CA017714 Vancouver Registry Court of Appeal for British Columbia ORAL REASONS FOR JUDGMENT: Before: The Honourable Mr. Justice Legg April 24, 1996 The Honourable Mr. Justice Finch The Honourable Mr. Justice Williams Vancouver, B.C. BETWEEN: FRANCES MARY GENSIG PLAINTIFF (APPELLANT) AND: WILLIAM BENJAMIN HUTCHINGS DEFENDANT (RESPONDENT) P. Kennedy appearing for the Appellant Mr. Hutchings appearing on his own behalf 1WILLIAMS, J.A.: The appellant in this case is a waitress who while in having repairs done to her car met the respondent. He was described as a backyard mechanic, and at some point they decided they would like to live together. They did so from 1983 until 1989 firstly at an address on Joyce Road in Vancouver and then in Maple Ridge in a property which he purchased after selling his Joyce Road property. 2 The understanding at the time when they got together was that she would be able to move in with him in his house, it made more sense to them than her paying rent at her apartment. Her earnings were approximately $20,000 to $25,000 a year. His were somewhere between two and five in the years 1983 to 1990 and as the trial judge described it they tended to keep finances to themselves to a large extent. They did not, as he pointed out, have a blended relationship. However, the understanding that they reached was that she was to do the cooking and the cleaning and she was to buy the food for the two of them and she would of course get free rent or would not have to pay the rent that she had paid before. There were no children involved in this relationship but she did bring her mother to live with them for sometime and the arrangement was made between the respondent and the mother that she would pay rent. He wanted some $600 per month but they settled on $300 a month on the basis that the appellant would pay for her food. This was another indication of the kind of business relationship in a family scene. 3 She would pay, to some extent, the extra expenses from time to time such as when they went on a trip. She would say "Pack up, we're going", he would go along on the trip and she would pay for most of the expenses. There were times that he needed money and he would get money from her, for example to buy a van for $800, to pay some legal expenses and so on, over the years. He paid her back after he sold the house and they moved out to Maple Ridge. He paid her back $10,000 which he says was about $4,000 more than he owed her although she said it was about $6,000 less. She was asking for $16,000 which on one calculation was about 50 percent of the amount received from the sale of the house on Joyce Street. From time to time he would fix her car for free but she would buy the parts. Certainly they slept together in the early years of their relationship but apparently they did not have a sexual relationship later on. 4 There were a number of things where the wife made a contribution in the sense that she helped him on separate occasions with the mechanical work he did in the backyard. She also did some gardening and she laid some tile. She bought some minor items for the home such as a fireplace insert. When she left she took her furniture with her. 5 She was working full-time during this relationship and that is how she earned the income she did as a waitress in Vancouver. 6 The trial judge accepted the evidence of the respondent when there was conflict between his evidence and that of the appellant and he said: I was satisfied with his explanations of most of the material inconsistencies in his evidence which were emphasized. As to the question of credibility of the parties, I had some concerns with the plaintiff's evidence in some areas. I also had some concerns about the defendant's evidence in some areas, particularly as to the amount of his income which was solicited, as it were, with reference to Revenue Canada, and, perhaps, his evidence as to his drinking habits. However, I did prefer his evidence over her's in important areas such as the nature of the arrangement or deal made by them at the time that the plaintiff moved in with the defendant, their respective contributions, and the nature of the relationship throughout their cohabitation. My preference is based in part on other evidence which appears to support the defendant's version of their relationship. 7 The learned trial judge in his judgment referring to the items which she claims as a contribution said: These activities were for her own comfort although there is no doubt that the defendant benefited by them as well. However, in my opinion, they alone, or together with her domestic services, do not constitute a substantial contribution to the relationship which would support a finding of an unjust enrichment. After that he goes on to say: There is no evidence before me of the parties having blended their lives or finances, of joint efforts on their part to create or maintain a family unit or enterprise to be shared by them in the event of the breakup of their relationship. 8 Ms. Kennedy in her submission on behalf of the appellant says that the learned trial judge erred in finding that the respondent was not unjustly enriched by the contribution, and in finding that the appellant was deprived of the unjust enrichment conferred upon him which of course is the other side of that coin. She argues that he erred in finding that there was no link between the appellant's contributions and the property located in Maple Ridge and that he erred in not awarding the remedy of constructive trust. Constructive trust in this kind of situation, of course, depends upon the finding that there was an unjust enrichment. The learned trial judge has made a finding of fact that there was not on all of the evidence such an enrichment. 9 Cases such as Peter v. Beblow, [1993] 1 S.C.R. 980, Sorochan v. Sorochan (1986), 2 S.C.R. 38 and others referred to were decided on the basis of expectations at the time of contribution. In other words, when one spouse makes a contribution it is done on the basis that there is an expectation they will be, as part of this blended family relationship, a participant in benefits received when the house is sold or when they separate. That certainly does not appear to be what happened on the facts of this case. 10 We have had the benefit of hearing Ms. Kennedy argue as she did, that this was basically a conjugal relationship, that they had moved in together, that they did have a sexual relationship at least for sometime, and that it cannot be said to be a business relationship as the learned trial judge found. But when I review the facts I must say that I am in agreement with the trial judge that they fundamentally did establish a business relationship and that that was by far the dominant feature of the relationship between the two of them. I certainly cannot see any palpable or overriding error on the part of the learned trial judge on the findings of fact and accordingly I would dismiss the appeal. 11LEGG, J.A.: I agree with what Mr. Justice Williams has said. I would only add that the trial judge was careful to consider the decision in Peter v. Beblow and held that it was clearly distinguishable on the facts that he found before him. His findings were supported by the evidence and there was no error of law in his so distinguishing the Peter v. Beblow case. I too would dismiss the appeal. 12FINCH, J.A.: I would dismiss the appeal essentially for the reasons of the learned trial judge. He found that the defendant had not been enriched and he found that the plaintiff had not suffered any deprivation. There was evidence to support those conclusions. The plaintiff has failed to show any palpable or overriding error on the findings of fact and as my colleague Mr. Justice Legg has said, has not demonstrated any error of law. I too would dismiss the appeal. 13 LEGG, J.A.: The appeal is dismissed. "The Honourable Mr. Justice Legg" "The Honourable Mr. Justice Finch" "The Honourable Mr. Justice Williams"