Date: 19970221 Docket: CA020028 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN: DORIS PICKELEIN PLAINTIFF (APPELLANT) AND: RICHARD EDWIN GILLMORE DEFENDANT (RESPONDENT) Before: The Honourable Madam Justice Rowles The Honourable Mr. Justice Donald The Honourable Madam Justice Huddart Doris Pickelein In Person Kenneth S. Specht Counsel for the Respondent Place and Date of Hearing Vancouver, British Columbia 4 October 1996 Place and Date of Judgment Vancouver, British Columbia February 21, 1997 Written Reasons by: The Honourable Madam Justice Huddart Concurred in by:: The Honourable Madam Justice Rowles The Honourable Mr. Justice Donald Reasons for Judgment of the Honourable Madam Justice Huddart [1] Ms. Pickelein and Mr. Gillmore lived together as husband and wife from March 1978 until May 1991. During those thirteen years they shared household responsibilities, the care of their four children from previous relationships, and a family business. Each came into the relationship with assets and each acquired assets during the relationship. When the relationship ended, Ms. Pickelein sought compensation for her contribution to the acquisition, improvement, and maintenance of Mr. Gillmore's assets. Mr. Gillmore responded by seeking compensation for his contribution to the acquisition, improvement, and maintenance of Ms. Pickelein's assets. [2] It is well to remember that both sought a remedy for unjust enrichment and to recall at the outset of the consideration of their claims this cautionary comment by Madam Justice McLachlin, writing for the majority in Peter v. Beblow, [1993] 1 S.C.R. 980 at 988, 77 B.C.L.R. (2d) 1, 44 R.F.L. (3d) 329 [cited to S.C.R.]: There is a tendency on the part of some to view the action for unjust enrichment as a device for doing whatever may seem fair between the parties. In the rush to substantive justice, the principles are sometimes forgotten. ... On the remedies side, the requirements of the special proprietary remedy of constructive trust are sometimes minimized. ... Occasionally the remedial notion of constructive trust is even conflated with unjust enrichment itself, as though where one is found the other must follow. [3] The result of the parties' claims founded on unjust enrichment for constructive trust and consequential accounting orders or, alternatively, equitable damages, was an order of Mr. Justice Edwards, pronounced 20 June 1994, that Ms. Pickelein holds a one-half interest in her real properties on Sonora Island and Oxford Street, Vancouver in trust for Mr. Gillmore and that Mr. Gillmore holds a one-half interest in his real properties, an 80-acre homestead and managed forest on Read Island, two houses in Nanaimo, and a property on Quadra Island, in trust for Ms. Pickelein. The trial judge dismissed Ms. Pickelein's claim to a one-half interest in Mr. Gillmore's sole proprietorship, Sundance Crystal Sculptures ("Sundance"), and allowed Mr. Gillmore to keep the chattels on Read Island. The reasons are reported at (1994), 5 R.F.L. (4th) 245. [4] Neither party was content with those orders. Ms. Pickelein wanted to continue to enjoy the use of some or all of the Read Island property that she and her son consider to be their home, to share equally in Sundance and the chattels on Read Island, and to have her mother's contribution to the 1987 purchase of the Oxford Street property recognized, either as a loan for which the parties are responsible or by a different apportionment of the interests in that property. She also argues that the evidence did not support a sufficient contribution by Mr. Gillmore to the Oxford Street property to justify the constructive trust remedy. Mr. Gillmore was of the view that each of them should keep the property that is in his or her name, relying on the trial judge's comment in his reasons that he would have dismissed both claims, leaving each with their respective property, if he had been satisfied that each had property of equal value. Mr. Gillmore maintains that the evidence before the trial judge established that the timber was worth about $45,000 at the date of separation and that the trial judge was wrong in refusing to value it. He argues that the effect of the trial judge's refusal to value the timber at the date of separation was to fail to acknowledge that the parties' assets were of equal value at the only relevant date. [5] The parties sought a further hearing before the trial judge, undoubtedly to achieve their goals, although it was said to be for "clarification of disagreements between counsel". At that hearing in October, 1994, the trial judge made it clear that the trusts "carried no right of one party to occupy the other's property" (see the supplementary reasons in Pickelein v. Gillmore (1 February 1995), Vancouver No. A923350 at 3). He permitted written submissions. After considering the written submissions and oral submissions made at a further hearing in January 1995, the trial judge identified the dilemma caused by the creation of the constructive trusts, and set down the problems the parties presented to him, and his conclusions (supplementary reasons at 5-8): The real problem is that neither party wants to resolve their impasse over the present value of the properties by selling the properties. The defendant asks me to value the Read Island timber at less than $45,000 and then go on to dismiss both parties' claims in the action as I said I would have done had I been confident the evidence at trial supported a timber value of $45,000. The plaintiff asks me to value the timber at $330,000 and to value her Vancouver real estate net of the alleged mortgage to her mother. She no doubt hopes these findings would make it impossible for the defendant to purchase her interest in the Read Island property. She acknowledges a sentimental attachment to her former Read Island home. She requested I subdivide it into two equal parcels, awarding one to each of the parties. ... The parties have devoted considerable effort to their submissions as to the value of the timber on Read Island. Whatever I might find as to its value will not alter the declarations of trust already made since I have concluded this is not a case which requires a reopening and changed result in order to ensure that justice is served. Findings on the values of the timber and whether the plaintiff's Vancouver property should be "net" of the alleged mortgage might alter the negotiating positions of the parties but would not alter their legal or equitable positions as trustee and beneficiary respectively in 1/2 interests in each other's real estate. If I were to find the valuations advanced by one or other party correct, this would more likely encourage an appeal than a settlement. The court should act to discourage further litigation. The only sure way to settle this case is to order the sale of all the real property. Neither party has asked for that. If, as I have concluded, this case should not be reopened in order to alter the outcome, any finding on property values would only be an embellishment of my earlier reasons for judgment. It could not be appealed since an appeal lies only from the outcome of a case and not the reasons given. The findings both parties now ask me to make would leave them no closer to resolving their problem. I therefore decline to make a finding as to the value of the Read Island timber or the value of the plaintiff's Vancouver property. In short I am not prepared to make findings on issues which will be without legal consequence and which may have the practical consequence of embroiling the parties in fruitless further litigation. [6] The grounds for appeal are essentially a statement of the positions of the parties as to the orders that should have been made, the same positions that I have outlined. Ms. Pickelein says that the trial judge erred in finding that she was unjustly enriched by Mr. Gillmore, in failing to find that her interest in the Oxford Street property was subject to a loan from her mother, Adelheid Pickelein, in dismissing her claim to a one-half interest in Sundance and the chattels on Read Island, in dismissing her claim for an accounting of the Sundance profits since separation, and in failing to award damages for her loss of use of the Read Island property. Mr. Gillmore says that the trial judge erred in failing to value the parties' property at the date of separation, in awarding Ms. Pickelein a one-half interest in the Read Island property because of a problem in valuation, and in "holding that the mutual provision of equal domestic services unjustly enriched each party". [7] I have concluded that the trial judge made a fundamental error in granting a proprietary remedy to the parties without first considering the appropriateness of a monetary award to compensate for the unjust enrichment and without any reason founded in the evidence for the parties to share the risk of ownership following separation. I do not find an error in the trial judge's finding that there was unjust enrichment of each party by the other, nor in his finding that the contributions of each to the other during the course of the relationship were equal. In my view, the trial judge did, however, err in failing to consider the value at the time the relationship began of the property brought into the relationship by each party, and in failing to take into account the contributions by third parties (namely Adelheid Pickelein) to the purchase of property acquired during the relationship. [8] The trial judge did not err in including the two properties Mr. Gillmore acquired after separation in his consideration of the appropriate remedy for unjust enrichment, since those properties were acquired with profits earned by Sundance before the separation. Furthermore, the trial judge did not err in dismissing Ms. Pickelein's claim to a half interest in the Sundance assets, since those assets had the same value at separation as they did at the beginning of the relationship. Finally, there was no error in the dismissal of Ms. Pickelein's claims to half of Mr. Gillmore's personal property and for damages for loss of use of the Read Island property. [9] I will organize my reasons for reaching these conclusions under the headings in the decision of Madam Justice McLachlin in Peter v. Beblow, supra. 1. Is the Appellant's Claim for Unjust Enrichment Made Out? [10] After referring to a case comment by Professor Keith B. Farquhar ("Unjust Enrichment - Special Relationship - Domestic Services - Remedial Constructive Trust: Peter v. Beblow" (1993), 72 Can. Bar Rev. 538 at 552) the trial judge concluded (at 247): The parties lived in a relationship "tantamount to spousal" of sufficient duration that the presumptions referred to [in the case comment] operate in the plaintiff's favour. I am also satisfied that her domestic services and work for Sundance enriched the defendant without juristic reason. With respect to the counterclaim, I find on a similar basis that the plaintiff was unjustly enriched by the defendant's contribution through Sundance, income from which they shared, and in labour and materials he contributed to her house in Vancouver and Sonora Island property, as well as domestic duties he performed. He also found that both parties had contributed equally, saying (at 251-52): Because they worked together in Sundance and both contributed to the household activities, including cooking and child care, as well as maintenance and improvements to both the Read Island and Vancouver houses, I find it is unnecessary, based on the contradictory and unhelpful evidence, to precisely value their respective contributions. Any time spent by one on child care, for example, freed the other to contribute more through Sundance. Both the household and Sundance were joint enterprises over the whole period they lived together. The proceeds of this joint endeavour allowed the plaintiff to acquire the Vancouver residence and the defendant to acquire his former wife's interest in the Read Island property as well as the Nanaimo and Quadra Island properties. I find this situation attracts the presumption referred to by Cory J, in Peter v. Beblow, at p. 1017: It is just and reasonable that the situation be viewed objectively and that an inference be made that, in the absence of evidence establishing a contrary intention, the parties expected to share in the assets created in a matrimonial or quasi- matrimonial relationship ... I am unable to find any contrary intention in this case. Each party contributed either in direct effort or through the income earned by Sundance toward the acquisition, improvement and maintenance of the other's assets. The plaintiff advanced her claim on both bases; the defendant relied only on his direct efforts. Both are equally valid in the circumstances of this case. The fact that each advanced a similar claim is evidence of their legitimate expectations that their efforts on behalf of each other would be reflected in a sharing of the assets so acquired. The parties' efforts on their mutual behalf, whereby they aided each other in acquiring assets each now holds, amounted to unjust enrichment of each by the other. In this case, because of the widely divergent evidence about which party did what on behalf of the other, I find it impossible to approach the question of valuation of the parties' respective enrichments on a "fee-for-service" basis so as to arrive at a "value received" quantification of the extent to which the efforts of one unjustly enriched the other. In any event, since I have concluded both contributed significantly and roughly equally to the joint household and business enterprise, I conclude the assets thereby acquired should be equally divided. If I were satisfied the parties each held assets of roughly equal value, the most appropriate order would be to dismiss their respective claims. However, as indicated, there is a wide gap in the timber appraisals for Read Island. In light of that, the most direct means of effecting an equal division is to declare that each enjoys a constructive trust over the real property interests of the other. I order that each party holds a one- half interest in all her or his real property in trust for the other. [11] In my view, there was ample evidence to support the trial judge's finding that the parties had operated a joint enterprise from 1978 until their separation in 1991, that Sundance was the primary source of their income during all those years, that Mr. Gillmore had built a suite in the Oxford Street property, that monies from Sundance had been used to maintain and improve the properties they owned when their relationship began, to acquire new properties during their relationship, and in Mr. Gillmore's case, to acquire two more properties after the relationship ended. Finally, the trial judge was entirely justified in finding that the parties had contributed equally not only to Sundance but to their household and child care responsibilities. [12] The trial judge's findings of unjust enrichment of each party's properties by the contributions of the other is reasonable on the evidence. There can be no question that each contributed during their relationship in money, labour, and services to the increase in the net worth of the other by way of contributions to specific assets, particularly through Sundance, and that each did so without compensation directly attributable to that contribution. [13] The respondent argues that the trial judge was wrong to apply presumptions in favour of them both when he also found that their contributions were equal. The respondent considers that equal contributions should be set off against each other, without consequence, certainly without a finding of unjust enrichment. This will be the effective result whenever contributions are equal and measured using the value received approach. Difficulty arises, however, in a case such as this, when the current market value of the assets to which contributions were made differs from the total value contributed, not only by the parties, but also by others. In such circumstances, the value received approach is an inadequate measure and regard must be had to the value survived from the contributions for which compensation is being sought, whether or not a proprietary remedy is awarded. In my view, the trial judge did not err in failing to set off the contributions against each other because they were equal. His error was in failing to consider the value survived approach to valuation of the respective enrichments later in his analysis when the appropriate remedy for unjust enrichment fell to be determined. At this stage of the analysis, the only issues to be resolved are whether the claimant has proved an enrichment, a corresponding deprivation, and the absence of a juristic reason for that deprivation. [14] Where there are mutual claims with regard to multiple assets and monetary compensation is determined to be appropriate, the claims may be set off, one against the other. This does not mean that the analysis of a claim for unjust enrichment should be collapsed into a valuation of the contributions of the claimant. Such a process would encourage the tendency against which Madam Justice McLachlin cautioned in the passage from her reasons in Peter that I quoted at para. [2]. It would also permit undue emphasis being placed on the detriment while minimizing the enrichment. The principles underlying the doctrine of unjust enrichment would have been forgotten. It cannot be assumed that the value of the detriment must equal the value of the enrichment, particularly when time elapses between the detriment and the measuring of the enrichment. [15] The fundamental concern when it comes to determining whether there is a juristic reason for an enrichment without compensation is the legitimate expectations of the parties. In a marriage-like relationship where each contributes equally to the partnership, in the absence of any agreement to the contrary or any understanding that either of them intended to make a gift to the other, or that he or she should be compensated on a fee-for-service basis, it is reasonable to presume, as the trial judge did, that each expected to share in whatever wealth they created during their relationship. Where there are mutual claims and multiple assets, the adequacy of any compensation received, in money or benefits, can be determined only after the contributions of each are valued, having regard to the value of the assets remaining. I think, however, that an analysis of the adequacy of compensation is more appropriately undertaken when considering the remedy. 2. Remedy - Monetary Judgment or Constructive Trust? [16] The first task the trial judge posed for himself was to value their respective contributions using the value received approach. The task proved impossible on the evidence, so the trial judge decided to grant each a one-half interest in the other's real property (at 252). [17] In struggling with the problem of valuing the parties' respective contributions, the trial judge appears to have overlooked or failed to measure the capital position of the parties when the relationship began and the contribution of Adelheid Pickelein, and thus did not use the value survived approach to quantify the extent of the constructive trust, as directed by the Supreme Court in Peter v. Beblow, supra at 999- 1000. [18] From the supplementary reasons it appears that the trial judge took the view that Adelheid Pickelein can claim the monies, that Ms. Pickelein has acknowledged are owing to her, from both Mr. Gillmore and Ms. Pickelein. In his first set of reasons (at 246) he had said only: "In 1987 the plaintiff bought a house in Vancouver, largely with money supplied by her mother." His later statement (at 250), "I value the plaintiff's assets at roughly $300,000.00", did not take into account any debt to her mother. Ms. Pickelein reads the reasons as meaning that she will have to bear the entire debt to her mother, and that Mr. Gillmore is not responsible for any share of it. Mr. Gillmore says that is a reasonable conclusion because his parents also assisted the family during the relationship, and he owes his mother about $47,000. The trial judge made no finding with respect to such assistance. His only reference to help from Mr. Gillmore's parents is found in his reasons at 249: "With some help each received from parents, [the income from Sundance] also permitted each party to acquire assets during the course of the relationship." [19] Mr. Gillmore brought Sundance to the relationship and his one-half interest in the Read Island property with the rudimentary improvements he and his wife had accomplished before their separation, while Ms. Pickelein brought an undeveloped lot on Sonora Island. Ms. Pickelein had paid $6,500 for that lot in 1976. Mr. Gillmore and his former wife had paid $15,000 for the unimproved Read Island lot in 1970. In 1983 Mr. Gillmore paid $22,500 to his first wife for her half-interest in the property. [20] In my view, the trial judge erred in principle when he ordered an equal sharing without regard to these two factors. He erred further when he failed to determine whether a monetary award, with or without security, was insufficient. [21] The valuation of contributions will always be a difficult task for a trial judge. Nevertheless, lack of precision in valuation does not justify leaping the threshold issue. In my view, the trial judge was obliged to undertake an analysis as to whether a monetary award would be sufficient before attempting to determine its amount. Only such a separate analysis ensures consideration of the appropriate factors. [22] The trial judge did not err when he found a direct link between Ms. Pickelein's contributions and the Read Island property and between Mr. Gillmore's contributions and both properties of Ms. Pickelein sufficiently substantial to justify the imposition of a constructive trust. However, the finding of such a link does not require, or indeed, in itself permit, the imposition of a constructive trust. [23] That seems clear to me from Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574, per LaForest J., and these two passages from the reasons of Madam Justice McLachlin in Peter, supra: ... I hold the view that in order for a constructive trust to be found, in a family case as in other cases, monetary compensation must be inadequate and there must be a link between the services rendered and the property in which the trust is claimed. Having said this, I echo the comments of Cory J. at p. 1023 that the courts should exercise flexibility and common sense when applying equitable principles to family law issues with due sensitivity to the special circumstances that can arise in such cases. (at 997) and In looking at whether a monetary award is insufficient the court may take into account the probability of the award's being paid as well as the special interest in the property acquired by the contributions: per La Forest J. in Lac Minerals. The value of that trust is to be determined on the basis of the actual value of the matrimonial property - the "value survived" approach. It reflects the court's best estimate of what is fair having regard to the contribution which the claimant's services have made to the value surviving, bearing in mind the practical difficulty of calculating with mathematical precision the value of particular contributions to the family property. (at 999-1000) [24] Mr. Justice Cory, writing for the minority, agreed (at 1023) that "the choice between a monetary award and a constructive trust will be discretionary and should be exercised flexibly." [25] On the facts of this case, a monetary award is not only adequate, but the only fair remedy. [26] That conclusion is consistent with the trial judge's refusal to include the right of occupancy and use in the award of a proprietary interest. The evidence strongly supports the trial judge's view that the acrimony between these parties makes any sharing of the use of property impossible. Moreover, each party had more significant ties to the properties in their name than did the other. Ms. Pickelein's contribution to the Nanaimo houses and the Quadra Island property was indirect and entirely monetary. Mr. Gillmore's direct contributions to the Oxford Street house that has been Ms. Pickelein's home and that of her son since 1987 were minor in comparison to those of Ms. Pickelein and her mother by the time of the separation. While Ms. Pickelein's contribution and emotional attachment to the Read Island property were more significant than Mr. Gillmore's to her properties, Mr. Gillmore owned the Read Island property before the relationship began. He and his children had lived there since 1970. He built the basic improvements. He managed the forest. [27] The choice between a monetary award and a trust is only semantic if a monetary award can be paid or secured, unless there is reason to require a sharing of the risk and benefits of ownership following the trial. There need be no concern in this case about payment or security because none was suggested by either party. [28] The trial judge did not give a reason for requiring a continued sharing of the rights and obligations of ownership. At most, it may be inferred from his reasons that the parties should bear the risk of joint ownership because they did not provide the evidence from which he could arrive at the fair market value of the managed forest at the date of trial, and could not determine the amount of the debt, if any, owing to Adelheid Pickelein, who was not a party to the proceedings. These reasons do not justify a finding that a monetary award is insufficient. [29] The problem of valuation of the managed forest largely resulted from a change in the government's forest policy between the separation and the trial. If, as I accept, a monetary award should be determined at the date of separation, the change in value is irrelevant. Furthermore, the very significant contribution by Adelheid Pickelein to the purchase of the Oxford Street property, whether debt or gift, negates rather than supports the imposition of a constructive trust with regard to that property. The Valuation of the Award [30] Ms. Pickelein and Mr. Gillmore operated a joint family venture, as did Ms. Peter and Mr. Beblow, Ms. Pettkus and Mr. Becker (Pettkus v. Becker, [1980] 2 S.C.R. 834). It may follow by easy inference from these circumstances that everything they acquired by their efforts during the relationship was to be shared according to their contribution, in this case equal, as the trial judge found. [31] The same logic does not apply to the capital they brought to the marriage nor that which was provided by the efforts of others. [32] The facts of this case force a consideration of the relative contributions to the current net worth of both parties, not only by them and by market forces, but also by third parties. Without an examination of the total contributions to the properties, a just award cannot be determined. [33] The trial judge may have been influenced in arriving at his conclusion by the view Madam Justice McLachlin expressed at 999, in Peter, supra: For a monetary award, the "value received" approach is appropriate; the value conferred on the property is irrelevant. But where the claim is for an interest in the property one must of necessity, it seems to me, determine what portion of the value of the property claimed is attributable to the claimant's services. [34] When this passage is read in the context of the reasons as a whole, it becomes evident that the most important factor in the quantification of the award, whether of a trust or money, is the "extent of the contribution which the services have made to the parties' property" (Peter, supra at 1001). In Peter, the court preferred the "value survived" approach over the "value received" approach in part because it accorded with what the court considered would be the expectations of most parties, that they share in the wealth generated by their partnership rather than receive compensation for services performed during the relationship. However, as Chief Justice McEachern noted in Clarkson v. McCrossen Estate (1995), 3 B.C.L.R. (3d) 80 at 100- 101: [The passage in Peter] which suggests that the "value received approach" is appropriate for monetary awards does not say this method must be strictly applied on an accounting basis in every case. Moreover, this is a statement made in contradistinction to a constructive trust where a specific property was easily identifiable as "just" restitution. ... [Peter] is not a considered judgement on the assessment of a monetary award designed to redress an unjust retention of enrichment in family circumstances. [35] Academic writers agree that the choice of a value survived approach to the valuation of a contribution, with a security order where necessary, is preferable to the value received approach and does not require the imposition of a constructive trust (see M.M. Litman, "The Emergence of Unjust Enrichment as a Cause of Action and the Remedy of Constructive Trust" (1987- 88) 26 Alta. L.R. 407 at 466-67; P. Birks, An Introduction to the Law of Restitution (Oxford: Clarendon Press, 1989), c. 3, 11; M. Neave, "Three Approaches to Family Property Disputes- Intention/Belief, Unjust Enrichment and Unconscionability" in T.G. Youdan, ed., Equity, Fiduciaries and Trusts (Toronto: Carswell, 1989) 247). [36] In Marcia Neave's essay, supra, she states that when a personal remedy is granted in an unjust enrichment case, a value survived approach to valuation of the claimant's contributions is appropriate when those contributions have assisted the legal title holder of property to acquire, retain or improve that property, and the property has increased in value. Neave says that in such an instance, "it seems appropriate for the remedy to reflect this increase in value" (at 255). Peter Birks, in his text on the law of restitution, supra, examines the value survived approach in depth. He states quite clearly that while proprietary remedies cannot be valued using the value received approach, "it must instantly be said that that proposition cannot be turned round. That is, nothing entitles one to say that claims to value surviving must be in rem" (at 77). [37] This court had occasion to consider the difficulties inherent in measuring the value of an unjust enrichment in Harrison v. Kalinocha (1994), 1 R.F.L. (4th) 313, a decision released during the trial of this matter. There, the plaintiff was awarded one-half the appreciation in value of an asset, net of its monetary cost to the defendant, for her contribution in urging its acquisition. [38] A similar approach had been taken earlier in Crick v. Ludwig (1994), 95 B.C.L.R. (2d) 72 (C.A.), where a monetary award was calculated as 10% of the net appreciation in the value of the asset acquired during a common law relationship. Trial courts that have made monetary awards to compensate for unjust enrichment in recent cases have considered value received and value survived as alternative approaches open to them, with the choice to be made consistent with common sense and the goal of a fair result. [39] In Hydich v. Hydich (27 March 1996), Vancouver No. F940186 (S.C.), Marshall v. Richter (14 October 1994), Vancouver No. C917873 (S.C.), and Grzelak v. Krysztan (6 July 1994), Vancouver No. A922138 (S.C.), courts applied the value survived approach. In Barnaby v. Petersen Estate (1 October 1996), Courtenay No. S3244 (S.C.), Forsyth v. MacDougall (31 May 1995), Nanaimo No. 06058 (S.C.), Thoen v. Perrier (10 April 1995), Chilliwack No. S3159 (S.C.), Shepherd v. Sonnenberg (31 January 1994), New Westminster No. S0-3962 (S.C.), Ross v. Dunn (29 July 1994), Vancouver No. A914038 (S.C.), and Hartland v. Reschke (31 May 1993), New Westminster No. C902204 (S.C.), they preferred the value received approach. In Dhaliwal v. Beloud (27 November 1995), Kelowna No. 19764 (S.C.), Mr. Justice Drossos combined the approaches to determine fair compensation for the enrichment. [40] This flexibility in choice of measuring stick derives from both the majority and minority decisions in Peter. It allows for the myriad of circumstances in which monetary compensation for unjust enrichment must be determined. It permits all factors relevant to the acquisition and maintenance of property to be brought into account, while it enables the trial judge to reflect in the award the reality of current market value. [41] My review of the trial decisions suggests these general statements hold true. They are not meant to be limiting or exclusive, but illustrative of the development of predictive principles to help control the measurement of appropriate compensation for unjust enrichment. [42] Long term marriage-like relationships will usually require use of the value survived approach, not only because contributions to such partnerships neither can nor should be measured with precision, but also because such an approach is seen as according with the expectations of both parties in such a relationship, barring evidence of a contrary understanding. See Peter, supra at 999, per McLachlin J. and at 1022-23, per Cory J. [43] The value received approach will be appropriate where the unjust enrichment is an uncompensated but measurable contribution to the defendant's general estate that is not reflected in a particular property. [44] Contributions by third parties and the capital brought to the relationship will always be taken into account, not only in determining whether constructive trust is an appropriate remedy, but also in determining the amount of compensation. When one or both of these factors is present, a determination of the net appreciation of value during the relationship attributable to the contribution of the parties will be a helpful first step to determining the appropriate compensation for whatever unjust enrichment the trial judge finds proven. [45] The trial judge's finding of facts in this case dictate, in my view, the use of a value survived approach and the equal sharing of what the parties acquired by their own efforts during their long marriage-like relationship. A value received approach would require the dismissal of the claims of both, for, as the trial judge found, their contributions were equal in every way. When that is so, there is no need for valuation. The resulting enrichments offset each other. [46] The findings of fact do not, however, justify the equal sharing of what they had when they began to cohabit, what third parties gave them, what they acquired following separation, or the risks of ownership to the date of the trial and after. Furthermore, while a presumption exists that common law spouses expected to share in the assets acquired, maintained and improved during the relationship, the application of the doctrine of unjust enrichment to common law spouses does not automatically result in equal sharing of assets on the breakdown of their relationship. In this case, the monetary award must fairly reflect the consequences of the contributions by the parties to the acquisition, improvement, and maintenance of the properties during the relationship. [47] The trial judge did not decide whether Ms. Pickelein owed her mother any money or whether Mr. Gillmore owed his parents any money. To the extent those contributions were proved, they should be considered in arriving at the amount of compensation due from each party to the other, as should the parties' contributions made before and after the relationship. [48] The fact that Ms. Pickelein obtained some of the remaining credits she needed for a B.A. degree during the relationship does not justify the failure to award compensation to Ms. Pickelein for any unjust enrichment of Mr. Gillmore's Sundance assets. Even if it were a justification, there was no evidence before the trial judge from which he could find that Ms. Pickelein's acquisition of a B.A. in 1993 added to her economic value. The trial judge did not err, however, in failing to compensate Ms. Pickelein for unjust enrichment of the Sundance business. Because the parties received the profits earned by Sundance as they were earned, Sundance did not acquire new capital assets. The business did not increase in value during the relationship. There was no enrichment to compensate. Application of principles to facts of this case [49] The cost to the parties of these proceedings to date probably exceeds any reasonable award a court might make. As I indicated earlier in these reasons, the difficulty in valuation of the assets arose only with regard to the forest, and only after separation. Because the trial judge did not find a reason to require the sharing of the risks of ownership following separation, this is a case for valuing the unjust enrichment at the date of separation. There is no evidence of any contribution after that date by either to the other's properties. [50] The facts found by the trial judge, supplemented by uncontroversial evidence, permit sufficient conclusions to allow this Court to fix fair compensation for the unjust enrichment of Mr. Gillmore by Ms. Pickelein. [51] Ms. Pickelein came to the relationship with property having a value of $6,500. Her worth had increased to a value of $300,000 at the date of trial, with at least $39,000 having been contributed by her mother in 1987. The increase in her estate resulted from her mother's contributions, direct and indirect income from Sundance, construction of a basement suite in the Oxford Street house, rental income from the Oxford Street house, and market appreciation. Thus, it may be said that she had gained before trial, without attributing interest to either her original capital or her mother's contribution, as much as $254,500. However, Ms. Pickelein acknowledges a debt of $75,650 to her mother. Mr. Gillmore does not dispute the receipt of money but says that none is owed and questions the amount. There is evidence to support a finding that her mother provided that amount or more, as a gift or as a loan. If this were accepted, Ms. Pickelein's gain from the parties' joint efforts during the relationship would be, at most, $217,850, including the increase in market value of the Oxford Street property between separation and trial of as much as $80,000.00. Thus, the increase in her wealth created by the parties' joint efforts during the relationship would be about $138,000. [52] Mr. Gillmore brought into the relationship the Read Island property with a value of $22,500 and the Sundance business assets (inventory, school bus, goodwill). At separation, the Sundance assets had about the same value. By August 1991, Mr. Gillmore had an interest in Nanaimo and Quadra Island properties valued at about $40,000; Read Island was worth $165,000, plus the value of the managed forest. The value of the forest was volatile between separation and trial, but the evidence strongly suggests that its realistic value at separation was about $45,000, and certainly no more than $86,000. Thus, at separation, Mr. Gillmore had the same Sundance assets he brought to the relationship and property with a realistic value of about $272,500 and a maximum value of $313,500. Each had chattels in their homes. The evidence is insufficient to establish any significant contribution by Mr. Gillmore's parents. It appears that Mr. Gillmore used profits earned from the Sundance assets during the relationship to purchase the Quadra Island and 3rd Street, Nanaimo, properties around the time of separation. It can fairly be concluded that the increase in Mr. Gillmore's wealth created by the parties' joint enterprise during the relationship was realistically about $250,000, and maximally $291,000. [53] The spread between the parties would range from $112,000 to $153,000 in favour of Mr. Gillmore. In the ordinary event, the trial judge would have valued the properties at the date of separation, determined the value of the enrichment of each of the parties by the other, set one off against the other, and have given judgment for the balance with interest accruing from the date of separation under the Court Order Interest Act. [54] There is no reason for any accounting of the profits from their respective properties. Each maintained and enjoyed their own properties to the exclusion of the other following that event as they were clearly entitled to do. The profits from Sundance earned during the relationship were taken into account in the determination of Mr. Gillmore's assets created by the joint enterprise. [55] Allowing for the uncertainties in the value of the forest and of Adelheid Pickelein's contribution, it seems fair to award judgment in favour of Ms. Pickelein for $56,000 as compensation for Mr. Gillmore's unjust enrichment. In the interests of a final resolution of this matter, I would set aside the orders of the trial judge and substitute judgment in favour of Ms. Pickelein for that amount with interest from the date of separation at rates payable under the Court Order Interest Act. I would secure that judgment by an equitable charge on Mr. Gillmore's two Nanaimo properties. These properties are less emotionally charged than the Read Island property. [56] It follows that I would not give effect to Ms. Pickelein's other grounds of appeal. Nor would I grant Mr. Gillmore's motion to adduce fresh evidence. Insofar as it is relevant, the evidence he sought to adduce could have been made available to the trial judge. As to the rest, its admission would not affect the result. [57] I would make no order as to costs. "The Honourable Madam Justice Huddart" I AGREE: "The Honourable Madam Justice Rowles" I AGREE: "The Honourable Mr. Justice Donald"