Date: 19980617 Docket: 97/0204 Registry: Victoria IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: SHARON ALICE LILLIAN GREEN PLAINTIFF AND: BOB HARVEY MELNYK DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE B.M. DAVIES Counsel for the Plaintiff: Jill K. Turner Counsel for the Defendant: Alan Milne Place and Dates of Hearing: Victoria, B.C. March 11, 12 & 13, 1998 [1] The plaintiff and defendant met in Victoria, British Columbia, and began dating in 1978. The plaintiff was then almost thirty and the defendant almost forty years of age. After approximately two years of dating, the plaintiff and the defendant began to reside together in a house owned by the defendant in Victoria (the "Winter Garden Home"). [2] The plaintiff and the defendant were both employed when they commenced living together. The plaintiff worked for the Queen's Printer and the defendant worked for the City of Victoria as a firefighter. They were both divorced, the defendant for the second time. [3] The plaintiff claims that a common law relationship existed between the plaintiff and the defendant from 1980 until she stopped residing in the Winter Garden Home in mid-1996. The defendant acknowledges an intimate relationship between the plaintiff and the defendant from 1980 until approximately 1987 but says that the plaintiff and he did not live as common law spouses. Rather, he characterizes the relationship as a cost- sharing arrangement where each had responsibility for different aspects of their living and housing costs, but that they had no intention of marrying or sharing legally or beneficially in one another's property. [4] The plaintiff seeks a declaration of entitlement to an interest in property owned by the defendant. The plaintiff alleges that such interest arises as a consequence of either an express, resulting or constructive trust. Alternatively, she claims restitution for her contribution to the defendant's property on the basis of quantum meruit. Discussion of Equitable Principles [5] This is not a claim for property division made under the Family Relations Act, R.S.B.C. 1996 c. 128, and the plaintiff has withdrawn any claim for spousal support under that Act. The plaintiff's claims to property entitlement must therefore be analyzed in accordance with the equitable principles advanced by the plaintiff and governed thereby. The differences as between the types of trust pleaded as well as the alternate remedy of quantum meruit as pleaded are significant and are important in assessing the issues in this case. Express Trust [6] Although in dissent in the result, McLachlin, J. in Rawluk v. Rawluk (1990), 65 D.L.R. (4th) 161 (S.C.C.), stated (at p. 183) that: An express trust is one which arises from the intention of the settlor or trustee. I take that to be a correct statement and I refer also to The Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1989) at p. 18 wherein Professor Waters, in discussing the concepts of express and implied trusts, said (at p. 18) that: In the common usage of today the terms "express" and "implied" refer to the intention of the alleged settlor. If he clearly and specifically says that certain property is to be held on trust, then he has created an express trust. Similarly, if his language has to be construed in order for its legal meaning to be discovered, and it is found that the maker of the statement intended a trust, then he has created a trust arising by implied trust. Resulting Trust [7] In Crawford v. Rekus (August 18, 1995) Doc. Vancouver C932613 (B.C.S.C.), Lysyk, J. (at p. 11) succinctly stated the essence of the resulting trust: The existence of a resulting trust hinges on a finding that the claimant and the holder of a legal title agreed or shared a common intention that the former was to take a beneficial interest in the property. If such is established, one turns to a determination of the extent of the claimant's beneficial interest. [8] In Schmidt v. Air Products of Canada Ltd. (1994), 115 D.L.R. (4th) 631 (S.C.C.), McLachlin, J. again in dissent in the result but again in what I take to be a correct statement of the law distinguished between express trusts and resulting trusts (at p. 698) in the following way: The doctrine of resulting trust does not deal with the classic express trust, but is rather an equitable doctrine permitting those who have an interest in funds held in the name of another to recover them. In the first case we are concerned with the interpretation of terms of an express trust document; in the latter about the application of a legal (equitable) doctrine to a given situation. [9] In Rathwell v. Rathwell (1978), 83 D.L.R. (3d) 289 (S.C.C.), Dickson, J. (as he then was), considered the differences among express, resulting and constructive trusts. He said (at pp. 303-304): Resulting trusts are as firmly grounded in the settlor's intent as are express trusts, but with this difference - that the intent is inferred, or is presumed as a matter of law from the circumstances of the case. That is very old doctrine, stated by Lord Hardwicke in Hill v. Bishop of London (1738), 1 Atk. 618, 26 E.R. 388. The law presumes that the holder of the legal title was not intended to take beneficially. There are certain situations - such as purchase in the name of another - where the law unfailingly raises the presumption of resulting trust: Dyer v. Dyer (1788), 2 Cox 92, 30 E.R. 42; Barton v. Muir (1874), 44 L.J.P.C. 193; The "Venture" (1908), 77 L.J.P.D. 105. The presumption has always been regarded as rebuttable: Rider v. Kidder (1805), 10 Ves. Jun. 360, 32 E.R. 884. If at the dissolution of a marriage one spouse alone holds title to property, it is relevant for the Court to ask whether or not there was a common intention, or agreement, that the other spouse was to take a beneficial interest in the property and, if so, what interest? Such agreements, as I have indicated, can rarely be evidenced concretely. It is relevant and necessary for the Courts to look to the facts and circumstances surrounding the acquisition, or improvement, of the property. If the wife without title has contributed, directly or indirectly, in money or money's worth, to acquisition or improvement, the doctrine of resulting trusts is engaged. An interest in the property is presumed to result to the one advancing the purchase moneys, or part of the purchase moneys. and further (at pp. 304 - 305) that: The difficulty experienced in the cases is the situation where no agreement or common intention is evidenced, and the contribution of the spouse without title can be characterized as performance of the usual duties growing out of matrimony. There are many examples of this... Some of these situations may be analyzed as agreement or common intention situations. Such intention is generally presumed from a financial contribution. The doctrine of resulting trusts applies. In others a common intention is clearly lacking and cannot be presumed. The doctrine of the resulting trust then cannot apply. It is here that we must turn to the doctrine of constructive trust. Constructive Trust [10] As to the difference between resulting trusts and constructive trusts, I again refer to Rathwell wherein Dickson, J. stated (at p. 305) that: The hallmark of the constructive trust is that it is imposed irrespective of intention; indeed, it is imposed quite against the wishes of the constructive trustee. [11] To establish the appropriateness of the remedy of a constructive trust based upon equitable principles of unjust enrichment, the claimant must prove: (a) an enrichment of one person; (b) a corresponding deprivation of another; and (c) no juristic reasons for the enrichment. Petkus v. Becker (1993), 117 D.L.R. (3d) 257 (S.C.C.). [12] In Peter v. Beblow (1993), 44 R.F.L. (3d) 329 (S.C.C.), McLachlin, J. stated (at p. 342) that: [F]or a constructive trust to arise, a plaintiff must establish a direct link to the property which is the subject of the trust by reason of the plaintiff's contribution. She had also stated (at p. 338) that: In every case the fundamental concern is the legitimate expectation of the parties. [13] Thus, in analyzing a relationship to determine whether there has been an unjust enrichment of one party at the expense of the other, careful consideration must be given to the expectations which were created by the parties with respect to assets to which a claim of entitlement is asserted. [14] If an unjust enrichment of one party is established by the evidence with respect to property legally owned by another, the court may effect a remedy by way of constructive trust; i.e., a declaration of entitlement usually coupled with a transfer of title. Peter v. Beblow. Quantum Meruit [15] Peter v. Beblow also establishes that as an alternate remedy to the imposition of a constructive trust, the court may make a compensatory monetary award based upon the principles of quantum meruit as a means of valuing the services received by the party who has been unjustly enriched. [16] The compensation of one party for the value of services or goods supplied to that party's detriment and to the benefit of another developed historically as a means of granting monetary relief on a quasi contractual basis when for some reason an agreement between the parties was unenforceable. It also developed as an appropriate restitutionary remedy to provide redress in respect of the value of benefits received as a consequence of tortious interference with the interest of the claimant, benefits conferred under compulsion or under mistake. See: Peter D. Maddaugh and John D. McCamus The Law of Restitution (Aurora: Canada Law Book Inc., 1990) pp. 71 - 72. [17] Situations requiring the imposition of equitable relief by way of application of the principle of quantum meruit have as common elements the unearned or unpaid receipt of benefits by one to the detriment of another in inequitable circumstances. These are all elements reflected in the modern day development of the law concerning unjust enrichment as enunciated in the family context by the Supreme Court of Canada in Peter v. Beblow and Petkus v. Becker. [18] It is with regard to the aforementioned principles that the claims of the plaintiff to equitable relief in this case must be assessed. Background Facts [19] The parties were the only witnesses at trial. I found both to be credible witnesses to the extent that I believe each attempted to testify honestly as to their life together and their relationship. [20] I find, however, that the plaintiff did tend to exaggerate her contributions towards the upkeep and upgrading of the Winter Garden Home and also minimize the defendant's contribution towards the day to day cleaning and upkeep of the home and such matters as laundry and cooking. The plaintiff has, either as a consequence of this lawsuit, the passage of time or her own present assessment of past events, convinced herself of a more "marriage-like" relationship between the parties than actually existed. [21] I also find that while the defendant did not try to exaggerate or underplay the relative of contributions of either himself or the plaintiff in the relationship, he did, because of the issues raised in this litigation, seek to downplay those actions taken by him concerning his retirement which evidence a more mutually committed relationship than he now asserts. [22] While I am satisfied that there was never any expressed intention by the defendant to marry the plaintiff and no engagement ring was given to her by him, I am also satisfied that it was the common intention of the plaintiff and the defendant to continue their living and expense sharing relationship indefinitely into retirement. Those plans only changed when the plaintiff determined to end the relationship in the summer of 1996 by moving out of the Winter Garden Home. [23] When they commenced living together in the Winter Garden Home in 1980, the parties followed a pattern of expenditures which varied little until the relationship ended in the summer of 1996. In summary, to the extent that the expenditures of the plaintiff and the defendant constituted contributions to the joint living expenses of both, the evidence establishes that the defendant paid: (a) all mortgage payments on the Winter Garden Home on a mortgage in an initial principal amount of $62,500; (b) all property taxes on the Winter Garden Home except for the 1988 taxes; and (c) all utilities and insurance and virtually all capital costs relating to the maintenance of and renovations to the Winter Garden Home. [24] The evidence also establishes that the plaintiff paid: (a) for most groceries consumed by both parties and most of the general non-capital costs of maintaining a home including the purchase of such items as linens; and (b) either wholly or at least in part towards the capital cost of the acquisition or replacement of major appliances and some furniture. [25] When the plaintiff left the Winter Garden Home in 1996, she took with her most of that which she had purchased and which had not been consumed during the sixteen years of the relationship but left behind major appliances purchased in replacement of those which had been in the home in 1980. [26] From 1980 until June of 1995 when the defendant took early retirement from the City of Victoria, the plaintiff and the defendant each worked full time. The defendant always had an income that was higher than the plaintiff's by approximately 25% to 35%. He also made larger pension contributions and accumulated greater pension benefits from employment during that period. His pension entitlement upon his retirement was also greater than the plaintiff's is likely to be because of those greater contributions and because he had been employed for a longer period of time by the City of Victoria on an uninterrupted basis than the plaintiff will likely be with her employer. [27] After the defendant's retirement in 1995 until the plaintiff left the Winter Garden Home in 1996, the defendant used his pension income to fund those same expenditures for which he had assumed responsibility since 1980. The plaintiff also continued to make the same payments that she had made. [28] As to the non-monetary contributions of the parties to the relationship, I find that in the early years of the relationship there was more sharing of household tasks such as cooking, cleaning and laundry by the defendant than in later years, but that the plaintiff always undertook primary responsibility for interior home maintenance while the defendant always undertook on primary responsibility for outside maintenance and gardening as well as interior and exterior renovations and improvements to the Winter Garden Home. [29] The substance and effect of the economic arrangements made between the plaintiff and the defendant allowed each to maximize their own savings from their own employment and to otherwise enjoy the fruits of their respective employment as each saw fit. For example, the plaintiff often took vacations without the defendant and the defendant pursued his avocation of fishing without the plaintiff. As such, the arrangements were mutually beneficial and agreed upon. [30] I specifically note the following evidence of the mutuality of these economic arrangements as being individually motivated for individual gain, as evidence of the deliberate intention of the parties to keep their finances and assets separate and as evidence negating any expectation of a full sharing of entitlement to their combined assets: (a) The plaintiff and defendant at all times kept separate bank accounts and investments and owned no major property together; (b) In 1985 the plaintiff was one of a group of sixteen employees at the Queen's Printer office who won 1.6 million dollars in a government lottery. The plaintiff used her share (being $100,000) entirely for her own purposes with the exception of an unsolicited gift of approximately $2000 given to the defendant part of which he used to pay the 1988 property taxes on the Winter Garden Home; (c) In 1986 the plaintiff entered into an agreement with her mother to help her mother acquire a condominium and to make the mortgage payments on her mother's behalf. She also entered into a repayment agreement which would protect her investment in her mother's condominium from being shared with her siblings upon her mother's death; and (d) The defendant did not in any way share with the plaintiff the proceeds of a 1991 motor vehicle accident settlement proceeds received by him in 1994. [31] The plaintiff and defendant did at one time execute wills which would have seen (in the case of the plaintiff) part, or (in the case of the defendant) all of their respective estates pass to the other upon their respective deaths. The defendant also described the plaintiff as his "common law spouse" in documentation signed by him with respect to his retirement options and at one time made the plaintiff the beneficiary of his Registered Retirement Savings Plan. [32] The testamentary disposition in favour of the plaintiff and the designation of her as the beneficiary of his Registered Retirement Savings Plan is evidence of the defendant's fondness for the plaintiff which he now seeks to downplay. I find that the designation by the defendant of the plaintiff as his "common law spouse" in relation to his superannuation election arose in part because of his fondness for her, in part because of discussions with the plaintiff in relation to his retirement and in part because of an understanding by him that some such designation had to be made to allow the completion and processing of the forms and the commencement of retirement benefits. Property in Issue [33] In assessing the extent to which the equitable principles of express, resulting or constructive trust or quantum meruit may apply in this case, it is first necessary to consider the particular property to which the plaintiff claims a declaration of entitlement and to then consider the extent to which such equitable principles may apply thereto. [34] The plaintiff claims entitlement to a beneficial interest in the following property owned by the defendant at the time of trial: (a) the Winter Garden Home which appraisal evidence establishes had a value of $114,000 in June of 1980 and a value of $277,000 in June of 1996; (b) a 1994 Ford Bronco valued at $17,000 purchased by the defendant in January of 1996; (c) a boat and trailer valued at $16,000 purchased by the defendant in 1992 utilizing in part proceeds of a $25,000 mortgage placed by the defendant on the Winter Garden Home; (d) a boathouse valued at $7,000 purchased by the defendant in April of 1997; (e) a Royal Bank of Canada chequing account having a balance of $9,899 in June of 1996; (f) a Nesbitt Burns "Margin Account" having a net value of $39,200.28 as of June 30, 1996; (g) a Nesbitt Burns "R.R.S.P. Account" having a net value of $72,016.44 as of June 30, 1996 which account includes an approximate amount of $32,000 contributed by the defendant as a retiring allowance in 1995 when he retired from the City of Victoria; (h) household furniture and appliances, jewellery, a computer, camera equipment, oil paintings and prints valued collectively at approximately $9,800; and (i) Pension Plan contributions made by the defendant between 1980 and his retirement in 1995 in the amount of $64,172. [35] The plaintiff says that because of their relationship, the defendant should be entitled to a one-half share of the plaintiff's assets and that an equalization payment must then be made to effect equality between the parties. [36] While the defendant makes no such claim to any of the plaintiff's property, the plaintiff says that her following assets are subject to an equitable charge in favour of the defendant to effect equality: (a) a Nesbitt Burns "R.R.S.P. account" having a net value of $40,763.78 as of June of 1996; (b) a Nesbitt Burns "Margin Account" having a net value of $76,929.56 as of June 30, 1996 which account is made up primarily of the remainder of her lottery winnings; (c) a condominium renovation debt owed by the plaintiff's mother to her in the amount of approximately $9,000; (d) a 1994 Camry automobile valued at $16,600; (e) the debt owing to the plaintiff from her mother as a consequence of the plaintiff's payment of the mortgage on her mother's condominium which the plaintiff values at approximately $32,500 but which the evidence establishes has a value in excess of $90,000, if the debt is not subject to any forgiveness of interest or other accommodation by the plaintiff; (f) household furniture and jewellery valued collectively at approximately $6,000; and (g) Pension Plan contributions made by the plaintiff between 1980 and 1996 in the amount of $24,101. Application of Equitable Principles to Combined Assets [37] The plaintiff says that to effect an equal division of the value of assets at separation each party should keep the property they now own but that such an equal division would also still require a payment to her by the defendant of approximately $155,000 (if an equalization of pension contributions is included) and $175,000 (if an equalization of pension contributions is not included). [38] The plaintiff alternatively submits that if such methodology of division is not appropriate because it fails to take into account the value of assets brought into the relationship by each of the parties in 1980, that a "value survived approach" should be applied. On that approach, depending upon the value to be attributed to the Winter Garden Home in 1980 as being inclusive or exclusive of the mortgage debt of approximately $62,500 then owed by the defendant in relation thereto, the plaintiff says each party should keep the property they now own but that an equalization payment to her of between approximately $110,000 and $140,000 (including equalization of pension contributions), or between approximately $90,000 and $120,000 (excluding equalization of pension contributions), should be made by the defendant to her. [39] In all of these calculations the plaintiff assesses the value of the debt owed by her mother to her at approximately $32,000 rather than $90,000. [40] I find that while the evidence of joint testamentary dispositions and the defendant's designation of the plaintiff as his Registered Retirement Savings Plan beneficiary and description of her as his common law spouse in his superannuation election does tend to indicate a more committed relationship between the plaintiff and the defendant than that submitted by the defendant, I am not satisfied that on the whole of the evidence, especially the deliberately maintained regimes of separate property and independent finances for sixteen years that the entirety of the relationship between the plaintiff and the defendant was one which gives rise to an entitlement to the plaintiff to the broad relief now sought by her; i.e. a notional combining of all assets of the plaintiff with those of the defendant and an equal monetary division thereof. That is so whether a present value method or value survived method is applied. [41] The evidence of the relationship between the plaintiff and the defendant also does not support a finding of an express or implied trust that each would hold all or a portion of their assets in trust for the other, a resulting trust which would lead to that conclusion or of unjust enrichment which would require the imposition of a constructive trust or alternatively compensation based upon the principle of quantum meruit. Application of Equitable Principles to Specific Assets in Issue [42] The determination that the plaintiff's claim to a share of all of the defendant's assets must fail does not, however, end the inquiry in this case. The authorities establish that the plaintiff's claims to individual assets must also be assessed. The Winter Garden Home [43] The most significant property in controversy between the parties is the Winter Garden Home. The plaintiff relies upon her contributions to its upkeep and her funds and services rendered with respect to food and other expenses to establish entitlement on the basis of unjust enrichment. While there is no doubt that the plaintiff's contributions to food and daily living costs assisted the defendant by allowing him not to have to incur those costs in the same way that he would have had he lived alone, I do not find that the defendant was unjustly enriched by the plaintiff's contributions. [44] I also do not find that the plaintiff was deprived by her contributions in that she had the benefit of no payment of rent for her own living expenses thereby freeing up for herself her own income from employment or otherwise for investment or to be used as she determined. I again refer to the separate property, income and investments regimes maintained by the plaintiff and the defendant throughout their relationship and find that on the totality of the evidence the plaintiff has not proven a reasonable expectation of a share of ownership of the Winter Garden Home and has not met the burden of proving an unjust enrichment with respect to it. [45] The plaintiff also alleges an express or resulting trust with respect to the Winter Garden Home based upon common intention or promises that she says were made by the defendant to her to put her on title or statements to the effect that the home was "their home" or also "her home". I do not find that the evidence establishes on a balance of probabilities that there was any agreement or promise by the defendant to put the plaintiff's name on title necessary to establish either an express trust or a sufficient common intention to establish a resulting trust with respect to the Winter Garden Home. [46] In my judgment, the arrangement between the parties was a mutually agreed upon trade-off of responsibilities which allowed the defendant to continue to own the Winter Garden Home to his exclusive benefit and also allowed the plaintiff to become involved in other properties and investments as she did to her sole benefit with respect to the investment of her lottery monies and as she did with respect to assistance to her mother to allow the purchase of her mother's condominium, the making of renovations to it and the paying off the mortgage. [47] The plaintiff's claim to the Winter Garden Home must be dismissed. [48] Had I concluded that the plaintiff had established sufficient contributions to the Winter Garden Home to allow consideration of entitlement, I would not in any event make any entitlement award in her favour. By application of the principles in Harrison v. Kalinocha (1994), 90 B.C.L.R. (2d) 273 (C.A.), if credit is given to the defendant for the costs associated with conveyancing fees to acquire the Winter Garden Home, costs paid by him for its renovation and improvement, interest on the capital cost of its acquisition and improvement and property taxes paid by him over the years, those costs would exceed the net increase in value attributable to the Winter Garden Home between 1980 and 1996 by approximately $75,000. On the evidence and applying those principles, a compensatory award to the plaintiff is not available. Property Other Than the Defendant's Superannuation Plan [49] The plaintiff's claim to a declaration of entitlement to the defendant's property other than his retirement pension plan must also be dismissed. The plaintiff has not established an express, implied or resulting trust in relation to such assets as required by the authorities to which I have referred nor an unjust enrichment such as would be necessary to establish a beneficial interest in any of those assets, including the defendant's Registered Retirement Savings Plan. I refer again to the evidence of the separate property, income and investment regimes maintained by the plaintiff and the defendant over the sixteen years in issue to their mutual present benefit. As to the defendant's Registered Retirement Savings Plan, while it now contains some funds arising from his retirement by way of a retiring allowance earned in 1995, I consider those funds to be income from employment which he and the plaintiff never shared other than by reference to the specific expenditures to which I have referred. The plaintiff had no reasonable expectation that she would share in that Registered Retirement Savings Plan or the retiring allowance and in any event, on her own retirement will likely be entitled to similar tax planning benefits. The Defendant's Superannuation Plan [50] The evidence establishes that in 1995 the plaintiff and the defendant had many discussions concerning the defendant's retirement options and the timing of his retirement. I am satisfied on the whole of the evidence that the defendant intended to retire at as advantageous a time as possible both for his and the plaintiff's benefit with the understanding that the plaintiff would also retire as soon as possible and that they would continue to share expenses of living as they had done in the past. [51] The defendant obtained the plaintiff's signature on a superannuation election form to allow him to receive a higher monthly pension based upon a single survivorship option than that which he would have received if a joint survivor election had been made to allow the plaintiff to receive some of his pension benefits in the event the defendant were to die before her. The defendant acknowledged that he promised the plaintiff that if she signed such forms, she would be "looked after". [52] I find that the plaintiff has established a resulting trust with respect to a portion of the defendant's pension. That resulting trust is established by the defendant's assurances to obtain her execution of the superannuation election form and the common intention of the parties that the plaintiff and defendant would share the benefit of their retirement to the extent of a continued cost sharing relationship. That arrangement would have required a sharing of the defendant's pension entitlement by the plaintiff to the extent that he would continue to make the payments he had historically made in their joint living arrangement, as well as a means of assuring her of a continued source of income from that pension in the event of his earlier demise. That is what gave rise to the defendant's promise and recognition of the plaintiff's entitlement. [53] Having found an entitlement to share in the defendant's retirement pension by way of resulting trust, I turn then to the determination of the plaintiff's interest in the defendant's retirement pension. That determination is difficult. It is made difficult in part because the defendant has breached his obligation to "look after" the plaintiff by having taken no specific steps to improve the plaintiff's position or to otherwise protect her retirement in the event of his death and by his now denying the existence of the resulting trust. [54] Further complicating the issue of the determination of the plaintiff's interest in the pension is the fact that I also do not know whether in view of the present changed circumstances, the plaintiff will continue with her plans to take an early retirement in accordance with the former common intentions of the parties. [55] I do kow, however, that the defendant does receive almost $300 per month more than he and the plaintiff would have received had the plaintiff not given up whatever rights she then had or might in future acquire with respect to his pension. I was unfortunately provided with no actuarial evidence of the value of this election, which would have assisted in determining the present value of that benefit derived by the defendant at the plaintiff's expense. I do not, however, find that the plaintiff's entitlement would in the circumstances be limited to such actuarial value because of the joint retirement and continued cost sharing intentions of the parties established by the evidence. [56] Notwithstanding these evidentiary difficulties, I do also have the benefit of knowing the relative contributions of the plaintiff and the defendant to their respective pension plans between 1980 and 1985. That evidence establishes a differential in contributions of approximately $40,000 of greater contributions by the defendant. [57] Doing the best I can with the limited evidence before me, I order that a restitutionary payment of $20,000 be made to the plaintiff by the defendant to reflect her interest in his pension plan which I value in that amount. [58] In my judgment, that payment will allow the plaintiff some further security in her retirement and will, to the extent I can best approximate from the evidence, allow the plaintiff to be "looked after" as contemplated and while admittedly somewhat arbitrary because of lack of actuarial evidence, such amount is founded in evidentiary reality in that it does have regard to the relative contributions of the plaintiff and the defendant towards their joint retirement plans while residing together. That payment will also prevent the defendant from being unjustly enriched by refusing to acknowledge his obligation arising from the trust and his promises to the plaintiff. Costs [59] Unless there are matters of which I am not aware, the plaintiff shall have her costs of this proceeding based upon scale 3. "B.M. Davies, J." B.M. Davies, J.