Date: 19970402 Docket: 96/0482 Registry: Victoria IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: RENATA LANG PLAINTIFF AND: THOMAS WILLIAM JONES DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE MURPHY Counsel for the Plaintiff: Philip R. Biggar Counsel for the Defendant: Robert C. Doell Place and Date of Hearing: Victoria, B.C. February 19-21 and 25-27, 1997 [1] The plaintiff and defendant lived together for a period of time. They never married. There were two children born of the union. The plaintiff's position is that the defendant was unjustly enriched by the relationship and that she suffered a corresponding deprivation with no juristic reason for such enrichment. By way of remedy the plaintiff claims either a constructive trust over real property owned by the defendant but which was sold by him shortly after their separation. In the alternate, she claims an award of money on the basis of the value of services rendered. The defendant denies that he was enriched by their association or that the plaintiff suffered any deprivation and asks that this claim be dismissed. [2] Nearly every aspect of the relationship between the parties is in dispute. They are not even in agreement as to when they commenced to cohabit or even, as the defendant claims, if they ever did cohabit in a common law relationship, which he denies. [3] Various other matters are in dispute relating to custody and guardianship of the children, and maintenance for the plaintiff. The main issue, however, in this case, which lasted six days, is the plaintiff's claim for a restitutionary remedy. [4] The defendant is a software instructor and one-half owner of a computer business. The plaintiff is an accountant. She testified that she met the defendant in the fall of 1989 when she was taking a computer course. He was the instructor. At that time the plaintiff lived with her father. She and the defendant began dating at the conclusion of the course at the end of September in 1989. According to the plaintiff Lang she commenced living with the defendant Jones in the spring of 1990. [5] A friend of the plaintiff's, Joan Donald, first met the parties in the summer of 1991. She had just started going out with a friend of the defendant. She cannot give evidence about 1990. However, she does testify that the plaintiff and defendant were living together at a residence on Cordova Bay Road and that they visited back and forth quite often. She described the residence at that time as not fully furnished; there were no curtains or drapes; and that it looked like a bachelor place. She testified that the plaintiff prepared the meals and did the house work, laundry, dishes, vacuuming, gardening, cutting lawns, etc. [6] She also testified that in the latter part of 1991 the plaintiff had moved out but in January or February of 1992 she moved back in. [7] The plaintiff states that she stayed at the defendant's house every night before she moved in in the spring of 1990 at which time she brought her personal effects. She stated that she also brought into the household some kitchen items; that she purchased towels and linen and a comforter for the bed. She also testified that she purchased a white couch and a loveseat from a friend. She described the house at that time, which the defendant had just moved into on January 2, 1990, as not fully furnished. [8] The defendant's sister came from England with her husband and two children. She and the two children arrived on March 27, 1990. Her husband came about a month later. They were sponsored by the defendant. The plan was that she would work with her brother in his business. According to the defendant and his sister, the sister did all of the housework and cooked all the meals. The sister testified that it was "her house". Both she and her brother gave evidence that the plaintiff did not stay there during the time that the defendant's sister and family lived there and that the plaintiff stayed over with the defendant two or three times a week. In September of 1990 the sister and her family went to the house nearby and moved in. After that the sister testified that she saw the plaintiff once a month but never saw them as a couple. [9] The defendant Jones testified that he met the plaintiff in late 1989 or early 1990; that it was not until September of 1992, after learning late in July of that year that she was pregnant for the second time, that he told her she could move in with him. The child was due in March of 1993. She had previously suffered a miscarriage. [10] During the intervening period between 1990 and September of 1992, according to the defendant, the relationship was no more than one of casual sex when the plaintiff would come to his house two or three times a week and stay overnight. [11] In an affidavit of the defendant upon which he was cross- examined, filed on December 6, 1996, the defendant stated: 2. That the Plaintiff and I never lived together as husband and wife, nor did we cohabit as spouses. However the Plaintiff was permitted to come and stay overnight from time to time during which time she became pregnant against my wishes. At trial that was still his position. He also states in the same affidavit: 3. That the pregnancy turned out to be a set up by the Plaintiff in order to make claims for maintenance and property against me. [12] The defendant's sister is obviously biased in favour of her brother. She blames the plaintiff for the parties being in court and testified that the plaintiff should have accepted her brother's "offer" of settlement. [13] The plaintiff's father was not called as a witness. He could have shed some light on whether his daughter continued to live with him between the spring of 1990 and September of 1992 when the defendant acknowledged that the plaintiff moved in with him. [14] While the plaintiff's position is that she did live at the Cordova Bay Road residence from the spring of 1990, she did say that she occasionally stayed with her father during this period. On June 18, 1992 she refinanced a loan with the B.C. Credit Union. Her address is shown as 291 Stevens Road which I presume is her father's residence. When once again on April 15, 1993 she refinanced this loan the Cordova Bay Road residence is given as her address. [15] I accept Joan Donald's testimony with respect to 1991. While the plaintiff has testified that she moved in in the spring of 1990, she did say she occasionally stayed with her father. In June of 1992, as mentioned, she refinanced the loan and showed her address as that of her father's. I think she probably spent most of her time at the defendant's residence. The plaintiff and defendant discontinued this relationship between the latter part of 1991 and early in 1992 at which time the defendant was involved with another woman. The relationship then resumed. I conclude that between early in 1990 and September of 1992, when the defendant says that the plaintiff moved in when she was pregnant, that the relationship during that time was not one that could be described as a common law marriage relationship. In other words, neither one was committed to it. [16] I find that between September of 1992 and March of 1996 when the parties separated, they cohabited as man and wife. I also find that the pregnancy was not a "setup" as claimed by the defendant. [17] The first child, Daniel, was born on March 18, 1993. A second child, Michael, was born on July 20, 1994. [18] The plaintiff was working full-time as an accountant for the owners of a golf course up until the time of Michael's birth on July 20, 1994, after which time she only worked part- time at the golf course. [19] In 1992 she earned slightly more than $29,000; in 1993 her employment income was $11,700 plus $7,300 Unemployment Insurance (maternity benefits) for a total of $19,000. She was on maternity leave for six or seven months during that year, the year of Daniel's birth. In 1994 her employment earnings amounted to $17,322 plus Unemployment Insurance benefits (maternity leave) of $6,864, for a total of approximately $24,000. She was on maternity leave around the date of Michael's birth in July until the early part of 1995. Her employment income in 1995 was $17,196 plus $936 UIC benefits (maternity leave), for a total of $18,000 approximately. When the plaintiff returned to work in 1995, following her maternity leave, she switched jobs with another person who previously worked three days a week. She has continued in that capacity ever since. [20] The plaintiff owns a 1986 Volkswagen Golf car acquired in 1994 which she values at approximately $2,500. She also values furniture in her possession at $12,000 and household effects at $5,000. By in large the furniture consists of items removed by her from the residence on Sierra Place when she left in March of 1996. She claims that she bought some of it and that she and the defendant purchased some of it together. The defendant, on the other hand, says he paid for all of the furniture. He values the furniture, including the children's furniture, garden equipment and tools, at $25,695. However, as to the defendant's itemization of the furnishings which he states were removed by the plaintiff, this is exhibited to the affidavit filed December 6, 1996 to which I have previously referred, in this respect he states: 5. EXHIBIT "A" hereto is a complete list of the chattels that I owned prior to even meeting the Plaintiff and I believe she has no right or entitlement to retain possession of them or keep them under her control. When it was pointed out to him in cross-examination that there would be no reason for him to own any children's furnishings before he even met the plaintiff, he acknowledged that the statement in his affidavit was in error in this respect. [21] During the time the parties were together the plaintiff paid $14,000 out of her income towards the reduction of a loan which she originally acquired, I believe, before the parties met and which she refinanced twice: June 18, 1992 and April 15, 1993. In other words, the loan had its genesis at a time when the parties were not cohabiting in a common law relationship. When it was refinanced on June 18, 1992 she received approximately $9,000 which, as previously mentioned, was used to pay her Visa, MasterCard and, I believe, a student loan. When it was refinanced again on April 15, 1993 she received approximately $8,500 of which approximately $3,900 was used to pay her credit cards and $4,600 to finance a car purchase. At the time of separation in March of 1996 the amount owing was approximately $10,000 and that was paid off by her father to whom she gave a promissory note. In that two- year period, therefore, the loan was paid off to the extent of some $14,000. [22] In addition to that, she owned two horses which she kept at her father's place from time and at other times she boarded them out. This cost approximately $150 per month minimum for board or feed for something in the neighbourhood of $5,000 for the period. [23] The defendant has continued to carry on as part-owner of the software business. As to his real property, the defendant acquired property on Sims Road in 1987, financed by a mortgage and a down payment of $20,000 which he had from his savings and the proceeds of sale of a condominium he owned on McKenzie Avenue. In October of 1989 he purchased the property on Cordova Bay Road with a down payment of approximately $80,000, $60,000 of which came from his mother and $20,000 from the sale of a one-half share in his business. Both of these properties were eventually sold and in late 1994 he bought the property on Sierra Road where the parties were living at the time of separation for $265,000, which was financed by way of mortgage and proceeds of the sale of the two previous properties. This property was sold on March 29, 1996 for $273,700 for a net of $241,837.28 after allowing for real estate commission and his share of the 1996 real property taxes. He received approximately $52,900 in cash. In addition, however, there is described on the statement of adjustments as, "holdback re matrimonial file...." the sum of $20,000. Prior to the sale he re-mortgaged that property and received the sum of $80,000. In all, including the holdback and the proceeds from re- mortgaging, the net proceeds of the sale amounted to approximately $153,000. I understand from the net proceeds of the sale that some $49,000 is either in court or is being held in a trust account pending the outcome of this action. [24] In addition to the foregoing, the defendant owns two registered retirement savings plans valued at $10,000 each. The first one he commenced to contribute to in 1984 and continued to do so up until 1990. He started to contribute to the second one in March of 1993 and contributed $300 per month for 29 months. As well, he owns a 1991 Ford Explorer which he purchased in May of 1993. Its value is $16,500 against which is a car loan of $12,500. [25] The defendant, on the other hand, states that he funded all of the household expenses for food, shelter and furniture. While the plaintiff produced cheques signed by her on her account indicating various purchases over a period of time, it is the defendant's position that he reimbursed her for all of these expenses. [26] The plaintiff bases her claim on financial contributions she made to the household for food, clothing and items of furniture, together with household duties performed by her, including the care of the two children of the union. [27] A comparison between the plaintiff's bank deposits and her income from salary prepared by the defendant indicates that from September of 1992 until the end of the year there is a difference on the plus side of approximately $2,800; in 1993, approximately $14,000; in 1994, approximately $12,000; and in 1995, approximately $11,000. [28] I have some difficulty with this, however. For example, in 1993 the statement indicates her net salary deposits of $8,023.00. This is probably about right, allowing for income tax deductions and the like. However, it does not take into account the Unemployment Insurance benefits of $7,300. [29] Likewise, the 1994 difference does not take into account the approximately $6,800 received by the plaintiff by way of Unemployment Insurance benefits, again, for maternity leave. It is not that these amounts are not recorded in the statement, they are simply shown as not being salary. [30] The plaintiff testified that she received monies from time to time from her father with whom she had been living prior to commencing her relationship with the defendant and, as well, that he paid her some amounts for looking after his books. Here, again, evidence from the plaintiff's father as to what amounts he paid to the plaintiff would have been helpful. [31] The plaintiff does not deny that she did not receive funds from time to time from the defendant nor that he did not contribute to the household. It is her position that it was extremely difficult to obtain money from him. The defendant's position, on the other hand, is that he was extremely generous and provided whatever funds the plaintiff required without question. [32] The plaintiff claims no financial contribution towards the real property owned by the defendant except that with respect to the purchase of the house they were living in at the time of separation that there were no lawyers' fees inasmuch as one of the owners of the golf course where she works is also a lawyer and he provided services of that nature free-of-charge to his employees. [33] To summarize, my findings are as follows: (1) Between the spring of 1990 and September of 1992 the parties had an informal relationship during which time they cohabited except between the latter part of 1991 and early 1992 and on occasions when the plaintiff stayed at her former home with her father; (2) From September of 1992 when the parties learned that the plaintiff was pregnant and the defendant invited the plaintiff to stay with him until March of 1996 when they separated, it was a common law relationship, i.e., a "common law marriage". (3) Before, during and after the relationship the defendant worked in his business full-time and quite often 50 to 60 hours per week, including evenings and weekends; (4) The plaintiff commenced working full-time as an accountant some time in 1992 until July of 1994. Following the birth of their child, when she returned to work in the early part of 1995, she worked only part-time and still does with a reduction in salary; (5) The defendant made all of the financial contributions to the purchases of the home on Cordova Bay Road in late 1989 and on Sierra Place in 1994 and paid for the upkeep and mortgage and taxes; (6) The plaintiff made only minor or indirect contributions to the said properties; (7) The defendant paid for most of the household expenses. The plaintiff also made payments but the fact that her bank deposits exceeded her salary income and there is no evidence as to how much her father paid her, this indicates that most, if not all, of the plaintiff's expenditures were reimbursed by the defendant; (8) During the period of cohabitation the plaintiff paid approximately $14,000 in reduction of an outstanding loan and the sum of $5,000 for the feeding and boarding of her two horses. In addition, she financed the purchase of a vehicle in the sum of $4,600; (9) The defendant contributed approximately $10,000 to an RRSP and purchased the Sierra Place property which he sold at a loss; (10) From the commencement of the common law relationship in September of 1992 until the separation in March of 1996 the plaintiff looked after the household and the children with somewhat minor contributions in these respects by the defendant; (11) The defendant never proposed marriage to the plaintiff nor, for that matter, was marriage ever really contemplated by either of the parties; (12) The parties did not mix their funds. They had separate bank accounts at all times; (13) The plaintiff may have thought about it but she had no real expectation of sharing in the defendant's property; (14) When the plaintiff left the Sierra Place premises in 1996 she took most of the furniture and effects with her, most of which had been bought and paid for by the defendant. These have not been appraised. The defendant's approximation of value is somewhat inflated. I conclude that in all the total value is approximately $15,000; (15) Mr. Doell, counsel for the defendant, uses the term "rollercoaster" to describe the relationship between the parties. Notwithstanding the plaintiff's denial of this description I find it is apt. [34] With respect to the plaintiff's claim for compensation, the plaintiff claims in the statement of claim as follows: (e) pursuant to s. 36 of the Law and Equity Act, and Rules 45 and 46 of the Supreme Court Rules, an Order that the Defendant be restrained and enjoined from disposing of, encumbering, assigning, or in any similar manner dealing with the property, or any other assets in which the Plaintiff has, or may have, an interest, pending final determination of this action, without the consent in writing of the Plaintiff or without further order of this court; (f) a determination of the interest of the Plaintiff in the property held by the Defendant, and a declaration that the Defendant hold such interest of the Plaintiff in trust for the Plaintiff; (g) an Order for an accounting of the proceeds of the sale of the real property located at 1935 Sierra Place, Victoria, British Columbia, more particularly known and described as P.I.D. 002- 747-260, Lot 12, Section 85, Victoria District, Plan 26291, and an Order dividing the net proceeds between the Plaintiff and the Defendant upon such terms as to this Honourable Court may seem just; (h) the equitable remedy of tracing; (i) in the alternative, restitution; (j) costs; and (k) such other relief as this Court may order. [35] Mr. Biggar, on behalf of the plaintiff, claims the sum of $80,000. I am not sure how he arrives at this figure. Furthermore, there is no claim in the prayer for relief for a monetary award but the term "such other relief as this Court may order". In Everson v. Rich (1988), 16 R.F.L. (3d) 337 at 343, the Alberta Court of Appeal held that this "... is broad enough to encompass a claim for monetary or damages arising from unjust enrichment." [36] Mr. Doell, on behalf of the defendant, submits that the action should be dismissed. It is the defendant's position that whatever benefits the plaintiff received she received compensation in return; she has not jeopardized her career. He further submits that if any compensation that is due, it should be on the basis of quantum meruit for a relatively small amount. [37] The leading authority in matters of this nature is Peter v. Beblow, [1993] 1 S.C.R. 980, 44 R.F.L. (3d) 329 (S.C.C.), 117 D.L.R. (3) 257 and 77 B.C.L.R.. The factors are set out succinctly in the headnote: The plaintiff and the defendant cohabited for 12 years in a traditional common law relationship. The plaintiff did the domestic work and raised the children without pay. In 1971, two years before the parties began cohabiting, the defendant purchased the house in which the family ultimately lived. The plaintiff undertook the gardening and the maintenance work around the home. During their relationship the defendant was able to pay off the mortgage and acquire other assets. The plaintiff, using money from her part-time job, purchased a piece of property, which she continued to own at the time of the proceedings. The trial judge found that the defendant had been unjustly enriched and awarded the plaintiff the home under a constructive trust. Upon the defendant's appeal, the appellate court held that there had been no unjust enrichment. Although the court acknowledged that the defendant had, in fact, been enriched, it found that the plaintiff had not been prejudiced by the relationship. Alternatively, if the plaintiff had suffered a deprivation, she failed to establish that she had prejudiced herself based on the reasonable expectation of receiving something in return for her work and services. Finally, the court found that the plaintiff's contribution and the land were sufficiently connected. The Supreme Court of Canada was unanimous in allowing the appeal. [38] The majority view was expressed by McLachlin, J. (La Forest, Sopinka and Iacobucci, J.J. concurring) at p. 337: I share the view of Cory J. that the three elements necessary to establish a claim for unjust enrichment -- an enrichment, a corresponding deprivation, and the absence of any juristic reason for the enrichment -- are made out in this case. The appellant's housekeeping and child-care services constituted a benefit to the respondent (1st element), in that he received household services without compensation, which, in turn, enhanced his ability to pay off his mortgage and other assets. These services also constituted a corresponding detriment to the appellant (2nd element) in that she provided services without compensation. Finally, since there was no obligation existing between the parties which would justify the unjust enrichment and no other arguments under this broad heading were met, there is no juristic reason for the enrichment (3rd element). Having met the three criteria, the plaintiff has established an unjust enrichment giving rise to restitution. [39] At p. 339: Nor, in the case at bar, was there any obligation arising from the circumstances of the parties. The trial judge held that the appellant was "under no obligation to perform the work and assist in the home without some reasonable expectation of receiving something in return.... This puts an end to the argument that the services in question were performed pursuant to obligation. It also puts an end to the argument that the appellant's services to her partner were a "gift" from her to him. The central element of a gift at law -- intentional giving to another without expectation of remuneration -- is simply not present. [40] At p. 341: Accordingly, I would agree with Cory J. that there are no juristic arguments which would justify the unjust enrichment, and the third element is made out. Like him, I conclude that the defendant was enriched, to the detriment of the plaintiff, and that no justification existed to vitiate the unjust enrichment claim. The claim for unjust enrichment is accordingly made out and it remains only to determine the appropriate remedy. [41] All of the foregoing pronouncements apply to the case before me. In other words, I find that the claim for unjust enrichment is made out. [42] As to the remedy, Madam Justice McLachlin states at p. 341: The other difficult aspect of this case is the question of whether the remedy which the trial judge awarded -- title to the matrimonial home -- is justified on the principles governing the action for unjust enrichment. Two remedies are possible: an award of money on the basis of the value of the services rendered, i.e., quantum meruit; and the one the trial judge awarded, title to the house based on a constructive trust. In Canada the concept of the constructive trust has been used as a vehicle for compensating for unjust enrichment in appropriate cases. The constructive trust, based on analogy to the formal trust of traditional equity, is a propriety concept. The plaintiff is found to have an interest in the property. A finding that a plaintiff is entitled to a remedy for unjust enrichment does not imply that there is a constructive trust. As I wrote in Rawluk, ... for a constructive trust to arise, the plaintiff must establish a direct link to the property which is the subject of the trust by reason of the plaintiff's contribution. This is the notion underlying the constructive trust in Becker v. Pettkus,.... [43] In discussing the remedy Madam Justice McLachlin states at p. 343: Where a monetary award is sufficient, there is no need for a constructive trust. Where a monetary award is insufficient in a family situation, this is usually related to the fact the claimant's efforts have given her a special link to the property, in which case a constructive trust arises. For these reasons, I hold the view that in order for a constructive trust to be found, in a family case as in other cases, monetary compensation must be inadequate and there must be a link between the services rendered and the property in which the trust is claimed. Having said this, I echo the comments of Cory J.,... that the courts should exercise flexibility and common sense when applying equitable principles to family law issues with due sensitivity to the special circumstances that can arise in such cases. [44] Madam Justice McLachlin discusses the "value received" and the "value survived" approaches. The former relates to situations where a monetary award is made. The latter refers to the value to be attributed to the constructive trust. At p. 344 Madam Justice McLachlin states: One goes on to determine what portion of that property is attributable to the claimant's efforts. For a monetary award, the "value received" approach is appropriate; the value conferred on the property is irrelevant. [45] When Madam Justice McLachlin talks of a monetary award being inadequate, I do not think she is referring to quantum, but rather to the fact that a constructive trust gives the claimant a right for an interest in property, i.e., a judgment in rem, whereas a monetary judgment is simply a declaration that money is owing, i.e., judgment in personam. A monetary award may also be inadequate because of the difficulty in enforcing it. [46] At p. 344 Madam Justice McLachlin states: To summarize, it seems to me that the first step in determining the proper remedy for unjust enrichment is to determine whether a monetary award is insufficient and whether the nexus between the contribution and the property described in Becker v. Pettkus [[1980] 2 S.C.R. 834, 19 R.F.L. (2d) 165, 8 E.R.T. 143, 117 D.L.R. (3d) 257, 34 N.R. 384] has been made out. If these questions are answered in the affirmative, the plaintiff is entitled to the proprietary remedy of constructive trust. In looking at whether a monetary award is insufficient, the court may take into account the probability of the award's being paid, as well as the special interest in the property acquired by the contributions: per La Forest J. in LAC Minerals [[1989] 2 S.C.R. 574]. The value of that trust is to be determined on the basis of the actual value of the matrimonial property -- the "value survived" approach. It reflects the court's best estimate of what is fair, having regard to the contribution which the claimant's services have made to the value surviving, bearing in mind the practical difficulty of calculating with mathematical precision the value of particular contributions to the family property. [47] Mr. Justice Cory at pp. 363-364, states: There are, generally speaking, two methods of evaluating the contribution of a party in a matrimonial relationship. The first method is based upon the value received. This can be thought of as quantum meruit, that is, the amount the defendant would have had to pay for the services on a purely business basis to any other person doing the work that was provided by the claimant. Alternatively, it can be based upon what is termed "value surviving," which apportions the assets accumulated by the couple on the basis of the contributions made by each. Value surviving is the approach that has been traditionally employed in cases of constructive trust. However, there is no reason why quantum meruit or the value received approach could not be utilized to quantify the value of the constructive trust. The remedy should be flexible so that it can be readily adapted to the situation presented in any given case. In many cases the cost of retaining and presenting expert evidence as to the value of the property may be beyond the reach of the parties and at times clearly impractical. This in itself indicates the need for maintaining flexibility in the remedy. Here, the trial judge undertook the same type of quantum meruit analysis employed in Herman v. Smith (1984), 42 R.F.L. (2d) 154 (Alta.Q.B.). That is, he calculated the appellant's contributions on the basis of what the respondent would have been required to pay a housekeeper. It has to be noted that his calculations were favourable to the respondent in that he used the amount paid prior to the commencement of the common law relationship as a basis for the calculation and then reduced it by 50 percent to allow for the value of the accommodation that the appellant received from the respondent. This was a fair means of calculating the amount due to the appellant. Nonetheless, I would observe that the value surviving approach will often be the preferable method of determining the quantum of a claimant's share. This method will usually be more equitable and will more closely accord with the expectation of the parties as to how the assets which they have accumulated should be divided upon termination of the relationship. Further, the utilization of the value surviving method will avoid the difficult task of assigning a precise dollar value to the services provided by someone who has dedicated him- or herself to raising children and caring for a home. Instead, the contributions of the parties can more accurately be expressed as a percentage of the accumulated wealth existing at the termination of the relationship. Thus, for pragmatic reasons, the value surviving method may be the preferable one in many cases. No matter which method is used, equity and fairness should guide the court in determining the value and contributions made by the parties.... [48] With respect to Mr. Justice Cory's suggestion that, "... there is no reason why quantum meruit of value received approached could not be used to quantify the value of the constructive trust." Madam Justice McLachlin, for the majority, does not agree (p. 344). [49] However, in decisions prior to Peter v. Beblow monetary awards have been made calculated on the basis of "value achieved". See Archer v. Cornfoot (1990), 38 E.T.R. 240 (Ont.H.C.). [50] A similar approach was used by the Saskatchewan Court of Appeal in Everson v. Rich (1988), 16 R.F.L. (3d) 337. At p. 343 Sherstobitoff, J.A. stated: In this case, there is no sufficient nexus between the provision of the appellant's services and the acquisition of the property to entitle her to relief by way of constructive trust. However, she is entitled to alternative relief: monetary damages. The prayer for relief in this case also claims "such further and other relief as the Court deems just". That is broad enough to encompass a claim for monetary damages arising from unjust enrichment. While, as noted above, monetary damages in such cases have traditionally been measured by the market price of domestic services, there is no reason why they cannot be measured as a suitable proportion of the increase in value of the assets of the person who has been unjustly enriched. It is at this point, assessment of damages, that one takes into account and values the benefits received by the appellant from the relationship. In this case, considering the value of the assets which each of the parties brought into the relationship, the value of the assets which each of the parties owned at the termination of the relationship, and the value of benefits received from the relationship by each of them, the appellant is entitled to damages in the amount of $10,000. [51] With respect to quantifying the reward, Madam Justice McLachlin states at p. 345: ... The trial judge began by assessing the value received by the respondent (the quantum meruit). He went on to conclude that a monetary judgment would be inadequate. The respondent had few assets other than his houseboat and van, and no income save for a War Veteran's Allowance. The judge concluded, as I understand his reasons, that there was a sufficiently direct connection between the services rendered and the property to support a constructive trust, stating that "[the appellant] has shown that there was a positive proprietary benefit conferred by her upon the Sicamous property." Accordingly, he held that the remedy of constructive trust was made out. This approach accords with principles discussed above. In effect, the trial judge found the monetary award to be inadequate on the grounds that it would not be paid and on the ground of a special contribution to the property. These findings support the remedy of constructive trust in the property. The remaining question is the quantification of the trust. The trial judge calculated the quantum meruit for her housekeeping for 12 years at $350 per month and reduced that figure by 50% "for the benefits she received." The final amount was $25,200. He then reasoned that, since the services rendered amounted to $25,200 after appropriate deductions, it follows that the appellant should receive title to the respondent's property, valued at $23,200. The missing step in this analysis is the failure to link the value received with the value surviving. As discussed above, a constructive trust cannot be quantified by simply adding up the services rendered; the court must determine the extent of the contribution which the services have made to the parties' property. Notwithstanding the trial judge's failure to make this link, his conclusion that the appellant had established a constructive trust entitling her to title to the family home can be maintained if a trust of this magnitude is supported on the evidence. This brings me to a departure from the methods used below. The parties and the Court of Appeal appear to have treated the house as a single asset rather than as part of a family enterprise. This led to the argument that the appellant could not be entitled to full ownership in the house because the respondent had contributed to its value as well. The approach I would take -- and the approach I believe the trial judge implicitly to have taken -- is to consider the appellant's proper share of all the family assets. This joint family venture, in effect, was no different from the farm which was the subject of the trust in Becker v. Pettkus.... [52] It appears from the foregoing that the quantification of the claimant's services was based on quantum meruit and not by "... the extent of the contribution which the services have made to the parties' property ...". In this respect Madam Justice McLachlin concludes her reasons at p. 347 with the following: Clearly, the appellant's contribution - the "value received" by the respondent - was considerable. But what then of the "value surviving"? It seems clear that the maintenance of the family enterprise through work in cooking, cleaning, and landscaping helped preserve the property and saved the respondent large sums of money, which he was able to use to pay off his mortgage and to purchase a houseboat and a van. The appellant, for her part, had purchased a lot with her outside earnings. All these assets may be viewed as assets of the family enterprise to which the appellant contributed substantially. The question is whether, taking the parties' respective contributions to the family assets and the value of the assets into account, the trial judge erred in awarding the appellant a full interest in the house. In my view, the evidence is capable of supporting the conclusion that the house reflects a fair approximation of the value of the appellant's efforts as reflected in the family assets. Accordingly, I would not disturb the award. [53] The evidence does not indicate that the plaintiff in this case made any contribution to the acquisition of the Cordova Bay Road property. The "common law marriage" relationship did not really commence until September of 1992, although, as mentioned, they had cohabited prior to that. Aside from saving solicitor's fees on the purchase of the Sierra Place property by virtue of her work at a golf course owned by a lawyer who provided such services to his employees free of charge, she contributed nothing else in a financial sense. She did not make any of the payments for mortgage, upkeep or taxes. [54] While her contributions to the Cordova Bay Property and Sierra Place property were substantial with respect to housekeeping and the care of the children, they were not nearly to the extent of those referred to in Peter v. Beblow by Mr. Justice Cory at p. 347: During the 12 years, the appellant cooked, cleaned, washed clothes, and looked after the garden. As well, she worked on the Sicamous property, undertaking such projects as painting the fence, planting a cedar hedge, buying flowers and shrubs for the property, and building a rock garden. She built a pig pen. She kept chickens for a few years, butchering and cooking them for the family. During the winters, the appellant shovelled snow, chopped wood, and made kindling.... [55] Based on the foregoing I am unable to find the necessary link between the plaintiff's contributions and the property as stated by Madam Justice McLachlin. The award therefore will be based on quantum meruit. In such a case it is not necessary to find an implied contract. See Toth v. Defrias, Victoria Registry No. V02583, Court of Appeal for British Columbia, June 24, 1996, p. 9: Entitlement of quantum meruit as a remedy for unjust enrichment does not depend on the existence of an implied contract. [56] The difficulty in this case in establishing an award based on quantum meruit is that no evidence was presented as to how the services of the plaintiff should be calculated nor were any submissions made in this respect. [57] Under the circumstances, and bearing in mind, "... the need for maintaining flexibility in the remedy" I think I am entitled to assume that if housekeeping services cost $350 per month between 1973 and 1985 in Sicamous, British Columbia, as in the case of Peter v. Beblow, such services between 1992 and 1995 in Victoria, British Columbia, should be at least twice that amount or $700 per month. Using this figure and allowing nothing by way of remuneration between early in 1990 and September 1992, the plaintiff's housekeeping services between September of 1992 and March of 1996, a total of 42 months at $700 per month amounts to $29,400. This also accords to some extent with the additional deprivation of switching from full- time work to part-time work. Compared to 1992 she suffered a reduction in income of $10,000 in 1993; $5,000 in 1994; and $11,000 in 1995; for a total of $26,000. [58] As to the children, an order of this court was made on the 4th day of June 1996 directing that the defendant pay to the plaintiff interim maintenance for the infant children of $325 per month for a total of $650 per month. At $325 per month for the care of the oldest child for 36 months amounts to $11,700. The care of the youngest child for 22 months amounts to $7,150. [59] The total of all figures is $48,250. Allowing 50 per cent for benefits received by the plaintiff while she and the defendant lived together in a common law marriage relationship, as the trial judge did in Peter v. Beblow, reduces that amount to $24,125. [60] Since the value of the plaintiff's services is calculated on the basis of value received, I do not take into account the proceeds of sale of Sierra Place received by the defendant nor the $10,000 RRSP accumulated by him during the relationship. By the same token I do not take into account the savings of the plaintiff as reflected in the reduction of her loan nor the fact that she now have a large part of the furnishings. As to this, it will be noted in Peter v. Beblow that when the parties met the claimant had savings of $100. At the time of the trial she owned the 100 Mile House property which she purchased for $6,500. [61] I conclude that an award of $25,000 is fair and reasonable, taking into account, as well, that the plaintiff has most of the furniture and I so order. I direct that this amount be paid from the sum of $49,000 previously referred to. [62] As to the matter of custody, the plaintiff claims sole custody of the children. The defendant seeks joint custody. I am told by counsel that it is impossible for the parties to discuss anything. That being so, I see no reason to award joint custody as this would naturally involve ongoing discussions between the parties about the children's day-to-day upbringing which would lead to further conflict. [63] With respect to guardianship, both parties are satisfied that they be joint guardians. That being so that order will go by consent. As joint guardians both parties are entitled: (a) to be consulted with respect to any significant health issues relating to the children; (b) to be consulted with respect to any significant change in the children's social environment; (c) to be informed of events of the children's schools or daycare so that the defendant may attend; (d) to be consulted with respect to the selection of the children's schools and school programs; and (e) to be consulted with respect to the selection of the children's alternate caregivers such as daycare and pre-schools. [64] The parties have also agreed to access by the defendant to the children pursuant to the order of Master Patterson made the 13th day of December 1996, i.e., every other weekend from Saturday at 9:00 a.m. until Sunday at 7:00 p.m. commencing the weekend of January 4, 1997 and continuing every other weekend. In addition to the foregoing, the parties are agreed that the defendant shall have access to the children for a two-week period in July and a two-week period in August. In this respect I direct that the defendant give the plaintiff notice in writing two months prior to the commencement of each two- week period. [65] Master Patterson's order also provided for Christmas access. However, details of future access at Christmas, spring break (when the children get older), and holidays were not really approached by counsel before me. In this respect, there will be liberty to apply for a further order if the parties are unable to reach an agreement. If they are able to agree, this may be included in the order by consent. [66] The parties have agreed that the children may be taken out of the jurisdiction of this court for holiday purposes or visits not exceeding the period of one month in each year. The parties also agree that the residence of the children are not to be outside of Vancouver Island except by agreement of the parties or court order. [67] As to maintenance for the children, the defendant pays to the plaintiff the sum of $325 per month per child for a total of $650 pursuant to an order made by Master McCallum on June 4, 1996. Those payments will continue. In addition, the defendant will pay to the plaintiff one-half of all medical and dental expenses incurred on behalf of the said children with liberty to apply with respect to any significant expenditures. If counsel wish to include beyond what amount shall be considered to be significant, they may do so and include it in the order. [68] As to maintenance for the plaintiff, in her property and financial statement she shows a monthly shortfall of $322.83. [69] According to the defendant's T4 slip for 1996 his employment income is $17,865.04, with a CPP contribution of $418.54, an Income Tax deduction for $3,199.39. He is a 50 per cent owner and operator of his own business. It is somewhat surprising to me if, as he claims, he works 50 to 60 hours per week, that his income should only be approximately $17,000 per year. His employment income in 1992 was $31,200; in 1993, $36,969; in 1994, $33,023.42. In any event, he received $80,000 when he re-mortgaged the Sierra Place property prior to selling it and another $53,000 approximately on sale, plus the $20,000 holdback previously referred to. At the present time, he lives in rented premises for which he pays $400 per month. The unaudited financial statements of his company are of not much assistance without some expert evidence to indicate what amount the business can afford to pay to the owners by way of salary or dividends or both. [70] In view of the fact that the plaintiff gave up a full-time job for a part-time job after the birth of her second child and is still working part-time, she should receive maintenance in the sum of $300 per month. Overall, I think the defendant is financially able to make these payments. I direct that the defendant pay maintenance to the plaintiff for her support, in addition to the amount being paid for support of the children, the sum of $300 per month on the first day of each and every month commencing on April 1, 1997. Payments made on and after May 1, 1997 shall be subject to the new income tax regulations. [71] The plaintiff will recover her costs of this action on Scale 3. "K.C. Murphy, J." THE HONOURABLE MR. JUSTICE MURPHY