Date: 19970306 Docket: 22729 Registry: Kamloops IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: JAMES LEE MOONEN PLAINTIFF AND: MARGARET MARY MOONEN DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE HUNTER (IN CHAMBERS) Counsel for the Plaintiff: Wade Marke Counsel for the Defendant: Catriona Gotuaco Place and Date of Hearing: Kamloops, B.C. February 27, 1997 [1] This is an application by the petitioner, James Lee Moonen, under Rule 18A for an order that the defendant, Margaret Mary Moonen, pay to the plaintiff an amount equal to 50% of the value of a mobile home on a claim that she has been unjustly enriched in circumstances arising out of their relationship. [2] The plaintiff's father had been married to the defendant. They then separated and the plaintiff and the defendant began living together in 1986. Their living together commenced in a rented condominium. In late 1987 the plaintiff and the defendant moved into a home at 535 MacKenzie Avenue in Kamloops which had been the matrimonial home of the defendant and the plaintiff's father. The defendant became the owner of the MacKenzie Avenue home under the terms of a separation agreement between she and the plaintiff's father. The marriage between the defendant and the plaintiff's father had been of approximately ten years duration. [3] The parties lived in the MacKenzie Avenue home for two years and two months. Throughout their relationship both parties were in receipt of social assistance payments. When they moved to the MacKenzie Avenue property there was a mortgage debt against the property approximating $10,000.00 on which monthly mortgage payments of $300.00 were made. [4] In February of 1990 the mortgage debt was paid out from the proceeds of a life insurance policy on the life of Mrs. Moonen's separated husband who died in January 1990. [5] Mrs. Moonen says that a mobile home was then purchased by her because she had a respiratory illness and needed a low maintenance home. The mobile home was purchased in 1991, was new, and the purchase price was $36,700.00. The entire proceeds of the sale of the MacKenzie Avenue home were used to purchase the mobile home, pay off some debts, and buy furniture. To accomplish all of this Mrs. Moonen had to borrow an additional $3,000.00 from the bank. The mobile home was registered in the name of Mrs. Moonen alone. [6] The parties have lived separate and apart since January 31, 1995. Mrs. Moonen continues to live in the mobile home. [7] While living together, as I have said, the parties received social assistance payments. These payments were made in the form of a single cheque each month, the proceeds of which was for both of them. Mr. Moonen says that he cashed the cheque and kept from each cheque between $20.00 and $40.00 and the balance of monies he delivered to Mrs. Moonen. He says that from his share of the social assistance payments, approximately $150.00 per month was applied against the mortgage balance until the mortgage was paid out in February of 1990. [8] Mr. Moonen claims that Mrs. Moonen holds the property under a constructive trust and that he is entitled to a 50% interest in it. In support of this claim Mr. Moonen states that Mrs. Moonen has been unjustly enriched. He claims that he contributed to the mortgage payments on the MacKenzie Avenue property until the mortgage was paid out in February of 1990, that he built a driveway on the MacKenzie Avenue property, and levelled a portion of that property, and did work by way of maintenance and repair. He estimated that this total work over this time, including lawn cutting for approximately one to two hours per week, amounted to between 50 and 60 hours. Mr. Moonen concedes that he contributed no funds to the purchase of the mobile home in 1991, nor has he contributed any significant labour to the maintenance of that new home. He estimates maintenance on the mobile home, including the cutting of lawn and thawing pipes in the wintertime, to have occupied between one-half hour and one hour per week. [9] In her examination for discovery, Mrs. Moonen conceded that she had agreed that if there was any money left over from the sale of the MacKenzie Avenue property after she had purchased the mobile home, that she would let him have some of it. She said that this situation never developed because there was no money left over after the purchase and payment of all bills associated with that purchase. [10] Mrs. Moonen could not recall whether she ever had a discussion with Mr. Moonen, before the purchase of the mobile home, as to his name being included on the title as an owner. She conceded that such a conversation may have occurred, but she could not recall it. [11] Mr. Moonen is 33 years of age and Mrs. Moonen is 55 years of age. [12] In addition to contributing the majority of his social assistance receipts each month, Mr. Moonen worked at a number of occupations on a part-time basis over the years the parties were living together in the MacKenzie Avenue property and later in the mobile home, but I am satisfied that those earnings were not significant and that for most of those months some additional monies by way of social assistance were necessary to bring their income up to the social assistance level which was appropriate to their circumstance. [13] The parties are agreed that the value of the mobile home is presently $43,000.00. [14] The test which must be met by a plaintiff to establish unjust enrichment is set forth in Pettkus v. Becker (1980), 117 D.L.R. (3d) 257, that being that there must be: (a) An enrichment of one person, (b) A corresponding deprivation of another, and (c) The absence of any juristic reason for the enrichment. [15] The Supreme Court of Canada in Peter v. Beblow (1993), 44 R.F.L. (3d) at 329 stated, in the words of McLachlin J. at 335: In recent decades, Canadian courts have adopted the equitable concept of unjust enrichment, inter alia, as the basis for remedying the injustice that occurs where one person makes a substantial contribution to the property of another person without compensation. [16] I do not conclude from the evidence that Mrs. Moonen has conceded that Mr. Moonen has any entitlement to an interest in the mobile home. I turn to a consideration of the circumstances and the test set forth in Pettkus. [17] I am satisfied that the plaintiff has not proved his claim. The MacKenzie Avenue house came into the defendant's ownership under the terms of the separation agreement with her husband. The monies contributed by the plaintiff each month to reducing the mortgage were less than the cost to him of renting elsewhere, and if the defendant had been living alone, her social assistance receipts would have included a shelter allowance sufficient to cover her mortgage payment. The plaintiff did not facilitate Mrs. Moonen's acquisition of either the MacKenzie Avenue property or the property which is the subject matter of this dispute, the mobile home. [18] The plaintiff contributed minimal funds from employment over the course of their relationship and his work on the mobile home property was really quite insignificant, that is, installation of a doorbell, occasional vacuuming inside the home, and one-half hour installing a flower bed. [19] The work he contributed to the MacKenzie Avenue property was negligible as well. [20] The services he provided were more than offset by those provided by her to him, such as cooking, cleaning, laundry and running the household on a daily basis. I am not satisfied that she has been enriched financially in this relationship, but regardless of that, I see no evidence that he suffered a deprivation. It seems to me that he received more financially than he contributed. [21] On the evidence I cannot find that there is any basis for the plaintiff to have a reasonable expectation of acquiring an interest in the mobile home. The plaintiff has failed to prove, as he must, that the defendant has been unjustly enriched at his expense. [22] The application is dismissed with costs to the defendant. "Hunter J." HUNTER J.