[1] The main issues on this Rule 18A application are the division of assets, the sale of a townhouse, and a claim for a reapportionment and a constructive trust.

[2] The parties lived in a common-law relationship from September 1984 until August 1995 when they separated. They have two children: Tyson who will be 11 years old on February 12, and Matthew who turns 15 on June 25. The children reside with the plaintiff in a townhouse on McNair Drive in North Vancouver, B.C. which was the home occupied during the common-law relationship. The defendant, who lives within walking distance, has regular access to the children.

[3] When they were together, the parties worked in the defendant's family run restaurant called "Torchy's" in North Vancouver. During the eight years that the plaintiff worked at Torchy's, she waitressed, hostessed, did the daily laundry, and bartended. She was paid a salary. In August 1995, she was told to leave Torchy's and was given two month's salary in lieu of notice, although the plaintiff says some or all of it was vacation pay.

[4] In June 1996, with $50,0000 financed by the Royal Bank and a loan from his mother, the defendant opened a video store, Just New Reeleases. The business is now bankrupt, the defendant has been sued, and there are judgments against him by Astral Communications Inc. and the Royal Bank totalling approximately $31,000. The judgments have been registered against the defendant's joint interest in the McNair Drive property. In April 1998 the defendant registered a $125,000 mortgage in favour of his mother, against his interest in the property.

[5] Torchy's has not fared well either. While both parties agree that Torchy's is no longer operating, there is no evidence on when the business was closed, or when it went bankrupt. The defendant presently works as an independent claims adjuster for Brouwer Claims Canada.

[6] Both parties seek a division of the "family assets".

[7] The only significant asset is the townhouse which is jointly held by the parties. The defendant wants his one-half interest in the property at this time. As the plaintiff is unable to purchase the defendant's interest, the defendant wants the townhouse put up for sale at the end of this school year. The plaintiff resists the sale of the home because of the children, and particularly because of Matthew who is severely learning disabled. The plaintiff says any sale should be postponed until Matthew completes grade 12, which is just over three years from now.

[8] Matthew was two years old when the parties moved into the townhouse. He is now in grade 9 at Argyle Secondary School which is within walking distance from the townhouse and his father's house.

[9] The plaintiff relies on an assessment conducted in January 1996 by the Area Counsellor for Upper Lynn Elementary School which concluded that Matthew would benefit from predictability, routine and consistency, both at home and at school. The defendant says that Matthew is improving and relies on an October 1999 assessment which concluded that "while many similarities were observed in his profile of test scores, Matthew displayed a somewhat more even profile of abilities during the present assessment than he did during the 1996 assessment".

[10] Matthew may be improving, but the defendant acknowledges that Matthew continues to have severe learning difficulties and an attention deficit disorder. Argyle Secondary School has specifically modified its program to accommodate Matthew. The program is working, and both parties agree that it is important for Matthew to remain at the school.

[11] Both parties agree that the children are a priority, and that the present situation is ideal. As I indicated earlier, the defendant lives within walking distance of the school and the townhouse. In addition, the plaintiff works four hours a day at Windsor Secondary School, which is close enough to allow her to be home for the children after school. Nevertheless, the defendant wants his equity from the home, and says that the plaintiff should be able to find accommodation in the Argyle Secondary School catchment area. He points to the fact that he presently lives in rental accommodation in the area for which he pays $1,300 a month. However, the plaintiff's mortgage payments are only $700 a month. She cannot afford rent or mortgage payments of $1,300 a month.

[12] There is no evidence to suggest that the plaintiff can either purchase or rent suitable accommodation, while at the same time allowing Matthew to remain in the Argyle catchment area, within walking distance of school, and each of his parents' residences. There is no suggestion by the defendant that Matthew should attend another school.

[13] I am not prepared to disturb what both parties describe as an ideal situation. Any sale of the townhouse should be delayed until Matthew graduates, or completes his education at Argyle Secondary School.

[14] The primary assets are the townhouse and an interest in a warehouse in Squamish, B.C. The parties agree that the warehouse interest has a value of approximately $9,000. As for the townhouse, the estimates range from a high of $255,000 in April 1997, to a low of $233,000 in November 1997. The defendant says it is worth between $237,000 to $240,000, while the plaintiff says it is worth around $233,000. For the purpose of this application, I value the home at $236,000. From that figure, I subtract $11,000 for real estate commissions to arrive at $225,000. There are also three vehicles which have a total value of $19,000. The total assets are therefore:

[15] The liabilities are as follows:

[16] The defendant says that there is a liability of $12,500 for "private financing" from his mother, but I am satisfied that it is the same $12,500 that he says was a gift from his mother to enable them to buy the townhouse.

[17] Following separation, the plaintiff, much to her credit, took computer courses and found work. Her annual salary is $23,017. This includes $15,217 from her work as a receptionist at Windsor Secondary School, and $7,800 in child support from the defendant. Her annual mortgage payments are $8,400. Excluding any child tax credit, as those figures were not available to me, the plaintiff's monthly income and expenses in general terms are as follows:

[19] The plaintiff seeks a reapportionment on the basis that she has spent a large part of the 11 years they were together bringing up the boys, and that her father gave her $37,000. Of that amount, $12,000 went towards the down payment on the townhouse; $10,000 towards their interest in the warehouse; $10,000 towards house renovations; and $5,000 in miscellaneous items.

[20] It appears that the parents of both of the parties were generous, with both sets of parents contributing in almost equal amounts towards the down payment of the home. The defendant's parents have helped him out financially in significant amounts since the separation - albeit, to no avail. While the parties were together, however, it seems that the plaintiff's parents may have contributed more than the defendant's parents. I find that the difference, if any, was fairly minimal.

[21] In their argument the parties refer to "family assets" and "reapportionment" of the family assets. The term "family assets" is defined in s.58 under Part 5 of the Family Relations Act, R.S.B.C. 1996, c.128. Part 5 of the Act deals with matrimonial property. Section 65 of the Act, which is also in Part 5, deals with judicial reapportionment of property on the basis of fairness. The factors to be taken into account in determining whether an equal division of property would be unfair, include the duration of the marriage, the extent to which the property was acquired by one spouse through gift, and the need of each spouse to become or remain economically independent and self-sufficient.

[22] There are other factors, but I mention only these because the plaintiff through her counsel suggests these factors should be considered in her claim for an unequal division of the assets in her favour. That would be appropriate if the parties had been married. This case however deals with a common-law relationship. The provisions of the Family Relations Act apply to common-law spouses on issues relating to custody, access, guardianship and maintenance, but they do not apply on issues relating to the division of property and reapportionment of property except in certain circumstances which are not present here. Otherwise, common-law property division issues are to be decided according to the laws of constructive trust as set out in Peter v. Beblow, [1993] 1 S.C.R. 980 ,[1993] S.C.J. No. 36 (Q.L.)(S.C.C.).

[23] The plaintiff relies on Wong v. Spencer [1995] B.C.J. No. 2571 (Q.L.)(B.C.S.C.), where Romilly J. held that the factors that are to be considered when dealing with a reapportionment of assets under the Family Relations Act should be applied to a reapportionment of assets under the principles of constructive trust. He concluded at para. 25:

[24] Levine J. in D.V. v. M.B.B. [1998] B.C.J. No. 2004 (Q.L.) (B.C.S.C.) expressly rejects this approach. However, it is important to note that Wong v. Spencer was decided in 1995 prior to the 1997 amendments to the Family Relations Act which enabled common-law spouses to opt into the protections afforded to married spouses under Part 5 of the Act dealing with matrimonial property by entering into a property agreement under s.120.1 of the Act. That has not happened here.

[25] Levine J. in D.V. v. M.B.B. states at paragraphs 72 to 74:

[26] To succeed in her claim for a constructive trust, the plaintiff must establish that the defendant has been enriched, that she has been correspondingly deprived, and that there is no juristic reason for the deprivation.

[27] I will deal first with the plaintiff's claim for a constructive trust in Torchy's and Just New Reeleases. There is no doubt that the plaintiff devoted many hours working at Torchy's when she was not otherwise engaged in running the home and looking after the children. While there is no evidence on how much she was paid while she worked at Torchy's, there is evidence that she received wages. Torchy's was operating from April 1987 until it closed some time in 1998. The plaintiff was never told why it closed, when it closed, or what happened to any of its assets. Shortly before they separated, the parties took out a $15,000 line of credit in June 1995. In the words of the defendant on his examination for discovery: "It [the line of credit] got used up between Evelyn and I. We took the money out because Torchy's couldn't afford to pay our salaries. We took the money to pay our bills".

[28] However, the plaintiff is concerned that some of the monies may have gone into Just New Reeleases. As with Torchy's, Just New Reeleases closed, and the plaintiff does not know why. The plaintiff says that during the time that Torchy's was operating from 1995 to 1998, the family received a food benefit, but that after she was told to leave the business she received nothing while his family continued to receive a food benefit.

[29] The defendant says that the plaintiff may have worked at Torchy's in a number of different capacities, but that she was a salaried employee. After the separation, he ensured that she and the children could use Torchy's "to get food".

[30] I am not satisfied, however, that the plaintiff has met the burden of proving that she is entitled to a constructive trust in her favour. She has been unable to overcome even the first two hurdles, namely: that the defendant has been enriched and that she has been correspondingly deprived. The plaintiff says that when she left Torchy's it was a thriving business, and that I should draw an adverse inference against the defendant because he has produced no evidence as to why he left Torchy's, and why both businesses have failed. With that I cannot agree.

[31] Not only did the parties use a $15,000 line of credit to meet living expenses because Torchy's was doing poorly in the year they separated, the plaintiff says that when she was let go from Torchy's in August 1995, its parent company, which was owned by the defendant and his family, was in significant arrears with Revenue Canada. As of August 1998 when she swore her affidavit, she believed the arrears were still outstanding. In addition, she says that she had knowledge of other outstanding significant debts because creditors looking for the defendant would often call her.

[32] I agree with the defendant, that if the plaintiff wants an interest in either Torchy's or Just New Reeleases, there is nothing to share except for the debts.

[33] The elements that are required in order to establish a claim for constructive trust or unjust enrichment have not been established. The plaintiff's claim for a constructive trust therefore fails. The defendant otherwise agrees that each of them are entitled to a one-half interest in the assets, subject of course, to the judgments registered against the defendant's joint interest in the townhouse.

[34] As success has been equally divided, the parties will bear their own costs.

"Loo, J."

Loo, J.

Vancouver, B.C.

16 February 2000