J.J.G. v. K.M.A.

2009 BCSC 1056 J.J.G. v. K.M.A.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: J.J.G. v. K.M.A., 2009 BCSC 1056 Date: 20090804 Docket: E072565 Registry: Vancouver Between: J.J.G. Plaintiff And K.M.A. Defendant Corrected Judgment: The text of the judgment was corrected at paragraphs 29 and 66 on August 6, 2009 Before: The Honourable Madam Justice Dardi Reasons for Judgment Counsel for Plaintiff: L. J. Mattingley Counsel for Defendant: F. Lamer Place and Date of Hearing: Vancouver, B.C. September 8-12, October 6-7, 9-10, December 1-3, 2008 and January 16, 2009 Place and Date of Judgment: Vancouver, B.C. August 4, 2009

INTRODUCTION [1] The plaintiff, J.J.G., cohabited with the defendant, K.M.A., from 1996 to June 2007. J.J.G. asserts that the parties were "spouses" as defined in the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA] and he seeks an order for spousal support from K.M.A. To succeed with his claim, he must establish that the parties lived in a "marriage-like" relationship for more than two years, and that he brought his claim within one year of the termination of that relationship. [2] J.J.G. also seeks monetary compensation from K.M.A. on the basis of unjust enrichment and conversion. [3] It is K.M.A.'s position that, although the parties cohabited as husband and wife for a period of time, for several years before they terminated cohabitation in June 2007, they had been living together as roommates and had long ceased their spousal relationship. Accordingly, she contends that J.J.G. is not legally entitled to any spousal maintenance under the FRA. She further asserts that he has not met the burden of proof in relation to his claims for unjust enrichment and conversion. [4] In rendering these reasons for judgment, I have not considered any affidavit evidence nor the contents of any documents that are not part of the record.

ISSUES [5] The following issues arise from J.J.G.'s claims: (i) Did the parties live in a "marriage-like" relationship within one year of commencing this action? (ii) Is J.J.G. entitled to spousal maintenance under Part 7 of the FRA and, if so, in what amount? Should the Spousal Support Advisory Guidelines ("SSAG") be applied in this case? (iii) Has J.J.G. made out a claim of unjust enrichment? (iv) Has J.J.G. made out a claim for conversion?

THE PARTIES [6] J.J.G., who was born in Portugal, is 65 years old. He works as an apartment building manager in North Vancouver where he has been employed as such since 2002. J.J.G. previously worked as a bookkeeper. Although he received some training in Portugal, J.J.G. has never obtained any formal accounting designation. He receives a modest income from the building manager position. He also receives some pension income. He was previously divorced and has one adult son, R.G., age 32, who testified at trial. [7] K.M.A. is 48 years old. She is a paralegal at a law firm, and works supplemental hours as a contractor for another lawyer. From April 2003, until February 2007, she was self-employed. She has been divorced twice previously. She has one adult daughter, J.A., age 27, who testified at trial.

CREDIBILITY [8] In this case, there were significant disputes in relation to important facts and it is appropriate therefore, at this juncture, to comment on the credibility of the parties. My findings on essential facts are addressed later in these reasons. [9] I have concluded that there were truthful aspects to the evidence of each of the parties and, conversely, that each exaggerated or misrepresented other portions of their testimony. The parties gave markedly conflicting testimony with respect to the circumstances of their relationship. [10] The assessment of credibility in this case was made more complicated because English is not J.J.G.'s first language. Given that his command of English is not comprehensive, I conclude that at times J.J.G. was confused with the subtleties counsel was attempting to elicit. The termination of his relationship with K.M.A. and the ensuing proceedings have clearly caused him significant anxiety. However, he admitted to misrepresenting his qualifications on a resume and to collecting social assistance while he was working, which he characterized as "bad judgment". There were inconsistencies in his evidence with respect to K.M.A.'s contributions to living expenses prior to 2002. In the end, I conclude that his evidence concerning the present claim must be cautiously examined. [11] K.M.A. presented as somewhat resentful about this litigation.

She was argumentative in cross-examination. [12] There were inconsistencies in her evidence on material points such as when the spousal relationship ceased and when the "shared-living arrangement" commenced. Significantly, in an affidavit sworn three months before the parties ceased cohabitation, K.M.A. referred to J.J.G. as her husband. She testified that she did not consider this "as lying" because that was her role in the apartment building. [13] I have concluded that I prefer the evidence of J.J.G. with respect to the issue of the nature of the parties' relationship. For the reasons that follow, I find that K.M.A.'s evidence at trial, with respect to this issue, is inconsistent with the preponderance of the probabilities of the situation. MARRIAGE-LIKE RELATIONSHIP [14] Much of the conflict in the evidence relates to the issue of the proper characterization of the parties' relationship and, in particular, whether they lived in a "marriage-like" relationship within one year of J.J.G. commencing this action in August 2007. [15] K.M.A. concedes in her statement of defence that the parties lived as husband and wife. However, she contends that well before August 1, 2006, their relationship had become one of economic convenience akin to a platonic roommate relationship. In support of her submission, she testified as follows: (i) The parties took a limited number of vacations

together after 2000; K.M.A. went on weekend trips with her girlfriends, and in November 2006, K.M.A. travelled to Hawaii with her girlfriends. (ii) According to K.M.A., the intimacy aspect of the relationship ceased in 1999. (iii) The parties maintained separate finances and, although K.M.A. had a credit card from J.J.G.'s MBNA account, he reconciled their individual expenses monthly. (iv) Neither party made estate plans for each other, preferring to leave their estates to their respective children. (v) The parties lived largely separate lives with no emotional attachment and they ceased entertaining except for Christmas Eve dinners and occasional dinners with K.M.A.'s friend, D.G. (vi) In 2004, K.M.A. sought financing to purchase her own apartment. (vii) K.M.A. only represented herself as J.J.G.'s wife in the Chesterfield apartment building so that she could have standing to attend to tenancy issues. (viii) At her request, J.J.G. set-off $1,500 from monies K.M.A. owed him to compensate her for three missed days of work while attending tenant dispute hearings at the Residential Tenancy Branch and B.C. Supreme Court.

1. Chronology [16] In 1995, J.J.G. answered K.M.A.'s advertisement in the Vancouver Sun Personals and they started living together in the summer of 1996. [17] From 1996 to 1997, the parties lived in a one-bedroom apartment in the West End of Vancouver. [18] Thereafter, the parties lived together in several apartments, most of which offered a rent reduction by virtue of J.J.G.'s employment. [19] From 1997 to 1999, they lived in the apartment, Evergreen, in North Vancouver. This move was necessitated by J.J.G.'s obtaining employment as a building manager with Middlegate Management Ltd. ("Middlegate"). [20] From March to October 1999, they lived in a Middlegate-owned apartment, Hollyridge Arbutus, in West Vancouver. [21] From November 1999, to August 2000, they lived in a Middlegate-owned apartment complex, Oxford, in North Vancouver. [22] Middlegate terminated J.J.G.'s employment in approximately July 2000. He received three months' severance and employment insurance benefits for one year. He then received social assistance. [23] The parties travelled to Portugal in the summer of 2000 to visit J.J.G.'s family. They bought wedding rings in order to hold out that they were married during this trip. [24] After returning from Portugal in September 2000, until January 2002, the parties lived in an apartment complex at Riverside Drive, North Vancouver. During this period, J.J.G. was

unemployed; however the parties cared for an autistic teenager for which they were paid $1,200 per month for nine months. They subsequently took care of another foster child on weekends until April 2003. [25] At the end of 2001, J.J.G. was hired by North Van Apartments Ltd., owned by Graham McLean, to manage an apartment complex "Chesterfield" in North Vancouver. J.J.G.'s employer provided him with a two-bedroom apartment as part of his compensation. The parties moved in February 2002 and they resided together at Chesterfield until their separation on July 1, 2007. [26] A few months after the parties commenced cohabitation, K.M.A.'s daughter, J.A., moved in and lived with them until approximately July 2000. During this period she occasionally moved out. After July 2000, she lived with the parties intermittently, including from March 2004, until the summer of 2004. [27] In June 2007, during a barbeque for K.M.A.'s father's birthday, J.J.G. threatened to "duct tape" J.A.'s infant son. J.J.G. left the event on his own. [28] After that upsetting incident, K.M.A. advised J.J.G. that she would be moving out. On the weekend of June 9, 2007, K.M.A.'s daughter and her fiancé were married. K.M.A. spent that weekend at her sister's home where the wedding took place and J.J.G.'s son and daughter-in-law were the couple's witnesses. J.J.G. did not attend the wedding. [29] K.M.A. left Chesterfield on July 1, 2007.

2. Legal Principles [30] In order to succeed with his claim, J.J.G. must establish that he was in a "marriage-like relationship" with K.M.A. for at least two years, and that he brought his application for spousal support within one year after they ceased to live together in that marriage-like relationship. It is the cessation of the marriage-like relationship that starts the limitation running, not the cessation of the cohabitation. Therefore, the fact that the parties lived together in the same apartment until July 1, 2007, is not determinative of this issue: Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264 (C.A.). [31] The court has recognized the difficulty of examining a relationship after its dissolution in order to determine whether it had the characteristics of a marriage: Ford v. Werden (1996), 27 B.C.L.R. (3d) 169 (C.A.). [32] The starting point for the analysis is the legal test articulated in Gostlin at 268: If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been 'Yes', then they are living together as husband and wife. If the answer would have been 'No', then they may be living together, but not as husband and wife. Of

course, in the particular circumstances of any case, the answer to that question may prove elusive. If that is so, then other, more objective indicators may show the way. Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment. Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependent on the other, in accordance with a mutual arrangement? [33] The Court of Appeal in Austin v. Goerz, 2007 BCCA 586, clearly articulated that some level of financial dependence is not a necessary component of a "marriage-like" relationship. As the trial judge in Austin observed, such a principle would be untenable in the context of modern society's marriages and relationships. How the parties arrange their financial affairs is but one factor to be considered in the analysis of whether a relationship is "marriage-like". Likewise, shared shelter, sexual and personal behaviour, services, social activities, and social perception of the couple, as described in Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont.

Dist. Ct.), are factors to be considered. [34] In modern society, however, there is no "checklist of characteristics" that will be found in all marriages or "spousal-equivalent" relationships: Austin. Rather, in undertaking the analysis of what constitutes a marriage-like relationship, the court should take a broad view in order to reflect the diversity of spousal relationships that exist in modern society. [35] The focus of the inquiry is on the parties' intention to live as "husband and wife" or in a "marriage-like" relationship as "divined" from an objective overview of the facts. The comments of the majority decision in Takacs v. Gallo (1998), 157 D.L.R. (4th) 623 (B.C.C.A.) at para. 53, are instructive: [53] By the same token, of course, subjective or conscious intentions may be overtaken by conduct such that whilst a person living with another might not say he or she was living in a marriage-like relationship, the reality is that the relationship has become such. [36] The Court states at para. 55 that, while objective factors will be relevant to determining the intention of the parties, those factors will rarely be determinative in and of themselves. [37] In summary, in undertaking an analysis of whether persons are living together as spouses, the court must examine the relationship as a whole and consider all the various objective criteria referred to in the authorities.

The presence or absence of one particular factor will not be determinative. The court must recognize that each relationship is unique and, in applying a flexible approach within the context of the particular relationship, make a determination as to whether the parties intended to and were living in a marriage-like relationship. [38] With respect to what constitutes a termination of a common-law relationship, Binnie J. in Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, cited with approval the observation of Morden J.A. in Re Sanderson and Russell (1979), 24 O.R. (2d) 249 (C.A.) at 432: Subject to whatever provision may be made in a statute, a common law relationship ends "when either party regards it as being at an end, and by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one." See also Gosbjorn v. Hadley, 2008 BCSC 219. [39] In analyzing whether a couple has ceased living in a marriage-like relationship, the key factors include the absence of sexual relations, a clear statement by one of the parties of his or her intention to terminate the relationship, the physical separation of the parties into different rooms of the same house or different residences, and the cessation of the presentation to the outside world that they are a couple: Eisener v. Baker, 2007 BCSC 83.

3. Analysis A. Vacations [40] The parties travelled to Mexico together in 2001. After the move to Chesterfield, the parties continued to vacation together. They travelled to Salmon Arm on at least two occasions. In June 2006, they went on an Alaska cruise with K.M.A.'s father and his companion. The parties shared a cabin on the cruise. [41] In 2005 and 2006, J.J.G. and K.M.A. took day trips together to Gambier Island and to the Whistler area for the purpose of looking at properties to purchase. [42] In November 2006, J.J.G. also paid for K.M.A. and her various family members to attend his birthday celebration in Whistler. He paid for their dinner and hotel accommodation. [43] The parties were planning another trip to Portugal together in 2007, but the trip had been postponed to 2008. [44] In the circumstances, I conclude this evidence supports a finding of a committed relationship. I am not persuaded that the fact K.M.A. took a one-week vacation without J.J.G. in November 2006, and that she went on an occasional weekend trip with her girlfriends is inconsistent with a marriage-like relationship. J.J.G. had no interest in accompanying K.M.A. to Hawaii once he learned that Diane Gerard, whose company he did not enjoy, would be on the trip. B. Marital Relations [45] The parties shared the same bed throughout the relationship. J.J.G. stated that they continued to have an intimate

relationship until separation. K.M.A. testified that the parties had not had sexual relations since 1999. In an affidavit sworn earlier in the proceedings, she deposed that those relations had ceased in 2000. [46] In October 2005, the parties purchased a plasma mattress for approximately $4,900. They contributed equally to the cost. They shared this bed until they separated. As referred to earlier, they shared a bed on the Alaska cruise in 2006. [47] In November 2006, while K.M.A. went on a trip to Hawaii with her girlfriends, J.J.G. arranged to remodel the second bedroom for K.M.A. to use as an office. The significant fact is that instead of sleeping in the second bedroom, K.M.A. continued to sleep in the same bed and in the same bedroom with J.J.G. [48] J.J.G. testified that he was committed to the relationship, and he always believed K.M.A. was likewise committed. He was faithful to her throughout the relationship. There was no evidence of either party being involved with anyone else during the period of cohabitation. It is a reasonable inference that they shared expectations of fidelity. [49] I do not find K.M.A.'s evidence plausible that she only agreed to share the plasma mattress because she and J.J.G. both suffered from back problems. I conclude that they had an intimate relationship from 1996 to 2007. C. Financial Affairs [50] Much was made at the trial by counsel for

K.M.A. that the parties maintained separate finances. However the authorities are clear that financial independence is not a determinative factor. (i) Sharing of Expenses [51] In any case, I find that after the move to Chesterfield in early 2002, J.J.G. depended on K.M.A.'s contributions to meet his expenses. K.M.A. contributed $400 and paid the bi-monthly hydro bill of approximately $25 per month, which was the equivalent to one-half of the monthly rental benefit J.J.G. received by virtue of his employment. K.M.A. also admitted in cross-examination that she paid the Shaw cable expenses. J.J.G.'s employer paid the monthly telephone charges. [52] Additionally, both parties used J.J.G.'s MBNA MasterCard thereby accumulating World Points. From the time J.J.G. acquired this card in 2002, K.M.A. also had a card on the same account. J.J.G. reconciled the purchases monthly by segregating common expenses and personal expenses. J.J.G. also ordered a card for his son R.G. in 2006. [53] All of their personal and common expenses were adjusted by J.J.G. shortly after the end of each month to determine what each party owed in order to arrive at an equal split of common expenses and to ensure that each assumed the cost of their personal expenses. The parties also did incur expenses, such as for food, on their own but these expenses were not accounted for unless they were made on the MBNA

card. On occasion, J.J.G. treated K.M.A. to a restaurant meal. They shared the costs of groceries because J.J.G. was no longer doing the majority of the cooking. [54] The evidence of both parties on how they shared expenses up until the move to Chesterfield was inconsistent and not well-developed. K.M.A. alleges that up until the move to Chesterfield, the sharing of expenses was "casual": she paid half of "grossed-up" rent for the entire duration of the relationship, except that J.J.G. paid more than one-half the rent at the Hollyridge Arbutus apartment. She also stated that at the Nelson Street property she paid a significant amount more of the expenses than J.J.G. She also points to the period of time they resided at Riverside when J.J.G. was unemployed. On cross-examination, she testified that up until the move to Chesterfield, she probably paid more than her share of expenses. [55] J.J.G.'s testimony in chief was inconsistent as to when K.M.A. commenced paying one-half of the net rent. He stated at one point that she commenced paying when they moved to the Oxford apartment. He later testified that she did not contribute to the rent at Oxford. However, he testified that when she did not make any contribution to rent, she paid for the groceries and household expenses. They split the cost of restaurant meals. [56] In cross-examination, he maintained that K.M.A. never

contributed to the net rent prior to the move to Chesterfield, which contradicted his evidence at his examination for discovery that she always paid her share of the net rent. [57] I find that over the totality of their cohabitation period up until the move to Chesterfield, the parties effectively shared their living expenses equally including sharing the benefit of the rental reduction that was provided by virtue of J.J.G.'s employment as a building manager. Since J.J.G. did the majority of the cooking during this period of time K.M.A. paid for the groceries. They shared expenses except when they went out of dinner. They shared their travel expenses even in the period K.M.A. concedes that they were living in a spousal relationship. Both were in relatively modest financial circumstances and each contributed to expenses as their circumstances permitted at any given time. (ii) Intermingling of Assets [58] Although for the most part, the parties kept their financial assets separate, they had done so since the commencement of their relationship. This is not surprising given that K.M.A. had been divorced twice previously, and J.J.G. once before. However, they did purchase furniture and personal property together. [59] In 1998, the parties opened a joint bank account at Canada Trust. After the merger with Toronto Dominion Bank, the account was held in J.J.G.'s sole name. [60] In

2002, K.M.A. and J.J.G. opened another joint account at Scotiabank. J.J.G. testified that they originally planned to use the account to save money for travelling or for a down payment on an apartment although the account was never used for this purpose. Each of the parties deposited $1,000 into the account. The funds they were paid for caring for the foster children were to be deposited into this account. K.M.A. only deposited $960 of the $20,315 received on account of the foster children into the joint account. She contends that she applied the balance of those payments to the expenses the parties incurred in relation to the children and to the parties' living expenses for the period that J.J.G. was unemployed. K.M.A. withdrew most of the funds from the Scotiabank account and the account was closed in 2007. [61] In early 2005, the parties each invested $2,000 in a small business venture, which was ultimately unsuccessful. [62] At her request, in 2007, J.J.G. added K.M.A. as a joint account holder to his chequing account to facilitate the deposit of her cheques for her work as an independent contractor. He deposited her cheques and then, after payment of any expenses she owed to him, paid her in cash. This also prompted J.J.G., in January 2007, to place K.M.A. as a joint account holder on his savings account and brokerage account. [63] J.J.G. testified that he expected K.M.A.

to help him financially during his retirement. K.M.A. contends that his evidence on this point was inconsistent with his previous testimony that he did not expect K.M.A. "to take care of him" when he retired but rather she would "be in my company". Particularly, given that English is not J.J.G.'s first language, I do not find his evidence on this point inconsistent. [64] I have considered how the parties arranged their financial affairs as one factor to be considered in the analysis of whether their relationship was "marriage-like." [65] In summary, I find that there was no significant difference in how the parties conducted their financial affairs during the period K.M.A. alleges they were roommates and the period she concedes they lived as husband and wife. D. Estate Planning [66] I accept J.J.G.'s evidence that his intention in adding K.M.A. as a joint owner on his savings account and his brokerage account was to facilitate his estate-planning. K.M.A. admitted that she agreed to this on January 24, 2007. I find this evidence consistent with a marriage-like relationship. His stated intention was that upon his death, K.M.A. would divide the net proceeds equally between herself and R.G. after payment of testamentary expenses. I find implausible K.M.A.'s explanation that, although J.J.G. intended that his son be his sole beneficiary, he undertook the step of adding her as a

joint tenant on his accounts because he did not trust his son to be a joint account holder during his lifetime. It is noteworthy that after the separation, J.J.G. arranged for his son to be named as the joint account holder. [67] K.M.A. testified that she designated her daughter as the beneficiary of her RRSPs. This does not assist her as it was her evidence that the parties agreed early in their relationship that their estates would devolve to their respective children. [68] In any case, for purposes of estate planning, it is not uncommon for spouses in second marriages to prefer to designate only their children as beneficiaries or for only one spouse to include the other in their estate planning. E. Other Factors [69] In her testimony, K.M.A. described J.J.G.'s cyclical bouts of excessive alcohol consumption. K.M.A.'s daughter and K.M.A.'s friend, Diane Gerard, both testified regarding arguments between the parties and the exchange of derogatory remarks, particularly when J.J.G. was drinking. [70] K.M.A. had ample opportunity to have gone her own way. It is difficult to conceive that, had she not been committed to the relationship, she would have tolerated J.J.G.'s behaviour that she described in her testimony. [71] The essential inquiry is the existence of a marriage-like relationship; not the quality of that relationship. I agree with the observation of the Court in J.A.B.

v. H.W.C., 2008 BCSC 644 at para. 115 that: "Just as not all marriages flourish, marriage-like relationships are not all healthy." The fact that a relationship may have been unhappy or temptuous at times does not support a finding that no marriage-like relationship existed or that the relationship ceased to be marriage-like. [72] I have also considered Mr. MacLean's evidence that the parties appeared to be in a committed relationship. R.G. also testified that the parties presented as husband and wife up until June 2007, and that his father was "practically destroyed" in June 2007. I found his evidence credible. R.G. was forthright when he could not recall details and testified with candour regarding his father's problems with alcohol consumption, which occasionally incited arguments between the parties. [73] In approximately 2005, the parties went for the day to Gambier Island with another couple, the Switzers, who were tenants in Chesterfield, to look at a property. The parties took the Switzers out for dinner in Vancouver to show their appreciation. Mr. Switzer was an objective, straightforward, and responsive witness whom I found to be very credible. He testified that the parties presented as a couple interested in their future together and who were very fond of each other. Sometime before the separation, Mr. Switzer and his wife had invited the parties for dinner but the

date had not yet been coordinated. Mr. Switzer learned of their separation when J.J.G. arrived at his apartment door one evening. He described J.J.G. as crying and "absolutely stricken". [74] While this evidence is not determinative, it is relevant to the manner in which the parties were holding out their relationship and how their relationship was perceived by others. [75] J.A. and Diane Gerard were both clearly aligned in interest with K.M.A. Given their clear lack of impartiality, I prefer the evidence of Mr. Switzer, Mr. MacLean, and R.G. on this point. [76] I find the following to be indicia of a marriage-like relationship: (i) I accept J.J.G.'s evidence that he introduced K.M.A. as his wife and she introduced him as her husband. She introduced R.G. as her step-son. (ii) The couple socialized with their respective families. J.J.G. celebrated every Christmas at K.M.A.'s father's home. He also celebrated Thanksgiving, Easter, and birthdays with her family. The parties socialized with tenants in the building. (iii) The parties ate dinner together and watched television together in the evening. (iv) J.J.G. gave J.A. $400 in February 2007, which was a very generous gift from someone with his modest financial wherewithal. (v) K.M.A. did J.J.G.'s Christmas shopping. Christmas and other cards were sent to them jointly from tenants, friends, and family. J.A. gave J.J.G. a Christmas

present in 2006, which she took back when her mother moved out. I have considered that the parties did not buy each other Christmas and birthday presents but they did not do so at any time during their relationship. They did celebrate their birthdays with special dinners. (vi) In 2003, the parties considered purchasing an apartment together. Mr. MacLean had agreed to pay J.J.G. the $850 notional rent if he found an apartment to purchase. K.M.A. conceded in cross-examination that the parties looked for properties to purchase together through 2006, including properties in the Whistler area and on Gambier Island as referred to earlier in these reasons. This is consistent with a finding that they shared future plans. (vii) On June 23, 2003, the parties were in a motor vehicle accident. K.M.A. prepared both of their ICBC statements. In K.M.A.'s statement, she stated: On Monday, June 23, 2003 my husband and I were stopped in bumper-to bumper traffic. At the time we were hit our vehicle was stopped and my head was turned towards my husband who was sitting in the passenger seat. [Emphasis added] (viii) During the parties' relationship, K.M.A. took J.J.G. to various of his medical appointments and surgeries. She drove him to Mr. McLean's office after his eye surgeries. In 2005, when J.J.G. was diagnosed with a detached retina and was required to undergo emergency surgery, K.M.A. went

with him to the doctor's office and drove him to Vancouver General Hospital. She admitted in cross-examination that she referred to herself as his wife at the hospital. She wrote a statement concerning their experience as follows: Recently, my husband required emergency surgery for a detached retina ... I can't imagine what effect this has on an elderly spouse with high blood pressure because I'm sure mine was up there all afternoon just wondering what the hell was going on. [Emphasis added] [77] During 2006, the parties experienced difficulties with respect to a tenant's eviction notice, which was referred to the Residential Tenancies Branch. In early 2007, K.M.A. prepared response documents on behalf of North Van Apartments Ltd. in which she refers to herself as the manager's wife. [78] As mentioned earlier, on March 14, 2007, K.M.A. prepared and swore an affidavit in a Supreme Court action in relation to the tenant dispute in which she deposes: My husband, [J.J.G.], and I manage the building located at 1730 Chesterfield Avenue. [79] It is noteworthy that K.M.A. swore this statement only three and a half months before the parties separated. Although this is not conclusive, it is a relevant factor in my analysis. [80] In assessing the intentions of the parties, I have considered that they each indicated that they were divorced on their tax returns. K.M.A. prepared both of

their returns. They did so throughout the relationship and in the period K.M.A. admits that they were in a spousal relationship. In any case, the failure to name each other as spouses on their respective tax returns is only one of the many factors to be weighed in the analysis. [81] I accept that when J.J.G. applied for his pension benefits as a single person, he did so with the misguided belief that he was required to do so because of his previous tax filings. [82] The preponderance of the other evidence militates in favour of a finding that the parties shared their lives and intended to spend their lives together. I find that the parties mutually intended to continue in a marriage-like relationship until June 2007. K.M.A.'s assertions to the contrary are overtaken by the reality of her conduct. [83] On all the evidence, I am satisfied that both parties intended to be in a marriage-like relationship at the material times and that the objective factors support a finding that they were living together in a committed relationship as husband and wife until their separation in 2007. F. Alleged Termination of Spousal Relationship [84] I am not persuaded on the evidence that K.M.A. demonstrated in any clear or convincing manner, that she intended to terminate the spousal relationship. Her evidence on the alleged change in the relationship was internally inconsistent. She stated at

various times that termination of the spousal relationship was in 1999, in 2000, in 2001, no later than 2002, and in 2004. [85] When asked on her examination for discovery how she communicated her intentions to J.J.G. she stated: A: "I don't think I needed to communicate it to him. He was there. He knew what was going on as well as I did." [86] K.M.A. alleges that in 2004, she told J.J.G. she would not stay in the relationship, which is denied by J.J.G. K.M.A. testified that she obtained approval for a mortgage in October 2004, so she could move out and buy her own apartment. She stated that J.J.G. begged her to stay and promised he would renovate the apartment. She agreed to stay "as friends". Even if she did threaten to leave, the critical and uncontroverted fact is that she stayed. It strains credulity that J.J.G. would have made such promises and in fact undertaken the remodelling of the second bedroom if they were merely friends or roommates as she contends. [87] In December 2004, the parties together purchased furniture at a cost of approximately $5,000. It is not plausible that, if K.M.A. seriously expressed an intention of leaving him, J.J.G. would commit to purchasing the furniture or that K.M.A. would agree to pay one-half the cost. As referred to earlier, they purchased a new mattress together in October 2005. [88] The evidence establishes on a balance of probabilities that the parties were living in a marriage-like relationship up until June 2007. The parties continued to sleep in the same bed, they presented to the world as a couple, and there was no clear conduct or statement by K.M.A. regarding an intention to terminate the relationship until June 2007. In March 2007, in her own affidavit, K.M.A. described J.J.G. as her husband.

SPOUSAL SUPPORT [89] I have found that the parties were living in a marriage-like relationship from 1996 until June 2007. Thus, J.J.G. brought his application for spousal support within one year of the cessation of the marriage-like relationship. [90] For purposes of determining spousal support, there is no basis for distinguishing between spouses that have formally married and parties who have not: Gostlin.

1. Legal Principles [91] Section 89 of the FRA sets out the obligations of one spouse to support another: 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. [92] Section 93(4) provides the criterion to be considered when making an award for spousal support including: (4) to take into account the needs, means, capacities and economic circumstances of each spouse [93] The principles relied upon to determine entitlement to spousal support under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), apply equally to support claims advanced under the FRA: Kerr v. Baranow, 2009 BCCA 111. [94] The Supreme Court of Canada identified the policy objectives for determining entitlement to spousal support in Moge v. Moge, [1992] 3 S.C.R. 813, 99 D.L.R. (4th) 456; and Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 169 D.L.R. (4th) 577. The Court in Moge enunciated the principles for compensatory support, recognizing that the recipient spouse is entitled to relief for the

economic disadvantage arising from the marriage or its breakdown or the conferral of an economic advantage upon the other spouse as a result of the recipient spouse's efforts: Chutter v. Chutter, 2008 BCCA 507. [95] In Bracklow, the Court expanded the conceptual basis for entitlement to include contractual principles and to include non-compensatory claims based on need or hardship created by the loss of the marital standard of living. The three conceptual models for support are not mutually exclusive. Rather, the Court in Bracklow at para. 32, confirmed that all relevant factors should be considered in "striking the balance that best achieves justice in the particular case before the court." [96] The criterion in s. 93(4) includes compensatory and non-compensatory factors. The Court in Kerr provided the following guidance at para. 82: [82] The non-compensatory model of support is based on a spouse's financial need after separation. As noted by Rowles J.A. in Chutter v. Chutter, 2008 BCCA 507, 86 B.C.L.R. (4th) 233 at para. 54, it "aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, is often referred to as the 'means and needs' approach to spousal support." [97] With respect to the concept of "needs", the Court of Appeal in Chutter observed as follows at para. 55: [55] The concept of "needs" in the context of non-compensatory

spousal support goes beyond basic necessities of life and varies according to the circumstances of the parties. As stated by Finch J.A. (as he then was) in Myers v. Myers (1995), 17 R.F.L. (4th) 298, 65 B.C.A.C. 226, at para. 10: "Need" or "needs" are not absolute quantities. They may vary according to the circumstances of the parties and the family unit as a whole. "Need" does not end when the spouse seeking support achieves a subsistence level of income or any level of income above subsistence. "Needs" is a flexible concept and is one of several considerations which a trial judge must take into account in deciding whether any order for spousal support is warranted. [98] In Yemchuk v. Yemchuk, 2005 BCCA 406, the husband successfully appealed the decision of the trial judge dismissing his claim for spousal support on the basis that he had not established any need. Madam Justice Prowse concluded that the trial judge's analysis of the husband's need as equating to solely whether he could meet his stated expenses with his available income was "unduly restrictive" and "too narrow". In the context of a long-term marriage, the assessment of need must take into account the marital standard of living and the post-separation standard of living. [99] In circumstances when spousal support is ordered on a needs-based analysis, it does not invariably follow that the quantum or duration of spousal support must fully satisfy those needs: Bracklow; T.N.P. v. R.P., 2004 BCSC 1627; Pickford v. Pickford, 2008 BCSC 380; Kripps v. Kripps, [1999] B.C.J. No. 1343 (S.C.).

2. J.J.G.'s Circumstances [100] On November 9, 2007, the court ordered K.M.A. to pay J.J.G. interim support of $582 per month. [101] As at the date of separation, J.J.G. received approximately $317 per month from Canada Pension Plan. He also received a modest employment income of $800 per month, and rental accommodation that was ascribed a value of $850 per month by his employer. His employer paid his basic telephone expenses. The 2007 Petty Cash Reports of the North Vancouver Apartments Ltd. show that on occasion, J.J.G. was paid a small fee for performing tasks such as cleaning blinds. In 2007, he was paid a total of $360 for these tasks. [102] For the most part, after the move to Chesterfield the parties continued to share household and living expenses, although J.J.G. occasionally treated K.M.A. to a restaurant meal. K.M.A. paid him a contribution of $400 per month, even though he was not paying rent. She also paid the B.C. Hydro expense, which was approximately $25 per month. She admitted in cross-examination that she also paid the Shaw cable expense at Chesterfield. Based on the evidence at the post-separation payments, this amount was in the range of $100 per month. Therefore her total monthly contribution was approximately $525. When they made this arrangement in early 2002, K.M.A. was fully aware of J.J.G.'s financial circumstances and that he would be depending on her

contribution. [103] I find that from early 2002, J.J.G. depended on K.M.A.'s contributions to meet his expenses. [104] After the separation, J.J.G.'s employer, Mr. MacLean, agreed to pay him $300 per month as a "building maintenance fee" because without K.M.A.'s contributions, J.J.G. was having trouble meeting his expenses. Mr. MacLean intended this to be a temporary arrangement. According to Mr. MacLean's deposition, J.J.G. indicated he would pay him back. [105] I find it consistent with all the circumstances that Mr. MacLean agreed to make these payments with the intention and the understanding that this was a temporary arrangement and that J.J.G. would pay him back when he was in a position to do so. I accept that, although J.J.G. described these fees as income on his August 2008 financial statement, he feels a moral obligation to pay back these funds to Mr. MacLean. [106] After the separation, as a temporary arrangement, Mr. MacLean also paid J.J.G.'s B.C. Hydro and cable expenses. He did so up until shortly after the interim support order was made in November 1997. Mr. MacLean is no longer paying those expenses. [107] K.M.A. prepared an analysis of the deposits in J.J.G.'s bank account for 2006 and 2007 in an effort to demonstrate that he has undisclosed sources of income. She contends that his deposits exceed his declared sources of income. She admitted in

cross-examination that because she did not have the corresponding deposit slips, some of her analysis was based on a "bit of a guessing game". [108] On the other hand, the analysis undertaken by counsel for J.J.G. shows that J.J.G.'s sources of income or repayments exceeded the amount of deposits by approximately $4,400. This is corroborated by the MBNA card statement for 2007 on which it shows R.G.'s share of those expenses, which he was responsible to pay to his father. [109] K.M.A.'s only explanation for the undisclosed income of J.J.G., with whom she had lived for some eleven years, was that he stole some of the laundry coins from the apartment building that he managed. She admitted in cross-examination, however, that the income from the laundry building had increased after J.J.G. started managing the building. It is also noteworthy that Ms. Gerard testified that during his employment at Chesterfield, J.J.G. had impressed his employer by significantly increasing the laundry revenues in the apartment building. Finally, it does not appear that this allegation regarding the undisclosed laundry monies was raised by K.M.A. at the hearing of J.J.G.'s interim support application. [110] J.J.G. denied in cross-examination that he had undisclosed sources of income. The allegation of the laundry coins was never put to him. [111] Given the lack of cogent evidence on this issue, I am

not persuaded on a balance of probabilities that J.J.G. has undisclosed sources of income, as alleged by K.M.A. [112] In November 2008, when he turned 65, J.J.G. became eligible to receive Old Age Security pension benefits from the Canadian government in the amount of $517 per month. Additionally, he became entitled to a Portuguese pension of approximately $200 per month. [113] Accordingly, I find J.J.G.'s income for determining spousal support is calculated as follows: 1. Wages (including notional rent benefit of $10,200) $19,800.00 2. CPP $3,811.44 3. Portuguese Pension $2,391.48 4. OAS $6,209.64 Plaintiff's Total Income: $32,212.56 [114] J.J.G. has experienced problems with his eyesight and remains under the supervision of medical specialists. He has had six eye surgeries in the last few years, including a detached retina and cataract removal in each eye. He has difficulty reading fine print and has three different pairs of glasses. However, the evidence as to any potential disability arising from any impairment of his vision was not well developed. There was no expert evidence tendered in this regard. Where incapacity is alleged on a support application, independent medical opinion is highly desirable but it is not essential: Leskun v. Leskun, 2006 SCC 25 at para. 28; and Turpin v. Clark, 2008 BCSC 1425. While the evidence does not establish incapacity, I accept that there

is some uncertainty regarding J.J.G.'s medical condition. [115] At the date of separation, J.J.G. had no debt. His savings of approximately $39,000 comprised primarily a personal injury settlement and a small inheritance. As of the date of trial, his savings had diminished to approximately $17,000. He had acquired debt on account of this litigation, which is not a relevant consideration for this Court.

3. K.M.A.'s Circumstances [116] K.M.A. obtained full-time employment as a paralegal with a law firm in February 2007, and her current employment income is $60,900 per year. She also performs contract work for another lawyer at night and on the weekends. There is a dispute as to the propriety of the business deductions she has claimed with respect to her self-employment income. However, there was no cross-examination on this issue nor was there any evidence tendered in this regard. On her own calculation, for purposes of calculating spousal support, K.M.A.'s self-employment income is $11,934.72, and thus I have found her total income to be $72,834.72 [117] K.M.A. declared assets at the date of separation of approximately $115,000 and debt of $38,000. At the date of trial, she had assets of $105,000 plus $30,800 she received as a designated beneficiary on her late father's Registered Retirement Income Fund ("RRIF"). She listed liabilities of approximately $62,000. K.M.A. contributed to her RRSPs with the funds she received from her personal injury settlement, from her salary as a paralegal, and from funds she borrowed. [118] K.M.A.'s father, the late Mr. F., passed away after separation and before trial. K.M.A. was a beneficiary under his will. However, as of the date of his death, all of his assets except for the aforementioned RRIF were held in joint tenancy with K.M.A.'s

sister, Ms. F.-L. Ms. F.-L. was the named executrix of her father's will. She ascribed the date of death value of his assets at approximately $551,000 exclusive of the RRIF. It is undisputed that after this litigation was commenced, Mr. F. changed the joint account holder from K.M.A. to Ms. F.-L. on at least one of his bank accounts. [119] Given that the late Mr. F. named his two daughters as equal beneficiaries of his estate, it can be reasonably inferred that his intention was that K.M.A. would eventually receive a substantial distribution of the assets that devolved to Ms. F.-L. by right of survivorship. K.M.A. admitted on cross-examination that she may indeed receive monies "depending on the outcome of the trial" and that her father did not want J.J.G. to "get any of his money".

4. Analysis [120] J.J.G. is seeking an award for spousal support based on compensatory and non-compensatory grounds. K.M.A. contends that no spousal support should be awarded and that J.J.G. should reimburse K.M.A. for all interim support payments. [121] In analyzing J.J.G.'s entitlement to spousal support, I have considered the duration of the relationship, the ages of the parties, and their "means and needs". [122] J.J.G. is approaching the end of his working years. He has medical issues. Given his current circumstances, it is not reasonable to expect that he has the capacity to secure more remunerative employment, or that he will gain any significant advancement in his employment. [123] J.J.G. is not entitled to spousal support on compensatory grounds. He has not demonstrated that he was economically disadvantaged by the relationship or that K.M.A. benefitted from any sacrifice on his part. The evidence does not support such a finding. J.J.G. never declined any offers of employment in order to accommodate K.M.A.'s desire to live on the North Shore. Nor did he forego opportunities to develop the ability to support himself. Nor has he been rendered less able to support himself because of the adverse effects of the spousal relationship: Bracklow. [124] Is J.J.G. entitled to any support on non-compensatory grounds? K.M.A. contends that for any non-compensatory maintenance to be

payable, there must be a moral obligation of support arising from both the marriage relationship itself and the existence of an illness or disability that impairs a spouse's ability to fulfill his or her obligation to be or become economically independent. The spouse claiming maintenance on such a basis must also show a "disadvantage from the breakdown of the marriage and the loss of financial support from the other spouse" and an inability to become "self-sufficient" at the end of the marriage: Bracklow, paras. 46 and 47. [125] K.M.A. submits that J.J.G. has not demonstrated any need for maintenance because there was no prejudice or reduction in his standard of living after the separation. In addition, she says he has failed to show any form of financial dependency or interdependency with K.M.A. during the course of their relationship. I do not agree. [126] I have concluded that J.J.G. sustained an economic disadvantage on the relationship breakdown because he lost the benefit of K.M.A.'s monthly financial contribution upon which he depended. At the date of separation this contribution was approximately $525 per month. He has also lost the benefit of sharing living expenses, which will inevitably result in some increase in his costs. The assistance he received from Mr. MacLean after the separation was intended to be temporary. [127] His circumstances following the separation

were such that he was in need. [128] However in November 2008, his circumstances materially changed upon the crystallization of his entitlement to approximately $700 in additional monthly pension income. This is more than what he was receiving by way of contribution from K.M.A. He now finds himself in an equivalent or better financial position than in July 2007. [129] While recognizing that in non-compensatory cases, need is not confined to situations of absolute economic necessity, it is a relative concept related to the marital standard of living: W. v. W., 2005 BCSC 1010. The disparity in the income of these parties must be balanced with their financial patterns and expectations during the relationship. They enjoyed a modest lifestyle. The income disparity reflects neither economic disadvantage flowing from the marriage nor economic need because J.J.G.'s present means of support are adequate. The objective of self-sufficiency has been attained. Keeping in mind the marital standard of living, I cannot conclude that J.J.G. has established any present entitlement to spousal support. Any economic hardship he sustained on the breakdown of the relationship was alleviated by virtue of the receipt of the additional pension income. [130] If this Court were to make an award for spousal support--given J.J.G.'s current circumstances--it would be tantamount to improving upon his marital

standard of living. The jurisprudence does not permit such a result on any principled basis. [131] In the result, J.J.G.'s claim for spousal support is dismissed. However, I consider this to be an appropriate case to grant him liberty to apply upon a change of circumstances: Gill-Sager v. Sager, 2003 BCCA 46; and ss. 20 and 96 of FRA. [132] Given my findings, I decline to order any reimbursement of the interim support payments.

UNJUST ENRICHMENT [133] J.J.G. claims on the basis of constructive trust that he is entitled to an interest in K.M.A.'s assets, as compensation for his efforts in managing the household and helping K.M.A. develop her career. K.M.A. submits that J.J.G. cannot succeed because he cannot establish the requisite elements of an unjust enrichment claim.

1. Legal Principles [134] In circumstances where parties have chosen not to marry, there is no presumption of an intention to share in one another's assets: Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R.

325. Rather, it is the equitable concept of unjust enrichment, which has been adopted by Canadian courts in recent decades to remedy any injustice arising upon the dissolution of the relationship of unmarried persons who have cohabited. The doctrine is grounded in good conscience and fairness; restitution is at its root: S.E.M. v. D.G.L., 2005 BCSC 1665. [135] In order to succeed in a claim for unjust enrichment, J.J.G. must establish the following three elements: (1) an enrichment in favour of K.M.A.; (2) a corresponding deprivation suffered by J.J.G.; and (3) an absence of any juristic reason for K.M.A.'s enrichment. [136] The leading case on unjust enrichment in relationships "tantamount to spousal" is the Supreme Court of Canada's decision in Peter v. Beblow, [1993] 1 S.C.R. 980, 101 D.L.R. (4th) 621. It emerges from Peter and the authorities that have followed it, that the contributions that enrich a spouse may arise in a variety of circumstances, and unpaid homemaker, child-rearing duties, and other domestic services may be compensable contributions even in the absence of direct financial contributions. [137] In order for a constructive trust to be found, monetary compensation must be inadequate and there must be a link between the contributions and the property in which the trust is claimed. The extent of these contributions required to give rise to a constructive trust

must be "sufficiently substantial" and "a minor or indirect contribution" is insufficient: Peter. [138] In Peter, McLachlin J. observes at para. 8 that the Supreme Court of Canada "has consistently taken a straightforward economic approach to the first two elements of the test for unjust enrichment." [139] Once enrichment has been found, is there automatically a corresponding deprivation? Such an approach was applied by Mr. Justice Cory in his minority concurring opinion in Peter. However, as observed by the Court in S.E.M. at para. 40, an automatic finding of corresponding deprivation has not been consistently applied in the cases decided after Peter. In S.E.M., the Court observed as follows: [42] It seems to me that where the contributions of the claimant spouse are of the magnitude of those provided by Ms. Peter (and Ms. Becker before her), the notion of automatic deprivation may be difficult to quarrel with. But what of the more minimal kind of contribution? [43] When a deprivation is not presumed from a finding of enrichment, in order to determine whether a deprivation has occurred, the courts look at the direct and indirect contributions of the spouse making the claim, and the effect that the contribution has had on that individual's career or training or opportunities to earn income and whether he or she has forgone remuneration for the services provided. [44] The courts

tend also to be interested in an analysis of whether the contributions of one spouse were offset by the benefits that he or she received during the relationship. This approach is sometimes followed in the context of evaluating whether there has been an enrichment or deprivation and other times under the rubric of juristic reason. For example, in Toth v. de Frias (1996), 78 B.C.A.C. 34, [1996] B.C.J. No. 1620 the Court of Appeal approved the legitimacy of approaching the enrichment/deprivation issue by examining the benefits received by the party claiming the deprivation. At para. 4 the Court stated: In this case the learned trial judge examined the evidence with care and decided that the plaintiff roughly gained as much as she lost in her relationship with the defendant. That is a fact based determination which cannot be overturned unless it is shown to be plainly wrong. [140] In Fuller v. Mathews, 2007 BCSC 444, at para. 82, the Court also held that the plaintiff had not suffered a deprivation because of the benefits she had received: [82] When considering the totality of the evidence in the circumstances of this case, I find that the benefits conferred by the plaintiffs have not resulted in her being unjustly deprived, since the benefits she received from the relationship offset her contributions. [141] The Court in S.E.M. ultimately concluded that it was doctrinally

preferable to consider the benefits conferred upon the plaintiff under the lack of juristic reason branch of the test. This is consistent in the analysis subsequently undertaken by the Court of Appeal in Thomas v. Fenton, 2006 BCCA 299, 269 D.L.R. (4th) 376. This approach was also applied by the Court in J.A.B. [142] The third constituent element a claimant must establish is an absence of juristic reason for the enrichment. Madam Justice McLachlin states in Peter that it is in connection with the third element that moral and policy considerations such as voluntarily assuming a traditional spousal role and performing services arising from natural love and affection should be judged. She observed at para. 8 that "it is at this stage that the court must consider whether the enrichment and detriment, morally neutral in themselves, are 'unjust'." [143] In summary, when embarking upon an inquiry into the absence of juristic reason in a marriage-like relationship, the court must first consider whether the benefits were conferred as a valid gift or pursuant to a contract or other "valid common-law, equitable or statutory obligation": Kerr, para.

65. If not, the court must undertake a global analysis of the facts in order to assess the extent of each party's direct and indirect contributions during the relationship and whether the claimant had a legitimate expectation to share in the other's assets during and after the relationship has ended. In assessing whether any financial inequity arises when the relationship comes to an end, the court must carefully examine the totality of what has passed between the parties and whether, in all the circumstances, the benefits the claimant received during the course of the relationship constituted a juristic reason for denying recovery to the claimant: S.E.M.; Thomas; and Kerr. [144] In Peter, the Supreme Court of Canada noted that in common-law relationships, the balancing of benefits conferred and received "cannot be accomplished with precision" and the court should not realistically or fairly expect the type of evidence that would be adduced in a commercial case: Harrison v. Kalinocha (1994), 112 D.L.R. (4th) 43, 90 B.C.L.R. (2nd) 273 (C.A.). I have approached the task of quantifying the contribution and benefit in this case with a broad view based on the imperfect evidence before me.

2. Analysis [145] It is an uncontroverted fact that J.J.G. made no direct financial contribution to the acquisition or preservation of any of K.M.A.'s assets. [146] K.M.A. frequently worked "flex hours" in the evening and at one point attended night school. [147] J.J.G.'s "spousal services" were modest. He admits that he cleaned the apartment, which was approximately 900 square feet, once a week. While J.J.G. did the majority of the cooking prior to the move to Chesterfield, in the last several years of the relationship the parties frequently ate out or ordered in food. [148] K.M.A. did the laundry and changed the bedding. She cleaned the oven and fridge, and washed the floors. She did the barbequing. She also assisted J.J.G. with tenant disputes and completing various documents such as tax returns. [149] The evidence relating to J.J.G.'s contributions to the care of the foster children was not well-developed; at best the evidence shows that the parties divided the duties associated with the children. [150] In order to succeed in his claim for unjust enrichment, J.J.G. must show that K.M.A. has been enriched as a result of the services he allegedly performed. The evidence does not establish, on a balance of probabilities, that his services enabled K.M.A. to earn more income than she otherwise would have earned or that she was able to accumulate assets because of his services or

contributions. Nor has J.J.G. established that K.M.A. was otherwise indirectly enhanced. [151] I find that J.J.G.'s services were minimal. He did not perform tasks or provide services sufficiently substantial to establish an enrichment of K.M.A. [152] If one were to assume an enrichment of K.M.A., the second constituent element of a claim for unjust enrichment must be addressed. [153] J.J.G. must show a corresponding deprivation arising as a result of the enrichment he bestowed on K.M.A. Unlike the case in many "traditional" common-law relationships referred to in the authorities, J.J.G. did not forego the pursuit of a career, sacrifice his economic or career independence for the relationship, nor did he forego remuneration for providing K.M.A. with domestic services. There was no cogent evidence that J.J.G. ever deprived himself of any income-earning or economic opportunities during the relationship. He did not prejudice himself in the expectation of any benefit. [154] For the period from October 1997, to June 2000, Middlegate provided J.J.G. with a rent reduction as a term of his employment, and J.J.G. contends that K.M.A. benefitted by receiving accommodation for herself, and on occasion her daughter, at a reduced cost. The critical fact is that J.J.G. lost nothing by virtue of his arrangement with K.M.A. I have concluded that over the course of their relationship, K.M.A.

made a roughly equal contribution to their joint expenses. Furthermore, after the move to Chesterfield, K.M.A. paid the equivalent of one-half of the notional rent and the cable and B.C. Hydro expenses. I am not persuaded that J.J.G. suffered any deprivation. [155] Given my findings, it is unnecessary to embark on an inquiry into the absence of juristic reason and whether there is some valid reason to deny recovery to J.J.G. However, for the sake of completeness, I address this final point. [156] It is at this stage I am required to analyze the conduct of the parties and their legitimate expectations in relation to the other's assets, both during and after the relationship has ended: Kerr. [157] I find that, in the context of their unique relationship, an exchange of services was provided by each of the parties to the other with each enjoying some corresponding benefits. Although the balancing of benefits conferred and received "cannot be accomplished with precision", on the balance of probabilities, I find that J.J.G.'s non-financial contributions were no greater than those made by K.M.A. Furthermore, K.M.A. paid for the groceries in the period when J.J.G. did the majority of the cooking which coincided with the period of time J.A. resided with the parties. The reciprocity of the benefits between the parties is fatal to J.J.G.'s claim. [158] Furthermore, J.J.G. admitted that

he did not expect any compensation for the domestic services he rendered. His donative intent constitutes a "juristic reason" that precludes recovery even if an enrichment of K.M.A. and a corresponding deprivation of J.J.G. were established. [159] At the commencement of the relationship, J.J.G. owned some kitchenware furniture, and an automobile requiring repairs. As referred to earlier, at the time of separation, he held approximately $39,000 in investments. [160] K.M.A. entered the relationship with some furniture, a vehicle, and a RRSP worth approximately $5,000. At the date of separation, she deposed that she had approximately $115,000 in savings and RRSPs, and approximately $38,000 of debt. [161] At no time during the relationship did K.M.A. hold out to J.J.G. that he was to acquire any interest in her assets. Nor was there any evidence that J.J.G. expected to share in her assets on a dissolution of the relationship. [162] The evidence does not establish that J.J.G. could have legitimately or reasonably expected to acquire an interest in K.M.A.'s assets upon termination of the relationship, or that K.M.A. knew or should have reasonably known of his expectation. In assessing the nature of their relationship and the totality of what has passed between them, there was nothing unfair in their arrangement. No injustice has been established. [163] In the result, the requisite elements for a claim for unjust enrichment have not been made out and J.J.G.'s claim for unjust enrichment is dismissed. [164] Given my conclusions, it is not necessary to address the appropriateness of the remedy sought by J.J.G.

CONVERSION CLAIMS [165] J.J.G. claims that K.M.A. converted some of his World Points, and wrongfully withdrew $3,000 as a cash advance on his MBNA card on July 13, 2007. K.M.A. does not dispute that she cashed in the World Points and that she did take a cash advance of $3,000 (the "Funds"). She submits that she was entitled to take the World Points. She also contends that subject to a minor monetary adjustment, she was entitled to withdraw $3,000 because of the agreement the parties reached with respect to the division of the personal property. [166] J.J.G. testified that he never agreed to the proposed division of the personal property nor to pay K.M.A. $2,934.39 as referred to in the "accounting" prepared by K.M.A. K.M.A. stated that J.J.G. indicated that he would look into borrowing the money necessary to compensate her for the furniture and other personal property he retained after the dissolution of the relationship. At the time of these communications over the division of the furniture, J.J.G. was distraught over the termination of the relationship and his impending eye surgery. [167] I can find no agreement that J.J.G. would pay K.M.A. for the personal property he retained. In the result, K.M.A. is required to pay J.J.G. $3,000 plus interest at the rate set by the Registrar of the court. [168] K.M.A. stated that, although there was no agreement regarding the allocation

of World Points accumulated on J.J.G.'s MBNA card, she assumed she could use whatever points she had earned. I note parenthetically that, the fact that up until this time the parties had not used any of the points is consistent with J.J.G.'s contention that they had been accumulating the points to use for their intended trip to Portugal. [169] J.J.G. testified that all of the accumulated World Points belonged to him because he was the owner and paid the interest on the MBNA card. I do not accept his evidence in the face of his previous affidavit evidence in which he acknowledged K.M.A.'s entitlement to points earned through her expenditures, and in the face of the accounting of the World Points he prepared himself. J.J.G. prepared an accounting of the World Points showing that, based on their respective expenditures of money, K.M.A. was entitled to 50,748 points while R.G. was entitled to 44,907 points and the remaining 37,897 points belonged to J.J.G. [170] Nor do I accept K.M.A.'s evidence that when she was moving out, J.J.G. told her that she and R.G. could split the World Points because J.J.G. did not want any of the points. [171] In the circumstances, I conclude that K.M.A. was entitled to 50,748 World Points. [172] K.M.A. testified that on July 10, 2007, J.J.G. had advised her that he intended to cancel his MBNA card. She decided to immediately cash in sufficient points

to buy her airfare to Hawaii. She used 92,846 World Points to buy a ticket at a cost of $929.22. She used 42,098 more points than those to which she was entitled. As a result, K.M.A. must reimburse J.J.G. $421. [173] I find that J.J.G. purchased the painted tiles in Portugal which K.M.A. removed from the apartment and he is entitled to those tiles. [174] The evidence does not establish that J.J.G. is entitled to the return of the shell collection.

CONCLUSION [175] In summary, I conclude: (i) the parties lived in a "marriage-like" relationship within one year of commencing this action; (ii) the claim for spousal support is dismissed with liberty to apply upon a change of circumstances; (iii) the claim for unjust enrichment is dismissed; (iv) K.M.A. must pay J.J.G. $3,421 plus interest, at the rate set by the Registrar of the court; and (v) J.J.G. is entitled to the painted tiles.

COSTS [176] Counsel have requested the opportunity to make submissions on costs following the delivery of these reasons for judgment. If the parties are unable to resolve the issue of costs, they may reserve a date through Supreme Court scheduling to address this issue. "Dardi J."