Court File and Parties

KINGSTON COURT FILE NO.: 43/17 DATE: 2018-09-17 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Michael Wayne Goodberry, Applicant AND: Annette Howes, Respondent

COUNSEL: Danielle Russell, for the Applicant Lindall S. McDonald, for the Respondent

HEARD: July 3, 5, 6, 17, 19, and 23, 2018

Reasons for Judgment

MINNEMA J.

Nature of the Case/Issues

[1] The parties were in a dating relationship starting in early 2008 followed shortly afterwards with cohabitation until the fall of 2014. They did not marry and have no children between them. The applicant is seeking a finding of unjust enrichment relating to the real property in the legal name of the respondent. Upon that finding being made, he seeks a remedy of a constructive trust and partition and sale or, in the alternative, a monetary award.

Background Facts

The Applicant

[2] The applicant testified that he was 62 years old. He describes himself as a self-employed handyman doing mostly carpentry jobs. He is not a licenced tradesman, but has wide experience. He indicated that he had been doing handyman jobs since age 13, and has had various other jobs over the years, including working at a plant, doing roofing, working for a brother-in-law who was a licenced carpenter, and apprenticing for CP Rail as an electrician.

[3] The applicant has always lived in the broad area about one hour north of Kingston just south of the TransCanada Highway near the small town of Parham, also known as the Township of Central Frontenac. He has many friends in, from, or associated with that area, and would generally help them if they had small construction projects.

[4] He indicated that he was involved in building a few houses as part of his handyman work, but mostly the shell and framing. In 2006 he did some work for a friend John Cameron, a retired Industrial Electrician, on a house in Parry Sound. While Mr. Cameron’s evidence in chief suggested that the applicant in several months “performed all building aspects of the home from foundation to the roof”, in cross-examination he clarified that he had bought a shell of a house and looked to the applicant for help to finish it.

[5] The respondent also did other work. He has three sisters, one being Carol Stinchcombe who, along with her husband King Stinchcombe (the “Stinchcombes”), has a farm and substantial property in the area, specifically on the north east side of Long Lake. The applicant did regular work on the farm as needed, and this became more frequent after 2008 because of Mr. Stinchcombe’s failing health. The applicant also went “ginsenging”, which I understood involved harvesting wild ginseng. There was little detail about this activity other than it being somewhat lucrative for a time.

[6] While the parties’ paths had crossed many years earlier, when they met relevant to this proceeding in the latter part of 2007, the applicant was living with his father Leonard Goodberry in his father’s home at 1037 Long Lake Road in Parham. He had a 13-year-old son from a past marriage, Shawn Goodberry, whom he was seeing every other weekend.

[7] The respondent indicated that he was not in the habit of filing Income Tax Returns, but did file a number after the fact – going back to 2008 – for this proceeding. His evidence was that his annual income around the time he got together with the respondent was $9,400, plus a few thousand undeclared dollars from ginsenging, and that he did not have much in the way of savings.

The Respondent

[8] The respondent is 59 years of age. She was born in this general area but after graduating from college moved to Toronto and eventually found work as a food service supervisor at a Toronto hospital. She met John Parr and they bought a farm near Orangeville and subsequently married in 1985. She then obtained a food service supervision job at a hospital closer to their home. The Parrs have three children, two boys Zevon and Connell born in the late 1980s, and a daughter Joelle born in 1997.

[9] The applicant explained that the farm was big, both in terms of acreage and operation, with cows, pigs, sheep and chickens. She indicated she was very busy balancing her work at the hospital, raising children, and working on the farm. At times she reduced her hospital hours to part-time. In 2001 her husband hurt his back, and she quit the job at the hospital to work on the farm. She also took on varying part-time jobs outside of the home, such as driving for others, babysitting, and working on other farms.

[10] The respondent indicated that she has construction experience. She, her husband, and one other person put an addition on their home, doubling its size. They built a 60 x 30 ft. sheep barn with ‘board and batten’ walls and a steel roof. They put an addition on another barn. In the fall of 2006 they paid someone to do construction work, and afterwards she began working for that person. She said that the crew included his partner, an apprentice carpenter, and her, and that she contributed in numerous areas (drywall, insulation, vapour barrier, vinyl siding, etc.) in what she described as “labourer type things.” They completed two houses and were working on a third.

[11] That year her mother was diagnosed with cancer, and she took care of her, including staying with her three times early in the following year 2007. Shortly afterwards she and Mr. Parr separated. In June of 2007 the applicant moved with Joelle, around 9 years old at the time, into the family cottage located on the south east side of Long Lake. Around that time the applicant’s brother was building a house/log cabin just across the lake on the north east side, very near if not beside the Stinchcombe farm. I understood that the applicant arranged for her horses to be stabled at the Stinchcombe farm, as she kept her saddles etc. at her brother’s place.

Early Relationship

[12] The respondent was doing some work on the Stinchcombe farm in exchange for the boarding of her horses. The applicant as noted was also working there. They became reacquainted. They did work together such as haying and cutting wood.

[13] Because the respondent’s family cottage was not winterized, in the fall she move into her cousin’s house next door, keeping her in the area.

[14] The parties began to interact more. They went ginsenging that fall. The applicant helped the respondent find a truck to purchase. The applicant took the respondent around looking for a place for her to rent or buy. During this time he would comment on houses where he had worked. He had a book with home design plans, and they looked at those together. The respondent asked the applicant if he would be able to build a house, and he said yes.

[15] For Halloween (October 31, 2007), the respondent took Joelle to Parham, about a half dozen kilometres south of Long Lake, and handed out candies at the applicant’s father’s house. The parties were not yet dating at the time. The applicant’s father, who had been ill, was subsequently diagnosed with cancer.

[16] In November of 2007 the respondent moved her horses from the Stinchcombe farm to a neighbour’s, and thereafter was paid by the Stinchcombes for her work there, including assisting on the construction of an addition to a drive-shed with ‘board and batten’ walls and a steel roof.

[17] Around this time - it was not clear whether it was late 2007 or early 2008 - the applicant hired the respondent to assist him with his handyman work. One particular job was noted regarding the installation of interior pine walls in a log cabin. The owner paid the applicant who paid the respondent around $8 or $10 per hour. The applicant would pick the respondent up from her cousin’s place in his green Ford truck. The respondent said the applicant did an excellent job. The applicant, despite hiring her after seeing her work, claimed the respondent had no experience and that he was training her daily.

[18] There is no dispute that the parties began dating around January of 2008. Also around that time the applicant had a friend die. The respondent consoled him. The respondent along with many others assisted in the care of the applicant’s father who was determined, despite his cancer diagnosis, to stay in his home. Near the end he needed someone there consistently, and this included the respondent who helped cook meals, clean the house, and assist with medications.

[19] In April of 2008 the applicant received an inheritance of about $15,000 from a distance relative. He did not have a bank account. He tucked the money away at his father’s house, but the respondent as his girlfriend pointed out that was not safe and offered him the use of a bank account of hers that he could access at any time. The money was deposited on April 15, 2008. The applicant was given a PIN number but could not recall it, so he had to ask the respondent for his money. The applicant indicated that the funds were not tracked, but he didn’t care as he trusted her. There is nothing to suggest that the applicant did not in some form receive back all the money he put in.

The Applicant’s Father’s House - 1037 Long Lake Road

[20] The applicant’s father passed away on April 29, 2008. His executrixes were two of his daughters, the applicant’s sisters. The applicant asked them if the respondent and Joelle could move into the home at 1037 Long Lake Road where he was living. They agreed and that happened quickly, in May of 2008.

[21] The applicant had been living in the basement of the home, and continued to do so. There were three bedrooms upstairs. The respondent moved into the one what had been the applicant’s father’s. Joelle took the third bedroom. The middle bedroom was left for the applicant’s son Shawn Goodberry who was visiting every second weekend.

[22] There is some dispute about the nature of the relationship at that point. The parties remained intimate, and indeed they had been when they were dating. The applicant said that even before the respondent moved in she had stayed nights but would always leave early to be home when her young daughter Joelle got up in the morning. He claimed that once the respondent moved in she would sleep most nights in his room but, as before, go to her own room so that it would look to Joelle that she was coming from upstairs. The respondent in turn said she did not sleep with the applicant often for several reasons, because he smoked downstairs and she had an aversion to it, he had a single bed, and he needed to have a heater blowing on his shoulder because of a pain issue. There was evidence that they shared meals together and socialized as a couple. While the respondent said they were still dating in May of 2008, she did indicate that after she moved in the arrangement was nice and they were a family, meaning the applicant and his son Shawn, and her and Joelle.

[23] Sometime in the spring of 2008, the respondent completed her matrimonial settlement with her husband Mr. Parr. He kept the farm, and she received approximately $200,000 which included a $30,000 lump sum payment of child support for Joelle.

[24] Possibly around this time as well – it was not clear – the respondent’s mother passed and she received a quarter interest in the family cottage on Long Lake along with her three siblings plus $20,000. She used the $20,000 to purchase a sister’s quarter interest.

[25] Tragedy struck on June 16, 2008 when the applicant’s son Shawn Goodberry passed away. He had ingested two pills of his maternal grandfather’s heart medication while at his grandfather’s home. He was still just 13 years old. This was obviously a very difficult time for the applicant, and as noted it followed on the heels of the death of his friend and then his father. He said his mind was not in a good place. The respondent said he was depressed and under the weather, as they all were.

[26] I want to get back just briefly to the disagreement on when the parties began cohabiting or could first be described as spouses. Reference was made to the often cited Moldowich v. Penttinen, 1980 ONSC 1537, [1980] O.J. No. 1904 (Ont. Ct. (Gen. Div.)) decision and the generally accepted characteristics of a conjugal relationship, which include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. The applicant maintained the spousal relationship began soon after the respondent moved in, being May of 2008. While the respondent seemed to disagree, as noted she did say that sometime afterward they became “a family” and that this included the applicant’s son. Given that the child passed away just the following month, in my view the parties were clearly cohabiting as spouses by the middle of June 2008.

[27] There were different accounts of how the parties were sharing the costs of this initial living arrangement. No discussion or agreement at the time related to the expenses was noted, and there was no evidence from a representative of Leonard Goodberry’s Estate (the “Estate”). The applicant had been living in the home without paying rent when his father was alive. The Estate did not charge the parties rent. The home was mortgage free and they paid the utilities but not the insurance or taxes. It appears that at or upon moving in the respondent began putting money into her account that was being used by the applicant for his inheritance, The bank statements show that many shared living expenses were being paid from that account. Indeed, while the respondent initially asserted she paid all the expenses early on, it is clear that at the outset the TV, hydro, water heater rental, and some of the telephone bills were being paid from mingled funds. Following cross-examination and the reconciling of items by counsel, it was agreed that up until the house construction started (see below) the respondent paid only an additional $156.72 of telephone bills (for July and August) on her own. They both seemed to contribute equally to the living expenses, preparing food, and washing dishes.

Overview of the Chronology

[28] The applicant indicates that the respondent had talked about building a house but that he thought she was just passing time. His friend Sean Cameron, likely around 22 years old at the time, lived in the Estate home with the parties and Joelle after the applicant’s son passed, from July to before Christmas in 2008. He worked with the applicant on his handyman jobs, and worked on his green Ford truck, which for periods of time was inoperable. Sean Cameron observed the parties going over the house plans and making changes that indicated to him that they intended to live in it together. The respondent’s daughter Joelle confirmed that her mother planned the house with the applicant in mind.

[29] I will get back to the arrangements and circumstances relating to the purchase and building of the house in more detail. As a general overview to complete the remaining broad chronology, the building lot was purchased by the respondent sometime in the fall of 2008 and the building of the house started in the late fall/winter of 2008. The parties moved into it around May of 2010 before it was complete. That was about 1½ years after construction first started. The parties shared the main bedroom in the home for about 3½ years. In October of 2014 they separated. At that time the applicant took up residency in the basement until, in the face of legal action by the respondent, he moved out in November of 2015, about a year later. The house was still not complete. The applicant commenced this application over a year after that, on January 25, 2017.

Purchase of the Lot

[30] The respondent bought house plans from a Dave Popewell. She then bought one of several lots the Stinchcombes were selling off of their farm. The exact date she and the Stinchcombes agreed to the purchase and sale was not clear. There was no purchase agreement in evidence. The applicant was not consulted on the purchase, and indicated that he did not know that she had bought it until later on. Its municipal address is 2306 Long Lake Road, referred to above and below as the “house”.

[31] The respondent said that she paid a deposit and then the balance of $36,000. While the total amount is about right, the breakdown appears to be off. Piecing it together from the exhibits, the Request to Admit, and the Statement of Agreed Facts, the sequence was as follows:

(a) The respondent paid a bank draft to her lawyers on August 26, 2008 for $16,181.20 for the purchase. Her agreement with the Stinchcombes including any deposit would therefore likely have been around that time.

(b) The property was untouched as of September 4, 2008, as evidenced by a photograph. It was nineteen and a half acres of vacant unserviced land.

(c) The Parcel Register (Service Ontario – Land Registry Office) shows that the legal transfer of the title to the property from the Stinchcombes to the respondent occurred on September 10, 2008 for $35,000.

(d) The respondent paid the Township building permits on November 4, 2008.

(e) The respondent paid the balance owing to K.W. Stinchcombe by way of bank draft of $20,750.00 on November 26, 2008.

(f) The parties agree that the respondent paid a total of $36,931.20 for the purchase of the vacant parcel of land (the amounts in (a) and (e) above).

Start of Construction

[32] The respondent indicated that she had a nephew cut trees on the lot and haul branches, and it took him about one day. She didn’t recall paying him. He used his chainsaw and her chainsaw, and his 4-wheeler and truck. She said she then had Pete Nedow, who has an excavation business, clear the driveway in October/November 2008. She said that “we”, being the applicant and her, rented a compactor, and then together showed Mr. Nedow where they wanted the house dug. The applicant said he was surprised that she had already arranged for the contractor to dig the hole, as it was late in the year. He said he helped stake out the hole, levelled two loads of fill, and then packed the fill, for a total of about 16 hours. The respondent then arranged to have the walls and foundations poured.

[33] For most country building, wells usually come first, and a photograph confirmed that it was done early on here. There was a dispute between the parties about the cost to the respondent to install the well. She produced a carbon copy of a cheque for $5,500 dated October 29, 2008 to Davey Well Drilling, a bankbook entry for $108.45 dated October 31, 2008 which she indicated was also for the well, and a carbon copy of a cheque for $743.50 dated April 14, 2010. The applicant would only agree to the later amount of $743.50. I am satisfied that the respondent paid a total of $6,351.95 for the well and that it was drilled and for the most part paid sometime in October of 2008. I cannot see one payment of $743.50 in April of 2010, close to 1½ years after construction started, as being the full expense for the well.

[34] There was one other significant disputed item regarding the construction costs. The respondent indicated that she paid $8,900 to Pete Nedow for the excavating, septic and driveway, which does not seem out of line. The applicant would only admit to $6,500. The $2,400 difference related to the respondent producing a recent receipt from Mr. Nedow related to $6,500 of payments received “on account”. The respondent’s evidence was that there was an earlier payment of $2,400 to Pete Nedow by cheque on November 26, 2008 supported by a debit in her bankbook although without a legible cheque stub, and that she only asked Mr. Nedow for confirmation of the payments made afterwards. I accept the respondent’s evidence of this $2,400 payment. It would have occurred around the time of the excavation of the road and lot, and there was no suggestion of any other sizeable expenditure of that approximate amount by her around that time.

[35] The respondent said that once the work pouring the basement was done the applicant’s work started in earnest. Consistent with that, the applicant said he started working on the house itself on December 3, 2008, once the basement walls were poured.

Evidence in Relation to the Applicant’s Role

[36] The respondent’s position is that the applicant agreed to build the house for $10 per hour plus his living expenses. The applicant’s position, to the contrary, was that they would build the house together, with the respondent supplying the materials and him providing the labour, and own it together. I find, for the following reasons, that the evidence supports the respondent’s position.

Discussions about the Arrangements

[37] The respondent’s evidence about the applicant’s role in the building of the house was simple, clear and unequivocal. Again, she said he agreed to build the house for $10 per hour plus his living expenses. The applicant’s version of their arrangement was vague. He said that the respondent proposed that they would build a house on the property, she would pay for materials and he would do the labour, and they would “sit on the porch and grow old together”. He said that those were her words spoken before the construction started, and they did not discuss it again until he was told she had arranged for the contractor to dig the hole, which caught him by surprise. There was no evidence of any further discussion. The applicant’s account of their arrangement suggests a proposal by the respondent that he silently accepted by doing the work without being asked. It had markings of a unilateral contract. However, the applicant also had a variant of his own version of that arrangement. As opposed to him providing all the labour, he also said that originally the respondent was going to help out on the house herself as well, but that as it turned out she wasn’t actually much help. Her evidence to the contrary was that she was contributing at times as much as 20 hours a week. Regardless, I note that the applicant’s initial contention that the understanding was that the respondent would pay for the materials and he would do the all the labour is somewhat inconsistent with his contention that she would contribute both materials and labour.

[38] If one were to accept the applicant’s account that there was a promise made by the respondent that he would receive something in exchange for unpaid work by him, what that was is an open question. The applicant assumes that the respondent’s reference to sitting on the porch and growing old together meant equal ownership in the real property. But it could have easily meant something else, such as rent-free accommodation as long as they were together, or some sort of limited life interest. The applicant’s version did not include any discussion about percentages or the value of their respective anticipated contributions. For example, the applicant was not consulted on the lot purchase and clearly did not pay for it. Was that to be included as part of the “materials”?

[39] As noted above, Sean Cameron and Joelle confirmed that parties went over the plans together and made changes to accommodate the applicant’s living in the new home. Sean Cameron said that he was left with the understanding that the house was intended to be shared by the parties together. There can be no doubt about that. The parties were living together in a relatively new and healthy relationship. The expectation at the time was that they would continue to live together once the house was built. However, that does not speak to ownership or specifically to the financial arrangement.

[40] The applicant said that the fact the respondent gave him money, which will be discussed further below, did not alter the fact that it was “our” house, and that she referred to it as such. When the respondent’s sister asked the applicant where he was going to live when the house was built, he said it created an awkward moment that the respondent addressed it by saying it was his house too. Again, they were in a committed relationship. While there was no doubt that they were going to live in the house together, those words do not establish an ownership.

[41] When asked on the witness stand whether he was hired to do the work, the applicant said “not really, no … my understanding was that it was going to be a joint effort … she had money to build it and I built it to live in forever.” This “understanding” is not evidence, and as noted the respondent's words are open to different interpretations. A plan to sit on the porch and grow old together is not a serious weighing of the proportionality of their contributions. At no time did the parties, in support of the applicant’s alleged version of the arrangement, ever weigh the respondent’s costs (for the lot, installing services (well, septic, hydro line, etc.), third party payments, building materials, and her own time) against the applicant’s expected labour to arrive at a sense of the proportionality or fairness. While those kinds of conversations might not always happen in a spousal relationship, in this case both parties actually averred to having discussions about their arrangement.

Lack of Follow Through on the Applicant’s Version of the Arrangement

[42] The applicant said that they did not discuss transferring the ownership into joint names. However, he said he knew that if the respondent died her kids would throw him out, and when he brought that to her attention she told him it was his home until he died or chose to leave. Once again, I cannot see how this establishes ownership intentions. To the contrary, it seems to speak to residency, with an underlying tone that the applicant will benefit by living with her until he leaves.

[43] As noted earlier, after they separated the applicant moved to live in the basement. For the first time he began to pay something towards his living expenses. This might in some sense suggest an ownership interest. However, he did not otherwise behave as an owner. He took no risks, and spent little to no money on the house. He acknowledged that after May of 2010 when they moved in together the progress on completing the construction became “very slow”, in part because the respondent told him she was not going to spend any more money. However, when he received his second inheritance of $25,000 from his father’s estate in 2010 -- and for a brief period of time actually had money to invest -- he put no money into the house. In particular, multiple outstanding finishing jobs still did not get done, while the respondent continued to pay the applicant’s share of living expenses.

Execution of the Fee-for-Services Arrangement - General

[44] As noted the respondent arranged and paid for the lot, the excavation of the hole, the foundation and basement contractor, the installation of the septic system, and the drilling of the well. With few and no notable exceptions, the respondent also paid for all the materials to build the house. She is the only one to have ever paid the insurance and taxes. What evidence is there regarding the labour to build the home?

Execution of the Fee-for-Services Arrangement - $10/hour

[45] The respondent’s version, again clear and simple, was that she followed through on the fee-for-services arrangement by paying the applicant $10/hour. The applicant, while not denying he was paid, had a somewhat different take on the reasons and the amounts.

[46] As it turned out, the applicant’s inheritance money from his distant relative ran out about the time that he started work on the house, in December of 2008. He indicated that sometime after it did, he told the respondent that he would have to put the work on the house “on hold” while he sought other work, and that in response she offered to pay him $10 an hour as spending money “to keep going”. Her paying him relating to his labour it supports her fee-for-services position. I would also point out that the applicant’s financial circumstances puts into question whether he even had the capacity to make the arrangement he asserts. He had no savings, and could not afford to work on the house without compensation as it would impede his ability to do other handyman jobs. He had vehicle expenses and was a heavy smoker. He needed some money. The applicant stated that the fact the respondent gave him money did not alter the fact that it was “our” house. It is unclear what he meant by that, but her paying him any money based on $10/hour related to his time working on the house contradicts his assertion that the agreement or understanding was that his contribution towards ownership was his unpaid labour.

[47] When asked whether the $10/hour arrangement was ever implemented, the applicant said “not really, no.” In his other testimony he was even more equivocal. The applicant said he never asked the respondent for money “at first” as he was still doing little jobs, and that if the respondent paid him much or anything it was for one year and not a lot. He also said that he could not recall how much he was paid as it was scattered over a couple of years. He said there was no “real” agreement for money, but when he told the respondent that he needed to work in his handyman business to make money, she offered him the $10.00 per hour. He said he did not track hours or get weekly pay and did not recall how much he was paid, although he knew “there was some.” He said that he was paid some money by the respondent but he hardly asked for any, and he only did when he had used up his money from his inheritance and found himself “working for free”. Again, the inheritance money was expended about the time the serious work by the applicant on the house started. His stating that he would not work for free and that he was paid in lieu of working in his handyman business once again directly contradicts his version of the arrangement, namely that he was working for free in exchange for or in expectation of an ownership interest.

[48] There is no question that the applicant did significant work on the home, although he also had some other handyman jobs and still did work for the Stinchcombes. While there was a debate in the evidence about whether he was working full days before the parties moved into the home in May of 2010, there is no dispute that the large bulk of his work was done up to that time. The applicant submitted a summary of his own hours prepared after the fact which indicated that he worked a total of about 1600 hours on the home. I appreciate that work can ebb and flow depending on when materials arrive, help is available, the weather, weekends and holidays, etc., but attributing all those hours to that time frame of 18 months works out to about 22 hours per week.

[49] The respondent maintained that she paid the applicant $12,995.75 for his work. She indicated that she was not keeping a running total at the time, and when he indicated what he had worked she would pay him. She pieced together these payments from her bank statements, indicating that she was paying by both cheque and cash until around the end of 2009, when she only paid cash. She also included payments made on the applicant’s behalf, such as paying for his hunting licence with her visa, and paying for his appointment at the eye doctor.

[50] While the applicant was only prepared to concede in closing submissions having received $1,520 in $10/hour “spending money” from the respondent, his evidence was generally consistent with hers that the money he received was scattered over a few years. While the applicant suggested that he was not paid much, in my view the only specific payments he was able to successfully question were the initial ones related to the timing of when the work started, and one entry that showed a $500 bank transfer to him in January 2009 when he did not possess a bank account.

[51] Regarding the initial payments, as noted the applicant’s work on the home started in earnest after the basement walls were poured. The respondent was clear that the foundation was poured around November 18, 2008, and the final invoice for it was also that month. Indeed, looking at the respondent’s list of building materials purchased, and excluding the earliest two in September which were clearly not for the construction (ie. shelving, a curtain rod, etc.), the first substantial purchase (per their Request to Admit) was also in November. As noted, the applicant said he started working on the house itself on December 3, 2008. Despite this clear evidence the respondent referenced three cheques that she alleged were paid to the applicant for his labour on September 10, October 21, and October 27, 2008, totalling $1,100.00, and she said that she also made cash payments to him on September 2, 16, and November 7, 2008, totalling $600.00. This total of $1,700 would therefore equate to payment for 170 hours of work before the real construction (ie. putting on the main floor) even started. When asked about this, the respondent explained that some work was done on the property before it was transferred to her, which indeed is consistent with the applicant’s evidence. However, the applicant’s own breakdown up to that time indicated only 19 hours of work, and there was no evidence from the respondent of any extra work that could account for the additional 151 hours. There was no suggestion that payments were made in advance.

[52] I would not allow $1,500 in alleged initial payments as in my view they were not adequately proved, nor am I satisfied on the unexplained $500 transfer. In my view the respondent has only been able to establish roughly $11,000 in payments to the applicant, and I find that is the approximate amount that he was paid.

Execution of the Fee-for-Services Arrangement – $10/hour versus Value

[53] The applicant’s evidence and argument directed at the alleged enrichment of the respondent and the remedy he is seeking was also relevant to the nature of the arrangement itself. He suggested that the fee-for-services arrangement made no sense because $10/hour is not his usual hourly rate, he would not have enlisted help from his friends if he was being paid by the hour, and the value he added to the house was disproportionate to what he was paid. I examine each of these below.

Applicant’s Hourly Wage

[54] The applicant asserted that when he was doing his own handyman work, he was charging customers $22.50 per hour, and that he would not have done the job for the money the respondent gave, namely $10.00 per hour plus living expenses. However, there is no question that he did accept $10 an hour for some of his work. Further, there was no independent evidence showing that anyone has ever paid him at the higher rate. Indeed it is a bit suspicious. He made about $9,400 in 2008 from his handyman business, and there is no evidence that he ever made substantially more than that either before or after. Those kinds of earnings are not what one expects to see with such a high hourly rate. Even working just 22 hours a week (see paragraph 48 above), if the applicant were receiving $22.50 an hour he would earn roughly $25,000 a year. At $10 an hour he would earn roughly $11,000 a year, closer to his actual earnings both before and after this project.

Applicant’s Friends

[55] The applicant had numerous friends at the site during the construction. Most would drop by to socialize, and at times the applicant would ask them to lend a hand where needed. This included some family members of the respondent. The respondent herself worked when she could, but as of April 2009 she had a job in the general store in Parham working from 1 to 6 p.m., and therefore was only available outside of that time and after her chores at the Stinchcombes. At some point her horses were moved back to the Stinchcombe farm and she worked there again in exchange for boarding.

[56] Other than people who stopped by being asked to hand up a board, help run a wire, etc., six of the applicant’s friends were noted by him to have done more than just passing help on the house.

[57] Sean Cameron, mentioned above, indicated that he worked about 200 hours on the house, and that if the applicant were not a friend he would have charged between $2,000 and $2,500 for his work. He said the 200 hours was a “general idea” that he arrived at as a “fair number”, but that he did not punch in or punch out. It was not clear when he calculated these numbers, but it was not contemporaneous. He said that he also did some work with the applicant on the Stinchcombe farm and helped him in his handyman work. He said that the 200 hours reflected just the time while he was living at the Estate home with the parties. That seemed a bit odd as it would mean that from December 3 when construction started to at the latest December 23, 2008 when he left, he worked about 65 hours a week. It appears to exceed the hours the applicant himself worked according to his own breakdown and evidence, and Mr. Cameron was supposed to be helping him. Regardless, Mr. Cameron said that the applicant “gave” him $1,000 for the tasks he did on the house. There was no evidence as to when this payment occurred, and it does not appear that the applicant would have had $1,000 to pay Mr. Cameron at the relevant time. The respondent did not recall paying him herself. She pointed out that Mr. Cameron was 22 years old when he lived with them for free for 6 months, and that she did his laundry, they fed him, and drove him around. Mr. Cameron did not say he asked for money, and said that he and the applicant did not even discuss an hourly wage. When asked whether his contribution was therefore a donation, he said that he liked hanging out with the applicant, and that it was a good learning experience for him.

[58] Tyler Kimberley, about 26 years old at the time, would stop by the job site to socialize. He said he knew the applicant his whole life having worked with him, and when at one point the applicant asked him to help with the steel roof he said “sure, no problem, I’ll give you a hand.” He said that if the applicant were not his friend he would have charged $1,520 for his work based on a $36 hourly wage. However, he did not submit any bill but was paid $300 in cash by the respondent. She indicated that she did not see Mr. Kimberley work as she was at the store in Parham at the time, but she asked the applicant what he should be paid.

[59] John Cameron already mentioned above is Sean Cameron’s father. He is a retired Industrial Electrician who lives in Parry Sound. He indicated that the applicant is a long-time friend. Mr. Cameron owns a cottage on Eagle Lake, which is just east of Long Lake and the house. As noted, the applicant did some work for him to finish a shell house in 2006. Mr. Cameron was asked by the parties to complete the main electrical service, as the applicant had done most of the wiring himself. Mr. Cameron said he spent 28 hours working on the house and would have charged $3,500 plus fuel and travel time had the applicant not been his friend. He said he wanted to help out, and was happy to help them out. He said he was not paid, and did not expect any payment. The respondent confirmed that Mr. John Cameron did not ask for payment, and indicated that she would have paid him had he asked.

[60] Dale Hartwick is another long-time friend of the applicant. He said the applicant told him he and the respondent were going to build a house. He said he was asked by the applicant to help with putting up the roof trusses, which he did for approximately 8 hours. He said that he was not paid for the work and did not expect to be, he was simply helping out a friend. He added that if the applicant were not his friend he would have charged $180. That works out to $22.50 per hour. Mr. Hartwick works for CP Rail, and there was no evidence of his skill level. The respondent noted that there was no request for payment, and she would not have known how much to pay as she was not there when he worked. He would stop by the house often to visit and socialize, about 25 times he said, only once to work.

[61] John Bush is another long-time friend of the applicant, and he and his girlfriend socialized with the parties on occasion. He said the parties referred to the house as “our house”. He did about 30 hours of work helping the applicant, and said that he did not charge as he was under the impression the house was intended for the applicant and respondent “to share”. The respondent said she was aware Mr. Bush had helped and would ask if he wanted money. There is no suggestion a request for payment was ever made. Mr. Bush said that if the applicant were not his friend, he would have charged $600 for his work, or $20 an hour. He is a retired truck driver and water and sewer foreman.

[62] Mike Price is yet another long-time friend of the applicant. He said when the parties were first building the house he would stop in to see how progress was coming. One time the applicant asked him to help with the rafters, strapping and steel. He said he “agreed” and ended up spending nearly 60 hours on different tasks. He said the applicant paid him $300 for the work, he did not know if it came from the respondent, and that he could not recall her paying him anything more than that directly. He said he did not expect to be paid more than he was, and he was not sure what was going on. He was just working for a friend expecting it would come around at some point if he needed the applicant to help him. However, he added that if they were not friends he would have charged $1,475, apparently valuing his time at $26.25 per hour. He indicated that he did carpentry for 25 to 30 years but was currently a stay-at-home dad. The respondent acknowledged that Mr. Price did a lot of work on the house, was a good carpenter, and said she asked the applicant what to pay him and she paid what she was told. She said that she was “pretty sure” it was more than $300, but was not sure of a number.

[63] It is clear that all of these friends liked to do construction work, and in particular liked doing it and hanging around with the applicant, who is their close friend. Mr. Hartwick dropped by 25 times during the major construction over and above the times he worked. The only one of the friends who had construction experience and was still active in the trades (John Cameron was retired and Mike Price was a stay-at-home dad) was Tyler Kimberley, a union carpenter. He was paid in cash, without submitting a bill. Even then, he said he would drop by to say ‘hi’ at least three or four times during the construction when he was not working. The respondent said she never refused a request for payment, and indicated that she was willing and at times even offered to pay.

[64] There is no doubt that the work of these friends benefitted the respondent. It is true that she would not have gotten that benefit without knowing the applicant. The friends all seemed to have some general sense that they were benefitting the applicant in particular. However, their help did not appear to be contingent on him having an ownership interest in the house. They may have made assumptions, but no one asked. The applicant also benefitted in a sense; he eventually lived in the house rent and expense free for over four years.

[65] I reiterate that all the applicant’s friends helped out because they wanted to. Thankfully, some people like to help others. Those friends who were not paid did not expect to be paid, and the ones who were paid did not complain about their compensation despite now suggesting it was inadequate. The friends are not making claims. It is not in keeping with their donative intent. If they did they would face a limitations problem.

[66] The applicant’s position seemed to be that his friends were unpaid/underpaid, and the respondent is beholden to him for the full value of their work. I do not agree. The applicant has not pointed me to any law supporting that proposition. I am unaware of a legal basis on these facts requiring the respondent to pay the applicant or to give him credit for the value of his friends' work when they have not sought compensation or made a separate claim. This evidence from the applicant’s friends fails to convince me that the $10/hour fee-for-services agreement did not exist because it was inadequate, nor that their agreement can now be re-written to include payment to the applicant for his friends’ work.

Cost to Build

[67] The applicant led expert evidence as to the value of the property using the “cost approach”. This was mainly to address the remedy he was seeking, but also to suggest he would have been underpaid at $10/hour plus living expenses.

[68] The parties have agreed that as November 3, 2015, the day the applicant moved out of the house, the property had a market value of $141,500. That number was based on a splitting of the difference between the market value opinions of each of their respective appraisers, whose expertise was admitted. In a similar splitting-the-difference exercise, there was no dispute that the house was still roughly only 78 percent complete as of that date. That was also supported by the photographic evidence. There is no percentage of completion number with respect to the move-in date.

[69] The applicant’s expert explained that the “cost approach” is designed to replicate what was there on the ground on November 3, 2015, as it stood and distinct from the replacement cost which is the cost to build something new. She explained the process involved the utilizing of a service (Marshall and Swift) that included a computer program. She was very clear that the cost approach was not including labour. This last point seemed to be ignored by counsel in argument, who seemed to assume otherwise. Indeed, that part of her evidence was very difficult to comprehend given that it was her opinion that the cost of the building itself including the land and services was $204,900. The applicant’s expert went on to explain that in most situations the cost approach and market value approaches net similar numbers, but that the very wide gap of $61,900 between her market value opinion ($143,000) and her cost approach opinion was the “external obsolescence” of this property. She said that essentially means regardless of how much one pays to build a house, if it is too far away from a rural center and amenities and a main road, it will be hard to sell.

[70] The respondent’s expert did not do a cost approach analysis, but generally agreed that the market value of a property does not necessarily reflect the costs of construction. She said neither she nor the applicant’s appraiser would be qualified to determine the cost to build the house if a large portion of the labour was done by an owner. She felt that a cost approach analysis would not be appropriate where part of the building is unfinished and the effective depreciation was high, as both experts acknowledged here.

[71] The applicant argued that the value of his labour and that of his friends is the $204,900 costs of construction less the cost of the land, materials, labour that the respondent paid to others, plus a few thousand dollars for her own contribution. He calculated this figure as $80,000 (my calculation would be less based on subsequent findings, for example the well drilling above).

[72] I do not see this analysis as particularly helpful for a multitude of reasons.

[73] First, the applicant’s expert clearly said that her cost approach opinion specifically excluded labour. This may have been a misstatement, but it is difficult to see how that applicant can purport to rely on it to establish a labour figure when his own expert said labour was not included.

[74] Second, as noted above, I cannot see how the applicant would get the value of his friends’ contributions, or how the value added could be separated out from his labour.

[75] Third, the applicant himself said that he took the respondent around to look at homes in the area to rent or buy. He is making a huge assumption that she would have ever paid $204,900 to build this house. That would be more than her matrimonial settlement. With the actual value of the home at $141,500, the applicant’s cost valuation analysis in some sense supports the respondent’s position on their agreement. It illustrates that she simply could not have afforded to build the house without the applicant’s commitment to work at $10/hour plus living expenses.

[76] Fourth, it was not at all clear how the valuation program or cost analysis was treating profit. Surely the cost to build a home oneself, as the respondent did here, must be cheaper than the cost to pay someone to build it for you. The builder would expect to make a profit. While the applicant is suggesting that his contribution should be measured as if he were the builder/contractor or owner, clearly the respondent was in that role. She purchased the lot, bought the design drawings, arranged for the installation of many services, and financed the whole project.

[77] Fifth, the applicant with this calculation is attempting to rewrite the agreement after the fact. He calculated his time worked as 1,600 hours. At $10/hour that is $16,000, and not far off what he was paid including his living expenses. But even if the applicant had been paid at what he claimed was his full hours at what he claimed was his usual pay of $22.50/hour, the total would still only be $36,000 not $80,000. Even if one adds the full amount that his friends assert they would have billed had they not been working with the applicant, it is only an extra $8,175 after subtracting what they were actually paid. I am not accepting all of those numbers, but use them to illustrate that at its highest this total is significantly less than what the applicant suggests his cost approach calculation supports as his labour or contribution.

[78] Lastly, in this case we actually know the cost to build this house, without the need for an expert opinion. The parties have led detailed evidence on what the respondent actually paid for the excavation, the septic, the well, and materials and labour.

[79] In summary, I cannot see any of the applicant’s arguments as persuading me that his version of their arrangement is correct, nor do they rule out the fee-for-services and living expenses arrangement asserted by the respondent.

Execution of the Fee-for-Services Arrangement - Expenses

[80] As noted, about the time the house building started – in December of 2008 – the applicant’s money from his inheritance had run out. Also as noted, up until then the parties appear to have been sharing expenses at the Estate home. Thereafter, the respondent began to pay the bulk of the utilities and the shared expenses. For example, she paid the hydro bill for December 2008 and all of them after that, she paid the furnace oil bill for December 2008 and all the bills after that, and starting in 2009 she began being the sole person to pay the TV bill and the water heater rental. This timing supports her position that the agreement was that she would pay the applicant $10/hour plus “living expenses”, as that actually happened.

[81] The applicant is prepared to admit that for the full year 2009 the respondent paid $4,416.19 in shared expenses. Half of that would be for his benefit. However, the respondent says she paid more than that. The applicant had a vehicle (green Ford truck), but over the course of their relationship its operation was spotty. The applicant often used the respondent’s vehicles which were the only reliable transportation. She paid the gas, maintenance, and insurance on them. She also paid for a cell phone, which she maintained was used as their principle telephone. The applicant disputes those arrangements, maintaining that his own vehicle was on the road most of the time and that he rarely used the cell phone. It was not clear to me why the respondent was asserting these expenses for the full year of 2008 (the $10/hour plus living expenses agreement would not have started until near the end of that year), but for 2009 the evidence supported some shared use. In my view the answer as to the benefit to the applicant of his use of the respondent’s vehicle and the cell phone lies in some sort of apportioning towards the lower end. The total amount for these expenses (vehicle and cell) in 2009 was approximately $3,000, and in my view $750 of that would have been for the applicant’s benefit.

[82] Food was also mentioned as an additional living expense the respondent mostly covered, although there was no amount given for 2009. Once the respondent started working at the general store around April 2009, she would take home about $100 groceries per month out of her pay. It would be for three people, namely the parties and Joelle.

[83] Looking then just at 2009, being the only full calendar year after construction started and before they moved into the new house, one half of the admitted shared housing costs of roughly $2,200 plus roughly $750 vehicle and cell costs and $250 for groceries, would make the applicant’s share about $3,200 that the respondent paid.

[84] The respondent made a similar calculations for 2010 onward. The amounts are roughly similar, except that she had approximately $2,500 extra for repairs and licence on her vehicle in 2010. The applicant conceded roughly a similar amount of shared expenses ($4,225.86) for that year, still disputing the vehicle costs and cell bill. A significant change in these arrangements occurred in May of 2010.

Moving Into 2306 Long Lake Road

[85] The Estate wanted to sell the applicant’s deceased father’s house. It gave the parties a list of things to do to get it ready for sale. In May of 2010, about 1½ years after the construction started, the parties moved into the uncompleted house. The applicant brought some furniture and appliance items he purchased from the Estate.

[86] As touched on above, at some point in 2010 the applicant received an inheritance from this father of $25,000 which he put into his own bank account that he had opened.

[87] The respondent continued to pay all living expenses as before, as well as the groceries which she began to itemize for 2011. She continued to solely pay all the property taxes and insurance on the home. I note that these had been paid by her since 2009, and by 2011 were about $3,000 a year.

[88] There is no evidence of further payments of the $10/hour for work, although there is also little evidence of substantial work being done by the applicant after they moved in. The applicant said that he worked on the house every day, but it was very slow progress. As noted above he said that at one point the respondent said she was not going to spend any more money on the house. He was working on the Stinchcombe farm and doing odds jobs. On the date they separated over 3½ years later, much of the finishing work remained outstanding.

[89] There was more evidence of the applicant’s green Ford truck being inoperable and an increased reliance on the respondent’s vehicles for transportation. At some point the applicant purchased a 4-wheeler ATV to which the respondent contributed $800. That allowed him to get around the immediate area, particularly to the Stinchcombe farm to do his continuing and increasing work there. They heated the new house with wood. The applicant said he contributed all the wood, namely the labour to cut and haul it. The respondent to the contrary said she had an equal hand in the cutting and hauling the wood, and that it was mostly her equipment (truck, chainsaw, gas, etc.) that was used. They did not pay for wood. The applicant tried to suggest that he should have a notional credit for the wood as a living expense as it was all cut off his sister’s property. His sister did not give evidence, and the respondent indicated some wood was cut on her acreage.

[90] As noted, when they separated in October of 2014 the applicant took up residency in the basement. He said they then discussed joint expenses, and he offered to pay the respondent $10 a day. At some point he asked for copies of bills and when he got them he felt the expenses were less, just over $200 per month, but he said he continued to pay the $300 a month until he left about a year later. The respondent claims he did not pay the $10/day consistently, and that the applicant unilaterally reduced the payments once he got a copy of the bills. At no time was the money he paid said to represent rent, and there is no indication that the expenses factored in taxes or insurance for the house.

Law – Unjust Enrichment/Constructive Trust

[91] The applicant’s claim as noted is for unjust enrichment, a finding of a constructive trust in the house, and partition and sale to allow him to realize on his interest which in closing submissions he estimated to be worth about $50,000. He also claimed a monetary award in the alternative. That alternative claim is almost indistinguishable from the main claim, as it is for approximately the same amount of money and the respondent would likely need to sell the house to satisfy it.

Law/Issues

[92] Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, is the leading case regarding the legal tests for unjust enrichment and family law constructive trusts, and it is helpfully summarized in Reiter v. Hollub, 2017 ONCA 186 at paragraphs 16 to 24 reproduced below. I note that “constructive trust” is not specifically mentioned but is referred to as the “proprietary award”:

[16] In Kerr v. Baranow, at para. 31, Cromwell J. recognized that “[a]t the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit which justice does not permit one to retain”. Since the Supreme Court’s 1980 decision in Pettkus v. Becker, 1980 SCC 22, [1980] 2 S.C.R. 834, unjust enrichment principles have been available to support claims made by domestic partners upon the breakdown of their relationship.

[17] The test for unjust enrichment is well-settled. To establish unjust enrichment, the person advancing the claim must prove three things:

1. An enrichment of or benefit to the defendant;
2. A corresponding deprivation of the plaintiff; and
3. The absence of a juristic reason for the enrichment.

[18] There are two steps to identifying whether there is a juristic reason for the responding party to retain the benefit incurred. First, the court must consider whether the case falls within a pre-existing category of juristic reason, including a contract, a disposition of law, donative intent, and other valid common law, equitable or statutory obligations: Kerr, at para. 43. If a case falls outside one of these established categories, the reasonable expectations of the parties and public policy considerations become relevant in assessing whether recovery should be denied: Kerr, at para. 44.

[19] In Kerr v. Baranow, at para. 46, the Supreme Court outlined two possible remedies where unjust enrichment is established – a monetary award or a proprietary award. The court counselled, at para. 47, that the first remedy to consider is always the monetary award and that, in most cases, a monetary award is sufficient to remedy the unjust enrichment.

[20] To obtain a proprietary award, the person advancing the claim based on unjust enrichment must demonstrate that monetary damages are insufficient and that there is a sufficiently substantial and direct causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property: Kerr, at paras. 50-51. A minor or indirect contribution will not suffice.

[21] The court held that there are two different approaches to valuation for a monetary award: Kerr, at para. 55. First, a monetary award may be based on a quantum meruit, value received or fee-for-services basis. Second, a monetary award may be based on a value survived basis. This is where the joint family venture analysis becomes relevant.

[22] To receive a monetary award on a value survived basis, the claimant must show that there was a joint family venture and that there was a link between his or her contributions to the joint family venture and the accumulation of assets and/or wealth: Kerr, at para. 100. Whether there is a joint family venture is a question of fact to be assessed in light of all of the relevant circumstances, including the four factors noted above – mutual effort, economic integration, actual intent and priority of the family: Kerr, at para. 100.

[23] Justice Cromwell was careful to note that cohabiting couples are not a homogenous group: Kerr, at para. 88. The analysis must therefore take into account the particular circumstances of each relationship. 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: Kerr, at para. 88.

[24] While the four factors identified above are helpful to determine whether the parties were engaged in a joint family venture, there is no closed list of relevant factors: Kerr, at para. 89. The factors Cromwell J. suggested were not a checklist of conditions, but a useful approach to a global analysis of the evidence and examples of relevant factors that a court may take into account: Kerr, at para. 89.

[93] So the questions then are (1) is there unjust enrichment; (2) if so, do the facts support a constructive trust or will monetary damages suffice?

Unjust Enrichment

Absence of a Juristic Reason

[94] Regardless of whether an enrichment and corresponding deprivation are found, the applicant must prove the absence of a juristic reason for the enrichment. The obvious established category that would be applicable here is that of contract.

[95] The applicant maintains that there is no evidence that proves a contract. I find, to the contrary, that there is ample evidence to support the existence of the very contract asserted by the respondent. Her clear statements and the applicant’s admissions lead me to conclude that there was an agreement to pay him $10/hour plus living expenses for his work. Following the agreement the applicant actually received payments based on $10/hour, and the respondent actually began covering the applicant’s living expenses. In my view the applicant has not shown that no juristic reason from an established category (contract) exists to deny recovery: see Garland v. Consumer’s Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629 at para. 44, as affirmed in Kerr at para. 43.

[96] The applicant was not a co-venturer, but the hired help. He took no risks and did not invest any of his own money into the house, even when it was needed and he had money available. While there was a spousal relationship, there is no suggestion that the respondent benefitted from it in a tangible way. The applicant did not contribute to child care, do the bulk of the household duties, or provide compensable domestic services while the respondent worked on the house. In my view all the indicia in this case point quite simply to a fee-for-services arrangement. The applicant’s claim must therefore fail.

Benefit and Enrichment

[97] The above finding ends the analysis. I would add that in my view the applicant also failed to establish that the respondent has been enriched.

[98] There was a subtle disagreement between the parties on the interpretation of this part of the test, so I have included below the full paragraph 28 of Kerr on which both parties rely:

38. For the first requirement — enrichment — the plaintiff must show that he or she gave something to the defendant which the defendant received and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched the defendant and which can be restored to the plaintiff in specie or by money. Moreover, the benefit must be tangible. It may be positive or negative, the latter in the sense that the benefit conferred on the defendant spares him or her an expense he or she would have had to undertake (Peel, at pp. 788 and 790; Garland, at paras. 31 and 37).

[99] The applicant asserts that if it is established that he has supplied a benefit to the respondent, then he has met this part of the test. He relies on Kerr itself to support this proposition. At paragraph 32 (not the more detailed paragraph above) it summarized the law under this head, identical to Reiter above, as the applicant having to establish “an enrichment of or benefit” to the respondent (my underlining). Looking only to the benefit, Kerr at paragraph 38 (the above excerpt) also indicated that it must be tangible and can include a negative benefit “… in the sense that the benefit conferred on the defendant spares him or her an expense he or she would have had to undertake.” The applicant characterizes this as a ‘but for’ test, familiar from tort law on causation, arguing that ‘but for’ his contributions the respondent would not have been able to build the house. He maintains that the benefit is that he spared her the expense of hiring of a contractor, and that the resulting savings is her enrichment. As noted above, he calculates this generally as the difference between what his expert says is the cost to build the house and what the respondent actually paid (backing out and ignoring what was paid to him), with the difference attributed to his and his friends’ contributions.

[100] The respondent takes a much more simplified view of enrichment. She had a matrimonial settlement of $200,000 which she used to build the house. It is now all gone, and in its stead she has a house at 2306 Long Lake Road worth $141,500. She says there simply is no enrichment. This position also has backing in Kerr. As noted at paragraph 31, “[at] the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit which justice does not permit one to retain.” Retention is a key element; the respondent must be holding on to something of value that is not hers to keep. As noted in the Kerr excerpt above, “there must be a benefit which has enriched the defendant” (my emphasis), and therefore it follows that conferring a benefit alone does not satisfy the test. The applicant must show that the respondent here has been “enriched” in the sense (per the Concise Oxford English Dictionary definition of “enrich”, 11th Edition, 2009, University Press) that the benefit has in some way made her “wealthier”. The benefit must be “received and retained” (per Kerr above, my emphasis).

[101] I am of the view that the respondent’s position is the right one on the facts of this case. First, I cannot see how the respondent can be said to have retained a benefit when she has already paid more out of her pocket for the property than it is worth. It has an agree value of $141,500 but, per the following rounded numbers, she paid more than that to construct it:

$ 37,000 – land 58,500 – materials (admitted by the applicant per the post-trial calculations of the parties) 41,000 – third party labour, not including the applicant’s friends ($33,000 admitted plus the additional amounts of $2,400 and $5,600 from paragraphs 33 and 34 above) 11,000 – paid to the applicant as found above

$147,500 – total

[102] Rather than an enrichment, she has a loss of $6,000 before her own labour and time and the living expenses she incurred on the applicant’s behalf are considered. Given that it is likely that the respondent would need to sell the house to satisfy any award and Kerr at paragraph 37 calls for a “straightforward economic approach”, the notional costs of disposition should also be considered which, assuming a 5 percent real estate commission and very modest legal fees, would likely be approximately $7,500. That would further compound her loss.

[103] Second, the cost to build relied on by the applicant for his position is simply not an enrichment number. Whether it would have cost the respondent $204,900 or a million dollars to have someone else build the same house, it would still only be worth $141,500. I fail to see how it adds to her enrichment. Further, in my view the applicant’s cost approach valuation and argument is flawed for the reasons set out above.

[104] Lastly, while the applicant relies primarily on the excerpt from Kerr above regarding a “negative benefit”, I would point out that building the house at a cost of $204,900 is not an expense that the respondent “would have had to undertake.” To the contrary, she built this house having a sense of what she would be paying the applicant, and with a view to contributing her own time. It is very unlikely she would have paid someone $204,900 to build it, as she did not have that kind of money. It is somewhat fanciful to ascribe to her the economic foolishness of paying $204,900 to build a house that has a market value of $141,500.

[105] In my view, the applicant has failed to establish that the respondent has been enriched.

Deprivation

[106] Notwithstanding that the above conclusions ends the analysis, I would add that even if there was an established clear enrichment of the respondent and the absence of a juristic reason for that enrichment, in my view the applicant has not established a corresponding deprivation to himself.

[107] Simply put, there is no evidence that the respondent has ever earned greater than $10,000 in a year from his handyman business. Currently as the manager for the Stinchcombe farm his 2017 income tax return shows an income of $12,000. But as noted his 2008 income tax return showed an income of $9,400, and his Application indicated that his 2015 net income was $9,094.34. There is no indication or even suggestion that it was more in the intervening years. For the 18 months when most of the work was done by the applicant he received $11,000 from the respondent plus she paid about $4,800 of his expenses. That works out to an average of about $10,500 per year. For the four years after they moved in little work was done on the house and there was no reliable evidence of the hourly wage being paid, but the respondent was still carrying the applicant by covering his living expenses while he worked as a handyman and did increasing work on the Stinchcombe farm.

[108] The applicant argued that while he was working on the house, word of mouth spread in the local community that he was unavailable for handyman requests, and his business suffered. There is simply no reliable evidence to support that claim. In particular he did not present financial statements or income tax returns to show an impact. Again, there is nothing to suggest that his handyman income has other than remained consistent at about $10,000 a year give or take. The onus is on him to establish a deprivation.

[109] Even had I accepted the applicant’s position on their arrangement, it would still be difficult to find a deprivation. Instead of earning about $10,000 a year as a handyman, he was doing similar work on the house while having his living expenses paid and being provided “spending money” whenever he asked. Financially, those two subsistence level scenarios likely have a roughly similar value. It would be very difficult if not impossible for the applicant to both live and accumulate the approximately $50,000 he is seeking over several or more years on what he earned and is earning. In that general sense he is asking to be put into a substantially improved position.

Decision

[110] As noted in Garland at para. 44, unjust enrichment “…is an equitable remedy that will necessarily involve discretion and questions of fairness.” I cannot see how it would be fair to grant the applicant the relief he is seeking. The application is dismissed.

[111] If the parties wish to address me on costs I will accept brief written submissions as follows: from the respondent served and filed within fifteen days from the release date of this judgment; from the applicant served and filed within 10 days after he is served with the respondent’s submissions; and, if required, a reply from the respondent of no more than two pages served and filed within five days after she is served with the applicant’s submissions.

Mr. Justice Timothy Minnema Released: September 17, 2018