Hiltz v. Armstrong

Hiltz v. Armstrong Court Court of Appeal Date 2024-11-06 Citation 2024 NSCA 91 Docket CA 527370 Judge/Registrar/Adjudicator Bryson, Peter M.S. (Honourable Justice) (CA); Van den Eynden, Elizabeth (Honourable Justice) (CA); Derrick, Anne S. (Honourable Justice) (CA) Document Type Decision Decision Content Nova Scotia Court of Appeal Citation: Hiltz v. Armstrong, 2024 NSCA 91 Date: 20241106 Docket: CA 527370 Registry: Halifax Between: Jay Courtney Hiltz and Florence Joyce Hiltz Appellants v. Julie Lynn Armstrong Respondent Judge: The Honourable Justice Peter M.S. Bryson Appeal Heard: June 18, 2024, in Halifax, Nova Scotia Subject: Family law – Unjust Enrichment – Proprietary Remedies – Pretrial Spousal Support Cases Cited: J. A. v. J.H., F. H., 2023 NSSC 243; Kerr v. Baranow, 2011 SCC 10; Moore v. Sweet, 2018 SCC 52; Garland v. Consumers’ Gas Co., 2004 SCC 25; MacPherson v. Williams, 2019 NSSC 17; Wilson v. Fotsch, 2010 BCCA 226; Semelhago v. Paramadevan, [1996] S.C.J. No. 71; 778938 Ontario Ltd. v. Annapolis Management Inc., 2020 NSCA 19; Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574; Tracy (Representative ad litem of) v. Instaloans Financial Solutions Centres (B.C.) Ltd., 2009 BCCA 110, 2010 B.C.C.A 357; Fisher v. Fisher, 2008 ONCA 11; Nance v. British Columbia Electric Railway Co., [1951] 3 D.L.R. 705; [1951] A.C. 601(P.C.). Authors Cited: Mitchell McInnes Canadian Law of Unjust Enrichment and Restitution, 2nd ed (Toronto: Lexis Nexis Canada, 2022); Spousal Support Advisory Guidelines (“SSAG”): The Revised User’s Guide, by Rollie Thompson and Carol Rogers. Facts: The case involves a dispute between two individuals who were in a long-term, unmarried domestic relationship. They lived together on a property owned by the male partner's mother, where both contributed to renovations. After their separation, the female partner claimed unjust enrichment for her contributions to the property and sought division of assets, child, and spousal support. (paras 1-4) Procedural History: 2023 NSSC 243: The trial judge found in favor of the female partner, granting her a one-third interest in the property and other claims. (para 4) Parties Submissions: Appellants: Argued that the trial judge misapprehended evidence regarding unjust enrichment, confused the claims against the two appellants, and failed to consider existing net equity in the property. They also claimed the judge's reasons were insufficient and that pre-trial spousal support payments were not credited. (paras 5-6). Respondent: Acknowledged the judge erred in equalization of assets and overlooked pre-trial support payments suggesting the issue be remitted to the trial judge. She resisted the appeal regarding unjust enrichment. (para 6) Legal Issues: (1) Did the trial judge err in finding unjust enrichment against the male partner's mother? (2) Did the trial judge err in failing to consider the net equity in the property? (3) Was the award of a proprietary remedy against the male partner's mother appropriate? (4) Did the trial judge misapprehend evidence regarding the assets of the parties? (5) Did the trial judge err by failing to credit pre-trial spousal support payments? (paras 25-55) Disposition: The appeal was allowed in part. The female partner was ordered to pay the male partner $2,597.04 for equal division of personal assets. The male partner and his mother were ordered to jointly pay the female partner $19,411.08 for her contribution to the property. The issue of $22,000 in pre-trial support payments was remitted to the trial judge for consideration). The appellants were awarded costs of $2,000 (para 56) Reasons: Per Bryson J.A. (Van den Eynden and Derrick JJ.A. concurring): The trial judge erred in calculating the female partner's interest in the property by not considering the existing net equity before her contributions. The judge also failed to properly distinguish between the unjust enrichment claims against the male partner and his mother. The proprietary remedy against the mother was justified because a non-proprietary monetary award was inadequate. The judge's oversight of pre-trial spousal support payments required remittance for further consideration (paras 7, 24-25). This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 13 pages. Nova Scotia Court of Appeal Citation: Hiltz v. Armstrong, 2024 NSCA 91 Date: 20241106 Docket: CA 527370 Registry: Halifax Between: Jay Courtney Hiltz and Florence Joyce Hiltz Appellants v. Julie Lynn Armstrong Respondent Judges: Bryson, Van den Eynden, Derrick, JJ.A. Appeal Heard: June 18, 2024, in Halifax, Nova Scotia Held: Appeal allowed with costs, per reasons for judgment of Bryson, J.A.; Van den Eynden and Derrick, JJ.A., concurring Counsel: James Violande, for the appellants William Leahey, for the respondent Reasons for judgment: Introduction [1] Jay Hiltz and Julie Armstrong started dating in 1994. He was 26 and she was 16. They began living together part time in 1996 when Ms. Armstrong started university. In 1998, they moved in together permanently in a garage apartment at Marriott’s Cove, Lunenburg County. The garage was located on property owned by Mr. Hiltz’s mother, Florence Hiltz. That property included a cottage in which Mrs. Hiltz lived. [2] The garage apartment was built by Jay Hiltz in 1998. To facilitate construction, Mr. Hiltz was added to title as a joint tenant with his mother and a mortgage was taken out against the property. Ms. Armstrong contributed to the construction of the apartment. Later the parties traded residences. Mrs. Hiltz moved into the apartment and Mr. Hiltz and Ms. Armstrong moved into the cottage which they substantially renovated. [3] Mr. Hiltz and Ms. Armstrong were not married. [4] Following their final separation in 2020, Ms. Armstrong successfully brought claims against Mr. Hiltz for division of assets, child and spousal support. She also successfully claimed against Mr. Hiltz and his mother for unjust enrichment arising from her contribution to work on the garage apartment and cottage on the Marriott’s Cove property. The judge also found unjust enrichment against Mr. Hiltz based on a joint family venture.[1] He awarded $63,639.42 representing Ms. Armstrong’s “one third interest” in the property. [5] Jay Hiltz and Florence Hiltz now appeal Justice Samuel Moreau’s Order giving Ms. Armstrong a one-third interest in the Marriott’s Cove property. Mr. Hiltz says Justice Moreau misapprehended evidence relating to Ms. Armstrong’s unjust enrichment claim. He also confused the unjust enrichment case as between the two appellants, considered mutual benefits at the wrong stage of the test, and failed to consider the existing net equity in the property when assessing the quantum of unjust enrichment. Alternatively, Mr. Hiltz says the judge’s reasons were insufficient. He adds that the judge misapprehended the evidence regarding equalization of personal property between the parties. Mr. Hiltz also claims the judge failed to credit him with pre-trial spousal support payments. [6] Mr. Hiltz acknowledges that Ms. Armstrong has a valid unjust enrichment claim against him, but not his mother. Ms. Armstrong resists the appeal regarding unjust enrichment. She acknowledges the judge erred respecting equalization of assets. She also concedes the judge appears to have overlooked the pre-trial support payments. She says that this issue should be remitted to the trial judge. [7] For the reasons that follow, the appeal should be allowed in part: the judge erred in dividing the value of the real property equally among the three parties without taking into account the equity that already existed, prior to Ms. Armstrong’s contributions to the property. He also erred in his division of personal property. His apparent failure to credit Mr. Hiltz with pre-trial support requires that issue be remitted to him for decision. [8] Before addressing the issues, it will be helpful to review the principles of unjust enrichment generally, and joint family ventures specifically. Unjust enrichment overview [9] Unjust enrichment is established when, on an economic basis:[2] (a) There has been an enrichment of the defendant; (b) There has been a corresponding deprivation of the claimant; (c) There is an absence of a juristic reason for the enrichment.[3] [10] The enrichment must have monetary value and be tangible. Moral or policy considerations do not belong at this stage of the analysis. They may arise at the third step – absence of a juristic reason.[4] [11] The enrichment can be negative or positive. If the former, it must have spared the claimant an expense that he or she would otherwise have incurred.[5] Any deprivation of the claimant must be related to benefit or enrichment of the defendant. Deprivation must correspond to the enrichment.[6] But the deprivation and enrichment need not be equal.[7] The key is that the enrichment is causally connected to the deprivation of that which should belong to the claimant; not that the two are necessarily the same.[8] [12] The law recognizes two bases of quantification of an unjust enrichment claim. One calculation is founded on the value of services provided, sometimes called “valued received”. The second depends on the value retained by the defendant known as “value survived”, typically representing the value of property. [13] The absence of a juristic reason means there is no reason in law for the defendant to retain the benefit conferred by the complainant. This is what makes the retention “unjust”.[9] [14] The category of juristic reasons that may result in a denied recovery are not closed, but include such things as the intention to make a gift, a contract between the parties, and disposition of the law, (i.e. where the law by statute may deny recovery).[10] [15] Garland v. Consumers’ Gas Co. provided a two-step analysis for the absence of a juristic reason. The Court first should ask whether there is an existing category of juristic reason that would justify the enrichment (i.e. a contract). It is the claimant’s burden to show that there is no juristic reason from any established category that would deny recovery. Assuming the claimant discharges that burden, a recoverable enrichment has been established, unless the defendant can show there is another reason to deny recovery. It is in this residual category that the court can consider the reasonable expectations of the parties and public policy considerations.[11] [16] As the Supreme Court explained in Kerr, it is at the juristic reasons stage of the analysis that one may consider whether childcare and domestic services give rise to an equitable claim in a marital or quasi-marital relationship. It is also under this second branch of the juristic reason test that personal autonomy and decisions made by the parties with respect to the arrangement of their affairs, can be considered.[12] [17] Unjust enrichment remedies are restitutionary. Accordingly they require the defendant to restore an unjustified enrichment. The court retains the jurisdiction to make a personal or proprietary award. Remedies available in this case will be discussed further below. Joint Family Ventures [18] In Kerr, the Supreme Court explained why joint family ventures should enjoy legal recognition: [85] I conclude, therefore, that the common law of unjust enrichment should recognize and respond to the reality that there are unmarried domestic arrangements that are partnerships; the remedy in such cases should address the disproportionate retention of assets acquired through joint efforts with another person. This sort of sharing, of course, should not be presumed, nor will it be presumed that wealth acquired by mutual effort will be shared equally. Cohabitation does not, in itself, under the common law of unjust enrichment, entitle one party to a share of the other’s property or any other relief. However, where wealth is accumulated as a result of joint effort, as evidenced by the nature of the parties’ relationship and their dealings with each other, the law of unjust enrichment should reflect that reality. [Emphasis added.] [19] The Supreme Court directed that attention should be paid to mutuality of effort by the parties working collaboratively towards common goals that may be manifest by joint decisions to integrate finances, the raising of children together, joint participation in a business enterprise, and the like. [20] The Supreme Court also emphasized the importance of intent and the autonomy of the parties in these cases. In domestic partnerships where partners may have decided not to marry for various reasons, one of those reasons may have been a deliberate choice not to have their lives economically integrated.[13] The intent of the parties may be actual or inferred by the Court in all of the circumstances. Similarly, how title to property is held may also demonstrate an intention to share wealth – for example, when both parties are joint tenants of real estate. The intention of the parties may affirm or negate the existence of a joint family venture, depending on the circumstances. [21] That the parties have given priority to the family may be indicative of a joint family venture. Another indicator of that venture may be the sacrifice of either or both parties for the greater interests of the family as a whole. That could entail giving up work altogether or foregoing a promotion or transfer to avoid disrupting family life. This is not simply a matter of looking at the more financially dependent partner, but rather what the parties have together decided or done.[14] [22] The remedial principle of restitution may be diminished in joint family venture cases, because the court is often giving effect to the expectation interest embodied in anticipated sharing of the fruits of joint efforts. To use an estoppel analogy, the law is protecting the detrimental reliance of one party on expected sharing.[15] Accordingly, the granting of a proprietary remedy may reflect the parties’ joint expectations. In this respect it more resembles a contractual “expectation” basis of recovery, than a restitutionary recovery which unjust enrichment is typically intended to effect. [23] Concluding with respect to joint family venture, Justice Cromwell, speaking for the Court in Kerr set out the following test:[16] 1. The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services approach. 2. Where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant’s contributions. 3. To be entitled to a monetary remedy of this nature, the claimant must show both (a) that there was, in fact, a joint family venture, and (b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth. 4. Whether there was a joint family venture is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent and (d) priority of the family. Did the judge err in finding that Mrs. Hiltz was unjustly enriched? [24] The judge found enrichment and corresponding deprivation: [25] I find the Respondent and F.H. [Mrs. Hiltz], were enriched by the Applicant's efforts and actions. In addition to her assistance on the construction/renovation projects, the Applicant cared for the children and looked after the household. I accept F.H. provided some childcare, however I find that the Respondent would not have been able to complete both projects without the Applicant's work within the home, both in relation to the children and the dwellings. Upon moving into the apartment in 2004, F.H. had the benefit of enjoying a renovated living space. The Respondent and F.H. were enriched by the Applicant's unpaid labour. [25] The judge was satisfied that there was no juristic reason for the enrichment: [32] I find the Respondent and F.H. have been unjustly enriched: assets were acquired through the parties' joint efforts and they were not equitably shared at the end of the relationship. The Respondent continues to retain the real estate, pension, investment portfolio and miscellaneous assets. [26] The judge also found a joint family venture unjust enrichment, in favour of Ms. Armstrong. Applying the Kerr criteria, the judge said that Mr. Hiltz and Ms. Armstrong: • Mutually cooperated for the benefit of the family, including working on the home; • Had a high degree of economic interdependence; • Made personal choices, implementing an intent to engage in a stable, long term relationship; and • Prioritized the family and worked towards a shared future. [27] Both appellants complain that the judge confused the general law of unjust enrichment with the specific situation of a joint family venture and conflated the circumstances of Mr. Hiltz with that of his mother. It is true that the judge’s decision does not always distinguish between the unjust enrichment claim against Jay Hiltz and the unjust enrichment claim against his mother, Florence Hiltz. But since the appellants concede the evidence supported a finding of unjust enrichment against Mr. Hiltz, any potential confusion recedes before the primary question of whether unjust enrichment was established against Mrs. Hiltz and if so, what an appropriate remedy should be. [28] Citing paragraph 25 of the decision,[17] the appellants maintain the judge considered mutual benefits at the wrong stage of the unjust enrichment test and also misapprehended evidence concerning mutual benefits between Mrs. Hiltz and Ms. Armstrong. [29] It makes no difference whether the judge considered mutual benefits prematurely. It is clear he did not think that any such benefits constituted a juristic reason to deny recovery, nor a defence to the claim.[18] For example, Mrs. Hiltz did not detrimentally rely on anything said or done by Ms. Armstrong that might estop Ms. Armstrong from asserting her claim. The real question here is whether the judge misapprehended the evidence. [30] Mrs. Hiltz insists that the judge ignored, left out or apparently forgot about property taxes paid by her between 2009 and 2020 as well as payments for insurance and power bills, vehicle use and repair contributions by her, all of which would have benefitted Ms. Armstrong. The judge does not mention these apparent benefits. He does mention childcare provided by Mrs. Hiltz, which presumably benefitted both Mr. Hiltz and Ms. Armstrong. [31] The power bills, taxes and insurance payments arose from ownership and occupation of the garage apartment and cottage. The payment of taxes and insurance would have benefitted all three of the parties and the children. [32] Mrs. Hiltz says she paid for power consumption in the cottage, which was higher than that of the garage. She estimates a difference in her favour of $23,000.00. But the bills were in the names of Mrs. Hiltz and her son. Ms. Armstrong could not change these accounts, which mother and son paid. And any extra Mrs. Hiltz paid would have benefitted her son and grandchildren, as well as Ms. Armstrong. None of this would justify requiring Ms. Armstrong to pay for accounts she did not control, or benefits she shared with others. [33] It is reasonable to conclude that the judge did not consider these payments significantly detracted from Ms. Armstrong’s claim that her contribution created enduring property value for Mrs. Hiltz. [34] Both appellants point out that the judge found the benefit to Mrs. Hiltz came from the renovated apartment when she moved into it. He did not at that point say she was enriched by any increase in the net equity in the cottage property. But that is a red herring. He ultimately took the net equity into account in the remedy he granted. He found both Mr. Hiltz and his mother had been unjustly enriched. Did the judge err by failing to consider net equity in the Marriott’s Cove Property? [35] In calculating the amount due to Ms. Armstrong and the quantum of her interest in the real estate, the judge found her entitled to “an equal one-third share of the present net equity after accounting for real estate commission and legal fees; $190,918.25 divided by 3 equals $63,639.42”.[19] In uncontradicted evidence before the court, the 1998 value of the Marriott’s Cove property was $142,000.00. In 2021 it had risen to $470,000.00. [36] In awarding Ms. Armstrong $63,639.42, the judge did not take into account the value of the property prior to any unjust enrichment. The net equity of the home at the time of trial, after deducting outstanding mortgages for which the appellants were solely responsible, was $190,918.00. That figure should have been further reduced by the appraised value of the property in 1998, adjusted for real estate fees, legal fees and taxes, resulting in a net 1998 equity of $132,685.00. This should have then been subtracted from the $190,918.25 assessed by the judge, leaving a total net equity of $58,233.25. Divided equally, that would leave $19,411.08 for Ms. Armstrong. Did the judge err in awarding a proprietary remedy in favour of Ms. Armstrong against Mrs. Hiltz? [37] As already explained, the net equity was miscalculated by the judge. But the monetary relief granted assumes a proprietary interest against both Mr. Hiltz and his mother. [38] The judge’s analysis of a proprietary remedy for Ms. Armstrong was confined to the joint family venture finding. Throughout his decision, the judge refers to the “parties”. He defined the parties as Mr. Hiltz and Ms. Armstrong. Mrs. Hiltz was referred to with initials.[20] The judge did not address the appropriateness of a proprietary remedy against Mrs. Hiltz. [39] Concerning the availability of proprietary relief, the judge referred to MacPherson v. Williams:[21] [78] An order for proprietary relief requires greater justification than one for personal restitution. McInnes says the same four factors are consistently cited when proprietary relief is claimed: 1. A monetary order must be inadequate 2. There must be a sufficiently substantial and direct nexus between Ms. MacPherson’s contribution and Mr. Williams’ property 3. The duration of the relationship must make it appropriate to ensure that both parties enjoy proprietary interests that allow them to share in accumulated assets 4. Ms. MacPherson must have acted with a reasonable expectation of receiving an interest in Mr. Williams’ property [40] The judge then said: I find the circumstances in this case are consistent with and satisfy the criteria set out in the case authority with respect to a proprietary claim. This is not an analysis. In the case of Ms. Armstrong, one may infer application of the MacPherson criteria because that was a joint family venture. Not so here regarding Mrs. Hiltz. [41] The judge’s Order awarded “…$63,639.42 representing the Applicant’s [Ms. Armstrong’s] one third interest in the real property…”. This is not uncommon. Plaintiffs often seek a monetary award equivalent to the value of a proprietary interest.[22] But the facts and law must justify that interest. [42] Damages calculated on a common law basis for services rendered involve valuing those services. Historically, this was known as a quantum meruit claim. Damages assessed on a “value surviving” basis are really equitable damages in lieu of a proprietary interest.[23] The usual advantage of this approach is the claimant obtains the benefit of any inflationary increase in the value of the underlying asset. [43] The imposition of proprietary relief is easier to support in the domestic context of a joint family venture. Courts are understandably reluctant to limit a claimant in a committed relationship to compensation as an “employee”. But it is harder to justify a proprietary claim against a third party outside that venture. At least two of the MacPherson criteria tell against imposing a proprietary remedy against Mrs. Hiltz. It is not evident that Ms. Armstrong had a reasonable expectation of receiving an interest in property owned by her partner’s mother, as opposed to expecting an interest in her partner’s property. Some cases add that the court should also consider whether the respondent was or should have been aware of these expectations.[24] In this case there is no basis for a reasonable expectation by Ms. Armstrong that Mrs. Hiltz would share title to her family home with anyone but her son. And that is what she actually did when she deeded an interest to him alone. [44] There are important advantages for a claimant granted a proprietary award, and corresponding disadvantages to the defendant and third parties.[25] Particularly outside joint family ventures, courts should not assume this proprietary relief easily follows from a finding of unjust enrichment. Appropriate consideration of remedial principles may not warrant that relief. [45] Although the judge granted a common remedy against Mr. Hiltz and his mother, he does not find Mrs. Hiltz was party to a joint family venture. Mrs. Hiltz says Ms. Armstrong’s remedy should be calculated on the value of her services, unrelated to the value of the property. But the judge was of the view that Mrs. Hiltz retained property whose value was linked to Ms. Armstrong’s efforts. [46] While Mrs. Hiltz was not party to the joint family venture, she was not a complete stranger. She supported her son’s relationship with Ms. Armstrong by permitting them to live on, and improve her property. She materially benefitted from the relationship through Ms. Armstrong’s contribution to improvements to her property, in which she acquiesced. [47] It is unnecessary to find that a claimant is entitled to a proprietary remedy, in order to award damages on a restitutionary basis that captures an increase in equity in property. As long ago as 1989, in Lac Minerals the Supreme Court recognized that damages for unjust enrichment could support a restitutionary award equivalent to the value of property lost.[26] In dissent, Justice Sopinka would have awarded restitutionary damages on this basis – an approach with which the majority appeared to agree.[27] [48] Lac Minerals was a breach of confidence, commercial case. But in Kerr, Justice Cromwell noted that a damages award is not confined to a quantum meruit calculation, and could be restitutionary, even if a propriety award would not be appropriate.[28] [49] As indicated above, a one third award of the net equity in the property amounted to $19,411.08. That is a relatively modest sum. Coincidentally, it is within the $15-20,000.00 range of damages for services rendered that the appellants said Ms. Armstrong should receive if successful.[29] And while the judge was wrong about the net equity to be divided, he plainly thought Ms. Armstrong should receive one-third of it. That “damages” finding is entitled to deference.[30] [50] While it is unnecessary to find that Ms. Armstrong is entitled to a proprietary interest as against Mrs. Hiltz, in order to receive restitutionary damages, in this case the judge’s decision to award a propriety interest, should not be disturbed, primarily because the first factor cited in MacPherson favours that outcome. That factor concerns the adequacy of a personal remedy. Courts have considered the “collectability” of damages under this heading.[31] On the evidence, Mrs. Hiltz has a pension, but no employment income. It was necessary for her son to be put on title to mortgage the property. Although she has an interest in the property, it is heavily mortgaged, with modest net equity. She has a small investment account, but collection against her personally could be an issue. She may not have been in a joint venture with Ms. Armstrong, but she was in a joint project with her son. The judge made them jointly and severally liable to Ms. Armstrong. Did the Judge misapprehend evidence regarding assets of Mr. Hiltz and Ms. Armstrong? [51] The judge ordered equalization of personal assets between the parties. Ms. Armstrong agrees the judge overlooked some personal assets held by her. She agrees that the equal division ordered by the judge can be implemented by payment of $2,597.04 from her to Mr. Hiltz. Did the Judge err by failing to credit Mr. Hiltz with pre-trial spousal support payment? [52] Following separation of the parties and prior to trial, Mr. Hiltz paid to Ms. Armstrong or for her benefit to third parties, the sum of $22,000.00. She acknowledges these payments. The judge does not mention the $22,000.00 in his reasons. He ordered periodic spousal support of $497.00 per month for a period of six years. Ms. Armstrong asked for a lump sum payment. The judge granted her a lump sum of $23,856.00 payable forthwith. He also ordered that the monthly payments of $497.00 commence February 1, 2023 and conclude after a period of twenty-four months. [53] Interim support should be included when determining duration of spousal support.[32] Mr. Hiltz asks that the $22,000.00 paid by way of pre-trial spousal support should be credited against the lump sum that he has been ordered to pay. [54] Ms. Armstrong agrees that the judge appears to have overlooked the pre-trial payments in his decision, but asks that the matter be remitted to the trial judge for determination. [55] The judge may have inadvertently overlooked the $22,000.00 in interim support. He may have considered it when he awarded spousal support at the lower end of the SSAG range. Perhaps the six years of support was on a “go forward” basis. We simply do not know. Either the judge misapprehended the evidence, or his reasons prevent meaningful appellate review. In the circumstances, absent agreement between the parties, this question should be remitted to the trial judge to determine whether credit for the $22,000.00 against spousal support should be awarded in Mr. Hiltz’s favour, or not. Conclusion [56] The appeal should be allowed in part. 1. Ms. Armstrong should pay Mr. Hiltz $2,597.04 to create an equal division of personal assets; 2. Mr. Hiltz and his mother, Mrs. Hiltz, should jointly pay Ms. Armstrong $19,411.08 respecting her contribution to the Marriott’s Cove property; 3. The matter of $22,000.00 of pre-trial support payments should be remitted to the trial judge for consideration; and 4. The appellants should have costs of $2,000.00, inclusive of disbursements. Bryson, J.A. Concurred in: Van den Eynden, J.A. Derrick, J.A. [1] 2023 NSSC 243. [2] Kerr v. Baranow, 2011 SCC 10 at para. 37; Moore v. Sweet, 2018 SCC 52 at para. 41. [3] Kerr, para. 32(2). [4] Kerr, para. 37. [5] Kerr, para. 38. [6] Kerr, para. 39. [7] Moore, para. 43-44. [8] Moore, para. 43-44. [9] Kerr, para. 40 and Garland v. Consumers’ Gas Co., 2004 SCC 25 at paras. 39-40. [10] Kerr, para. 31. [11] Garland, paras. 44-46; Kerr, para. 43. [12] Kerr, para. 45; Moore, para. 83. [13] Kerr, para. 94. [14] Kerr, para. 98-99. [15] Kerr, para. 98. [16] Kerr, para. 100. [17] Para. 23 above. [18] Kerr, paras. 104, 109, 114 and 116. [19] Decision, para. 57. [20] Decision, para. 4. [21] Decision, para. 56 quoting from 2019 NSSC 17. [22] Wilson v. Fotsch, 2010 BCCA 226. [23] Semelhago v. Paramadevan, [1996] S.C.J. No. 71 at para. 11; [1996] 2 S.C.R. 415; and following 778938 Ontario Ltd. v. Annapolis Management Inc., 2020 NSCA 19. [24] Mitchell McInnes, Canadian Law of Unjust Enrichment and Restitution, 2nd ed (Toronto: Lexis Nexis Canada, 2022), at p. 1816. [25] McInnes, pp. 1783-85. [26] Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574 at paras. 189, 191, 197 and 202; [1989] S.C.J. No. 83. [27] Lac, para. 65. [28] Kerr, paras. 78, 79. [29] Decision, para. 38. [30] Kerr, para. 158, citing Nance v. British Columbia Electric Railway Co., [1951] 3 D.L.R. 705; [1951] A.C. 601(P.C.). [31] Tracy (Representative ad litem of) v. Instaloans Financial Solutions Centres (B.C.) Ltd., 2009 BCCA 110, 2010 B.C.C.A 357, and more generally, McInnes, at p. 1822. [32] Spousal Support Advisory Guidelines (“SSAG”): The Revised User’s Guide, by Rollie Thompson and Carol Rogers, p. 16; Fisher v. Fisher, 2008 ONCA 11.