COURT FILE NO.: 17-297

DATE: 20190207

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Danielle Belair

Applicant

– and –

Marcel Bourgon

Respondent

Eric Lavictoire, for the Applicant

Alice Weatherston and Natasha Chettiar, for the Respondent

HEARD: December 3, 4, 6, 7, 11, 2018

REASONS FOR JUDGMENT

Desormeau, j.

Overview

[1] The court heard a five day trial involving Danielle Belair and Marcel Bourgon, who were a common law couple of approximately five years. The primary issues were unjust enrichment and joint family venture, and unpaid monies for rent, repairs and labour.

[2] Regarding the unjust enrichment and joint family venture arguments, Ms. Belair initially sought monetary relief of $119,244.69, which, after hearing the evidence, she reduced it to a claim of $104,357.15.

[3] Mr. Bourgon meanwhile sought an order dismissing Ms. Belair’s claims, an order confirming that he have sole ownership of the five dogs through the Canadian Kennel Club, effective May 1, 2017; $31,500 in unpaid rent; $45,035.90 for unpaid fees for repairs and labour toward the Applicant’s investment property located at 18531 Highway 2, Cornwall Ontario; and full indemnity costs.

[4] Prior to the commencement of trial, both parties agreed that Ms. Belair’s belongings would be returned to her, and that Mr. Bourgon would have possession and ownership of the five dogs: Armani, Booster, Lexie, Eluney and Einar.

[5] After the trial, the parties agreed in writing to the following:

1. Ms. Belair abandoned her claim for a restraining order;

2. The request that the joint TD account be closed was no longer at issue as this had occurred; and

3. The parties agreed to an order that no spousal support was payable by either party.

[6] Ms. Belair’s amended draft order setting out the above has been placed in the endorsement record, as has the correspondence regarding paragraph 5.

Background

[7] The parties were in a common law relationship of approximately five years, from either May or November 2012, until August 3, 2017. This was not their first serious relationship, both having been previously married. The parties had no children in common.

[8] When the parties met, Ms. Belair was going through a separation, which resulted in her owning a four-plex requiring significant repairs, and receiving approximately $60,000.00. Her source of income was rent from her tenants in the four-plex, a government pension, and Canada Pension Plan (“CPP”). According to Ms. Belair, when the parties started residing together, she had debt of approximately $110,000.00, being the mortgage on the four-plex. Upon separation from Mr. Bourgon, she owed $190,000.00 on the mortgage, and all of her credit cards were at their maximum.

[9] Prior to the relationship commencing, Mr. Bourgon owned and ran a successful dog grooming business: The Groomery. The parties met when Ms. Belair brought her dog for grooming at The Groomery. The business is currently located downstairs in Mr. Bourgon’s home. He testified that he has successfully bred Bichon Frise dogs since 1981, with a break from 2002 to either 2009 or 2015. Mr. Bourgon was also involved in the dog show world on and off since approximately 1980.

[10] Ms. Belair’s position was that during the course of the relationship, she was greatly involved in the breeding of the dogs, attending dog shows, and assisting Mr. Bourgon with his business. Despite what she described as significant involvement, Ms. Belair purportedly received very little money from Mr. Bourgon for her work. She recounted that much of the success of the business was due to the joint involvement of both parties, as well as her own significant contributions. She believed the parties had a joint family venture.

[11] To support her claim, Ms. Belair presented evidence regarding purchases made, and services rendered by her toward The Groomery and the dog shows; and her involvement in breeding, raising and selling puppies on behalf of the couple, all of which went principally unpaid or unreimbursed by Mr. Bourgon. Mr. Bourgon zealously disputed Ms. Belair’s assertions.

[12] It was uncontroverted evidence however that the parties had an agreement between them requiring Ms. Belair to pay $500.00 per month in rent to Mr. Bourgon. Payment was disputed. Mr. Bourgon also stated that he had not been paid for his work, repairs and labour on Ms. Belair’s four-plex.

[13] While there were a number of distinct issues pled at trial, the intertwining financial evidence led the court to analyze some of them together.

Credibility of the parties

[14] Inherent in trial testimony is weighing the credibility of the witnesses. The court found Davies v. Canadian Satellite Radio Inc., 2010 ONSC 5628 (Ont. S.C.J.) (“Davies”) instructive on the weighing of credibility. Stinson J. in Davies referred to the evidence supporting credibility as those which were: internally consistent, having a “ring of truth”, unshaken in cross-examination, responsive, direct, spontaneous explanations making sense and being logical, and concessions when there were frailties in recollection. Factors which went against a witnesses’ credibility, what Stinson J. referred as an “unimpressive witness”, included vague and nonspecific testimony, nonresponsive answers, the “I would have” or “I believe” answers which leaves the judge with the impression that the witness was attempting to reconstruct information that he was unable to recall or simply did not know, or being forced to concede that the testimony was at odds with the documents. Additionally, it would affect one’s credibility when one would “[step] out of the role of witness and into that of advocate, either arguing with counsel over the premise of the question or explaining why a certain proposition put to him did not have the effect that counsel sought to give it.” (See Davies, at paras. 31-33)

[15] Ms. Belair and Mr. Bourgon both attempted to present the facts in a manner which best supported their positions. They were equally affected with imprecise memories regarding critical issues. A flavour of the problems encountered with their evidence was as follows:

1. Ms. Belair’s evidence regarding the financial transactions was replete with doubt, answering questions with “probably” or “maybe”, lacking certainty and sincerity. This left the court with the impression that she was making up the evidence as she went along, simply agreeing with her counsel’s occasionally directed questions.

2. As set out in greater detail below, Ms. Belair was loose with the truth regarding the quantum of monies paid to Mr. Bourgon. For instance, she claimed copious transactions through her bank accounts were to pay Mr. Bourgon for rent, repairs or labour, totalling over $93,000.00. However, after cross examination, by her own sometimes reluctant concessions, approximately $65,000.00 was discredited.

3. Ms. Belair frequently alluded to documentation not in evidence when the records upon which she relied no longer supported her assertions.

4. Mr. Bourgon was evasive in answering questions about any work performed by Ms. Belair on the parties’ behalf. He was dismissive of any skills or abilities Ms. Belair alleged to possess, to the point of stating that she did not have the qualifications to answer the telephone at The Groomery or even complete a form.

5. Mr. Bourgon was argumentative in cross-examination, and in many instances, unable to answer questions without querying counsel.

6. Mr. Bourgon responded to anything dog related with a repetitive discourse regarding his 38 years’ experience grooming dogs. He went so far as to qualify himself as an expert in all issues relating to dogs, including their health care. The court is not prepared to provide Mr. Bourgon with this designation. He was not properly qualified by counsel as an expert, he never undertook to comply with an experts’ duties, and most importantly, his evidence was not unbiased. Consequently, any opinion evidence proffered by him was given its due weight.

7. Mr. Bourgon was cagey with regard to revenues and the numerous cash transactions which filtered through his bank account. While he asserted that he lived paycheck to paycheck, he reticently admitted that the banking records exposed a different reality.

[16] Ms. Christine Pollen, one of Mr. Bourgon’s witnesses, was able to assist the court with a more neutral perception regarding the efforts of both parties in the dog show world. Where Ms. Belair’s or Mr. Bourgon’s evidence differed from Ms. Pollen’s, the court preferred Ms. Pollen’s evidence. This included her evidence regarding the work involved in preparing for dog shows, such as start and end time, and that Ms. Belair was not significantly involved in the dog shows.

[17] Further, where the evidence of the parties differed from that of Ms. Bonnie Lynne Lalonde and/or Ms. Jenika Labelle-Andre, for reasons enunciated below, the court preferred the evidence of Ms. Lalonde and Ms. Labelle-Andre.

[18] Where there was a conflict of evidence between Ms. Belair and Mr. Bourgon, the court has weighed all of the evidence on the subject in question to determine whose evidence was preferred on each issue. In some instances, the court preferred Ms. Belair’s evidence, where in other circumstances Mr. Bourgon’s evidence was preferred.

Issue 1: Unpaid Rent, Repairs and Labour

[19] Mr. Bourgon claimed non-payment of rent in the amount of $31,500.00 from May, 2012 to August, 2017. He also advanced a claim of $45,035.90 for unpaid fees for repairs and labour toward Ms. Belair’s investment property.

[20] Much of the trial time was consumed detailing financial transactions between Ms. Belair and Mr. Bourgon. Many banking records were produced as exhibits.

[21] While Ms. Belair admittedly did not pay rent at any consistent time during the month, she maintained that she paid the $31,500.00 of rent, as agreed. In support of same, Ms. Belair relied on rent receipts signed by Mr. Bourgon, which indicated that rent of $6,000.00 for each 2014, 2015 and 2016 had been paid, and no balance was owing [Exhibit 3]. No receipts were produced for 2012 and 2013.

[22] To further support her assertions, Ms. Belair relied on Mr. Bourgon’s Income Tax Returns in which he declared the rent received by him as income. Ms. Belair’s Income Tax Returns also related the rent paid by her.

[23] Mr. Bourgon admitted that the rent receipts, which were drafted by Ms. Belair, were signed by him, but he denied receiving any funds. Ms. Belair added “balance zero” to one receipt after it had been signed by Mr. Bourgon. Mr. Bourgon signed the receipts based on the promise of payment, assurances he frequently heard. He never forgave the debt. He declared the rent as received on his Income Tax Returns, and acknowledged that Ms. Belair declared the rent as being paid on her Income Tax Returns.

[24] In order to be paid for work and labour, and be able to claim it on their Income Tax Returns, Ms. Belair prepared invoices, using a template created by Mr. Bourgon, which she stated once paid, it would be marked as such. The 2012, 2013, 2014, 2015, and 2016 invoices for the work completed by Mr. Bourgon, totaling $45,035.90, were filed as Exhibit 4. The five invoices were signed by Mr. Bourgon, and all made reference to either being paid, or paid in full. The 2016 invoice indicated “paid in full with thanks”.

[25] Mr. Bourgon confirmed his signature on the invoices. He stated that he anticipated being paid in the future. The annotation “paid” on the 2012 invoice was added after the fact. He claimed the income from the invoices on his Income Tax Returns, and paid H.S.T. on them.

[26] It was Ms. Belair’s evidence that she was able to pay Mr. Bourgon based on the money obtained from her divorce, or by taking cash advances. In cross examination, Ms. Belair was questioned at length about her ability to pay the sums owed to Mr. Bourgon based on her income. At one point, she was asked about a deposit of $7,500.00 to one of her accounts. Initially, she was unable to identify the source of the monies. She then recounted that it must have been from an inheritance from her mother, but was unable to specifically recall how the inheritance was eventually disposed of as it was “a long time ago”. Her memory regarding payment of monies to Mr. Bourgon from the start of their relationship however was not uncertain as “it was a debt owing”. Following a short recess, and after reviewing her records, Ms. Belair provided a different explanation regarding the provenance of the $7,500.00, explaining that a tenant had paid six months’ rent in advance. No documentary evidence was produced to support her assertion. This explanation lacked believability, and does not accord with other evidence that I do accept.

[27] Located in the trial record was Ms. Belair’s sworn financial statement, dated September 21, 2017. The statement established an annual income of $52,887.24, and expenses of $76,007.00 annually. Ms. Belair agreed that it was not surprising that she was accumulating a lot of debt. Despite evidence to the contrary, her sworn financial statement neglected to mention her expensive jewelry, nor did it list any bank accounts.

[28] I found both parties’ evidence regarding their incomes problematic. Their figures did not reflect reality. For instance, Ms. Belair’s 2014 Line 150 income was $7,456.57. Her gross revenue, consisting of CPP, pension, investment income and gross rental income, minus her rental expenses, including capital plus interest on her mortgage, left her with a net disposable income of $2,661.00. In 2015, her Line 150 income was $10,640.21, which minus her rental expenses as above, left her with a net disposable income of approximately $6,101.00. In 2016, her Line 150 income was $13,056.51, minus her rental expenses, left her with a net disposable income of approximately $8,400.00. In all, for those three years, she was left with between $221.75 and $700.00 per month with which she covered her usual needs, paid rent of $500.00 per month, reimbursed Mr. Bourgon for repairs and labour, and in 2014 and 2015 was able to afford to go on cruises.

[29] Similarly, in 2014, Mr. Bourgon’s Line 150 income was $9,635.60. Gross sales for The Groomery in 2014 were $17,830, plus labour and rent, making total revenue $28,625, minus expenses of $27,397, leaving a net income $1,201.19. In 2015, his Line 150 income was $2,816.82. That same year, total revenue for The Groomery, rent, and labour was $19,083, minus expenses, leaving a negative net income of $1,422.00. In 2016, his Line 150 income was $12,107.71. The gross sales for The Groomery were $14,732.78, plus rent and labour, minus expenses left a net income of $4,387.10. Mr. Bourgon asserted that he was just a dog groomer living paycheck to paycheck, but he was able to afford to dine out regularly, travel frequently, pay his mortgage of over $2,000.00 per month, and either attend a plethora of dog shows or pay a handler to go to the shows for him.

[30] Ms. Belair was unequivocal that any monies paid to Mr. Bourgon for rent, repairs or labour were paid to him in cash. That was their agreement. She led the court through voluminous banking records, identifying all transactions which were purported to be payments to Mr. Bourgon. She would frequently deposit cash into the parties’ joint account, which Mr. Bourgon then used to pay bills or transfer to his own account. Though she initially testified that she never benefited from the monies in the joint account or used them personally, this was proven to be false. She not only benefitted from meals out paid from the joint account, but admittedly transferred monies from the joint account to her own personal accounts on occasion.

[31] By the court’s estimation, Ms. Belair’s evidence in direct examination was that she paid Mr. Bourgon $93,911.08. At the very least, she maintained that she had paid the rent, repairs and labour, totalling $76,535.90. Her testimony however was weak, in that she routinely responded to questions with “maybe”, or “probably”. When pointedly questioned on these feeble assertions in cross-examination, Ms. Belair’s answers contradicted her already weak contentions. In some instances, where Ms. Belair testified that monies were paid to Mr. Bourgon, she then admitted to actually utilizing the money herself, such as transferring it to her BMO Line of Credit, or applying the money toward her credit card. Further, where she directed the court to payments to Mr. Bourgon, many turned out to be e-transfers, “virements”, or cheques to the joint account, which she admitted were therefore not payments to him. Given these admissions, any non-cash deposits to the joint account, or monies that went to pay her own bills, have been eliminated from Ms. Belair’s sum total.

[32] Taking into consideration the totality of the evidence, on a balance of probabilities, I find that Ms. Belair has demonstrated payment of $28,048.00 to Mr. Bourgon through cash payments to the joint account. While there may have been cash payments made directly to Mr. Bourgon rather than through the joint account, there was no documentary evidence establishing same.

[33] I find that the extensive amount of financial transactions by both parties, coupled with their high standard of living, lacked believability. Mr. Bourgon himself admitted that the transactions from his personal account were not reflective of someone living paycheck to paycheck.

[34] The court was left with the task of determining what evidence to accept with regard to the payment of rent, repairs and labour to Mr. Bourgon. I have considered that the parties were sophisticated enough to create a paper trail upon which they both relied by submitting it to the Canada Revenue Agency (“CRA”) with their Income Tax Returns. I have also considered Mr. Bourgon’s complete denial of any monies from Ms. Belair, despite what I find to be documentary evidence to the contrary. I disbelieve Mr. Bourgon’s assertions on this issue.

[35] In the end, the testimonial evidence proffered was at odds with the documentary evidence produced. Given the significant credibility issues presented by both parties regarding their finances, I reject the testimony of both Ms. Belair and Mr. Bourgon.

[36] Ultimately, I rely upon the objective evidence filed in this case. I place reliance on them having considered that these two knowledgeable and experienced people professed to CRA that the invoices submitted were valid. Mr. Bourgon’s evidence challenged their genuineness, but by his own account, his finances were not reflective of reality. On a balance of probabilities, I find that Ms. Belair has paid the claimed rent, repairs and labour invoices in full, as reflected in the receipts and invoices.

[37] Mr. Bourgon’s claims are dismissed.

Issue 2: Unjust Enrichment and Joint Family Venture

[38] Ms. Belair asserted a claim based on unjust enrichment and joint family venture. Though she initially advanced a constructive trust remedy, at trial she requested a monetary award remedy.

[39] Kerr v. Baranow, 2011 SCC 10 (S.C.C.), [2011] 1 S.C.R. 269 (S.C.C.) is the leading case by Supreme Court of Canada dealing with unjust enrichment (“Kerr”) and joint family venture.

[40] In Kerr, the court ruled that for a number of reasons, the “common intention” approach to resulting trust has no further role to play in the resolution of property claims by domestic partners on the breakdown of their relationship: Kerr, at para. 6. However, the court did not address the other aspects of the law relating to resulting trusts, only the common intention approach.

[41] Justice Cromwell, writing for the court, held “the principles of unjust enrichment, coupled with the possible remedy of a constructive trust, provide a much less artificial, more comprehensive and more principled basis to address the wide variety of circumstances that lead to claims arising out of domestic partnerships.” (See Kerr, at para. 28)

[42] At the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit which justice does not permit one to retain: Peel (Regional Municipality) v. Canada, 1992 CanLII 21 (SCC), [1992] 3 S.C.R. 762 (S.C.C.), at p. 788. (See Kerr, at para. 31)

[43] To demonstrate the existence of an unjust enrichment, the party making the claim must show that there has been:

(a) An enrichment;

(b) A corresponding deprivation; and

(c) The absence of a juristic reason for the deprivation. (See Mildren v. Mildren, 2013 ONSC 1435, 2013 CarswellOnt 5163 (Ont. S.C.J.), at para. 68) (Kerr, at para. 3)

[44] For the first element of enrichment the Applicant needs to show that he or she gave something to the Respondent which had enriched the Respondent, and which could be restored to the Applicant in specie or by money. With the second element of corresponding deprivation, the Applicant needs to establish that not only had the Respondent been enriched, but that the enrichment corresponds to a deprivation which the Applicant has suffered. The third element of the claim is that the benefit and corresponding detriment must have occurred without a juristic reason. This means that there is no legal reason for the Respondent's retention of the benefit given by the Applicant making its retention unjust. The juristic reason could be the existence of a contract between the parties or the presence of a gift. (See Mildren v. Mildren, supra, at para. 70)

[45] In assessing the first two steps in the unjust enrichment claim, the court takes a straightforward economic approach. The enrichment requirement must be shown as something that the Respondent received and retained, though it is not necessary to show that it was retained permanently. The benefit must be tangible, and may be positive or negative, such as saving an expense that would have been otherwise undertaken. (See Kerr, at para. 38).

[46] As for the third requirement, absence of a juristic reason, the Applicant must show that there is no reason in law or justice for the Respondent’s retention of the benefit conferred by the Applicant, making its retention unjust: Kerr, at para. 40. The third stage of the analysis provides for due consideration of the autonomy of the parties, including factors such as the legitimate expectation of the parties, the right of parties to order their affairs by contract: Kerr, at para. 41, citing Peel, at p. 803. Domestic services can constitute an enrichment, and unpaid labour may constitute a deprivation. (See Kerr, at para. 42)

[47] Justice Cromwell reviewed Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.CR. 629 (S.C.C.), where the court set out a two-step analysis for the absence of juristic reason:

It is important to remember that what prompted this development was to ensure that the juristic reason analysis was not “purely subjective”, thereby building into the unjust enrichment analysis an unacceptable “immeasurable judicial discretion” that would permit “case by case ‘palm tree’ justice”: Garland, at para. 40. The first step of the juristic reason analysis applies the established categories of juristic reasons; in their absence, the second step permits consideration of the reasonable expectations of the parties and public policy considerations to assess whether recovery should be denied:

First, the plaintiff must show that no juristic reason from an established category exists to deny recovery [...] The established categories that can constitute juristic reasons include a contract (Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834]), a disposition of law (Pettkus, supra), a donative intent (Peter, v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980 (S.C.C.)]), and other valid common law, equitable or statutory obligations (Peter, supra). If there is no juristic reason from an established category, then the plaintiff has made out a prima facie case under the juristic reason component of the analysis.

The prima facie case is rebuttable, however, where the defendant can show that there is another reason to deny recovery. As a result, there is a de facto burden of proof placed on the defendant to show the reason why the enrichment should be retained. This stage of the analysis thus provides for a category of residual defence in which courts can look to all of the circumstances of the transaction in order to determine whether there is another reason to deny recovery.

As part of the defendant’s attempt to rebut, courts should have regard to two factors: the reasonable expectations of the parties, and public policy considerations. [[Garland,] paras. 44-46] (See Kerr, at para. 43)

[48] Thus, as stated in Kerr, at the juristic reason stage, the court first considers existing categories, failing which, it may take into account the legitimate expectations of the parties, and moral and policy-based arguments about whether the enrichment is unjust. The test for juristic reason is flexible. (See Kerr, supra, at para. 44)

[49] “Remedies for unjust enrichment are restitutionary in nature; that is, the object of the remedy is to require the defendant to repay or reverse the unjustified enrichment. A successful claim for unjust enrichment may attract either a “personal restitutionary award” or a “restitutionary proprietary award”. In other words, the plaintiff may be entitled to a monetary or a proprietary remedy (International Corona Resources Ltd. v. LAC Minerals Ltd., 1989 CanLII 34 (SCC), [1989] 2 S.C.R. 574 (S.C.C.), at p. 669, per La Forest J.).” (See Kerr, at para. 46)

[50] In Kerr, it was noted that the first remedy is always a monetary award: Peter v. Beblow, (1993), 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980. (See Kerr, at para. 47) Further, with a proprietary award, the plaintiff must demonstrate a link or causal connection to the partner's contributions and an acquisition, preservation, maintenance or improvement of the disputed property: Kerr. For monetary awards it becomes a matter of quantification. (See Mildren v. Mildren, supra, at para. 71) However, Justice Cromwell stated “where both parties have worked together for the common good, with each making extensive, but different, contributions to the welfare of the other and, as a result, have accumulated assets, the money remedy for unjust enrichment should reflect that reality. The money remedy in those circumstances should not be based on a minute totting up of the give and take of daily domestic life, but rather should treat the claimant as a co-venturer, not as the hired help.” (See Kerr, at para. 7)

[51] The court has often emphasized the flexibility of equitable remedies and the need to fashion remedies that respond to various situations in principled and realistic ways: Kerr, at para. 71. As cited by Cromwell J. in Kerr, referencing Binnie J.’s comments in Pacific National Investments Ltd. v. Victoria (City), 2004 SCC 75, [2004] 3 S.C.R. 575 (S.C.C.) at para. 13 regarding the doctrine of unjust enrichment, while predicated on clearly defined principles, “retains a large measure of remedial flexibility to deal with different circumstances according to principles rooted in fairness and good conscience”: Kerr, at para. 72. Cromwell J. indicated that the monetary remedy to unjust enrichment “must match, as best it can, the extent of the enrichment unjustly retained by the defendant”. (Kerr, at para. 73) The unjust enrichment principle is inherently flexible and the calculation of a monetary award for a successful unjust enrichment claim should be equally flexible. (See Kerr, at para. 79)

[52] As set out by the court, the underlying principles governing the law of unjust enrichment focus on properly characterizing the nature of the unjust enrichment giving rise to the claim.

[N]ot all unjust enrichments arising between domestic partners fit comfortably into either a “fee-for-services” or “a share of specific property” mold. Where the unjust enrichment is best characterized as an unjust retention of a disproportionate share of assets accumulated during the course of what McLachlin J. referred to in Peter (at p. 1001) as a “joint family venture” to which both partners have contributed, the monetary remedy should reflect that fact: Kerr, at para. 80.

In such cases, the basis of the unjust enrichment is the retention of an inappropriately disproportionate amount of wealth by one party when the parties have been engaged in a joint family venture and there is a clear link between the claimant’s contributions to the joint venture and the accumulation of wealth. Irrespective of the status of legal title to particular assets, the parties in those circumstances are realistically viewed as “creating wealth in a common enterprise that will assist in sustaining their relationship, their well-being and their family life” (McCamus, at p. 366). The wealth created during the period of cohabitation will be treated as the fruit of their domestic and financial relationship, though not necessarily by the parties in equal measure. Since the spouses are domestic and financial partners, there is no need for “duelling quantum meruits”. In such cases, the unjust enrichment is understood to arise because the party who leaves the relationship with a disproportionate share of the wealth is denying to the claimant a reasonable share of the wealth accumulated in the course of the relationship through their joint efforts. The monetary award for unjust enrichment should be assessed by determining the proportionate contribution of the claimant to the accumulation of the wealth: Kerr, at para. 81.

It is not the purpose of the law of unjust enrichment to replicate for unmarried partners the legislative presumption that married partners are engaged in a joint family venture. However, there is no reason in principle why remedies for unjust enrichment should fail to reflect that reality in the lives and relationships of unmarried partners: Kerr, at para. 84.

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

[54] In determining whether a joint family venture exists, Cromwell J. stated at para 88 of Kerr:

It is critical to note that cohabiting couples are not a homogeneous group. It follows that the analysis must take into account the particular circumstances of each particular relationship. Furthermore, as previously stated, there can be no presumption of a joint family venture. The goal is for the law of unjust enrichment to attach just consequences to the way the parties have lived their lives, not to treat them as if they ought to have lived some other way or conducted their relationship on some different basis. A joint family venture can only be identified by the court when its existence, in fact, is well grounded in the evidence. The emphasis should be on how the parties actually lived their lives, not on their ex post facto assertions or the court's view of how they ought to have done so.

[55] As stated by Cromwell J.:

At least one other basis for an unjust enrichment claim is easy to identify. It consists of cases in which the contributions of both parties over time have resulted in an accumulation of wealth. The unjust enrichment occurs following the breakdown of their relationship when one party retains a disproportionate share of the assets which are the product of their joint efforts. The required link between the contributions and a specific property may not exist, making it inappropriate to confer a proprietary remedy. However, there may clearly be a link between the joint efforts of the parties and the accumulation of wealth; in other words, a link between the “value received” and the “value surviving”, as McLachlin J. put it in Peter [v. Beblow] at pp. 1000-1001. Thus, where there is a relationship that can be described as a “joint family venture”, and the joint efforts of the parties are linked to the accumulation of wealth, the unjust enrichment should be thought of as leaving one party with a disproportionate share of the jointly earned assets: Kerr, supra, at para. 60; Peter v. Beblow, supra.

[56] Justice P.C. Hennessy in Depatie v. Squires, 2011 ONSC 1758, affirmed at 2012 ONSC 1399 (Ont. Div.Ct.) stated that the court in Kerr recognized that a joint family venture can form the basis of a claim for unjust enrichment (Depatie v. Squires, supra, at para. 29; Kerr, para. 60). She went on to indicate that “though a joint family venture can form the basis of an unjust enrichment claim, it cannot do so where there is no evidence of an enrichment and a corresponding deprivation. While the parties in this case have stated that they were engaged in a joint family venture, there is no evidence indicating that the respondent was unjustly enriched at the applicant's expense, or that the parties jointly contributed to the accumulation of family wealth, which was then disproportionately retained by the respondent. The statement that there was a joint family venture is not sufficient: for there to be recovery, "something must have been given by the plaintiff and received and retained by the defendant without juristic reason" (Kerr, at para. 31)”: Depatie v. Squire, supra, at para. 30.

[57] In Mildred, McLaren J. commented regarding Kerr:

In providing a monetary award the court can consider a "value received" claim which like a payment for services provided. In the alternative they can provide a "value survived claim" which involves determining an appropriate amount to be awarded based on the value of property. The court said that this second approach could be provided when an unjust enrichment arises from a situation where a "joint family venture" has been found. In order to find a joint family venture, the court needs to consider:

(a) Whether there has been a mutual effort between the parties to work towards common goals. They could be by way of money or household responsibilities.

(b) Whether or not the parties had an economic integration of their financial and economic interests.

(c) Whether or not the parties actually intended to equally share in any wealth created.

(d) Whether or not the family unit has been given priority in their decision making. This could be an employment or re-location decision for the benefit of the family unit. (Mildren v. Mildren, supra, at para. 72)

[58] Ingram J. in Jackson v. McNee, 2011 ONSC 4651, at para. 49, wrote: “Cromwell [J., in Kerr] extended the principles of unjust enrichment and provided that the court should consider whether the parties have been co-venturers by considering mutual effort, economic integration, actual intent and priority of the family”. (Also see Kerr, at para. 100.) This is not a closed list of relevant factors.

[59] It is important to note that where a finding of unjust enrichment is not made out, or where enrichment and corresponding deprivation are not found, a joint family venture analysis will be unnecessary: Mildren v. Mildren, supra, at para. 84.

[60] In reviewing mutual effort, indicators such as the pooling of effort and team work, the decision to have and raise children together, and the length of the relationship may all point towards the extent, if any, to which the parties have formed a true partnership and jointly worked towards important mutual goals. Joint contributions, or contributions to a common pool, may provide evidence of joint effort: Kerr, at paras. 90 and 91. The use of parties’ funds entirely for family purposes may be indicative of the pooling of resources: McDougall v. Gesell Estate, 2001 MBCA 3, 153 Man. R. (2d) 54 (Man. C.A.). The parties may also be said to be pooling their resources where one spouse takes on all, or a greater proportion, of the domestic labour, freeing the other spouse from those responsibilities, and enabling him or her to pursue activities in the paid workforce (see Nasser v. Mayer-Nasser (2000), 2000 CanLII 5654 (ON CA), 5 R.F.L. (5th) 100 (Ont. C.A.) and Panara v. Di Ascenzo, 2005 ABCA 47, 361 A.R. 382 (Alta. C.A.), at para. 27): Kerr, at para. 91.

[61] Regarding economic integration, the more extensive the integration of the couple’s finances, economic interests and economic well-being, the more likely it is that they should be considered as having been engaged in a joint family venture. For example, the existence of a joint bank account that was used as a “common purse”, as well as the fact that the family farm was operated by the family unit, were key factors in Dickson J.’s analysis in Rathwell v. Rathwell, 1978 CanLII 3 (SCC), [1978] 2 S.C.R. 436]. The sharing of expenses and the amassing of a common pool of savings may also be relevant considerations (see Wilson; Panara): Kerr, at para. 92. The parties’ conduct may further indicate a sense of collectivity, mutuality, and prioritization of the overall welfare of the family unit over the individual interests of the individual members (McCamus, at p. 366). These and other factors may indicate that the economic well-being and lives of the parties are largely integrated: Kerr, at para. 93.

[62] The parties’ actual intentions must be given considerable weight, whether they are expressed or inferred. The court must be vigilant not to impose their own views about what the parties’ inferred intent, or what reasonable parties ought to have intended. The court may infer based on the conduct of the parties their intentions to share in the wealth jointly created, or that they intended their relationship to be a partnership or part of a common venture. The stability and length of the relationship, and whether the parties held themselves out to the public to be married may be factors. Further, title to property, or conduct establishing an intention to share the wealth, even upon death, may be considered in determining if the parties saw each other as domestic and economic partners. (See Kerr, at paras. 94-97)

[63] The last category is whether, and to what extent, the parties have given priority to the family in their decision making. Whether there has been in some sense detrimental reliance on the relationship by one or both parties for the sake of family. Whether there has been financial sacrifices made by the parties for the welfare of the collective or family unit. This can include analyzing whether both parties are employed and share domestic responsibilities or if there is a wage earner/ homemaker division of roles. There may be a reliance on the other party to the economic detriment of the other, such as relocating, foregoing career or economic advancement for the benefit of the family or relationship.

[64] Cromwell J., citing Professor Parkinson, indicated the joint family venture may be identified where:

[o]ne party has encouraged the other to rely to her detriment by leaving the workforce or forgoing other career opportunities for the sake of the relationship, and the breakdown of the relationship leaves her in a worse position than she would otherwise have been had she not acted in this way to her economic detriment. [P. Parkinson, “Beyond Becker v. Pettkus: Quantifying Relief for Unjust Enrichment” (1993), 43 U.T.L.J. 217][p. 256]: Kerr, at para. 99.

[65] The court must also consider the mutual conferral of benefits between the parties in the analysis of unjust enrichment. As stated by Justice Cromwell, “mutual benefit conferral can be taken into account at the juristic reason stage of the analysis, but only to the extent that it provides relevant evidence of the existence of a juristic reason for the enrichment. Otherwise, the mutual exchange of benefits should be taken into account at the defence and/or remedy stage. It is important to note that this can, and should, take place whether or not the defendant has made a formal counterclaim or pleaded set-off.”: Kerr, at para. 109. He went on to state that the same approach for enrichment based on services rendered should be used as for payment of money, provided that they confer a tangible benefit: Kerr, at para. 113.

[66] Finally, the court must weigh the parties’ reasonable or legitimate expectations in the domestic context. Justice Cromwell succinctly summarized this point as follows:

1. The parties’ reasonable or legitimate expectations have little role to play in deciding whether the services were provided for a juristic reason within the existing categories.

2. In some cases, the facts that mutual benefits were conferred or that the benefits were provided pursuant to the parties’ reasonable expectations may be relevant evidence of whether one of the existing categories of juristic reasons is present. An example might be whether there was a contract for the provision of the benefits. However, generally the existence of mutual benefits flowing from the defendant to the claimant will not be considered at the juristic reason stage of the analysis.

3. The parties’ reasonable or legitimate expectations have a role to play at the second step of the juristic reason analysis, that is, where the defendant bears the burden of establishing that there is a juristic reason for retaining the benefit which does not fall within the existing categories. It is the mutual or legitimate expectations of both parties that must be considered, and not simply the expectations of either the claimant or the defendant. The question is whether the parties’ expectations show that retention of the benefits is just.

Discussion and Analysis of Individual Claims

[67] As indicated above, Ms. Belair claimed that Mr. Bourgon had been unjustly enriched in total by $104,357.15. She broke down the amounts as follows:

1. $15.00 per hour, four to five hours per week, for four years of work at The Groomery: $62,000.00, reduced by her to $50,000.00 for all aspects of the business;

2. $500.00 per puppy, for each of the 41 puppies sold, minus payment received of $3,700.00, totalling $16,800.00;

3. Dog show expenses of $20,757.14;

4. $5,400 U.S.D. for Eluney and Einar (or $6,800.01 C.A.D.); and

5. $10,000.00 for her interest in the jointly owned dogs.

[68] To establish an unjust enrichment claim, the onus is on Ms. Belair to demonstrate: (a) an enrichment; (b) a corresponding deprivation; and (c) the absence of a juristic reason for the enrichment and the deprivation. All three elements must be established on a balance of probabilities.

[69] If unjust enrichment is demonstrated, then the court must determine the appropriate remedy. Remedies for unjust enrichment are restitutionary, either by a monetary award or a proprietary award (constructive trust). The first remedy considered should be a monetary award. As set out in Kerr, there are at least two basis for calculating monetary awards, being by quantum meruit (fee-for-services) or where the relationship is qualified to be a joint family venture. The basis for unjust enrichment can be the retention of an inappropriately disproportionate amount of wealth by one party when the parties have been engaged in a joint family venture and there is a clear link between the claimant’s contributions to the joint venture and the accumulation of wealth.

[70] Ms. Belair described the relationship with Mr. Bourgon as one of joint efforts and contributions which involved all aspects of their lives, including The Groomery, dog shows, and breeding and selling of puppies. The business was described as a “multifaceted joint business venture”, otherwise known as a joint family venture. The claims are addressed separately below.

The Groomery

[71] Ms. Belair’s evidence was that she worked at The Groomery (“the business”) five days per week, an average of four to five hours per day throughout the parties’ five year relationship. She was promised $15.00 per hour for her work. While at work, she answered telephones, returned client calls, made appointments, vacuumed, picked up dogs, washed towels, took payment from clients, and sometimes helped with washing and drying dogs or doing the clippings. She also was responsible for the yearly accounting for the business. Occasionally, she took money out of the cash register to pay for dog food, but denied it was ever for personal use.

[72] Mr. Bourgon described his daily routine as waking up at 5:00 a.m., getting food ready for the dogs and puppies if applicable. He went to The Groomery around 8:00 a.m., and would bring all the dogs downstairs with him, where they have a cocker pen. At noon, he would let the dogs out, and put them back in their pens until he finished work, which was at 5:00 p.m. on weekdays. He also worked on Saturdays from 8:00 a.m. to 1:00 p.m. At suppertime, the dogs would socialize with both parties and the other dogs. At 7:30 p.m. or 8:00 p.m., Mr. Bourgon would take the dogs downstairs to feed them and give them water. He was occasionally assisted by helpers.

[73] When describing Ms. Belair’s work in The Groomery, Mr. Bourgon indicated Ms. Belair did not have a significant role. There were times when she would come downstairs at 10:00 a.m., and talk to him and his two subcontractors. She might sometimes take care of towels, but that was infrequent. She did not have the skills to groom dogs, and had no interest in learning. With respect to answering the telephone to book appointments, Mr. Bourgon testified “you need to have some expertise to pick up the phone”. There were times when Ms. Belair moved appointments. Ms. Belair wasn’t part of the grooming world. He acknowledged however that Ms. Belair, perhaps once or twice, picked up a dog for grooming as it was in the middle of the day, but this was not a regular occurrence. He denied Ms. Belair picked up supplies for The Groomery, as he did that himself at the end of the day.

[74] Regarding any bookkeeping, Mr. Bourgon indicated that there were very few receipts, and he had an accountant. Throughout the year, Mr. Bourgon himself kept track of the books. Nonetheless, Ms. Belair had access to the template used by Mr. Bourgon as she used it to track the labour expenses for her rental property.

[75] While both Ms. Belair and Mr. Bourgon described very different roles taken by Ms. Belair in The Groomery, the evidence of the two subcontractors: Ms. Labelle-Andre and Ms. Lalonde was persuasive. Their evidence was presented in a straightforward and forthright fashion. They independently supported Mr. Bourgon’s testimony regarding Ms. Belair’s involvement in The Groomery. One compelling remark made by Mr. Bourgon was that Ms. Belair had no interest in working at The Groomery, and that on several occasions she told the groomers she was retired and did not want to work. In cross-examination, Ms. Belair testified that she has been retired since 1994, and did not intend to work again. Ms. Labelle-Andre indicated that she once asked Ms. Belair to assist when it was busy, but her response was that she was retired, and she was not there to help.

[76] Further, Ms. Lalonde stated that during her time working at The Groomery, she would see Ms. Belair come down to the shop to say goodbye to Mr. Bourgon. Ms. Belair would be in the shop for five to ten minutes, and to Ms. Lalonde’s knowledge, Ms. Belair had no involvement with clients or dogs. Ms. Lalonde indicated that Mr. Bourgon took care of the parties’ dogs during the day, and when there were puppies to be cared for, he was the one checking on them during the day. Ms. Lalonde was unable to state who managed the accounting, who picked up dog food or supplies, or who cared of the puppies, but was able to say that the dogs were kept downstairs in The Groomery, while the puppies were kept in the home. She did not observe Ms. Belair wash or take care of towels.

[77] Ms. Labelle-Andre’s evidence was that she worked eight to nine hours per day, and saw two to five dogs per day, depending on their breed and requests. She stated that Ms. Belair had no involvement in The Groomery. Ms. Belair came down at 10:00 a.m., asked for money, and left to get her hair done or see her family. Ms. Belair would return between 3:00 p.m. and 4:30 p.m. On a daily basis, Ms. Belair was seen taking money from the cash register. On the odd occasion, while taking money from the register, Ms. Belair was stuck to take payment from a client. Ms. Belair was not involved with the dogs, did not fold towels, has never groomed or helped out with the paperwork. Ms. Labelle-Andre was unable to comment about the breeding program, or Ms. Belair’s involvement with the puppies. She disagreed with the proposition that Ms. Belair was at home taking care of the puppies during the day. She testified that she knew when Ms. Belair returned home as upon her return, usually in the late afternoon, the dogs would always bark. Ms. Labelle-Andre’s evidence was logical in this respect.

[78] With regard to the income earned by the business, Ms. Belair recounted that there were 20 to 26 dogs groomed each weekday, plus 6 to 8 dogs on Saturdays. The cost of grooming was between $45.00 for a small dog, and up to $120.00 for a very large dog. Ms. Belair averaged the general revenues of the business as being $900.00 minimum per day, paid principally in cash. Based on a five day work week, this would represent gross annual sales of $234,000.00. Mr. Bourgon’s evidence was that on average, he would groom four dogs per day, or up to six dogs if it was a wash and dry. However, on cross examination, he was argumentative and denied this answer.

[79] Mr. Bourgon’s subcontractors paid Mr. Bourgon rent for their table, but the monies received by them for grooming dogs went directly to them. The evidence regarding when they started paying table rent was inconsistent, but was not a significant point of evidence.

[80] Ms. Belair relied on Exhibit 31 to substantiate her claims regarding the business revenues, allegedly representing the client list. Sometime in 2015, she surreptitiously printed Exhibit 31, from the letters ‘A’ to ‘P’, following the USB containing the information being misplaced. At the end of the relationship, Ms. Belair left the residence with the documentation. Mr. Bourgon denied that Exhibit 31 was the client list that was kept by The Groomery. He stated that the business kept a completely different client list, and worked with different sheets. He disputed the alleged revenue set out per year based on the exhibit. Nonetheless, the quantum suggested was not established in evidence. Mr. Bourgon indicated that he would need to charge $100.00 per dog to reach the revenue suggested. Neither Ms. Lalonde nor Ms. Labelle-Andre recognized Exhibit 31. Ultimately, given the totality of the evidence, including Mr. Bourgon’s denials that the exhibit in fact represented the client list, I am genuinely not persuaded that this was the client list.

[81] While Ms. Belair was diligent in ensuring that there were invoices and time sheets prepared by her for the repairs and labour performed by Mr. Bourgon on her property, and she provided him spreadsheets for monies owed to her for expenses, there was no evidence of invoices or time sheets for any alleged work at The Groomery. Ms. Belair failed to establish any credible evidence of an agreement to be paid $15.00 per hour, or that she worked in any substantial fashion at The Groomery.

[82] I find that Ms. Belair significantly exaggerated her involvement with in The Groomery. I prefer the evidence of Ms. Labelle-Andre, Ms. Lalonde and Mr. Bourgon on this issue. In the face of their evidence, it is not credible that Ms. Belair worked four to five hours per day at The Groomery. I am not persuaded that Ms. Belair worked at The Groomery in any significant manner. While Ms. Belair may have occasionally taken money from customers, called clients, or performed menial tasks for the business, I find that she has been sufficiently compensated though her frequent use of monies from the cash register at the business.

[83] I am not persuaded that Ms. Belair has established any benefit to Mr. Bourgon by her efforts, nor did she demonstrate a corresponding detriment. Further, Ms. Belair did not demonstrate a causal connection between her involvement at The Groomery and the preservation, maintenance or improvement of the business.

Breeding and selling puppies

[84] Ms. Belair claimed Mr. Bourgon owed her $16,800.00 for her share in their joint venture of breeding and selling puppies.

[85] In total, she estimated the parties have bred and sold 41 puppies: 27 during the relationship and fourteen after separation. There were 31 puppies sold in 2016/ 2017. While her evidence was that the puppies were worth between $1,500.00 and $3,500.00 each, both parties agreed that Ms. Belair would receive $500.00 per puppy sold.

[86] It was Ms. Belair’s evidence that Mr. Bourgon last bred dogs in 2000. Given that she was a farmer for 20 years, she encouraged him to start breeding dogs again. Mr. Bourgon initially stated that he bred dogs since 1981, and took a break from 2002 to 2009, but later indicated he started breading dogs again in 2014/ 2015.

[87] Ms. Belair described her involvement as significant. She would stand watch while the puppies were being born. They were expensive, and therefore she did not wish to lose a puppy. She was the primary person responsible for the breeding program as Mr. Bourgon worked and did not have time to assist. Having puppies was a lot of work, which included getting up at 7:00 a.m., having to clean the puppies’ box, feed them, and when they were older, socialize them with other dogs. While Mr. Bourgon was downstairs at work, Ms. Belair would take the puppies out two or three times in the day to get them housebroken. At night, she played with them until it was time for the puppies to go to bed. Afterward, she would take care of the adult dogs, take off their diapers, and place dog food and water in each crate.

[88] The couple advertised the puppies through Facebook, and created a kennel name of Danmar Bichon. Both Ms. Belair and Mr. Bourgon testified that they were responsible for the Facebook page. Mr. Bourgon admitted Ms. Belair would occasionally assist in taking pictures for the website. Exhibit 20 demonstrated Ms. Belair’s communications with clients on behalf of the couple and Danmar Bichon. Ms. Belair also created the dogs “pedigree” paperwork.

[89] Ms. Belair went to Battersea to pick up dog food every second week, and was principally responsible to take the dogs to the veterinarian as Mr. Bourgon worked during the day. Mr. Bourgon disputed these assertations, indicating they never picked up food in Battersea, and he was primarily responsible for the veterinarian appointments.

[90] Ms. Belair described that the least amount of dogs they had at one time was six dogs, prior to getting Einar and Eluney, and the most being 17 total: 9 adult dogs, and eight puppies.

[91] When discussing Ms. Belair’s role with the dogs, Mr. Bourgon indicated that she would let the dogs out at 5:00 p.m., or change their belly bands. He described it being a “shared responsibility” to let out the dogs out after 5:00 p.m. However, the remainder of the dog care duties were principally his, such as the grooming, exercising, breeding the dogs and assisting the mother with birthing. He stated that Ms. Belair had no experience whelping bichon puppies, and therefore she never whelped them. He disagreed that breading dogs was time consuming, and estimated taking care of puppies took an average of 50 minutes per day for the first four to five weeks. He described Ms. Belair as having little to no involvement in caring for the puppies, suggesting that at most, she changed a pee pad in the day. He denied that anyone was required to watch the puppies during the day while he was at work, apart from himself going upstairs at lunch time to check on them.

[92] Mr. Bourgon testified it was due to his reputation and his contacts that they were able to find buyers for the puppies. Nevertheless, he also indicated that the dog show world had nothing to do with breeding or selling of puppies, and that the notoriety and publicity of the dog shows and Armani have zero correlation with business in the grooming world.

[93] The Danmar Bichons website listed Mr. Bourgon’s phone number, and both of their email addresses. When there was a buyer, Mr. Bourgon indicated he sent them to Ms. Belair. Both he and Ms. Belair would send pictures to buyers. Mr. Bourgon maintained that he was in charge of the breeding program, knew the cost, the schedule and knew the paperwork, all of which Ms. Belair had no knowledge. He testified that he was well practiced after 38 years, and Ms. Belair was not knowledgeable. He intimated that Ms. Belair was useless without his information. In this regard, the Respondent presented as insincere.

[94] Mr. Bourgon was evasive in his answers regarding any profit from breeding and selling puppies. He suggested the vet costs for the puppies were estimated at $400.00 for the first shots and check-up, plus $60.00 to $100.00 to register each puppy in Canadian Kennel Club. Then he corrected himself during cross examination indicating it was $25.00 to $30.00 per puppy registration. There were also fees when the dogs were being bred, such as progesterone testing, ultrasounds and/or x-rays. He stated that if selling puppies was his only revenue, he would be extremely poor, with the stud feed, show career, all calculated into the price. However, as set out above, Mr. Bourgon’s narrative regarding cash flow was dubious given the number of cash transactions fluctuating throughout his bank accounts.

[95] Mr. Bourgon, who by his evidence was primarily responsible for the breeding program, disagreed with the number of puppies bred. When asked about puppies produced in 2016, he was dismissive and claimed that he would be aware of the puppies as it was his breeding program. He disagreed with Ms. Belair’s assertion that she had not been compensated for the puppy sales. His evidence supported Ms. Belair’s contention that she was to receive $500.00 per puppy, despite him paying all of the expenses, and in fact, she received the monies directly from the purchasers. Ms. Belair would then keep her share and deposit the remainder into the joint account.

[96] To the contrary, Ms. Belair testified that the all of the monies received for payment of the puppies was deposited into the parties’ joint bank account. Of the 41 puppies sold, Ms. Belair’s evidence was that she only received $3,700.00, which was taken by her toward the end of the relationship as reimbursement for the dog show expenses incurred by her. However, as it came out in evidence, she had previously sworn an affidavit stating that she had received $500.00 from the sale of each puppy. Her evidence at trial was that the statement was in reference to the last litter of puppies, and the affidavit contained a mistake.

[97] When Ms. Belair retained the $3,700.00, she presented Mr. Bourgon a spreadsheet, created by her, to account for the monies owed to her by him [Exhibit 25]. The spreadsheet, which was generated just prior to separation, showed an outstanding balance owed by Mr. Bourgon to Ms. Belair of $368.64.

[98] I find that the parties had a common intention of breeding and selling puppies, and that there was an agreement that Ms. Belair would receive $500.00 per puppy sold. I accept that the time involved was approximately 50 minutes per day for the first four to five weeks.

[99] Ms. Belair did not establish any residual value to the puppy breeding business, nor what the net profit was per puppy. There was insufficient evidence of accumulation of wealth or assets due to breeding and selling puppies. Further, with the conflicting evidence of both parties, it was not clearly established exactly how many puppies were bred and sold.

[100] Given the contradictory testimony and the credibility issues of both parties, I find the documentary evidence compelling, in particular, Ms. Belair’s expense report [Exhibit 25] which was created by Ms. Belair prior to separation. As was noted throughout this judgment, Ms. Belair was a competent and savvy individual. She regularly created invoices to track what was paid or payable between the parties, as evidenced in the rent receipts and invoices for work and repairs by Mr. Bourgon on the four-plex discussed above. She created those invoices contemporaneously to protect herself, and to properly claim deductions on her Income Tax Returns. While I question whether Mr. Bourgon was forthcoming with the income generated from the breeding program, I am nonetheless persuaded that if Ms. Belair felt that she had been owed money prior to separation for the puppy sales, her spreadsheet would have reflected what was still payable by Mr. Bourgon. Furthermore, based on the evidence as a whole, it is questionable that Ms. Belair would have paid rent to Mr. Bourgon as she advanced, while being owned monies from puppy sales.

[101] Ms. Belair admitted that she had no involvement with the puppies bred and sold following separation. Therefore, I am not persuaded that she has any interest in any monies collected from those sales.

[102] On the totality of the evidence on this issue, I am not persuaded that Mr. Bourgon has been enriched, or that Mr. Belair suffered a corresponding deprivation. I find that Ms. Belair has been sufficiently compensated for her efforts in this business through the monies received by her directly from the sales. However, based on the objective documentary evidence, I find that Mr. Bourgon still owes Ms. Belair $368.64 for her outstanding interest in the puppies sold through Danmar Bichon, as set out in Exhibit 25.

Dog Show Expenses

[103] Ms. Belair advanced she was owed $20,757.14 for expenses incurred by her for the dog shows. These expenses included hotel, air travel etc. for which she was never reimbursed by Mr. Bourgon.

[104] As set out above, Ms. Belair admitted to taking $3,700.00 from the monies received from puppy sales to reimburse herself for dog show expenses as her credit card bill was high.

[105] Ms. Belair described dogs shows as a “rich man’s sport”. She indicated however that there was a lot of work involved. She and Mr. Bourgon usually brought two to three dogs to the show. If they had a litter of puppies, those puppies also attended, and she checked on them at the hotel every two hours. To get to the shows, she had to load the van, ensure there were sufficient pee pads, belly bands, towels, etc. She made sure there were cages, dog food, and water. She prepared Mr. Bourgon’s clothing, shoes, and ties. When the parties arrived at the hotel, they would unpack, bring crates inside, and then feed the dogs. Armani would be groomed in the morning by Mr. Bourgon. The couple would then repack the van. She estimated it took one to two hours to pack and prepare. They would get up at 6:00 a.m., and the day would not end until much later, particularly if one of the dogs won best in show, which sometimes took place as late as 7:00 p.m. While at the dogs shows, Ms. Belair testified she would help Mr. Bourgon set up. She would make phone calls to customers, and take care of accounting paperwork at the shows. She said she would always take care of the dogs.

[106] Mr. Bourgon’s evidence was diametrically opposed to Ms. Belair’s. He was responsible for everything, the loading and unloading of equipment, the setup, the grooming, picking out his own clothing, etc. According to him, Ms. Belair was only there for the social aspect of the dog shows, such as talking to exhibitors. All Ms. Belair did was pick out her own clothing. Mr. Bourgon also took care of organizing the flights and hotels. Both Mr. Bourgon and Ms. Pollen stated that Ms. Belair spent all of her time on her tablet. Mr. Bourgon admitted that Ms. Belair was present, and part of the team, but her contribution to the team was that “she was pretty, and talked to people”. Mr. Bourgon disagreed with the idea that the puppies ever attended any dog shows.

[107] Christine Pollen, the dog handler, confirmed that the dog shows were a lot of work with the set up and tear down. She further corroborated that there were some long days, and that she was usually at the dog shows from 6:00 a.m. to 10:00 p.m. However, Ms. Pollen did not see Ms. Belair doing anything that she would consider as work at the dog shows. Though Ms. Belair was observed taking candid pictures of the dogs, there were professional photographers present for that purpose. More frequently than Mr. Bourgon, Ms. Belair brought Armani to Ms. Pollen.

[108] It was Ms. Belair’s evidence that in 2016, the parties spent 46 week-ends at dog shows. In 2017, though the parties attended a lot of dog shows, Ms. Belair was unable to quantify how many. Her evidence was that the parties attended the odd dog show in 2012, 2014, and 2015.

[109] Ms. Belair produced the Canuck dog show listing, which she stated accounted for all the dog shows Armani attended [Exhibit 22]. These included the dog shows Ms. Belair did not attend, when Ms. Pollen would take Armani as his handler. The paperwork indicated who showed the dog, be it either Ms. Pollen or Mr. Bourgon. In total, Armani attended 20 shows in 2017 prior to the parties separating; 26 shows in 2016; 27 shows in 2015; and six shows in 2014. There were no listings of shows for 2012 and 2013. Ms. Belair also testified that Einar participated in a few shows, including a show in Kansas, but was unable to say when that would have occurred.

[110] Mr. Bourgon confirmed Armani did not compete in 2013. However, with regard to the expenses presented for dog shows as found in Exhibit 7, he suggested there was insufficient evidence to establish there were dog shows, and contradicted Ms. Belair’s evidence in saying that they travelled to the listed locations for holidays. They had a time share in Orlando, where they went on a regular basis. As for the veterinarian bills, he indicated that those bills were for Ms. Belair’s dog, who was very ill, not for the puppies.

[111] Mr. Bourgon testified that he always paid for the expenses for the dog shows. He confirmed that Ms. Belair would often book the trips through her Westgate account, as they would get more points for free trips. She would afterward either tell him the amount he owed her, or show him the invoice, and he would reimburse her the money. Ms. Belair meanwhile denied that any cash deposits around the time of incurring the dog show expenses were repayment by Mr. Bourgon for same. She testified that Mr. Bourgon never paid her any cash whatsoever.

[112] When questioned on the 2013 dog show expenses where no shows were recorded in Exhibit 22, Ms. Belair attempted to correct her prior testimony by indicating that Exhibit 22 was actually the dog shows which Ms. Pollen took Armani. Ms. Belair alluded to another tab, which was never produced at trial, with all of the Canuck dog shows. She maintained that there were a lot of dog shows in 2013, and the Choice Hotel rentals were proof of same. I do not accept this testimony.

[113] When comparing Ms. Belair’s evidence regarding expenses incurred by her and Exhibit 22, I am not persuaded that any expenses incurred by Ms. Belair for 2013 were related to dog shows, and as such the claim for reimbursement for same is dismissed.

[114] With regard to the 2014 expenses, based on the evidence, the expenses related to the October 23, 2014 Visa Plantine card were related to puppies being purchased, and not dog shows. Further, though there were expenses incurred for February, April, November, and December, 2014, according to Exhibit 22, there were no shows in any of those months. Despite this, on a balance of probabilities, I am persuaded that it is more likely than not that all but the October, 2014 expenses were related to dog shows, and quantify this amount at $5,683.56.

[115] There were no expenses claimed for 2015.

[116] Based on Ms. Belair’s evidence in chief, I am satisfied that she has established a claim for 2016 and 2017 expenses at $1,602.55 and $2,719.71 respectively, and veterinarian fees at $1,084.18.

[117] However, as set out in great detail above, I have great difficulty in accepting either parties’ evidence regarding their finances and financial transactions. Both Ms. Belair and Mr. Bourgon were loose with the truth with regard to payments made to each other, and monies coming in and out of their bank accounts. Considering that Ms. Belair’s evidence on the issue of payments made to Mr. Bourgon for rent, repairs and renovations was off by approximately $65,000.00, I am unable to place any faith in her assertions that she was not reimbursed for the dog show expenses incurred.

[118] On a balance, I am not persuaded that Ms. Belair has not been reimbursed the monies she claims she is owed.

[119] I do not find that Ms. Belair established any credible link with regard to the dog shows and any enrichment to Mr. Bourgon, nor do I find Ms. Belair suffered any corresponding deprivation.

[120] I therefore dismiss her claim for reimbursement of dog show expenses.

Eluney, Einar and the Jointly Owned Dogs

[121] The parties currently have joint ownership of Armani, Booster, Lexie, Eluney and Einar. It was not contested that Mr. Bourgon was originally the owner of Armani and Booster, and at one point he transferred the ownership into both names.

[122] Both parties agree that all five dogs will be in Mr. Bourgon’s sole name and care. The issue was whether Ms. Belair should be compensated for her interest in all, some, or none of the dogs.

[123] Based on joint ownership of the five animals, Ms. Belair advanced that she should be compensated $10,000.00 for her interest in them. Ms. Belair also sought reimbursement of the $5,427.72 U.S.D. paid by her for Eluney and Einar.

[124] The American Kennel Club (“AKC”) and the Canadian Kennel Club documentation confirm that Armani was initially owned by Mr. Bourgon and his then wife. Title was transferred into Mr. Bourgon and Ms. Belair’s name (Brazeau being her previous name) on January 1, 2013. Booster Buddy was also transferred into joint names on January 1, 2013. Lexie (also known as Saddlebrook’s Nulove at Danmar) was born July 25, 2012. Her registration of November 14, 2012 was in joint names.

[125] Ms. Belair’s evidence on the reason behind the dogs being registered in joint names was that Mr. Bourgon gifted them to her not only to share his pride of the dogs with her, but due to her love for them and interest in caring for them. Mr. Bourgon displayed pride in telling people at dog shows that Ms. Belair was a co-owner. She denied the joint registration being for estate planning purposes.

[126] Mr. Bourgon meanwhile testified that the dogs were in joint names for estate planning purposes, and rebuffed the assertion that they were gifted to Ms. Belair. Mr. Bourgon wished Ms. Belair to have immediate control of the dogs should he die. Upon his death, she would be able to mail the ownership certificate with his signature on the back to CKC without issue, and then do as she pleased with regard to the dogs. He and Ms. Belair spoke about estate planning frequently. Ms. Belair loved the dogs. It was, from Mr. Bourgon’s view, a logical decision which mirrored their wills.

[127] As set out in Lehner v. Grundl, “[i]n a common law relationship, or between strangers, the presumption of resulting trust applies to gratuitous transfers of personal and real property. The presumption of resulting trust means that when someone gives property to someone else, without receiving anything in exchange, it is presumed that the person who received the property is holding the property in trust for the donor; see Halsbury's Law of England, (4th Ed.) vol. 20 para. 39; Monck v. Coffey (1991), 1991 CanLII 12832 (ON SC), 33 R.F.L. (3d) 156 (Ont. Gen. Div.): Lehner v. Grundl, [1995] O.J. No. 181 (Ont. C.J. (Gen. Div.)) (Note: the matter went to appeal, but appeal and cross-appeal were dismissed regarding these issues). Justice Wilson went on to state that the presumption of resulting trust may be rebutted by evidence of a gift. The onus is on the person denying the trust to prove that he or she has been gifted the property.

[128] Kerr does not abolish the resulting trust argument: Lazier v. Mackey, [2012] ONSC 4651 (Ont. S.C.J.), at para. 62. What was stated to be abolished was the concept that a resulting trust could arise based only on the common intention that the beneficial interest of property was shared.

[129] It is a clearly established principle that equity presumes bargains, not gifts. There was no evidence of any consideration given by Ms. Belair to Mr. Bourgon to compensate him for conveying a half interest of the dogs to her. However, I find that Mr. Bourgon was a capable and intelligent man, who knew what he was doing when he registered the dogs in joint names. I accept Ms. Belair’s evidence that Mr. Bourgon was proud to boast that Armani, his prize show dog, was both his and Ms. Belair’s dog.

[130] On a balance of probabilities, I find that Ms. Belair has rebutted the presumption of resulting trust, and she should be compensated for her share Armani, Booster, and Lexie’s value.

[131] With regard to Eluney and Einar, in September, 2014, Ms. Belair paid a broker in Florida to purchase the two puppies. They were from Argentina, but the sale could not take place directly without an American broker being involved. The cost of the dogs was $5,427.72 U.S. dollars. The transactions took about four months to complete. There was a deposit of $1,000.00, as well as the wire payment of $4,427.72, both made through Ms. Belair’s bank account. Confirmation of same is found at Exhibits 11 and 12.

[132] Mr. Bourgon testified that he was responsible for the communications with the breeder as he was extremely knowledgeable and, as he says, is considered an expert with regard to Bichons. However, when testifying, his evidence was that “we” made contact, and “we” decided to purchase both dogs. Though he was the one purchasing the dogs, given that he did not have a U.S. account, he asked Ms. Belair to take care of the transfers. He gave her the requisite money in cash, which she then deposited into her American account to permit the wire transfer.

[133] The banking records filed in support of the purchase of the two dogs establish cash deposits and a wire transfer. However, given the contradictory evidence, I am unable to determine who was responsible for the monies deposited in Ms. Belair’s account.

[134] The evidence supports that the dogs were registered to both parties through the Canadian Kennel Club and thus jointly owned. I find that it was the parties’ intention to procure and jointly own Eluney and Einar. As set out above, Ms. Belair sought to be reimbursed the $5,427.72 U.S.D. paid for the two dogs. The documentary evidence could support either party’s assertions as to how the dogs were paid for. On a balance, I am unable to conclude that Ms. Belair paid for the two dogs. I therefore am not persuaded that Ms. Belair should be reimbursed the $5,427.72 U.S.D. However, given the joint ownership, I find Ms. Belair ought to be compensated for her share of their date of separation value.

[135] The evidence regarding the value of the Armani, Booster and Lexie dogs was marginal. Armani was what Mr. Bourgon described as a “wow” dog. He is an eight and a half year old dog. He is not neutered. If Armani was wanted, it would be by breeders. He would be able to breed for the next 10 to 15 years, but Armani is Mr. Bourgon’s pet. When asked about Armani’s market value, he indicated that Armani was not out to stud. Ms. Pollen agreed with Mr. Bourgon that there was no financial value to Armani, particularly as he is an older dog who is set in his ways.

[136] Booster’s market value according to Mr. Bourgon is zero. He is not wanted within Canada, he is not good enough to be a stud as he is too big, and has bite issues.

[137] With regard to Eluney, she has produced great litters, however, she has a damaged uterus, and may not be able to conceive. Someone could pay $400.00 to $500.00 to have her as a pet. Einar is likely to be another “wow” dog, as described by Mr. Bourgon. However, Einar is a carrier of recessive eye problems, and therefore a breeder would not buy him.

[138] While it was Ms. Belair’s claim to be reimbursed for her interest in the dogs, she has failed to establish sufficient cogent evidence of their current value, particularly given their age and health issues. It was Ms. Belair’s onus to prove her claim, and she has failed to do so. I am left with Mr. Bourgon’s evidence that Eluney may be worth between $400.00 and $500.00, and Armani and Booster are not worth anything. No evidence regarding Lexie’s value was presented. I find it is appropriate to estimate Einar’s value to be the same as Eluney’s, given their similar ages and their health issues. I am not persuaded that either Armani, Lexie or Booster have any value.

[139] On this issue, I do not find that Mr. Bourgon has been enriched, or that Ms. Belair has any corresponding deprivation. However, I do find that Mr. Bourgon owes Ms. Belair $450.00 for her share of the value of all five dogs.

Unjust Enrichment Analysis

[140] At first blush, there may be merit to Ms. Belair’s assertion that she was in a worse place financially at the end of the relationship than she was at the beginning. In December, 2013, just over a year after living together, Ms. Belair testified she increased her mortgage to $160,000.00, and took out a $15,000.00 line of credit (“LOC”) through Desjardins. The contract for the line of credit was filed as Exhibit 14. However, though she indicated that the money had been deposited into one of her accounts, no such documentary evidence was produced confirming any such deposit. Providing evidence that she was approved for a LOC by the bank does not establish that the LOC was actually utilized by her, therefore resulting in further indebtedness. Evidence of further indebtedness through this LOC was not established in evidence.

[141] Additionally, there was a lack of documentary evidence to establish the assertion of being in a worse place financially. Ms. Belair’s financial statement filed in the trial record failed to set out her financial situation when the parties commenced residing together. Moreover, as set out above, the same financial statement inaccurately listed no bank accounts in Ms. Belair’s name. Given the plethora of inaccurate statements made by Ms. Belair regarding her financial circumstances, such as alleged payments to Mr. Bourgon which were found to be false, very little weight can be given to Ms. Belair’s version of events regarding her financial position.

[142] The onus was on Ms. Belair to establish all three elements of unjust enrichment. On a balance of probabilities, I am not persuaded that any enrichment to Mr. Bourgon was established. Nor am I satisfied that Ms. Belair has suffered any corresponding deprivation. I have detailed above my findings above regarding Ms. Belair’s involvement in The Groomery, the dog shows, the breeding and selling of puppies, as well as the jointly owned dogs.

[143] Ultimately, on a balance of probabilities, I am not persuaded that unjust enrichment has been demonstrated.

[144] For completeness, having turned my mind to the facts of the case, if I am wrong in my determination regarding enrichment and corresponding deprivation, I do not find that there was any juristic reason for any unjust enrichment.

Joint Family Venture

[145] If I am wrong in determining that unjust enrichment has not been established, given that Ms. Belair also pled joint family venture, I have reviewed same. I am mindful that the four factors below are not a closed list, and that there is no presumption of the existence of a joint family venture.

Mutual Effort

[146] The parties were together for approximately five years. They have no mutual children. They were involved in breeding dogs, which consisted of a joint effort. I was not persuaded that Ms. Belair was involved in The Groomery in any significant fashion. Ms. Belair did not demonstrate any causal connection with the dog shows and any generation or increase in wealth or assets. Further, evidence regarding domestic labour or Ms. Belair’s role in the home was found to be lacking.

Economic Integration

[147] With the exception of one joint bank account, the parties kept their finances separate. The evidence showed that the parties, for differing reasons, were reluctant to establish full economic integration. They presented themselves to the world as separate financially. For instance, Mr. Bourgon claimed rent from Ms. Belair, as well as payments for repairs and labour performed by him on Ms. Belair’s property on his Income Tax Returns. Ms. Belair made similar claims on her Income Tax Returns. Neither party claimed the other as a common law spouse on their Income Tax Returns. Ms. Belair explained this was because Mr. Bourgon was not honest regarding his cash transactions, and having previously worked for Revenue Canada, Ms. Belair did not approve of the way Mr. Bourgon filed his paperwork.

[148] Both parties spent their own money as they saw fit, including shopping trips, jewelry, cruises, dog handlers, etc. I am unable to conclude that either party prioritized the “family unit” over their own individual needs.

Actual intent

[149] The evidence was clear that the parties had previously been involved in significant relationships. They both presented as independent, financially intelligent, and experienced in life. Their evidence portrayed them as two savvy people who entered into a mutually beneficial relationship with their eyes wide open.

[150] I find that there was intent shown by the parties to share the dogs and the dog breeding business. However, I am unable to find that there was intent to economically integrate their lives beyond what I find to be a small business venture.

Priority of family

[151] There was insufficient evidence presented at trial to address this issue. The parties had no mutual children. I am not persuaded that there were financial sacrifices for the collective benefit of the family as was discussed in Kerr, nor was there reliance of one party on the other to be the primary income earner for future economic security. (See Penny v. Rode, 2012 BCSC 885, at para. 42)

Analysis

[152] Having considered the evidence in its entirety, on a balance, I do not find that Ms. Belair has established a joint family venture. While there was evidence of mutual effort and intent to breed dogs, there was insufficient evidence of accumulation of assets or wealth from this endeavor. I am unable to find that either party was enriched or left the relationship with a disproportionate share of assets which were a product of their joint efforts.

[153] Moreover, had I found there to be a joint family venture, I would not have found a disproportionate sharing of assets or wealth.

Disposition

[154] Final Order to issue as follows:

1. Mr. Bourgon shall, within 14 days, pay to Ms. Belair, $450.00 for her interest in the five dogs: Armani, Booster, Lexie, Eluney and Einar.

2. Mr. Bourgon shall, within 14 days, pay to Ms. Belair $368.64 for her interest in the puppies sold.

3. Mr. Bourgon shall immediately have possession and ownership of the dogs: Armani, Booster, Lexie, Eluney and Einar. Ms. Belair shall immediately sign any transfer of ownership documentation required to effectuate the sole ownership through the Canadian Kennel Club.

4. Ms. Belair is permitted to collect her belongings (as set out in Schedule 'A' to the Respondent’s draft order filed as Exhibit 2 to the trial) from the Respondent's home, within 20 days. Ms. Belair shall schedule the move on the weekend or after 5:30 p.m. on a weekday, and shall advise Mr. Bourgon 48 hours in advance. She will also produce proof that the company has insurance, 48 hours in advance.

5. No Spousal Support is payable by either party

6. All other claims are dismissed.

[155] If the parties are unable to settle the issue of costs between them, they may provide written submissions to me. Submissions shall not exceed 3 pages, excluding bills of costs, offers to settle and case law. Ms. Belair’s shall be delivered within 30 days, and Mr. Bourgon’s shall be delivered within 45 days, with ten days to reply by Ms. Belair.

Madam Justice Hélène C. Desormeau

Released: February 7, 2019

Belair v. Bourgon, 2019 ONSC 933

COURT FILE NO.: 17-297

DATE: 20190207

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Danielle Belair

And

Marcel Bourgon

REASONS FOR JUDGMENT

Madam Justice Hélène C. Desormeau

Released: February 7, 2019