Court File and Parties

Court File No.: FS-20-112 (Owen Sound) Date: 2023-06-01 Ontario Superior Court of Justice

Between: TRACIE L. GALBRAITH, Applicant -and- JEREMY M. KINSLEY, Respondent

Counsel: Paul Phillips, for Ms. Galbraith Ram Shankar, for Mr. Kinsley

Heard: November 28, 29 and 30, 2022

Before: R. Chown J.

Reasons for Decision

1The parties cohabited for 10 years from January 2008 to September 23, 2018. They had three children together during that time. The parties resolved their differences except for the issue which was the subject of this trial: Ms. Galbraith’s trust claim for a share of the home Mr. Kinsley purchased on January 2, 2008.

Issue and Result

2Ms. Galbraith says Mr. Kinsley has been unjustly enriched by her efforts and by their joint efforts to build a family together. In her application, she claims for “a declaration that she has a resulting or constructive trust interest in … 150 Dundalk Street in Dundalk, Ontario and a determination of the nature and extent of that interest.” She claims related relief including an order “authorizing the disposition or encumbrance of the residential property…, if such is pursued by the Applicant.”

3Ms. Galbraith first commenced a proceeding in the Ontario Court of Justice. The parties resolved their differences surrounding support and parenting in the context of that proceeding. The claim and trial in this court focussed solely on 150 Dundalk.

4The parties never married but they held themselves out as a family. Although the parties maintained separate bank accounts, their economic lives were inextricably intertwined. The parties both used the income they received to benefit the family. The parties both directed their efforts to benefit the family.

5I have found that Ms. Galbraith has established her claim for unjust enrichment and that she has established that the parties engaged in a joint family venture. I have assessed the value of the unjust enrichment claim at $191,000.

Background

Early Relationship

6The parties resided in Dundalk and began dating in approximately 2003 when Ms. Galbraith was 15 and Mr. Kinsley was 19 or 20. Both parties graduated from high school.

7In 2007, Mr. Kinsley wanted to move out of his parents’ house and wanted to buy a house. He discussed this with his parents and with their support started looking for a house to buy in late 2007. At this point, Ms. Galbraith was living with her parents and working at a long-term care centre in housekeeping. She was 19. Mr. Kinsley was 24.

Buying the House

8The parties dispute the extent of Ms. Galbraith’s involvement in the process of viewing and selecting a house to buy. Mr. Kinsley testified that he viewed six houses and that the only one Ms. Galbraith came to see prior to purchase was the one he eventually bought, being 150 Dundalk Street. Mr. Kinsley’s mother testified that she went to several showings with Mr. Kinsley and the only house she could recall Ms. Galbraith being at was 150 Dundalk. Ms. Galbraith testified that she could recall going to two showings prior to the showing of 150 Dundalk, and she recalled the houses were on Mill Street and Highpoint Street.

9Little turns on the determination of this factual dispute. It is agreed that Ms. Galbraith attended the viewing of 150 Dundalk which speaks volumes to the state of mind of the parties at that time. They were moving in together and this was not intended as a short-term relationship. Rather, it was intended as a continuation and progression of what was already a long-term dating relationship.

10To the extent it is necessary to resolve the factual dispute over whether Ms. Galbraith went to some of the showings, I prefer the evidence of Ms. Galbraith. It is generally less difficult to remember attending an event than it is to remember who else attended.

The Pleadings

11As indicated, Ms. Galbraith claims a trust interest in 150 Dundalk. Mr. Kinsley argues that the court may not make a monetary award. He points to Ms. Galbraith’s pleading, which does not request damages or monetary relief. He argues at page 37 of his factum that “what they have not asked for they cannot obtain as relief.” Mr. Kinsley also notes at page 2 of his factum that Ms. Galbraith did not claim joint family venture or the value-survived approach as a remedy.

12These limitations in the pleading do not prevent the court from awarding monetary relief instead of a declaration of a constructive trust. The possibility of a monetary award did not take Mr. Kinsley by surprise. The application also seeks an order for a valuation of 150 Dundalk, and McSweeney J. ordered Mr. Kinsley to obtain a valuation in 2021. These would be unnecessary if a monetary award was not an option. In this case the claim for monetary relief is subsumed within the constructive trust claim. Furthermore, Mr. Kinsley cites no authority to suggest there is a requirement to use the labels “joint family venture” or “value-survived approach” in a pleading when a party wishes to argue that these concepts arise from the pleaded facts. The application does allege that the parties “cohabited in a relationship resembling marriage.” The pleaded facts in the application and in the answer make it obvious that the parties were alive to the legal concepts in play.

13No counterclaim is advanced and set-off is not specifically pleaded as a defence. However, Mr. Kinsley’s position at trial was that Ms. Galbraith benefited from the relationship and from residing in the home. This position cannot have been a surprise to Ms. Galbraith. It has been a known feature of the law of unjust enrichment since before Kerr v. Baranow, 2011 SCC 10, where the Supreme Court of Canada said, at para. 48, that “it is unjust to pay attention only to the contributions of one party in assessing an appropriate remedy.” And while speaking of the correct approach to addressing the mutual exchange of benefits, the court said, at para. 109 of Kerr, that the conferral of mutual benefits “should be taken into account at the defence and/or remedy stage.” The court also said, at para. 109, that this “can, and should, take place whether or not the defendant has made a formal counterclaim or pleaded set-off.” Here, it is appropriate to evaluate Ms. Galbraith’s unjust enrichment claim bearing in mind the benefits and enrichment she also received from the relationship.

14At the same time, the pleadings and the positions advanced at trial only raise Ms. Galbraith’s claim for an interest in 150 Dundalk. The parties have not asked the court to assess whether, because of a joint family venture, they have an interest in any other assets that they each may hold, such as the household contents or appliances, each other’s vehicles, or Ms. Galbraith’s pension. I have no evidence to evaluate any other assets that the parties may have held.

Unjust Enrichment

15This case easily meets the test for unjust enrichment. Mr. Kinsley has been enriched through the actions and efforts of Ms. Galbraith. He has acquired substantial equity in 150 Dundalk St. His argument that, post-separation, he has managed to keep up the mortgage payments without assistance from Ms. Galbraith misses the point that the financial contributions made by Ms. Galbraith during cohabitation supported the family’s lifestyle – and his lifestyle – in very tangible ways.

16Peter v. Beblow, [1993] 1 S.C.R. 980, established that the provision of domestic services can support a claim for unjust enrichment. In Kerr, at para. 42, the court said that “there is no reason to distinguish domestic services from other contributions.” These services “constitute an enrichment because such services are of great value to the family and to the other spouse; any other conclusion devalues contributions, mostly by women, to the family economy.”

Joint Family Venture

17In this case it is also easy to conclude that the parties, through their cohabitation and relationship, engaged in a joint family venture.

18Under the common law, there is no presumption of a joint family venture. “A joint family venture can only be identified by the court when its existence, in fact, is well grounded in the evidence”: Kerr, at para. 88. The court, starting at para. 89, went on to provide “a useful way to approach a global analysis of the evidence and some examples of the relevant factors that may be taken into account in deciding whether or not the parties were engaged in a joint family venture.” The approach is not a checklist but the court provided four headings to consider in the analysis: mutual effort; economic integration; actual intent; and priority of the family.

a. Mutual Effort

19Mr. Kinsley’s purchase of 150 Dundalk closed on January 2, 2008, according to the agreement of purchase and sale. The parties moved into the home together shortly thereafter.

20During their cohabitation, Ms. Galbraith and Mr. Kinsley worked collaboratively towards common goals. They pooled effort. Most significantly, they had three children together. The three boys were born in 2009, 2010 and 2015. Ms. Galbraith took maternity leave for each child. Ms. Galbraith did most of the childcare and housework. The parties attended each others’ family events and took holidays together. They almost always did the grocery shopping together and did other shopping together as well. They ate as a family most nights. They attended events as a family.

21The parties both testified that none of the children were planned. I do not accept, however, that having children was not a mutual decision. As Ms. Galbraith correctly observed, if the parties did not want to have children, they would have used protection. The joint decision not to use protection implies that there was a mutual decision to have children.

22Having children together implies a shared future and implies shared responsibility for raising the children. It means mutual effort. It changes everything from the way a couple will spend their time, to the activities the couple will engage in, to the type of vehicle they will purchase, to the groceries they will buy. All these factors and many more were present here and reflect mutual effort by the parties to raise their children.

23The court in Kerr also said, at para 91: “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 resources.” That is applicable here.

24The parties provided competing evidence on “who did what” in terms of improvements to the house. Ms. Galbraith said the parties purchased paint and painting supplies through her brother’s account, and they purchased furniture and appliances at Leon’s. Ms. Galbraith and family members from both sides helped with painting the house before the parties moved in. The parties painted parts of the house again later in the relationship, and Ms. Galbraith and extended family members assisted with that.

25I accept Mr. Kinsley’s evidence that he did the work and purchased the supplies for most of the home improvements. The improvements were extensive. They included: a full new kitchen; a new shower in the bathroom; vinyl flooring in the bathroom and some other areas of the house; removal of wainscotting; replacement of the deck; changing receptacles and light fixtures; repairing and painting; and a shed in the back yard.

26Ms. Galbraith planted flowers and did the gardening. This work should not be diminished because she enjoyed doing it or because she considered it a hobby or because, as Mr. Kinsley testified, it was “her choice” to plant flowers. ¹

27I accept that Ms. Galbraith directly contributed far less than Mr. Kinsley to the home improvement work and expense. For instance, an example she gave of an expense she incurred was paying for the vinyl flooring in the bathroom, clearly a relatively minor expense compared to the other projects at the residence. But the home improvement work does not receive special status. That is, I will not give added credit to Mr. Kinsley’s work based on the suggestion that it provided greater value to the family. I will not assume that Mr. Kinsley would rather have been doing something else and that he considered the work as an unwelcome and onerous task. Mr. Kinsley did not suggest that Ms. Galbraith had her feet up while Mr. Kinsley did all the work.

28In terms of chores, Ms. Galbraith did most of the housekeeping and childcare. She acknowledged that Mr. Kinsley helped with childcare when she was not on maternity leave, including transporting the children. He would also cook and clean when she was at work. Mr. Kinsley did most of the grass cutting and snow blowing.

29In short, the parties generally divided their efforts along traditional gender roles, but their efforts were integrated for the benefit of the family.

b. Economic Integration

30While the parties maintained separate bank accounts, they shared expenses. A review of Ms. Galbraith’s bank account reveals modest balances from 2015 to 2021. Mr. Kinsley agreed that neither one of them had a lot of money left over at the end of any given month. He acknowledged that his bank accounts were borderline or in overdraft most months, and that the parties lived month to month. He acknowledged that the family would have lived a different lifestyle without Ms. Galbraith’s contributions.

31The parties gave relatively consistent evidence on “who paid for what.” Ms. Galbraith generally paid for groceries, phone plans, Internet, cable TV, natural gas (for home heating), and household contents such as towels, curtains, and bedding. Mr. Kinsley paid the mortgage, insurance, taxes, hydro, water, and sewer expenses for the property.

32Ms. Galbraith paid for a washer and dryer. Ms. Galbraith paid for the second set of furniture that the parties bought.

33Mr. Kinsley paid to have the roof repaired. He paid for new eavestrough. He paid for a replacement window in the front of the house.

34Ms. Galbraith shared a Costco membership with her mother and the parties used that to buy from Costco. The parties used Ms. Galbraith’s brother’s account at Home Hardware. The parties consulted on major purchases such as vehicles. Sometimes, who would pay for things depended on who had money in their bank account at the time.

35During the summer of 2015, Mr. Kinsley’s mother did regular childcare while Ms. Galbraith was working. Generally, however, Ms. Galbraith paid for private daycare for all three children. She applied for and obtained subsidies for daycare as available. She received the child tax credit.

36Ms. Galbraith testified that at the end of the relationship, she had no savings or RSPs or TFSAs. She borrowed money from her parents, and still owes them most of what she borrowed. She did contribute to an OMERS pension through her employer but no one led evidence as to its value.

37The parties each advanced detailed lists of expenditures they made during the relationship. Ms. Galbraith has provided lists based largely on her banking and credit card records to show that she contributed between $13,000 and $24,000 per year in the categories of phone bills, insurance, car loan, Enbridge Gas, groceries, furniture loan, home improvements, Netflix, and cable TV.

38A review of Ms. Galbraith’s expenditures chart shows that she used her funds primarily for family purposes. The same can be said of Mr. Kinsley’s expenditures chart only if the mortgage and house insurance and parts of the utility expenses are classified as “for family purposes.” If these expenditures are not classified as being “for family purposes,” the asymmetry between what they used their money for would lead to an obvious inequity.

39The point was made in cross examination of Ms. Galbraith, and it is true, that Ms. Galbraith benefited to a significant extent from the expenditures funded from her bank account. She enjoyed the ability to make personal calls on her cell phone, she had the use of one of the family vehicles, she ate the family food, she stayed in a house with heat, she used the washer and dryer, she used the furniture, she watched TV. However, the argument applies in reverse. Mr. Kinsley also benefited from the expenditures funded from his bank account. He benefited from the roof over the family’s heads, from the insurance on the property, from the fact that the property taxes were paid, and from the electricity, water, and sewer. The argument does not assist Mr. Kinsley’s position, but undermines it, as it merely highlights that these parties arranged their financial affairs in a way that resulted in their mutual benefit and the benefit of the family, with the added result that Mr. Kinsley built equity while Ms. Galbraith did not.

40There can be no doubt that the parties integrated their economic well-being and economic lives.

c. Actual Intent

41Mr. Kinsley argues that the parties here did not have any actual intent to have a joint family venture. He points to: the lack of planning surrounding children; the absence of discussions about the long term future and the parties’ long term goals; Ms. Galbraith’s opposition to marriage; and Ms. Galbraith’s stated position during the relationship that she did not want to be Kinsley.

42Not surprisingly, the parties did not develop a life plan. Mr. Kinsley testified, and I accept, that the parties did not have real discussions about their shared future. “All this came about … kids came. We didn’t think of having kids. We didn’t say we were having kids. It was just the way life came.”

43While they did not discuss future plans in detail, the parties also did not discuss the equities involved in the event of a breakdown in their relationship. At first, when they moved in together, Mr. Kinsley had the money for a down payment, Ms. Galbraith worked part time and did not qualify for a mortgage, and the parties’ relationship had just entered a new phase. It makes sense that at that time Mr. Kinsley took title to the house. But I do not think either party would have thought it reasonable to suggest that over the next ten years, they would have three children, they would both contribute virtually all their earnings to the mutual benefit of the family, but that the increase in their accumulation of wealth would be for the sole benefit of Mr. Kinsley. There is no reason to think that the parties intended that.

44Mr. Kinsley bought a ring for Ms. Galbraith at some point in the relationship. In cross examination, Ms. Galbraith said she didn’t take the ring because she didn’t want it. In cross examination, Mr. Kinsley denied proposing marriage to Ms. Galbraith. He said the purpose of the ring was to say that he appreciated her for being the mother of his children. He agreed that the act of marriage would not have changed things. Although he wondered whether most married couples put their mortgages in their joint names, he would not speculate as to what would have happened with their mortgage if they had been married. The fact remains that parties were in a relationship that resembled marriage.

45Ms. Galbraith’s statement during the relationship to the effect that she did not want to be a Kinsley is not significant in the analysis of joint family venture.

d. Priority of the Family

46These parties proceeded on the basis of understandings or assumptions about a shared future that they had not articulated. As the court noted in Kerr, at para. 98:

Whether the roles of the parties fall into the traditional wage earner/ homemaker division, or whether both parties are employed and share domestic responsibilities, it is frequently the case that one party relies on the success and stability of the relationship for future economic security, to his or her own economic detriment (Parkinson, at p. 243). This may occur in a number of ways including: leaving the workforce for a period of time to raise children; relocating for the benefit of the other party’s career (and giving up employment and employment-related networks as a result); foregoing career or educational advancement for the benefit of the family or relationship; and accepting underemployment in order to balance the financial and domestic needs of the family unit.

47Ms. Galbraith took three maternity leaves during the ten-year cohabitation. She did everything that was necessary to allow Mr. Kinsley to work long hours. These facts alone show she prioritized the family over her individual economic welfare.

The Respective Contributions of the Parties

48The analysis in this case overwhelmingly favours the conclusion that the parties engaged in a joint family venture. Further, there is no justifiable basis to conclude that the parties did not contribute equally to the joint family venture. Mr. Kinsley earned a higher income, but this was possible because of the parties’ mutual decision that Ms. Galbraith would take primary responsibility for raising the children and for other household responsibilities, allowing Mr. Kinsley to generally leave the house for work at 5:30 a.m. and not return until after 6:00 p.m.

49Similarly, Mr. Kinsley did most of the home improvement work, but Ms. Galbraith and her family contributed and, no doubt, much of the work Mr. Kinsley did was made possible or more efficient because Ms. Galbraith looked after the children while he was doing that work.

50An “artificial balance sheet” approach to account for the contributions made and the benefits received by each party is neither practical nor possible in this case. This is often the case: Kerr, at para 69. But the circumstances demand an equal sharing of the economic benefits of the relationship.

Remedy

a. Monetary or Proprietary Award

51In an unjust enrichment claim, monetary (as opposed to proprietary) relief “constitutes the default position”: Mitchell McInnes, The Canadian Law of Unjust Enrichment and Restitution, 2nd Ed. (Toronto: LexisNexis, 2022), at 28.01[5][a]. A constructive trust will be awarded only if a monetary order would be inadequate: McInnes, 28.01[5][b][i].

52One requirement for a proprietary award is that “the claimant must show a direct link between the property and the services rendered”: Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, at para. 166; Kerr, at para. 51. The circumstances of this case may meet this requirement. The parties jointly directed their efforts to maintaining the family’s interest in 150 Dundalk and, from the evidence available, that property became the family’s largest asset by far.

53The longevity of a relationship also is a factor that will weigh in favour of proprietary relief because, “as a relationship endures and acquires the hallmarks of a formal marriage, it becomes appropriate to ensure that both parties enjoy proprietary interests that allow them to share in the accumulated assets”: McInnes, 28.01[5][b][i]. The parties’ 10-year relationship here supports the claim for proprietary relief.

54Despite this, for two reasons, I do not think a proprietary award is appropriate in the circumstances or necessary to achieve a just result. First, Ms. Galbraith did not commence this Superior Court proceeding until October 5, 2020, more than two years after the separation. Mr. Kinsley refinanced the property after the separation. Ordering the sale of the property may unnecessarily undermine efforts he made to preserve the property, and may permit Ms. Galbraith to unjustly benefit from the re-financing he arranged. Second, Ms. Galbraith has not provided an adequate reason for departing from the default position of a monetary award. Claimants in unjust enrichment cases often seek a proprietary award because it ensures that they will participate in the increase in value of the asset (Wilson v. Fotsch, 2010 BCCA 226, at para. 56) and sometimes, no doubt, because they see it as a negotiating lever. However, since Kerr, courts are no longer constrained against making a monetary award that reflects the nature of a joint family venture. That is, courts may make a monetary award on a “value-survived” basis that reflects the circumstance present in many relationships, being that the parties expect “to share in the wealth generated from their partnership, rather than to receive compensation for the services performed during the relationship”: Peter v. Beblow, [1993] S.C.J. No. 36, 101 D.L.R. (4th) 621, per McLachlin J., at 652. (Cory J. agreed with that proposition at 642.)

55The circumstances here call for a monetary remedy and for a “value-survived” approach to determination of the amount of the monetary remedy.

b. Market value of 150 Dundalk

56The available evidence as to the value of 150 Dundalk is less than ideal. On June 23, 2021, McSweeney J. ordered, “Respondent is to obtain a valuation of the property as at the date of separation in October 2018, and a current value. That valuation to be provided to applicant no later than 60 days from June 23, 2021.”

57In my view the appropriate valuation date for 150 Dundalk in determining the amount of the award is the date of trial. It is therefore not necessary to determine the value of the property on the date of separation. However, I will determine the value on the date of separation in the event I am found to be incorrect in using the date of trial.

58What Mr. Kinsley provided in response to McSweeney J.’s order is a document that appears to be a one-page excerpt from an appraisal obtained by RBC with an appraisal effective date of July 15, 2019, i.e., approximately nine months after the separation date. This document identifies the appraiser but states that his designation is “candidate.” I infer that the appraiser had neither a CRA nor an AACI designation. Despite the limited qualifications of the appraiser and the date discrepancy, I will use the value from this appraisal as the value as of the separation date. I have no other evidence to go on. I therefore find that the market value of 150 Dundalk as at the separation date was $320,000.

59On behalf of Mr. Kinsley, Mr. Shankar suggested I should discount this by $20,000 to reflect an increase in market value; however, in the face of McSweeney J’s order, it would be wrong to do so.

60I also have a one-page opinion of value dated August 19, 2020 prepared by Lesley Stoneham, a real estate broker. This document assesses the value of 150 Dundalk at $575,000 to $580,000. This was over two years before the date of trial. Between then and the date of trial, with the pandemic in full swing, real estate prices were widely known to be increasing and volatile.

61Through counsel Ms. Galbraith asked Mr. Kinsley in February of 2022 to provide an updated opinion of value for 150 Dundalk. Mr. Kinsley did not provide this, but Ms. Galbraith did not arrange her own appraisal.

62I therefore find the value of 150 Dundalk as of August 19, 2020 to be $577,500 and I will use that as the value as of the date of the trial, as I have no other evidence to go on.

c. Mortgage Balance

63I also have limited evidence as to the mortgage balance as of the date of separation and the date of trial. A mortgage statement indicates that the principal balance as of December 31, 2018 was $177,503. This document identifies the required monthly payment amounts but also shows that “skip-a-payment” options of $722.34 were used and accrued interest of $51.03 remained unpaid. I could possibly extrapolate the mortgage balance as of the date of separation but it would involve significant guesswork. The most appropriate approach in the circumstances is to use the December 31, 2018 mortgage balance as representative of the balance owing as of the date of separation.

64In argument, I was advised that there is no document to reflect the mortgage balance as of the date of trial. In the document brief that the parties admitted as an exhibit on consent, I found the mortgage statement of December 31, 2020, showing a principal balance of $167,172.

65Mr. Kinsley did not provide an updated mortgage statement at the time of trial. Ms. Galbraith did make a late request for this, and her position is that it ought to have been produced without a request. Mr. Kinsley testified in cross examination that at the time of trial the mortgage balance was around $300,000, increased to consolidate debt and pay legal fees. He said he paid off a line of credit but could not provide the amount of the line of credit at the time of separation or at the time he paid it off, and he did not provide documentation of this.

d. Down Payment

66The 2007 purchase price for 150 Dundalk was $172,000. Mr. Kinsley paid the down payment for the mortgage, the legal fees for the purchase, and presumably the $1,000 deposit. To do so, he largely collapsed his $18,000 RSP. The only evidence I noted as to the amount of the down payment was Ms. Galbraith’s evidence, and she said the down payment itself was $8,000.

e. Quantifying the Monetary Award

67The appropriate monetary award in this case is one half of the increase in the equity of 150 Dundalk from the time the parties began cohabiting until the date of trial, with adjustment as I will describe. The parties were engaged in a joint family venture. Ms. Galbraith should be treated as a partner in their relationship, not as hired help.

68Mr. Kinsley could have avoided sharing the increase in value of the property since the date of separation by paying Ms. Galbraith her share of the increase in equity at that time. He should not benefit from delayed payment. As a result of the delay, Ms. Galbraith lost the opportunity to invest the money she would have received, and as a result she should participate in the increase in value of the property. I therefore will use $577,500 as the starting point for the determination of the monetary award.

69I then must deduct an amount for the outstanding mortgage balance. In part because I have so little else to go on, I will use mortgage balance as of December 31, 2018 for this deduction. It might be said that using this figure benefits Mr. Kinsley, as four years of mortgage payments would have reduced the mortgage balance. But the parties’ economic integration terminated at the time of separation (or at least, I infer from the circumstances that it did – there was no real evidence on this point). Given this, Mr. Kinsley would be unfairly penalized if I gave benefit to Ms. Galbraith for the mortgage payments he made after separation.

70At the same time, Mr. Kinsley should not benefit from increasing the mortgage on the property post-separation by consolidating debt and re-financing the property. If I had evidence that the parties jointly incurred the debt during the relationship, I might have made an adjustment for that. However, there is no such evidence. It does appear from the mortgage statements in evidence that the re-financing Mr. Kinsley described occurred after 2020.

71A further adjustment must be made for the down payment and purchase expenses paid solely by Mr. Kinsley.

72In result, I calculate the monetary award as follows:

• Value of the property as of the last appraisal date (August 19, 2020): $577,500
• Less the mortgage balance from the mortgage statement closest to August 19, 2020: $177,503
• Less the amount paid by Mr. Kinsley in 2007 for the down payment and legal and other fees associated with the purchase of the property: $18,000
• Net estimated and adjusted increase in equity: $381,997
• One-half of this amount: $190,999

This should be rounded to $191,000 to reflect the fact that precise calculation is impossible.

73I did not receive submissions on prejudgment interest. The parties may address this with written submissions.

Conclusion and Disposition

74The Supreme Court of Canada in Kerr said, at para. 85:

[T]he 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.

75The evidence in this case does establish that the parties’ unmarried domestic arrangement was a partnership to which both parties committed their full income and effort. Justice requires that the increase in wealth that the parties achieved must be shared, and shared equally.

76The applicant shall have judgment for $191,000.

77I will determine costs through written submissions. Applicant’s submissions by June 16, 2023. Responding submissions by June 30, 2023. Reply submissions by July 7, 2023. The submissions shall be limited to eight pages in total for both sides. For greater certainty, the total page limit for the applicant’s initial and reply submissions is eight pages – not eight pages each. In addition to the page limits, the parties may submit offers to settle, dockets, and bills of costs.

78If Ms. Galbraith believes she is entitled to prejudgment interest, the parties may make written submissions on this point on the same time schedule, with a total page limit of five pages plus any jurisprudence the parties may wish to provide.

R. Chown J.

Footnotes

1. 1The respondent’s effort to equate this case to Peters v. Swayze, 2018 ONCA 189, was misguided. There, the applicant said she had improved the value of the respondent’s property by doing the gardening, and the court rejected that claim. However, the circumstances were very different than here. The parties did not have children together. The applicant paid a monthly amount that was equivalent to rent.