COURT OF APPEAL FOR ONTARIO
CITATION: Fettes v. Clark, 2020 ONCA 705
DATE: 20201104
DOCKET: C67714
Before: Roberts, Trotter and Thorburn JJ.A.
BETWEEN
Sandra Cathy Fettes
Applicant (Respondent)
and
Russell Willis Clark
Respondent (Appellant)
Counsel:
A. Justine Lyons, for the appellant
Tim Peters, for the respondent
Heard and released orally: October 30, 2020 by video conference
On appeal from the order of Justice Mary Jo McLaren of the Superior Court of Justice, dated May 29, 2019.
REASONS FOR DECISION
[1] The appellant appeals from the trial judge’s final order that he pay the respondent, his former common-law spouse, $75,000 and indefinite monthly spousal support of $561.
[2] The appellant submits the trial judge erred:
By granting the respondent’s unjust enrichment claim;
By awarding the respondent indefinite spousal support. Alternatively, the appellant submits the respondent should receive transitional spousal support for two years in the monthly amount of $335.
[3] We are not persuaded by the appellant’s submissions.
[4] It is well-established that the trial judge’s determination of these issues is highly fact-specific and therefore attracts considerable appellate deference absent error: see Kerr v. Baranow, 2011 SCC 10, at para. 158; Berta v. Berta, 2015 ONCA 918, at para. 88. It is not the role of this court to retry the trial judge’s findings. We see no error here that would warrant appellate intervention.
[5] The trial judge thoroughly analyzed the details of the parties’ 17-year common law relationship and lifestyle and in particular, their respective contributions to the acquisition, construction and day-to-day maintenance of their home. She carefully considered their respective submissions.
[6] The trial judge referenced and applied correctly the test for unjust enrichment as articulated by the Supreme Court of Canada in Kerr v. Baranow. Her reasons demonstrate that she considered each element of the test for unjust enrichment and found the respondent’s claim was made out.
[7] As she concluded at paras. 74-75 of her reasons, the benefits conferred by the respondent’s efforts:
were tangible economic benefits that Mr. Clark received. These benefits helped Mr. Clark to create the home and property that is now a significant asset. The contribution to the property by Ms. Fettes was more substantial than anything described in the cases provided where no unjust enrichment was found in my view. There were no juristic reasons for the benefit that was conferred upon Mr. Clark, such as a gift or a contract.
I am of the view that Ms. Fettes suffered a corresponding deprivation as a result of Mr. Clark’s enrichment. She contributed to the property and as such she gave a benefit to Mr. Clark which he received and retained. She provided significant labour to a valuable asset without compensation. Case law suggests that a finding of a corresponding deprivation is not difficult if an unjust enrichment has been found.
[8] We do not read her latter statement to mean that there is automatically a corresponding deprivation as a result of the finding of enrichment.
[9] Nor do we agree that she failed to take into account the question of the mutual benefits conferred and received by the parties. As she stated at para. 89 of her reasons: “I am mindful that Mr. Clark paid for all of the mortgage, taxes, insurance and utilities. I am not suggesting that Ms. Fettes should be compensated for the usual daily household chores that she may have had more time to do.” As a result, the trial judge awarded the respondent, “her value received money damages for her contribution towards the acquisition, improvements and renovations of the five-acre neglected property that was purchased by Mr. Clark for $85,000 after the vendors met the parties and saw the concept drawing.”
[10] The trial judge assessed the value of the respondent’s equitable trust interest in the home at $75,000. The appellant’s appraisal expert estimated the property to have a market value of $465,000 as of November 29, 2016.
[11] The appellant argues that the trial judge erred in disregarding the expert’s evidence that the respondent’s gardening efforts added no value to the property. He says that none of the respondent’s work contributed any meaningful value to the property.
[12] We do not accept these submissions. It was open to the trial judge not to accept the expert’s evidence on this point in light of the evidence of the respondent’s work efforts that the trial judge found did add value to the property.
[13] The trial judge was not required to undertake a minute appraisal of the value of the respondent’s interest but did the best she could on the record before her; her assessment was fair and reasonable: see Djekic v. Zai, 2015 ONCA 25, at para. 167.
[14] With respect to the issue of spousal support, the trial judge did not misapprehend the evidence of the respondent’s income earning capacity or her need for an indefinite period of spousal support. She considered and applied all relevant factors. While her reference to “transitional support” is not entirely clear, the trial judge clearly determined that indefinite spousal support was appropriate in the circumstances of this case given the respondent’s age, income potential and the duration of the relationship: see Djekic, at para. 9. Her decision was reasonable.
[15] We also note that the trial judge included in her order a provision for annual financial disclosure. Moreover, the order for an indefinite period of spousal support is subject to a variation based on a material change in either party’s financial circumstances.
[16] For these reasons, the appeal is dismissed.
[17] The respondent is entitled to her partial indemnity costs of the appeal in the amount of $4,000, inclusive of disbursements and applicable taxes.
“L.B. Roberts J.A.”
“Gary Trotter J.A.”
“J.A. Thorburn J.A.”