2007 BCSC 1207 Chowdhury v. Argenti et al

Before: The Honourable Madam Justice Allan

Reasons for Judgment

Appearing on his own behalf:	Reza Chowdhury
Counsel for the defendant Tina Argenti:	Robert James King
Counsel for the defendants Anne Argenti and Diane Argenti:	Peter Lightbody
Dates and place of trial:	July 23-27, July 30-August 2, 2007
	Vancouver, B.C.

[1] The plaintiff, Reza Chowdhury, claims against the estate of Peter Argenti on the basis that he was his common-law spouse for 14 years. While it appears that the two men were engaged in a sexual relationship for all or part of that period of time, the question of whether that relationship blossomed into a spousal union and remained that way for the two years preceding Mr. Argenti’s death is complicated by the fact that Mr. Argenti apparently insisted that their relationship be kept “a dead secret”.

[2] Mr. Argenti died on September 23, 2003. On December 8, 2003, Mr. Chowdhury commenced this action, claiming, inter alia:

· a declaration setting aside the transfer of Mr. Argenti’s home at 2106 Grant Street in Vancouver (the “Grant St. Property”) in September 2003 into the joint names of Mr. Argenti and his daughter Tina Argenti. The plaintiff pleaded that the transfer was a fraudulent conveyance; that Mr. Argenti was subject to undue influence when he executed the transfer; and that he was incompetent at the time of the transfer;

· a declaration that the Grant St. Property forms part of Mr. Argenti’s estate;

· entitlement to an interest in the Grant St. Property on the basis of a constructive trust; and

· entitlement to an interest in Mr. Argenti’s estate as his surviving spouse pursuant to s. 2 of the Wills Variation Act, R.S.B.C., c. 490.

[3] On July 6, 2007, following a summary trial application brought by Mr. King, counsel for Tina Argenti, Madam Justice Dickson determined the issues of mental competency and undue influence. She held that the evidence was overwhelmingly persuasive and unchallenged that Mr. Argenti was mentally competent and not subject to any undue influence when he executed the transfer of the Grant St. Property. There were no suspicious circumstances surrounding the transfer. The remaining issues were left for determination at trial.

Background

[4] Mr. Chowdhury was born in Pakistan in 1965. He testified that at an early age, he realized that he was only attracted to men over 50. Because such a relationship would be unacceptable in his culture, he decided to run away. After spending some time in Germany and Japan, he returned home because his mother was dying of cancer. While visiting her in the hospital, he was discovered in a sexual incident with an older man and once again fled his country, now Bangladesh. He lived briefly in Thailand, where he obtained a US passport in a false name. He arrived in Canada on July 16, 1990.

[5] After his arrival at the Vancouver airport, Mr. Chowdhury was caught attempting to discard his passport in the toilet. He applied for political asylum and, after 5 years, he was accepted as a Convention refugee on the basis that there was a reasonable chance he would be prosecuted for his sexual orientation if he returned to Bangladesh.

[6] Mr. Argenti was born in 1936 in Italy. He came to Canada in 1957. He married his wife Anka, who was born in Croatia, in 1967 and they had three daughters: Diane born in 1968, Anne born in 1971, and Tina born in 1975. He was a longshoreman by trade.

The relationship between Mr. Chowdhury and Mr. Argenti

[7] Mr. Chowdhury testified that very shortly after he came to Vancouver in 1990 when he was 25 years of age, he was working as a waiter on Robson Street. One day, while he was on that street, he made eye contact with a stranger, Mr. Argenti, who was then 54 years old. He described their meeting as “love at first sight.” They immediately began a sexual relationship. Mr. Argenti told the plaintiff that he lived with his sister and brother-in-law. In fact, he lived at home with his wife and daughters until 1993. Shortly after they met, Mr. Argenti went on a trip to Australia to visit his brother. He sent the plaintiff postcards and on his return, they stayed in hotels in Vancouver for a few days before Mr. Argenti notified his family of his return.

[8] Mr. Chowdhury said that Mr. Argenti came to his apartment every night before starting his shift at the waterfront at 1:00 a.m. He sometimes returned early in the morning if a ship had not come into port for unloading. Mr. Argenti did not like Mr. Chowdhury sharing an apartment and told him to get a single apartment and he would pay the rent. Mr. Chowdhury found an apartment on Dundas Street. One night, Mr. Argenti entered the apartment while Mr. Chowdhury was asleep and woke him up. He revealed that he was married and had three daughters and said that he thought his middle daughter Annie had followed him there. He said he wanted to divorce his wife but if he did so, the property would go to her so he wanted her to divorce him. The plaintiff said that Mr. Argenti had told him that he did not like his daughters or his wife. Mr. Argenti spoke of a previous incident in which he had been arrested and sent to jail because of Diane’s allegations. In fact, he had been choking his wife Anka with one hand and holding a knife with his other hand. Mrs. Argenti told Diane to call the police and she did so. As a result, Mr. Argenti was arrested and held in cells overnight.

[9] In 1992, Mrs. Argenti commenced divorce proceedings against her husband and, in June 1992, the court issued a declaration that there was no reasonable prospect of reconciliation. They were divorced in June 1993. Mrs. Argenti continued to live at the Grant St. Property after separation until 1993, when she moved with Tina and Annie to a house not far from the Grant St. Property. At that time, Tina was about 14 years old. Diane had previously moved out. As a result of the divorce settlement, Mr. Argenti got possession of the Grant St. Property.

[10] Mr. Chowdhury testified that Mr. Argenti wanted him to move into the Grant St. Property to live as his life partner. However, Mr. Argenti was part of a very conservative and Catholic Italian community. There was also a considerable age difference. Mr. Chowdhury said that Mr. Argenti would never “come out” as a homosexual, no matter what Mr. Chowdhury wanted. He would never introduce the plaintiff as his spouse, sexual partner or life partner. Mr. Chowdhury said that after much consideration, they hit upon a plan. Mr. Chowdhury had learned Italian cooking from an Italian family in Germany and he was a fully trained line cook. They decided to open an Italian restaurant and as the chef, Mr. Chowdhury would live with Mr. Argenti and pay rent. Mr. Chowdhury found a restaurant, and Mr. Argenti purchased it in June 1993. Mr. Chowdhury said he paid for the artistic design and worked on the interior design for a month with no payments. Mr. Argenti took a $50,000 mortgage on the Grant St. Property and paid the hard costs of the business.

[11] The plaintiff testified that when the Pasta Gallery opened in September 1993, he managed it, cooked, did the paperwork, banking etc. He worked long hours, seven days a week. He was paid minimal wages which, by themselves, did not adequately compensate him for his work. In 1995, Mr. Argenti decided to sell the restaurant, saying to the plaintiff that he had only opened the business to show his wife that he could do it without her. The plaintiff testified that the restaurant was sold in 1996. In his “resumes”, which appear to have been prepared for the purpose of this litigation, he gives three different dates for the closing of the Pasta Gallery: January 1996, May 1996 and July 1996. However, a letter of reference signed by Mr. Argenti indicates that he stopped working at the Pasta Gallery in September 1995. Further, he applied for unemployment insurance benefits in October 1995. The restaurant’s last financial statement is for a two month period ending January 31, 1996.

[12] There is no question that Mr. Chowdhury lived in the Grant St. Property between 1993 and 1996. He produced his BC Identification card and mail and bills sent to him at that address up to March 1996.

[13] Mr. Chowdhury said that when Mr. Argenti told him that he would close the restaurant and Mr. Chowdhury had to move, he was devastated and had a nervous breakdown. He was taken to VGH and after a day or so, picked up by Mr. Argenti, who told him that he had visitors coming from Los Angeles and Mr. Chowdhury had to move from the Grant St. Property. The plaintiff was reluctant to move but Mr. Argenti sent him an official letter telling him to move and threatened to call the police unless he left.

[14] Mr. Chowdhury testified that Mr. Argenti got him a small shabby basement room on Clark Drive and paid $200 a month. He told him to stay there and had his friend Mr. Vesnaver move the plaintiff’s mattress. Mr. Vesnaver was frequently at the Grant St. Property, gardening every day and making wine with Mr. Argenti. The plaintiff said Mr. Argenti would visit him in the Clark Drive room and when Mr. Vesnaver finished gardening, they would go back to Grant Street and he would sleep there. Mr. Argenti told him that if anyone visited, the plaintiff would have to “dress up” or put all his clothes and shoes on so that he appeared to be a visitor.

[15] The plaintiff said he kept asking Mr. Argenti when he could move back but he was told that the visitors were coming any day. When Mr. Chowdhury complained about fungus in the Clark Drive room, Mr. Argenti found him another place on 33^rd Avenue. Eventually, Mr. Argenti found a small apartment on East 41^st Avenue and Mr. Chowdhury has lived there since. They redecorated it together and Mr. Argenti helped him furnish it. Mr. Argenti visited him there.

[16] In 1998, Mr. Chowdhury became very concerned because he was unable to contact Mr. Argenti for several days. He telephoned 911 and made a missing persons report. He met with police officers at the Grant St. Property. He was concerned that Mr. Argenti had come to grief inside the house. A neighbour, Mr. Hutchinson, became involved and offered to provide a tall ladder so that the police could break into one of the windows. Suddenly, Mr. Vesnaver came around to the front of the house from the back garden. He told them that Mr. Argenti was in Italy with his daughter Tina for a five week holiday and he was looking after the home and garden. Although Mr. Chowdhury insisted at trial that Mr. Argenti had told him about the holiday before he left, the only reasonable conclusion that can be drawn is that Mr. Argenti had not told him of his plans. Further, it is clear that Mr. Chowdhury did not have keys to enter the home.

[17] The plaintiff was employed and not dependent upon Mr. Argenti although the latter paid all or part of his rent after 1996. They never shared bank accounts or joint property. Mr. Argenti prepared a will in 1999 in which he left his entire estate to his daughter Tina. Mr. Chowdhury did not have a will. Their relationship appears not to have been exclusive from Mr. Argenti’s perspective. He used the services of “call-boys” both in Vancouver and, apparently, Thailand. After his death, Tina Argenti found more than a hundred pornographic videos at Grant Street and clippings of “escorts” from gay men’s newspapers with her father’s written notes and descriptions.

[18] It is clear that Mr. Argenti enjoyed a close and loving relationship with his daughter Tina. She visited him regularly; she did errands for him; she called him nightly to wake him up for work. He bought her gifts, including a car, and took her on holiday with him. He also bought her an apartment that was placed in both his and her names as joint tenants.

[19] Mr. Argenti was admitted to the VGH on September 8, 2003 following a stroke. The plaintiff described rushing to the Grant St. Property after receiving an urgent phone call from Mr. Argenti and finding him on the kitchen floor. He called an ambulance and told the paramedics that he was Mr. Argenti’s partner and he lived there. Mr. Argenti was taken to VGH and the plaintiff stopped to tell one of the neighbours, Maria, what had happened. Mr. Chowdhury got to the hospital and told the nurses that he was Mr. Argenti’s partner. Although Mr. Argenti had apparently indicated that his marital status was “divorced” when the admission sheet was filled in, and gave Mr. Chowdhury’s name as a contact person, the plaintiff wrote the word “partner” beside his name.

[20] For many days, Mr. Argenti’s family was unaware that he was in the hospital. With the agreement of the nurses, Mr. Chowdhury provided intimate care and services for Mr. Argenti and kept him clean. He spent long hours at the hospital. He rented a television for Mr. Argenti and prepared special food for him.

[21] The plaintiff testified that Mr. Argenti did not want to see any of his family. However, one of his neighbours had seen the ambulance take Mr. Argenti away and had notified his ex-wife. Tina came to the hospital after 8 or 9 days and was told by Mr. Chowdhury that her father was sleeping and when he awoke, the plaintiff would ask him if he wished to see her. She returned later that day and visited with him. From then on, she visited regularly. She testified that her father was very upset that Mr. Chowdhury had sent her away.

[22] Mr. Argenti died on September 23, following surgery for cancer on September 19. He was 66 years old. Before he died but while he was unconscious, Anka, Diane and Anne visited him at his bedside and a priest performed the last rites.

[23] Mr. Chowdhury was not told where Mr. Argenti’s body had been taken and he searched all of the funeral homes in the area. He located the correct home and took flowers to visit Mr. Argenti’s body. Mr. Argenti’s brother, who had travelled from Australia, found him there and angrily told him to leave.

[24] Mr. Chowdhury found it hurtful that his name was not mentioned as a spouse or partner in the obituary. He was also prevented from sitting at the front of the church during the funeral. When someone asked him to help carry the casket, he said that Anka Argenti’s sister told him he was not allowed to carry it. He wanted to attend at the cremation, but Tina Argenti said she did not want anyone there.

Mr. Argenti’s will

[25] Mr. Crescenzo was Mr. Argenti’s lawyer. He prepared a will for him on July 15, 1999. At that time, Mr. Argenti’s instructions were to leave his whole estate to his daughter Tina. She was also his sole executrix. Mr. Crescenzo said his client was very fond of Tina and he was proud of her. He was adamant that the will contain a clause expressing his desire to exclude his daughters Diane and Anne. He told Mr. Crescenzo that he had had no contact with them since his separation from Anka and that he was not on good terms with them. He felt he had had no support from them. He made no reference to a present spouse or to Mr. Chowdhury. The will was registered on February 28, 2000.

Should the Grant St. Property be part of Mr. Argenti’s estate?

[26] In July 1999, Mr. Argenti also instructed his lawyer to transfer half of his interest in the Grant St. Property to Tina to minimize probate fees. That transfer was registered in the Land Title Office on August 4, 1999.

[27] In February 2001, Mr. Argenti returned to Mr. Crescenzo’s office with Tina. He said that he wanted the Grant St. Property transferred back to his name alone but that he would transfer it back to joint title at some future point.

[28] I accept Tina’s explanation for the transfer. As Mr. Chowdhury also noted, Mr. Argenti had built a high garage, a greenhouse and a wine cellar, all without a permit from the City of Vancouver. A neighbour complained to the City, which then commenced an action against both Mr. Argenti and Tina. Mr. Argenti was extremely upset that his daughter had become involved in what was a problem of his making and wished to remove her from the title. The City filed a Notice of Discontinuance of its action in June 2003.

[29] Mr. Chowdhury testified that when the trouble with the City arose, Mr. Argenti asked him if he could transfer the Grant St. Property to him but he refused because he didn’t want trouble and could not do anything “questionable”. He said that Mr. Argenti said he would transfer it into Tina’s name and then he would later put it in Mr. Chowdhury’s name so that he could have it. That explanation makes no sense. It is obvious that when the trouble with the City began, Mr. Argenti transferred the property out of Tina’s name and not into her name.

[30] On September 17, 2003, Tina called Mr. Crescenzo from the hospital and told him that her father wanted to transfer the Grant St. Property back into joint tenancy. Because his client was in the hospital, Mr. Crescenzo also prepared a power of attorney.

[31] Mr. Crescenzo formed the opinion that Mr. Argenti was mentally competent to execute the transfer and the power of attorney and subsequently obtained a doctor’s opinion to that effect. He registered the transfer of the property. After Mr. Argenti died, counsel for the plaintiff filed a certificate of pending litigation and a caveat against the property.

[32] Letters probate were granted to Tina on March 24, 2006.

[33] Dickson J. has determined that Mr. Argenti was competent when he executed the Transfer; that he executed it in the absence of any undue influence or coercion by Tina Argenti; and that there were no suspicious circumstances surrounding the Transfer.

[34] I conclude that the September 2003 transfer validly transferred the Grant St. Property from Mr. Argenti to himself and Tina in joint tenancy and, that when he died, Tina became the sole owner of that property. It does not form part of Mr. Argenti’s estate.

Is Mr. Chowdhury entitled to an interest in the Grant St. Property on the basis of a constructive trust?

[35] Mr. Chowdhury asserts that he contributed greatly to Mr. Argenti’s life, whereas Mr. Argenti’s family, including Tina, contributed nothing.

[36] Mr. Chowdhury’s claim for a remedy by way of constructive trust requires that he establish three pre-conditions for unjust enrichment: that Mr. Argenti was enriched, that Mr. Chowdhury was correspondingly deprived, and that there was no juristic reason (such as contract) for that enrichment: Pettkus v. Becker, [1980] 2 S.C.R. 834; Sorochan v. Sorochan, [1986] 2 S.C.R. 38; Peter v. Beblow, [1993] 1 S.C.R. 980. In Pettkus, the parties lived together in a common law relationship for 19 years. They started with virtually nothing and accumulated assets together. At the end of the relationship, the defendant owned real property and a successful beekeeping business. The Court found a causal connection between the acquisition of property and corresponding enrichment. The plaintiff’s contribution was sufficiently substantial and direct to entitle her to a portion of the profits realized by the defendant. He had had the benefit of 19 years of the plaintiff’s unpaid labour and income contributions while she received little or nothing in return.

[37] In Sorochan, the parties cohabited for 42 years. Mr. Justice Dickson described the appellant’s contributions, which both enriched the respondent and constituted a deprivation, at 44 – 45:

… the appellant worked on the farm for forty-two years, during which time she received no remuneration from the respondent. She did all of the household work, including the raising of their six children. In addition, she looked after the vegetable garden, milked the cows, raised chickens, did farmyard chores, worked in the fields, hayed, hauled bales, harvested grain and helped to clear the land of rocks. She also sold garden produce, milk and eggs to pay for food and clothing for the family and for the schooling of the youngest child. On numerous occasions when Alex Sorochan was engaged in his sales activities, Mary Sorochan was left with sole responsibility for the operation of the farm.

The trial judge held that there was "clear evidence of enrichment" to the respondent. The Court of Appeal found that Mary Sorochan "performed all the work of a diligent farm wife". In my view, it is clear that the respondent derived a benefit from the appellant's many years of labour in the home and on the farm. This benefit included valuable savings from having essential farm services and domestic work performed by the appellant without having to provide remuneration….

In addition, through the appellant's years of labour, the farm was maintained and preserved as valuable farmland. It did not deteriorate in value through neglect or disuse, as it no doubt would have in the absence of Mary Sorochan's faithful and long years of labour. The appellant's maintenance and preservation of the land, therefore, conferred a significant benefit on the respondent.

…

On the other side of the coin, the labour done by Mary Sorochan during those forty-two years constituted for her a corresponding deprivation. The trial judge concluded that this was the case. Moreover, the case law indicates that the full-time devotion of one's labour and earnings without compensation can readily be viewed as a deprivation.

[38] In Sorochan, the respondent owned the property in question at the beginning of the cohabitation. That judgment made it clear that a contribution may be made by preserving and enhancing assets as well as acquiring them.

[39] While there must be a causal connection between the contribution and the acquisition, maintenance or enhancement of the disputed assets, a constructive trust remedy is not limited to property to which the claimant has made a direct contribution. For example, a plaintiff might contribute to his or her partner’s business assets indirectly through making contributions to the family income, or undertaking uncompensated domestic or other services in the home that enrich the partner who owns the assets.

[40] In this case, however, there is no evidence that Mr. Chowdhury contributed anything of value, by way of either money or services, to the improvement of the Grant St. Property. Mr. Chowdhury says he contributed to Mr. Argenti’s happiness and made him joyful. However, such a contribution cannot form the basis of a constructive trust.

[41] It is true that he energetically participated in the decoration and running of the Pasta Gallery between 1993 and 1995. He did not have any ownership interest in that operation and had no authority to write cheques. The financial statements, which he never saw, indicate that it operated at a loss for the three years it was in operation. I do not accept Mr. Chowdhury’s evidence that there were profits from the restaurant that paid for the renovations to the Grant St. Property.

[42] It may be that the plaintiff’s wages did not adequately compensate him for all of that work and that Mr. Argenti benefited from his unpaid labour. However, any “deprivation” of Mr. Chowdhury and “enrichment” of Mr. Argenti resulting from the plaintiff’s unpaid or underpaid labour ended in late 1995 or early 1996 and is unrelated to the state of the Grant St. Property in 2003. It is settled law that to establish an unjust enrichment, a claimant must show that his or her contribution was “sufficiently substantial and direct” as to entitle the claimant to a portion of the property in question: DeLeeuw v. DeLeeuw, [2003] B.C.J. 2284 (S.C.) at paras. 63-65.

[43] Further, any claim would have to compete with Tina Argenti’s entitlement under the will and the claims of her sisters under the Wills Variation Act.

Was the September 2003 transfer a fraudulent conveyance?

[44] The Fraudulent Conveyance Act, R.S.B.C. 1996, C. 163 (“FCA”) provides:

Fraudulent conveyance to avoid debt or duty of others

1 If made to delay, hinder or defraud creditors and others of their just and lawful remedies

(a) a disposition of property, by writing or otherwise,

(b) a bond,

(d) an order

is void and of no effect against a person or the person's assignee or personal representative whose rights and obligations by collusion, guile, malice or fraud are or might be disturbed, hindered, delayed or defrauded, despite a pretence or other matter to the contrary.

Application of Act

2 This Act does not apply to a disposition of property for good consideration and in good faith lawfully transferred to a person who, at the time of the transfer, has no notice or knowledge of collusion or fraud.

[45] The September 2003 transfer restored the title to the Grant St. Property as it had existed in 1999. When Mr. Argenti executed it, the plaintiff had not exerted any claim or cause of action against him. Thus, the purpose of the transfer was not to “delay, hinder or defraud” Mr. Chowdhury in any lawful remedy. Mr. Argenti had always indicated his intent to leave all of his property to Tina.

[46] In Hossay v. Newman, [1998] B.C.J. No. 3289 (S.C.), the plaintiff son was the adult son of a testator who had placed all of his major assets in joint tenancy with one of the defendants. The plaintiff argued that his father’s inter vivos disposition had the effect of defeating or hindering his claim against his father’s estate and was therefore a fraudulent conveyance. Mackenzie J. held that the plaintiff had no legal or equitable claims prior to the date of his father’s death. Without such a foundation, he had no status under the FCA.

[47] In this case, Mr. Chowdhury’s only potential claim under the FCA would arise from his entitlement to a constructive trust in the Grant St. Property. I have already determined that he is not entitled to such a remedy now. It follows that there was no basis for such a claim before Mr. Argenti’s death.

Is Mr. Chowdhury entitled to an interest in Mr. Argenti’s estate as a spouse?

[48] Mr. Chowdhury also claims entitlement against Mr. Argenti’s estate under s. 2 of the Wills Variation Act on the basis that he was Mr. Argenti’s spouse. That section provides:

Maintenance from estate

2 Despite any law or statute to the contrary, if a testator dies leaving a will that does not, in the court's opinion, make adequate provision for the proper maintenance and support of the testator's spouse or children, the court may, in its discretion, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator's estate for the spouse or children.

[49] Section 1 of that Act defines a “spouse”:

"spouse" means a person who

(a) is married to another person, or

(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabited in that relationship for a period of at least 2 years.

[50] Sub-section (b) is intended to give a cause of action to a common law spouse, whether same-sex or opposite sex, who is at the time of his or her partner’s death, living or cohabiting with that partner. In other words, the marriage-like relationship must be continuing at the time of the partner’s death. The evidence is resoundingly clear that Mr. Chowdhury and Mr. Argenti did not enjoy a marriage-like relationship for the two years preceding September 23, 2003.

[51] I have no hesitation in finding that Mr. Chowdhury lived at the Grant St. Property between 1993 and 1996 and that during that time they actively pursued a same-sex relationship. The plaintiff said he paid rent cheques to Mr. Argenti for tax purposes. He produced a book of invoices that showed three rent payments during that period. Even if that two year period could be described as a spousal-like relationship – despite Mr. Argenti’s adamant determination that they not be considered partners by family and friends – it came to an unhappy end in 1996. Mr. Argenti deliberately shut down the restaurant, which provided a “cover” for them, and tossed Mr. Chowdhury out and into a shabby room, where he visited for sexual purposes. Mr. Argenti gave many excuses as to why Mr. Chowdhury could not move his possessions back into the Grant St. Property. He obviously had no intention of ever allowing Mr. Chowdhury back to live there. After the visitors left, Mr. Argenti retired and his friends frequently dropped by to visit him. Then Mr. Argenti and Mr. Vesnaver made wine regularly. While Mr. Chowdhury visited the Grant St. Property frequently (and at Mr. Argenti’s convenience), I find that, without question, he did not “live” there after 1996. He “lived” in a series of small rooms or flats at Mr. Argenti’s insistence.

[52] The plaintiff‘s 2002 driver’s licence shows his address on E. 41^st Avenue. He gave his name and that address to the hospital in 2003. His own listing for his business “Oddlovers Inc.” uses that address. Mr. Argenti’s friends, Mr. Paladino, Mr. Vesnaver, Mr. Gasparella and Mr. Ciciliot, testified that they visited Mr. Argenti frequently, sometimes unannounced, and saw no indication that anyone else lived there.

[53] There was evidence that the plaintiff came to the Grant St. Property once or twice while Mr. Argenti and Tina were having a barbecue for his friends. Mr. Argenti left the group to speak privately to Mr. Chowdhury but did not invite him to join them. Mr. Argenti was a habitué of a number of Italian coffee bars on Commercial St. and it appears that Mr. Chowdhury sometimes joined him there. However, none of Mr. Argenti’s old friends and acquaintances, except one, had any idea or suspicion that Mr. Argenti and Mr. Chowdhury had a relationship.

[54] Mr. Chowdhury said that Mr. Argenti bought him a red Pulsar for transportation to and from work at the Pasta Gallery and shopping, and later a gold Cadillac. However, neither vehicle was registered in his name. The Pulsar was registered in the name of the restaurant and the Cadillac was registered in Mr. Argenti’s name.

[55] Tina Argenti testified that no personal belongings of the plaintiff were found in the Grant St. Property after her father’s death. Mr. Chowdhury did not have keys to that home other that those he got from Mr. Argenti at the hospital. Obviously, he had no keys in 1998 when Mr. Argenti took Tina to Italy. In summary, their relationship lacked the indicia of cohabitation or a common law relationship.

[56] There is no question that Mr. Chowdhury devoted his life to Mr. Argenti for many years. Understandably, he was hurt and upset by the complete failure of Mr. Argenti’s family and friends to accord him any recognition as an intimate friend of Mr. Argenti. He testified that “my problem is that they ignored me, maybe because I am a homosexual man.” On the other hand, Mr. Argenti’s family and friends were stunned by the realization that he had been a closet homosexual. For 66 years, he had portrayed himself as a heterosexual man, a “macho” longshoreman, and a member of the Italian Catholic community.

[57] The fact that Mr. Chowdhury and Mr. Argenti did not cohabit in a marriage-like relationship for the two years preceding Mr. Argenti’s death is fatal to Mr. Chowdhury’s claim that they were spouses. However, I am not prepared to accept the defendant’s submissions that the authorities relating to opposite-sex common-law relationships are wholly applicable to same-sex relationships. Mr. King cites Tanouye v. Tanouye, [1994] 2 W.W.R. 735 (Sask. Q.B.):

The authorities seem to indicate that a common law relationship or marriage requires perhaps not all but at least a majority of the following characteristics: economic interdependence including an intention to support; a commitment to the relationship, express or implied, for at least an extended period of time; sharing of a common principal residence; a common desire to make a home together and to share responsibilities in and towards that home; where applicable, shared responsibilities of child rearing; and a sexual relationship. As well, it appears that, superimposed on the relationship, there should be the general recognition of family, friends, and perhaps to some extent the larger community, that the particular man and woman appear as a "couple", i.e., a family unit.

(emphasis added)

[58] In Janus v. Lachocki, [2001] B.C.J. No. 2551 (S.C.) at para. 71, Holmes J. dismissed the plaintiff’s claim under the Wills Variation Act that she had been a common-law spouse of the deceased:

I find on the whole of the evidence, the parties did not generally refer to themselves as being married and were not generally regarded within their communities as actually living common law or in any marriage like relationship.

[59] Mr. King also cites several American authorities for the proposition that a common-law marriage requires a present intent and agreement to be married, continuous cohabitation, and a public declaration that the parties are husband and wife. He cites Conklin by Johnson-Conklin v. Macmillan Oil Co., 557 N.W. 2d 102; 1996 Iowa App. 129 (C.A.), which underscores the necessity for a public declaration of a spousal relationship:

Under Texas decisions, there can be no secret common law marriages as such. The secrecy is inconsistent and irreconcilable with the requirement of a public holding out that the couple are living together as husband and wife.

[60] In my respectful view, it is unnecessary to resort to American cases where the relevant law incorporates and reflects societal and cultural norms and values that may differ between Canada and the US and there is ample Canadian authority on point.

[61] I was not directed to any Canadian case considering a plaintiff’s claim to be a spouse in a same-sex relationship. While the Canadian government has recognized the right of same-sex couples to marry and – whether they are married or common-law - to enjoy the benefits and rights accorded to opposite-sex couples, not all of society approves of, or recognizes, same-sex relationships. In some communities, openly gay people may be subjected to prejudice and vilification. There are obvious reasons, unique to same-sex couples, for keeping a close, loving marriage-like relationship a secret from their employers, family and friends. In my view, the “recognized in the community as a couple” requirement that opposite-sex couples enjoy common-law status should not be imposed on all same-sex couples.

The counterclaim of the defendant Tina Argenti

[62] The defendant seeks the return of personal items that the plaintiff took possession of at the hospital during Mr. Argenti’s last illness:

· A gold chain and crucifix;

· A key ring;

· A cell phone;

· Mr. Argenti’s wallet; and

· $680 in cash.

[63] While Mr. Argenti was in the hospital, he gave the plaintiff a large key ring with numerous keys on it with instructions to lock everything up. He did not return them. On the day that her father died, Tina Argenti had Joe Palladino, a friend of her father’s, change the locks on the doors so that Mr. Chowdhury could not access the Grant St. Property.

[64] On the last day of trial, after submissions, Mr. Chowdhury brought the key ring, cell phone, and wallet to court. He testified that Tina had given him the gold chain and crucifix at the hospital. Apparently Mr. Argenti had to remove it when he went for various tests and surgery. Tina Argenti testified that they had to move all of her father’s belongings from one room to another and the chain and cross were in the drawer of a bedside table. When Mr. Chowdhury took it out to hand it to her, she asked him to hold on to it because her hands were full. She said he refused to return it after that. I accept Tina Argenti’s version of events. Mr. Chowdhury wore the gold chain and crucifix to his examination for discovery. However, he now says that he lost it.

[65] The plaintiff says that Mr. Argenti gave him $1,000 to pay some bills and gave him the $680 that was left over. Tina Argenti denied that her father had given the plaintiff that money. She said that she had taken the rental cheque from the apartment that they owned jointly, paid some bills, took the remaining $680 to the hospital and gave it to her father. I prefer Tina Argenti’s evidence as to the source of those funds and find that the $680 is properly part of her father’s estate.

[66] In any event, the $680 was put into Mr. Argenti’s wallet and placed in a safe in the hospital. When Mr. Argenti died, all of his belongings were released to Mr. Chowdhury. Those items were then held by his counsel, Mr. Dahl, who returned them to him when he ceased acting for him. When Mr. Chowdhury brought them to court, the $680 was not in Mr. Argenti’s wallet. I asked Mr. Chowdhury what had happened to the money and he replied that Mr. Dahl might still have it. On August 2, 2007, the last day of trial, I asked Mr. Lightbody to make enquiries. Mr. Dahl wrote a letter (inexplicably dated July 25, 2007) stating that Mr. Chowdhury had declined to take any of the small amount of money that was held in trust and his file and trust account were closed. I assume that it was applied against outstanding fees and disbursements.

[67] If Mr. King wishes to pursue those funds, he should file a brief submission in support of that position by August 31, 2007 and Mr. Chowdhury may file a brief response by September 15, 2007.

The claims of Anne Argenti (now Caporale) and Diane Argenti (now Emmott) under the Wills Variation Act

[68] The total value of the estate is approximately $33,000, consisting primarily of vehicles. In this action, the defendants Anne and Diane Argenti sought relief under the Wills Variation Act on the basis that their father failed to make adequate provision for their proper maintenance and support and failed to distribute his estate in a manner that was adequate, just or equitable. They testified that they wished to have a relationship with their father but he cruelly rejected all of their efforts to do so.

[69] On the last day of trial, Mr. Lightbody indicated that Anne and Diane had settled their claims with Tina.

Conclusion:

[70] The plaintiff’s claims are dismissed. The caveat and certificate of pending litigation filed against the Grant St. Property will be discharged.

[71] The personal belongings of Mr. Argenti that were produced by Mr. Chowdhury on the last day of trial and entered as exhibits are to be released to Tina Argenti at the expiry of the appeal period.

[72] Tina Argenti was sued in her personal capacity and as executrix of the estate of Peter Argenti. She is entitled to one set of costs against Mr. Chowdhury. Diane Emmott and Anne Caporale will bear their own costs.

“M.J. Allan J.”

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The Honourable Madam Justice Allan