Supreme Court of Nova Scotia
FAMILY DIVISION
Citation: Nadeau v. LaKing, 2023 NSSC 172
Date: 20230531
Docket: SFH-PA 126545
Registry: Halifax
Between:
Simon Pierre Nadeau
Applicant
v.
Charro Lynn LaKing
Respondent
Library Heading
Judge: |
The Honourable Justice Elizabeth Jollimore |
Heard: |
May 8-9, 2023, in Halifax, Nova Scotia |
Subject: |
Family, unjust enrichment, Partition Act |
Summary: |
Property division after common law relationship. One home divided under Partition Act and unjust enrichment claim for work done on one party’s solely owned cottage. Personal items divided. |
Legislation: |
Partition Act, RSNS 1989, c. 333 |
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.
SUPREME COURT OF Nova Scotia
FAMILY DIVISION
Citation: Nadeau v. LaKing, 2023 NSSC 172
Date: 20230531
Docket: SFH-PA 126545
Registry: Halifax
Between:
Simon Pierre Nadeau
Applicant
v.
Charro Lynn LaKing
Respondent
Judge: |
The Honourable Justice Elizabeth Jollimore |
Heard: |
May 8-9, 2023, in Halifax, Nova Scotia |
Counsel: |
Kelsey E. Hudson for Simon Nadeau Christopher Robinson for Charro LaKing |
By the Court:
Introduction
[1] There are 3 broad areas of dispute between Simon Nadeau and Charro LaKing:
1. In the division of their jointly owned home, how much should Ms. LaKing pay Mr. Nadeau?
2. Has Ms. LaKing been unjustly enriched by Mr. Nadeau’s work on her cottage in New Brunswick? If so, what’s the appropriate remedy?
3. What division of personal property and debt between Mr. Nadeau and Ms. LaKing is appropriate?
(a) The disputed personal property is the Bowflex, Echelon bike, live edge table, home generator, lawn mower, snow blower, tools, whipper snipper, boogie board, wake board, punching bag, office desk, WestJet travel miles, and sectional couch.
(b) The debt is the joint credit line.
[2] There are 10 undisputed points:
1. Ms. LaKing has no claim to the house on Cottontail Lane. She will sign a quit claim deed to the property to Mr. Nadeau, who will remove her name from its mortgage, and be solely responsible for the $56,485 owed on the joint credit line for the purchase of this property.
2. Mr. Nadeau owes a further $22,505 on the joint credit line for the purchase of his daughter’s car and his small boat.
3. Whoever keeps the Suzuki ATV, the Kawasaki side-by-side or the utility trailer will retain responsibility for the associated debt and owe the other party nothing for the asset.
4. Mr. Nadeau will keep the Ford 150 and the associated debt. Ms. LaKing must sign over ownership documents. He will owe her nothing for it.
5. Ms. LaKing will keep the Honda Accord and the associated debt. Mr. Nadeau must sign over ownership documents. She will owe him nothing for it.
6. Ms. LaKing will keep the cottage container and pay Mr. Nadeau $3,000. Mr. Nadeau must sign over any ownership documents.
7. Ms. LaKing will keep the cottage generator and pay Mr. Nadeau $500. Mr. Nadeau must sign over any ownership documents.
8. Mr. Nadeau must pay Ms. LaKing $2,362.50 as her equal share of the proceeds from the pontoon’s sale.
9. Neither party has made a claim against the other’s RRSPs or pension.
10. Mr. Nadeau’s name will be removed from the title to the Grand Sirenis Ultimate Club vacation package. Ms. LaKing will provide him with any documents he’s required to sign to do this, and she will bear the cost of any registration. Mr. Nadeau will sign the documents within 10 days of them being provided to his lawyer and return them to Ms. LaKing’s lawyer within 5 days of signing them. No payment will be owed for this.
[3] Ms. LaKing didn’t file a response to Mr. Nadeau’s application identifying other relief, so I am not dealing with her claims that Mr. Nadeau “stole” or damaged her property. Even if they were pleaded, I am not persuaded they fall within my jurisdiction.
In the division of their jointly owned home, how much should Ms. LaKing pay Mr. Nadeau?
What is the home worth?
[4] A preliminary issue is the home’s value.
[5] In July 2022, Cody Scott appraised the home for $950,000. Mr. Scott testified, though he wasn’t offered as an expert witness.
[6] The only expert to offer an opinion about the home’s value was Paul Young, an accredited appraiser, who valued it at $825,000 in January 2023. Mr. Young was agreed to be qualified as an expert who could offer opinions on residential real estate values. I also heard from Ms. York, a candidate appraiser. Mr. Nadeau required Ms. York and Mr. Young to appear for cross-examination and to be qualified.
[7] Mr. Young didn’t visit the home. Ms. York, a candidate appraiser, inspected the home, walked through it, took photographs, made notes and measurements. Mr. Young reviewed her work and signed the appraisal as her supervisor. It wasn’t clear who identified comparable properties or if there were any revisions to Ms. York’s draft report. The appraisal was done within the usual course of training new appraisers and appraising property.
[8] Both Cody Scott and Paul Young agreed that interest rates doubled in the time between their appraisals (from July 2022 to January 2023). Mr. Young agreed that it was “conceivable” that both his appraisal and Mr. Scott’s were correct, each at its own time.
[9] Mr. Young’s appraisal is closer to the current date and therefore a better reflection of the value Ms. LaKing is retaining. Only Mr. Young was qualified to offer an expert opinion. I accept his opinion of the home’s value and find the home is worth $825,000.
[10] [The parties agree this amount must be reduced to reflect notional disposition costs, such as the mortgage, real estate commission, legal fees, and taxes.
[11] I calculate the notional disposition costs as follows:
Sales commission (5%) 41,250
HST on sales commission 6,187.50
Legal fees 1,000
HST on legal fees 150
Total disposition costs 48,587.50
[12] After the notional disposition costs are deducted, the home’s value is $776,412.50.
[13] The mortgage on the home is $465,461, leaving equity of $310,951.50.
[14] Where parties own land as joint tenants, the Partition Act, R.S.N.S. 1989, c. 333, empowers me to divide real estate or, where that’s not possible, to order it sold. The Act contains no provision for “buying out” another owner’s interest – that only occurs if owners agree, as they do here.
What impact, if any, does the cost of acquiring and improving the home have on its division?
[15] When parties hold title in joint names, there’s a presumption of equal sharing under the Partition Act:
• Anderson v. Wilson 1986 CanLII 6360 (NS SC) at paragraph 11: “there is a strong presumption that each joint ownership is equal. That is, regardless of the contribution of either, once creating the joint relationship the inference of equality flows.”;
• Primeau v. Richards, 2004 NSSF 86 at paragraph 31; and
• MacDonald v. Jollymore, 2006 NSSC 152 at paragraph 33.
[16] Partition Act jurisprudence considers pre-separation contributions in the context of deciding if the presumption of equal sharing has been rebutted, not in the equities of the division.
[17] Ms. LaKing bears the burden of rebutting the presumption of equal division. She identified 2 factors:
1. The parties jointly owned a home in Stittsville, Ontario. Ms. LaKing loaned Mr. Nadeau $20,000 for the downpayment. She withdrew this amount (and more) from her RRSP. The parties agreed that Mr. Nadeau would repay her when the home sold. The sale of the Stittsville home netted $105,000. Mr. Nadeau used $20,000 of the proceeds to repay his debts and the remaining $85,000 was used to buy the current home. Ms. LaKing said that Mr. Nadeau owed her the $20,000 which she lent to him for the Stittsville down payment. Mr. Nadeau said, “it was understood that I did not need to provide Charro with her $20,000.00 down payment back” and Ms. LaKing had no entitlement to any of the proceeds.
2. Ms. LaKing said that she paid $54,000 for upgrades to the home. Mr. Nadeau said her contribution was $35,000, and he contributed $10,000. Neither party offered any documentation to support their assertion. They said they paid cash to avoid taxes.
[18] Ms. LaKing offered no authority for her argument that this unequal contribution to the home’s cost was sufficient to depart from the presumption that each owner is entitled to an equal share. I've been unable to locate any case where the presumption has been rebutted on this basis. In fact, circumstances even more starkly unequal have not rebutted the presumption of equal shares.
[19] In Davis v. Munroe, 2011 NSSC 14, Mr. Davis owned a house for roughly seventeen years before he began his relationship with Ms. Munroe. After living together for four years, Mr. Davis and Ms. Munroe moved into his house and, the next year, Mr. Davis made Ms. Munroe a joint owner of the property. In deciding the Partition Act application, Justice Ferguson said, at paragraph 35, “Mr. Davis correctly acknowledges Ms. Munroe’s initial entitlement to fifty percent of the net equity in their home.” The emphasis is mine. His Lordship’s comment recognizes that when parties take title jointly this creates the presumption of equal interest regardless of the initial contribution.
[20] The presumption of equal sharing arises from the parties’ choice to take title as joint tenants. The presumption doesn’t arise from how the purchase was financed or how improvements to the property were made. I find that Ms. LaKing has not rebutted the presumption that Mr. Nadeau is entitled to an equal share in the property.
[21] These comments do not resolve the issue of Ms. LaKing’s $20,000 loan to Mr. Nadeau. Both parties agreed: this was a loan; Ms. LaKing would be repaid when the Stittsville home sold; and Ms. LaKing was not repaid when the Stittsville home was sold.
[22] Mr. Nadeau said, “it was understood that I did not need to provide Charro with her $20,000.00 down payment back”. He didn’t explain this understanding - and the understanding was not shared: Ms. LaKing expected her money back. In fact, 2 separate emails from Mr. Nadeau to Ms. LaKing in June 2017 demonstrate his knowledge that he owed her money. In each, he asked, “How much do I owe you for the house in Stittsville?”
[23] I find that Ms. LaKing did not forgo repayment of the $20,000 loan and Mr. Nadeau must pay her this from his equal share of the net equity.
Does the payment of expenses after the separation impact the division?
[24] Mortgage and property tax payments made by one party after a separation while there is exclusive possession are routinely considered in dividing the value of the jointly‑held property. This was done in Davis v. Cipryk 1977 CanLII 3267 (NS SC) by Justice Jones, in Taylor 1984 CanLII 4827 (NS SC) by Justice Richard, in Anderson v. Wilson 1986 CanLII 6360 (NS SC) by Justice Grant, and in Primeau v. Richards, 2004 NSSF 86 by Justice Legere‑Sers.
[25] Ms. LaKing stayed in the home after the couple separated in November 2021.
[26] Mr. Nadeau continued his payments on the mortgage from November 2021 to June 2022. He wants to be reimbursed for the total payments he made of $9,264.
[27] Following the example of Taylor, 1984 CanLII 4827 (NSSC) and Primeau v. Richards, 2004 NSSF 86, I order Ms. LaKing pay Mr. Nadeau ½ of the mortgage payments he made post- separation. Ms. LaKing will pay him $4,632 from her share of the home’s net equity.
Has Ms. LaKing been unjustly enriched by Mr. Nadeau’s work on the New Brunswick cottage? If so, what’s the appropriate remedy?
[28] In January 2019, Ms. LaKing bought a cottage in New Brunswick from her brother by paying out his mortgage of roughly $73,000. She solely owns the cottage. She financed the purchase with a payment she received from Veterans Affairs when she was medically discharged from the Armed Forces as a result of her injuries from serving in Afghanistan. The payment is, in effect, a damages award, and is personal to Ms. LaKing. There was no evidence or argument that Mr. Nadeau had any entitlement to any portion of it.
[29] Mr. Nadeau said this purchase was made without any discussing with him.
[30] The cottage is a 5-acre property with lakefront access. When purchased, its assessment was $30,300. It was assessed for $32,100 when the parties separated in November 2021, and is now assessed for $32,400. Ms. LaKing said that recent cottage sales in the area are in this price range.
[31] I have no evidence of the cottage’s current value. Mr. Nadeau offered his own opinion that it’s worth $175,000 – almost 5 ½ times its assessed value, but there’s no evidence that supports his opinion.
[32] Mr. Nadeau said he paid renovation costs and contributed “sweat equity”. He provided no proof of any expenses he paid. He provided 100 pages of credit card statements but said nothing about the contents of the statements or what, in particular, was relevant about them. I cannot tell whether any of the expenditures listed relates to the cottage.
[33] Mr. Nadeau said he “put weeks of labour into the cottage”, building a 14’ x 32’ deck, building an 8’ x 16’ floating dock, landscaping 1.5 acres (cutting trees, excavating, doing “all the preparation” for seeding), and redoing the road. He said he spent well over 200 hours working on the cottage, working weekends from 6 a.m. until 8 p.m.
[34] Ms. LaKing didn’t deny that Mr. Nadeau worked on the property. She said he wasn’t the only person who worked on the cottage: Denne Soucy removed trees; George McKay did some excavation; Danny McIntyre rented a skidder to Ms. LaKing; and Gibson LaKing (Ms. LaKing’s brother) worked levelling the land and removing rocks. Joseph Godbout helped run a tractor to level and spread soil and gravel. Ms. LaKing’s father and brother helped build a deck and a dock. A Fredericton company was hired to seed the land.
[35] In cross-examination, Mr. Nadeau admitted that he wasn’t alone felling trees or working on the deck and dock. Mr. Godbout testified about his work running the tractor to spread and level soil and gravel.
[36] Unjust enrichment exists where Ms. LaKing received a benefit or enrichment that Mr. Nadeau conferred on her to his detriment, and there is no juristic reason for her enrichment. Mr. Nadeau bears the burden of proof. He’s shown he’s contributed effort to the cottage, and that he was deprived by making this effort. There is no juristic reason for the work he performed.
[37] Remedies for unjust enrichment are restitutionary – they are to compel the party who has been unjustly enriched to repay or reverse the unjust enrichment: Kerr v. Baranow, 2011 SCC 10, at para 46. The remedy can be a payment of money or, where money is inappropriate or insufficient, a proprietary remedy may be needed: Kerr v. Baranow, 2011 SCC 10, at para 50. Here, money is an appropriate and sufficient remedy and I must determine how much money Mr. Nadeau should receive.
[38] “The monetary remedy must match, as best it can, the extent of the enrichment unjustly retained” according to Justice Cromwell in Kerr v. Baranow, 2011 SCC 10 at para 73. Typically, there were 2 ways of calculating the amount of a monetary remedy: determining the value that Ms. LaKing received or determining the value that survived.[1]
[39] Mr. Nadeau said his work was worth $25,000. He didn’t explain how he determined this amount. If it reflected an hourly rate, it would be for $100, working 250 hours.
[40] I have no evidence to support that his work increased the cottage’s worth by $25,000. Since family members and neighbours worked for free, I can’t assess Mr. Nadeau’s work against what was paid to them.
[41] I value Mr. Nadeau’s labour at $25/hour, the amount that would be paid to a very experienced manual labourer and I order Ms. LaKing to pay him $6,000 to compensate him for her enrichment.
What division of personal property and debt between Mr. Nadeau and Ms. LaKing is appropriate?
The personal property
[42] The disputed personal property is the Bowflex, Echelon bike, live edge table, home generator, lawn mower, snow blower, tools, whipper snipper, boogie board, wake board, punching bag, office desk, sectional couch, and WestJet travel miles.
[43] The parties agree only on the value of the Echelon bike.
[44] Mr. Nadeau provided no evidence of the value of the tools, whipper snipper, boogie board, wake board, punching bag, office desk, sectional coach, and WestJet travel miles. Ms. LaKing offered no evidence of the value of the home generator, the lawn mower, and snow blower.
[45] Both provided values for the Bowflex and the live edge table: their values differed.
[46] The parties agree the personal property is to be divided equally but I cannot do that without knowing its value.
[47] Mr. Nadeau is to divide the list of personal property into two lists of equivalent value. Equivalent value may not mean each list has the same number of items. He must email the lists to Ms. LaKing by June 16, 2023. By June 26, 2023, Ms. LaKing must email Mr. Nadeau, identifying which of the two lists she picks as the list of items she wants to keep. Items on the other list will belong to Mr. Nadeau. This division means that neither will owe the other any money for these items.
[48] [Each party has until July 31, 2023, to collect all items they will retain from the other party.
The debt
[49] The debt is the joint credit line. Its balance was $115,091.35. Of this, Mr. Nadeau owed $56,485 for the purchase of his home on Cottontail Lane and $22,505 for his purchase of his daughter’s car and a small boat. Ms. LaKing withdrew $3,000 from the credit line for her own use. 66% of the credit line debt was Mr. Nadeau’s.
[50] The remaining $33,101.35 is owed equally by the parties.
[51] Until September 2022, the parties were jointly paying the credit line. Since September 2022, Ms. LaKing paid the interest and fees on the credit line, $4,919.17 and $270, respectively. Ms. LaKing wants credit for her payment of interest and fees. Based on a proportionate sharing of the interest and fees, Mr. Nadeau would owe Ms. LaKing $3,424.85.
[52] Mr. Nadeau said that if the home is to be divided equally, then the encumbering debt should be equally shared.
[53] Ms. LaKing hasn’t identified a legal basis for her claim that she should be reimbursed for paying the proportion of interest and fees on the credit line that relates to Mr. Nadeau’s borrowing.
[54] Ms. LaKing cannot argue that her payment of all the interest and fees has unjustly enriched Mr. Nadeau because there is juristic reason for Ms. LaKing to make the payments: she is contractually obliged to make payments on the credit line debt.
Conclusion
[55] Ms. Hudson will prepare the order.
[56] If the parties are unable to agree on costs, they should file submissions no later than June 30, 2023.
Elizabeth Jollimore, JSC(FD)
[1] A further option is making a finding of joint family venture, but neither party suggested this was the appropriate option and the manner in which Ms. LaKing financed the purchase doesn’t support a finding of joint family venture.