Court File and Parties

Court File No.: 649-13 (Perth) Date: April 28, 2016 Ontario Superior Court of Justice

Between: Betty Szyngiel, Applicant And: Kevin Donald James Rintoul, Respondent

Counsel: Peter S. Mirsky, for the Applicant Clinton H. Culic, for the Respondent

Heard: April 7, 8, 9 and 10, 2015 (in Perth) and March 16, 17, 18 and April 4, 2016 (in Brockville)

Reasons for Judgment

PEDLAR, J

[1] This is an application to determine the Respondent’s interest, if any, in two properties registered in the name of the Applicant. The Respondent also claims a division of RRSP assets accumulated by the Applicant during the parties’ relationship and a lump sum spousal support award of $50,000.00. He makes no claim to health benefits or life insurance coverage. The Respondent also claims compensation for damaged and withheld personal property in the amount of $15,000.00.

[2] The Applicant seeks an order and declaration that the Respondent has no interest in either of the properties registered in her name, nor in her RRSP’s. She also claims an order for occupancy rent, arrears of hydro, water and heating and claim for specific household items retained by the Respondent, along with an order dismissing the Respondent’s claims including spousal support.

[3] The two properties registered in the Applicant’s name and which are significant factors in this litigation are located at 151 Santiago Street, Carleton Place, Ontario (“the Santiago property”) and a 51 and a half acre farm located at 1406 Quarry Road, Carleton Place, Ontario (“the farm property”).

[4] The Applicant purchased the Santiago property, being a small three bedroom home, on November 30th, 2000 for the price of $107,000.00. She financed the purchase with a mortgage from the Royal Bank of Canada for $102,000.00. That mortgage was later replaced by another to the Bank of Nova Scotia on October 31st, 2008 for $245,000.00 to enable the purchase of the second property, known as the farm, for which she paid $285,000.00 on that date. The mortgage for the farm was first arranged through the Bank of Nova Scotia and later assigned to First National Finance GP Corporation for $240,000.00. Title to both the properties was, and remains, in the name of the Applicant alone. She has paid the mortgages, taxes, insurance and almost all the utilities, except as noted below.

[5] The Santiago property was purchased before the Applicant and Respondent began to reside together in a conjugal relationship which commenced in January of 2001. By the time that relationship ended on October 31st, 2009 they had moved to, and resided at, the farm property together since March of 2009, after renting it for a few months to tenants.

[6] After October 31st, 2009, the parties resided together at the farm in a non-conjugal relationship until June 24th, 2013, when the Applicant locked the Respondent out of the farm property and he went to live in the Santiago property until September, 2015 when the Applicant resumed possession of that property pursuant to a consent order of this court. The Santiago property remained vacant from March, 2009, until June 24th, 2013.

[7] At all relevant times, the Applicant, who is 46 years of age, was a Doctor of Veterinary Medicine. She continues to reside at the farm property. Her income as an employee has been disclosed and confirmed by T4 statements.

[8] The Respondent, age 50, is a businessman. His business, commonly referred to as Rintoul Bros. Lumber Company, was at times a sole proprietorship, with the Respondent as the sole proprietor. In or about 2006, he incorporated a company, 6522904 Canada Limited (“the Corporation”). The Corporation was dissolved in 2013 for failure to file financial returns for the years 2011, 2012 and 2013 and had not been revived as of the date at trial. The Corporation’s income was reported and there was evidence that it can be reinstated through a relatively simple procedure. The Respondent’s business, and that of the Corporation, was composed of woodworking, sale of raw wood or lumber, farming, including livestock such as cattle and horses, snowplowing, trucking as the operator of a tractor with an AZ licence and providing services at horse shows.

[9] The parties did not have any children although the Respondent has a child, Peyton, by a previous relationship. That child was 16 years of age as of the date of trial. She does not reside with the Respondent, although during the period of their cohabitation, she did visit from time to time. That relationship is currently interrupted.

[10] The Respondent was at all material times the owner of three properties in the Township of Mississippi Mills, which are registered in his name personally and have been used from time to time as a source of wood for the Respondent’s business and the office of the Corporation as well as a canine kennel. Those properties are vacant for the most part although there is the remnant of a building, without electricity, which has ostensibly been used as the office of the Corporation on occasion. The Applicant is making no claim respecting an interest in either the Respondent’s properties or his business interests.

[11] Because the most significant financial issues between the parties relate to the two properties registered in the name of the Applicant, I will address those claims first. It must be noted that each party has filed literally hundreds and hundreds of pages of receipts, text messages, detailed summaries of claims, etc. I will only provide a summary of that material which, along with the trial record, transcripts, factums and other material filled four banker boxes to overflowing. I thank counsel for the written submissions which I will use as an aid to dealing with the relevant issues herein.

[12] With regards to the Santiago property, the parties agree that they began their cohabitation there in early 2001 after the Applicant had purchased the property in November of 2000. The Applicant’s evidence is that in the first few months of cohabitation, she asked the Respondent for a contribution towards his living expenses of $500. 00 per month. He only made two such payments and after that, occasionally contributed towards groceries and other household items from time to time. The Applicant’s position is that they then developed a barter system whereby the Respondent would contribute both work and materials towards the renovations of the Santiago property in exchange for his room and board there. The Respondent’s evidence is that he does regularly use the barter system in his own business, in dealing with third parties. He does not report the value of either work or materials given and received as part of his income tax returns for himself or the Corporation.

[13] In Exhibit Number 3, Tab 3, the Applicant has provided a broad summary of renovations done at the Santiago property from the year 2000 up until the year 2015. In that timeline, as well as her oral evidence, she acknowledges that the Respondent did conduct significant renovations and supplied wood for that purpose, including beams, flooring, trim for windows and baseboard, as well as interior doors.

[14] It is clear from the exhibits which show the finished product of the Respondent’s efforts that the quality of work and material provided was high.

[15] The Applicant’s concerns regarding that work include the fact that it was never brought to a finished condition until after she assumed possession of the Santiago property on September 15th, 2015, at which time she paid third parties to complete those renovations to allow the property to be listed for sale, which it has been for the last few months. It does appear from the evidence that the majority of those renovations performed by the Respondent were done between the years 2004 and 2008. The farm property was purchased in the Applicant’s name in the fall of 2008, rented for approximately six weeks to tenants and the parties moved into the farm in March, 2009, with the intention of selling the Santiago property, once it was put in saleable condition. The property was left vacant until June 24, 2013, when the Respondent was locked out of the farm property by the Applicant and returned to reside at the Santiago property.

[16] There is credible evidence, including evidence from a realtor, named Ralph Shaw, that in the fall of 2015, the Santiago property was in approximately the same state of repair as it was when the parties purchased the farm in the fall of 2008. It was his estimate that it would take only about six weeks of work to finish the improvements and make the property ready for sale. That evidence is consistent with the Applicant’s documentation that she paid a third party approximately $4,000.00 to complete the necessary finishing touches, including painting and finishing of floors, applying hardware, etc., after she resumed possession in September, 2015 until early 2016, to allow the property to be in the condition shown in the pictures that accompany the current real estate listing. That evidence is significant in that this property sat vacant from March, 2009 until June, 2013, while the Applicant continued to pay mortgage, taxes, insurance, heating, utilities on both this property and the farm. The cost of doing so is beyond any reasonable expectation and was contrary to the plan to finish the Santiago renovation so that it could be listed and sold. The Applicant did not have the resources to hire third parties to do so and she continued to suffer financial pressure as a result.

[17] Once the Respondent moved back into the Santiago property in June of 2013, his evidence, confirmed by the realtor Ralph Shaw when he visited him there on occasion, was that the Respondent chose to not complete those renovations, while he resided there for over two years, because the financial claims he was making on the Applicant were not resolved.

[18] Ralph Shaw visited on December 20, 2014 and noted that nothing had changed substantially in terms of the condition of the premises from October 2008. During the time that he resided at the Santiago property, the Respondent made no contribution towards the ongoing expenses of the mortgage or, taxes until ordered by the court to do so in the spring of 2015. He then complied with an order for occupation rent of $1,200.00 per month for four months before giving up the premises back to the Applicant and moving out.

[19] That order was made on an interim basis simply to cover the approximate cost of mortgage and taxes on a monthly basis. The Respondent eventually had the hydro cost turned over to his account but the Applicant still has an extensive claim for both hydro and water expenses for that property that remain outstanding.

[20] The Applicant made some effort to retake possession of the Santiago property when the Respondent moved in. The commencement of this action was one of those efforts. She also complained to the police but there was no basis for a criminal charge being laid based on her complaints which did not include any claims of physical threat or assault.

[21] This action was then commenced by the Applicant in order to bring the matter to a resolution. Unfortunately, this action has been unreasonably complicated and delayed. It has taken on a life of its own to the detriment of both parties. When the trial began in April of 2015, I expressed concerns about the cost to the parties to these proceedings, taking into account the types of issues being litigated and the potential risks of a cost award being added to the cost of paying their own counsel, and the fact that the potential best case scenario for either party was disproportionate to the costs of the process.

[22] Two other Superior Court justices expressed concerns about the same types of issues. Justice Quigley found the Respondent in contempt for failure to complete disclosure as ordered at an earlier case conference. He expressed concerns at that time about how unreasonable the process was becoming for the Applicant who was carrying all the costs related to both properties.

[23] Justice Gates later refused a request by the Respondent’s counsel to be removed from the record and commented that it smacked of an attempt to delay the process. In fact, a notice of change of representation was filed and a new lawyer took over for the Respondent, which meant several more months of delay. The original trial dates in April of 2015 were not adjourned because of lack of further available court time, but because the matter was apparently settled. When that settlement did not conclude, it meant considerable more delays including the process of having a change of counsel which delayed matters further.

[24] The second counsel needed time to familiarize himself with the large number of documents in this file and began to prepare for trial continuation when he suffered a stroke. Counsel believed he would be able to continue although my advice to the Respondent at that time was to get a new lawyer. It appeared for a while that Mr. Hughes would recover from his health problems but unfortunately, they worsened and he was unable, despite his best efforts, to continue to represent the Respondent. That resulted in further delays to allow time for a third lawyer to appear for the Respondent. Mr. Culic took on that responsibility and his participation has been of great assistance in having this matter proceed to trial on a schedule that was very demanding for him. He has been able to step in and use his considerable skills and experience to allow the Respondent’s case to be presented well and bring this matter to a much needed conclusion.

The Santiago Property

[25] The Applicant, in her evidence, acknowledges that the Respondent did work on the Santiago property in 2011, 2012 and 2013, as listed in her timeline for those renovations at Exhibit Number 3, Tab 3. She also notes her contribution of supplying work and paying for materials. She notes no work was performed by the Respondent, 2014 or 2015.

[26] The Applicant testified that not all the wood was supplied by the Respondent for the renovations at the Santiago property. There was some that came from third party lumberyards. She paid third party accounts for electrical work and plumbing, for roofing, tiling of floors, bathroom appliances, lighting, smoke alarms, new furnace, kitchen cupboards and new windows. In Exhibit Number 29, the Applicant details a summary of her contributions to home improvements at the Santiago property from March 1st, 2001 until trial. She has broken that down into three different time periods relevant to dates of cohabitation, living together post-separation and since living separately. The total amount that she has allocated to home improvements for March 1, 2001 to October 31, 2009, is $52,875.32. From November 1st, 2009 to June 30th, 2013, is $17,871.44 and from July 1st, 2013 to March 14th, 2016 is $12,637.86 for a total of $83,384.62.

[27] When the additional costs of mortgage and property taxes, mortgage and home insurance, heat, electricity, water, and expenses related to the pool are added in the total costs to the Applicant relating to the Santiago property from March 1st, 2001 to March 14th, 2016, including the above-noted home improvements is $359,939.78 over that 15-year period. Her annual costs would then be $23,995.99 for an approximate monthly cost of $2,000.00.

[28] The Applicant, at Tab 5 of Exhibit Number 3, has also listed a number of payments made by her to the Respondent between December 24, 2001 until June 14, 2013, totallying $41,918.99. Those items are not specifically related to home improvements and range from paying for his ticket to a hockey game or registration for his slow pitch recreational baseball, to paying a third party to clear brush on his parents’ property for fencing and helping to pay for fencing material for that property. She also claims she paid for diesel for his tractor, gas for his truck, repairs to the truck, items for his horses and purchasing a horse that he later sold without repaying her, paying his car insurance and paying for his daughter, Peyton, to visit a dentist on four occasions, as well as health insurance premiums for the Respondent and Peyton for medical and dental coverage, etc. None of those are directly related to either property but are more relevant in the total picture of their financial arrangements, particularly in response to a number of items being claimed by the Respondent.

[29] At Exhibit Number 15, Tab 4, the Respondent lists his claim for work and improvements including labour and materials which he supplied to the Santiago property for the benefit of the Applicant. In addition to listing those materials and services, he has provided details of the price that he claims for goods and services. One of the issues, quite properly, raised by the Applicant is that the Respondent attributed a value to the lumber that he supplied from his own property. There was no objective evidence to support his valuation of that material. He does explain the amount of work involved in choosing the right wood and cutting down the trees, processing the wood through his sawmill and/or planer. He also identifies the need to have some of the wood kiln dried. Just looking at the pictures of the finished renovations, it is obvious that the wood supplied and the craftsmanship necessary to do the detailed work in such a professional manner has a very real value in terms of the goods and services provided. The Applicant did raise a concern about the large cracks in some of the substantial beams. The Respondent’s view is that that is inevitable and is not structurally significant given the size of those beams.

[30] Included in that list of work and improvements are many subjective values that are based on information as to the rate that is reasonable to charge for services. That information was received by the Respondent on the internet. The list includes mowing of the yard an average number of times a year for a rate that is self-valued and results in a claim for $8,320.00. There is also a claim for taking out the garbage to the curbside from January 2001 through to March 2009, which adds up to another $4,280.00. The cost of opening and maintaining the pool is claimed at $15,600.00 and plowing and shovelling snow, $3,185.00. Claims of that nature fall more into the category of household duties that benefitted both parties while they lived together.

[31] There are other claims for items, like a washer and dryer and fridge and antique bedroom set, as well as a dishwasher, without any receipts being provided. The most significant claims relate to work done to renovate the Santiago property. Those valuations are hard to assess given the lack of objective evidence to support them. That does not mean, however, that the evidence of his work and the supplying of his materials have no value. It is simply difficult to put an accurate valuation on that work and materials, particularly as it might relate to any claim for an interest by the Respondent in this property based on either unjust enrichment or joint family venture. Items 12 through 43 on his list, as well as item 4, are more in the category of demonstrating renovations to the property itself. His claims total $179,084.75. It is difficult to accurately determine the value of those goods and services related directly to home improvement on this property.

The Farm Property

[32] The farm property has a different history. It was purchased in the name of the Applicant in the fall of 2008, while the parties were still living together in a conjugal relationship. Both parties were interested in acquiring a rural property suitable for maintaining their mutual interest in horses, as well some other farming operations and they both preferred a rural lifestyle. The Respondent had become friends with the owners of this property, who were a couple in their sixties. The farm was located in close proximity to the properties that the Respondent owned and close to Carleton Place where the Applicant was employed. The Respondent rented some of the land from the owners from which he cut, bailed and sold or used the hay. He bartered his services, and some material, in exchange for the use of the land and rights to the hay. He supplied firewood for the owners from his own property and plowed their lane in the winter and did other services for them as well. In 2008, the owners approached the Respondent to see if he would be interested in purchasing the property. They had not put the property on the market but were willing to sell it to him without doing so, if he were interested. The daughter of the owners confirmed the relationship between the Respondent and her parents. It was her impression that they preferred to sell it to him rather than put it on the open market and were even willing to take a somewhat reduced price in order to fulfill that intention. By this time, the Respondent was declaring a very modest income, following his incorporation of his business and his credit rating was such that it was impossible for him to complete this purchase. The Applicant proceeded to use her good credit rating and steady income as well as strong relationship with her bank to leverage the Santiago property by increasing the mortgage to provide a significant portion of the money needed to complete the purchase of the farm.

[33] Ralph Shaw, the realtor, who was a friend of both parties, prepared an offer for a purchase price of $285,000.00 for the farm. The owners were asking $300,000.00. They agreed to $285,000.00 because of the saving of an estimated five percent real estate commission by not using a real estate broker. Ralph Shaw did this as a favour to the parties and received no commission.

[34] The money necessary to purchase the farm resulted from an increase in the mortgage on the Santiago property to a face value of $245,000.00, which permitted a balance of $62,091.95 to be paid towards the purchase after the previous mortgage on the Santiago property had been discharged. A mortgage of $285,000.00 was registered on the farm property’s title in favour of The Bank of Nova Scotia, however, the bank only advanced the sum of $227,727.00 on the subject mortgage which together with the money from the Santiago property was used to complete the sale.

[35] Title to the farm was put in the sole name of the Applicant. Her evidence is that she would not, under any circumstances, have completed this sale with the Respondent listed on title as an owner. The Respondent did not wish to be placed on title because he was engaged in a lengthy, very acrimonious, litigation over his daughter, Peyton, with the child’s mother, Karen Braley. He discussed that with Ralph Shaw, who gave evidence that it was his understanding that the battle with the mother of the Respondent’s daughter included a custody dispute with financial implications and that the Respondent had no idea what direction that was going to take so it did not make any sense to prejudice assets. He said that the Respondent did not want the asset available to attack by the mother of his daughter. Discussions took place in the presence of the Applicant in that regard but the title was taken in the Applicant’s name alone for financing purposes and for credit protection purposes. The Respondent was not named as a purchaser or guarantor on the mortgage.

[36] Both the Respondent and Ralph Shaw gave evidence that they assumed the property would be beneficially owned by both parties at the time of purchase. The Applicant adamantly denies that was her intention. The question of the value of the property has now been accepted as being the purchase price paid. The question of any claim by the Respondent that a large discount was received at the time of purchase because of his unique relationship with the vendors has been withdrawn.

[37] Again, looking at the Applicant’s records of her contributions towards home improvements at the farm, as contained in Exhibit Number 29, she has broken them down to three relevant time periods, being August 1, 2008 to October 31, 2009, while the parties cohabited in a conjugal relationship and claims $17,041.53 for that time period. The next time period from November 1, 2009, when they began to live separate and apart under the same roof until June 30, 2013, after she locked the Respondent out of the farm premises, she claims $5,719.70 and for the time period since, being July 1, 2013 until March 14, 2016, she invested $12,118.06 for a total of $34,878.87 in home improvements which she has paid since the farm was purchased.

[38] In addition to those amounts, she has again summarized her cost of paying the mortgage plus property taxes, mortgage and home insurance, heat, electricity for a total, including the above noted home improvements, for an expense of $214,321.37 since November, 2008 for an annual cost in excess of $28,500.00 for an approximate monthly expense of $2,350.00.

[39] At Exhibit Number 15, Tab 5, the Respondent claims work and improvements including, but not limited to, labour and material which he made to the farm and the benefit of the Applicant. The first item has been withdrawn related to the alleged discounted price obtained because of his relationship with the vendors. Again, his evidence is totally subjective in terms of the value he attributes to a lot of the items listed as being work and improvements at the farm. He is relying on the same internet source for putting an hourly rate on his services. Some of them are limited to the timeframe when the parties moved into the farm and others go back to the beginning of their relationship. The items that could be identified as actual renovations or improvement to the property itself are fairly limited. Things like item number two, improving the driveway and items 14 and 15 for installing some flooring in the kitchen and dining room and supplying materials and installing storm windows for part of the farmhouse as well as items like repairing a door or sealing an exterior door or repairing shower walls all could be in that type of category.

[40] Many items on the list are not attributable to maintaining or improving the property in any way. Such items include a claim of $41,975.00 for feeding livestock and pets, another $11,960.00 for watering pets and a claim for $22,812.50 for cleaning the cat litter box. Much of the claims relate to things that were for the mutual benefit of them both while they resided at the farm together, such as snowplowing and shovelling, installing and removing window air conditioners and putting out the garbage and recycling regularly. Also a claim for $11,258.00 for housecleaning and the same amount for washing dishes do not fall into the category of establishing any interest in the property.

[41] The Respondent paid nothing towards the mortgage, taxes, insurance or hydro while residing at the farm property.

Current Applicable Law Regarding Unjust Enrichment and Joint Family Venture

[42] The parties agree that the leading case is the decision of the Supreme Court of Canada in Kerr v. Baranow, [2011] 1 SCR 269, 2011 SCC 10. The Respondent’s cross-claim for compensation related to the two properties in question is rooted in the law of unjust enrichment and joint family venture. In paragraphs 30 through 45 of that decision, the court reviews the law of unjust enrichment. Without quoting all those paragraphs, I will summarize the main principles of law with reference to the relative paragraph. The court states that the law of unjust enrichment has been the primary vehicle to address claims of inequitable distribution of assets on the breakdown of a domestic relationship, (paragraph 30). The court states that at the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit which justice does not permit one to retain. For recovery, something must have been given by the plaintiff and received and retained by the defendant without juristic reason, (paragraph 31).

[43] Canadian law permits recovery whenever the plaintiff can establish three elements: an enrichment of or benefit to the defendant, a corresponding deprivation of the plaintiff, and the absence of a juristic reason for the enrichment, (paragraph 32). The court goes on to state that the first and second steps in the unjust enrichment analysis concern first, whether the defendant has been enriched by the plaintiff and second, whether the plaintiff has suffered a corresponding deprivation, (paragraph 36).

[44] The court has taken a straightforward economic approach to the first two elements – enrichment and corresponding deprivation, (paragraph 36). To establish the first requirement, being enrichment, the plaintiff must show that he or she gave something to the defendant which the defendant received and retained. There must be a benefit which has enriched the defendant and which can be restored to the plaintiff. Moreover, the benefit must be tangible, (paragraph 38).

[45] The plaintiff’s loss is material only if the defendant has gained a benefit or been enriched. That is why the second requirement obligates the plaintiff to establish not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered, (paragraph 39).

[46] The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without a juristic reason. To put it simply, this means that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, making its retention “unjust” in the circumstances of the case, (paragraph 40). Juristic reasons to deny recovery may include the intention to make a gift, the existence of a contract or a disposition of law, (paragraph 41).

[47] First, the plaintiff must show that no juristic reason from an established category exists to deny recovery. The established categories that can constitute juristic reasons include a contract. If there is no juristic reason from an established category, then the plaintiff has made out a prima facie case under the juristic reason component of the analysis and there is a de facto burden of proof placed on the defendant to show the reason why the enrichment should be retained. As part of the defendant’s attempt to rebut, courts should have regard to two factors: the reasonable expectations of the parties, and public policy considerations, (paragraph 43).

[48] Remedies for unjust enrichment are restitutionary in nature; that is, the object of the remedy is to require the defendant to repay or reverse the unjustified enrichment (paragraph 46). The first remedy to consider is always a monetary award if unjust enrichment is established, (paragraph 47).

[49] After extensive reviews of various principles of law, the Supreme Court concludes that the underlying principles focus on properly characterizing the nature of the unjust enrichment giving rise to the claim. Not all unjust enrichments arising between domestic partners fit comfortably into either a “fee-for-services” or “a share of specific property” mould. Where the unjust enrichment is best characterized as an unjust retention of a disproportionate share of assets accumulated during the course of what is described as a “joint family venture” to which both partners have contributed, the monetary remedy should reflect that fact, (paragraph 80).

[50] In such cases, the basis of the unjust enrichment is the retention of an inappropriately disproportionate amount of wealth by one party when the parties have been engaged in a joint family venture and there is a clear link between the claimant’s contributions to the joint venture and the accumulation of wealth. The wealth created during the period of cohabitation will be treated as the fruit of their domestic and financial relationship, though not necessarily by the parties in equal measure. The monetary award for unjust enrichment should be assessed by determining the proportionate contribution of the claimant to the accumulation of the wealth, (paragraph 81).

[51] The Supreme Court concludes, therefore, that the common law of unjust enrichment should recognize and respond to the reality that there are unmarried domestic arrangements that are partnerships; the remedy in such cases should address the disproportionate retention of assets acquired through joint efforts with another person. This sort of sharing, of course, should not be presumed, nor will it be presumed that wealth acquired by mutual effort will be shared equally. Cohabitation does not, in itself, under the common law of unjust enrichment, entitle one party to a share of the other’s assets or any other relief. However, where wealth is accumulated as a result of joint effort, as evidenced by the nature of the parties’ relationship and their dealings with each other, the law of unjust enrichment should reflect that reality, (paragraph 85).

[52] The court further states that when the parties have been engaged in a joint family venture, and the claimant’s contributions to it are linked to the generation of wealth, a monetary award for unjust enrichment should be calculated according to the share of the accumulated wealth proportionate to the claimant’s contributions. In order to apply this approach, it is first necessary to identify whether the parties have, in fact, been engaged in a joint family venture, (paragraph 87).

[53] A joint family venture can only be identified by the court when its existence, in fact, is well grounded in the evidence. The emphasis should be on how the parties actually lived their lives, not on their ex post facto assertions or the court’s view of how they ought to have done so, (paragraph 88). The court goes on to conclude that it may be helpful to consider the evidence under four main headings: mutual effort, economic integration, actual intent and priority of the family. Those headings are not a mandatory checklist of conditions for finding or not finding that the parties were engaged in a joint family venture. They are treated as simply a useful way to approach a global analysis of the evidence and some examples of the relevant factors that may be taken into account in deciding whether or not the parties were engaged in a joint family venture, (paragraph 89).

[54] Looking at those four main headings, under the first heading of, “Mutual Effort, the court states that one of the factors concerns whether the parties worked collaboratively towards common goals. Indicators such as the pooling of effort and team work, the decision to have and raise children together, and the length of the relationship may all point towards the extent, if any, to which the parties have formed a true partnership and jointly worked towards important mutual goals, (paragraph 90). Joint contributions, or contributions to a common pool, may provide evidence of joint effort. Pooling of efforts and resources, whether capital or income, has also been noted. The use of the parties’ funds entirely for family purposes may be an indication of the pooling of resources, pooled efforts to establish themselves in a business or farm operation. Also evidence of one party taking on a greater proportion of the domestic labour, freeing the other party from those responsibilities, and enabling him or her to pursue activities in the paid workforce have been taken into consideration as well, (paragraph 91).

[55] Under “Economic Integration”, courts have taken into account the degree of economic interdependence and integration that characterize the parties’ relationship. The more extensive the integration of the couple’s finances, economic interests and economic well-being, the more likely it is that they should be considered as having been engaged in a joint family venture. For example, the existence of a joint bank account that was used as a “common purse”, or the fact that a family farm was operated by the family unit have been taken into consideration by courts in the past. The sharing of expenses and the amassing of a common pool of savings may also be a relevant consideration, (paragraph 92).

[56] Under the heading of “Actual Intent”, it is important to consider the actual intention of the parties to have their lives economically intertwined. Those intentions may have been expressed by the parties or may be inferred from their conduct, (paragraph 94).

[57] The title to property may also reflect an intent to share wealth, or some portion of it, equitably. This may be the case where the parties are joint tenants of property. Even where title is registered to one of the parties, acceptance of the view that wealth will be shared may be evident from other aspects of the parties’ conduct. There may have been little concern with the details of title and accounting of monies spent for household expenses, renovations, taxes, insurance, and so on. Plans for property distribution on death, whether in a will or a verbal discussion, may also indicate that the parties saw one another as domestic and economic partners, (paragraph 96).

[58] Under the heading of, “Priority of the Family”, it is important to determine to what extent the parties have given priority to the family in their decision making. A relevant consideration is whether there has been some detrimental reliance on the relationship, by one or both of the parties, for the sake of the family. In particular, focus on financial sacrifices made by the parties for the welfare of the collective family unit is important. This may occur in a number of ways including leaving the workforce to raise children, relocating for the benefit of the other party’s career, foregoing career or educational advancement for the benefit of the family or relationship, and accepting underemployment in order to balance financial and domestic needs of the family unit, (paragraph 98).

Analysis of the Issues Between the Parties

[59] Regarding the issue of joint family venture, there was no sharing of bank accounts between these parties and no sharing of incomes. Titles to the properties, which are the subject matter of this application and the properties registered in the name of the Respondent as well as the obligations that flowed from title and title indebtedness were not shared but strictly kept separate by both the Applicant and the Respondent.

[60] There are no children resulting from this relationship. Each party was employed separately. The Respondent kept his own business, including his land, which he valued as equal to the value of the farm property in this litigation as well as his disclosed and undisclosed income and his assets including his truck and tractor separate.

[61] He continued to operate his business not only from his own property but also from the farm property registered to the Applicant herein. Once the parties moved to the farm property together, he operated his business primarily from that location. There was never any written agreement respecting compensation for the Respondent’s contributions or his right to title of either property. The Respondent never asked for any compensation until he was asked to leave the farm. There was no cohabitation agreement. The Respondent testified it was his assumption that he would be compensation but that was not discussed with the Applicant.

[62] The only alleged statement by the Applicant herein that directly may have been related to the parties’ intentions of a joint family venture regarding the farm was contained in an email sent by the Applicant to a friend of hers on February 9, 2009. This friend has a common interest in horses. Part of that email states, “We bought a farm and now have even more work than before!!!” Later on in the email, it states, “We had a little injury and no indoor arena, so we have spent the winter getting fat and healthy.” The rest of the email related to horse activities for the upcoming summer and questions about horses and horse-related activities. It is clear from the entire email that the reference to “we” in relation to the farm that has been purchased refers to the Applicant and her horse. It would otherwise make no sense for her to continue to use that same expression in the third sentence where she states, “We had a little injury and no indoor arena so we’ve spent the winter getting fat and healthy.” That sentence clearly relates to her horse and has nothing to do with the Respondent herein. The entire context of this email is two friends who are sharing a common interest in horses and I find no connection between this email and any evidence of her recognizing a claim by the Respondent to any ownership of the farm.

[63] With regards to the title to the Santiago property, that was obviously purchased before the parties began cohabiting. The Applicant’s evidence is that she and the Respondent agreed, after he failed to make regular cash contributions as requested in the amount of $500.00 per month towards living expenses early in the relationship, that there would be a barter arrangement whereby he would provide material and labour to renovate the Santiago property rather than contribute direct cash payments. The Respondent does, in fact, allege cash payments to the Applicant between 2006 and 2013, totalling $50,400.00. Those payments range from $4,000.00 a year to $9,000.00 a year. All payments are sourced from his ATM and the Applicant’s name has been written on the ATM slips by the Respondent. There is no corroboration that those payments were received by the Applicant, except one in the amount of approximately $1,200.00 that both parties agreed related to a vet bill for one of his animals, that had been paid by the Applicant at her place of employment on his behalf. In particular, there are no other deposits in the Applicant’s account during the entire eight and a half years of their cohabitation in a conjugal relationship to reflect receiving cash amounts as claimed by the Respondent. The Applicant’s evidence is that she did not carry cash but only used debits. The amounts of cash withdrawn were consistently significant amounts of money and unlikely to be convenient to carry. The other factor is the yearly payments were as much as his reported income during some of this time.

[64] It is also not contested and reflected at Exhibit Number 3, Tab 5, that during the years, 2012 and 2013, the Applicant paid the Respondent’s mortgage payments of $1,600.00 per month on his properties, for a total of $6,400.00, when he was unable to make those payments.

[65] Based on the evidence set out above, I find that there is very little pooling of efforts, no sharing but instead segregation of properties, title and assets, including bank accounts, real property, business interests, savings, credit and no provision for the future of the other by will. The Applicant paid all the mortgage, taxes, insurance and utilities respecting both properties. The Respondent declined to take any financial responsibility and his evidence is that he declined to take title on the farm property in order to avoid any claim by the mother of his child, Peyton, over whom there were drawn out and acrimonious court proceedings.

[66] Karen Braley, Peyton’s mother, gave evidence at trial that by 2008, when the child was ten years old, she had given up trying to collect from the Respondent, who refused to pay child support in spite a court order that had required it. That order was allowed to expire and was dismissed for administration purposes because of no further proceedings in that litigation. The Respondent thereafter made no regular formal support payments. His relationship with the child has deteriorated and, as of the date of this trial concluding, they were not communicating. He stated that his unhappiness over the custody and access led him to not continue to feel bound to make any regular contribution to the child’s support in any formal way once he learned that the order for support had been abandoned and was no longer in force. That administrative dismissal order was issued by the court in June of 2009.

[67] The Respondent has not led any evidence of the details of his assets or properties during the course of this trial so that a court could take into account the true family global wealth and redistribute it to avoid unjust enrichment.

[68] The more narrow question then becomes whether the evidence in this case related to the Respondent’s contributions to the acquisition, maintenance, preservation or improvement of either the Santiago or the farm property has met the onus on him to establish his claim that the Applicant has been unjustly enriched by the Respondent while he has been correspondingly deprived and that there is no juristic reason for the enrichment by the Applicant.

[69] Based on the findings set out above, I find there is not sufficient evidence of a joint family venture to be found between these parties related to either property. The Respondent’s strongest case relates to the work and material he supplied at the Santiago property. The evidence of the value of that work is difficult to assess, as set out above, in that it is based on his self-evaluation with no credible corroboration. The quality of the materials and services that he provided appears to be of very good standard. Common sense would indicate that renovations and improvements of that nature would add something to the value of the property. There has been no specific evidence about what impact on fair market value his material and services had contributed. The parties have agreed for the purposes of this trial on a fair market value of that property at $287,500.00. It was purchased in November of 2000 for $107,000.00. The existing mortgage on that property is $196,000.00 at the time of trial leaving an equity in the Santiago property for the purposes of this action of $91,500.00.

[70] It is also common sense that money invested in renovations does not equal an increase in the fair market value of the property on a dollar for dollar basis in every situation. It may result in a larger increase than the investment or have marginal impact.

[71] With regard to the issue of unjust enrichment, in order to succeed with his claim, the Respondent must show that he gave something which the Applicant received and retained, that is capable of being restored to the Respondent, in our case, by money.

[72] Again, we run into the difficulty that while there is credible evidence to demonstrate the Respondent made improvements to the Santiago property that are visible and recognizable and would presumably lead to an increase in the value of the property, there is no direct evidence as to what portion, if any, the increased value of the property can be attributed to those renovations and improvements. For the reasons set out above, it is difficult to give much weight to the portion of his claims against either the Santiago property or the farm as they relate to actual work done in the categories identified as not being related directly to the acquisition, improvement and maintenance of the two subject properties. His strongest case relates to the renovations at the Santiago property while the work done at the farm in terms of renovations and improvement of that property are much less identifiable and much of his claim is more in the area of day-to-day activities of a normal household that benefit both parties.

[73] There is clear evidence that the Applicant is left with considerable debt of mortgages, taxes, utilities, overdrafts, credit cards and personal debt. She has been carrying an unreasonable load of debt since the acquisition of the farm. Much of the debt was incurred during the period the Santiago property sat empty as well as the time that the Respondent resided there after he was locked out of the farm until he eventually gave up possession and the Applicant was able to take over the property and arrange for the necessary work to be done to complete the renovations which the Respondent had started to a degree where the property could be marketed and hopefully sold. It is very difficult to assess any increase in the value of either property that can be attributed to the work of the Respondent based on clear evidence provided at the trial, the onus for which is on the Respondent.

[74] The Respondent also bears the burden to satisfy the Court not only that the Applicant has been enriched but also that enrichment corresponds to a deprivation which the Respondent has suffered. The same evidentiary challenge exists with regard to this issue as it does to the issue of the enrichment of the Applicant. The Applicant’s position respecting the deprivation of the Respondent is that there is no satisfactory evidence of the value provided or the value of what the Respondent contributed which would have deprived him. She contends that the Respondent lived without making a real contribution to his board for a considerable period of time and even after the parties were no longer spouses of one another. Her position is that he obtained considerable advantage in compensation from the Application to set off any possible deprivation. She points out that the Respondent took no risks of ownership, invested nothing in title or finance and used the farm to further his business, the profits from which he kept completely separate from the Applicant so that what he gained can in no way be estimated accurately due only to the Respondent’s choices to conduct himself in that manner.

[75] The third element of an unjust enrichment claim is that the benefit and correspondent detriment must have occurred without a juristic reason. In our case, this means that there is no reason in law or justice for the Applicant herein to retain any benefit conferred by the Respondent herein which would make its retention unjust in the circumstances of the case. The test for juristic reason is flexible and the relevant factors in this case must all be considered in the context of these two parties before the court.

[76] Without accepting the first two steps have been established, it is the Applicant’s position that there is juristic reason for the Applicant to retain any benefit conferred. Her evidence was that the relationship of barter existed between the parties whereby the Respondent would provide these goods and services as his means of paying for room and board rather than doing so in cash. The Respondent denied that there was such a contract and that his provision of goods and services was not a gift and, therefore, there is no legal justification for the Applicant to retain the enrichment conferred by the Respondent’s labour and contributions.

[77] The Respondent also claims that he was not paid for his labour or materials and that constitutes a deprivation to the Respondent, which directly corresponds to the benefit received by the Applicant. For the reasons set out above, it is difficult for the court to find credible evidence on which to rely in order to quantify either the issue of enrichment or deprivation. The Applicant also raises the issue of the Respondent seeking an equitable remedy while conducting himself throughout the relationship with the Applicant, as well as in these proceedings, in a manner that demonstrates he comes without clean hands seeking an equitable remedy.

[78] The Applicant points out that the Respondent was found in contempt of Justice Johnston’s order of January 31, 2014 and in the ruling on July 4, 2014, Justice Quigley observed that:

“The court also noted that the Respondent had continued to live in a property registered in the name of the Applicant at 151 Santiago Street, Carleton Place, in which all of the expenses, including the mortgage expense of $1,200.00 per month, were being paid by the Applicant. In my view, the Respondent’s failure to comply with the disclosure request was unreasonable and imposed unfair carrying costs of the properties and unneeded legal expenses on the other party.”

[79] Justice Gates observed in his ruling on a motion brought by Mr. Augustine to remove himself as counsel of record, that:

“I remark my concern that this was a thinly disguised attempt by him (the Respondent) to delay and frustrate the trial, although Mr. Augustine submitted that it was not.”

[80] Despite the court’s refusal to permit Mr. Augustine to retire, the Respondent retained further counsel, all of which required further adjournments until trial in March of 2016, eleven months after the first segment of trial in April, 2015. All the while, the Applicant was forced to carry the properties.

[81] The Applicant claims that deception by the Respondent and his lack of credibility on relevant factual issues support a finding that he comes to court without clean hands. She raises the issue of his refusal to vacate the Santiago property and “blackmailing” the Applicant by refusing to pay any occupancy rent until ordered to do so by the court or pay for utilities that he had consumed during that time as well as other issues, such as his failure to disclose his income fully, his attempts to portray ATM receipts as contributions of cash to her, his attempts to claim payment for equipment like the floor nailer, (for which she has submitted documentary evidence), his frustration of a consent order by not providing the refrigerator identified in the order and other of the Applicant’s goods, as indicating his lack of clean hands.

[82] The Respondent points out that although he did not disclose all of his income earned by way of cash or barter to CRA, that he has been open about that in this process. He also is able to withdraw significant amounts of money from a shareholder’s loan account that is not attributed to income, quite properly, by CRA. It is, however, available to him to pay personal expenses, which he has done in amounts up to $60,000.00 in one year. Although that money, available to him to meet his personal expenses, is not required to be reported to CRA as income, it is very relevant in these family court proceedings, particularly as it relates to a claim for spousal support, which I will deal with later.

[83] The Respondent also gave evidence that he chose not to be placed on title at the farm, so as to avoid financial consequences coming out of a family court proceeding relating his daughter. Even though the Applicant’s position is that she would not have agreed to have him on title, the Respondent has maintained throughout these proceedings that he did not wish to be on title, so as to shelter any interest he might have in the farm from the court process involving his daughter. Karen Braley, the mother of the child in question, gave evidence that he was attempting to avoid paying child support. The Respondent’s own evidence is that he has not paid any consistent support for the child since the prior child support order expired when the child’s mother gave up attempting to enforce it in 2009. He states that he has made informal efforts to support the child financially. According to the child’s mother when she gave evidence at the trial, financial assistance was primarily limited to buying clothing for the child as Christmas gifts.

[84] Each of us makes choices about how we will participate as a member of a family, or in the broader context of a community, including how we will address the financial responsibilities and privileges that go along with those relationships. The Respondent has chosen to minimize and avoid his financial responsibility related to meaningful support for his daughter. He has chosen, as a member of his community, to not participate fully with his financial responsibility to be honest and open about paying his fair share of taxes, by failing to disclose sources of income. He has chosen to, legally, minimize his exposure to paying taxes as a result of having an independent source of funds as a gift from his mother that is then used to establish a shareholder’s loan and receive tax free. He is not to be criticized for that in terms of the issues surrounding this trial, except for any attempts to rely on those very favourable tax exemptions as hiding what is his true capacity to support himself, and what could have been used to support his daughter. The source of that money has been somewhat contentious. His evidence, which is both uncontradicted and yet uncorroborated, is that it was a loan/gift from his mother. No payments have been made and are not being made at this time.

[85] The Respondent’s failure to disclose his full income from employment to CRA is relevant only as it relates to the issues in this trial. By failing to do so, and then attempting to rely on his income tax Line 150 income as a reflection of his true capacity to support himself is a relevant consideration. In the same way, the non-taxable benefits he receives from the shareholder’s loan, that are used for his personal needs, are again only relevant in the sense that it demonstrates an increased capacity to support himself over and above what is reflected on his Line 150 income reported to CRA. He admits to being willing to hide assets from the mother of his child, by not at least seeking to have his name on title, if he felt he were in fact a beneficial owner of the farm. The Applicant’s evidence, based on over seven years of cohabitation during which time he had made no direct payments towards the mortgage, insurance, taxes, utilities, etc. for the Santiago property, was that she would not have agreed to him being on title in any event. The concerning issue is that he made it clear to Ralph Shaw that his intention was to protect assets from any claims resulting from the court process related to his child. When all of the above circumstances are taken into account, it is difficult to find that the Respondent has clean hands in coming before the court seeking a discretionary remedy.

Spousal Support Claim

[86] Taking all the above circumstances into account, the Respondent has not met the obligation on him to establish his claim for spousal support from the Applicant. The claim is for a retroactive spousal support from the date of separation, October 31, 2009, forward to the date of trial in the amount of a lump sum of $50,000.00. I find that the Respondent has not established need given the factors set out above. He has failed to disclose his income properly. He has received beneficial third party funds that allow him to draw from a shareholder’s loan from his solely owned corporation on a tax-free basis. He has demonstrated significant marketable skills and earned significant income in the past. He has a gross income in excess of $342,841.00 in 2015 for his own business, and over $490,000.00 went through his account in 2015. He demonstrated a high level of skill in carpentry/cabinetmaking with the renovations completed at the Santiago property. He has a valid AZ driver’s license. He has not disclosed the value of the properties that he owns that are registered in his own name, against which the Applicant is making no claim.

[87] The Respondent was sheltered by the Applicant since the separation in October of 2009 until September 15, 2015, when he left the Santiago property and save and except for occupancy rent paid from May to September of 2015 pursuant to a court order, he made no payments towards the mortgage and taxes, etc. and made no offers to pay occupancy rent. On the contrary, he stated under oath that he was deliberately putting financial pressure on the Respondent by staying there and making no contributions to occupancy rent until the financial issues between himself and the Applicant were resolved. He was well aware by doing so, he was putting her in an extremely difficult financial position in maintaining both properties for an extended period of time when the original plan was to sell the Santiago property shortly after moving into the farm.

[88] There is no evidence of need presented to the court other than his reported income which was clearly inaccurate in terms of his capacity to support himself and his claim for spousal support is dismissed.

Claim Against RRSP’s

[89] Based on the above findings, the Applicant has been put into extreme debt by carrying the entire occupancy costs for both properties. The Respondent has, throughout the relationship, maintained his own business assets and income. He has, since the parties began to reside at the farm until he left there in June of 2013 benefitted from the use of that property from which to run his business. He has owned 85 percent of the small livestock operation of cattle and horses kept on the property. He has paid for a significant amount of the feed for those animals. The Applicant has established that she has also contributed significantly to the cost of feed. The Respondent has been able to write off, as a business expense, any feed for which he has paid.

[90] The Applicant has been employed full time during the course of their relationship as a veterinarian. Based on the findings set out above, I see no basis for granting the Respondent’s claim to one-half of the RRSP’s accumulated by the Applicant during the course of their cohabitation. There is no evidence of a joint family venture in any global sense, which would provide the basis for such a claim. His claims on property owned by the Applicant do not extend beyond his work directly involved with the two pieces of real property which are the main subject of this application. I find that the onus on the Respondent to establish a factual basis for a claim against the RRSP’s, registered in the name of the Applicant, has not been met and that claim is dismissed.

Property Claims

[91] It is important to deal with the Respondent’s counter-claim for a beneficial interest in the two properties, in which the parties resided for the times and under the conditions set out above. The onus is on the Respondent, as the moving party on his counter-claim, to establish a factual basis on which the court can relay to determine what the work he performed on, and materials he supplied to, the Santiago property actually contributed to the increase in the value of that property. There was no direct evidence about that issue, other than the increase in value from the purchase price of $107,000.00 in November, 2000 until the current agreed upon fair market value of $287,500.00. The exact impact of the improvements and renovations to the property undertaken by the Respondent, he values at over $179,000.00, as set out in Exhibit Number 15, Tab 4.

[92] One of the difficulties is when improvements to a property are made of a very high quality and then the property is to be sold within a relatively brief period of time, it is obviously not always possible to obtain full recovery of the cost of those renovations when the property is sold. There is no hard and fast rule in that regard, but putting high-end renovations in a property that is of a relatively modest value and then putting the property up for sale in a short period of time, may or may not increase the marketability of the property but runs a considerable risk that the cost of the renovations may exceed the increase in value of the property.

[93] Clearly, if all those values for his work and materials are accepted by the court, there would be no room for market influences over a 15-year period in the very dynamic period of growth experienced in the Carleton Place area, as demonstrated by the construction of a four-lane highway from Ottawa during that period and the influx of thousands new residents. I am prepared to take judicial notice of that change in the character of Carleton Place over the last 15 years. That change has been profoundly felt within the court system in the County of Lanark, particularly in family and child protection law as well as criminal law with the resulting stress on court’s services in Lanark County to deal with that significant increase in population. Carleton Place has become a bedroom community for Ottawa with the inevitable influences on the housing market in the Carleton Place area. I have no specific evidence to quantify the impact of that increase in population on the housing market or to quantify the effect on the fair market value of the Santiago property as a result of the work and materials supplied by the Respondent claimant.

[94] Based on the increased demand for a residential property in the Carleton Place area during the last 15 years it may not be unreasonable to expect a property in the lower end of the residential price range to more than double in that period of time based on market conditions alone.

[95] The Respondent also points out that as a result of the increase in value of the Santiago property by the fall of 2008, the Applicant was able to obtain the financing for leveraging that increase in value in order to fund the purchase of the farm property. In fairness to the Applicant, it must be noted that Ralph Shaw corroborated the fact that the Applicant’s good credit rating and her excellent history and business relationship with those lending that financing were important factors in getting that increased mortgage.

[96] The Respondent relies on his relationship with the vendors of the farm who, without any enforceable written agreement, offered him the first opportunity to purchase it when they were deciding to sell. He was unable to obtain the financing to afford to purchase the farm. Through the Respondent’s contact with the vendors, the Applicant purchased the farm in her name alone.

[97] The evidence is that the Respondent claimant did perform considerable renovations and improvements to the Santiago property. Evidence of those improvements, after the Applicant spent over $4,000.00 to have them finished after she resumed possession of the property, is contained in Exhibit Number 20, which is a copy of the current advertising in place in an attempt to sell the Santiago property. The Applicant’s response to that claim is that the work and services were in lieu of contribution towards room and board in the amount of $500.00 per month. The parties lived in this property for almost exactly eight years from early 2001 until March of 2009. If her evidence is accepted, that barter contract would be valued at $6,000.00 per year for eight years for a total of $48,000.00 by the time they moved to the farm. That is very close to the amount claimed by the Respondent as being approximately one-half of the equity in the farm property at this time.

[98] The other issue, closely related, is that the Santiago property would not have been as valuable in 2008, in order to allow the funds to be raised by the Applicant to purchase the farm property. The lack of credible evidence regarding how much influence the Respondent’s work and materials had on the increased market value of the Santiago property is problematic. The reality is that those renovations and improvements, on a balance of probabilities, must have made some contribution to the increase in the value of the property, just on a common sense basis.

[99] In the absence of such definitive evidence, yet faced with the reality of the quality of work done and the position that the work was done as part of a contractual agreement for room and board, I am drawn to the conclusion that the most equitable finding regarding the impact of the Respondent’s work and materials on the Santiago property is to reasonably attribute it to be approximately one-half of the increased market value of the property. Because of the lack of direct evidence in that regard as well as taking into the fact that all valuations are approximate and there’s no consideration given for disposition costs, etc. with regards the Santiago property, the resolution of the Respondent’s claim must be resolved in fairly broad strokes.

[100] I find that it is reasonable to consider, as a possible set off against his claim, the fact that he paid no other contribution towards room and board. The Applicant’s evidence is that she requested $500.00 per month and he paid it once or twice. He made no contributions to the cost of the mortgage or taxes or insurance or utilities while residing there with the Applicant other than the work and material he was doing in improving the property. It is possible then to set off a claim for room and board, in a case of this nature, against the increased value of the property. The test is not how much he invested in time and materials, but how that investment relates to the increase in the value of the property at this stage. In broad strokes, that could be in the neighbourhood of the $48,000.00 room and board claimed by the Applicant based on her evidence. The Respondent cannot have it both ways. He either paid for his room and board directly in cash or it was paid for by goods and services to improve the value of the property. I find that there is no credible evidence of him making cash payments to the Applicant as alleged through the ATM withdrawal slips. There are no corresponding deposits in her bank account.

[101] In trying to resolve these matters in an equitable way, it is impossible to come up with a fair solution without broad stroking the numbers rather than being too specific with all the variables that exist, many of which are set out above. Under all the circumstances of this issue of his contribution to the increased value of the equity in the Santiago property, taking into account all of the factors, I find it is reasonable to value his claim at $22,875.00, being one-half of the amount of the claimed and one-quarter of the equity in the Santiago property.

[102] In doing so, I recognize that is a modest number in terms of the work and materials that he supplied. That all has to be set off against the fact that he was doing this work in exchange for making no direct payments for room and board.

[103] I find no credible evidence that he made the cash payments that he has claimed he made to the Applicant. The Applicant denies receiving those payments and the fact that there are no consequent deposits in her bank account is more persuasive than ATM withdrawal slips with her name written on them by the Respondent.

[104] With regard to the Respondent’s claim against the farm property, the evidence is clear that he could not have purchased that property as he was not able to get financing. Even though he was interested in purchasing it when it became available from the vendors, that is only a notion until a purchaser has the resources to do so. The Applicant herself could have purchased this property on the open market when it was listed for approximately the same range of price for which it was purchased. While the Applicant was able to purchase the farm based on the increase in value of the Santiago property and leveraged that, along with her good credit rating and credibility with the lenders, the Respondent has been credited with his contribution to the increase in that value, as set out above, and is not entitled to any further credit towards the purchase of this farm from that part of the process which the Applicant put in place to make this purchase. He was not willing to contribute any funds, nor to go on title, nor to sign any commitment to a mortgage to support her purchase.

[105] This is one area where the Respondent’s actions can clearly be described as his failure to come to the court with clean hands surrounding his claim to the farm property. Even though the Applicant has given evidence that she was never prepared to have him on title to the farm, his evidence is that he did not wish to be on title in order to shelter any assets from a potential claim by the mother of his child arising out of a lengthy, acrimonious court proceeding regarding custody, access and support. It is contradictory to approach the court for equitable relief of a claim for an interest in this property while at the same time seeking to shelter this alleged interest in the property against a potential claim in another family law proceeding regarding his daughter. He has failed to provide any meaningful financial support for that child for approximately the last seven years since around the time of the purchase of the farm by the Applicant. I find that stated attempt to avoid his legal and moral responsibility to the child prohibits him seeking any equitable relief in relation to this property.

[106] It should also be noted that none of the claims referred to at paragraph 97 of the Applicant’s Factum are capable of being interpreted as justifying a claim to an interest in property. Those claims, which fall into that category, are as follows:

a) mowed and maintain yard at Santiago, $8,320.00 b) gathered up all garbage, etc. weekly Santiago, $4,280.00 c) open and maintain pool Santiago, $15,560.00 d) farmed the land, $10,000.00 (including the profits he made from sale of hay) e) feeding all livestock from 2002 to 2013 (farm not purchased until 2008), $14,950.00 f) pulled weeds, etc., $3,250.00 g) picked stones, $2,500.00 h) window film, $1,500.00 i) hung pictures, $250.00 j) pet and animal feed, $43,200.00 (all of which he expensed) k) feeding all livestock and pets (85% of which were his business), $41,975.00 l) watered all pets, $11,960.00 m) clean cats’ litter box, $22,812.00 n) cut grass, $5,625.00 o) clean up animal feces, $5,850.00 p) housekeeping, $11,258.00 q) dishwashing, $11,258.00.

[107] The Respondent’s evidence related to the supply of material and his time suffers from the same weaknesses as referred to above, even if he were entitled to make a claim, the evidence does not support any significant improvement for renovations to this property, such as was done at Santiago. The Respondent used the farm property to conduct his business. He had 85 percent of the livestock on the property. He did not account for the hay that was cut from the property even though some was used for the livestock located on the property, most of which were his, there is no clear detailed accounting and he kept those details to himself.

[108] It was agreed between the parties that the occupancy rent claimed by the Applicant against the Respondent for the time that he resided alone at the Santiago property without paying any such rent would be set off against any amount to which the Respondent might be found entitled in these proceedings. The occupancy rent was agreed to total $26,400.00 at the rate of $1,200.00 per month for the relevant months. Setting that off against the $22,875.00 that the Respondent is awarded, the result is that the Respondent owes the Applicant $3,525.00 for the balance of that occupancy rent.

[109] The only remaining issues are the claims related to personal property that have not yet been resolved. Those are spelled out by the Applicant in Exhibit Number 29, Tab 5. The Respondent gives a reply to those claims at Exhibit Number 20, Tab 8. I will deal with them individually:

[110] The refrigerator in question was purchased by the Applicant on July 16, 2008 for $2,300.00, as confirmed by the receipt provided at Exhibit Number 29, Tab 5. It was the subject matter of a consent order on August 17, 2015, when the parties agreed that the double French door, stainless steel refrigerator would be left in the Santiago property when vacated by the Respondent. When the Applicant took possession of the property, it was found to contain a much less valuable stainless steel refrigerator, not one with double French doors or of equal quality. The response to this claim by the Applicant, as stated at Exhibit Number 20, Tab 8, is that the refrigerator had been broken for two and a half years. One wonders why he would then enter into a consent order two and a half years later to produce that exact refrigerator. He states he did not try to get it repaired, he just put it out on the curb, someone else took it and he has replaced that with at least one other refrigerator which he found not working when he returned from out of town the day before the Applicant was to retake possession of the Santiago property. He purchased another used refrigerator which is in place and apparently functioning. I have no way of putting an exact value onto that claim, although it is clear that the Respondent breached the order. A refrigerator purchased in July of 2008 is not worth the full price by September of 2015. I also have no real information about what the value of the replacement refrigerator was, even though it is acknowledged to be of somewhat lesser quality but functioning. I will give the Applicant her claim for that refrigerator in the amount of one-third of the price of the original purchase, being approximately $765.00.

[111] The next item she claims is for cost of water billed to her for the months of July, 2013 through October, 2015, when the Respondent occupied the Santiago property from June 23, 2013 until September 15, 2015. The bills from the Town of Carleton Place are put out quarterly and the Applicant is entitled to her claim in the amount of $2,398.72.

[112] Her next claim is for electricity. Again, the bills are all attached. She has been responsible for paying the electrical bill during the months that the Respondent resided there and to which he has not made any contribution. The receipts and bills are all substantiated by documentation and I allow her claim of $4,925.01 for that item, from June of 2013 until January 24, 2014 when she stopped getting bills, the account was transferred into the name of the Respondent.

[113] Regarding heating oil, it is the same situation. The bills are there for heating oil supplied for which she has paid during the time the Respondent had exclusive use of the property at Santiago, and I allow that claim as well in the amount of $1,626.57. It should be noted that the Respondent made no response to the claims for water, electricity or heating oil in his material but focused on claims for personal property items.

[114] The Applicant claims an antique Coke cooler of hers was not returned. The Respondent’s answer is that it belonged to him. I have no way of valuing that Coke cooler or determining the claim so I am left to just leave that unresolved and make no award. The scaffolding is in much of the same category although I see the value is only $60, but I have no way of resolving that matter and am not making an award.

[115] The Applicant does provide receipts to show that she spent $4,033.00 to complete the renovations of the Santiago property before it could be put on the market. While that is accepted as having occurred, I am not prepared to award anything with regards to that claim as it is assumed within my finding regarding the resolution of the Santiago property issue between the parties.

[116] The Applicant claims $250.00 for an air conditioner. I have no way of valuing that and the Respondent’s claim is that it was his to begin with so I have no way of resolving that and no order will be made in that regard.

[117] The Applicant claims $160.46 for having to purchase a tap and faucet to complete the installation of fixtures. That purchase was made on November 16, 2015 in order to make the property saleable but, again, I took the value of renovations and improvements into account in my earlier ruling and am not prepared to add the cost of fixtures necessary to complete the renovations as an item of claim.

[118] The floor nailer claimed by the Applicant in the amount of $563.87 is supported by an invoice from Home Depot, which shows that a flooring nailer was purchased at a price of $749.00 plus tax on August 28, 2007. The invoice is made out to Rintoul Bros. Lumber Company but her evidence, as confirmed by the receipt, is that the nailer was paid for with her Home Depot card and not paid for by the Respondent. Her evidence is that he still has the nailer in his possession. He has not responded to her claim to deny that. She has filed a photocopy for an ad for a similar style of industrial flooring nailer from Home Depot at a price of $499.00 and her claim is for that amount plus tax, and I find that claim reasonable and make that award in her favour in the amount of $563.87.

[119] I have already dealt with occupancy rent, which is contained at Exhibit Number 29, Tab 5, and would not award any additional occupancy rent. Those claims then for personal property and utilities and heat, etc. total $10,279.41, payable by the Respondent to the Applicant.

[120] With regards to the Respondent’s claims for missing or withheld personal property, they are contained at Exhibit Number 20, Tab 9. The Applicant’s response is simply that there is nothing left at her property that belongs to the Respondent. She gave evidence that she asked him three to five times to come and get his belongings and he did not show up. She would organize her work schedule and the Respondent would cancel at the last moment. She acknowledges that the trampoline was left at her property but it was left outside in the weather and it is in very poor condition for that reason alone. She said there is some of the Respondent’s clothing at his mother’s and she packed a bunch of things of his.

[121] His list is subjectively valued with no receipts or documentation.

[122] The one item claimed that is shown in Exhibit Number 17, Photographs Number 67 through 74, is a 10 by 16 foot custom made portable livestock run-in shed. It is portable only in the sense that it can be moved with a good strong tractor to pull it. That shed has been left on the property at the farm. He has placed a $6,000.00 value on it, again, with no supporting documents. It is clear that that is a very well built structure and I am prepared to credit him with $5,000.00 towards his claim for personal items for that run-in shed. I am unable to resolve any of the other items as they were not specifically dealt with in evidence and there are no documents to support any of them. I best I can do is to give him a credit of $5,000.00 against the previous award of $10,279.41, granted to the Applicant in order to resolve the competing claims for personal property and incidental items.

[123] Taking all of the above into account then, I make the following orders to resolve the outstanding issues between the parties.

[124] The Respondent is declared to have no interest in the Applicant’s properties, known as 151 Santiago Street, Carleton Place, Ontario and 1406 Quarry Road, Carleton Place, Ontario, or her RRSP’s registered in her name.

[125] The Respondent’s claim for spousal support is dismissed. The Respondent is ordered to pay to the Applicant the total sum of $8,804.41, being the $3,525.00 owed to her for occupancy rent after crediting the Respondent for $22,875.00 interest in the Santiago property plus the sum of $5,279.41, being her claims articulated at Exhibit Number 29, Tab 5, minus the $5,000.00 credit to the Respondent relating to his personal property claims as set out above. There will be, of course, prejudgment interest in accordance with the Courts of Justice Act.

[126] If the question of costs cannot be agreed to between the parties, I will receive written submissions, not to exceed four typed pages, plus a draft Bill of Costs from the party seeking costs within 30 days of this judgment, with a 10 day right of reply, also limited to four typed pages, from the other party.

[127] This has been a very difficult matter to litigate. The expense and delay has been unreasonable. The process has been both painful and expensive for both parties and I regret that the matter could not have been resolved at a much earlier stage.

[128] I thank counsel for their assistance and particularly for their written submissions which were helpful in me addressing the issues and managing literally thousands of pages of material filed during these proceedings.

The Honourable Mr. Justice K. E. Pedlar Released: April 28, 2016