Date: 1998JAN30 Docket: 4442 Registry: Nelson IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ANNEMARIE FODI PLAINTIFF AND: PETER BARTL DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE T.M. McEWAN Counsel for the Plaintiff: Patricia Gartner Counsel for the Defendant: Donald Skogstad Place and Date of Hearing: Nelson, B.C. January 19, 1998 I [1] The plaintiff and defendant lived together "as man and wife," according to their pleadings, from November of 1981 until October of 1993. They never married. At issue is whether a parcel of land located at Pilot Bay on Kootenay Lake, British Columbia, and registered solely in the name of the defendant, is subject to a declaration of trust in favour of the plaintiff. [2] The parties have agreed that the matter can be heard by way of an 18A Summary trial. They suggest that any ambiguities in the evidence will not resolve more readily with the benefit of viva voce evidence than on the affidavits before the court. They agree, in other words, that I can find the facts necessary to decide the case on the material they have filed. This is the defendant's application. II [3] The plaintiff is 49 and the defendant is 57. Both have been divorced. There were no children of their relationship. [4] In January 1982 the parties moved into a house in Edmonton owned by the plaintiff. It was never held jointly. The defendant paid $350 per month to the plaintiff, representing half the mortgage and utility costs. Other living expenses were divided. The parties did not mingle their money. [5] In 1984, the defendant purchased the Pilot Bay property at Kootenay Lake for $52,500. It was registered in his name. It was vacant recreational property. The defendant moved a trailer he owned onto the property. He has paid all the mortgage, insurance and tax payments. Both parties made some cosmetic improvements to it. In particular, the plaintiff built a 25 foot boardwalk and a patio area near the trailer. [6] There is considerable evidence that while the defendant did not participate in title on the Edmonton home he contributed to its upkeep and to certain renovations to it. [7] The essence of the financial arrangements between the parties, may, I think, be found in the plaintiff's affidavit of September 16, 1997, paragraph 3(c): "... the defendant and I had both been previously divorced when we met and as a result we were both reluctant to get into a situation where we co-owned property. ..." [8] The parties pursued independent careers in Edmonton, the plaintiff as a graphic artist, and the defendant as a university professor. Apart from expenditures on holidays and other things that were similarly discretionary and gratuitous, the parties treated their relationship, in financial terms, as an arrangement between equals. [9] After the relationship ended, the plaintiff moved to Riondel, British Columbia. She sold the home in Edmonton to the defendant. The evidence is that the sale (for $70,000) was a fair market value transaction. The house had been appraised in September of 1993 for $65,000. There is no dispute that the plaintiff got full value, and that there was no recognition in that price of any equity or interest built up by the defendant through his contributions toward the mortgage or renovations. [10] The affidavits are replete with assertions as to the parties relative contributions to the household, down to who did most of the cooking and cleaning, laundry and pet care. It is not necessary to reconcile these assertions or to express in percentage terms what the court thinks each party contributed. [11] Respecting the Pilot Bay property, the plaintiffs efforts, while not extensive, were significant in terms of the total amount of work that was done on the property. Photographs in evidence show the modest boardwalk and patio built by the plaintiff leading to a modest, old-looking trailer. It is quite evident, and I have no difficulty inferring, that the appreciations of the property to around $175,000 presently, occurred for reasons largely independent of the parties' efforts or improvements. [12] The plaintiff nevertheless seeks a declaration that the defendant holds those lands subject to a constructive trust, on the basis that the defendant was unjustly enriched. Although pleaded, I understand that counsel acknowledge that the circumstances do not raise any argument for a resulting trust. IV [13] The starting point for any discussion of constructive trust is Pettkus v. Becker (1980) 19 R.F.L. (2d) 165 (S.C.C.), a decision followed in the more recent case of Peter v. Beblow [1993] 1 S.C.R. 980. These affirm that for a constructive trust to be imposed there must be unjust enrichment, the essential indicia of which are: (1) an enrichment of one person; (2) a corresponding deprivation of another, and (3) the absence of any juristic reason for the enrichment. [14] In this case the plaintiff submits that she made her contribution to the improvement of the Pilot Bay property in the expectation that she would share the property in retirement with the defendant. The plaintiff alludes to plans whereby she would have taken the proceeds of the sale from the Edmonton house and put them into the Pilot Bay property to finance construction of a house, had the relationship continued. For this she would have expected a share of title. In her September 16, 1997 Affidavit at page 12, paragraph 2(t) the plaintiff says: "... I would have never used funds from the sale of my home to build a structure on a property that I was not on title for." [15] However that may be, she was not on title, nor had she made such a contribution when the relationship fell apart. The parties' expectation that the relationship would last, does not, unless that expectation has been acted upon to one party's detriment, give rise in and of itself to an interest in the property of the other. This is not a situation where one party's financial contribution was matched by the other party's household or childrearing or other contributions within a joint enterprise. Nor has it been shown that the plaintiff was, in any sense, induced to act to her own disadvantage by the defendant. [16] Despite their description of the relationship as living together "as husband and wife", the term does not define their legal status. With respect to property, the Family Relations Act creates a scheme presumptive of joint ownership regardless of nominal title as an incident of marriage. Persons who live together unmarried do not benefit from that presumption. [17] The courts have recognized that within relationships short of marriage, the parties' respective contributions to the accumulation of wealth or he discharge of joint responsibilities, are sometimes not fairly reflected in the nominal ownership of property. Where appropriate, such inequities may be adjusted by the imposition of a constructive trust. [18] There is nothing in this case, however, to move the court to do so. These parties came together and divided their basic financial obligations equally. It was obviously understood that the payments made by the defendant toward the mortgage and his help with renovations on the Edmonton house were a form of rent, not a participation in equity, because the plaintiff received all the money when the house was sold. I can see no principled way a distinction can be made as to the treatment of the defendant's property at Pilot Bay. There he was the sole owner and paid everything. Nothing in the material suggests that the plaintiff's contributions to that asset were more than an exchange for enjoyment. V [19] Accordingly I find that the plaintiff has not demonstrated an enrichment of the defendant by which she was correspondingly deprived, in connection with what she did at Pilot Bay. Even if that could be said, when those dealings are viewed in the context of the uncredited contributions made in Edmonton by the defendant, it cannot be said that the defendant was, within the total relationship, unjustly enriched. [20] The defendant's motion is granted. The plaintiff's claim is dismissed with costs to the defendant. "T.M. McEWAN"