I.G.E. v. G.F.S.

2002BCSC1800 Citation: I.G.E. v. G.F.S. Date: 20021227 2002 BCSC 1800 Docket: 13363 Registry: Fort St. John

IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: I.G.E.

PLAINTIFF AND: G.F.S.

DEFENDANT

REASONS FOR JUDGMENT (IN CHAMBERS)

OF THE HONOURABLE MR. JUSTICE MEIKLEM Counsel for the plaintiff: R. Smyth Counsel for the defendant: J.D. Hope Date and Place of Hearing: November 1, 2002 Fort St. John, BC

INTRODUCTION [1] The parties commenced a marriage-like relationship in approximately November 1989. At that time the plaintiff was a 43 year old widow and the defendant was a 55 year divorcee. Their cohabitation ended in April of 1999. This summary trial dealt with the issue of the plaintiff's constructive trust claim to an interest in the defendant's property and her claim for spousal support. [2] In respect of the spousal support claim the plaintiff obtained an interim order in February of 2000 for spousal support in the sum of $1,000 per month. The defendant was late in making some of the spousal support payments and some were paid only after enforcement proceedings were taken. The interim maintenance obligation was reduced to $500 per month on September 30th, 2002 following the defendant's submissions that he was undergoing cancer treatments and was unable to afford to pay $1,000 per month. THE PLAINTIFF'S CONSTRUCTIVE TRUST CLAIM [3] With the exception of sharing the use of a residence which Mr. G.F.S. built shortly after the commencement of their relationship, the parties kept their assets separate throughout their relationship and did not commingle any of their money or other assets. When their relationship commenced the plaintiff had approximately $50,000 worth of assets from her late husband's estate. During the relationship she purchased her own clothes and personal

toiletries but she did not contribute any funds to the upkeep of the residence or for joint living expenses. She purchased groceries with funds supplied by the defendant and she performed the cooking, laundry and housekeeping services. These household services benefited the defendant approximately 50% of the time because his work as an oilfield consultant involved staying in camps away from home on a seasonal basis. [4] The plaintiff also performed regular errands for the defendant's company, G.[ ] Ltd.., which supplied his consulting services to the oil drilling industry and also derived rental income from renting well site trailers and some occasional water well drilling. She occasionally made out some invoices for him, picked up and delivered parts, and delivered bookkeeping records to his bookkeeper. She also occasionally made bank deposits and wrote cheques to pay the company's payables. She did not receive direct regular remuneration for these errands and services to the company but on occasion she cleaned trailers that were returned at the expiry of rentals and she was paid directly for that chore. [5] The plaintiff's only direct contribution to the construction of the residence was staining the deck. She contributed approximately $1,500 to $2,000 to curtains, window coverings, bedspread and pillow shams. [6] The defendant purchased the plaintiff a one-year old

automobile in 1994 at a cost of approximately $23,000. She had exclusive use of this automobile and paid for the insurance and operation of it, including some of the maintenance. [7] In addition to claiming that the defendant was enriched by the services described above, which the plaintiff concedes were relatively modest in value, the plaintiff puts forward a rather novel claim to which she attributes considerable value, namely: her forbearance from suing the defendant during the course of their relationship for damages she sustained in a slip and fall accident on December 20th, 1993. This accident happened while the plaintiff and defendant were leaving their home together and walking towards his vehicle. She slipped on ice which had accumulated on the driveway and broke her ankle. [8] Ms. I.G.E. was hospitalized for 3 or 4 days and was in a cast for 6-1/2 weeks. Several months later an infection developed and she underwent a removal of the stabilizing pins and required another 2 weeks of hospitalization. She attended a specialist in November of 1996. She must continuously wear a brace and has a plate and screws permanently attached to the interior of her ankle. Her ankle is still deformed and she walks with a pronounced limp. [9] The only case authority cited by plaintiff's counsel on this ankle injury issue was Marchand v. The Board of School Trustees of School District No. 40 (New Westminster), [1997] B.C.J. No.

2889. The sole applicability of the Marchand case is to serve as a guide for quantum of damages for roughly similar injuries. Damages were assessed in that case at $86,000, including $60,000 for non-pecuniary damages. [10] The plaintiff's October 10th, 2002 affidavit, paragraph 19 states: Until very recently, I never considered suing the defendant or G.[ ] Ltd.. over the 1993 accident. We were living together in a relationship that I expected to last a lifetime. Furthermore, following the accident, the defendant provided me with all the help and support that I would have expected if we had been legally married. [11] The plaintiff's affidavit goes on to say that she has received legal advice to the effect that the limitation period has expired in relation to the accident and that she has been advised that she may have been entitled to a substantial award. There is no evidence that she has received a legal opinion concerning the prospective chances of success had such a claim been made within the limitation period. It is by no means clear that she would have had a viable claim against the defendant in respect of the slip and fall considering that she was at the very least a co-occupier of the premises and in fact was the sole occupant of the premises for significant portions of the year usually during the winter months. [12] There is a dearth of evidence as to the circumstances

permitting this court at this time to assess the potential viability of any such lawsuit, but an equally significant shortcoming in the plaintiff's submission is that her evidence does not demonstrate a conscious forbearance in consideration of the relationship or the quid pro quo of perpetual support. Rather she asserts that she never considered suing the defendant or his company for the 1993 accident until very recently. [13] Even if both of those very serious shortcomings did not exist, the defendant asserts that no enrichment of himself has occurred because even if he had been held liable for the plaintiff's injuries he would in all likelihood have been indemnified by the insurer under his homeowner's policy. [14] The defendant takes the position that his contributions to the plaintiff during their years of cohabitation far outweighed the plaintiff's contributions to him. He points to the fact that he paid for the basic necessities of life for the plaintiff, providing her with a home, a vehicle, food, and a medical insurance plan in exchange for household services for him when he was at home and miscellaneous services to the company when he worked in camp. He suggests that his contributions enabled her to preserve the assets that she had at the commencement of their relationship. He asserts that his personal and corporate assets have not increased in value and are of equal

or less value than they were at the commencement of their relationship. [15] The defendant's residential premises are appraised at $273,000 as of February 2001. The plaintiff's counsel, relying on examination for discovery responses by Mr. G.F.S., suggests the hard costs of construction were approximately $247,000 and that there is therefore approximately $26,000 of increase in value. However that approach does not take into account Mr. G.F.S.'s evidence that he did a great deal of the construction work himself including electrical finishing, installation of doors and windows and plumbing. The facts of this case therefore are distinguishable from Harrison v. Kalinocha (1994), 90 B.C.L.R. (2d) 273 (B.C.C.A.) where it was found that there had been a net appreciation in the value of property calculable by subtracting from the current value the capital contributed by the defendant to the purchase and to renovations, interest on the capital of mortgage rates and conveyancing fees and property taxes. [16] On the whole of the evidence before me on this application I do not find the elements of unjust enrichment established. I dismiss Ms. I.G.E.'s claim to a constructive trust interest in Mr. G.F.S.'s real estate or corporate assets. I will turn now to the issue of spousal support.

SPOUSAL SUPPORT

ENTITLEMENT [17] The defendant clearly assumed responsibility for the support and maintenance of the plaintiff during their relationship. That is the implicit corollary of his assertion that his contributions in the form of a home, a vehicle and all necessities of life clearly outweighed the plaintiff's contributions to the relationship. [18] Section 89 of the Family Relations Act sets out the spousal support obligation and the factors to be considered in assessing that obligation, as follows: 89(1) A spouse is responsible and liable for the support and maintenance of the other spouse having regard to the following: (a) the role of each spouse in their family; (b) an express or implied agreement between the spouses that one has the responsibility to support and maintain the other; (c) custodial obligations respecting a child; (d) the ability and capacity of, and the reasonable efforts made by, either or both spouses to support themselves; (e) economic circumstances. (2) Except as provided in subsection (1), a spouse or former spouse is required to be self sufficient in relation to the other spouse or former spouse. [19] The plaintiff seeks a maintenance order binding upon Mr. G.F.S.'s estate in the event of his death, citing as authority Tyerman v. Tyerman, Unreported, Vancouver Registry Docket D105425, October 19, 1999, (B.C.S.C.), which relied upon Linton v. Linton (1990), 30

R.F.L. (3d) 1 (Ont. C.A.). [20] I think the circumstances of this case are more suited to a lump sum maintenance award than to an order binding Mr. G.F.S.'s estate. The following are some of the factors leading me to that conclusion: a) An award binding upon his estate for the lifetime of Ms. I.G.E. as requested by her could be an unjustly large burden upon his estate and would not promote self-sufficiency on the part of Ms. I.G.E.; b) A spousal maintenance order with an indefinite term would be a hindrance to Mr. G.F.S. for estate planning purposes and in the event of his death would be troublesome for the estate, potentially precluding distribution to his heirs; and c) Mr. G.F.S. does have a considerable net worth and an appropriate periodic spousal maintenance award would probably cause Mr. G.F.S. to liquidate some investments or other capital assets in any event. It does not seem likely, due to the nature of his capital assets that this would be done on a monthly periodic basis.

QUANTUM [21] Ms. I.G.E. was approaching the end of her working life as a motel housekeeper due to her diabetic neuropathy when the relationship started. The relationship itself did not preclude her continuing to work as a housekeeper but she clearly felt she did not need to. She has not made any efforts to obtain employment since the separation. Clearly she is further disabled from various types of employment due to her ankle injury but she could obtain sedentary employment of some kind and she must pursue self-sufficiency more diligently than she has to date. [22] Mr. G.F.S. is now retired and no longer has the $65,000 per year income that he was drawing from his company. His corporate financial disclosure only goes so far as the fiscal year end of August 31st, 1999, but this was more than one year subsequent to his retirement so there is an entire year of corporate revenue excluding consulting fees formerly routed through the company. His average gross corporate revenues in the four-year period of 1995 to 1998 inclusive were $166,000. His 1999 revenue was $92,746. Mr. G.F.S.'s declared 2001 personal income was $24,085, including $11,400 in draws from his company, $5,000 in Old Age Security Pension and $6,700 in Canada Pension Plan payments. Reference to the Price Waterhouse Cooper's 2001 matrimonial tax tables indicates that with a monthly salary of $2,000 and a monthly

deductible maintenance obligation of $1,000 Mr. G.F.S. would have retention of only $841. Those same tables indicate that without other income Ms. I.G.E. would retain $941. [23] Ms. I.G.E. in fact has pension income of $11,000 per annum. [24] A spousal support payment of $500 per month would roughly equalize their retained income if Mr. G.F.S. continues to draw approximately $1,000 per month from his company. [25] I note that the financial statements for G.[ ] Ltd.. allocate $48,394 to depreciation in the 1999 fiscal year but this is not inconsistent with the practice in previous years. I note that $55,367 was allocated to depreciation in 1998 and $60,537 in 1997. Mr. G.F.S.'s evidence is that he must replace the rental units regularly to maintain the revenue stream, and there is no greater income available to him from the company since his retirement. I accept that. [26] I conclude that $500 per month would be an appropriate spousal maintenance award on a periodic basis, and that it should be payable for 10 years. I therefore, will award a lump sum maintenance award of $52,000, roughly equivalent to the present value of such an award, discounted at 3% per annum. "I.C. Meiklem, J." The Honourable Mr. Justice I.C. Meiklem