]

[22] Mr. Brittain indicated that he would have his solicitor, Paul Amey, draft the appropriate cohabitation agreement. It was agreed that when the cohabitation agreement was drafted, Ms. Belvedere would take it to her own solicitor for independent legal advice before signing. The evidence at trial, which included Mr. Brittain's personal notes, revealed that the cohabitation agreement was to be done before a will was prepared.

[23] Mr. Brittain also consulted a business colleague, Stewart MacDonald, concerning the preparation of an estate plan, but no cohabitation agreement was ever produced. Mr. Brittain's last will, which makes no reference to Ms. Belvedere, was dated January 31, 2001. This will was made during the time of the continuing discussions concerning the cohabitation agreement. Mr. Brittain's son was the main beneficiary under the will.

[24] To further complicate matters, when Mr. Brittain met with his estate planner in November 2001, he referred to his last will as one dated March 18, 2000. In addition, notes that [page661] Mr. Brittain made on the estate plan dated January 7, 2002, made by Mr. Brittain, make no reference to a will dated January 31, 2001.

[25] In respect of the above evidence, the trial judge noted [at para. 50]: "All of this makes it extremely hard to determine Brittain's true intent even if able to determine what he said he intended."

[26] Also, on January 15, 2002, Mr. Brittain changed the beneficiary on a Sun Life group insurance policy from Ms. Belvedere to his estate. The value of this policy was $100,000. The trial judge commented [at para. 64] that that change was "not helpful" in determining Mr. Brittain's specific intent.

[27] Ms. Belvedere testified that she was aware that the January 31, 2001 will made no reference to her and that she was removed as the beneficiary from the Sun Life insurance policy.

The Reasons of the Trial Judge

(a) The factual findings of the trial judge

[28] The trial judge concluded his review of the evidence of Mr. Brittain's intention as follows [at para. 65]:

As stated, all of the evidence is consistent with the conclusion that I make:

In the event of his death, if cohabiting, Brittain intended to substantially benefit [Ms. Belvedere]. The intention to benefit [Ms. Belvedere] was consistent with a benefit valued at $2 million, the approximate value of the RRSPs at the time of the preparation of the estate plan in January 2002.

[29] In respect of the characterization of the relationship between Ms. Belvedere and Mr. Brittain, the trial judge was of the view that, although the period of cohabitation was short (23 months), their commitment to each other was genuine and lasting. He therefore concluded [at para. 77] that the relatively short duration of the relationship was "a serious factor to be considered, but it is not determinative" of whether a constructive trust ought to be recognized.

(b) The trial judge's conclusion that Ms. Belvedere was entitled to a constructive trust in the RRSPs

[30] Relying on the judgment of the Supreme Court of Canada in Peter v. Beblow, 1993 126 (SCC), [1993] 1 S.C.R. 980, [1993] S.C.J. No. 36, the trial judge considered the relevant factors for the establishment of a constructive trust: enrichment of the defendant, a corresponding deprivation of the plaintiff and the absence of any juristic reason for the enrichment. [page662]

[31] The trial judge found that Mr. Brittain was significantly enriched by the various services and benefits provided by Ms. Belvedere as follows [at para. 82]:

I find [Ms. Belvedere] performed domestic engineering services/duties, including housekeeping, meals, laundry, gardening, vegetable gardening, lawn mowing, some modest amount of snow removal, stone picking, loading of wood to be transported, child care in all of its aspects for Kenny, making available health benefits through Air Canada, making available through Air Canada benefits of rights to air flights and accommodation for father and son with minimal flight costs and other travel requirements obtainable at a discount.

[32] In respect of a corresponding deprivation experienced by Ms. Belvedere, the trial judge considered the following [at para. 83]:

Except for working Fridays for approximately one year, [Ms. Belvedere] has given up active work with Air Canada. Through the use of shift selling, she has maintained her status and seniority with Air Canada.

Brittain encouraged her to sell her new motor vehicle, sell her recently acquired home, sell and/or dispose of her furniture. In selling Air Canada shifts, she was able to maintain status and seniority, but she did so at a financial cost. The reference has been to selling shifts, but in application [Ms. Belvedere] pays the purchaser to take her shift. She paid out more per hour in that regard than she was receiving as a paid employee of Brittain. As indicated above, [Ms. Belvedere] has had a disproportionate emotional response and/or breakdown arising out of Brittain's untimely death. She has not worked since and she remains unable to work as to the time of trial. Although there is no medical evidence before me, I make what I believe to be a reasonable conclusion that the time when she will be able to return to work cannot be determined.

[33] After making the above observations, the trial judge concluded [at para. 86] that Ms. Belvedere "suffered deprivation exceeding the lifestyle enjoyed".

[34] In respect of the absence of juristic reason, the trial judge held that even if Ms. Belvedere's lifestyle had arguably improved as a result of cohabiting with Mr. Brittain, this did not constitute a juristic reason for the enrichment.

[35] The trial judge concluded his analysis by observing that the "common theme throughout the entirety of the evidence" was that Ms. Belvedere would be taken care of, and that there was no dispute that Mr. Brittain had intended for her to receive his RRSPs as a spousal rollover if he died during the course of their relationship. The trial judge held that Ms. Belvedere was entitled to a constructive trust in the RRSPs at the time of Mr. Brittain's death. In lieu of the fact that taxes had been paid and the RRSPs no longer existed, he fixed an award in Ms. Belvedere's favour in the amount of $1,750,000. [page663]

[36] The trial judge found it unnecessary to address the issues of resulting trust and proprietary estoppel. [See Note 2 below]

Issues

[37] This appeal raises the following issues: (i) Did the trial judge err in finding that Mr. Brittain was unjustly enriched? (ii) Even if he was correct in finding an unjust enrichment, did the trial judge err in finding a constructive trust? (iii) Did the trial judge err in valuing the award at $1,750,000? (iv) Should the trial judge have considered the alternative remedies of resulting trust and proprietary estoppel?

Analysis

(i) Did the trial judge err in finding that Mr. Brittain was unjustly enriched?

[38] In Pettkus v. Becker, 1980 22 (SCC), [1980] 2 S.C.R. 834, [1980] S.C.J. No. 103, at p. 848 S.C.R., the Supreme Court of Canada set out a three-part test for a finding of unjust enrichment: (1) an enrichment enjoyed by the defendant; (2) a corresponding deprivation suffered by the plaintiff; and (3) the absence of a juristic reason for the enrichment.

[39] Counsel for the appellant submits that the trial judge err in finding that Ms. Belvedere had suffered any deprivation and that he failed to balance the benefits exchanged between Ms. Belvedere and Mr. Brittain. He further submits that there was no unjust enrichment in this case because the benefits provided by Mr. Brittain were greater than the benefits provided by Ms. Belvedere. Alternatively, the net benefit to Mr. Brittain was de minimus.

[40] In particular, counsel for the appellant argues that the Air Canada benefits (travel and health insurance) were available to Ms. Belvedere through her employment regardless of her cohabitation with Mr. Brittain and were of nominal cost to her. [page664] During the relationship, Ms. Belvedere maintained her seniority status with Air Canada and she did not have to encroach upon her assets.

[41] With respect to the benefits conferred by Ms. Belvedere, the trial judge found that the airline passes and use of the Belvedere condominium had an estimated value of $30,000. There was evidence of income reported on Ms. Belvedere's tax return for her services as a housekeeper and for daycare services related to Mr. Brittain's son -- $4,800 and $3,287 respectively. However, these appear to be notional figures. No money was in fact transferred to Ms. Belvedere.

[42] Counsel for the appellant argues that the corresponding benefits received by Ms. Belvedere from Mr. Brittain (room and board, use of a vehicle at no cost, expensive gifts, clothing and monthly vacations) far outweigh the benefits conferred on Mr. Brittain. Counsel submits that if the trial judge had attempted to balance the value of the services rendered and received, he would have realized that his conclusion that Ms. Belvedere "suffered deprivation exceeding the lifestyle enjoyed" was patently unreasonable.

[43] I take from the trial judge's reasons that he found four categories of deprivation experienced by Ms. Belvedere: (i) She gave up active work with Air Canada. (ii) She sold her car for a low price at Mr. Brittain's suggestion. (iii) She sold her house for less than she thought it was worth and disposed of her furniture. (iv) She was not compensated for her domestic labour, apart from notional income reported on her income tax return which presumably benefited Mr. Brittain.

[44] In my view, the categories of deprivation as found by the trial judge are not sufficient to establish a claim for unjust enrichment. Although Ms. Belvedere may have suffered a small loss to transfer her Air Canada shifts, this practice allowed her to maintain her benefits and seniority with Air Canada. I also note that Ms. Belvedere was on leave from her job at the time she began cohabiting with Mr. Brittain, and so she could not be said to have given up "active work" with Air Canada as a result of commencing that relationship.

[45] As well, while Ms. Belvedere arguably gave up something of value in selling her car and her house, she did not experience a financial loss from having done so (on the contrary, she made a [page665] profit on the sale of her house), and in any event, there was no evidence that Mr. Brittain was enriched by these transactions.

[46] With regard to Ms. Belvedere's provision of domestic services, it is clear that such services are capable of forming the basis for a claim in unjust enrichment: see Pettkus v. Becker, at p. 849 S.C.R. and Sorochan v. Sorochan, 1986 23 (SCC), [1986] 2 S.C.R. 38, [1986] S.C.J. No. 46, at pp. 44-45 S.C.R. That said, it is equally clear that the conferring of a benefit does not, by itself, constitute unjust enrichment: see Lovsin v. Hodgins, 2008 ONCA 371, [2008] O.J. No. 1831, 39 E.T.R. (3d) 170 (C.A.), at para. 7. Rather, what is required, and what the trial judge failed to do in this case, is to balance the benefits conferred and received by the parties to determine whether the claimant's contribution is sufficient to entitle her to compensation.

[47] As it stands, the trial judge's conclusion [at para. 86] that Ms. Belvedere "suffered deprivation exceeding the lifestyle she enjoyed" is not supported by the evidence. While it is clear that Mr. Brittain benefited from Ms. Belvedere's care and companionship in the ways discussed above, it is equally clear that she, too, benefited significantly from the relationship. On Ms. Belvedere's own evidence, she was "breaking even" financially during their relationship. She added that in terms of her happiness, "it went up 500 percent".

[48] Finally, the trial judge erred in finding that Ms. Belvedere's "disproportionate emotional response" to Mr. Brittain's death provided a legal basis for a claim in unjust enrichment.

(ii) Did the trial judge err in finding a constructive trust?

[49] Given my conclusion that the trial judge erred in finding that Mr. Brittain had been unjustly enriched, it follows that he erred in finding a constructive trust in Ms. Belvedere's favour. However, even if unjust enrichment had been made out in this case, there are two reasons why a constructive trust would not have been an appropriate remedy.

[50] First, a constructive trust is available as a remedy for unjust enrichment only where monetary damages are inadequate: see Peter v. Beblow, at p. 997 S.C.R. In this case, had unjust enrichment been established, monetary damages would clearly have been an adequate remedy. At the time of his death, Mr. Brittain's estate was valued at approximately $6 million. There were more than adequate funds to compensate Ms. Belvedere for her claim of unjust enrichment.

[51] Second, in addition to the above requirement, there must be a link between the contribution that founds the action and the property in which the constructive trust is claimed: Peter v. Beblow, at p. 988 S.C.R.; see also Sorochan, at p. 50 S.C.R. In [page666] this case, Ms. Belvedere did not contribute, directly or indirectly, to Mr. Brittain's RRSPs, and whatever potential interest she might arguably have had would, in any event, be limited to Mr. Brittain's last two payments of $13,500 per year during the time of the cohabitation.

[52] Counsel for Ms. Belvedere submits that the required link need not always take the form of a contribution to the actual acquisition of the property. In these circumstances, she contends that the link between the contribution and the asset could be the promise to transfer the RRSPs to Ms. Belvedere in return for her contribution to Mr. Brittain's life. I do not agree with this submission. And even if the promise of the RRSPs was sufficient to establish such a link, which I do not accept, the submission ignores the issue of whether a monetary award would be a suitable remedy.

[53] Finally, I agree with counsel for the appellant that the trial judge erred in finding that intent was relevant to the establishment of a constructive trust. In Rathwell v. Rathwell, 1978 3 (SCC), [1978] 2 S.C.R. 436, [1978] S.C.J. No. 14, Dickson J. wrote at pp. 454-55 S.C.R.:

The court will assess the contributions made by each spouse and make a fair, equitable distribution having regard to the respective contributions. The relief is part of the equitable jurisdiction of the court and does not depend on evidence of intention. (Emphasis added)

[54] Moreover, in my view, the trial judge failed to take into account that Mr. Brittain's intention to transfer the RRSPs was conditional upon Ms. Belvedere signing a cohabitation agreement and Mr. Brittain changing his will. This evidence was never challenged. Indeed, it was the evidence of Ms. Belvedere. For reasons never adequately explained in the record at trial, no cohabitation agreement was ever produced and Mr. Brittain did not change his will.

[55] Mr. Brittain could easily have made the transfer by naming Ms. Belvedere as a beneficiary in the RRSPs or by designating Ms. Belvedere as a beneficiary under his will. He did neither.

(iii) Did the trial judge err in valuing the award at $1,750,000?

[56] I have already found that the trial judge erred in finding unjust enrichment and imposing a constructive trust. However, even if a claim for unjust enrichment, payable in monetary damages, had been made out, in my view the amount awarded to Ms. Belvedere was patently unreasonable.

[57] Where damages are the remedy for unjust enrichment, the trial judge ought to proceed on a "value received" approach: see Bell v. Bailey, 2001 11608 (ON CA), [2001] O.J. No. 3368, 203 D.L.R. (4th) 589 (C.A.), at para. 38. [page667] In this case, the services Ms. Belvedere provided that arguably merit compensation were domestic labour, Air Canada travel and health benefits and use of her family's Florida condominium.

[58] In considering the services provided by Ms. Belvedere, the following factors need to be placed on the other side of the scale: (i) The benefits Ms. Belvedere received from Mr. Brittain -- Ms. Belvedere testified that "he took care of everything ... he bought me anything I wanted"; (ii) Mr. Brittain shared child care responsibilities as a custodial father to his son; (iii) Mr. Brittain's son attended daycare five days a week, except in the summer months; (iv) Ms. Belvedere and Mr. Brittain vacationed at least one week every month -- sometimes it was two weeks. Ms. Belvedere testified that she did not even bother to take her wallet with her on vacation; and (v) the Air Canada benefits were available to Ms. Belvedere through her employment at no cost to her, and Mr. Brittain picked up whatever extra costs there were in respect of the Air Canada travel passes and related benefits.

[59] When the various services and benefits provided by Ms. Belvedere are viewed in their totality and balanced with the benefits received by her from Mr. Brittain, it is not possible to attribute a value to them of $1,750,000. Counsel for the appellant submitted that the trial judge effectively awarded damages at a rate equivalent to $2,500 per day of cohabitation. While this may not be the appropriate way of looking at the matter, it does place a different perspective on the trial judge's award.

[60] I have no difficulty in concluding that even if damages for unjust enrichment were available in this case, the amount awarded was patently unreasonable.

(iv) Should the trial judge have considered the alternative remedies of resulting trust and proprietary estoppel?

[61] Given my conclusion that there was no unjust enrichment, it is probably unnecessary to consider the alternative remedies. However, resulting trust and proprietary estoppel were put to us by counsel for Ms. Belvedere as alternative approaches to the case in the event that we found the trial judge [page668] erred in applying the doctrine of constructive trust. I will therefore consider them briefly.

(a) Resulting trust

[62] Counsel for Ms. Belvedere submits that the trial judge's award of $1,750,000 may be justified by the application of the doctrine of resulting trust. She cites Rathwell in support of this proposition. I do not accept her submission. In Rathwell, the court restricted the application of the doctrine to those circumstances where the claimant actually contributed to the acquisition or improvement of the asset over which the resulting trust is claimed. Dickson J. said, at p. 451 S.C.R.:

If at the dissolution of a marriage one spouse alone holds title to property, it is relevant for the court to ask whether or not there was a common intention, or agreement, that the other spouse was to take a beneficial interest in the property ... It is relevant and necessary for the courts to look to the facts and circumstances surrounding the acquisition, or improvement, of the property. If the wife without title has contributed, directly or indirectly, in money or money's worth, to acquisition or improvement, the doctrine of resulting trusts is engaged. An interest in the property is presumed to result to the one advancing the purchase moneys, or part of the purchase moneys. (Emphasis added)

[63] As discussed above, Ms. Belvedere made no such contribution to the acquisition of or improvement of the RRSPs.

(b) Proprietary estoppel

[64] Although the trial judge referred to promissory estoppel and counsel for Ms. Belvedere referred to both promissory estoppel and proprietary estoppel, the argument before us was restricted to proprietary estoppel.

[65] In Eberts v. Carleton Condominium Corp. No. 396, 2000 16889 (ON CA), [2000] O.J. No. 3773, 136 O.A.C. 317 (C.A.), at p. 323 O.A.C., Finlayson J.A., speaking for the court, described proprietary estoppel as follows:

The basic tenets of proprietary estoppel are described in McGee, Snell's Equity, 13 ed. (2000) at pp. 727-28:

Without attempting to provide a precise or comprehensive definition, it is possible to summarize the essential elements of proprietary estoppel as follows: (i) An equity arises where: (a) the owner of land (O) induces, encourages or allows the claimant (C) to believe that he has or will enjoy some right or benefit over O's property; (b) in reliance upon this belief, C acts to his detriment to the knowledge of O; and [page669] (c) O then seeks to take unconscionable advantage of C by denying him the right or benefit which he expected to receive.

[66] Counsel for Ms. Belvedere asserts that, failing the application of the doctrines of constructive trust or resulting trust, Ms. Belvedere should be entitled to invoke the doctrine of proprietary estoppel in order to give legal effect to Mr. Brittain's expressed intention. I disagree.

[67] Even if the doctrine of proprietary estoppel extends to chattels, and there is some controversy on this point, I am satisfied that Ms. Belvedere's claim does not meet the requirement of detrimental reliance referred to by Snell and cited with approval by Finlayson J.A. in Eberts. There is no evidence that Ms. Belvedere relied to her detriment on Mr. Brittain's promise of a future interest in the RRSPs when she moved to the Princeton farm. Even if it could be said that she remained on the farm because the promise had been made, it cannot be said that she remained on the farm for the next 17 or 18 months to her detriment. The above analysis in respect of unjust enrichment would suggest otherwise.

Disposition

[68] I would allow the appeal, set aside the judgment of the trial judge and dismiss the action.

Costs

[69] I would fix the costs in favour of the appellant on a partial indemnity scale in the amount of $25,000 including disbursements and GST. If the appellant seeks costs of the trial, we can be spoken to and directions will be given.

Appeal allowed.

Notes

[See Note 1 below]

[See Note 2 below]

Note 1: The evidence is confusing on this point. Another version of it is that Mr. Brittian would provide a lump sum of $10,000 for each year of cohabitation in addition to the $1,000 per month for ongoing support.

Note 2: The trial judge referred to the estoppel as "promissory" estoppel. On appeal, counsel for Ms. Belvedere made submissions on "proprietary estoppel".