Date of Release: April 2, 1996 Creston Registry File No: 1377 IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ) ) DEBORAH GOBLE ) ) PLAINTIFF)REASONS FOR JUDGMENT OF THE ) AND: ) HONOURABLE MR. JUSTICE COOPER ) DAVID STRELOFF ) ) DEFENDANT) R.G. Stacey, Esq. counsel for the Plaintiff A. Perehudoff, Esq. counsel for the Defendant Dates and Place of Hearing: October 17, 18, 19, 20, 1995 and March 12, 13, 1996 at Nelson, British Columbia 1 The plaintiff brings this action for a declaration that the defendant holds on a resulting or constructive trust for the plaintiff certain real and personal property registered in the defendant's name or which is in the defendant's sole possession or registered in the joint names of the parties, all of which assets are alleged to have been acquired by the parties during periods when they lived in a common law relationship. 2 The plaintiff was born in Nelson, British Columbia. She is 27 years of age, generally resides in Creston, British Columbia, and is an immigration officer employed at Kingsgate, British Columbia. Currently, she is working in Vancouver until she is scheduled to return to her Kingsgate employment in April, 1996. 3 The defendant was born in Trail, British Columbia. He is 28 years of age, lives in Castlegar, British Columbia, and manages a clothing store owned by his parents in Trail. 4 The parties met December 31, 1986 and began dating the following May. Shortly thereafter they began sleeping together at the home of the defendant's parents and occasionally at the plaintiff's grandmother's home. In the spring of 1987 the defendant completed a business administration course at Selkirk College while the plaintiff attended college in Calgary. The plaintiff's course of studies included a course in criminology. As part of that course, she spent two weeks in Holland and Germany studying the justice system there followed by a four week continental holiday. The defendant was able to accompany her on that occasion. 5 In the summer of 1989 the plaintiff terminated the relationship with the defendant and returned to Calgary where she was having a relationship with a Dwayne Lipchuck. In December of that year she earned a diploma in criminology from the college. She then gained a position with Canada Customs at Nelway and subsequently transferred to Paterson, British Columbia. In May, 1990 she moved back to Castlegar. When her parents moved to Enderby in July of that year she moved into the defendant's apartment in Selkirk Manor in Castlegar, resuming the previous relationship with him. 6 In September, 1990 the defendant purchased a house and property at 1421 Highland Drive in Castlegar. The plaintiff says that purchase was at his mother's urging but one which she didn't approve. The purchase price was $66,000.00 and was financed by a bank mortgage of $36,700.00 and a loan of $29,800.00 from the defendant's parents. The parties moved into it and commenced extensive renovations and repairs which I find were largely done by the defendant and his parents and entirely financed by his parents. 7 The plaintiff claims to have turned over her pay cheque from Canada Customs to the defendant to pay the expenses. By October, 1990 she gave up that employment and then commenced working for the defendant's mother in the Kootenay Klothes Kloset, a store owned and operated by his mother in Castlegar. Again, the plaintiff says she gave every pay cheque to the defendant or paid household bills herself but admits that she is unable to prove it. 8 The defendant says that although the parties had an agreement to share expenses in which the plaintiff was to look after the food and household bills and he was to make the mortgage payments, the plaintiff did not honour her agreement and he therefore had to pay all the bills on frequent occasions. The defendant has kept a close record of all of his expenditures and was able to exhibit his bank records and cancelled cheques for payments he made while residing at 1421 Highland Drive and subsequently. 9 When the plaintiff obtained employment with the Department of Citizenship and Immigration at Kingsgate in June, 1992, she initially moved to Cranbrook where she stayed with the defendant's relatives and commuted to her new workplace from there. From June until November of that year she returned to Castlegar on weekends to spend time with the defendant. Following that, she rented a place in Kingsgate for the next six months until it was sold, continuing during that time to see the defendant on weekends. The plaintiff then began looking for a place in Creston. In May, 1993 the defendant moved a trailer, (which he had purchased some two years earlier for rental purposes) to Creston so that the plaintiff could have accommodations there and continue to commute to work in Kingsgate. To do that the defendant found it necessary to terminate the existing tenants' lease and forego their $500.00 monthly rent. He also incurred considerable expense in moving the trailer, fencing it, and laying down floor carpets. The plaintiff did provide some assistance in placing the skirting on the trailer but it is clear that her contribution there was minimal. It is admitted, however, that the plaintiff did paint the interior of the trailer and purchased a furnace at a cost to her of $1,750.00. She continues to make the trailer her Creston residence. She has built a shed on the trailer pad at a cost of $400.00, done extensive renovations to the interior of the trailer to render it more liveable, pays property taxes and pays monthly pad rental of $185.00. 10 The plaintiff says that she told the defendant that her position with Immigration was going to become permanent. The parties discussed the defendant moving to Cranbrook or Creston so that they wouldn't have to live apart. She testified that he initially agreed that he would do so but that after speaking about it with his parents he decided not to leave Castlegar. The plaintiff said that they have not slept together in December, 1993. 11 In June, 1993 the defendant arranged to purchase a more suitable home at 1433 Highland Drive financed in part by his parents and with a bank mortgage. He placed it in the joint names of the parties in anticipation of their marriage. The plaintiff took a couple of days off and she and the defendant, along with his parents, painted the interior of the house. She said she also painted some fence posts in the yard. She further said that she was jointly responsible for the $96,000.00 mortgage on the property which they had taken out to finance its acquisition. 12 The plaintiff and the defendant also purchased in their joint names a new 1993 Ford Ranger in January, 1993 for $19,500.00, trading in a 1984 Mazda owned by the defendant but which had been used by the plaintiff. It is agreed that the parties were then jointly liable for the balance owing for the Ford Ranger and that it has a market value of $14,000.00 at this date. The plaintiff has continuously used the Ford Ranger since its purchase and presently does so, and she pays all servicing and maintenance costs for it. 13 The plaintiff now seeks return of personal chattels which she claims she owns and which are in the defendant's possession, viz: A Honda motorcycle (with blue seat and orange handles). A birdhouse (made by her grandfather). The Chevrolet truck. A china cabinet (previously owned by her grandparents). A pool table (owned by her father). Certain guns used for skeet shooting (loaned by her father). 14 The plaintiff claims an interest in household chattels now at 1433 Highland Drive or elsewhere purchased by, given to, or owned by the parties, viz: A bedroom suite (purchased in Fall of 1933). A T.V. set (a Christmas gift in 1990 from defendant's parents). A bread maker and bedroom furniture (a Christmas gift in 1993 from defendant's parents). A V.C.R. (purchased by defendant January, 1993). A C.D. player (purchased by defendant for her Christmas 1990). A Camcorder (given by defendant's parents to the parties). A Stereo player (purchased by defendant in Summer, 1993). 5 wool blankets (seized by Customs and purchased by the plaintiff). An Inglis washer/dryer (now in the trailer in Creston and purchased by the plaintiff for $1,200.00 in 1994). A refrigerator and dishwasher (now in the trailer). An electric stove (a replacement stove for trailer given by defendant's grandmother). A C.D. player component (purchased by plaintiff in January, 1993). A V.C.R., dart board and cordless telephone (now in the trailer and won by the parties at Rossland). A queen size bed (Purchased in Fall 1993 on defendant's Visa card). A duvet (goose down) - (Purchased at Sears by plaintiff). 2 sets of duck prints (Purchased by plaintiff). An entertainment Centre (Purchase in Fall 1993 and now in trailer). A microwave (Given by defendant's parents at Christmas 1993). A mountain bike (presently in plaintiff's possession - the defendant having one). 15 The plaintiff produced her bank records for the period commencing August 1, 1992. The records appear to cover car expenses, some food bills while at 1421 Highland Drive, expenses for a dog purchased by the parties, car insurance for the used Mazda which the plaintiff operated, cash withdrawals, some truck payments, grocery purchases, mobile park payments, dental bill payments, hydro and telephone payments. 16 While the plaintiff's records tend to show that she indeed paid some of the household and food expenses of the parties, she testified in cross-examination that she was unable to quantify them. She did not dispute any of the records of the defendant which tended to show he had indeed paid most of the expenses of the parties, but she protested that she had contributed money for as many of the expenses as she could. The plaintiff admitted that she had filed an affidavit on May 19, 1995 in which she swore that she had given the defendant $300.00 - $400.00 each month since June,1990 and that she had done that in order to get a judgment against the defendant. 17 The plaintiff also admitted in cross-examination that in October, 1993 she had commenced a social relationship with a Mr. McSeveney in Creston. By February, 1994 she had begun sleeping with Mr. McSeveney. However, she agreed that the relationship with the defendant had terminated by the end of January, 1994 as Mr. McSeveney said he had given the defendant a statement at a time when he was angry with her. 18 On March 17, 1994 the defendant tendered an agreement to the plaintiff to terminate the relationship and settle the division of the parties' assets. Essentially, that agreement directed that the assets would be divided as follows: Transferring to the defendant the full interest in 1433 Highland Drive and releasing the plaintiff from liability on the mortgage debt. Transferring to the plaintiff the full interest in the Ford Ranger and the mobile home she was occupying. The plaintiff was to pay the defendant $17,000.00, representing the defendant's cost of acquiring the trailer, moving it and paying off the loan for the Ford Ranger. Transferring to the defendant the Chevrolet 1/2 ton truck. The contents of 1433 Highland Drive to belong to the defendant, and the contents of the trailer to belong to the plaintiff as well as the pool table and china cabinet. 19 That proffered agreement was revoked by the defendant by registered letter dated April 15, 1994. At the same time the defendant demanded trailer rent at $300.00 per month as and from July 1, 1993, giving credit in respect of the rent then due for the furnace purchased by the plaintiff and her miscellaneous expenses which she had incurred, totalling in all $2,750.00. 20 The plaintiff launched this action on May 6, 1994. The issue is whether the defendant holds in trust for the plaintiff any interest in the real or personal property now held in his name or his possession, or alternatively, whether the plaintiff is entitled to a monetary judgment for sums expended by her in the acquisition of such assets. 21 The real question is whether the plaintiff has made a substantial contribution to the property of the defendant whereby he would be unjustly enriched failing payment of compensation to her. This action is therefore one for unjust enrichment of the defendant. In Peter v. Beblow 77 B.C.L.R. (2d) 1 (S.C.C.) McLachlin, J. set out the three elements necessary to justify such an action. At P. 6 she described those elements as: (1) an enrichment; (2) a corresponding deprivation; and (3) the absence of a juristic reason for the enrichment. McLachlin, J. went on to say that if these elements are proven there are a number of remedies available. One such remedy is payment for services rendered on a quantum meruit basis, a monetary judgment. That remedy flows from a recognition of a right of property. See Lac Minerals v. International Corona Resources [1989] 2 S.C.R. 574. A second remedy such as was granted in Pettkus v. Becker [1980] 2 S.C.R. 834 may arise where monetary damages are inadequate and where there is a contribution to the property sufficiently substantial and direct as to entitle the plaintiff to a portion of the profits realized upon sale of the property. That may be described as the remedy of constructive trust. 22 In my view, this is not a case in which the plaintiff has demonstrated that she has made a substantial contribution to the property either by her household services or by cash contributions to the defendant's property. Her only contribution to the real property, if it may be described as a contribution, was her undertaking to be jointly obligated to repayment of the mortgage. Indeed, she did not make any of the mortgage payments and it was never anticipated that she should. Nor did she pay for any part of the cost of renovations or repairs to either of the two properties on Highland Drive. Her only contribution was a minimal amount of labour on a very few occasions. 23 In respect of the Ford Ranger truck I am satisfied that the plaintiff has had the sole use of that vehicle since its purchase and has paid a number of the monthly truck loan payments as well as its service and upkeep costs. On the other hand the defendant paid out the balance owing on the truck loan in August, 1993 from his own resources. 24 The third major asset is the mobile home of which the plaintiff has had use since May, 1993 free of rent. She has paid for repairs and renovations to the mobile home and has added a furnace. As well, she has paid the pad rental. However, her contributions were essentially made to render the mobile home more liveable and to provide for her own accommodation. Any increase in its value such as by the installation of the furnace is compensable by way of a monetary judgment. 25 In my view the plaintiff has not established the three elements necessary to a finding of unjust enrichment. I find that no constructive trust has arisen by virtue of the plaintiff's contributions to the property held by the defendant or registered in his name. I can find no deprivation suffered by the plaintiff as a result of her very minimal contributions to the property. I find she has used the defendant and his property as a stepping stone to advance her own career and if the defendant has been enriched in any way by her contributions it has not been established that there was no juristic reason for his enrichment. 26 I am satisfied that this is a clear case where the plaintiff may be adequately compensated on a quantum meruit basis. I accept that the plaintiff paid the Ford Ranger truck payments of $100.57 per week from January 27, 1993 to August 25, 1993, a total of 31 weeks, in the sum of $3,117.67. 27 The plaintiff claims she contributed an average of $350.00 per month to the relationship from July 1990 to January 1994, a total of 43 months, in the sum of $15,050.00. The defendant denies this and estimates her total contribution at $1,500.00. Furthermore, he submits that she equally benefited from any of her contributions. There is some evidence of the plaintiff's cash contributions but it has not been satisfactorily quantified. I would therefore fix what I consider to be a fair amount for such contributions by the plaintiff at $7,500.00. 28 The plaintiff's contributions to the mobile home are not seriously disputed by the defendant. Her claim for installation of a furnace, renovations, construction of a shed, and other improvements has been estimated at $5,750.00. I would allow the plaintiff that sum. 29 I find that the plaintiff is entitled to judgment for $16,367.67 together with the return of her Chevrolet 1/2 ton truck. The judgment will bear interest pursuant to the Court Order Interest Act at the Registrar's rate as fixed from time to time calculated from May 6, 1994. The defendant is entitled to the transfer of the plaintiff's interest in and return of the 1993 Ford Ranger truck and transfer of the plaintiff's interest in 1433 Highland Drive, subject to the defendant assuming the mortgage debt thereto and releasing and saving harmless the plaintiff from liability therefore. 30 While no claim for division of household chattels has been made in the pleadings, I have been invited to do so on the basis of fairness. I find that a number of the household chattels claimed by the plaintiff were in fact gifts to the defendant from his parents or his grandparents and intended for his use and benefit and not for the parties jointly who were unmarried. The defendant's mother testified that she and her husband had given the larger gifts such as the television set, bread maker, camcorder, stereo, and other large items to their son at Christmas and they never intended those items for both of the parties. On the contrary, she said they gave the plaintiff gifts for herself such as dishes, a silk blouse, a leather skirt, a duvet, cosmetics and perfumes, things that she obtained wholesale but of which were good quality. I accept that evidence which seems reasonable in the circumstances. 31 I accordingly direct that each party retain the personal chattels presently in their respective possessions save that the plaintiff shall be entitled to: The Honda motorcycle (red-handled) The birdhouse The china cabinet The pool table The guns used for skeet shooting The five wool blankets The mountain bike in her possession The Inglis washer/dryer in the trailer The refrigerator and dishwasher in the trailer 2 sets of duck prints Return of her coin collection and the defendant shall be entitled to: The J.V.C. Ghetto Blaster The other mountain bike The table and four chairs belonging to his parents The sofa and chair belonging to his parents The microwave oven belonging to his parents The stove belonging to his grandmother The V.C.R. belonging to Kootenay Klothes Kloset Ltd. The two table lamps belonging to Kootenay Klothes Kloset Ltd. The microwave stand The entertainment centre 32 While the plaintiff abandoned some of her claims at the commencement of the trial and the defendant is thus seeking costs, I have concluded this is a proper case for each party to bear his or her own costs. I make no order for costs. "Cooper J." Dated the 1st day of April, 1996.