INTRODUCTION

[1] Following the giving of oral reasons relative to issues of custody, child support and spousal support, I reserved on the three remaining issues pertaining to this common law relationship which I found as a fact to have commenced in or about October 1991 and to have continued as a common law relationship until at least approximately April 1996, notwithstanding evidence of the plaintiff indicating numerous periods of separation. These periods of separation were covered in the evidence of the plaintiff and referred to in the aid memoir marked Exhibit 22 in these proceedings. The evidence of the plaintiff with respect to her periods of cohabitation with the defendant I found to be accurate with the exception of the period of cohabitation she described being between October 31, 1991 and September 1993. The plaintiff recalled moving in with her friend Carol Moses in August of 1992 after her friend's boyfriend had died, however, I accept the evidence of Ms. Moses where the plaintiff's evidence differs with hers as to when she cohabited with Ms. Moses. I accept the plaintiff was in error when she indicated that she moved in with her friend shortly after her friend's boyfriend's death in August of 1992. I accept the evidence of Carol Moses that her friend died in September of 1993 and that the plaintiff moved in with her for a few months shortly thereafter.

[2] In my view nothing turns on the plaintiff's error that is any consequence in these proceedings.

[3] The defendant had defended the plaintiff's claim relative to child support on the basis that he did not know if he was the biological father of the child of the relationship. Relative to the plaintiff's claim for spousal support, the defendant, in his pleadings, averred that the date of separation had been the 15^th of April 1995, being approximately nine months before the birth of the child of the relationship and that as a result the plaintiff was not a spouse as defined in s. 1 of the Family Relations Act as she did not commence the within action within one year after the date in which the parties ceased living together as husband and wife.

[4] The within proceedings had been commenced by writ of summons filed by the plaintiff on December 9, 1996.

[5] The pleadings filed by the plaintiff and the affidavit material filed therein had the effect of bringing into play the decision of this court in Kolia v. Kolia and National Trust Company Limited, [1981] 5 W.W.R. 540. In that case, Esson J., as he then was, determined that an unmarried person would not be awarded interim maintenance under the Family Relations Act where the other party has denied that the applicant has the status of "spouse" under s. 1 because there can be no entitlement to maintenance until the elements of Para. (c) of the definition of "spouse" therein have been established at trial.

[6] In my view, the evidence led by the plaintiff at trial together with some of the evidence led by the defendant surrounding the birth of the child of the relationship overwhelmingly established that the date of separation previously maintained by the defendant was unsupportable. The inevitable conclusion is that the position taken by the defendant prior to trial relative to the date of separation and the duration of the relationship was deliberately designed to frustrate the plaintiff's claim for spousal and child support.

[7] With this background in place, it is necessary to consider the remaining issues. These are, firstly, whether or not the plaintiff has made out her claim for constructive or resulting trust relating to the assets of Mr. Statham and particularly the house located at 635 Alward Street, Prince George, B.C., on the basis of unjust enrichment, or the included claim for a monetary amount of compensation similarly based on unjust enrichment; secondly, the issue of compensation for the interest alleged by her in the 1991 Thunderbird automobile; and lastly, costs.

CONSTRUCTIVE OR RESULTING TRUST

[8] The appropriate starting point for the analysis of the plaintiff's claim in unjust enrichment is with Peter v. Beblow (1993) 1 S.C.R. 980, where at p. 987, Madam Justice McLachlin (as she then was) speaking for the majority stated as follows:

[9] Her Ladyship then went on to state, at p. 988:

[10] In the Peter's case, the appellant had lived in a common law relationship with the respondent for twelve years doing the domesticate work of the household and raising the children of their blended families without compensation. The respondent had purchased the home occupied by the parties and the appellant had cooked, cleaned, washed clothes, and looked after the garden. In addition, she had worked on the home property undertaking projects such as painting fences, planting a cedar hedge, building a rock garden and building a pig pen. She had also kept chickens for a few years, butchering and cooking them for the family. In the winter months, she had shoveled snow, chopped wood and made kindling. None of these endeavours were paid for by the respondent. Both the appellant and the respondent contributed to the purchase of groceries and household supplies although Mr. Beblow contributed a greater share. During the course of their twelve year relationship, Mr. Beblow was able to pay off the mortgage on the house and to buy a houseboat and a van while Ms. Peter was able to purchase a property with money earned outside the family unit. After the parties had separated the house was vacant. At trial, the trial judge found that Mr. Beblow had been enriched, that Ms. Peter had not been compensated and there was no juristic reason for his enrichment. The British Columbia Court of Appeal allowed an appeal from the judgment of the trial judge awarding Ms. Peter the house property. At issue in the Supreme Court of Canada was whether the provision of domestic services during twelve years of cohabitation in a common law relationship was sufficient to establish the required proprietary link between enrichment and the property in question before the remedy of constructive trust can be applied to redress what was found to be an unjust enrichment of one of the parties in the relationship. In allowing the appeal, the majority of the Supreme Court of Canada determined that the appropriate remedy, being either a monetary award or the imposition of a constructive trust, must only be decided once an unjust enrichment giving rise to restitution is established. Further, the Court stated that the remedy of constructive trust is available firstly where monetary damages are inadequate, and secondly, where there has been a link demonstrated between the contribution that founds the action and the property in which the constructive trust is claimed. The Court further went on to conclude that in determining whether an unjust enrichment exists, policy considerations must be considered under the head of "absence of juristic reason for the unjust enrichment". As a result services given on the voluntary assumption of the role of wife can give rise to a remedy based on unjust enrichment because generally at common law a common law spouse owes no duty in equity or by statute to perform work or services for the other party to the relationship, thus homemaking, in a relationship, can give rise to equitable claims against the other party. In so deciding, the Supreme Court of Canada determined that it was not unfair for the recipient of indirect or non-financial contributions be forced to provide recompense for those contributions. In so concluding, the Supreme Court of Canada determined that the test to be applied in family matters as to whether there is an unjust enrichment without juristic reason must be flexible and the factors to be considered varied.

[11] Some three years after the Supreme Court of Canada's decision in Peter v. Beblow, our Court of Appeal had occasion to revisit the issues of unjust enrichment and constructive trust in Ford v. Werden, 25 R.F.L. (4^th) 372. In that case the parties had separated after a four year relationship. They had cohabited for one year and had one child of the relationship. Both of them were employed during their relationship and acquired separate assets and savings. At the trial level the Court had found that on the application of Peter v. Beblow, supra, that Mr. Werden had been unjustly enriched by Ms. Ford's "household services" and that a monetary award was the appropriate remedy in that case. At p. 376, Newbury J.A., speaking for the Court, relative to the characterization by the judge of a common law or marriage-like relationship having been found to exist, said:

[12] Thereafter, Newbury J.A., after quoting from the majority and minority decisions in Peter v. Beblow discussed the three ingredients which must be found to warrant a finding of entitlement in equity. At p. 379, her Ladyship said:

[13] Thereafter, at para. 14, her Ladyship said:

[14] Her Ladyship then went on to assume, for the purpose of her analysis, that the first and second elements are "two sides of the same coin". She then turned to the "rubric of "absence of juristic reason"". At p. 380, her Ladyship went on:

[15] In the end result, the Court of Appeal determined that upon a review of the reasoning of the trial judge that the trial judge assumed that his finding of the parties' relationship being a common law one was sufficient in itself to give rise to a remedy in unjust enrichment. In so doing, the Court of Appeal found that the trial judge had fallen into error. At p. 382, her Ladyship said:

[16] Her Ladyship went on to state that if the trial judge had carried out the necessary analysis he would have found that the requirements for the claim by Ms. Ford on the basis of unjust enrichment had not been met upon which the appeal was allowed and the plaintiff's claim for a remedy for unjust enrichment dismissed.

[17] In the case at bar, the plaintiff was 19 years of age when she moved in with the defendant at his home on Alward Street in the City of Prince George, B.C. He was 46 years of age and recently separated from his wife. He had acquired the subject home in the 1970's, the home having been constructed by his first wife's father. The rationale for the plaintiff's relocation to Prince George in 1991 is of some import. She had been working in Jasper, Alberta, waitressing. Her parents had picked her up on their way from Saskatchewan to Prince George with a view to her relocating to Prince George where there was a college and where she might be able to continue her education. On the evidence, I am satisfied that her post-secondary educational pursuits were not only important to her but also to her parents.

[18] When Ms. Bowser first arrived in Prince George, or shortly thereafter, she obtained employment at Hertz Car Rental making $8.00 per hour, for 40 hours per week, or approximately $1,400.00 per month. She was not at that time staying with Mr. Statham at the Alward Street residence. They however began dating and the relationship solidified with her moving into the Alward Street residence around Halloween of 1991. Her evidence was that she was spending all her free time with him so she may as well move in. Her evidence included that "she wouldn't have to pay rent".

[19] In 1992 there was some discussion between Ms. Bowser and Mr. Statham regarding Ms. Bowser upgrading her education. Apparently, Mr. Statham urged her to get on with her education and as a result she attended courses at Computime College, in Prince George, taking a technology course. Mr. Statham made the payments on that course and the course was completed by Ms. Bowser. She thereafter took other courses at the College which I believe were also funded by Mr. Statham.

[20] Between April 1993 and June 1995, Ms. Bowser collected Employment Insurance for part of the time and worked sporadically. Her income was slight in relation to his income although Ms. Bowser indicated that she contributed her money for milk, gas and groceries if she went shopping by herself although she conceded that Mr. Statham would generally pay for all bills and expenses relating to the operation of the household. Ms. Bowser did however do work around the residence including house cleaning, laundry, and yard work and she indicated that when Mr. Statham was at work she did 90% of the house cleaning and 100% of the cooking. She also laid out his clothes, cut his hair for him. Both parties would generally assist in the cleaning up of the kitchen after meals. Relative to the yard work, she would cut the lawn, clean the strawberry patch, plant flowers, although Mr. Statham would, when not working, assist. Until they had a washer and dryer at the residence, they would both engage in laundering at the local laundromat. They would both clean the vehicles that were used for family purposes.

[21] In December of 1992, Ms. Bowser and Mr. Statham decided to go and assist in house renovations for Mr. Statham's daughter from a previous marriage. They moved to D'Arcy, B.C., early in April of 1993. Ms. Bowser gave notice to her employer and terminated her employment with Hertz. They returned to Prince George early in June of 1993 prematurely because of some family disagreement with Mr. Statham's daughter and son-in-law. On their return there were some discussions about Ms. Bowser returning to her job at Hertz, along with discussions about her furthering her education.

[22] As a result, Ms. Bowser enrolled in a Marketing and Management program at the College of New Caledonia, being a two year program. She started the program in the fall of 1993 with the first year ending in the spring of 1994, and commenced the second year in the program in the fall of 1994 and completing it in the spring of 1995. She maintained a B average, however, in both years was unable to complete her accounting course and as a result did not receive her diploma. If she had completed the accounting course she would have received her diploma in Marketing and Management.

[23] Mr. Statham paid for the expenses relating to this further education.

[24] In May of 1995 Ms. Bowser again obtained full time employment, this time with the Coast Inn of the North, as a front desk clerk. That employment was again 40 hours per week at $9.25 per hour for approximately $1,600.00 per month. She continued in that employment until the birth of her daughter in January 1996.

[25] In September of 1996, after maternity leave, Ms. Bowser returned to work at the Coast Inn of the North. She had at the time of her returning to work been living with her parents at Ness Lake following the separation from Mr. Statham in April 1996. Up until she went back to work they had not charged her room and board but upon her commencing employment again she was to pay $500.00 per month.

[26] In July of 1996, while the parties were living separate and apart, and she having the Thunderbird with her, Ms. Bowser received a telephone call from Mr. Statham. He indicated to her that he was trying to get a bank loan and that if she were to transfer the Thunderbird into his name he would be able to obtain the loan he wanted. Apparently there was an existing car loan and truck loan at the time. Mr. Statham indicated that the car had to be in his name to get the type of consolidation loan he wanted and that he would pay off the car and no payments would be required from her. She agreed and signed transfer papers transferring the car into his name, according to her on his promise that he would give the car back after he got the loan. She testified that he later said that Ms. Bowser didn't deserve to have the car and that she would only have the use of it.

[27] Thereafter the parties cohabited for approximately three weeks in August of 1996. That month Ms. Bowser, her mother, her sister and her baby went on a trip in the Thunderbird automobile to Saskatchewan to show off the newest granddaughter to her maternal and paternal grandparents returning to Prince George to recommence her employment at the Inn of the North following her maternity leave which had expired in August.

[28] Shortly thereafter while at work, she received a telephone call from Mr. Statham saying that he wanted the car back, that he was going to start dating other women, and that he was going to sell the car. She refused. However, on September 6, 1996, after getting off from work at 11:30 p.m. she found her car gone from where she had parked it. She subsequently identified the car being at Mr. Statham's residence on Alward Street. She made arrangements to borrow a vehicle from a friend. In the meantime, in the ensuing months, the parties again started discussing cohabitation with Mr. Statham also making the Thunderbird vehicle available to her again.

[29] In early December 1996, as a result of further altercations, Mr. Statham indicated he want the Thunderbird back by December 9^th, 1996, and that he again threatened that he was going to put it up sale. He attended at the Coast Inn of the North demanding the key. He took the car that day, however, telephoned Ms. Bowser later that day to discuss visitation rights to Gabriella and the return of the car. He again told her that if she had the car back to him by the 9^th of December she could use it until that time and thereafter it would be shipped to Vancouver and sold.

[30] The car was the subject of a court order of this Court in December of 1996 permitting Ms. Bowser the interim use and possession of it pending trial. Although the parties subsequently cohabited in 1997, that order was never varied or set aside. The car was again taken from Ms. Bowser's possession on Ms. Bowser's birthday in September. She and some friends had gone out to celebrate her birthday and had gone to an establishment called Vivas to dance. She had taken a cab from there, leaving her vehicle at Vivas and was in a taxi heading back to the Yellowhead Inn on 5^th Avenue. As they were driving up 5^th Avenue, by PGI Foods, at approximately 2:30 a.m., she noted Mr. Statham driving her car in the opposite direction. She identified Mr. Statham by virtue of a hat that was familiar to her and identified the car by virtue of a particular dent in its trunk. Upon noticing her car, she asked the taxi driver to turn around but the cabby did not accede to this request. They proceeded to where she had left her car and confirmed that it was indeed gone. She did note Mr. Statham's truck in the same vicinity and noted Mr. Statham walking towards her and the truck. She asked him to bring her car back but, according to her, he said that she was not getting the car back. According to her testimony she advised him that she would call the police whereupon he advised - "Go ahead. They're just a joke anyways". Thereafter she telephoned the police but ultimately she has not seen nor had the use of the subject car since September 5, 1997. When the car went missing it had within it personal items including a car seat she had recently acquired for $300.00, a diaper bag, a wallet with money and I.D., the money being approximately $100.00, a remote control for her apartment, a baby stroller in the trunk, a friend's cell phone and several audio taps.

[31] Marked as Exhibits in these proceedings were various photographs showing the Alward Street home in various stages of renovation work being done to the home between approximately 1993 to 1994. Ms. Bowser's evidence with respect to the purchase of the car was that Mr. Statham received a call from a friend of his in New Westminster indicating that he had a car that they should look at. The price paid by Mr. Statham was approximately $18,275.00, with an end price of $22,598.90. Ms. Bowser testified that Mr. Statham paid $2,000.00 cash down, and that she was a "co-signer". She said that Mr. Statham characterized the $2,000.00 down payment as part of her birthday gift. At the time the vehicle was purchased, in June of 1994, Ms. Bowser was not working but was enrolled at the College of New Caledonia. She testified that after she got employment at the Coast Inn of the North in June of 1995 her paycheques were deposited to the bank account that the parties had opened with the C.I.B.C. in Prince George. Her paycheques were deposited to this account because of the car payments.

ANALYSIS

RESULTING OR CONSTRUCTIVE TRUST

[32] Against this background the plaintiff submits that either a declaration of constructive trust in and to the home on Alward Street ought to be made in her favour, or alternately, that there be some monetary award to compensate her for the services she had performed for Mr. Statham including domestic services and maintenance and cleaning work around his house. An example of such a finding is to be found in the decision of Mr. Justice Josephson in Shepherd v. Sonnenberg 2 R.F.L. (4^th) 67 where following a six year common law relationship in which the plaintiff performed household chores and made a modest contribution to the maintenance of the home and yard, his Lordship determined that the plaintiff had established the three elements necessary to establish a claim for compensation based on unjust enrichment consisting of the services performed by the plaintiff without compensation. He found that those services performed without compensation constituted a benefit to the defendant and a corresponding deprivation to the plaintiff and that there was no juristic reason for the enrichment. His Lordship found that a monetary compensation was adequate on the facts of that case.

[33] In the recent decision of Roering v. Nicholson (1998) 38 R.F.L. (4^th) 51, Madam Justice Koenigsberg had occasion to deal with a ten year relationship and had occasion to deal in detail with the aspects of constructive trust cited in Peter v. Beblow to which I have already referred. After referring to the three essential ingredients founding a claim in unjust enrichment, her Ladyship said, at p. 62:

At p. 63, para. 44, her Ladyship concluded:

At para. 45 of the same page:

[34] Her Lady ship concluded at p. 63:

[35] In the case at bar, I am unable to conclude that there has been an enrichment of the defendant that would give rise to compensation either monetarily or by way of constructive trust relative to the defendant's assets. It is obvious that there was a quid pro quo between the parties. Post-secondary educational pursuits were obviously important to the plaintiff and to her parents. Mr. Statham paid for technology courses the plaintiff attended in 1992. He also urged the plaintiff to continue her educational pursuits at the College of New Caledonia on a two year program in marketing. I find there was a quid pro quo between the parties that provided the basis for the supply of domestic services by Ms. Bowser to Mr. Statham. The fact that there was a common law relationship established, which I have found as a fact, does not as suggested by Madam Justice Koenigsberg always translate into one of the spouses having been economically deprived and the other being economically enriched by that deprivation. Similar conclusions were made in Ford v. Werden in the particular facts of that case. I am satisfied on the evidence that there was indeed a sharing of responsibilities in the family unit that negatives a conclusion of lack of juristic reason for the efforts of Ms. Bowser during the period of cohabitation.

[36] The Alward Street residence had been owned by Mr. Statham for many years prior to his involvement with Ms. Bowser. It is noteworthy that one of the reasons given by Ms. Bowser for her original move into Mr. Statham's residence in October of 1991 was that she would not have to pay rent of $500.00 per month.

[37] In all of the circumstances, I would dismiss this part of the plaintiff's claim.

THE 1991 FORD THUNDERBIRD AUTOMOBILE

[38] As reviewed previously, the 1991 Thunderbird was acquired in June of 1994 for some $22,000.00, with a down payment of $2,000.00 and the balance being financed. In my view, it is rather telling that the plaintiff herself testified to the fact that Mr. Statham had told her to consider the $2,000.00 as part of her birthday present but no reference in her testimony was made to the car itself being a gift to her. The fact of course that the car was registered in her name is not conclusive evidence of beneficial interest. What is telling, in my view, is the fact that after they separated in July 1996, the car was voluntarily transferred into Mr. Statham's name so that he could do his intended refinancing. It would be surprising to believe that Mr. Statham would have agreed to transfer the vehicle back after his financing and that Ms. Bowser would have accepted this representation without more given their history of matrimonial discord and Mr. Statham's previous comments in 1995 that he was going to sell the vehicle.

[39] In the circumstances, I do not conclude that the plaintiff had a beneficial interest in the Thunderbird. I conclude that the Thunderbird was hers to use for as long as they cohabited and her interest in it ceased on cohabitation ending. While the plaintiff testified that when she obtained employment at the Coast Inn of the North while the parties were still together. Her paycheques went into the account at the C.I.B.C. from which the car payments were deducted, I do not believe that this fact in itself establishes a proprietary interest in the vehicle in question.

[40] In the end result the plaintiff has failed to make out any property interest in the 1991 Ford Thunderbird automobile. I decline to make any order to compensate the plaintiff for the loss of use of the vehicle.

[41] I do however find as a fact that the subject vehicle was taken by Mr. Statham without Ms. Bowser's consent on September 5, 1997, while she had lawful possession of the subject vehicle pursuant to the terms of the order of myself made the 23^rd day of December 1996 and the order of Mr. Justice Preston made the 26^th of September 1997. I find the evidence to be overwhelmingly supportive of this conclusion. Mr. Statham always treated the vehicle as being his property to do with as he saw fit. He took possession of the vehicle in 1995 against Ms. Bowser's objections and the taking of the vehicle in September of 1997 is consistent with his attitude. However, in so doing, he was in contempt of an order of this Court that Ms. Bowser have exclusive interim use of the vehicle. That taking resulted in loss to the plaintiff of the personal items therein contained. Those personal items comprised at least the baby car seat, baby stroller, and wallet with identification and $100.00 cash. I award the plaintiff damages in the amount of $1,000.00 to compensate her for this wrongful taking and ultimate appropriation of her possessions by the defendant.

COSTS

[42] The plaintiff indicated that she would like to have the opportunity to address the issue of costs. In the event neither party wishes to ultimately address the issue of costs, I would order that the plaintiff receive costs on Scale 3. While the plaintiff only achieved partial success, such partial success should not in the circumstances result in any apportionment of costs given the findings of facts I have made in this case.

[43] The time required to establish the relief she was successful on far exceeded the amount of trial time required for the items she was unsuccessful on.

"Chamberlist, J."

February 22, 2000 -- Corrigendum issued by Justice Chamberlist advising that the first line of paragraph 19, page 13 had read as follows:

And the line should have read as follows: