Date: 19980902 Docket: 1595 Registry: Prince Rupert IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: NANCY DLOUHY PLAINTIFF AND: MICHAEL ANTHONY MEEGAN DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE GILL Counsel for the Plaintiff: Irene Peters Counsel for the Defendant: Elizabeth Kelley Place and Date of Hearing: Vancouver, B.C. July 15, 16 & 17, 1998 [1] The parties met in June, 1993, and commenced living together in December of that same year. Their daughter, Katie, was born July 21, 1994. The outstanding issues in these proceedings relate to the plaintiff's claims for maintenance and unjust enrichment. All issues in respect of Katie have been resolved. [2] The plaintiff is 33; the defendant 48. When they met, Ms. Dlouhy was working for CBC Radio in Prince Rupert as an announcer/operator. She had recently been promoted to that position and her annual salary was approximately $38,000. Her ambition at that time was to work as a morning show host. [3] When the parties met, Mr. Meegan resided, as he does now, in Queen Charlotte City and owned and operated a store. For many years, he had been a fish buyer for B.C. Packers and became involved in retail sales in 1979 as a sideline, after fishermen at Skidegate commented on the need for a supply store. [4] Mr. Meegan left his employment with B.C. Packers approximately seven years ago and devoted his efforts to the store. He purchased a building which was then renovated. The store premises are in the lower portions, and there is an apartment on the top floor. Meegan's Store Ltd. was incorporated in May, 1986. [5] The first point of contention is whether the parties lived together in a marriage like relationship for a period of at least two years. Notwithstanding the evidence of the defendant and the submissions made on his behalf, I have no difficulty concluding that they did. [6] By the fall of 1995, it was apparent to both Ms. Dlouhy and Mr. Meegan that their relationship was potentially doomed. The parties saw a counsellor together in mid November. Ms. Dlouhy testified that one of the suggestions made by the counsellor was that they make a commitment to the relationship for one more month. Mr. Meegan agreed, as did Ms. Dlouhy, although her decision was not immediate. Little seemed to change in the ensuing month but the parties nevertheless remained together, and to outside observers, their relationship appeared normal. Ms. Lin stayed with the parties in their apartment for much of December, 1995 while she worked in the store. She spent the night with them on January 26, 1996, and returned to the Queen Charlotte Islands on February 8, 1996. She had no sense that the parties were no longer a couple. [7] Ms. Dlouhy testified that she went away in mid February, 1996, and it was during her absence that she decided that she did not wish to continue in a relationship with Mr. Meegan. It was also her evidence that even at that point, Mr. Meegan wished to continue trying. He did not give evidence to the contrary. [8] The position advanced on behalf of the defendant appears to be that the relationship altered in July or August of 1995 such that the parties were merely living under the same roof, but no longer sharing the same room. Although Ms. Dlouhy agreed that when difficulties arose the defendant would often sleep in a separate room, the tenor of her evidence was that this was a reflection of their difficulties and not of a decision, or even a wish, to end the relationship. [9] In my view, the plaintiff falls within the definition of "spouse" in Section 1 of the Family Relations Act and for reasons which follow, is entitled to maintenance. [10] As already indicated, Ms. Dlouhy left her employment with CBC Radio to move to Queen Charlotte City when she was pregnant with Katie. Ms. Dlouhy and Mr. Meegan had hoped to have a child. They discussed and agreed that she would leave her employment, move to Queen Charlotte City and assume a role in Mr. Meegan's business. [11] After the parties separated, Ms. Dlouhy remained in Queen Charlotte City, working part-time in Meegan's Store. In July, 1997, she returned to Montreal, where she has family and friends. She contacted the CBC, but full-time positions were not available. She has been sporadically employed, and in the past year, has done various things, including substitute teaching. She decided to return to McGill University for an education degree and has been accepted starting in September of this year. The program will be either two or two and a half years in length, depending on the decision of the program director, which has yet to be made. [12] Ms. Dlouhy has applied for student loans as she does not believe that she could be a full-time student, care for Katie, and work as well. Even if she were able to do so, her earnings would likely be minimal. [13] The submission on behalf of Ms. Dlouhy was that the court should award maintenance of $300 per month, payable for three years commencing August 1, 1998. I agree that such an award is appropriate and so order. [14] The plaintiff also seeks a monetary award for unjust enrichment, arguing that between December, 1993, and March, 1996, she contributed labour which maintained, improved and enhanced the value of Meegan's Store and also contributed to its value by assuming that the majority of household and childrearing responsibilities. Between April, 1996 and July, 1997, Ms. Dlouhy was the manager for Meegan's Store. Thus, it is argued, she further enriched the defendant. In respect of the latter submission, after the parties separated, it was agreed that Ms. Dlouhy would continue working in the store on a part time basis at a salary of $1,600 per month. Although it was argued that this remuneration was not adequate compensation for her services, no reasons were articulated. The parties had separated by March, 1996, and because Mr. Meegan was absent from the Queen Charlotte Islands for most of the following 16 months, the parties had little contact. However, they discussed the remuneration that Ms. Dlouhy was to receive, and Ms. Dlouhy chose to remain in Queen Charlotte City until July, 1997, working 20 hours per week in Meegan's Store. There is no evidence which would suggest that her functions could not have been assumed by others, or that someone else would have been paid more for doing what she did. [15] In respect of her claim for compensation for unjust enrichment, the plaintiff relies upon the comments of McLachlin J. in Peter v. Beblow (1993), 77 B.C.L.R. (2nd) 1 (S.C.C.) at 6: The basic notions are simple enough. An action for unjust enrichment arises when three elements are satisfied: (1) an enrichment; (2) a corresponding deprivation; and (3) the absence of a juristic reason for the enrichment. These proven, the action is established and the right to claim relief made out. At this point, a second doctrinal concern arises: the nature of the remedy. "Unjust enrichment" in equity permitted a number of remedies, depending on the circumstances. One was a payment for services rendered on the basis of quantum meruit or quantum valebat. In answer to the plaintiff's submissions, it was argued on behalf of Mr. Meegan that Ms. Dlouhy was not deprived in any way, nor was he enriched by any contribution made by her. Reliance was placed on the decision of our Court of Appeal in Ford v. Werden (1996), 25 R.F.L. (4th) 372. [16] In Ford, the court considered the concept of unjust enrichment, and the requirements for a successful claim, differentiating between situations which have come to be described as "traditional" and those which are not the stereotypical or "traditional" type of common law marriage. Emphasis was placed upon the need to determine on the facts of each case whether there is no juristic reason for the enrichment. Newbury J.A. commented, at 380: In situations involving "traditional" common law marriages, these are not difficult questions - the court is generally confronted with one party (usually a woman) who has subverted her economic independence to the greater good of the family, foregoing opportunities to maximize her own income stream or asset base in the expectation that the relationship will last and she will be a position to share in the income stream of her husband and in the appreciation of his assets. The courts rightly regard it as unjust to permit the husband thereafter to walk away from the relationship, taking with him all his assets and his entire income stream, enlarged or improved as it is by the common law wife's efforts. Considering the above, I fail to understand how Ford assists the defendant's position. In this case, it is not merely that the plaintiff assumed the majority of the household and childcare duties. As already stated, after discussion between the parties, a decision was made that Ms. Dlouhy would give up her employment as a broadcast journalist and move to a remote location, thus effectively giving up her career and opportunities for advancement in her field. Further, it was Ms. Dlouhy's evidence that Mr. Meegan told her that he wanted her to be involved in the store and to be his partner in all aspects of life. In my view, the plaintiff has proven the three elements delineated by McLachlin J. in Peter v. Beblow. [17] Before dealing with the more difficult question of the quantum of any award, it is appropriate to deal with the issue of whether the parties reached a settlement or an agreement in respect of the plaintiff's claims in the spring of 1996. At that time, Mr. Meegan gave to Ms. Dlouhy the sum of $10,500. The evidence of both parties was that Ms. Dlouhy wanted that amount because she was thinking of buying a house and felt that Mr. Meegan owed her money. Ms. Dlouhy testified that she believed that the money was given to her without strings attached. It was Mr. Meegan's evidence that he understood that that was all she wanted. It therefore appears that each party came away from their discussion with a different belief, but neither gave evidence as to specific discussions which lead to the conclusions they reached. In such circumstances, the payment cannot be a bar to the plaintiff's claims, although obviously, it must be accounted for in any award. [18] While is was submitted on Ms. Dlouhy's behalf that a monetary award using the value received method should be made, it was also submitted that the court should calculate the amount by reference to the salary that the plaintiff would have received had she continued in her previous employment. The latter submission is inconsistent with a value received approach. It also ignores the fact that Ms. Dlouhy, too, received benefit from the relationship. [19] With respect to Ms. Dlouhy's work in the store, she began to be involved in Mr. Meegan's business almost as soon as she arrived on the Queen Charlotte Islands. Within months, both parties became involved in the computerization of the business, which from their descriptions, was clearly a substantial task. In the months before Katie's birth, Ms. Dlouhy worked eight hour days and was paid for her services. It does not appear, however, that she received any further remuneration until the parties separated. She estimated that in 1995, she worked at least 50 or 60 hours per month in the business. As previously stated, she also assumed responsibility for household and childcare duties. In all of the circumstances, an award of an additional $15,000 is appropriate. [20] I refer, finally, to costs. If the parties cannot agree, submissions may be made in writing. "Gill, J."