Kuntze v. Kuntze, 2019 ONSC 5556

COURT FILE NO.: 49979/15

DATE: 20190925

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Brenda Jane Kuntze

Applicant

– and –

Charles Albert Kuntze and Joyce Kuntze

Respondents

Stella Hines, for the Applicant

Paul Parlee, for the Respondents

HEARD: April 1, 2, 3 and 4, 2019

JUDGMENT

hebner j.

[1] This application was brought by the applicant, Brenda Kuntze for various relief arising from her separation from the respondent, Charles Kuntze. By the time trial took place, the applicant’s claims were limited to the following two claims:

1. Compensation for her unjust enrichment/constructive trust claim against both of the respondents for her contribution to the Kuntze family farm; and

2. A relatively minor retroactive child support amount.

[2] The court heard evidence from all three of the parties, a former milk collector, the applicant’s sister, an expert accountant who quantified the applicant’s claim, a sustainability consultant for the farm and supply chain industry and the respondent, Charles’ sister. The court also had the benefit of fulsome submissions from both counsel. This is my judgment on the matter. Given that the court heard evidence from a number of members of the Kuntze family, for ease of reference, I will be using first names. At times, I may refer to Brenda Kuntze as “the applicant” and Charles Kuntze as “the respondent, Charles”.

Background Facts

[3] The applicant and the respondent, Charles were married on November 20, 1993. They separated September 2, 2012. The marriage lasted 19 years. They raised three daughters, Hannah, Julia and Robin currently aged 24, 23 and 19 respectively.

[4] Charles’ parents, Joyce Kuntze and Albert Kuntze, obtained the Kuntze family farm in 1965 from Albert’s father. The farm consists of two lots. One of the lots was registered in Albert’s name and the second lot was registered in the name of both Albert and Joyce. Each of the two lots had a house on it. Albert and Joyce had four children, Kandy-Joy, Judy, Charles and Lyle. They raised their children on the family farm. Albert died on October 17, 2012.

[5] The Kuntze family farm was primarily a dairy farm. Joyce and Albert owned a dairy herd comprised of approximately 50 milking cows along with a milk quota. Charles left school in grade nine and began to work on the family farm. None of the other siblings followed Charles’ lead. Judy finished her education and pursued a career away from the family farm. Kandy-Joy married and moved off of the farm. Lyle has cerebral palsy and is unable to work or live alone. He continues to live with Joyce on the farm. Charles therefore became the only of the four children to work on the family farm with his parents.

[6] After they married, Charles and Brenda lived in one of the two houses. Charles and Brenda worked on the farm. There is competing evidence as to the extent of Brenda’s involvement.

The Farm

[7] The Kuntze family farm is comprised of two adjoining lots in North East Township, County of Perth. The lots are identified as Lot 19 and Lot 20. Joyce and Albert acquired the farm from Albert’s father in 1965. Joyce identified the lots as the home farm (Lot 19) and the second farm (Lot 20). The transfer indicates the consideration as natural love and affection plus $1. When Joyce and Albert acquired the farm, Lot 20 was registered in both of their names as joint tenants while Lot 19 was registered in Albert’s name alone. Each of the two lots has a farmhouse on it. The farmhouses are approximately 100 feet apart and the properties are divided by a lane way. The farm house on the second farm was closest to the barn.

[8] Charles was the one of four children who worked the farm land. He started from a young age. He left school at the age of 15. Charles said his sister attended at the school with him and she “signed me out of school”. He didn’t finish grade nine. He said he left school because there was “a lot of work to do on the farm” and he “didn’t really like school”. Charles said his teachers didn’t want him to leave, but he did.

[9] Before Charles married Brenda, he lived with Joyce and Albert in the main house on the home farm. He worked two days per week (Tuesdays and Thursdays) at the local stockyards and otherwise worked on the farm. In an effort to determine an appropriate wage for Charles, Joyce and Albert turned to farm business consultants who attended at the property three times a year to provide advice. Joyce and Albert were told that Charles should receive 20% of the milk cheque, or $2,300.00 per month. Accordingly, that’s what Charles was paid. When he lived with Joyce and Albert, he didn’t pay rent.

[10] At the time Charles married Brenda, in 1993, Judy’s ex-husband was living in the house on the second farm. He was paying $400.00 per month rent. Judy’s ex-husband moved out and Charles and Brenda moved in. Charles and Brenda began to pay $400.00 per month in rent. At the time, Charles was still working two days per week at the stockyards and the balance of his time was spent working on the farm. Brenda was not working outside of the home after she and Charles were married and immediately began to help on the farm.

Brenda’s Involvement

[11] The Kuntze farm was a dairy farm. The milking herd was approximately 50 – 52 dairy cows. The cows had to be milked twice per day, morning and evening. The barn had a milking parlour with room for four cows on each side. The milking procedure took approximately two hours.

[12] The milking procedure was described by both Brenda and Joyce. According to Brenda, she and Charles worked together with Joyce and Albert every morning and every evening to complete the milking. Brenda woke up between 6:00 a.m. and 7:00 a.m. Charles brought the cows to the milking parlour. Brenda and Joyce would sanitize the equipment and hook up the milking cows in turn until all of the cows were finished. They sterilized the equipment, cleaned up the cows and washed the parlour and milk pails. According to Brenda, the four of them worked as a team for both of the daily milkings, 365 days a year.

[13] Brenda said she also assisted in feeding the herd and in cleaning the barn. She said that, except for a break for lunch, the four adults would often work all day.

[14] Brenda discussed her work in the fields. The Kuntze farm had approximately 150 workable acres where they grew grain, corn and hay on a rotating basis. Brenda described assisting in the cultivation of the land in the springtime. She said she would get into the tractor and help till the land. She helped cut and dry the hay. She helped bail the hay or cut it for silage. The work in the fields was seasonal, from May to September. For the years 1993 to 2000, there were no other labourers on the family farm, just the four of them.

[15] Brenda had a garden of her own for her family’s use. She said that when she wasn’t in the field, or milking cows, she took care of the garden and her home. When asked about who made lunch for the family, Brenda said that sometimes she made lunch and sometimes Joyce made lunch – that “we all worked together”.

[16] Brenda described her relationship with Joyce as very close. She said that Joyce was like a mother to her – that Joyce had groomed her to be a farm wife. They canned produce, worked in the garden and shopped together.

[17] Hannah was born on May 23, 1995. Following Hannah’s birth, Brenda said she took approximately two months off and then returned to her regular duties to a somewhat lesser extent. She said that on some days she reduced her hours and on other days she didn’t attend the milking. She said Hannah came to the barn with her in a buggy or on her back in an infant carrier. Brenda said she continued to work on the farm to the extent she could after Julia was born on August 21, 1996 and again after Robin was born on October 30, 1999. Joyce helped care for the girls on occasion, but otherwise the girls were cared for by Brenda.

[18] Joyce described a similar milking procedure but minimized Brenda’s involvement. She admitted that before Brenda had children, she came to the barn with Charles, learned how to milk and assisted, but not every day. Her estimate is three times per week. When Brenda worked in the barn, often Joyce looked after the children.

[19] From approximately 1999 forward, when “putting in the hay”, Albert hired two young brothers to assist with the fieldwork.

[20] Evidence was given by Barry Roth, the individual who picked up milk from the Kuntze farm for approximately 40 years. He would attend at the farm, measure and weigh the milk, take a sample, pump it into the truck and leave. He attended every two days and the entire process took approximately 10 – 15 minutes.

[21] Mr. Roth started attending at the Kuntze farm in 1978 and continued until the quota was sold. He interacted with, for the most part, Albert and Joyce. Many days he didn’t see anybody present. Sometimes he saw Charles. Sometimes he saw Brenda. Occasionally he saw Lyle.

[22] Evidence was given by Judy Roulston, Brenda’s sister. Ms. Roulston lives in Stratford, relatively close to the farm. She attended at the Kuntze farm approximately once per month to visit Brenda. She generally attended mid-morning when her children were younger and, in the evening, when her children were older. She often saw Brenda assisting with the milking. She often saw Brenda in the barn washing up after milking. She recalled Brenda wearing big rubber boots when hosing down the area. On one occasion, when she arrived, Brenda was throwing hay off the hay wagon. She often saw Brenda working in her own garden. Brenda was often dressed for work on the farm.

[23] Charles described his own work on the farm in detail. He said he helped his father with custom work; he worked in the fields with combines, a tractor, plowing; he worked putting the corn in silos; he helped milk the cows every day; he fixed fences; he cleaned out cattle pens.

[24] Charles said from the time he and Brenda married, Brenda helped with morning milking “maybe three days a week” and “sometimes in the evening to help with chores”. He said that Brenda was more often in the barn helping in the evenings. He then said that, on average, Brenda was in the barn helping with milking two mornings a week and three evenings a week.

[25] According to Charles, after the girls were born Brenda didn’t work as much in the barn. She took care of the children. He acknowledged she was in the barn a few evenings a week to help and brought the girls in a buggy. Charles said that Brenda bore the primary responsibility for the three girls with Joyce helping on occasion. Charles said, “grandma took care of the girls sometimes while Brenda drove the tractor”. He said, “Brenda helped with hay once in a while”.

Lifestyle

[26] All four of the adults spent little time off of the farm. Brenda and Joyce would sometimes drive to town for shopping and banking or to attend coffee hour at the church. Very infrequently Brenda and Charles would take a day off. Brenda said, “we were dedicated to the farm”.

Expectations

[27] There were no clear discussions between Joyce and Albert on the one hand and Brenda and Charles on the other hand about a succession plan. Everyone described Albert as the one who made all of the decisions and the rest would fall into line. Brenda said that Albert would make comments such as “we all work together” and “what’s ours is yours”. Charles had some investments, approximately $5000 to $15,000, to reinvest in the mid-1990s. He asked his father for a timeline for his purchase of the farm. He asked if he should invest “for three – five – ten years” and Albert said, “what’s ours is yours – we’ll worry about that later”. According to Brenda, although there was never an outright promise, she and Charles were led to believe that they would have the chance to purchase the farm and milk quota.

The Sale of the Quota

[28] In 2005, Albert sold the dairy cattle and quota. Part of the quota was sold to the Milk Marketing Board in 2005. In 2006, after the cows were sold, the balance of the milk quota was sold to Kandy-Joy and her husband such that by 2006, all of the quota and cows were gone. Brenda and Charles were given two weeks’ notice before the cattle were hauled away. Charles then had no choice but to sell his dairy cattle as he had no milk quota.

[29] Joyce was asked why Albert chose to sell the quota. She said that Brenda and Charles’ marriage was not going well, that Brenda had a job cleaning, that Charles wasn’t helping as much as he should have, that Albert was 76 years old and that Albert said it was time to stop. There was no discussion – the decision was Albert’s alone. According to Charles, Albert told him that Charles and Brenda “would never be able to run the dairy farm (because they couldn’t run their own finances) so he wanted to get rid of the cows”.

[30] That part of the quota that was sold to Kandy-Joy and her husband was sold for $504,000.00, payable over time. Joyce said the full sale price, with interest, was $714,986.00. Joyce receives $3,972.14 per month towards the monies due to her for the quota. Joyce didn’t know how much Albert received for that part of the quota that was sold to the Milk Marketing Board.

[31] After the sale of the quota, the relationship between Charles and Brenda on the one hand and Albert and Joyce on the other changed. Charles and Brenda felt blindsided. There was less time spent together. Charles no longer received a paycheque.

Family Finances

[32] According to Brenda, Charles was paid for his work on the farm. At the time they were married, Charles was paid $1,500.00 per month. In approximately 1995, Charles asked for a raise and the payment increased to $2,300.00 per month. Brenda was never paid. According to Brenda, the payments were always reduced by $400.00 for rent such that Charles and Brenda received the net amount of $1,900.00. According to Joyce, rent was often not deducted from Charles’s pay.

[33] From their net income Brenda and Charles had to pay the hydro, telephone bill, oil for heat, car insurance, car lease, food and health care (there were no health and dental benefits). They always had a leased vehicle. Brenda and Charles received some gas benefit. Joyce would tell Brenda to “fill your car with gas before you go to town” when the two women went into town together and she and Charles didn’t go off farm often so initially they didn’t use a lot of gas. The gas benefit waned as the children grew older and Joyce accompanied them less. Charles estimates that the use of gas terminated in approximately 2002 when Albert and Joyce told he and Brenda that they should look after their own gas expense.

[34] Charles said Brenda looked after the family finances. Charles talked about having trouble keeping up with the bills. He said he and Brenda “always had financial problems”. He said that Albert helped him out at times because Albert didn’t want to have a bad name in the community.

[35] Charles does not recall rent being deducted from his paycheque – he recalls providing his father with cheques for rent. He recalls there was a period of time when rent was not paid. Charles does recall deductions from his paycheque when his father had to pay some of his bills. He gave, as an example, his father having to pay the feed bill for his chickens.

[36] Both of the farm houses were built in the 1960’s and were aging. In approximately 2002, Joyce and Albert had their home torn down and a new home built with an open concept design to make living easier for Lyle.

[37] There was no offer of funds to upgrade the home that Brenda and Charles lived in. Charles took a line of credit and hired a contractor to put in a bathroom, three new bedroom windows and a front door. Albert paid for the three windows. According to Brenda, a lot of the money from the line of credit went right back into maintenance of the home. Charles finished the basement, installed new floors, built a deck and installed outdoor flower beds. The upgrades took place sporadically over the years. Charles obtained a line of credit in the amount of $15,000.00, secured with his investments. Eventually, the investments were cashed in to pay the debt.

[38] Charles and Brenda tried to earn some money on their own on the farm. Brenda tried to raise meat chickens. She could raise up to 300 chickens per year without a quota. She used the chickens to feed her own family, gave some to Joyce and Albert and sold the rest. The eggs were gathered for personal use. The profit was minimal. In addition, Charles had a few of his own dairy cows mixed in with those that belonged to his father.

[39] In an effort to help with the finances, Brenda took a job in 2001 one day a week at a local store. After the sale of the quota, Brenda took a second job at a butcher shop. This job at the butcher shop became full-time by 2011.

[40] After the sale of the quota, Charles got a job fairly quickly working on another farm. Working on a farm was all Charles knew – he wasn’t educated or trained for anything else. The parties still had at least one vehicle and in 2006, the girls were 11, 10 and 7 years of age. When the car lease came to an end, with no credit history and insufficient funds to purchase a vehicle, Joyce and Albert allowed Charles to use the farm truck. Eventually, Brenda and Charles purchased a Buick Rendezvous.

[41] From 2005 forward, Charles was not paid by his parents. Charles and Brenda found work off of the farm. From that point, until Brenda left the home in 2012, they continued to live with their children in the farmhouse.

[42] In late 2011, Brenda had to take a leave from work due to stress. She received unemployment insurance benefits.

Incomes Prior to Separation

[43] Charles prepared his income tax returns annually when his parents prepared their returns. The tax returns were completed by farm business consultants who came to the farm.

[44] For the period prior to the separation, Charles’s tax returns disclose income as follows:

a. In 2003, Charles had gross farming income of $28,615.00 and net farming income of $10,812.00. He also had RRSP income of $5,067.00.

b. In 2004, Charles had gross farming income of $30,398.00 and net farming income of $13,047.00.

c. In 2005, Charles had gross farming income of $25,384.00 and net farming income of $9,476.00. He also had employment income of $13,487.00.

d. In 2006, Charles had a gross farming income of $35,669.00 and net farming income of $14,508.00.

e. In 2007, Charles had gross farming income of $26,270.00 and net farming income of $5,706.00.

f. In 2008, Charles had gross farming income of $45,746.00 and net farming income of $17,807.00.

g. In 2009, Charles had gross farming income of $40,709.00 and net farming income of $7,447.00.

h. In 2010, Charles had gross farming income of $35,787.00 and net farming income of $3,246.00.

i. In 2011, Charles had gross farming income of $44,668.00 and net farming income of $1,661.00.

[45] Brenda’s tax returns disclose the following:

a. In 2003, she had total income of $4,396.00.

b. In 2004, she had total income of $3,221.00.

c. In 2005, the year the quota was sold, Brenda had employment income of $10,748.00.

d. In 2006, Brenda had employment income of $17,241.00.

e. In 2007, Brenda had employment income of $14,750.00.

f. In 2008, Brenda had employment income of $16,618.00.

g. In 2009, Brenda had employment income of $21,736.00.

h. In 2010, Brenda had employment income of $17,126.00.

i. In 2011, Brenda had employment income of $11,232.00 plus employment insurance income of $5,606.00 for a total of $16,838.00.

[46] The parties’ incomes prior to the sale of the quota and then continuing to their separation support Brenda’s evidence that she and Charles devoted the bulk of their time and effort to the family farm until the quota was sold.

The Separation

[47] According to Brenda, financial stress was the cause of difficulties in the parties’ relationship. She described cascading financial difficulties that she attributed to an incident that occurred in 2004 – 2005, just before the quota was sold. Charles was required to pay a large consulting fee (approximately $1,500.00) to farm business consultants, presumably for his own small milking business and/or taxes. Charles didn’t have the money to pay the fee. He went to Albert to ask for a loan. Albert paid the fee and kept the entirety of Charles’s next paycheque. That caused significant difficulties for the family. Brenda asked her sister to make a lease payment on the couple’s vehicle to avoid repossession.

[48] Brenda said that the family’s lack of funds “snowballed”. It meant they had to borrow money from Albert to pay the bills every month and the money was deducted from the next paycheque. On occasion, Brenda attended at the food bank in order to feed her children.

[49] When the parties separated on September 2, 2012, Brenda left the family home. She moved into a rented premises on October 16, 2012. As neither party could afford a lawyer, Brenda found a blank separation agreement online. She printed it, filled it out as best she could, and both parties signed the agreement in the presence of their daughter, Hannah, who signed as a witness. Hannah was 17 years of age at the time.

[50] The agreement was a typewritten, fill in the blank agreement of the sort available online. The agreement provided as follows:

1. The children would reside with Brenda “more than 40% of the time”. They would have access to Charles every Tuesday and every other weekend from Friday at 5:00 p.m. to Monday at 9:00 a.m.

2. Charles was to pay Brenda child-support in the sum of $1,500.00 per month until the children completed school.

3. The debts were to be paid by the parties equally. They were identified as:

a. Charles MasterCard – $1,000.00;

b. Brenda MasterCard – $750.00;

c. Brenda MasterCard – $1,500.00;

d. Brenda and Charles – VISA/loan – $9,200.00.

4. Household contents were to be divided equally. The hay turner was to be sold and the proceeds divided equally.

5. Charles was to pay Brenda an equalization payment of $2,000.00. In addition, “inheritance to party one (Charles) to share with his kids”.

6. The parties would share equally costs of dental, medical, school and special interests (horse, shows, tack, vehicles, school interests) for the children.

7. Charles was to pay $500.00 to Brenda for spousal support each month.

8. Charles was to maintain a life insurance policy with a face value of $250,000.00 with Brenda as the sole beneficiary.

[51] Following Brenda’s departure from the family residence, Charles continued to deposit his paycheque, which was approximately $2,000.00, into the joint account. Brenda continued to manage Charles’s finances and pay his bills. Charles took monies for his own personal expenses out of the joint account. After approximately 18 months, Charles closed the joint account.

[52] The parties had separate accounts from March 2014 forward. From that point, Charles paid child support in various amounts until November 2014 when he began to pay $453.00 per month.

[53] Hannah began to attend Fanshawe College in the fall of 2013. In the fall of 2014, Hannah began to attend Darcy Lane Institute for equine massage therapy. Julia began to attend Fanshawe College in September 2014 for fashion and design. Julia and Hannah both moved away from home to attend school and obtained loans to pay their expenses.

Current Circumstances

[54] Brenda currently works at St. Jacobs furniture. She was hired in October 2012 and now manages the store. Her income has increased steadily over the years and is now approximately $50,000.00 per annum.

[55] Hannah is currently living and working as a nurse in New Zealand with her common-law partner.

[56] Julia continues to live in London.

[57] Robin currently lives with Brenda and is attending Conestoga College. For approximately one year, Robin lived with Charles. Charles purchased Robin a motor vehicle, pays her car insurance and pays for her cell phone.

[58] Charles is currently 52 years of age. He works full-time on a dairy farm, 40 hours per week. He milks 160 cows and cleans the barns. Charles said he does much the same work as he did on the Kuntze farm, absent the fieldwork. He currently earns approximately $3,000.00 per month. He has every other weekend off. He is paid $17.00 per hour. Charles continues to live in the same residence on the Kuntze farm that he and Brenda lived in throughout their marriage. According to Charles’s financial statement, he pays for his own heat and electricity but otherwise does not pay rent or any of the property expenses.

[59] Charles’s income subsequent to the date of separation is questionable. In 2014, Charles disclosed that his income for 2013 was $61,502.74, as set out in a schedule provided by his employer, all paid to him as an independent contractor. However, his 2013 income tax return discloses gross farming income of $35,268.00 and net farming income of $8,732.00. His total line 150 income, with some minor employment income, is $10,520.00. There is a disconnect between the disclosure from Charles’s 2013 employer and the figures set out in his income tax return. I note that in 2015, Charles signed a financial statement indicating that his income for 2014 was $41,000.00. What is clear is that Charles continues to earn his income as farming income with much of it appearing to be deducted such that minimal or no tax is paid.

[60] Charles’s sister, Judy Locklin, gave evidence on Charles’s finances. Ms. Locklin is a former mortgage specialist and assisted Charles with his finances following the separation. She said that Charles has a low level of financial sophistication. Ms. Locklin could not shed any light on the discrepancy in the reporting of Charles’s 2013 income. She could, however, confirm his income was over $50,000.00 based on deposits into the joint account.

Support Payments

[61] Ms. Locklin reviewed Charles’s bank statements post separation and confirmed that, until the parties had separate accounts in March 2014, Charles deposited his paycheque into the joint account. The bulk of that paycheque was used by Brenda to pay family expenses, including some of Charles’s expenses. Ms. Locklin calculated deposits in 2013 of $54,427.20 and transfers to another account (Brenda’s transfers) of $45,455.00.

[62] In 2014, a total of $12,584.44 was paid to Brenda for child-support. Thereafter, the amount was $453.00 per month until the beginning of 2017, when the payments terminated. Various orders were made, including an order that Brenda pay child support to Charles for Robin in 2017 for the period of time that Robin was residing with him. Currently, there is no child support payable between the parties.

Lost Wages

[63] Brenda called Steve Landers, a witness who was qualified as an expert, on consent, in public accounting. Mr. Landers has been a chartered accountant for 40 to 45 years. He provides accounting services for a number of farm clients. He appeared to have extensive knowledge of the finances of farming.

[64] Mr. Landers quantified Brenda’s wage claim, using information provided by Brenda. Brenda estimated her hours worked, broken down by season and by periods of time between the birth of each of her daughters. She estimates the total approximate hours worked between 1993 and 2006 as 10,657 hours. Mr. Landers used this information, and information from labour force survey estimates from Statistics Canada, to quantify her claim for unpaid wages. Mr. Landers then applied an interest rate of 3% to December 31, 2017. Mr. Landers calculates the total claim is $280,614.40.

[65] It was noted that Mr. Landers did not include statutory holidays, vacation pay, or income tax deductions. He also did not take into account the value of free rent and gasoline Brenda and Charles may have received.

Succession planning

[66] The court heard evidence from Mr. Nick Betts, a sustainability consultant for farm and supply chain industries. He gave evidence on the process of farm succession and transition. He talked about the need for a succession plan and the complexity of a farm business. He talked about the need for discussion between all the stakeholders, usually the farm owners, their children and spouses of the children. He talked about the value of farm property as an investment as the land increases in value every year. He talked about the value of the dairy quota as an investment. He talked about how adult children working on a farm will eventually take on more responsibilities in management and decision-making. He talked about the need for a succession plan to have some mechanism in place to benefit the siblings who will not be taking over the farm.

[67] It is clear from the evidence that there was no firm succession plan in place for the Kuntze farm. There were comments made on the part of Albert and expectations formulated on the part of Charles and Brenda. However, there was no firm succession plan in place for Charles and Brenda to take over the farm.

[68] Joyce has, since Albert’s death, transferred 1% of Lot 19 into Judy and Kandi-Joy’s name at the suggestion of her lawyer. Joyce provided a copy of her current will. In it, she names Kandi-Joy and Judy as executors and each of her four children are to receive 25% of her estate. The estate would include the Kuntze family farm. No consideration is given to Charles or to Brenda for their work on the farm over the years.

Farm Values

[69] The various appraisals were filed in the document brief of the applicant on the consent of the parties.

[70] Based on the valuations provided, in October of 2012, the market value of the vacant land on Lot 20, excluding building and site improvements, was $1,155,000.00.

[71] The market value of the residential property on Lot 20 plus one acre of land (the matrimonial home) was $240,000.00 in October 2012.

[72] The market value of the matrimonial home in February 2017 was $275,000.00.

Positions of the Parties

[73] The applicant requests damages for unjust enrichment. The applicant relies on the doctrine of joint family venture. She asserts that her damages ought to be assessed in one of three ways:

a) Assume that Charles has an equitable interest in the entire Lot 20 and the matrimonial home for a total of $1,395,000.00. She asserts that she ought to be entitled to 50% of that amount, or $697,500.00, through the equalization of the parties’ net family property.

b) Alternatively, Brenda suggests that the full value of the matrimonial home, plus 50% of the value of Lot 20, be included in Charles’s net family property. Brenda calculates that she would then be entitled to approximately $433,000.00.

c) As a further alternative, Brenda estimates that 25% of Joyce Kuntze’s net worth is $800,750.00. As her will leaves her estate in equal shares to her four children, Charles would receive that amount. Brenda claims she ought to be entitled to one half of that, or approximately $400,000.00.

[74] Brenda also claims retroactive guideline child support of $7,000.00, or alternatively $5,888.00 and section 7 expenses of $900.00.

[75] The respondents say that Brenda’s claim ought to be dismissed in its entirety. The respondents point to discrepancies in Brenda’s evidence at her questioning and they submit that her evidence on her contribution to farm work ought to be rejected. The respondents further assert that any claim by Brenda ought to be offset against rent she and Charles ought to have paid from at least 2006, after the quota was sold and both Brenda and Charles began to work off of the farm.

[76] The respondent, Charles, asserts that there are no arrears of child support and that, if anything, there was an overpayment.

Findings of Fact

[77] I accept Brenda’s evidence on her involvement in the farm work, particularly the milking work, in its entirety. This farm was a family farm in the true sense of the word. Charles and Brenda both committed themselves to work on the farm. I reject the evidence of both Charles and Joyce in so far as Brenda’s involvement was concerned.

[78] Brenda is detailed in her description of the milking barn and the milking procedure. She described her involvement, and the involvement of the three other adults, in the milking process. She described her work in the fields. She described learning how to do the various jobs, and then performing those jobs, applying what she learned. She described a lifestyle where her feet were moving as soon as they hit the floor in the morning. Her descriptions were offered in a matter of fact manner without exaggeration.

[79] Joyce and Charles, on the other hand, minimized Brenda’s work. On occasion, their evidence was contradictory.

[80] When Joyce was asked about the milking procedure, she described the men finishing up after breakfast. She was asked if Brenda would go back out to the barn after breakfast to assist. She said, “I don’t think so”. She then said, “well, she came out to see what they did and help when she could”. She was asked “did she (Brenda) help?” Her answer was “I can’t recall”. When she was asked what Brenda did in the barn, she said, “whatever she felt like doing”.

[81] When asked about fieldwork, Joyce said Brenda “may have been on a tractor in the field – she wanted to learn”. She acknowledged that Brenda grew vegetables in her garden to help feed her family. She said that after Brenda’s children were born, she came to the barn “when she was able to or when she felt like it”. She said, “let’s say twice a week she helped”.

[82] I find that Charles and Brenda were both an integral part of the farming business including the milking operation from the time they were married in November 1993 until the quota was sold in 2006. I find that both of them worked tirelessly from the time they got up the morning until the end of the day. I find that Brenda continued to assist with the milking after her children were born, although to a lesser extent.

[83] I find that Charles was paid the sum of $2,300.00 per month from 1993 until 2005 without any increases for cost of living. I find as a fact that Charles’s monthly paycheque was reduced by $400.00 per month for rent throughout that time period. I accept Brenda’s evidence in that regard. In her evidence, Joyce said that there were quite a few years that the rent was not deducted from Charles’s pay. However, in an affidavit filed in support of the motion, she gave inconsistent evidence and said that the rent was deducted.

[84] I find that Brenda and Charles worked as hard as they did on the farm, without reasonable renumeration, as they had a reasonable expectation that they would have an opportunity to purchase the farm from Albert and Joyce. In that regard, I consider the context in which Charles began to work on the farm. The farm had been passed from his grandfather to his father. Charles was withdrawn from school by his family when he was just 15 years old, in grade nine, to work on the farm full time. He was taught every aspect of farm work both in the dairy barn and in the fields. He worked beside his father from the time he was 15 years old until 2006, when he was 39 years old. He was clearly groomed to take over this farm – Brenda and Charles certainly expected that that would happen, and it was reasonable that they do so.

Analysis

[85] Any analysis of a claim for unjust enrichment must begin with the seminal cases of Kerr v. Baranow; Vanasse v. Seguin, 2011 SCC 10, [2011] 1 S.C.R. 269.

[86] In both Kerr and Vanasse, the court dealt with a couple in a common-law relationship. In Kerr, the common-law relationship was of a duration of more than 25 years. In Vanasse, the common-law relationship was one of 12 years. The Supreme Court addressed, in both cases, the law of unjust enrichment.

Unjust Enrichment

[87] The law of unjust enrichment requires that the applicant establish three elements for recovery:

1. An enrichment of the respondent by the applicant;

2. A corresponding deprivation of the applicant;

3. The absence of a juristic reason for the enrichment.

[88] The Supreme Court, in Kerr and in Vanasse, confirmed a straightforward economic approach to the elements of enrichment and corresponding deprivation. The applicant must show that she has conferred a benefit to the respondent and that the respondent received it. The benefit, or enrichment, must then correspond to a deprivation that the applicant has suffered. The third element applies to the question of whether there is a reason in law or justice for the respondent to retain the benefit. In considering this third element, courts may give consideration to the autonomy of the parties, their legitimate expectations, and the right to manage their affairs by contract.

[89] I find that both of the respondents were enriched by the applicant. From the parties’ marriage in 1993 until 2006 the applicant worked on the farm, shoulder to shoulder with her husband and his parents. She assisted with the milking mornings and evenings until her children were born. After her children were born, she assisted with the milking to a lesser extent. She assisted in the field, driving the tractor and bringing in the crop. She assisted in the garden she and Joyce used to feed their families. In addition, she conferred child care and housekeeping services throughout her marriage with Charles. Whatever monies Brenda earned off of the farm went into the family pot. Brenda and Charles maintained and upgraded their family home. All of Brenda’s efforts conferred on enrichment not only on Charles, but on Joyce and Albert as well.

[90] I find that Brenda suffered a corresponding deprivation. She devoted herself to work on the farm, for no remuneration, taking care of the family and raising her children from the time she and Charles were married until their separation. She did not pursue her own interests. She did not pursue a career. Since she and Charles separated in 2012, Brenda has done quite well for herself. She started working in a furniture store and is now the manager of the store earning $50,000.00 per year. She is obviously a person with some intelligence, capability and ambition. Presumably, if she had started her career path earlier, she would be in an even better position today.

[91] As for the juristic reason, I consider the separation agreement signed by the parties. Their signatures were witnessed by their minor child, Hannah. As the parties’ signatures were not witnessed by an adult, I find that the form of the contract does not comply with section 55(1) of the Family Law Act. Accordingly, the contract is unenforceable. I also note that Charles has not complied with the domestic contract. He has not paid the spousal support and child-support pursuant to the contract. The amounts were higher than have been awarded in interim orders, but presumably the contract was a package deal. As Charles didn’t pay the support amount set out in the contract, Brenda’s claim for unjust enrichment and an equalization of net family property ought not to be excluded by the contract. There is no other suggestion of a juristic reason for the enrichment and corresponding deprivation.

[92] Given the foregoing, I find that a case for unjust enrichment has been made out against both respondents.

The Remedy

[93] The first avenue of remedy is a monetary remedy as opposed to a proprietary remedy (Martin v. Sansome, 2014 ONCA 14, 11 O.R. (3d) 522). Indeed, Brenda seeks a monetary remedy. The question is the quantum of the appropriate monetary remedy. In my view, in quantifying Brenda’s claim, it is appropriate to consider her work in the business separate from the matrimonial home.

The Farm Business

[94] The applicant relies on the Superior Court decision of Meeser v. Meeser, 2012 ONSC 7085. In that case, Rolf and Peggy Meeser were married in 1988. They had two children. They separated on January 8, 2010. Rolf’s parents were Josef and Katharina. Josef owned a firewood business. Rolf and Peggy and the children lived in the home on the property owned by Josef and Katharina to facilitate the business. The firewood business was, for the most part, a cash business. No rent was paid. Rolf was not paid a wage or salary. The revenues that Rolf and Josef received were deposited between themselves based on the proportion of the work they thought each had contributed in any given year.

[95] After they separated, Peggy sought an equalization of net family property. She took the position that Rolf had an interest in Joseph’s business and that that interest ought to be included in his net family property for equalization. The trial judge found that Rolf owned 50% of the business and that one half of the value of the business must be added to his net family property statement. He said:

“Joe never gave over title to the business to Rolf. There was no title, no registration, no formality – just hard work. All witnesses described the transition from father as sole operator to 50/50 work and responsibility, to Rolf taking over all the banking and paperwork, to Rolf doing most of the work during Joe’s 2008/09 ill health and beyond.” (Paragraph 47)

[96] The facts in the case at hand are different than the facts in Meeser. In Meeser, Peggy did not have a direct claim against Rolf’s parents. There was no indication in the decision that Peggy was involved in the business. In this case, Brenda was involved in the farming business and has a direct claim. In Meeser, no wage was paid to Rolf – in fact, father and son appeared to operate the business as if they both had an interest. In this case, Charles always worked at the direction of Albert and was paid a wage. Albert at all times maintained complete control over the business. For these reasons, I don’t find the analysis in Meeser particularly helpful in determining a remedy for Brenda insofar as her involvement in the farming business is concerned.

[97] The applicant requests a finding of a joint family venture. In Kerr, the Supreme Court was dealing with a couple that had lived in a common-law relationship for 25 years. The Supreme Court coined the phrase “joint family venture”. At paragraph 85, when discussing the applicant’s claim in the context of a domestic common-law relationship, the Supreme Court said:

I conclude, 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.

[98] At paragraph 87, the court said:

My view is 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.

[99] The court went on to describe four factors to consider when determining whether the parties were engaged in a joint family venture. The factors are:

1. Mutual effort, namely whether the parties worked cooperatively towards common goals. Did they pool their effort and work as a team? Did they make a decision to have children and raise them together? Did they make joint contributions to a common pool?

2. Economic integration, namely the degree of economic interdependence that characterizes the parties’ relationship. The more extensive the integration of a couple’s finances, the more likely it is that they are engaged in a joint family venture.

3. Actual intent, namely whether the parties shared in the intention to accumulate wealth together. The parties’ actual intent, express or implied from the evidence, is a relevant consideration.

4. Priority of the family. Here, the court is to consider whether, and to what extent, the parties gave priority to the family in their decision-making.

[100] At paragraph 100, the court summarized the principles as follows:

I conclude:

1. The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services approach.

2. Where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant's contributions.

3. To be entitled to a monetary remedy of this nature, the claimant must show both (a) that there was, in fact, a joint family venture, and (b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth.

4. Whether there was a joint family venture is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent and, (d) priority of the family.

[101] The analysis applies particularly in the case of an intimate common-law relationship. I’m not sure it can be said that a joint family venture can be applied to an extended family, as is the case here. I have no difficulty finding that Charles and Brenda were engaged in a joint family venture. They worked together, pooled their resources, raised a family and worked as a team in all avenues of their lives. I don’t think the same can be said for the relationship between Charles and Brenda on the one hand and Joyce and Albert on the other hand. On the facts in this case, I find that there was a mutual effort. However, there was no economic integration, actual intent or priority of the family. The senior Kuntzes did not pool their resources with Charles and Brenda. Finances were kept separate and Charles was paid a wage with rent and debt being deducted. There is no evidence from which I can infer that Albert and Joyce had an intent to accumulate wealth together with Charles and Brenda. There is no evidence that these four individuals were working together for the priority of their family unit to the exclusion of the other three siblings.

[102] Accordingly, I cannot conclude that there was a joint family venture. The remedy of damages based on a joint family venture are therefore inappropriate.

[103] What, then, is the appropriate way to calculate the monetary remedy? In my view, the appropriate remedy is one based on the evidence of Mr. Landers.

[104] Absent a joint family venture, when calculating a monetary award for an unjust enrichment claim, there are two methods: value survived and value received. The value received approach is referred to as “quantum meruit”. It is “the amount that the defendant would have had to pay for the services on a purely business basis to any other person doing the work”. The value survived approach apportions the assets accumulated on the basis of the contributions made. (Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980 at para. 114)

[105] In my view, the appropriate approach to take in this case is the value received approach. There was insufficient evidence on the values of the farm business and land at the time of the parties’ marriage and at the time of their separation in order to complete a meaningful analysis of value survived. As for the value received approach, we have the evidence of Mr. Landers, which I accept.

[106] Mr. Landers calculated Brenda’s damages on the value received approach to December 31, 2017 to be $280,614.40. The calculation was based on Brenda’s estimates of hours she worked on the farm, which declined as each of her children were born. This figure does not include a deduction for income tax. Mr. Landers’s evidence was that such a deduction is approximately $33,585.00, or 15% of the amount attributed to the years 1993 to 1999. The net amount is therefore $247,029.40.

[107] The respondents argue that that amount should be further reduced to account for the value of free rent. I reject that argument for two reasons. Firstly, Charles and Brenda lived in, and cared for, the residence including upgrades during the course of their marriage. This would be a benefit to Albert and Joyce. Secondly, the witnesses all gave differing evidence on whether rent was paid and, if so, for what years. I accept Brenda’s evidence in that respect. The two people who were dealing with the finances, which included the payment of rent, were Brenda and Albert. Albert is now deceased. Brenda indicated that rent was paid throughout by way of deduction from Charles’s paycheque. There may have been some months when rent wasn’t paid, but for the most part it was. I therefore decline to make any deduction.

[108] Similarly, the respondents submit that the amount ought to be reduced for the use of free gasoline. There was no consistent evidence on the amount of gas that Brenda would have used over the years. I decline to make any such deduction.

[109] For these reasons, I find that the respondent, Joyce Kuntze, must pay the applicant the sum of $247,029.40 for unjust enrichment representing Brenda’s contribution and work to the farming business. Mr. Landers completed his calculation to the end of 2017, inclusive of interest. Accordingly, prejudgment interest ought to run on this amount from January 1, 2018 to date.

The Home

[110] I turn then to the matrimonial home. In Meeser, Peggy claimed a constructive trust interest against Josef and Katharina who held title to their family home. The trial judge found that Peggy’s claim was derivative – that she did not have a direct claim against Rolf’s parents based on constructive trust and that Rolf had an interest in the home. Rolf’s interest was then included in his net family property for equalization purposes. At paragraphs 61 – 62, Eberhard J said:

Peggy’s claim is derivative. She has a claim for property interests Rolf has. Rolf does not make a claim against his parents based on constructive trust. Practically speaking, he doesn’t have to and it would not be in his interest in the current litigation to do so.

However, it would be a fiction to say Rolf does not have an interest in the home. He has poured money and money’s worth into it. In the context of comingled funds and the convention of his earning no income but getting money from Joe on the basis of need, I do not accept that Joe paid for improvements and renovations in the past several years.

[111] Similar comments can be made in this case. Charles and Brenda lived in the house from the time they married in 1993 until the separation in 2012. Charles continues to live in the house to the current date. The parties took care of the house, maintained the house, made improvements on the house, paid maintenance expenses with the exception of municipal taxes, and considered the home to be their own. In my view, Charles has a claim against Joyce for an interest in the home and cannot resist Brenda’s claim on him by refusing to claim against his mother.

[112] Charles’s claim to an interest in the home is not absolute. The home is on the land that belongs to Joyce. Joyce and Albert continued to pay municipal taxes throughout Charles’s occupation of the home. I assess Charles’s claim at 50% of the value. As the appraised value was, on the date of separation, $240,000.00, Charles’s equitable interest is $120,000.00.

[113] Both Charles and Brenda had minimal property on the date of separation. Neither party provided a net family property statement. Neither party seemed to consider the calculation of their net family properties to be an issue. Charles’s financial statement discloses date of separation assets of $8,200.00 comprised entirely of household contents. Brenda’s financial statement discloses date of separation assets of $3,000.00 comprised of household contents and a 2005 Buick motor vehicle. Both parties claim nominal debts. Charles claims a date of marriage GIC and a Thunderbird but has offered no proof of these assets. Indeed, neither party seemed to consider that either party had net family property significant enough to conduct an equalization calculation. Given that, I assess the parties’ net family properties, respectively, at $0.00 before including Charles’s equitable interest in the matrimonial home. Once that interest is included, Charles’s net family property is $120,000.00 and Brenda’s net family property is $0.00. The equalization payment, then, from Charles to Brenda is $60,000.00. As Joyce is the legal owner of the home, the equalization payment will be payable from both Charles and Joyce.

Child Support

[114] The applicant claims child support for the time period from April 2014to December 2015. By April 2014, Charles stopped making child-support payments in accordance with the separation agreement the parties signed. After a period of sporadic amounts, in November 2014 he began to pay $453.00 per month. Eventually, in 2016, court orders were made. Brenda calculates the amount owing as $5,888.00 and section 7 expenses owing of $900.00.

[115] I decline to make a retroactive support order and a retroactive order for extraordinary expenses. The evidence is that for approximately one year Robin lived with Charles. Based on the evidence I heard, it appears that Charles may have overpaid child-support for the first year and a half following separation. Given the fluidity of Robin’s residence, and likely over payment of child-support, I decline to enter into a retroactive calculation.

[116] In respect of extraordinary expenses, the evidence is that Charles contributed directly to Robin’s post-secondary education expenses, including contribution towards transportation expenses. Brenda’s claim for retroactive extraordinary expenses relate primarily to cell phone bills. I have heard no evidence that the cell phone bills for the children in this case constitute an extraordinary expense within the meaning of section 7(1) of the Child Support Guidelines, SOR/97-175. In my view, for a cell phone expense to be an extraordinary expense within the Child Support Guidelines, evidence would need to be called to explain how that expense fits within one of the categories listed in subsections (a) to (f). In any event, it would be inappropriate to order contribution by Charles towards cell phone bills without calculating the parties’ respective contributions towards all extraordinary expenses, including post-secondary education expenses. Neither party embarked on such a task.

Disposition

[117] For the foregoing reasons, I make the following order:

1. The respondent, Joyce Kuntze, shall pay to Brenda the sum of $247,029.40 plus prejudgment interest from January 1, 2018 to date.

2. The respondents shall pay to the applicant an equalization payment in the sum of $60,000.00.

3. The applicant’s claim for retroactive child support and section 7 expenses is dismissed.

4. If the parties cannot agree on costs, and on prejudgment interest on the equalization payment, they may make written submissions, to include a costs outline and relevant offers to settle, according to the following timeline:

a) the applicant may make submissions within 20 days;

b) the respondents may make submissions within 20 days

thereafter;

c) the applicant may make reply submissions within 10 days thereafter.

Pamela L. Hebner

Justice

Released: September 25, 2019

COURT FILE NO.: 49979/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Brenda Jane Kuntze

Applicant

• and - Charles Albert Kuntze and Joyce Kuntze

Respondents

JUDGMENT

Pamela L. Hebner

Justice

Released: September 25, 2019