Vallier v. Meester, 2015 ONSC 2312
COURT FILE NO.: FC-13-450
DATE: 20150409
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANIEL VALLIER
Applicant
– and –
SANDRA MEESTER
Respondent
Self-represented
Steven Greenberg, counsel for the Respondent
HEARD: November 24, 25, 26, 27, 28; December 2, 2014; April 7, 2015.
REASONS FOR JUDGMENT
J. Mackinnon J.
[1] Mr. Vallier and Ms. Meester began cohabitation in 2004. They lived together until either December 2011, according to him, or July 2010, according to her. During their cohabitation, three successive real properties were purchased, all registered in Ms. Meester’s sole name. Mr. Vallier claims $60,000 from her or a 35 percent proprietary interest in her remaining property, based on unjust enrichment. Mr. Vallier concedes that the monetary award claimed includes an amount for damages, a claim he did not make in his application.
[2] Mr. Vallier says he contributed money and labour to the improvement of the value of each property, yet Ms. Meester retained all the proceeds from the sales of the first two properties, funnelling them into the third, remaining property located on Beckstead Road. He values the work he did at $38,860. This is over and above the sum of $87,753 he contributed to Ms. Meester’s bank account which was used for their joint household and living expenses (the house account).
[3] Ms. Meester disagrees with the description of the amount of work Mr. Vallier claims to have done. She says Mr. Vallier’s physical disabilities prevented him from doing significant manual labour. She denies it would have been worth $38,860. She believes she contributed twice as much money as he did and a fair share of her own labour, too. Ms. Meester denies she was enriched by his contributions, let alone unjustly enriched. She says he benefitted from the cohabitation by as much as he contributed.
[4] Ms. Meester also submits that Mr. Vallier’s claim is prescribed. She relies on the date of separation said by her to be August 2010 and the date of commencement of his application, which was February 2013.
[5] Mr. Vallier had been previously married and was in the throes of a divorce when he and Ms. Meester started living together. He had child and spousal support obligations arising from that marriage. He had worked at a variety of jobs, including in carpentry, driving a truck, and pressure cleaning. In 1993 he sustained a work related back injury. He returned to work but sustained another back injury in November 2005. Back surgery was required in 2007. In 2010 he was retrained through WSIB, following which he took up employment in client service.
[6] Ms. Meester worked throughout the relationship, with different employers but always in relation to travel services.
Mitch Owens Road
[7] Ms. Meester started to look into purchasing a home before she and Mr. Vallier were living together. In 2004 she purchased a mobile home located on Mitch Owens Road. The purchase price was $40,000. She put $7,000 down. The property was in very rough shape. Ms. Meester acknowledges that Mr. Vallier looked at the premises with her, including going up on the roof and underneath the structure, but denies he was involved in the decision to purchase.
[8] Extensive work was done at Mitch Owens over 45 days between taking legal possession to the day when the couple moved in together. Mr. Vallier and a group of Ms. Meester’s friends worked on getting the mobile home ready for occupancy. Ms. Meester also helped, except that she was on a training course for three weeks out of those 45 days.
[9] The work done included gutting the kitchen and installing a new second hand set of cupboards, building an addition with a wood stove, replacing the living room floor, a work shop was turned into a laundry room, a deck and shed were built, new lighting was installed.
[10] Ms. Meester’s testimony was that her three girlfriends had done most of the work at Mitch Owens and Mr. Vallier was their helper. Yet much of the time she was not there to make her own observations. Her friends who testified confirmed that Mr. Vallier had done work at Mitch Owens. I find he was involved in all aspects of the work. Ms. Meester’s friends helped on various aspects, after work and on weekends, but Mr. Vallier was consistently involved in all aspects of the work done to Mitch Owens.
[11] For example, Ms. Doyle testified that she primed, painted, did some flooring and helped with the roof. She said she went after work for 2 – 3 hours at a time, on average 3 to 4 times a week during the 6 weeks or so while the work was in progress. Another friend of Ms. Meester’s who helped out was Chris St. Onge. She also went after work for about three hours each day, and on weekends. She said she removed old panels and insulation, painted, helped drywall the addition Mr. Vallier had put on, and spent one day helping on the roof. She described Mr. Vallier working on the roof, gutting the interior, installing kitchen cupboards and a wood stove. She said he was one of four people who built the deck. She confirmed Mr. Vallier went for materials and that they mainly used his tools. Ms. St. Onge also testified that Mr. Vallier and another friend, Carol, constructed a large shed at the back of the property. Carol had taken three vacation days to help him construct the shed.
[12] Mr. Vallier acknowledges that the money spent on the addition and other out of pocket costs of the renovations were paid for by Ms. Meester.
[13] Mitch Owens was listed for sale in 2008. It sold for $67,000. Mr. Vallier regards this as $27,000 of profit which he believed was rolled in to the purchase by Ms. Meester of her next property on Loucks Road.
[14] Ms. Meester disagrees. In her examination in chief she maintained that she had not made any money from Mitch Owens. When asked whether there had been any agreement with Mr. Vallier whereby he would benefit from the work he did at Mitch Owens, she did not reply directly, rather stated, you can’t profit from a mobile home. She gave this testimony without benefit of supporting real estate documents. At my direction she returned the next day with the relevant documents. It was then established that she had received net proceeds of $37,000 from the sale of the mobile home.
[15] Ms. Meester explained this by stating that she had spent $25,000 on the improvements to Mitch Owens, and had used $12,000 to repay her father the balance owing on a truck loan he made to Mr. Vallier. Accordingly in her mind there was no money made from the sale. Yet, she had transferred $25,000 of these proceeds out of the house account into a separate bank account for which records were not provided.
[16] In terms of the amount of money she spent on the improvements, receipts were produced for 2004 to 2006, and for 2008 totalling $13,147.73. All of the 2008 receipts are included in this figure because they were not organized in reference to the two properties owned in 2008.
[17] After reviewing the bank statements filed at trial, I requested to be informed about some specific accounts and account entries that had been not been addressed in evidence. These were delivered to me. I reconvened the hearing on April 7 to provide the parties the opportunity to address them by testimony and submissions. In this way I learned that Ms. Meester had been mistaken with respect to the $12,000 noted above. In fact, she had borrowed $12,000 from her father on June 5 for the down payment on Loucks Road, and repaid him on July 4 when she received the proceeds of sale of Mitch Owens. The balance of $25,000 was transferred out of the house account into first one then another account in her name. She testified on April 7 that these funds were used primarily for house updates and renovations.
[18] They were also used towards the purchase price of Loucks Road. Ms. Meester issued a bank draft in the approximate sum of $15,000 on June 13, 2008 to the law firm handling that purchase for her. On April 7 she testified this was for the deposit and real estate commission in relation to Loucks Road. On July 4, 2008, the same day as she deposited the proceeds from the sale of Mitch Owens into the house account she transferred $25,000 of those proceeds into the account against which she had drawn the draft. This had the effect of replenishing that account which had been drawn down to 0.42 by the bank draft. Later she again moved the amount of $25,000 into another account, but this does not alter my finding that she used the proceeds from Mitch Owens essentially to reimburse herself the $15,000 bank draft.
[19] I find on balance that the net proceeds of the sale of Mitch Owens Road were $37,000 which flowed into the purchase and improvement of Loucks Road. I also find that the mortgage payments and other carrying and operating costs for Mitch Owens were paid out of the house account to which both parties deposited funds.
Loucks Road
[20] Ms. Meester purchased Loucks Road in June 2008 for $119,900. The real estate documents show she financed the purchase by a mortgage of $110,058 which would indicate a down payment of only $9,800. I note that this is inconsistent with the oral testimony provided by Ms. Meester on April 7.
[21] This property was also in rough shape; however it had enough acreage so that Ms. Meester could have a horse. The parties disagreed whether Mr. Vallier had any role to play in the decision to purchase Loucks Road. They also disagreed over the amount and nature of the work he contributed to improving it.
[22] Mr. Vallier testified that whether on his own or with help of Ms. Meester or others, he worked on improving the kitchen, the bathroom, adding a walk in closet to the master bedroom, painting, repairing the foundation, installing a sump pump with a drain to outside, working on the septic, building a shelter for two horses, installing an electric fence, completing the deck, removing two old chimneys, and other repairs.
[23] Both Ms. Doyle and Ms. St. Onge testified that they, with other friends and Ms. Meester spent a day building a large deck at Loucks Road. This was the only work the group of Ms. Meester’s friends contributed at the second property.
[24] Mr. Vallier attended a WSIB retraining program in Cambridge, Ontario for 17 weeks in the winter after they moved in to Loucks Road. He came home on alternate weekends. During the time he was away Ms. Meester did a lot of stripping and painting throughout the house. She also hired a man to refinish the wood floors.
[25] Ms. Meester sold Loucks Road on June 25, 2010 for $175,500. The net proceeds of sale were $40,085, deposited to the house account. However, Ms. Meester had to upgrade the septic system as a condition of the sale. Two cheques totalling $21,500 were drawn on the house account on June 7 and June 29 to pay for that work. Also on June 29, the sum of $34,000 was transferred out of the house account into Ms. Meester’s other account.
[26] The account statements produced for the April 7 hearing showed that $34,000 was transferred on June 29, 2010 from the house account into an account held by Ms. Meester. From this account she transferred out $17,700 to pay for siding, windows and roofing work done on Beckstead Road. As she stated on April 7, that account was primarily used for updating and renovating and this is borne out by the entries on the account statements. There was less than $500 remaining in the account at the end of December 2011.
[27] Accordingly I conclude that the amount of $34,000 derived from the sale of Loucks Road was paid forward into Beckstead Road from date of its purchase until December 2011. I also find that the mortgage payments and other carrying and operating costs for Loucks Road were paid out of the house account to which both parties deposited funds.
Date of Separation
[28] The parties disagreed about how long they resided at Beckstead Road as a couple. Ms. Meester says they separated a few months after moving in, when there was still no equity in it. Her testimony was that the couple had already had some ups and downs. She said she had thought of separating earlier on, but the final straw came at the South Mountain Fair in late July 2010. On this occasion Ms. Meester found Mr. Vallier to be intolerably rude to her and others. She told him it was over between them. She says she moved into a separate bedroom. She later agreed he could stay on and rent a room from her. She said he was paying $500 per month rent until he moved out in December 2011.
[29] This changed in cross examination. Confronted with the fact that Mr. Vallier had transferred $1,500 into her account in July 2010, Ms. Meester said “rent” had been the wrong word and that the additional amount was because she had insisted at that point in time that he start to re-pay her the $12,000 she had paid toward his truck loan. This does not entirely match up with the correction she made to her testimony about the $12,000 on April 7.
[30] Mr. Vallier denies the parties separated in 2010. He agrees they often took separate rooms but ascribed this to Ms. Meester’s hours of work, which could go around the clock if there were travel emergencies to deal with. He denies ever being her tenant and maintains their financial arrangements continued unchanged until December, 2011 when he did move out.
[31] Mr. Vallier’s deposits into the house account totaled $14,700 from July 2010 to the end of December 2011. This works out to over $800 per month, an amount which is both more than the so-called rent of $500 and less than his average contribution across the entire cohabitation which was about $1,000 per month.
[32] Although Mr. Baerg was living in the house throughout this period of time, he was not asked about any observations he may have made as to the relationship between the parties after July, 2010 and up to December, 2011. He was called by Ms. Meester and he did appear to hold some antipathy towards Mr. Vallier. I infer from his silence on this issue that he did not have any observations to provide that would have supported July 2010 as the separation date.
[33] I find the parties did not actually separate until Mr. Vallier moved out in December, 2011. The application is not prescribed. See McConnell v. Huxtable 2014 ONCA 86. There the Ontario Court of Appeal holds that in the family law context the elements of unjust enrichment ordinarily crystalize on the date of separation. This action was commenced within the standard two year limitation period commencing from the date of separation. Accordingly no limitation issue arises and it is not necessary to enter into a discussion of the limitation issues that might have arisen had the separation date been different.
Beckstead Road
[34] Ms. Meester purchased the Beckstead Road on May 31, 2010 for $130,000. Curiously the mortgage registered in favour of the TD Bank was for $136,118. This property was also in rough shape, requiring considerable work inside and out. The parties did agree that Ms. Meester contracted out roof, window, and siding work and hired one of her friends to repair and renovate the master bedroom.
[35] The parties disagreed about what Mr. Vallier contributed towards improving Beckstead Road.
[36] The main project at Beckstead Road on which Mr. Vallier worked was to repair the barn. It had been deemed uninsurable when the property was purchased. Mr. Baerg commented they had an estimate of $44,000 to remove the old barn and put a new one. Instead a group of five or six men, including Mr. Vallier, worked for five weekends to repair the existing barn. Together they jacked up the barn, poured concrete footings for support, cabled the walls and drew them into position.
[37] One of the friends who helped was Mr. Whitney. He corroborated that Mr. Vallier had cut out the rotten wood, helped to jack up the barn, mixed and carried cement for the footings, and been involved in the exercise of attaching the cables that were used to pull the structure into place. Mr. Baerg confirmed that Mr. Vallier had worked on the barn and said that no one man did any more work on it than any other.
[38] Dave Baerg was a friend of Ms. Meester’s who rented a room at Beckstead Road from the date she purchased it until after Mr. Vallier moved out. He described himself as a “wanna be cowboy.” The arrangement Ms. Meester had with him was that he paid her $400 per month to cover his food, and he helped with the haying, the horses, and various other property repairs and maintenance in return for free accommodation and use of the horses.
[39] Mr. Vallier and Mr. Baerg also built some simple stables for the horses on the main level of the barn and a second floor where hay could be stored.
[40] Together the two men also put up a 12 x 12 field shelter for the horses, built a paddock fence and fenced in another area with a simple electric fence. Mr. Vallier described some flooding in the fields in the springtime and stated that he had cleaned some ditches out and dug some other shallow ditches to help the water runoff.
[41] Mr. Whitney also testified that he was at Beckstead Road on many weekends and saw Mr. Vallier was always working, haying, tending horses, or doing general maintenance.
[42] Mr. Vallier also removed the kitchen cabinets and installed new second hand ones, and refinished the bathroom, including tiling. Mr. Baerg was able to verify that Mr. Vallier had done some work inside Beckstead Road, to the kitchen and bathroom, with Ms. Meester’s help. Mr. Whitney also saw Mr. Vallier working on the bathroom renovations.
[43] Mr. Baerg testified that from his observations, overall Mr. Vallier had not done “any more or less work” than “the rest of us”. Ms. Meester was very complimentary of Mr. Baerg and the assistance he provided around the property. It is clear she thought very highly of him.
[44] What Mr. Baerg and Ms. Meester both overlooked, in my view, is that Mr. Baerg was essentially being paid for his work to the equivalent of a fair monthly rent. It struck me as incongruous that they both regarded Mr. Baerg’s “free” rent as well earned, but both clearly felt that Mr. Vallier, contributing more than double the money as well as his labour had no reasonable entitlement to any compensation.
[45] Ms. Meester still owns Beckstead Road. No valuation was provided by either party as at either alleged date of separation. In her financial statement sworn April, 2013 Ms. Meester entered the value as $160,000. Ms. Meester testified she had had to list Beckstead Road for sale because of all the legal costs she was incurring, but she did not disclose the list price. Mr. Vallier valued Beckstead Road at $269,900 in his financial statement. In closing submissions he said this was the listing price, but this was not in evidence. Presumably the value of the property increased given the amount of work done. In April 2012 Ms. Meester increased the mortgage financing to $147,305. These facts support an inference that the value of the house probably increased, but to what, I cannot determine.
Applicant’s credibility
[46] Mr. Vallier was challenged on his ability to work in the manner he described given his disability and entitlement to WSIB. Ms. Meester said his disabilities and surgeries from 2004 to 2009 prevented him from doing manual labour. She described him as having nose and sinus problems, carpel tunnel in wrists, back surgery and surgery on his foot.
[47] Mr. Vallier sustained his first back injury in 1993. That he injured his back is not in doubt. He did not reinjure his back until November, 2005. The major work on Mitch Owens Road had been completed by the time of the re-injury. His back surgery was in March 2007. The surgery reduced the pain and he was advised not to do heavy lifting or repetitive bending. Mr. Vallier was cross-examined extensively about his condition after this surgery. In May, 2007 he had reported he could walk in the bush for one hour, sit for 30 minutes and stand for short periods of time. At the end of July he had reported he had been trying to increase his physical activities including doing some repairs to a shed, but that his pain had increased severely. His surgeon noted he had been overdoing it and had not been pacing himself well. He was advised to moderate his activity and improve his pacing. He was referred to a pain management program which he did attend for three weeks in September, 2007.
[48] At eight months after the surgery his walking and leg function were described by his surgeon as much improved. He was said to be staying as active as possible and managing his pain, but was still advised against heavy lifting and repetitive bending. The surgeon predicted very long term residual chronic pain.
[49] The carpel tunnel surgery was in 2006 and was helpful with a quick recovery.
[50] I find Mr. Vallier was not prevented from doing the work he said he did by his physical problems. He took prescribed pain medications. He testified that he learned to accommodate himself as to speed and pace of work. Mr. Vallier had corroborating testimony with respect to some of the heavy work he had described. Mr. Laplante was one such witness. He described Mr. Vallier cutting firewood with a chain saw, but down on one knee. Larry Manuel confirmed the two of them had moved a heavy beam into place to shore up the corner of the Loucks Road foundation. Mr. Manuel and at least one other witness were with Mr. Vallier when rocks were retrieved for use at Mitch Owens Road. Similarly there were at least two corroborating witnesses for his work participation on the barn raising.
[51] In July, 2008 Mr. Vallier was experiencing significant back and leg pain to the point he would have to lie down. This was around the time of the move to Loucks Road and he was described as packing for the move, possibly an aggravating factor. By October, 2008 which is closer in time to when the foundation work on Loucks Road was done, Mr. Vallier provided a workers progress report which said his leg pain had improved greatly and his back pain had decreased.
[52] The respondent submitted Mr. Vallier may have obtained WSIB by over-exaggerating or misleading. I was not persuaded this was true. He underwent back surgery and he was prescribed heavy pain killers for a significant period of time. These are not steps patients, surgeons or physicians undertake unnecessarily.
[53] Mr. Vallier was also challenged over his initial insistence that the house account had been a joint account when clearly it had not been. It was Ms. Meester`s account. He then maintained that Ms. Meester had given him a power of attorney on the house account. I find she had not. He did deposit regularly into the house account and he did have access to her debit card tied to this account. My impression is Mr. Vallier had regarded this as a joint account but must have known by trial it was not in fact joint. He was quite stubborn on this point and I felt he may have been trying to “better” his case by insisting on describing it as a joint account.
[54] The reliability of his calculation of the hours of work he spent on each property was also challenged. Mr. Vallier did not keep a contemporaneous record of his time. After the litigation commenced he created a record. He did so by memory of what he had done and recollection of how long each task would have taken. He also applied his knowledge of carpentry and as a person who had estimated jobs before to consider how long the various tasks were likely to have taken.
[55] The record he created in this way cannot be regarded as exact. I find it useful as a rough guide as to time spent. Similarly the hourly rate he assigned to his work of $25 per hour is also only a rough measure of the fair market cost of the work he performed.
Respondent’s Credibility
[56] The reliability of Ms. Meester’s testimony was impacted by the documentary proof she did and did not tender at trial. As noted she did not tender real estate closing documents until asked to by the court. The banking statements she initially tendered were incomplete in that they did not demonstrate the flow of money from the sale of one property into the next, something that became evident from the additional statements produced for the April 7 resumption. She admitted to an error in what had been adamant testimony that she paid off $12,000 in a truck loan owed by Mr. Vallier to her father, despite his vigorous assertions and cross examination of her to the contrary.
[57] As the sole registered owner of Beckstead Road it was incumbent upon her to prove its value, but she chose to take the position that it was worth at separation what she had paid for it. Given the finding that the separation took place in December 2011, the court was left with no evidence of its value at that date. And when it emerged that she had listed Beckstead Road for sale prior to the commencement of the trial she did not volunteer evidence as to the list price or expected sale price. Even though that listing occurred nearly three years after separation it might still have provided some indication of or basis by which to measure an increase in value over the years between purchase and separation. Unfortunately I formed the impression that she regarded this as an oversight by Mr. Vallier, to her advantage.
[58] I found Ms. Meester dismissive of Mr. Vallier’s efforts. In some aspects of her testimony she was sarcastic and patronizing in describing work Mr. Vallier had done. She suggested he unnecessarily embarked on the foundation work as there was only a “drop” of water in the basement. I did not believe she would have proceeded with the work which required her to hire a back hoe “operator” had she really felt it was unnecessary. She described a shallow ditch he dug to assist in spring run off as a “worm path”. Ms. Meester only begrudgingly credited Mr. Vallier’s contributions. She would not concede that he had split a load of wood or moved an appliance unless she had actually seen him do it. She did concede he helped out as part of group efforts.
[59] Ms. Meester was also dismissive of Mr. Vallier’s financial contributions. She described them as sporadic, or said he contributed what he could, when he could, whereas I find he contributed $87,753.74 into the house account, which averages out to $1,000 per month throughout the years they were together. She used the house account to pay the mortgage, property taxes, food, gas and other household accounts, yet when Mr. Vallier pointed out that the hydro account was in his name, she made a point of saying he never made a single payment to Hydro One from his own account.
[60] In response to the fact he had paid the insurances for all vehicles owned by both of them, she said, dismissively, “its pennies a day”.
[61] Ms. Meester’s submission was that she had deposited $228,201.74 into the house account over the period of cohabitation. This is correct. However she did not speak to or explain the numerous transfers out and withdrawals she made from this account. Ms. Meester made substantial transfers out of the house account into her account # 316. I appreciate the trial is not an audit. At the same time I cannot accept that her contribution to the house account should be determined to be 2.6 times his, in the absence of more detailed evidence from her.
Unjust Enrichment
[62] The law of unjust enrichment permits recovery where the applicant can establish three elements:
An enrichment of the respondent by the applicant.
A corresponding deprivation of the applicant.
The absence of any juristic reason for the enrichment.
For the enrichment the question is whether the applicant has given a tangible benefit to the respondent which the respondent received and retained. The benefit need not be retained permanently, but there must be a tangible benefit which has enriched the respondent and which can be restored to the applicant in specie or by money. The applicant must then establish that the enrichment corresponds to a deprivation which the applicant suffered. The third element requires that there is no reason in law or justice for the respondent’s retention of the benefit.
[63] If there is no juristic reason, the respondent may still defend by showing that the parties’ mutual expectations or public policy reasons show the retention of the benefit is just.
[64] Where unjust enrichment is established the usual remedy is a monetary award. A proprietary award may be awarded where an applicant can show a strong connection between his contribution and the property in question, and that a monetary award would be insufficient.
[65] In Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 the Supreme Court of Canada held that a monetary award need not be calculated on a quantum meruit basis. Nor should the court only pay attention to the contribution of one party in quantifying a remedy. The Court held that, “where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant’s contributions.”
[66] Whether there was a joint family venture is a question of fact. The application set out sufficient facts to support the finding, although the phrase “joint family venture” was not articulated.
[67] At para [73] the Court in Kerr v. Baranow instructs that a monetary remedy must match as best it can the extent of the enrichment unjustly retained by the respondent. In other words, at the remedy stage the respective contributions of the parties are taken into account to address the disproportionate retention of assets acquired through joint efforts. This is not an “exact science”. “It calls, rather, for the reasoned exercise of judgment in light of all of the evidence.”
[68] Where an applicant shows that the benefit was not conferred for any existing category of juristic reasons, the court may look at reasonable expectations and policy reasons to consider whether there is another reason to deny recovery. It is the mutual or legitimate expectations of both parties that must be considered to answer the question whether their mutual expectations show that the retention is just.
Analysis
[69] I conclude the respondent derived $37,000 in net proceeds from the sale of Mitch Owens Road and $34,000 in net proceeds from the sale of Loucks Road. I find that the proceeds from Mitch Owens ended up in Loucks Road, and that the proceeds from Loucks Road ended up in Beckstead Road. In this way all of the proceeds from both sales, and all of the equity in Beckstead Road have been retained by Ms. Meester. I find an enrichment of her by Mr. Vallier, both from his monetary contribution to the house account which covered more than his share of living expenses and formed part of the fund used to pay the mortgage and other carrying costs of the properties. I find she was also enriched by the work he contributed to the improvement of all three of the real properties. The corresponding deprivation to Mr. Vallier is clear. The only financial benefit he received was one he paid for, namely room and board.
[70] I do not find any juristic reason for the enrichment. Nor does the retention of all the equity accumulated in the three properties to the date of separation by Ms. Meester accord with their comparative contributions into the house account or to their contributions to the properties.
[71] Ms. Meester also made improvements to the three properties. Mr. Vallier acknowledges this. She did a lot of painting and refinishing. She provided her friends who helped out significantly, especially at Mitch Owens Road. She contributed to the roofing and barn raising by providing the meals and refreshments for the volunteer workers.
[72] Ms. Meester also made capital outlays to improve the properties. The receipts she provided came to $44,231. Some work was paid for but not receipted, such as the $14,000 payment to Mr. Collins for installation of new windows at Beckstead Road. I am satisfied that not less than $65,000 went into the various properties by way of materials and paid labour. It is not clear to me that the entire credit for this amount should be given to Ms. Meester. Little effort was made to show from which account or accounts the claimed expenditures had been made. To the extent some were made from the house account then both parties would have been contributing to them, in proportion to their contributions into that account. The house account records much expenditure at Home Depot and Rona. Ms. Meester testified that everyone who helped out at Mitch Owens Road had access to the debit card for necessary purchases. The house account also funded sizeable cheques such as for the septic repairs at Loucks Road and the roofing and windows at Beckstead Road. Undoubtedly most of the capital outlay was by Ms. Meester, but I find that Mr. Vallier did also contribute through his deposits into the house account.
[73] I do not agree that everything done by Mr. Vallier is properly included in an unjust enrichment claim. For example, no value was added to any property by the gathering, cutting and splitting of fire wood. There was a mutual benefit in heating by wood, and Ms. Meester also helped split and stack wood.
[74] The enrichment is unjust. It is not just or in proportion to their respective contributions that Ms. Meester retains all the equity derived from all three properties to the date of separation. I find Mr. Vallier can be adequately compensated by a monetary remedy, which should have the effect of achieving a distribution of the equity derived from the real properties in question between the parties proportionate to their contributions.
[75] I approach the assessment of the appropriate award in two ways. With respect to Mitch Owens Road and Loucks Road the record before me supports my conclusion that a thirty-five and sixty-five split of the eventual net proceeds fairly approximates the proportionate contributions of the parties, both by way of labour and money. Thirty-five percent of $34,000 is $11,900.
[76] The same approach cannot be taken for Beckstead Road because I do not know the equity in it as at the day of separation. I have directed myself to Mr. Baerg’s testimony that the work of him and five men saved a $44,000 expenditure on the barn. Mr. Vallier was one of those men, said to have contributed no more, no less than the others. Sixteen percent of $44,000 is $7,040. Mr. Vallier also made other improvements to Beckstead Road, in addition to his deposits into the house account during his residency there.
[77] Ms. Meester chose not to proffer opinion evidence as to the value of Beckstead Road. I infer her view was that her case was stronger in the absence of such evidence. Put another way, I infer there was more equity in Beckstead Road at the date of separation than could be established on the record before me.
[78] Assessing a monetary award for unjust enrichment is not an arithmetical exercise. Based on my findings of fact and the testimonial factors pertaining to the parties my conclusion is that Mr. Vallier is entitled to a monetary award from Ms. Meester of $20,000 together with pre-judgment interest at the statutory rate of 3% calculated from January 1, 2012.
Costs
[79] If the parties are unable to settle the issue of costs between them, they may provide written submissions to me. These should come first from the applicant on or before April 27, and should be served and filed. The respondent may reply on or before May 11. The applicant may then make a very brief reply if necessary by May 15. The submissions should not exceed three pages plus necessary attachments including bills of cost and any offers to settle that have been exchanged between the parties.
J. Mackinnon J.
Released: April 9, 2015
COURT FILE NO.: FC-13-450
DATE: 20150409
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DANIEL VALLIER
Applicant
– and –
SANDRA MEESTER
Respondent
REASONS FOR JUDGMENT
J. Mackinnon J.
Released: April 9, 2015