Date: 19991123 Docket: 7283 Registry: Nelson IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: DEBORAH ALEXIS CAPPOS PLAINTIFF AND: DONALD ROBERT MACKINNON DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE T.M. McEWAN Counsel for the Plaintiff: S.E. Wallach Counsel for the Defendant: R. McLeod Place and Date of Hearing: Nelson, B.C. October 13-15, 1999 I [1] The plaintiff is a 49 year old woman and the defendant is a 53 year old man. They lived together unmarried for about four years, from July 1993 to June 26, 1997. [2] The plaintiff claims that as a result of her contributions during that period of cohabitation, the defendant has been unjustly enriched. She seeks compensation by way of a monetary award or the imposition of a constructive trust on the defendant's property, as well as spousal support. II [3] The parties had been acquainted for a number of years when they started seeing each other at the beginning of February 1993. [4] Each has been married and divorced. The plaintiff was supporting two teenage daughters and the defendant was supporting one. The plaintiff was living in Nelson and had a part-time teaching position at an elementary school near her home, and some additional income as a "Mary Kay" cosmetic consultant. She was also in the early stages of marketing a line of clothing she had designed through a company called "Mee Too Clothing Ltd." She thinks she was putting 16-25 hours per week into this enterprise. The business was not making any money but she and a partner were meeting its obligations. [5] The plaintiff had not taught full-time since 1979 when she resigned to devote herself to her children. She had been a "Mary Kay" manager up to 1991, but had given it up. In 1993 she was simply maintaining and servicing her own customer base. The plaintiff was not able to say how much income this business was generating at the time she met the defendant. Her total 1993 income was $15,071.95 according to her tax return. This included $6065 in child support from her daughters' father, $2790 in U.I.C. benefits, $8437 in employment earnings and a loss on self- employed income of $3035. [6] The plaintiff had a fund of about $40,000 coming out of the division of the assets of her first marriage. She was planning to use this money for a down payment on a house. She had been looking in Blewett, a rural area near Nelson, in order to accommodate her daughters' interest in horseback riding. She had furniture, an old station wagon and a van she used on the horse circuit. They had horses they boarded in Blewett. [7] In 1993 the defendant was steadily employed as a ferry captain by the Ministry of Transportation and Highways. He started in 1975 and has been a captain since 1981. He was then earning a little over $51,000 per year and now earns approximately $60,000 per year. He lived throughout in the home he now occupies, a 2000 square foot log house he built by hand between 1975 and 1979, on 16.54 acres he inherited from his parents. While he was married it had been the family home. Until October, 1993, his daughter, Jody, lived there as well. The property is located in Procter, a rural area east of Nelson. The best available evidence of the value of the property is an appraisal prepared in June of 1997 at the request of the plaintiff. It suggests a market value, at that time, of $260,000. the defendant approached the same appraiser, Peter Ness of Concorde Appraisals Ltd., for an opinion as to what the property would have been worth in 1993. Mr. Ness' opinion was that property values had generally increased about 34% in the Harrop (Procter) area in that time. He suggested the property had been worth about $200,000 in 1993. [8] Apart from his employment, the defendant also raised cattle and farmed on a modest scale, and earned some income slaughtering animals, haying, diving, and performing other odd jobs like cleaning boats. [9] In the spring of 1993 the parties began "dating" and taking day trips. This led to a weekend ski trip, and weekends at the defendant's home. In June, the plaintiff was required to vacate the house she was renting in Nelson. Matters had progressed to the point that the parties decided to live together, rather than have her find other accommodation. The plaintiff's horses had already been boarding on the defendant's property. [10] From the plaintiff's perspective, a very significant advantage of this move was the opportunity it gave her to raise her children in a rural setting. She really liked the property and the whole idea of uniting as a family. She said she was tired of single-parenting and said that the defendant had said he was lonely. While there was never any discussion of marriage, the plaintiff said she felt the defendant was committed to her. Once she moved in, the plaintiff threw herself into re-decorating the house and improving the garden. [11] At one point early in their co-habitation the plaintiff offered the defendant the $40,000 she had, to pay off his mortgage. She said she told the defendant that she did not want to "freeload" or feel that she was "getting a free ride". She says this offer was firmly rebuffed by the defendant, and that he told her to save that money because "some day [she] might need it". He refused to discuss the matter further. [12] The plaintiff says there were discussions about a joint household account, but that the plaintiff kept putting her off. The parties never did in any sense merge their accounts. [13] The plaintiff paid as much as she could for herself and her children from her child support and her own sources of income. She attempted to pay the difference in household expenses attributable to her family's presence, such as increases in house insurance premiums. She acknowledged, however, that she never did contribute on an equal basis in monetary terms. She said she had a hard time with this because she wanted to pay her own way. [14] During a period of time in 1995 when she was seriously ill with cancer, the plaintiff felt what she called "sheer terror" at having to face that illness, knowing she would not be able to contribute as much to the household for some time. The plaintiff says that the defendant was angry with her for worrying about such things, asking "why won't you let me support you?" when she voiced her concerns. [15] There is no question that, in a number of ways, the plaintiff put considerable effort into the relationship. These efforts are expressed in the pleadings as follows: 26. The plaintiff, CAPPOS, has contributed towards the acquisition, maintenance, or improvement of the property by: (a) labour contributed towards the maintenance or improvement of the property; (b) household and childrearing (sic) responsibilities which permitted the defendant to devote his efforts to the acquisition, maintenance, or improvement of the property; (c) contribution of money or goods in kind towards acquisition, maintenance, or improvement of the property; (d) contributed to the financial well being of the family some particulars of which are as follows; i) to the house - painting and refinishing - decorating - sewing, upholstering - cleaning, sorting, organizing - furnishings - renovations ii) out buildings - cleaned and sorted iii) gardens - reclaimed flower beds - replanted flower beds - decorated - vegetable garden - planted and tended and has herself been correspondingly deprived thereby. [16] When the plaintiff moved into the defendant's house, she replaced much of the existing furniture with her own and generally put a great deal of effort into brightening it up. This included, as alleged in the pleadings, painting, refinishing, decorating, cleaning, and other such services within the house and some cleaning and organizing in the outbuildings. It also included gardening. The plaintiff cooked and cleaned and helped to entertain members of the defendant's extensive family, including, on a number of occasions, the defendant's ex-wife Barbara Wallace. [17] The defendant helped the plaintiff with some of this work. There is no evidence that he requested the plaintiff provide any of the "improvements" the plaintiff made. The defendant said he found his house "liveable" before the plaintiff came, and the over-all effect of the evidence is that he was happy to go along with the plaintiff's suggestions, but that this activity was largely driven by the plaintiff's own desire to make the place accord with her tastes and standards. [18] A small unfinished area of the house was done over to create a room for one of the plaintiff's daughters. The defendant provided the labour, but the plaintiff says she insisted on paying for the materials, a cost she estimated at about $800 - $900. [19] The plaintiff extended the flower and vegetable gardens and canned a considerable amount of produce for consumption in the household. [20] The plaintiff tried to carry on her businesses from the defendant's residence. She acknowledged that the defendant set her up in the "rec room" so that she could operate "Mee Too". He bought her a sewing machine. She felt that the business was making steady progress until she was diagnosed with cervical cancer in 1994. In 1995 she was on her way to recovery from this set back when she hurt herself in the garden. She blames the defendant for this in that she says he had promised to rototill the garden but had been too busy with various of the odd jobs he did for other people to get to it. This angered her, and she began to lift rocks she should not have, rupturing a disc. She said she was flat on her back for six months. Sewing was out of the question, although she says she did carry on with the cooking and some of the housework, with occasional paid help. [21] The plaintiff never did get back to "Mee Too". She attempted to sell the business but there was no interest. She is now left with an outstanding debt on which she is obliged to make payments. The plaintiff acknowledges that on perhaps two occasions the defendant helped her make payments on this loan. The plaintiff estimates that she poured about $43,000 into this enterprise over time. [22] The plaintiff acknowledges that she knew that one of the risks of moving in with the defendant was that she might not be able to keep her "Mary Kay" business, because her customers would assume she was no longer available. She was prepared for this, but did not expect she would have any problem running "Mee Too" from Procter. She also considered that there might be some loss of opportunity to substitute-teach because from so far away it would not be practical for her to answer short-notice calls in Nelson. [23] The plaintiff testified that these considerations were outweighed by the advantages she saw to raising her children in Procter and throwing herself into making a home for herself and her children and the defendant. [24] The plaintiff says the relationship seemed to deteriorate when she was diagnosed with cancer. She said that while she had, personally, trouble being supported by the defendant she reached the point where she could accept it. She did not, however, feel that the defendant was very understanding. The parties sought counselling in 1996 for problems with communication. [25] Over time the defendant's refusal or failure to share financial information troubled the plaintiff. She felt the defendant was withdrawing from her. She had had plans to renovate the kitchen, but found the defendant reluctant to commit himself. The renovations never occurred. Late in the relationship, the plaintiff discovered that the defendant had refinanced the house to buy an airplane. There had been no discussion between them. It only came to her attention because the defendant made the local news by crash landing the airplane. The plaintiff said this made her feel very insecure as she reflected on the vulnerability of her position. During the same period the defendant had began to spend a great deal of time with his former wife. Since the parties separated he has, in fact, resumed cohabitation with her. [26] The plaintiff now lives at Harrop, which is near Proctor. She has been unable to obtain steady employment as a teacher largely because she has no degree. She would need approximately two years of university level training to achieve the required level. She wants to get this training. She has not lived with anyone else in any form of committed relationship since her separation from the defendant. [27] The plaintiff took furniture, personal belongings, most of what remained of the canning, and some of the drapery she had put up, when she left the house in June 1997. III [28] The defendant's version of events is that when the parties got together they had been getting along well. He said that when the plaintiff had to move from her rental residence in Nelson and it "seemed reasonable" to get together. He confirmed that by then the plaintiff's horses were at his place in Procter. [29] The defendant had been living with his daughter. She moved out in the fall of 1993. The defendant testified that the house was fully furnished and in good condition. There was a garden he had put in in the early 1980's. [30] At the outset, the defendant says that everyone had "good positive thoughts". From his point of view, he and the plaintiff had their first real misunderstanding in the fall of 1993 when they took a trip to Las Vegas. He said that the plaintiff wanted to discuss their relationship at some length while he just wanted to "get away". He says the plaintiff took great exception to his attitude. He says he felt she wanted to turn him into a different person. [31] The defendant confirms that he paid all the basic costs in the household, such as the mortgage, utilities and taxes. He said he put the plaintiff and her daughters on his medical and dental plans. He agreed that the plaintiff helped cover the extra costs attributable to herself and her daughters, such as extra telephone and food costs. [32] The defendant says that throughout he was wary of any commitment and confirmed that the parties never did talk about marriage. [33] The defendant acknowledged that the plaintiff was a good cook and homemaker. He said she was a good mother and felt that she was attempting to create a good home life for her children. He said he sometimes felt like a "fifth wheel" around them. [34] The defendant said that in monetary terms the plaintiff and her daughters were "costly" to him. He said that despite the plaintiff contributions he always paid the majority of the expenses in the household. [35] The defendant says he did not discourage the plaintiff from working. He recalled her saying she was tired of "Mary Kay" when they first got together. He said he thought "Mee Too" was a good concept but that over time it became discouraging. He did not expect the plaintiff to stop teaching and did not feel that moving to Procter should have been a significant problem since, as far as he knew, many people commute from there to Nelson for work. [36] The defendant confirmed that he did not discuss refinancing the house for the airplane because the mortgage had nothing to do with the plaintiff. He acknowledged that in 1994 he sold some timber from the property and put the sale through in the plaintiff's name to save on income tax. Neither party led evidence that this had had any negative repercussion for the plaintiff. [37] The defendant agreed that he had been quite willing to support the plaintiff when she was ill - he said he "was not going to bail out because of that". He denied that he ever assumed a parental role with the plaintiff's children, although he said they were "good kids" and he tried to help them out. [38] The defendant said he pitched in with the housekeeping and the renovations. He said the house looked nice by the time the plaintiff was finished with it. [39] The defendant says that despite counselling from January to August 1996, it was ultimately evident that the relationship was not going to work out. [40] The defendant said the plaintiff took most of the things she brought with her back when she left in June of 1997. IV [41] The plaintiff originally claimed an interest in the defendant's property on the basis of, among other things, an express trust. That claim has now, quite properly, been abandoned. There is no evidence that the defendant ever "agreed that the property beneficially belonged to both the plaintiff, Cappos, and the defendant, McKinnon (sic)" as alleged in the pleadings. [42] The claim remaining is that the defendant has been unjustly enriched by the contributions made by the plaintiff during the relationship. She seeks an undivided one-half interest in the property of the defendant, or such other interest as the court may declare. In submission, counsel suggested that the interest should, at a minimum, be half the appreciation in the value of the property while the parties lived together. [43] The basis for this claim is found in the plaintiffs Statement of Claim, at paragraphs 20 and 21: 20. The plaintiff, CAPPOS, has throughout the relationship acted as the homemaker, and as a primary caregiver for the children without remuneration. The plaintiff, CAPPOS, assumed these roles by mutual consent of the parties. The defendant, MCKINNON (sic), accepted the benefit of the plaintiff's, CAPPOS, assumption of these roles in the relationship. By virtue of time spent in these roles, the plaintiff's, CAPPOS, career and ability to support herself has been curtailed. 21. The plaintiff, CAPPOS', ability to support herself is constrained by a number of factors arising during the relationship; by the responsibilities for the care of her infant children; an injury to her back, which was incurred while working on the MCKINNON (sic) property; by her poor health, and by virtue of the fact that living in Proctor (sic), BC, with the defendant, MCKINNON (sic), made her availability for substitute teaching, carrying on her Mary-Kay Cosmetic and Mee Too Clothing businesses more difficult and ultimately unsuccessful. As a result her career, business ventures and ability to support herself has been curtailed. [44] I summarize the material facts as follows: 1. The plaintiff and defendant were independent adults when they began to see each other in 1993. 2. The defendant was well established in a career as a ferry captain. He owned a house and acreage, subject to a manageable mortgage. In addition, he gained some revenue from "odd jobs" slaughtering animals, diving, cleaning boats and doing farm work. 3. The plaintiff and her daughters lived modestly on the plaintiff's income from a "Mary Kay" business, as a substitute teacher and from what "the children's" father paid in maintenance. She also planned to develop an opportunity to earn income as a seamstress. She had embarked with a partner upon an enterprise called "Mee Too" to market clothing designs for handicapped people. 4. By June of 1993, the parties' relationship had developed to the point that they decided that the plaintiff and her daughters would move out to the defendant's property. She would have had to move out of her rented home in Nelson, in any event. 5. The plaintiff recognized that the move out to Procter might reduce her substitute teaching and "Mary Kay" income. She was losing interest in "Mary Kay" in any event, and was at the time more interested in putting her energy into the "Mee Too" business. Location had no bearing on "Mee Too". 6. The defendant did not put any pressure on the plaintiff to organize her priorities in any particular way, nor did he offer any inducements or in any way impose any particular expectation on the plaintiff. To the contrary, he made accommodations, including the purchase of a sewing machine, to assist the plaintiff in "Mee Too". 7. The defendant did not discourage, or in any way interfere, with the plaintiff's substitute teaching or "Mary Kay" businesses. 8. The plaintiff and the defendant did not merge their accounts. The plaintiff contributed to the additional expenses she and her daughters necessitated. The defendant made the larger financial contribution, paying the mortgage and utilities, the vehicle expenses and in other ways financially subsidizing the other members of the household. 9. The defendant specifically would not entertain the possibility of the plaintiff paying off the mortgage on his house when she offered, telling her she might need the money herself some day. 10. Carrying her own weight in the relationship was important to the plaintiff. She attempted to do this by paying her way to the extent possible and through household management and contributions to improvements, both inside and outside the house. 11. The plaintiff elected to put considerable energy into making over the home as she wanted it to be. In this regard she had the assistance of the defendant's labour and finances. The plaintiff did put some of her own money into building a room for her daughter and into decorating the home. 12. The plaintiff's illness and injury interfered with her ability to devote energy to the "Mee Too" business and the household. 13. The defendant supported the plaintiff through those periods. 14. The "Mee Too" business failed. It is impossible to tell whether it would ever have been successful. There is no evidence, however, that anything the defendant did, or expected of the plaintiff, had anything to do with its failure. Apart from purchasing the sewing machine and creating space the defendant paid two of the plaintiff's loan payments attributable to the business. 15. Nothing the defendant did, or expected the plaintiff to do, interfered with the plaintiff's ability to work or to seek employment. 16. The defendant had misgivings about the relationship from an early stage. The plaintiff put a great deal of effort into getting past the defendant's reluctance , ultimately unsuccessfully. 17. The plaintiff has not shown that the defendant was able to acquire property as a result of her efforts, as alleged in the pleadings. [45] This is not a case where two people combined their resources to create something together. Despite the plaintiff's desire for the relationship to develop in that direction, the fact is that the defendant was well established and owned virtually everything he has before the relationship began. What he possessed, the property in particular, was a factor in the plaintiff's interest. She really loved the defendant's home and wanted it to be a home for herself and her daughters. [46] It has not been demonstrated that the defendant is better off as a result of the plaintiff's presence. Apart from making the payments on household utilities and mortgage payments, which he would in any case have made, he was also out-of-pocket owing to the presence of the plaintiff and her daughters in the household. While the plaintiff attempted to minimize these expenditures to the extent she was able to contribute, the defendant paid the majority of the expenditures without any expectation of recompense. [47] The only direct expenditures that can be traced into the defendant's hands in any tangible way is the $800 - $900 on improvements to the room that was prepared for her daughter and the amounts spent on decorating, to the extent these improvements remain in the home. The appraisal does not address whether or to what extent these contributions measurably affected the value of the property. If this action were purely an accounting of the monetary contributions of the parties, I would, despite a lack of precision in the evidence, have no hesitation in finding that those of the defendant substantially outweighed those of the plaintiff. [48] The majority of the contributions which the plaintiff claims unjustly enriched the defendant are those related to homemaking and child-rearing (see paragraphs 20, 21 and 25 of the Statement of Claim reproduced in paragraphs 19 and 42 above). [49] I will say at once that I do not think the circumstances of this case quite fit the rubric of the pleadings where the children are concerned. The plaintiff did not "assume" the role of primary caregiver, nor was anything related to the care of the children an incident of relationship. These were obviously responsibilities the plaintiff had before the relationship began, and would have had in any event. While there are circumstances where a person in the position of the defendant may become liable to support such children - and the defendant in this case paid child support for some time under a provincial court order - I do not see how the care of the plaintiff's children can be transmuted into a benefit conferred on the defendant in the circumstances of this case. [50] Respecting homemaking services, I think the court must be careful to ensure that it does not undervalue such contributions. I do not think, as I have said before, that it can be demonstrated that in this case there were actual savings brought about through effective household management, or that the defendant's opportunities to enhance his economic position were enlarged at the expense of the plaintiff. This is not a case where the plaintiff assumed responsibilities the defendant would otherwise have had. Nor is it a case where the activities of the plaintiff liberated the defendant in any sense. He is roughly in the position he would have been in, in any case, in terms of his employment and the value of his assets. [51] On the question of the value of household services, as such, I think it difficult to characterize what occurred as a benefit conferred along with a corresponding deprivation. While there is no doubt that the defendant befitted from having meals, housekeeping and gardening done and that that work has value, I do not think it can be valued in isolation as if all other things were equal. The defendant went to work every day, after all, paying the fixed expenses of the household (mortgage, basic utilities, etc.) and subsidizing the others. It simply has not been demonstrated that what the defendant obtained from the relationship was an "enrichment" related to what he gave in the relationship. V [52] The starting point in the law is, of course, Peter v. Beblow (1993) 77 B.C.L.R. (2d) 1 (S.C.C.). There, the Court per Madam Justice McLachlin (at p. 2), outlined what it called the "basic notions": . . . 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. . . Madam Justice McLachlin cautioned against overlooking these principles: . . . There is a tendency on the part of some to view the action for unjust enrichment as a device for doing whatever may seem fair between the parties. In the rush to substantive justice, the principles are sometimes forgotten. . . She went on to observe: The main arguments on this appeal centred on whether the law should recognize the services which the appellant provided as being capable of founding an action for unjust enrichment. It was argued, for example, that the services cannot give rise to a remedy based on unjust enrichment because the appellant had voluntarily assumed the role of wife and stepmother. It was also said that the law of unjust enrichment should not recognize such services because they arise from natural love and affection. These arguments raise moral and policy questions and require the Court to make value judgments. The first question is: where do these arguments belong? Are they part of the benefit - detriment analysis, or should they be considered under the third head - the absence of juristic reason for the unjust enrichment? The Court of Appeal, for example, held that there was no "detriment" on these grounds. I hold the view that these factors may most conveniently be considered under the third head of absence of juristic reason. This Court has consistently taken a straightforward economic approach to the first two elements of the test for unjust enrichment: Pettkus v. Becker, supra; Sorochan v. Sorochan, [1986] 2. S.C.R. 38 [[1986] 5 W.W.R. 289]; Peel (Regional Municipality) v. Canada, [1992] 3. S.C.R. 762 (hereinafter "Peel"). It is in connection with the third element - absence of juristic reason for the enrichment - that such considerations may more properly find their place. It is at this stage that the court must consider whether the enrichment and detriment, morally neutral in themselves, are "unjust". [53] In the case before me, I am satisfied that the types of services performed by the plaintiff were such that, had an enrichment and a corresponding deprivation been established, the third part of the test would clearly have been satisfied. For reasons I have attempted to articulate, however, I am of the view that, on a "straightforward economic approach" the case must fail. [54] I have given consideration to the effect of a number of cases referred to by counsel for the plaintiff, of which Grant v. Moore (1993) 48 R.F.L. 345 (B.C.S.C.) is a useful example. There, the court addressed a situation with some similarities to those before me. The headnote describes the facts: The parties met in 1983 and dated until 1987. During that period they maintained separate accommodations but spent a great deal of time together and were involved sexually. They helped each other with household activities, but kept their incomes separate and managed their affairs exclusively. Both dated others during this time. In 1987 they began living together, their cohabitation lasting for four years. The plaintiff gave up her apartment and moved into the defendant's house. In 1988 she cut back her work schedule to devote more time to the home, but the couple never pooled their assets or their incomes. They divided the household and unit expenses and each paid his or her share. The plaintiff's children lived with the couple and the home was renovated to accommodate them. The parties had received counselling in respect of their relationship and had discussed breaking up a number of times. The home significantly increased in value during the relationship and the period preceding the trial. [55] Against a background that included an increase in value of the defendant's home of some $80,000 over the period of cohabitation, the court in Grant v. Moore awarded the plaintiff $30,000 to compensate her for her work and sacrifices benefitting the defendant. [56] The court also observed: A common law relationship is a mutual decision, a moral commitment, made by both parties not only to share the physical aspects of a conventional marriage but to share the day-to-day management of their lives, usually, if not always, in a common abode. From this intermingling of lives comes the concept of the constructive trust, as the parties contribute to the relationship in ways not always capable of measurement in monetary terms. [57] Much of the plaintiff's submission before me seemed to proceed from a reading of this and other cases as if they confer upon common-law relationships or those "approximating that of husband and wife" (the locution used in the pleadings) a kind of status that gives rise to a presumptive right to a redistribution of assets on breakdown. I do not think this is so. The description that appears in Grant v. Moore may well characterize the particular circumstances aptly, but I think each unmarried relationship must be evaluated in its own terms and not by resort to abstractions. The principles of unjust enrichment are the same whether they arise between unmarried spouses or strangers (see Campbell v. Campbell (1999) 46 R.F.L. (4th) (Ont.C.A.) 449 at 460, per Borins J.A. (but see also the Annotation by James G. McLeod at 453)). It remains entirely possible for adults to engage in unmarried relationships on the basis of understandings that limit their commitment and obligations to each other. [58] While, obviously, courts must be careful not to mischaracterize or undervalue services that are difficult to quantify, they must not over-value them either. Here, the plaintiff has simply not demonstrated an injustice - or even an enrichment - taking account of the nature of the relationship, the expectations of the parties and their respective contributions. The plaintiff's claim for unjust enrichment is accordingly dismissed. VI [59] The plaintiff also makes a claim for spousal support. The Family Relations Act definition of a "spouse" under s. 1(1)(b) is met in the circumstances of this case. That section provides that a "spouse is a person who: (b) except under Parts 5 and 6, lived with another person in a marriage-like relationship for a period of at least 2 years if the application under this Act is made within one year after they ceased to live together . . . [60] The obligation to support a spouse is found at s. 89: 89.(1) A spouse is responsible and liable for the support and maintenance of the other spouse having regard to the following: (a) the role of each spouse in the family; (b) an express or implied agreement between the spouses that one has the responsibility to support and maintain the other; (c) custodial obligations respecting a child; (d) the ability and capacity of, and the reasonable efforts made by, either or both spouses to support themselves; (e) economic circumstances. (2) Except as provided in subsection (1), a spouse or former spouse is required to be self sufficient in relation to the other spouse or former spouse. [61] The relevant criteria to consider are found in s. 93(4): (4) If a spouse will be living separate and apart from the spouse against whom the application is made, the court may, as it considers appropriate, adjust the amount of its order under subsection (1)(b) to take into account the needs, means, capacities and economic circumstances of each spouse, including the following: (a) the effect on the earning capacity of each spouse arising from responsibilities assumed by each spouse during cohabitation; (b) any other source of support and maintenance for the applicant spouse; (c) the desirability of the applicant spouse having special assistance to achieve financial independence from the spouse against whom the application is made; (d) the obligation of the spouse against whom application is made to support another person; (e) the capacity and reasonable prospects of a spouse obtaining an education or training. [62] In the present case, the plaintiff emerged from the relationship in approximately the same circumstances as before. It is not possible to attribute the failure of "Mee Too" to the relationship, although in the four years the plaintiff lived with the defendant it does appear that her prospects for employment as a teacher did not improve. The plaintiff's submission that living in Procter caused some economic disadvantage is not particularly persuasive, inasmuch as the plaintiff has continued voluntarily to reside in Harrop, in the same area. The plaintiff did injure herself while working in the garden during the relationship, which made other activities difficult for some six months. She was also, before that, seriously ill for some time. [63] While it is not possible to characterize the role of the plaintiff as conferring an unjust enrichment on the defendant, I am satisfied that the role she took in the relationship meant that some opportunities the plaintiff might have had to improve her employability and independence were postponed or displaced. While the relationship lasted the plaintiff put her energy into it, in the hope, if not the expectation, that it would continue. When she became sick and while she was injured the defendant encouraged her to allow him to support her. Although I have found that nothing the defendant did actively interfered with the plaintiff's ability to pursue employment opportunities, the nature of the relationship was such that over time the plaintiff quite naturally took on a role that put less of a premium on preserving her economic independence and her position in the workplace. This justifies, in my view, an order for spousal support on the basis that the plaintiff's earning capacity was affected by the role she took in the relationship, and justifies some assistance to help the plaintiff achieve financial independence. The plaintiff has the capacity, and a reasonable prospect, to obtain education or training if she has some financial assistance. If she doesn't get help, the education she needs may well be out of reach. [64] Taking the circumstances of the plaintiff and defendant into account, I order the defendant to pay $600 per month spousal support, for a period of two years, commencing December 1, 1999 and continuing thereafter for two years, that is, through November 2001. [65] Success has been divided. Unless counsel have reason to bring the matter back to the court, there will be no order for costs. "T.M. McEWAN" MR. JUSTICE T.M. McEWAN