



COURT OF APPEAL FOR ONTARIO

CITATION: Fettes v. Clark, 2020 ONCA 705

DATE: 20201104

DOCKET: C67714

Roberts, Trotter and Thorburn
    JJ.A.

BETWEEN

Sandra Cathy Fettes

Applicant (Respondent)

and

Russell Willis Clark

Respondent (Appellant)

A. Justine Lyons, for the appellant

Tim Peters, for the respondent

Heard and released orally:
    October 30, 2020 by video conference

On appeal from the order of Justice Mary
    Jo McLaren of the Superior Court of Justice, dated May 29, 2019.

REASONS FOR DECISION

[1]

The appellant appeals from the trial judges
    final order that he pay the respondent, his former common-law spouse, $75,000
    and indefinite monthly spousal support of $561.

[2]

The appellant submits the trial judge erred:

1.

By granting the respondents unjust enrichment
    claim;

2.

By awarding the respondent indefinite spousal
    support. Alternatively, the appellant submits the respondent should receive
    transitional spousal support for two years in the monthly amount of $335.

[3]

We are not persuaded by the appellants
    submissions.

[4]

It is well-established that the trial judges
    determination of these issues is highly fact-specific and therefore attracts considerable
    appellate deference absent error: see
Kerr v. Baranow
, 2011 SCC 10, at
    para. 158;
Berta v. Berta
, 2015 ONCA 918, at para. 88. It is not the
    role of this court to retry the trial judges findings. We see no error here
    that would warrant appellate intervention.

[5]

The trial judge thoroughly analyzed the details of
    the parties 17-year common law relationship and lifestyle and in particular,
    their respective contributions to the acquisition, construction and day-to-day
    maintenance of their home. She carefully considered their respective
    submissions.

[6]

The trial judge referenced and applied correctly
    the test for unjust enrichment as articulated by the Supreme Court of Canada in
Kerr v. Baranow
. Her reasons demonstrate that she considered each
    element of the test for unjust enrichment and found the respondents claim was
    made out.

[7]

As she concluded at paras. 74-75 of her reasons,
    the benefits conferred by the respondents efforts:

were tangible economic benefits that Mr. Clark
    received. These benefits helped Mr. Clark to create the home and property that
    is now a significant asset. The contribution to the property by Ms. Fettes was
    more substantial than anything described in the cases provided where no unjust
    enrichment was found in my view. There were no juristic reasons for the benefit
    that was conferred upon Mr. Clark, such as a gift or a contract.

I am of the view that Ms. Fettes suffered a
    corresponding deprivation as a result of Mr. Clarks enrichment. She
    contributed to the property and as such she gave a benefit to Mr. Clark which
    he received and retained. She provided significant labour to a valuable asset
    without compensation. Case law suggests that a finding of a corresponding
    deprivation is not difficult if an unjust enrichment has been found.

[8]

We do not read her latter statement to mean that
    there is automatically a corresponding deprivation as a result of the finding
    of enrichment.

[9]

Nor do we agree that she failed to take into
    account the question of the mutual benefits conferred and received by the
    parties. As she stated at para. 89 of her reasons: I am mindful that Mr. Clark
    paid for all of the mortgage, taxes, insurance and utilities. I am not
    suggesting that Ms. Fettes should be compensated for the usual daily household
    chores that she may have had more time to do. As a result, the trial judge
    awarded the respondent, her value received money damages for her contribution
    towards the acquisition, improvements and renovations of the five-acre
    neglected property that was purchased by Mr. Clark for $85,000 after the
    vendors met the parties and saw the concept drawing.

[10]

The trial judge assessed the value of the
    respondents equitable trust interest in the home at $75,000. The appellants
    appraisal expert estimated the property to have a market value of $465,000 as of
    November 29, 2016.

[11]

The appellant argues that the trial judge erred
    in disregarding the experts evidence that the respondents gardening efforts
    added no value to the property. He says that none of the respondents work
    contributed any meaningful value to the property.

[12]

We do not accept these submissions. It was open
    to the trial judge not to accept the experts evidence on this point in light
    of the evidence of the respondents work efforts that the trial judge found did
    add value to the property.

[13]

The trial judge was not required to undertake a minute
    appraisal of the value of the respondents interest but did the best she could
    on the record before her; her assessment was fair and reasonable: see
Djekic
    v. Zai
, 2015 ONCA 25, at para. 167.

[14]

With respect to the issue of spousal support,
    the trial judge did not misapprehend the evidence of the respondents income
    earning capacity or her need for an indefinite period of spousal support. She
    considered and applied all relevant factors. While her reference to
    transitional support is not entirely clear, the trial judge clearly
    determined that indefinite spousal support was appropriate in the circumstances
    of this case given the respondents age, income potential and the duration of
    the relationship: see
Djekic
, at para. 9. Her decision was reasonable.

[15]

We also note that the trial judge included in
    her order a provision for annual financial disclosure. Moreover, the order for
    an indefinite period of spousal support is subject to a variation based on a
    material change in either partys financial circumstances.

[16]

For these reasons, the appeal is dismissed.

[17]

The respondent is entitled to her partial
    indemnity costs of the appeal in the amount of $4,000, inclusive of
    disbursements and applicable taxes.

L.B.
    Roberts J.A.

Gary
    Trotter J.A.

J.A.
    Thorburn J.A.


