COURT FILE NO.: FC-20-702 DATE: 2024-11-22 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Amanda Brandi Nicole Cameron Applicant – and – William Craig Vincent Respondent
COUNSEL: J. Alison Campbell, Counsel for the Applicant Roxanne Lamadeleine, Counsel for the Respondent
HEARD: September 25, 2023, September 26, 2023, September 27, 2023, September 28, 2023, September 29, 2023, November 27, 2023, written submissions received January 11, 2024, January 25, 2024 and February 5, 2024
Justice M. Fraser
Part 1 - Introduction:
[1] The Applicant, Amanda Brandi Nicole Cameron (“Cameron”) and the Respondent, William Craig Vincent (“Vincent”) resided together in a common law relationship. They never married. They separated on January 30, 2020.
[2] The parties have resolved certain issues which arise from their separation, including the parenting arrangement for their children, the issue of any retroactive support and the children’s s.7 expenses. Therefore, in addition to the orders made by me by way of this judgment, an order shall also issue on a final basis incorporating the terms of the Partial Minutes of Settlement dated July 27, 2023.
[3] The sole outstanding issue which requires determination by me is whether Vincent was unjustly enriched to the detriment of Cameron. Cameron asserts that Vincent has been unjustly enriched from their relationship and Cameron asks for a finding that she has a financial interest in Vincent’s property, including but not limited to his employment pension, pursuant to the doctrine of joint family venture. She asks that she be compensated by way of a division of Vincent’s pension or alternatively by a monetary award.
[4] Vincent disputes Cameron’s claim that he has been unjustly enriched or that Cameron and he were involved in a joint venture.
[5] Vincent asks for an Order which simply divides the net proceeds from the sale of the jointly owned home, which totalled $395,688.70 as of June 17, 2021, which proceeds are currently held in trust, in the following manner:
- Cameron shall receive $147,844.35 ($197,844.35 - $50,000.00 already disbursed); and
- Vincent shall receive $161,844.35 ($197,844.35 - $36,000.00 already disbursed).
[6] For the reasons that follow, I find that Vincent was unjustly enriched by Cameron and that Cameron is entitled to be compensated as a result. I conclude that a monetary award calculated on a “value surviving” basis is appropriate. I decline to specifically order a division of Vincent’s pension.
Part 2 - Relevant Background Facts:
[7] Cameron first met Vincent in May or June 2009. The parties agree they began to live together on December 1, 2009. They never married.
[8] There were two children from this relationship, Hailey, who is presently 13 years old, and Hayden, who is presently 4 years old. Hayden was born after the parties’ separation.
[9] The parties separated on January 30, 2020.
[10] When the parties met, Vincent was working as a member of the Canadian Armed Forces. Vincent has a high school education. He joined the military in 2005. He worked in the military throughout the parties’ relationship. He now works for the RCMP.
[11] Cameron had completed a business diploma at Algonquin College in 2007 and she was studying Anthropology at Carleton University when she first met Vincent.
[12] While attending Carleton University, Cameron worked a number of government positions through the federal student work experience program. She completed a number of government contracts.
[13] When the parties began to live together, Cameron had completed her degree and was working for the Department of Immigration and Citizenship Canada (“Immigration”). She had been working within this department for approximately two years and her supervisors had most recently found her a full-time indeterminate position.
[14] Cameron recalls that she was not enjoying her position at Immigration at that point in time. She maintains that Vincent was encouraging her to quit and stay at home. She says that Vincent “sold her” on the idea of “taking a break” from her employment. She maintains that he expressed the hope that they would have children together and the told Cameron that she could stay home and cook and take care of the children. Cameron asserts that these discussions began before they even began to live together. In 2010, a few months following the date when the parties began to live together, Cameron quit her employment.
[15] While no timeline was specifically discussed, Cameron maintains the parties hoped they would have children right away. She believes that she quit taking birth control around the same time that she left her employment.
[16] Email exchanges were produced documenting the communication exchanged between Vincent and Cameron at this time. Vincent represented that he made enough money to support them both and that Cameron’s income was not necessary. Cameron testified that she was worried she would have trouble re-entering the workforce if she took time off to have children. They discussed what they felt were possible paths forward, including possible part-time jobs for Cameron as a yoga instructor. It is clear that Vincent supported Cameron remaining at home. Vincent assured her they would always have his pension. Cameron believed by this that he was asserting that he would “split” it with her.
[17] When they began to live in their rental home on the base, the rental payment was deducted directly from Vincent’s pay. Cameron then oversaw the payment of their joint miscellaneous additional expenses such as hydro, gas, internet, and Netflix.
[18] The parties would represent themselves to others as a “couple”. They would vacation together and celebrate holidays together, often with Cameron’s family. Cameron would attend some of Vincent’s work parties as his partner.
[19] When Cameron left her employment with the federal government, any pension she had earned was paid out to her at that time. She believes she received approximately two thousand dollars. She doesn’t recall what she did with it.
[20] Cameron asserts that she was always concerned in the early years of the relationship that she would become obsolete if she delayed returning to the workforce. She maintains that Vincent always encouraged her to stay home and that this was always premised on his assurances that he had a good income and that she did not need to work. The result of these discussions was that Cameron did not work outside the home at all.
[21] Cameron described her role in the home prior to Hailey’s birth as a homemaker. She looked after the cleaning, cooking, and paying the bills. The parties opened a joint bank account in addition to their own. Cameron would pay the bills from that account. When Cameron began a relationship with Vincent, he was already employed with the military. When they began to live together, Vincent put her on his health benefits plan right away. Vincent also had life insurance available through the military. He made Cameron the beneficiary under his policy.
[22] The parties first child, Hailey, was born in 2011. It was a high-risk pregnancy which required bedrest for a period of time prior to Hailey’s birth.
[23] Following Hailey’s birth, Cameron remained home with Hailey as her primary caregiver. She would bring Hailey for play dates at the military family resource centre. She would plan some “park” play dates or invite friends over. She looked after the domestic work in their home, cleaning and making meals. Cameron maintains that Vincent left most of the decisions that needed to be made at home to her. She asserts that he enjoyed being able to return home to relax, although he would prepare food for them at times and he played with Hailey when he returned home for the evenings.
[24] Cameron produced a series of email communications between the parties. They support Cameron’s assertion that the parties discussed Cameron returning to work from time to time. By these emails, Vincent communicated a preference that Cameron remain home advising that he would support them both financially.
[25] Cameron first attempted to return to work when Hailey was about 2 years old. This was an agency job with Health Canada. Cameron reported that it was only a two-month contract which paid about $10. per hour and that it barely paid for the cost of daycare for Hailey. Hailey didn’t adjust well to this first attempt by Cameron to return to work. Vincent would express to Cameron that this was proof why it was not a good idea for her to continue working. Cameron asserts that Vincent advised that he really would prefer her staying at home. Cameron completed the two-month contract but then did not seek out further employment at that time.
[26] Vincent provided for their family financially. Throughout the parties’ entire relationship Vincent worked for the military. This required Vincent to go on course for a number of weeks at a time. He would be required to attend courses in Gatineau and Gagetown. At one point he was deployed for a period of six months. While he worked, Cameron oversaw the domestic obligations at home and cared for their young child. Cameron’s pursuit of a career was very much placed on hold during this period of the relationship. Clearly her role was to parent Hailey and to support and facilitate Vincent’s career.
[27] At some point during the period between Hailey’s birth and Cameron’s return to full-time work in 2015, there was a point when Vincent took over the payment of the parties’ bills. This occurred because Vincent developed an issue with gambling. Vincent began to hide the accumulating debts from her. Cameron discovered the issue when she came upon a bill from her BMO credit card. She discovered her credit had been used to its maximum without her knowledge or consent. The amounts charged were for online casinos.
[28] Initially Cameron thought that someone had stolen her card. However, she realized that Vincent had been hiding the bills from her, and when she asked him about it, he admitted what he had done. She paid the balance owing on her credit card from money she had in her personal chequing account. She discovered that Vincent had amassed credit card debt in his own name as well.
[29] The parties met with a credit counsellor, and a proposal was made to the creditors. Vincent’s grandfather gave him money to resolve the debts. This event had a detrimental impact on the parties’ relationship as it negatively affected their trust. Cameron thereafter resumed responsibility for paying their bills.
[30] In or around 2013, Cameron received an inheritance from her father in the approximate amount of $59,000. When the money received from her father’s estate was deposited into her account in June 2013, she believes approximately $22,000 of her student loans were paid off sometime between June and September 2013. This paid her student loan indebtedness in full. Some of the remaining money was then used for the down payment on the home the parties eventually bought together.
[31] In or around 2014, the parties opened a spousal RRSP for Cameron. One was opened with ING and another at TD. According to Cameron they did this for the tax benefit. Cameron believes some of the money to purchase the spousal RRSPs in her name was derived from the inheritance money she had received from her father. Vincent questioned this but he did not provide any evidence to support any personal knowledge of where the funds for the RRSPs came from.
[32] Cameron prepared the income tax returns for the parties each year.
[33] When Hailey was 4, Cameron attempted to return to work again. This was an easier adjustment for Hailey given she was older. Cameron returned to work for Immigration in May 2015. It was casual work at that time. It took Cameron a period of time to get an indeterminate position. She has continued to work since that time. She claims that she needed to be able to support herself because of her concerns with respect to Vincent’s gambling behaviour. She asserts that Vincent supported her return to work although he made it clear that he would prefer if she stayed at home.
[34] Cameron achieved her PM3 (program management) by 2018 or 2019. However, she then took an 18-month parental leave following the birth of Hayden. Cameron believes missed pursuing a career in policy which might have preferred and which might have been available to her had she continued on the trajectory of the career path she was on when she left her employment in 2010.
[35] Cameron asserts her role with Hailey did not really change after Cameron’s return to work. Hailey was now going to school in the daytime. The arrangements for getting Hailey to and from daycare/school varied. Cameron asserts that she was still primarily responsible for Hailey, but that Vincent would also help. She does not recall Vincent ever compromising his work schedule to accommodate the childcare obligations whereas she maintains she would have to. Vincent’s testimony did not dispute the division of labour between them.
[36] After she had discovered Vincent’s gambling, Cameron believed that Vincent was remorseful. Vincent did not oppose her resuming her previous role of overseeing their finances.
[37] Vincent suggests that he had no choice but to “hand over” the finances to Cameron, that this was just in keeping with Cameron’s “controlling” personality. Perhaps Cameron’s insistence that she have control over their finances was in the circumstances considered “controlling” by Vincent but in reality, they were the conditions imposed upon him by Cameron as a logical condition to their remaining together as a partnership, given his apparent gambling addiction. Cameron therefore continued to pay the bills using their credit cards and their joint and personal accounts.
[38] The daycare cost was paid by Cameron and used a large portion of her income.
[39] The conflict in the parties’ relationship began to increase shortly prior to 2015. Cameron asserts that Vincent started getting physical with her. Around this time Vincent was supposed to be deployed. However, Vincent did not tell Cameron and she only found out about it a couple weeks before the date he was scheduled to leave. She missed the spousal briefing as it had already taken place. Cameron, as a result, was not invited to participate in the programs that were normally available and intended to support the spouses and families of military members who were deployed as Vincent had hidden all of this information from her.
[40] This created a lot of conflict. Cameron felt it was a real blow to their relationship.
[41] Cameron thought of leaving Vincent. The parties had discussions with respect to the lack of trust that arose from the dishonesty Vincent had shown. Cameron expressed her concern that Vincent was thinking of abandoning her and leaving her and Hailey without support. Vincent denied this was his intention. He assured her that if there were ever a breakdown in their relationship that it was his intention to provide for their support.
[42] They prepared a Separation Agreement. The Agreement provided, among other things, that Vincent would share his pension with Cameron. The agreement was signed by the parties and witnessed by neighbours although they did not seek out or receive legal advice at the time. The parties did not actually physically separate at this point. The Agreement was written anticipating that Vincent was leaving on deployment and was prepared for the contingency that Vincent would not return to resume the relationship after the deployment was finished.
[43] As it turns out, Vincent did not go on this initial deployment. Instead, Vincent was deployed approximately one year later. At that time, Cameron was able to participate in and take advantage of the various programs available for families with military spouses on tour.
[44] More problems occurred upon Vincent’s return from deployment as Cameron maintains that Vincent had been engaging sex workers while on deployment. When he returned Cameron became very upset when she discovered the charges on a credit card statement. She missed further employment at this point for a week or so because of her emotional upset.
[45] While Cameron returned to work in May 2015, she was not able to begin to contribute to a pension plan until she secured an indeterminate position, which only occurred a few years later. In January 2017 she began to contribute to a pension.
[46] When Cameron returned to work, she once again had access to her own medical dental package. Vincent continued to maintain coverage for Cameron because the plans and coverages were different. Cameron added Vincent to her plan. She additionally named Vincent as the beneficiary of the life insurance available to her through her employment.
[47] After Cameron’s return to work, Vincent continued to support and encourage the idea that she instead remain at home. Cameron introduced an email exchange between the parties respecting the fact that her employment was relocating. Vincent’s response was that he felt quitting her job would be the best thing for her to do.
[48] Along this same line, on July 17, 2016, Vincent emailed Cameron advising her that he really wished her to have another child. He told her that the money she earned was simply extra on top of what he earned and more than what they really needed. He suggested that they could afford to live on his income alone. In another email communication from Vincent to Cameron on September 19, 2016, he told her that it would really help if she were not working and that her working was not necessary.
[49] The parties had talked about having a home for a long time. They began to speak more seriously about it in 2017. Cameron did not want to continue to live on the military base. She felt that the parties had experienced a lot of drama and conflict and that purchasing a home together would be a fresh start for them.
[50] The parties purchased a home at the municipal address of 68 Hawley Crescent, Ottawa (the “home”) in April 2017. They took title as joint tenants.
[51] To purchase the home, approximately $40,000 was withdrawn from a tax-free savings account in Cameron’s name, $24,500 was borrowed from her spousal RRSP and $7,000 or $8,000 was removed from either their joint chequing account or her personal account. Cameron maintains that the accounts she drew from to come up with the downpayment was derived from the moneys she had received as inheritance from her father in the approximate amount of $59,000. A total downpayment for the purchase of the home was made in the amount of $72,813.
[52] On February 7, 2019, Vincent emailed Cameron indicating that he wanted Cameron to get pregnant again. He indicated that he wanted her to stay at home. Cameron testified that she did not feel that the relationship was on solid ground at this point.
[53] The parties’ relationship continued to deteriorate. In June 2019, the parties took a vacation with Hailey and they went to Canada’s Wonderland as a family. They had an argument on the way back. Cameron reports Vincent getting angry and asserts that he began to drive about 170 km/h down the 401. Hailey was upset and screaming. Cameron reports being very unsettled and upset. They arrived home and the next day Cameron recalls packing a bag and leaving. However, she did not know where to go. She did not want to go to her mother’s and involve her in what was going on. Instead, she reports that she drove around for the day. She returned home after 5 hours.
[54] While she was gone, Vincent called the police. Cameron maintains that when she charged her phone she found a slew of texts on her phone, posts on Facebook, and discovered that she was on the news and reported as missing.
[55] When questioned Cameron maintained that she is not currently under medical care for mental health concerns and that she has never been diagnosed with a mental health disorder. However, she indicated that she was prescribed Diazepam for anxiety at that point in June 2019. She asserts that she continues to have a bottle of that prescription but that she has had it forever. It was to be taken as needed and she has not required any in a long time. The only medication she presently takes is a medication for ADHD and something for sleep.
[56] Following the incident in June 2019 Cameron was off work for a period of several months. She returned to her work on a part-time basis in September 2019. Then a few weeks later, she transitioned back to work on a full-time basis. Cameron maintains that despite this medical leave, her difficulties did not affect her ability to look after Hailey.
[57] Cameron expressed her view that Vincent has mental health concerns. She describes him as tending to lie and hide information. She asserts that he began to become physically abusive in the period following his gambling issues and before she returned to work in 2015. According to Cameron, he would wrestle her down, pinning her down and cover her mouth. At that point he always expressed that he was sorry after the fact. However, over time she found that he would no longer express remorse for his actions. He became more physical, and would, for instance, push her. She asserts that he would sometimes express suicidal ideation and threaten to kill himself in the presence of Hailey. She also described him as being very manipulative with others.
[58] Cameron recalls learning that Vincent relinquished a promotion of rank during the course of his employment. She maintains that she didn’t know it was happening at the time. She asserts that Vincent subsequently attempted to blame her for it. She also maintains that he received probation for using drugs and being on the dark web and she knows from his employment file that he blamed this on his spouse’s mental health issues.
[59] Cameron received an inheritance from her grandfather in December 2019 in the approximate amount of $72,000. These funds were deposited into Cameron’s tax-free savings account with Tangerine. She identified $70,000 as remaining in that account at date of separation.
[60] The parties separated on January 30, 2020. This was also the date Cameron learned she was pregnant with Hayden. Cameron asserts that at this point in the relationship Vincent had become more aggressive in general. She attributes this to his involvement in martial arts. When she told him she was pregnant she also told him that she did not want him doing martial arts. She also told him she took issue with his choice of friends. She insisted that both of these problems change. According to Cameron, Vincent became physical in the course of their ensuing argument. This ended the relationship.
[61] Hayden was born in October 2020. Cameron took an 18-month parental leave to care for Hayden starting in mid September 2020 until early April 2022. She received 66% of her income during this time. No contributions were made to her pension during this 18-month period.
[62] Hayden began daycare in April 2022. Cameron returned to work at that time.
[63] Cameron has provided a pension valuation prepared by Guy Paul Martel. It provided a family law value for her pension based upon two scenarios. The first scenario provided a family law value as though she had continued to contribute to her pension while she was on leave without pay (June 21, 2019 to August 19, 2019). The family law value amounts to $40,208. The second scenario assumes that the pensionable service for the period of time Cameron was on leave without pay was accrued over time as the contribution deficiencies are repaid. Under this scenario the family law value amounts to $38,990.
[64] The parties sold their home following their separation. The lawyer overseeing the transaction held the net proceeds of sale in the amount of $395,688.70 in trust. From the net proceeds $6,000 has been withdrawn from Vincent’s portion of the proceeds to satisfy a costs order. Further, on a without prejudice basis $50,000. has already been disbursed to Cameron and is to be considered as received by her from her portion of the proceeds. On the same basis $30,000. has been disbursed to Vincent which is to be considered received from his one-half share of the net proceeds.
Part 3 - Legal considerations:
3.1 Unjust enrichment
[65] The elements of unjust enrichment are: 1. a benefit, 2. a corresponding deprivation and 3. the absence of juristic reason for the benefit and the loss: Kerr v. Baranow, 2011 SCC 10, [2011] S.C.R. 269, at para 32.
[66] As the Supreme Court of Canada explained in Kerr at para. 31: “At the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit which justice does not permit one to retain.” Put another way, unjust enrichment may be defined as “the unjust retention of a benefit to the loss of another, or the retention of money or property of another, against the fundamental principles of justice or equity and good conscience”: Bruyninckx v. Bruyninckx, at para. 58 and Ingram v. Kulynych Estate 2024 ONCA 678 at para. 51.
[67] The companion cases from the Supreme Court of Canada in Kerr sets out the current foundation for property claims between unmarried spouses upon separation. Cromwell J. in Kerr lays out a framework of principles which attempts to harmonize the various strains of the unjust enrichment jurisprudence in family law and non-family law cases.
[68] Unjust enrichment is a legal finding that leads to an equitable remedy to address an inequitable distribution of assets on separation. There are two stages to the application of an unjust enrichment claim: establishing the claim by meeting the test of unjust enrichment, and then determining the appropriate remedy, either monetary or proprietary.
[69] The test for unjust enrichment is:
(a) A benefit/enrichment conferred on the respondent; (b) A corresponding deprivation of the claimant; (c) No juristic reason for the respective benefit and deprivation: Moore v. Sweet 2018 SCC 52; Kerr at paras 31-32.
[70] The party claiming there has been unjust enrichment carries the burden of establishing that they gave something to the other party which that party received and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched that party and which can be restored to the claimant in specie or by money: Kerr at para. 38.
[71] Some examples of benefits received include:
(a) Money; (b) Title to a bank or investment account; (c) Title to real property (sole or joint); (d) Direct payment of expenses; (e) Providing accommodations or use of real property that saves expenses; (f) Labour, including administrative or physical labour that creates, enhances, or preserves property, including real property; (g) Domestic services; and (h) Anything else of economic value.
[72] It is not a “net benefit” analysis at this stage of the inquiry. Rather the court must determine whether there has been any benefit to the respondent as the analysis of the mutual conferral of benefits comes in later.
[73] The claimant’s loss is only material if the respondent has gained a benefit or has been enriched: Kerr at para. 39. The claimant must establish not only that the respondent has been enriched, but also that the enrichment corresponds to a deprivation which the claimant has suffered: Kerr at para. 39. There will usually be a relatively direct connection between the benefit to the respondent and the loss of the claimant, but it may not be as clear in some cases. Examples of cases where this is relatively clear have included instances where cash or property is given by one party to the other.
[74] In some cases, the benefit is less clear. Examples include:
(a) where one party pays for aspects of or improvements to real property when it is owned by the other; or (b) where one party contributes labour or time that allows the other party to focus on building another asset, developing their career or saving them costs.
[75] Whether the deprivation was counter-balanced by benefits flowing to the claimant from the respondent does not get addressed in the first two steps of the unjust enrichment analysis: Kerr at para. 113; Granger v. Granger, 2016 ONCA 945 at para. 48. That consideration is addressed when considering the defence and remedy stage, or in a limited fashion, at the juristic reason stage. It is only appropriate to consider mutually conferred benefits if they shed light on the parties’ reasonable expectations: Kerr at paras. 113-115.
[76] Finally, the benefit and corresponding deprivation must have occurred without a juristic reason: Kerr at para. 40. This means that there is no reason in law or justice, for the respondent’s retention of the benefit conferred by the claimant, making its retention “unjust” in the circumstances of the case: Kerr at para. 40. This involves a two-part test, the second part of which also has two parts:
(a) None of the usual categories apply: (i.) A gift; (ii.) A contract; or (iii.) A legal obligation; and (b) (i.) what were the reasonable expectations of the parties; and (ii.) whether there are any moral and policy-based arguments that would support the argument that the enrichment should be retained.
[77] The onus for the first part of the test, namely proving that none of the usual categories apply, is on the claimant. The onus for the second part of the test is on the respondent. If there was no contract between the parties, no evidence of donative intent, no applicable disposition of law, and no other traditional categories of unjust enrichment (mistake, duress etc.) it is likely that there will be no juristic reason for the retention of a benefit provided.
[78] If the three-part test for unjust enrichment has been met, the next stage of analysis is the remedy, which is either:
(a) A monetary award; or (b) A proprietary award (normally a constructive trust creating ownership in property).
[79] The court must consider a monetary award first, which will often be sufficient in the circumstances of the case: Kerr at para 47.
3.2 Monetary or Proprietary Remedy and the Joint Family Venture
[80] Remedies for unjust enrichment are restitutionary in nature, that is, the object of the remedy is to require the respondent to repay or reverse the unjustified enrichment: Kerr at para. 46. A monetary award is the preferred remedy. Justice Cromwell confirmed in Kerr that a proprietary remedy, such as a constructive trust, should only be considered if a monetary award is insufficient or inappropriate: Kerr at para. 50.
[81] Hoy A.C.J.O in Martin v. Sansome, 2014 ONCA 14 at para. 52 summarized how the court should assess the appropriate remedy:
(a) Have the elements of unjust enrichment – enrichment and a corresponding deprivation in the absence of a juristic reason – been made out? (b) If so, will monetary damages suffice to address the unjust enrichment, keeping in mind bars to recovery and special ties to the property that cannot be remedied by money? (c) If the answer to b. is yes, should the monetary damages be quantified on a fee-for-service basis or a joint family venture basis?
[82] If, and only if, monetary damages are insufficient, is there a sufficient nexus to a property that warrants impressing it with a constructive trust interest?
[83] A monetary award is the default remedy and should suffice in most cases to remedy the unjust enrichment. However, even if a monetary award is sufficient, consideration must be given to how the monetary award is qualified. Monetary awards can be calculated in one of two ways:
(a) On a quantum meruit or “fee-for-service” basis, also referred to as “value received” basis; or (b) On a “value surviving” basis also known as the joint family venture approach: Kerr at paras. 49 and 55
[84] Monetary damages calculated on a quantum meruit basis are likely appropriate where there is no joint family venture found between the parties. This approach strives to quantify the claimant’s contributions by placing a monetary value on the contributions. For unpaid services, this requires attempting to calculate the dollar value of the services provided. This is not a straight-forward exercise, nor an exact science. The assessment may consider:
(a) The cost to the claimant of providing the service; (b) The market value of the benefit; or (c) The value placed on the benefit by the recipient.
[85] In this approach, the claimant is more like an employee seeking reimbursement for services rendered.
[86] In Kerr, the SCC rejected relying on only the fee-for-service model for quantifying a monetary award premised upon the following reasons:
(a) The difficulty of quantifying fee-for-service in domestic partnerships; (b) Fee-for-service is too rigid and not aligned well with the flexibility of equitable remedies for unjust enrichment; (c) There is no reason in principle why one of the traditional categories of unjust enrichment should be used to force the monetary remedy for all present domestic unjust enrichment cases into a “remedial straitjacket”; (d) A restrictive reading of Peter v. Beblow, [1993] 1 SCR 980 is not accurate. It does not mandate quantum meruit: Kerr at paras. 58-79.
[87] Kerr established that the calculation of a monetary award is not limited to the “value received” approach stating that a monetary award calculated on a “value surviving” basis may also be used. The value surviving approach considers the accumulated wealth “surviving” at the end of the relationship. It tries to quantify the claimant’s “proportionate contribution” to the “accumulation of wealth”. The claimant is treated less like an employee, and more like a business partner in a family enterprise. This approach more closely approximates the existing property division regime for married spouses.
[88] Using the value surviving approach to quantify a monetary award may only be done where there is:
- there is a “joint family venture”; and
- there is a link between the claimant’s contributions to the joint family venture and assets and/or wealth accumulation; and
- the respondent is retaining a disproportionate share of assets resulting from that joint family venture.
[89] 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 v. Beblow as a “joint family venture” to which both partners have contributed, the monetary remedy should reflect that fact: Kerr at para. 80. This measures the value surviving at separation “calculated according to the share of the accumulated wealth proportionate to the claimant’s contributions”: Kerr at para. 87.
[90] It is a question of fact in each case whether there was a joint family venture. The onus is on the spouse claiming joint family venture to prove it: Tsai v. Dugal, 2022 ONCA 81 at para.7. A joint family venture is assessed having regard to all of the relevant circumstances, with an emphasis on how the parties actually lived their lives. Accordingly, unmarried couples who very closely, or entirely, lived their lives as though they were married, would have access to claims and remedies that are more similar to those available to married spouses, albeit with an additional evidentiary burden.
[91] Paragraphs 90 to 99 in Kerr set out a non-exhaustive list of factors to consider when determining whether there has been a joint family venture, specifically:
- Mutual effort: whether the parties worked collaboratively toward a common goal ie. pooling of effort; having children; jointly contributing to a bank account; jointly contributing to assets, including a joint home; splitting time on tasks on a schedule, including childcare; sharing tasks; allocating tasks to one or the other; hosting as a couple, especially as relates to business/career; more wide-ranging support for one party’s career; both parties working to support the family.
- Economic integration: whether the parties shared expenses and amassed a common pool of assets ie. had joint bank accounts; sharing of expenses; common pool of savings; shared bills; shared contribution to bills; division of spending ad saving; making investment decisions together; managing financial risk and stability through both parties’ careers; filing taxes as common law partners; benefiting from efficiencies of scale for expenses; sharing medical insurance; being beneficiaries of life insurance; being named attorney for property; jointly on loans or mortgages;
- Actual intention: whether the parties saw each other as domestic and economic partners – expressed or inferred, from actual conduct; statements to third parties about status; statements to each other about status; emails, texts, letters to each other about nature of the relationship; emails, texts, letters, to third parties about nature of the relationship; filings for immigration purposes; filings for loan or mortgage approval; holding anniversary parties that emphasize the partnership of the parties; many of the aspects of mutual effort and economic integration also show intentionality by the parties;
- Priority of the family: whether there was detrimental reliance on the relationship by one or both partners for the sake of the family. Reliance on shared future; leaving workforce for a time to raise children; relocating for the benefit of the other’s career; foregoing career/educational advancement for family/relationship; accepting under-employment to balance financial/domestic needs of the family unit; taking family vacations; hosting family celebrations. The length of the relationship is also relevant, as well as whether the parties have children together. Longer relationships and families with children are more likely to accumulate these types of factors.
[92] From a practical perspective, many of the facts that may arise are interrelated or go to more than one potential factor. Finding joint family venture is a highly fact-driven exercise and each case will turn on its own specific facts.
[93] If a joint family venture is found, the monetary award should be proportionate to the partnership contributions. There is no presumption of a half interest: Lesko v. Lesko, 2021 ONCA 369 at para 34 (leave to appeal denied at David Joseph Lesko v. Kelly Sue Lesko).
[94] In the event the claimant seeks a proprietary remedy, the onus is on the claimant to show that a monetary award is insufficient and that there is a sufficient nexus to the property in question.
Part 4 - Analysis:
[95] Cameron asserts that during the relationship Vincent financially benefitted at her expense by accruing a pension while she remained in the home and provided him with domestic services and caregiving. She argues that Vincent has emerged from their relationship in a more advantageous position financially than she when the sum of the assets were acquired through the mutuality of their efforts.
[96] In my view, the unjust enrichment and corresponding deprivation can be easily seen in this instance. Both parties, as young adults, came into the relationship with no assets of any appreciable value. They were both working and theoretically could have continued to pursue their separate career paths which would have enabled both of them to contribute toward their own pension or retirement fund. Both had just begun to contribute to pensions. However, shortly following the time the parties began to live together, they decided that Cameron would take a “break” from her employment. They agreed that Vincent would work and support Cameron, while Cameron would provide domestic support for Vincent.
[97] It was clear they were hoping to begin a family and anticipated that Cameron would assume a caregiver role for the children they planned on having. Cameron’s evidence on this point is corroborated by the email communications which passed between them early in the relationship before Cameron decided to quit her employment. Cameron sacrificed her ability to provide for her own financial security for the benefit of their newly formed partnership as a whole. Vincent by his communications clearly encouraged this.
[98] The manner in which Vincent was enriched is evident when giving regard to the difference in their respective asset position leaving the relationship. While the parties otherwise emerged equally given the main asset was the home which was acquired in their joint names during the relationship, Vincent emerged additionally with a pension asset which was significantly greater in value than Cameron’s pension.
[99] In the written submissions made on his behalf, Vincent disputed the premise advocated by Cameron that the parties otherwise were equal in their financial position at the conclusion of the relationship save and except for the value of their pensions. Vincent is suggesting by this that Cameron emerged with a greater portion of the other assets acquired through their mutual efforts. No compelling evidence was led to support this position. The parties’ sworn financial statements in this proceeding reveal that, if anything, that Cameron emerged with a net family property which was approximately $20,000 less than Vincent, when the value of their respective pensions is excluded.
[100] Given their decision that Cameron would not work, she did not contribute to a pension in the early years of the relationship as she had not worked but rather focussed on supporting Vincent and caring for Hailey. When Cameron rejoined the workforce in 2015, her career advancement had been on hold until that time and her advancement thus delayed. Cameron was not able to find a position that followed the path she would have chosen. Her ability to contribute to a pension was initially delayed until she found an indeterminate position and became eligible once again to contribute to a pension plan.
[101] At the end of the relationship, Cameron was pregnant with the parties’ second child which ultimately resulted in a further period of time in which she was unable to contribute toward a pension while she took a parental leave.
[102] When looking at the global picture, the accumulation by Vincent of his employment pension created an imbalance of the parties’ global wealth and in my view Vincent was unjustly enriched. He had the opportunity to earn this pension while Cameron remained in the home providing domestic services and caring for their child. She did not have the ability to contribute toward a pension during this time.
[103] The imbalance at the conclusion of the relationship needs to be considered also giving regard to Cameron’s contribution toward a downpayment of their home which was significantly more than that contributed by Vincent. Title to that asset was put into their joint names. The imbalance is further accentuated by the reality that Cameron alone has been left with an outstanding tax liability created when she withdrew the RRSPs to pay for the downpayment for the purchase of the home.
[104] I conclude that Vincent has been unjustly enriched and that Cameron suffered a corresponding deprivation as a result of her contributions during the course of the relationship.
[105] I also conclude that there was no juristic reason for the enrichment. It did not arise by virtue of it being gifted, required by contract or by virtue of a legal obligation. The parties created and maintained a relationship which was in all apparent respects a domestic partnership. Vincent has not put forward, in my view, a basis to conclude there is a juristic reason for his enrichment. In this respect, the premise that the parties’ expectations were that of two unmarried persons without the right to equalize their property does not, in my view, provide a sufficient juristic reason in the circumstances of this case. The evidence clearly demonstrated that Cameron and Vincent intended to build a life together and share as a family unit. They did not conduct their relationship in a manner that supports the conclusion that they wished to remain financially independent from each other. They did not keep separate as to property. They shared their assets and liabilities in a manner which indicates an intention to share the product of their mutual contributions.
[106] Given my view that Cameron has established a claim for unjust enrichment, there needs to be a determination of the appropriate remedy.
[107] While the remedy could be either monetary or proprietary, the first remedy to consider is always a monetary award: Kerr at para. 47.
[108] First, I must consider how any monetary award will be valued. More specifically I must determine whether the damages should be quantified based upon the “value received” approach or calculated on a “value surviving” basis.
[109] Cameron asks for damages quantified on a “value surviving” basis. More specifically, she asks that her damages be calculated based on the difference between the value of Vincent’s pension accumulated during the relationship and Cameron’s pension as accumulated during the relationship. Her evidence is that the parties otherwise emerged from the relationship on an equal financial footing.
[110] Cameron argues that the parties were actively engaged in a joint family venture, satisfying each of the factors identified above in Kerr.
[111] Neither of the parties brought significant assets into the marriage. As such their wealth at the conclusion of the relationship arose and was acquired by them during the course of the relationship. Given that title to the home was put into the names of the parties jointly, both parties emerged from the relationship in what would otherwise be tantamount to an equal position save and except that Vincent also earned a significant pension during the course of the relationship.
[112] Cameron did not work for a number of years during the relationship and when she returned to the workforce, her eligibility to contribute toward a pension was delayed until she had secured an indeterminate position with the government. The difference in value between the two pension assets distinguishes their respective financial positions at the conclusion of the relationship and the difference in their financial positions at the conclusion of the relationship is relatively significant.
[113] I am satisfied based upon the evidence that the parties, during the course of their 11 years together, pooled their efforts and worked as a unit. This involved Cameron assuming a caregiving role for the children while Vincent pursued his employment opportunities.
[114] I am satisfied that Vincent supported Cameron so that they could build a family together. She left her employment in 2010 and her career was very much secondary to her role as a partner and a parent. I am satisfied that both parties at the time were satisfied with this division of labour. It was mutually beneficial to both of them.
[115] In my view the parties intended to be domestic and economic partners. It allowed Vincent to have someone support his domestics needs while he focussed on his employment obligations. It permitted Vincent to pursue his career objectives while his child was cared for. It in turn permitted Cameron to focus on providing for the care of their child while Vincent provided for the family’s financial security.
[116] I find that the parties planned their future anticipating that they were one social and economic unit and they took steps to build economic stability for their family in a manner that demonstrates they considered themselves to be one economic unit. They purchased spousal RRSP’s to mutually benefit from the tax relief this afforded Vincent. Both contributed to the purchase of those RRSP’s. They pooled their financial resources to pay bills or purchase assets. In my view, there was no sense of concern between them at any point during their relationship as to whether they were, in any given instance, making equal contributions toward their financial transactions or in the provision of domestic labour. I conclude that this is precisely because they considered their relationship to be fully integrated as a domestic and economic partnership and that this was mutually agreeable to them both. They were both making contributions, some monetary and some non-monetary.
[117] Leaving the workforce in order to remain in the home and to eventually concentrate on raising Hailey (Hayden was born post separation) required Cameron to sacrifice her own financial security for the sake of the family unit. She relied upon the stability of her relationship with Vincent for her own economic security. While the parties were not married, I am satisfied that both acted in a manner more consistent with the traditional roles typically and historically assumed by married spouses. They held themselves out as partners. I am satisfied that they considered their relationship to be equivalent to a traditional domestic partnership with all of the interdependency that involved.
[118] Cameron’s evidence at trial, which I accept, described a relationship wherein the parties had been working together to build a family and in which the two parties worked together to meet the needs of that family as a unit, both making decisions confirming the priority of the family.
[119] Cameron moved to the military base and this favoured Vincent’s career at the commencement of the relationship. Shortly following the commencement of their cohabitation, both parties agreed that Cameron would forego her employment opportunities in order to stay at home and rely upon Vincent as the sole breadwinner. This was at the expense of Cameron’s own career advancement. Cameron had graduated with high grades, secured a number of government employment contracts and had her own professional prospects. I accept her claim that the decision that she would leave her employment was based upon a mutual agreement between them to focus on a commitment to each other as partners with a focus upon building a family and future together.
[120] The evidence of the circumstances surrounding Cameron’s decision to leave her employment very much warrants the conclusion that Cameron relied upon Vincent’s assurances that he would support her financially and that one wage earner within their partnership was sufficient for them both. Cameron sacrificed her ability to continue along the career trajectory which had been possible for her by foregoing employment opportunities. The parties clearly agreed there would be a pooling of their mutual resources and efforts to move forward as one unit, share and share alike.
[121] Cameron’s provision of domestic support by staying in the home, addressing the “at home” tasks, overseeing the financial management of their unit, and providing daycare services for Hailey, once she was born, also enabled Vincent to work unhindered by these external domestic obligations. Cameron benefitted from his financial support. Vincent benefitted from the domestic services she then contributed.
[122] While Vincent provided the lion’s share of the financial support for their family unit through his employment income, Cameron contributed as well. Cameron paid her credit card down from her own funds even though it was Vincent who had incurred the debt by using it for gambling. Cameron contributed funds she had inherited to make the downpayment on the purchase of the home which was then put in their joint names. They both contributed money toward the purchase of a spousal RRSP which allowed Vincent to reduce his taxable income, and which created a retirement fund in Cameron’s name.
[123] Their financial obligations were paid using a mix of funds from them both from their different accounts and through their credit cards. Cameron had access to Vincent’s finances, and a joint bank account was also opened. This was not a situation where one party paid a joint debt and then determined what the other parties` contribution should be. They clearly considered their joint assets as a pot from which Cameron oversaw the payment of their expenses as a whole.
[124] I do not accept Vincent’s position that this pooling of financial resources did not happen. Vincent’s evidence clearly demonstrated that he had little to no knowledge of the way their joint financial obligations were met. It is evident that he provided Cameron with the ability and authority to manage their global financial affairs. His lack of specific knowledge in my mind is not sufficient to discount Cameron’s evidence as to the way their assets were purchased, and their debts paid. In essence, Vincent had no personal knowledge because he clearly relied upon Cameron to oversee this aspect of their lives.
[125] To a limited extent Vincent had access to Cameron’s financials. Indeed, he accessed her credit card when he ran up indebtedness on both of their credit cards to fund his gambling. However, in my view, as part of her contribution to the relationship, it was Cameron’s role to oversee their personal finances. This was done, in my view, because they considered themselves to be an integrated unit.
[126] With the birth of their first child, the parties continued to conduct themselves as a truly integrated partnership with Cameron remaining at home and caring for Hailey. This allowed Vincent to continue to pursue his career objectives unimpeded by other personal or domestic obligations, including childcare. I conclude that their commitment and focus was on building and bringing economic and social prosperity to their “family” as a whole.
[127] I accept Cameron’s evidence that she contributed a significant amount of money toward the acquisition of the home. Their taking title as joint tenants supports a conclusion that they considered themselves economically inter-connected, and the parties were planning a future together as a unit.
[128] Vincent argued that the purchase of the home by the parties should not be construed as indicative of a commitment to be involved in a financial partnership. He submits that their move was motivated by Cameron’s wish to move to a living arrangement away from the military base. They had had relationship difficulties. She wanted to move.
[129] I do not accept Vincent`s position. While I realize that both parties confirm that there had been recent issues between them that could be described as a crisis in their relationship, I interpret their decision to purchase a home together as a renewal of their commitment to work through such difficulties and to continue their partnership together.
[130] Vincent suggests that the element of financial integration is not met when the parties have not amassed a pooling of savings from their financial resources relying upon Thompson v. Williams, 2011 ABQB 311, Valerio v. Silveira, 2011 BCSC 1055, Nielson v. Dawes, 2013 BCSC 375 and Penny v. Rode, 2012 BCSC 885. These cases are distinguishable in that it is clear that there was an amassing of savings in those instances which were kept separate. In those instances, the parties demonstrated through those arrangements an intention to maintain their assets separately. In this instance, save and except perhaps Vincent’s pension which by necessity was in his name alone, the parties were not “amassing” savings in separate names. They did not have the financial liquidity at this point and this was the reason there was not an “amassing of savings”. But more relevant, in my mind, to this issue is that their financial integration is demonstrated by their assuming responsibility for their ongoing expenses through a mix of their funds.
[131] Furthermore, this is an instance where one party’s contribution for the parties’ mutual benefit, at least until Cameron returned to work in 2015, was purely non-financial. It was provided through the provision of domestic services and childcare. I am satisfied that Cameron made these contributions understanding and relying upon Vincent’s assurances that his efforts to build financial security was, in turn, for their mutual benefit.
[132] Vincent also relies upon Rubin v. Gendemann, 2011 ABQB 71 to suggest that his lack of knowledge of Cameron’s finances is contraindicative to financial integration. That case was founded upon a concerted intent by the parties to operate independently. In this instance Vincent’s lack of knowledge of Cameron’s finances in my mind had more to do with his conferral upon Cameron of the role of financial manager for their family unit.
[133] Vincent was prepared to have Cameron oversee the payment of their mutual bills and he chose to not participate in that aspect of their affairs. I interpret his ignorance of her financial affairs to be more supportive of the conclusion that the role of financial “overseer” was hers and that her role in ensuring the payment of bills on both of their behalf was another aspect of their true partnership and economic integration. This assignment of the role to Cameron was perhaps further motivated from Vincent having mishandled and gambled away some of their resources. Nonetheless, I conclude that Vincent was prepared to have Cameron take on this role as part of their partnership together from the outset and until the conclusion of their relationship.
[134] I also do not accept as credible Vincent’s assertion that Cameron was “controlling” him and that he had no choice but to let this happen. I simply do not see anything compelling in the evidence that would corroborate that this was the case.
[135] Vincent has also attempted to refute the email communications which would suggest he was encouraging the partnership by testifying that he was lying at the time. I do not accept this explanation from Vincent and creating a financial dependency “dishonestly” is simply not the point. He willingly created the situation of financial dependency.
[136] I also do not accept Vincent’s assertions that neither of the children born of their relationship was planned. This assertion seems to be designed to refute Cameron’s assertion that the parties were focussed on a domestic partnership and having children together. I have already made findings with respect to my conclusion that Hailey was a planned pregnancy. With respect to Hayden, Vincent’s position is contradicted by his email communication with Cameron dated February 7, 2019 wherein he stated that his “goal” for that month was to get Cameron pregnant. His claim now that he was not being truthful is simply not a response to whether he participated in the creation of a financially integrated unit. In that respect it is what he represented to Cameron that matters, not whether he did not really mean what he was saying.
[137] The fact that the parties had increasing conflict and disagreements at points in the relationship does not change my view that the parties, throughout the time they resided together, had organized and merged their lives as a partnership with a view to supporting each other in financial and non-financial ways intent on building a life together with children as a family unit. The dysfunction within the relationship does not render their intention to be in a relationship any less real. Instead, it simply meant that the parties would ultimately conclude that their partnership needed to end which ultimately is what occurred.
[138] In my view, all these factors I have outlined above combine to support the conclusion that the parties were engaged in a joint family venture. There was mutual effort in that the parties were working towards a common goal to secure social and financial security as a family unit. There was economic integration. They merged their financial affairs, relying upon Vincent to earn the larger share of the wages on both of their behalf. They combined their financial resources to pay their living expenses, to pay their debts and to acquire a home and other assets. The parties clearly intended to combine their efforts and considered each other to be a domestic and economic partner.
[139] I am also satisfied that there is sufficient link between Cameron’s contributions to the joint family venture and the global wealth accumulation by the parties. It was by virtue of Cameron’s contributions that Vincent was freed to pursue his career. This also enable him to contribute toward an employment pension unhindered by domestic or childcare obligations. In my view Vincent is retaining a disproportionate share of assets resulting from that joint family venture.
[140] I note that Cameron has additionally relied upon the terms of the 2015 Separation Agreement as probative of the proposition that the parties had intended to share their assets, including Vincent`s pension asset. I do not consider that document to necessarily demonstrate such an intent. It may be that Vincent agreed at that time to divide his pension with Cameron. However, it could also be that Vincent had simply been prepared to agree to such a division at that time without there having been such a prior or subsequent intention. As such, its probative value is low.
[141] Based upon the conclusion that the parties were engaged in a joint family venture, and the nature of their contributions, I find therefore that Cameron is entitled to a monetary remedy which should be calculated on a “value surviving” basis.
[142] I also conclude that a monetary remedy is adequate to compensate Cameron in this instance. Funds remain in trust for both of the parties from the proceeds of sale of the jointly owned home. Vincent also has other assets. This is not an instance where there is an issue as to whether a monetary amount would be recoverable. As such Cameron has not demonstrated that a monetary remedy is insufficient.
[143] Also, Cameron’s claim is based in this instance upon a mutual conferral of benefits that gave rise to an increase in their global wealth. I do not see a sufficiently substantial link, however, between Cameron’s contributions and the acquisition of the pension asset specifically.
[144] I conclude that a monetary award is sufficient and decline to order that a proprietary interest in the pension be given to her.
[145] Next, I must consider the quantity of any monetary award.
[146] My finding that Vincent has been unjustly enriched was based upon the disparity between the parties’ respective asset positions at separation given the difference in value of their pensions at the conclusion of the relationship. Given my finding that there had been a mutual conferral of benefits throughout the relationship, I conclude that a monetary award which attempts to ensure the parties share the wealth acquired by their joint efforts during the relationship is appropriate.
[147] Vincent has argued that absent there being a full accounting and calculation of the parties’ assets and debts, an award based upon a “value surviving” approach is not possible. I disagree.
[148] The exercise I am to conduct, is not, strictly speaking, an equalization of the parties’ net family properties. Indeed, unlike the Family Law Act, which presumes that couples are entitled to an equal share of net family property accumulated during marriage, there is no presumption that a finding of unjust enrichment entitles a claimant to a half interest in the property. The extent of the claimant's interest must be proportionate to their contributions: Kerr at para. 102; Lesko v. Lesko, 2021 ONCA 369 (leave to appeal denied David Joseph Lesko v. Kelly Sue Lesko). Rather, the objective is to determine a reasonably fair and equitable remedy which is proportionate to the parties’ respective contributions.
[149] In my view, given the parties entered the relationship without significant assets, they should share, as best as can determined, the global wealth accumulated by their joint efforts during the relationship.
[150] The value of Vincent’s pension accumulated during the relationship was $293,514. When discounted for income tax, the pension value provided for Vincent’s pension was $243,030 (82.8% of $293,514.).
[151] The value of Cameron’s pension accumulated during the relationship was $40,208. When discounted for income tax, the pension value provided for Cameron’s pension was $34,780 (86.5% of $40,208).
[152] The discounted values of the pensions are, in my view, the best means to calculate the difference between the parties’ respective financial position at the conclusion of the relationship.
[153] The difference amounts to $208,250. One half of that difference to approximate the amount which equalizes the pension benefit each acquired during the relationship is $104,125. That amount is the sum which, in my view, Vincent should pay to Cameron to compensate her for Vincent’s unjust enrichment.
[154] The net proceeds from the sale of the home totalled amount of $395,688.70. Each would have been entitled to one half of these proceeds.
[155] $50,000 has already been received by Cameron, which sum is to be credited against her share of the proceeds.
[156] Cameron also received $6,000 which was to pay a cost award made to her and this amount is to be credited against Vincent’s share of the proceeds.
[157] $30,000 has already been received by Vincent, which sum is to be credited against his share of the proceeds.
[158] The remaining proceeds should be disbursed with those amounts already deducted against their respective one-half share save and except that Cameron should receive the sum awarded to her in the amount of $104,125 from Vincent’s remaining share of the sale proceeds.
Part 5 - Additional issues raised in Vincent’s submissions:
[159] Having made my substantive findings on the outstanding issue requiring determination in this proceeding, I wish to also address two other issues raised in the parties’ submissions.
[160] Firstly, Vincent argued in his written submissions that Cameron failed to provide adequate financial disclosure. I do not find that any missing disclosure substantively impacted my ability to make the necessary determination of the outstanding issues. Further, I am not satisfied that any prejudice has been caused to Vincent or that any adverse inference should be drawn against Cameron as a result of missing financial documentation.
[161] I am satisfied that to the extent that Cameron was questioned respecting documentation which was missing (her failure to provide copies of certain bank statements), that Cameron outlined her attempts to obtain these documents from the third-party bank and I consider her explanation to be credible and her efforts reasonable in the circumstances.
[162] I was not therefore prepared to make an adverse inference based upon the fact that historical records were not produced when I accept Cameron’s evidence that the third-party bank had destroyed those records and she was therefore not able to produce them.
[163] Secondly, Vincent asked in his written submissions that I set aside the 2015 Separation Agreement signed by the parties as it “does not comply with the requirements under the Family Law Act or contract law.” I decline to consider this as an issue in this proceeding. It was not pleaded or presented at the outset of trail as an issue for determination.
[164] Cameron has not claimed or relied upon the terms of that Agreement to in any way suggest it is in force or that there is a binding obligation to split Vincent’s pension by virtue of this Agreement. Rather, Cameron’s reliance on the events surrounding the making of that Agreement was, in my view, relied upon simply to corroborate Cameron’s assertion that the parties understood themselves to be in a joint venture with a joint understanding of a commitment to share the fruits of their “joint” labours, including Vincent’s pension. I have already addressed that aspect of the evidence in the body of my analysis above.
Part 6 - Disposition:
[165] I make the following final order:
(1) Vincent shall pay to Cameron the sum of $104,125 as compensation based upon my finding that Vincent was unjustly enriched; (2) The proceeds from the sale of the home shall be disbursed based upon each receiving a one-half share of the net proceeds from the sale subject to: (a) $50,000 being credited against Cameron’s share of the proceeds as already received by Cameron; (b) $6,000 being credited against Vincent’s share of the proceeds, which amount has been paid to Cameron as a result of a cost award made earlier in this proceeding; (c) $30,000 being credited against Vincent’s share of the proceeds as already having been received by Vincent; (d) Unless the parties agree to an alternative arrangement, Cameron shall be paid the sum awarded to her in the amount of $104,125 from Vincent’s remaining share of his one- half share of the sale proceeds. (3) The terms of the Partial Minutes of Settlement dated July 27, 2023 and signed by the parties shall be incorporated into and form part of the terms of this order.
[166] 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. Cameron’s submissions shall be delivered within 30 days. Vincent’s submissions shall be delivered within 45 days.
Justice M. Fraser Released: November 22, 2024