Nov 9, 2020

COURT OF APPEAL SUMMARIES (November 2 – November 6, 2020)

Fettes v. Clark, 2020 ONCA 705 (CanLII)

[Roberts, Trotter and Thorburn JJ.A.]


A. J. Lyons, for the appellant

T. Peters, for the respondent

Keywords: Family Law, Spousal Support, Property, Unjust Enrichment, , Kerr v Baranow, 2011 SCC 10, Berta v Berta, 2015 ONCA 918, Djekic v Zai, 2015 ONCA 25


This dispute arose following the breakdown of the parties’ seventeen year common-law relationship. The trial judge ordered that the appellant pay the respondent, his former common-law spouse, $75,000 plus indefinite monthly spousal support of $561. The appellant appealed.


(1) Did the trial judge err by granting the respondent’s unjust enrichment claim?

(2) Did the trial judge err by awarding the respondent indefinite spousal support?


Appeal dismissed.


(1) No. The trial judge’s determination of these issues was highly fact-specific and therefore attracted considerable appellate deference absent error. The Court of Appeal saw no error that would have warranted appellate intervention, and the Court’s role was not to retry the case.

The trial judge thoroughly analyzed the details of the parties’ 17-year relationship and lifestyle and, in particular, their respective contributions to the acquisition, construction and day-to-day maintenance of their home. She also referenced and correctly applied the test for unjust enrichment as set out by the Supreme Court in Kerr v Baranow, and after careful consideration of each element found the respondent’s claim was made out. In her conclusion, the trial judge set out the benefits conferred by the respondent’s efforts.

The trial judge further clarified that the respondent was not entitled to compensation for the usual daily household chores she may have had more time than the appellant to do. As a result, she awarded the respondent “her value received money damages for her contribution toward the acquisition, improvements and renovations of the five-acre neglected property that was purchased by [the appellant].” The trial judge was also at liberty to not accept the respondent’s expert evidence regarding the value his gardening work added to the property.

The trial judge was not required to undertake a minute appraisal of the value of the respondent’s interest but did the best she could on the record before her. As her result was fair and reasonable, there was no basis for the Court of Appeal to intervene.

(2) No. The Court found that the trial judge did not misapprehend the respondent’s evidence regarding her earning capacity or her need for an indefinite period of spousal support. In the alternative, the appellant argued the respondent should have received transitional spousal support for two years in the monthly amount of $335. This was also rejected.

The trial judge clearly determined that indefinite spousal support, rather than transitional support, was appropriate in the circumstances given the respondent’s age, income potential, and duration of the relationship. She also included in her order a provision for annual financial disclosure, and the order for indefinite support was subject to variation based on a material change in either party’s circumstances. Therefore, the trial judge’s decision was reasonable.

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