Date: 19970421 Docket: SC0706 Registry: Prince Rupert IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ELIZABETH LOLA STRACHAN PLAINTIFF AND: JOHN ALLAN BROWNBRIDGE DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE R.T. ERRICO Counsel for the Plaintiff: M. Griffith-Zahner Counsel for the Defendant: R.P. Kueng Date and Place of Hearing: Prince Rupert, B.C., B.C. December 2-5, 1996 [1] This action arises out of the common law relationship between Ms. Strachan and Mr. Brownbridge that commenced in September 1983 and ended in February 1995, a period of eleven and a half years. Ms. Strachan claims for a declaration of constructive trust over real and personal property registered in the name of or in the possession of Mr. Brownbridge and for maintenance, including compensatory maintenance. [2] Before this matter was set for trial, it had been set down for hearing under Rule 18(a) and affidavits in support had been filed. On the application of counsel at the opening of the trial, I ordered that those affidavits and the exhibits thereto would form part of the evidence at this trial. [3] Mr. Brownbridge is 48 years of age. He had joined the R.C.M.P. in 1967 shortly after he graduated from high school and served with that force for 25 years, retiring on November 2, 1992. Since that time, he has been in receipt of his retirement pension and has also been employed as a school bus driver. [4] Ms. Strachan is also 48 years of age. In 1983, she was recently divorced with two teenage children who were residing with their father. Ms. Strachan has completed grade ten. She had worked at B.C. Telephone and at British Columbia Packers on the canning line for seven years in seasonal work. She was home then with the children for three or four years and then did some clerking at a retail establishment. She then again was employed by British Columbia Packers in seasonal work as a timekeeper and in 1983 had been employed for three years in that position for four months in 1981 and for seven months in each of 1982 and 1983. She has had no employment since that time. [5] Mr. Brownbridge and Ms. Strachan met in 1981 when he was stationed at Prince Rupert. As a bachelor in Prince Rupert, Mr. Brownbridge had his own home. He rented out a room and that income helped pay the mortgage. He maintained the home and did his own housework and yard work without assistance. He also prepared his own meals and did his own laundry. [6] In 1983, Mr. Brownbridge was transferred to Fernie. He sold his home in Prince Rupert and purchased another one in Fernie. At the time of the transfer, the parties spoke to each other about her joining him in Fernie. He left in August 1983, and she joined him in September 1983. Ms. Strachan sold her home in Prince Rupert which she had acquired on her divorce settlement and realized $38,000 from the sale. She continued with her employment for B.C. Packers until she left in August. [7] The parties discussed their future together. Mr. Brownbridge had the dream of retiring when he had 25 years of service with a house and everything else paid for. There is no dispute that her plans for the future were to share this retirement with him. [8] After her arrival in Fernie in 1983 until May of 1984, Ms. Strachan was in receipt of unemployment insurance payments, one of the apparent benefits of being a seasonal worker. These amounted to something in excess of $600 a month and continued to September 1984. [9] In the spring of 1984, British Columbia Packers telephoned Ms. Strachan and asked her to return to work as a timekeeper. She did not do so. There is a difference in the testimony of the parties as to the reason for this. She testified that Mr. Brownbridge did not wish her to return. He testified that he most definitely wished her to return, not only to earn income over the summer but to further her entitlement to unemployment insurance benefits. In affidavits filed earlier in these proceedings, Ms. Strachan asserted that she did not return because he wished her to participate in an R.C.M.P. members' reunion in July of that year. [10] I am of the view that Ms. Strachan did not return to take up employment with British Columbia Packers because she simply chose not to. The picture that Ms. Strachan attempts to paint of Mr. Brownbridge is one of being very concerned about obtaining his goal of financial independence and of being somewhat parsimonious with his own money. I do not think that it would be consistent with such a person to wish Ms. Strachan not to take up her employment for a short period with such obvious benefits. I find that Ms. Strachan also took no steps to seek employment after that for no reason other than she chose not to, up to the time she subsequently became disabled and unable to work outside the home. [11] The parties remained in Fernie until October 1987 when Mr. Brownbridge was transferred to Kelowna. Mr. Brownbridge sold his home in Fernie for a loss and purchased a home in Westbank. Ms. Strachan was instrumental in the process of the purchase. She viewed a number of homes with real estate agents and prepared a short list for Mr. Brownbridge to view and consider. When the purchase was to be completed, it was suggested to Ms. Strachan, either by Mr. Brownbridge or by the real estate agent, with Mr. Brownbridge not demurring, that she be a joint tenant of the home. Ms. Strachan refused and I can find no reason for such refusal other than her concerns about being responsible on such purchase following so closely on Mr. Brownbridge's sale of the Fernie home at a loss. She did assist Mr. Brownbridge in the purchase of the home by advancing him approximately $3,000 for a period of approximately one month without interest. [12] All payments on both the Fernie home and the Westbank home for principal, interest, taxes and insurance had been made by Mr. Brownbridge without assistance from Ms. Strachan. [13] Before I go on to review Ms. Strachan's contributions by way of domestic services, or by way of improvements and renovations to the Fernie and Westbank houses, I think it appropriate to first review her medical history. Ms. Strachan underwent back surgery in July 1990 and again in December 1995. Ms. Strachan testified as to complaints of problems with her back and legs as far back as 1983. She saw a number of family doctors who apparently did not make any accurate diagnosis of the problem. She took some physiotherapy treatments from 1985 to 1987. She was referred by Dr. Corbett, her family doctor in Westbank, to Dr. D.M. Laidlow, a specialist in physical medicine and rehabilitation, on December 28, 1988. His impression was that she had mechanical symptoms which probably originated with abnormal facet joints of the lower spine, resulting in intermittent episodes of pain over the years and intermittent episodes of muscle spasm. He also mentioned that there was a small possibility that her symptoms could represent spinal stenosis. Dr. Laidlow continued to see Ms. Strachan. His clinical report to Dr. Corbett mentions that he had instructed her to stop making her own diagnosis as they are often incorrect, that he had told her that there was no evidence of any significant mechanical problem, but rather her problem was that of muscular inflexibility and muscle tension. In February, he confirmed with Dr. Corbett his impression that the symptoms seemed to be primarily muscular in nature. In December 1989, he commented that although there are some degenerative changes in the facet joints, he did not think that the degree of stenosis was particularly severe. [14] In a report of April 27, 1989 to Dr. Corbett, Dr. Laidlow discussed physical childhood abuse that Ms. Strachan suffered during her childhood which could still bring about significant emotional response and wondered whether or not this could have anything to do with her muscle tension and tightness. At one point, Dr. Corbett suggested that she see a psychiatrist. She saw him for a couple of visits and he prescribed medication which in her words "left her feeling like a zombie". [15] In December 1989, Ms. Strachan was referred to Dr. Huang, a neurosurgeon, and he reported that investigation by C.T. scan showed that she had very severe facet joint disease giving rise to spondylosis and stenosis at L4-L5. She was admitted to hospital for a decompressive laminectomy. The operative findings confirmed very severe stenosis. In his clinical report of July 1990, Dr. Huang found that Ms. Strachan had been quite incapacitated for the past two years by pain, numbness and paraesthesia in the lower limbs which restricted her walking and bending for even short duration. [16] In a clinical report of September 8, 1994, Dr. Huang comments that following over two years of excellent relief following the surgery in July 1990, there had been an advancing worsening of Ms. Strachan's condition and that with her ongoing bouts of incapacitating pain and unsatisfactory response to conservative management, he thought it best to proceed with further decompression surgery which Ms. Strachan was anxious to have. This surgery was performed in January 1995. [17] Shortly after that operation, the parties separated and Ms. Strachan moved to Prince Rupert. The latest medical report filed is that of Dr. Pullin dated April 30, 1996. Dr. Pullin no longer practices in Prince Rupert. In that report, he refers to Ms. Strachan complaining to him of numbness of the low back area and intermittent low back pain on May 26, 1995. He refers to a repeat C.T. scan which demonstrated no acute evidence of nerve root impingement or recurrent spinal stenosis. He was of the opinion that Ms. Strachan had developed chronic pain syndrome as a result of her previous spinal disease and subsequent surgeries. He had not seen her since October 22, 1995, with reference to her lumbar back pain or leg complaints. The report on the C.T. scan referred to by Dr. Pullin is also filed in evidence. It makes extensive findings including the conclusion that one would have difficulty in excluding spinal stenosis in this case due to the fact that the stethecal sac has lost its normal surrounding fatty plain due to post surgical changes. [18] Finally in a clinical report dated September 20, 1996, Dr. S.D. Clark, a neurologist, Dr. Clark concludes that Ms. Strachan has a further problem, that is bilateral carpal tunnel syndrome. He found that her symptoms were not severely abnormal and that surgery offered about 75 percent of a cure. Dr. Clark also concluded that Ms. Strachan had chronic pain syndrome involving her back, arising probably from fibrosis and scarring. He found no significant neurological deficit and no evidence of spinal cord disfunction. Dr. Clark did not think that further surgery would be appropriate as there would be a serious risk of making her pain worse and no objective deficit that could be improved. [19] There has been filed on behalf of the defendant a brief report from Mr. Cameron McInnes who practices in occupational rehabilitation. Mr. McInnes commented that it was likely that there are a range of vocational opportunities for individuals with restricted capabilities unless there is medical evidence of total disability. He also commented that repeat laminectomy procedures such as are described in this case do not necessarily result in permanent total disability. That report is of little or no value as Mr. McInnes did not examine Ms. Strachan nor has he apparently had access to her medical records. [20] In assessing the onset of Ms. Strachan's problems with her back, I do not have any reports from medical practitioners prior to December 1987 where a brief clinical record refers to back pain and leg pain. In her testimony, Ms. Strachan emphasized her providing of domestic services to Mr. Brownbridge and her housekeeping activities notwithstanding extensive pain over the period from 1984-1985 onwards. Mr. Brownbridge was of the view that almost up until the operation in 1990 Ms. Strachan was physically able to do some work outside the home although she had never made any efforts to obtain employment, in spite of his encouraging her to do so, as far back as when she first came to Fernie. He disagreed with the proposition that she was disabled after 1985. This is confirmed to some extent by videos and photographs showing Ms. Strachan enjoying waterskiing in 1984, snow skiing in 1986 and 1987, and snowmobiling in 1988 and 1989. [21] After her consultation with Dr. Huang in 1990, Ms. Strachan appealed an earlier refusal by the Canada Pension Plan for a disability pension and was successful in having a pension reinstated retroactively. There is no documentation as to what period that included. She received some $20,000 which would be roughly three years' benefits, although I am not sure from what date the benefits were retroactive. I can only infer that those benefits would have commenced for the period referred to by Dr. Huang as two years' disability prior to his examination in January 1990. [22] I have concluded then although Ms. Strachan had problems with her back for which she had consulted physicians as early as 1983, she was not disabled until 1988. The extent of her disability at least in relation to her seeking employment or being able to do housework I cannot be sure. I do find that her descriptions of doing heavy housekeeping duties notwithstanding excruciating pain and attempting to vacuum the floor on her hands and knees to be exaggerations and highly improbable. [23] With respect to her disability at this time, it is clear that she has ongoing back pain and she also has the further problem of her carpal tunnel syndrome. She claims that she is totally disabled but I do not have objective medical evidence of such disability or the extent of it. [24] With respect to Ms. Strachan's provision of domestic services, I think that they were done in accordance with the needs of this couple. They were in an urban not rural or semi- rural communities. She did the housework in which Mr. Brownbridge shared in some of the heavier duties. She prepared the evening meals and cleaned up thereafter. I find Mr. Brownbridge was self-reliant with respect to his breakfast and many of his personal needs including doing some of his own laundry and ironing, which is consistent with his history as a bachelor for many years prior to meeting Ms. Strachan. Ms. Strachan did some gardening but there is nothing to suggest that it was out of the ordinary. In this day and age gardening is considered one of the major recreational pursuits of middle aged persons, but I have no evidence one way or the other whether Ms. Strachan considered this to be recreation rather than a chore, other than the fact that she testified to doing gardening as part of the evidence of her contribution to the household. [25] I turn next to the parties' financial arrangements during their co-habitation. Ms. Strachan testified to a course of conduct by Mr. Brownbridge suggesting that in her financial affairs she was controlled by him. I do not accept that proposition. At the time this relationship commenced, Ms. Strachan was a mature women who had gone through a somewhat bitter divorce and had apparently obtained a satisfactory divorce settlement. She had been employed outside the home for a number of years and my impression of her in the witness stand is that she is not a person who would readily accept such domination. The only witness at this trial, apart from the parties, was Ms. Nancy Stegus who is the wife of a R.C.M.P. officer who served with Mr. Brownbridge both in Prince Rupert and in Kelowna. She was a friend of Mr. Brownbridge prior to her meeting Ms. Strachan and of both parties after in Prince Rupert. Ms. Stegus and her husband visited for a short period in Fernie and she and both parties were friends in Kelowna up until 1988. She and her husband still continue to be friends with Mr. Brownbridge. Her evidence was objective, and her assessment of Mr. Brownbridge was one who was always considerate and helpful and not a dominant figure. [26] This aspect of the dominance of Mr. Brownbridge over Ms. Strachan was relied on by her attempting to explain how a substantial portion of her capital became dissipated during the relationship by reason of her purchase of three new automobiles. Although Mr. Brownbridge may have assisted her in their purchase, I am satisfied that those purchases were made by her, of her own volition and for her own benefit. Again it would be contrary to the plans of Mr. Brownbridge and the thrust of his wishing to retire with everything paid for him to encourage Ms. Strachan to take her money out of investments and purchase unnecessary vehicles. [27] Both parties contributed to household expenses. I find that Ms. Strachan contributed all of her income either to her own personal living expenses which included trips to Prince Rupert to visit her children and to the regular household expenses. This included the unemployment insurance that she received up to September 1984, the interest on her investments after that time until she was in receipt of her disability pension and thereafter the disability pension. [28] During the course of the relationship, Ms. Strachan readily acceeded to requests by Mr. Brownbridge to borrow money which he did from time to time to purchase a recreational vehicle as well his own motor vehicle. I have already commented on the loan for the purchase of the house. These funds were all repaid with the possible exception of a few hundred dollars. In addition, Mr. Brownbridge purchased a Toyota 4X4 motor vehicle by contributing some $3,000 or $3,300 which apparently was not a loan and which has not been repaid. [29] At the commencement of the relationship, Mr. Brownbridge owned his equity in the Fernie home of approximately $8,000, 15 years' contributions to his R.C.M.P. pension, a truck which he values at $2,500, household and yard furnishings and effects which he values at $10,000, sports equipment which he values at $5,000 and investments of approximately $15,000. At the time of separation, he owned the Westbank home with an appraised value of $139,200, R.R.S.P.'s with a value of $55,000 and household furniture and furnishing, motor vehicles, recreational vehicles and sporting goods which have an appraised value of $24,170. However, it is to be noted that this appraised value is a value that would be realised at public auction, and I infer that such a valuation would certainly be at the low end of the scale. [30] Mr. Brownbridge's R.C.M.P. pension has also matured and brought in an income of $2,033. His earned income from his school bus driving is $1,650 a month. [31] Ms. Strachan came into the relationship with the proceeds of the sale of the house in Prince Rupert. She asserts this to be $38,000 and there appears to be no issue as to that. She also asserts that she brought into the relationship household furniture and furnishings but she gives no valuation of those nor any particulars thereof and I infer that they were minimal. [32] There is a degree of uncertainty about what Ms. Strachan brought out of the relationship. In her initial statement of property, she disclosed few if any of the items she brought from Westbank to Prince Rupert, although it appears from the evidence of Mr. Brownbridge that when Ms. Strachan left, she had arranged to have her son-in-law come to Westbank with a U- Haul van to remove her effects. Mr. Brownbridge asserts the particular items that she had with her and an estimated value of $44,000 in earlier affidavits in this action. At trial, he testified that he thought that estimation was somewhat high but that the value was greater than the $18,650 placed on the items by Ms. Strachan. There is no appraisal of those items. [33] Ms. Strachan has testified that she had prepared a list of items that she had in her possession to deliver to her solicitor for the preparation of her property and financial statement but that somehow it got overlooked. I fail to see how that can detract from the significance that she swore the financial statement as prepared by her solicitor which omitted those items. I also note that in support of her application for interim maintenance, she swore an affidavit on May 5, 1995, that "as the defendant owns virtually all the family assets, and I do not have enough monthly income to meet my basic expenses, I am extremely concerned that the family assets be preserved..." I find in these circumstances that Ms. Strachan intentionally did not disclose those assets to her solicitor and that they were not acknowledged until mentioned by Mr. Brownbridge. They were finally acknowledged by Ms. Strachan in her examination for discovery on April 26, 1996. Accordingly, I do not accept the valuation of $18,650 placed on those items by Ms. Strachan and although I cannot assign a precise figure to them, I consider them to be worth substantially more. Included in those assets were an R.R.S.P. and bank accounts of approximately $7,000 in total. [34] In addition to the assets brought from the relationship, Ms. Strachan has become the beneficiary of a share of her late uncle's estate. Her testimony in this regard tends to minimize the value of that estate, and she assigned a value of approximately $15,000 when she ultimately receives it. However, the estate as sworn by the executor shows her to be the anticipated recipient of some $30,000. This, I think, is another instance of Ms. Strachan's propensity to be somewhat inaccurate in her testimony to her benefit. [35] Dealing with the relationship between Ms. Strachan and Mr. Brownbridge during the years that they were together, I think there is no doubt that it was a common law spousal relationship. Notwithstanding that they kept separate bank accounts and separate investments and real and personal property was purchased by the one or the other in their own names, they had an intimate, long lasting relationship and they looked forward to sharing Mr. Brownbridge's retirement together. Mr. Brownbridge came out of that relationship with a retirement pension and equity in the home, substantial household furniture and furnishings, sporting goods and recreational equipment and vehicles, as well as $55,000 in R.R.S.P. savings while Ms. Strachan no longer has most of the proceeds of the sale of her home in 1983, except as that may be reflected in the assets she did take from the relationship, she has an income consisting of the Canada Pension Plan disability allowance of approximately $550 per month as well as the interim maintenance ordered in this action. Does this financial disparity in assets arise in whole or in part by reason of the unjust enrichment of Mr. Brownbridge at the expense of Ms. Strachan? [36] In Peter v. Beblow, 44 R.F.L. (3d) 329 (S.C.C.), there were two concurring decisions. The majority decision was written by McLachlin J. and the minority decision by Cory J. In the majority decision, McLachlin J. agrees with the conclusion and much of the analysis of Cory J. but differs in some respects on two questions; the proper analysis of requirement for the absence of any juristic reason for an enrichment, and the nature and application of the remedy of constructive trust. For this reason, I think it appropriate to look first at the minority concurring decision of Cory J. [37] The facts in Peter v. Beblow are somewhat similar to the facts in this case, although there are significant differences. It was a twelve year relationship commencing when the plaintiff moved into the defendant's home with her four children. There were two children of the defendant and he had asked her to move in with him partly at least to have her care for his children. She did so for four of the twelve years. The Plaintiff did the household chores and looked after the garden and did some maintenance and some minor improvements. Her efforts, the court found, required her to spend eight hours a day at least until she took some part time work. There was no mention if her contribution at home lessened thereafter. The defendant frequently worked out of town. Prior to the relationship commencing, the defendant had paid a housekeeper $350 per month. [38] The trial judge found an unjust enrichment and made a declaration of constructive trust. On appeal to the Court of Appeal, the Court of Appeal accepted the defendant's submission that while there was an unjust enrichment by the defendant there was no corresponding deprivation suffered by the appellant as she was adequately compensated for her services by provision of free shelter and household expenses. [39] Cory J. reviewed the three conditions required for unjust enrichment: (1) there has been an enrichment; (2) a corresponding deprivation has been suffered by the person who supplied the enrichment; (3) there is an absence of any juristic reason for the enrichment. He also confirmed that a constructive trust may be applied in circumstances where there has been no contribution to acquisition but rather to the preservation of maintenance and improvement of the property. [40] It was not disputed that there had been an enrichment since the defendant had obtained the services of the plaintiff as a housekeeper, homemaker and stepmother without compensation. In dealing with the question of corresponding deprivation, Cory J. concluded that as a general rule if it is found that the defendant had been enriched by the efforts of the plaintiff, there will almost as a matter of course be deprivation suffered by the plaintiff, particularly in a matrimonial or long term common law relationship where in the absence of evidence to the contrary the enrichment of one party will result in the deprivation of the other. [41] In dealing with the question of the contribution of the defendant, Cory J. simply states that it cannot be said that those contributions were compensated for by the provision of free accommodation and that the plaintiff had provided extensive and valuable services to the respondent for which she was not compensated. [42] In dealing with the absence of juristic reason for enrichment, Cory J. had this to say on p. 357 at paras. 84, 87 and 89: "The test put forward is an objective one. The parties entering a marriage or a common law relationship will rarely have considered the question of compensation for benefits. If asked, they might say that because they loved their partner, each worked to achieve the common goal of creating a home and establishing a good life for themselves. It is just and reasonable that the situation be viewed objectively and that an inference be made that, in the absence of evidence establishing a contrary intention, the parties expected to share in the assets created in a matrimonial or quasi-matrimonial relationship, should it end. "It is not necessary that there be evidence of promises to marry or to compensate the claimant for the services provided. Rather, where a person provides "spousal services" to another, those services should be taken as having been given with the expectation of compensation unless there is evidence to the contrary. "When a claimant is under no obligation, contractual, statutory, or otherwise, to provide the work and services to the recipient, there will be an absence of juristic reasons for the enrichment." [43] It was dealing with the appropriate remedy that the different approach between the majority and minority decisions arises. At paragraph 95 and 99, Cory J. states: "It seems to me that in a family relationship the work, services, and contributions provided by one of the parties need not be clearly and directly linked to a specific property. As long as there was no compensation paid for the work and services provided by one party to the family relationship, then it can be inferred that their provision permitted the other party to acquire lands or to improve them. In this case the work of the appellant permitted the respondent to pay off the mortgage and, as well, to purchase a houseboat and a cabin cruiser. In the circumstances, the trial judge was justified in applying the constructive trust to the property which he felt would best redress the unjust enrichment and would treat both parties in a just and equitable manner. "It follows that in a quasi-marital relationship in those situations where the rights of third parties are not involved, the choice between a monetary award and a constructive trust will be discretionary and should be exercised flexibly. Ordinarily both partners will have an interest in the property acquired, improved, or maintained during the course of the relationship. The decision as to which property, if there is more than one, should be made the subject of a constructive trust is also a discretionary one. It too should be based on common sense and a desire to achieve a fair result for both parties." [44] On the facts of that case, Cory J. concluded at page 101: "Her work around the house and in caring for the children saved the respondent the expense of hiring a housekeeper and someone to care for the children. As a result, he was able to use the money which he had saved to purchase other property and to pay off the mortgage on the Sicamous property." [45] In the majority decision, McLachlin J. dismissed the respondent's argument that the services were part of a bargain made in that he would give her and the children a home and husbandly services and in turn she would look after the home and family, by referring to the facts found by the trial judge that the plaintiff was under no obligation to perform the work and assist in the home without some reasonable expectation of receiving something in return. [46] In dealing with the appropriate remedy, McLachlin J. affirmed that the principles of constructive trust in commercial cases must apply to an extent at least in spousal cases and that the plaintiff must establish a direct link to the property which is the subject of the trust by reason of the plaintiff's contribution. She agrees that the court should avoid becoming overly technical on matters which may not be susceptible of precise monetary valuation. [47] Both Cory J. and McLachlin J. agreed that it is preferable in quantifying the value of the constructive trust, the preferred approach is the "value survived" rather than "value received" approach. McLachlin J. further was of the view that if there were to be a monetary award the value received approach would be appropriate. [48] It is to be noted that in neither the analysis of McLachlin J. or Cory J. is any reference made to the contribution of the defendant to the plaintiff by reason of services or payments for family purposes except in the passage referred to above in the decision of McLachlin J. noting the finding of the trial judge. Both judgments affirm the judgment at the trial level where the trial judge had reduced the amount of the plaintiff's interest to allow for the value of the accommodation that the plaintiff received from the respondent. Cory J. comments that this was a fair means of calculating the amount due to the plaintiff, although going on to comment that the value surviving approach will often be the preferable method of determining the quantum of the claimant's share. [49] This was noted by Keith B. Farquhar in his article on this decision found in The Canadian Bar Review 1993 Vol. 72 p. 538. This is discussed at page 546 in the following passage: "The question of quantification of the defendant's enrichment will, in a typical case, also involve an analysis of whether, and if so to what extent, the plaintiff has received benefits from the defendant. Indeed, it is possible that each party may have so enriched the other that neither, in the event of a claim and counterclaim, would receive an award. In the Court of Appeal, in Peter v. Beblow, this concept may have led the panel to the conclusion, held to be erroneous both in law and on the facts, that the plaintiff had not been deprived, even though the defendant had been enriched. In the Supreme Court of Canada, as has already been noted, the trial judge's decision was upheld. Part of that decision consisted of taking into account the benefits the plaintiff had received from the defendant. These appear to have been, principally, living rent-free in the defendant's house and the enjoyment of other household subsidies emerging out of the defendant's income. The extent of the constructive trust over the defendant's assets was reduced accordingly." [50] It appears then that in analyzing whether there has been an unjust enrichment, the contributions of the recipient of the benefit cannot be taken into account in determining whether there has been an unjust enrichment. It is only when the quantification of that unjust enrichment is to be assessed that that counter contribution can be taken into account. Provision of domestic services and child care is a benefit. There is a inference that where there is a benefit there has been a deprivation. There is a further inference that in spousal relationships where there has been an enrichment and a deprivation, then there is an inference that there is no juristic reason for the benefit and deprivation and thus there has been and unjust enrichment. If the trier of fact is to consider whether or not there has been a counter contribution and take that into account in quantifying the unjust enrichment, and that counter contribution equals or exceeds the contribution, is there then still an unjust enrichment? That can hardly be so, but that analysis has not been dealt with in any of the authorities as far as I'm aware. [51] In this case, Ms. Strachan did provide domestic services. There is no evidence to rebut the inferences that those services resulted in an enrichment and deprivation and that as a result there was an unjust enrichment of Mr. Brownbridge. The extent of those services do not equal the scale of the contributions made where there have been children to care for, extensive maintenance or renovations provided, or contributions made whether monetary or not in the acquisition of the property. Ms. Strachan's participation in the acquisition of the house is minimal and did not result in the acquisition of a property that because of its location or other distinguishing feature increase thereby by value. She did provide some short term financing for which she received no interest. She also provided some financing for the acquisition of some of the recreation vehicles purchased by Mr. Brownbridge and received no interest on those advances. She has also advanced some $3,300 toward the purchase of one of Mr. Brownbridge's motor vehicles. [52] I do not think the fact that Ms. Strachan now has little left of her $38,000 is of significance. It has not been established that that money, except for the $3,300, has gone toward the acquisition or preservation of any of the property in Mr. Brownbridge's name. In quantifying the extent of Ms. Strachan's contribution I think it of some significance that Mr. Brownbridge made contributions to the maintenance and upkeep of the houses, that in my view equalled if not exceeded the contribution made by Ms. Strachan. He also provided for the payments of principal, interest, taxes and insurance on the houses which, while in part increases his equity in the properties, it also in part was the provision of accommodation both to himself and Ms. Strachan over the years. [53] I am satisfied on the balance that there has been some unjust enrichment of Mr. Brownbridge. This cannot be assessed by a precise accounting of the values. I can only look at the relationship as a whole, the length of time and the closeness of the relationship, and the reasonable expectations of Ms. Strachan during that relationship when she was making her contributions to it. [54] Should a remedy be by a monetary judgment or by the declaration of a constructive trust? I do not think that the nexus between the contributions and any property has been established, except perhaps with a contribution of $3,300 by Ms. Strachan in 1984 to purchase a 1984 Toyota 4X4 motor vehicle but Mr. Brownbridge no longer owns that vehicle. [55] With respect to Mr. Brownbridge's pension, counsel has referred to the decision of our Court of Appeal in Thibert v. Thibert (1992), 66 B.C.L.R. (2d) p. 93 where the court declared a constructive trust in the defendant's pension on the basis of the contributions by way of domestic and child care services during a 20-year relationship. That decision preceded the majority decision on this question on Peter v. Beblow as to the requirement for a nexus and was made in circumstances where that was the only capital asset which the defendant owned. Here there is nothing to connect the Ms. Strachan's contributions to Mr. Brownbridge's pension. [56] Bearing in mind the substantial assets that Ms. Strachan received at the termination of the relationship, as well as what I consider to be the limited contribution she made by way of the provision of domestic services and interest-free loans to Mr. Brownbridge as well as the contribution of $3,300 to his acquisition of an asset, I think it would be just and equitable that Ms. Strachan only share in the increase in value of the house at Westbank. This increase is from an increase in market values generally. There is no evidence to suggest that any improvements were made to the house or that there was anything unique about its location or otherwise that caused that increase. In assessing what the division should be, I think consideration should be given to the capital investment made by Mr. Brownbridge. This was the approach taken by the Court of Appeal in Harrison v. Kalinocha (1994) 1 R.F.L. (4th) p. 313. I do not propose on making a detailed calculation of that but have concluded that a just and equitable sharing of that increase in value would be to apportion it 40 percent in favour of Ms. Strachan and 60 percent in favour of Mr. Brownbridge. [57] The Westbank house was purchased in 1987 for $74,000. There is a difference between the parties as to its value at the time of separation. Ms. Strachan suggests a value of $149,000; Mr. Brownbridge suggests an amount less than the assessed value of $139,200. There is no appraisal and Mr. Brownbridge gives no more reason that the value should be less than the assessed value then Ms. Strachan gives that it should be more. Accordingly, I find the value of the house at the date of separation to be $139,200 leaving an increase in value of $65,200. A 40 percent interest is $26,080 which I round out to $26,000. [58] I do not think it necessary or appropriate to make a declaration of constructive trust in favour of Ms. Strachan in regard to this sum. In Peters v. Beblow, Mr. Justice Cory discusses some principles to be applied in making this determination. At page 362, paragraph 99, he states as follows: "It follows that in a quasi-marital relationship in those situations where the rights of third parties are not involved, the choice between a monetary award and a constructive trust will be discretionary and should be exercised flexibly." Later in paragraph 100, Cory J. adopts the following factors in determining a monetary distribution may be more appropriate than a constructive trust. (a) is the "plaintiff's entitlement ... relatively small compared to the value of the whole property in question"; (b) is the "defendant ... able to satisfy the plaintiff's claim without a sale of the property" in question; (c) does "the plaintiff [have any] special attachment to the property in question"; (d) what "hardship might be caused to the defendant if the plaintiff obtained the rights flowing from [the award] of an interest in the property." [59] Here Ms. Strachan's entitlement is relatively small compared to the value of the whole property. I think there is no question that Mr. Brownbridge is able to satisfy the plaintiff's claim without a sale of the property simply by refinancing it. Ms. Strachan does not have any special attachment to the property. While there may be no hardship caused to Mr. Brownbridge if the plaintiff obtained the rights of a constructive trust, I think to declare a constructive trust could possibly lead to further disputes. Therefore, I award Ms. Strachan the monetary judgment in the sum of $26,000 by reason of the unjust enrichment to Mr. Brownbridge that I have found. [60] I turn next to the claim for maintenance. This claim includes a claim for compensatory maintenance. In Legun v Legun (1993) 80 B.C.L.R. (2d) 293 (B.C.C.A.), the claim for maintenance was made by a wife but was made under the Family Relations Act. After comparing the wordings of the Family Relations Act and the Divorce Act Hinds J.A. concluded that the similarity in the wording of those sections justify a conclusion that the principles expressed in Moge v. Moge apply to an application under the Family Relations Act. In my view, those principles do not apply in this case as any economic disadvantage that Ms. Strachan presently has does not arise from the relationship. As I have found, she remained out of the work force because of her disinclination to join it, not because of the relationship. She did not disrupt any career path, except to discontinue her seniority and employment opportunities with British Columbia Packers, and this to I have found to be her own decision and not one arising from the relationship. Finally her disability, while unfortunate, did not arise from the relationship. [61] As I have indicated earlier in these reasons, I am satisfied that Ms. Strachan has suffered from an incapacitating disability. Unfortunately, the evidence is not that clear as to the extent of that incapacity at the time of trial. There was no recent medical evidence or other expert evidence with respect to that. There is evidence that she suffers from chronic pain syndrome and carpal tunnel syndrome. It is also clear, Ms. Strachan is not current with employment skills and she should be allowed an opportunity to explore retraining to re-enter the work place. Her age and whatever disability she still has are a disadvantage to her in re-entering the work place. [62] Counsel for Ms. Strachan does not object to a provision in any maintenance order that it be reviewed in two years, and I think that is appropriate in these circumstances. As to quantum, the interim order for custody was for $1,100 per month. Ms. Strachan acknowledges that $800 plus her disability payment would allow her to maintain herself. This sum does not take into account the award made in this action, as well as the anticipated receipt of her inheritance of approximately $30,000 which by this time should be coming fairly close to distribution. Keeping in mind that Ms. Strachan has out of the interim maintenance payments of $1,100 a month been able to increase her balance in R.R.S.P's and savings and that she can anticipate earning income of at least $200 a month out of her capital, I order that spousal maintenance be paid by Mr. Brownbridge to Ms. Strachan at $600 per month commencing May 1, 1997. There is to be a review of this award after two years. [63] Mr. Brownbridge claims an incapacity to pay maintenance, but his income from pension and part time employment exceed $3,600 a month and with the reduction of income tax resulting from a payment of maintenance, I find that the defendant has the capacity to pay the maintenance in the amount ordered. [64] In summary, Ms. Strachan shall have judgment for $26,000 plus interest at the rates used by the registrars from time to time from the February 1, 1995. It is also ordered that Mr. Brownbridge pay maintenance to Ms. Strachan at the rate of $600 per month commencing May 1, 1997, to be reviewed after two years. [65] Subject to matters involving costs of which I am presently unaware, Ms. Strachan is entitled to her costs on Scale 3. "R.T. Errico J."