ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-17,488-06
DATE: 2013-12-04
BETWEEN:
Monique Leona Marie Stafford
Applicant
– and –
Michael Fleming Stafford
Respondent
Michelle E. McAnulty, for the Applicant
Michael Fleming Stafford, self-represented
HEARD: November 6, 2013
DECISION ON APPLICATION
R.D. Gordon J.:
Overview
[1] This decision deals with the Applicant’s claim of unjust enrichment, lump sum spousal support and post-retirement support.
Background Facts
[2] The facts surrounding the parties’ unhappy separation can be found in my judgment dated April 24, 2013. In that decision, rendered following a two day trial, I dealt with the Applicant’s entitlement to ongoing and retroactive spousal support, and the Respondent’s obligation to contribute to section 7 expenses incurred for the children.
[3] Although the equalization of the parties’ net family properties was also to have been determined, it became apparent during the course of the trial that the Respondent had entered into a consumer proposal in March of 2010 and had been discharged prior to trial. Under the provisions of the Bankruptcy and Insolvency Act, the Applicant’s claim for an equalization payment was stayed by virtue of the proposal, and rendered unenforceable as a result of its successful completion.
[4] The Applicant subsequently applied to the Bankruptcy Court for an order to re-open the Respondent’s proposal and lift the stay but was unsuccessful. On November 6, 2013 I granted her motion to amend her pleadings to include a claim for unjust enrichment and to advance a claim for lump sum support and post-retirement support, which claims would be based solely upon the evidence adduced at the trial.
Analysis
The Limitations Issue
[5] I raised with counsel for the Applicant the issue of whether her claim for unjust enrichment may be barred by a limitation period. Her view was that constructive trust claims based on unjust enrichment were not subject to a limitation period.
[6] Recently, in the case of McConnell v. Huxtable, 2013 ONSC 948, Perkins J. undertook a thorough review and analysis of this issue. He determined that for constructive trust claims involving entitlement to real property there is a ten year limitation period in accordance with the Real Property Limitations Act, and that for constructive trust claims unrelated to personal property there is no limitation period.
[7] Even if I were to disagree with Perkins J., it is my view that the Applicant’s claim has been brought within the two year time frame established by sections 4 and 5 of the Limitations Act, 2002. In particular, it was not until the Respondent was discharged from his consumer proposal that the equalization claim by the Applicant became unenforceable. It was not until the equalization claim became unenforceable that the Applicant suffered damages due to unjust enrichment. It has been less than two years since the Respondent’s discharge from the consumer proposal.
The Claim for Unjust Enrichment
[8] In order to succeed on a claim for unjust enrichment, the applicant must establish:
(a) That the Respondent has been enriched by the Applicant;
(b) That the Applicant has suffered a corresponding deprivation; and
(c) That the benefit and deprivation have occurred without a juristic reason.
[9] Although the Applicant did not contribute directly to the Respondent’s pension, I find that she has made indirect contribution to it. For many years, the Applicant was basically a stay at home mom, charged with running the household and looking after the children. By virtue of her actions, the Respondent was able to engage in his employment as a police officer and dedicate himself to maintaining and advancing in his field. As stated by the Supreme Court of Canada in Kerr v. Baranow 2011 SCC 10, [2011] S.C.J. No. 10, domestic services such as this are of significant value to the other spouse and to the family.
[10] I am also satisfied that the Applicant has suffered a corresponding deprivation. That is, notwithstanding her long term contributions to the family, she will be without the benefit of any of the pension funds accumulated during the marriage to offset expenses she will incur during retirement.
[11] The problem with the Applicant’s claim is in establishing the absence of a juristic reason for the enrichment. Had the Respondent not entered into and completed a consumer proposal, the Applicant would not have suffered a deprivation and the Respondent would not have been enriched. That is, the Applicant would have received an appropriate equalization payment to reflect her equal contribution to the wealth accumulated by the family. It is the effect of the Bankruptcy and Insolvency Act that results in her being deprived of her claim. As stated in Kerr, when enrichment of one at the expense of another is required by statute, such amounts to a juristic reason.
[12] Accordingly, the Applicant’s claim of a constructive trust founded upon unjust enrichment cannot succeed.
The Claims for Support
[13] I decline to make an order for lump sum spousal support. As I indicated in my decision last April, the Respondent does not have the financial means to pay a lump sum. Additionally, to order such a payment now would simply be ordering support for the purpose of redistributing assets – something the courts have determined to be inappropriate [see and Davis v. Crawford, 2011 ONCA 294].
[14] As an alternative, counsel urged me to order the payment of post-retirement support, much as was done by Justice Ellies in Decaen v. Decaen, 2012 ONSC 966. He reasoned as follows:
The periodic support that I have ordered, above, is designed to alleviate to the extent possible the economic disadvantages suffered by Ms. Decaen and to recognize the economic advantages that were enjoyed by Mr. Decaen as a result of the duties that Ms. Decaen assumed during the course of their cohabitation. However, without a further order of spousal support payable at a point in time where the parties will retire, the task of reconciling those advantages and disadvantages will not be complete. Mr. Decaen’s bankruptcy has prevented the reallocation of capital that would have included a pension. Under the recent amendments to the Pension Benefits Act, Ms. Decaen could have applied to the court for a transfer of a portion of her husband’s pension plan, which would have provided her with some income at a future date. The loss of that income has created a further disadvantage to Ms. Decaen, who would have been able to contribute to her own pension plan had she not assumed the duties that she did.
[15] Justice Ellies ordered Mr. Decaen to pay support upon retirement equal to one half of the value by which his pension increased between the date of marriage and the date of separation. The Court of Appeal found the award to be reasonable and quantified it at $1,054 per month until a total of $54,000 is paid.
[16] I agree with Justice Ellies that a further order of spousal support payable at a point in time when the parties retire may be appropriate in cases such as these. My concern, however, is in determining the amount now, without regard to the actual condition, means, needs, and other circumstances of the parties when that day arrives. Setting the amount now may fail to adequately consider such things as advances in the Applicant’s career, remarriage and inheritances. It may also fail to adequately address changes in the Respondent’s position such as illness, the existence of other dependants or future loss of pension income. It strikes me as dangerous to declare the extent of the Applicant’s entitlement now when there may be no need when the time arises or an inability of the Respondent to then pay.
[17] In my view, a more appropriate order is that spousal support be the subject of review upon the retirement of the Respondent and that such review be considered having regard to the condition, means, needs and other circumstance of the parties then existing, including: (a) The financial resources available to the Applicant in the event of her retirement; and (b) That portion of the Respondent’s pension income that accrued between the date of marriage, June 30, 1990, and the date of separation, July 16, 2006. Although this order does not offer the parties the benefit of finality, it fairly preserves for the Applicant an entitlement to support in her retirement years.
Costs
[18] There remains outstanding the issue of costs relative to the trial conducted in April, and the motion and argument out of which this decision arises. If the parties are unable to agree on costs, they may make written submissions to me within 45 days, not to exceed five pages each, plus attachments.
______________________________________
The Honourable Mr. Justice Robbie D. Gordon
Released: December 4, 2013
COURT FILE NO.: FS-17,488-06
DATE: 2013-12-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Monique Leona Marie Stafford
Applicant
– and –
Michael Fleming Stafford
Respondent
DECISION ON APPLICATION
R.D. Gordon J.
Released: December 4, 2013