2007 BCCA 20 Davey v. Gruyaert

Before:	The Honourable Madam Justice Ryan
	The Honourable Madam Justice Newbury
	The Honourable Madam Justice Levine

R.J. Cuddeford	Counsel for the Appellant
B. Gruyaert	Acting on Her Own Behalf
Place and Date of Hearing:	Vancouver, British Columbia
December 11, 2006
Place and Date of Judgment:	Vancouver, British Columbia
January 11, 2007

Written Reasons by:

The Honourable Madam Justice Newbury

Concurred in by:

The Honourable Madam Justice Ryan

The Honourable Madam Justice Levine

Reasons for Judgment of the Honourable Madam Justice Newbury:

[1] For reasons indexed as 2006 BCSC 622, the Chambers judge below ordered that the costs of the unsuccessful defendant and counter-claimant, Ms. Gruyaert, be paid from the estate of the deceased, Mr. Davey. Mr. Davey died at the age of 46 without leaving a will. The plaintiff/appellant was his mother and is now, I understand, the administratrix of his estate. Ms. Gruyaert claimed a share of the estate on the basis that she qualified as the deceased’s common law spouse as that term is defined at s. 1 of the Estate Administration Act, R.S.B.C. 1996, c. 122.

[2] In her earlier reasons after trial (dated December 8, 2005) the Chambers judge found that Ms. Gruyaert had not met the onus on her to establish that she had been the common law spouse of Mr. Davey. At paras. 32 – 35, the Chambers judge reasoned as follows:

In the circumstances of this case, I must look at the objective factors. These parties did not share legal rights to their living accommodation, nor did they share any bank accounts or have access to each other’s bank statements. There was no financial intermingling at all. Ms. Gruyaert had no access to, or knowledge of, Ricky’s financial affairs. There was no blending of incomes. The two kept their belongings entirely separate. They had separate vehicles. Ms. Gruyaert did not contribute any money to the upkeep or ongoing expenses of Ricky’s house. Ms. Gruyaert not only kept her paycheque to herself but also her benefit plans, though it would have cost her nothing to enrol Ricky in her medical plans. She maintained a separate mailing address and maintained a residence with her parents until very shortly before Ricky’s death. None of these objective factors point to a marriage-like relationship. Finally, as I have noted, Ricky had virtually no relationship with Travis. While I am sure Ricky saw Travis from time to time and interacted with him, he did not conduct himself as one who was involved in a marriage-like relationship with Travis’s mother.

There is a great deal of evidence in this case of two people who loved each other and spent a good deal of time together. Ricky and Ms. Gruyaert clearly had a strong bond. I do not doubt that Ms. Gruyaert was Ricky’s companion in his pursuits, as was acknowledged by many at Ricky’s funeral, and even by Ricky’s mother and sister in the obituary they placed in the local newspaper. I certainly reject the evidence of Ivy Davey and Sandra Ward that there was no intimate relationship at the time of Ricky’s death. In my view, their views were entirely coloured by their dismay at Ms. Gruyaert’s claim to Ricky’s estate.

However, I accept the evidence of Ms. Gruyaert’s mother, Carol Davies, and her husband, Ken Davies, which significantly undermines Ms. Gruyaert’s claim. From that evidence, I conclude Ms. Gruyaert did maintain her residence and that of her son, with her parents until she and Travis moved into the basement of Ricky’s home a few weeks before Ricky’s death. It is also telling, in my view, that Ms. Gruyaert and Travis then moved to the basement suite and began paying rent to Ricky.

As noted by Parrett J. in Harris v. Wille Estate, [2001] B.C.J. No. 169, the court should be very slow to impose on parties commitments which, by their conduct, they have clearly not intended to make. On Ms. Gruyaert’s evidence alone, I conclude that absent from the relationship was any element of economic [dependence], a sharing of and commitment to a common principal residence, and a general recognition that they were a family unit.

The Court also dismissed a claim in constructive trust asserted by Ms. Gruyaert, noting that in return for her contributions of companionship and “some domestic and personal support”, Ms. Gruyaert had received a substantial benefit in the form of living rent-free in Mr. Davey’s basement suite, and the payment of certain travel expenses.

[3] Notwithstanding this result, the Chambers judge wrote in her later reasons that Ms. Gruyaert should have her costs from the estate on a party-and-party basis. In reaching this conclusion, the Chambers judge relied on a decision of the Supreme Court of British Columbia in Re Schipmann Estate [1999] B.C.J. No. 1377, where a Master had referred to a judge a question regarding the propriety of certain deductions for taxes payable on a bequest of real estate. The question was resolved by Cowan J. in favour of the executrix and against the residuary beneficiary, but both sought to recover their costs from the estate. Cowan J. ordered special costs in favour of the executrix and costs on scale 3 from the estate in favour of the beneficiary, and stated:

A review of the several cases referred to by counsel on the issue of the award of costs in matters pertaining to issues arising in estate cases leads me to conclude that, while the general rule that an unsuccessful party is obligated to pay the costs of the successful party in matters pertaining to issues which arise relating to such matters as the capacity of the testator or the proper construction of a will and issues arising therefrom, the court may in its discretion depart from that general rule and award costs to an unsuccessful party out of the estate, particularly so if the court is of the opinion that the party seeking a judicial resolution of the issues concerned had reasonable grounds for bringing an application for that purpose.

In the present case I am of the view, given the somewhat complex issue which was before the court pertaining to the administration of the deceased’s estate in this case, that it was reasonable and appropriate for the application to be made and for the beneficiary … to seek a resolution of the issue favourable to him. [At paras. 7-8; emphasis added.]

The Chambers judge in the instant case noted that similar reasoning had also been followed in Janus v. Lachocki, 2001 BCSC 1702 at para. 79.

[4] Ms. Davey appealed the costs order to this court but did not obtain leave prior to the hearing as required by s. 7(2) of the Court of Appeal Act, R.S.B.C. 1996, c. 277. When this was brought to counsel’s attention, he applied for leave from the panel and Ms. Gruyaert did not object and informed the Court that she was ready to proceed, although she had not filed a factum. I am of the view that leave to appeal should be granted.

[5] On the merits of the appeal, I do not believe that the question of whether the claim was brought “reasonably” is the correct one. The starting point, of course, is the principle that costs follow the event and that any departure from that rule is usually intended to deprive the successful party of costs rather than to award costs to an unsuccessful party. In Vielbig v. Waterland Estate (1995) 1 B.C.L.R. (3d) 76, this court noted that exceptions are made to the usual rule more readily in estate cases than in other areas of the law. Writing for the Court, Hinds J.A. quoted the following passage from the judgment of Master Horn in Lee v. Lee Estate (1993) 84 B.C.L.R. (2d) 341 (S.C.) as follows:

An order for costs in favour of a completely unsuccessful party against a completely successful party is a most exceptional order. The general rule is that costs follow the event and, while a court may depart from this rule, any departure is usually in the way of depriving a successful party of costs and not of awarding costs to an unsuccessful party. In either case, the usual rule should not be departed from simply because an unsuccessful party did not expect to lose. (Baart v. Kumar (1985) 21 D.L.R. (4th) 705 [66 B.C.L.R. 61] (B.C.C.A.), at p. 711; Burnaby (District) Approving Officer) v. Mutual Development Corp., [1971] 5 W.W.R. 97 (B.C.C.A.) at pp. 100 and 105; Donald Campbell & Co. v. Pollak [1927] A.C. 732 (H.L.), at p. 776.)

In probate or administration actions or in proceedings for the construction of wills, the rule may be more frequently departed from. In such cases where the validity of a will or the capacity of the testator to make a will or the meaning of a will is in issue, it is sometimes the case that the costs of all parties are ordered to be paid out of the estate. This is upon the principle that where such an issue must be litigated to remove all doubts, then all interested parties must be joined and are entitled to be heard and should not be out of pocket if in the result the litigation does not conclude in their favour. The estate must bear the cost of settling disputes as a cost of administration. This is the reasoning which underlies such cases as Re Dingwall (1967), 65 D.L.R. (2d) 43 (Ont. H.C.); and McNamara v. Hyde [1943] 2 W.W.R. 344 (B.C.C.A.); and Re Lotzkar Estate (1965), 51 W.W.R. 99 (B.C.C.A.). The question to be asked in such case is whether the parties were forced into litigation by the conduct of the testator or the conduct of the main beneficiaries.

But the case is different where the litigation does not relate to the validity of the will or the capacity of the testator or the construction of the will. Actions brought under dependants’ relief legislation presume the validity of the will and the capacity of the testator and that his intentions are clear. There are no doubts to be settled. The remedies provided by such legislation are directed to the maintenance and support of the dependants of the testator and are based on public policy. The legislation does not invalidate the will, it merely permits the court to vary the provisions made by the testator. So an unsuccessful action under such legislation cannot be said to have been caused by a testator, or to … have been necessary to enable the estate to be distributed. The action does not benefit the estate. [At 346-7; emphasis added.]

In Lee Estate, Master Horn also noted the comment of Robertson J.A. in Lukie v. Helgason (1976) 1 B.C.L.R. 1 (C.A.) to the effect that he looked “without favour” on any notion that persons without meritorious claims under the dependants’ relief legislation should be in a position of trying to obtain part of the estate “without risk to themselves and at the expense of the persons whom the testator wished to benefit.” (At 15.)

[6] Vielbig v. Waterland Estate concerned a claim under the Wills Variation Act, R.S.B.C. 1979, c. 435. Hinds J.A. concluded for the Court that since no question had arisen of the validity of the will, the testator’s capacity or the meaning of the will, it could not be said that the litigation had been necessitated by the testator’s “fault”. Accordingly, the Court ruled that the general rule should prevail and costs follow the event.

[7] Although the case at bar does not arise under the Wills Variation Act, the similarities between Ms. Gruyaert’s claim and a claim made under that statute are obvious. The litigation in this case was not necessitated by any failure on the part of the deceased to express his intentions clearly or by a question as to his capacity. As in Re Bowe Estate [1971] 4 W.W.R. 234 (B.C.S.C.), a decision of Chief Justice Wilson, there was a “simple assertion and denial of a claim under a statute”.

[8] In my respectful view, the usual rule should have prevailed in this case and Ms. Gruyaert should not have been awarded her costs from the estate of Mr. Davey, thus diminishing the estate.

[9] I would allow the appeal and strike out the Chambers judge’s order which awarded costs to Ms. Gruyaert, but I would not order costs against her.

“The Honourable Madam Justice Newbury”

I Agree:

“The Honourable Madam Justice Ryan”

I Agree:

“The Honourable Madam Justice Levine”

Citation:	*Davey v. Gruyaert,*
	2007 BCCA 20