Date: 19970930 Docket: CA V02796 Registry: Victoria COURT OF APPEAL FOR BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT: Before: THE HONOURABLE MR. JUSTICE LAMBERT September 30, 1997 THE HONOURABLE MR. JUSTICE MACFARLANE THE HONOURABLE MADAM JUSTICE HUDDART Victoria, B.C. BETWEEN: CATHERINE MARY JONES PLAINTIFF (RESPONDENT) AND: WILLIAM DAVID JONES DEFENDANT (APPELLANT) F.A.V. Falzon appearing for the Appellant C. Jones, In Person appearing for the Respondent [1] LAMBERT, J.A.: This appeal relates to two legal issues arising after the break up of a long-term common law relationship. [2] The relationship started when the plaintiff was 25 years old and the defendant was 20 years old. The defendant has been in the Armed Forces for many years and continues to be in the Armed Forces. He is still some years away from retirement age even though this relationship lasted for 23 years. [3] During their relationship Ms. Jones, the plaintiff, brought up the children who were born into the relationship, and kept up the family home. Mr. Jones, the defendant, kept his full-time employment and brought his remuneration from that employment into the support of the relationship. Generally speaking, he took half of his paycheque and gave it to Ms. Jones and retained the other half for his own use. [4] As far as I understand the evidence, Ms. Jones used the half that was given her for the support of the household and the discharge of household expenses, and I do not understand that she was required to account for it. She could control that money and defray it as seemed best to her in the support of the household. [5] Very occasionally she was able to obtain work. When she did so the arrangement was that she would retain her earnings and retain control over them and, in fact, among the things that she did was invest in mutual funds. As I understand it, both of the parties had bank accounts in their own name and I believe that there was also a joint bank account. [6] There was a family home and there was a lot in Halifax where the parties lived when their relationship together started. [7] About the simple matters arising on the breakup there was no real dispute. Both of the parties seem to have applied the same sense of fairness as to what should be the outcome. The family home they agreed was to be divided equally. The obligation to discharge the mortgage on the family home which had been put in place to supply funds to start a small business was to be discharged with equal responsibility. The Halifax lot which they had bought together as a potential home site was to be divided equally. [8] There were the comparatively small mutual fund accounts, an RRSP account and a bank account in Ms. Jones' name and there may have been other things. There was a bank account in Mr. Jones' name and three vehicles in his name, one of which was utilized only by Ms. Jones and the other two were utilized only by Mr. Jones. [9] This is not a case, of course, under the Family Relations Act. The issues that have been raised in the pleadings are issues relating to a question of unjust enrichment and to a question of maintenance. There were other issues at trial but in this appeal those are the only issues remaining. [10] I will turn first to the question of unjust enrichment in relation to the Millstream property. During the last few months of the parties living together they inspected and visited what I will call the Millstream property. It was land with a house in poor condition on it. They were interested in the property because they knew about the occupants of the house and the owners of the property. It is not clear whether, from the very beginning, there was any interest in purchasing the property. That was a question in issue before the trial judge. But the parties agreed to separate about the end of November in 1993 and they agreed that they would not part until Christmas and their son's birthday was over. In fact, Mr. Jones did not leave the family home, so the evidence is set out, until the beginning of January. [11] Very shortly after he left he purchased the Millstream property for $200,000. [12] The plaintiff, Ms. Jones, claims to be entitled to a remedy in relation to that property on the ground that Mr. Jones unjustly enriched himself by acquiring the property through the use of assets which she says were in part owned by her and that she was deprived of those assets. He obtained a benefit which was collateral to the detriment that she suffered. Ms. Jones says that there was no juristic reason that would justify his retention of her assets to be used for sale and then the application of the proceeds of sale in the acquisition of the property. So goes her argument. [13] What in fact was used by Mr. Jones was the proceeds of the sale of two of the vehicles that were registered in his name, plus some funds from the bank account that was in his name. [14] It was also part of this submission that Ms. Jones had made a contribution through the provision of advice about the purchase of the property and in support of that submission it was said that the intention to acquire the property was formed while they were both living together in their relationship. [15] As I have said, this is not a Family Relations Act case. There is no magic of any triggering event. The question is whether there was an unjust enrichment. If so, what should be the remedy? [16] I now propose to leave that issue for the moment and to turn to the other issue in the appeal, the maintenance issue. [17] Mr. Jones had, at the relevant time, a net income of $3,200 a month, or so. It may have been a little more than that. An interim maintenance order was made of $1,400 a month to Ms. Jones and then at trial a permanent maintenance order was made of $1,700 a month to continue until the matrimonial home had been sold and the mortgage paid off and the proceeds divided and then to reduce to $1,500 per month. [18] That order was made on the basis that it was not reasonable to expect Ms. Jones, who is now about 50, to go into the labour force and, through her efforts in the labour force, to become economically independent or even to make a significant contribution to her own support. It was felt that, as I understand the trial judge put it, the small business that she was conducting in "collectibles" was probably the most likely source of her financial independence or at least financial contribution, and a finding seems to have been made to that effect. [19] Ms. Jones was pursuing studies at Malaspina College rather than seeking employment opportunities and it seems to have been accepted by the trial judge that there was nothing contrary to her obligation to become financially self-supporting and independent for her to use her time in that way. [20] All of the orders made by the trial judge were dependant upon, at least in some respect, the evidence of Ms. Jones about the ownership of the business (which she said was only 25% hers and was 75% her sister's), the provision of the assets of that business, and the cash flow of that business. Other statements were made about the accounting flow in that business and accounting for the profits and accounting for the taxes that were generated through the sale of the collectibles. [21] In support of the appeal an affidavit was filed by the defendant made by the sister of Ms. Jones who was said to be co-owner and co-operator of the business. Her affidavit was entirely contradictory in many respects to the evidence that had been given by Ms. Jones at the trial hearing. The sister came forward apparently after she read about the evidence at the trial hearing, though she was not at the trial, and after she read the judgment of the trial judge setting out the trial judge's conclusions on the facts. Ms. Jones' sister asserted in her affidavit that the trial judge's conclusions were incorrect and that they had been based on evidence that did not properly present the true situation that should have been given before the trial judge. [22] Ms. Jones has said that she would like an opportunity to challenge the truth of what is said in her sister's affidavit through her own evidence and through the evidence of people who will support her view of the facts and will demonstrate that what was set out in the affidavit was incorrect. So, in that respect, she would like to have a new hearing of the maintenance question. The appellant/defendant has also asked for a new hearing of the maintenance question. All I can do is express the hope that both parties in that respect are not just wishing to air family disputes but are truly seeking an order that will be just in all the circumstances. [23] I raise the question of the maintenance matter before concluding my opinion with respect to the unjust enrichment matter because there was one question of credibility in the unjust enrichment matter that was raised in argument. That question related to the fact that Ms. Jones' testimony was that the intention to purchase the Millstream property had been formed during the summer or early fall of the year before the separation at the end of the year. Mr. Jones' evidence was that no intention to purchase that property was formed until the relationship was irretrievably broken down and he had left the family home. [24] In the end I do not consider that the resolution of that question affects the outcome of the unjust enrichment argument. Accordingly, I do not think that the question of the admission of the fresh evidence prevents us from reaching a decision in relation to unjust enrichment. [25] The trial judge concluded that the actual ownership of the assets in this relationship was that each of the parties had an undivided one-half share in all of the assets. The trial judge did not suggest that there was any separate intention on the part of the parties to keep some assets as being owned solely by Ms. Jones and some assets as being owned solely by Mr. Jones. [26] Consistently with that point of view the trial judge concluded that the vehicles that were used by Mr. Jones and which were realized by him and the proceeds applied on the purchase of the Millstream property were vehicles in which Ms. Jones had an undivided one-half share. That half share was never accounted for in any other way in the view of the trial judge, as expressed in her reasons. [27] Consistently with that view, the trial judge dealt with the residue of the assets held by Ms. Jones on the basis that they were jointly owned by Ms. Jones and Mr. Jones. So that position was consistently accepted in the trial judge's reasons. [28] There may have been questions about utilization that were not explored to the end of the possibilities for exploration implicit in that theory, but such perfection is rarely possible in this kind of dispute where the circumstances change so quickly from day to day. [29] In my opinion, the trial judge, on the basis of those findings of fact, cannot be said to have reached any decision inconsistent with the evidence about the basis on which Mr. Jones was enriched through the use of assets which belonged in part to Ms. Jones. [30] Accordingly, he must be taken to have been enriched. She suffered a detriment through the fact that there was no ultimate accounting to her for those assets. And there was no juristic reason that the parties should be excluded from the equality of ownership and their intended equality in their relationship. That being so, in my opinion, it cannot be said that there has been any error demonstrated on the part of the trial judge in reaching the conclusion that there was unjust enrichment. [31] The remedy that was granted was a remedy of entitlement on the part of Mr. Jones to receive 20% of the net gain in the property from its purchase price of $200,000 to the amount that was provisionally realized on expropriation of $273,000 and 20% also of the gain that may be realized in the future when the final expropriation amount is settled. In my opinion no error has been shown on the part of the trial judge in awarding that remedy. [32] The question of making an adverse inference from the failure to call a witness is not, in my opinion, a question that has to be resolved in this appeal because I do not think that it relates to anything other than the conflicting evidence about when the intention to purchase the property was formed and I do not think that that question affects the final outcome of the issue of unjust enrichment and the remedy for it. [33] Accordingly, I would dismiss the appeal so far as it relates to the Millstream property and to the 20% entitlement of Ms. Jones. [34] As I have said, both parties believe that the correct and proper order in the circumstances is to order a new hearing on the question of maintenance. For the reasons I have given I would accede to that request and make such an order. [35] In doing so I would say that all questions that are proper to be canvassed in a hearing between these parties on the question of maintenance are open to be canvassed in the new hearing I would order. The hearing is not limited in any way to any question of the rightness or wrongness of previous orders or to any variance from matters that were dealt with by the trial judge in the hearing that has taken place. [36] I would dispose of this appeal in that way. [37] MACFARLANE, J.A.: I agree. [38] HUDDART, J.A.: I agree. [39] LAMBERT, J.A.: The appeal is disposed of accordingly. "The Honourable Mr. Justice Lambert"